ML080790255
| ML080790255 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 03/18/2008 |
| From: | Sherwin Turk NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS E99 | |
| Download: ML080790255 (279) | |
Text
{{#Wiki_filter:March 18,2008 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) 1 ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247-LRf286-LR 1 (Indian Point Nuclear Generating 1 Units 2 and 3) 1 NRC STAFF'S RESPONSE TO THE ATOMIC SAFETY AND LICENSING BOARD'S ORDER OF MARCH 7,2008 CONCERNING THE SERVICE AND CONTENT OF WESTCAN'S FEBRUARY 15,2008 REPLY TO THE RESPONSES FILED BY ENTERGY AND THE NRC STAFF The NRC Staff ("Staff') hereby provides the following information in response to the Licensing Board's "Order (Relating to the Service and Content of WestCAN's Reply Dated February 15, 2008)," issued on March 7, 2008 ("Order"). BACKGROUND On January 22, 2008, Entergy Nuclear Operations, Inc. ("Entergy" or "Applicant") and the NRC Staff filed their answers to the petition for leave to intervene which had been filed by Westchester Citizen's Awareness Network, et a/. ("WestCAN"), on December 10, 2007. In a document dated February 15, 2008, WestCAN filed its reply to those answers.' On February 22, 2008, Entergy filed a motion to strike WestCAN's February 15 ~ e p l y . ~ 1 "Reply of Petitioners Westchester Citizen's Awareness Network (WestCAN), [et al.]" ("WestCAN's Reply"), dated February 15, 2008. 2 "Entergy Nuclear Operations, Inc. Motion to Strike WestCAN, et al. Reply to Entergy and the NRC Staff" ("Motion"), dated February 22, 2008.
On March 3, 2008, as supplemented on March 6, 2008, the Staff filed its answer to Entergy's motion to strike WestCAN's ~ e p l y .In~the Staff's Answer of March 3, 2008, the Staff informed the Licensing Board that it had received WestCANJsReply by E-mail at 12:OO AM on February 16, 2008; subsequently, in its March 6 Supplement, the Staff advised that it had discovered that the 12:OO AM version which it received by E-mail was substantively different from the 1253 AM version that WestCAN had served on the Applicant and the OGC mailroom (but not counsel for the Staff), and that WestCAN had now informed the Staff that the 12:53 AM document corresponds to the paper version of the document that was delivered by DHL on February 19, 2008 and that it superseded the 12:OO AM version of the document. Based on this information, the Staff filed a Supplement in which it corrected its answer to the motion to strike - stating that "WestCAN's Reply Brief was transmitted by E-mail, without attachments or exhibits, to the OGC mailroom (but not to Staff Counsel) at 12:53 AM on February 16, 2008." Supplement at 2. Further, the Staff stated that WestCAN's Certificate of Service, accompanying the 12:53 AM transmission of its Reply, was materially incorrect: WestCAN's Reply Brief was not properly served by E-mail on the Staff. In this regard, the Certificate of Service accompanying WestCAN's Reply Brief of 1253 AM states that WestCAN transmitted its Reply Brief by E-mail to: sherwin.turk@nrc.gov, beth.mizuno@nrc.aov, Kimberly.sexton@nrc.qov, and Christo~her.chandler@nrc.~ov.Id. at 2, 3. Contrary to this representation, however, none of the above attorneys has any record or recollection of having received such an E-mail transmission from the WestCAN Petitioners - and, in fact, no transmission to these attorneys appears to have been made. Rather, WestCAN transmitted its E-mail to the OGC mailroom, without serving Staff Counsel of record . . . . As a result, Staff Counsel only learned belatedly that WestCAN's 12:OO AM transmittal did not constitute its actual Reply Brief. Further, WestCAN's Certificate of Service appears to be materially incorrect, insofar as it states that WestCAN served its Reply Brief by E-mail upon the four named Staff attorneys. . . . See (1 ) "NRC Staff's Answer to Entergy's Motion to Strike the Reply of WestCAN, et al. to the Responses Field by Entergy and the NRC Staff' ("Answer"), dated March 3, 2008; (2) "Supplement to 'NRC Staff's Answer to Entergy's Motion to Strike the Reply of WestCAN, et at. to the Responses Field by Entergy and the NRC Staff"' ("Supplement"), dated March 6, 2008.
Supplement at 2-3; footnotes omitted. In its Order of March 7, 2008, the Licensiog Board directed the Staff and WestCAN to provide responses to certain questions concerning the service and content of WestCAN's Reply. Order at 5-6. The Staff hereby responds to the seven specific questions for which the Board requested a Staff response. (1) A copy of the document identified as the WestCAN Reply that was received by Staff Counsel via e-mail at 12:OO am on February 16, 2008. (2) A copy of the e-mail banner identifying to whom the 12:OO am, February 16, 2008, submission was sent. Staff Response. Attached hereto as "Attachment 1" is a copy of the E-mail banner which Counsel for WestCAN transmitted to Sherwin Turk and the NRC Hearing Docket at 12:OO AM on February 16, 2008, together with the 122-page Reply that was attached to that E-mail transmission. (3) A copy of the e-mail banner identifying to whom the 12:53 am, February 16, 2008, submission was sent. Staff Response. Attached hereto as "Attachment 2" is a copy of the E-mail banner which Counsel for WestCAN transmitted at 1253 AM on February 16, 2008, to various recipients including the OGC Mailroom (but not Staff Counsel). The E-mail banner lists the persons to whom WestCAN's E-mail transmission was purportedly sent. (4) A copy of any documentation that the Staff received indicating that the version of the WestCAN Reply received at 12:OO am, February 16, 2008, was not intended to be the operative pleading.
Staff Response. Attached hereto as "Attachment 3" are copies of two documents: (a) a letter from Sarah Wagner, Counsel for WestCAN, dated February 15, 2008 (together with its accompanying service list), which WestCAN transmitted in paper form along with the paper copy of its Reply, delivered by DHL on February 19, 2 0 0 8 ; ~ and (b) Ms. Wagner's E-mail message to Sherwin Turk, Counsel for NRC Staff, transmitted on March 5, 2008 at 2:41 PM. (5) A brief statement explaining how and when NRC Staff Counsel first came to suspect that a nonidentical version of WestCAN's Reply had been sent to any participant in this proceeding. Staff Response. The Staff learned accidentally, on March 5, 2008, that WestCAN had filed and/or served two different versions of its Reply. On February 27, 2008, Ms. Wagner, Counsel for WestCAN, filed a lengthy set of "Errata" to WestCAN's Reply of February 15, 2008. On March 5, 2008, in preparing for oral argument on the petitioners' contentions, Staff Counsel Sherwin Turk attempted to manually insert WestCAN's errata into his working copy of WestCAN's Reply; that document (also used by other Staff Counsel) was the version of WestCAN's Reply that Ms. Wagner had transmitted to Mr. Turk at 12:OO AM on February 16, 2008. In attempting to insert the errata into this document, Mr. Turk found that the page and line references provided with the errata did not match the pages and lines in his copy of the document, and that the errata could not be inserted into the document. Mr. Turk then opened the 12:53 AM version of the document which he had received from the OGC mailroom, and found that this document contained substantive differences from the version which was transmitted to him at 12:OO AM. It should be noted that this letter substantially differs from the letter by Ms. wagner that accompanied WestCAN's E-mail transmission of 12:53 AM on February 16, 2008 - which failed to indicate that the 1253 AM E-mail version differed from or superseded the document which had been E-mailed at 12:OO AM. Compare Wagner letter of February 15, 2008 in Attachment 2,with Wagner letter of February 15, 2008 in Attachment 3.
Following this discovery, Mr. Turk sent an E-mail message to Ms. Wagner (reproduced in Attachment 3 hereto), in which he informed her of this development; he further stated his belief that the Staff's reply to Entergy's motion to strike, which stated that WestCAN had transmitted its Reply to the Staff by E-mail "at 12:OO AM on 2/16/08, may not be correct, if the version you sent to me at 12:OO AM differs from the later-transmitted document." Mr. Turk asked Ms. Wagner to confirm that the two E-mailed versions are not identical, and inquired whether the "the version delivered by DHL differ[s] in any way from the version E-mailed at 12:53 AM on 2/16/08? See Attachment 3 hereto. In response, Ms. Wagner advised Mr. Turk that "[tlhe Reply Brief which you received in the mail and in adobe is the Petitioners WestCAN's Reply Brief. The email transmittal letter said to discard the potentially corrupt word file. The abode [sic] file is exactly the same as the printed version mailed on thel5th of February." Id., emphasis added.5 (6) A brief statement explaining the differences which Staff Counsel believes exist between the version of WestCAN's Reply that was received at 12:OO am, February 16,2008, and the version of WestCAN's Reply that was sent to the NRC Hearing Docket at 12:53 am, and/or between the version of WestCAN's Reply that was received by Staff Counsel through the mail or via a courier service. Staff Response. In Ms. Wagner's March 5, 2008 E-mail response to Mr. Turk's inquiry, she stated that "[tlhe abode [sic] file is exactly the same as the printed version mailed on thel5th of February." To the best of the Staff's knowledge, the "adobe" version of WestCAN's Reply, referred to by Ms. Wagner, is the version that WestCAN transmitted to the OGC Mailroom at 12:53 AM on February 16, 2008. Based on Ms. Wagner's representation that the 12:53 AM version is "exactly the same" as the paper version delivered by DHL on February 19, 2008, the Staff has Ms. Wagner subsequently corrected this statement in a further E-mail transmission to Mr. Turk at 10:40 AM on March 6, 2008, to indicate that "the cover letter that was sent alona with the hard CODY of the brief" indicated that "[dlue to technical difficulties we are concerned the emailed Reply may be corrupted, therefore please delete it, and use the enclosed hard copies and CD-ROM" (emphasis added).
not compared the paper version of WestCAN's Reply with the E-mail versions of the document. Rather, the Staff has now performed a comparison of the two E-mail versions of the document. Specifically, prior to filing the Staffs Supplement of March 6, 2008, Counsel for the Staff observed that some substantive differences appeared between the 12:OO AM and 1253 AM E-mail versions of WestCAN's Reply, at page 70 of WestCAN's Reply. In the limited time available prior to oral argument, the Staff was unable to ascertain any other differences between the 12:OO AM and 1253 versions of WestCAN's Reply. The Staff has now had an opportunity to compare the two E-mail versions in detail, by converting the 12:53 AM Adobe Acrobat transmittal into MS Word format, and performing an electronic comparison of the two E-mailed versions. Based on this comparison, it appears that most of the differences involve formatting changes only; in addition, it now appears that certain substantive changes were made, particularly in WestCAN's arguments concerning Contentions 22-25 (see pages 70, 74-76, and
- 88) and Contention 41 (page 106). See Attachment 4 h e r e t ~ . ~
(7) A brief statement summarizing any other information that Staff Counsel believes that the Board should consider in order to have a complete and accurate understanding of this incident. Staff Response. The Staff's understanding of this matter is summarized in the Staff's Answer to Entergy's motion to strike, filed on March 3, 2008; the Staff's Supplement of March 6, 2008; and the discussion above. The Staff believes that WestCAN, having transmitted its Reply to Staff Counsel and the Hearing Docket by E-mail at 12:OO AM on February 16, 2008, could and should have eliminated any confusion concerning that document by transmitting an E-mail message to Staff Counsel (and any other recipients, such as the Hearing Docket), retracting that transmission. WestCAN failed to send a retraction. Further. WestCAN failed to send its 6 It should also be noted that an electronic comparison of two documents may identify certain language as having been inserted or deleted when, in fact, the language was merely moved to a different location in the document. Those differences are non-substantive.
12:53 AM E-mail transmittal to Staff Counsel, contrary to the representations in its Certificate of Service; and it failed to alert the parties that its 12:53 AM E-mail transmission superseded or replaced the 12:OO AM transmission. Only in the cover letter transmitting the paper copy of its Reply did WestCAN state that an unidentified "MS Word" version of its Reply should be disregarded. The Staff respectfully submits that this information, transmitted only in a second cover letter, was simply too vague and presented in too obscure a location to provide effective notice that WestCAN's 12:OO AM electronic transmittal of its Reply had been superseded. Respectfully submitted, Sherwin E. Turk Counsel for NRC Staff Dated at Rockville, MD this 181h day of March 2008
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of 1 1 ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-2471286-LR
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(Indian Point Nuclear Generating ) Units 2 and 3) ) CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing "NRC STAFF'S RESPONSE TO THE ATOMIC SAFETY AND I-ICENSING BOARD'S ORDER OF MARCH 7,2008 CONCERNING THE SERVICE AND CONTENT OF WESTCAN'S FEBRUARY 15,2008 REPLY TO THE RESPONSES FILED BY ENTERGY AND THE NRC STAFF," dated March 18,2008, have been served upon the following through deposit in the NRC's internal mail system, with copies by electronic mail, as indicated by an asterisk, or by deposit in the U.S. Postal Service, as indicated by double asterisk, with copies by electronic mail this 1 8 ' ~day of March, 2008: Lawrence G. McDade, Chair* Atomic Safety and Licensing Board Panel Office of Commission Appellate Mail Stop - T-3 F23 Adjudication* U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Mail Stop: 0-16G4 E-mail: LGMI @nrc.aov Washington, DC 20555-0001 E-mail: OCAAMAIL@nrc.gov Dr. Richard E. Wardwell* Atomic Safety and Licensing Board Panel Office of the Secretary* Mail Stop - T-3 F23 Attn: Rulemaking and Adjudications Staff U.S. Nuclear Regulatory Commission Mail Stop: 0-16G4 Washington, D.C. 20555-0001 U.S. Nuclear Regulatory Commission E-mail: REW@nrc.sov Washington, DC 20555-0001 E-mail: HEARINGDOCKET@nrc.qov Dr. Kaye D. Lathrop* Atomic Safety and Licensing Board Panel Zachary S. Kahn* 190 Cedar Lane E. Law Clerk Ridgway, CO 81432 Atomic Safety and Licensing Board Panel E-mail: KDL2@nrc.gov Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission E-mail: ZXKl @nrc.gov Mail S t o ~T-3
- F23 washington, DC 20555-0001
- VIA NRC INTERNAL MAIL ONLY
Marcia Carpentier John LeKay*" Law Clerk FUSE USA Atomic Safety and Licensing Board 351 Dyckman Street Mail Stop: T-3 E2B Peekskill, NY 10566 U.S. Nuclear Regulatory Commission E-mail: fuse usa@vahoo.com Washington, DC 20555-0001 (E-mail: Marcia.Carpentier@nrc.wv) Manna Jo Greene** Hudson River Sloop Clearwater, Inc. William C. Dennis, Esq.** 112 Little Market Street Assistant General Counsel Poughkeepsie, NY 12601 Entergy Nuclear Operations, Inc. E-mail: Mannaio@clearwater.orq 440 Hamilton Avenue White Plains, NY 10601 Justin D. Pruyne, Esq.** E-mail: wdennis@enternv.com Assistant County Attorney Office of the Westchester County Attorney Kathryn M. Sutton, Esq.** 148 Martine Avenue, 6'h Floor Paul M. Bessette, Esq. White Plains, NY 10601 Martin J. O'Neill, Esq. E-mail: jdp3@,westchestersov.com Morgan, Lewis & Bockius, LLP 1111 Pennsylvania Avenue, NW Daniel E. O'Neill, Mayor** Washington, D.C. 20004 James Seirmarco, M.S. E-mail: ksutton@mor~anlewis.com Village of Buchanan E-mail: pbessette@morqanlewis.com Municipal Building E-mail: martin.o'neill@morqanlewis.com Buchanan, NY 10511-1298 E-mail: vob@,bestweb.net Michael J. Delaney, Esq.** Vice President - Energy Department John J. Sipos, Esq.** New York City Economic Development Charlie Donaldson, Esq. Corporation (NYCDEC) Assistants Attorney General 110 William Street New York State Department of Law New York, NY 10038 Environmental Protection Bureau E-mail: mdelanev@nycedc.com The Capitol Albany, NY 12224 Susan H. Shapiro, Esq.** E-mail: john.sipos@?oag.state.ny.us 21 Perlman Drive Spring Valley, NY 10977 Joan Leary Matthews, Esq.** E-mail: mbs@ourrocklandoffice.com Senior Attorney for Special Projects New York State Department of Arthur J. Kremer, Chairman** Environmental Conservation New York Affordable Reliable Electricity Office of the General Counsel Alliance (AREA) 625 Broadway, 1 4 ' ~ l o o r 347 Fifth Avenue, Suite 508 Albany, NY 12233-1500 New York, NY 10016 E-mail: jlmatthe@qw.dec.state.ny.us E-mail: ajkremer@rmf~c.com kremeraarea-alliance.orq
Diane Curran, Esq.** Victor Tafur, Esq.** Harmon, Curran, Spielberg & Eisenberg, Phillip Musegaas, Esq. LLP Riverkeeper, Inc. 1726 M Street, NW, Suite 600 828 South Broadway Washington, D.C. 20036 Tarrytown, NY 10591 E-mail: dcurran@harmoncurran.com E-mail: phillip@riverkeeper.orq vtafur@riverkeeper.org Robert Snook, Esq.** Office of the Attorney General Richard L. Brodsky, Esq.** State of Connecticut 5 West Main St. 55 Elm Street Elmsford, NY 10523 P.O. Box 120 E-mail: brodskr~assembly.state.ny.us Hartford, CN 06141-0120 richardbrodsky@msn.com E-mail: robert.snook@po.state.ct.us Elise N. Zoli, Esq.** Daniel Riesel, Esq**. Goodwin Procter, LLP Thomas F. Wood, Esq. Exchange Place Ms. Jessica Steinberg, .l.D. 53 State Street Sive, Parget & Riesel, P.C. Boston, MA 02109 460 Park Avenue E-mail: ezoIi@qoodwinprocter.com New York, NY 10022 E-mail: driesel@sprlaw.com Sarah L. Wagner, Esq.** Legislative Office Building, Room 422 Albany, NY 12248 Ms. Nancy Burton** E-mail: sarahwaqneresq@qmaiI.com 147 Cross Highway Redding Ridge, CT 06876 John Louis Parker, Esq.** E-mail: nancyburtonct@aol.com Office of General Counsel, Region 3 New York State Department of Mylan L. Denerstein, Esq.** Environmental conservation Executive Deputy Attorney General, 21 South Putt Corners Road Social Justice New Paltz, IVY 12561-1620 Office of the Attorney General E-mail: jl~arker@qw.dec.state.ny.us of the State of New York 120 Broadway, 25thFloor New York, NY 10271 E-mail: mylan.denerstein@oaq.state.ny.us Sherwin E. Turk Counsel for NRC Staff
Attachment 1 to NRC Staffs Response of March 18,2008 12:OO AM, February 16,2008 E-mail Banner and Accompanying Version of WestCAN et al's Reply Brief
Sherwin Turk From: Sarah Wagner [sarahwagneresq@gmaiI.com] Sent: Saturday, February 16, 2008 12:OO To: Sherwin Turk; -Dock &s Turk Attachments: WestCAN-Reply-Brief-Final- 2.15.08..doc Att
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: Lawrence G. McDade, Chairman Dr. Kaye D. Lathrop Dr. Richard E. Wardwell In the Matter of Docket Nos. 1 50-247 and 59-286-LR ENTERGY NUCLEAR OPERATIONS, INC ASLB NO. 07-858-03 1 LR-BDO 1 (Indian Point Nuclear Generating Units 2 and 3) ) REPLY OF PETITIONERS WESTCHESTER CITIZEN'S AWARENESS NETWORK (WESTCAN), ROCKLAND COUNTY CONSERVATION ASSOCIATION, INC. (RCCA), PUBLIC HEALTH AND SUSTAINABLE ENERGY (PHASE), SIERRA CLUB - ATLANTIC CHAPTER (SIERRA CLUB), AND RICHARD L. BRODSKY PRELIMINARY STATEMENT The following constitutes the reply of Petitioners Westchester Citizen's Awareness Network (WestCAN), Rockland County Conservation Association, Inc. (RCCA), Public Health and Sustainable Energy (PHASE), Sierra Club - Atlantic Chapter (Sierra Club), and New York State Assemblyman Richard L. Brodsky (hereinafter "Petitioners"). Petitioners assert that they have standing ta intervene and have proffered admissible contentions in accordance with 10 C.F.R. 2.309(f).
PROCEDURAL HISTORY On April 23,2007, and supplemented on May 3,2007 and June 21,2007, Entergy Nuclear Operations, Inc. (hereinafter "Entergy" or "licensee") filed an application to renew its operating license for an additional twenty year period for 1nd.ianPoint Nuclear Generating Units 1 and 2. Notice of Acceptance for Docketing of the Application and Notice of Opportunity for Hearing was published in the Federal Register on August 1, 2007 regarding Entergy's license renewal application. On October 1,2007, the U.S. Nuclear Regulatory Commission (hereinafter "NRC" or Commission") extended the period for filing requests for hearings until November 3 1,2007. Petitioners were granted an extension to file their Petition on or before December 10,2007. On December 10,2007, Petitioners electronically by email served a Petition for Leave to Intervene with Contentions and a Request for a Hearing. On December 1 1,2007, hard copies of said Petition and exhibits were served on the Office of the Secretary at the Nuclear Regulatory Commission (hereinafter "NRC") by Fed Ex. By Order dated November 27,2007, Entergy and the NRC staff were ordered to file answers on or before January 22,2008. The NRC staff served an Answer to the Petition electronically by email on January 22, 2008, at 11:59pm. The licensee, Entergy, electronically by email served a reply to the Petition on
electronically by email on January 22,2008, with referenced exhibits arriving on January 27,2008. Pursuant to Order by the Licensing Board on January 29,2008, Petitioners replies are due on or before February 15,2008. BACKGROUND OF INDIAN POINT LICENSE RENEWAL APPLICATION AND CONTENTIONS RAISED BY THE COALITION PETITIONERS The United States operates 104 nuclear power reactors, which provide nearly 20 percent of the nation's electricity. More than half have had their original 40-year operating licenses renewed for an additional 20 years. Encouraged by billions of dollars in subsidies and incentives in the 2005 Energy Bill, a handfbl of companies applied for licenses to build new reactors last fall, and other companies are expected to apply later this year. Recurring lessons from the past consistently inform us that unless the Nuclear Regulatory Commission (NRC) undergoes major reforms, nuclear power will remain both riskier and more expensive than necessary. Indian Point is of particular risk to the public assets and the health and safety of the public given its location, age, non-compliant design, and legacy history evidenced by the oversight record by the regulator. The NRC is the federal agency primarily responsible for establishing and enforcing safety regulations for nuclear power. Whereas this petition does not challenge the adequacy of rulemaking, it does challenge adequacy of articulating
and interpreting the rules by the Applicant and the lack of substantive review by Staff as to whether specific concrete contentions are truly usefbl in establishing via engineering rigor and examination of the rule of law, confirming there is adequate safety, and lawfbl environmental protection of the Indian Point plant. This requirement begins with design requirements imposed on the Applicant contained, continues through approval of the original design criteria committed by the applicant by the record decades ago, through a total period of 40 years from construction to decommissioning. That design lifetime is articulated in the Current Licensing Basis. The regulator has an express time limit presently in effect to operate each reactor. Unit 2 license expires in 20 13, and Unit 3 in 20 15. The applicant is now attempting to substantiate that it can continue to operate the plant beyond its engineered life, and the NRC is compelled under law to rigorously evaluate this proposal, and recommend to the commission that commission can meet is statutory mandate of protecting the health and safety of the public and minimizing risk to public assets in granting this extension. The results of this exceeding important mantel placed upon the Commission is frankly cause for the community to be concerned. Numerous third parties and government oversight agencies agree. The Union of Concerned Scientists has
monitored nuclear power safety issues since the early 1970s. Amongst the 104 operating plants, a disproportionally large segment of its efforts have been directed at getting the NRC to enforce regulations already on the books so as Entergy at Indian Point recognize and adhere to its burden of maintaining a sound record of compliance to its license basis, and maintains the CLB itself as defined under 10 C.F.R. Part 54 section 54.3. A particular and on point example is the Applicant's description of its fire protection program contained in its application. Entergy's program has significant safety issues presently unresolved, yet a program that must have compliance integrity to count on for limiting the renewal scope. But it does not. See WestCAN et al., Objection to Fire Protection Exemption.. ." Evaluations conducted by the Government Accountability Office (GAO) and the NRC's Inspector General (IG) confirm our perspective: These reports repeatedly identify inadequate enforcement of existing regulations by the NRC, with the most recent regarding the exact issue at Indian Point, and raised contentions 5 through 11B. The nexus of a broken present fire protection program cannot be set aside in the renewal process if there is no prospect for correcting the deficient condition. As history shows, the results are catastrophic.
For example, in its May 2004 report, "Nuclear Regulation: NRC Needs to More Aggressively and Comprehensively Resolve Issues Related to the Davis-Besse Nuclear Power Plant's Shutdown" , the GAO concluded, "[The] NRC should have but did not identify or prevent the corrosion at Davis-Besse [a nuclear power plant in Ohio] because both its inspections at the plant and its assessments of the operator's performance yielded inaccurate and incomplete information on plant safety conditions." More recently and on point to license renewal and Entergy's failure to comply with the rule are six apparent violations found by an NRC inspection that took seven unplanned plant shutdowns on Unit 3 in less than a year to trigger. The core and essential of license renewal is a sound foundation that provides confidence on safely minimizing renewal scope to when all parties will agree is under the rules a very narrow scope. The record demonstrates otherwise, and compels us to raise as acceptable scope a program that is presently deficient but counted on as sufficient so as to exclude it from renewal scope. Where the program, system, structure or component is defective, and is presently unreconciled to correct, we argue under the rules defined in 10 C.F.R. 54 that it cannot be excluded fi-om license renewal. It represents ex post facto material items that bear on the health and safety of the public and minimizing risk to public assets.
The IG1sJanuary 2008 report, "NRC1sOversight of Hemyc Fire Barriers" documents the NRC1srepeated failure to enforce fire-protection regulations. In March 1993, after problems surfaced with the Thermo-Lag fire barrier used by nearly 100 reactors, .theNRC chairman committed to evaluate all fire barriers used in U.S. nuclear reactors. Tests conducted by the National Institute of Standards and Technology in 1993 (and reported to the NRC in 1994) found that the one-hour Hemyc fire barrier, used by 17 nuclear reactors, failed in 23 minutes. The NRC considered these tests too small to be conclusive and stated that larger-scale testing was needed. However, it wasn't until 2005 that the NRC commissioned such testing--even though the NRC acquired yet more evidence of problems with Hemyc in 2000. After an inspection found that Hemyc was used more extensively than assumed at one U.S. plant, the NRC reviewed the Hemyc tests conducted by the vendor and found that they did not demonstrate that Hemyc could meet its one-hour or .three-hourratings. When the larger-scale tests were finally conducted by Sandia National Laboratory, the one-hour Hemyc fire barrier failed in 13 minutes. According to the IG: "As of December 2007', no fire-endurance tests have been conducted to qualify Hemyc as an NRC-approved 1-hour or 3-hour fire barrier for installation at [nuclear power plants]." Thus, the NRC has known since 1994 that 17 U.S. reactors are relying on Hemyc for fire protection and that Hemyc I See Office of Inspector General Report of January 22, 2008. 7
does not meet NRC standards, but has not enforced the regulations it established in 1980, as a result of the serious fire at the Browns Ferry nuclear plant in Alabama that disabled the power, control, and instrumentation cabling for all the emergency core cooling systems on Unit 1 and most of those systems on Unit 2. The regulations included requirements that cabling for primary and backup safety systems (a) be physically separated by at least 20 feet horizontally, or (b) be protected by a one-hour or three-hour fire barrier to lessen the risk that a single fire disables all emergency systems. However, the NRC's own assessments of its regulatory meltdowns also repeatedly conclude that the majority of problems stem from inadequate enforcement of adequate regulations as is shown in contentions 5 through 11B For example, the NRC lessons-learned task force examined the regulatory failures associated with the near-accident at Davis-Besse in 2002~,and made 49 recommendations for actions the NRC should take to prevent recurrences. Forty-six of these outlined ways to improve enforcement of existing regulations, while the remaining three dealt with upgrading .the underlying regulations. The NRC's 2 httr,://www.nrc.gov/reactorsloperati~~~/ops-experiencelvessel-head-deeradationilessons-learned/lltf-report.html (last visited 2.15.08)According to the NRC, Davis-Besse came closer to an accident than any reactor since Three Mile Island. A crack formed in a metal tube entering the reactor vessel's lid and leaked borated water onto the carbon steel. The boric acid residue ate completely through the 6-inch carbon steel vessel to expose a one-quarter-inch stainless steel cladding applied to the vessel's inner surface. The timeline spanned an estimated six years and provided numerous opportunities for the NRC to step in. In the last missed opportunity, NRC staff drafted an order requiring Davis-Besse to shut down immediately on the basis that the reactor failed to satisfy four of the agency's five safety criteria and probably did not meet the fifth. But NRC's senior managers shelved the draft order because it would have cost the company too much money and instead waited to inspect the reactor for several months until i t had a scheduled shutdown for refueling
lessons-learned efforts for Indian point3 provide similar findings--the regulations were in the past not the problem, enforcement is4. Finally compliance by Entergy to the regulations is clearly the consequence. The licensees together with inadequate enforcement have caused significant safety and economic problems to community. In its September 2006 report, "Walking a Nuclear Tightrope: Unlearned Lessons of Year-plus Reactor Outages," UCS described the 36 times since 1966 that U.S. nuclear power reactors remained shut down a year or longer to restore safety levels eroded by accumulated violations. In these cases, more than a year, and cost an average of nearly $1.7 billion, to bring the reactor back into compliance. On February 22, 1993 Unit 3 was shutdown for over two years to attempt to restore safety levels and was not restarted until July 2, 1995. The magnitude of non-compliance and the consequential costs as well as the risks to the public are unacceptable. Unit 2 was shutdown from February 15,2000 until January 4,2001 (slightly less than one full year) over a steam generator tube rupture. This design basis accident is considered one of the most serious DBA's considered in the design, licensing and safe operation of the plant. As well as Millstone (Connecticut), South Texas Project, and other troubled nuclear plants However, this is now changing. See for example, proposed rulemalung regarding thermal shock httg:/lwww.~c.~ovlabout-nrc/re~ulatow/rulenan/~rovosed-les.html (last visited 211 5/08).
Inadequate compliance by the Applicant, as well as inadequate enforcement by the NRC allowed safety levels to erode over decades for Indian Point, resulting in unnecessarily higher risk to the surrounding communities during those years and higher cost to the owners. It also bears directly on the engineering rigor and current licensing basis compliance status as they impact contemplating an extension of 20 years post engineering design life. Congress, UCS, GAO, IG, and NRC all identified inadequate enforcement of safety regulations as the root cause of NRC's regulatory breakdowns, and cannot be set aside during these proceedings. The Commission must consider its history with respect to Indian Point concurrently in answering to its core mandate in considering this application for renewal. Over 140 contentions from 14 separate government or nonprofit organizations have been raised in these proceedings for admissibility. It is noted that not a single contention was accepted by the Applicant as admissible. Only about seven were recommended to be admitted by Staff. This stunningly small fraction is telling-in particular, given that the recent OIG report regarding License renewal called for substantial reform from a rubberstamping process to a process of engineering rigor, and sound regulatory oversight.
The reforms can not be deferred until after the next nuclear plant disaster using the precedent applied at NASA after Columbia, the intelligence community after 911 1, and FEMA after Katrina. The reforms will be the same; their cost will be significantly higher.
SUMMARY
OF ARGUMENT The NRC is responsible for protecting .thepublic from the dangers inherent in nuclear power. Each regulation governing the design of nuclear power plants and any other activity authorized pursuant to the Atomic Energy Act of 1954,42 U.S.C. $8 201 1 et seq. ("1954 Atomic Energy Act") must address its subject so as to minimize danger to life or property.5 The NRC may not issue a license to a nuclear power plant unless it determines that design, operation, maintenance of the plant will adequately protect the health and safety of the public. 42 U.S.C. 5 2232(a). Section 2232(a) hrther provides that risks to public assets are minirni~ed.~ The Petition brought to NRC's attention serious flaws in its current License Renewal Application. Those regulations avoid consideration of issues ' 42 U.S.C. $2201(i)(3)("General provisions - (i) Regulations or orders. prescribe such regulations or orders as it may deem necessary ... (3) to govern any activity authorized pursuant to this Act 142 USC $8 2011 et seq.j, including standards and restrictions governing the design, location, and operation of facilities used in the conduct of such activity, in order to protect health and to minimize danger to life orproperty. " (emphasis added). See docketed comments, pointing out that regulations governing design of nuclear power plants must minimize danger to life and property, regarding Proposed new Subpart K-"Additional requirements" and proposed 10 Part
related to current plant operation based on the assumption that ongoing regulatory requirements ensure adequate levels of safety. This is a core issue relevant to the scope of potential safety or environmental issues relative to the renewal process in this forum. The NRC is responsible for protecting the public from the dangers inherent in nuclear power. Each regulation governing the design of nuclear power plants and any other activity authorized pursuant to the Atomic Energy Act of 1954,42 U.S.C. fjfj 201 1 et seq. ("1954 Atomic Energy Act") must address its subject so as to minimize danger to life or property. The NRC must consider whether the process to be performed, the operating procedures, the facility, equipment, the use of the facility, and other technical specifications provide reasonable assurance that the applicant will comply with the regulations and that the health and safety of the public will not be endangered. Sections 50.40, 50.92 (1988). The NRC may not issue a license to a nuclear power plant unless it determines that design, operation, and maintenance of the plant will adequately protect the health and safety of the public. 42 U.S.C. fj 2232(a). NRC regulations for license renewal are codified in 10 C.F.R. Part 54 and 10 C.F.R. Part 5 1. Petitioners brought to NRC's attention serious flaws in Entergy's License Renewal Application. Those regulations avoid consideration of issues 52.500 "Aircraft Impact assessment" Docket No. RIN-3 150-A1 19, submitted dated December 17,2007, by Ulrich
related to current plant operation, aging of components, and site specific impacts of the nuclear plant based on the assumption that ongoing regulatory requirements ensure adequate levels of safety. The NRC must consider whether the process to be performed, the operating procedures, the facility and equipment, the use of the facility, and other technical specifications provide reasonable assurance that the applicant will comply with the regulations and that the health and safety of the public will not be endangered. Sections 50.40,50.92 (1988). Petitioners raise concerns of the adequacy of the environmental impact study and the aging management analysis submitted by Entergy. Petitioners also question the adequacy and ability to maintain a decommissioning fund. Petitioners submit that a license to operate a nuclear power plant expires or terminates upon a specific a date. The NRC, upon application and thorough review, grants a new license that adheres to the rigorous standards and tests set forth for granting new licenses to operate nuclear power plants to ensure that a plant continues safely operate and adequately protects the surrounding people and environment. Petitioners contend that based on the aging of power plant, a nuclear plant that wishes to renew its license should pass the rigorous criteria set forth for operating new plants. Without these test, renewal of Indian Points operating license poses a significant safety problem. Witte. 13
Entergy's license renewal application does not adhere to 10 C.F.R. Part 54. Section 54.30 requires plants to complete an Integrated Plant Assessment as part of renewal application but prohibit NRC from reviewing operational deficiencies during license renewal period. Entergy's LRA fail to consider safety concerns, environmental impacts of the nuclear power plant, continuing problems at the nuclear power plant, and review significant changes not known at the time the initial operating license was issued. Entergy did not state that a full safety review was performed. Petitioners maintain that in light of the scientific evidence concerning the inadequacies of Hemyc, an exemption to Entergy's operating license should not have been granted during the renewal process. The NRC should also not review applications for license transfers during the renewal process either. Significant changes like these to the applicant's operating license render safety analysis meaningless. Entergy does not have an adequate emergency plan in place and thus, its renewal license must be denied. For each plant there must be either a plan that complies with NRC's regulatory standards for responding to radiological emergencies or in the alternative, a plan that offers reasonable assurance that public health and safety will not be in danger.
The NRC fails to consider new and significant information that will have environmental impacts. Various contentions raise issues that are site specific, or should have been considered category 2 environmental impacts, and thus included in Entergy's LRA. In several instances Entergy's LRA failed to address these site specific environmental concerns. Petitioners submit that each contention below meets the admissibility criteria under 10 C.F.R. 3.09(f) and thus, should not be dismissed. For these contentions to reach admissibility threshold standards, the Board, must use its discretion in considering the NRC license renewal rules in the most favorable light of implementing the congressional mandate placed on the Nuclear Regulatory Commission and the Boards role in adjudicating the rule in the broad nexus to include "all issues not.. ." for aging nuclear plants and include all evidence regardless of current regulations sometimes unintentionally have inadequately protect the public and impermissibly restrict public and judicial review of NRC actions. The license renewal proceedings including the application submitted for Indian Point units 2 and 3, and (hrther use of 55 year old systems from Unit 1) must consider the fundament hndamental nexus of unresolved current license basis issues, two 40 year old plants that were at best designed to operate for forty
years, and the nexus of the legacy of operating and design failures over the past three decades in considering each of the contentions we have filed. The NRC must consider whether the process to be performed, the operating procedures, the facility and equipment, the use of the facility, and other technical specifications provide reasonable assurance that the applicant will comply with the regulations and that the health and safety of the public will not be endangered. Sections 50.40, 50.92 (1 988). Additionally the adequacy of the decommissioning fund must be fully evaluated, light of the unremediated and unidentified leaks first discovered by an independent contractor in 2005. Each contention put forth by Petitioners meets the admissibility criteria under 10 C.F.R. 3.09(f) and thus, should not be dismissed. ARGUMENT I. Petitioners have standing to intervene. To be a party in this proceeding, Petitioners must demonstrate standing and submit at least one admissible contention within the scope of the license renewal proceedings. NRC acknowledges that Petitioners WestCAN, RCAA, and PHASE have standing to participate in this matter. (NRC brief pp. 10-13). Entergy acknowledges that Petitioners all have standing to participate in this matter.
(Entergy's Answer pp. 3-1 5). NRC disputes the standing of Sierra Club and Richard Brodsky. (NRC brief at pp. 14-19). In a license renewal proceeding, standing to intervene has been found to exist based on a proximity presumption. Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Plant Station), LBP 23, 64 NRC 257,271 (2006). The licensing Board has applied to proximity presumption to persons who reside or frequent the area within a 50 miles radius of the nuclear power plant in question. Florida Power and Light CO (Turkey Point, Units 3 and 4), LBP-0 1-06, 53 NRC 138,250 (2001). Petitioner Richard Brodsky, as an individual, has standing because he works approximately twenty miles from Indian Point Nuclear Power Plant. (See Declaration of Richard L. Brodsky attached hereto and made a part hereof as Exhibit A.) Accordingly, Mr. Brodsky has standing to intervene. An organization may establish standing to intervene by demonstrating that its own organizational interests could be adversely affected by the proceeding or based on the standing of its own members. See e.g. Consumer Energy Co. (Palisades Nuclear Power Plant), CLI-07-18, 65 NRC 399,409 (2007). When as organization seeks to establish "representational standing", based on standing of its members, an organization must show that as least one of its members may be affected by the proceeding, identify that member by name and address, and show
that the members has authority to act on behalf of the organization. See e.g., Consumer Energy Co., supra. The organization member must also qualify for standing in his or her own right, the organizations interests must be germane to the organizations purpose, and neither the asserted claim or the requested relief require an individual member to participate in the organization's legal action. Id. The Sierra Club-Atlantic Chapter has demonstrated standing to intervene. The Sierra Club has members who live, work, and recreate within 50 miles of Indian Point. Petitioners now attach provides that declarations of members Allegra Dengler, Joanne Steele, John Gebhards, Diana Krautter, George Klein showing that they have individual standing to intervene and have authorized the Sierra Club to represent them in this proceeding. Based on the declarations of Allegra Dengler, Joanne Steele, John Gebhards, Diana Krautter, George Klein, attached hereto as Exhibits B, SIERRA CLUB is North America's oldest, largest and most influential grassroots environmental organization. is a non-profit, member-supported, public interest organization that promotes conservation of the natural environment through public education, lobbying and grassroots advocacy. Founded in 1892, the Sierra Club Atlantic Chapter has more than 45,000 members who are residents New York States. The Atlantic Chapter applies the principles of the national Sierra Club to the environmental issues facing New York State.
The nature of the Sierra Club's interests will be adversely affected by the issuance of a renewed license for Indian Point Units 2 and 3. Thus, the Sierra Club has representational standing to intervene in this proceeding. SIERRA CLUB is very concerned that the proposed Indian Point 2, LLC and Indian Point 3, LLC proposed 20 year superseding licenses could increase both the risk and the harmhl consequences of an offsite radiological release. Furthermore, SIERRA CLUB is concerned that the radiological contamination resulting from radiological releases that would impact the and interfere with the organizations rightful ability to conduct operations in an uninterrupted and undisturbed manner. Id. Certainly, any evacuation would severely disrupt and damage SIERRA CLUB's operations and the residences of its membership. Id. SIERRA CLUB therefore qualifies for intervention pursuant to 10 C.F.R. 5 2.309(d). SIERRA CLUB also qualifies for discretionary intervention. 10 CFR 2.309(e). SIERRA CLUB's participation may reasonably be expected to assist in developing a sound record. It is well versed in the field of nuclear energy and safety. SIERRA CLUB's constituency represents members who have participated in numerous Nuclear Regulatory Commission proceedings and public meetings. The nature of SIERRA CLUB's interests is not only its members' property interests, but the public interest. In particular SIERRA CLUB is a member of the
Indian Point Safe Energy Coalition (IPSEC), a broad coalition of 70 other free standing organizations. SIERRA CLUB can provide local insight that cannot be provided by the Applicant or other procedural parties. SIERRA CLUB'S members are Indian Point 2 and Indian Point 3's neighbors. In addition, as established in this proceeding, this proceeding may have significant affect on PHASE and its members. SIERRA CLUB therefore qualifies for discretionary intervention. 10 C.F.R. 5 2.309(e). SIERRA CLUB is entitled to a full adjudicatory hearing with all the rights of discovery and cross-examination provided by 10 CFR Subpart G, because SIERRA CLUB has standing, and in the Petition herein to Intervene and Formal Request for Hearing, SIERRA CLUB raises substantial issues of fact and law that meet the requirements of 10 CFR 52.3 10 (d).
- 11. Petitioners contentions are admissible.
The NRC cannot deny a petition to intervene and request for a hearing if Petitioners demonstrate at least one admissible contention. 10 C.F.R. 2.309(a). Section 2.309(f) requires a Petitioner to set forth with particularity the contentions sough to be raised and satisfy the six criteria under section 2.309(f). "[A) petitioner must provide some sort of minimal basis indicating the potential validity of the contention." Final Rule: "Rules of Practice for Domestic Licensing
Proceedings - Procedural Changes in the Hearing Process," 54 Fed. Reg. 33, 168, 33,170 (Aug. 11, 1989). This "brief explanation" of the logical underpinnings of a contention does not require a petitioner "to provide an exhaustive list of possible bases, but simply to provide sufficient alleged factual or legal bases to support the contention." Louisiana Energy Services, LP. (National Enrichment Facility), CLI-04-35,60 NRC 619,623 (2004). The brief explanation helps define the scope of a contention - "[the reach of a contention necessarily hinges upon its terms coupled with its stated bases." Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-899,28 NRC 93,97 (1988), aj'd sub nomn Massachusetts v. NRC, 924 F.2d 3 11 (D.C. Cir. 1991). However, it is the contention, not "bases," whose admissibility must be determined. See 10 C.F.R. 5 2.309(a). An admissible contention must (I) provide a specific statement of the legal or factual issue sought to be raised, or controverted, provided further, that the issue of law or fact to be raised in a request for hearing under 10 CFR 52.103(b) must be directed at demonstrating that one or more of the acceptance criteria in the combined license have not been, or will not be met, and that the specific operational consequences of nonconformance would be contrary to providing reasonable assurance of adequate protection of the public health and safety, (2) provide a brief explanation of the basis for the contention, (3) demonstrate that the issue raised is within the scope of the proceeding, (4) demonstrate that the issue
raised is material to the findings the NRC must make to support the action that is involved in the proceeding; This information must include references to specific portions of the application (including the applicant's environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioner's belief, (5) provide a concise statement of the alleged facts or expert opinions, including references to specific sources and documents that support petitioners contentions, and (6) provide sufficient information to show that a genuine disputes exists with regard to a material issue of law or fact. The standards for issuance of a renewed license are under section 10 C.F.R. 54.29(a). A renewed license may be issued by the commission as authorized by section 54.3 1 if the commission finds that if matters identified in (a)(l) and (a)(2) of this section, if there is reasonable assurance that the activities authorized by the renewed license will continue to be conducted in accordance with the CLB, and that any changes made to the plant's CLB are made in accordance with the Act and Commission's regulations. These matters are: (1) managing the effects of aging during the period of extended operation on the functionality of structures and components that
have been identified to require review under section 54.21 (a)(l); and (2) time-limited aging analysis that have been identified to require review under section 54.2 1(c). See also, Nat'l Whistleblower Center v. NRC et al., 1999 WL 34833798- (D.C.Cir. June 14, 1999). Merits of the contention are not part of admissibility. A Licensing Board should not address the merits of a contention when determining its admissibility. Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP 106, 16 NRC 1649, 1654 (1982), citing Allens Creek, supra, 11 NRC at 542; Kansas Gas & Electric Co. (WolfCreek Generating Station, Unit I ) , LBP-84-1, 19 NRC 29,34 (1984); Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 and 2), LBP-85-11,2 1 NRC 609,6 17 (1985), rev'd and remanded on other grounds, CLI-86-8,23 NRC 241 (1986); Carolina Power and Light Co. and North Carolina Eastern Municipal Power agency (Shearon Harris Nuclear Power Plant), ALAB-837,23 NRC 525, 541 (1986); Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit I ) , ALAB-868,25 NRC 912, 933 (1987); Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), LBP-88-26,28 NRC 440,446 (1988), reconsidered on other grounds, LBP-89-6,29 NRC 127 (1989), rev'd on other grounds, ALAB-919,30 NRC 29
(1 989), vacated in part on other grounds and remanded, CLI-90-4,3 1 NRC 333 (1990), request for clarification, ALAB-938, 32 NRC 154 (1990), clarified, CLI-90-7, 32 NRC 129 (1990); Sierra Club v. NRC, 862 F.2d 222,228 (9th Cir. 1988). See Consumers Power Co. (Midland Plant, Units 1 and 2), LBP- 84-20, 19 NRC 1285, 1292 (1984), citing Allens Creek, supra, 11 NRC 542; Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units I and 2), ALAB- 182,7 AEC 2 10 , 2 16 (1974), rev'd on other grounds, CLI-74-12,7 AEC 203 (1974); Duquesne Light Co. (Beaver Valley Power Station, Unit I), ALAB- 109,6 AEC 243,244-45 (1973). An intervenor need only state the reasons for its concern. Seabrook, supra, citing Allens Creek, supra. Contention 1:Co-mingling three docltets, and three DPR licenses under a single application is in violation of C.F.R. Rules, specifically 10 CFR 54.17 (d), as well as, Federal Rules for Civil Procedure rule ll(b). Entergy asserts that Petitioners first contention lacks specificity, factual or legal foundation, is beyond the scope of the renewal process, and immaterial. (Entergy brief pp. 38-41). The NRC staff assert that there are no applicable legal requirements that require a single application. (NRC brief at p. 34). Entergy, in support of its argument, cites to instances where commingling of licenses has occurred. (Id.)
The co-mingling three dockets and three DPR licenses under a single application violates of C.F.R. Rules, specifically 10 CFR 54.17 (d), as well as, Federal Rules for Civil Procedure rule 1 1(b), as explained in the Petition. The recent Office of the Inspector General report found fault with the process and directly found the Staff reviews to be inadequate reviews of many of the previous applications submitted. Careful examination of this application shows that it can be distinguished from the non-precedent and unchallenged commingling of license renewal applications previously processed by the Staff, and approved by the Commission. Entergy's renewal applications as well as the proceedings are uniquely complex. Petitioners reiterate the uniqueness and challenge Entergy to find a similar example of: (a) the complexity of crediting a retired unit in Safestor, for Unit 2 but in a different manner for Unit 3; (b) the Architect Engineers for the two units were different; (c) the codes and standards were used to construct the two facilities were hndamentally different, and are prima facie challenges to renewal in these proceedings; (d) the owners of the facilities changed twice and therefore responses to the prohsely evolved license basis requirements are unique; (e) the mandate of the commission to minimize risk to the public assets is uniquely critical given the location of Indian Point, and proximity of the world financial center within 30 miles of the plant, and the millions of people that reside within the 50
mile proximity of the plant. Each of those millions of residents could have representational standing under these proceedings.7 Because of independent license amendments to the extension of portions of unit 1 systems, and proper examination of the decommissioning of the remainder of Unit 1 of Indian Point, and the distinct License Renewal Application for Indian Point Unit 3, separate license renewal applications should have been submitted. Therefore, a separate license renewal application should required be submitted for each unit at Indian Point. CONTENTION # 2: The NRC routinely violates 8 Sl.lOl(b) in allowing changes to the operating license be done concurrently with the renewal proceedings. Petitioners contend that during the renewal process, the NRC in compliance with section 5 1.101(b), should not entertain: (1) requests for transfer of a license, (3) license amendments or modifications, and (3) rule making change of thermal shock. These changes to Entergy's operating license permit Entergy to renew an operating license that does not meet current standards. In determining whether a petitioner has met the requirements for establishing standing, the Commission has directed us to "construe the petition in favor of the petitioner." Georgia Institute of Technology (Georgia Tech Research Reactor, Atlanta, Georgia), CLI-95-12,42 NRC 11 1, 115 (1995). To this end, in proceedings involving nuclear power reactors, the Commission has recognized a proximity presumption, whereby a petitioner is presumed to have standing to intervene without the need to specifically plead injury, causation, and redressability if the petitioner lives within 50 miles of the nuclear power reactor. 10 C.F.R. # 2.309(d)(2)(i)-(ii).
