ML082130436

LB Memorandum and Order (Ruling on Petitions to Intervene and Requests for Hearing)

ML082130436
Person / Time
Site:	Indian Point
Issue date:	07/31/2008
From:	Lathrop K, Lawrence Mcdade, Richard Wardwell Atomic Safety and Licensing Board Panel
To:
SECYRAS
References
07-858-03-LR-BD01, 50-247-LR, 50-286-LR, RAS-E-128
Download: ML082130436 (238)

Text

LBP-08-13 UNITED STATES OF AMERICA DOCKETED 07/31/08 NUCLEAR REGULATORY COMMISSION SERVED 07/31/08 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. 50-247-LR and 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. ASLBP No. 07-858-03-LR-BD01 (Indian Point Nuclear Generating July 31, 2008 Units 2 and 3)

I. INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1 II. STANDING ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 A. Standards Governing Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4 B. Rulings on Standing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 III. CONTENTION ANALYSIS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5 A. Standards Governing Contention Admissibility . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

i. Brief Explanation of the Basis for the Contention . . . . . . . . . . . . . . . . . . . . . . 7 ii. Within the Scope of the Proceeding . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 iii. Materiality . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7 iv. Concise Allegation of Supporting Facts or Expert Opinion . . . . . . . . . . . . . . 8

v. Genuine Dispute Regarding Specific Portions of Application . . . . . . . . . . . 10 vi. Challenges to NRC Regulations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10 IV. CONTENTION ADOPTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11 V. SCOPE OF NUCLEAR POWER GENERATING FACILITY RELICENSING PROCEEDINGS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13 A. Environmental Review Pursuant to Part 51 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14 B. Part 54, Technical Review for Reactor Relicensing . . . . . . . . . . . . . . . . . . . . . . . . 14 VI. NEW YORK STATE CONTENTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15 A. NYS-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

i. Background - NYS-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16 ii. Board Decision - NYS-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18 B. NYS-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

i. Background - NYS-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21 ii. Board Decision - NYS-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23 C. NYS-3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

-ii-

i. Background - NYS-3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24 ii. Board Decision - NYS-3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26 D. NYS-4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

i. Background - NYS-4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 ii. Board Decision - NYS-4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 E. NYS-5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

i. Background - NYS-5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29 ii. Board Decision - NYS-5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34 F. NYS-6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

i. Background - NYS-6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36 ii. Board Decision - NYS-6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38 G. NYS-7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

i. Background - NYS-7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 ii. Board Decision - NYS-6 and NYS-7 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40 H. NYS-8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41

i. Background - NYS-8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41 ii. Board Decision - NYS-8 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44 I. NYS-9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46

i. Background - NYS-9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 46 ii. Board Decision - NYS-9 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49 J. NYS-10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52

i. Background - NYS-10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52 ii. Board Decision - NYS-10 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54 K. NYS-11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57

i. Background - NYS-11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 57 ii. Board Decision - NYS-11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59 L. NYS-12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61

i. Background - NYS-12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 61 ii. Board Decision - NYS-12 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 64 M. NYS-13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65

i. Background - NYS-13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 65 ii. Board Decision - NYS-13 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 67 N. NYS-14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69

i. Background - NYS-14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 69 ii. Board Decision - NYS-14 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 71 O. NYS-15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72

i. Background - NYS-15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 72 ii. Board Decision - NYS-14/15 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 74 P. NYS-16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75

i. Background - NYS-16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 75 ii. Board Decision - NYS-16 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 78 Q. NYS-17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79

i. Background - NYS-17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79 ii. Board Decision - NYS-17 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 82 R. NYS-18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83

i. Background - NYS-18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 ii. Board Decision - NYS-18 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85 S. NYS-19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

i. Background - NYS-19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 85

-iii-ii. Board Decision - NYS-18/19 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 86 T. NYS-20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 88

i. Background - NYS-20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 ii. Board Decision - NYS-20 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 U. NYS-21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91

i. Background - NYS-21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 91 ii. Board Decision - NYS-21 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 V. NYS-22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93

i. Background - NYS-22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 93 ii. Board Decision - NYS-21/22 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94 W. NYS-23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95

i. Background - NYS-23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 95 ii. Board Decision - NYS-23 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97 X. NYS-24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 97

i. Background - NYS-24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 98 ii. Board Decision - NYS-24 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 100 Y. NYS-25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101

i. Background - NYS-25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 101 ii. Board Decision - NYS-25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 103 Z. NYS-26/26A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104

i. Background - NYS-26/26A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104 ii. Original Contention: NYS-26 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 iii. LRA Amendment 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 107 iv. Supplemental Contention: NYS-26A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 109

v. NYS Supplemental Citation in Support of Admission of NYS-26A . . . . . . . 111 vi. Board Decision - NYS-26/26A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 112 AA. NYS-27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117

i. Background - NYS-27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 117 ii. Board Decision - NYS-27 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 BB. NYS-28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120

i. Background - NYS-28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 120 ii. Board Decision - NYS-28 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 124 CC. NYS-29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126

i. Background - NYS-29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 126 ii. Board Decision - NYS-29 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 129 DD. NYS-30 and NYS-31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131

i. Background - NYS-30 and NYS-31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 131 ii. NYSs Response to the NRC Staffs Change in Position . . . . . . . . . . . . . . 135 iii. Board Decision - NYS-30 and NYS-31 . . . . . . . . . . . . . . . . . . . . . . . . . . . 137 EE. NYS-32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142

i. Background - NYS-32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 142 ii. Board Decision - NYS-32 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 145 VII. STATE OF CONNECTICUT CONTENTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 A. Connecticut EC Spent Fuel Pool . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147

i. Background - Connecticut EC-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 ii. Board Decision - Connecticut EC-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149 B. Connecticut EC Evacuation Protocols . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

i. Background - Connecticut EC-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150

-iv-ii. Board Decision - Connecticut EC-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 151 VIII. RIVERKEEPER CONTENTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 A. Riverkeeper TC-1/TC-1A . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153

i. Background - Riverkeeper TC-1/TC-1A . . . . . . . . . . . . . . . . . . . . . . . . . . . 153 ii. LRA Amendment 2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 158 iii. Amended Contention Description (TC-1A) . . . . . . . . . . . . . . . . . . . . . . . . 159 iv. Board Decision - Riverkeeper TC-1/TC-1A . . . . . . . . . . . . . . . . . . . . . . . 161 B. Riverkeeper TC Flow Accelerated Corrosion (FAC) . . . . . . . . . . . . . . . . . . . . 162

i. Background - Riverkeeper TC-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 163 ii. Board Decision - Riverkeeper TC-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 167 C. Riverkeeper EC-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169

i. Background - Riverkeeper EC-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 170 ii. Riverkeeper Response to the NRC Staffs Change in Position . . . . . . . . . 173 iii. Board Decision - Riverkeeper EC-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 174 D. Riverkeeper EC-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 175

i. Background - Riverkeeper EC-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 176 ii. Board Decision - Riverkeeper EC-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 180 E. Riverkeeper EC-3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184

i. Background - Riverkeeper EC-3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 184 ii. Board Decision - Riverkeeper EC-3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 187 IX. CLEARWATER CONTENTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188 A. Clearwater EC-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 188

i. Background - Clearwater EC-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 189 ii. Board Decision - Clearwater EC-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192 B. Contention EC-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 192

i. Background - Clearwater EC-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 193 ii. Board Decision - Clearwater EC-2 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 195 C. Contention EC-3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196

i. Background - Clearwater EC-3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 196 ii. Board Decision - Clearwater EC-3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 200 D. Clearwater EC-4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203

i. Background - Clearwater EC-4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 203 ii. Board Decision - Clearwater EC-4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205 E. Clearwater EC-5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205

i. Background - Clearwater EC-5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 205 ii. Board Decision - Clearwater EC-5 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 207 F. Clearwater EC-6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 209

i. Background - Clearwater EC-6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 210 ii. Board Decision - Clearwater EC-6 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211 X. CORTLANDT CONTENTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211 A. Cortlandt Technical / Health / Safety Analysis Contention TC-1 . . . . . . . . . . . . . . 212

i. Background - Cortlandt TC-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 212 ii. Board Decision - Cortlandt TC-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214 B. Cortlandt Technical / Health / Safety Analysis Contention TC-3 . . . . . . . . . . . . . . 214

i. Background - Cortlandt TC-3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 214 ii. Board Decision - Cortlandt TC-3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217

-v-C. Cortlandt Miscellaneous Contention MC-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218

i. Background - Cortlandt MC-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 218 ii. Board Decision - Cortlandt MC-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219 D. Cortlandt Miscellaneous Contention MC-3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219

i. Background - Cortlandt MC-3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 219 ii. Board Decision - Cortlandt MC-3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221 XI. WESTCHESTER COUNTY PETITION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221 XII. CONNECTICUT RESIDENTS OPPOSED TO RELICENSING OF INDIAN POINT (CRORIP) CONTENTIONS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221 A. CRORIP EC-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 221

i. Background - CRORIP EC-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 222 ii. Board Decision - CRORIP EC-1 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224 XIII. CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 224

MEMORANDUM AND ORDER (Ruling on Petitions to Intervene and Requests for Hearing)

I. INTRODUCTION Pending before the Board are Requests for Hearing and Petitions to Intervene filed by seven Petitioners in response to a Notice of Opportunity for Hearing issued on October 1, 2007,1 concerning an application by Entergy Nuclear Operations, Inc. (Entergy or Applicant) to renew its operating license for the Indian Point Energy Center (IPEC or Indian Point), for twenty years beyond the current expiration date of September 9, 2013, for Unit 2 (IP2) and December 12, 2015, for Unit 3 (IP3).2 Petitions are pending that were filed by the State of New York (NYS),3 the State of Connecticut (Connecticut),4 Riverkeeper, Inc. (Riverkeeper),5 1

Entergy Nuclear Operations, Inc., Indian Point Nuclear Generating Unit Nos. 2 and 3; Notice of Opportunity for Hearing Regarding Renewal of Facility Operating License Nos. DPR-26 and DPR-64 for an Additional 20-Year Period: Extension of Time for Filing of Requests for Hearing or Petitions for Leave To Intervene in the License Renewal Proceeding, 72 Fed. Reg.

55,834 (Oct. 1, 2007). This notice extended the deadline listed in the original notice, Entergy Nuclear Operations, Inc., Indian Point Nuclear Generating Unit Nos. 2 and 3; Notice of Acceptance for Docketing of the Application and Notice of Opportunity for Hearing Regarding Renewal of Facility Operating License Nos. DPR-26 and DPR-64 for an Additional 20-Year Period, 72 Fed. Reg. 42,134 (Aug. 1, 2007), for the filing of requests for hearing or petitions for leave to intervene in the proceeding from October 1, 2007 to November 30, 2007.

2 Indian Point is located in Buchanan, New York, on the Hudson River, approximately thirty-five miles north of New York City, 3

New York State Notice of Intention to Participate and Petition to Intervene (Nov. 30, 2007) [hereinafter NYS Petition].

4 Petition for Leave to Intervene, Request for Hearing and Contentions of Richard Blumenthal, Attorney General of Connecticut, for the License Renewal Proceeding for Indian Point Nuclear Generating Unit Nos. 2 and 3, DPR-26 and DPR 64 (Nov. 30, 2007) [hereinafter Connecticut Petition].

5 Riverkeeper, Inc.s Request for Hearing and Petition to Intervene in the License Renewal Proceeding for the Indian Point Nuclear Power Plant (Nov. 30, 2007) [hereinafter Riverkeeper Petition].

Hudson River Sloop Clearwater (Clearwater),6 the Town of Cortlandt, New York (Cortlandt),7 Connecticut Residents Opposed to Relicensing Indian Point (CRORIP),8 and Westchester County, New York (Westchester).9 In addition, five petitioners who sought to be admitted have been dismissed from the proceeding.10 Entergy and the NRC Staff filed Answers addressing these Petitions.11 Each Petitioner filed a Reply.12 6

Hudson River Sloop Clearwater Incs Petition to Intervene and Request for Hearing (Dec. 10, 2007) [hereinafter Clearwater Petition].

7 Town of Cortlandt Request for Hearing and Petition to Intervene (Nov. 29, 2008)

[hereinafter Cortlandt Petition].

8 Connecticut Residents Opposed to Relicensing of Indian Point and Its Designated Representatives Petition to Intervene and Request for Hearing (Dec. 11, 2007) [hereinafter CRORIP Petition].

9 Westchester Countys Notice of Intention to Participate and Petition to Intervene (Dec.

7, 2007) [hereinafter Westchester Petition].

10 Petitions to Intervene were filed by the Village of Buchanan, New York, the City of New York, the New York Affordable Reliable Electricity Alliance, and Friends United For Sustainable Energy (FUSE). Those organizations were dismissed early on in this proceeding.

Licensing Board Order (Denying the Village of Buchanans Hearing Request and Petition to Intervene (Dec. 5, 2007) (unpublished); Licensing Board Order (Denying the City of New Yorks Petition for Leave to Intervene) (Dec. 12, 2007) (unpublished); Licensing Board Order (Denying the New York Affordable Reliable Electricity Alliances Petition to Intervene) (Dec. 12, 2007)

(unpublished); Licensing Board Order (Granting the NRC Staffs Motion to Strike FUSEs Superceding Request for Hearing) (Feb. 1, 2008) (unpublished). In addition, a Petition to Intervene was submitted by Westchester Citizens Awareness Network, Rockland County Conservation Association, Public Health and Sustainable Energy, the Sierra Club - Atlantic Chapter and Richard Brodsky (collectively WestCAN) on December 10, 2007. We dismiss WestCAN from this proceeding in an Order that accompanies this Memorandum. Licensing Board Order (Striking WestCANs Request for Hearing) (July 31, 2008) (unpublished).

11 Answer of Entergy Nuclear Operations, Inc. Opposing New York State Notice of Intention to Participate and Petition to Intervene (Jan. 22, 2008) [hereinafter Entergy NYS Answer]; Answer of Entergy Nuclear Operations, Inc. Opposing Petition for Leave to Intervene, Request for Hearing and Contentions of Richard Blumenthal, Attorney General of Connecticut (Jan. 22, 2008) [hereinafter Entergy Connecticut Answer]; Answer of Entergy Nuclear Operations, Inc. Opposing Riverkeeper, Inc.s Request for Hearing and Petition to Intervene (Jan. 22, 2008) [hereinafter Entergy Riverkeeper Answer]; Answer of Entergy Nuclear Operations, Inc. Opposing Hudson River Sloop Clearwater Incs Petition to Intervene and Request for Hearing (Jan. 22, 2008) [hereinafter Entergy Clearwater Answer]; Answer of (continued...)

A petitioner who seeks leave to intervene as a party in an adjudicatory proceeding must (1) establish standing, and (2) proffer at least one admissible contention.13 For the reasons discussed below, we grant the Requests for Hearing and Petitions to Intervene of NYS, Riverkeeper, and Clearwater, because we conclude that they have each established standing and have proffered at least one admissible contention. We deny the Requests for Hearing and Petitions to Intervene of CRORIP, Cortlandt, Connecticut, and Westchester. Although each has established standing, we conclude that they have failed to proffer an admissible contention.

11

(...continued)

Entergy Nuclear Operations, Inc. Opposing Town of Cortlandt Request for Hearing and Petition to Intervene (Jan. 22, 2008) [hereinafter Entergy Cortlandt Answer]; Answer of Entergy Nuclear Operations, Inc. Opposing Request for Hearing, Petition to Intervene and Petition for Waiver of Connecticut Residents Opposed to Relicensing of Indian Point (Jan. 22, 2008) [hereinafter Entergy CRORIP Answer]; Answer of Entergy Nuclear Operations, Inc. Opposing Westchester Countys Notice of Intention to Participate and Petition to Intervene (Jan. 22, 2008) [hereinafter Entergy Westchester Answer]. NRC Staffs Response to Petitions for Leave to Intervene Filed by (1) Connecticut Attorney General Richard Blumenthal, (2) Connecticut Residents Opposed to Relicensing of Indian Point, and Nancy Burton, (3) Hudson River Sloop Clearwater, Inc., (4) the State of New York, (5) Riverkeeper, Inc., (6) the Town of Cortlandt, and (7) Westchester County at 26 (Jan. 22, 2008) [hereinafter NRC Staff Answer].

12 New York State Reply in Support of Petition to Intervene (Feb. 22, 2008) [hereinafter NYS Reply]; Reply of Richard Blumenthal, Attorney General of Connecticut to Entergys and NRC Staffs Answers to Hearing Request and Petition to Intervene with Respect to Indian Point License Renewal Proceeding (Feb. 8, 2008) [hereinafter Connecticut Reply]; Riverkeeper, Inc.s Reply to Entergys and NRC Staffs Responses to Hearing Request and Petition to Intervene (Feb. 15, 2008) [hereinafter Riverkeeper Reply]; Hudson River Sloop Clearwater Incs Reply to Entergy and the [NRC] Responses to Clearwater Petition to Intervene and Request for Hearing (Feb. 8, 2008) [hereinafter Clearwater Reply]; Town of Cortlandts Reply to (1) NRC Staffs Response to Town of Cortlandts Request for Hearing and Leave to Intervene and (2) Answer of Entergy Nuclear Operations, Inc. Opposing Town of Cortlandts Request for Hearing and Leave to Intervene (Feb. 8, 2008) [hereinafter Cortlandt Reply]; Connecticut Residents Opposed to Relicensing of Indian Point (CRORIP) and Nancy Burtons Reply to Answers of NRC Staff and Entergy Nuclear Operations, Inc. Opposing Request for Hearing, Petition to Intervene and Petition for Waiver (Feb. 8, 2008) [hereinafter CRORIP Reply]; Westchester Countys Reply (Feb. 8, 2008) [hereinafter Westchester Reply]. The participants in this proceeding also filed numerous supplemental briefs pursuant to unpublished Board Orders.

13 See 10 C.F.R. § 2.309(a).

However, Cortlandt, Westchester, and Connecticut may participate in the hearing as interested governmental entities pursuant to 10 C.F.R. § 2.315(c).

II. STANDING ANALYSIS A. Standards Governing Standing A petitioner must provide basic information supporting its claim to standing in order to satisfy the requirements of 10 C.F.R. § 2.309(d)(1)(ii)-(iv). This information must include (1) the nature of the petitioners right to be made a party to the proceeding; (2) the nature and extent of the petitioners property, financial, or other interest in the proceeding; and (3) the possible effect of any decision or order that may be issued in the proceeding on the petitioners interest. In addition, the NRC generally follows judicial concepts of standing,14 which require that a petitioner (1) allege a concrete and particularized injury that is (2) fairly traceable to the challenged action and (3) likely to be redressed by a favorable decision, commonly referred to as injury in fact, causality, and redressability.15 In order for organizations to demonstrate standing to intervene, they must allege that the challenged action will cause a cognizable injury to the organizations interests or to the interests of its members.16 When seeking to intervene as the representative for its members, an organization must identify a member by name and address, show how that member would be affected by the licensing action, and demonstrate that the member has authorized the 14 Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-98-21, 48 NRC 185, 195 (1998).

15 Id. (citing Steel Co. v. Citizens for a Better Envt., 523 U.S. 83, 102-04 (1998); Kelley

v. Selin, 42 F.3d 1501, 1508 (6th Cir. 1995)).

16 Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant, Unit 1),

LBP-07-11, 65 NRC 41, 52 (2007).

organization to request a hearing on his or her behalf.17 In addition, the NRC applies a so-called proximity presumption, whereby a petitioner is presumed to have standing to intervene without the need specifically to plead injury, causation, and redressability if the petitioner lives within fifty miles of the nuclear power reactor.18 Meanwhile, a State or local governmental entity that wishes to be a party in a proceeding that involves a facility located within its boundaries is automatically deemed to have standing.19 B. Rulings on Standing Neither Entergy nor the NRC Staff has challenged the standing of the Petitioners whose Requests for Hearing and Petitions to Intervene are currently before the Board. Each organization seeking to intervene in this proceeding has demonstrated institutional injury to the organization itself and also demonstrated that it is authorized to represent members who individually have standing. Accordingly, the Board finds that each Petitioner has demonstrated standing to intervene in this proceeding.

III. CONTENTION ANALYSIS A. Standards Governing Contention Admissibility Pursuant to 10 C.F.R. § 2.309(f), an admissible contention must (1) provide a specific statement of the legal or factual issue sought to be raised; (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 17 Id.

18 See, e.g., Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-01-6, 53 NRC 138, 146-50 (2001) (applying the presumption in an operating license renewal proceeding); Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Units 1 and 2), CLI-89-21, 30 NRC 325, 329 (1989) (observing that the presumption applies in proceedings for nuclear power plant construction permits, operating licenses, or significant amendments thereto).

19 10 C.F.R. § 2.309(d)(2)(i)-(ii).

to support the action that is involved in the proceeding; (5) provide a concise statement of the alleged facts or expert opinions, including references to specific sources and documents, that support the petitioners position and upon which the petitioner intends to rely at hearing; and (6) provide sufficient information to show that a genuine dispute exists with regard to a material issue of law or fact, including references to specific portions of the application that the petitioner disputes, or in the case when the application is alleged to be deficient, the identification of such deficiencies and supporting reasons for this belief.20 The purpose of the contention rule is to focus litigation on concrete issues and result in a clearer and more focused record for decision.21 The Commission has stated that it should not have to expend resources to support the hearing process unless there is an issue that is appropriate for, and susceptible to, resolution in an NRC hearing.22 The Commission has emphasized that the rules on contention admissibility are strict by design.23 Failure to comply with any of these requirements is grounds for the dismissal of a contention.24 20 10 C.F.R. § 2.309(f)(1)(i)-(vi).

21 Changes to Adjudicatory Process 69 Fed. Reg. 2,182, 2,202 (Jan. 14, 2004); see also Vermont Yankee Nuclear Power Corp. v. Natural Res. Def. Council, 435 U.S. 519, 553-54 (1978); BPI v. AEC, 502 F.2d 424, 428 (D.C. Cir. 1974); Philadelphia Elec. Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20 (1974).

22 69 Fed. Reg. at 2,202.

23 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3),

CLI-01-24, 54 NRC 349, 358 (2001), pet. for reconsideration denied, CLI-02-1, 55 NRC 1 (2002).

24 69 Fed. Reg. at 2,221; see also Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999); Arizona Pub. Serv. Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI-91-12, 34 NRC 149, 155-56 (1991).

The application of these requirements has been further developed as summarized below:

i. Brief Explanation of the Basis for the Contention A brief explanation of the basis for the contention is a necessary prerequisite of an admissible contention.25 [A] petitioner must provide some sort of minimal basis indicating the potential validity of the contention.26 The brief explanation helps define the scope of a contention - the reach of a contention necessarily hinges upon its terms and its stated bases.27 ii. Within the Scope of the Proceeding A petitioner must demonstrate that the issue raised in the contention is within the scope of the proceeding,28 which is defined by the Commission in its initial hearing notice and order referring the proceeding to the Licensing Board.29 Any contention that falls outside the specified scope of the proceeding must be rejected.30 iii. Materiality In order to be admissible, a petitioner must demonstrate that the contention asserts an issue of law or fact that is material to the findings the NRC must make to support the action that 25 10 C.F.R. § 2.309(f)(1)(ii).

26 Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,170 (Aug. 11, 1989).

27 See Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-28, 56 NRC 373, 379 (2002); see also Pub. Serv. Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-899, 28 NRC 93, 97 (1988), affd sub nom.

Massachusetts v. NRC, 924 F.2d 311 (D.C. Cir. 1991), cert. denied, 502 U.S. 899 (1991).

28 10 C.F.R. § 2.309(f)(1)(iii).

29 Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-825, 22 NRC 785, 790-91 (1985).

30 Portland Gen. Elec. Co. (Trojan Nuclear Plant), ALAB-534, 9 NRC 287, 289-90 n.6 (1979).

is involved in the proceeding. That is, the Petitioner must demonstrate that the subject matter of the contention would impact the grant or denial of a pending license application.31 Materiality requires that the petitioner show why the alleged error or omission is of possible significance to the result of the proceeding.32 This means that there must be some significant link between the claimed deficiency and either the health and safety of the public, or the environment.33 iv. Concise Allegation of Supporting Facts or Expert Opinion Contentions must be supported by a concise statement of the alleged facts or expert opinions which support the requestors/petitioners position on the issue . . . together with references to the specific sources and documents on which [it] intends to rely to support its position.34 It is the obligation of the petitioner to present the factual information and expert opinions necessary to support its contention adequately.35 Failure to do so requires that the contention be rejected.36 Determining whether the contention is adequately supported by a concise allegation of the facts or expert opinion is not a hearing on the merits.37 The petitioner does not have to 31 10 C.F.R. § 2.309(f)(1)(iv).

32 Portland Cement Assn. v. Ruckelshaus, 486 F.2d 375, 394 (D.C. Cir. 1973), cert.

denied sub nom. Portland Cement Corp. v. Admr, E.P.A., 417 U.S. 921 (1974).

33 Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), LBP-96-2, 43 NRC 61, 75-76 (1996), revd in part on other grounds, CLI-96-7, 43 NRC 235 (1996).

34 10 C.F.R. § 2.309(f)(1)(v).

35 Georgia Institute of Tech. (Georgia Tech Research Reactor, Atlanta, Georgia),

LBP-95-6, 41 NRC 281, 305, vacated in part and remanded on other grounds and affd in part, CLI-95-10, 42 NRC 1 (1995), and CLI-95-12, 42 NRC 111 (1995).

36 Palo Verde, CLI-91-12, 34 NRC at 155.

37 Pub. Serv. Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-82-106, 16 (continued...)

prove its contention at the admissibility stage.38 The contention admissibility threshold is less than is required at the summary disposition stage.39 Nevertheless, while a Board may appropriately view [p]etitioners support for its contention in a light that is favorable to the

[p]etitioner,40 a petitioner must provide some support for his contention, either in the form of facts or expert testimony.

Mere notice pleading is insufficient. A petitioners issue will be ruled inadmissible if the petitioner has offered no tangible information, no experts, no substantive affidavits, but instead only bare assertions and speculation.41 Further, if a petitioner neglects to provide the requisite support for its contentions, the Board should not make assumptions of fact that favor the petitioner, or supply information that is lacking.42 Any supporting material provided by a petitioner, including those portions of the material that are not relied upon, is subject to Board scrutiny.43 37

(...continued)

NRC 1649, 1654 (1982).

38 Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), CLI-04-22, 60 NRC 125, 139 (2004).

39 See 10 C.F.R. § 2.710(c). [A]t 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.

54 Fed. Reg. at 33,171.

40 Palo Verde, CLI-91-12, 34 NRC at 155.

41 Fansteel, Inc. (Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195, 203 (2003) (citing GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 208 (2000)).

42 Georgia Tech, LBP-95-6, 41 NRC at 305. See also Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), LBP-01-35, 54 NRC 403, 422 (2001).

43 Yankee Nuclear, LBP-96-2, 43 NRC at 90.

Likewise, providing any material or document as the foundation for a contention, without setting forth an explanation of its significance, is inadequate to support the admission of the contention.44 In short, the information, facts, and expert opinions provided by the petitioner will be examined by the Board to confirm that the petitioner does indeed supply adequate support for the contention.45 But at the contention admissibility stage, all that is required is that the petitioner provide an expert opinion or some alleged fact, or facts, in support of its position.46

v. Genuine Dispute Regarding Specific Portions of Application All contentions must show that a genuine dispute exists with regard to the license application in question, challenge and identify either specific portions of, or alleged omissions from, the application, and provide the supporting reasons for each dispute.47 Any contention that fails directly to controvert the application, or that mistakenly asserts that the application does not address a relevant issue, may be dismissed.48 vi. Challenges to NRC Regulations In addition to the requirements set out above, with limited exceptions not applicable in this case, no rule or regulation of the Commission . . . is subject to attack . . . in any 44 See Fansteel, CLI-03-13, 58 NRC at 204.

45 Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station),

ALAB-919, 30 NRC 29, 48 (1989), vacated in part on other grounds and remanded, CLI-90-4, 31 NRC 333 (1990).

46 54 Fed. Reg. at 33,170. This requirement does not call upon the intervener to make its case at this stage of the proceeding, but rather to indicate what facts or expert opinions, be it one fact or opinion or many, of which it is aware at that point in time which provide the basis for its contention. Id.

47 10 C.F.R. § 2.309(f)(1)(vi).

48 Sacramento Mun. Util. Dist. (Rancho Seco Nuclear Generating Station), LBP-93-23, 38 NRC 200, 247-48 (1993), review declined, CLI-94-2, 39 NRC 91 (1994).

adjudicatory proceeding.49 By the same token, any contention that amounts to an attack on applicable statutory requirements or represents a challenge to the basic structure of the Commissions regulatory process must be rejected.50 Additionally, the adjudicatory process is not the proper venue for the evaluation of a petitioners own view regarding the direction regulatory policy should take.51 Applying the above-stated standards, our rulings on the various contentions are outlined in Parts VI through XII below.