The NRC Staff oppose admissibility of this contention on the basis that operating license modifications are outside the scope of license renewal. However, if an operating license that fails to meet current standards, it should not be renewed. Furthermore, a modified license, whether through a legitimate modification or exemption, changes the license to be renewed. Since the operating license to be renewed is alter, the LRA should be supplemented. Any exemption or modification will altered aging management analysis, and thus, the amended, modified or exempted license condition should be examined during the license renewal proceeding. Petitioners' third example is particular and specific. Both the NRC Staff and Petitioner experts found significant technical errors in the TLAA most recently submitted by Entergy for Vermont Yankee, providing at least the inference of a nexus between renewal at Indian point and the proposed rulemaking that softens the regulatory requirement.8 Thermal shock to reactor internals directly related to TLAA~.The Indian Point LRA provided by the Entergy for thermal shock analysis on either Unit 2 or Unit 3 does not provide sufficient information other than a vague reference that appropriate fatigue analysis must be donesunderNUREG 1801 Revision 1 of the The rulemaking surrounding modification to the thermal shock rule regarding reactor internals as published in the federal register, "Notice of Proposed Rulemaking published by the NRC on October 3,2007, regarding contemplated revisions to 10 C.F.R. $ 50.61.
GALL report. Therefore, the contention should be admitted because it falls within scope. Entergy maintains that extensive use of .the argument that "programmatic" environmental impact work is in progress. Under NRC regulations "while work on a required program environmental impact statement is in progress the Commission will not take .. . significant action.. . that may affect the quality of the human environment." In order for the action not to be halted, three conditions must be met. In the alternative, the NRC should stop all program related environmental impact statements currently in progress or contemplated during the relicensing proceedings that impact the quality of human environment-or suspend license proceedings until all program level environmental analysis is complete. Without this, the rulemaking petition is clearly inadequate. The new thermal shock rule relieves the Applicant from stringent criteria with regard to inspection of reactor vessel internals such as baffle bolts required for safe operation of the plant. The new rule relaxes criteria for inspection of components, such as these baffle bolts, which are normally replaced after routine inspections and are replaced due to a.number of environmental factors including aging. Thereby reducing unacceptably reducing the margin of safety. This 9 The NRC is currently holding back the SER for Vermont Yankee license renewal on this very issue. 28
Contention including the material dispute of sufficient margin of safety for reactor vessel internal, such as baffle bolts, is an in scope license renewal components. Therefore under 10 CFR 5 1.101(b) the regulator cannot change the rule in while license renewal proceedings are in progress. Thus, Contention # 2 is material, particular, and within scope to be admitted. CONTENTION 3: The NRC violated its own regulations §51.101(b) by accepting a single License Renewal Application made by the following parties: Entergy Nuclear Indian Point 2, LLC ("IP2 LLC") Entergy Nuclear Indian Point 3, LLC (" IP3 LLC"), and Entergy Nuclear Operations, LLC. (Entergy Nuclear Operations), some of which do not have a direct relationship with the license. Both Entergy and the NRC Staff argue that .this contention is not within the scope of a license renewal proceeding. (NRC Staff brief at pp. 37-38); (Entergy brief at pp. 47-5 1). Furthemore, Entergy responds that this contention is beyond the scope of this proceeding, lacks factual or expert support, and fails under 10 C.F.R. 2.309(f)(l (v) and (vi), and fails to identify any material deficiencies in the licensing renewal application. (Entergy brief at p. 47-5 1). Petitioners maintain that the NRC license renewal procedure is inadequate because it permits Entergy to apply for a transfer its operating license while a review of renewing the operating license occurs in violation of 10 CFR 5 1.01 (b).
Entergy's request for the indirect transfer of the Facility Operating Licenses for Indian Point 2 and Indian Point 3 be denied because the transfer violates 10 C.F.R. Part 50; violates 10 C.F.R. 54.35 and 54.37; the intended purpose of the corporate restructure is not met and is unclear; the restructuring potentially violates 10 C.F.R. 50.33(0(2); the application fails to submit sufficient information concerning the financial qualifications of the proposed shell corporation that is not an electrical utility and the financial adequacy of decommissioning funding; and the transfer violates anti-trust laws. Despite Entergy's claim that financial issues "have no place in this proceeding" the financial viability is relevant to whether Entergy license to operate should be renewed. If Entergy's license is renewed and Entergy fails to make safety related repairs or pay decommissioning expenditures or pay retroactive Price Anderson Act premiums, Entergy cannot give reasonable assurances of health and safety of the public. Any license transfer during a LRA proceeding brings into scope Entergy's financial qualification review to continue operating the license during the license renewal period. The proposed corporate restructure will affect the financial responsibility and liabilities of Indian Point 1,2, and 3. The proposed restructuring draws question as to whether Entergy can provide reasonable assurances of health and safety of the public. Serious doubts exist as to whether the NRC can hold a parent company responsible for the liabilities incurred by a subsidiary. Therefore,
the owner and its financial status are relevant to the license renewal process to protect the public's health and safety. The timing of this transfer application creates the opportunity for the NRC staff to do less than an adequate review, as was found by the General Accounting Office in previous reviews performed. (Exhibit C GAO Report to Congress 02-48 dated December 3,2001). The General Accounting Office has found that the NRC has done an inadequate analysis regarding the fiscal responsibility during license transfers in the past, affecting commitments or lack thereof, including but not limited to such items as the decommissioning funds, specifically relevant to Unit 2 and Unit 3 license renewal. The General Accounting Office found that "NRC did not obtain the same degree of financial assurance in the case of one merger that created a new generating company that is now responsible for owning, operating, and decommissioning the largest fleet of nuclear plants in the United States. The new owner did not provide, and NRC did not request, guaranteed additional sources of revenue above the market sale of its electricity, as other new owners had. Moreover, the NRC did not document its review of the financial information-including revenue projections, which were inaccurate-that the new owner submitted to justify its qualifications to safely own and operate 16 plants." (GAO Report to Congress 02-48 dated December 3,2001).
Based on the foregoing and the GAO report, the NRC license renewal procedure is defective because it permits a licensee to transfer its operating license during the pending license renewal process Thus, Contention 3 is material, particular, raises an issue of law, and therefore is admissible. CONTENTION 4: The exemption granted by the NRC on October 4,2007 reducing Fire Protection standards are Indian Point 3 are a violation of @51,10l(b),and does not adequately protect public health and safety. Entergy and the NRC Staff contend that the fire standard exemption granted to licensee is outside renewal scope. (Entergy brief pp. 5 1-54); (NRC Staff brief at pp 38-39). As noted in the NRC Staff brief, the exemption has become part of the CLB. Furthermore, Entergy has failed to submit expert rebuttal of our expert witness declaration, and therefore their answers are without merit. Petitioners contend that the NRC exemption granted by the NRC reducing the fire protection standards for Indian Point Unit 3 violates 10 C.F.R. 5 1.101(b) and does not protect the public health and safety. Under 10 C.F.R. 54.4 "[all1 systems, structures, and components relied on in safety analyses or plant evaluations to perform a function that demonstrates compliance with the Commission's regulations for fire protection (10 C.F.R. 50.48), environmental qualification (10 C.F.R. 50.49), pressurized thermal shock (10 C.F.R. 50.61),
anticipated transients without scram (10 C.F.R. 50.62), and station blackout (10 C.F.R. 50.631." This clearly includes exemptions to federal law that are specifically mentioned under code for license renewal. Subsequent to Entergy's LRA being accepted by the Staff, the application proposed an exemption that substantially modified the in- progress exemption regarding fire protection of power cables and control cables in the electrical cable tunnels. These new requests were done without proper notice in the Federal Register, and constituted a change in Attachment D to Appendix E of Entergy's LRA. The exemption modified the Core Damage Frequency calculations as demonstrated in Petitioners contention 5. The exemption permits Entergy to operate although the Units have a 24-minute rated fire barrier for ETN-4, and 30-minute rated fire barrier for PAB-2, in lieu of a 1-hour rated barrier. The result of these new changes that were expeditiously approved under an apparently rushed Safety Evaluation are based upon unsubstantiated analysis, and fly in the face of 2005 EPact, as well as existing rule increasing risk to the health and safety to the public without the most modest analysis as required under 10 C.F.R.50.12. As demonstrated in contention 5, the issue is particular, and relevant to renewal given the Entergy relies on manual actions suppress a fire in a zone that is
difficult and dangerous to enter during a fire, and is a prerequisite zone to remain operational for associated systems safe shutdown analysis (ASSD). In a series of letters dated July 24,2006, and supplemental letters dated April 30, May 23, and August 16,2007, responding to the NRC staffs request for additional information, Entergy submitted a request for revision of existing exemptions for the Upper and Lower Electrical Tunnels (Fire Area ETN-4, Fire Zones 7A and 60A, (respectively), and the Upper Penetration Area (Fire Area ETN-4, Fire Zone 73A), to the extent that 24-minute rated fire barriers are used to protect redundant safe-shutdown trains located in the above fire areas in lieu of the previously approved 1-hour rated fire barriers per the January 7, 1987 Safety evaluation For the 41" Elevation CCW Pump Area (Fire Area PAB-2, Fire Zone
- 1) EN0 is requesting a revision of the existing exemptions to the extent .that a 30-minute rated fire barrier is provided to protect redundant safe shutdown trains located in the same fire area.
Pursuant to 10 C.F.R. 50.12, the Commission may, upon application by any interested person or upon its own initiative, grant exemptions from the requirements of 10 C.F.R. Part 50 when (I) the exemptions are authorized by law, will not present an undue risk to public health or safety, and are consistent with the common defense and security; and (2) when special circumstances are present. (emphasis added). One of these special circumstances, described in 10 C.F.R.
50.12(a)(2)(ii), is that the application of the regulation is not necessary to achieve the underlying purpose of the rule. In this case the NRC has failed to enforce its own regulations. The underlying purpose of Subsection III.G.2 of 10 C.F.R. 50, Appendix R, is to ensure that one of the redundant trains necessary to achieve and maintain hot shutdown conditions remains free of fire damage in the event of a fire. The provisions of III.G.2.c through the use of a 1-hour fire barrier with fire detectors and an automatic fire suppression system is one acceptable way to comply with this fire protection requirement. The NRC must consider whether the process to be performed, the operating procedures, the facility and equipment, the use of the facility, and other technical specifications provide reasonable assurance that the applicant will comply with the regulations and that the health and safety of the public will not be endangered. Sections 50.40, 50.92 (1988). Contentions identifying and referring to particular documents or studies are sufficiently specific for the purpose of admission. Sierra Club v. U S . Nuclear Regulatory Corn 'n, 862 F.2d 222 (9th Cir. 1988)(Sierra Club submitted with its contention a copy of the BNL report and made clear title in the title and text of its contention that it wished to litigate issues contained in that report was held sufficient although the contention itself did not contain any specific accident scenario, the BNL report, which was attached to .the Sierra's Club contention, more
than adequately identified such scenarios). The relevant inquiry is whether the contention adequately notifies the other parties of the issues to be litigated; whether it improperly invokes the hearing process by raising non-justiciable issues, such as the propriety of statutory requirements or agency regulation; and whether it raises issues that are appropriate for litigation in the particular proceeding. Sierra Club, supra. Therefore, the exemption granted by the NRC, which will be carried over into the proposed license period fails to protect the health and safety of the public and does not provide an adequate aging management plan for this in scope system. Therefore Contention 4 additionally raises significant issues of fact and law regarding safety concerns and aging management that should must be admitted and heard. CONTENTION 5: The Fire Protection Program described in the Current License Basis Documents including the unlawfully approved exemptions to Appendix R, the Safety Evaluation and the amended license for Indian Point 3 fail to adequately protect the health and safety of the public, and fail to meet the requirements of 10 CFR 50 and Appendix R. Petitioners assert that the fire protection exemption granted to Entergy fails to adequately protect the health and safety of the public and fails to meet to the requirements of 10 C.F.R. 50 and Appendix R.
The NRC Staff oppose this contention because it is outside the scope of the license renewal proceedings. (NRC brief at p.40). Entergy asserts that this contention does not raise a factual or legal matter and is not within the scope of the license renewal process. However, As noted in the NRC Staff brief, the exemption has become part of the CLB. Moreover, neither Entergy nor the NRC Staff have submitted expert rebuttal of Petitioners expert witness declarations and therefore ,their arguments are baseless. Petitioners maintain that this contention meets the six part test for admissibility. The fire standard exemption granted to Entergy does protect the health and safety of .thepublic. Petitioners' Contention 5 raises a factual and legal issue. NRC's standards for licenses state that the use of the facility and the facility itself must not endanger the health and safety of the public. 10 C.F.R. 50.40(a). Issuance of a license must not "be inimical to the common defense and security or to the health and safety of the public." Section 50.40(c). The fire standard exemption granted is inimical to the common defense and security or to the health and safety of the public. Petitioners question whether the Indian Point Units can safely operate. The Fire Protection exemption is without question within scope as required under 5 2.309(f)(iii). The contention raises a particular and material issue the application containing contradictory, incomplete, and evolving core damage frequency analysis regarding the probability of a fire (even disregarding the nature
of the incendiary cause and (excluding a saboteur for example) the contention meets the threshold of admissibility. See 8 2.309(f)(iv), in to the license basis that was available, and the pertinent sections of Appendix E to the LRA" provides within Attachment D, analysis methodology and results suggesting that the specific area in question i.e. the electric cable tunnels described in specificity below, contain a CDF (core damage frequency) sufficiently low" so as to not be listed as major core damage frequency initiators. However, the list that provides the Probalistic Safety Analysis model Core Damage Frequency (these are results by each of the Entergy's opinion as to what are the major initiators) is absent of these tunnels but includes less likely initiators. The list which includes loss of non-essential service water, transients, station blackout, and others all have probabilities that are greater than the Entergy own calculation for CDF in the tunnels. This discrepancy notably precedes the Entergy then revising the physical characteristics of the tunnel components itself with a reduction from one hour to 24 minutes of burn time prior to cable failure and loss of emergency core cooling systems power and control running in close proximity in those fire areas. 'O This examination does not include substantial changes to the LICENSING RENEWAL APPLICATEGORYION submitted on about December 18, that may alter this contention-however, WestCANs petition was submitted prior to December 18, and no notification was made in the Federal Register regarding a substantial revision to the Application's LRA. See motion for stay of renewal proceedings until publication of the December 18" amendment, and a public comment period.
The contention disputes genuine material facts as clarified above. The compilation of law violated as provided on pages 40 through 44 of .the petition stand. Entergy's erroneously stated that Petitioner failed to establish a regulatory linkage between 10 C.F.R.50.48 and 10 C.F.R.73. One has only to look at the words plainly in 10 C.F.R.50.12: "alternatives for the exemption.. .must be grounded in meaningful and not superficial examination.. .including measures impacting the "common defense and security.. ." This was not done for the existing, analysis, and failure to provide adequate analysis , invalidates statements in the LRA regarding of fire protection. It is the cornerstone of the core damage frequency analysis provided in Entergy's above cited reports. Broken current programs that are within scope and that are to credited during the new license period, including this Fire Protection exemptions, raise significant issue of fact and law. Thus Contention 5 must be admitted and heard by the ASLB. CONTENTION 6: Fire Protection Design Basis Threat. The Applicant's License Renewal Application fails to meet the requirements of 10 CFR54.4 "Scope," and fails to implement the requirements of the Energy Policy Act of 2005. Entergy and the NRC Staff submit that contention 6 is not admissible because it is not within scope. (NRC Staff brief at pp. 40-42); (Entergy brief at pp. 55-56). Petitioners maintains that contention 6 meets the six part test for
admissibility. Current law supersedes scope limitations by the Commission regarding exclusion of design basis threat as part of license renewal. Design Basis Threat (hereinafter "DBT"), while excluded by the Commission as part of License Renewal process, current precedence in the Ninth Circuit provides that fire intentionally set must be considered a required element of relicensing. Entergy's LRA fails to address this issue. The Commission regulation codified on March 12, 200712 is applicable. Moreover, Entergy has not submitted expert rebuttal of our expert witness declarations and therefore their answer is without basis Therefore, Contention 6 raises material issues of fact and law regarding aging management of Indian Point 2 and 3, is within scope, and should be admitted. CONTENTION #7: Fire initiated by a light airplane strike risks penetrating vulnerable structures. The NRC Staff contend that this contention fails to satisfy 10 C.F.R. 2.309(f)(l)(v)-(vi). (NRC Staff brief at p. 43). Petitioners need only state the reasons for its concern. Seabrook, supra, citing Allens Creek, supra. Petitioners refer to various studies and reports in their exhibits, and this have provided sufficient facts in support of contention 7.
The response provided by Entergy misses the issue entirely. Core Damage Frequency analysis provided in attachment D, to Appendix E of the LRA excludes fire incendiary sources beyond a limited scope. Under Contention 5, a CDF of 7.14E-07 per reactor year. If one assumes fire ignition and fuel is available via aircraft crashes, the entire set of models for PRA regarding fire needs revision. The plant specific IPEE excluded any "transportation accident" on the basis that would not lead to a core melt frequency of greater than 1.OE-06 per reactor year. This value is more frequent then about half of those listed in table 3.1-2 in Attachment D to Appendix E. None of the models" examined included accidental aircraft crashes as an ignition entry point into the model. Examination of industry surveys of aircraft ci-ashes in the region surrounding the plant provide extensive evidence that fires from aircraft accident are far from remote (Exhibit D). Second, the recent rulemaking petition drafted by the NRC, $52.500 "Aircraft Impact Assessment", raises questions regarding the mandate of the agency to minimize risk to the public assets including threats of aircraft triggered fires. Petitioners question why the NRC would codify the most modest protection for 8 plants that may never be constructed, and yet set aside protection of the l2 72 Fed. Reg. 1270.5. l3 FIVE analysis, DBT methodology,
public health and safety for the existing 104 plants, and in particular Indian Point Plant being considered for an additional 20 year extensionI4. Finally, the following precedence provides that CDF for fire related events has a much broader uncertainty then claimed via credit under such methods as "Monte Carlo" or others. All one has to do is look at the actual record of fires at this plant, and the frequency input can be shown as invalid. A brief summary is provided in Attachment 1. Domestic fire frequency is about 1 per 100 reactors per year. Indian Point Unit 3 only recently had a fire in a transformer. A good test to the uncertainty is to correlate the actual fire frequency, multiplied to core damage threat, to those predicted. They do not correlate. Petitioners are not challenging the rule-Petitioners are challenging the enforcement of 10C.F.R.54 to cover not to exclude, just wind, tornado, and seismic on faulted premise. Excluding these phenomena based upon incomplete PRA is questionable analysis, and appears yield a clear error in table in Appendix E. Finally, Petitioners question how Entergy can conclude that its fire protection program as required by 10 C.F.R.54.4 is sufficient, when the existing CLB does not include compliance to the DESIGN BASIS THREAT rule-and compliance to the rule is in a state of flux. Further, Entergy has not submitted 14 Petition filed December 171hfor example.
expert rebuttal of our expert witness declarations and therefore their answer is without basis Thus, Contention #7 is material, particular, and within scope and thuis admissible. CONTENTION 8: The NRC improperly granted Entergy's modified exemption request reducing fire protection standards from 1 hour to 24 minutes while deferring necessary design modifications. In contention 8, Petitioners contend that the NRC improperly granted Entergy's modified exemption allowing a reduction of the fire standards, while deferring necessary design modifications. The rationale is identical as in Contention 6. NRC's standards for licenses state that the use of the facility and the facility itself must not endanger the health and safety of the public. 10 C.F.R. 50.40(a). Issuance of a license must not "be inimical to the common defense and security or to the health and safety of the public." Section 50.40(c). The fire standard exemption granted is inimical to the common defense and security or to the health and safety of the public. Petitioners question whether the Indian Point Units can safely operate Here, careful examination indicates that the Entergy is failing to meet its current licensing basis pro tem--and must rely on hourly fire watches.
Numerous other discrepancies add to the uncertainty. For example, the 480 volt EDG output is unique requires different cable sizing, different heat dissipation, and additional analysis to show circuit integrity through the event, Under 10 C.F.R. 10.12(c) an alternative analysis of simply replacing the hemyc wrap was not presented. There is no test data or analysis examined or the configuration qualified. Petitioners question why the cost benefit analysis performed could not support upgrading the firewrap to a 1 hour rating. "Indian point Unit 3 Case study" provides an abundant history of distinct fire related events at Indian Point 3. Included are 20% of the fire dampers were found to fail due to improper installation, cable tunnel separation criteria failed to meet separation requirements, , design regarding lighting for fire related remote shutdown. There are 11 more all significant. Further, Entergy has not submitted expert rebuttal of our expert witness declarations and therefore .their answer is without basis, Thus this contention is material, particular, and within scope to be admitted and heard. CONTENTION 9: In violation of promises made to Congress the NRC did not correct deficiencies in fire protection, and instead have reduced fire protection by relying on manual actions to save essential equipment. Entergy and the NRC Staff argue that contention 9 is not within scope of a renewal proceeding. Petitioners maintain that the exemption granted by NRC
granting the use of HemyC thereby reducing the fire protection standard to 24 minutes at Indian Point 3 from the standard of one hour, is carried into the new license period. (NRC Staff brief at p. 45); (Entergy brief at pp. 57-58). In fact the exemption, though omitted from the LRA, will be continued during the proposed new license period and therefore is within scope, as it directly impacts the aging management of the plant. By granting this exemption the NRC did not correct deficiencies in fire protection and instead reduced fire standards by relying on manual action to save essential equipment. (Pet. pp. 95-98) (Entergy brief pp. 57-58), which will impact material and particular issues directly related to the aging management of the plant. Petitioners reassert that this contention raises specific and defined actions regarding retrofitting the plant to bring it into compliance, in order for the NRC to allow this exemption to be carried into the proposed license period. Entergy failed to include such retrofits, and failed to amend it's LRA to include this exemption-as required under 10 CFR Part 54. Entergy has not submitted expert rebuttal of our expert witness declarations and therefore Entergy's answer is without basis. Based on the foregoing, Contention 9 is material, particular, and within scope. Therefore, contention 9 should be admitted and be heard.
CONTENTION No. 10: (Unit 2) Cable separation for Unit 2 is non-compliant, fails to meet separation criteria and fails to meet Appendix R criteria. This has been a known issue since 1976; and again in 1984, yet remains non-compliant today. Petitioners contend that the cable separation for Unit 2 is non-compliant, fails to meet the criteria for separation and for Appendix R. (Pet. at pp. 98-99). Entergy and the NRC Staff assert that Contention 10 is not admissible. (Entergy brief at pp. 58-61); (NRC Staff brief at pp. 46-47). Petitioners assert that the electrical separation of Unit 2 at Indian Point was constructed under unapproved criteria. (Pet. at pp. 98-99). As a result, a single electric tunnel houses both safety related trains within approximately 12 inches of each other, which violates general design criteria and does not comply with Appendix R criteria. (Id.) Entergy's LRA fails to present adequate and lawful design measures to provide a reasonable assurance to protect the health and safety of the public; therefore, the aging program in Entergy's LRA is meaningless. (Id.) As discussed earlier, the merits of the contention are not part of admissibility. See e.g., Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), supra. Petitioners need only state the reasons for its concern. Seabrook, supra, citing Allens Creek, supra. Consequently, Petitioners have met the criteria under 10 C.F.R. 2. 309(f). Entergy further states that Indian Point Units 2 and 3 construction permits were issued on October 14, 1966, and August 13, 1969, respectively and thus, the
General design criteria does not apply to those plants. (Entergy's brief at p. 59). This is a substantial error. The NRR Office Instruction No. LIC 100, Licensing Basis for Operating Reactors has no legal basis. There are numerous places in the license basis where the Entergy does either directly or by inference state that it intends to comply with the GDC in question.
"The Indian Point 2 (P2) Control Room Ventilation System (CRVS) meets the applicable General Design Criteria (GDC). Indian Point 2 was initially licensed based on the proposed GDCs issued for comment by the Atomic Energy Commission on July 11, 1967. Since that time, the NRC issued a Confirmatory Order on February 1 1, 1980, which included a requirement to conduct a study regarding compliance with the regulations of 10 CFR 50. The study performed in response to this Order included a review of the GDCs contained in Appendix A of 10 CFR 50. The results of this study were reported in Reference 1 and NRC acceptance of this response was provided in Reference 2. The applicability of the GDCs to P2 is also described in the Updated Final Safety Analysis Report (Reference 3). (See Exhibit G. p. 10).
Under .the admissibility criteria of Section 2.309(f)(l), this contention is admissible. Petitioners have provided a specific statement of the legal or factual issue sought to be raised --- that the cable separation for unit 2 is non-compliant. Petitioners have provided a brief explanation of the basis for the contention - the
cable separation violates GDC. Petitioners have raised an issue within the scope of the proceeding because it involves the GDC7sand aging management. Petitioners have demonstrated that the issue is material and stated that it was not referenced in the LRA; thus, Petitioners could not cite to specific portions of the application. Petitioners have provide sufficient information to show that a genuine disputes exists with rega.rd to a material issue of law or fact. (Pet. at p. 98). Moreover, Entergy and the NRC Staff have not submitted expert rebuttal of Petitioners expert witness declarations, and therefore, the answers are without basis As a result, Contention 10 should be admitted and heard. CONTENTION No. 11A (Unit 2 and Unit 3): The Fire protection program as described on page B-47 of the Appendix B of the Applicant's LRA does not include fire wrap or cable insulation as part of its aging management program. Contention 1 1A asserts that the fire protection program described on page B-47 of Appendix B of the LRA does not include fire wrap or cable insulation in its aging management program. (Pet. at. pp. 99- 101). Without maintaining minimum criteria for age management of fire wraps, beyond visual inspections, the actual scope of fire barrierlinsulation supplied in the application is insufficient. The NRC Staff concedes that the portion of this contention relating to the fire protection aging management program is admissible. (NRC Staff brief at p. 47).
The specific elements noted in tables provided by the Entergy are vague, incomplete, and without substance. There exists ambiguity between insulation with the word "none" inserted for aging management. In other one word entries on the table 3.5.2-4, there is simply a reference to fire protection, but no aging management program described. Therefore, the fire protection aging management program submitted by Entergy is insufficient and thus Petitioners contention 11A must be admitted. CONTENTION 11B: Environmental Impact of an increase in risk of fire damage due to degraded cable insulation is not considered thus the Applicants' LRA is incomplete and inaccurate, and the Safety Evaluation supporting the SAMA analysis is incorrect. Petitioners argue ,that Entergy failed to assess the increased risk of fire damage due to degraded cable insulation and thus, Entergy's LRA and the safety evaluation supporting the SAMA are incomplete and inaccurate. SAMA issues are material issues of fact that should be considered during this license renewal proceeding. Furthermore, neither Entergy nor the NRC Staff have submitted expert rebuttal of Petitioners expert witness declarations, as such, their answers should not be considered. Since contention 11A is material, particular, and within scope, the contention should be admitted and subject to a hearing.
CONTENTION 12: Entergy either does not have, or has unlawfully failed to provide the Current License Basis' (CLB) for Indian Point 2 and 3, accordingly the NRC must deny license renewal. Entergy argues that contention 12 is not within scope of the renewal process. THE NRC Staff argue that Petitioners failed to identify an error or omission in the application. (NRC Staff brief at pp. 49-50). Petitioners maintain that the current license basis is within scope, and must be available for a petitioner during the period allowed by rule 2.336 for intervention. Petitioners have a legal right to the pertinent parts of the licensing basis. 10 C.F.R.2.309 Moreover, under 10 C.F.R. §tj 54.19 and 54.2 1(c), Entergy failed to provide a comprehensive list of plant-specific exemptions, as noted by the NRC Staff. (NRC Staff brief at p. 50). Therefore, Entergy's LRA currently is not in compliance with NRC regulations. Under section 2.309(f)(l)(iv) of the Code of Federal Regulations, the contention is material to the findings the NRC must make to support the action that is involved in the proceeding. An issue is only "material" if "the resolution of the dispute would make a difference in the outcome of the licensing proceeding." 54 Fed. Reg. at 33,172. This means that there must be some link between the claimed error or omission regarding the proposed licensing action and the NRC's role in protecting public health and safety or .the environment. Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), LBP-04-15, 60 NRC 8 1,89 (2004), aff'd CLI-04-36,60 NRC 63 1 (2004).
Finally, the CLB is not a "term of art" as described by the Entergy. The CLB is precisely defined in 554.3. Even if Petitioners acknowledge the amorphous nature of the CLB and the dynamic state-Entergy is required under the rules to have the pertinent elements and they don't. This is another example that is relevant is the stunning oversight by Entergy -- their repeated statements in their reply [to contentions 10, 11B and others] that Entergy(s) for the plants are not bound to the GDC's. By them even making that statement, Entergy is attempting to change the CLB. Entergy argues that the ASLB should "not be expected to sift unaided through large swaths" of exhibits. Petitioners argue that Petitioners should not be expected to sift unaided through 40 years of exemptions, deviations, exceptions to piece together the current CLB. Applicant's have an obligation to provide both Petitioners/Stakeholders and the ASLB a CLB that is not a vague idea, but a concrete written document A complete and non-vague CLB is the very basis by which Petitioners and the ASLB can evaluate whether the aging management of components, systems, and structures are adequately addressed in the LRA. Entergy did not provide a complete and accurate CLB to adequately assess the aging management program. Entergy does not challenge the in-scope status of this contention. Thus, 10 pursuant to C.F.R. 2.309(f)(l)(vi), contention 12 must be admitted.
CONTENTION 13: The LRA is incomplete and should be dismissed, because it fails to present a Time Limiting Aging Analysis and an Adequate Aging Management Plan, and instead makes vague commitments to manage the aging of the plant at uncertain dates in the future, thereby making the LRA a meaningless and voidable "agreement to agree." The contention is admissible under the six part test. The Applicants are required to provide a complete application as required under the standards promulgated within 654.29, Entergy has failed to do so because the commitments are made in the LRA that contain language that are void under contract law. The very essence and scope of aging management programs is based on the commitments made in the LRA, the voidable nature of such commitments is clearly with in scope of the relicensing proceedings. Petitioners are particular, or specific as to where the application is incomplete. Petitioners need not argue the merits, just show the absence of information is relevant to a few of our contentions. A properly pled contention must contain "sufficient information to show that a genuine dispute exists with the applicantllicensee on a material issue of law or fact." 10 C.F.R. 5 2.309(f)(l). Although a petitioner must demonstrate that a "genuine dispute exists" at the contention admissibility stage, it need not demonstrate that it will prevail on the merits. See 54 Fed. Reg. at 33,170-7 1. Similarly, "at the contention filing stage the factual support necessary to show that a genuine dispute exists need not be in
affidavit or formal evidentiary form and need not be of the quality necessary to withstand a summary disposition motion." Id. at 33'17 1. On page 7 1 of the Applicant's response there are a number of statements regarding commitments that are completely incorrect. Licensee commitments can number in the thousands. Only a fraction have legal enforceability. The remainder are not tracked as commitments, and generally not maintained. The precise set of ongoing or onetime commitments that are docketed and in affect must be maintained by the applicant and is required by §54.3(a). Petitioners assert that anything that is currently capable of being described in sufficient detail should be. Programs for aging management, by contract law can be precisely articulated-the Applicant proffers no rationale for delaying disclosure. Examples of the Applicant's failure of full disclosure include Flow Accelerated ~ o r r o s i o n " Equipment
~, qualification16,buried piping17,and in l 5 For Flow Accelerated Corrosion, simply referring to an approved program such as NSAC 202L Rev 2 is not specific. There are examples of plants were they credit EPRIs industry accepted program, but fail to adequately implement it. Inspection frequency is not specified, but a critical parameter. Actual program scope, inspection frequency, grid selection, and corrective action to identified pipe thinning is not described. This leaves is public in the dark. Aging of piant piping will lead to numerous unforeseen accident scenarios if not carefully managed. No one predicted that a pipe rupture of an 18 inch line in 1986 first led to four immediate fatalities, then, loss of fire protection controls, and spurious activation of numerous electrically controlled devices included dumping of entire C 0 2 fire protection systems, inoperability of security doors, locking workers into rooms without immediate means to escape, and finally, threatened the safety of reactor operators when C02 drifted or leaked into the unit 2 control room. The causal events where not predicted nor predicable. The risk and PRA associated with this event is being debated after 21 years.
l6 See contention 27. 17 See contention 35
particular, the undisclosed refurbishment plan for the reactor headsI8. (See Exhibit E, OIG Report, and Exhibit F, Declaration of Ulrich Witte). By avoiding the issues, the Applicant avoids the Environmental Reporting. And thereby avoid, intervention, and foreclose the opportunity for the public to be heard and made aware of the risks. In response the NRC Staff state that Petitioners contention is "vague, lacks expert support, fails to specify portion of the application with which it disagrees, and fails to state an admissible issue." (NRC Staff brief at pp. 5 1-52). Entergy claims that this contention is not supported by facts or expert opinion, fails to raise a genuine dispute on a material issue of law or fact, and impermissibly challenges 10 C.F.R. Parts 50 and 54. (Entergy brief at pp. 70-71). Petitioners contention is that Entergy's LRA is incomplete; therefore, it cannot point to specific portion of the LRA with which it disagrees because the entire LRA is incomplete. The applicant is required to include all information in its LRA and thus the burden of proof is on the applicant to show that the LRA is complete. Since the application is required to address all EE&D's being carried over into the new licensing period, the LRA is complete if it does not include a plan for aging management of the plants degradation and fails to provide AMP'S. Therefore contention 13 must be admitted and heard. 18 See contention xx reactor head replacement.
CONTENTION 14: The LRA submitted fails to include Final License Renewal Interim Staff Guidance. For example, LR-ISG 2006-03, " Staff guidance for preparing Severe Accident Mitigation Alternatives." Petitioners point to numerous material inadequacies found in the Entergy submittal. (Pet. at pp. 112-113). Entergy insists that LR-ISG-2006-03 is included in their LRA at 2.1-21, (Entergy's brief at 72-73), whereas the NRC Staff argue that contention 14 lacks specificity and basis. (NRC Staff brief at p. 53). Essentially, .the inherent weaknesses found throughout the submittal would have been at least partly avoided had they followed this guidance. Second, the guidance whether draft of final is immaterial - a point apparently considered important in the response by the Entergy. Plants were built to draft GDCs in 1967. That is better than no GDCs at all, which is what Entergy now is actually claiming in responses to our contention 10, 1 1B, and 22-25. The date LR-ISG-2006-03 was finalized is immaterial. The NRC notes that it intends to roll this guide into NUREG 1555. This action gives it more strength - and more compelling that it be used. But there are others that are in existence and yet only one guideline was cited-and only in general terms. The licensee appears to have cherry picked the guidance at best. Where it pointed to NEI such as NEI-05-01, the Entergy used the resource to limit the extent it believed would be necessary for applying regulations to SAMA submittal. This is flawed. SAMA vulnerability (for example due to a large pipe break coolant accident) is
incomplete-given that consideration is not made for steam generators that are less than 100% functional. By following the guidance-for example, LR-ISG-2006-02, "Staff guidance for environmental reports for license renewal applications" (published as a draft document in February, 2007) the following flaws would have also been avoided. A list of the inadequacies, as compared to several EIS scoping documents submitted on October 12,2007 is provided in Exhibit H. "Incomplete Scoping under IGS-2006-02 Guidance." Contention 14 meets the admissibility criteria. Entergy does not challenge the in-scope nature of this Contentions. Contention 14 raises a genuine dispute with the Applicant on materials issues of law or fact as per 10 C.F.R. 2.309(f)(l) and must be admitted. CONTENTION 15: Regulations provides that in the event the NRC approves the LRA, then old license is retired, and a new superseding license will be issued, as a matter of law 5 54.31. Therefore all citing criteria for a new license must be fully considered including population density, emergency plans and seismology, etc. Petitioners maintain that this Contention meets the 6 part test for admissibility. Petitioners maintain that under NRC regulations, when the LRA is approved, the old operating license terminates and a new superseding license is issued pursuant to 10 C.F.R. 54.3 1. (Pet. at p. 155). Consequently, before a new operating license
can be issued, the NRC must assess the nuclear power plant and its location under the same criteria as an application for a new operating license. (Pet. at p. 116). License Renewal (as codified in 1OC.F.R.54 and 1OC.F.R.51) can be simplified to address four things-and four things only: (a) Aging of the plant structures, systems, and components will be sufficiently managed - where one cannot argue they are already addressed within the current license basis; (b) review of time limited aging evaluations; (c) environmental impact analysis that is clearly plant specific and not generic, (for example, severe accident risk is out of scope but alternatives to severe accidents are in scope; (d) anything else that one can prove is only possible during the renewal period but not during the current license period. (10 C.F.R. 54.2 1(b)).
"A contention about a matter not covered by a specific rule need only allege that the matter poses a significant safety problem. That would be enough to raise an issue under the general requirement for operating licenses (10 C.F.R. 5 50.57(a)(3)) for finding of reasonable assurance of operation without endangering the health and safety of the public." Duke Power Co. (Catawba Nuclear Station, Units I and 2), LBP 1 16,' 16 NRC 1937, 1946 (1982).
As numerous agenciesI9 and states2' have asserted, as well as the Office Of The Inspector ~ e n e r a l ~the ' , current application bypasses a plethora of issues that start 19 NYS petition, letter signed by six state attorneys general, 57
from current unresolved problems and are expected (by engineering rigor and not mere speculation) to either not be resolved at the end of the current license period, or more importantly, reflect a failed implementation of design criteria, operational criteria; or design basis accident mitigation that actually worsen by extending the operating license. Examples that meet these criteria include:
- 1. Probable water contamination, with the announced intention to use the Hudson River as a source of drinking water ...water.
- 2. Changes to the environment that are forthcoming. Weather systems, river water level and flow rates, and temperatures,
- 3. Probabilistic assessments of sabotage, action: cite report that shows likelihood of attack etc-and that it is likely to increase further.
- 4. Whether operating Indian Point for 50% longer creates new and different failure modes-as yet unpredicted but real. For example, the casual affect of the pipe break at Surry, and the consequences were entirely unpredicted, 20 Letter dated October 24, 2007 for the EPA requesting criteria consistent with a new operating license be applied.
21 September report 58
and outside the design basis accident that the plant was designed, engineered, and operated to withstand.
- 5. Design Basis Threat
- 6. The added cost of decommissioning the site with 20 more years of additional soil contamination, water contamination, and airborne contamination-where the Entergy has shown itself to be the nation's worst operatorz2.
Finally, the material condition of the plant is critical, which depends heavily on how the plant was designed, operated, modified, and maintained compliant. For instance, the efficacy of the physical plant through the past 45 years since construction needs to be provable by the docketed record including compliance to the historical and current license bases by the Entergy. Compliance to the rules and case law by themselves must establish the sufficiency of the license bases record so as to adequately implement the congressional enacted statutes governing the protection of the health and safety of the public, as well as minimizing risk to the public assets. In contention after contention Petitioners show (along with the NEW YORK STATE Attorney Generals Office Petition) wholesale violation of the rules. One does not need to look any further than Entergy's response: "Indian Point is not required to comply with the GDC's stated regarding our petition and 22 Reference coming.. . Indian Point is the dirtiest plant in the domestic fleet. 59
stated to other petitioners. A clear example of what lies ahead of the risks of the public assets, and the protection of the health and safety of the public. The Entergy relies heavily on the GALL report to support ,their suggestion that the LRA provided is complete and compliant to law. The GALL report is guidance- not law. The question of law raised in this contention is precisely how does the Entergy interpret and apply the rules as codified in 10 C.F.R.54 and 10 C.F.R.5 1 so as to actually meet congressional statutory authority as prescribed the Atomic Energy Act, together with the following statutory authority2'. This contention turns on resolution of the ambiguities. Petitioner contend that without a superseding license by these particular facts and law, the matter not covered by a specific rule but by the particular and specific conditions found, does allege that the renewal of Indian Point poses a significant safety problem. Because there is no definition listed in for "license renewal" or "relicensing" in the NRC regulations, Petitioners reason that the criteria for obtaining a initial operating license are just as applicable for relicensing. Alternatively, the aging management analysis covers the same review that is necessary for obtaining a renewed license. Thus, contention 15 should be admitted.
CONTENTION 16: An Updated Seismic Analysis for Indian Point must be Conducted and Applicant must Demonstrate that Indian Point can avoid or mitigate a large earthquake. Indian Point Sits Nearly on Top of the Intersection of Two Major Earthquake belts. Contention 16 urges the NRC to consider the site specific conditions at Indian Point and perform an updated seismic analysis. Indian Point is right on top of two major earthquake belts that intersect and each is approximately twenty feet wide. Since Entergy's LRA failed to include a seismic analysis, the NRC should order Entergy to do so. In reply, Entergy argues that this issue is beyond the scope of .thisproceeding, immaterial to license renewal, the contention lacks factual or expert support, and fails to show a genuine dispute exists. (Entergy brief at pp. 77-79). The NRC Staff also state that this issue is beyond the scope of license renewal. (NRC Staff brief at pp. 58-60). Contention 16 raises the issue of whether a seismic analysis, a site-specific environmental issue relating to Indian Point, should be required before a new operating license is approved. Petitioners Argue that an analysis should be conducted because there are site specific considerations removing seismic analysis from a category one environmental issue to a category two issue. Petitioners need only state the reasons for its concerns. Seabrook, supra, citing Allens Creek, supra. Due to the site specific conditions of Indian point a seismic analysis should be conducted because it is a category 2 environmental issue.
Petitioners explain several severe consequences if an earthquake were to occur, particularly in light of the aging equipment. Under 10 C.F.R.54.21, the licensee must evaluate the aging of the plant structures, systems, and components will be sufficiently managed, where not addressed in the current license basis, and perform an environmental impact analysis that is clearly plant specific and not generic. Entergy's LRA does not. The issues raised in contention 16 are particular and specific. (Pet. at p. 134). For example, ISFI issues were admitted in recent precedence24. Once Petitioner is admitted as a party, Petition will seek a waiver to compel reanalysis of Class 1 piping, and Class 2 piping. This could be accomplished while saving the Entergy substantial costs in the generally overly conservative seismic analysis performed in the late 1970's and early 1980's. It is likely, that snubbers can be removed, and substantial costs of maintaining or replacing those snubbers be avoided. Given that the plant is required to maintain a complete design record, including the "asbuilt" configuration of each facility, specifically including piping schematics and isometrics. It is also possible to show that the existing analysis is conservative against the revised seismic OBE and SSE criteria. If on the other hand, the analysis is non-conservative, and the Entergy is aware, and chooses not to disclose 24 Pet. at p. 10, contention 6
configurations that are currently do not meet design basis accident requirements. Then other enforcement rules come into play, and Entergy has a compliance issue much bigger than Seismic analysis of safety related systems components and structures. The engineering requirements including thermohydraulic fatigue analysis is specifically required under $54. There is significant ASME code case relief available since 1978, for example Code Case N-597, and others. However, given Entergy's position that it is not bound by any GDCs associated with pipe stress etc, this contention provides another example of the incomplete LRA. How can one prove adequate engineering management of aging and degradation of class I piping, when, the Entergy states that it is not bound to .the GDCs? The aging management of the systems, components and structures are within scope and therefore an updated seismology report should be required. This contention raises material issue of fact and law which are in dispute and therefore should be admitted and heard.
CONTENTION 17: The population density within the 50 mile Ingestion Pathway EPZ of Indian Point is over 21 million, the population within in the 10 mile plume exposure pathway EPZ exceeds 500,000. Entergy and the NRC Staff argue that the population density issue is outside the scope of renewal proceedings. (Entergy brief at p. 79-8 1); (NRC Staff brief at
- p. 61). Entergy failed to address increased population density surrounding Indian pointZ5in their inadequate environmental report.
For the reasons stated in contention 16, the population density surrounding Indian Point is site specific and should be heard. NEPA empowers the NRC to require an environmental study of the environmental impact of a proposed action if the action would significantly affect the quality of the human environment. 42 U.S.C. 4332(2)(C). A license renewal application is a significant and major event under the NEPA. The applicant's environmental report must include "any new and significant information regarding the environmental impacts of license renewal of which the applicant is aware." 10 C.F.R. 51.53(c)(3)(iv). Changes in factual and legal circumstances may impose upon an agency obligation to reconsider a settled policy or explain its failure to do so. Bechtel v. FCC, 957 F.2d 873, 881 (D.C.Cir. 1992); AHPA v. Lyng, 8 12 F.2d 1 (D.C. Cir. 1987).As stated in Petitioners contention 17, Indian Point is surrounded by one of the most densely populated areas in the U.S. and 21 million people live within 50 miles of Indian Point. (Pet.
at. p. 140-142). Entergy responds that changes in population density do not require reassessment because this issue is not in the scope of 10 C.F.R. Part 54. Petitioners need only state the reasons for its concerns. Seabrook, supra, citing Allens Creek, supra. The increasing population density surrounding Indian Point, as explained in contention 17, is new and significant information that should have been addressed in Entergy's environmental report. The dense population is an issue that is site specific and should be evaluated in accordance with 10 C.F.R. Part 100. Because this issue is site specific and known to Entergy, it should be included in its environmental report as a category two issue. Contention 17 should be admitted and heard because it raises genuine material issues of fact and law that are dispute. CONTENTION 18: Emergency Plans and evacuation plans for the four counties, surrounding are inadequate to protect public health and safety, due to limited road infrastructure, increased traffic and poor communications. Entergy and the NRC Staff state that this issue is outside of the scope of the aging management considerations relative to license renewals. (Entergy brief at p. 8 I).; (NRC Staff brief at p. 62). Again, for the reasons stated in contention 16, contention 18 raises a site specific issue and thus should be admitted. Entergy's 25 There is a 1982 study that shows Indian point property values within the 50 mile zone as being by far the highest of any of the 104 operating plants in the country. In 1982 dollars it was of the order of 400 billion.
failure to adopt an adequate emergency and evacuation plan does not protect the health and safety of the public. Entergy's emergency and evacuation plans have held inadequate by the James Lee Witt and Associated Report commissioned by Governor Pataki of New York, and endorsed by Congressional leadership including Hillary Clinton, Edward Markey and Bernie Sanders. Furthermore, Entergy's non-working sirens is an aging management issue. The failure of Entergy to install a functional siren system mandated by Congress is clear evidence, that Entergy inadequate management of emergency and evacuation systems and emergency plans hindered by limited roads and increased traffic. (Pet. at p. 142). The LRA does not address how Entergy will adequately manage the aging evacuation and emergency systems during the proposed new license period. The site specific issues, at Indian Point with regard to Emergency Planning must be fully evaluated as Category 2 issues, including the inability for Indian Point install sirens with backup power, as required by Congressional law. Entergy attempts to claim that this contention is outside the scope of the aging-management matter considered in license renewal proceedings. (Entergy brief at 8 1). Entergy cites to Millstone, CLI-05-24,62 NRC at 560-561 in which the Board stated that "emergency planning is, by its very nature, neither germane to age related degradation nor unique to the period covered by [a] license renewal application." (Entergy brief at p. 8 1-82).
However, the very mandate of the NRC is to adequately protect the public. Without a functional evacuation plan Indian Point cannot continue to operate for an additional 20 years. Thus contention 18 should be admitted. CONTENTION: 19 Security Plans Petitioners contend that the way the force-on-force (FOF) tests are conducted do not prove that the Indian Point security force is capable to defend the facility against a credible terrorist attack or sabotage. The LRA does not address how Security, as required under section 10 C.F.R. 100.12(f) and 10 C.F.R. Part 73, will be managed during the proposed additional 20 years of operation against sabotagelterrorist forces with increasing access to sophisticated and advance weapons. Along the same lines as Contention 16-18, contention 19 raises questions about the adequacy of Entergy's security plans at Indian Point. (Pet. at. 149-157). Entergy and the NRC Staff respond that security plans are outside the scope of license renewal proceedings citing to Vermont Yankee, LBP-06-20,64 NRC at 172-173. (Entergy brief at 82-83); (NRC brief at p. 63-64). In accordance with 10 C.F.R. 2.309(f)(3) and Consolidated Edison Co. (Indian Point, Units 2 & 3), CLI-0 1- 19, 54 NRC 109, 132 (200 I), where both Petitioners independently established standing, the Presiding Office has the discretion to permit Petitioners to adopt the others' contention early in the proceeding. Petitioners join and adopt contention of parties raising this same issue.
CONTENTION 20: The LRA does not satisfy the NRC's underlying mandate of Reasonable Assurance of Adequate Protection of Public Health and Safety. Entergy claims that the issues raised in contention 20 are outside the scope of license renewals. (Entergy brief at pp. 83-84). Petitioners reassert that the very mandate of the NRC is not adequately protect the public. However, Applicant's LRA is void of aging management plans to address systematic failures as evidence by many issues, including, but not limited to, the radioactive leaks, deficiencies in emergency planning, boric acid corrosion of the vessel heads for both Unit 2 and 3, steam generator issues, impending failure of the steel containment plate. The very mandate of the NRC is to adequately protect the public. The LRA does not address how Entergy will prevent adequately protect the public hnctional evacuation plan Indian Point cannot continue to operate for an additional 20 years. Thus, Contention 20 raises materials issues of fact and law that are in dispute as per 10 CFR 2.309(f)(l) (vi) must be heard and omitted. Precedents on point supporting the admissibility of this Contention include the following: o Louisiana Energy Services, L.P., CLI-05-20 (2005)- Petitioner was seeking review of Atomic Safety and licensing board decision on
environmental uranium disposal- held board should admit it for a hearing o Exelon Generation Co., LLC, CLI-05-17 (2005) - mandatory hearings under 10 C.F.R. 103, 1046 of AEA (42 U.S.C. 2239(a) The very mandate of the NRC is to adequately protect the public. The LRA does not address how Entergy will prevent adequately protect the public functional evacuation plan Indian Point cannot continue to operate for an additional 20 years. The NRC Staff contend that "[mlostof the issues that the Petitioners bring up have nothing to do with the GEIS or the Supplemental to the GEIS." (emphasis added) (NRC brief at p. 66). The NRC Staff also state that Petitioners have failed to seek a waiver of the regulations. Under the NRC regulations, only a party can seek a waiver of a regulation. Until at least one contention is admitted, a Petitioner is not a party. Thus, once Petitioners are parties, we will seek waiver of the issues that should be considered as category 2 environmental issues. Thus contention 20 should be admitted. Contention 21 was omitted from the Petition.
Contention 22 Entergy contents that Petitioners have not satisfied the admissibility criteria under 10 C.F.R. 2.309(f)(l). (Entergy brief at p. 84-85). The NRC Staff oppose admission of this contention because it is alleged to be outside the scope of license renewal. (NRC Staff brief at pp. 68-69). The regulatory rules for obtaining a new superseding license, as delineated in the code of federal regulations, specifically riles under 10 C.F.R. Part 54, License Renewal, and 10 C.F.R. Part 5 1, Aging Management, were set aside by the Application in lieu of suggested criteria promulgated by .the trade industry. The Applicant misrepresented the specific General Design Criteria which formed the basis of the Safety Evaluation Report granting the Unit 2 operating license and subsequer~tlyremained in violation of the terms of its operating license and with the federal rules for four decades. Hence, the Applicant placed economics before the health and safety of the public. The Applicant, as well the federal agency, willhlly and knowingly violated the Administrative Procedures Act, and as a result, now has prostituted the license renewal application for Indian Point Unit 2. The aging Management Programs proposed by the Applicant are based upon misrepresentations of .the actual general design criteria to which Indian Point Unit 2 was license. The as-built construction
of the facility does not comply with the safety evaluation report, the operating license or to the code of federal regulations. The NRC is currently assessing the need to review the 4.1 older nuclear power plant units referred to as the Systematic Evaluation Program Phase 111 (SEP-111) plants. Generic Safety Issue (GSI) 156-6.1 (R. Emrit, et al., 1993) deals with whether the effects of pipe break inside containment have been adequately addressed in these plants' designs. The NRC originally evaluated a majority of the SEP-111 plants before they issued Regulatory Guide (RG) 1.46 in May 1973 (AEC, 1973b). Although the NRC reviewed these plants, there is a potential lack of uniformity in those reviews due to the absence of documented acceptance criteria. The NRC is now attempting to assess the impact of not having such criteria in place. The extent of the violations are breathtaking, and involve a substantial prima facie breach of Administrative Procedures Act (APA) by the Federal Agencies over almost four decades for Indian Point 2. Beginning in 1968, the Nuclear Regulatory Commission acted in direct defiance of the Administrative Procedures Act by approving Amendment Nine of the Operating License, (contained in exhibit I) in which the Licensee acknowledged commitments to trade comments to draft General Design Criteria for its new plant. In addition, the Licensee committed to trade comments to the proposed General Design Criteria, and erroneously claimed
that the trade organization comments were published in the Federal Register for public comment in July, 1967, when in fact they were never properly published. (See Exhibit J). The Licensee claimed adherence to a General Design Criteria required for the licensing of Indian Point 2 facility, and committed to such General Design Criteria in the 1970 SER. In actuality, the plant design, programs and procedures were licensed to trade industry-endorsed commentary as opposed to the General Design Criteria for the LRA and subsequently approved by the Atomic Energy Commission under .the 1970 Safety Evaluation Report. ( See Exhibit K). bypassed the federal rules as found under the rule making process. The draft GDC's were published and approved for use more than 13 months prior. This fundamental failure of oversight by the regulator was subsequently set aside and festered, while the commission quietly authorized by retroactive fiat that the licensing process proscribed under federal rules for Indian Point 2 could remain in violation of law. This series of events is evidenced by close examination of documents cited or submitted in the applicant's LRA. The commission dealt with the design basis and license failures with a stroke of a pen in 1992. (See Exhibit L). The table below best provides .the chronology as well as the facts, and the implications to the renewal license application fidelity. In simplest terms the Licensee and NRC with the acceptance of the GDC defined in Amendment 9 to the
original application for license accepted a draft industry GDC in place of the actual GDC for IP2. Table 1 Timeline of proposed trade design criteria and misrepresented as conforming to federal law: Date: Docketed Activity Reference Implications to fidelity of the License Amendment November 22, 1965 Early draft General November 22, 1965 For consideration by Con Ed in Design Criteria Press release from decision to Construct Indian Point 2 published by AEC for AEC. No FR notice comment October 14,1966 By application dated The Commission, The application was evaluated by December 6, 1965, and after a public hearing the Commission's regulatory amendments thereto and after an initial staff and independent Advisory (the original decision by the Committee on Reactor Safeguards application), the Atomic Safety and (ACRS), both of which concluded applicant applied for Licensing Board (the that there was reasonable the necessary licenses Board), established assurance that the facility could be to construct and by the Commission, operated at the proposed site operate a nuclear issued Construction without undue risk to the health and power reactor at the Permit CPPR-21 safety of the public. On October applicant's site at for this facility 14,1966, Indian Point, Village of Buchanan, Westchester County, New York. July 11, 1967 AEC publishes draft Federal Register 32 Note that the draft GDCs were General Design Criteria FR 10213 never made a part of Appendix A of under federal rule 10CFR5O. making processes. October 2, 1967 Atomic Industry Provided directly to AIF general proposed removal of Forum, a trade Atomic Energy conservatism in draft General organization, provides Commission without Design Criteria. These changes significant comments publication in the were never approved by the AEC. regarding draR GDCs federal register published. October 15, 1968 Former owner of Unit 2 AEC Docket No. Facility that was now more than 2 submits Amendment 9 50-247-- years into construction was being of application of correspondence constructed following unapproved license from Con Ed to trade documents - however, the Director of Division letter states on page 1.3-1 that the
Date: Docketed Activity Reference Implications to fidelity of the License Amendment of Reactor unapproved "general design criteria Licensing Atomic tabulated explicitly in this report Energy Commission comprised of the proposed AIF versions of the criteria issued for comment in July 1967." February 1970 See January 28, 1971 The staff met with an ad hoc AIF NRC discussion of group, which included AIF GDC comments. representatives of reactor manufacturers, utilities and architect engineers to discuss the revised General Design Criteria. The comments of this group were reflected in a June 4, 1970 draft of the revised General Design Criteria that was forwarded to the AIF for comment. The AIF forwarded comments and stated it believed the criteria should be published as an effective rule after reflecting its comments. These comments have been reflected in the GDC in Appendix "A". November 16,1970 Safety Evaluation Incorporated License "Our technical safety review of the Report amendments 9-25 to design of this plant has the application and been based on Amendment No. 9 to Commission grants the FFDSAR the application, the Final Facility operating license based -includes ALSB, Description and Safety Analysis upon amendments 9-25 ACRS review et al. Report (FFDSAR), and of application for Amendments Nos. 10-25, inclusive. license by Con Edison. All of these documents are available for review at the Atomic Energy Commission's Public Document Room at 17 17 H Street, Washington, D.C. The technical evaluation of the design of this plant was accomplished by the Division of Reactor Licensing with assistance" from the Division of Reactor Standards and various consultants to the AEC. This document gave them authority to operate the facility under the draft GDCs but without the AIF comments specifically for the Reactor Protection and Control System.
Date: Docketed Activity Reference Implications to fidelity of the License Amendment As noted, "Specifically, for the reactor protection system instrumentation for -Indian Point Unit 2 is the same as that installed-at the Ginna plant. The adequacy of the protection system instrumentation was evaluated by comparison with the Commission's proposed general design criteria published on: July 11, 1967, and the proposed IEEE criteria for nuclear power plant protection system (IEEE-279 Code), dated August 28, 1968. The basic design has been reviewed extensively in the past and we conclude that the design for Indian Point 2 is acceptable7'. February 20 1971 Formerly Draft GDCs 'Published in FR, on These are the first legal standards through July 11 are approved Final February 20 1971, for which the plant is required to 1971 GDCs and become part and amended on July comply or under federal rules, or be ofAppendixAto10 11,1971 granted an exemption. CFR 50. They are amended the same year. November 4, 1971 A third modified The USAEC is urged to require construction permit was Consolidated Edison to issued for Units #1 and establish a firm schedule for
#2. The proposed implementing this proposed relocation of the intake modification because of changes in structures by Con the design of the adjustable Edison was a discharge ports and slide gates.
significant improvement and entered into this decision. September 28, Unit 2 Operating SER states that the plant is licensed 1973 License Received to 1967 draft general design criteria without endorsement of AIF comments. Commission issues Unit 2 FSAR dated The commission concurred on a confirmatory June 2001 states that January 1982. order on February the detailed results of 11, 1980 the order indicate that the plant is in compliance with the then current General Design Criteria established in 10CFRSO
Date: Docketed Activity Reference Implications to fidelity of the License Amendment Appendix A. September 18, SECY 92-223, Letter to James The Commission approved the staff 1992 "resolutions of Taylor, Executive proposal in which the plant was deviations identified Director for not required to comply with during the systematic Operations federally approved General evaluation program" Design Criteria, if construction permits were issued prior to May 2,1971. This is a clear and flagrant violation of the Administrative Procedures Act. June 2001 Unit 2 FSAR states Section 1.3 General The license with collateral incorrectly that the Design Criteria, Unit endorsement of the federal General Design Criteria 2 UFSAR, and regulatory agency bypassed the tabulated explicitly in indicates under a administrative rules act, and thus the pertinent systems footnote that the reduced its commitments made to comprised the proposed safety analysis report obtain its operating license to less trade organization added trade than the minimum legal general design criteria. organization requirements of 10 CFR 50 comments in the Appendix A which were made law change to the FSAR. more than two years prior to the (see footnote within NRC granting the applicant an Section 1.3.) operating license for Unit 2. The reductions of safety margin and reasonable assurance of protection of the health and safety of the public have been compromised for over three decades, without the public understanding of the loss of margin in safety. Subsequently, Entergy allowed the error to remain and is actually currently committing Unit 2 to trade organization design criteria. Consequences of these actions: The Licensee's failure to adhere to a legally enforceable General Design Criteria substantially reduces safety margins for safe
plant operation, by severely reducing detection of and the consequential mitigation of accident conditions resulting in substantial reduction in protecting the health and safety of the public. The Nuclear Regulatory Commission continued this pattern of bypassing the Administrative Procedures Act in 1992, in which the regulator relieved the Applicant of all compliance enforcement to any General Design Criteria, without any attempt to abide by the Administrative Procedures Act. The Commission belief that it could use guidance documents from trade organizations in lieu of rules as was adjudicated in Metropolitan Edison Company, et al. (Xhree Mile Island Nuclear Station, Unit No. 1) ("TMItl'j)ALAB-698, 16 NRC 1290, 1298-99 (October 22, 1982), affirming LBP-81-59, 14 NRC 1211, 1460 (1981), where it was established that the criteria described in NUREG-0654 were intended to serve solely as regulatory guidance, not regulatory requirements). Indeed, the Commission's mere reference to NUREG-0654 in a footnote to 10 C.F.R. 4 50.47 was found to be insufficient to incorporate that guidance document by reference as a part of a federal regulation, even if the Commission had intended to do so. The Nuclear Regulatory Commission continues this approach today without any hint of complying with the rules of the Administrative Procedures Act (APA). In summary, the Applicant is obligated to meet the requirements of the General Design Criteria as published on July 11, 1967. In fact, the Applicant falsely states
that it is in compliance on page 3 of the LRA. Indian Point 2 LLC plant was designed, constructed and is being operated on the basis of the proposed General Design Criteria, published July I 1, 1967. Construction of the plant was already underway when the Final Facility Description and Safety Analysis Report was filed on December 4, 1970, and when the Commission published its revised General Design Criteria in February 1971, and final version of the General Design Criteria in July 1971, which included the false statement. As a result, we did not require the applicant to reanalyze the plant on the basis of the revised criteria. However, our technical review assessed the plant against the General Design Criteria now in effect and we have concluded that the plant design conforms to the intent of these newer criteria. The Applicant was not in compliance with 10 C.F.R. 50 Appendix A then, and is not in compliance with 10 C.F.R. 50 Appendix A now, as provided in current 2006 Unit 2 UFSAR submitted as a part of its relicensing application. Subsequent to the issuance of the Operating License, the Nuclear Regulatory Commission issued many Bulletins, Orders, Generic Letters, and Regulatory Guides. Most of the Regulatory Guides address the Nuclear Regulatory Commission's interpretation of the meaning of the requirements of the 1971 General Design Criteria. Inference could be made that regardless of the legal basis of these orders, if one accepts them as legal, one must also accept the legal
requirement of compliance to the specific relevant 1971 General Design Criteria. However, the process clearly violated the Administrative Procedures Act regarding the incorporation by reference on regulations such as violation of 10 C.F.R. 50.2 12, regarding equipment aging 10 C.F.R. 5 0 . 2 1 ~program ~ scope by using a methodology that is entirely addressed under NUREGS prepared and promulgated outside rulemaking procedures and industry trade guidelines such as NEI 95-10 Rev. 6, each of which has no legal force. Neither public involvement nor the most fundamental steps required under the Administrative Procedures Act were adhered to by either the Applicant or the Federal Agency. Pursuant to section 3(a)(l) of the Administrative Procedure Act, 5 U.S.C. 5 552(a)(l), as implemented by the regulations of the Office of the Federal Register, 10 C.F.R. Part 5 1, no material may be incorporated into a rule by reference unless the agency expressly intends such a result, 10 CFR. 8 5 1.9, requests and receives the approval of the Director of the Office of Federal Register, 10 C.F.R. $8 5 1.1, 26 ( I ) Safety-related systems, structures, and components which are those relied upon to remain functional during and following dcsign-basis events (as defined in 10 CFR 50.49 (b)(l)) to ensure the following functions-- (i) The integrity of the reactor coolant pressure boundary; (ii) The capability to shut down the reactor and maintain i t in a safe shutdown condition; or (iii) The capability to prevent or mitigate the consequences of accidents which could result in potential offsite exposures comparable to those referred to in (j 50.34(a)(I), 4 50.67(b)(2), or (j 100.11 of this chapter, as applicable. (2) All nonsafety-related systems, structures, and components whose failure could prevent satisfactory accomplishment of any of the functions identified in paragraphs (a)(l)(i), (ii), or (iii) of this section. (3) All systems, structures, and components relied on in safety analyses or plant evaluations to perfonn a function that demonstrates compliance with the Commission's regulations for fire protection ( I 0 CFR 50.48), environmental qualitieation (I0 CFR 50.49), pressurized thermal shock (I 0 CFR 50.61), anticipated transients without scram (I0 CFR 50.62), and station blackout (I0 CFR 50.63). (b) The intended functions that these systems, structures, and components must be shown to fulfill in 4 54.21 are those functions that are the bases for including them within the scope of license renewal as specified in paragraphs (a)(l) - (3) of this section. [60 FR 22491, May 8, 1995, as amended at 61 FR 65175, Dec. 1 I, 1996; 64 FR 72002, Dec. 23, 19991
5 1.3, and the Federal Register notice indicates such specific approval, 10 C.F.R. 5 5 1.9. A brief review of statutory/regulatory construction confirms the method for incorporating Regulatory Guides. Here 10 C.F.R. Part 50, Appendix E, n.1; NRC Staff Regulatory Guide 1.101, Rev. 2 (October, 1981) specifically endorses the incorporation by reference to the criteria and recommendations in NUREG-0654 as "generally acceptable methods for complying" with the standards in 10 C.F.R. 5 50.47. The NRC's emergency planning rules, however, include neither such a designation nor any express intention that NUREG-0654 be incorporated by reference. In the absence of other evidence, adherence to NUREG-0654 may be sufficient to demonstrate compliance with the regulatory requirements of 10 CFR 5 50.47(b). However, such adherence to NUREG-0654 is not required, because regulatory guides are not intended to serve as substitutes for regulations. TMI, ALAB-698, supra, 1 6 NRC at 1298-99. Methods and solutions different from those set out in the guides will be acceptable if they provide a basis for the findings requisite to the issuance or continuance of a permit or license by the Commission." Id. at 1299, quoting PaczJic Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-644, 13 NRC 903, 937 (1981). Petitioners believe the atomic licensing board erred in this decision. This error was confirmed in the
recent ruling regarding storage of spent fuel requiring a NEPA proceeding compliance prior to the NRC approval. See Sun Luis Obispo Mothers v. NRC 03-74628. Examples include certain Regulatory Guides that provide requirements for post-accident monitoring of the TMI incident. These Regulatory Guides describe a method that the NRC staff considers acceptable for use in complying with the agency's regulations and delineate an acceptable means of meeting the General Design Criteria as contained in 10 C.F.R. 50 Appendix A. More than 100 Regulatory Guides have been issued, amplifying the requirements of the General Design Criteria. The NRC developed Regulatory Guide 1.97 to describe a method that the NRC staff considers acceptable for use in complying with the agency's regulations wi.th respect to satisfling criteria for accident monitoring instrumentation in nuclear power plants. Specifically, the method described in this Regulatory Guide relates to General Design Criteria 13, 19, and 64, as set forth in Appendix A to Title 10, Part 50, of the Code of Federal Regulations (10 C.F.R. Part 50), -Domestic Licensing of Production and Utilization Facilities: Criterion 13, -Instrumentation and Control, requires operating reactor licensees to provide instrumentation to monitor variables and systems over their anticipated ranges for accident conditions as appropriate to ensure adequate safety. Criterion 19, -Control Room, requires operating reactor licensees to provide a control room from which actions can be taken
to maintain the nuclear power unit in a safe condition under accident conditions, including loss-of-coolant accidents (LOCA's). In addition, operating reactor licensees must provide equipment (including the necessary instrumentation), at appropriate locations outside the control room, with a design capability for prompt hot shutdown of the reactor. Criterion 64, -Monitoring Radioactivity Releases, requires operating reactor licensees to provide the means for monitoring the reactor containment atmosphere, spaces containing components to recirculate LOCA fluids, effluent discharge paths, and the plant environs for radioactivity that may be released as a result of postulated accidents. The licensee has responded to these communications and states compliance with these communications and makes a commitment in the UFSAR. In these examples, the Applicant included the NUREG language in the FSAR, and by inference one could argue compliance in this case with General Design Criteria 1971. The Applicant could not, however, use the Aging Management Program to argue compliance with other cases, and certainly cannot use the program exclusively. The Applicant is potentially holding open options that should be eliminated under the Aging Management Rule. (See Contention 4). A dispositive example is "General Design Criteria Criterion" 35-Emergency core cooling: A system to provide abundant emergency core cooling shall be provided. The system safety function shall be to transfer heat from the reactor core following any loss of reactor coolant at a rate such that ( I ) fuel and clad damage that could interfere with continued effective core cooling is prevented and (2) clad metal-water reaction is limited to negligible amounts. Suitable redundancy in components and features, and suitable interconnections, leak detection, isolation, and containment capabilities shall be provided to assure that for onsite electric power system operation (assuming offsite power is not
available) and for offsite electric power system operation (assuming onsite power is available) the system safety hnction can be accomplished, assuming a single failure. See General Design Criteria 35, Final design criteria (10 C.F.R. 50 appendix A approved 1971, (36 FR 3256, Feb 20, 1971)). The IP2 Final Safety Analysis Report (FSAR) does not address Criterion 35 at all. In neglecting to do so, the IP2 FSAR leaves the General Design Criteria meaningless in its intent to protect .the health and safety of the public, and places the plant in clear violation of 10C.F.R. 50 Appendix A. A detailed list of specific violations contained within 10 C.F.R. Part 54 will be provided in supplemental submittal to this contention. Contention 23 An example is provided below from review of the limited material available to Petitioner by the Licensee, and the regulator. Criterion 10, Reactor design, in which the reactor core and associated coolant, control, and protection systems must be designed with appropriate margin to assure that specified acceptable fuel design limits are not exceeded during any condition of normal operation, including the effects of anticipated operational occurrences. FSAR Section 5.1.1.1.5, Reactor Containment substantiates the Criterion with the following additions: The containment structure shall be designed. (a) to sustain, without undue risk to the health and safety of thepublic, the initial effects of gross equipment failures, such as a large reactor coolantpipe break, without loss of required integrity, and (b) together with other engineered safety features as may be necessary, to retain for as long as
the situation requires, the hnctional capability of the containment to the extent necessary to avoid undue risk to the health and safety of the public. [italics and bold added] These additions provide latitude and judgment to the Applicant as to what the Architects and Engineers need to do in order to minimally satisfy the criteria but do not support the right for public review of the pertinent documents in a public forum. A brief review of Tech Spec requirements contained in Exhibit 0 confirms that the misrepresented statement in the FSAR regarding General Design Criteria for Unit 2 is followed through with improper implementation. See e.g.,, Reactor Coolant Leakage. In L C 0 3.4.13, reactor containment pressure leakage from primary to secondary systems is allowed in quantities up to 150 gallons per day. Such quantities are much larger than reasonable limits implicit under General Design Criterion 35. This non-conservative quantity may have contributed to the root cause of the 2000 tube rupture accident and is intolerable as an acceptable quantity for age management of the RCS leakage. Contention 24 A second example may be found in examination of General Design Criterion 45, through General Design Criterion 6.2.1.2. Inspection of Emergency Core Cooling System Criterion is the following: Design provisions shall, where practical, be made to facilitate inspection of physical parts of the emergency core cooling system, including reactor vessel internals and water injection nozzles.
(General Design Criteria 45). Here the trade organization inserted the words "where practical." (See Exhibit L page 14). The Applicant bypasses the rules, by failing to properly examine or replace reactor core internal components with known susceptibility to failure on multiple occasions. For example, the components such as baffle bolts that hold down springs, lower core barrel, and lower core plate are routinely UT or VT'd during outages and often replaced. (See Exhibit P). The process involves a machine that typically removes and replaces bolts in an automated procedure which adds two weeks to an outage. Despite the higher reliability of such a process, Indian Point 2 has chosen instead to rely on water chemistry tests which are meaningless for assessing bolt integrity. The reasoning behind the reliance on an inferior method of testing is financial: Water chemistry tests enable Indian Point 2 to substantially reduce lost revenue by shortening the outage time (some estimates are in the order of millions of dollars per outage day), despite the fact that the health and safety of the public is sacrificed. See exhibit P and the declaration of Ulrich Witte, Exhibit Q. This is a prima facie violation of 10 C.F.R. 50 Appendix A. The Applicant attempts to placate the issue with the following words contained in the LRA -to manage loss of fracture toughness, cracking, change in dimensions (void swelling), and loss of preload in vessel internal components, the site will (1) participate in the industry programs for investigating and managing
aging effects on reactor internals; (2) evaluate and implement the results of the industry programs as applicable to .the reactor internals; and (3) upon completion of these programs, but not less than 24 months before entering the period of extended operation, submit an inspection plan for reactor internals to the NRC for review and approval. (See section A.2.1.141 of the LRA report). This language essentially removes this entire matter from the public's right of input and participation. It is another example of -Agree to agree and bypasses the procedures required by law through the Administrative Procedures Act. Alternative methods that act as proposals to comply with the federal rules for license renewal represent guidance only, unless explicitly cited, and developed within the confines of the Administrative Procedures Act. The above examples meet the standards for specific contentions as cited above. This serious and deliberate practice of rewriting federal code without public input is in clear violation of the Administrative Procedures Act and invalidates the plans proposed for the technical, safety, and environmental aspects of entire LRA, even setting aside the issues of a lack of completeness and vagueness of the description. The misrepresentation has become routine, and the violations so acceptable, that the NRC only days ago published a notice regarding a leaking and aging 20-inch pipe, described by the media as a -conduit with a pinhole leak.
I CONSOLIDATED EDISON I UFSAR FIGURE 9.5-1 FUEL TRANSFLR I SYSTFM NO' 2 6~
;-MI< i999MC58136 ]REV. - -
81 Misrepresentation does violence to the entire intent of the agency, and the Applicant's failure to comply with specific rules of 10 C.F.R. 54, and further violates the Administrative Procedures Act. For example, the 20-inch -conduit is not considered part of the Aging Management Program or part of the environmental program, and the lack of inspection and maintenance of it is not considered unlawful. (See Exhibit R). Contention 25 The breadth and depth of these contentions are extreme. Even if each issue is classified in the narrow confines of the scope of the Rule (however not 42
the GALL Report (but see NUREG 1801 Rev. 1) the egregious conduct by the applicant and the regulatory failure raises questions about any statement made in the LRA, or the Current Licensing Basis for Unit 2. The Current Design Basis for Indian Point 2 is unknown, unmonitored, and the materiel condition also unknown. These conditions associated with the CLB were the exact bases for permanent closure of Millstone Unit 1. These findings for Indian Point 2 are clearly analogous and a new superseding license has insufficient ground for approval. For those issues raised here, no distinct and independent forum is available to adjudicate the magnitude of the misrepresentation and unlawful acts. Clearwater questions how a Board selected by the Commission can be allowed to judge the acts by the very Commission that selected it (such as the 1992 letter contained in Exhibit M). The Administrative Procedures Act under chapter 5 provides for adjudication in the federal court for exactly this kind of broad unlawhl act. CONTENTION 27: The LRA for Indian Point 2 & Indian Point 3 is insufficient in managing the environmental Equipment Qualification required by federal rules mandated that are required to mitigate numerous design basis accidents to avoid a reactor core melt. This is a dispute over material facts- not applicable law. Petitioners challenge Entergy's LRA for Indian Point Units 2 and 3 because it fails to comply with (a) 10 C.F.R. 6 50.49(e)(5) & Part 54, and (b) the federal rules mandated
after the Three Mile Island tragedy to protect the health and safety of the public. (Pet. at p. 187). Entergy opposes contention 27 on .thebasis that .they claim the contention is outside the scope. (Entergy brief at p. 96). The NRC Staff state that this contention is not admissible because it "fails to identify any error or omission in the application. It is vague and unfocused, and thus fails to meet the requirements of §2.309(f)(l)(i) and (vi). . .PHASE does not explain how 10 C.F.R. §50.49(e)(5) is violated, or why these assertion establish a dispute with the LRA." (NRC Staff brief at p. 7 1). Although Entergy attacks credibility of Petitioner's expert witness, Mr. Witte, Entergy does not submit expert rebuttal, and therefore their allegations must not be considered. Mr. Witte's expertise is well documented in his CV. Petitioners have met the 6 part test. Entergy responses argument regarding processes is engineering nonsense. The current EQ systems that are out of compliance, cannot be credited towards the proposed new license term. The Applicant credits a rudimentary economic analysis which concluded that a 50% change of multiple equipment failure as acceptable. It is obviously not. The Advisory Committee on Reactor Safeguards (ACRS) found that this economic analysis evidenced a disregard of federal rules regarding Entergy's CLB, 10 C.F.R. 50.49 and 10 C.F.R. 50.4. The issue is thus within scope. Although we are not
conceding that the contention as written does not meet the six part test, Exhibit I provides additional items of particularity. Petitioners assert that the scientific methodology that was stretched to reach 40 years and cannot is inadequate to be stretched to 60 years. The Applicant's LRA has failed to address the aging effects are cumulative and issues of limited functionality and integrity of in-scope components such as Instrumentation and Control cables. Contention 27 is within scope and must be admitted. Contention 28-32 The License's ineffective Quality Assurance Program violates fundamental independence requirements of Appendix B, and its ineffectiveness furthermore triggered significant cross cutting events during the past eight months that also indicate a broken Corrective Action Program, and failure of the Design Control Program, and as a result invalidate statements crediting these programs that are relied upon in the LRA. Petitioners assert that Entergy's Quality Assurance Program violates the requirements in 10 C.F.R. 50, Appendix B. (Pet. at p. 204). Specifically, Petitioners maintain that Entergy's Quality Assurance Program for Aging Management is ineffective. (Pet. at p. 204). Entergy opposes admission of this contention because it falls outside the scope of this proceeding. (Entergy brief at p. 99). Additionally, the NRC Staff contend that Petitioners failed to demonstrate that the issues raised are material to
the findings the NRC must make and that Petitioners fail to provide sufficient information that a genuine dispute exists. (NRC Staff brief at pp. 73-74). Petitioners need only show that the Appendix B program translates to inadequate oversight and the consequences are hndamental to the operational safety of Indian Point 2 and Indian Point 3. Entergy does not assert that their Quality Assurance Program is in compliance, rather they attempt to claim that the condition or failure of the QA program should not be considered in the NRC's safety review. Petitioners argue that a managed program for aging of equipment cannot be credit to a program that there is some nexus between the alleged omission and the protection of the health and safety of the public. Millstone, supra. The failed Appendix B program translates to inadequate oversight and the consequences are yet again fundamental. You can't get to a managed program for aging of equipment, when the plant has , a "broken" track record of maintenance, operational issues, corrosion, design basis accidents, have in their roots the Appendix B program that is not independent in violation of 10 C.F.R. 50 Appendix B. Where the Entergy intends to filly credit an existing program as adequate, and it is hndamentally failing to comply with Appendix B, Petitioner and the ASLB have the right and the obligation to bring it into renewal consideration. To
ignore this, creates conditions which place the public assets and their health and safety at risk. Entergy does not dispute that the Quality Control at Indian Point has been seriously reduced and that they have credited this reduced program to be carried into the proposed 20 year additional license term. Therefore the Quality Control program is within scope. Because contention 28 raises material and particular issues of fact and law in dispute, it is therefore admissible. Contention 29: Failed Quality Assurance Program Petitioner's Response to Contention 28 is reference and incorporated fully, as if set forth herein. Contention 29 raises the specific failures during the second quarter of 2007, regarding an attempt to clear interference of sumps while implementing modifications to the vapor containment and recirculation pumps is an example of a cross cutting issue, were the root cause was improperly attributed and the quality assurance failure was not addressed. This failure and the methodology used that is being credit to be carried over into the proposed 20 year license period is not addressed in the LRA. The root cause of the failure of the current Quality Control program has been brought into scope. Contention raises material and particular issues of fact and law in dispute and therefore is admissible.
Contention 30 Petitioner's Response to Contention 28 is reference and incorporated fully, as if set forth herein. Contention 30 is a second example that supports contention 28, but is its own contention. It raises a separate and distinct issue that procedure regarding temporary modifications are inadequate. This contention is unchallenged by the Applicant. It meets the six part test with specificity and particularity. Temporary modifications will be a substantial element of modifications required if the LRA is granted. A deficient temporary modification program is fatal a safe transition to license renewal. Applicant's Appendix B program translates to inadequate oversight and the consequences are fundamental to the operational safety of Indian Point 2 and Indian Point 3. Entergy does not assert that their Quality Assurance Program is in compliance, rather they attempt to claim that the condition or failure of the QA program should not be considered in the NRC's safety review. Petitioner's argue that a managed program for aging of equipment cannot be credit to a program that has , a "broken" track record of maintenance, operational issues, corrosion, design basis accidents, that is in violation of 10 C.F.R. 50 Appendix B. Where the Entergy intends to fully credit an existing program as adequate, and it is findamentally failing to comply with Appendix B, Petitioner and the
ASLB have the right and the obligation to bring it into renewal consideration.. To ignore this, creates conditions which place the public assets and their health and safety at risk. Entergy does not dispute that the Quality Control at Indian Point has been seriously reduced and that they have credited this reduced program to be carried into the proposed 20 year additional license term. Therefore the Quality Control program is within scope. Contention 30 raises material and particular issues of fact and law in dispute and therefore is admissible to be heard. Contention 31 Contention 3 1 is a separate and distinct contention that raises procedures regarding the failure to establish corrective actions associated with monitoring the service intake bay level. Failure of Entergy to take corrective action, without the issue being re-identified by the NRC indicates that the current configuration management and control of the facility is insufficient, yet Entergy is crediting their corrective action program for the proposed additional 20 year term. This contention is unchallenged by Entergy. It meets the six part test with specificity and particularity. Configuration management and corrective action programs are substantial systems required if the LRA is granted. A configuration management and corrective action program is fatal to an safe transition to renewal. Therefore
Contention 3 1 raises material and particular issues of fact that are in dispute, which are admissible and should be heard. Contention 3 1 raises the issue that there appears to be no configuration management control program at either facility., even though Unit 3 had a commitment to have a bona fide program in place their keys back in 1996 after being shut down for over a year, and after being on the NRC's watch list Unit 3. Based on the examples provided in Contentions 28,29, 30, and 3 1 Petitioners argue that the required program has become completely obliterated and broken, therefore Entergy cannot take credit for it in it's LRA. Omission of an adequate aging management configuration management control program raises material and particular issues of fact that are in dispute, which are admissible and should be heard. The examples provided in contentions 28,29,30, and 31 all support the notion that if the program is there, it is broken. Therefore, contentions 28,29,30, and 3 1 should be admissible. Contention 32: Indicators of a failed Safety Culture Work Environment Contention 32 is a separate and distinct contention that raises serious issues with regard to the failure of safety culture assessment and confidence by workers in raising safety concerns. This contention is unchallenged by Entergy. It meets
the six part test with specificity and particularity. Substantial safety work culture being credited in the LRA is a substantial element in license renewal proceedings. A deficient safety work culture is fatal to an safe transition to renewal. Therefore Contention 32 should be heard. CONTENTION 33: The EIS Supplemental Site Specific Report of the LRA is misleading and incomplete because it fails to include refurbishment plans meeting the mandates of NEPA, 10 C.F.R. 51.53 post-construction environmental reports and of 10 C.F.R. 51.21. The contention meets the six part test for admissibility in spite of Entergy's attempt to discredit the evidence. The NRC Staff "do not oppose the admission of PHASE Contention 33 for the limited purpose of verifying whether the Applicant has omitted plans to replace the reactor vessel head as a refurbishment item associated with license renewal." (NRC Staff brief p. 75). The contention meets the six part test for admissibility in spite of Entergy's attempt to discredit the evidence. Although Entergy does not deny that a RPV head was purchased, Entergy does not deny they it may replace the heads during the 20 year license period and that will constitute major refurbishment Inspection indicated streaks of brown stains, and there are issues with upper head injection nozzles that are unique to Indian Point Westinghouse Reactors. This is a mqjor
design evolution. Extensive engineering work is required to establish integrity between an embrittled vessel barrel, and a new head. Even if Entergy did not deliberately omit the information regarding the RPV and rehrbishment contemplated during the proposed additional 20 year term, the Doosan "slide show" evidences such information should have been included in the LRA, and have not been left to be brought to the attention of the ASLB by Petitioner's discovery. Petitioners have raised a concise statement of fact, have raised material issue of law and fact that are in dispute, and are within scope, therefore Contention 33 is admissible. CONTENTION 34: Petitioners contend that accidents involving the breakdown of certain in scope parts, components and systems are not adequately addressed Entergy's LRA for Indian Point 2 and Indian Point 3. Petitioners contend that accidents involving the breakdown of certain equipment, parts, components, and systems are not adequately addressed in Entergy's LRA for Indian Point Units 2 and 3. (Pet. at p. 226). Specifically, Entergy's LRA fails to include aging management of the following, including but not limited to, boric acid corrosion, internal bolting, fie1 rod control system, duty valve failure, briny reactor water coolant environment, cable degradation, cumulative effect of constant exposure of the reactor vessel to neutron irradiation
and reduction in the fracture toughness and ductility of the PWR internal, refurbishment issues, primary water stress corrosion cracking, fatigue of metal components, heat and shell exchange replacement, accident analysis, digital upgrade of the rod control logic and power cabinets, risks of low temperature flow accelerated corrosion, industry wide problem of securing hand contingency spare parts, shortage of engineers with knowledge of pools, premature failure of containment coatings, increasing obsolescence issues of original equipment, reactor vessel issues, and cables. (Pet. at pp. 226-233). Entergy's LRA does not address certain accidents associated with breakdown of components. Based upon Mass v. United States precedence and the rules that the burden indicated as the petitioner's actually is out of context. The scope meets the threshold of admissibility any of the following: (a) Aging of the plant structures, systems, and components will be not sufficiently managed - where one cannot argue they are already sufficiently addressed within the current license basis. (b) review of time limited aging evaluations (c) environmental impact analysis that is clearly plant specific and not generic, (for example, severe accident risk is out of scope but alternatives to severe accidents are in scope)
(d) anything else that one can prove is only possible during the renewal period but not during the current license period. Significantly, expert opinion on this particular topic given Mr. Witte's known expertise in configuration management which was not challenge by expert witness rebuttal. The contention is admissible under the six part test. NRC regulations require that an applicant provide a complete application under the Section 54.29. Entergy's LRA does not address certain accidents associated with breakdown of components. Petitioners have sufficiently pled sufficient information to show a genuine dispute. 10 C.F.R. 6 2.309(f)(l). Specifically, a contention "must include references to specific portions of the application ... that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioner's belief." Although a petitioner must demonstrate that a "genuine dispute exists" at the contention admissibility stage, it need not demonstrate that it will prevail on the merits. See 54 Fed. Reg. at 33,170-71. Similarly, "at the contention filing stage the factual support necessary to show that a genuine dispute exists need not be in
affidavit or formal evidentiary form and need not be of the quality necessary to withstand a summary disposition motion." See 54 Fed. Reg. at 33,170-71. Entergy counters that the contention is beyond the scope of renewal proceedings and that it is not particular, or specific regarding where the application is incomplete. (Entergy brief at p. 106). The NRC Staff add that the contention is not supported. (NRC brief at p. 77). The contention is admissible under the six part test. NRC regulations require that an applicant provide a complete application under the Section 54.29. Petitioners have sufficiently pled sufficient information to show a genuine dispute. 10 C.F.R. 8 2.309(f)(l). Specifically, a contention "must include references to specific portions of the application ... that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioner's belief." Although a petitioner must demonstrate that a "genuine dispute exists" at the contention admissibility stage, it need not demonstrate that it will prevail on the merits. See 54 Fed. Reg. at 33,170-71. Similarly, "at the contention filing stage the factual support necessary to show that a genuine dispute exists need not be in affidavit or formal evidentiary form and need not be of the quality necessary to withstand a summary disposition motion." See 54 Fed. Reg. at 33, 170-71. The recent report provided by
the Office of the Inspector General regarding deficiencies in licensing renewal proceedings support with question .the substance of this contention. (Exhibit N). Petitioners assert that anything that is currently capable of being described in sufficient detail should be. Programs for aging management, by contract law can be and should be precisely articulated- Entergy proffers no rationale for delaying disclosure. Examples of such programs include Flow Accelerated ~ o r r o s i o n ~ ~ , Equipment qualification28,buried piping29,and in particular, the undisclosed refurbishment plan for the reactor headsg0. Contention 35 Wi.thdrawn. 27 For Flow Accelerated Corrosion, simply referring to an approved program such as NSAC 202L Rev 2 is not specific. There are examples of plants were they credit EPRIs industry accepted program, but fail to adequately implement it. Inspection frequency is not specified, but a critical parameter. Actual program scope, inspection frequency, grid selection, and corrective action to identified pipe thinning is not described. This leaves is public in the dark. Aging of piping will lead to numerous unforeseen accident scenarios if not carefully managed. No one predicted that a pipe rupture of an 18 inch line in 1986 first led to four immediate fatalities, then, loss of fire protection controls, and spurious activation of numerous electrically controlled devices included dumping of entire C 0 2 fire protection systems, inoperability of security doors, locking workers into rooms without immediate means to escape, and finally, threatened the safety of reactor operators when C 0 2 drifted or leaked into the unit 2 control room. The causal events where not predicted nor predicable. The risk and PRA associated with this event is being debated after 2 1 years. 28 See contention 27. 29 see contention 35
Contention 36: FAC In this contention, Petitioners claim that Entergy's program does not include an adequate plan to monitor and manage aging of plant piping due to flow-accelerated corrosion of during the extended period of operation. Management of FAC fails to comply with 10 C.F.R. 54.2 1.(a)(3).205 Section 54.2 1(a)(3) which requires that, for each structure and component identified in Section 54.21(a)(l), the Applicant "demonstrate that the effects of aging will be adequately managed so that the intended hnction(s) will be maintained consistent with the CLB for the period of extended operation." The contention and its related basis is related upon three things. These are the program as described in the LRA, which the applicant credits as being affective and in place today, (2) the record of the so called effective program to date, and (3) expert opinion provided by Declaration on Ulrich Witte. The issue of the efficacy of the checwork program is challenged. Efficacy can only be confirmed by actual current performance as examined its use at Indian Point. The program is designed as essentially a trending tool, and based upon trending of wear, then provides selection points for inspection of wall thinning events. Entergy has since about 2005 implemented a generic procedure a Exhibit Q) and has not had success in this program being effective. Examples of 30 See contention regarding reactor head replacement.
failures of the implementation are provided in Exhibit R. We maintain that the applicant 's program is deficient because it, and there is insufficient benchmarking of the program to correlate a mechanistic examination with an empirical analysis. In this same vein, Petitioners further claim that Entergy has failed to demonstrate "a good track record with use of CHECWORKS." We note with interest that this same program implemented another Entergy plant currently in renewal proceedings, and was not just admitted, but also denied motion for summary disposition only months ago. See Exhibit S. We fundamentally take issue as to the contention meeting the six part test, and the facts we bring clearly show a genuine dispute with the applicant. Finally, we note that yet again vague indescript summary of the program provided in the LRA, and that .the LRA "fails to specify the method and frequency of component inspections or criteria for component repair or replacement." We assert that the program provided in the LRA leaves the petitioner forced to conclude that there Entergy has no meaningful program to address FAC aging phenomena." This content is admissible because it establishes a genuine dispute with the applicant on a material issue of law or fact, and without question raises Issues within the Scope of this Proceeding. Finally the expert, Mr. Witte, is also the expert on the faulted identical program (See Exhibit T) scheduled for trial at Vermont Yankee this summer.
Therefore, while Petitioners note the NRC Staff criticism of Mr. Witte, it should not be considered. (NRC Staff brief at pp. 85-86). Despite Entergy's and the NRC Staffs assertion of admissibility, (Entergy brief at pp 1 13- 1 18) based on the foregoing, contention 36 is admissible. CONTENTION 37 Withdrawn. CONTENTION 38: Microbial action potentially threatens all the stainless steel components, pipes, filters and valves at Indian Point (issue 99 of EIS). Entergy does not deny the microbial corrosion issues raised by Contention
- 38. The seriousness of the eyewitness account should not be ignored by the ASLB, especially in light of the recent corrosion issues with the new, yet to be installed siren system, in which the manufacture has claims that the corrosive nature of the Hudson River has caused the unexpected corrosion. Microbial corrosion was omitted from the LRA and therefore Entergy does not have an aging management program to address this during the 20 year license period.
In Contention 38 Petitioners have raised issues of fact that are in dispute and should be admitted and heard. CONTENTION 39
Withdrawn. CONTENTION 40 Withdrawn because it is a duplicate of Contention 14. CONTENTION 41: Entergy's high level, long-term or permanent, nuclear waste dump on the bank of the Hudson River. Contention 4 1 meets the six part test for admissibility. The passive components, structure and systems of the Interm Storage Fuel Installation (ISF) for spent he1 storage is site specific and within scope. At Diablo Canyon, the ASLB panel acknowledged that the petitioners had submitted substantial evidence that the proposed ISFSI presents a significant safety issue, The proposed expansion of the spent fuel storage facility is inherently risky. Especially if sited in a seismically active area. Like Indian Point both the power generation and spent he1 storage facilities at Diablo Canyon present targets for cataclysmic acts of terrorism and sabotage. As such, the safety and environmental risks inherent in the proposed expansion of DCPP's spent fuel storage facility must - to the extent consistent with plant security - be evaluated carefully and publicly Additionally Entergy has not demonstrated that it is financially able to cover the costs of constructing, operating and decommissioning the proposed ISFSI which is necessary in during the 20 year new license period, due to the additional high level
radioactive waste that will be produced during that time. Therefore the environmental impacts of the ISFI are within scope, yet Entergy does not identify an aging management program to handle such impacts. The 2,000,000 pounds of high level radioactive waste is currently maintained on site. During the proposed 20 year additional license approximately 1,000,000 pounds will be added to that, yet there a solution to disposal of this waste does not exist. This is an issue of fact that must be raised and fully adjudicated during the relicensing proceedings, as it directly impacts the aging management of .the plant and the environmental impact of the site. In fact the proposed license period increases the long term waste storage by 50%. Petitioners have submitted the expert testimony of Gordon Thompson with regard to Robust Spent Fuel Storage. The Waste Confidence Rule was written in 1995 many years prior to the contemplation of dry cask storage as the only option for increasing spent fuel. Therefore the dry cask storage is an in scope component necessary to the new license term, and therefore site specific issues caused by the new use of Indian Point cite for long term high level radioactive was storage, will be carried into the proposed new license period. Contentions 41 raises particular issues of law and fact that are within scope and are in dispute, and which Entergy failed to address in the LRA; thus Contention 41 is admissible and should be heard.
CONTENTION 42: Dry Cask Storage (Issue 83) The Independent Spent Fuel Storage Installation (SFSI ) being constructed at Indian Point for the purpose of holding the overflow of nuclear waste on site for decades, and probably more than a century, must be fully delineated and addressed in the aging management plan and, moreover constitutes an independent licensing issue. Contention 42 meets the six part test for admissibility. The passive components, structure and systems of the dry cast storage are site specific and within scope. The Waste Confidence Rule was written in 1995 many years prior contemplation of dry cask storage as the only option for increasing spent fiel. Therefore the dry cask storage is an in scope component necessary to the new license term, and therefore site specific issues caused by the new use of Indian Point cite for long term high level radioactive was storage, will be carried into the proposed new license period. The specificity of the need for additional dry cask storage as set forth in this Contention is based on conference with staff and is not speculation as Entergy proposed.
Once Petitioner is accepted as a party we will apply for a waiver to consider this issue as a Category 2, site specific issue. At Diablo Canyon the ASLB panel acknowledged that the petitioners had submitted substantial evidence that the proposed ISFSI presents a significant safety issue, The proposed expansion of the spent fuel storage facility is inherently risky. Especially if sited in a seismically active area. Like Indian Point both the power generation and spent fuel storage facilities at Diablo Canyon present targets for cataclysmic acts of terrorism and sabotage. As such, the safety and environmental risks inherent in the proposed expansion of DCPP's spent he1 storage facility must - to the extent consistent with plant security -- be evaluated carefully and publicly. Additionally Entergy has not demonstrated that it is financially able to cover the costs of constructing, operating and decommissioning the proposed dry cask storage required to continue operation of .the plant for an additional 20 year new license period. Therefore the environmental impacts of the dry cask storage are within scope, yet Entergy does not identify an aging management program to handle such impacts. The 2,000,000 pounds of high level radioactive waste is currently maintained on site. During the proposed 20 year additional license approximately 1,000,000 pounds will be added, yet there no longer term solution to disposal of
this waste. This is an issue of fact and law that must be raised and fully adjudicated during the relicensing proceedings, as it directly impacts the aging management of the plant and the environmental impact of the site. In fact the proposed license period increases the long term waste storage by 50%. The current dry cask pad is inadequate to hold the additional waste and yet the Applicant's LRA fails to consider this and address the aging management program for this additional waste. Since long term and potential permanent dry cask storage was not a contemplated use of the site when it was initially sited, before this use can be credited and carried into the proposed additional 20 year license term a full review and evaluation of the site, including public comment is required. This is new information and the reality of dry cask storage on site for an unknown term brings it within scope as it is a major component that must be included and must be reviewed as site specific material issue of fact. Contentions 42 raises particular, concise material issues of law and fact of components, and systems that are passive and necessary for the continued operation of Indian Point, which Entergy failed to address in it's LRA. Such material issues of law and fact are in dispute, thus Contention 42 is admissible and should be heard.