IV. CONTENTION ADOPTION Several petitioners in this proceeding seek to adopt or incorporate the contentions of other petitioners.52 While the regulations allow for a petitioner to adopt the contentions of another petitioner,53 they do not address specifically whether a petitioner may adopt another petitioners contention without demonstrating that it has standing and submitting at least one admissible contention of its own. However, the Commission addressed this issue in a prior 49 10 C.F.R. § 2.335(a); see also Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 2), CLI-03-14, 58 NRC 207, 218 (2003).

50 Pub. Serv. Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-82-76, 16 NRC 1029, 1035 (1982) (citing Peach Bottom, ALAB-216, 8 AEC at 20-21).

51 Peach Bottom, ALAB-216, 8 AEC at 20.

52 See infra pp. 147, 189, 203-05, 210, 221 and note 932.

53 10 C.F.R. § 2.309(f)(3).

If a requestor/petitioner seeks to adopt the contention of another sponsoring requestor/petitioner, the requestor/petitioner who seeks to adopt the contention must either agree that the sponsoring requestor/petitioner shall act as the representative with respect to that contention, or jointly designate with the sponsoring requestor/petitioner a representative who shall have the authority to act for the requestors/petitioners with respect to that contention.

Indian Point proceeding.54 In that case, the Commission allowed two petitioners, each of whom had proffered an admissible contention of its own, to adopt the others contentions.55 However, the Commission cautioned that it would not accept incorporation by reference of another petitioners issues where the adopting petitioner had not independently met the requirements for admission as a party by demonstrating standing and submitting at least one admissible issue of its own.56 While in that case the Commission did not rule on contention adoption by petitioners who had not offered any admissible contentions, based on the clear statement of the Commissions view, we conclude that in order for a petitioner to adopt the contention of another petitioner, it must first demonstrate that it has standing and submit its own admissible contention.

The issue of contention adoption was addressed by a Licensing Board in a more recent decision during a license renewal proceeding for the Vermont Yankee facility.57 We do not, however, believe the facts and issues in that case are germane to those currently before the Board. In that case, two petitioners, each of which had submitted an admissible contention, sought to adopt the contentions of a third petitioner, and of each other.58 The applicant opposed the adoption of the contentions because it believed that the petitioners should have addressed the criteria for nontimely contentions in their filings, while the NRC Staff did not oppose the adoption so long as each party demonstrates an independent ability to litigate any contention 54 Consol. Edison Co. of NY (Indian Point, Units 1 and 2), CLI-01-19, 54 NRC 109, 132-33 (2001).

55 Id. at 131-32.

56 Id. at 133.

57 Entergy Nuclear Vermont Yankee, LLC, (Vermont Yankee Nuclear Power Station),

LBP-06-20, 64 NRC 131, 206-08 (2006).

58 Id. at 206.

for which it becomes the primary sponsor.59 The Board, in ruling that the petitioners could adopt the contentions, found unpersuasive the Commissions dicta in the earlier Indian Point decision that an adopting party must demonstrate an independent ability to litigate.60 That Board did not address, however, the fundamental point relevant here, that a petitioner must demonstrate standing and present its own admissible contention to adopt the contentions of other petitioners.

Furthermore, we note that if a petitioner were not required to demonstrate standing and submit at least one admissible contention (to independently secure standing as a party to the proceeding) before being allowed to adopt the contentions of others, our hearing process would be unworkable. In the immediate proceeding for instance, all of the millions of citizens living within a fifty-mile radius of Indian Point - who could demonstrate standing by virtue of their proximity to the plant - would be able to become parties to this proceeding without putting in the time and effort necessary to submit an admissible contention. If only a few score of such petitioners sought to adopt contentions, our proceeding would be significantly impacted.

Allowing the admission of numerous, minimally involved parties would make conducting a fair and efficient proceeding impossible. Accordingly, the Board will not allow a petitioner who has not submitted an admissible contention to adopt the contentions of other petitioners.

V. SCOPE OF NUCLEAR POWER GENERATING FACILITY RELICENSING PROCEEDINGS The scope of proceedings challenging technical issues in the context of relicensing proceedings for nuclear powered electrical generating facilities is limited to a review of the plant structures and components that will require an aging management review for the period of extended operation and the plants systems, structures and components that are subject to an 59 Id.

60 Id. at 207-08.

evaluation of time-limited aging analysis.61 In addition, review of environmental issues in this proceeding is limited by 10 C.F.R. §§ 51.71(a) and 51.95(c) to site-specific environmental impacts.

A. Environmental Review Pursuant to Part 51 10 C.F.R. Part 51 divides environmental issues for license renewal into generic and site-specific components. The issues that have been dealt with generically are identified as Category 1 issues. Other issues that require site-specific analysis, are identified as Category 2 issues. Category 1 issues are not subject to challenge in a relicensing proceeding because they involve environmental effects that are essentially similar for all plants [and] need not be assessed repeatedly on a site-specific basis.62 Absent a waiver pursuant to 10 C.F.R. § 2.335, these Category 1 issues cannot be addressed in a license renewal proceeding.63 Category 2 issues, on the other hand, are not essentially similar for all plants because they must be reviewed on a site-specific basis; accordingly, challenges relating to these issues are properly part of a license renewal proceeding.64 B. Part 54, Technical Review for Reactor Relicensing Previously, the Commission determined that the safety issues relevant to reactor relicensing are significantly different from, and defined more narrowly than, those relevant during the original licensing proceedings that authorize facility construction and operation.

Under that determination, certain safety issues that were reviewed for the initial license have 61 Florida Power & Light Co. (Turkey Point Units 3 and 4), CLI-00-23, 52 NRC 327, 329 (2000) (citing 10 C.F.R. §§ 54.21(a) and (c), 54.4; Nuclear Power Plant License Renewal; Revisions, Final Rule, 60 Fed. Reg. 22,461 (May 8, 1995)).

62 Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4),

CLI-01-17, 54 NRC 3, 11 (2001).

63 Id. at 12.

64 Id. at 11.

been closely monitored by NRC inspection during the license term and need not be reviewed again in the context of a license renewal application.65 The impacts of other matters, such as metal fatigue, corrosion, embrittlement, etc., are directly related to the detrimental results of aging. 10 C.F.R. Part 54 is designed to provide a thorough review of these impacts during the relicensing proceeding to ensure that they will be adequately managed so that the plant can be safely operated during the extended period of operation. These safety issues are the focus of the NRC Staffs technical review of the application for license renewal.66 The Current Licensing Basis (CLB) refers to all of the Commission requirements applicable to a licensed nuclear power facility. More specifically, the CLB includes plant-specific design basis information documented in the plants most recent Final Safety Analysis Report, and any orders, exemptions, and licensee commitments that are part of the docket for the plants license, i.e., responses to NRC bulletins, generic letters, and enforcement actions, and other licensee commitments documented in NRC safety evaluations or licensee event reports.67 Ongoing NRC oversight programs are the mechanisms through which compliance with the CLB is monitored and ensured. The CLB need not be reviewed again and is not subject to attack in a license renewal proceeding.68 VI. NEW YORK STATE CONTENTIONS A. NYS-1 THE LICENSE RENEWAL APPLICATION (LRA) VIOLATES 10 C.F.R. § 54.13 BECAUSE IT IS NEITHER COMPLETE NOR ACCURATE AND THUS, IN ORDER TO PROTECT THE DUE PROCESS AND 42 U.S.C. § 2239 RIGHTS OF THE INTERVENORS, THE BOARD SHOULD 65 Nuclear Power Plant License Renewal, Final Rule, 56 Fed. Reg. 64,943, 64,946 (Dec.

13, 1991); Turkey Point, CLI-01-17, 54 NRC at 7.

66 See 10 C.F.R. §§ 54.21, 54.29.

67 Turkey Point, CLI-01-17, 54 NRC at 9.

68 Id. at 9-10.

SUSPEND THE HEARING UNTIL THE APPLICANT FILES AN AMENDED APPLICATION IN COMPLIANCE WITH 10 C.F.R. § 54.13.69

i. Background - NYS-1 NYS-1 alleges that 10 C.F.R. § 54.13 requires the License Renewal Application (LRA) be complete and accurate in order to meet the timely renewal provision of the Administrative Procedure Act,70 and also asserts that the Applicant is using an incomplete LRA to sap the limited resources of petitioners because they will be compelled to file initial contentions and then be required to file a series of amended contentions to keep up with changes in the LRA.71 According to NYS, the LRA does not include new and significant earthquake information; the plants were built using General Design Criteria (GDC) that were never adopted by the NRC; there are no aging management programs (AMP) for Non-Environmentally-qualified Low-Voltage Cables, or Non-Environmentally-qualified Medium-Voltage Cables or transformers; there is no aging management program for components with a cumulative usage factor over 1.0; referenced sources that provide a basis for the LRA are not available to the public; and the Environmental Report (ER) ignores information regarding the increased risk of terrorist activities, does not consider viable alternatives to renewal, and ignores the adverse impact on the economy if the license is renewed.72 Entergy responds generally that NYS does not comprehend the requirements applicable to license renewal applicants under the regulations, or the extent of the NRC Staffs review of 69 NYS Petition at 36.

70 Id. at 42 (citing 56 Fed. Reg. at 64,962-63).

71 Id. at 44.

72 See id. at 36-38.

the LRA.73 Entergy also asserts that it is not required to compile its CLB into a discrete compendium.74 Entergy dismisses any issues regarding the design and construction of the facilities, or its compliance with the GDC, as outside the scope of a license renewal proceeding.

Finally, Entergy submits that NYSs proposal to suspend the hearing process is essentially an impermissible and unfounded motion to stay the proceeding that should be rejected.75 The NRC Staff responds that NYS-1 improperly challenges the NRC Staffs determination to accept the LRA for docketing, which is outside the scope of the proceeding, impermissibly challenges the Commissions regulatory process, is a generalized assertion of what NYS believes the Commissions policies should be, and pertains to the CLB, which is outside the scope of this proceeding.76 Additionally, the NRC Staff avers that an applicant for license renewal is not required to compile the CLB nor establish its current compliance with the CLB.77 In its Reply, NYS maintains that 10 C.F.R. § 2.309(f)(1)(vi) allows for contentions to be filed based on the absence of required data.78 NYS states that neither Entergy nor the NRC Staff has addressed the issue of whether deficiencies in the LRA exist.79 Also, Entergy did not dispute that several cases cited in NYSs Petition hold that when a contention challenging the 73 Entergy NYS Answer at 36.

74 Id. at 38.

75 Id. at 39.

76 NRC Staff Answer at 26.

77 Id. at 28.

78 NYS Reply at 8.

79 Id. at 9.

completeness of the LRA meets the specificity requirement, it is a valid contention.80 Furthermore, NYS suggests that Entergy and the NRC Staff mischaracterize NYS-1 in order to contest it.81 Finally, NYS clarifies that the contention does not suggest that an applicant must compile the CLB in a single document, as Entergy and the NRC Staff suggest, but rather it deals with the basic issue of whether a discernable CLB for Indian Point exists at all.82 ii. Board Decision - NYS-1 In this broad contention NYS asks a fundamental question, that is, whether the CLB for the Indian Point facility is ascertainable at this point.83 While this may not be an unreasonable request for a petitioner seeking to challenge the relicensing of a nuclear facility,84 the 80 Id.

81 Id. at 10.

82 Id. at 12.

83 As noted in Part V above, supra p. 15, the term current licensing basis, or CLB, is defined in 10 C.F.R. § 54.3(a) as:

[T]he set of NRC requirements applicable to a specific plant and a licensee's written commitments for ensuring compliance with and operation within applicable NRC requirements and the plant-specific design basis (including all modifications and additions to such commitments over the life of the license) that are docketed and in effect. The CLB includes the NRC regulations contained in 10 CFR parts 2, 19, 20, 21, 26, 30, 40, 50, 51, 52, 54, 55, 70, 72, 73, 100 and appendices thereto; orders; license conditions; exemptions; and technical specifications. It also includes the plant-specific design-basis information defined in 10 CFR 50.2 as documented in the most recent final safety analysis report (FSAR) . . . and the licensee's commitments remaining in effect that were made in docketed licensing correspondence such as licensee responses to NRC bulletins, generic letters, and enforcement actions, as well as licensee commitments documented in NRC safety evaluations or licensee event reports.

84 We find it troubling that in todays electronic age it is not possible for petitioners to get onto the NRCs public site or the ADAMS document management system and find the CLB for each plant clearly laid out in a folder with hyperlinks to each separate document. If the NRC must compile this information to continually monitor the compliance of a facility with the regulations, then presumably someone has already done so. If the CLB has not been compiled in one easy to access location, how can the public be assured that the NRC is adequately (continued...)

Commission made clear in its Part 54 rulemaking that [c]ompilation of the CLB is unnecessary to perform a license renewal review.85 Moreover, while we agree with NYS that the CLB has not been compiled, and that a systematic review of the LRA is much more difficult as a result, we also agree with Entergy and the NRC Staff that the CLB for Indian Point is, in fact, ascertainable by following the definition provided in 10 C.F.R. § 54.3(a). Furthermore, the CLB - and questions regarding its ascertainability - are current operation issues which are outside the scope of this proceeding.86 NYS asserts in both its Petition and Reply that it is not asking the Board to review or even comment upon the Staffs decision to accept the application.87 Rather, as articulated by NYS, the contention is focused on the numerous deficiencies that NYS believes exist within the LRA.88 NYS states that under 10 C.F.R. § 2.309(f)(1)(vi) a contention can be admitted if it 84

(...continued) monitoring the facility? We believe that in the thirteen years since the last revisions to the Final Rule on License Renewal technology has advanced to a point where it would be possible for the NRC to make this information available to the public. This simple act would foster a level of transparency that would be very helpful in the license renewal process.

85 60 Fed. Reg. at 22,473.

86 See 10 C.F.R. § 54.30(b); 56 Fed. Reg. at 64,951; Turkey Point, CLI-01-17, 54 NRC at 8-9.

87 NYS Petition at 308; NYS Reply at 10.

88 The Commission has stated that the issue in adjudications is not the adequacy of the NRC Staffs review of the application but rather whether the license application raises health and safety concerns. Curators of the University of Missouri, CLI-95-8, 41 NRC 386, 395-96 (1995). As the Licensing Board in Calvert Cliffs pointed out, the focus of a case is on the adequacy of the application as it has been accepted and docketed for licensing review.

Baltimore Gas & Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 & 2), LBP-98-26, 48 NRC 232, 242 (1998). Furthermore, the Commission stated that the determination that an application is sufficient for purposes of timely renewal would not be litigable. Sufficiency is essentially a matter for the staff to determine based on the required contents of an application established in §§ 54.19, 54.21, 54.22, and 54.23. 56 Fed. Reg. at 64,963.

shows that the application fails to contain information on a relevant matter as required by law and has proffered contentions which attempt to do so.

The Board finds that NYS-1 must be denied as too broad and that NYS must deal with each deficiency in the LRA in a separate, specific, and well-supported contention. While in this contention NYS has identified several areas in which it alleges Entergys application is deficient, it does not supply supporting facts or expert testimony in this contention sufficient to raise a genuine issue.89 The Board also will address here one point made by NYS in its Reply. NYS asserted that Entergy has not acted in a manner that promotes efficiency and suggests that a better prepared LRA would prevent petitioners from incurring unnecessary expenses.90 In support of its claim NYS points to a conversation in which representatives of Entergy told the NRC Staff that it would be amending the LRA to take the same approach regarding metal fatigue that it took in previous license renewal proceedings.91 This information directly affects NYS-26.92 According to NYS, this means that Entergy had the information needed for an amendment prior to submitting its LRA, and, as NYS suggests, knew or should have known that its proposed manner of dealing with CUFs for the Indian Point reactors was not satisfactory.93 This caused NYS to waste time and money preparing a contention for an area that Entergy knew would be an issue that it would attempt to cure with a license amendment. We agree with NYS that equitable principles would indicate that Entergy should have provided this information in the 89 We note, however, that deficiencies identified in this general contention are addressed later in the NYS Petition in more directed and specific contentions.

90 See NYS Reply at 13-15.

91 Id. at 14.

92 See infra Part VI.Z.iii.

93 NYS Reply at 14-15.

original LRA. Nevertheless, NYS does not point to any regulation that required Entergy to do so. Entergys submission of information in its LRA that it knew would be changed, is not, in our minds, an appropriate position for a responsible applicant and litigant to take. But, standing alone, this is neither an appropriate subject for a contention nor a subject for action by this Board.

B. NYS-2 THE LICENSE RENEWAL APPLICATION FOR IP2 AND IP3 FAILS TO COMPLY WITH THE REQUIREMENTS OF 10 C.F.R. §§ 54.21 AND 54.29(a)(1) AND (2) SINCE INFORMATION FROM SAFETY ANALYSES AND EVALUATIONS PERFORMED AT THE NRCS REQUEST ARE NOT IDENTIFIED OR INCLUDED IN THE UFSAR AND THUS IT IS NOT POSSIBLE TO DETERMINE WHICH SYSTEMS AND COMPONENTS IMPORTANT FOR SAFETY REQUIRE AGING MANAGEMENT OR WHAT TYPE OF AGING MANAGEMENT THEY REQUIRE.94

i. Background - NYS-2 NYS-2 alleges that the LRA for IP2 and IP3 does not comply with 10 C.F.R. §§ 54.21, 54.29(a)(1) and (2).95 NYS contends that Entergy has performed safety analyses and evaluations at the NRC Staffs request which are not identified or included in the Updated Safety Analysis Report (UFSAR) as required by 10 C.F.R. § 50.71(e), making it impossible for petitioners to determine which systems, structures and components (SSC) require AMPs.96 NYS lists seven different areas where safety analyses were performed by Entergy in response to generic letters from the NRC Staff and demonstrates how that information was, or was not, reflected within the UFSAR.97 94 NYS Petition at 48.

95 Id. at 51.

96 Id.

97 See id. at 59-72. These include among other things: a design change to the reactor coolant pump insulation type to prevent corrosion; evaluations of postulated breaks in piping that result in drainage of water from the refueling cavity; changes to the inspection program for various single phase systems; expansion of the inspection program for boric acid corrosion to (continued...)

Entergy opposes the admission of NYS-2, claiming that any deficiencies in the UFSARs for IP2 and IP3 are issues pertaining to the CLB and thus beyond the scope of the proceeding.98 Furthermore, Entergy argues that its responses to the various NRC bulletins and generic letters raised by NYS have been docketed and are available to the public.99 The NRC Staff opposes the admission of NYS-2 for the same reason as Entergy - the UFSARs alleged deficiencies are not subject to review in this license renewal proceeding as they are a current issue dealing with the CLB.100 The NRC Staff also concurs with Entergy that the responses to various generic letters and bulletins are adequately available to the public.101 In its Reply, NYS maintains that neither the NRC Staff nor Entergy has contested the core allegation of NYS that neither unit is in compliance with 10 C.F.R. 50.71(e), nor that some of the non-compliance relates to items for which aging management programs may be required, nor that the UFSAR is a part of the CLB . . . .102 NYS notes that NRC Staff has imposed severe penalties on licensees in the past for failing to have an updated UFSAR.103 97

(...continued) include 350 mechanical connections; installation of two separate and diverse reactor coolant system water level monitoring systems; addition of a control room indicator to monitor residual heat removal flow conditions; and revising procedures to de-energize two open motor-operated valves. Id.

98 Entergy NYS Answer at 41.

99 Id.

100 NRC Staff Answer at 29.

101 Id. at 30.

102 NYS Reply at 16.

103 Id. at 18 (citing Letter from James L. Caldwell, NRC Regional Administrator, to Dennis L. Koehl, Site Vice President, Point Beach Nuclear Plant, at 2 (Jan. 29, 2007) (ADAMS Accession No. ML070290711)).

ii. Board Decision - NYS-2 The UFSAR is part of the CLB104 and must be updated annually.105 As discussed above,106 contentions pertaining to issues dealing with the current operating license, including the UFSAR, are not within the scope of license renewal review. Accordingly, pursuant to 10 C.F.R. § 2.309(f)(1)(iii), NYS-2 is inadmissible because it is outside the scope of the proceeding.

NYS and its expert, David Lochbaum, list numerous generic letters sent by the NRC to Entergy (or the owner of the Indian Point facility at that time), and the responses thereto,107 and allege that they were not properly incorporated into the UFSAR in an attempt to show that it is deficient. However, these generic letters and the responses thereto are docketed, and are available to the public for review (as NYS has done). Furthermore, these do not speak to the fundamental issue that the UFSAR is part of the CLB for the plant and is therefore outside the scope of this proceeding. The proper avenue for challenging the adequacy of the UFSAR would be to seek an enforcement action under 10 C.F.R. § 2.206. NYS has not demonstrated a deficiency in the UFSAR, nor how any alleged deficiency would impact the validity of Indian Points AMPs. Accordingly, NYS has not, in this contention, raised a genuine issue regarding a material matter within the scope of this proceeding.

C. NYS-3 THE LRA DOES NOT COMPLY WITH THE REQUIREMENT OF 10 C.F.R. §§ 54.29(a)(1) AND (2) FOR IP2 AND IP3 BECAUSE IT IS NOT POSSIBLE TO ASCERTAIN IF ALL RELEVANT EQUIPMENT, COMPONENTS AND SYSTEMS THAT ARE REQUIRED TO HAVE AGING 104 10 C.F.R. § 54.3(a) 105 10 C.F.R. § 50.71(e)(4).

106 See supra Part V.B.

107 Declaration of David Lochbaum at 7-12 (Nov. 27, 2007) [hereinafter Lochbaum Declaration].

MANAGEMENT HAVE BEEN IDENTIFIED OR TO DETERMINE WHETHER THE AGING MANAGEMENT REQUIREMENTS FOR LICENSE RENEWAL HAVE BEEN MET.108

i. Background - NYS-3 NYS-3 alleges that the UFSAR does not comply with the relevant GDC as required by 10 C.F.R. § 54.35. Instead, NYS suggests that Indian Point complies with design criteria proposed decades ago by a nuclear industry trade group, the Atomic Industrial Forum (AIF),

that were never approved or codified by the NRC.109 Thus, according to NYS, the UFSAR may be in compliance with AIFs proposed design criteria but not the NRCs actual design criteria.

NYS asserts that the provisions of the two criteria are substantially different, with the AIFs being less stringent according to NYS.110 Entergy opposes the admission of NYS-3 arguing that it is outside the scope of a license renewal proceeding, does not have the required factual and expert support, and does not show that there is a genuine dispute on a material issue of law or fact.111 Entergy contests NYSs claim that the LRA is deficient because it does not identify the SSCs which are subject to aging management review (AMR) under 10 C.F.R. § 54.21, and notes specifically where in the LRA a description of all of the AMPs, the commitments to make enhancements, and evaluations of 108 NYS Petition at 72.

109 Id. at 72-73.

110 Id. at 74-77.

111 Entergy NYS Answer at 42.

time-limited aging analyses (TLAA) can be found.112 Also, according to Entergy a challenge to compliance with the GDC is outside the scope of the proceeding and the NRCs GDC do not apply to IP2 and IP3.113 The NRC Staff states that it opposes the admission of NYS-3 because the Commission has found that meeting the intent of the GDC is accomplished through existing regulatory processes . . . . [D]ifferences between proposed and codified design criteria [are] not a concern for operating plants [and] [w]hether or not a plant was issued a construction permit based on plant-specific criteria or final criteria presents no issue for license renewal proceedings.114 In its Reply, NYS maintains that Entergy and the NRC Staff do not dispute that IP2 and IP3 were built to comply with the design criteria proposed by AIF, or that these design criteria are materially different from the Atomic Energy Commissions draft GDC which were in effect when the plants were built.115 NYS disputes Entergys characterization of the contention as a challenge to the CLB. Instead, NYS posits that NYS-3 argues the following: given that Entergy is complying with design criteria that are not actually applicable to IP2 and IP3, Entergy is unable to verify that it has found all relevant systems and components for which aging 112 Id. at 42.

113 Id. at 43 n.193. Entergy states that the GDC in Appendix A to 10 C.F.R. Part 50 are not applicable to plants, like Indian Point, with construction permits issued before May 21, 1971.

Id. (citing NRR Office Instruction No. LIC-100, Rev. 100-a, Control of Licensing Bases for Operating Reactors at 2.13 (Mar. 2, 2001) (ADAMS Accession No. ML010660227); Staff Requirements Memorandum, SECY-92-223 - Resolution of Deviations Identified During the Systematic Evaluation Program, at 1 (Sept. 18, 1992) (ADAMS Accession No. ML003763736)

[hereinafter SRM SECY-92-223]).

114 NRC Staff Answer at 32 (citing Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee Nuclear Power Station), DD-05-2, 62 NRC 389, 396 (2005)).

115 NYS Reply at 19.

management is required.116 Additionally, NYS represents that the contention does not claim Entergy must comply with the final GDC from 1971, but rather that it must adhere to the draft GDC published in 1967.117 NYS asserts that it is the 1967 draft GDC that is binding on plants built prior to 1971. Finally, NYS notes that the former owners of IP2 and IP3 asserted in 1980 that each unit complied with the 1971 final GDC.118 ii. Board Decision - NYS-3 The Commission has stated that the GDC is not applicable to nuclear power plants with construction permits issued prior to May 21, 1971.119 The Commission added that current regulatory processes are sufficient to ensure that plants continue to be safe and comply with the intent of the GDC. Backfitting the GDC would provide little or no safety benefit while requiring an extensive commitment of resources.120 In making this determination, the Commission put its imprimatur on the GDC prepared by AIF and used in building the Indian Point facility. The initial draft of the GDC has no bearing on the license renewal process or aging management. The differences between the UFSAR and the GDC are meaningless in the license renewal process.

The UFSAR would control because it is the latest, analysis, and the adequacy of the UFSAR is not part of the license renewal process. As we noted in NYS-2,121 challenges to the adequacy of the UFSAR must be brought pursuant to 10 C.F.R. § 2.206. Thus, the Board finds that this 116 Id. at 20.

117 Id. at 21.

118 Id. at 23.

119 NRR Office Instruction No. LIC-100, Rev. 100-a, Control of Licensing Bases for Operating Reactors at 2.13 (Mar. 2, 2001) (ADAMS Accession No. ML010660227); SRM SECY-92-223 at 1.

120 SRM SECY-92-223 at 1.

121 See discussion supra p. 23.

contention is outside the scope of this proceeding and therefore inadmissible.

D. NYS-4 THE ENVIRONMENTAL REPORT FAILS TO COMPLY WITH THE PROVISIONS OF 10 C.F.R.

§ 51.53(c)(1) BECAUSE IT FAILS TO PROVIDE A SEPARATE ENVIRONMENTAL REPORT FOR EACH LICENSE FOR WHICH AN EXTENSION IS SOUGHT.122

i. Background - NYS-4 NYS-4 alleges that the LRA does not comply with 10 C.F.R. § 51.53(c)(1) because it does not provide a separate ER for each reactor.123 NYS bases the contention on the representation that IP2 and IP3 have been treated separately throughout their existence in that they have their own licenses, technical specifications, FSARs and UFSARs, amendment applications, enforcement histories, and, until recently, ownership.124 But for purposes of the LRA, they are treated as one entity. According to NYS this severely distorts the environmental analysis because the energy alternative analysis assumes that any alternative must supply as much energy as both plants, and NYS suggests that alternative energy can replace at least one reactor.125 NYS also argues that the evaluation of off-site land-use impacts in the ER does not look at the impact if only one unit is extended, thereby distorting the results of that analysis.126 Entergy opposes the admission of NYS-4 because, in its view, the contention lacks factual or legal foundation, and does not establish a genuine dispute on a material issue of law or fact.127 Entergy argues that NYS misunderstands 10 C.F.R. § 51.53(c)(1), and suggests that 122 NYS Petition at 77.

123 Id.

124 Id.

125 Id. at 78.

126 Id. at 79.

127 Entergy NYS Answer at 44.

the regulation merely requires that an ER be prepared in a document separate from the rest of the LRA.128 Entergy asserts that NYS does not provide NEPA case law supporting its claim, whereas, Entergy argues, its approach is consistent with NRC practice and precedent.129 The NRC Staff states that it opposes the admission of NYS-4 because NYS does not provide legal support for its interpretation of 10 C.F.R. § 51.53(c)(1).130 The NRC Staff submits that the ER must only consider the impacts of, and alternatives to, the proposed action, which, in this instance, is the license renewal of the two units at Indian Point.131 In its Reply, NYS supports its interpretation of 10 C.F.R. § 51.53(c)(1), highlighting that the regulation refers to a nuclear power plant in the singular and calls for the ER to be a separate document.132 NYS asserts that Entergy and the NRC Staff are ignoring the plain language of the regulation along with the fact that both units have been treated separately since they were built. NYS points out that neither Entergy nor the NRC Staff has addressed the point of the contention, which is that, by combining the two units, the ER does not address the alternative of only renewing the license for one unit.133 NYS contends that Entergys assertion regarding NEPA case law is both counterfactual and misplaced in light of NEPAs intent.134 Furthermore, NYS argues that Entergys position is not supported by NRC precedent.135 128 Id. at 44-45.