Contention 43: The closure of Barnwell will turn Indian Point into a low level radioactive waste storage facility, a reality the GEIS utterly fails to address, and a fact which warrants independent application with public comment and regulatory review. This Contention satisfies the six part test. Entergy does not contest that in scope nature of this issue. The new information that Barnwell will no longer be accepting low- level radioactive waste from Indian Point is not addressed in the LRA, nor is an aging management program identified to handle low level waste. The Applicant's failure to include this material issue of fact in the LRA does not excuse it from being a material issue that is in dispute. The Applicant has the obligation to submit an LRA that addresses aging management issues, to fail to address the handling of low level waste disposal for the 20 year license period at Indian Point, is evidence of the incompleteness of .the LRA. The LRA is mute on this. Because the Applicant omitted low level waste management form the LRA does not prevent it from being a material issue of dispute. The Applicant's attempt to characterize Petitioner's contention as speculative, and place in question the industry known reality that Barnwell is closing its doors to Indian Point in 2008, is evidence of the Applicant failure to provide necessary information. Low level waste management is an essential in
scope systems for which a hnctional aging management plan is required and planned for during the superseding license period. Since low level waste storage was not a contemplated use of the site when it was initially sited, before this use can be credited and carried into the proposed additional 20 year license term a full review and evaluation of the site, including public comment is required. Staffs quote regarding Ocennee only deals with "high level waste." Low level waste management is an essential in scope systems required to be function and planned for during the superceding license period. The LRA is mute on this. Because it is omitted from the LRA, as if it doesn't exist, or as if there was a plan to dispose of the waste does not prevent it from been a material issue of dispute. Staff does not refute the fact that Barnwell is closing and that there is no plan to dispose of the low level waste. Therefore Contention 43 raises an issue of fact that is within, and thus, is admissible. CONTENTION 44: The Decommissioning Trust Fund is inadequate and Entergy's plan to mix funding across Unit 2 , l and 3 violates commitments not acknowledged in the application and 10 CFR rule 54.3. In light of the massive underground leaks of strontium, tritium and cesium c Indian Point is one of the dirtiest sites in the country. Additionally, Indian Point is
location in the middle of some of the most expensive real estate in the nation. As such, the adequacy of the decommissioning funds is a material issue and is relevant to the ASLB's approval of a 20 year license extension. Petitioners contend that the decommissioning funds have not been adjusted to take into account the evidence of these leaks as report in the January 7,2007 GZA report. Additionally the funds have not been recalibrated on decommissioning costs derived from 60 years of non-linear growth in contamination. The applicant does not present concrete evidence that it has adequate fbnds to clean up the site. Applicant also claims that the decommissioning is not related to the extended operation of the plant. Petitioners assert Applicant's statement is short sighted and self serving, when it is an issue of fact the recalibrated decommissioning costs must be adjusted from 60 years of non-linear growth in contamination. Entergy's claim that 50.75 offers adequate monitoring and oversight of the adequacy of the decommissioning funds is refute when the calculations of the biennial reports evidence that the decommissioning funds have only been adjusted by 1% a year, rather adjusted as required to the cost of living increases at the rate of 3% a year. This short fall, extended over the 20 year proposed additional license period will cause disparity in 2035 dollars by approximately 40%, which would substantially reduce Entergy's ability to properly
and fully decommission the plant. A mismanaged fund is the same as no management at all. Entergy's position contradicts Commission's determination in prior action that WestCAN can raise adequacy of Decommissioning Fund in Relicensing proceedings. (Pet. at pp. 293) (NRC Staff brief at p. 101). This argument by Entergy is one of convenience and attempts to ,thwart Petitioner's ability to address a substantive issue of aging management a system necessary for the safe decommissioning of the plant. Entergy's claim that the only time to raise 'this is after the LRA is approved greatly reduces and limits Petitioner's right to the point of making Petitioner's concerns ineffectual. The record in CLl-00-22 is clear, that the Commission refused to hear issues of the adequacy of the decommissioning fund in the license transfer application and said that it should be raised under relicensing. Entergy alleges that the Commission was disingenuous in making such a statement and really never meant that decommissioning could be raised under relicensing Under Entergy's assertion the Commission was only using it as a ruse to prevent Petitioners from raising the adequacy of decommissioning fund in either meaningful proceeding Petitioner's do not accept that the Commission would act in such an unjust manner, and therefore Entergy's assertion much be rejected.
The decommissioning h n d is not only a current license issues, but pertains to and is carried into the superseding license period. The NRC regulations require that an adequate decommissioning find be available prior to the issuance of a license. Staffs position contradicts Commission's determination in prior action regarding license transfer of Indian Point 3 where it stated that WestCAN can raise adequacy of decommissioning fund during Relicensing proceedings. (P 293 of our Petition or p 101 of Staff response). This argument by Staff is one of convenience and attempts to thwart Stakeholders rights to address a substantive issue. Staff claims that the only time to raise this is after the LRA is approve is self serving and would cause Petitioner's rights to be greatly limited and made ineffectual. Decommissioning in not only a current license issue, but pertains to and is carried in to the superseding license period. Contention 44 is pled with specificity and raises material issues disputing fact and law regarding the adequacy of the decommissioning required under 10 C.F.R. 54.3 and 10 C.F.R. 50.75 in order for approval of the proposed 20 year license.
Contention 45: Non-Compliance with NYS DEC Law - Closed Cycle Cooling "Best Technology Available" Surface Water Quality, Hydrology and Use (for all plants). This contention is within scope, and Entergy does not assert otherwise. Entergy's assertion that until the matter pending in New York with respect to Entergy's discharge permit is resolve with finality, the NRC is constrained to assess the pending LRA on the basis of the currently- permitted system, is inaccurate. NRC staff has acknowledged that without a discharge permit the NRC cannot grant a operating license to Entergy, and New York State DEC has already determined that a retrofit with close cycle cooling is required to meet EPA standards. Thus, Petitioner's assert that until the matter is resolved there is a matter of law in dispute that is specific and particular, and clearly meets the threshold of admissibility and should be heard. Finally until the matter pending in New York with respect to Entergy's discharge permit is resolved with finality, the NRC is constrained to assess the LRA on the basis of the currently permitted system" seems dead wrong for a basis for not admitting the contention. The opposite should be argued. Until the matter is resolved we have a matter of law in dispute that is specific and particular, and clearly meets the threshold of admissible. CONTENTION 46: Omitted
Contention 47: Cancer rates surrounding the plant: The Environmental Report Fails to Consider the Higher than Average Cancer Rates and Other Health Impacts in Four Counties Surrounding Indian Point. Entergy claims "other than unsupported speculation regarding releases in the future", however Petitioners assert that the new information regarding the projected future radiological leaks provided in the leak study by GZA for Entergy of January 7,2008, must be incorporated into the EIS with regard to projected future leaks and the Cumulative site specific health issues. Petitioners have cited New York State Cancer zip code studies as evidence that thyroid cancer rates in the two miles surrounding Indian Point is 70" higher than areas further away. This is clear evidence that the health impacts of Indian Point currently and credited into the proposed new licensing period is not small, but significant and therefore cannot be considered a Category 1 issue. Entergy fails to challenge Petitioner expert witness, Joseph Mangano with expert rebuttal, and only cites unrelated and distinct studies. Therefore Entergy's challenge to Mr. Mangano's declaration is without basis and must be dismissed. Once Petitioner is accepted as a party we will apply for a waiver to consider this issue as a Category 2, site specific issue. Thus, Contention 47 raises material issues of law and fact that are dispute and therefore is admissible.
CONTENTION 48: Environmental Justice - Corporate Welfare Petitioner's reassert that the issue of fair trade is a material issue of fact and law that is relevant to the proposed 20 year license. Entergy and the nuclear industry are spending billions of dollars, including millions of taxpayer dollars, to promote false propaganda about how inexpensive, renewable and clean. The Commission may use it's discretion to consider the true carbon foot print of nuclear power from mining to decommissioning, which is comparable to coal fire plants and to require a comparative study of the true costs, specifically the tax dollars used to support nuclear vs. any other energy technology in order to even the playing field. Large communities of sustenance fisherman are ingesting and feeding life threatening tritium and strontium laced fish and shellfish to their families caused by the ongoing leaks at Indian Point. These leaks will continue during the proposed 20 year license period, rather than decommissioning and cleaning up the site to prevent such contamination. In accordance with 10 C.F.R. 2.309(f)(3) and Consolidated Edison Co. (Indian Point, Units 2 & 3), CLI 19, 54 NRC 109, 132 (2001), where both Petitioners independently established standing, the Presiding Office has the discretion to permit Petitioners to adopt the others' contention early in the
proceeding. Petitioners join and adopt Cleanvater's contention number on this issue. Once Petitioner is accepted as a party we will apply for a waiver to consider this issue as a Category 2, site specific issue. In accordance with 10 C.F.R. 2.309(f)(3) and Consol. Edison Co. (Indian Point, Units 2 & 3), CLI-0 1- 19'54 NRC 109, 132 (200 1) where both Petitioners have independently established standing, the Presiding Officer may permit Petitioners to adopt the others' contention early in the proceeding. Petitioners join and adopt Cleanvater's, and any other parties, contention(s) on this issue. Contention 49: Global warming- Withdrawn CONTENTION 50: Replacement Options: Stakeholders contend that the energy produced by Indian Point can be replaced without disruptions as the plants reach the expiration dates of their original licenses. Applicant have failed to consider reasonable alternatives for 21 58 MW of electricity, as required by 10 CFR 5 1. They on consider solar and wind as options to carry base load, and totally ignore the stability of geothermal and wave generated power. Additionally they incorrectly repeat in their answer that answer solar and wind are not always available and is speculative. Energy's refusal to acknowledge the ability of alternative energy to replace Indian Point is both short
sighted and self-serving. They ignore current state of art technologies, including nanosolar and small wind generation which produces energy on cloudy and rainy days, and on days with little or no wind. The failure of the Applicant and Staff to consider reasonable replacement energy is evidenced a narrow and closed minded approach that denies the current feasibility sustainable energy. The Levitan Associates report and the Academy of Science report sponsored by Congresswoman Nita Lowey serve as expert reports that support Petitioners reasonable approach to replacement energy as a reasonable alternative to Indian Point continued operation during the proposed 20 year license period. Simply if the incentives and tax subsidies granted to the nuclear industry and Entergy specifically was used to build sustainable energy systems the energy produced by Indian Point could be completely replaced. This is not speculative but factual. Entergy's failure to provide a comprehensive study of replacement energy is inadequate and self serving. Entergy's conclusionary statement that "alternative simply cannot with current technology, provide the necessary amount of baseload power" is misleading and unsupported by expert witness rebuttal. Communities in the United State such as Sacramento have closed nuclear plants and have produced more than sufficient replacement energy, as well as created new jobs and
economies. Energy's failure to present reasonable alternative fails to hlfill the requirements of 10 CFR 5 1 and is complete inadequate. Thus, contention 50 meets the criteria for admissibility and must be admitted. CONTENTION 50-1: Failure to Address Environmental Impacts of Intentional Attacks & Airborne Threats Entergy's failure to address the environmental impacts and costs of intentional attacks and airborne threats of terrorism is unjustified especially at Indian Point the uniquely most attractive and vulnerable terrorist targets in the nation. The fact that the 911 1 terrorist flew directly over Indian Point and considered it as a target prior to settling on the World Trade Center causes this issue to be germane to the relicensing proceedings. For the Commission not to require the Applicant to comply with the Ninth's Circuit's remand in the Diablo Canyon proceeding, is unreasonable in relicensing proceedings for Indian Point. The Commission refbsal not to require the consideration of the impacts of a terrorist attack is a failure of the Commission to up hold their organizing mandate to adequately protect the public health and safety in violation of the Administration Procedure Act. Therefore, this Contention raises material issues of fact and law that are admissible and should be heard.
Contention 51: Inability to Access Proprietary Documents Impedes Adequate Review of Entergy Application for License Renewal of IP2 LLC and IP3 LLC. Entergy claims that Petitioners assertion that proprietary information was withheld is incorrect. Petitioner's reiterate with specificity that the documents Entergy failed to provide are: the CLB including all modifications, exemptions, exceptions and deviations, and additions to such commitments over the life of the license, and appendices thereto; orders, license conditions, exemptions, exceptions and deviations; and technical specification and extensive redactions in the FSAR, UFSAR, including leak reports and leak maps that were shown at public meetings, but specifically denied to Susan Shapiro and other Petitioners, upon multiple requests to Entergy and the NRC dated 6/29107,7/6/07 and 9/4/07 (attached hereto). Entergy claims that Petitioners never contacted Entergy, when in fact Susan Shapiro had attempted through numerous communications attached hereto to obtain such information. NRC representative Richard Barkley of the NRC has told FUSE that the maps are proprietary property of Entergy. They will not become available until after the NRC receives Entergy's leak report later this fall, which makes the October 1,2007 deadline to file Intervener Petitions highly prejudicial in favor of the licensee at the expense of the Stakeholders and other citizens whose best interests are supposed to be served by this Federal regulatory body.
Clearly, these leak maps and the upcoming leak report contain vital information directly related to potential environmental impacts and infrastructure aging issues, and consequently Entergy's LRA. The maps are necessary for Stakeholders to file properly and fully documented Intervener contentions. In fact, the NRC used these maps to discuss the leaks in public meetings with representatives of Riverkeeper, Clearwater and IPSEC. In addition these maps, minus the Cesium map, were displayed in the lobby of a public meeting, however copies were unavailable. Documents that have been made unavailable under the claim of proprietary information denying Petitioners their constitutional rights to redress, as required in the guidelines of the NRC Code of Regulations meant to protect human health and safety. Therefore, this contention must be admitted.
Attachment 2 to NRC Staff's Response of March 18,2008 February 16,2008, 12:53 AM, E-mail Banner, Letter and Certificate of Service Accompanying WestCAN et al's 12:53 AM Reply Brief
Sherwin Turk From: Leslie Vincent on behalf of OGCMailCenter Resource Sent: Tuesday, March 18, 2008 2:29 PM To: Sherwin Turk
Subject:
FW: WestCAN reply brief to Entergy's and Staffs Response to Petition to Intervene Attachments: WestCAN-Reply-Brief-Final-+.zip From: PaIisadesart@aol.com [maiIto:Palisadesart@aol.com] Sent: Saturday, February 16, 2008 12:53 AM To: Hearinu Docket; ASLBP-HLW-~-n Resource; OCAAMAIL Resource; jmatthews@morganlewis.com; vzabielski@morganlewis.com; annette.white@morganlewis.com; sarahwagneresq@gmail.com; Leslie Vincent; ksutton@morganlewis.com; Zabelle.Zakarian@spiegelmcd.com; Palisadesart@aol.com; Tom Ryan; OGCMailCenter Resource- Christine Pierpoint; martin.oneill@morganlewis.com; OCAAMALL Resource; Kenny Nguyen; Evangeline Ngbea; mlemoncelli@morganlewis.com; rjkoda@earthlink.net; Emile Julian; Nancy Greathead; Rebecca Giitter; Ron Deavers; Ad ria Byrdsong; sburdick@morganlewis.com; pbessette@morganlewis.com;Andrew Bates
Subject:
RE: WestCAN reply brief to Entergy's and Staffs Response to Petition to Intervene Offices of Assemblyman Richard Brodsky Legislative Office Building, Room 422 Albany, New York 12248 February 15, 2008 Office of the Secretary U.S. Nuclear Regulatory Committee Sixteenth Floor One White Flint North 11555 Rockville Pike Rockville, Maryland 20852 Re: Indian Point License Renewal. Docket No. 50-2471286-LR To Whom It May Concern: Enclosed please find Petitioners Westchester Citizen's Awareness Network (WestCAN), Rockland County Conservation Association, Inc. (RCCA), Public Health and Sustainable Energy (PHASE), Sierra Club - Atlantic Chapter (Sierra Club), and New York State Assemblyman Richard L. Brodsky Reply Brief in response to the NRC Staff and Entergy. Exhibits are being sent by courier. Sincerely, Is1 Sarah L. Wagner The year's hottest artists.on the red carpet at the Grammy Awards. Go to AOL Music. (http://music.aol.com/grammys?NCID=aolcmp00300000002565)
Offices of Assemblyman Richard Brodsky Legislative Office Building, Room 422 Albany, New York 12248 February 15,2008 Office of the Secretary U.S. Nuclear Regulatory Committee Sixteenth Floor One White Flint North 1 1555 Rockville Pike Rockville, Maryland 20852 Re: Indian Point License Renewal, Docket No. 50-2471286-LR To Whom It May Concern: Enclosed please find Petitioners Westchester Citizen's Awareness Network (WestCAN), Rockland County Conservation Association, Inc. (RCCA), Public Health and Sustainable Energy (PHASE), Sierra Club - Atlantic Chapter (Sierra Club), and New York State Assemblyman Richard L. Brodsky Reply Brief in response to the NRC Staff and Entergy. Exhibits are being sent by courier. Sincerely, Sarah L. Wagner
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) 1 ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-2471286-LR (Indian Point Nuclear Generating) ) Units 2 and 3)
)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Reply of WestCAN et al. dated February 15, 2008, have been served upon the following by electronic mail where email address provided, this 15th day of February, 2008 and a signed original and two paper copies have been deposit with a courier service on the Office of the Secretary, U.S. Nuclear Regulatory, Sixteenth Floor, One Flint North, 11555 Rockville Pike Rockville, Maryland 20852, and a courtesy paper copy has been sent to Staff: Lawrence G. McDade, Chair Office of Commission Appellate Adjudication Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Mail Stop - T-3 F23 Mail Stop: 0-16G4 U. S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, D.C. 20555-0001 Email: OCAAMAIL@nrc.nov E-mail: LGMl @nrc.gov Dr. Richard E. Wardwell Office of the Secretary Atomic Safety and Licensing Board Panel Attn: Rulemaking and Adjudications Staff Mail Stop - T-3 F23 Mail Stop: 0-16G4 U. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, D.C. 20555-0001 E-mail: REW@nrc.gov Email: HEARlNGDOCKET@nrc.gov Dr. Kaye D. Lathrop Zachary S. Kahn, Law Clerk Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel 190 Cedar Lane E. Mail Stop - T-3 F23 Ridgeway, CO 81432 U. S. Nuclear Regulatory Commission E-mail: KDL2@nrc.aov Washington, D.C. 20555-0001 Email: ZXKl @nrc.gov Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Mail Stop - T-3 F23
Washington, D.C. 20555-0001 William C. Dennis, Esq. Manna Jo Greene Assistant General Counsel Hudson River Sloop Clearwater, Inc. Entergy Nuclear Operations, Inc. 112 Little Market Street 440 Hamilton Avenue Poughkeepsie, NY 12601 White Plains, NY 10601 Email: Mannaio@clearwater.orq Email: wdennist3enterqv.com Sherwin.turk@nrc.qov Beth.mizuno@,nrc.aov Kathryn M. Sutton, Esq. Justin D. Pruyne, Esq. Paul M. Bessette, Esq. Assistant County Attorney Martin J. O'Neill, Esq. Office of the Westchester County Attorney Morgan, Lewis & Bockius, LLP 148 Martine Avenue, 6thFloor 1111 Pennsylvania Avenue, NW White Plains, NY 10601 Washington, D.C. 20004 E-mail: jdp3@westchesterqov.com E-mail: ksutton@mornanlewis.com E-mail: pbessette@mornanlewis.com Daniel E. O'Neill, Mayor E-mail: martin.o'neill@moraanlewis.com James Seirmarco, M.S. Village of Buchanan Michael J. Delaney, Esq. Municipal Building Vice President - Energy Department Buchanan, NY 10511-1298 New York City Economic Development E-mail: vob@bestweb.net Corporation (NYCDEC) 110 William Street John J. Sipos, Esq. New York, NY 10038 Charlie Donaldson, Esq. E-mail: mdelanev@,nycedc.com Assistants Attorney General New York State Department of Law John LeKay Environmental Protection Bureau FUSE USA The Capitol 351 Dyckman Street Albany, NY 12224 Peekskill, NY 10566 E-mail: john.si~os@oan.state.n~.us E-mail: fuse usa@vahoo.com Arthur J. Kremer, Chairman Joan Leary Matthews, Esq. New York Affordable Reliable Electricity Senior Attorney for Special Projects Alliance (AREA) New York State Department of 347 Fifth Avenue, Suite 508 Environmental Conservation New York, NY 10016 Office of the General Counsel E-mail: aikremer@rmfp.com 625 Broadway, 1 4 ' ~Floor kremeraarea-alliance.org Albany, NY 12233-1500 E-mail: jlmatthe@qw.dec.state.ny.us Diane Curran, Esq.
Harmon, Curran, Spielberg & Eisenberg, LLP 1726 M Street, NW, Suite 600 Washington, D.C. 20036 E-mail: dcurran@harmoncurran.com Robert Snook, Esq. Victor Tafur, Esq. Office of the Attorney General Phillip Musegaas, Esq. State of Connecticut Riverkeeper, Inc. 55 Elm Street 828 South Broadway P.O. Box 120 Tarrytown, NY 10591 Hartford, CT 06141-0120 E-mail: phillip@riverkeeper.org E-mail: robert.snook@po.state.ct.us vtafur@riverkeeper.orq Daniel Riesel, Esq. Thomas F. Wood, Esq. Ms. Jessica Steinberg, J.D. Sive, Paget & Riesel, P.C. 460 Park Avenue New York, NY 10022 E-mail: driesel@sprlaw.com Elise N. Zoli, Esq. jsteinberg@.s~rlaw.com Goodwin Procter, LLP Exchange Place Ms. Nancy Burtop 53 State Street 147 Cross Highway Boston, MA 02109 Redding Ridge, CT 06876 E-mail: ezoli@,aoodwinprocter.com E-mail:]nancvburtonct@aol.com m Kimberly A. Sexton Janice A. Dean Counsel for NRC Staff Assistant Attorney General U.S. Nuclear Regulatory Commission Office of the Attorney General Office of the General Counsel 120 Broadway, 26thFloor Washington, D.C. 20555 New York, NY 10271 E-mail: kimberly.sexton~nrc.qov E-mail: janice.dean@oaq.state.nv.us Christopher C. Chandler U.S. Nuclear Regulatory Commission Office of the General Counsel Washington, D.C. 20555 E-mail: christopher.chandler@nrc.gov m Sarah L. Wagner, Esq.
Attachment 3 t o NRC Staff's Response of March 18,2008 (a) Letter from WestCAN, et al. Transmitted by WestCAN via DHL Courier, Received by OGC Mailroom on February 19,2008, Accompanyinn Paper Copy of WestCAN et al's Reply Brief, and (b) E-mail message from Sarah Wagner t o Sherwin Turk, Transmitted at 2:41 PM on March 5,2008.
THE ASSEMBLY STATE OF NEW YORK ALBANY RICHARD L. BRODSKY Assemblyman 92" District CHAIRMAN Committee on Westchester County Corporations. Authorities and Commissions February 15,2008 Office of the Secretary U.S. Nuclear Regulatory Committee Sixteenth Floor One White Flint North 11555 Rockville Pike Rockville, Maryland 20852 Re; Indian Point License Renewal, Docket No. 50-247/286-LR To Whom It May Concern: Enclosed please find Petitioners Westchester Citizen's Awareness Network (WestCAN), Rockland County Conservation Association, Inc (RCCA), Promoting Health and Sustainable Energy, Inc. (PHASE), Sierra Club - Atlantic Chapter (Sierra Club), and New York State Assemblyman Richard L. Brodsky Reply Brief in response to the NRC Staff and Entergy. Also enclosed is the original signed hard copy of the Reply, the Certificate of Sewice, Table of Contents, Exhibits. A courtesy CD-ROM is being sent separately. As you are aware I was experiencing problems with the NRC's server as we discussed with Rebecca Gitter. We transmitted the document as a word file, but are concerned it may be corrupted, if it arrived at all. We transmitted an Adobe PDF file via another office which we believe successfully went to all the parties. Therefore please delete the first transmittal, the "word document", and consider the Abode PDF file the Reply. Sincerely, Sarah L. Wagner 8 2 9 ALBANY OFFICE. Room 422, Leglslatlve Off~ceBuilding, Albany, New York 12248, (518) 455-5753 3 DISTRICT OFFICF. 5 Wect hdaln ctrpoi cllrtnqnc EI...-J--A rr-... \I-.*. . n r - r I-.. A . -.- -
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-2471286-LR (Indian Point Nuclear Generating) 1 Units 2 and 3) 1 CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Reply of WestCAN et al. dated February 15, 2008, have been served upon the following by electronic mail where email address provided, this 15th day of February, 2008 and a signed original and two paper copies have been deposit with a courier service on the Office of the Secretary, U.S. Nuclear Regulatory, Sixteenth Floor, One Flint North, 11555 Rockville Pike Rockville, Maryland 20852, and a courtesy paper copy h a s been sent to Staff: Lawrence G. McDade, Chair Office of Commission Appellate Adjudication Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Mail Stop - T-3 F23 Mail Stop: 0-16G4 U. S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, D.C. 20555-0001 Email: OCAAMAIL@nrc.gov E-mail: LGMI @nrc.gov Dr. Richard E. Wardwell Office of the Secretary Atomic Safety and Licensing Board Panel Attn: Rulemaking and Adjudications Staff Mail Stop - T-3 F23 Mail Stop: 0-16G4 U. S. Nuclear Regulatory Commission U. S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, D.C. 20555-0001 E-mail: REW@nrc.gov Email: HEARINGDOCKET(Sirnrc.gov Dr. Kaye D. Lathrop Zachary S. Kahn, Law Clerk Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel 190 Cedar Lane E. Mail Stop - T-3 F23 Ridgeway, CO 81432 U. S. Nuclear Regulatory Commission E-mail: KDL2@nrc.qov Washington, D.C. 20555-0001 Email: ZXKl @nrc.qov Atomic Safety and Licensing Board Panel U. S. Nuclear Regulatory Commission Mail Stop - T-3 F23
Washington, D.C. 20555-0001 William C. Dennis, Esq. Manna Jo Greene Assistant General Counsel Hudson River Sloop Clearwater, Inc. Entergy Nuclear Operations, Inc, 112 Little Market Street 440 Hamilton Avenue Poughkeepsie, NY 12601 White Plains, NY 10601 Email: Mannaio@clearwater.orq Email: wdennis@.entergv.com Sher~in.turk~nrc.qov Beth.mizuno@nrc.aov Kathryn M. Sutton, Esq. Justin D. Pruyne, Esq. Paul M. Bessette, Esq. Assistant County Attorney Martin J. O'Neill, Esq. Office of the Westchester County Attorney Morgan, Lewis & Bockius, LLP 148 Martine Avenue, 6'h Floor 1111 Pennsylvania Avenue, NW White Plains, NY 10601 Washington, D.C. 20004 E-mail: jd~3@.westchester~ov.com E-mail: ksutton@moraanlewis.com E-mail: pbessette@morganlewis.com Daniel E. O'Neill, Mayor E-mail: martin.o'neill@mor4anlewis.com James Seirmarco, M.S. Village of Buchanan Michael J. Delaney, Esq. Municipal Building Vice President - Energy Department Buchanan, NY 10511-1298 New York City Economic Development E-mail: vob@bestweb.net Corporation (NYCDEC) 110 William Street John J. Sipos, Esq. New York, NY 10038 Charlie Donaldson, Esq. E-mail: mdelaney@nycedc.com Assistants Attorney General New York State Department of Law John LeKay Environmental Protection Bureau FUSE USA 'The Capitol 351 Dyckman Street Albany, NY 12224 Peekskill, NY 10566 E-mail: john.sipos@oaq.state.ny.us E-mail: fuse usa@vahoo.com Arthur J. Kremer, Chairman Joan Leary Matthews, Esq. New York Affordable Reliable Electricity Senior Attorney for Special Projects Alliance (AREA) New York State Department of 347 Fifth Avenue, Suite 508 Environmental Conservation New York, NY 10016 Office of the General Counsel E-mail: aikremer@rrnfp.com 625 Broadway, 1 4 ' ~Floor kremeraarea-alliance.org Albany, NY 12233-1500 E-mail: jlmatthe@~w.dec.state.nv.us Diane Curran, Esq.
Harmon, Curran, Spielberg & Eisenberg, LLP 1726 M Street, NW, Suite 600 Washington, D.C. 20036 E-mail: dcurran@harmoncurran.com Robert Snook, Esq. Victor Tafur, Esq. Office of the Attorney General Phillip Musegaas, Esq. State of Connecticut Riverkeeper, Inc. 55 Elm Street 828 South Broadway P.O. Box 120 Tarrytown, NY 10591 Hartford, CT 06141-0120 E-mail: phiIlip@riverkeeper.org E-mail: robert.snook@po.state.ct.us vtafur@riverkeeper.org Daniel Riesel, Esq. Thomas F. Wood, Esq. Ms. Jessica Steinberg, J.D. Sive, Paget & Riesel, P.C. 460 Park Avenue New York, NY 10022 E-mail: driesel@sprlaw.com Elise N. Zoli, Esq. jsteinber~@s~rlaw.com Goodwin Procter, LLP Exchange Place Ms. Nancy Burtop 53 State Street 147 Cross Highway Boston, MA 02109 Redding Ridge, CT 06876 E-mail: ezoli@~oodwinprocter.com E-mail: nancvburtonct@.aol.com Kimberly A. Sexton Janice A. Dean Counsel for NRC Staff Assistant Attorney General U.S. Nuclear Regulatory Commission Office of the Attorney General Office of the General Counsel 120 Broadway, 26thFloor Washington, D.C. 20555 New York, NY 10271 E-mail: kimberly.sexton@nrc.~ov E-mail: janice.dean@oan.state.nv.us Christopher C. Chandler U.S. Nuclear Regulatory Commission Office of the General Counsel Washington, D.C.20555 E-mail: christopher.chandler@nrc.qov
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,%"ah L. Wagner, Esq::'
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From: Sarah Wagner [sarahwagneresq@gmaiI.com] Sent: Wednesday, March 05, 2008 2:41 PM To : Sherwin Turk Cc: Bessette, Paul; Brodsky(2), Richard; Brodsky, Richard; Burton, Nancy; Curran, Diane; Delaney, Michael; Dennis, William; Greene, Manna; Hearing Docket; Kaye Lathrop; Kremer(2), Arthur; Kremer, Arthur; Lawrence McDade; LeKay, John; Marcia Carpentier; Matthews, Joan; Musegaas, Phillip; OCAAMAIL Resource; O'Neill, Daniel; O'Neill, Martin; Parker, John Louis; Pruyne, Justin; Richard Wardwell; Riesel, Daniel; Shapiro, Susan; Sipos, John; Snook, Robert; Steinberg, Jessica; Sutton, Kathryn; Tafur, Victor; Zachary Kahn; Zoli, Elise
Subject:
Re: Different versions of WestCAN's 2115/08 Reply
Dear Mr. Turk:
The Reply Brief which you received in the mail and in adobe is the Petitioners WestCAIV's Reply Brief. The email transmittal letter said to discard the potentially corrupt word file. The abode file is exactly the same as the printed version mailed on thel5th of February. Sincerely, Sarah L. Wagner On 3/5/08, Sherwin Turk <Shenvin.Turk@,nrc.aov> wrote:
Dear Ms. Wagner:
I am writing with regard to the Reply filed by Petitioners WestCAN, et al., dated February 15, 2008, which you transmitted to me and the NRC Hearing Docket by E-mail at 12:OO AM on Saturday, 2/16/08. Apparently, WestCAN, et al. sent a second E-mail of that Reply to other persons on the service list (including the Applicant, the NRC Hearing Docket, and the OGC mailroom, but not Staff Counsel) at 12:53 AM on 12116/08. Until now, I was not aware that the E-mail version that you sent me at 12:OO AM on 2/16/08 differed from the version sent by E-mail at 12:53 AM. However, in attempting to insert WestCAN, et al.'s errata of 2/27/08 into WestCAN's Reply of 211 5/08, I noticed that the E-mailed version of the Reply that you sent to me contains substantive differences from 12:53 AM and signed versions of that document. For example, see the discussion of Contentions 22-25, commencing on page 70 of each document. In the Staffs March 3, 2008 Answer to the Applicant's motion to strike WestCAN's Reply, I stated that WestCAN had sent its Reply to the Staff by E-mail at 12:OO AM on 2/16/08. See id. at 2. Apparently, my statement may not be correct, if the version you sent to me at 12:OO AM differs fiom the later-transmitted document. Am I correct that the two E-mailed versions are not identical? Further, does the version delivered by DHL differ in any way from the version E-mailed at 12:53 AM on 2/16/08? I would appreciate your prompt reply. 1
Thank you. Sincerely, Sherwin Turk Counsel for NRC Staff Sarah L. Wagner Legal Counsel for Assemblyman Richard L. Brodsky L.O.B. Room 422 Albany, N.Y. 12248 5 18-455-5753
Attachment 4 to NRC Staff's Response of March 18,2008 Redline Comparison of the February 16,2008 12:OO AM and 12:53 AM, E-mailed versions of WestCAN et al's Reply Brief {Additions Are Underlined, Deletions are Noted in Side Bar Balloons)
Style Definition: Normal: Font: Times New Roman, 12 pt, Font color: UNITED STATES OF AMERICA Auto. Line soacina: < s~nale. m C L E A R REGULATORY CONIMISSION, ~ i d o w / ~ r p h acontrol, n Adjust space ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges: I 11' Lawrence G. McDade, chhrmaq I, ,1,11'1
,,ill!1 I (/I' Dr. Kaye D. Lathrop, I I
l,bl" (/I' Dr. Richard E. Wardwell ,I ,I"I ) In the Matter of, 1 Docket Nos. t 1 50-247 and 59-286-LR, ENTERGY NUCLEAR OPERATIONS, INC, 1 ASLB NO. 07-858-03, 1 LR-BD01, (Indian Point Nuclear Generating Units 2 and 3), ) I REPLY OF PETITIONERS WESTCHESTER CITIZEN'S AWARENESS NETWORK (WESTCAN), ROCKLAND COUNTY CONSERVATION ASSOCIATION, INC. (RCCA), PUBLIC HEALTH AND SUSTAINABLE ENERGY (PHASE), SIERRA CLUB - ATLANTIC CHAPTER (SIERRA CLUB), AND RICHARD L. BRODSKY, PRELIMINARY STATEMENT, - - .. - - .. .. - ... - - - - - - - . .. .. i
- Deleted: )
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, I 1I -
The following constitutes the reply of Petitioners Westchester Citizen's ++ \A " , ' I
".;, 'ii,!,1 Formatted: Normal 1 Awareness Network (WestCAN), Rockland County Conservation Association, Inc. I;!
'1; I! Formatted: Underline 1 (RCCA), Public Health and Sustainable Energy - . (PHASE), Sierra Club - Atlantic 1
I Deleted: J Chapter (Sierra Club), and New York State Assemblyman Richard L. Brodsky L~orrnatted:Underline 1 (hereinafter "Petitioners"). -Petitioners assert that they have standing to intervene ( i i iE s D e le t- z -
.j and have proffered admissible contentions in accordance with 10 C.F.R. 2.309(f), .
&.. .. . . .. _-... . .. .. . __-- .. . ... . ____ _r
PROCEDURAL HISTORY. . . .... . , . .. ,. Double, Don't adjust space between On April 23,2007, and supplemented on May 3,2007 and June 21,2007, Latin and Asian text, Don't adjust space between Asian text and Entergy Nuclear Operations, Inc. (hereinafter "Entergy" or "licensee") filed an application to renew its operating license for an additional twenty year period for Indian Point Nuclear Generating Units 1 and 2. Notice of Acceptance for Docketing of the Application and Notice of Opportunity for Hearing was published in the Federal Register on August 1,2007 regarding Entergy's license renewal application. -On October 1,2007, the U.S. Nuclear Regulatory Commission (hereinafter "NRC" or Commission") extended the period for filing requests for hearings until November 3 1,2007. -Petitioners were granted an extension to file
, , Deleted: 1 their Petition on or before December 10,2007,- - _ _ _- - _ _ - _ _ _ __ __ - __ ~2 ,,
On December 10, 2007, Petitioners electronically by email served a Petition for Leave to Intervene with Contentions and a Request for a Hearing. -On I December 1 1, 2007, hard copies of said Petition and exhibits were served on the Office of the Secretary at the Nuclear Regulatory Commission (hereinafter I "NRC") by Fed Ex. By Order dated November 27,2007, Entergy and the NRC staff were ordered to file answers on or before January 22,2008. -The NRC staff served an Answer to the Petition electronically by email on January 22,2008, at 1 1 :59pm. The licensee, Entergy, electronically by email served a reply to the Petition on
I. .. I ~lectronicallyby email on January 22, 2008, with referenced exhibits arriving on January 27,2008. -Pursuant to Order by the Licensing Board on January 29,2008, Petitioners replies are due on or before February 15,2008.
+ ~ .-- Formatted: Normal, Centered 1 BACKGROUND OF INDIAN POINT LICENSE RENEWAL - - { ~ormatted:~derl~ne I APPLICATION AND CONTENTIONS RAISED BY THE .COALITION , -[Formatted: Underl~ne 1 PETITIONERS, Deleted:
A The United States operates _ - - . - _ - - _ _ - -----104
- -- --- - nuclear
-- power
- - - reactors,
- - .- - whichprovide
-- - - - - - . - nearly-,
20 percent of the nation's electricity. More than half have had their original 40-year operating licenses renewed for an additional 20 years. Encouraged by billions of dollars in subsidies and incentives in the 2005 Energy Bill, a handhl of companies I applied for licenses to build new reactors last fall, and other companies are 1 expected to apply later this year. Recurring lessons from the past consistently inform us that unless the Nuclear Regulatory Commission (NRC) undergoes major reforms, nuclear power will remain both riskier and more expensive than
, Formatted: Font: T~mesNew 1 necessary. ,Indian Pojnt is-of particular Fi_sktothep&lic assets andthehealthand _ _.' .' Roman safety of the public given its location, age, non-compliant design, and legacy history evidenced by the oversight record by the regulator, _ ___ ____ ________ _
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, F-Deleted:
, Formatted: Font: Times New oman The NRC is the federal agency primarily responsible for establishing and I enforcing safety regulations for nuclear power. Whereas this petition does not challenge the adequacy of rulemaking, it does challenge adequacy of articulating
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-the
- - -rules
- - - - by
- -the
- - -Applicant
- and the lack of substantive review ,
by Staff as to whether specific concrete contentions are truly usehl in establishing
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via engineering rigor and examination of the rule of law, confirming there is adequate safety, and lawhl environmental protection of the Indian Point plant.
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This _ _ _ _requirement _ - - .. - . - ..begins _ _ - - -with
- - - -design
.- - - requirements imposed
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on the Applicant
. - - - - - 2 contained, continues through approval of the original design criteria committed by the applicant by the record decades ago, through a total period of 40 years from Formatted: Font: Times New Koman 1
construction to decommissioning. L - - - - - - ... .
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Formatted: Font: T~mesNew 1 That design lifetime is articulated in the Current Licensing Basis. The -. Oman
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regulator has an express time limit presently in effect to operate each reactor. *Unit _,' 2 license expires in 2013, and Unit 3 in 201 5. The applicant is now attempting to substantiate that it can continue to operate the plant beyond its engineered life, and the NRC is compelled under law to rigorously evaluate this proposal, and recommend to the commission that commission can meet is statutory mandate of protecting the health and safety of the I Deleted: I public and minimizing risk to public assets in granting this extensioni - -- '
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The results of this exceeding important mantel placed upon the Commission is frankly cause for the community to be concerned. +Numerous third parties and government oversight agencies agree. 4The Union of Concerned Scientists has
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1
+. Deleted: 7 Formatted: Left I ppnitored nuclearpower safety issues since ~ .the. early
~ 1970s. Amongst-the - . - - -
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'1Formatted: Font: Times New J 104 operating plants, a disproportionally large segment of its efforts have been Koman directed at getting the NRC to enforce regulations already on the books so as Entergy at Indian Point recognize and adhere to its burden of maintaining a sound record of compliance to its license basis, and maintains the CLB itself as defined . " ..
under 10 C.F.R. Part 54 section 54.3k _ - - - . _ -- --_ _ _ _ _ _ _ _ - - _ _ - - - - - _ - - _ _ - _ - _ ,' Oman I A particular and on point example is the Applicant's description of its fire protection program contained in its application. Entergy's program has significant - - ., 1Formatted: Font: Tlmes New Oman 1, safety issues presently unresolved, yet a program that must have compliance integrity to count on for limiting the renewal scope. *But it- does - not. +See _. ___,: WestCAN et al., Objection to Fire Protection Exemption.. ." >valuations_ __ - _ _ ,' conducted by the Government Accountability Office (GAO) and the NRC's Inspector General (IG) confirm our perspective: These reports repeatedly identify inadequate enforcement of existing regulations by the NRC, with the most recent I 4 Formatted: Roman Font: Times New 1 regarding the exact issue at Indian Point, and raised contentions 5 through 11B. , '; The nexus of a broken present fire protection program cannot be set aside in I the renewal process if there is no prospect for correcting the deficient condition. Formatted: Font: Times New
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( ' /\ Deleted: 1 As history shows, the results are catastrophic, fformatted: Font: T~mesNew i Koman 1
Deleted: Formatted: Left Deleted: "Section Break (Next Page); For example, in its May 2004 report, "Nuclear Regulation: NRC Needs to I - - - - _ .__ _ -- _ _ -
- - - - - A T
\~
More Aggressively and Comprehensively Resolve Issues Related to the Davis-Deleted: "Nuclear Regulat~on: NRC Needs to More Aggressively 1I Besse Nuclear Power Plant's Shutdown" , the GAO concluded, "[The] NRC should and Comprehensively Resolve L - - - - - - -- - --- - -- -- - -- - - - -- - - - - -, Issues Related to the Davis-Besse Nuclear Power Plant's 1 have but did not identify or prevent the corrosion at Davis-Besse [a nuclear power ,
', 1 Formatted: Font: 9 pt, Font color: 1 plant in Ohio] because both its inspections at the plant and its assessments of the operator's performance yielded inaccurate and incomplete information on plant Formatted: Font: Times New Koman 1
safety conditions. " i More recently and on point to license renewal and Entergy's failure to comply with the rule are six apparent violations found by an NRC inspection that I Formatted: Font: Times New Koman 1 took seven unplanned plant shutdowns on Unit 3 in less than a year to trigger. The core and essential of license renewal is a sound foundation that provides confidence on safely minimizing renewal scope to when all parties will agree is
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Koman Font: Times New 1 under the rules a very narrow scope. +The
. _record
. demonstrates
. _ .- - - _ _ _ _ otherwise,
. .. - - _and - _ . _ _ _ .
compels us to raise as acceptable scope a program that is presently deficient but
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counted on as sufficient so as to exclude it from renewal scope. *fierethe __ - _ _ _ _,' program, system, structure or component is defective, and is presently unreconciled to correct, we argue under the rules defined in 10 C.F.R. 54 that it
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4 - - _ _ - _ - ex cannot be excluded from license renewal. It- _represents - . post fgornater@litems _ ,' I that bear on the health and safety of the public and minimizing risk to public Deleted: 1
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1 L~eleted: Formatted: Left 1 The IG's January 2008 report, "NRC's Oversight of Hemvc Fire Barriers" A - _ _ _ .. ._ _ _ _ - _ _ - - - - _ - - - _I_ - . _ _ .. ._ _ _ _ _ _ _ A - _ .'
.?-- -
documents the NRC's repeated failure to enforce fire-protection regulations. In March 1993, after problems surfaced with the Thenno-Lag fire barrier used by nearly 100 reactors, the NRC chairman committed to evaluate all fire barriers used in U.S. nuclear reactors. Tests conducted by the National Institute of Standards and Technology in 1993 (and reported to the NRC in 1994) found that the one-hour Hemyc fire barrier, used by 17 nuclear reactors, failed in 23 minutes. The NRC considered these tests too small to be conclusive and stated that larger-scale testing was needed. However, it wasn't until 2005 that the NRC commissioned such testing--even though the NRC acquired yet more evidence of problems with Hemyc in 2000. After an inspection found that Hemyc was used more extensively than assumed at one U.S. plant, the NRC reviewed the Hemyc tests conducted by the vendor and found that they did not demonstrate that Hemyc could meet its one-hour or three-hour ratings. When the larger-scale tests were finally conducted by Sandia National Laboratory, the one-hour Hemyc fire barrier failed in 13 minutes.
.- J' According to the IG: "As of December 2007:~~nofire-endurance tests _h_ave_ - -,; -
been conducted to qualify Hemyc as an NRC-approved 1-hour or 3-hour fire barrier for installation at [nuclear power plants]." Thus, the NRC has known since 1994 that 17 U.S. reactors are relying on Hemyc for fire protection and that Hemyc I ' See Office of lnsuector General Rwort of January 22,2008. I 7
I.
.does not meet NRC standards, but has not enforced the regulations it
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established in 1980, as a result of the serious fire at the Browns Ferry nuclear plant '\ in Alabama that disabled the power, control, and instrumentation cabling for all the emergency core cooling systems on Unit 1 and most of those systems on Unit 2. The regulations included requirements that cabling for primary and backup safety systems (a) be physically separated by at least 20 feet horizontally, or (b) be I protected by a one-hour or three-hour fire barrier to lessen the risk that a single fire Deleted: 7 I disables all emergency systems
.. ,{Formatted: Font: Times New t- _ _ --_ -_ - - - . . . -- - _ -, ,.,
,, Roman Deleted: 2 http://www.nrc.govlreactorsioperatingiop s-experiacelvessel-head-F-owever,
- - - - - - the NRC's
-- - - - --- - . own assessments
- - - -- . . - ---- of-its
- - regulatory
-- - - - - meltdowns also- - - -
-- - ------ --- - degadation/lessola-learnedllltf-report.html (last visited 2.15.08)
I I According to the NRC, Davis-Besse repeatedly conclude that the majority of problems stem from inadequate I, came closer to an accident than any reactor since Three Mile Island. A crack formed in a metal tube entering the reactor vessel's lid and leaked borated enforcement of adequate regulations as is shown in contentions 5 through 11BI.. I
, water onto the carbon steel. The boric I ' acid residue ate complelely through the 6-I ' inch carbon steel vessel to expose a one-I 1 '
quarter-inch stainless steel cladding For example, ,the NRC lessons-learned task fbrce examined the regulatory , applied to the vessel's inner surface. The l 1 1 timeline spanned an estimated six years I I failures associated with the near-accident at Davis-Besse in 2002'. ,and made 49 I,. I ,
, I and provlded numerous opportunltles for the NRC to step In In the last ln~ssed op!xwtuntrv NRC staff drafted an order rdduiring Davis-~esseto shut down I
1 1 I immediately on the basis that the reactor recommendations for actions the NRC should take to prevent recurrences. Forty- '1 failed to satisfy four of the agency's five l 1 safety criteria and probably did not meet
\ 1 ' the fifth.But NRC's senior managers I
shelved the draft order because it would six of these outlined ways to improve enforcement of existing regulations, while I,', have cost the company too much money
, and instead waited to insoect the reactor
!, ';Il:; for several months until it had a the remaining three dealt with upgrading the underlying regulations. The NRC's , . t
\
scheduled shutdown for refuelme- 11. Formatted: Font: Times New 1
; '1 Deleted: 1 htip:i/www.nrc:.~ov/reactors/operatinglo~s-exp~ience/vessel-l~ead-deeradalion/lessorts-leamedil111'-report.h1ml
( l a s t visitcd 2.15.08) Accordine to the NKC. Davis-Besse came closer to an accident than nnv reactor since Three Mile Island. A crack f o ~ m e din a metal tvbe entering the reactor vessel's lid and leaked borated water onto the carbon steel. The boric acid residue ate completelv through the 6-inch carbon steel vessel to expose a one-quarter-inch stainless steel cladding avplied to the vcssel's inner surfacc. The l i m e l ~ n cspanned an estimated six w a r s and orovidcd numcrous ooportunilies for thc N R C to stco in. in the last missed o ~ p o r t u n i t v NKC
. staff drafted an order requirinp Davis-Desse to shut down immediatelv on the basis that the reactor failed to satisfv four o f the arencv's five safetv criteria and tlrobablv did not meet the fifth. But NRC's senior nianaeers
Deleted: Formatted: Left Deleted: 7 lessons-learned efforts for Indian point3 provide similar findings--the ------------ -Sect~on 8 (1 Break (Next Page)- 3 As well as Millstone (Connecticut). I South Texas Project, and other troubled regulations were in the past not the problem, enforcement -$i. ina -all^
-- - _ _compliance
, nuclear plants 7 I / 4 However, this is now changing. See for by Entergy to the regulations is clearly the consequence. . __ _ _ _ ___ ------ -_ _
example, proposed rulemaking regarding thermal shock http:i/ww.~c,gov/about-
~uc/regulatory/rulemak~~proposed-rules.htm1 (Isst visited 2/15/08),(1
! I %
I Font: Times New Formatted: The licensees together with inadequate enforcement have caused significant \
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1 Deleted: lessons-learned efforts for Indian Po1nt3 4. 1 safety and economic problems to community. +In_ _its_ _September . _- _ _ 2006 _ _ report, _ _ _ _ _ _ . ,"Walking a Nuclear Tightrope: Unlearned Lessons of Year-plus Reactor Outages,: UCS described the 36 times since 1966 that U.S. nuclear power reactors remained R", l lOl l shut down a year or longer to restore safety levels eroded by accumulated violations. In these cases, more than a year, and cost an average of nearly $1.7 billion, to bring the reactor back into compliance. On February 22, 1993 Unit 3 was shutdown for over two years to attempt to restore safety levels and was not
' Roman restarted until July 2, 1995. The -L _ _ - _ - _ _ of
- _ _ magnitude - _ - non-compliance
- . . . .. . . and. .the - . . _ _ _ .,
consequential costs as well as the risks to the public are unacceptable. Unit 2 was shutdown from February 15, 2000 until January 4,2001 (slightly less than one full
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year) over a steam generator tube rupture. -This design basis accident is considered - . ,,' one of the most serious DBA's considered in the design, licensing and safe Formatted: Font: Times New Koman I operation of the plant. L _ _ . - - _ _ _ _ _ _ -_ - - . _ _ . . -- - - - - - - - - _ _ - - shelved thc dralt order because it would have cost the comnany loo much money and tristead waited to ~nsnectthe reactor Yor several months until 11 had a scheduled shutdown for refueling As well as Mills~one(('onnccticut). South Texas Proiect, and other troubled nuclear ~ l n n r s H o w e v e r , this is n o w c h a n e i n p . See f o r examole. u r o p o s e d rulenlakine r e p a r d i n e thermal s h o c k http:/lwww.nrc.govlabout-nrcirrgulator/ (last visited 211 51081
Formatted: Left I .L Inadequate compliance by the Applicant, as well as inadequate enforcement . .