129 Id. at 45-48.

130 NRC Staff Answer at 33.

131 Id. at 33-34.

132 NYS Reply at 24.

133 Id. at 26.

134 Id. at 27.

135 Id. at 28-29.

ii. Board Decision - NYS-4 The Board reads 10 C.F.R. § 51.53(c)(1) to require each applicant to submit an ER with its LRA as a separate document - separate from the LRA. Given that there is only a single LRA for IP2 and IP3, the regulation merely requires Entergy to submit a single ER for IP2 and IP3.

The proposed action which the ER must describe under 10 C.F.R. § 51.53(c)(2) is the approval of the LRA in toto and the granting of a license renewal to Entergy for IP2 and IP3 - it is not the approval of the LRA for a specific unit. This does not, however, mean that the ER is beyond challenge, and it may have its adequacy challenged by petitioners, which NYS has done in other contentions.136 This contention is inadmissible because it fails to establish a genuine dispute on a material issue as required by 10 C.F.R. § 2.309(f)(1)(vi).

E. NYS-5 THE AGING MANAGEMENT PLAN CONTAINED IN THE LICENSE RENEWAL APPLICATION VIOLATES 10 C.F.R. §§ 54.21 AND 54.29(a) BECAUSE IT DOES NOT PROVIDE ADEQUATE INSPECTION AND MONITORING FOR CORROSION OR LEAKS IN ALL BURIED SYSTEMS, STRUCTURES, AND COMPONENTS THAT MAY CONVEY OR CONTAIN RADIOACTIVELY-CONTAMINATED WATER OR OTHER FLUIDS AND/OR MAY BE IMPORTANT FOR PLANT SAFETY.137

i. Background - NYS-5 NYS-5 alleges that the LRA does not satisfy 10 C.F.R. §§ 54.21 and 54.29(a) because the LRA does not provide for adequate inspection and monitoring for corrosion or leaks in all buried SSCs that may contain radioactively-contaminated water or other fluids and therefore it does not demonstrate that the effects of aging will be adequately managed for the period of extended operation.138 NYS maintains that buried SSCs are within the scope of 10 C.F.R.

§§ 54.4, 54.21 and, accordingly, are within the scope of this proceeding. These SSCs include 136 See, e.g., NYS-9 through NYS-17 and NYS-29.

137 NYS Petition at 80.

138 Id. at 80.

underground pipes, tanks, and transfer canals that may contain radioactive water.139 NYS alleges that there is no adequate prevention program designed to replace such SSCs prior to a leak occurring, and that there is no adequate monitoring to determine if and when leakage occurs.140 The contention also applies to IP1s buried SSCs that will be used for IP2 and IP3 during the extended period of operations.141 It is NYSs claim that corrosion jeopardizes the integrity of these SSCs and their ability to perform their intended safety function.142 Expert opinion provided by NYS points out that the inspection period called for in Entergys LRA and AMP will be ineffective in preventing or providing early detection of these leaks and, for this reason, these documents are deficient because neither provides an evaluation of the baseline conditions of the buried systems or their many welded joints, nor does it stipulate potential corrosion rates within the facility.143 In support of this contention, NYS provides numerous examples of inadvertent radiological releases from underground leaks at reactors including Indian Point, noting that the breaches in these systems have gone undetected for extended periods, and have only been discovered by happenstance.144 Entergy opposes admission of NYS-5 on the grounds that it is outside the scope of the proceeding, not adequately supported, and fails to establish a genuine dispute on a material 139 Id. at 81-82.

140 Id. at 80.

141 Id. at 80-81.

142 Id. at 81-82.

143 Declaration of Rudolf H. Hausler at 12-15, 17-18, 23-24.

144 See NYS Petition at 84-89.

issue of law or fact.145 In its opposition, Entergy uses a recent Licensing Board decision in Pilgrim to support its position that monitoring for leakage from buried pipes and systems is outside of the scope of license renewal.146 Entergy asserts that these concerns are covered by ongoing monitoring programs not within the scope of license renewal proceedings.147 Entergy claims that NYS has not demonstrated how the cited examples of radiological releases at various plants, including Indian Point, pertain to buried systems within the scope of license renewal, nor does it explain how the current AMPs proposed by Entergy would not ensure their intended functions during the period of extended operation.148 In regards to the adequacy of its AMP, Entergy suggests that its inspection program in the Appendix B.1.6 of the LRA is consistent with the recommendations in the Generic Aging Lessons Learned (GALL) Report,149 which specifically address leak prevention as a program element.150 Entergy also points to other programs listed in the LRA dealing with aging management of buried components that are not challenged by NYS.151 Furthermore, Entergy 145 Entergy NYS Answer at 49.

146 Id. (citing Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), Docket No. 50-293-LR, Licensing Board Order (Denying Pilgrim Watchs Motion for Reconsideration)

(Jan. 11, 2008) (unpublished)).

147 Id. at 50.

148 Id. at 51.

149 NUREG-1801, Rev. 1, Generic Aging Lessons Learned (GALL) Report, (Sept. 2005)

[hereinafter GALL Report].

150 Entergy NYS Answer at 52.

151 Id. at 52-53.

represents that baseline conditions of the buried SSCs are established continuously through ongoing maintenance and inspection activities that are outside the scope of this license renewal proceeding.152 Entergy postulates that NYS is incorrect in stating that the LRA does not commit to inspections for the buried SSCs of IP1 that are still being used for IP2 and IP3, and refers to Section 1.2 of LRA as support for this position.153 Lastly, Entergy asserts that NYS makes inaccurate statements in its support for NYS-5, and clarifies that management of the transfer canals is not described in the same AMP as buried pipes but in LRA Appendix B.1.36, Structures Monitoring Program, and B.1.41, Water Chemistry Control - Primary and Secondary Program.154 The NRC Staff opposes the admission of NYS-5 without a specific reference to the relevant criteria of 10 C.F.R. § 2.309, but implies that NYSs contention is not within the scope of the proceeding in that it raises operational issues, and fails to raise a genuine dispute by not alleging any specific deficiency in Entergys AMP.155 Repeating the position it took in Pilgrim that monitoring is not a proper contention for license renewal, the NRC Staff concludes that monitoring buried pipes and tanks is a current operating issue which is addressed in the CLB and may not be challenged in license renewal proceedings. The NRC Staff contends that NYSs position on inspections is overbroad and lacks specificity.156 The NRC Staff echoes Entergys claims that NYS has not demonstrated how its cited examples of radiological releases 152 Id. at 53.

153 Id. at 53-54.

154 Id. at 54-55.

155 NRC Staff Answer at 34-35.

156 Id. at 36.

pertains to this specific contention and has not shown why Entergys AMP is deficient.157 Finally, the NRC Staff claims that NYS failed to mention the existing inspections and monitoring that takes place at IPEC, and disagrees with NYSs assertion that the LRA does not discuss preventative measures and internal investigations by pointing to various instances where these areas are addressed in the LRA.158 In its Reply, NYS provides an overview of the Licensing Boards Orders in Pilgrim to differentiate NYS-5 from the contention in Pilgrim.159 NYS notes that its contention, NYS-5, focuses on preventing contamination from future leaks which have not, but may occur during the renewal term, while the Pilgrim contention focused on ongoing monitoring of existing leaks.160 NYS also asserts that the Licensing Board in Oyster Creek admitted a contention based on the same proposition as NYS-5.161 NYS disputes the NRC Staffs assertion that the LRA deals with the preventative measures and inspections. It posits that none of the programs that the NRC Staff listed address the inadequacies that NYSs expert, Dr. Rudolph Hausler, raises about the LRA.162 Finally, NYS highlights that a recent Pilgrim document submitted by Entergy, entitled Buried Piping and Tanks Inspection Program and Monitoring Program, actually addresses many of the issues 157 Id. at 37.

158 Id. at 37-38.

159 See NYS Reply at 30-36.

160 See id. at 36.

161 Id. at 37-38 (citing Amergen Energy Co., LLC (License Renewal for Oyster Creek Nuclear Generating Station), LBP-06-7, 63 NRC 188, 211-12 (2006)).

162 See id. at 38-39.

raised by Dr. Hausler regarding this proceeding and purports to implement an entirely new and much broader buried pipe inspection program than the program contained in the LRA.163 ii. Board Decision - NYS-5 NYS-5 focuses on the prevention of contamination from leaks from buried SSCs that convey or contain radioactively-contaminated water or other fluids which have yet to occur -

leaks which may occur during the period of license renewal - and the inadequacy of the AMP to detect and prevent contamination from such leaks.164 AMPs for SSCs identified by 10 C.F.R.

§ 54.4 are within the scope of license renewal proceedings, and NYS has provided sufficient information to raise reasonable questions regarding the adequacy of Entergys AMP for the relevant buried SSCs to establish a genuine dispute with the Applicant. Based on this, the Board admits NYS-5 to the extent that it pertains to the adequacy of Entergys AMP for buried pipes, tanks, and transfer canals that contain radioactive fluid which meet 10 C.F.R. § 54.4(a) criteria. The questions to be addressed at hearing include, inter alia, whether, and to what extent, inspections of buried SSCs containing radioactive fluids, a leak prevention program, and monitoring to detect future excursions, are needed as part of Entergys AMP for these components.

While CLB issues are not part of this proceeding, those SSCs subject to AMR are not CLB issues and are within the scope of this proceeding. NYS has identified numerous SSCs, i.e., buried pipes, tanks, and transfer canals, associated with nine critical systems that fall within the scope of Part 54. NYS has raised sufficient questions as to whether Entergys proposed plan provides sufficient detail to demonstrate that these SSCs will continue to perform their 163 NYS Reply at 41-42.

164 Neither Entergy nor the NRC Staff challenges NYSs representation that the buried SSCs which convey or contain radioactively-contaminated water or other fluids, which are the focus of NYS-5, are SSCs within the scope of Part 54 as defined by 10 C.F.R. § 54.4.

intended function during the period of extended operations.

As it relates to this contention, discussion of proposed inspection and monitoring details will come before this Board only as they are needed to demonstrate that the Applicants AMP does or does not achieve the desired goal of providing assurance that the intended function of relevant SSCs discussed herein will be maintained for the license renewal period, and specifically, to detect, prevent, or mitigate the effects of future inadvertent radiological releases as they might affect the safety function of the buried SSCs and potentially impact public health.

We find that NYS-5 does not challenge the program for inspections and monitoring of buried pipes and tanks that are ongoing at Indian Point, but rather focuses on the potential need of the Applicant to include related activities in its AMP for the extended period of operations in order to demonstrate the adequacy of its aging management in accordance with 10 C.F.R.

§ 54.21(c)(1)(iii).

In regards to IP1, Entergy referenced a generic statement contained in Section 1.2 of the LRA to the effect that IP1 SSCs that interface with the operation of IP2 and IP3 were considered in the scoping process and a commitment that their aging effects will be adequately managed for the period of extended operation. However, no other details were provided to (1) define the relevant IP1 components that fall under Section 54.21; (2) demonstrate that the IP2/IP3 AMP for buried pipes (contained in the LRA) pertains to IP1 SSCs that are relied upon for the proposed extended operations; and (3) delineate the extent of the proposed aging management activities that will be conducted on the IP1 SSCs. Based on this, the Board concludes that there remains a material dispute as to the existence and adequacy of the AMP for IP1-buried SSCs that are being used by IP2 and IP3 during the license renewal period, and that this dispute is subject to further litigation under this admitted contention.

F. NYS-6 THE LICENSE RENEWAL APPLICATION FOR IP2 AND IP3 FAILS TO COMPLY WITH THE REQUIREMENTS OF 10 C.F.R. §§ 54.21(a) AND 54.29 BECAUSE APPLICANT HAS NOT PROPOSED A SPECIFIC PLAN FOR AGING MANAGEMENT OF NON-ENVIRONMENTALLY-QUALIFIED INACCESSIBLE MEDIUM-VOLTAGE CABLES AND WIRING FOR WHICH SUCH AGING MANAGEMENT IS REQUIRED.165

i. Background - NYS-6 NYS-6 alleges that the LRA fails to comply with 10 C.F.R. §§ 54.21(a) and 54.29 because it lacks a specific plan for the aging management of Non-environmentally-qualified (Non-EQ) Inaccessible Medium-Voltage Cables and Wiring.166 As the Board understands this contention, the gist of NYS-6 is that the failure to have a proper AMP for these cables and wires can impact (a) the integrity of the reactor coolant pressure boundary; (b) the capability to shut down the reactor and maintain it in a safe shutdown condition; or (c) the capability to prevent or mitigate the consequences of accidents that could result in potential offsite exposures . . . .167 NYS contends that the AMP for the cables set out at LRA B.1.23 is inadequate.168 NYS also discusses various reports, NUREGs, and NRC generic letters that it contends support its contention.169 165 NYS Petition at 92.

166 Id.

167 Id. at 92-93.

168 Id. at 94. The plan calls for these cables to be tested at least once every ten years to provide an indication of the conductor insulation. It also includes inspections for water accumulation in manholes at least once every two years. However, according to NYS, the LRA fails to adequately identify which cables are encompassed by the AMP. Id. (citing LRA B.1.23).

169 See id. at 94-100. NYS specifically indicates that based on NUREG-1800, Rev. 1, Standard Review Plan for Review of License Renewal Applications for Nuclear Power Plants (Sept. 2005) [hereinafter SRP-LR], the GALL Report, NRC Generic Letter 2007-01: Inaccessible or Underground Power Cable Failures that Disable Accident Mitigation Systems or Cause Plant Transients, at 1 (Feb. 7, 2007), as well as the study conducted by the Sandia National Laboratory, Aging Management Guidelines for Commercial Nuclear Power Plants - Electrical Cable and Terminations, SAND96-0344, (Sept. 1996), Entergys AMP for these cables is (continued...)

In opposing the admission of NYS-6, Entergy asserts that NYS has largely ignored the aging management of Non-EQ Inaccessible Medium-Voltage Cables set forth in the LRA, and has proffered baseless, and frequently inaccurate, claims about the LRAs treatment of this issue.170 Entergy suggests that the LRA does fully address the Non-EQ Inaccessible Medium-Voltage Cables and includes an AMP for them.171 Entergy asserts that NYS has failed to show that this AMP is not in compliance with NRC Regulations or guidance.172 Additionally, Entergy points to several sections of the LRA, which it argues address the concerns raised by NYS.173 Entergy urges the Board to reject NYSs claim that the LRA and the AMP for these cables do not abide by certain reports, NUREGs, and NRC generic letters. Entergy states that it has followed the guidelines where relevant and asserts that the LRA is consistent with all NRC imposed requirements.174 The NRC Staff opposes this contention because it concludes that NYS incorrectly asserts that information was omitted from the LRA.175 The NRC Staff points out that an applicant may satisfy 10 C.F.R. § 54.21(a)(3) by committing to develop a program that meets the GALL Report - and the LRA explicitly makes this commitment.176 Along with other assurances from Entergy in the LRA that there will be no exceptions to the GALL Report taken 169

(...continued) inadequate.

170 Entergy NYS Answer at 57.

171 Id. at 57-58.

172 Id. at 58.

173 See id. at 58-60.

174 See id. at 61-63.

175 NRC Staff Answer at 39.

176 Id. at 39-40 (citing LRA at B-81).

and that the AMP will be implemented before the extension period, the NRC Staff finds that Entergy sufficiently addressed the issue in the LRA.

In its Reply, NYS responds to the NRC Staffs point regarding Entergys commitment to develop an AMP. NYS argues that such a commitment does not meet the requirements of 10 C.F.R. §§ 54.21(a), 54.29 because it illegally removes from Board . . . review a component of the AMP that Entergy is required to subject to such review.177 And while the LRA discusses what Entergy will do in the future, NYS notes that it did not contain a copy of the actual aging management plan for Non-EQ, Inaccessible, Medium Voltage Cables.178 NYS maintains that the sections in the LRA referenced by Entergy do not in fact accomplish its stated goal of identifying the location and extent of Non-EQ Inaccessible Medium-Voltage Cables.179 ii. Board Decision - NYS-6 The Board decision for NYS-6 has been consolidated with our decision for NYS-7, which involves a closely-related subject.180 G. NYS-7 THE LICENSE RENEWAL APPLICATION FOR IP2 AND IP3 FAILS TO COMPLY WITH THE REQUIREMENTS OF 10 C.F.R. §§ 54.21(a) AND 54.29 BECAUSE APPLICANT HAS NOT PROPOSED A SPECIFIC PLAN FOR AGING MANAGEMENT OF NON-ENVIRONMENTALLY 177 NYS Reply at 43. In addition, NYS points out that the NRC Staffs position is inconsistent with the position it took in a similar instance in Vermont Yankee. In that case, the NRC Staff objected to the applicants commitment in its LRA to perform evaluations in the future, though before the extension period, insisting that the analyses had to be part of the LRA.

Id. at 47 (citing Summary of Telephone Conference Call Held on August 17, 2007, Between the U.S. Nuclear Regulatory Commission and Entergy Nuclear Operations, Inc. Pertaining to the Vermont Yankee Nuclear Power Station License Renewal Application (Sept. 26, 2007) (ADAMS Accession No. ML072630124)).

178 Id. at 44.

179 Id. at 48-49.

180 See infra Part VI.G.ii.

QUALIFIED INACCESSIBLE LOW-VOLTAGE CABLES AND WIRING FOR WHICH SUCH AGING MANAGEMENT IS REQUIRED.181

i. Background - NYS-7 Much along the lines of its claims related to NYS-6, in NYS-7 the Petitioner alleges that the LRA fails to comply with 10 C.F.R. §§ 54.21(a), 54.29 because it lacks a proposed AMP for Non-EQ Inaccessible Low-Voltage Cables and is missing a discussion of how the methodology used to select those systems for which aging management would be provided excluded low-voltage cables.182 Entergy opposes the admission of NYS-7 and suggests that NYS presents a number of baseless claims that ignore the information presented by the Applicant in the LRA.183 According to Entergy, the LRA fully complies with NRC regulations and guidance for low-voltage cables.184 Entergy points to sections in the LRA that deal with electrical components and insulated cables, including low-voltage cables. Entergy asserts that it is not required to identify specific cable locations in license renewal proceedings because the bounding approach for insulated electrical cables includes all systems regardless of the function of that system. This bounding approach is discussed in the LRA . . . .185 The NRC Staff opposes admission of the contention because it fails to identify an omission from the application.186 Furthermore, the NRC Staff states that neither 10 C.F.R.

§ 54.21(a) nor § 54.29 require an applicant to propose a specific plan for inaccessible 181 NYS Petition at 100.

182 Id. at 101.

183 Entergy NYS Answer at 65.

184 Id.

185 Id. at 67.

186 NRC Staff Answer at 43.

low-voltage non-EQ cables.187 Also, the NRC Staff claims that, even though not required, the LRA does address the issue in the AMP for non-EQ cables.188 In its Reply, NYS maintains that there was not an AMP for Non-EQ Inaccessible Low-Voltage Cables in the LRA, that these cables are relied upon for safety-related systems, and that failure to properly manage the aging of such cables could compromise the safe and reliable operation of IP2 and IP3.189 NYS asserts that Entergys claim that low-voltage cables are included in sections of the LRA that do not use the term low-voltage is an assertion supported by nothing more than rhetoric of its counsel.190 Also, NYS maintains that Entergys and the NRC Staffs reliance on Appendix B.1.25 of the LRA and the GALL Report is misplaced because these sections apply to accessible cables and not the inaccessible cables which are the focus of the contention.191 ii. Board Decision - NYS-6 and NYS-7 The NRC Staff represents that an applicant may satisfy 10 C.F.R. § 54.21(a)(3) by committing to develop a program that meets the requirements of the GALL Report and that Entergys LRA makes such a commitment.192 The NRC Staff notes that because the actual AMP has not been submitted, any statements about what it will or will not contain . . . would be to engage in speculation . . . .193 We disagree.

187 Id.

188 Id.

189 NYS Reply at 55.

190 Id.

191 Id. at 57.

192 NRC Staff Answer at 39-40. The NRC Staff specifically notes that Entergys LRA states that the Non-EQ Inaccessible Medium-Voltage Cable Program will be consistent with the program attributes described in NUREG-1801,Section XI.E3. Id. at 40 (citing LRA at B-81).

This, in the NRC Staffs view, is adequate.

193 Id. at 40.

Pursuant to Section 54.21(a)(3) each application must contain an Integrated Plant Assessment (IPA) for which specified components will, inter alia, demonstrate that the effects of aging will be adequately managed so that the intended function(s) will be maintained consistent with the CLB for the period of extended operation. We do not comprehend how a commitment to develop a program can demonstrate that the effects of aging will be adequately managed. While we accept at face value Entergys representation that it fully intends to develop an AMP consistent with the GALL Report, that commitment does not demonstrate, now, that the effects of aging will be adequately managed. If the presumptive intent of the Applicant were enough, there would be no role for the hearing process - an applicant could vitiate hearing opportunities simply by committing to do everything required of it.194 Putative intervenors must have the opportunity to challenge the adequacy of the AMP in the context of the hearing process before the license is issued.

NYS-6 and NYS-7 are admitted.

H. NYS-8 THE LRA FOR IP2 AND IP3 VIOLATES 10 C.F.R. §§ 54.21(a) AND 54.29 BECAUSE IT FAILS TO INCLUDE AN AGING MANAGEMENT PLAN FOR EACH ELECTRICAL TRANSFORMER WHOSE PROPER FUNCTION IS IMPORTANT FOR PLANT SAFETY.195

i. Background - NYS-8 NYS-8 alleges that the LRA violates 10 C.F.R. §§ 54.21(a) and 54.29 because it does not include an AMP for each electrical transformer whose proper function is important for plant safety. NYS argues that the management of these transformers is within the scope of license renewal proceedings because transformers perform their safety function without moving parts 194 Contentions pointing out deficiencies in an application are not subject to rejection as speculative for assuming that the deficiencies may not be corrected. As has been noted recently, a defect in an application can give rise to a valid contention of omission that is not subject to rejection as speculative. See Shaw Areva MOX Services (Mixed Oxide Fuel fabrication Facility), LBP-07-14, 66 NRC 169, 205-06 (2007) and LBP-08-11, 67 NRC

, (slip op. at 51-52) (concurring opinion).

195 NYS Petition at 103.

and without a change in configuration or properties.196 As supported by expert opinion,197 NYS represents that failure to properly manage these electrical transformers may compromise (1) the integrity of the reactor coolant pressure boundary; (2) the capability to shut down the reactor and maintain it in a safe shutdown condition; or (3) the ability to prevent or mitigate the consequences of accidents.198 Additionally, NYS points out that the NRC Staff has identified transformers for which AMPs should be provided, but which are not in the LRA.199 Entergy opposes admission of NYS-8 because, in its view, NYS failed to provide sufficient factual foundation for the contention; the contention is outside the scope of the proceeding; and the contention fails to establish a genuine dispute with the Applicant on a material issue of law or fact. In its opposition, Entergy represents that only certain transformers are within the scope of the proceeding, specifically the safety-related transformers necessary for compliance with 10 C.F.R. §§ 50.48, 50.63.200 Because NRC license renewal regulations require AMPs only for passive components that perform an intended function under 10 C.F.R.

§ 54.4, Entergy maintains that consideration of other transformers is outside the scope of license renewal.201 Specifically, Entergy argues that transformers are listed as active components not subject to AMR202 and, as active machines, are managed by the ongoing 196 Id.; see also 10 C.F.R. §§ 54.4(a), 54.21(a)(1)(i).

197 Declaration of Paul Blanch at 5-6 (Nov. 28, 2007).

198 NYS Petition at 104.

199 Id. at 105.

200 Entergy NYS Answer at 69.

201 Id.

202 Id. at 70 (citing NEI 95-10, App. B, Rev. 6, Industry Guideline for Implementing the Requirements of 10 C.F.R. Part 54 - The License Renewal Rule). This guideline was endorsed by NRC Regulatory Guide 1.188, Rev. 1, at 4.

Maintenance Rule Program in accordance with 10 C.F.R. § 50.65.203 In response to NYSs point, Entergy asserts that the transformer support structures (which NYS believes require an AMP) are managed in accordance with the Structures Monitoring Program, discussed in LRA Appendix B.1.36.204 The NRC Staff opposes the admission of NYS-8 without reference to any of the 10 C.F.R. § 2.309 criteria, by contending that 10 C.F.R. § 54.21(a)(1)(i) does not require AMR for transformers.205 The NRC Staffs position is rooted on the premise that this equipment is similar to the components excluded from AMR in 10 C.F.R. § 54.21(a)(1)(i), i.e., switchgears, transistors, batteries, power inverters, battery chargers, and power supplies. Given that the regulation is clear that this list is not inclusive of all structures and components that are excluded from AMR, the NRC Staff hypothesizes that electric transformers should also be excluded based on their similarity with the listed components.206 The NRC Staff argues that its position is consistent with the conclusions in the Standard Review Plan for Review of License Renewal Applications for Nuclear Power Plants (SRP-LR), which interprets 10 C.F.R.

§ 54.21(a)(1)(i) as excluding transformers, just as the regulations exclude other power-supply-related structures and components.207 As clarification, the NRC Staff opines that NYS misunderstood its comments towards Entergy and, rather than requiring an AMP, notes that transformers for off-site power are typically subject to AMR, but not necessarily an AMP.208 203 Id.

204 Id. at 71 (citing LRA § 2.4.3; Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 341 (1999)).

205 NRC Staff Answer at 45.

206 Id.

207 Id. (citing SRP-LR at 2.1-23).

208 Id.

In its Reply, NYS argues that the NRC Staffs interpretation that transformers are outside the scope is incorrect and not binding on the Board because its arguments are not based on law but on regulatory guidance.209 NYS asks the Board to reject the arguments put forth by Staff and Entergy that electrical transformers whose functions are important to plant safety are outside the scope of Rule 54.210 NYS also emphasized that failure to properly manage the aging of electrical transformers could result in public exposures exceeding 10 C.F.R. § 100 limits due to consequences beyond those of the Design Basis Accidents from the loss of all station power.211 ii. Board Decision - NYS-8 Transformers (necessary for compliance with 10 C.F.R. §§ 50.48 and 50.63) nominally perform their safety-related function without moving parts and without a change in configuration or properties. Accordingly, 10 C.F.R. § 54.21(a)(1) defines this component as a piece of equipment subject to AMR. While similar to other items that are excluded from AMR, the absence of this visible and obvious component from the exclusion list cannot automatically be considered an oversight or a natural result of the incomplete list of examples presented in the regulations.

Entergy states that industry guidance lists transformers as active components, and alleges that this equipment performs its function with a change in configuration or properties.212 The Applicant does not provide any supporting justification for its opinion. Moreover, NEI documents, like NEI 95-10, and other regulatory guidance documents, are merely suggestions 209 NYS Reply at 59 (citing Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), LBP-03-17, 58 NRC 221, 240-41 (2003)).

210 Id. at 60-61.

211 Id. at 58.

212 Entergy NYS Answer at 70.

with no legal authority to supercede the plain language of the regulatory criteria that requires AMR for a structure or component that performs its safety functions without moving parts and without a change in configuration or properties.213 Neither Entergy nor the NRC Staff has provided any legally binding justification to exclude transformers from AMR beyond an apparent similarity to other components that have been excluded by 10 C.F.R. § 54.21(a)(1)(i), nor, as mentioned, has either party provided any explanation on how a transformer changes its configuration or properties in performing its functions.

Based on this, the Board finds that NYS has shown that this contention is within the scope of the proceeding and has established a genuine dispute of material fact, and admits NYS-8 to the extent that it questions the need for an AMP for safety-related electrical transformers that are required for compliance with 10 C.F.R. §§ 50.48 and 50.63. We note that 10 C.F.R. § 54.21(a)(1)(i) lists components that require AMPs and also excludes other components that do not require AMPs. In addressing this contention, the Board will require, inter alia, representations from the parties to help us determine whether transformers are more similar to the included, or to the excluded, component examples. While the Petitioner also contends that the transformer support structures are within the scope of license renewal proceedings,214 it does not recognize, as pointed out by Entergy, that these passive structures are managed by the Structures Monitoring Program.215 The Board rejects this aspect of NYS-8.

I. NYS-9 THE ENVIRONMENTAL REPORT (§§ 7.3 AND 7.5) FAILS TO EVALUATE ENERGY CONSERVATION AS AN ALTERNATIVE THAT COULD DISPLACE THE ENERGY 213 McGuire/Catawba, LBP-03-17, 58 NRC at 240-41.