- ... . ... . - .~.~ -
by the NRC allowed safety levels to erode over decades for Indian Point, resulting C Koman I in unnecessarily higher risk to the surrounding communities during those years and Formatted: Font: Times New 1 Roman higher cost to the owners. I It also bears directly on the engineering rigor and current licensing basis compliance status as they impact contemplating an extension of 20 years post engineering design life I , Congress, UCS, GAO, IG, and NRC all identified inadequate enforcement of safety regulations as the root cause of NRC's regulatory breakdowns, and cannot Formatted: Font: Tlmes New Koman 1 be set aside during these proceedings. The -A _ _ _ _Commission
- - - _ _ _ _ . must .- - _ _consider
_ _ _ - - - - its
- - history
- - - ._ - J .'
with respect to Indian Point concurrently in answering to its core mandate in considering this application for renewal. , . . . ~ .~ ~~ - . . . Over 140 contentions from 14 separate government or nonprofit
' ( prov~sions- (i)Regulations or orders.
organizations have been raised in these proceedings for admissibility. J ~ j noted s _ - -, ; ; 1
,I prescribe S U C ~replations or orders a it
, , may deem necessarv ... (3) roaovern anv activify aulhorized~ursuant this AC; 142 USC§$ZOll etseq.1, including
~
that not a single contention was accepted by the Applicant as admissible. *Only _ ,- _ _i slandardsandresnictionsgoverningrhe design, localinn, and operation of I facilities used in the conducl of such about seven were recommended to be admitted by Staff. This -L _ _ _ _stunningly _ - _ - _ _ _ _small ___--_- , 1 . : U C,~ . J Jorder toproterr hralih and m I V ~ ~in rntnrrntze danger to life orprnpeny " I (eln~hasisadded). B
,I fraction is telling-in particular, given that the recent OIG report regarding 6 polntlng see docketed regulations out thatcomments, 1
governing deslgn of nuclear power plants must rnlnlrnlze License renewal called for substantial reform from a rubberstamping process to a danger to life and property, reaardlna Pro~osednew S ~ b D a r t
~ - - " ~ d d i i i o n arequirements';
i and process of engineering rigor, and sound regulatory oversight. .L ___ - _ _ ---_ _ _ _ _ _ _ I '_ ,proposed 10 Part 1 Formatted: Font: Times New Roman, 14 pt 1
*- , { Deleted: 1
=ed: eft 1 I The reforms can not be deferred until after the next nuclear plant disaster ., Formatted: Font: Times New Koman 1
using the precedent applied at NASA after Columbia, the intelligence community after 911 1, and FEMA after Katrina. The reforms will be the same; their cost will be significantly higher.
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Double
,SUM-WRY - - - - OF
- - - ARGUMENT, I
- 4 Formatted: Normal, Line s~acing: 1 The NRC is responsible for protect& the public from the dangers inherent
+ [Double 1
@=: 3 in nuclear poweL Each regulation governing the design of nuclear power plants and any other activity authorized pursuant to the Atomic Energy Act of 1954,42 U.S.C. 5 S 20 1 1 et seq. (" 1954 Atomic Energy Act") must address its subject so as ..
Deleted: 5 to minimize danger to life or p r o p e r t y ~ A ~ - ~ ~ ~ ~ m a y , nalicensetqa otissue - - - ,',.. - Formatted: Font: 14 pt 1 nuclear power plant unless it determines that design, operation, maintenance of the plant will adequately protect the health and safety of the public. 42 U.S.C. 3 Deleted: ). 2 2 3 2 ( c Section 2232(a) fbrther provides that risks to public assets are minimizedb,The __._ Petition
- .. . brou
.~. . g. . _ NRC's ht. to .. .. .. .. _ _ ._serious
. _ - .. .. attention flaws
. ._ _ . its current
. .. .. _in. . - - . ~.
.. .. J '
.i
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Font: 14 pt
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1 Deleted-
- _.._ _.J License Renewal Applicatiok Those regulations avoid consideration of issues
' 42 U.S.C. 62101(i)i3X"General provisions - ii) Regulations or ordcrs, prescribe such regulations or orders as it may deem necessarv . .. (3) to govern any uctivifv authorized uursuant to this .4ct 142 USC 6.6 2011 et sea.L including standards and restrictions governing the design, location, and nueration of facilities used in the conduct of such activin: in order to protect health and to minimize danyer to life or propernin (emphasis added).
See docketed com~nctits.pointing out that remlations govcrnine dcsian of nuclear powcr plants must rninimizc danger to life and property, regarding Proposed new Subpart K-"Additional reuuirements" and wrowosed I0 Part
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1 Deleted: 7 I $elated to current plant operation based on the assumption that ongoing -..--.sealon Break (Nea Page)..-..-. 1 I 52 500 "A~rcrattImpact assessment" regulatory requirements ensure adequate levels of safety, This is a core issue Docket NO RRJ-3150-A 119, subm~ned I relevant to the scope of potential safety or environmental issues relative to the z 7 1
. -i. .................
renewal process in this forum, . . . . . . . ....
.1
* , Formatted: Font: (Default) Arial, 9.5 pt The NRC is responsible for protecting the public from the dangers inherent .... - . . - ..... .--............
Deleted: . 7 in nuclear poweL Each regulation governing the.design of nuclear power plants ,,, and any other activity authorized pursuant to the Atomic Energy Act of 1954,42 U. S.C. $5 20 1 1 et seq. ("1954 Atomic Energy Act") must address its subject so as to minimize danger to life or property. -The NRC must consider whether the process to be performed, the operating procedures, the facility, equipment, the use of the facility, and other technical specifications provide reasonable assurance that the applicant will comply with the regulations and that the health and safety of the I , I Deleted:. 1 public will not be endangerect Sections 50.40, 50.92 (1988). The NRC may not , issue a license to a nuclear power plant unless it determines that design, operation, and maintenance of the plant will adequately protect the health and safety of the -- -. .-. I Deleted:
-1 I public. 42 U.S.C. $ 2232(a), . - - - - .. . ,.-',1 9Formatted:
.S~t Font: (Default) Arial, NRC regulations for license renewal are codified in 10 C.F.R. Part 54 and 10 C.F.R. Part 5 1. Petitioners brought to NRC's attention serious flaws in Entergyls ......... -.....................
, Deleted:, j License Renewal Applicatiox Those regulations avoid consideration of issues ,'
I 52.500 .'Aircraft I m ~ a c assessment" t Docket No. RIN-3150-A119, submitted dated December 17. 2007, by Ulrich
I. I I
,related to current plant operation, aging of components, and site specific IW~tte71 i impacts of the nuclear plant based on the assumption that ongoing regulatory - . -- .. -- .- - --
I , Deleted: 3 requirements ensure adequate levels of safety, The NRC must consider whether ,,' the process to be performed, the operating procedures, the facility and equipment, the use of the facility, and other technical specifications provide reasonable assurance that the applicant will comply with the regulations and that the health
-..::. -l J -
1 E!et!!l: and safety of the public will not be endangered, Sections 50.40, 50.92 (1988).
-Petitioners raise concerns of the adequacy of the environmental impact study and ,-
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, J the aging management analysis submitted by Entergy, Petitioners also question the ,
adequacy and ability to maintain a decommissioning f i n k A _ - - _ - . _ - - _ _ - - - - - _ _ 2 - 9.5 Pt Petitioners submit that a license to operate a nuclear power plant expires or - - . - -- - Deleted:
-1 terminates upon a specific a date, The NRC, upon application and thorough review, grants a new license that adheres to the rigorous standards and tests set forth for granting new licenses to operate nuclear power plants to ensure that a plant continues safely operate and adequately protects the surrounding people and Deleted environment_ Petitioners contend that based on the aging of power plant, a nuclear ,
plant that wishes to renew its license should pass the rigorous criteria set forth for r- - 7 I operating new plant% Without these test, renewal of Indian Points operating ,
,I Deleted:.
y Deleted ll 1 1 I
--Section Break (Next Page)..-.
license poses a significant safety p r o b l e n ~- ~- - . - -- -- - - - - - --------------- 2 7 -' .. 13 (u
C-tformatted: -: Left 1 Deleted .-- -- Entergy's license renewal application does not adhere to 10 C.F.R. Part 54, - - - - - ---- Section 54.30 requires plants to complete an Integrated Plant Assessment as part of renewal application but prohibit NRC from reviewing operational deficiencies I .c.Deleted: . J during license renewal periok Entergy's LRA fail to consider safety concerns, , environmental impacts of the nuclear power plant, continuing problems at the nuclear power plant, and review significant changes not known at the time the CEI.~YI-- - 7 i
, i initial operating license was issue& Entergy did not state that a full safety review ,
4 Formatted: Font: (Default) Arlal, 1 was performed. A
, 19.5 pt 1
Petitioners maintain that in light of the scientific evidence concerning the inadequacies of Hemyc, an exemption to Entergy's operating license should not -.. -- I , Deleted:. have been granted during the renewal procesk The NRC should also not review " ........................ ...........
, >I Deleted: . -7 applications for license transfers during the renewal process e i t h e ~Significant , , ,,
changes like these to the applicant's operating license render safety analysis . . . i {~eleted: J meaninglesg A _ ............................................................ i -
,,. , Formatted: Font: (Default) Arial, 9.5 pt Entergy does not have an adequate emergency plan in place and thus, its Deleted: .
renewal license must be denied, For each plant there must be either a plan that complies with NRC's regulatory standards for responding to radiological emergencies or in the alternative, a plan that offers reasonable assurance that .. . . I public health and safety will not be in d a n g e ~ - - - .~ - _ - .~
.-..--5ectlon 14 Break (Next Page).".
J
, Deleted: 1 Formatted: Left 1 The NRC fails to consider new and significant information that will have c- .- , ...
Deleted. i-2 environmental impactgvarious contentions raise issues that are site specific, or , , should have been considered category 2 environmental impacts, and thus included I Deleted: -1 in Entergy's L& In several instances Entergy's LRA failed to address these site specific environmental c o n c e r n L Petitioners submit that each contention below meets the admissibility criteria
, Formatted: Font: (Default) Anal,
; 9.5 pt under 10 C.F.R. 3.09(f) and thus, should not be dismissed.
For these contentions to reach admissibility threshold standards, the Board, must use its discretion in considering the NRC license renewal rules in the most favorable light of implementing the congressional mandate placed on the Nuclear Regulatory Commission and the Boards role in adjudicating the rule in the broad nexus to include "all issues not.. ." for aging nuclear plants and include all evidence regardless of current regulations sometimes unintentionally have inadequately protect the public and impermissibly restrict public and judicial review of NRC actions. The license renewal proceedings including the application submitted for Indian Point units 2 and 3, and (hrther use of 55 year old systems from Unit 1) must consider the hndament fundamental nexus of unresolved current license basis issues, two 40 year old plants that were at best designed to operate for forty
I years, and the nexus of the legacy of operating and design failures over the 1 Deleted: 7 TWion Break (Next Page)- i past three decades in considering each of the contentions we have filed. The NRC must consider whether the process to be performed, the operating procedures, the facility and equipment, the use of the facility, and other technical specifications provide reasonable assurance that the applicant will comply with the regulations and that the health and safety of the public will not be endangered. Sections 50.40, 50.92 (1988). Additionally the adequacy of the decommissioning fund must be fully evaluated, -light of the unremediated and unidentified leaks first discovered by an 4 Deleted: 7 1 independent contractor in 2005, Each contention put forth by Petitioners meets the admissibility criteria I under 10 C.F.R. 3.09(f) and thus, should not be dismissed.
/ Formatted: Normal, Line spacing:
Double
,ARGUMENT
--- - . .- - - . .. - - -- - . ---- - --- - - .- - - - - - .J L _
I. Petitioners have standing to intervene To be a party in this proceeding, Petitioners must demonstrate standing and submit at least one admissible contention within the scope of the license renewal proceedings. NRC acknowledges that Petitioners WestCAN, RCAA, and PHASE have standing to participate in this matter. -(NRC brief pp. 10-13). -Entergy r-- -.- -. 7 1
+
Deleted: 11
-,v-,,.-%ction Break (Next Paw) .....-.-.-.----.. 1 acknowledges that Petitioners all have standing to participate in this matter., , .' 1611 1
Formatted: Left (Entergy's Answer pp. 3-15). -NRC disputes the standing of Sierra Club and Richard Brodsky. -(NRC brief at pp. 14-19). In a license renewal proceeding, standing to intervene has been found to exist based on a proximity presumption. -Entergy Nuclear Generation Co, and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Plant Station), LBP 23,64 IVRC 257,271 (2006). -The licensing Board has applied to proximity presumption to persons who reside or frequent the area within a 50 miles radius of the nuclear power plant in question. -Florida Power and Light CO (Turkey Point, Units 3 and 4), LBP-01-06, 53 NRC 138,250 (2001). -Petitioner Richard Brodsky, as an individual, has standing because he works approximately twenty miles from Indian Point Nuclear Power Plant. (See Declaration of Richard L. Brodsky attached hereto and made a part hereof as Exhibit A,) Accordingly, Mr. Brodsky has standing to intervene. An organization may establish standing to intervene by demonstrating that its own organizational interests could be adversely affected by the proceeding or I based on the standing of its own members. -See e.g. Consumer Energy Co.
,,( Fonnatted: Font: Not Italic 1 I
(Palisades Nuclear Power Plant). CLI-07-18
.. . - - 65 NRC
. . .. . .399
. . 409 _ _ _ _ -When
. . (2007). . _ . _ as
_ ~ ,,,
~,
organization seeks to establish "representational standing", based on standing of its members, an organization must show that as least one of its members may be affected by the proceeding, identify that member by name and address, and show
Formatted: Left
$hat the members has authority to act on behalf of the organization. -See e.g.,
-J Consumer Energy Co., supra. -The organization member must also qualify for standing in his or her own right, the organizations interests must be germane to the organizations purpose, and neither the asserted claim or the requested relief require
, Formatted: Font: Ital~c 1 I an individual member to participate in the organization's legal action. -Id. A The Sierra Club-Atlantic Chapter has demonstrated standing to intervene.
The Sierra Club has members who live, work, and recreate within 50 miles of Indian Point. -Petitioners now attach provides that declarations of members Allegra Dengler, Joanne Steele, John Gebhards, Diana Krautter, George Klein showing that they have individual standing to intervene and have authorized the Sierra Club to represent them in this proceeding. -Based on the declarations of Allegra Dengler, Joanne Steele, John Gebhards, Diana Krautter, George Klein, -attached hereto as
, Formatted: Condensed by 0.1 pt Exhibits B, ASIERRA
_ _ _ _ _ _ _ _ CLUB _ _ - . A _ _is _ _North _ - - - - -America's
- - _ . . - - - - oldest
- l l l largest
. _ and
- - most
- _influential
_ _ _ _,'.'- _+_ m a t_ td:- _ Font_ color: _ Black _ _ _ 1 , grassroots environmental organization. is a non-profit, member-supported, public interest organization that promotes conservation of the natural environment 4 Formatted: Font color: Black 1 through public education, lobbying - - .and
.. grassroots advocacy. *.. Founded
- - - - in
. 1892,
. _ . . ~.
1 Deleted: 1
- Expanded by 0.1 pt, the Sierra Club Atlantic Chapter has -L .. _ _more
_ _ _ _ than
- - _ _ 45,000
. .- _ _ .members
- . . . _ _ .who-are
- - ..residents 1Formatted: Font color: Black j New York States. The Atlantic Chapter applies the principles of the national Sierra Club to the environmental issues facing New York Statek - . . . _ . .. _ - . ._ - _ . .. _
.1
'!Formatted: Left The nature of the Sierra Club's interests will be adversely affected by the - -
issuance of a renewed license for Indian Point Units 2 and 3. -Thus, the Sierra I Club has representational standing to intervene in this proceeding.
,4 Formatted: Condensed by 0.1 pt SIERRA CLUB is +very concerned that the proposed Indian Point 2, LLC , ' { Fonnatted: Condensed by 0.1pt and Indian Point 3, LLC proposed 20 year superseding licenses could increase Formatted: Condensed by 0.2 pt both the risk and the harrnfi.11 consequences of an offsite radiological release.
. . - - ~ - - - - - - J Furthermore, SIERRA CLUB is concerned that the radiological contamination
, Formatted: Condensed by 0.1 pt resulting from radiological releases that would -impact the and ,interfere with the ,,,'
organizations rightful ability to conduct operations in an uninterrupted and undisturbed manner. Id. Certainly, any evacuation would severely disrupt and damage SIERRA CLUB's operations and the residences of its membership. Id. SIERRA CLUB therefore qualifies for intervention pursuant to 10 C.F.R. §
, Deleted: 1 4 Formatted: Font color: Black, 1
+-. ,.,
SIERRA CLUB also qualifies for discretionary intervention. 10 CFR § ,.-
?.309(e).ASIERRACLUB'S participation - - - may reasonably be expected to assist in developing a sound record. Jt is well versed - - - in the field of nuclear energy and I
, Formatted: Font color: Black 1 safety. +SIERRA
_ - _ _ - - _ _CLUB'S _ _ - _ _ _ _constituency
. . . . _ _ _ _ _ _ members represents
- . - _ - _ - _ -who _haveparticipated in numerous Nuclear Regulatory Commission proceedings and public meetings.
The nature of -SIERRA CLUB's interests is not only its members' property
, Formatted: Font color: Black 1 interests, but the public interest. In particular SIERRA CLUB is a member of the L - . ._
L ,'
I I I Jndian Point Safe Energy Coalition (IPSEC), a broad coalition of JO other free standing organizations. 'i Formatted: Font color: Black 1 Formatted: Font color: Black I SIERRA CLUB can provide local insight that cannot be provided by the
,4 Formatted: Font color: Black 1 Applicant or other procedural parties. SIERRA CLUB'S members are Indian Point ,'
, Formatted: Font color: Black 1 2 and Indian Point 3's neighbors. Jn addition, as established in this proceeding, ,,'
Formatted: Font color: Black 1 this proceeding may have significant affect on PHASE and its members. .&_ SIERRA __ _ _ __ A ,'
, Formatted: Font color: Black 1 CLUB therefore qualifies for discretionary intervention. .&10 _ _ C F-._
-'- R2 -$_ 2-'-309(e)
-___ - - - 2t
, Formatted: Font color: Black 1 SIERRA CLUB is entitled to a full adjudicatory hearing with all the rights of discovery and cross-examination provided by 10 CFR Subpart G, because SIERRA CLUB has standing, and in the Petition herein to Intervene and Formal Request for Hearing, -SIERRA CLUB raises substantial issues of fact and law that meet the Deleted:
.I requirements of 10 CFR $2.3 10 (d),
- 11. -Petitioners contentions are admissible,
( h e : O" The NRC cannot deny a petition to intervene and request for a hearing if Petitioners demonstrate at least one admissible contention. -10 C.F.R. 2.309(a). Section 2.309(f) requires a Petitioner to set forth with particularity the contentions sough to be raised and satisfy the six criteria under section 2.309(f). -"[A) petitioner must provide some sort of minimal basis indicating the potential validity of the contention." Final Rule: "Rules of Practice for Domestic Licensing
. ( ~eleted: 1
'i Formatted: Left 1 Proceedings - Procedural Changes in the Hearing Process," 54 Fed. Reg. 33, 168, -33,170 (Aug. 11, 1989). This "brief explanation" of the logical underpinnings
- Deleted: y
=-s.eaoln Break (Next Page)-
of a contention does not require a petitioner "to provide an exhaustive list of possible bases, but simply to provide sufficient alleged factual or legal bases to support the contention." Louisiana Energy Services, LP. (National Enrichment I Facility), CLI-04-35, 60 NRC 619. _ _ (2004). _ - _ L 623 _ _ .The _ _ brief explanation
- - - - helps
- - _ define _ .' , Formatted: Font: Bold the scope of a contention - "[the reach of a contention necessarily hinges upon its terms coupled with its stated bases." Public Service Co. ofNew Hampshire Formatted: Font: Bold 1 (Seabrook Station, Units 1A and 2), ALAB-899,28 NRC 93,97 (1988), aj'd sub 2 nomn Massachusetts v. NRC, 924 F.2d 3 11 (D.C. Cir. 1991). -However, it is the contention, not "bases," whose admissibility must be determined. See 10 C.F.R. 8
-1 An admissible contention must (1) provide a specific statement of the legal Formatted: Ernphas~s,Font. Not Ital~c or factual issue sought to be raised, or controverted, provided further, that the issue ,
- of law or fact to be raised in a request for hearing under 10 CFR 52.103(b) must be directed at demonstrating that one or more of the acceptance criteria in the combined license have not been, or will not be met, and that the specific operational consequences of nonconformance would be contrary to providing reasonable assurance of adequate protection of the public health and safety, (2) provide a brief explanation of the basis for the contention, (3) demonstrate that the
.. Deleted: I Formatted: Left issue raised is within the scope of the proceeding, (4) demonstrate that the issue jaised is material to the findings the NRC must make to support the action that is , , [
Deleted: g
-Sectlon Break (Next Page)-
1 involved in the proceeding; This information must include references to specific portions of the application (including the applicant's environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioner's belief, (5) provide a concise statement of the alleged facts or expert opinions, including references to specific sources and documents that support petitioners contentions, and (6) provide sufficient information to show that a genuine disputes exists with regard to a
, Formatted: Font: Bold 1 material issue of law or fact. _ - . -
The standards for issuance of a renewed license are under section 10 C.F.R. Formatted: Font: Bold I 54.29(a).,-A renewed license may be issued by the commission a s authorized by ,, section 54.3 1 if the commjssion finds that if matters identified in (a)(l) and (a)(2) of this section, if there is reasonable assurance that the activities authorized by the renewed license will continue to be conducted in accordance with the CLB, and that any changes made to the plant's CLB are made in accordance with the Act and Commission's regulations. -These matters are:
+ , { Deleted: J 1Formatted: Left 1 (1) panaging the effects of aging during the period of extended Deleted: (I) 1 operation on the finctionality of structures and components that - ---
I (1) ,have been identified to require review under section 54.21 (a)(l); , ' 1 1~~ fDi1~&:'1l-22 11 Break (Ne* -. . . . .-)eJcp a I an4 (---.._: Deleted. 1 CQ~L+-.~,;:' _-I.:-_.::. -l J (2) fime-limited aging analysis that have been identified to require review under section 54.2 1(c). [--
, Deleted: 11 ,See also, Nat 'I Whistleblower Center v. NRC et al., 1999 WL 34833798- (D.C.Cir. ,'
1 I June 14,1999), { Deleted: Merits of the contention are not part of admissibility. -A Licensing Board should not address the merits of a contention when determining its admissibility. Formatted: Font: Not Italtc 1 Public Service Co, of New HampshireA(SeabrookStation, Units 1 and 21, LBP , , 106, 16 NRC 1649, 1654 (1 982), citing Allens Creek, supra, 1 1 NRC at 542; Kansas Gas & Electric Co. (WolfCreek Generating Station, Unit I), LBP-84-1, 19 NRC 29,34 (1984); Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units I and 2), LBP-85-11,21 NRC 609, 617 (1985), rev'd and remanded on other grounds, CLI-86-8,23 NRC 241 (1986); Carolina Power and Light Co. and North Carolina Eastern Municipal Power -agency (Shearon Harris Nuclear Power Plant), ALAB-837, 23 NRC 525, 541 (1 986); Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit I), ALAB-868,25 NRC 912, 933 (1987); Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power
+, { Deleted: J
( Formatted: Left Station), LBP-88-26,28 NRC 440,446 (1988), reconsidered on other grounds, LBP-89-6,29 NRC 127 (1989), rev'd on other grounds, ALAB-919, 30 NRC 29 -." - - - - . f ~ e i B t e d 1:
.--..-Section Break (Next Page).-----
11989), vacated in part on other grounds and remanded, CLI-90-4,3 1 NRC . 123 r 333 (1990), request for clarification, ALAB-938, 32 NRC 154 (1 990), clarified, CLI-90-7, 32 NRC 129 (1990); Sierra Club v. NRC, 862 F.2d 222,228 (9th Cir. 1988). See Consumers Power Co. (Midland Plant, Units I and 2), LBP- 84-20, 19 NRC 1285, 1292 (1 984), citing Allens Creek, supra, I I NRC 542; Alabama Power Co. (Joseph M. Farley Nuclear Plant, Units I and 2), ALAB- 182, 7 AEC 2 10 , 2 16 (1974), rev'd on other grounds, CLI 12, 7 AEC 203 (1 974); Puquesne Light { Formatted: Font: Not Italic 1 Co. (Beaver Valley Power Station, Unit I),,ALAB-109,6 AEC 243,244-45 1 (1973). -An intervenor need only state the reasons for its concern. Seabrook, supra. r . - t Deleted:
. - . - - . . - a .J citing Allens Creek, supra, Formatted: Normal, Line spacing:
Double, Don't adjust space between Latin and Asian text, Don't adjust space between Asian text and Contention2:- Co-mingling A _ - - - - - - _ - _ r - _ _ - _ _- _ -three dockets and three DPR licenses under a
- ~ - - - - - - - - - - - - - . - - _ _ - - _ _ - - - - - - - _ _
single application is in violation of C.F.R. Rules, specifically 10 CFR 54.17 (d), ":,' - 7 ;
,,,, \
as well as, Federal Rules for Civil Procedure rule ll(b), \ Entergy asserts that Petitioners first contention lacks specificity, factual or legal foundation, is beyond the scope of the renewal process, and immaterial. Double, Don't adjust space between Lat~nand As~antext, Don't adjust space between Aslan text and (numbers (Entergy brief pp. 38-41). -The NRC staff assert that there are no applicable legal requirements that require a single application. -(NRC brief at p. 34). -Entergy, in
support of its argument, cites to instances where commingling of licenses has I Deleted-L-- .-I occurred. -(Id.), IThe
- . co-mingling
.- - .. . .. . .. three
. . . ..dockets
. . . ... . .. .and
. . . three
. .. . . DPRljcensesu&-aside _
application violates of C.F.R. Rules, specifically 10 CFR 54.17 (d), as well as, Federal Rules for Civil Procedure rule 1 1(b), as explained in the Petition, -- Formatted: Font: T~rnesNew Roman, Not Bold The recent Office of the Inspector General report found fault with the process and directly found the Staff reviews to be inadequate reviews of many of the previous applications submitted. -Careful examination of this application shows that it can be distinguished from the non-precedent and unchallenged commingling of license renewal applications previously processed by the Staff, and approved by the Commission. -EntergyYsrenewal applications as well as the proceedings are uniquely complex. -Petitioners reiterate the uniqueness and challenge Entergy to find a similar example ofi (a) the complexity of crediting a retired unit in Safestor, for Unit 2 but in a different manner for Unit 3; (b) the Architect Engineers for the two units were different; (c) the codes and standards were used to construct the two facilities were fundamentally different, and are prima facie challenges to renewal in these proceedings; (d) the owners of the facilities changed twice and therefore responses to the profusely evolved license basis requirements are unique; (e) the mandate of the commission to minimize risk to the public assets is uniquely critical given the location of Indian Point, and proximity of the world financial center
... {Deleted: i within 30 miles of the plant, and the millions of people that reside within the 50 Deleted: 7
..-..-Seaion Break (Next Page)-
p i l e proximity of the plant. -Each of those millions of residents could have 25 11 7 In determining whether a petitioner has met the requirements for establishmg standing, the Commission has directed us representational standing under these to "consbue the petition in favor of the petitioner." Georgia Insrirute of Technology (Georgia Tech Research Because of independent license amendments to the extension of portions of Reactor, Atlanta, Georgia), CLI 12. 42 NRC I1 1, 115 (1995). To this end, in proceedings involving nuclear power reactors, the Commiss~onhas recognized unit 1 systems, and proper examination of the decommissioning of the remainder a proximity presumption, whereby a petitioner is presumed to have standing to intervene without the need to specifically of Unit 1 of Indian Point, and the distinct License Renewal Application for Indian plead injury, causation, and redressability if the petitioner lives within 50 miles of Point Unit 3, separate license renewal applications should have been submitted, Deleted: 77 Therefore, a separate license renewal application should required be Formatted: Normal, Line spacing: 1 Double, Don't adjust space between Latin and Asian text, Don't adjust space between Asian text and submitted for each unit at Indian Point. Formatted: Normal, Indent: First line: Om, Line spacing: Double, Don't adjust space between Latin and As~an text, Don't adjust space between Asian text and numbers CONTENTION # 2: _The NRC routinely violates k j 51.101(b) in allowing changes to the pperatinglicensebe done:onccurrently_+ the renew4 _ _ _ _ _ _ proceedings,, Petitioners contend that during the renewal process, the NRC in compliance with section 5 1.101(b), should not entertain: (1) requests for transfer of a license, (3) license amendments or modifications, and (3) rule making change of thermal I shock. -These changes to Entergy's operating license permit Entergy to renew an f ~ e l e t e d7: I I operating license that does not meet current standards., .-
-Sedlon 26 1 Break (Next Page)--
8 The rulernak~ngsurrounding I I In determining whcthcr a pctitioncr has met the requirements for rstablishing standing. the Commission has directed us to "construe the petition in favor of the petitioner." Geoj:eioInsritute of Technolorv (Georgia Tech Research Reactor. Atlanta. Georgia). CLI-95-12.42 NRC 1 1 1. I 15 ( 1995). To this end. in proceedings involving nuclear power reactors. the Commission has recognized a proximitv presumption. whereby a ~etitioneris presumed
I. . .
, Deleted: Formatted: Left i
The NRC Staff oppose admissibility of this contention on the basis that operating license modifications are outside the scope of license renewal. -However, if an operating license that fails to meet current standards, it should not be renewed. -Furthermore, a modified license, whether through a legitimate modification or exemption, changes the license to be renewed. -Since the operating license to be renewed is alter, the LRA should be supplemented. -Any exemption or modification will altered aging management analysis, and thus, the amended, modified or exempted license condition should be examined during the license renewal proceeding. Petitioners' third example is particular and specific. -Both the NRC Staff and Petitioner experts found significant technical errors in the TLAA most recently submitted by Entergy for Vermont Yankee, providing at least the inference of a nexus between renewal at Indian point and the proposed rulemaking that softens Deleted: 811 the regulatory requirement$ Thermal shock to reactor internals directly related to TLA& The Indian
.- 4
- Formatted: Normal. Llne sDaclna: 1 Point LRA provided by the Entergy for thermal shock analysis on either Unit 2 or Unit 3 does not provide sufficient information other than a vague reference that to have standing to intervene without the need to specifically plead iniurv. causation, and ralressabilitv if the pet~tionerlives within 50 miles of the nuclear Dower rreactor. I0 C.F.R. S 2.309(d)(2)(i)-(ii).
I ' The rulelnakine surrounding ~~~odification to the thermal shock rule reearding reactor internals as published in the federal reeister, "Notice of Proposed Rulemaking published bv the NRC on Octoher 3.2007. regarding contemplated revisions to 10 C F R. 4 50 61.
Deleted: appropriate fatigue analysis must be done under NUREG 1801 Revision 1 of the Ion Break (Next Page)-
,GALL report. Therefore, the contention should be admitted because it falls ,
e NRC IS currently holdlng back the R for Vermont Yankee ltcense renewal within scope. Entergy maintains that extensive use of the argument that "programmatic" environmental impact work is in progress. -Under NRC regulations "while work on a required program environmental impact statement is in progress the Commission will not take . . . significant action.. . that may affect the quality of the human I environment." -In order for the action not to be halted, three conditions must be ,.-. ~ ..." I Deleted: J In the alternative, the NRC should stop all program related environmental impact statements currently in progress or contemplated during the relicensing proceedings that impact the quality of human environment-or suspend license proceedings until all program level environmental analysis is complete. -Without this, the rulemaking petition is clearly inadequate, EzI.zL:-:: The new -thermal shock rule relieves the Applicant from stringent criteria with regard to inspection of reactor vessel internals such as baffle bolts required for safe operation of the plant. -The new rule relaxes criteria for inspection of components, -such as these -baffle bolts, which are normally replaced after routine inspections and are replaced due to a number of environmental factors including I ' The NRC is currently holding hack the SER for Vermont Yankee license renewal on thls vely Issue I 28
3 c Deleted: 1 Formaw Left aging. -Thereby reducing unacceptably reducing the margin of safety. -This Deleted: 8 lxxlxSect~on Break (Next Page)---.-
,Contention including the material dispute of sufficient margin of safety for ,
reactor vessel internal, such as baffle bolts, is an in scope license renewal I components. -Therefore under 10 CFR 51.101(b) the regulator cannot change the Deleted: 1 rule in while license renewal proceedings are in progress, - - - - -.- {~eleted: 1 Thus, Contention #2 is material, particular, and within scope to be admitted, I~ne:0", L~nespaclng: Double, Don't adjust space between Latln and Aslan text, Don't adjust space between ated its own regulations §51.101(b) by AsIan text and numbers J
,CONTENTION accepting a sing1 1 Application made by the following parties: ' -
Entergy Nuclear Indian Point 2, LLC ZIP2 LLC")~ntergy_Nuclear - - - - -Indian 7. Point 3, LLC (" IP3 LLC"), 2 n d Entergy w e a r ~ ~ ~ r a t i o n s , ~ ~ ~ ~ ,~ . - ( ~ n t e r ~ ~
\ ;\
Nuclear Operations), some of which do not have a direct relationship with the \, \,
\
license, Formatted: Font: T~mesNew Roman, Font color: Black I Formatted: Font: Tlmes New I A - - -- - - - - - - - - -- --. - - - -.-. . ---
. ~ . Roman, Font color: Black Both Entergy and the NRC Staff argue that this contention is not within the 1\ '1 Formatted: Font: 12 pt scope of a license renewal proceeding. -mRC Staff brief at pp. 37-38); (Entergy Formatted: Normal brief at pp. 47-5 1). -Furthermore, Entergy responds that this contention is beyond the scope of this proceeding, lacks factual or expert support, and fails under 10 C.F.R. 2.309(0(1 (v) and (vi), and fails to identify any material deficiencies in the licensing renewal application. -(Entergy brief at p. 47-5 1). -Petitioners maintain that the NRC license renewal procedure is inadequate because it permits Entergy to apply for a transfer its operating license while a review of renewing the operating license occurs in violation of 10 CFR 5 1.01 (b). . - - .-
Formatted: Font 14 pt
1Formatted: Left 1 Entergy's request for the indirect transfer of the Facility Operating Licenses '::;, for Indian Point 2 and Indian Point 3 be denied because the transfer violates 10 I C.F.R. Part 50; violates 10 C.F.R. 54.35 and 54.37; the intended purpose of the corporate restructure is not met and is unclear; the restructuring potentially violates A
,, 1 1 10 C.F.R. 50.33(f)(2); the application fails to submit sufficient information concerning the financial qualifications of the proposed shell corporation that is not A- - - - - - - - - - - - .. - .. .. .- - -. - - - - - - - . .- - - . .. - - - - - - ... - - - - - _
Formatted: Font: Times New Roman! Not Bold 1 I an electrical utility and the financial adequacy of decommissioning fimding; and I the transfer violates anti-trust laws. -Despite Entergy's claim that financial issues ,,./'I Formatted: Font: Times New
~0m.n. NO^
I "have no place in this proceeding" the financial viability is relevant to whether Entergy license to operate should be renewed. _If Entergy's license is renewed and L - - - - - - - - - . _ - . - - - - _ _ - - - - - - - _ - 2 Formatted: Font: Times New Roman, Not Bold 1 Entergy fails to make safety related repairs or pay decommissioning expenditures I or pay retroactive Price Anderson Act premiums, Entergy cannot give reasonable - I assurances of health and safety of the public. . .. ( Roman, Not Bold J I Any license transfer during a LRA proceeding brings into scope Entergy's I financial qualification review to continue operating the license during the license renewal period. Theproposed
- _ - _ - - -corporate
_ . restructure
.. will affect the financial 2 Formatted: Font: Times New Roman, ~ o Bt O I ~ I responsibility and liabilities of Indian Point 1,2, and 3. +-Theproposed - - _ _
. - .~ _ _ _ - _ -- -_
- -restructuring - _r ,'
Formatted: Font: Times New Roman, Not Bold ! draws question as to whether Entergy can provide reasonable assurances of health
, . Formatted: Font: Times New
,. Roman, Not Bold and safety of the public. *Serious - _ _ ~doubts exist as to whether the NRC can hold a d ,'
parent company responsible for the liabilities incurred by a subsidiary. Therefore -._ - _ - _ _ _ -,- -I , Formatted: Font: Times New Roman, Not Bold
I. *
,the owner and its financial status are- relevant - to the license renewal process to protect the public's health and safety. - - - - .- . - - .- - - - - - - - .-
I 4, The timing- of A _ _ _ - - - - - - this
- - - -transfer
- - - - - - application
- - - - - - - -creates
- - - - - -the
- - -opportunity
- - - - - - - -for
- - the
- - - NRC
---------- \,
Formatted: Normal, Line spacing: staff to do less than an adequate review, as was found by the General Accounting Double Office in previous reviews performed. -(Exhibit C GAO Report to Congress 02-48 dated December 3,2001). -The General Accounting Office has found that the NRC has done an inadequate analysis regarding the fiscal responsibility during license transfers in the past, affecting commitments or lack thereof, including but not limited to such items -as the decommissioning hnds, specifically relevant to Unit 2 and Unit 3 license renewal. -The General Accounting Office found that "NRC did not obtain the same degree of financial assurance in the case of one merger that created a new generating company that is now responsible for owning, operating, and decommissioning the largest fleet of nuclear plants in the United States. -The new owner did not provide, and NRC did not request, guaranteed additional sources of revenue above the market sale of its electricity, as other new owners had. -Moreover, the NRC did not document its review of the financial information-including revenue projections, which were inaccurate-that the new owner submitted to justify its qualifications to safely own and operate 16 plants." r D r ... L (GAO Report to Congress 02-48 dated December 3,2001), - -
*,\,?
Formatted: Left 1 Deleted: S e c t ~ o nBreak (Next Page)- l- Based on the foregoing and the GAO report, the NRC license renewal procedure is defective because it permits a licensee to transfer its operating license
? !-
, ,$eleted: -'
during the pending license renewal process+ Thus, Contention 3 is material, particular, raises an issue of law, and [Deletedm
..r 1 therefore is admissible, A I~ne:On, L~nespaclng: Double, Don't adjust space between Lat~nand AsIan text, Don't adjust space between CONTENTION 4: -The exemption granted by the NRC on October 4,2007 AsIan text and numbers reducing Fire Protection standards are Indian Point 3 are a violation of g51.101(b), _and does not adequately protect public health and safety, Deleted:
A__-__----__----_--___-------------------.--------------------------~-* Entergy and the NRC Staff contend that the fire standard exemption granted to licensee is outside renewal scope. -(Entergy brief pp. 5 1-54); (NRC Staff brief at pp 38-39). As noted in the NRC Staff brief, the exemption has become part of the CLB. -Furthermore, Entergy has failed to submit expert rebuttal of our expert witness declaration, and therefore their answers are without merit. Petitioners contend that the NRC exemption granted by the NRC reducing the fire protection standards for Indian Point Unit 3 violates 10 C.F.R. 5 1.101(b) and does not protect the public health and safety. -Under 10 C.F.R. 54.4 -"[a]ll systems, structures, and components relied on in safety analyses or plant evaluations to perform a function that demonstrates compliance with the Formatted: Font: Not Italic I Commission's regulations for fire protection (10 C.F.R. 50.48), environmental
------------- 2 qualification (10 C.F.R. 50.49), pressurized thermal shock (10 C.F.R. 50.61),
I. ... 1Deleted: Formatted: Left J 1 i J Deleted: 11 I pnticipated transients without scram (1 0 C.F.R. 50.62), and station blackout ----sectton 1 3211 Break (Next Page)- I (10 C.F.R. 50.63)." -This clearly includes exemptions to federal law that are . . -, I-Deleted: - J specifically mentioned under code for license renewal, Subsequent to Entergy's LRA being accepted by the Staff, the application proposed an exemption that substantially modified the in- progress exemption regarding fire protection of power cables and control cables in the electrical cable tunnels. -These new requests were done without proper notice in the Federal Register, and constituted a change in Attachment D to Appendix E of Entergy's ............ . - -- .....- ....... ,.
, (_--_
Deleted- 2._. ! The exemption modified the Core Damage Frequency calculations as demonstrated in Petitioners contention 5. -The exemption permits Entergy to operate although the Units have a 24-minute rated fire barrier for ETN-4, and 30-minute rated fire barrier for PAB-2, in lieu of a 1-hour rated barrier. -The result of these new changes that were expeditiously approved under an apparently rushed Safety Evaluation are based upon unsubstantiated analysis, and fly in the face of 2005 EPact, as well as existing rule increasing risk to the health and safety to the public without the most modest analysis as required under 10 C.F.R.50.12. As demonstrated in contention 5, the issue is particular, and relevant to renewal given the Entergy relies on manual actions suppress a fire in a zone that is
?
Formatted: Left 1
,difficult and dangerous to enter during a fire, and is a prerequisite zone to remain operational for associated systems safe shutdown analysis (ASSD),
In a series of letters dated July 24,2006, and supplemental letters dated April 30, May 23, and August 16, 2007, responding to the NRC staffs request for additional information, Entergy submitted a request for revision of existing exemptions for the Upper and Lower Electrical Tunnels (Fire Area ETN-4, Fire Zones 7A and 60A, (respectively), and the Upper Penetration Area (Fire Area ETN-4, Fire Zone 73A), to the extent that 24-minute rated fire barriers are used to protect redundant safe-shutdown trains located in the above fire areas in lieu of the previously approved 1-hour rated fire barriers per the January 7, 1987 Safety evaluation -For the 41" Elevation CCW Pump Area (Fire Area PAB-2, Fire Zone
- 1) E N 0 is requesting a revision of the existing exemptions to the extent that a 30-minute rated fire barrier is provided to protect redundant safe shutdown trains 4 Deleted: 1 located in the same fire area, Pursuant to 10 C.F.R. 50.12, the Commission may, upon application by any interested person or upon its own initiative, grant exemptions from the requirements of 10 C.F.R. Part 50 when (1) the exemptions are authorized by law, will not present an undue risk to public health or safety, and are consistent with the common defense and security; and (2) when special circumstances are present.
(emphasis added). -One of these special circumstances, described in 10 C.F.R.
JO. 12(a)(2)(ii), is that the application of the regulation is not necessary to
/ Deleted: 1
--sectlon 348 Break (Next Page)--- I 1
Deleted: achieve the underlying purpose of the rule, ..A In this case the NRC has failed to enforce its own regulations. The underlying purpose of Subsection III.G.2 of 10 C.F.R. 50, Appendix R, is to ensure that one of the redundant trains necessary to achieve and maintain hot shutdown conditions remains fiee of fire damage in the event of a fire. The provisions of III.G.2.c through the use of a 1-hour fire barrier with fire detectors and an automatic fire suppression system is one acceptable way to comply with this fire protection requirement. -The NRC must consider whether the process to be performed, the operating procedures, the facility and equipment, the use of the facility, and other technical specifications provide reasonable assurance that the applicant will comply with the regulations and that the health and safety of the public will not be endangered. -Sections 50.40,50.92 (1988). Contentions identifying and referring to particular documents or studies are
,, Formatted: Font: Italic 1 sufficiently specific for the purpose of admission,Sierra - - Club
. - v. -U.S.
- -Nuclear d
Regulatory Corn 'n,862 F.2d 222 (9th Cir. 1988)(Sierra Club submitted with its contention a copy of the BNL report and made clear title in the title and text of its contention that it wished to litigate issues contained in that report was held sufficient although the contention itself did not contain any specific accident scenario, the BNL report, which was attached to the Sierra's Club contention, more
c Deleted: 3
'I Formatted: Left Deleted: 11
,than adequately identified such scenarios). -The relevant inquiry is whether ---.-Section Break (Next Page)-
the contention adequately notifies the other parties of the issues to be litigated; whether it improperly invokes the hearing process by raising non-justiciable issues, such as the propriety of statutory requirements or agency regulation; and whether it raises issues that are appropriate for litigation in the particular proceeding. -Sierra Club, supra. Therefore, the exemption granted by the NRC, which will be carried over into the proposed license period -fails to protect the health and safety of the public and does not provide an adequate aging management plan for this in scope system. Therefore Contention 4 additionally raises significant issues of fact and law regarding safety concerns and aging management that should must be admitted and
~ei*: -
1
/
I heard, line: OM, Line spacing: Double, Don't adjust space between Latln and As~an text, Don't adjust space between I CONTENTION 5: -The Fire Protection Program described in the Current License Basis Documents including the unlawfully approved exemptions to ( Asian text and numbers J Appendix R, the Safety Evaluation and the amended license for Indian Point 3 I fail to adequately protect the health and safety of the public, and fail to meet the requirements of 10 CFR 50 and Appendix R., - --- ------- -.
- Formatted: Font: B O I ~ 1 I .--f Formatted: Normal. Indent: First line: 0.5",Line spacing: Double, 1
Petitioners assert that the fire protection exemption granted to Entergy fails Don't adjust space between Latin and Asian text, Don't adjust space I between Asian text and numbers j to adequately protect the health and safety of the public and fails to meet to the Deleted: 1 1 I requirements of 10 C.F.R. 50 and Appendix R. L _ _ -- ______ _ - __ - .. __ - .. - ----- _ Section Break (Next Page)-
- 1Formatted: Font: 14 pt F
1
C . Deleted: 2 Formatted: Left The NRC Staff oppose this contention because it is outside the scope of the license renewal proceedings. -(NRC brief at p.40). -Entergy asserts that this contention does not raise a factual or legal matter and is not within the scope of the license renewal process. -However, As noted in the NRC Staff brief, the exemption has become part of the CLB. -Moreover, neither Entergy nor the NRC Staff have submitted expert rebuttal of Petitioners expert witness declarations and therefore their arguments are baseless. -Petitioners maintain that this contention meets the six part test for admissibility. The fire standard exemption granted to Entergy does protect the health and safety of the public. Petitioners' Contention 5 raises a factual and legal issue. -NRC's standards for licenses state that the use of the facility and the facility itself must not endanger the health and safety of the public. -10 C.F.R. 50.40(a). -Issuance of a license must not "be inimical to the common defense and security or to the health and safety of the public." -Section 50.40(c). -The fire standard exemption granted is inimical to the common defense and security or to the health and safety of the public. Petitioners question whether the Indian Point Units can safely operate. The Fire Protection exemption is without question within scope as required under 5 2.309(f)(iii). -The contention raises a particular and material issue the application containing contradictory, incomplete, and evolving core damage frequency analysis regarding the probability of a fire (even disregarding the nature
v
~ - e l e t Formatted: Left 7
1 Deleted: 7
.of the incendiary cause and (excluding a saboteur for example) the -Section Break (Next Page)- /
37 n I 10 This examination does not include contention meets the threshold of admissibility. -See 4 2.309(f)(iv), in to the substantial changes to the LICENSING RENEWAL APPLICATEGORYION submitted on about December 18, that may alter this contention-however, license basis that was available, and the pertinent sections of Appendix E to the. WestCANs petition was submitted prior to December 18, and no notification was made in the Federal Register regarding a LRA" provides within Attachment D, analysis methodology and results suggesting substantial revision to the Application's LRA. See motion for stay of renewal proceedings until publication of the December 18th amendment, and a public that the specific area in question i.e. the electric cable tunnels described in comment period. 7 provides within Attachment D, analysis methodology and results suggesting that specificity below, contain a CDF (core damage frequency) sufficiently low1:so as - the specific area in question i.e. the
, elecuic cable tunnels described in specificity below, contain a CDF (core damage trequency) suffic~entlylow_--
to not be listed as major core damage frequency initiators. , Deleted: LRAIO I I
- - 7 j
1Formatted: Font: 14 pt 1 However, the list that provides the Probalistic Safety Analysis model Core Damage Frequency (these are results by each of the Entergy's opinion as to what are the major initiators) is absent of these tunnels but includes less likely initiators. The list which includes loss of non-essential service water, transients, station
, Formatted: Font: Not Italic 1 blackout, and others all have probabilities that are greater thanA -the - - Entergy ~-
- own - .. . ., .'
,, Formatted: Font: Not Ital~c 1 calculation for CDF in the tunnels. -This discrepancy notablyA precedes ... . . .- .. the
. .Entergy then revising the physical characteristics of the tunnel components itself with a reduction from one hour to 24 minutes of burn time prior to cable failure and loss of emergency core cooling systems power and control running in close proximity in those fire areas.
111 This examination does not include substantial changes to thc LICENSING RENEWAL APPLICATEGORYION submitted on about December 18, that may alter this contention-however, WestCANs petition was submitted prior to December 18. and no notification was made in the Federal Register reaardina a substantial revision to the Application's LRA. See motion for stav of renewal proceedings until ~ ~ ~ b l i c a tof i o the n December 1 8 ' amendment.
~
and a public comment period.
1Formatted: Left - 1 The contention disputes genuine material facts as clarified above. The Deleted: -Section Break (Next Page). [ -3 8 11 - . .-- . . - - 1 compilation of law violated as provided on pages 40 through 44 of the petition stand. -Entergy7serroneously stated that Petitioner failed to establish a regulatory linkage between 10 C.F.R.50.48 and 10 C.F.R.73. -One has only to look at the words plainly in 10 C.F.R.50.12: -"alternatives for the exemption.. .must be grounded in meaningful and not superficial examination.. .including measures impacting the "common defense and security.. ." This was not done for the existing, analysis, and -failure to provide adequate analysis , invalidates statements in the LRA regarding of fire protection. -It is the cornerstone of the core damage frequency analysis provided in Entergy's above cited reports. Broken current programs that are within scope and that are to credited during the new license period, including this Fire Protection exemptions, raise significant issue of fact and law. -Thus Contention 5 must be admitted and heard by the ASLB. ACONTENTION ~ 6.Jire _ _ - _ -Protection
'- - - - - - - - - Design
---- Basis Threat. The Applicant's
_ _ _ _ _ _ _ _ - _ - . - A _ _ _ _ _ - ..-- 7,' ' License Renewal Application fails to meet the requirements of 10 CFR54.4 , \
\ ' "Scope," and fails to implement the requirements of the A \
Energy L . _ - _ _ A Policy
- _ _ _ Act
_ - - _of _ -2005, A
\\
\
s Entergy and the NRC Staff submit that contention 6 is not admissible \/
\\
I I because it is not within scope. -(NRC Staff brief at pp. 40-42); (Entergy brief at pp. , 55-56). -Petitioners maintains that contention 6 meets the six part test for Formatted: Normal I
Deleted: 71 I ~dmissibilityCurrent law supersedes scope limitations by the Commission -sect~on Break (Next Page)- I regarding exclusion of design basis threat as part of license renewal. -Design Basis Threat (hereinafter "DBT"), while excluded by the Commission as part of License Renewal process, current precedence in the Ninth Circuit provides that fire intentionally set must be considered a required element of relicensing. Entergy's LRA fails to address this issue. -The Commission regulation Deleted: 12 7 codified on March 12,2007,!$s applicable.
.. -Moreover,-Entergy -. has
- . not
_ submitted
. _ - - _ _ J , -_ {_
- Formatted:
_ . Font 14 pt '1 expert rebuttal of our expert witness declarations and therefore their answer is without basis Therefore, Contention 6 -raises material issues of fact and law regarding aging management of Indian Point 2 and 3, is within scope, and should be { Deleted: . 1 admitted,
,CONTENTION #7f .Fire initiated - - - - - by a light
. . - . airplane
.. - . . strike -risks
\ .
Formatted: Expanded by 0.2 pt
\ \
penetrating vulnerable structures, _ - - _ - - -
. ... __ ___ . .. . . .. . * \,\ '
1- ' \ A _ .. .. . . . . . .- - .- .- - - .
. . ~. - - - - - - - .. - - .- . - - .. - . . . .. . . . . . .. .- . ~ . .!u '
The NRC staff contend that this contention fails to satisfv 10 C.F.R. h
':,,,IDeleted:
1 2.309(f)(l)(v)-(vi). -(NRC Staff brief at p. 43). -Petitioners need only state the 5
\
reasons for its concern. Seabrook, supra, citing Allens Creek, supra. -Petitioners refer to various studies and reports in their exhibits, and this have provided
,( Deleted: Q 1 I sufficient facts in support of contention 7. -Section Break (Next Page)-
The response provided by Entergy misses the issue entirely. -Core Damage Frequency analysis provided in attachment D, to Appendix E of the LRA excludes fire incendiary sources beyond a limited scope. -Under Contention 5, a CDF of 7.14E-07 per reactor year. -If one assumes fire ignition and he1 is available via aircraft crashes, the entire set of -models for PRA regarding fire needs revision. The plant specific IPEE excluded any "transportation accident" on the basis that would not lead to a core melt frequency of greater than 1.OE-06 per reactor year. Formatted: Font: Not Italic 1 This value is more. frequent then about half of those listed in table 3.1-2 in Deleted: I 3 Attachment D to Appendix E. -None of the modelquLexamined included accidental , aircraft crashes as an ignition entry point into the model. Examination of industry surveys of aircraft crashes in the region surrounding the plant provide extensive evidence that fires from aircraft accident are far from remote (Exhibit -D). Second, the recent rulemaking petition drafted by the NRC, $52.500 "Aircraft Impact Assessment", raises questions regarding the mandate of the agency to minimize risk to the public assets including threats of aircraft triggered fires. -Petitioners question why the NRC would codify the most modest protection for 8 plants that may never be constructed, and yet set aside protection of the I ::72 Fal. Reg. 12705. FIVE analysis, DBT methodolow,
Deleted: '( Formatted: Left 1 1 public health and safety for the existing 104 plants, and in particular Indian ction Break (Next Page)- Point Plant being considered for an additional 20 year e x t e n s i o c
+- - -
Formatted: Normal, Line spacing: Finally, the following precedence provides that CDF for fire related events Double, Don't adjust space between Latin and Asian text, Don't adjust space between AsIan text and has a much broader uncertainty then claimed via credit under such methods as numbers "Monte Carlo" or others. -All one has to do is look at the actual record of fires at this plant, and the frequency input can be shown as invalid. -A brief summary is provided in Attachment 1. -Domestic fire frequency is about 1 per 100 reactors per year. -Indian Point Unit 3 only recently had a fire in a transformer. -A good test to the uncertainty is to correlate the actual fire frequency, multiplied to core damage threat, to those predicted. -They do not correlate. Petitioners are not challenging the rule-Petitioners are challenging the enforcement of 10C.F.R.54 to cover not to exclude, just wind, tornado, and seismic I on faulted premise. -Excluding these phenomena based upon incomplete PRA is , 2 Deleted: .1 questionable analysis, and appears yield a clear error in table in Appendix E, Finally, Petitioners question how Entergy can conclude that its fire protection program as required by 10 C.F.R.54.4 is sufficient, when the existing CLB does not include compliance to the DESIGN BASIS THREAT rule-and compliance to the rule is in a state of flux. -Further, Entergy has not submitted I Petition liled Dece~nher17"' for example
I. Formatted: Left 1 expert rebuttal of our expert witness declarations and therefore their answer -sect~on Break (Next Page)- jswithout basis -__ __ Thus, Contention #7 is material, particular, and within scope and thuis Deleted:
-- - - - - - - 1-admissible, Formatted: Normal, Indent: First line: ON, Line spacing: Double, Don't adjust space between Latin and Asian text, Don't adjust space between Asian text and numbers CONTENTION 8: _The,NRC improperly granted _Entergy's _modified exemption request reducing fire protection standards from -1 hour to 24 minutes while deferring necessary design modifications, Deleted: 1 A_-------------.---------------------- . . . . . . . . . . . . . . . . . . . . . . . . . - - .
In contention 8, Petitioners contend that the NRC improperly granted Entergy's modified exemption allowing a reduction of the fire standards, while deferring necessary design modifications. -The rationale is identical as in Contention 6. -NRC1sstandards for licenses state that the use of the facility and the facility itself must not endanger the health and safety of the public. -10 C.F.R.
, Deleted: )
3 5 0 . 4 0 ( a Issuance of a license must not "be inimical to the common defense and ,,' security or to the health and safety of the public." -Section 50.40(c). -The fire standard exemption granted is inimical to the common defense and security or to the health and safety of the public. -Petitioners question whether the Indian Point Units can safely operate -Here, careful examination indicates that the Entergy is failing to meet its current licensing basis pro tem-and must rely on hourly fire -- r Deleted: 11
.--..-.Section Break (Next Page)--.--..
1 watches. I- - _ - - _ _ . _ - _ _ - _ _ - - - - - - - - - - _ - - _ - - - .- - - - - - - - - - - _ ------_ _ . . - .. _ .. _ -,. . 43 Formatted: Font: 14 pt
- 1 Deleted: Formatted: Left i
I Numerous other discrepancies add to the uncertainty. -For example, the 480 volt EDG output is unique requires different cable sizing, different heat dissipation, and additional analysis to show circuit integrity through the event. -Under 10 C.F.R.10.12(c) an alternative analysis of simply replacing the hemyc wrap was not presented. -There is no test data or analysis examined or the configuration qualified. -Petitioners question why the cost benefit analysis performed could not support upgrading the firewrap to a 1 hour rating.
- 'Indian point Unit 3 Case study" provides an *abundant history of distinct fire , '- , Formatted: Font color: Black 1
, Formatted: Font color: Black related events at Indian Point 3. Jncluded - -are 20% of the -fire
- -dampers were found to fail due to improper installation, cable tunnel separation criteria failed to meet separation requirements, , design regarding lighting for fire related remote shutdown. 4There
- - are 11 more all -significant,
, iDeleted: ---- --, 1 Further, Entergy has not submitted expert rebuttal of our expert witness declarations and therefore their answer is -without basis, -Thus this contention is - -- -.- -.
@id: ?,
material, particular, and within scope to be admitted and heard, CONTENTION 9: -In violation of promises made to Congress the NRC did not correct deficiencies in fire protection, and instead have reduced fire J protection by relying on manual actions to save essential equipment, + I Entergy and the NRC Staff argue that contention 9 is not within scope of a [ numbers renewal proceeding. -Petitioners maintain that the exemption granted by NRC
..- 0 Formatted: Left I granting the use of HemyC thereby reducing the fire protection standard to
/ Deleted: 11
-sect~on Break (Next page)-
1 441 24 minutes at Indian Point 3 from the standard of one hour, is carried into the new license period. (NRC Staff brief at p. 45); (Entergy brief at pp. 57-58). -In fact the I exemption, though omitted from the LRA, will be continued during the proposed new license period and therefore is within scope, as it directly impacts the aging management of the plant. -By granting this exemption the NRC did not correct deficiencies in fire protection and instead reduced fire standards by relying on Formatted: Font: Bold 1 manual action to save essential equipment,-(Pet. pp. 95-98) (Entergy briefpp. 57- ,,' 58), which will impact material and particular issues directly related to the aging 1 Deleted: 1 management of the plant, Petitioners reassert that this contention raises specific and defined actions 1 regarding retrofitting the plant to bring it into compliance, in order for the NRC t o allow this exemption to be carried into the proposed license period. -Entergy failed to include such retrofits, and failed to amend it's LRA to include this exemption- - - - - -.. . - - ---.
@let%-;- - -- - - 1 as required under 10 CFR Part 54, Entergy has not submitted expert rebuttal of our expert witness declarations and therefore Entergy's answer is without basis. -Based on the foregoing, I Contention 9 is material, particular, and within scope. -Therefore, contention 9 ,- - - -. - - a -- --
should be admitted and be heard, eted: -Sect~onBreak (Next page)-]
+ , { Deleted: I Formatted: Left I
( CONTENTION No. 10: -(Unit 2) Cable separation for Unit 2 _is non-compliant, fails to meet separation criteria and fails to meet Appendix R criteria. _This has been a known issue since 1976; and again in 1984, yet remains non-compliant today,
.-..Petitioners contend that the cable separation for Unit 2 is non-compliant, fails to meet the criteria for separation and for Appendix R. -(Pet. at pp. 98-99).
Entergy and the NRC Staff assert that Contention 10 is not admissible. -(Entergy brief at pp. 58-61); (IVRC Staff brief at pp. 46-47). Petitioners assert that the electrical separation of Unit 2 at Indian Point was constructed under unapproved criteria. -(Pet, at pp. 98-99). -As a result, a single electric tunnel houses both safety related trains within approximately 12 inches of each other, which violates general design criteria and does not comply with Appendix R criteria. -(Id.) -Entergy's LRA fails to present adequate and lawhl design measures to provide a reasonable assurance to protect the health and safety of the public; therefore, the aging program in Entergy's LRA is meaningless. -(Id.) As discussed earlier, the merits of the contention are not part of
, Formatted: Font: Not Italtc I admissibility. See e.g., -Public Service Co. of New Hampshire (Seabrook &_ - _ _ - _
_ - - - _ - - - Station 2 /' Units 1 and 2), supra. -Petitioners need only state the reasons for its concern. Seabrook, supra, citing Allens Creek, suprac- Consequently,
- - - .. .. . - - .- -Petitioners
- - - - - - -have
- - - - - met the criteria under 10 C.F.R. 2. 309(f).
Entergy further states that Indian Point Units 2 and 3 construction permits were issued on October 14, 1966, and August 13, 1969, respectively and thus, the
+ , , { Deleted: 1 Formatted: Left 2l I ,General design criteria does not apply to those plants. -(Entergy's brief at p.
I Deleted: 7
-Sect~on Break (Next Page)-
59). -This is a substantial error. The NRR Office Instruction No. LIC 100, Licensing Basis for Operating Reactors -has no legal basis. There are numerous places in the license basis where the Entergy does either directly or by inference state that it intends to comply with the GDC in question.
- 'The Indian Point 2 (P2) Control Room Ventilation System (CRVS) meets , .
Formatted: Font color: Black, (Aslan) Ch~nese(PRC) I the applicable General Design Criteria (GDC). Indian Point 2 was initially licensed based on the proposed GDCs issued for comment by the Atomic Energy Commission on July 1 1, 1967. Since that time, the NRC issued a Confirmatory Order on February 11, 1980, which included a requirement to conduct a study regarding compliance with the regulations of 10 CFR 50. The study performed in response to this Order included a review of the GDCs contained in Appendix A of _; '- (Asian) Chinese (PRC) 10 CFR 50. The results of this study were reported in Reference 1 and NRC acceptance of this response was provided in Reference 2. The applicability of the GDCs to P2 is also described in the Updated Final Safety Analysis Report Deleted:
- "I I (Reference 3). (See Exhibit G. p. 10) k d . -1 Formatted: Font color: Black, (Asian) Chinese (PRC) I Under the admissibility criteria of Section 2.309(f)(l), this contention is admissible. -Petitioners have provided a specific statement of the legal or factual issue sought to be raised --- that the cable separation for unit 2 is non-compliant.
Petitioners have provided a brief explanation of the basis for the contention - the
-, {~eleted: - - " 1
'r Formatted: Left I ,cable separation violates GDC. -Petitioners have raised an issue within the Break (Next Page)-
i scope of the proceeding because it involves the GDC's and aging management. Petitioners have demonstrated that the issue is material and stated that it was not referenced in the LRA; thus, Petitioners could not cite to specific portions of the application. -Petitioners have provide sufficient information to show that a genuine in elated:- - - -1 disputes exists with regard to a material issue of law or fact. -(Pet. at p. 98), Moreover, Entergy and the NRC Staff have not submitted expert rebuttal of Petitioners expert witness declarations, and therefore, the answers are without basis r.. Deleted:
. . .... " . ,,~~...,
1 1 As a result, Contention 10 should be admitted and heard,
., . . Formatted: Normal, Indent: Flrst
+ ' line: O", L~nespacing: Double I CONTENTION No. 11A _(Unit2 and Unit 3): The Fire protection program as described on page B-47 of the Appendix B of the Applicant's LRA does not include fire wrap or cable insulation as part of its aging management program.
+ - - 4 Formatted: Normal I Contention 1 1A asserts that the fire protection program described on page B-47 of Appendix B of the LRA does not include fire wrap or cable insulation in its aging management program. -(Pet. at. pp. 99- 101). Without -maintaining minimum criteria for age management of fire wraps, beyond visual inspections, the actual scope of fire barrierlinsulation supplied in the application is insufficient. -The NRC Staff concedes that the portion of this contention relating to the fire protection -.
Deleted: 9 I aging management program is admissible. -(NRC Staff brief at p. 47). x--.. Section Break (Next Page).-.-.- I - -(Formatted: Font: 14 pt 1
- 1. . Deleted: Formatted: Left 1 The specific elements noted in tables provided by the Entergy are vague, incomplete, and without substance. -There exists ambiguity between insulation with the word "none" inserted for aging management. -In other one word entries on the table 3.5.2-4, there is simply a reference to fire protection, but no aging management program described.
Therefore, the fire protection aging management program submitted by ---- j Deleted: _3 Entergy is insufficient and thus Petitioners contention 1 1A must be admitted, 1 A - - CONTENTION~IB: - ~ n v i r o n m e n t a l ~ m ~ofan a c t increase in risk of fire damage due to degraded cable insulation is not considered thus the I Applicants' LRA is incomplete and inaccurate, and the Safety Evaluation supporting the SAMA analysis is incorrect. A Formatted: Font: Bold I I . -f~orrnatted:Normal, Line spacing: 1 1-Double, Don't adjustspace between Petitioners argue that Entergy failed to assess the increased risk of fire Latin and Asian text, Don't adjust space between Asian text and I lInumbers J I damage due to degraded cable insulation and thus, Entergy's LRA and the safety evaluation supporting the SAMA are incomplete and inaccurate. -SAMA issues are material issues of fact that should be considered during this license renewal proceeding. Furthermore, neither Entergy nor the NRC Staff have submitted expert rebuttal of Petitioners expert witness declarations, as such, their answers should not be considered. -Since contention 11A is material, particular, and within scope, the Deleted:
--A contention should be admitted and subject to a hearing, I _ _ _ . _ _ - _ _ -
+ . (Deleted: 1I Formatted: Left 1 CONTENTION 12: ,Entergy either does not have, or has unlawfully failed to Deleted: CONTENTION12: 1 provide the Current License Basis' (CLB) for Indian Point 2 and 3, - Formatted: Font color: Black accordingly the NRC must deny license renewal, --
Formatted: Normal, Line spacing: Entergy argues that contention 12 is not within scope of the renewal process. Double, Don't adjust space between Latin and Asian text, Don't adjust I THE NRC Staff argue that Petitioners failed to identify an error or omission in the space between Asian text and numbers 1 application. -@RC Staff brief at pp. 49-50). -Petitioners maintain that the current license basis is within scope, and must be available for a petitioner during the period allowed by rule 2.336 for intervention. -Petitioners have a legal right to the 7 Deleted: 309 I
- --- -- - -J pertinent parts of the licensing basis. -10 C.F.R.2309 Moreover, under 10 C.F.R.
55 54.19 and 54.2I(c), Entergy failed to provide a comprehensive list of plant-specific exemptions, as noted by the NRC Staff. -_(NRCStaff brief at p. 50). Deleted: 1 Therefore, Entergy's LRA currently is not in compliance with NRC regulations, _ _ _. Under section 2.309(f)(l)(iv) of the Code of Federal Regulations, the contention is material to the findings the NRC must make to support the action that is involved in the proceeding. -An issue is only "material" if "the resolution of the dispute would make a difference in the outcome of the licensing proceeding." 54 Fed. Reg. at 33,172. This means that there must be some link between the claimed error or omission regarding the proposed licensing action and the NRC's role in protecting public health and safety or the environment. Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), LBP-04-15, 60
/ Deleted: I NRC 8 1, 89 (2004), aff'dCLI-04-36,60 NRC 63 1 (2004),
I 50
, Deleted: __I 1 f Formatted: Left Finally, the CLB is not a "term of art" as described by the Entergy. -The CLB is Deleted:
SOY .-Sect~onBreak (Next Page)" : i I precisely defined in 554.3.-Even if Petitioners -acknowledge the amorphous nature of the CLB and the dynamic state-Entergy is required under the rules to have the pertinent elements and they don't. -This is another example that is relevant is the stunning oversight by Entergy -- -their repeated statements in their reply [to contentions 10, 11B and others] that Entergy(s) for the plants are not bound to the GDC's. -By them even making that statement, Entergy is attempting to change the CLB. I - Entergy argues that the ASLB should "not be expected to sift unaided through large swaths" of exhibits. -Petitioners argue that Petitioners should not be expected to sift unaided through 40 years of exemptions, deviations, exceptions to piece together the current CLB. -Applicant's have an obligation to provide both PetitionersIStakeholders and the ASLB a CLB that is not a vague idea, but a concrete written document -A complete and non-vague CLB is the very basis by which Petitioners and the ASLB can evaluate whether the aging management of components, systems, and structures are adequately addressed in the LRA. Entergy did not provide a complete and accurate CLB to adequately assess the aging management program. Entergy does not challenge the in-scope status of this contention. -Thus, 10
=I: I pursuant to C.F.R. 2.309(f)(l)(vi), contention 12 must be admitted,
3
+
{ Deleted: . iJL I G t t e d : Font.
.CONTENTION 1 3 ~ T h LRA e is incomplete and should be dismissed, because it fails to present a Time Limiting Aging Analysis and an Adequate Aging Management Plan, and instead makes vague commitments to manage the 1-1_
Deleted: : Formatted: Font color: Black 1 aging of the plant at uncertain dates in the future, thereby making the LRA a meaningless and voidable agreement to agree.", ,- Formatted: Font: b i d , Font color: Black I- The contention is admissible under the six part test. -The Applicants are required to provide a complete application as required under the standards promulgated within 554.29, -Entergy has failed to do so because the commitments are made in the LRA that contain -language that are void under contract law. -The very essence and scope of aging management programs is based on the commitments made in the LRA, the voidable nature of such commitments is clearly with in scope of the relicensing proceedings. -Petitioners are garticular, or specific as to where the application is incomplete. Petitioners need not argue the merits, just show the absence of information is relevant to a few of our contentions. -A properly pled contention must contain "sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact." 10 C.F.R. 8 2.309(f)(l). Although a petitioner must demonstrate that a "genuine dispute exists" at the contention admissibility stage, it need not demonstrate that it will prevail on the merits. See 54 Fed. Reg. at 33,170-71. Similarly, "at the contention filing stage the factual support necessary to show that a genuine dispute exists need not be in
h Deleted: - Formatted: Left I I 9ffidavit or formal evidentiary form and need not be of the quality necessary 1 Deleted: 7
-Section Break (Next Page)-
- I 1
I to withstand a summary disposition motion." Id. at 33,171, 15 For Flow Accelerated Corrosion. simply referring to an approved program such as NSAC 202L Rev 2 is not soecific. I 1 There are examples of plants wereihev 1 I I On page 7 1 of the Applicant's response there are a number of statements I 1 credit EPRls industry accepted but fail to adequately implement it. Inspection frequency
. . is not specified, but I a cntical parameter. Actual program I
i I regarding commitments that are completely incorrect. Licensee commitments can scope, inspection frequency, grid selection, and corrective action to identified pipe thinning is not described 1 i This leaves is public in the dark. Aging of i number in the thousands. -Only a fraction have legal enforceability. -The remainder piant piping will lead to numerous 1 unforeseen accident scenarios if not 1 are not tracked as commitments, and generally not maintained. -The precise set of carefully managed. No one pred~ctedthat a pipe rupture of an 1 8 inch line in 1986 i first led to four immediate fatalities. then. 1 I I ongoing or onetime -commitments that are docketed and in affect must be I loss of fwe protectton controls, and spurious activation of nulnerous electrically controlled devices included 1 II dumping of entire C 0 2 fue protection syst&ns~inoperability of security doors, maintained by the applicant and is required by $54.3(a). : locking workers into rooms without
, immediate means to escape, and fmally, threatened the safety of reactor operators I when C 0 2 drtfted or leaked Into the untt Petitioners assert that anything that is currently capable of being described in 2 control room The causal events where not pred~ctednor pred~cableThe rtsk and I sufficient detail should be. -Programs for aging management, by contract lawLCan - .
PRA assoctated with this event IS bemg debated after 2 I years 1 16 See contentton 27 7 I \ 17 See contention 35 7 1 be precisely articulated-the Applicant proffers no rationale for delaying f Formatted: Font: Not Ital~c 1 disclosure. -Examples of the Applicant's failure of full disclosure include Flow Accelerated ~ o r r o s i oEquipment ~~, qualificatioqs, buried p i p i n e , and in l 5 For Flow Accelerated Cot~c)sion,simply referring to an approved program such as NSAC 202L Rev 2 is not specific. There are exanlples of plants were they credit EPRls industry accepted program. but fail to adequately implement it. Inspection frequency is not spccificd. but a critical parameter. Actual program scope, inspection frequency, grid selection, and corrective action to identified pipe thinning is not described. This leaves is public in the dark. Aging of piant pining will lead to numerous i~nforeseenaccident scenarios if not carefi~llymanaged. No one predicted that a oipe rupture of an 18 inch line in 1986 first led to four immediate fatalities, then, loss of fire protection controls, and spurious activation of numerous electricallv controlled devices included dumping of entire CO2 firc protcction systems, inoperability of security doors, locking workcrs into rooms without immediate means to escape. and finally, threatened the safety of reactor operators when C 0 2 drifted or leaked into the unit 2 control room. The causal events where not predicted nor oredicable. The risk and PRA associated with this event is being debated a l i a 2 1 years. I h See contention 27.
" See contention 35
+ Deleted: Formatted: Left
- 1 Deleted: 7 II particular, the undisclosed refurbishment plan for the reactor heads,. (See --.---Section Break (Next Page)-
111~ I Exhibit E, OIG Report, and Exhibit F. Declaration of Ulrich Witte). '.
\. 1 1 18 see contention x x reactor head replacement, 11
. (See Exhibit E. OIG Rewort. and Exhibit 1
I 1 By avoiding the issues, the Applicant avoids the Environmental Reporting. And thereby avoid, intervention, and foreclose the opportunity for the public to be space between As~antext and heard and made aware of the risks, In response the NRC Staff state that Petitioners contention is "vague, lacks expert support, fails to specify portion of the application with which it disagrees, and fails to state an admissible issue." (NRC Staff brief at pp. 51-52). -Entergy claims that this contention is not supported by facts or expert opinion, fails to raise a genuine dispute on a material issue of law or fact, and impermissibly challenges -.7 TdeTeti: 10 C.F.R. Parts 50 and 54. -(Entergy brief at pp. 70-7l), Petitioners contention is that Entergy's LRA is incomplete; therefore, it cannot point to specific portion of the LRA with which it disagrees because the entire LRA is incomplete. -The applicant is required to include all information in its LRA and thus the burden of proof is on the applicant to show that the LRA is complete. Since the application is required to address all EE&D's being carried over into the new licensing period, the LRA is complete if it does not include a plan for aging management of the plants degradation and fails to provide AMP'S. Therefore contention 13 must be admitted and heard, 1 See contention xx reactor head replacement
Formatted: Left 1 I Deleted: -Section Break (Next Page). 1 CONTENTION A - _ _ ___ JIAThe LRA submitted-Kls to include Final License
. example, LR-ISG 2006-03, " Staff Renewal Interim Staff ~ u i d a n c eFor
+i' t\ ',
Lp-guidance for preparing Severe Accident Mitigation Alternatives.",
. Petitioners point to numerous material inadequacies found in the Entergy h
'I, ' \
submittal. -(Pet. at pp. 112-113). -Entergy insists that LR-ISG-2006-03 is included i;,
'1) Deleted: I 11 in their LRA at 2.1-2 1, (Entergy's brief at 72-73), whereas the NRC Staff argue I
that contention 14 lacks specificity and basis. -(NRC Staff brief at p. 53). A Formatted: Font: Bold 1 Essentially, the inherent weaknesses found throughout the submittal would have been at least partly avoided had they followed this guidance. -Second, the guidance whether draft of final is immaterial - a point apparently considered Formatted: Font: Not Italic 1 important in the response by the Entergy. -Plants were built to draft GDCs
- .in
. 1967.
That is better than no GDCs at all, which is what Entergy now is actually claiming I in responses to our contention 10, 11B, and 22-25. The date LR-ISG-2006-03 was finalized is immaterial. -The NRC notes that it intends to roll this guide into NUREG 1555. -This action gives it more strength - and more compelling that it be used. -But there are others that are in existence and yet only one guideline was cited-and only in general terms. -The licensee appears to have cherry picked the guidance at best. -Where it pointed to NEI such as NEI-05-01, the Entergy used the resource to limit the extent it believed would be necessary for applying regulations to SAMA submittal. -This is flawed. -SAMA vulnerability (for example due to a large pipe break coolant accident) is
.. Deleted: ]
f Formatted: Left 1
~eleted: 1 I jncomplete-given that consideration is not made for steam generators that are [F9ctlon C '
Break [tdext less than 100% functional. -By following the guidance-for example, LR-ISG-2006-02, "Staff guidance for environmental reports for license renewal applications" (published as a draft document in February, 2007) the following ( ~ ~ l ~ e d -: - I flaws would have also been avoided, A list of the inadequacies, as compared to several EIS scoping documents submitted on October 12,2007 is provided in Exhibit H. "Incomplete Scoping Deleted: 7 under IGS-2006-02 Guidance.", Contention 14 meets the admissibility criteria. -Entergy does not challenge the in-scope nature of this Contentions. -Contention 14 raises a genuine dispute with the Applicant on materials issues of law or fact as per 10 C.F.R. 2.309(f)(l) and I._.!et=!! ._ - . 7 must be admitted, Double, Don't adjust space between Latin and Asian text, Don't adjust space between Asian text and ( numbers J CONTENTION-IS: Regulations provides that in the event the NRC approves the LRA, -then old license is retired, and a new superseding license will be issued, as a matter of law § 54.31. -Therefore all citing criteria for a new license must be fully considered including population density, emergency plans and seismology, etc, Deleted: 1 I +
... -f Formatted: Font: Bold. Underline 1 I Petitioners maintain that this Contention meets-the 6 part test for admissibility. Formatted: Normal 1 Petitioners maintain that under NRC regulations, when the LRA is approved, the old operating license terminates and a new superseding license is issued pursuant to 10 C.F.R. 54.3 1. -(Pet. at p. 155). -Consequently, before a new operating license
+ . Deleted: f Formatted: Left 1 I
,can be issued, the NRC must assess the nuclear power plant and its location
/--]
-Section 56 11 Break (Next Page)-
19 NYS petltlon, letter slgned by s a state 1 under the same criteria as an application for a new operating license. -(Pet, at p. - 7. - - - attorneys general, J I - License Renewal (as codified in 10C.F.R.54 and 10C.F.R.51) can be simplified to address four things-and four things only: (a) Aging of the plant structures, systems, and components will be sufficiently managed - where one cannot argue they are already addressed within the current license basis; (b) review of time limited aging evaluations; (c) environmental impact analysis that is clearly plant specific and not generic, (for example, severe accident risk is out of scope but alternatives to severe accidents are in scope; (d) anything else that one can prove is only possible during the renewal period but not during the current license period. - - - - 1 { ~eleted: ? I
- - a i (10 C.F.R. 54.21(b)),
"A contention about a matter not covered by a specific rule need only allege that the matter poses a significant safety problem. That would be enough to raise an issue under the general requirement for operating licenses (10 C.F.R. Ej 50.57(a)(3)) for finding of reasonable assurance of operation without endangering
, Formatted: Font: Not Italic I the health and safety of the public." Duke Power Co., (Catawba Nuclear Station, ,' -- --
[~jetedii- .-.
--- - I Units I and 2), LBP-82-116, 16 NRC 1937, 1946 (1982),
1 c Deleted: f formatted: Left 1 As numerous agencieqfiAandstateq2, have asserted, as well as the Office Of The Deleted: 19
- 1 i - T~ormatted:Font: 14 ~t 1 Inspector ~ e n e r a lthe ~ , current application bypasses a plethora of issues that start '\
from current unresolved problems and are expected (by engineering rigor and - Deleted: 2 l Deleted: 7
=.S
-eocitn Break (Next Page)-
57 1 not mere speculation) to either not be resolved at the end of the current license 20 Letter dated October 24, 2007 for the EPA requesting criteria consistent with a new operating license be applied. 7
?ISeotember reoort 7l period, or more importantly, reflect a failed implementation of design criteria, operational criteria; or design basis accident mitigation that actually worsen by extending the operating license.
Formatted: Normal, Indent: First line: 0". Line s~acina: Double I Examples that meet these criteria include:, I__-.: : .-L : Deleted*.._. _ . . ._ Deleted: 1 ~ ,-, 1 T I , -1 Formatted: Normal. Line sDacina: 1
- 1. Probable water contamination, with the announced intention to use the Double, Numbered + ~ e v e l : ' l+ -
Numbering Style: 1, 2, 3, ... + Start at: 1 + Alignment: Left + Aligned at: 0.25" + Tab after: 0 + Indent at: Hudson River as a source of drinking water ...water, 0.5"
- 2. ,Changes to the environment that are forthcoming. -Weather systems, river water level and flow rates, and temperatures, LDeleted: 3. -- - -. .- ... , 1
- 3. Probabilistic assessments of sabotage, action: -cite report that shows likelihood of attack etc-and that it is likely to increase further, Deleted: 4. 1
- 4. ,Whether operating Indian Point for 50% longer creates new and different failure modes-as yet unpredicted but real. -For example, the casual affect I 20 IV NYS petition, lcttcr signed hv six state attorncvs general, Letter dated October 34. 2007 I'or the EPA requesting criteria consistent with a new operating license be a ~ ~ l i e d .
1 58
Formatted: Left 1 of the pipe break at Suny, and the consequences were entirely unpredicted, ( ~eleted:11 1I 4. pnd outside the design basis accident that the plant was designed, Break (Next Page)- 1 22 Reference coming.. . Indian Point is 1 i engineered, and operated to withstand. I the dirtiest plant in tie domestic fleet. l l 1 el^+:? - -- J
/IDeleted: 1 1 5. ,Design Basis Threat
-J i I
- 6. vTheadded cost of decommissioning the site with 20 more, years - - - - of - - - - - - --
- - additional_, -4 soil contamination, water contamination, and airborne contamination- ( Deleted: 22. 1 I where the Entergy has shown itself to be the nation's worst o p e r a t o c Deleted: 1
-J Finally, the material condition of the plant is critical, which depends heavily on how the plant was designed, operated, modified, and maintained compliant. -For instance, -the efficacy of the physical plant through the past 45 years since construction needs to be provable by the docketed record including compliance to the historical and current license bases by the Entergy. -Compliance to the rules and case law by themselves must establish the sufficiency of the license bases record so as to adequately implement the congressional enacted statutes governing the protection of the health and safety of the public, as well as minimizing risk to the public assets. In contention after contention Petitioners show (along with the NEW YORK STATE Attorney Generals Office Petition) wholesale violation of the rules. -One does not need to look any further than Entergy's response: "Indian 1
12 September report Reference corning.. . lndian Point is the dirtiest plant in the domestic fleet. I 59
* ,, [Deleted: Formatted: Left Point is not required to comply with the GDC's stated regarding our petition and
{Deleted: 11 'i
--Sect~on Break (Next Page)-----.
+stated to other petitioners. -A clear example of what lies ahead of the risks of , 591 the public assets, and the protection of the health and safety of the public.
The Entergy relies heavily on the GALL report to support their suggestion that the LRA provided is complete and compliant to law. -The GALL report is guidance- not law. -The question of law raised in this contention is precisely how does the Entergy interpret and apply the rules as codified in 10 C.F.R.54 and 10 C.F.R.51 so as to actually meet congressional statutory authority as prescribed the IDeleted: 23 1-._I Atomic Energy Act, together with the following statutory authority> This contention turns on resolution of the ambiguities. Petitioner contend that without a superseding license by these particular facts and law, the matter not covered by a specific rule but by the particular and specific conditions found, does allege that the renewal of Indian Point poses a significant safety problem. -Because there is no definition listed in for "license renewal" or "relicensing" in the NRC regulations, Petitioners reason that the criteria for obtaining a initial operating license are just as applicable for relicensing. -Alternatively, the aging management analysis covers the same I review that is necessary for obtaining a renewed license. Section Break (Next Page) ............ Thus, contention 15 should be admitted., . - - - - - - -, I ' .i Formatted: Font: 14 pt 1
+ 1-~e!e_ted: 2 -
I Formatted: Left
&CONTENTION16: A n Updated Seismic Analysis for Indian Point must be Conducted and Applicant must Demonstrate that Indian Point can avoid or mitigate a large earthquake. Jndian Point Sits Nearly on Top of the -.
Intersection of Two Major Earthquake belts,
~ -\
Contention 16 urges the NRC to consider the site specific conditions at Indian Point and perform an updated seismic analysis. -Indian Point is right on top of two major earthquake belts that intersect and each is approximately twenty feet wide. -Since Entergy's LRA failed to include a seismic analysis, the NRC should order Entergy to do so. _In reply, Entergy argues that this issue is beyond the scope of this proceeding, immaterial to license renewal, the contention lacks factual or expert support, and fails to show a genuine dispute exists. (Entergy brief at pp. 77-79). -The NRC Staff also state that this issue is beyond the scope of license renewal. -(NRC Staff brief at pp. 58-60). I- Contention 16 raises the issue of whether a seismic analysis, a site-specific environmental issue relating to Indian Point, should be required before a new operating license is approved. -Petitioners Argue that an analysis should be conducted because there are site specific considerations removing seismic analysis from a category one environmental issue to a category two issue. -Petitioners need only state the reasons for its concerns. Seabrook, supra, citing Allens Creek, supra.
+ , Deleted: Formatted: Left 1 Due to the site specific conditions of Indian point a seismic analysis should be I conducted because it is a category 2 environmental issue.
f [)elzed"Sectlon Break (Next ape)-1 l-617 Petitioners explain several severe consequences if an earthquake were to ' 24 pet at P. 10, contention 6 n occur, particularly in light of the aging equipment. -Under 10 C.F.R.54.21,the licensee must evaluate the aging of the plant structures, systems, and components will be sufficiently managed, where not addressed in the current license basis, and perform an environmental impact analysis that is clearly plant specific and not generic. -Entergy's LRA does not. The issues raised in contention 16 are particular and specific. (Pet. at p. 134). Deleted: 24 7 For example, ISFI issues were admitted in recent Once Petitioner is admitted as a party, Petition will seek a waiver to compel reanalysis of Class 1 piping, and Class 2 piping. This could be accomplished while saving the Entergy substantial costs in the generally overly conservative seismic analysis performed in the late 1970's and early 1980's. -It is likely, that snubbers can be removed, and substantial costs of maintaining or replacing those snubbers be avoided. -Given that the plant is required to maintain a complete design record, including the "asbuilt" configuration of each facility, specifically including piping schematics and isometrics. -It is also possible to show that the existing analysis is conservative I '"Pet. at n. 10, contention 6
. J Formatted: Left I against the revised seismic OBE and SSE criteria. Jf on the other hand, the I
analysis is non-conservative, and the Entergy is aware, and chooses not to disclose - --- r~~~etedi i 1
-..---~ection Break (Next Page-.)
,configurations that are currently do not meet design basis accident 62 !I requirements. Then other enforcement rules come into play, and Entergy has a compliance issue much bigger than Seismic analysis of safety related systems
{~e~eted: - . components and structures, The engineering requirements including thermohydraulic fatigue analysis is specifically required under $54. There is significant ASME code case relief available since 1978, for example Code Case N-597, and others. -However, given Entergy's position that it is not bound by any GDCs associated with pipe stress etc, this contention provides another example of the incomplete LRA. How can one prove adequate engineering management of aging and degradation of class 1 - -- - - -
- 4 . t G j p 1 piping, when, the Entergy states that it is not bound to the GDCs?,
The aging management of the systems, components and structures are within scope and therefore an updated seismology report should be required. -This contention raises material issue of fact and law which are in dispute and therefore [ Deleted: -2 should be admitted and heard, Break (Next Page). 1
. L Deleted: J 1
Formatted: Left CONTENTION 17: The population density
- t h i n e 5 0 mileIngesti*.
~ -
.. . . .- .. .-.. - Formatted: Font color: Black 1 Pathway EPZ of Indian Point is over 21 million, the population within in the Formatted: Normal 1 10 mile plume exposure pathway EPZ exceeds 500,000.
. Formatted: Normal, Line spacing:
' Double Entergy and the NRC Staff argue that the population density issue is outside the scope of renewal proceedings. -(Entergy brief at p. 79-81); (NRC Staff brief at I p. 61). Bntergy failed to address increased population density surrounding Indian
,(,Deleted: 25 1 i
~ o i n f in their inadequate A - - - - - - - - - - - - - - - environmental
- - - - - - - - - - - - report.
Formatted: Font: 14 pt I For the reasons stated in contention 16, the population density surrounding Indian Point is site specific and should be heard. -NEPA empowers the NRC to require an environmental study of the environmental impact of a proposed action if I the action would significantly affect the quality of the human environment. -42 U.S.C. 4332(2)(C). -A license renewal application is a significant and major event under the NEPA. -The applicant's environmental report must include "any new and significant information regarding the environmental impacts of license renewal of which the applicant is aware." 10 C.F.R. 5 1.53(c)(3)(iv). -Changes in factual and legal circumstances may impose upon an agency obligation to reconsider a settled policy or explain its failure to do so. Bechtel v. FCC, 957 F.2d 873, 881 (D.C.Cir.
, Formatted: Font: Not Italic I 1992); AHPA v._ .Lyng,L _ _ _ F.2d
_ _ -812 _ _ - _ -1_ (D.C. _ - _ _ -Cir.
- - . 1987).As
. stated in Petitioners I -- There is a 1982 studv that shows Indian ~ o i n vroverty t values within the 50 mile zone as being by far the highest of any of the 104 operating plants in the country. In 1982 dollars it was ofthe order 01'400 billion.
+. { Deleted..
- - J Formatted: Left contention 17, Indian Point is surrounded by one of the most densely populated areas in the U.S. and 21 million people live within 50 miles of Indian Point. (Pet.
Deleted: 11
-Section Break (Next Page)-
pt. p. 140-142). -Entergy responds that changes in population density do not , 25 There IS a 1982 study that shows Indian point property values w~thlnthe 50 mile zone as being by far the h~ghestof require reassessment -because this issue is not in the scope of 10 C.F.R. Part 54. any of the 104 operating plants In the counay In 1982 dollars it was of the Petitioners need only state the reasons for its concerns. Seabrook, supra, citing Allens Creek, supra. -The increasing population density surrounding Indian Point, as explained in contention 17, is new and significant information that should have been addressed in Entergy's environmental report. -The dense population is an issue that is site specific and should be evaluated in accordance with 10 C.F.R. Part 100. -Because this issue is site specific and known to Entergy, it should be included in its environmental report as a category two issue. -Contention 17 should be admitted and heard because it raises genuine material issues of fact and law that are dispute.
.-- Formatted: Normal, Indent: First
+ line: 0",Line spacing: Double CONTENTION 18: Emergency - - - Plans and evacuation plans for the four - - - - - -:..
A
-.-- 1 4
counties, surrounding are inadequate
- - - - - - - - - - - - -to p s e c t publichealthand safety, due -,-
to limited road infrastructure, increased traffic and poor communications. ,_ ,-.. . Entergy and the NRC Staff state that this issue is outside of the scope of the aging management considerations relative to license renewals. -(Entergy brief at p. r, Black Formatted: Normal, L~nespaclng: Double Formatted: Font, Bold 1 81).; (NRC Staff brief at p. 62),_Again, for - the reasons
. stated in contention 16, . ,
contention 18 raises a site specific issue and thus should be admitted. -Entergy's I 65
< Formatted: Left J 1 Deleted: 1 failure to adopt an adequate emergency and evacuation plan does not protect the -sect~on Break (Next Page)-
health and safety of the public. -Entergy's emergency and evacuation plans have held inadequate by the James Lee Witt and Associated Report commissioned by Governor Pataki of New York, and endorsed by Congressional leadership including Hillary Clinton, Edward Markey and Bernie Sanders. . . ....." .-
'I
~
{:-I&*: Furthermore, Entergy's non-working sirens is an aging management issue, , ,, I The failure of Entergy to install a functional siren system mandated by Congress -is clear evidence, that Entergy inadequate management of emergency and evacuation systems and emergency plans hindered by limited roads and increased traffic. -(Pet, at p. 142). -The LRA does not address how Entergy will adequately -manage the -aging evacuation and emergency systems during the proposed new license period. -The site specific issues, at Indian Point with regard to Emergency Planning must be fully evaluated as Category 2 issues, including the inability for Indian Point install sirens with backup power, as required by Congressional law. Entergy attempts to claim that this contention is outside the scope of the aging-management matter considered in license renewal proceedings. (Entergy brief at 81). -Entergy cites to Millstone, CLI-05-24, 62 NRC at 560-561 in which the Board stated that "emergency planning is, by its very nature, neither germane to age related degradation nor unique to the period covered by [a] license renewal application." -(Entergy brief at p. 8 1-82).
Delated: "Section Break (Next Page)- i I- However, the very mandate of the NRC is to adequately protect the public. Without a hnctional evacuation plan Indian Point -cannot continue to operate for <- . J
, Deleted: 2 an additional 20 years. -Thus contention 18 should be admitted, Formatted: Font: Bold I Double CONTENTION: 19 _SecurityPlans. ,Petitioners contend that the way the force-on-force (FOF) tests are conducted do not prove"that the Indian 4 _ - _ - - -.
_ _ - - - .. Point security force is capable to defend the facility against a credible terrorist attack or sabotage. ,?'he LRA does _no~_adclt.ess_hq.w..Sec~riQ,~as~ required. . under section 10 C.F.R. 100.12(f) and 10 C.F.R. Part 73, will d . . . . . . . . be
. . . . . . managed during the proposed additional 20 years of operation against sabotagelterrorist forces with increasing access to sophisticated and advance weapons
. - .- Formatted: Normal, Line spacing:
Double I Along the same lines as Contention 16-18, contention 19 raises questions about the adequacy of Entergy's security plans at Indian Point. -(Pet. at. 149-157). Entergy and the NRC Staff respond that security plans are outside the scope of license renewal proceedings citing to Vermont Yankee, LBP-06-20,64 NRC at 172-173. -(Entergy brief at 82-83); (NRC brief at p. 63-64).
- I I n accordance with 10 C.F.R. 2.309(9(3) and Consolidated Edison Co.
adjust space between Aslan text and (Indian Point, Units 2 & 3), CLI-0 1-19, 54 NRC 109, 132 (2001), where both nurnh~rr Petitioners independently established standing, the Presiding Office has the discretion to permit Petitioners to adopt the others' contention early in the proceeding. Petitioners join and adopt contention of parties raising this same issue. ,,'
I. C h
\ , .CONTENTION 20: ,The LRA does not satisfy the NRC's underlying mandate of Reasonable Assurance ofbdequate Protection of-Public Health - -
and Safety. % , I Deleted: Adequate 1 Formatted: Font color: Black 1 Entergy claims that the issues raised in contention 20 are outside the scope of license renewals. -(Entergy brief at pp. 83-84). -Petitioners -reassert that the very mandate of the NRC is not adequately protect the public. -However, Applicant's LRA is void of aging management plans to address systematic failures as evidence by many issues, including, but not limited to, _the radioactive leaks, deficiencies in emergency planning, boric acid corrosion of the vessel heads for both Unit 2 and 3, (py Deleted- - steam generator issues, impending failure of the steel containment plate, The -very mandate of the NRC is to adequately protect the public. -The LRA does not address how Entergy will prevent -adequately protect the public hnctional evacuation plan Indian Point -cannot continue to operate for an additional 20 years. -Thus, Contention 20 raises materials issues of fact and law . - - ................... [ Deleted*:........... that are in dispute as per 10 CFR 2.309(f)(1) (vi) must be heard and omitted, Precedents on point supporting the admissibility of this Contention include the
, Deleted: 3 1Deleted: o J o Louisiana Energy Services, L.P.,. CLI-05-20 (2005)- Petitioner was { Formatted: Font: ~ o~tallc t 1 seeking review of Atomic Safety and licensing board decision on
o ,environmental uranium disposal- held board should admit it for a hearing 1 Deleted: Q
>ion k e a k ~ e x page)--- t 4 Deleted: o J 1
o F e l o n Generation Co., LLC, CLI 17 (2005) - mandatory hearings , ' ' - under 10 C.F.R. 103, 1046 of AEA (42 U.S.C. 2239(a),
.c
-?
, . Deleted:
"- J The -very mandate of the NRC is to adequately protect the public, The LRA does not address how Entergy will prevent -adequately protect the public functional evacuation plan Indian Point -cannot continue to operate for an additional 20 years.
, Formatted: Font: Not Ital~c 1 The NRC Staff contend that "[m]ost,of - the - - - - - - that issues - the- Petitioners
- bring >,'
up have nothing to do with the GEIS or the Supplemental to the GEIS." -(emphasis added) (NRC brief at p. 66). -The NRC Staff also state that Petitioners have failed to seek a waiver of the regulations. -Under the NRC regulations, only a party can seek a waiver of a regulation. -Until at least one contention is admitted, a Petitioner is not a party. -Thus, once Petitioners are parties, we will seek waiver of the issues that should be considered as category 2 environmental issues. .-.- ---
, (Deleted: L 1
Thus contention 20 should be admitted, Contention 21 was omitted from the Petition. , ~~ ~ v ................................................................
1 Formatted: Left -1 Contention 2&
- w e d : -2s i
, &matted: Font: Bold
*\
Fntergy contents that Petitioners have not satisfied the admissibility criteria \,
\.
x I, Deleted: -Section
- Break (Next Paoeb 1
under 10 C.F.R. 2.309(f)(l). (Enteray brief at P. 84-85). The NRC Staff oppose Formatted: Indent: Ftrst Ilne: 0.5", L~nespaclng: Double admission of this contention because it is alleged to be outside the scope of license
,I Formatted: Font: 14 pt, Font color: ]
renewal. (NRC Staff brief at PP. 68-,69LA The regulatory
- - - . . rules
- for obtaining
- - . a new superseding
- . license,- - as
- delineated \..