214 NYS Petition at 104.

215 Entergy NYS Answer at 71.

PRODUCTION OF ONE OR BOTH OF THE INDIAN POINT REACTORS AND THUS FAILS TO CARRY OUT ITS OBLIGATIONS UNDER 10 C.F.R. § 51.53(c)(2).216

i. Background - NYS-9 NYS-9 alleges that Entergy violates its obligations under 10 C.F.R. § 51.53(c)(2),

because its ER lacks an analysis of energy conservation alternatives that evaluate both the benefits and costs of denial of a license extension for either or both units.217 NYS contends that Entergy unreasonably limits the alternatives to the continued operation of either IP2 or IP3 to alternatives that are able to replace the full base-load capacity of approximately 2,158 gross MWe.218 At a minimum, NYS contends that energy conservation should also be analyzed for the no-action alternative.219 Studies cited by NYS represent that the energy produced by one or both units can be replaced by energy conservation by 2015.220 Allowing Indian Point to remain an energy option, according to NYS, inhibits the implementation of environmentally preferable energy conservation.221 NYS argues that implementing energy efficiency programs is the equivalent of generating energy . . . . [and] have significantly less adverse environmental impacts than the extension of the operating license[s].222 NYS goes on to detail a plan initiated by the Governor of NYS in April 2007 to achieve a 15% reduction in energy consumption by 2015 using energy 216 NYS Petition at 106.

217 Id.

218 Id.

219 Id. at 108.

220 Id. at 107.

221 Id. at 108.

222 Id. at 109.

conservation alone.223 Entergy opposes admission of NYS-9 because it fails to provide facts or expert opinion, and fails to establish a genuine dispute with the Applicant on a material issue of law or fact.224 Entergy argues that the ER needs to look only at reasonable alternatives and given that the goal of the proposed action is the renewal of the operating licenses that allow production of approximately 2,158 MWe of base-load power, the ER does not have to consider in detail alternatives that do not meet this goal.225 The Applicant posits that this position is supported by the Generic Environmental Impact Statement for License Renewal of Nuclear Plants (GEIS),

which states that the NRC has concluded that a reasonable set of alternatives for license renewal should be limited to discrete electric generation sources that are feasible and available.226 Even though the concept of energy conservation does not meet the GEIS criteria as a discrete energy source, Entergy provides a brief analysis of utility-sponsored conservation in its ER. It concludes that it is unrealistic to replace the generation capacity at the site solely with 223 Id. at 110-17.

224 Entergy NYS Answer at 74.

225 Id. at 76. Entergy posits that this interpretation is consistent with the Licensing Boards ruling in the Monticello license renewal proceeding and with controlling Commission precedent. Id. (citing Nuclear Mgmt. Co. (Monticello Nuclear Generating Plant) LBP-05-31, 62 NRC 735, 753 (2005), Exelon Generation Co. (Early Site Permit for Clinton ESP Site), LBP 19, 62 NRC 134, 156-58, aff'd CLI-05-29, 62 NRC 801 (2005), affd sub nom. Envtl. Law &

Policy Ctr. v. NRC, 470 F.3d 676 (7th Cir. 2006)).

226 Id. at 75 (citing NUREG-1437, Vol.1, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, § 8.1 (May 1996) (ADAMS Accession No. ML040690705)

[hereinafter GEIS]).

conservation.227 Entergy also asserts that when a private entity and not a federal agency is sponsoring the project, significant weight should be given to the preferences of the sponsor in the consideration of alternatives.228 The NRC Staff in opposing the admission of NYS-9 states that energy conservation is outside the scope of required NEPA alternatives analysis.229 The NRC Staff supports its position by referencing the GEIS statement that the reasonable set of alternatives is limited to discrete electric generation sources that are feasible technically and viable commercially.230 The NRC Staff also cites Clinton as an indication that the Commission does not believe energy conservation is a reasonable alternative that would advance the goals of a nuclear energy project,231 and, based on this, the NEPA rule of reason does not require an applicant to include an analysis of conservation as an alternative.232 In its Reply, NYS responds to Entergy and the NRC Staffs Answers regarding NYS-9 through NYS-11 collectively, claiming that these three contentions challenge the adequacy of the ERs analysis of the no-action alternative.233 NYS asserts that while the NRC Staff and Entergy focus on the GEIS, Monticello, and Clinton, they ignore relevant NRC regulations regarding the appropriate treatment for the no-action alternative.234 These include Sections 227 Id. at 78.

228 Id. at 77-78 (citing Monticello, LBP-05-31, 62 NRC at n.83).

229 NRC Staff Answer at 47.

230 Id. (citing GEIS § 8.1).

231 Id. (citing Exelon Generating Co. (Early Site Permit for Clinton ESP Site), CLI-05-29, 62 NRC 801, 805, 807 (2005), affg LBP-05-19, 62 NRC 134 (2005)).

232 Id.

233 NYS Reply at 61.

234 Id.

8.1 and 8.2 of the GEIS, which indicate that, when considering the no-action alternative, the ER must provide a detailed analysis of renewable energy resources and energy conservation.235 NYS asserts that the Licensing Boards decision in Monticello was not, as suggested by Entergy, based on the contention being inherently inadmissible, but instead was based expressly on the failure of the intervener to provide any substantial supporting evidence for its contention.236 NYS argues that its contention is supported by sufficient evidence to distinguish it from the contention that was rejected in Monticello.

ii. Board Decision - NYS-9 The Board disagrees with NYSs argument that Entergys alternatives analysis for the defined goal of producing 2,158 MWe of base-load power generation is deficient by ignoring energy conservation, and finds this portion of NYS-9 inadmissible. However, the Board finds that NYS has demonstrated that there is a material dispute with the Applicant regarding the omission of energy conservation from it no-action alternative analysis and admits this portion of NYS-9. In its Petition, NYS addressed the need for an applicant to discuss energy conservation for both the alternatives analysis and for the no-action alternative.237 For the alternatives analysis, the Commission has affirmed that NEPA does not require it to look at every conceivable alternative,238 but rather requires only consideration of feasible, non-speculative, reasonable alternatives.239 It is clear from Commission decisions that the 235 Id. at 62.

236 Id. at 63.

237 NYS Petition at 106, 108.

238 Monticello, LBP-05-31, 62 NRC at 753 (citing Vermont Yankee Nuclear Power Corp.

v. National Res. Def. Council, Inc., 435 U.S. 519, 551 (1978))

239 Id. (citing Natural Res. Def. Council, Inc. v. Morton, 458 F.2d 827, 834, 837 (D.C. Cir.

1972); City of Carmel-by-the-Sea v. Dept of Transp., 123 F.3d 1142, 1155 (9th Cir. 1997); Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-91-2, 33 NRC 61, 65 (continued...)

Applicant in the alternatives analysis in its ER need only consider the range of possibilities that are capable of achieving the goals of the proposed action.240 In the instant case, this action is to re-license IPEC to generate approximately 2,158 MWe of base-load energy for an additional twenty years of operation.

Consistent with the GEIS,241 this Board agrees that the reasonable alternatives for license renewal proceedings are limited to discrete electric generation sources that are feasible technically and available commercially. Ignoring the feasibility question and its lack of commercial availability, energy conservation is clearly not discrete electric generation of any sort. This position is supported on an even broader basis in Clinton, where the Commission held that NEPA does not require an analysis of conservation or efficiency as an alternative to an early site permit.242 As affirmed by the Commission, NEPAs rule of reason does not demand an analysis of energy efficiency, because, inter alia, conservation measures are beyond the ability of an applicant to implement, and are therefore outside the scope required by a NEPA of reasonable alternatives.243 In summary, the Board agrees that it is not necessary for Entergy to look at energy conservation in its alternatives analysis for license renewal.

That said, the Board notes that the statements in the GEIS and in Clinton relate specifically to the alternatives analysis, while NYS-9 also raises the issue of whether there is a need for an applicant to discuss energy conservation as part of the no-action alternative in its 239

(...continued)

(1991)).

240 Hydro Resources Inc., (P.O. Box 15910, Rio Rancho, NM 87174), CLI-01-4, 53 NRC 31, 55 (2001); Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station),

CLI-93-3, 37 NRC 135, 144-45 (1993).

241 GEIS § 8.1.

242 Clinton, CLI-05-29, 62 NRC at 806-07.

243 Id. at 807-08.

ER.244 While both Section 8.1 of the GEIS and Clinton are silent relative to this aspect of NYS-9, the Board concludes that Section 8.2 of the GEIS addresses the need to consider energy conservation for the no-action alternative in stating that denial of a LRA may, in some cases, lead to energy conservation measures, whose environmental impacts, in turn, would be included in the no-action alternative.

In summary, NYS has provided a concise statement of alleged facts, and established a genuine dispute with the Applicant on a material issue, specifically, the need for Entergy to consider energy conservation for the no-action alternative in its ER. The Board admits NYS-9 in this narrow aspect of NYSs argument related to the no-action alternative. We reject those portions of NYS-9 that allege ER deficiencies due to Entergys lack of considering energy conservation in its alternatives analysis for the defined goal of producing 2,158 MWe of base-load generation. As clarified by the referenced Commission precedents, energy conservation is not within the range of reasonable alternatives related to the scope and goals of the proposed license renewal, and is not a discrete electric generation source that is feasible technically and available commercially. For these reasons, the Board finds that the portion of NYS-9 relating to the alternatives analyses is inadmissible, but the position of NYS-9 relating to the no-action alternative is admissible.

J. NYS-10 IN VIOLATION OF THE REQUIREMENTS OF 10 C.F.R. § 51.53(c)(3)(iii) AND OF THE GEIS

§ 8.1, THE ER (§ 8.3) TREATS ALL ALTERNATIVES TO LICENSE RENEWAL EXCEPT NATURAL GAS OR COAL PLANTS AS UNREASONABLE AND PROVIDES NO SUBSTANTIAL ANALYSIS OF THE POTENTIAL FOR OTHER ALTERNATIVES IN THE NEW YORK ENERGY MARKET.245 244 See NYS Petition at 108; see also NYS Reply at 61-62, 65, 70-71.

245 NYS Petition at 120.

i. Background - NYS-10 NYS-10 alleges that Entergy does not comply with the requirements of 10 C.F.R.

§ 51.53(c)(3)(iii) and Section 8.1 of the GEIS by eliminating analysis of all alternatives in the ER except natural gas or coal plants as unreasonable because the other alternatives cannot generate the base-load supply of 2,158 MWe of electricity.246 NYS notes that the GEIS states that a reasonable set of alternatives includes wind energy, photovoltaic (PV) cells, solar thermal energy, hydroelectricity, geothermal energy, incineration of wood waste and municipal solid waste (MSW), energy crops, oil, advanced light water reactors (LWR), and delayed retirement of existing non-nuclear plants.247 The stated foundation for NYS-10 is that Entergy has rejected alternative technologies as not feasible technically even though the GEIS declared that all alternatives must be evaluated for each license renewal proceeding.248 NYS argues that Entergy violates 10 C.F.R. § 51.53(c)(2) by using the need for power as a justification for rejecting other possible alternatives. To support its contention, NYS represents how alternative energy options could potentially be used to generate the base-load electricity currently supplied by IP2 and IP3.249 NYS proposes two alternatives not considered in the ER: (1) repowering existing power plants to increase their efficiency, increase their power output and reduce their pollution, and (2) enhancing existing transmission lines,250 and claims that Entergys arguments against wind 246 Id.

247 GEIS § 8.1 248 NYS Petition at 121 (citing GEIS § 8.1).

249 See id. at 123-37.

250 Id. at 122.

power are outdated.251 In opposing the admission of NYS-10, Entergy stands by its position in the ER that it has considered these energy alternatives and appropriately eliminated each one as unreasonable because each alternative is not a feasible technology for generating 2,158 MWe of base-load electricity.252 In response to NYSs criticism of its analysis of wind power, Entergy asserts that like solar power, wind power is not always available and cannot provide the necessary amount of power.253 Entergy reads the GEIS as limiting the alternatives analysis to single and discrete sources of energy and thus it concludes that it is not required to consider several alternatives in combination with each other.

The NRC Staff does not oppose the admission of NYS-10 to the extent that it challenges the adequacy of the analysis of renewable energy alternatives provided in Section 8 of the ER.254 The NRC Staff adds that it opposes the admission of any assertion that the ER should consider demand-side alternatives such as energy efficiency and conservation, or other alternatives like re-powering existing power plants or enhancing transmission lines that are beyond the ability of Entergy to implement.255 NYS replied collectively to Entergy and the NRC Staffs answers regarding NYS-9 through NYS-11, because, in its opinion, these three contentions challenge the adequacy of the ERs analysis of the no-action alternative. However, unlike in NYS-9, nowhere in its Petition 251 Id. at 126.

252 Entergy NYS Answer at 81 (quoting ER at 8-50).

253 Id. at 81-82.

254 NRC Staff Answer at 48.

255 Id. at 48-49.

for NYS-10 did NYS allude directly to the no-action alternative, but focused solely on the need to address other energy sources in its alternatives analysis.

ii. Board Decision - NYS-10 NYS claims that Entergys ER is deficient for not providing detailed analysis of other alternatives to license renewal besides natural gas or coal-fired plants. The Board finds that this is a direct attack on NRC Regulations and is not within the scope of the license renewal proceeding. Specifically, as noted in the Board decision on NYS-9,256 the Commission has concluded for the alternatives analysis that NEPA does not require it to look at every conceivable alternative,257 but rather requires only consideration of feasible, non-speculative, and reasonable alternatives.258 Accordingly, the Commission has determined that the Applicant, in its ER, need only consider the range of alternatives that are capable of achieving the goals of the proposed action which, in the instant case, is the generation of approximately 2,158 MWe of base-load energy for an additional twenty years.259 Consistent with GEIS § 8.1, this Board considers the reasonable alternatives for license renewal proceedings to be limited to discrete electric generation sources that are feasible technically and available commercially. We find that there is no legal requirement (nor has NYS proffered any) for the Applicant to analyze in detail options that are not discrete, feasible sources for 2,158 MWe of base-load energy.

NYS presents several different alternatives that it asserts should have been analyzed by 256 See supra Part VI.I.ii.

257 Monticello, LBP-05-31, 62 NRC at 753 (citing Vermont Yankee, 435 U.S. at 551).

258 Id. (citing City of Carmel-by-the-Sea, 123 F.3d at 1155; Shoreham, CLI-91-2, 33 NRC at 65).

259 See Hydro Resources, CLI-01-4, 53 NRC at 55; Rancho Seco, CLI-93-3, 37 NRC at 144-45.

Entergy in the ER.260 However, NYS fails to show that any one of these alternatives would produce the base-load supply of electricity that would equal that produced by the re-licensing of IP2 and IP3. The evidence offered by NYS suggests that it would be possible for a comprehensive system, combining the various energy sources offered and incorporating greater energy efficiency, to make up for the loss of 2,158 MWe of electricity that would occur if Indian Point were not relicensed. Nonetheless, the Applicant is required to analyze only discrete energy sources as alternatives261 - a claim that cannot be made for any of the alternatives provided by NYS.

Exclusive of these arguments, Entergy does, in fact, address alternatives in ER §§ 7.5, 8.3, which summarized various possibilities including wind, solar, hydropower, geothermal, wood energy, municipal solid waste, other biomass-derived fuels, oil, fuel cells, delayed retirement, utility-sponsored conservation, purchased/imported power, and a combination of alternatives. The Applicant also provides reasons why it did not further analyze each of these alternatives in the same manner as it did for coal generation, natural gas generation, nuclear generation from another plant, and imported power.262 We understand NYSs argument in terms of the wording of GEIS § 8.1. The beginning of the section states that all reasonable alternatives to a proposed action must be considered under NEPA and that the NRC will conduct a full analysis of alternatives at individual license renewal reviews.263 The GEIS defines the reasonable set of alternatives that need detailed review, however, as the discrete electric generation sources discussed above. This lays out the 260 These include: (1) repowering existing power plants, (2) enhancing existing transmission lines, (3) various renewable sources of energy - wind, solar, etc., (4) energy efficiency. NYS Petition at 122-37.

261 GEIS § 8.1; Monticello, LBP-05-31, 62 NRC at 753.

262 ER § 8.3.

263 GEIS § 8.1.

alternatives that need to be analyzed, and we find that Entergy has analyzed the alternatives for which such analysis is required. Thus, NYS has failed to establish a genuine dispute on this issue.

The NRC Staff does not oppose the admission of NYS-10 based on the inadequacy of Entergys analysis of renewable energy alternatives provided in its ER. However, it provides no viable argument which supports its alleged requirement for Entergy to further analyze renewable energy options in its ER.

In passing, we note that we admitted NYS-9 based exclusively on its challenge to the no-action alternative analysis, and rejected any part of the contention that asks for conservation to be included in the alternatives analysis. Here, we are faced with a contention that, in the initial Petition, only focused on the alternatives analysis and did not ask us to look at the no-action alternative analysis.264 In summary, NYS challenges the adequacy of the alternatives analysis in the ER. Given that the energy options raised by NYS are not single, discrete, feasible electric generation sources that are capable of producing 2,158 MWe of base-load electricity, we must reject the contention as falling outside the license renewal proceeding and for failing to establish a genuine dispute on a material issue of law or fact.

K. NYS-11 CONTRARY TO THE REQUIREMENTS OF NEPA AND 10 C.F.R. PART 51, THE ER FAILS TO FULLY CONSIDER THE ADVERSE ENVIRONMENTAL IMPACT THAT WILL BE CREATED BY LEAVING IP2 AND/OR IP3 AS AN ENERGY OPTION BEYOND 2013 AND 2015.265

i. Background - NYS-11 NYS-11 alleges that the ER fails to consider the adverse environmental impact of 264 No judgment, one way or another, should be made on how the Board would have addressed this issue if it was based on the needs for the no-action alternative. The Petitioner first applied the no-action alternative as a basis for this contention in its Reply, which the Board considers to be a new contention and therefore inadmissible.

265 NYS Petition at 138.

renewing the license as required by NEPA and 10 C.F.R. Part 51.266 NYS contends that as long as IP2 or IP3 remain operational, the incentive to utilize energy conservation and renewable energy is diminished, which, in turn, reduces the likelihood of implementing these options.267 NYS-11 contends that the ER does not thoroughly analyze the environmental costs and benefits of IP2 or IP3 in contrast with energy conservation because it dismisses demand-side management options as irrelevant and infeasible without considering the evidence showing that renewable energy sources are capable of displacing all the energy that IP2 and IP3 can generate over the next twenty years.268 NYS asserts that NEPA and 10 C.F.R. Part 51 lay out the purpose of the environmental review, namely, to determine whether there are alternatives that will achieve the goal of the proposal with less environmental damage, not whether it will be to the economic advantage of the proponent of the proposal to implement such alternatives.269 NYS states that it is the NRC that must decide whether the proposed license renewal is the preferable course of action, and is not constrained by what the Applicant wishes to do.270 Entergy posits that NYS-11 is essentially . . . Contentions 9 and 10 recast as an additional contention.271 It reaffirms its position from NYS-9 and NYS-10 that the energy alternatives analysis in the ER is consistent with the GEIS governing NRC precedent.272 In response to NYSs argument that renewing the licenses will create a disincentive for energy 266 Id.

267 Id.

268 Id. at 138-39.

269 Id.

270 Id. at 139.

271 Entergy NYS Answer at 84.

272 Id. (citing GEIS § 8-1; Monticello, LBP-05-31, 62 NRC at 753).

conservation and the use of renewable energy, Entergy points out that it has no legal or other obligation to shut down IP2 and/or IP3 to help NYS meet its energy conservation goals.273 The NRC Staff opposes the admission of NYS-11 because, in its view, the contention seeks to require [Entergy] to consider not whether alternatives might exist, but whether its operation of the facility would lead other decision-makers to put aside other energy options.274 The NRC Staff also argues that NYS fails to present factual support for this assertion.275 In its Reply, NYS responds specifically to the argument made by the NRC Staff that there is no evidence that renewing the licenses would have an adverse environmental impact.

NYS asserts that it has identified in its Petition substantial adverse environmental impacts associated with allowing Indian Point to operate.276 NYS adds that Entergy devotes two chapters and dozens of pages to an analysis of the adverse impacts of allowing Indian Point to operate.277 NYS asserts that the Applicant has misread its contention. It asserts that NYS-11 is not arguing that IP2 and IP3 should be shut down, but rather that the ER failed to discuss how its closure might encourage other environmentally preferable options.278 ii. Board Decision - NYS-11 The Board finds that Clinton279 and Monticello280 are controlling in this instance. The 273 Id. at 85 (citing Clinton, CLI-05-29, 62 NRC at 806).

274 NRC Staff Answer at 49.

275 Id. at 49-50.

276 NYS Reply at 74 (citing NYS Petition at 140-73, 245-96).

277 Id. (citing ER §§ 6, 8).

278 Id. at 75.

279 Clinton, CLI-05-29, 62 NRC 801.

280 Monticello, LBP-05-31, 62 NRC 735.

main thrust of NYS-11, in terms of differentiating it from NYS-9 and NYS-10, is that the ER does not consider the proposition that, so long as Indian Point remains open, the incentive for energy conservation and the creation of renewable energy sources is diminished.281 However, the Commission in Clinton stated that neither the NRC nor [the applicant] has the mission (or authority) to implement a general societal interest in energy efficiency.282 While this specific statement deals only with energy efficiency, the Board makes no practical distinction between energy efficiency and energy conservation, an approach consistent with the Commissions grouping of energy efficiency, energy conservation, and other demand-side management options.283 Entergy presented renewable energy options in its ER,284 but eliminated them due to their inability to provide 2,158 MWe of base-load power on a consistent basis. The Board finds that Entergys decision to exclude renewable energy options is reasonable because these sources are not always available and, with the current technology, cannot meet the goals of the LRA, a conclusion that is in line with the GEIS and Monticello.285 281 NYS Petition at 138.

282 Clinton, CLI-05-29, 62 NRC at 806. The Seventh Circuit upheld this decision stating that:

Because [the Applicant] was a private company engaged in generating energy for the wholesale market, the Board's adoption of baseload energy generation as the purpose behind the [proposed action] was not arbitrary, capricious, an abuse of discretion or otherwise not in accordance with law. The adopted purpose was broad enough to permit consideration of a host of energy generating alternatives.

Moreover, it was reasonable for the Board to conclude that NEPA did not require consideration of energy efficiency alternatives when [the Applicant] was in no position to implement such measures.

Envtl. Law & Policy Ctr., 470 F.3d at 684 (citations omitted).

283 Clinton, CLI-05-29, 62 NRC at 806.

284 ER at 8-50.

285 See GEIS § 8.1; see also Monticello, LBP-05-31, 62 NRC at 753.

The Petitioner makes no specific reference to the no-action alternative in NYS-11. As we discussed in our decision to admit a limited version of NYS-9, an applicant need not analyze conservation and energy efficiency as alternatives outside of the no-action alternative analysis.

For the reasons stated above, the Board finds that NYS-11 is inadmissible because the issues raised are outside the scope of this proceeding, and are a direct challenge to the regulations.286 Additionally, while we agree with NYS that it is the NRC that must comply with NEPA, and that the NRC is not constrained by the content of the Applicants ER, the NRC Staffs determination is not ripe for review at this point, and must await publication of the NRC Staffs Final Environmental Impact Statement (FEIS).

286 10 C.F.R. § 2.335(a).

L. NYS-12 ENTERGYS SEVERE ACCIDENT MITIGATION ALTERNATIVES (SAMA) FOR INDIAN POINT 2 AND INDIAN POINT 3 DOES NOT ACCURATELY REFLECT DECONTAMINATION AND CLEAN UP COSTS ASSOCIATED WITH A SEVERE ACCIDENT IN THE NEW YORK METROPOLITAN AREA AND, THEREFORE, ENTERGYS SAMA ANALYSIS UNDERESTIMATES THE COST OF A SEVERE ACCIDENT IN VIOLATION OF 10 C.F.R.

§ 51.53(c)(3)(ii)(L)287

i. Background - NYS-12 NYS-12 asserts that the cost formula contained in the MELCOR Accident Consequence Code System (MACCS2") computer program used by Entergy underestimates the costs associated with a severe accident because the code uses decontamination and clean-up costs based on large-sized particles.288 NYS argues that a severe accident resulting in the dispersion of radionuclides from a nuclear power plant likely will result in the dispersion of small-sized radionuclides that are more expensive to remove and clean up than large-sized radionuclide particles.289 Therefore the result would be a significantly higher cost value for an accident at Indian Point.290 NYS states that this means the SAMA analysis in the LRA did not accurately determine which mitigation measures are cost effective.291 NYS maintains that the SAMA analysis should incorporate the analytical framework contained in the 1996 Sandia National Laboratories report concerning site restoration costs as well as recent studies examining the cost consequences in the New York metropolitan area.292 287 NYS Petition at 140.

288 Id.

289 Id. at 141.

290 Id.

291 Id. at 141-42.

292 Id. at 142 (citing D. Chanin and W. Murfin, Site Restoration: Estimation of Attributable Costs from Plutonium-Dispersal Accidents, SAND96-0957, Unlimited Release, UC-502, (May 1996) [hereinafter Sandia Report]; Beyea, Lyman, von Hippel, Damages from a Major Release (continued...)

Entergy opposes the admission of NYS-12 because, in its view, NYS inappropriately seeks to litigate the acceptability of using the MACCS2 code . . . .293 Entergy also asserts that the Licensing Board in Pilgrim rejected the arguments of a petitioner who presented a generic challenge to the MACCS2 code,294 and that many of NYSs criticisms of the MACCS2 code are not supported by documents or expert opinion. Entergy also argues that its use of the code is consistent with NRC-endorsed guidance.295 Furthermore, Entergy suggests that NYS has failed to point to specific parts of the LRA that it finds to be deficient or not in compliance with NRC Regulations.296 Instead, Entergy maintains that NYS merely refers to three documents that should be used to determine the present and future value of decontamination costs, sans any supporting rationale or discussion.297 The NRC Staff also opposes the admission of NYS-12. The NRC Staff argues that NYS has failed to establish the relevance of the Sandia Report on which it relies.298 The NRC Staff represents that the Sandia Report deals with dispersion of plutonium from a nuclear weapon, while the release at issue in this proceeding is from a severe accident at a nuclear power 292

(...continued) 137 of Cs into the Atmosphere of the United States, SCIENCE AND GLOBAL SECURITY, Vol. 12 at 125-36 (2004); Lyman, Chernobyl on the Hudson? The Health and Economic Impacts of a Terrorist Attack at the Indian Point Nuclear Power Plant, Union of Concerned Scientists (Sept. 2004).

293 Entergy NYS Answer at 86.

294 Id. at 87-88 (citing Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station),

LBP-06-23, 64 NRC 257, 340 (2006); Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), LBP-07-13, 66 NRC 131, 142-43 (2007)).

295 Id. at 87.

296 Id. at 88-89.

297 Id. at 89.

298 NRC Staff Answer at 50.

plant.299 Additionally, the NRC Staff faults NYS for not including a factual foundation for its challenge to the MACCS2 code, alleging that NYS has failed to show how the Sandia Report is superior, or how the MACCS2 code is defective.300 In its Reply, NYS notes that expert testimony is not required under 10 C.F.R. § 2.309(f) where the regulations require either expert testimony or a concise statement of facts.301 NYS states that the Board should reject the challenges to the Sandia Report presented by NRC Staff and Entergy because the Sandia Report addresses the underestimation of economic costs of a severe nuclear reactor accident, as well as accidents involving nuclear weapons.302 While admitting that the Sandia Reports focus is on plutonium dispersal from nuclear weapons, NYS maintains that it still is one of the most, if not the most, comprehensive existing practical guides to radioactivity dispersion and decontamination costs, and must be considered by the Board.303 NYS disputes Entergys claims that NYS-12 is a generalized attack on the MACCS2 code, arguing instead that it focuses on particular aspects of the MACCS2 code that misrepresent the post-accident consequences of a severe accident, thus distorting the SAMA analysis of the damages such an accident would cause.304 299 Id. at 50-51.

300 Id. at 51.

301 NYS Reply at 76.

302 Id. at 77 (citing Sandia Report at 2-10).

303 Id. at 78.

304 Id. at 79.

ii. Board Decision - NYS-12 The Board finds that NYS-12 is neither a challenge to the acceptability of using the MACCS2 computer program nor a direct challenge to MACCS2 itself.305 Rather, the contention challenges the cost data for decontamination and clean up used by MACCS2. NYS thus raises questions of material fact about the Applicants SAMA analysis that were not addressed by Entergy or the NRC Staff in their Answers to NYSs Petition.