1Formatted: Line spacing: Double 1 in the code of federal regulations, specifically riles under 10 C.F.R. Part 54, License Renewal, and 10 C.F.R. Part 51, Aging Management, were set aside by the
, Formatted: Font color: Black 1 Application in lieu of suggested criteria promulgated by the trade industry. *.The -_ _
Applicant misrepresented the specific General Design Criteria which formed the basis of the Safety Evaluation Report granting the Unit 2 operating license and subsequently remained in violation of the terms of its operating license and with r- .- . Deleted: Therefore 7 the federal rules for four decades., Hence, the Applicant placed economics before , [ ~o*atted:Tont color: Black the health and safety of the public. The Applicant, as well the federal agency, willfully and knowingly violated the Administrative Procedures Act, and as a result, now has prostituted the license 4 Formatted: Font color: Black 1 renewal application for Indian Point Unit 2. *The-aging . Management
- .. - - - - -Programs proposed by the Applicant are based upon misrepresentations of the actual general
, Formatted: Font color: Black 3 design criteria to which Indian Point Unit 2 was license. &The-as-built - -construction
r (Deleted: - of the facility does not comply with the safety evaluation report, the operating license or to the code of federal regulations. f ' ~ e l e t e dU:,S. Nuclear Regulatov ThePRC _ -currently _ _ _ Lis - _ _ .~ . - _ _ - _ - the
- _ assessing _ - . need
- _ _ _ to
. . review
. - the - _ older
_ _41 _ _ _ _ _nuclear
- A~-. - ~
111) plants. Generic Safety Issue (GSI) 156-6.1 (R. Emrit, et al., 1993) deals with ,- 1 Deleted: 11 1
----.-.Section Break (Next Page)-
whether the effects of pipe break insidegontainment - . - have been .. adequately
- .- - - - -,'- , 7 0 1
'- " { Formatted: Font color: Black 1 addressed in these plants' designs. The NRC originally evaluated a majority of the SEP-I11 plants before they issued Regulatory Guide (RG) 1.46 in May 1973 (AEC, 1973b). Although the NRC reviewed these plants, there is a potential lack of uniformity in those reviews due to the absence of documented acceptance criteria.
The NRC is now attempting to assess the impact of not having such criteria in place. The extent of the violations are breathtaking, and involve a substantial prima facie breach of Administrative Procedures Act (APA) by the Federal Agencies over almost four decades for Indian Point 2. Beginning in 1968, the Nuclear Regulatory Commission acted in direct defiance of the Administrative Procedures Act by approving Amendment Nine of the Operating License, (contained in exhibit I) in which the Licensee acknowledged commitments to trade comments to draft General Design Criteria for its new plant. In addition, the Licensee committed to trade comments to the proposed General Design Criteria, and erroneously claimed
- - 1 ~ l e t e d-:2 -
Formatted: Left { that the trade organization comments were published in the Federal Register for I public comment in July, 1967, when in fact they were never properly published. r I (See Exhibit a. - _ .- - The Licensee claimed adherence to a General Design Criteria required for the licensing of Indian Point 2 facility, and committed to such General Design Criteria in the 1970 SER. In actuality, the plant design, programs and procedures ~ .were licensed to trade industry-endorsed commentary
- .. - - - _ - _ __ .. .- -- - - _ - _ - __ - _____ - _ .- . _ - __ . . _ _ _to the as opposed_- - -_ _ - - _ _ _ ,., "
General Design Criteria for the LRA and subsequently approved by the Atomic r.-.....- . . . . .. .. . - . - . ... Energy Commission under the 1970 Safety Evaluation Report.+ (. .See - - - Exhibit
- P) 2z, . --
1 bypassed the federal rules as found under the rule making process. The draft I GDC's were published and approved for use more than 13 months prior. This , hndamental failure of oversight by the regulator was subsequently set aside and festered, while the commission quietly authorized by retroactive fiat that the licensing process proscribed under federal rules for Indian Point 2 could remain in violation of law. This series of events is evidenced by close examination of documents cited or submitted in the applicant's LRA. The commission dealt with --- f~eleted: W, ,I orma ma-: L " the design basis and license failures with a stroke of a pen in 1992. (See Exhibit & : Font color: Black 1
,I 1
~ Formatted: Font color: Black 4 The table below best provides the chronology as well as the facts, and the , ' implications to the renewal license application fidelity. In simplest terms the 1 Licensee and NRC with the acceptance of the GDC defined in Amendment 9 to the
I dection original application for license accepted a draft industry GDC in place of the actual
,, rForrnr 7
GDC for IP2. Table 1 Timeline of proposed trade design criteria and misrepresented as conforming to federal law.I. , Date; __ -1. Docketerl Activify, _ 1- - . .!+fere"cs . . 1_ Irnp_lication_s~to fidelity of License Amendment the November 22. 196% 1 Early draft General I flo_vgmbe_r-2_2,1_9P_5-- 1For-cpr_l~d_e_ra_t~o_n_byYCCo_n-E_d-ip - .: Design Criteria I Press release from decision to Construct Indian Point ,2, published by AEC for AEc. No FR noticq comment * .- A- - __ - _~_ _ -- -._ _ .. -. ----- - - -- - -
~
BYapplicationdated- _ AT_h!Commssionl . - - .,The appligtion was ev_aluated.by_ - , " December 6,1965, and after a public hearing the Commission's regulator^ b\
-an-d-after-an-i"ifia-l . - -
amenddmenfs-therek-- jtgf ihd@pjz@d<njAd@@i 1.: : (the original Pecision by t h e _ _ _ _ ,Committeeon R e a c t o r - S a f q u a ~ " "\ ~' application), the Atomic Safety and (ACRS), both of which concluded ',',',::;:\ applicant applied for Licensing Board (the that there was reasonable )I ,ii the necessary licenses Board), established assurance that the facility could be ':'~"'::i' to construct and by the Commission, operated at the proposed site '" operate a nuclear issued Construction without undue risk to the health and '::'::I power reactor at the Permit CPPR-21, safety of the public. On October applicant's site at for this facilitk 14,1966,. Indian Point, Village of Buchanan. under federal rule I 73 I Deleted: I 7 Formatted
-- ... 44 -
+ , - Deleted: 4 Formatted: Left A
Date; Reference, Implications to fidelity of the License Amendment tA\ of Reactor Licensing Atomic tabulated explicitly in this report ', Energy Commissio~ compr~sedof the proposed AIF versions of the criteria issued for comment in July 1967." February 1970 See January 28, 1 97 1 The staff met with an ad hoc AIF ', ' NRC discussion of group, which included AIF GDC comments. r~presentativesof reactor manufacturers, utilities and architect engineers to discuss the revised General Design Criteria. The com~nentsof this group were rcflccted in a June 4, 1970 draft of the revised General Design Criteria that was forwarded to the AIF for comment. The AIF forwarded comments and stated it believed thc criteria should be published as an effective rule after reflecting its comments. These comments have been reflected in the GDC it1 Anpendix "A". November 16.1970 Safety Evaluation Incorporated License "Our technical safetv review of the Report amendments 9-25 to des~anof this plant has the application and been based on-~mendmentNo. 9 to Commission grants the FFDSAR ttie application, the Final Facility operating liccnse bascd -includes ALSB, Description and Safctv Analvsis upon amendments 9-25 ACRS review et al. Report (FFDSAR), and of application for Amendments Nos. 10-25, inclusive. license by Con Edison. All of thcsc documents arc available for review at the Atomic Energy Commission's Public Document Room at 17 17 H Street, Washington, D.C. The technical evaluation of the design of this plant was accomplished by the Division of Reactor Licensin~with assistance" from the Division of Reactor Standards and various consultants to the AEC. This document gave them authority to operate the facility under the drafi GDCs but without the AIF comments s~ecificallvfor the Reactor Protection and Control
F o r m a t t e d : Left 1 As n o t e d , " S p e c i f i c a l l y , for the I reactor protection svstem Deleted: Safety Evaluation Repon. 7 instrumentation for -Indian Point Commission grants operating license Unit 2 is the same as that installed- based upon amendments 9-25 of application for license by Con Edison. at the G i i i n a plant. The a d e q u a c y of :E-.:;.E =i-Y:::i:~::::l.iiii::,::::::,:::,..u"~.::~ ---::x:=Paa::,m.. the p r o t e c t i o n s v s t e l n instrumentation was evaluated by comnarison with the Commission's proposed general design criteria i Deleted: Incorporated License amendments 9-25 to the application and the FFDSAR 1
-includes ALSB. ACRS review et al.
-- .- 1 I
~zeted:%-review published on: Julv I I , 1967. and the of the design of this plant has been based on Amendment No. 9 to the application, proposed IEEE criteria for nuclear the Final Facility Description and Safety power plant p r o t e c t i o n svstan Analysis Report (FFDSAR), and (IEEE-279 C o d e ) , dated August 28, Amendments Nos. 10-25, inclusive All i 1968. The basic design has been of these documents are available for I
~
review at the Atomic Energy reviewed extensively in the past and Commission's Public Document Room at
,717 H Street. Washington. D C The we conclude that the design for Indian Point 2 is acceptable".
technical evaluation of the design of this plant was accomplished by the Divis~on ; 1 of Reactor Licensing with assistance" i from the Division of Reactor Standards Formerlv Draft GDCs Published in FR, on ,These arc the first legal standards7 and various consultants to the AEC. 1 through Julv 1 1 are approved Final February 20 1971, for which the plant is required to I, This document gave them authority to 197L _ _ _ - _ - - - . G D G y d be_c_ome_part -and - - - - -on
- - -amended - -July operate the facility under the draft GDCs but without the AIF comments of Appendix A to 10 l I , 1971 specifically for the Reactor Protection 1 CFR 50. T h e y are and Control System. 8 As noted, "Specifically, for the reactor amended the same year, protection system instrumentation for -
November 4, 1971 A third mod~fied The USAEC is urged to require Indian Point (I construction peniiit was Consolidated Edison to Unit 2 is the same as that installed-at the Ginna plant. The adequacy of the issued for Units # I and establish a finn schedule for
#2. The proposed i m p l c m c n t i r l g t h i s proposed relocation of the intake m o d i f i c a t i o n bccausc of changes in ',
structures by Con the design of the adjustable Edison was a discharge p o r t s and slide gates. significant /!,I: improvement and entcrcd into this New Roman, 11 ~ t Font , color: Red decis~on. F o r m a t t e d : Font color: Red September 28, ,Unit 2 @crating F o r m a t t e d : Normal 1 1973 License Received to 1967 draft general design cnteril, without endorsement of AIF Deleted: g
-Section Break (Next Page)-----.
Unit 2 FSAR dated a confinnator June 2001 states that Janua 1982. order on Februa the d e t a i l e d results of 1 I , 1980 the order indicatc that approved Final GDCs and beco the plant is in Appendix A to I0 CFR SO. They compliance with the Deleted: Published in FR, on then current General 20 197 I, and amended on July I I, 197 , Design Criteria Deleted: These are the first legal cstablishcd iii IOCFRSO Appendix A.
% Deleted: -
J 1 Formatted: Left September 1 8, SECY 92-223, Lcttcr to James The Commiss~onapurovcd thc staff 1')02 "resolutions of Taylor. Executive proposal in which the plant was deviations identified Director for not required to cornaly with during the systematic Operations federally a p ~ r o v e dGeneral evaluation promam" Design Criteria, i f construction permits were issued prior to May
- 2. 1971.
This is a clear and flagrant violation of the Administrative Procedures Act. Unit 2 FSAR states Section 1.3 General The license with collateral incorrectly that the Design Criteria, Unit endorsement of the federal General Design Criteria 2 UFSAR, and =latow agency bypassed the tabulated explicitly in indicates under a administrative rules act, and thus the pertinent systcrns footnote that the reduced its commitments made to comprised the proposed safety analysis report obtain its operating license to less trade organization added trade than the minimurn legal general design criteria. organization requirements of 1 0 CFR 50 comments in the Appendix A which were made law change to the FSAR. more than two years prior to thc (see footnote within NRC granting the applicant an Section 1.3.) operating license for Unit 2. The reductions o f safety margin and reasonable assurance of protection of the health and safety of the public have been compromised for over three decades, without the public understanding of the loss of margin i n safety. Subsequently, Entergv allowed the error to remain and is actually currently committing Unit 2 to trade or~anizationdesign criteria.
. -- - - - - - - - - - - - - - ~- . - - - - .---- - - - - -
a-, _ .. 4( Black Formatted: Font: 14 pt, Font color: 1 1 ~ .. - ~ - -
,Consequences ofthese action%The Licensee's failure to adhere to a legally ....
+ >'
1
~~ ~ ~
\,
-1,
'\
f Formatted: Indent: First line: 0.5" '1
,\,' .
Y ' enforceable General Design Criteria substantially reduces safety margins for safe \;!\',
\{ ' atted: Underline, Font color:
\I\
\I '
plant operation, by severely reducing detection of and the consequential mitigation j\ \ of accident conditions resulting in substantial reduction in protecting the health and safety of the public.
Deleted: ' f Formatted: Left 1 The Nuclear Regulatory Commission continued this pattern of bypassing the Administrative Procedures Act in 1992, in which the regulator relieved the Applicant of all compliance enforcement to any General Design Criteria, without pny attempt to abide by the Administrative Procedures Act. The Commission belief that it could use guidance documents from trade organizations in lieu of rules as was adjudicated in Metropolitan Edison Company, et al. (Three Mile Island Nuclear Station, Unit No. 1) ("TMI'Y ALAB-698, 16 NRC 1290, 1298-99 (October 22, 1982), affirming LBP-81-59, 14 NRC 1211, 1460 (1981), where it was established that the criteria described in NUREG-0654 were intended to serve solely as regulatory guidance, not regulatory requirements). Indeed, the Commission's mere reference to NUREG-0654 in a footnote to 10 C.F.R. 5 50.47 was found to be insufficient to incorporate that guidance document by reference as a part of a federal regulation, even if the Commission had intended to do so. The Nuclear Regulatory Commission continues this approach today without any hint of complying with the rules of the Administrative Procedures Act (APA). In summary, the Applicant is obligated to meet the requirements of the General Design Criteria as published on July 11, 1967. In fact, the Applicant falsely states that it is in compliance on page 3 of the LRA. Indian Point 2 LLC plant was designed, constructed and is being operated on the basis of the proposed General Design Criteria, published July 1 1, 1967. Construction of the plant was already
, { Deleted: - z - 1 Formatted: Left 7 underway when the Final Facility Description and Safety Analysis Report was filed on December 4, 1970, and when the Commission published its revised General Design Criteria in February 1971, and final version of the General Design --
1 Deleted: Q
,Criteria in July 1971, which included the false statement. As a result, we did
" Formatted: Font color: Black 1 not require the applicant to reanalyze the plant on the basis of the revised criteria.
However, our technical review assessed the plant against the General Design Criteria now in effect and we have concluded that the plant design conforms to the 7 4 Deleted: J intent of these newer criteria, , , Formatted: Font color: Black The Applicant was not in compliance with 10 C.F.R. 50 Appendix A then, and is not in compliance with 10 C.F.R. 50 Appendix A now, as provided in current 2006 Unit 2 UFSAR submitted as a part of its relicensing application Subsequent to the issuance of the Operating License, the Nuclear Regulatory Commission issued many Bulletins, Orders, Generic Letters, and Regulatory Guides. Most of the Regulatory Guides address the Nuclear Regulatory Commission's interpretation of the meaning of the requirements of the 1971 General Design Criteria. Inference could be made that regardless of the legal basis of these orders, if one accepts them as legal, one must also accept the legal requirement of compliance to the specific relevant 1971 General Design Criteria However, the process clearly violated the Administrative Procedures Act regarding Formatted: Font color: Black I the incorporation by reference on regulations such as violation of 10 C.F.R. 50.21t ,,'
v A , - 1 Deleted: I 1 Formatted: Left Deleted: ( I ) Safety-related systems, regarding equipment aging 10 C.F.R. 50.2 l 3 r o g r a m scope by using a structures, and components which are those relied upon to remain functional during and following design-basis events methodology that is entirely addressed under NUREGS prepared and promulgated (as defmed in 10 CFR 50.49 (b)(l)) to enswe the 1
.-.--..--..-.Section Break (Next 78 (1 outside rulemaking procedures and industry trade guidelines such as NEI 95-10 following functions-- ( i ) Vie integrity of the reactor coolant pressure boundary; ( i i )
The capability to shut down the reactor Rev. 6, each of which has no legal force. Neitherpublic involvement nor the most and maintain it in a safe shutdown condition; or (iii) The capability to prevent or mitigate the consequences of accidents which could result in potential fundamental steps required under the Administrative Procedures Act were adhered offsite exposures comparable to those referred to in 5 50.34(a)(l),$ 50.67(b)(2). or 9 100.11 of this chapter, as applicable. to by either the Applicant or the Federal Agency. A- (2) All nonsafety-related systems, structures, and components whose failure could prevent satisfactory accomplishment of any of the functions Pursuant to section 3(a)(l) of the Administrative A - - - - - - - - Procedure Act, 5 U.S.C. $
- - - - - - . - - - - - - - - - - -identified
- - -in- - - (a)(l)(i). (ii), or paragraphs (iii) of this section. (3) All systems, structures, and components relied on in 552(a)(l), as implemented by the regulations of the Office of the Federal Register, safety analyses or plant evaluations to perform a function that demonsmtes compliance with the Commission's regulations for fire protection ( I 0 CFR 10 C.F.R. Part 5 1, no material may be incorporated into a rule by reference unless 50.48), environmental qualification (I0 CFR 50.491, pressurized thermal shock (10 CFR 50.61), anticipated transients the agency expressly intends such a result, 10 CFR. $ 5 1.9, requests and receives without scram ( I 0 CFR 50.62), and station blackout ( I 0 CFR 50.63). (b) The mended functions that these systems.
structures, and components must be the approval of the Director of the Office of Federal Register, 10 C.F.R. $8 5 1.1, shown to fulfill in 5 54.21 are those functions that are tile bases for including them within the scope of license renewal 5 1.3, and the Federal Register notice indicates such specific approval, 10 C.F.R. 8 as specified in paragraphs (a)(l) - (3) of this section. 160 FR 22491, May 8. 1995, as amended at 61 FR 65175. Dec. l I, 1996; 64 FR 72002. Dec. 23. 199918 5 1.9. A brief review of statutory/regulatory construction confirms the method for incorporating Regulatory Guides. Here 10 C.F.R. Part 50, Appendix E, n. 1;NRC Zh ( I ) Safety-related systems, structures, and components which are those relied uaon to remain hnctional during. and following dcsipn-basis cvenls (as dclincd in I 0 CFR 50.49 (b)(l)) to cnsurc thc lbllowinrr Sunctions-- (i) The intc~+tv o f the reactor coolant pressure bounda~y:(ii) l'he capability to shut down the reactor and maintain it in a safe shutdown condition; or (iii) 'l'he capability to prevent o r initiaate the consequences o f accidents which could result in potential offsite exposures comparable to those rckrred to in t; 50.34(a)(l). $ 50,67lb)(2).o r $ 100.1 1 ol'this chapter. a s apolicablc. (2) All nonsaSctv-rclatd systems, structures, and cotnponents whose failure could prevent satisfactow acconiplishnient o f any o f the fiinctions identified in parapraohs (a)( 1 Hi). (ii). or (iii) o f this section. ( 3 ) All systems, structures, and components relied on in safety analvses o r plant cvaloations to pcrfbrm a funclion that demonstrates compliance with the Commission's regulations for fire protection ( I 0 CFR 50.48), environmenlal qualification (10 CPR 50.491. pressurized thertnal shock ( I 0 CFR 50.61 ). anticipated transients without scrani (10 CFR 50.6?), and station blackout ( I 0 CFR 50.63). (b) The intended functions that these svstems, structures, and coniooncnts must b e shown to lirlfill in 6 54.2 I arc those functions that arc the bases tbr including them within the s c o ~ of c license renewal a s specified in paragraphs (a)( I ) (3) o f this section. 160 FR 22491. May 8, 100.5, as amended at 61 FR 6 5 175, Dec. l I. 1996; 03 F1172002. Uec. 23. 19991
Deleted: f Formatted: Left Staff Regulatory Guide 1.101, Rev. 2 (October, 1981) specifically endorses the incorporation by reference to the criteria and recommendations in NUREG-0654 as "generally acceptable methods for complying" with the standards in 10 C.F.R. 8 50.47. The NRC's emergency planning rules, however, include neither such a designation nor any express intention that NUREG-0654 be incorporated by reference. In the absence of other evidence, adherence to NUREG-0654 may be I sufficient to demonstrate compliance with the regulatory requirements of 10 CFR 8 [ Deleted: 11 7
............Section Break (Next Page) ...........
>0.47(b). However, such adherence to NUREG-0654 is not required, i i Formatted: Font color: Black because regulatory guides are not intended to serve as substitutes for regulations.
[ Formatted: Font color: Black j TMI, ALAB-698, supra, 16 NRC at 1298-99. +Methods and solutions different from ,, those set out in the guides will be acceptable if they provide a basis for the findings requisite to the issuance or continuance of a permit or license by the Commission." Id. at 1299, quoting PaciJic Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), ALAB-644, 13 NRC 903, 937 (1981). Petitioners believe the atomic licensing board erred in this decision. This error was confirmed in the recent ruling regarding storage of spent fbel requiring a NEPA proceeding I compliance prior to the NRC approval. See Sun Luis Obispo Mothers v. NRC 03- -. ..................................................................................... ...........
]
74628,. . . . . Black
,{ Formatted: Font color: Black 1
.Examples include certain Regulatory Guides that provide requirements for ,,,
post-accident monitoring of the TMI incident. These Regulatory Guides describe a method that the NRC staff considers acceptable for use in complying with the agency's regulations and delineate an acceptable means of meeting the General Design Criteria as contained in 10 C.F.R. 50 Appendix A. More than 100 Regulatory Guides have been issued, amplifying the requirements of the General Design Criteria. The NRC developed Regulatory Guide 1.97 to describe a method that the NRC staff considers acceptable for use in complying with the agency's regulations with respect to satisfying criteria for accident monitoring Y,,-A- .Section Break (Next Page) .-> jnstrumentation in nuclear power plants. . - - Specifically,
- - the method
- -- described ,
-iFormatted: Font color: Black in this Regulatory Guide relates to General Design Criteria 13, 19, and 64, as set forth in Appendix A to Title 10, Part 50, of the Code of Federal Regulations (1 0 C.F.R. Part 50), -Domestic Licensing of Production and Utilization Facilities:
Criterion A_ _ '-Instrumentation _ - - - _ _ _ 13 _ _ _ _ .- _ _ -
- -~ -
and Control, requires .. . operating _ .- _ - _ _. . - 1Formatted: Font color: lack I reactor licensees to provide instrumentation to monitor variables and systems over their anticipated ranges for accident conditions as appropriate to ensure adequate safety. Criterion A- _ _ . .19, ...
-Control
. - -. - - - - - . . - . requires Room, .. - . -
operating
._ _ - ~.
- - .. reactor Formatted: Font color: Black 1 licensees to provide a control room from which actions can be taken to maintain the nuclear power unit in a safe condition under accident conditions, including loss-of-coolant accidents (LOCA's). In addition, operating reactor licensees must provide equipment (including the necessary instrumentation), at appropriate locations outside the control room, with a design capability for prompt hot shutdown of the reactor. Criterion 64, -Monitoring Radioactivity Releases, requires
- Deleted: - 2
- - I _J 1
Formatted: Left operating reactor licensees to provide the means for monitoring the reactor containment atmosphere, spaces containing components to recirculate LOCA fluids, effluent discharge paths, and the plant environs for radioactivity that may be released as a result of postulated accidents. The licensee has responded to these communications and states compliance with these communications and makes a commitment in the UFSAR. I In these examples, A - - - - - - - - _ _- - the
- - -Applicant included
---- -the NUREG language in the
- - - - - - 2 FSAR, and by inference one could argue compliance in this case with General Design Criteria 1971. The Applicant could not, however, use the Aging Management Program to argue compliance with other cases, and certainly cannot xllxxlSectton Break (Next Page)-
pse theprogram - - - exclusively.
- The Applicant is potentially holding open
'i Formatted: Font color: Black .
1 options that should be eliminated under the Aging Management Rule. (See Deleted: X). 1 Contention & _ - - - - - - _ _ - _ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
,.( Formatted: Font color: Black J Adispositive
- - - - - - -example
- - ~-
is "General Design Criteria Criterion" 35-Emergency core cooling: A system to provide abundant emergency core cooling shall be provided. The system safety function shall be to transfer heat from the reactor core following any loss of reactor coolant at a rate such that (1) fuel and clad damage that could interfere with continued effective core cooling is prevented and (2) clad metal-water reaction is limited to negligible amounts. Suitable redundancy in components and features, and suitable interconnections, leak detection, isolation, and containment capabilities shall be provided to assure that for onsite electric power system operation (assuming offsite power is not available) and for offsite electric power system operation (assuming onsite power is available) the system safety function can be accomplished, assuming a single failure. See General Design Criteria
c ( Deleted: I Formatted: Left I 35, Final design criteria (1 0 C.F.R. 50 appendix A approved 1971, (36 FR 3256, Feb 20, 1971)). { Formatted: Font color: Black I A The IP2 Final- Safety
.- - -Analysis
. - - Report
- - (FSAR)
- - - does not address Criterion 35
- . . - - . .- - . - - - . - - - - - - - A at all. In neglecting to do so, the IP2 FSAR leaves the General Design Criteria meaningless in its intent to protect the health and safety of the public, and places the plant in clear violation of 10C.F.R. 50 Appendix A. A detailed list of specific violations contained within 10 C.F.R. Part 54 will be provided in supplemental 7 Deleted: !
submittal to this contention,- ~ ~ - . - . . . . - - - - - - - - . - .- - . .
- 4. I L7 Contention 23, Deleted: 1s an '1 t -
, - -( Formatted: Line spacing: Double An.example -_-- isprovided below from review of the limited material available Formatted: Font color: Black 1
to Petitioner by the Licensee, and the regulator.
,criterion-1 0, Reactor design, in which the reactor core and associated
.- - -- - - - - - - - - 1 Deleted: .Sectton Break (Next Page)- 1
'83 coolant, control, and protection systems mist be designed with appropriate margin to assure that specified acceptable fuel design limits are not exceeded during any condition of normal operation, including the effects of anticipated operational occurrences. FSAR Section 5.1.1.1.5, Reactor containment substantiates the Criterion with the following additions:
A The containment
- - - - . - - - - - - _ - .structure
_ . . . . _ .shall be designed (a) to sustain,
. .- - - - _ - . _without
-\ Formatted: Font color: Black 1 undue risk to the health and safety of thepublic, the initial effects of gross equipment failures, such as a large reactor coolantpipe break, without loss of required integrity, and (b) together with other engineered safety features as may be necessary, to retain for as long as the situation requires, the fbnctional capability of the containment to the extent necessary to avoid undue risk to the health and safety of the public. [italics and bold added] These additions provide latitude
and judgment to the Applicant as to what the Architects and Engineers need to do in order to minimally satisfy the criteria but do not support the right for public review of the pertinent documents in a public f o r ~ m * -. - ---- - -- --- -- - ------ -- - -- -- - ------ --- -- -- - -
- - 1 F Black
~F ~
F~~~
~~ ~ : ~ j t - .-
, brief review of Tech Spec requirements contained in Exhibit Q confirms A ,,'
that the misrepresented statement in the FSAR regarding General Design Criteria for Unit 2 is followed through with improper implementation. See e.g.,, Reactor Coolant Leakage. In LC0 3.4.13, reactor containment pressure leakage from primary to secondary systems is allowed in quantities up to 150 gallonsper day. Such quantities are much larger than reasonable limits implicit under General Design Criterion 35. This non-conservative quantity may have contributed to the root cause of the 2000 tube rupture accident and is intolerable as an acceptable " ... ... . . Deleted: '1 quantity for age management of the RCS leakage . ,., ,- Formatted: ~ o n color:t Black
'I- - - - _ _ .. __,-
ed: .Section Break (Next Pag T Contention 24
.A second
- -- _ _ _ example may be found in examination of General Design Criterion
-2 45, through General Design Criterion 6.2.1 -2.Inspection of Emergency Core Cooling System Criterion is the following: Design provisions shall, where practical, be made to facilitate inspection of physical parts of the emergency core cooling system, including reactor vessel internals and water injection nozzles.
I I
. t ~eleted:- 2 -
Formatted: Left (General Design Criteria 45). Here the trade organization inserted the words I Deleted: see 1 "where practical." &Exhibit L p a g e 14).
\ - I 1
I The Applicant bypasses the rules, by failing to properly examine or replace Formatted: Font color: Black reactor core internal components with known susceptibility to failure on multiple I occasions. For example, the components such as baffle bolts that hold down r " - - - - , I { Deleted: ' 1 I springs, lower core barrel, and lower core plate are routinely UT or VTd: d q i n g '
;- *[ Fomatted: Font-color: Black - 1 r
\ Deleted:
- AA). 1 outages and often replaced. (See Exhibit =The. _. process .. .. - - - involves
- . .. _ _ _a _ _ _ _ _ .that- _ - -,. , :--
._machine ( ~ 0 r m . w : Font color: Black 1 typically removes and replaces bolts in an automated procedure which adds two weeks to an outage. Despite the higher reliability of such a process, Indian Point 2 has chosen instead to rely on water chemistry tests which are meaningless for assessing bolt integrity. The reasoning behind the reliance on an inferior method of testing is financial: Water chemistry tests enable Indian Point 2 to substantially reduce lost revenue by shortening the outage time (some estimates are in the order I of millions of dollars per outage day), despite the fact that the health and safety of -iDGli ed7a -.- - - ----- 7 I
.-.-Section II Break (Next Page)-
the public I.... . . is. - sacrificed. _ _ ... . . See exhibit P and the_declaration
. . . ~.
of Ulrich Witte,
~
1x5'11 Formatted: Font color: Black 1 1 Exhibit Q. This is a prima facie violation of 10 C.F.R. 50 Appendix A i_ - _ - _ .. . ___ 1 -- -- Formatted: Font color: Black 1 I The
-L - _ -Applicant
_ - - - .. attempts to- placate
... - - . - - - - - - - - -the
- - issue
.- - - - with
- - - - the
- .. - following
- - - - - - - words
- - .~- - _ - - - .. -.a
{ Deleted: , 1 contained in the L R q -to manage loss of fracture toughness, cracking, change in , , -{ a : Font color: Black I dimensions (void swelling), and loss of preload in vessel internal components, the site will (1) participate in the industry programs for investigating and managing
Formatted: Left 1 aging effects on reactor internals; (2) evaluate and implement the results of the industry programs as applicable to the reactor internals; and (3) upon completion of these programs, but not less than 24 months before entering the period of I extended operation, submit an inspection plan for reactor internals to the NRC for 1 Formatted: Font color: Black 1 review and approval. (,See section A.2.1.141 of the LRA report1 'I This language essentially removes this entire matter from the public's right of input and participation. It is another example of -Agree to agree and bypasses the procedures required by law through the Administrative Procedures Act.
, Formatted: Font color: Black 1 Alternative
- . . . .. - .~
methods _ that act -as- .proposals to comply with the federal rules for license renewal represent guidance only, unless explicitly cited, and developed within the confines of the Administrative Procedures Act. The above examples meet the standards for specific contentions as cited above. This serious and deliberate practice of rewriting federal code without public input is in clear violation of the Administrative Procedures Act and invalidates the (Deleted: 7 1 plans- - - proposed
-- for the technical, safety, and environmental aspects - - - -of
- -entire
' '-'1 Formatted: Font color: Black I LRA, even setting aside the issues of a lack of completeness and vagueness of the description. The misrepresentation has become routine, and the violations so -- .- I- -- - -- .--.
acceptable, that ,the NRC only days a~o,published~notice regarding a leaking and aging 20-inch pipe, described by the media as a -conduit with a pinhole leak, I
'f~ormatted:Font color: Black 1
f Formatted: Left i CONSOLIDATED CDISON INDIAN POlNT K N o 2
, LFSAR FIGURE 9 5-1 FUEL TRANZFER I' SYSTEM ulc Nu 1999MCJ88b [RENO 16A
+
,Misrepresentation - - does violence to the entire.intent . of the agency, and the ,'
Applicant's failure to comply with specific rules of 10 C.F.R. 54, and further violates the Administrative Procedures Act. For example, the 20-inch -conduit is 1
.-+-.-Section Break (Next Page)-
~ t c o n_ -s -i d- -e-r-e-dpart - .~ -of - - -Aging
- -the - - - Management
- - - - - - . . . - Program
. - .. . . - - or part
- - _ .. - of
.. - the
.' 871/
'( Formatted: Font color: Black J environmental program, and the lack of inspection and maintenance of it is not 1 Deleted: Be). - .-j i
considered unlawful. (See Exhibit & . Formatted: Font color: Black Contention 25
,. Formatted: Font color: Black 1 I
The
. _ breadth
.- - _ .and depth of these contentions
.. .. .. .. - . _ _ - _ _ _ . _ _ - - - _ - - - _ . -are
_ _ _extreme._ Even if_ each issue is_ ,' Deleted: NE14.2 and not
.3 classified in the narrow confines of the scope of the Rule (however not ,Q
*, { Deleted: Formatted: Left 1
. I ~ e l e t e dthis :
the GALL Report (but see NUREG 1801 Rev. I ) egregious conduct by the I applicant and the regulatory failure raises questions about any statement made in the LRA, or the Current Licensing Basis for Unit 2. ,The Current Design Basis for ,, "
,, E a n x i z : r - - 7 Indian Point 2 &unknown, unmonitored, and the materiel conditionplso unknown. , .. - . ,
These conditions associated with the CLB were the exact bases for permanent ........................ .................. .................................. Deleted: , I closure of Millstone Unit 1. Deleted: (1 These findings for Indian Point 2 are clearly analogouq and a new The Petitioners question 1 i Deleted: CC I I superseding license has insufficient ground for approval. For those issues raised ,I I Deleted: -Section Break (Next Pager 8s 11 here, no distinct and independent forum is available to adjudicate the magnitude of Finally we question statements that directly conflict with the 1.KA regarding I the misrepresentation and unlawful acts. ,Clearwater auestions how a Board legal conditions to which the LicenseeJApplicant claims it complies with the GDCs. These statements are made in the LRA and its appendices I repeatedly. Yet, Entergy's response to the selected by the Commission can be allowed to judge the acts by the very coalition petition argues exactly the opposite, and further more in contention after contention. See Exhibit DD. 7 Commission that selected it (such as the 1992 letter contained in ExhibitM). The Administrative Procedures Act under chapter 5 provides for adjudication in the
,/ 1 We proffer defmitive prima facie documentation that shows otherwise. We provide that in Exhibit EE. That ( I ) LIC 100 is of no legal significance what so ever, and is nothing more that exactly its title. See Exhibit FF. An office I federal court for exactly this kind of broad unlawful act, instruction for Nuclear Reactor Regulation. Where as responses to generic letters are legally binding, and are enforceable. 7 The core of the both aging management and TLAA rest upon what exactly the design basis is, and that license basis as I ,CONTENTION 27: The _LRA for Indian Point 2 & Indian Point 3 -is 1 defined in $54.3 IS available, and the record has integrity. We find it does not.
I The mandate of the Commission cannot insufficient in managing the environmental Equipment Qualification required I 1 be met without the C1.B known. the by federal rules mandated that are required to mitigate numerous design '. ! GDCS conformed to the rule. and in 1 basis accidents to avoid a reactor core melt, . . _ . . . . - . - . . . - _ _ _ _ _ . - - . . . - - - - - implemented with sound engineering rigor. and then and only then, can renewal analysis have any validity. 11 1 I
+ \\ , Contention 26: Omitted from Petition. 7
------Section Break (Next Page)---
This is a dispute over material facts- not applicable law. Petitioners \\';, i,
. 89
\
,,,,", ,' Formatted: Expanded by
, ' 0.1 pt challenge Entergy's LRA for Indian Point Units 2 and 3 because it fails to comply f Formatted: Font: Bold, Underline j
with (a) 10 C.F.R. 5 50.49(e)(5) & Part 54, -and (b) the federal rules mandated Formatted: Normal, Line spacing: Double
I. +. Deleted: Formatted: Left 1 after the Three Mile Island tragedy to protect the health and safety of the public. (Pet. at p. 187). -Entergy opposes contention 27 on the basis that they claim the contention is outside the scope.- (Entergy brief at p. 96). -The NRC Staff state that this contention is not admissible because it "fails to identify any error or omission in the application.- It is vague and unfocused, and thus fails to meet the requirements of §2.309(f)(l)(i) and (vi). . .PHASE does not explain how 10 C.F.R.
§50.49(e)(5) is violated, or why these assertion establish a dispute with the LRA."
(NRC Staff brief at p. 71). Although Entergy attacks credibility of Petitioner's expert witness, Mr. Witte, Entergy does not submit expert rebuttal, and therefore their allegations must not be considered. Mi-. Witte's expertise is well documented in his CV. Petitioners have met the 6 part test. -Entergy responses argument regarding processes is engineering nonsense.- The current EQ systems that are out of compliance, cannot be credited towards the proposed new license term.- The Applicant credits a -rudimentary economic analysis which concluded that a 50% 1
,change of multiple equipment failure as acceptable.- It is obviously not.- The Break (Next Page)-
1 Advisory Committee on Reactor Safeguards (ACRS) found that this economic analysis evidenced a disregard of federal rules regarding Entergy's CLB, 10 C.F.R. 50.49 and 10 C.F.R. 50.4.- The issue is thus within scope.- Although we are not
Deleted: "'- Formatted: Left conceding that the contention as written does not meet the six part test, Exhibit I provides additional items of particularity. Petitioners assert that the -scientific methodology that was stretched to reach 40 years -and cannot is inadequate to be stretched to 60 years.- The Applicant's LRA has failed to address the aging effects are cumulative and issues of limited hnctionality and integrity of in-scope components such as Instrumentation and -- .- -. ---. I Deleted: Control cables.- Contention 27 is within scope and must be admitted, I Contention 28-32 -The License's ineffective Quality Assurance Program .--- Formatted: Normal I violates fundamental independence requirements of Appendix B, and its ineffectiveness furthermore triggered significant cross cutting events during the past eight months that also indicate a broken Corrective Action Program, and failure of the Design Control Program, and as a result invalidate statements crediting these programs that are relied upon in the LRA, _ _ - _ - -1 Deleted: 1 Formatted: Font: 12 pt, Bold Formatted: Normal, Line spacing: I- Petitioners assert that Entergy's Quality Assurance Program violates the requirements in 10 C.F.R. 50, Appendix B.- (Pet. at p. 204). -Specifically, Double, Don't adjust space between Latin and Asian text, Don't adjust space between Asian text and numbers Petitioners maintain that Entergy's Quality Assurance Program for Aging - ( Deleted: p I Management is ineffective.- (Pet. at p. 204.). >_
, ' I.-Section Break (Nee Page)--
( Formatted: Font: 14 pt 1 Entergy opposes admission of this contention because it falls outside the scope of this proceeding.- (Entergy brief at p. 99). -Additionally, the NRC Staff contend that Petitioners failed to demonstrate that the issues raised are material to
+ , Deleted: i I
Formatted: Left the findings the NRC must make and that Petitioners fail to provide sufficient information that a genuine dispute exists.- (NRC Staff brief at pp. 73-74). Petitioners need only show that the Appendix B program translates to inadequate oversight and the consequences are fundamental to the operational safety of Indian Point 2 and Indian Point 3.- Entergy does not assert that their Quality Assurance Program is in compliance, rather they attempt to claim that the condition or failure of the QA program should not be considered in the NRC's safety review I Petitioners argue that -a managed program for aging of equipment cannot be credit to a program that there is some nexus between the alleged omission and the protection of the health and safety of the public.- Millstone, supra.- The failed Appendix B program translates to inadequate oversight and the consequences are yet again fundamental.- You can't get to a managed program for aging of equipment, when the plant has , a "broken" track record of maintenance, operational issues, corrosion, design basis accidents, have in their roots the Appendix B program that is not independent in violation of 10 C.F.R. 50 Appendix
,. Deleted:
B, Deleted: 3ectlon Break (Next Page),
.Where the Entergy intends to fully credit an existing program as adequate, , . .- -. " " - -. J and it is fundamentally failing to comply with Appendix B, Petitioner and the ASLB have the right and the obligation to bring it into renewal consideration. -To
+. 1Deleted: ignore this, creates conditions which place the public assets and their health and safety at risk.- Entergy does not dispute that the Quality -Control at Indian Point has been seriously reduced and that they have credited this reduced program to be carried into the proposed 20 year additional license term.- Therefore the Quality Control program is within scope. Because contention 28 raises material and i-Deleted-
---. 1 particular issues of fact and law in dispute, it is therefore admissible,
-4Formatted: Normal. Line sDacino: 1 Double, Don't ad~ust's~ace&tween Contention 29: _Failed Quality Assurance P r 0 g r a ~ Lat~nand As~antext, Don't adjust space between Asian text and
,\
\,,
Petitioner's Response to Contention 28 is reference and incorporated hlly, \'.
\
Formatted: Font: Bold 1 as if set forth herein. Contention 29 raises the specific failures during the second quarter of 2007, regarding an attempt to clear interference of sumps while implementing modifications to the vapor containment and recirculation pumps is an example of a cross -cutting issue, were the root cause was improperly attributed and the quality assurance failure was not addressed.- This failure and the methodology used that is being credit to be carried over into the proposed 20 year license period is not I addressed in the LRA.- The root cause of the failure of the current Quality Control I I program has been brought into scope. Contention raises material and 1 Deleted: Contention 1 particular issues of fact and law in dispute and therefore is admissible,
.. Deleted: -
fGiZZ: Left Contention 30, { Deleted: r
. . - _ - _ __ - _ _ -_ -- - - . _ - - _ -- _ _ -_ -_ _ --_ -_ - - _ - __ - _ _ - -, \
Double, Don't adjust space between Petitioner's Response to Contention 28 is reference and incorporated fblly, Latin and Asian text, Don't adjust space between Asian text and [ numbers 1 as if set forth herein. Contention 30 is a second example that supports contention 28, but is its own contention.- It raises a separate and distinct issue that procedure regarding temporary modifications are inadequate. This contention is unchallenged by the Applicant. -It meets the six part test with specificity and particularity.- Temporary modifications will be a substantial element of modifications required if the LRA is granted.- A deficient temporary modification program is fatal a safe transition to { L G e- d - r ] license renewal, Applicant's Appendix B program translates to inadequate oversight and the consequences are fundamental to the operational safety of Indian Point 2 and Indian Point 3. -Entergy does not assert that their Quality Assurance Program is in compliance, rather they attempt to claim that the condition or failure of the QA program should not be considered in the NRC's safety review.- Petitioner's argue I that -a managed program for aging of equipment cannot be credit to a program that I .i Deleted: n I I I as
, a_ "broken"
- _ _ _ _ - track
- - - _ _ . _ _record of maintenance,- _operational issues, corrosion 4 Deleted: >1 design basis accidents, that is in violation of 10 C.F.R. 50 Appendix B, Where the Entergy intends to fully credit an existing program as adequate, and it is fundamentally failing to comply with Appendix B, Petitioner and the
ASLB have the right and the obligation to bring it into renewal consideration.. -To ignore this, creates conditions which place the public assets and their health and safety at risk.- Entergy does not dispute that the Quality -Control at Indian Point has been seriously reduced and that they have credited this reduced program to be carried into the proposed 20 year additional license term.- Therefore the Quality Control program is within scope. Contention 30 raises material and particular issues of fact and law in dispute Deleted:
- J 1
and therefore is admissible to be heard, Formatted: Normal, Line spacing: Double, Don't adjust space between Lat~nand Asian text, Don't adjust Contention 31, ~~ ~ ~ ~ Contention 3 1 is a -separate and distinct contention that raises procedures regarding the failure to establish corrective actions associated with monitoring the service intake bay level.- Failure of Entergy to take corrective action, without the issue being re-identified by the NRC indicates that the current configuration management and control of the facility is insufficient, yet Entergy is crediting their I corrective action program for the proposed additional 20 year term.- This r---.- Deleted: n 7
/ .----Section Break (Next Page) .-..LU....
~ontentionis unchallenged by Entergy.- It meets the six part test with specificity , (9s ri _J and particularity, Configuration management and corrective action programs are substantial systems required if the LRA is granted. A configuration management and corrective action program is fatal to an safe transition to renewal. -Therefore
Formatted: Left 11 Contention 3 1 raises material and particular issues of fact that are in dispute, which Ll--...." Deleted: -
............. y: - ..................... I are admissible and should be heard, 1 Contention 3 1 raises the issue that there appears to be no configuration management control program at either facility., even though -Unit 3 had a commitment to have a bona fide program in place -their keys back in 1996 after being shut down for over a year, -and after being on the NRC's watch list Unit 3.
Based on the examples provided in Contentions 28,29, 30, and 3 1 Petitioners argue that the required program has become completely obliterated and broken, therefore Entergy cannot take credit for it in it's LRA.- Omission of an adequate aging management configuration management control program raises material and particular issues of fact that are in dispute, which are admissible and should be l..Deleted.I .- . . .-. . - .... 1 heard, The examples provided in contentions 28,29,30, and 3 1 all support the notion that if the program is there, it is broken. -Therefore, contentions 28,29, 30, and 3 I should be admissible. el&- a ... - . _ _ - . . - 4 Formatted: Font: 14 pt
- 1 1Deleted: _ ..
Font: Contention 32: Indicators of a failed Safety Culture Work Environment _ . _ . .. J~ Contention 32 is a -separate and distinct contention that raises serious issues with regard to the failure of safety culture assessment and confidence by workers in raising safety concerns.- This contention is unchallenged by Entergy.- It meets
the six part test with specificity and particularity.- Substantial safety work culture being credited in the LRA is -a substantial element in license renewal proceedings. A deficient safety work culture is fatal to an safe transition to renewal. -Therefore -- - - - -. - G-iT&i- 1) Contention 32 should be heard,
* - -{\ Formatted: Normal 1
,CONTENTION
- _ - _. .- - - . -33:
The EIS Supplemental A - - - - - . - _ - Site
- _-Specific
- - - _ _ - - . - - - - Report
- - - - -of - - -LRA
- -the - - - - -is- .-
misleading and incomplete because it fails to include refurbishment plans meeting the mandates-of NEPA, 10 C.F.R. 51.53 post-construction - environmental reports and of 10 C.F.R. 51.21. The contention meets the six part test for admissibility in spite of Entergy's -- 1 Formatted: Normal, Line spaclng: Double, Don't adjust space between Latin and Asian text, Don't adjust I space between Asian text and attempt to discredit the evidence.- The NRC Staff "do not oppose the admission of PHASE Contention 33 for the limited purpose of verifying whether the Applicant has omitted plans to replace the reactor vessel head as a refurbishment item associated with license renewal."- (NRC Staff brief p. 75). The contention meets the six part test for admissibility in spite of Entergy's I attempt to discredit the evidence.- Although Entergy does not deny that a RPV I.--- Deleted: li 1
----Section Break (Next Page)-
bead was purchased, Entergy does not deny they it may replace the heads , 97 11 during the 20 year license period and that will constitute major refurbishment Inspection indicated streaks of brown stains, and there are issues with upper head injection nozzles that are unique to Indian Point Westinghouse Reactors.- This is a
+. k i t e d : Formatted: Left I
major design evolution.- Extensive engineering work is required to establish integrity between an embrittled vessel barrel, and a new head. Even if Entergy did not deliberately omit the information regarding the RPV and refurbishment contemplated during the proposed additional 20 year term, the Doosan "slide show" evidences such information should have been included in the LRA, and have not been left to be brought to the attention of the ASLB by Petitioner's discovery. Petitioners have raised -a concise statement of fact, -have raised material issue of law and fact that are in dispute, and are within scope, therefore Contention 33 is admissible. A CONTENTION
. - -.- -3LPetitioners
- - - - - _ - - - _ -contend
- -_ _ - _ that
.. . . - - accidents
..- . - - - - - - involving
. - - - - - - _the breakdown of certain in scope parts, components and systems are not adequately addressed Entergy's LRA for Indian Point 2 and Indian Point 3, A.
T ~ A 1--. Petitioners contend that accidents involving the breakdown of certain I Formatted: Normal, Indent: First equipment, parts, components, and systems are not adequately addressed in h e : 0.5" I Entergy's LRA for Indian Point Units 2 and 3. /Pet. at p. 226) -Specifically, i=---- i Fntergy's LRA fails to include aging management of the following, '
-----Sect~on 9811 Break (Next Page)-
J including but not limited to, boric acid corrosion, internal bolting, he1 rod control system, duty valve failure, briny reactor water coolant environment, cable degradation, cumulative effect of constant exposure of the reactor vessel to neutron
I. , Deleted: -i Formatted: Left 1 irradiation and reduction in the fracture toughness and ductility of the PWR internal, rehrbishrnent issues, primary water stress corrosion cracking, fatigue of metal components, heat and shell exchange replacement, accident analysis, digital upgrade of the rod control logic and power cabinets, risks of low temperature flow accelerated corrosion, industry wide problem of securing hand contingency spare parts, shortage of engineers with knowledge of pools, premature failure of containment coatings, increasing obsolescence issues of original equipment, reactor vessel issues, and cables.- (Pet. at pp. 226-233). Entergy's LRA does not address certain accidents associated with breakdown of components. Based upon Formatted: Font: Not Ital~c 1 Mass v. United State~~precedence
- - - - - - - -and
- - the rules that
- - - the
- - burden
- - - - - - indicated
- - - - - - - -as
- -the --- - 2
, Formatted: Hlghllght 1 petitioner's actually is out of context. A
-7 The scope meets the threshold of admissibility any of the following; . , -- 7 1
* ... 1 Deleted: (a)
, ................................... .J (a)figing
- - . . ~ the of ~. plant
. structures,
. ~ ~ systems,
. and components . . . . . will
. . . be. . not
. . . . . Formatted: List Paragraph, Space After: 0 pt, Line spacing: Double,
, Numbered + Level: 1 + Numbering sufficiently managed - where one cannot argue they are already sufficiently ' ( \ $;: ~ e ~ '&gqt; ~
\ + Tab after: 0 + Indent at: 0.44 addressed within the current license basis.
ing evaluations ' Formatted: Font. Tlmes New I (c)gnvironrnental impact analysis that is clearly plant specific and not generic,
\
... I 991
[ ~ e ~ e t e d71:
.-..-..Section Break (Next Page)-..-..