The NYS challenge is based on statements in the Sandia Report such as: Data on recovery from nuclear explosions that have been publicly available since the 1960s appear to have been misinterpreted, which has led to long-standing underestimates of the potential economic costs of severe reactor accidents.306 As cited by NYS, the Sandia Report also questions the appropriateness of decontamination factors (estimates of the effectiveness of clean up measures) used in severe reactor accidents. Based on this information, NYS is not challenging the use of MACCS2 itself, but is questioning whether specific inputs and assumptions307 made in MACCS2 SAMA analyses are correct for the area surrounding Indian Point. While Entergy and the NRC Staff are correct in that the primary motivation for the Sandia Report is to achieve accurate clean up and contamination cost estimates for plutonium dispersal incidents from nuclear weapons, the report also examines the basis for such clean up costs in severe reactor accidents. While NYS has not pointed to specific incorrect inputs or assumptions made by Entergy in its SAMA analysis, to be able to do so would require an unreasonable degree of familiarity with MACCS2 on the part of NYS. Questions raised in this contention relating to clean up and decontamination costs based on the validity of assumptions 305 Entergy concedes that while the code itself would not be subject to challenge in this proceeding, it would be possible to make a particularized challenge to specific input parameters in the code or how the Applicant uses the code. Tr. at 265.

306 Sandia Report at 2-10.

307 Entergy NYS Answer at 88.

used with the code should appropriately be resolved at the hearing.308 Therefore, NYS-12 is admitted.

M. NYS-13 THE ER SAMA ANALYSIS FOR IP3 IS DEFICIENT BECAUSE IT DOES NOT INCLUDE THE INCREASED RISK OF A FIRE BARRIER FAILURE AND THE LOSS OF BOTH CABLE TRAINS OF IMPORTANT SAFETY EQUIPMENT IN EVALUATING A SEVERE ACCIDENT.309

i. Background - NYS-13 NYS-13 asserts that the SAMA analysis in Entergys ER does not properly consider the risk of electrical circuits important for safety failing to perform their function due to loss of redundant trains by fire and does not compare the costs of those larger consequences against the cost of mitigating the accident by upgrading the cable and equipment enclosures to meet the requirements . . . .310 NYS contends that Entergys position that the fire hazard in the SAMA analysis has been conservatively modeled is incorrect, because Entergy fails to consider the loss of redundant cable trains due to the use of only twenty-four or thirty minute fire protection barriers instead of the one hour barrier required in Appendix R of 10 C.F.R.

Part 50.311 Entergy opposes admission of NYS-13 because it asserts that it is a challenge to the CLB under the guise of a SAMA contention and, because challenges to the CLB are outside the scope of the proceeding.312 Entergy also notes that the NRC Staff granted Entergy an exemption for IP3 from the requirements of Section III.G.2 of 10 C.F.R. Part 50, Appendix R, 308 See discussion of McGuire/Catawba infra pp. 67-68. Unlike the situation in McGuire/Catawba where the Petitioner presented no notion of cost, and therefore did not demonstrate that a particular SAMA should have been done, here a SAMA was done but NYS alleges that the analysis was flawed because of invalid assumption used with the code.

309 NYS Petition at 146.

310 Id.

311 Id. at 147.

312 Entergy NYS Answer at 92.

and that decision cannot be reviewed as part of a LRA proceeding.313 Entergy asserts that NYS fails to offer sufficient factual or expert support to show that the SAMA analysis is deficient or that those deficiencies are material in that they would alter the results of [Entergys] SAMA evaluation.314 Entergy cites the Commissions decision in McGuire/Catawba to support its assertion that a petitioner must approximate the relative cost and benefit of a challenged SAMA in order to get an adjudicatory hearing.315 Entergy argues that NYS has not shown that the SAMA would be cost-beneficial. Finally, Entergy asserts that the contention is fatally flawed because it does nothing to controvert the methodology or assumptions set forth in the ER.316 The NRC Staff shares the same objections as Entergy to the admission of NYS-13.317 In its Reply, NYS explains that NYS-13 is a challenge to the SAMA analysis in the ER in that it fails to consider the adverse impact of a severe accident involving the loss of redundant safe shutdown electrical trains due to fire at IP3 and the failure to consider measures to mitigate those impacts.318 NYS argues that because the ER does not analyze this severe accident, there is no analysis of the cost of eliminating this risk compared to the cost of the risk.319 NYS refers to the NRC Staffs and Entergys suggestion that NYS prove that its SAMA is cost-beneficial as preposterous because the question should be whether the proposed accident 313 Id. at 93 n.404.

314 Id. at 92.

315 Id. at 94 (citing Duke Energy Corporation (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-17, 56 NRC 1, 7-8 n.14 (2002)).

316 Id. at 95.

317 Staff Answer at 52-53.

318 NYS Reply at 81.

319 Id.

scenario is possible.320 Otherwise the burden would shift from an applicant to a petitioner to prove whether a severe accident and its consequences can be feasibly and economically mitigated.321 NYS makes the point that the burden of proving this would be prohibitive on petitioners who would need access to plant information and expensive computer codes.

ii. Board Decision - NYS-13 The Board rejects NYS-13 because NYS has not provided any information indicating the potential costs associated with the upgrade in fire protection. Given that the Commission decision in McGuire/Catawba322 requires a petitioner to proffer some indication of what the differences might be if a proposed SAMA is performed, this Board must reject this contention.

NYS maintains that the questions for SAMA admissibility are, and should be, whether a proposed accident scenario is plausible and whether there is a technically feasible mitigation measure to address the consequences. While the Board recognizes that the two postulated criteria are logical, and that NYS has met these criteria, the Board is bound by the Commissions decision in McGuire/Catawba and must, therefore, reject this contention. For this contention to be admitted it is not enough for the Petitioner to demonstrate that there is a realistic basis to assume that a fire could last longer than thirty minutes and that such a fire could make it impossible to achieve a hot shutdown.323 The Petitioner failed to provide any indication of the potential result if the suggested SAMA was performed or of the costs of the proposed accident mitigation. This is not to say that a petitioner must perform the SAMA, as seemingly suggested by Entergy, or that the petitioner has the burden of proof to show whether a particular severe accident and its consequences can 320 Id. at 83.

321 Id. at 84.

322 McGuire/Catawba, CLI-02-17, 56 NRC at 11-12.

323 NYS Petitioner at 147-48.

be effectively mitigated. Rather, to comply with the Commissions direction in McGuire/Catawba, a petitioner must at least present some notion of a difference in the results and provide at least some ballpark consequence and implementation costs should the SAMA be performed.

Whether a SAMA must be analyzed in an ER hinges on whether it could potentially be cost-beneficial. Therefore, the Petitioner must, at a minimum, address the approximate relative cost and benefit of the SAMA because without any notion of cost, it is difficult to assess whether a SAMA may be cost-beneficial and thus warrant serious consideration.324 As noted, Entergy and the NRC Staff posit that NYS-13 is essentially attacking the NRC Staffs approval of Entergys exemption request for a reduction in fire protection, which is an attack on the CLB.

In its Reply, NYS asserts that, if the Applicants and the NRC Staffs position were accepted, any SAMA challenge would automatically be a challenge to the CLB.325 The Board rejects Entergys and the NRC Staffs position (as NYS is clearly challenging the SAMA and not the CLB). SAMAs are procedural analyses promulgated consistent with NRC Regulations to implement NEPA. These analyses are performed to assure that the NRC Staff has considered the cost-effectiveness of mitigating severe accidents in its FEIS. As an analysis process, in and by itself, SAMAs do not change a CLB.

In summary, the Board finds that NYS-13 is not attacking the CLB but the adequacy of Entergys SAMA, and that NYS-13 is within the scope of license renewal proceedings. The Board rejects the contention however, as not providing sufficient factual information to establish a genuine dispute, because it failed to provide any estimate of the consequences and implementation costs for its proffered SAMA.

324 McGuire/Catawba, CLI-02-17, 56 NRC at 12.

325 NYS Reply at 82.

N. NYS-14 THE LICENSE RENEWAL APPLICATION AND SAMA ANALYSIS ARE INCOMPLETE AND INSUFFICIENTLY ANALYZE ALTERNATIVES FOR MITIGATION OF SEVERE ACCIDENTS, IN THAT THEY (A) FAIL TO INCLUDE MORE RECENT INFORMATION REGARDING THE TYPE, FREQUENCY, AND SEVERITY OF POTENTIAL EARTHQUAKES AND (B) FAIL TO INCLUDE AN ANALYSIS OF SEVERE ACCIDENT MITIGATION ALTERNATIVES THAT COULD REDUCE THE EFFECTS OF AN EARTHQUAKE DAMAGING IP1 AND ITS SYSTEMS, STRUCTURES, AND COMPONENTS THAT SUPPORT IP2 AND IP3 ALL IN VIOLATION OF 10 C.F.R. § 51.53(c)(3)(ii)(L).326

i. Background - NYS-14 NYS-14 alleges that even though IP1 is no longer in use, IP2 and IP3 continue to depend on some of its SSCs.327 NYS-14 further alleges that the seismic data in the Safety Analysis Report for IP1 is over twenty years old and does not include the new data that has been gathered over the last twenty years which disclose a substantially higher likelihood of significant earthquake activity in the vicinity of IP1 that could exceed the earthquake design for the facility.328 NYS asserts that the LRA and the SAMA analysis do not take account of the greater present day knowledge regarding the earthquake likelihood and its consequences and thus do not adequately evaluate either the likelihood or the consequences of a severe accident at IP1.329 In opposing the admission of NYS-14, Entergy asserts that it is not a challenge to the SAMA analysis but rather is a challenge to the CLB of IP1, specifically to the adequacy of its seismic design.330 According to Entergy, challenges to the CLB such as this are outside the scope of the license renewal proceeding. Entergy maintains that IP1 is only relevant in the proceeding to the extent that its systems and components interface with, and in some cases 326 NYS Petition at 149.

327 Id. at 150.

328 Id. at 151.

329 Id. at 154.

330 Entergy NYS Answer at 97.

would support, the continued operation of Units 2 and 3, such that the effects of aging on those Unit 1 systems or components must be considered under 10 C.F.R. Part 54.331 Entergy asserts that the seismic design of IP1 is a CLB issue and not material to aging management.332 Additionally, Entergy points out that the issues raised by NYS were considered by the NRC over 30 years ago.333 In opposing NYS-14 as a SAMA contention, Entergy asserts that NYS does not point to any specific deficiencies in the SAMA analysis with the requisite particularity or documentary and expert support.334 The NRC Staff opposes the admission of NYS-14 because it contends that NYS has not shown that there is a material issue in dispute and that NYS does not understand how the probability risk assessment (PRA) is performed.335 The NRC Staff asserts that NYS fails to show that including the new seismic data would have changed the SAMA analysis. Thus, according to the NRC Staff, NYS does not demonstrate that there is a material issue at hand.336 The NRC Staff explains that to the extent that IP2 and IP3 depend on certain SSCs from IP1, those SSCs are included in the PRA. According to the NRC Staff, NYS fails to identify any SSCs that were not included in the PRA that should have been.337 331 Id. at 98-99.

332 Id. at 99.

333 Id. (citing Consol. Edison Co. of N.Y., Inc. (Indian Point Units 1, 2 and 3), ALAB-436, 6 NRC 547 (1977); see also Transcript of Meeting of Advisory Committee on Reactor Safeguards, Joint Subcommittee on Indian Point/Seismic Activity (June 16, 1978)).

334 Id. at 101-02.

335 NRC Staff Answer at 54.

336 Id.

337 Id. at 54-55.

In its Reply, NYS points out that neither the NRC Staff nor Entergy has disputed any of its allegations.338 In response to the NRC Staffs assertion that NYS did not allege that the new seismic information would change the SAMA analysis results, NYS suggests that the contention should be admitted based on 10 C.F.R. § 2.309(f)(1)(vi), which allows for contention admission based on the failure of the LRA to include necessary information.339 NYS asserts that the NRC Staffs position would shift the burden of proof onto NYS to establish that the SAMA analyses are inaccurate, rather than on Entergy to establish that they are accurate.340 NYS maintains that NYS-14 is adequately supported and specific, and essentially shows that the failure of the SAMA analysis of earthquake hazards for IP1, IP2, and IP3 to consider newer information that demonstrates . . . both the likelihood and consequences of an earthquake in this area substantially greater than considered in the SAMA analysis.341 NYS also disputes Entergys position that NYS-14 is a challenge to the CLB. NYS claims that the contention takes the LRA as it is and focuses on the deficiencies in the SAMA analysis that relies on the outdated seismic data.342 ii. Board Decision - NYS-14 As NYS-14 and NYS-15 are very similar in nature, the Board has consolidated its analysis of the admissibility of these two contentions.343 338 NYS Reply at 86.

339 Id. at 88.

340 Id.

341 Id. at 89.

342 Id.

343 See infra Part VI.O.ii.

O. NYS-15 THE SEVERE ACCIDENT MITIGATION ALTERNATIVES (SAMA) ANALYSIS FOR INDIAN POINT 2 (ER pages 4-64 to 4-67) AND INDIAN POINT 3 (ER pages 4-68 to 4-71) ARE INCOMPLETE, AND INSUFFICIENTLY ANALYZE ALTERNATIVES FOR MITIGATION OF SEVERE ACCIDENTS IN VIOLATION OF 10 C.F.R. § 51.53(c)(3)(ii)(L).344

i. Background - NYS-15 NYS-15 raises the same issues for IP2 and IP3 that are raised in NYS-14 for IP1. In NYS-15, the Petitioner alleges that the SAMA analysis fails to include more recent information regarding the type, frequency and severity of potential earthquakes and fails to include an analysis of [SAMAs] that could reduce the effect of such earthquakes.345 NYS also reviews new seismological findings that have accumulated since the IP2 and IP3 licenses were granted, states that the most recent seismic data reported in the UFSAR for these reactors is over 25 years old, and remarks on the summary nature of the seismic data taken from the Individual Plant Examination of External Events (IPEEE) Program for IP2 and IP3.346 NYS then contends that because the LRA, IPEEE and SAMA analyses do not sufficiently document that they have taken into account the greater knowledge regarding the earthquake likelihood and its consequences, these analyses do not adequately evaluate the likelihood or consequences of a severe seismic accident at IP2 or IP3.347 Stating that the foundation of the pertinent SAMA analysis is the likelihood of a severe accident, NYS concludes that the SAMA analysis is fatally flawed in that it does not support a conclusion either that it was conservatively done or that the risks and consequences of reasonably possible severe earthquake induced accidents have been properly evaluated.348 344 NYS Petition at 155.

345 Id.

346 Id. at 155-56.

347 Id. at 157-58.

348 Id. at 159.

Entergy opposes the admission of this contention claiming that (1) it raises CLB issues that are outside the scope of this proceeding and not material for license renewal,349 (2) the seismic portion of its SAMA analysis is consistent with NRC and industry guidance in NEI 05-01, Revision A;350 and (3) in accord with NEI 05-01, Entergy has utilized results from the IPEEE for IP2 and IP3.351 Additionally, Entergy states that a 2004 NRC response to concerns about IPEC seismic hazard analysis covered most, if not all, of the NYS issues in this proceeding,352 that the NRC response noted the IPEEE analysis for IP2 and IP3 included Lawrence Livermore National Laboratory revised hazard estimates and response spectra documented in NUREG-1488, and that the NRC concluded that it is unlikely for potential earthquakes in the area to cause any damages to the Indian Point nuclear facilities.353 The NRC Staff opposes the contention because it fails to demonstrate that new information about seismic activity would change the SAMA analysis and result in the identification of additional cost-beneficial mitigation alternatives.354 Furthermore, the NRC Staff argues that it is outside the scope of the proceeding to the extent that it challenges the UFSAR and the IPEEE, and that it raises issues covered by the CLB.355 349 Entergy NYS Answer at 105-06.

350 Id. at 106.

351 Id. at 106-07 (citing ER at 4-51).

352 Id. at 107 (citing Letter from C. Holden, NRC to A. Matthiessen, Riverkeeper, att. at 3 (Dec. 15, 2004) (ADAMS Accession No. ML042990090) [hereinafter NRC 2004 Riverkeeper Response]).

353 Id. (quoting NRC 2004 Riverkeeper Response at 4).

354 NRC Staff Answer at 55.

355 See id. at 55-56.

In its Reply, NYS repeats its allegation that Entergys SAMA analyses were never updated to reflect the last thirty years of seismic experience in eastern North America.356 Also, NYS argues that Entergys SAMA analyses included a seismic hazard analysis and therefore that analysis is within the scope of 10 C.F.R. Part 51 for license renewal proceedings.357 Additionally, NYS states the ER failed to discuss or disclose the actual assumptions or inputs regarding seismic events that went into calculating the Core Damage Factor (CDF) numbers.358 ii. Board Decision - NYS-14/15 Entergy did include seismic SAMA analysis in its ER. NYS argues, however, that Entergys analysis is based on outdated seismic data used in granting the original licenses.

According to NYS, data generated since the original licensing of the Indian Point facility indicates that the likelihood and consequences of earthquakes were significantly underestimated when the original licenses were granted.359 NYS asserts that because of this greater risk, SAMAs that could reduce the effects of earthquake damages should have been undertaken as part of the license renewal process. NYS alleges that the LRA fails to address a relevant matter - the effect of the new seismic data on Entergys SAMA analysis. NYS argues that it is not attacking the CLB, which is precluded in a LRA, but rather, that it is attacking the adequacy of the SAMA analysis.360 356 NYS Reply at 91.

357 Id.

358 Id. at 92.

359 NYS Petition at 154; Declaration of Lynn R. Sykes at 2 (Nov. 29, 2007); Declaration of Leonardo Seeber at 1-2 (Nov. 29, 2007).

360 NYS Reply at 89.

However, NYS does not explain why the most recent information is sufficiently different from the earlier data to make a material change in the conclusions of the seismic SAMA.

Likewise NYS does not suggest feasible alternatives to address risks posed by the new data, nor does it estimate the cost of the increased margin of safety that would result from any severe accident mitigation action. Similarly, while NYS questions whether the seismic SAMA analysis is conservative, it does not demonstrate to what degree the assumptions used by Entergy in the ER are not conservative. While the seismic SAMA methodology is outlined in the ER, NYS assumes that, because it cannot check all analysis details, the analysis is incomplete or incorrect. This is speculation and such speculation is insufficient to support the admissibility of this contention. Accordingly, the Board rejects NYS-14 and NYS-15 because NYS has failed to present facts or expert opinion that raise a genuine dispute on a material issue.

P. NYS-16 ENTERGYS ASSERTION, IN ITS SAMA ANALYSIS FOR IP2 AND IP3, THAT IT CONSERVATIVELY ESTIMATED THE POPULATION DOSE OF RADIATION IN A SEVERE ACCIDENT, IS UNSUPPORTED BECAUSE ENTERGYS AIR DISPERSION MODEL WILL NOT ACCURATELY PREDICT THE GEOGRAPHIC DISPERSION OF RADIONUCLIDES RELEASED IN A SEVERE ACCIDENT AND ENTERGYS SAMA WILL NOT PRESENT AN ACCURATE ESTIMATE OF THE COSTS OF HUMAN EXPOSURE.361

i. Background - NYS-16 NYS-16 contends that Entergy assumed a scenario in its SAMA analysis for IP2 in which no one within a fifty-mile radius of the plant would be evacuated, and used this scenario to show that it conservatively estimated the population dose of radiation.362 NYS alleges that the accuracy of this analysis depends on whether the air dispersion model used by Entergy accurately portrays the geographic areas that will be most affected within the 10 mile Emergency Planning Zone around the plant that actually would be evacuated during a severe 361 NYS Petition at 163.

362 Id.

accident.363 NYS similarly questions the ability of Entergys air dispersion model to correctly predict the geographic dispersion and concentration of radionuclides in the area between the ten-mile and fifty-mile radius around the plant, noting that the geographic density of the potentially affected population varies greatly in this area, and that Entergy used the model to reject sixty-one of sixty-eight SAMAs.364 Entergy uses the MAACS2 code that incorporates a straight line Gaussian plume model, called ATMOS, to predict atmospheric dispersion. NYS alleges that this model is not as accurate as newer EPA-approved models, that the EPA has not authorized the use of ATMOS to show compliance with the Clean Air Act, and that the EPA has not authorized the use of a straight line steady state Gaussian plume model beyond fifty kilometers (i.e., thirty-one miles) because its accuracy decreases with distance from the source of release.365 According to NYS, ATMOS does not account for changes in wind speed or direction during the simulation time period nor can it incorporate differences in terrain that will affect the way in which the release will travel.366 NYS also questions Entergys population projection for 2035, pointing out that the U.S. Census estimate of the population of Manhattan in 2006 is larger than Entergys 2035 projection.367 Entergy opposes the admission of NYS-16 because, in its view, it is an inappropriate challenge to the MACCS2 code, for which ATMOS is a module.368 As Entergy argued in its 363 Id. at 163-64.

364 Id. at 165.

365 Id.

366 Id. at 166.

367 Id. at 164 n.37.

368 Entergy NYS Answer at 110.

response to NYS-12,369 it asserts here that a contention challenging the MACCS2 code is inadmissible under the reasoning set forth in the Pilgrim decision.370 Additionally, Entergy contends that NYS failed to show that using a different code would materially change the SAMA analysis.371 Entergy also maintains that NYS has failed to identify a specific deficiency in the SAMA analysis.372 The NRC Staff opposes the admission of the contention because NYS fails to show that the MACCS2 code is deficient.373 The NRC Staff also looks to the Pilgrim case to support its position that a contention that challenges the MACCS2 code is inadmissible.374 In its Reply, NYS asserts that Entergy is misguided in claiming that an attack on the MACCS2 code is an impermissible attack on NRC Regulations simply because using the MACCS2 code is consistent with a NRC-endorsed guidance document.375 NYS concedes that NRC Regulations cannot be challenged here. However, it asserts it may challenge NRC guidance documents, which it does in this contention.376 NYS points out that there is no NRC Regulation requiring applicants to use the MACCS2 code or requiring the use of ATMOS as the air dispersion model within MACCS2.377 NYS makes clear that its challenge is not to the 369 See discussion supra pp. 62-63.

370 Entergy NYS Answer at 111.

371 Id. at 112.

372 Id.

373 NRC Staff Answer at 56.

374 See id. at 56-58.

375 NYS Reply at 94-95.

376 See id. at 94-95. NYS points to a Licensing Board decision in McGuire/Catawba to support its position. The Board found that challenges to the standards in regulatory guides are permissible because they are not NRC rules or regulations but are regarded as the views of only one party - the Staff - although they are entitled to considerable prima facie weight.

McGuire/Catawba, LBP-03-17, 58 NRC at 241.

377 NYS Reply at 94.

MACCS2 codes probabilistic modeling but only to its incorporation of an outdated model to compute those meteorological probabilities.378 NYS states that it would not contest the use of the MACCS2 code if Entergy were to use an accurate air dispersion model.379 In terms of Entergys and the NRC Staffs reliance on the Pilgrim decision, NYS differentiates its contention from that of the petitioner in Pilgrim, which it maintains was far broader than NYS-16.380 While the petitioner in Pilgrim challenged any use of the MACCS2 code and the probabilistic method it uses, NYS is challenging only the adequacy of the air dispersion model within the code to provide accurate information from which the probabilities can be computed.381 ii. Board Decision - NYS-16 The Board admits NYS-16 to the extent that it challenges whether the population projections used by Entergy are underestimated. And also, within the framework of the bounding assumptions and conservative inputs used in MACCS2 SAMA analyses, we admit NYS-16 to the extent that it challenges whether the ATMOS module in MACCS2 is being used beyond its range of validity - beyond thirty-one miles (fifty kilometers) - and, whether use of MACCS2 with the ATMOS module leads to non-conservative geographical distribution of radioactive dose within a fifty-mile radius of IPEC. The first of these is a question of model input data material to the making of accurate SAMA analyses. The answer to the second could materially affect the costs of various mitigation alternatives because the potentially exposed population rapidly increases with distance between thirty-one miles and fifty miles from IPEC.

The answer to the third could substantially change costs because of very large geographic variations of population density within fifty-miles of IPEC.

378 Id. at 96.

379 Id.

380 Id. at 98-100.

381 Id. at 99.

While Entergy argues that NYS failed to show that using a different code would materially change the SAMA analyses and failed to identify a specific deficiency in the SAMA analysis, we disagree. A petitioner is not required to redo SAMA analyses in order to raise a material issue. Here - unlike the situation in McGuire/Catawba, where the petitioner presented no notion of cost and therefore did not demonstrate that a particular SAMA should have been done382 - NYS-16 alleges that the SAMA was done, but that the analysis was significantly flawed due to the use of inaccurate factual assumptions.

Q. NYS-17 THE ENVIRONMENTAL REPORT FAILS TO INCLUDE AN ANALYSIS OF ADVERSE IMPACTS ON OFF-SITE LAND USE OF LICENSE RENEWAL AND THUS ERRONEOUSLY CONCLUDES THAT RELICENSING OF IP2 AND IP3 WILL HAVE A SIGNIFICANT POSITIVE IMPACT ON THE COMMUNITIES SURROUNDING THE STATION (ER SECTION 8.5) AND UNDERSTATES THE ADVERSE IMPACT ON OFF-SITE LAND USE (ER SECTIONS 4.18.4 AND 4.18.5) IN VIOLATION OF 10 C.F.R. PART 51, SUBPART A, APPENDIX B.383

i. Background - NYS-17 NYS-17 asserts that the ER is deficient because it ignores the positive impact on land-use and land values from the denial of the LRA (the adjacent lands would experience economic recovery because, NYS claims, the site will be available for unrestricted use by 2025) and overstates the off-site benefits of renewal.384 Furthermore, NYS asserts that the current spent fuel pools will not be able to contain the additional spent fuel generated during the renewal period, and thus dry cask storage is required.385 This will have additional impacts on adjacent lands that are not analyzed in the ER.386 The ER, according to NYS, only looks at tax and 382 McGuire/Catawba, CLI-02-17, 56 NRC at 12.

383 NYS Petition at 167.

384 Id. at 168.

385 Id.

386 Id. at 169.

population-driven land-use impacts and ignores the impact of relicensing on the adjacent lands.387 In opposing the admission of NYS-17 Entergy insists that the analysis in the ER is consistent with the GEIS and applicable NRC guidance documents.388 These documents, Entergy maintains, require that an applicant in a license renewal proceeding need only analyze impacts from population growth related to the plant or from the public services that local governments provide to encourage development using the tax payments from the plant.389 Entergy asserts that it provided a proper assessment in the ER and that NYS does not allege any specific deficiencies with that portion of the ER.390 Entergy also contends that there is no regulatory requirement or guidance document which calls for an analysis of property values for purposes of license renewal, nor does NYS point to one for support.391 Entergy also responds to NYSs claims regarding spent fuel storage by stating that under the Waste Confidence Rule392 an applicant does not need to discuss any aspect of spent fuel storage.393 The NRC Staff, in opposing the admission of NYS-17, points to Reg. Guide 4.2, which explains that only tax revenue changes were intended to be considered Category 2 issues.394 In addition, the NRC Staff points to the statement in the GEIS that population driven changes to 387 Id.

388 Entergy NYS Answer at 114 (citing GEIS § 4.7.4; Regulatory Guide 4.2, Supp. 1, Preparation of Supplemental Environmental Reports for Applications To Renew Nuclear Power Plant Operating Licenses, § 4.17.2 (Sept. 2000) (ADAMS Accession No. ML003710495)

[hereinafter Reg. Guide 4.2]).

389 Id. at 114-15.

390 Id.

391 Id. (emphasis in original).

392 10 C.F.R. § 51.23(a).

393 Entergy NYS Answer at 117-18.

394 NRC Staff Answer at 59 (citing Reg. Guide 4.2 § 4.17.2).

land-use will be small in license renewal proceedings to show that tax-driven changes are the only land-use issues that must be considered during a license renewal.395 NYS disagrees with Entergys interpretation of the GEIS and Reg. Guide 4.2, according to which an applicant only needs to address land-use impacts from plant-related population growth or use of the plants tax payments by the local government to encourage development.396 NYS also makes the point that regulatory guides are not substitutes for regulations and that Regulatory Guide 4.2 does not relieve Entergy of its requirements under NRC Regulations.397 NYS maintains that its expert, Dr. Stephen C. Sheppard, has presented a report,398 undisputed by Entergy, that describes the clear and significant impact that nuclear power plants have on residential property values, especially for those close to the plant.399 In terms of Entergys usage of the Waste Confidence Rule, NYS asserts that it only addresses spent fuel after a license term has expired and does not affect any requirements to analyze spent fuel storage during the license term.400 NYS also disagrees with the NRC Staffs position that only tax revenue changes were intended to be Category 2 issues. NYS makes the point that had a petitioner suggested that the plain words of the regulation were a mistake, as the NRC Staff has done here, the NRC Staff would insist that the Board reject the argument.

395 Id. (citing GEIS § 4.7.4.2).

396 NYS Reply at 103.

397 Id. at 103-04.

398 Declaration of Stephen C. Sheppard (Nov. 29, 2007) [hereinafter Sheppard Declaration]. The report attached to the Declaration is titled, Potential Impacts of Indian Point Relicensing on Property Values.

399 NYS Reply at 104-05.

400 Id. at 108.

ii. Board Decision - NYS-17 A LRA must be accompanied by an ER which includes an assessment of the impact of the proposed action on land-use . . . within the vicinity of the plant.401 Pursuant to 10 C.F.R.

Part 51, Subpart A, Appendix B, Table B-1 (Table B-1"), the impact on off-site land-use during the license renewal term cannot be assessed generically and, accordingly, it is a Category 2 environmental issue that is within the scope of this proceeding. Table B-1 indicates that the impact of license renewal on off-site land-use can be small, moderate or large.402 In its ER, the Applicant concluded that the land-use impact from license renewal would be small.403 NYS contends that Entergys analysis was flawed because it did not consider the positive impacts on land values in the Indian Point area that would accrue if the licenses for IP2 and IP3 were not renewed.404 In support of its claim, NYS submitted the Sheppard Declaration to demonstrate that the value of residential property within two miles of the Indian Point facility would increase by almost $600 million if the LRA was denied.405 Neither Entergy nor the NRC Staff has challenged Dr. Sheppards conclusion regarding the increase in land value. Rather each claims that Entergys analysis is adequate because the only Category 2 land-use issue that needs to be considered in license renewal proceedings is the potential for tax-driven land-use changes.406 We disagree.

401 10 C.F.R. § 51.53(c)(3)(ii)(i).

402 Summary of Findings on NEPA Issues for License Renewal of Nuclear Power Plants, 10 C.F.R. Part 51, Subpt. A, App. B, Table B-1 [hereinafter Table B-1].

403 ER § 4.18.4.

404 NYS Petition at 167-69.

405 Sheppard Declaration at 6.

406 Entergy NYS Answer at 115; NRC Staff Answer at 59.

In conducting its analysis of the impact of the license renewal on land-use, Entergy should have considered the impact on real estate values that would be caused by license renewal or non-renewal. NRC Regulations do not limit consideration to tax-driven land-use changes. Table B-1 merely notes that significant changes in land use may be associated with population and tax-revenue changes resulting from license renewal. It does not limit consideration to tax-driven land-use changes. Accordingly, we admit NYS-17 as a contention of omission.

R. NYS-18 THE LICENSE RENEWAL APPLICATION FOR IP2 AND IP3 FAILS TO COMPLY WITH THE REQUIREMENTS OF 10 C.F.R. § 50.71(e) BECAUSE INFORMATION FROM SAFETY ANALYSES AND EVALUATIONS PERFORMED AT THE NRCS REQUEST ARE NOT IDENTIFIED OR INCLUDED IN THE UFSAR.407

i. Background - NYS-18 NYS-18 alleges that the LRA fails to comply with 10 C.F.R. § 50.71(e) because the UFSAR does not identify or include information from safety analyses and evaluations performed after receiving generic letters from the NRC Staff.408 NYS asserts that LRA does not comply with 10 C.F.R. § 50.71(e), the UFSAR is out of date, and fails to contain the detail necessary to even correctly describe and identify all the systems for which aging management is required.409 Therefore, Entergy is unable to provide reasonable assurance that it has a [CLB] or that its plant is in compliance with its [CLB].410 NYS-18 is the safety-based analogue to NYS-2, and NYS provides the same supporting evidence for the contention as it did for NYS-2.411 407 NYS Petition at 174.

408 See id. at 175-76.

409 Id. at 176.

410 Id.

411 See id. at 177-97.

Entergy opposes the admission of NYS-18 on the same grounds that it opposed NYS-2.412 The NRC Staff also opposes the contentions admission, arguing that the adequacy of Entergys FSAR and its compliance with the CLB are outside the scope of a license renewal proceeding.413 The NRC Staff maintains that NYS has not identified any deficiencies in the LRA or the AMPs that would be due to the deficiencies it alleges exist in the FSAR.414 In its Reply, NYS responds collectively to Entergy and the NRC Staffs Answers to NYS-18 through NYS-22.415 NYS maintains that Indian Point does not have an ascertainable CLB, and thus consideration of its safety contentions is not prohibited by 10 C.F.R.

§ 54.30(b).416 These contentions, according to NYS, do not allege a failure to comply with the CLB, but rather a failure to comply with specific safety regulations.417 If 10 C.F.R. § 54.30(b) is not applicable, then NYS contends that the requirements of 10 C.F.R. § 54.33(a) are applicable.

Therefore, NYS asserts that it can challenge whether the applicant follows the conditions laid out in 10 C.F.R. § 50.54, as well as whether the renewed license will comply with the regulations set forth in 10 C.F.R. § 54.35.418 Thus, NYS contends that the license renewal analysis is not limited to plant aging.419 412 Entergy NYS Answer at 119.

413 NRC Staff Answer at 60.

414 Id. at 60-61.

415 NYS Reply at 110.

416 Id.

417 Id. at 111.

418 Id. During the term of a renewed license, licensees shall be subject to and shall continue to comply with all Commission regulations contained in 10 CFR parts 2, 19, 20, 21, 26, 30, 40, 50, 51, 52, 54, 55, 70, 72, 73, and 100. 10 C.F.R. § 54.35.

419 NYS Reply at 112.

ii. Board Decision - NYS-18 The Board decision for NYS-18 has been consolidated with the Board decision for NYS-19.420 S. NYS-19 IP2 AND IP3 DO NOT PROVIDE REASONABLE ASSURANCE OF ADEQUATE PROTECTION FOR THE PUBLIC HEALTH AND SAFETY AS REQUIRED BY 10 C.F.R. § 50.57(a)(3)

BECAUSE THEY ARE NOT DESIGNED TO MEET THE LEGALLY RELEVANT GENERAL DESIGN CRITERIA AND THUS ALSO VIOLATE 10 C.F.R. §§ 54.33(a), 54.35 AND 50.54(h).421

i. Background - NYS-19 NYS-19 alleges that IP2 and IP3 do not provide reasonable assurance of adequate protection for the public health and safety because the UFSARs are not in compliance with the relevant GDC as required under Section 54.35, but only comply, at best, with design criteria proposed by AIF.422 NYS-19 is the safety-based analogue to NYS-3, and NYS provides the same supporting evidence for the contention as it did for NYS-3.423 Entergy opposes the admission of this contention on the same grounds as it opposed NYS-3.424 The NRC Staff also opposes the admission of NYS-19, arguing that the Commission has stated that facilities like Indian Point, that have construction permits issued before the Final GDCs effective date, do not need to comply with the GDC.425 The NRC Staff maintains that the Draft GDC were not binding requirements on Indian Point.426 Furthermore, the NRC Staff 420 See infra Part VI.S.ii.

421 NYS Petition at 198.

422 Id. at 198-99.

423 See id. at 198-202.

424 Entergy NYS Answer at 119.

425 NRC Staff Answer at 61-62 (citing SRM SECY-92-223).

426 Id. at 62.

asserts that requirements regarding the design of a facility are part of the CLB which is not subject to challenge in this proceeding.427 In addition to its collective response regarding NYS-18 through NYS-22, the Petitioner specifically addresses two of the NRC Staffs objections to NYS-19. NYS asserts that the notion that the Draft GDC were not binding requirements is demonstrably false as the Staff routinely issues violation notices to older plants based on violations of the Draft GDC.428 Additionally, NYS does not agree with the NRC Staffs assertion that licensees were permitted to comply with the AIF criteria and not the Draft GDC, pointing to the NRC Staffs minimal support for this assertion.429 ii. Board Decision - NYS-18/19 The heart of NYSs argument hinges on the status of Indian Points CLB. At Oral Argument, NYS asserted that it was presenting NYS-18 and NYS-19 (as well as NYS-20 through NYS-22) with the understanding that these contentions could be admissible only if the CLB were deemed not ascertainable, thereby lifting the restrictions imposed on petitioners from bringing these types of contentions under 10 C.F.R. § 54.30.430 Given that the Board has concluded that the CLB is ascertainable,431 we find that all of these five contentions are outside the scope of the proceeding.

Specifically, NYS-18 alleges that the Indian Point LRA is deficient because it does not demonstrate compliance with 10 C.F.R. § 50.71(e), in that information from safety evaluations 427 Id. at 63.

428 NYS Reply at 114.

429 Id. NYS points out that the only support NRC Staff offers is a reference letter from AIF. Id. (citing NRC Staff Answer at 62 n.52).

430 Tr. at 367-68.

431 See discussion supra Part VI.A.ii.

and analyses that have been performed at the NRCs request have not been included in the UFSAR. However, as noted by the Applicant and the NRC Staff, the adequacy of the UFSAR and compliance with the CLB are outside the scope of this license renewal proceeding.432 As noted in the Boards decision on NYS-2, the proper vehicle to challenge the adequacy of the UFSAR would be a Section 2.206 petition, not a challenge to the license renewal.433 NYS attempts to overcome this obstacle by claiming that because of the deficiencies in the UFSAR, it is impossible to identify the systems for which aging management is required.434 NYS offers the Lochbaum Declaration in support of this contention. In his Declaration, Mr.

Lochbaum discusses several NRC bulletins and generic letters, along with Indian Points responses to the NRC.435 Based on this review, he concludes that Indian Points UFSARs are inadequate, and that as a result, it is impossible to ascertain the adequacy of the AMPs for Indian Point.436 What Mr. Lochbaum does not do, however, is identify any portion of an AMP for Indian Point that is deficient. Entergys responses to the NRC bulletins and generic letters are available for review and, to the degree that they have been reviewed by Mr. Lochbaum, he has not identified any aging management issue that has not been addressed. As was the case with NYS-2, this contention is a challenge to the CLB and as such is outside the scope of this proceeding. Accordingly, NYS-18 must be rejected.

NYS-19 is a reprise of NYS-3 and like NYS-2, NYS-3, and NYS-18, is an attack on the CLB. Accordingly, it is rejected as being outside the scope of the proceeding. Furthermore, 432 Entergy NYS Answer at 41, 119; NRC Staff Answer at 60.

433 See discussion supra Part VI.B.ii.

434 NYS Petition at 176.

435 Lochbaum Declaration at 7-12.

436 Id. at 13.

while NYS alleges that there is inadequate assurance that the public health and safety will be protected, it does not demonstrate why utilization of the AIFs 1967 GDC would compromise the public health and safety. NYS notes that there are differences between the AIFs version of the GDC and the GDC later adopted by the NRC, and alleges that in a number of instances the differences are substantial.437 However, NYS does not raise a material issue regarding how those differences would compromise safety. Thus, even if NYS-19 were within the scope of this proceeding, it would still be inadmissible.

T. NYS-20 IP3 DOES NOT PROVIDE REASONABLE ASSURANCE OF ADEQUATE PROTECTION FOR THE PUBLIC HEALTH AND SAFETY AS REQUIRED BY 10 C.F.R. § 50.57(a)(3) AND IS NOT IN COMPLIANCE WITH 10 C.F.R. PART 50, APPENDIX R BECAUSE IT FAILS TO MAINTAIN A FIRE BARRIER WITH A ONE HOUR RATING AND THUS ALSO IS IN VIOLATION OF 10 C.F.R. §§ 54.33(a), 54.35 AND 50.54(h).438

i. Background - NYS-20 NYS alleges in this contention that IP3 fails to maintain a fire barrier with a one-hour rating in violation of Appendix A, Criterion 3, and Appendix R, Section G.2, of 10 C.F.R.

Part 50.439 NYS-20 is the safety-based analogue to NYS-13 and the Petitioner provides much of the same supporting evidence for this contention as it did for NYS-13.440 Also, NYS questions the approach and calculations that the NRC Staff used for down-rating the duration for the fire barrier in granting Entergy its exemption from a one-hour barrier rating to a twenty-four/thirty-minute barrier.441 437 NYS Petition at 202.

438 Id. at 203.

439 Id.

440 See id. at 203-06.

441 Id. at 205.

Entergy opposes the admission of NYS-20 because it claims it is outside the scope of the proceeding and is not material to the required NRC findings.442 Entergy argues that fire-protection issues are not related to aging management, and that the Petitioner fails to identify any deficiency in the LRA.443 Entergy asserts that NYSs supporting evidence is insufficient to satisfy 10 C.F.R. § 2.309(f)(1)(v), and therefore does not establish a genuine dispute.444 Entergy describes the contention as a direct and impermissible challenge to the adequacy of the CLB for IP3 as it relates to fire protection,445 and, pointing out similarities between this contention and NYS-13, incorporates its response to the previous contention.446 The NRC Staff also opposes the admission of NYS-20, alleging that 10 C.F.R. § 50.12 permits the NRC to grant exemptions; therefore, NYSs argument that the granting of the exemption violates the regulations is an impermissible challenge to the regulations.447 The NRC Staff maintains that NYS does not address specific portions of, or alleged omissions in, the LRA and fails to show that any portion of the fire protection exemption has not been adequately considered in the LRA, and it therefore fails to raise an appropriate issue for consideration in this proceeding.448 In its collective response to NYS-18 through NYS-22, NYS asserts that these safety contentions are within the scope of the proceeding because, as is well-documented in NYS-2 and NYS-3, they are not immune from challenge in the proceeding pursuant to the provisions of 442 Entergy NYS Answer at 120.

443 Id.

444 Id.

445 Id. at 121.

446 Id. at 120.

447 NRC Staff Answer at 64.

448 Id. at 65.

10 C.F.R. § 54.30(b) because Indian Point does not have an ascertainable CLB.449 NYS contends that, because, 10 C.F.R. § 54.30(b) is the only Commission regulation that limits the scope of safety contentions, its allegations in NYS-20 are within the scope of the LRA proceedings.450 NYS further states that if the Board finds that 10 C.F.R. § 54.30(b) is not applicable, then the requirements of 10 C.F.R. § 54.33(a) are applicable. In this regard, NYS argues that it is able to challenge the proposed license renewal based on the Applicants failure to meet the conditions of 10 C.F.R. § 50.54, which require, inter alia, an updated UFSAR and a commitment to comply with the legally relevant GDC, Appendix R fire protection standards.451 NYS argues that neither Entergy nor the NRC Staff has rebutted NYSs argument that IPEC has no ascertainable CLB, but that each party merely took the position that NYS-18 to NYS-22 have nothing to do with plant aging. To the contrary, NYS claims it has shown that the scope of license renewal analysis is not limited to just plant aging.452 NYS also specifically addresses the NRC Staffs argument regarding 10 C.F.R. § 50.12.

NYS contends that the only such waivers that can be challenged are those, like this one, that are without sufficient technical support to withstand scrutiny and that, if allowed to stand, will illegally compromise the public health and safety.453 ii. Board Decision - NYS-20 The Board finds NYS-20 is inadmissible. The Board finds that any challenge, explicit or implicit, that NYS proffers relating to the NRC Staffs decision to grant Entergy the exemption from a one-hour barrier to a twenty-four/thirty-minute barrier is a direct challenge to IPECs CLB 449 NYS Reply at 110.

450 Id.

451 Id. at 111.

452 Id. at 111-12.

453 Id. at 114.

and unrelated to the effects of plant aging and the LRA. Accordingly, NYS-20 is beyond the scope of the proceeding, and the Petitioner has not demonstrated that the issue is material to the findings the NRC must make in this proceeding.

U. NYS-21 INDIAN POINT 1 DOES NOT PROVIDE REASONABLE ASSURANCE OF ADEQUATE PROTECTION FOR THE PUBLIC HEALTH AND SAFETY AS REQUIRED BY 10 C.F.R.

§ 50.57(a)(3) AND THE UFSAR INSUFFICIENTLY ANALYZES THE PLANTS CAPABILITY TO WITHSTAND A DESIGN BASIS AND SAFE SHUTDOWN EARTHQUAKE BECAUSE IT FAILS TO INCLUDE MORE RECENT INFORMATION REGARDING THE TYPE, FREQUENCY, AND SEVERITY OF POTENTIAL EARTHQUAKES IN VIOLATION OF 10 C.F.R. §§ 50.54(h),

54.33(a), 54.35 AND 10 C.F.R. PART 100, APPENDIX A.454

i. Background - NYS-21 NYS-21 alleges that the UFSAR for IP1 does not adequately analyze the plants capability to withstand a design basis and safe shutdown earthquake because it fails to include more recent information regarding the type, frequency, and severity of potential earthquakes.455 NYS asserts that to reduce the risk from earthquakes to IP1, it is necessary to fully evaluate the new data and the IP1 design to determine whether improvements are needed to assure that critical components of the facility can withstand the effects of an earthquake.456 NYS-21 is the safety-based analogue to NYS-14, and NYS provides supporting evidence for the contention similar to that provided for NYS-14.457 Entergy opposes the admission of NYS-21 on the same grounds as it objected to NYS-14.458 Entergy asserts that it is an impermissible challenge to the seismic design of IP1, which 454 NYS Petition at 207.

455 See id. at 207-08.

456 Id. at 208-09.

457 See id. at 207-09.

458 Entergy NYS Answer at 122.

is not an aging management issue and is outside the scope of a license renewal proceeding.459 The NRC Staff also opposes the admission of NYS-21 because, among other reasons, NYS has not shown that the IP1 spent fuel pool is part of the current licensing action, or that it has not been adequately considered in the LRA, to the extent that it may impact IP2 and IP3.460 The NRC Staff maintains that NYS has not shown that the new seismic data should be considered in this proceeding. The Staff asserts that the issues raised in this contention are reviewed in the ongoing review process and are outside the limited scope of license renewal proceedings.461 The NRC Staff contends that NYS has failed to provide adequate evidence that IP2 and IP3 share or use components from IP1.

ii. Board Decision - NYS-21 The Board decision for NYS-21 has been consolidated with the Board decision for NYS-22.462 V. NYS-22 IP2 AND IP3 DO NOT PROVIDE REASONABLE ASSURANCE OF ADEQUATE PROTECTION FOR THE PUBLIC HEALTH AND SAFETY AS REQUIRED BY 10 C.F.R. § 50.57(a)(3) AND THE UFSARS FOR IP2 AND IP3 INSUFFICIENTLY ANALYZE EACH UNITS CAPABILITY TO WITHSTAND A DESIGN BASIS AND SAFE SHUTDOWN EARTHQUAKE BECAUSE THEY FAIL TO INCLUDE MORE RECENT INFORMATION REGARDING THE TYPE, FREQUENCY AND SEVERITY OF POTENTIAL EARTHQUAKES IN VIOLATION OF 10 C.F.R. §§ 54.33(a),

54.35 AND 10 C.F.R. PART 100, APPENDIX A.463

i. Background - NYS-22 NYS-22 alleges that the UFSARs for IP2 and IP3 insufficiently analyze the capability of the plants to withstand a design basis and safe shutdown earthquake because they do not 459 Id. at 123.

460 NRC Staff Answer at 67.

461 Id.

462 See infra Part VI.V.ii.

463 NYS Petition at 209.

include the more recent seismic data regarding the type, frequency, and severity of potential earthquakes.464 NYS-22 is the safety-based analogue to NYS-15, and NYS provides supporting evidence for the contention that is similar to what it provided for NYS-15.465 Entergy objects to the admission of NYS-22 for the same reasons it opposed NYS-15.466 Entergy maintains that the contention impermissibly challenges the adequacy of the seismic designs of IP2 and IP3, which is an issue covered by the CLB.467 NYS also does not identify a specific and material deficiency in the LRA, according to Entergy.468 The NRC Staff also opposes admission of the contention, maintaining that the contention is a challenge to the to CLB, and not subject to review during license renewal.469 In addition to its collective response regarding NYS-18 through NYS-22, NYS specifically addresses the NRC Staffs argument asserting that NYS-22 is a challenge to the CLB. NYS contends that the NRC Staff did not address the evidence NYS presented that the UFSAR is legally deficient and the CLB cannot be ascertained.470 Thus, NYS argues, any earthquake analysis done based on the UFSAR and CLB is flawed from the outset.471 NYS also points out that both NYS-21 and NYS-22 identify very specific information that was not included in the earthquake analyses done for these plants . . . .472 464 See id. at 209-10.

465 See id. at 209-17.

466 Entergy NYS Answer at 124.

467 Id. at 124-25.

468 Id. at 125.

469 See NRC Staff Answer at 69-71.

470 NYS Reply at 115.

471 Id.

472 Id.

ii. Board Decision - NYS-21/22 As noted in the Board decision on NYS-18/19,473 NYSs arguments in NYS-18 through NYS-22 hinge on the status of Indian Points CLB. NYS asserted that it was presenting NYS-18 to NYS-22 with the understanding that these five contentions could be admissible only if the CLB were deemed not ascertainable, thereby lifting the restrictions on petitioners from bringing these types of contentions imposed by 10 C.F.R. § 54.30.474 Because the Board has decided that the CLB is in fact ascertainable,475 we find that NYS-21 and NYS-22 are outside the scope of the proceeding. Hence they are inadmissible.476 W. NYS-23 THE LICENSE RENEWAL APPLICATION FOR IP2 AND IP3 FAILS TO COMPLY WITH THE REQUIREMENTS OF 10 C.F.R. § 54.21(a) BECAUSE THE APPLICANT HAS NOT PROPOSED COMPREHENSIVE BASELINE INSPECTIONS TO SUPPORT ITS RELICENSING APPLICATION AND PROPOSED 20-YEAR LIFE EXTENSIONS.477

i. Background - NYS-23 NYS-23 contends that 10 C.F.R. § 54.21 requires a pre-application audit and inspection of the facilities by Entergy and the NRC Staff in order to identify the SSCs that are subject to AMR and to determine their functionality.478 NYS further asserts that the NRC Staff should require Entergy, during the relicensing review, to perform a comprehensive baseline inspection of both reactors.479 According to NYS, this inspection would establish the state of the reactors 473 See discussion supra Part VI.S.ii.

474 Tr. at 367-68.

475 See supra Part VI.A.ii.

476 10 C.F.R. § 2.309(f)(1)(iii), (iv), and (vi).

477 NYS Petition at 217.

478 Id.

479 Id. at 218.

and their SSCs and would disclose any degradation.480 NYS suggests that the inspection program, proposed by Entergy in the LRA, is vague and ill-defined.481 Entergy, in opposing admission of NYS-23, states that it completed an IPA for IP2 and IP3 that complies with NRC Regulations.482 Entergy also highlights the sections of the LRA that address these concerns and states that NYS does not dispute any of the results of the IPA.483 Entergy disagrees with NYSs suggestion that it must undertake another inspection program before relicensing, claiming that such an additional program is not required under the regulations.484 Entergy maintains that Appendix B of the LRA contains an adequate discussion of the inspection programs related to license renewal and that nothing more is required.485 The NRC Staff opposes admission of the contention because, in its view, NYSs opinion of what is appropriate is not what is required by regulation.486 According to the NRC Staff, there is no regulation requiring an applicant to perform a pre-application audit or inspection beyond the IPA, which is called for in Part 54.487 In its Reply, NYS makes the point that the NRC Staff and Entergy oppose the contention because it is not required under the regulations, but NYS is asking for a comprehensive baseline inspection as a basic engineering principle.488 NYS contends that Entergy 480 Id. at 219.

481 Id.

482 Entergy NYS Answer at 126.

483 Id.

484 Id.

485 Id. at 127.

486 NRC Staff Answer at 72.

487 Id. at 73.

488 NYS Reply at 115.

misconstrues the contention in that it incorrectly states that NYS asserted that an IPA had not been done.489 NYS represents that its concern is with the inspections that will be done in the future.490 NYS argues that those inspections are only as good as the baseline against which they are measured and the results are tracked and trended for rate of degradation.491 Furthermore, NYS asserts that the design life for a plant is not arbitrary and has significant safety implication for extended plant operations.492 Finally, in terms of materiality, NYS maintains that at this juncture it must establish only that it is entitled to cognizable relief and show that a more comprehensive inquiry is warranted - it does not need to prove its contention.493 ii. Board Decision - NYS-23 The Board rejects this contention because it is outside the scope of this license renewal proceeding. Part 54 does not require the type of comprehensive baseline inspection desired by NYS, no matter how sensible such a requirement might seem. LRA §§ 2.1 to 2.5 describe the scoping and screening results of the IPAs required by Section 54.21, and LRA Appendix B provides a discussion of license renewal inspection programs. NYS has not pointed to specific facts to support the conclusion that the IPAs in the LRA - the only plant inspection program required by the regulations - are inadequate. Entergy has done what the regulations require. If NYS believes the current NRC Regulations are inadequate, the venue for raising such a concern is a Section 2.802 Petition to institute a rulemaking action.

489 Id.

490 Id.

491 Id. at 115-16.

492 Id. at 117.

493 Id. at 117-18 (citing Private Fuel Storage (Independent Spent Fuel Storage Installation), LBP-98-7, 47 NRC 142, 179 (1998)).

X. NYS-24 THE LICENSE RENEWAL APPLICATION FOR IP2 AND IP3 FAILS TO COMPLY WITH THE REQUIREMENTS OF 10 C.F.R. § 54.21(a)(1)(i) BECAUSE THE APPLICANT HAS NOT CERTIFIED THE PRESENT INTEGRITY OF THE CONTAINMENT STRUCTURES AND HAS NOT COMMITTED TO AN ADEQUATE AGING MANAGEMENT PROGRAM TO ENSURE THE CONTINUED INTEGRITY OF THE CONTAINMENT STRUCTURES DURING THE PROPOSED LIFE EXTENSIONS.494 494 NYS Petition at 221.

i. Background - NYS-24 NYS-24 alleges that the LRA fails to comply with 10 C.F.R. § 54.21(a)(1)(i) because Entergy has not conducted enhanced inspections to assess the integrity of the containment structures.495 NYS asserts that the LRA discloses significant concerns regarding the continuing integrity of the containment structures496 based on the fact that the water/cement (w/c) ratios for the containment structures at IP2 and IP3 are outside the NRCs currently acceptable range.497 Given that the material properties of concrete are directly related to the w/c ratio, NYS asserts that Entergys AMP is inadequate, as stated in its expert witness Declaration,498 due to the lack of enhanced inspections needed to monitor integrity of the containment structures.

Entergy opposes admission of NYS-24 on the grounds that it is vague, presents an issue that is outside the scope of a license renewal proceeding, and does not demonstrate a genuine dispute on a material issue of law or fact.499 Entergy asserts that NYSs arguments regarding the integrity of the containment structures are outside the scope of this proceeding to the extent that they address ongoing inspections and the current integrity of these structures.500 Entergy posits that NYSs plea for the NRC to exercise its regulatory discretion to implement enhanced 495 Id.

496 Id.

497 Id. at 222.

498 See Declaration of Dr. Richard T. Lahey, Jr. at 12-13 (Nov. 2007) [hereinafter Lahey Declaration].

499 Entergy NYS Answer at 130.

500 Id. at 131.

inspections demonstrates that this contention is outside the scope of the proceeding.

Entergy agrees that certain issues relating to the integrity of the containment structures are within the scope of license renewal proceedings, but represents that these issues are adequately discussed in the LRA, and that all components subject to AMR are listed in the LRA as well.501 While NYS references the GALL Report for the acceptable range for w/c ratios of 0.35 to 0.45, Entergy reverses its arguments on previous contentions by stating that the GALL Report is merely guidance and is not a NRC Regulation that is binding on the Applicant.502 Instead, Entergy points out that the containment structures for IP2 and IP3 meet the broader American Concrete Institute (ACI) specification range which allow w/c ratios up to 0.576.503 The NRC Staff opposes admission of NYS-24 to the extent that NYS is requesting that the NRC exercise regulatory authority to require inspections of the concrete.504 Such a request, in the Staffs view, reflects a concern with a current operating or compliance issue which is not subject to review in a license renewal proceeding.505 Further, the NRC Staff argues that NYS-24 is vague and unsupported. The NRC Staff, like Entergy, asserts that the LRA shows that the concrete is in compliance with the ACI specifications.506 While the NRC Staff admits that the w/c ratios are outside the range established in the GALL Report, it does not believe that NYS has provided support to require enhanced inspection.507 501 Id. at 132.

502 Id. at 133-34.

503 Id. at 133.

504 NRC Staff Answer at 74.

505 Id.

506 Id.

507 Id.

-100-In its Reply, NYS asserts that, while the NRC Staffs argues that NYS-24 raises a current operating issue, the NRC does not actually address the issue in its review of current operating issues.508 NYS argues that this contention questions the adequacy of Entergys AMP for the concrete containment structure, i.e., the Applicants program for future operations during the license renewal period.509 NYS makes the point that enhanced inspections are required where, as in the case of Indian Point, the w/c ratios are outside the range listed by NRC Staff in the GALL Report.510 ii. Board Decision - NYS-24 In NYS-24, the Petitioner has provided facts and expert opinion that question the integrity of the concrete in the containment structure by providing statements, not refuted by the Applicant or the NRC Staff, that the w/c ratio, while meeting ACI recommendations, exceeds the current recommended range provided by the GALL Report. The contention is neither vague nor unsupported, as Entergy and the NRC Staff assert. While NYS does not explain why Entergys acceptance of w/c ratios up to 0.576 (as allowed by ACI) are not appropriate, it is undisputed that the engineering properties of the resulting concrete directly depend on this ratio. Further, we find that it is not NYSs but Entergys burden to show that the concrete in the containment structures with w/c ratios as high as 0.576 will maintain its integrity during the extended period of operations, and, if this cannot be done, to develop an AMP that ensures that any indication of degradation is detected and remediated. As suggested by NYS, enhanced inspections may be one component of such a plan.