Ic, (for example, severe accident risk is out of scope but alternatives to severe Formatted: Font: Times New
?--.Koman -................................. . - -.- .....
I
,. Deleted: 1 accidents are in scopeX _ _ .... _ .- - _ ...... _ _
. .... _ __ - -_ .. - . _ .- - - - Formatted:
Roman, Underline Font: Times New
t.
. [ Deleted: J
'i Formatted: Left I (d)gnything else that one can prove is only possible during the renewal period
. ,\ Deleted: 1 but not during the current license period, ~ - iFormatted: Font: Times New I
+ - Formatted: Normal, Line spacing:
Significantly, expert opinion on this particular topic given Mr. Witte's Double, Don't adjust space between Latin and Asian text, Don't adjust I space between ~ s i a ntext and known expertise in configuration management which was not challenge by expert ..-:[ numbers . ,
,, Deleted: - . "
witness rebuttal, I The contention is admissible under the six part test. T R C regulations require that an applicant provide a complete application under the Section 54.29. Entergy's LRA does not address certain accidents associated with breakdown of components. Petitioners have sufficiently pled sufficient information to show a genuine dispute. 10 C.F.R. § 2.309(0(1). Specifically, a contention "must include I references to specific portions of the application ... that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioner's belief." Although a petitioner must demonstrate that a "genuine dispute exists" at the contention admissibility stage, it need not demonstrate that it will prevail on the perits. See 54 Fed. Reg. at 33,170-71. Similarly, "at the contention filing stage the factual support necessary to show that a genuine dispute exists need not
.-.--.-.Sect~on Break (Next Page).,.
I J
+. . Deleted: J Formatted: Left be in affidavit or formal evidentiary form and need not be of the quality necessary c. .- ...... . . . ..
i Deleted: .- 3 to withstand a summary disposition motion." See 54 Fed. Reg. at 33,170-71, Entergy counters that the contention is beyond the scope of renewal proceedings and that it is not particular, or specific regarding where the application is incomplete. -(Entergy brief at p. 106). -The NRC Staff add that the contention is I not supported.- (NRC brief at p. 77) The contention is admissible under the six part test.- NRC regulations require that an applicant provide a complete application under the Section 54.29. Petitioners have sufficiently pled sufficient information to show a genuine dispute. 10 C.F.R. § 2.309(0(1). Specifically, a contention "must include references to Deleted: 11 7
..---Section Break (Next Page)----.
I specific portions of the application ... that the petitioner disputes and the supporting 101 11 26 For Flow Accelerated Corrosion. simply referring to an approved program such as NSAC 202L Rev 2 IS not specific. reasons for each dispute, or, if the petitioner believes that the application fails to There are examples of plants were they credit EPRls indusny accepted program. but fail to adequately implement it. contain information on a relevant matter as required by law, the identification of Inspection frequency is not specified, but a critical parameter. Actual program scope, inspection frequency, grid selection, and corrective action to each failure and the supporting reasons for the petitioner's belief." -Although a identified pipe thinning is not described. This leaves is public in the dark. Aging of piping will lead to numerous unforeseen petitioner must demonstrate that a "genuine dispute exists" at the contention accident scenarios if not carefully managed. No one predicted that a pipe rupture of an I8 inch line in 1986 first led to four immediate fatalities, then, loss of admissibility stage, it need not demonstrate that it will prevail on the merits. See 54 fire protection controls, and spurious activation of numerous electrically
' controlled devices included dumping of Fed. Reg. at 33,170-71. Similarly, "at the contention filing stage the factual support entire C 0 2 fire protection systems, inoperability of security doors, locking workers into rooms without immediate means to escape, and fmally, threatened necessary to show that a genuine dispute exists need not be in affidavit or formal the safety of reactor operators when C 0 2 drifted or leaked into the unit 2 control room. The causal events where not yevidentiaryform and need not be of the quality necessary to withstand a predicted nor predicable. The risk and PRA associated with this event is being debated after 2 1 years. 7 27 See contention 2 7 . 1 summary disposition motion." See 54 Fed. Reg. at 33, 170-71. -The recent report 28 See contention 35 1
<#>I
, Equipment qualification
Deleted: provided by the Office of the Inspector General regarding deficiencies in licensing renewal proceedings support with question the substance of this contention. (Exhibit N). Petitioners assert that anything that is currently capable of bein described in sufficient detail should be.- Programs for aging management, by contract law -can be and should be precisely articulated- Entergy proffers no rationale for delaying disclosure.- Examples of such programs include Flow - Deleted: 2627 J 27 Accelerated Corrosioq , Equipment cjualifi~ation'~, buried and in , Deleted: 28
- - -3 4 " 9 7 particular, the undisclosed refurbishment plan for the reactor h e a d c
\ .d Contention 35, ,, , Formatted: Font: Bold
- . - -. - . . . ~- .,'
riletz-
~~ ~ ~~~~
7 Withdrawn, > Deleted: -Sect~onBreak (Next Page)+ I .( 29 See contention regarding reactor head '
~
spccilic. There are examples plants were thev credit EPRls industrv acctvted program. hut fail to adeatlately of implement i t , Inspection freauency is not specified, but a critical parameter. Actual program scope, inspection frequency. wid selection, and corrective action to identified pipe thinning is not described. This leaves is public ir the dark. Aging of piping will lead to numerons unforeseen accident scenarios if not caref~~llv managed. N o one prcdictcd that a pipc nlpturc of an 18 inch line in 1986 first Icd to four immcdiatc fatalities. tlicn, loss offirc protection controls, and spurious activation of numerous electricallv controlled devices included dumping of entire C 0 2 firc protection systems, inopcrability of security doors, lockinn workers into roolns without i~n~ncdiatc moans to escape, and finallv, threatened the safety of reactor operators when C 0 2 drifted or leaked into the unit 2 control room. The causal events where not predicted nor oredicahle. The risk and PRA associated with this event is being debated after 2 1 years. 2X See contention 27. 29 See contention 35
I . - Deleted: I Formatted: Left 1 I Contention 36: FAC.
,. Geleted: ?
- - - - - - - - -- . . -- 4 Formatted: Font: 12 ~t 1 A .
In this contention, Petitioners claim that Entergy's program does not include ' - an adequate plan to monitor and manage aging of plant piping due to flow-accelerated corrosion of during the extended period of operation. Management of FAC fails to comply with 10 C.F.R. 8 54.2 l(a)(3).205 I Section 54.2 1(a)(3) which requires that, for each structure and component identified in Section 54.2 l(a)(l), the Applicant "demonstrate that the effects of aging will be adequately managed so that the intended function(s) will be 1 maintained consistent with the CLB for the period of extended operation.- The contention and its related basis is related upon three things.- These are the program as described in the LRA, which the applicant credits as being affective and in place today, (2) the record of the so called effective program to date, and (3) expert ,'-..;-y-- ---1 I 1 opinion provided by Declaration on Ulrich Witte b- .- _ _ _ .. .. . -~ _ ~- - . .. . . ..
, ,.'. . Formatted: Font: (Default)
TirnesNewRornanPSM, 12 pt 1 4 Formatted: Font: [Default) I A The ___ issue
- - - -of
_ the
- - - efficacy
- - - - _ - .-of
- - the
- - -checwork
- - ~
program
- - - - - -is- challenged.
------ ---.. Efficacy can only be confirmed by actual current performance as examined its use at Indian Point.-.-The . .-program
- _ _ .. .is
- - designed
- ._ .. _ - _as _ - _ _ - _ _ _a..trending
_ _essentially - _ _ - _ and _ - _ _ - tool, _ _ - based
- _ . _ ...upon-_ -_ - _ _ _/ ; ion Break (Next Page)-
I trending of wear, then provides selection points for inspection of wall thinning i " I events. Entergy _ - - has since about 2005 implemented ageneric procedure i:, ' 4 - -
- 1 I,
Formatted: Font: (Default)
~irnes~ew~orn~ a ind~h ~
l i ~ h~t, ' Exhibit
-. .. - - Q) .and
.. - -has
- - -not
... - had
- - - success
- - ... - - in this
- .~- - - program
.- _ . - -effective.
- _ - .-being __ _ _
_ . _ - - .+ Examples
- - of. - ..
(Formatted: Font: (Default) I I "' Sce contention regarding reactor head renlacement.
I. *.. failures of the implementation are provided in Exhibit R.4 We maintain that the ,,,' applicant 's program is deficient because it, and there is insufficient benchmarking of the program to correlate a mechanistic examination with an empirical analysis, - ,,;- 1 In this same vein, Petitioners further claim that Entergy has failed to demonstrate "a good track record with use of CHECWORKS." *We note with Formatted: Font: (Default) TimesNewRomanPSMT 1 I interest that this same program implemented another Entergy plant currently in Formatted: Font: (Default) 1 1 renewal proceedings, and was not just admitted, but plso denied motion for I _ 1- Deleted: I summary disposition only months ago. See Exhibit S, .. Formatted: Font: (Default) T~mesNewRornanPSMT We fbndamentally take issue as to the contention meeting the six part test, and the facts we bring clearly show a genuine dispute with the applicant. I {Formatted: Font: (Default) Finally,_we note that yet again vague indescript summag-of the prpgram - _ - 1-I A _ _ _ - --_------- --- ----- --------- - - - - - - ----- provided in the LRA, and that the LRA "fails to specify the method and frequency
\ ,
of component inspections or criteria for component repair or replacement." ,We-- _ _ -, .. - Formatted: TimesNewRornanPSMT(Default) 1 assert that the program provided in the LRA leaves the petitioner forced to conclude that there Entergy has no meaninghl program to address FAC aging phenomena," This content is admissible because it +establishes a genuine dispute d,'
, Formatted: Font TlmesNewRornanPSMT (Default)
I with the applicant on a material issue of law or fact, and without question raises I Deleted: ---- i Issues within the Scope of this Proceeding, ,- Finally the expert, Mr. Witte, is also the expert on the- faulted
- - - - - - identical
----- - - ! Deleted: -Sect~onBreak (Next Page).
Formatted: Font: (Default) T~mesNewRornanPSMT program (See Exhibit T) scheduled for trial at Vermont Yankee this summer.
6 . I ,, /Deleted: Formatted: Left A I A Therefore, while Petitioners note the NRC Staff criticism of Mr. Witte, it should not be considered. +(NRC Staff brief at pp. 8 5-86). A I .-. Despite Entergy's a n d - t k N K Staffs gs~ecion-qf?dmissibilityl (E~tqrgy-
- - . ,, ,- .. ~ .
brief at pp 1 13- 118) based on the foregoing, contention 36 is admissible. h i I CONTENTION 37, I. Don't adjust space between Lat~nand Aslan text, Don't adjust space I I\,, CONTENTION 3 8 ~ M i c r o b i a laction potentially threatens all the stainless*, steel components, pipes, filters and valves at Indian Point@sue - - - 99
- of EIS),
,\
I Entergy-does
~
- - -not
. deny-the
- - microbial
- - - - -~. - corrosion
. ~ .
- ~
. issues
-~ - - raised
- . by Contention 1
\
qt, I I 38.+The seriousness of the eyewitness account should not be ignored by the ASLB, . I I t , ,\
\ '
sb,
! d l especially in light of the recent corrosion issues with the new, yet to be installed )
1 1 I,',
! ' \ I 11111 siren system, in which the manufacture has claims that the corrosive nature of the , I
'i '1 Deleted: 1 Hudson River has caused the unexpected corrosion.- Microbial corrosion was . -
omitted from the LRA and therefore Entergy does not have an aging management '\, program to address this during the 20 year license period, - .
,In Contention 38 Petitioners have raised issues of fact that are in dispute and ,, --
should be admitted and heard.
-., { ~ e l e t e d : Formatted: Left
-- -- 1
.Withdrawn. . .
CONTENTION 40 A - - - - - - _ _ - - - - - _ _ A A - - - - - - - _ - - - - - - - - _ - - - - - - - - - - - - - - Withdrawn because it is a duplicate of Contention 14, -- ____ - _ - __ - _ ------_ , I ': ~
\
Roman, Not Bold CONTENTION-41 : ,Entergy's high level, long-term or permanent,-nuclear , kaste durnd on the bank of the Hudson River. w$v % \
*\'
IA
+\ I!\
\ '
Contention 41 meets the six part test for admissibility.* The - _ - passive
---- - - - - - - - - - - - I,,';,y
,\I '!,P components, structure and systems of the Interm Storage Fuel Installation (ISF) for spent fuel storage is site specific *and within . ~. scope.
- - A - . . . . - .- - - . - .- -
F ~ n llne t 0 25", Don't adjust space L At Diablo Canyon, the ASLB panel - . acknowledged that the - - petitioners had I
, >I submitted substantial evidence that the proposed ISFSI presents a significant safety l,hl: '1'1'
/ 'I '/'/
1, I;, ,I issue, The proposed expansion of the spent fuel storage facility is inherently risky. 11' Especially if sited in a seismically active area. Like Indian Point both the power I ' 1I L 1 Formatted: Font: Times New generation and spent fuel storage facilities at Diablo Canyon present targets for Roman, Font color: Black Formatted: Font: Tlmes New cataclysmic acts of terrorism and sabotage. As such, the safety and environmental Roman, Font color: Black risks inherent in the proposed expansion of DCPP's spent fuel storage facility must
- to the extent consistent with plant security - be evaluated carefully and publicly.
Additionally Enter Deleted: .Section Break (Next Page). Formatted: Font: T~mesNew 1 Roman, Font color Black costs of constructing, operating and decommissioning the proposed ISFSI which is necessary in during the 20 year new license period, due to the additional high level
Deleted: Formatted: Font. T~mesNew radioactive waste that will be produced during that time. +Therefore the Roman, Font color: Black I environmental impacts of the ISFI are within scope, yet Entergy does not identify (Deleted: 1 I an aging management program to handle such impacts, ,, I *
\
Formatted: Font: Tlmes New Roman, Font color: Black I The 2,000,000 pounds of high level radioactive waste is currently maintained on site. During the proposed 20 year C - - - - . additional license appro-ximately 1,O_q0000 _ _/' Formatted: Font: T~mesNew
,' Roman, Font color: Black 1 pounds will be added to that, yet there a solution to disposal of this waste does not exist.,This is an issue of fact that must be raised and hlly adjudicated during the ,,'
,, Formatted: Font: Tlmes New Roman, Font color: Black I I relicensing proceedings, as it directly impacts the aging management of the plant
,[ ~ o r m a t t e d : Font: Times New i I and the environmental impact of the _site.,In fact the proposed +licenseperiod I ' ' I Roman. Font color: Black I jncreases the long term- -waste - - storage by 50%. Petitioners have submitted the expert testimony of Gordon Thompson with regard to Robust Spent Fuel Storage. A -
' Formatted: Font: Times New The Waste Confidence Rule was written in 1995 many years prior to the Roman, Font color: Black Formatted: Font: Times New contemplation of dry cask storage as the only option for increasing spent fkel. L _ - - - ,
, Roman, Font color: Black 1 Therefore the dry cask storage is an in scope component necessary to the new license term, and therefore site specific issues caused by the new use of Indian Deleted: .-Sectlon Break (Next Page)..
107 11 Point cite for long term high level radioactive was storage, will be carried into the Staff claims that spent fuel storage is as a Generic issue, but Petitloners claim it is not a generic issue, but site specific and proposed new license period. there is new evidence of large quantities of unidentified and unremiedated leaks that must be addressed in the relicensing proceedings.. The current non-Contentions
- - - - - - - - - -41
- - -raises
- - - - particular
. . . . . . . . .issues
. . . . . .of
. .law
. . . .and
. . . .fact
. . . .that
. . . .are
. . .within
... scope
--- compliance and failure to stop leaks will be carried over into the new superseding license period and therefore within scope.
and are in dispute, and which Entergy failed to address in the LRA; thus Formatted: Font: Times New Roman. Font - color: Black I Contention 41 is admissible and should be heard k _ - - - - _ - - - - - - _ __ _ _ - I Deleted: I 7 I - 1 Formatted: Font: T~mesNew Roman. Font color: Black 1
CONTENTION 4 L Dry Cask Storage (Issue 83L The Independent Spent Fuel Storage Installation (SFSI ) being constructed at ' Indian Point for the purpose of holding the overflow of nuclear waste on site . for decades, and probably more than a century, must be fully delineated and addressed in the aging management plan and, moreover constitutes an independent licensing issue, _ _ _ _ _ _ - _ _ - - _ _ _ _ _ _ - _ _ - - _ _ _ _ _ _ _ _ _ - - - _ - _ - _ .- A Contention
- - . - 42 meets the six part test -for- admissibility.
. .. - -- . 4-Thepassive
_ - ---- _ - _ - -. J components, structure and systems of the +dry cast storage are site specific j n d within scope. A
.The Waste Confidence Rule was written in 1995 many years prior contemplation of dry cask storage as the only option for increasing spent hel.
Therefore the dry cask storage is an in scope component necessary to the new license term, and therefore site specific issues caused by the new use of Indian point cite for long term high level radioactive was storage, will be carried . &Ion Break (Next Page)- into the proposed new license period.- The specificity of nal ( Roman, Font color: Black dry cask storage as set forth in this Contention is based on conference with staff f Formatted: Font: Times New (Roman, Font color: Black 11 and is not speculation as Entergy proposed. . _ . - - . .. . - - _ .. _ _
~.- _ - - - - - ~~ - - ~~ -
I v i I Formatted: Left I Once Petitioner is accepted as a party we will apply for a waiver to consider { Deleted: I, this issue as a Category 2, site specific issue, ,' Formatted: Font: Times New Roman. Font color: Black I At Diablo Canyon the ASLB panel acknowledged that the petitioners had submitted substantial evidence that the proposed ISFSI presents a significant safety I issue, The proposed expansion of the spent he1 storage facility is inherently risky. Especially if sited in a seismically active area. Like Indian Point both the power generation and spent he1 storage facilities at Diablo Canyon present targets for ,,'
, Formatted: Font: Tlmes New Roman, Font color: Black 1 cataclysmic acts of terrorism and sabotage. As such, the safety and environmental I risks inherent in the proposed expansion of DCPP's spent fuel storage facility must
- to the extent consistent with plant security - be evaluated carehlly and
,I Deleted:
I J 1 publicly ,_ _ _ ~ ~ ~ - _ _ - _ _ _ _ . - - _ _ - - . . .- - - ~ . - . , . Formatted: Font: Times New 1 I Roman, Font color: Black I Additionally Entergy has not demonstrated that it is financially able to cover the costs of constructing, operating and decommissioning the proposed dry cask storage required to continue operation of the plant for an additional 20 year new license period. Therefore the environmental impacts . . . . . .of
. . the
. . . . dry
. . . . .cask
. . . storage are ,*
, Formatted: Font: Times New Roman, Font color: Black 1
within scope, yet Entergy does not identify an aging management program to handle such impacts -. The 2,000,000 pounds of high level radioactive waste is currently maintained on site. *During _ _ _ __theproposed _ _ - - - - _ _20_ year
- _ _ additional
_ _ _ _ _ _ _ _ license _ _ _ - - _ approximately
,. Formatted: Font: T~mesNew Roman, Font color: Black 1,000,000 pounds will be added, yet there no longer term +solutionto disposal of ,,'
v Formatted: Left this waste.+This is an issue of fact and law that must be raised and fblly - Roman, Font color: Black
', Formatted: Font: Tlmes New adjudicated during the relicensing proceedings, as it directly impacts the aging management of the plant and the environmental impact of the >ite.,In fact the ,
proposed license period jncreases the long term waste storage by SO%.-The current dry cask pad is inadequate to hold the additional waste and yet the Applicant's LRA fails to consider this and address the aging management program Formatted: Font: Tlmes New
,' Roman, Font color: Black for this additional waste. ,
/
, .- Formatted: Normal, Llne spaclng:
+ Double Since long term and potential permanent dry cask storage -was not a contemplated use of the site when it was initially sited, before this use can be credited and carried into the proposed additional 20 year license term a full review and evaluation of the site, including public comment is required.- This is new information and the reality of dry cask storage on site for an unknown term brings it within scope as it is a major component that must be included and must be I
--7 reviewed as site specific material issue of fact, ,* 7-...-.....-...................,,.,..,,..,.... ,.
,I Deleted: -&ection Break (Next Page).? 1 I
Contentions
- - - - . -. . . .. ..42
- raises
- - - - - particular,
- - .- - - - - _ _ concise
- - _ - _ - _material
_ - - - - - -issues
- . . - ..of
- - law
- - - -and fact of components, and systems that are passive and necessary for the continued I numbers I operation of Indian Point, which Entergy failed to address in it's LRA. Such -A - . - .- - - - .~
Roman, Font color: Black material issues of law and fact are in dispute, thus Contention 42 is admissible and Formatted: Font: Tlmes New Roman, Font color: Black 1 should be heard Roman. Font color: Black
I I
-, Deleted: Formatted: Left J
Contention 43: The closure of Barnwellwill - - - turn
- - - - -Indian
- - - - - -Point
- - - -into
- - - -a- low
- - - -level-radioactive waste storage facility, a reality the GEIS utterly fails to address, Formatted: Normal and a fact which warrants independent application with public comment and Font: Bold, Font color:
'\
This Contention satisfies the sixpart I _ _ _ - - - - - . - . - - - - _ - - - - - - - - - test. Entergy does not contest that in
.<A-spaclng: Double, Don't adjust space scope nature of this issue.-The new information - - - that
- - Bamwell
- - - - will
-- . -no
- --- - - - -longer
- - - -be - - - -
between Lat~nand As~antext, Don't adjust space between As~antext and I accepting low- level radioactive waste from Indian Point is not addressed in the
,{~ormatted: Font: Times New
'Oman I
LRA, nor is an aging management program identified to handle low level waste. A - _, ,' The Applicant's failure to include this material issue of fact in the LRA does not excuse it from being a material issue that is in dispute, Fs(i:--z...l
* ( Double The Applicant has the obligation to submit an LRA that addresses aging management issues, to fail to address the handling of low level waste disposal for the 20 year license period at Indian Point, is evidence of the incompleteness of the I LRA. The LRA is mute on this. -Because the Applicant omitted low level waste
/ Deleted: 11 7
-Section Break (Next Page)-
panagement
- - form the LRA does not prevent it from being -a-material
~ - - - - - ~~ - - - . -issue- - - -
~
,, III r of dispute.
I The Applicant's attempt to characterize Petitioner's contention as speculative, -and place in question the industry known reality that Bamwell is 1 spacing: Double, Don't adjust space between Latin and Asian text, Don't adjust space between Asian text and numben 1 closing its doors to Indian Point in 2008, is evidence of the Applicant failure to provide necessary information.- Low level waste management is an essential in
I. . Deleted: - I
'iFormatted: Left scope systems for which a fbnctional aging management plan is -required -and \
@el&: ._J planned for during the superseding license period, Since low level waste storage was not a contemplated use of the site when it
. Formatted: Normal, L ~ n espaclng:
Double I was initially sited, before this use can be credited and carried into the proposed additional 20 year license term a fbll review and evaluation of the site, including .........-a,....-. .... " " " . .
, iDeleted: 3 public comment is required,
, Formatted: Font: Not Itallc I Staffs quote regarding pcennee o@y&als-wji& "high-!e_v_e! wee.:'=Low - - - level A / "
waste management is an essential in scope systems required to be fbnction and ". - . planned for during the ~upercedinqlicense period, The LRA is mute on this. -Because -it is omitted from the LRA, as if it doesn't exist, or as if there was a plan to dispose of the waste does not prevent it I from been a material issue of dispute.- Staff does not refute the fact that Barnwell I is closing and that there is no plan to dispose of the low level waste, 1
/ ,
r'---{ Deleted: "Section Break (Next Page> 1129 Formatted: List Paraara~h.Line 1 spacing: Double, on! adjust space I Therefore Contention
~ -~ - - -
- 43. .
raises an issue of .fact
. . . . .~ - ~ ~~.
that is within, and thus, is ,
. - - - - .. ... - .- .~. - - .~ between Latin and Asian text, Don't adjust space between Asian text and admissible, ,CONTENTION 44: *The Decommissioning Trust Fund is inadequate and
_ - - - - plan F_ntergy's to mix funding
- _ -- --- _ _ _ _ - -across
_ - - - - -Unit 29 - 1_ and _ - - -violates
------ -commitments
_ - - - - - - - - - - not - -- acknowledged in the application and 10 CFR rule 54.3, . In light of the massive underground leaks of strontium, tritium and cesium c I I adjust space between Asian text and I Indian Point is one of the dirtiest sites in the country.
+..:* {Deleted: Formatted: Left
, 1 I A location in the middle of some of the most expensive real estate in the nation.+As such, the adequacy of the decommissioning hnds is a material issue and is relevant to the ASLB's approval of a 20 year license extension.
Petitioners +contend that the decommissioning funds have not been adjusted to take into account the evidence of these leaks as report in the January 7,2007
,, ' Formatted: Font: Tlmes New Oman 1
, Formatted: Font: T~mesNew Oman 1
GZA report.+Additionally the funds have not been recalibrated on decommissioning costs derived from 60 years of non-linear growth in Formatted: Font: Times New Roman 1 contamination. The applicant does ~ - - . not
- - present concrete evidence . . that it has
- - - - ~ - ~ ,~ ~ - ~
4 Formatted: Font: Times New i J 1 Koman adequate funds to clean up the site. A Applicant also claims that the decommissioning is not related to the Formatted: Font: T~mesNew 1-Roman extended operation of the plant.,Petitioners
- - - _ _ - - -assert
- .- - - Applicant's
- .- ._ - -statement
. .. .- - - -is_ -short sighted and self serving, when it is an issue of fact the recalibrated I decommissioning costs must be adjusted from 60 years of non-linear growth in r I , 1 Deleted: 1 1 I contamination. Entergy's- - - -claim I _ _ _ _ _ _ _ - -that
- _ _ _50.75
- - - ~ _offers
_ _ - _ _ adeguate _ monitoring _and ____ ,,
.--.--Sertion 1...!..!.1.~ .,,.,
Break (Next Page)-
. J oversight of the adequacy of the decommissioning funds is refute when the calculations of the biennial reports evidence that the decommissioning funds have only been adjusted by 1% a year, rather adjusted as required to the cost of living
, Formatted: Font: Times New Koman 1
increases at the rate of 3% a year. This short fall extended over the 20year - _ _ _ _ _ _ _ _ _ ' proposed additional license period will cause disparity in 2035 dollars by approximately 40%, which would substantially reduce Entergy's ability to properly
I f Formatted: Left 1 and fully decommission the plant.+A mismanaged fund is the same as no Formatted: Font: Times New Oman 1 management at all.
.- Formatted: Normal, Indent: First
*' line: 0.5",Line spacing: Double Entergy's position contradicts Commission's determination in prior action that WestCAN can raise adequacy of Decommissioning Fund in Relicensing proceedings. (Pet. at pp. 293) (NRC Staff brief at p. 101). -This argument by Entergy is one of convenience and attempts to thwart Petitioner's ability to address a substantive issue of aging management a system necessary for the safe decommissioning of the plant.- Entergy's claim that the only time to raise this is after the LRA is approved greatly reduces and limits Petitioner's right to the point of making Petitioner's concerns ineffectual.- The record in CLl-00-22 is clear, that the Commission refused to hear issues of the adequacy of the decommissioning fund in the license transfer application and said that it should be raised under . . .-.. .,.,. ........ . . ....- ,. ,., , ,,,,..,.,.
relicensing. ,, Formatted: Font: 14 pt Entergy alleges that the Commission was disingenuous in making such a statement and really never meant that -decommissioning could be raised under relicensing Under Entergy's assertion the Commission was only using it as a ruse to prevent Petitioners from raising the adequacy of decommissioning fund in either I meaningful proceeding -Petitioner's do not accept that the Commission would act -..~ --- , - -. in such an unjust manner, -and therefore Entergy's assertion much be rejected,
The decommissioning h n d is not only a current license issues, but pertains I to -and is carried into t h e superseding license period. The NRC regulations require that an adequate decommissioning h n d be available prior to the issuance of a license. I- Staffs position contradicts Commission's determination in prior action regarding license transfer of Indian Point 3 where it stated that WestCAN can raise adequacy of decommissioning fund during Relicensing proceedings. (P 293 of our Petition or p 101 of Staff response). This argument by Staff is one of convenience and attempts to thwart Stakeholders rights to address a substantive issue. -Staff claims that the only time to raise this is after the LRA is approve is self serving and . . ------ 7
, Deleted: J would cause Petitioner's rights to be greatly limited and made ineffectual, Decommissioning in not only a current license issue, but pertains to -and is carried
( Deleted: J in to the superseding license period, (~eleted:-Sect~onBreak (Next Pager 1 Fontention 44 is pled with specificity and raises material issues disputing
- fact and law regarding the adequacy of the decommissioning required under 10 C.F.R. 54.3 and 10 C.F.R. 50.75 -in order for approval of the proposed 20 year license.
- 1. Formatted: Left J
Contention 45: -Nan-Compliance with NYS DEC Law - Closed _Cycle Cooling _"Best Technology Available" Surface Water _Quality, Hydrology and Use (for all plants). ._ 4 Formatted: Font: Times New 1 I
- /..
Formatted: List Paragraph, Line
, - - --- ------ - - - . - - - - - - - - --. . - - spacing: Double, Don't adjust space between Latin and Asian text, Don't h
adjust space between Asian text and This contention is within scope, and Entergy does not assert otherwise. numbers Formatted: Normal, Indent: F~rst Entergy's assertion that until the matter pending in New York with respect to line: 0.5",Line spaclng: Double Entergy's discharge permit is resolve with finality, the NRC is constrained to assess the pending LRA on the basis of the currently- permitted system, is inaccurate. -NRC staff has acknowledged that without a discharge permit the NRC cannot grant a operating license to Entergy, and New York State DEC has already determined that a retrofit with close cycle cooling is required to meet EPA standards.- Thus, -Petitioner's assert that until the matter is resolved there is -a matter of law in dispute that is specific and particular, and clearly meets the
/ Deleted: 11 ?
-Section Break (Next P age).- /
threshold of admissibility and should be heard, - - - - . - - ,
. ....1
' ' 1 ;1....1.. 6 .,,,,. , .... . .. ... ..
Finally until the matter pending in New York with respect to Entergy's discharge permit is resolved with finality, the NRC is constrained to assess the LRA on the basis of the currently permitted system" seems dead wrong for a basis for not admitting the contention. *The opposite should be ~ g u e dUntil- . ~ the-matter _ _ ,<, I is resolved we have a matter of law in dispute that is specific and particular, and iDeleted: 1 clearly meets the threshold of admissible r .- - - - - - _ - - - - _ _ - _ _ - _ __ _ .. _ _ - __ - - - -
,., :. .- Formatted: Font: Times New Oman 1
Formatted: Normal I CONTENTION 46: -Omittea -- - - - --- - - ---- --- ~~ - -- -- - ------- - - - - - .. . - - .-,, '
,I Deleted:
Formatted: Font: Bold 1 1
I. * , 1Deleted: 1
' &matted: Left Contention 47: Cancer rates surrounding the plant: The Environmental
*- - .- Formatted: Normal I
Report Fails to Consider the Higher than Average Cancer Rates and Other Health Impacts in Four Counties Surrounding Indian Point,- - - _ _ _ - _ _ _ _ _ - _ _ _L: - - Entergy A ___ - claims "ofe~ thg~~*>ypppfiedPsp_eculation
. - - - - -. - - - - - -regarding
- - - - - _releases
- - - - - - in
_ -the:: between Latin and Asian text, Don't future", however Petitioners assert that the new information regarding the I projected future radiological leaks provided in the leak study by GZA for Entergy 1 of January 7,2008, must be incorporated into the EIS with regard to projected ( Deleted: -
\
,I I future leaks and the Cumulative site specific health issues, - -
1Formatted: Font: Times New Formatted: Font: Tlrnes New 1 1 Koman Petitioners have cited New York State Cancer zip code studies *as_ejdence__ _ / ' that thyroid cancer rates in the two miles surrounding Indian Point is 70" higher than areas further away.Thisiscjeg-evidencethatthee,h_ealthimpacts~fIndian- _ - --. Deleted: 11 P_oint currently_ and
-- _ -_ --- _ _ _ _ -credited
____ - _into _ _ _ the _ _ -proposed
- - _ - new
- _ _ licensing
.- - _ - - _ period
. _ _ _ _ -is
_ _not
-_ - - - - A-Section 117 (I Break (Nexi Page)-- 1i small, but significant and therefore cannot be considered a Category 1 issue.
Entergy fails to challenge Petitioner expert witness, Joseph Mangano with expert rebuttal, and only cites unrelated and distinct studies. +Therefore_kE$ergygy's_ ,:.I challenge to Mr. Mangano's declaration is without basis and must be dismissed, _ _ ->,...'- I Once Petitioner is accepted as a party we will apply for a waiver to consider - - I I-- Deleted: J this issue as a Category 2, site specific issue, Thus, Contention 47 raises material issues of law and fact that are dispute and therefore is admissible, , *' 2 - [Deleted:
- -( Formatted: Font: Times New Roman
{ Deleted: -- CONTENTION 48: Environmental Justice - _CorporateWelfare A . . . . . . . . . . . . . . . . . . . - . . - . . - - - -. ....................................
+,
*, \
- , 4 Formatted: Font: Bold, Underline, 1 Petitioner's reassert that~the. .issue of fair trade is a material issue of fact and ,, '.
A . .- . . . . . . - ~ ~ -. . -. . . . . . . ~- ~~ ~ . ~ law that is relevant to the proposed 20 year license. *Entergygy and the nudea_r__ -- _ _ _ ', 1 Don't adjust space between Asian text and numbers industry are spending billions of dollars, including millions of taxpayer dollars, to L
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promote false propaganda about how inexpensive, renewable and clean. The .L _ -- - - - - _ - , adlust space between Asian text and I numbers Commission may use it's discretion to consider the true carbon foot print of nuclear power from mining to decommissioning, which is comparable to coal fire plants and to require a comparative study of the true costs, specifically the tax dollars used to support nuclear vs. any other energy technology in order to even the .-.. ...
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, , J playing field, Formatted: Font' Tlmes New
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1 J Large communities of sustenance fisherman are ingesting and feeding life 1 threatening tritium and strontium laced fish and shellfish to their families caused
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by the ongoing leaks at Indian Point. +These leaks will continue during the
- ........................................... L proposed 20 year license period, rather than decommissioning and cleaning up the
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site to prevent such contamination., In accordance with 10 C.F.R. 2.309(f)(3) and Consolidated Edison Co. (Indian Point, Units 2 & 3), CLI-01-19, 54 NRC 109, 132 (2001), where both Petitioners independently established standing, the Presiding Office has the discretion to permit Petitioners to adopt the others' contention early in the
, keleted: Formatted: Left I proceeding. Petitioners join and adopt Cleanvater's contention number p n this ,,,'
issue. A 1
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,Once Petitioner is accepted as a party we will apply for a waiver to consider ,,'
this issue as a Category 2, site specific issue,
- - - 10 C.F.R. 2.309(9(3) and Consol.
)n accordance with - - Edison Co. (Indian
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(~ormatted: Font. Tlmes New Point, Units 2 & 3),,,CLI-0 1- 19, 54 NRC 109, 132 (200 1) where both Petitioners ,:' - have independently established standing, the Presiding Officer may permit Formatted: Font: T~rnesNew Roman 1 Petitioners to adopt the others' contention early in the proceeding. Petitioners- join - ' Formatted: Font: T~mesNew '1 and adopt Cleanvater's, and any other parties, contention(s) on this issue. , ~. - - - ~ ~ ~
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Contention 49: Global warming- Withdrawq ----- .. &CONTENTION,SO: Beplacement Options: Stakeholders contend that the + i -,' - energy produced by Indian Point can be replaced without disruptions as the plants reach the expiration dates of their original licensesAL I\'\
'\, '.'\ 1 Roman. No underline I
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fipplicant have failed to consider reasonable alternatives for 2 158 MW of
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1 Formatted: Font Tunes New Roman. No underline Formatted: Font T~mesNew electricity, as required by 10 CFR 5 1. *They on consider solar and wind as options it', !, Roman, NO underl~ne
',I. 1 Formatted: Font: Not Bold, No 11 to carry base load, and totally ignore the stability of geothermal and wave ' [ underl~ne Formatted: No underl~ne generated power.. Additionally they jncorrectly repeat in their answer that +answer solar and wind are not always available and is speculative.,Energy's refusal to
', \, Formatted: Font: Times New acknowledge the ability of alternative energy to replace Indian Point is both short ormatted.. Font: Times New Formatted: Font: Times New Oman
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Formatted: Left 1 sighted and self-serving.*They ignore current state of art technologies, including , , nanosolar and small wind generation which produces energy on cloudy and rainy
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days, and on days with little or no wind., The failure of the Applicant and Staff to consider reasonable replacement energy is evidenced a narrow and closed minded approach that denies the current
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feasibility sustainable energy. , The Levitan Associates report and the Academy of Science report sponsored by Congresswoman Nita Lowey serve as expert reports that support Petitioners reasonable approach to replacement energy as a reasonable alternative to Indian
, { Deleted: j Point continued operation during the proposed 20 year license period L . . . - - . -
Formatted: Font: Times -.--.
- -New 1 Deleted: -Seeion Break (Next Paaek 1 Oman Font: Times New 1 Entergy specifically was used to build sustainable energy systems the energy
, Formatted: Font: Times New 1 produced by Indian Point could be completely replaced. This
-L - . is
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- .- speculative but
, Koman factual , Formatted: Font: Times New Roman I Entergy's failure to provide a comprehensive study of replacement energy is inadequate and self serving. Entergy's conclusionary statement that "alternative 1Formatted: Font: Times New 1 L /
Roman simply cannot with current technology, provide the - -necessary
- - - - . - amount
- of baseload 2 ,*
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power" is misleading and unsupported by expert witness rebuttal.-4 Communities _ _ _ _ _ - _ _ _ _ _ _in2:_ the United State such as Sacramento have closed nuclear plants and have produced
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more than sufficient replacement energy, as well as +created new jobs - - - and
- - - - ~ _ - - ~ _ -
.. Deleted: I f Formatted: Left I economies._ Energy's failure +,to present reasonable alternative fails to fulfill the , ,, ,
i Formatted: Font: Times New requirements of 10 CFR 5 1 and is complete inadequate. . Formatted: Normal, Llne spaclng: Double, Don't adjust space between Thus, contention 50 meets the criteria for admissibility and must be 1 Latin and As~antext, Don't adlust space between AsIan text and numbers 1I admitted,
,CONTENTION 50-1: Failure to Address Environmental Impacts of Intentional Attacks & Airborne Threat3 - - - - - - - . -- --- - - - - - - - - - -
Entergy's failure to address the environmental impacts and costs of intentional attacks and airborne threats of terrorism is unjustified especially at Indian Point the uniquely most attractive and vulnerable terrorist targets in the pation.-The fact that the 911 1 terrorist flew directly over Indian Point and
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considered it as a target prior to settling on the World Trade Center causes this Break (Next Page)- issue to be germane to the relicensing proceedings. A i 1Formatted: Font color: Black For the Commission not to require the Applicant to comply with the Ninth's Circuit's remand in the Diablo Canyon proceeding, is unreasonable in relicensing Formatted: Font color: Black 1 proceedings for Indian Point.+The Commission refusal not to require the consideration of the impacts of a terrorist attack is a failure of the Commission to 4 Formatted: Font color: Black 1 up hold their organizing mandate ,to adequately protect the public health and safety ,,' 2 Formatted: Font color: Black 1 in violation of the Administration Procedure Act.+Therefore, this Contention raises ,, material issues of fact and law that are admissible and should be heard.
+ Deleted: Formatted: Left Contention 51: Inability to Access Proprietary Documents Impedes Adequate Review of Entergy Application for License Renewal of IP2 LLC and IP3 LLC, [Deleted:
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+ ( Double Entergy claims that Petitioners assertion that proprietary information was withheld is incorrect. -Petitioner's reiterate with specificity that the documents I Entergy failed to provide are: t h e CLB including all modifications, exemptions, exceptions and deviations, -and additions to such commitments over the life of the license, and appendices thereto; orders, license conditions, exemptions, exceptions and deviations; and technical specification -and -extensive redactions in the FSAR, UFSAR, including leak reports and leak maps that were shown at public meetings, but specifically denied to Susan Shapiro and other Petitioners, upon multiple - . -- - -3 requests to Entergy and the NRC dated -6129107, 7/6/07 -and -914107 Break (Next Page)- 1 (attached hereto). Entergy claims that Petitioners never contacted Entergy, when in fact Susan Shapiro had attempted through numerous communications attached Formatted: Font color Black 1 hereto to obtain such information. -NRC representative,Richard - -Barkley
.- - - -of -the NRC has told FUSE that the maps are proprietary property of Entergy. They will not become available until after the NRC receives Entergy's leak report later this fall, which makes the October 1,2007 deadline to file Intervener Petitions highly prejudicial in favor of the licensee at the expense of the Stakeholders and other citizens whose best interests are supposed to be served by this Federal regulatory Deleted: 1 body, ~ ~ . ~ ~ -
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+- .. - -\Deleted: Formatted: Left 1 Clearly, these leak maps and the upcoming leak report +contain vital
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, Formatted: Font color: Black 1 information ,directly related to potential environmental impacts and infrastructure ,,
, Formatted: Font color: Black 3 aging issues, and consequently Entergy's LRA.,_T_hemaps_a_renecessary~fp_r- _____ _ / '
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Stakeholders to file properly and hlly documented Intervener contentions, ,.- I, ,- Formatted: Font color: Black 1 In fact, the NRC used these maps to discuss the leaks in public meetings Formatted: Font color: Black 1 with representatives of Riverkeeper, Clearwater and IPSEC. -In addition these , ,' maps, minus the Cesium map, were displayed in the lobby of a public meeting, (--- . - Deleted: 1 J however copies were unavailable, , - {Formatted: Font color: Black 1 1 Formatted: List Paraoraoh. Line 1 spaclng: Double, on! a'dj;st space Documents that have been made _ unavailable_ _under the claim of groprietary information denying Petitioners their constitutional rights to redress, as required in
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fhe guidelines of the NRC Code of Regulations meant to protect human health and
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72 Page 73: [16] Formatted Ulrich K. Witte 3/17/2008 3:57:00 PM Normal, Line spacing: Double Page 73: [17] Formatted OADP 3/17/2008 3:57:00 PM Font: Bold Page 73: 1181 Change OADP 3/17/2008 3:57:00 PM Formatted Table Page 73: [I91 Formatted OADP 3/17/2008 3:57:00 PM Font: Bold Page 73: [20] Formatted OADP 3/17/2008 3:51:00 PM Font: Bold Page 73: [21] Formatted OADP 3/17/2008 3:57:00 PM Font: Bold Page 73: [22] Formatted Ulrich K. Witte 3/17/2008 3:57:00 PM Normal Page 73: [23] Formatted OADP 3/17/2008 3:57:00 PM Font color: Black Page 73: [24] Formatted OADP Font: (Default) Times New Roman, 11 pt Page 73: [25] Formatted Ulrich K. Witte 3/17/2008 3:57:00 PM Normal Page 73: [26] Formatted OADP 3/17/2008 3:57:00 PM Font: (Default) Times New Roman, 1 1 pt Page 73: [27] Formatted OADP 3/17/2008 3:57:00 PM Normal, Line spacing: Double Page 73: [28J Formatted OADP 3/17/2008 3:57:00 PM Font: Arial, Font color: Black Page 73: 1291 Formatted OADP 3/17/2008 3:57:00 PM Font color: Black Page 73: [30] Formatted OADP 3/17/2008 3:57:00 PM Font color: Black Page 73: [31] Formatted OADP 3/17/2008 3:57:00 PM Font color: Black Page 73: [32] Formatted OADP 3/17/2008 3:57:00 PM Font color: Black Page 73: 1321 Formatted OADP 3/17/2008 3:57:00 PM Font: (Default) Times New Roman, 11 pt Page 73: [333 Formatted OADP 3/17/2008 3:57:00 PM Font color: Black Page 73: [34] Formatted OADP 3/17/2008 3:57:00 PM Font color: Black Page 73: 1351 Formatted OADP 3/17/2008 3:57:00 PM
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73 Date: Docketed Activity Reference Implications to fidelity of the License Amendment ( Criteria that was forwarded to the AIF for comment. The AIF forwarded comments and stated it believed the criteria should be published as an effective rule after reflecting its comments. These comments have been reflected in the GDC in Appendix "A" I I November 16,1970 See January 28,1971 The staff met with an ad hoc AIF February 1970 NRC discussion of group, which included AIF GDC comments. representatives of reactor manufacturers, utilities and architect engineers to discuss the revised General Design Criteria. The comments of this group were reflected in a June 4, 1970 draft of the revised General Design Criteria that was forwarded to the AIF for comment. The AIF forwarded comments and stated it believed the criteria should be published as an effective rule after reflecting its comments. These comments have been reflected in the GDC in Appendix "A". Page 75: [47] Deleted bnml 3/17/2008 3:57:00 PM "Our technical safety review of the design of this plant has been based on Amendment No. 9 to the application, the Final Facility Description and Safety Analysis Report (FFDSAR), and Amendments Nos. 10-25, inclusive. All of these documents are available for review at the Atomic Energy Commission's Public Document Room at 1717 H Street, Washington, D.C. The technical evaluation of the design of this plant was accomplished by the Division of Reactor Licensing with assistance" from the Division of Reactor Standards and various consultants to the AEC. This document gave them authority to operate the facility under the draft GDCs but without the AIF comments specifically for the Reactor Protection and Control System. As noted, "Specifically, for the reactor protection system instrumentation for -Indian Point Unit 2 is the same as that installed-at the Ginna plant. The adequacy of the protection system instrumentation was evaluated by comparison with the Commission's proposed general design criteria published on: July 11, 1967, and the proposed IEEE criteria for nuclear power plant protection system (IEEE-279 Code), dated August 28, 1968. The basic design has been Page 75: 1481 Deleted bnml 3/17/2008 3:57:00 PM
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7 4 Date: Docketed Activity Reference Implications to fidelity of the License Amendment reviewed extensively in the past and we conclude that the design for Indian Point 2 is acceptable". I February 20 1971 A third modified The USAEC is urged to require through July 11 construction permit was Consolidated Edison to 1971 Novernber 4, issued for Units #1 and establish a firm schedule for 1971 #2. The proposed implementing this proposed relocation of the intake modification because of changes in structures by Con the design of the adjustable Edison was a discharge ports and slide gates. significant improvement and entered into this decision. Page 75: [49] Deleted bnml 3/17/2008 3:57:00 PM Formerly Draft GDCs are approved Final GDCs and become part of Appendix A to 10 CFR 50. They are amended the same year. Page 75: [SO] Deleted bnml 3/17/2008 3:57:00 PM-These are the first legal standards for which the plant is required to comply or under federal rules, or be granted an exemption. Page 75: [51 Deleted bnml 3/17/2008 3:57:00 PM November 4, 1971 A third modified I The USAEC is urged to require construction permit Consolidated Edison to establish was issued for Units a firm schedule for implementing
# 1 and #2. The this proposed modification proposed relocation of because of changes in the design the intake structures of the adjustable discharge ports by Con Edison was a and slide gates.
significant improvement and entered into this decision. Unit 2 Operating SER states that the plant is License Received licensed to 1967 draft general design criteria without endorsement of AIF comments. Commission issues a Unit 2 FSAR dated The commission concurred on confirmatory order June 2001 states that January 1982. on February 11, the detailed results of 1980 the order indicate that the plant is in compliance with the then current General Design Criteria established in 10CFRSO Appendix
September SECY 92-223, Letter to James The Commission 18, 1992 "resolutions of Taylor, approved the staff deviations identified Executive proposal in which the during the Director for plant was not required systematic Operations to comply with federally evaluation program" approved General Design Criteria, if construction permits were issued prior to May 2,1971. This is a clear and flagrant violation of the Administrative Procedures Act. n u m . . -.--.--...Seaion
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75 Date: Doc reted Activity Reference In ~licationsto fidelity of the License Amendment June I Unit 2 FSAR section 1.3 General I The license with col'lateral states incorrectly Design Criteria, endorsement of the federal that the General Unit 2 UFSAR, and regulatory agency bypassed Design Criteria indicates under a the administrative rules act, tabulated explicitly footnote that the and thus reduced its in the pertinent safety analysis commitments made to obtain systems comprised report added trade its operating license to less the proposed trade organization than the minimum legal 1 organization comments in the requirements of 10 CFR 50 change to the FSAR. Appendix A which were (see footnote within made law more than two Section 1.3.) years prior to the NRC granting the applicant an operating license for Unit 2. The reductions of safety margin and reasonable assurance of protection of the health and safety of the public have been compromised for over three decades, without the public understanding of the loss of margin in safety. Subsequently, Entergy allowed the error to remain and is actually currently committing Unit 2 to trade organization design criteria. Page 1W: [52] Formatted OADP 3/17/2008 3:57:00 PM List Paragraph, Line spacing: Double, Don't adjust space between Latin and Asian text, Don't adjust space between Asian text and numbers Page 104: [ E l Deleted bnml 3/17/2008 3:57:00 PM
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