In summary, the Board finds NYS has provided sufficient information to show that a genuine dispute exists that is within the scope of the proceeding relating to the continuing 508 NYS Reply at 118.

509 Id.

510 Id. at 120.

-101-integrity of the containment structures based on the high w/c ratio. NYS-24 is admitted in order to determine what effect, if any, the w/c ratio will have on the integrity of the containment structure, whether an additional AMP is necessary, and also, what those AMPs must include.

Y. NYS-25 ENTERGYS LICENSE RENEWAL APPLICATION DOES NOT INCLUDE AN ADEQUATE PLAN TO MONITOR AND MANAGE THE EFFECTS OF AGING DUE TO EMBRITTLEMENT OF THE REACTOR PRESSURE VESSELS (RPVs) AND THE ASSOCIATED INTERNALS.511

i. Background - NYS-25 NYS-25 contends that the LRA fails to include an adequate plan to monitor and manage the effects of aging due to embrittlement of the reactor pressure vessels (RPV) and the associated internals as required by 10 C.F.R. § 54.21(a), and does not include an evaluation of TLAA as required by 10 C.F.R. § 54.21(c).512 NYS claims that a thorough review of the effects of embrittlement is essential in preventing a core meltdown and radioactive release.513 NYS contends that the LRA does not document that Entergy performed any age-related accident analyses, or that it took embrittlement into account when it assessed the effect of transient loads.514 NYS asserts that the possibility of embrittlement of the RPV requires AMR under 10 C.F.R. § 54.4.515 According to NYS, Entergy has failed to present any experiments or analysis to justify that the embrittled RPV internal structures will not fail . . . .516 Entergy opposes the admission of NYS-25 because it maintains that, contrary to the assertions made by NYS, the LRA already adequately deals with embrittlement of RPVs and the 511 NYS Petition at 223.

512 Id.

513 Id. at 224.

514 Id.

515 Id. at 225.

516 Id. at 226.

-102-associated internals.517 Entergy claims that NYS fails to address or refer to the areas of the LRA that deal with these issues.518 Entergy believes that the expert support relied on by NYS makes bare assertions about what should be considered in the LRA without providing adequate support to justify admission of the contention.519 Entergy also asserts that it is in compliance with 10 C.F.R. § 50.61, thus any challenge to its control of embrittlement is unsupported.520 The NRC Staff opposes the admission of NYS-25 because the contention does not identify any error, omission, or deficiency in the LRA.521 The NRC Staff focuses on NYSs argument regarding TLAAs and asserts that NYS does not explain why or how Entergys TLAA fails to show that the SSCs will perform their intended functions.522 The NRC Staff further contends that the LRA does provide analysis on reactor vessel neutron embrittlement, and that NYS does not address any deficiency with that analysis.523 In its Reply, NYS asserts that Entergy has failed to establish the stability of the components of IP2 and IP3 in the LRA.524 The experiments that were done, according to NYS, indicate that damage caused by irradiation embrittlement is a significant concern; one that must be considered before any decision on renewing the licenses . . . is made.525 NYS also contends that Entergy is incorrect in stating that NYS has not controverted a position taken by 517 Entergy NYS Answer at 135.

518 Id. at 136.

519 Id.

520 See id. at 139-41.

521 NRC Staff Answer at 76.

522 Id.

523 Id.

524 NYS Reply at 122.

525 Id.

-103-Entergy in its LRA. NYS points to the sections in its experts Declaration that identify the sections of the LRA addressing embrittlement and his conclusion that embrittlement and/or fatigued incore bolts, structures, and their associated welds, when subjected to significant transient loads, may fail and result in an uncoolable core geometry subsequent to postulated accidents.526 NYS also believes that the contention is admissible as it has demonstrated that Entergy has not addressed several issues, namely, that the LRA fails to show (1) that any age-related accident analyses where performed; (2) whether embrittlement was taken into account in assessing the effect of the transient loads; and (3) how embrittled RPVs would respond in the case of a loss of coolant accident (LOCA).527 ii. Board Decision - NYS-25 NYS submits that embrittlement of the RPVs and their associated internals is one of the most important age-related phenomena . . . [and that] [f]ailure to carefully consider the effects of embrittlement could result in a meltdown of the core . . . .528 This claim is supported the Declaration of Dr. Richard Lahey, a Professor of Engineering at Rensselaer Polytechnic Institute, who is of the opinion that components in the Indian Point reactors have serious embrittlement issues that are not adequately addressed in Entergys LRA. Specifically, Dr.

Lahey indicates that a degradation in ductility (embrittlement) will adversely affect the reactors ability to withstand pressurized thermal shock transients and that Entergys LRA only briefly, in Sections A.2.2 and A.3.2, mentions thermal shocks and does not demonstrate that the Applicant took embrittlement into account when addressing the effect of these transient loads.529 Dr. Lahey states that Entergy fails to document in its LRA any experiments or analysis to justify 526 Id. (citing Lahey Declaration at 6).

527 Id. at 123 (citing Lahey Declaration at 6-7).

528 NYS Petition at 224 (quoting Lahey Declaration at 3).

529 Lahey Declaration at 3-8.

-104-that the embrittled RPV internal structures will not fail and that a coolable core geometry will be maintain subsequent to a [Design Basis Accident] LOCA.530 According to Dr. Lahey [t]his is a serious and unacceptable omission by Entergy because embrittled structures are known not to tolerate shock loads well.531 Whether an AMP is necessary to manage the cumulative effects of embrittlement of the RPVs and associated internals is within the scope of this proceeding. The Lahey Declaration focuses on specific portions of Entergys LRA that are, in Dr. Laheys professional judgment, deficient. NYS has raised a genuine issue to be resolved at an evidentiary hearing. NYS-25 is admitted.

Z. NYS-26/26A ENTERGYS LICENSE RENEWAL APPLICATION DOES NOT INCLUDE AN ADEQUATE PLAN TO MONITOR AND MANAGE THE EFFECTS OF AGING DUE TO METAL FATIGUE ON KEY REACTOR COMPONENTS.532

i. Background - NYS-26/26A NYS-26 was included in NYSs Petition.533 Entergy submitted an Answer opposing the contention in its entirety, and the NRC Staff submitted an Answer that did not oppose admitting the majority of NYS-26.534 On March 4, 2008, the NRC Staff sent a letter to the Board in which it stated that Entergy had submitted LRA Amendment 2 to the Commission on January 22, 2008.535 Based on LRA Amendment 2, the NRC Staff indicated it now found NYS-26 to be 530 Id. at 7.

531 Id.

532 NYS Petition at 227.

533 Id. at 227-33.

534 Entergy NYS Answer at 141-49; NRC Staff Answer at 77-78.

535 Entergy Letter NL-08-021, Letter from Fred R. Dacimo, Entergy Vice President, License Renewal, to NRC Docket Control Desk (Jan. 22, 2008) (ADAMS Accession No.

(continued...)

-105-moot, and declared it now opposed the admission of NYS-26 in its entirety.536 Based on the changed circumstances - the change in position of the NRC Staff based on the submission LRA Amendment 2 - and in accordance with a Board Order,537 NYS filed a supplement - NYS-26A -

on April 4, 2008,538 that did not alter the language of the original contention, but supplied additional support for its admissibility in response to LRA Amendment 2. Entergy and the NRC Staff responded on April 21, 2008.539 NYS replied on May 1, 2008,540 and on May 22, 2008, NYS filed a supplemental citation in support of admitting NYS-26A.541 ii. Original Contention: NYS-26 NYS-26 alleges that the LRA does not include an adequate plan to monitor and manage the effects of aging due to metal fatigue on key reactor components that are subject to an

[AMR], pursuant to 10 C.F.R. § 54.21(a), and an evaluation of TLAA, pursuant to 10 C.F.R.

535

(...continued)

ML080290659) [hereinafter LRA Amendment 2].

536 Letter from David E. Roth and Kimberly A. Sexton, Counsel for the NRC Staff, to the Licensing Board (Mar. 4, 2008) [hereinafter NRC Staff LRA Amendment 2 Letter].

537 Licensing Board Order (Scheduling Briefing Regarding the Effect of License Amendment 2 on Pending Contentions) (Mar. 18, 2008) (unpublished) [hereinafter License Amendment 2 Briefing Order].

538 Petitioner State of New Yorks Request for Admission of Supplemental Contention No. 26-A (Metal Fatigue) (Apr. 7, 2008) [hereinafter NYS Supplemental 26A].

539 Answer of Entergy Nuclear Operations, Inc. Opposing the State of New Yorks Request for Admission of Supplemental Contention 26-A (Metal Fatigue) (Apr. 21, 2008)

[hereinafter Entergy Supplemental 26A Answer] ; NRC Staffs Response to New York States Request for Admission of Supplemental Contention 26-A (Metal Fatigue) (Apr. 21, 2008)

[hereinafter NRC Staff Supplemental 26A Response].

540 Petitioner State of New Yorks Reply to Entergys Answer and NRC Staffs Response to New Yorks Supplemental Contention No. 26-A (Metal Fatigue) (May 1, 2008) [hereinafter NYS Supplemental 26A Reply].

541 New York States Supplemental Citation in Support of Admission of Contention 26A (May 22, 2008) [hereinafter NYS Supplemental Citation].

-106-

§ 54.21(c).542 The focus of this contention is NYSs assertion that Entergy has not presented an AMP to address the potential for key reactor components to crack and/or fail due to metal fatigue. The clear potential for such cracking and failure is, according to NYS, indicated by the cumulative usage factors (CUF) presented in the LRA that exceed the critical value of 1.0 for several components, in particular, the pressurizer surge line piping, the reactor coolant system piping charging system nozzle for IP2, and the pressurizer surge line nozzle for IP3.543 By not assessing the excessive CUF values, NYS maintains that Entergy has not adequately shown that the TLAA for metal fatigue will be valid throughout the license extension period.544 Furthermore, while Entergy provides three potential options to resolve the excessive CUF values,545 NYS contends that merely providing an impermissibly vague plan to develop a plan does not properly manage the effects of aging.546 Entergy initially opposed admission of NYS-26 for lacking specificity, failing to supply factual support or expert opinion, and failing to establish a genuine dispute on a material issue of law or fact.547 In opposing NYS-26, Entergy dismissed it as nothing more than a string of assertions that fail to identify any valid safety concern or specific deficiency in the LRA.548 Specifically, Entergy argued that NYS had not provided factual support for its allegations, and maintained that the contention does not establish a genuine dispute on a material issue 542 NYS Petition at 227.

543 Id. at 227-28.

544 Id. at 232.

545 Id. at 230-31. The options are (a) refine the fatigue analysis; (b) manage the effects of aging due to fatigue under a program approved by the NRC; or (c) repair or replace affected locations before the CUF exceeds 1.0.

546 Id. at 232.

547 Entergy NYS Answer at 142.

548 Id.

-107-because NYS failed to show that the approach outlined in the LRA to deal with metal fatigue -

LRA § 4.3.3 - is unacceptable.549 Entergy also stated that Section 4.3.3 of the LRA demonstrates that its proposed program is adequate, consistent with NRC guidance and regulations, and is on schedule to be completed at least two years before the license renewal period begins.550 The NRC Staff did not initially oppose admission of NYS-26 to the limited extent that it challenges how the LRA demonstrates that it satisfies the elements of 10 C.F.R.

§ 54.21(c)(1)(iii) for the CUF.551 However, the NRC Staff did object to NYSs suggestion that Entergy will use arbitrary assumptions in any refined CUF analyses as unsupported speculation, and to NYSs request for immediate action by Entergy to replace existing components with CUFs greater than 1.0 which the NRC Staff declared was a current operating issue that is outside the scope of the proceeding.552 In its Reply, NYS noted that the NRC Staff did not challenge NYS-26 to the extent that it addresses Entergys approach to satisfying 10 C.F.R. § 54.21(c)(1)(iii), and further noted that Entergys Amendment to the LRA does not invalidate the contention but rather confirms its validity.553 iii. LRA Amendment 2 LRA Amendment 2 - submitted to the Commission on January 22, 2008 - included, inter alia, specific commitments to manage fatigue using the existing Fatigue Monitoring Program under 10 C.F.R. § 54.21(c)(1)(iii) rather than a program for which details would be submitted in 549 Id. at 143.

550 Id. at 144-48.

551 NRC Staff Answer at 77-78.

552 Id. at 78.

553 NYS Reply at 125-27.

-108-the future.554 LRA Amendment 2 also provided additional information relating to the CUF calculations and quality assurance. Specifically, in LRA Amendment 2, Entergy abandoned one of the options for aging management (the proposal to inspect key reactor components that have a CUF greater than 1.0), defined an approach to perform a refined fatigue analysis to account for the effects of reactor water environment, and committed to repairing or replacing affected components before they exceed a CUF of 1.0 in accordance with NRC Regulations and guidance (i.e., the GALL Report).555 In its March 4 letter, the NRC Staff stated without further elaboration that LRA Amendment 2 cured the deficiencies cited in NYS-26 and that the NRC Staff now opposed the admission of the contention.556 The March 4 letter from the NRC Staff was received by the Board just prior to Oral Argument. Given the short period of time between the NRC Staffs change in position and Oral Argument, the Board authorized NYS - if it concluded that LRA Amendment 2 did not cure all deficiencies noted in the original NYS to file an amended contention that would take into consideration the change in circumstances caused by LRA Amendment 2 and the NRC Staffs change of position. This amended contention was to be filed by April 7, 2008, Entergy and the NRC Staff were to answer NYSs amended contention by April 21, 2008;557 and NYS was to submit its reply by May 1, 2008.558 554 NRC Staff LRA Amendment 2 Letter at 1 (citing LRA Amendment 2, Attach. 1).

555 Entergy Supplemental 26A Answer at 8.

556 NRC Staff LRA Amendment 2 Letter at 2.

557 License Amendment 2 Briefing Order at 2.

558 Licensing Board Order (Granting Riverkeeper, Inc.s Motion and Amending Briefing Schedule) at 3 (Apr. 9, 2008) (unpublished).

-109-iv. Supplemental Contention: NYS-26A In its amendment designated Supplemental Contention 26-A (NYS-26A),559 NYS did not withdraw its original NYS-26; instead, NYS took the position that LRA Amendment 2 did not cure the basic defect identified in the original contention, and that Entergy failed to submit an adequate AMP for metal fatigue in accordance with 10 C.F.R. § 54.21(c)(1)(iii).560 Further, NYS states that Entergys application, including LRA Amendment 2, does not provide details on the analytical methods and assumptions it proposed to use to calculate the TLAA for metal fatigue required for the LRA, and failed to meet regulations by delaying these calculations until after approval of its LRA.561 Finally, according to NYS, Entergy continues to rely on a vague AMP which merely commits to either repairing or replacing key components when the CUFs become greater than 1.0, without providing any other details, e.g., the criteria governing the adoption of remedial action for affected components.562 Entergy opposes NYS-26A as lacking adequate factual or legal support, and for failure to establish a genuine dispute.563 In addition to addressing NYSs assertion that certain reactor components are already fatigue limited,564 Entergy asserts that it meets the requirements of 559 NYS addressed the three requirements of 10 C.F.R. § 2.309(2) for filing a new or amended contention, and met the Boards directive to submit any additional pleading based on LRA Amendment 2 by April 7, 2008. NYS Supplemental 26A at 6-8. Entergy did not oppose NYSs proposed amendment as nontimely. Entergy Supplemental 26A Answer at 4. In its answer, the NRC Staff was silent on the matter as well.

560 NYS Supplemental 26A at 2, 4.

561 Id. at 5.

562 Id. at 6.

563 Entergy Supplemental 26A Answer at 4.

564 While Entergy thoroughly addresses this allegation, NYS simply notes in its Reply that it is reasonable to assume that, given the high CUF values approaching .9 at the time of extended operations, that some CUF values would likely approach 1.0 before extended operations. NYS Supplemental 26A Reply at 2 n.1.

-110-10 C.F.R. § 54.21 by using a methodology for its CUF calculations that has been approved by the American Society of Mechanical Engineers (ASME) and the NRC Staff, by applying factors derived for carbon/low-alloy steels and stainless steels from NUREG/CR-6583 and NUREG/CR-5704 respectively, and by using plant-specific operational history data as governed by Entergys Part 50, Appendix B Quality Assurance program.565 Entergy goes on to challenge NYSs inferences that it will adjust the calculation inputs to obtain a preordained result by pointing out that performing corrective action for components with an existing CUF above 1.0 is an operational issue addressed by its CLB, and states that there is no regulatory requirement to implement any action now for those components whose CUFs are projected to exceed 1.0 during the period of extended operation.566 The NRC Staff also opposes admitting NYS-26A, positing that delaying the CUF calculations and the development of an AMP is consistent with regulations and staff guidance.567 The NRC Staff notes that Entergy commits to refining the CUF calculations at least two years prior to entering the period of extended operation.568 The NRC Staff also uses the GALL Report to support its position that re-calculating CUFs is an acceptable option and claims 565 Entergy Supplemental 26A Answer at 8.

566 Id. at 9-13.

567 NRC Staff Supplemental 26A Response at 5.

568 Id. at 7. It is interesting to note, however, that the NRC Staff does not address the fact that Entergy had committed to refining the CUF calculation only for the locations identified in LRA Tables 4.3-13 and 4.3-14 but had deleted its initial commitment to perform these calculations for the other locations listed in NUREG/CR-6260, Application of NUREG/CR-5999 Interim Fatigue Curves to Selected Nuclear Power Plant Components, (Feb. 1995) (ADAMS Accession No. ML031480219), without providing justification for this change in position, LRA Amendment 2, Attach. 1 at 5, Attach. 2 at 15, and is silent on the need for expanded CUF analyses whenever key components indicate a CUF greater than 1.0.

-111-that there is no regulatory authority to demand that an applicant immediately repair or replace components that will have a CUF above 1.0.569 Supported by its expert witness, NYS replies that Entergys proposed plan for re-calculating the CUFs does not define the assumptions it will use in this re-analysis, does not describe how it will implement the methodology for each of the two reactors at Indian Point, and does not provide any detail on what it will do if the re-calculated CUFs are greater than 1.0 for any of the key reactor components.570 NYS describes Entergys involvement with its License Renewal proceedings for Vermont Yankee, where a similar CUF issue was admitted as a contention.571 NYS claims that the experience in Vermont Yankee supports its allegation that the mere disclosure of the type of recalculations that will be performed still results in multiple issues when the assumptions and actual analyses are not provided in the LRA.572

v. NYS Supplemental Citation in Support of Admission of NYS-26A On May 14, 2008 the NRC Staff posted on the ADAMS system a summary of a telephone conference between Entergy and the NRC Staff that was held on April 3, 2008, regarding, inter alia, the amount of information Entergy would be required to produce as part of its LRA.573 In response, NYS submitted a supplemental pleading in which it claims that the NRC Staff summary reveals that Entergy, with the acquiescence of the NRC Staff, does not intend to 569 NRC Staff Supplemental 26A Response at 10. The NRC Staff goes on to assert that any allegation by NYS that some components currently have a CUF greater than 1.0 is an operational issue which should be addressed under 10 C.F.R. § 2.206.

570 NYS Supplemental 26A Reply at 2-3.

571 Vermont Yankee, LBP-06-20, 64 NRC at 183-87.

572 NRC Staff Supplemental 26A Response at 4-6.

573 NRC Summary of April 3, 2008, Telephone Conference between Entergy and NRC Staff (May 8, 2008) (ADAMS Accession No. ML081190059).

-112-allow the details of how it will address metal fatigue issues to be made part of this license renewal proceeding.574 vi. Board Decision - NYS-26/26A The Board concludes that NYS has raised a genuine issue with regard to whether the LRA contains an adequate AMP for metal fatigue of key reactor components and, for reasons explained herein, admits that portion of NYS-26/26A relating to the calculation of the CUFs, and the adequacy of the resulting AMP for those components with CUFs greater than 1.0.575 Calculation of the CUFs is a TLAA for metal fatigue which must be included in a LRA in accordance with 10 C.F.R. § 54.21(c)(1). In evaluating metal fatigue, a components CUF is the fundamental parameter used to determine whether it will likely develop cracks during the license renewal period and, as a result, be subject to an AMP in accordance with 10 C.F.R.

§ 54.21(c)(1)(iii). The Board finds that, as the threshold parameter of the TLAA for metal fatigue, an applicant must complete the analysis of the CUFs for the license renewal period and include the results in the LRA. Any re-analysis or refinements of the CUF calculations would also be governed by the same TLAA requirements.576 We reason that the re-calculation of the CUFs is not an option for the AMP. CUFs are threshold values that determine whether such a program is needed for license renewal.

Likewise, there is no technical or logistical reason why these calculations cannot be completed 574 NYS Supplemental Citation at 1.

575 The Board rejects NYSs suggestion that Entergy will use arbitrary assumptions in any refined CUF analyses as unsupported speculation.

576 Before later changing its opinion, the NRC Staff did not accept Entergys commitment in Vermont Yankee to complete the evaluation of TLAA prior to entering the period of extended operations, but required Entergy to calculate the CUF for its LRA in order to meet the requirements of 10 C.F.R. § 54.21(c)(1). Summary of Telephone Conference Call Held on August 17, 2007, Between the U.S. Nuclear Regulatory Commission and Entergy Nuclear Operations, Inc., Pertaining to the Vermont Yankee Nuclear Power Station License Renewal Application (Oct. 25, 2007) (ADAMS Accession No. ML072630124).

-113-as part of the LRA. The regulations support this logic by dictating that the analysis of these factors be completed before the need for an AMP is determined and included in the LRA.

Initially Entergy proposed three options as its AMP to address 10 C.F.R. §§ 51.21(a)(3) and 54.21(c)(1)(iii), including the option of refining the CUF calculations to determine valid CUFs less than 1 when accounting for the effects of reactor water environment.577 However, Entergys proposal to perform the modified calculations in the future, albeit in accordance with specified guidance, is unacceptable because these calculations are not a component of an AMP, but are the fundamental fatigue analyses for time-limited aging that 10 C.F.R. § 54.21(c) requires to be included in the LRA.

Even if the refined CUF analyses were considered part of the AMP - the Board believes they are not - Entergys proposal would fall short of the obligations required by Section 54.21(c)(1)(iii). Specifically, Entergy has not provided the details of the approach and assumptions used in the analyses, how the calculations will be verified, or a summary of the resulting CUFs for each location, including the representative locations identified by NUREG/CR-6260.578 In LRA Amendment 2, Entergy commits to performing the work using a time-tested analytical method and, in accordance with ASME codes, applying parameters consistent with the GALL Report, deriving analysis factors from unspecified formulae in various NUREGs, and applying its Part 50, Appendix B Quality Assurance program to govern this activity.579 However, the potential range of possible calculations that might result from the application of this approach does not meet the demonstration requirements of Section 54.21(c)(1)(iii) for an AMP.

577 LRA § 4.3.3.

578 See NUREG/CR-6260.

579 Entergy Supplemental 26A Answer at 10-12.

-114-In regards to the corrective action portion of its AMP, Entergys commitment to repair or replace the affected locations before exceeding a CUF of 1.0580 does not meet the demonstration requirement of the regulations.

Entergy and the NRC Staff erroneously conclude that Entergys future commitments meet the intent of Section 54.21(c)(1)(iii) in that the effects of aging on the intended function(s) will be adequately managed for the period of extended operations.581 While the implementation of the AMP can anticipate future actions as implied by this statement, the actual plan must be sufficient to demonstrate the specific aging management actions that will take place in the future, and not just that the AMP will be developed in the future. Entergys lack of CUF calculations and brief description of potential corrective options (i.e., repair or replace the affected locations582) falls short of the regulatory standard.

The regulatory guidance allowing for postponement of program details relates to those portions of the plan that depend upon the future actions, performance data or the like, that is impossible to perform or obtain prior to submittal of the LRA and can only be performed or obtained up to and during the period of extended operations. In such situations, the applicant must defer the specificity of its program to a future date when this information becomes available. This is not what faces us here.

Once the CUF calculations are completed at the LRA stage, the Applicant can decide which option it will use to manage aging for the critical components and to define the plan at this time. Entergy may wish to postpone the effort to a future date, but it has not provided any justification to support such a course. Thus, although Entergy does not have to implement the 580 LRA Amendment 2, Attach. 2 at 15.

581 Entergy Supplemental 26A Answer at 11; NRC Staff Supplemental 26A Response at 7 (citing 10 C.F.R. § 54.21(c)(1)(iii)) (emphasis added by Applicant and the NRC Staff).

582 LRA Amendment 2, Attach. 2 at 15.

-115-selected option at this time, it must perform the threshold CUF calculations needed to define its chosen course, and choose its course.

The NRC Staff is correct in pointing out that new commitments developed for license renewal are an acceptable licensing basis.583 Consistent with this approach, as the example from the SRP-LR provided by the NRC Staff in its answer to NYS-26A suggests,584 it is appropriate and reasonable for the Applicant to delay initiating corrective actions until the time when the CUF for a key component approaches 1.0. For the LRA, however, the regulations require a TLAA, like the CUF calculations, and an AMP demonstrating that aging affects will be managed during the period of extended operation. Neither of these requirements can be met by delaying the refined CUF calculations to some future date, or by merely committing to develop a plan at some undefined time after the renewal license is granted.

In its answer to NYS-26A, the NRC Staff uses a quote from the GALL Report defining an acceptable AMP for metal fatigue corrective actions as one that includes repair of the component, replacement of the component, and a more rigorous analysis to support its position that refined CUF calculations are a viable option which are treated no differently than repair or replacement.585 Besides the fact that the NUREG has no force of law, the NRC Staff arguably has misread the language in this section. The conjunction and before more rigorous analysis refers to additional actions that must take place for any component that is repaired or replaced, and not to the refinement/re-analysis of the initial CUF calculations that are the subject of interest in this contention.

583 NRC Staff Supplemental 26A Response at 5 (citing 56 Fed. Reg. at 64,945-46).

584 Id. at 6.

585 Id. at 9-10 (quoting the GALL Report at X.M X.M-2).

-116-In this contention, NYS further argues that components with CUF greater than 1.0 through the extended period of operations should be replaced immediately.586 While it may be prudent to do so, there is nothing in the regulations that requires Entergy to implement that action at this point, or at any other specific time in the future. To the contrary, none of the arguments presented to date indicate that the effects of aging on the SSCs cannot be adequately managed by delaying the repair or replacement of the key components until a time when it is needed, as indicated by the CUF values approaching 1.0. Such an approach is consistent with the regulatory language in Section 54.21(c)(1).

In summary, this Board admits NYS-26/26A to the limited extent that it asserts that the LRA is incomplete without the calculations of the CUFs as threshold values necessary to assess the need for an AMP, that Entergys AMP is inadequate for lack of the final values, and that the LRA must specify actions to be carried out by the Applicant during extended operations to manage the aging of key reactor components susceptible to metal fatigue. In doing so, the Board recognizes the requirement for inclusion of the actual CUF calculations in the LRA to meet the TLAA regulations, 10 C.F.R. § 54.21(a)(3), and to provide the specificity needed to achieve the demonstration required of an AMP, 10 C.F.R. § 54.21(c)(1)(iii). Moreover, consistent with a recent ruling in Vermont Yankee,587 this Board recognizes that an AMP that merely summarizes options for future plans does not meet the specific requirement for demonstrating that the effects of aging will be adequately managed for the period of extended operations as required by Part 54.

586 NYS Petition at 232.

587 Vermont Yankee, LBP-06-20, 64 NRC at 186-87.

-117-AA. NYS-27 THE NRC SHOULD REVIEW IN THIS RELICENSING PROCEEDING THE SAFETY OF THE ON-SITE STORAGE OF SPENT FUEL AND THE CONSEQUENCES OF A TERRORIST ATTACK ON ANY OF THE THREE SPENT FUEL POOLS AT INDIAN POINT.588

i. Background - NYS-27 NYS-27 asserts that the NRC should review the safety of the on-site storage of spent fuel and the consequences of a terrorist attack on any of the three spent fuel pools at Indian Point.589 NYS contends that NEPA requires the NRC to consider every significant aspect of the environmental impact of a proposed action. NYS points to the Ninth Circuit decision in San Luis Obispo Mothers for Peace v. NRC,590 which held that NEPA requires the NRC to study how the actions of applicants and the NRC affect the risk of terrorism.591 NYS maintains that the spent fuel pools at Indian Point are not enclosed by leak-tight containment structures, and that this deficiency would increase the radiation dispersed in case of an attack.592 NYS contends that it has exposed the fallacy of the NRCs position (that an attack on the spent fuel pools is unlikely and would not produce significant environmental impacts); that the issue is material to the environmental and safety findings that the NRC must make; and that the NRC should not issue the license without critically examining the real possibility of a terrorist attack on a reactor so close to New York City.593 588 NYS Petition at 234.

589 Id.

590 449 F.3d 1016 (9th Cir. 2006), cert. denied, Pacific Gas & Elec. Co. v. San Luis Obispo Mothers for Peace, 127 S. Ct. 1124 (2007).

591 NYS Petition at 242.

592 Id. at 243.

593 Id.

-118-Entergy opposes admission of this contention because the Commission and its Licensing Boards have consistently held that the NRC Staff does not need to consider, as part of its safety or environmental review, terrorist attacks on nuclear power plants seeking renewed licenses, including the spent fuel pool.594 Entergy argues that the Commission has expressly rejected the notion that the Ninth Circuits decision in Mothers for Peace requires a review of the environmental costs of an act of terrorism during a license renewal proceeding.595 Entergy also claims that NYS-27 is an impermissible challenge to NRC Regulations, specifically 10 C.F.R. Part 51, and asserts that the proper forum for NYS to address its concerns would be the rulemaking process, not an adjudicatory proceeding.596 The NRC Staff opposes the contentions admission because the Commission has clearly ruled that NEPA does not require consideration of the environmental impact of terrorist acts in a license renewal proceeding.597 The NRC Staff also incorporates its response to Clearwaters Contention EC-6.598 In its Reply, NYS points out that neither the NRC Staff nor Entergy refutes NYSs assertions that there will be significant and devastating impacts if the radioactive material stored in the spent fuel pools is released.599 NYS also suggests that neither party addresses the question of whether terrorism is a credible threat to the facility.600 NYS argues that the analysis in, and conclusions of, the GEIS are flawed and outdated in its severe accident analysis and 594 Entergy NYS Answer at 150 (citations omitted).

595 Id. at 151.

596 Id. at 152-53.

597 NRC Staff Answer at 79.

598 See discussion infra p. 211; NRC Staff Answer at 101-02.

599 NYS Reply at 130.

600 Id.

-119-that Entergy has not contradicted any of the evidence and analysis provided by NYS regarding the GEIS.601 NYS further contends that the adverse environmental impacts resulting from an attack on the spent fuel pools are different than those that the GEIS analyzed because the GEIS looked at a release from inside a containment structure, and the spent fuel pools are outside the containment structures.602 Furthermore, NYS points out that the Environmental Protection Agency (EPA) has asked the NRC to include an analysis of the impacts of terrorism in a license renewal Environment Impact Statement, thereby contradicting the NRC Staffs and Entergys argument that the consequences of terrorist acts do not need to be considered.603 ii. Board Decision - NYS-27 Subsequent to Mothers for Peace, which said that under NEPA the NRC must consider the environmental consequences of a terrorist attack, the Commission asserted in Oyster Creek that it is not obligated to adhere, in all of its proceedings, to the first court of appeals decision to address a controversial question.604 The Commission determined that [t]errorism contentions are, by their very nature, directly related to security and are therefore, under our [license renewal] rules, unrelated to the detrimental effects of aging. Consequently, they are beyond the scope of, not material to, and inadmissible in, a license renewal proceeding.605 Furthermore, the Commission has found that NEPA imposes no legal duty on the NRC to 601 Id. at 131-32.

602 Id. at 134.

603 Id. at 135 (citing Letter from Grace Musumeci, Chief, Environmental Review Section, U.S. Environmental Protection Agency, Region 2, to Chief, Rules and Directives Branch, Division of Administrative Services, NRC (Oct. 10, 2007) (ADAMS Accession No. ML072960360).

604 Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-07-8, 65 NRC 124, 128-29 (2007) (citing United States v. Stauffer Chemical Co., 464 U.S. 165, 173 (1984), United States v. Mendoza, 464 U.S. 154, 160 (1984)).

605 Id. at 129 (quoting Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-26, 56 NRC 358, 364 (2002)).

-120-consider intentional malevolent acts . . . on a case by case basis in conjunction with commercial power reactor license renewal applications.606 Based on Oyster Creek, we find that NYS-27 is beyond the scope of this proceeding, and inadmissible. While the Board understands the unique nature of the Indian Point facility given its proximity to New York City, we are nonetheless bound by the Commissions ruling in Oyster Creek that NEPA does not require the NRC to consider the environmental consequences of hypothetical terrorist attacks on NRC-licensed facilities.607 Accordingly, we must reject NYS-27.

BB. NYS-28 RADIONUCLIDES LEAKING FROM THE IP1 AND IP2 SPENT FUEL POOLS ARE CONTAMINATING GROUNDWATER AND THE HUDSON RIVER, AND NEPA REQUIRES THAT THE NRC EXAMINE THE ENVIRONMENTAL IMPACTS OF THESE LEAKS IN THE CONTEXT OF THIS LICENSE RENEWAL PROCEEDING.608

i. Background - NYS-28 NYS-28 contends that because radionuclides are leaking from the spent fuel pools at IP1 and IP2, thereby contaminating groundwater and the Hudson River, the NRC Staff must examine the environmental impacts of these leaks as part of its NEPA review.609 NYS argues that leaks of radionuclides, which Entergy acknowledges have occurred from the spent fuel pools at Indian Point, are neither a Category 1 nor a Category 2 issue and, accordingly, the 606 McGuire/Catawba, CLI-02-26, 56 NRC at 365 (citing Private Fuel Storage, LLC, (Independent Spent Fuel Storage Installation), CLI-02-25, 56 NRC 340 (2002); accord Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3), CLI-02-27, 56 NRC 367 (2002); Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), CLI-02-24, 56 NRC 335 (2002)).

607 Oyster Creek, CLI-07-8, 65 NRC at 129.

608 NYS Petition at 245.

609 Id.

-121-NRC must assess those impacts in the context of a license renewal proceeding.610 NYS contends that residual contamination will continue even when all the spent fuel is removed, that an inability to inspect a large portion of the liner will prevent Entergy from precluding other leaks, and that the full extent of the impact is unknown.611 According to NYS, Entergys argument that the NRC examined tritium contamination of groundwater in the GEIS does not invalidate this contention, because (1) the 1996 GEIS review was not an inquiry into leaks from spent fuel pools; (2) radionuclides other than tritium were detected at Indian Point; (3) leakage of radionuclides is occurring not only into the groundwater but also into the Hudson River; and (4) the levels of contamination are higher than acceptable levels at various locations on-site.612 Additionally, NYS suggests that a plant operator who cannot prevent multiple leaks of radionuclides should not be considered to be qualified for a license extension, because the NRC must ensure that each applicant will operate the plant in a manner that is safe for the public and the environment before it grants an extension to the license.613 In sum, it is NYSs position that the extent of the leaks far exceeds what the NRC reviewed on a generic basis in the GEIS and that the uniqueness of the site and hydrogeologic pathways to the Hudson River mean that these impacts are significant and must be reviewed under NEPA in this proceeding.

Entergy opposes admission of NYS-28, claiming that it raises issues that are outside the scope of license renewal proceedings, lacks factual support or expert opinion, and fails to establish a genuine dispute on a material issue of law or fact.614 Entergy asserts that while 610 Id. at 247-48.

611 Id. at 250-251 (citing Declaration of Timothy B. Rice at 7-8 (Nov. 26, 2007)).

612 Id. at 252.

613 Id. at 250.

614 Entergy NYS Answer at 154.

-122-there have been leaks into the groundwater that may have gone into the Hudson River, the site does not use the groundwater on-site and the groundwater is not associated with any drinking water pathway; therefore, Entergy argues EPA limits on drinking water are not applicable.615 Entergy points out that NYS has not disputed the radiological findings in the ER that found that NRC dose limits have not been exceeded.616 Entergy also states that its two-year hydrogeologic investigation into the groundwater impacts, as discussed in Section 5.1 of the ER, was completed after the LRA was submitted and the report summarizing its findings and conclusions was issued on January 11, 2008, with copies sent to the NRC, New York State Department of Environmental Conservation (NYSDEC), and the New York Public Service Commission.617 Entergy reports that the results from this investigation are consistent with the previous site data and do not indicate any potential adverse environmental or health risk.618 Finally, Entergy contends that, based on the information in the ER and in the Investigation Report, all of NYSs issues in NYS-28 are either moot, invalid, or outside the scope of this proceeding.619 The Investigation Report claims that the leaks in the spent fuel pool of IP2 have been identified, repaired, and stopped; that any potential for leaks from the IP1 spent fuel pool will be permanently terminated in 2008 when Entergy removes the spent fuel and drains the pool; and that there are no known leaks from IP3's spent fuel pool.620 615 Id. at 156-57.

616 Id. at 157.

617 Hydrogeological Site Investigation Report, Indian Point Energy Center, Buchanan, New York (Jan. 11, 2008) [hereinafter Investigation Report].

618 Entergy NYS Answer at 159.

619 Id. at 161-64.

620 Id. at 162.

-123-The NRC Staff opposes admission of NYS-28 on the grounds that it is an impermissible challenge to NRC Regulations, is beyond the scope of the proceeding, and fails to identify a genuine dispute.621 The challenge to the regulations relates specifically to attacks by NYS on the GEIS, and on the decision made by the Commission that, in license renewal proceedings, the radiological impacts on the environment can be dealt with generically and that the impact is small.622 The NRC Staff also contends that NYSs expert does not raise any issues of fact in support of the contention.623 In its Reply, NYS argues that Entergys ER fails to address the potential environmental impacts from the leaking spent fuel pools and fails to analyze mitigation measures to address these leaks.624 NYS contends that contrary to the assertion made by the NRC Staff that NYS-28 challenges the GEIS, the contention actually does not assert that the spent fuel leaks are a Category 1 issue or a Category 2 issue but rather are an environmental impact that has not been addressed in the GEIS.625 NYS objects to the NRC Staffs assertion that the contention does not raise issues of fact by referencing portions of its petition that presented, for instance, concentrations of tritium at levels 30 times the drinking water standard and strontium-90 at 14 times the standard,626 information that is inconsistent with the claims by Entergy in its ER of only low concentration detections. NYS urges that Entergys assertion that the EPAs drinking water limits are inapplicable is erroneous by pointing out that these limits are often used as a benchmark for comparison purposes, and that Entergy itself uses them both in the ER and in 621 NRC Staff Answer at 79.

622 Id. at 79.

623 Id. at 80.

624 NYS Reply at 136.

625 Id. at 138.

626 Id. at 140.

-124-the Investigation Report.627 NYS asserts that as a matter of law, Entergy does not have the right to decide the current and future uses of groundwater for the residents of New York State.628 Also, NYS disputes Entergys claim that the impact of the new information is not significant, maintaining that Entergys conclusion is based only on short-term risks and does not properly evaluate the long-term effects of the leaks.629 ii. Board Decision - NYS-28 In NYS-28 it is implied that the NRC Staff has not addressed the environmental impacts of the radionuclides leaking from the IP1 and IP2 spent fuel pools as part of its NEPA requirements. The Board finds that such a claim must be rejected because it is impossible for the Board to judge what NRC may or may not do in its Supplemental Environmental Impact Statement (SEIS) for the Indian Point LRA proceedings - a document that is months away from publication. With similar situations in other contentions, the Board was able to determine that the contention related primarily to the quantity and quality of information that Entergy provided in its ER.630 However, for this contention, NYS does not refer to Entergys ER until the last page of its Petition, and then only briefly to address Entergys position that leaks from the spent fuel pools are not within the scope of the proceeding because the NRC examined tritium contamination of groundwater in Section 4.8.2 of the GEIS.631 NYS aggressively challenges Entergys ER in its Reply. But the issues raised by NYS in its Reply (i.e., attacks on the lack of information and analyses in Entergys ER) are significantly different than the issues raised in its initial contention (i.e., that NEPA requires NRC to examine 627 Id. at 141.

628 Id. (citing Environmental Conservation Law §§ 17-0101; 17-0301; 17-0303; 17-0809; 6 N.Y.C.R.R. Parts 701, 703).

629 Id. at 143-45.

630 See e.g. infra Part VI.DD.

631 NYS Petition at 252.

-125-the environmental impacts of the detected radionuclide leaks), and the allegations in the Reply are ones that could and should have been raised in its initial Petition. As new information, the Board did not consider the arguments presented for the first time in NYSs Reply.

Even if the Board were to consider NYSs new allegations raised in its Reply, we note that the Applicant has, in Section 5.0 of its ER, characterized these radiological leaks as new information, but goes on to posit that these leaks are not significant because Entergy defines the impacts as SMALL based on the total dose exposure.632 Contentions relating to the conclusions that the NRC Staff reaches in its NEPA analysis with regard to the environmental impacts from these radiological releases to groundwater must await future publication of its SEIS.

In denying the admissibility of this contention we note that it is very similar to Riverkeeper EC-3 and Clearwater EC-1, both of which we admit and will consolidate.633 We admit those contentions because they focus on alleged deficiencies in the ER, and refuse to admit NYS-28 because it focuses on the NRC Staff review that has yet to occur. We note, however, that NYS can adopt Riverkeeper EC-3 and Clearwater EC-1 in order to further participate in the litigation of the issues raised in this contention.

632 Entergy NYS Answer at 156-57; Tr. at 439-40.

633 See infra Part XIII.

-126-CC. NYS-29 THE ENVIRONMENTAL REPORT FAILS TO ADDRESS EMERGENCY PREPAREDNESS AND EVACUATION PLANNING FOR INDIAN POINT, AND THUS VIOLATES THE REQUIREMENTS OF THE NATIONAL ENVIRONMENTAL POLICY ACT.634

i. Background - NYS-29 NYS-29 contends that the ER violates NEPA and NRC Regulations by failing to address the environmental impacts of emergency preparedness and evacuation planning.635 NYS asserts that the NRCs conclusion that the analysis of evacuation plans is not a site-specific issue that must be addressed in the ER is a violation of NEPA and is contrary to NRCs own basis for the GEIS.636 NYS points out that evacuation planning is not categorized as a separate issue in the GEIS, but is part of postulated accidents, and specifically, design basis accidents, a Category 1 issue, and severe accidents, a Category 2 issue for which NYS alleges emergency and evacuation planning must be analyzed.637 Specifically, NYS contends that while the GEIS does discuss emergency planning, and uses it for calculating the risk of an accident, it does not directly address the mechanisms, efficacy, and effectiveness of actual evacuation plans.638 With the aid of expert opinion expressed in a report by James Lee Witt and the Declaration of Raymond C. Williams, NYS makes several points regarding the inadequacy of emergency evacuation plans specific to Indian Point.639 634 NYS Petition at 253.

635 See id. at 253-55 (citing 10 C.F.R. § 50.47 and 10 C.F.R. Part 51).

636 Id. at 256.

637 Id. at 257-59.

638 Id. at 258.

639 Id. at 259-61, 264-69. According to the information provided by NYS, traffic studies have shown the road system to be inadequate to handle an evacuation; population density has made the consequences of ineffective protective strategies more serious; first responders will flee the vicinity because they believe the evacuation plans cannot work; the planning process (continued...)

-127-Entergy opposes the admission of NYS-29 on the grounds that it raises issues not within the scope of the proceeding, poses an impermissible challenge to Commission regulations, runs counter to controlling Commission legal precedent, and fails to establish a genuine dispute on a material issue of fact or law.640 Entergy claims that the language of 10 C.F.R. § 50.47 directs that emergency planning is outside the scope of license renewal proceedings.641 Entergy also points to language in Turkey Point and Millstone642 to support its position that the Petitioner, by attempting to challenge emergency planning in this proceeding, is impermissibly challenging NRC Regulations. Entergy adds that 10 C.F.R. § 51.53(c)(3)(i) incorporates the findings of the GEIS into Part 51 and therefore the ER does not need to analyze Category 1 issues.643 Entergy also states that NYS does not identify any specific deficiencies in the ER and that emergency and evacuation plans are reviewed periodically and are thus part of the ongoing regulatory process.644 639

(...continued) has outdated and ineffective aspects; there is inadequate public outreach and education; communications systems and hazard assessment technologies are outdated; and local and state officials will not certify the evacuation plans.

640 Entergy NYS Answer at 165.

641 Id. at 165-66. [Entergy referenced 10 C.F.R. § 50.47(a)(1)(ii) which the Board believes should be § 50.47(a)(1)(i)]

642 Id. at 166 (citing Turkey Point, CLI-01-17, 54 NRC at 10 (Issues like emergency planning - which already are the focus of ongoing regulatory processes - do not come within NRC safety review at the license renewal state . . . .); Dominion Nuclear Connecticut, Inc.

(Millstone Nuclear Power Station, Units 2 and 3), CLI-05-24, 62 NRC 551, 560-61 (2005)

(Emergency planning is, by its very nature, neither germane to age-related degradation nor unique to the period covered by the . . . license renewal application. Consequently, it makes no sense to spend the parties and our own valuable resources litigating allegations of current deficiencies in a proceeding that is directed to future-oriented issues of aging.)).

643 Tr. at 458.

644 Entergy NYS Answer at 167.

-128-The NRC Staff opposes the admission of NYS-29 because, in its view, the Commission has explicitly determined that emergency preparedness is outside the scope of the license renewal process.645 The NRC Staff argues that neither NEPA nor the Commissions regulations in 10 C.F.R. Part 51 require consideration of emergency preparedness in an [ER]

submitted in support of a [LRA] - nor has [NYS] cited any legal authority to support this claim, as required.646 In its Reply, NYS maintains that neither the NRC Staff nor Entergy has refuted NYSs assertions regarding the deficiencies of the evacuation plan.647 NYS contends that because it has submitted a contention with enough evidence of the deficiencies in the ER on the evacuation planning issue it has met the requirements of 10 C.F.R. § 2.309.648 NYS also attempts to clarify that NYS-29 is an environmental contention, not a safety contention, and thus the main issue in this contention is whether the ER fully analyzes and identifies mitigation measures should there be an off-site radiological emergency release.649 NYS maintains that the law requires the ER to consider alternatives to mitigate severe accidents and that Entergy has failed to consider any of the problems identified with the current emergency planning or ways to fix those problems in order to mitigate the consequences of a severe accident at Indian Point.650 NYS contends that the Commission noted in Turkey Point that the environmental analyses in the GEIS will be reviewed every ten years, and points out that they are currently 645 NRC Staff Answer at 82 (citing 56 Fed. Reg. at 64,967).

646 Id. at 84.

647 NYS Reply at 147.

648 Id.

649 Id. at 148.

650 Id. at 150.

-129-over twelve years old.651 NYS noted during Oral Argument that the GEIS is now stale and that NYS is being asked to look at conclusions reached a decade-plus ago on issues of grave safety and mitigation with respect to the environmental impacts of [a] nuclear facility.652 ii. Board Decision - NYS-29 The Board rejects NYS-29 for being outside the scope of the proceeding. The Commission has stated that there is no need for a licensing review of emergency planning issues in the context of license renewal. . . . [C]urrent requirements . . . provide reasonable assurance that an acceptable level of emergency preparedness exists at any operating reactor at any time in its operating lifetime.653 The Commission emphasized that it has amended 10 C.F.R. § 50.47 to clarify that no new finding on emergency preparedness will be made as part of a license renewal decision.654 As a result, the NRC Regulation dealing with emergency plans, 10 C.F.R. § 50.47(a)(1)(i), provides that no finding relating to emergency planning is necessary for issuance of a renewed nuclear power reactor operating license. This language places consideration of emergency plans outside the scope of this proceeding and is supported by NRC case law.655 651 Id. at 153.

652 Tr. at 455.

653 56 Fed. Reg. at 64,966-67.

654 Id. at 64,967.

655 See Millstone, CLI-05-24, 62 NRC at 560-61; Turkey Point, CLI-01-17, 54 NRC at 9-10.

-130-Although a contention discussing emergency planning was admitted in Pilgrim, it related to the adequacy of a SAMA and did not deal directly with emergency planning.656 The case law deals with emergency preparedness and evacuation planning contentions in the context of safety and not NEPA issues, however, NYS has not demonstrated that the impacts from the insufficiencies alleged in Entergys emergency plan affect the outcome of any specific NEPA-related issue, e.g., a SAMA as in Pilgrim.

At Oral Argument, NYS acknowledged that Section 50.47 sets forth the requirements regarding emergency planning,657 but argued that by addressing the issue in the GEIS, the NRC agreed that [e]vacuation planning is at the heart, essentially a mitigation measure with respect to accidents at a nuclear power plant [and] that was a significant environmental impact.658 Thus, because the NRC dealt with emergency planning as an environmental issue, NYS urges that it can bring forth environmental contentions dealing with emergency planning issues in this license renewal proceeding.

The Board does not believe that the inclusion of emergency planning in the GEIS opens it up for a challenge in license renewal proceedings and would instead posit that this fact 656 In Pilgrim, the Petitioner supported its call for further analysis by raising relevant and significant questions about the input data that appears (from the Application) to have been used in the Pilgrim SAMA analysis regarding (1) the evacuation time estimates . . . and it . . .

supported arguments to the effect that including more realistic input data might change the SAMA analysis, with information indicating, to the level necessary for contention admissibility, that these particular data may be materially incorrect.

Pilgrim, LBP-06-23, 64 NRC at 338-39. In this instance, NYS has not provided the requisite support to cause us to conclude that NYS-29 is an environmental contention that can be admitted under the limited scope of license renewal proceedings.

657 Tr. at 451.

658 Tr. at 451-52.

-131-supports the determination that emergency planning is a Category 1 environmental issue that is dealt with on a generic, not site-specific, basis.659 DD. NYS-30 and NYS-31 NYS-30: NEPA REQUIRES THAT THE NRC REVIEW THE ENVIRONMENTAL IMPACTS OF THE OUTMODED ONCE-THROUGH COOLING WATER INTAKE SYSTEM USED AT INDIAN POINT, WHICH CAUSES SIGNIFICANT HEAT SHOCK/THERMAL DISCHARGE IMPACTS.660 NYS-31: NEPA REQUIRES THAT THE NRC REVIEW THE ENVIRONMENTAL IMPACTS OF THE OUTMODED ONCE-THROUGH COOLING WATER INTAKE SYSTEM USED AT INDIAN POINT, WHICH CAUSES MASSIVE IMPINGEMENT & ENTRAINMENT OF FISH &

SHELLFISH.661

i. Background - NYS-30 and NYS-31 NYS-30 and NYS-31 allege that, under NEPA, the NRC Staff must review the environmental impacts of the once-through cooling water intake system used at Indian Point that causes significant heat shock on aquatic biota in the Hudson River and massive impingement and entrapment of fish.662 According to NYS, NRC Regulations require applicants whose plants use a once-through cooling system to provide in its ER a current copy of a Clean Water Act (CWA) § 316(b) determination, showing that its intake structure incorporates the best technology available to minimize adverse environmental impacts,663 or alternatively, a CWA

§ 316(a) waiver or the equivalent state permit and supporting documents.664 According to NYS, 659 At Oral Argument, NYS acknowledged that emergency planning was deemed a generic issue for license renewals by the Commission. So, number one, yes, generically it was addressed as saying it is generic for all. We believe it is not generic for all, and we believe we have laid that out. Tr. at 454. Essentially, NYS is challenging the Commissions determination that emergency planning is Category 1 issue.

660 NYS Petition at 271.

661 Id. at 281.

662 Id. at 271, 281-85.

663 Id. at 274-75 (citing 10 C.F.R. § 51.53(c)(3)(ii)(B)).

664 Id. at 275 (citing 10 C.F.R. § 51.53(c)(3)(ii)(B)).

-132-Entergy has not, and cannot, demonstrate its Section 316 determinations are current because a closed-cycle cooling intake system represents the best technology available.665 Furthermore, NYS alleges that Entergy has not received a CWA § 316(a) waiver.666 NYS believes that the heat source impacts and damage done to fish in the Hudson River from the once-through cooling system warrant denial of the license renewal or, in the alternative, conditioning the license renewal on the construction and use of closed-cycle cooling water intake systems.667 NYS maintains that the ER does not provide an estimate of the actual number of fish impinged or entrained, and that this omission means the ER fails to acknowledge the significant and obvious environmental impacts on the ecosystem in the Hudson River.668 Entergy opposes the admission of NYS-30 and NYS-31 because, in its view, these contentions raise issues that are outside the scope of license renewal proceedings, lack the factual or expert opinion support, and fail to establish a genuine dispute on a material issue of law or fact.669 Entergy asserts that it provided in the ER a copy of its current State Pollutant Discharge Elimination System (SPDES) permit, which is the equivalent state permit required by 10 C.F.R. § 51.53(c)(3)(ii)(B).670 Entergy maintains that, even though it was not required to address heat shock, entrainment, or impingement in its ER (because it included its current state permit that is equivalent to a CWA § 316 determination), it provided the information, including 665 Id. NYS maintains that the NYSDEC has determined that the closed-cycle cooling system is the best technology available for minimizing adverse environmental impacts. Id.

666 Id.

667 Id. at 271-72, 281.

668 Id. at 287.

669 Entergy NYS Answer at 168, 193.

670 Id. at 176, 194.

-133-potential impacts of the open-cycle cooling system and a discussion of alternatives.671 Entergy also suggests that, by law, the NRC cannot override the determination made by the State of New York in its SPDES permit nor consider its validity.672 According to Entergy, NYSs premise that the SPDES permit is not current or effective is undercut by recent NRC decisions that have said that an administratively extended state-issued permit satisfies the 10 C.F.R.

§ 51.53(c)(3)(ii)(B) requirements.673 In regard to heat shock, Entergy maintains that NYS-30 should not be admitted because NYS does not point to any actual deficiencies with the thermal analysis presented in the ER.674 Instead, Entergy suggests that NYS is attacking the NRC Regulations and asking the NRC to apply the New York State Criteria Governing Thermal Discharges,675 which the Applicant asserts are outside the NRCs jurisdiction.676 Entergy also contends that NYS-30 and NYS-31 do not include adequate factual and expert opinion support.677 Specifically, Entergy alleges that NYSs expert for thermal discharges (NYS-30) actually supports Entergys position, and that the two experts for impingement and entrainment (NYS-31) are not qualified to give the expert opinions they provided and that their 671 Id. at 184, 196.

672 Id. at 179-80. Entergy currently has a draft SPDES permit from NYSDEC because the adjudicatory proceeding regarding the permit is pending. Id. at 182.

673 Id. at 181 (citing Entergy Nuclear Vermont Yankee, LLC, (Vermont Yankee Nuclear Power Station), CLI-07-16, 65 NRC 371, 383-84 (2007)).

674 Id. at 183.

675 6 N.Y.C.R.R. Part 704.

676 Entergy NYS Answer at 183; Entergy asserts that its thermal analysis in the ER actually uses the thermal requirements approved by the NYSDEC under 6 N.Y.C.R.R. Part 704.

Id. at 184.

677 See id. at 185-90, 195.

-134-conclusions are improperly speculative.678 Finally, Entergy argues that the contentions are not material because they cannot affect the outcome of the proceeding.679 The NRC Staff does not oppose the admission of these contentions to the limited extent that NYS-30 challenges the adequacy of the heat shock analysis, and that NYS-31 challenges the impingement and entrainment analysis, provided in the ER.680 However, at the Oral Argument, the NRC Staff alerted the Board and NYS that it had changed its position and would oppose the admission of these contentions in their entirety.681 The NRC Staff explained that, in its initial reading of the LRA and the ER, it was not clear that Entergy had met the requirements of CWA § 316.682 However, in its continuing review of the LRA, the ER, and the pleadings, the NRC Staff decided that Entergy has demonstrated that it does meet the CWA § 316 requirements.683 In its Reply, NYS points to the licensing history of IP2 and IP3 to support its position that these contentions are within the scope of the proceeding, that having a closed-cycle cooling system is a necessity, and that the NRC has the authority to require Entergy to use them.684 NYS asserts that given that the SPDES permit renewal process is ongoing, the 1987 SPDES permit that Entergy submitted in its LRA does not satisfy the Clean Water Act. NYS uses 678 Id. at 185, 201-03.

679 Id. at 191, 203-04.

680 Staff Answer at 85, 87.

681 Tr. at 467.

682 Tr. at 468.

683 Tr. at 468.

684 NYS Reply at 156, 165. The license for IP2 was amended in September 1973. That amendment also required that the economic and environmental impacts of alternatives to a closed-cycle cooling system be evaluated and that a interim plan to minimize the effects from the thermal discharges, and from impingement and entrainment impacts be developed. Id. at 156. The NRC similarly amended IP3's license in April 1976. Id.

-135-NYSDECs rejection of two draft EISs previously submitted by IPECs owner as its justification.685 NYS calls Entergys attacks on NYSs expert witnesses baseless and claims that they are an attempt to misdirect the substantive arguments in the case, contrary to the evidentiary and historical record.686 ii. NYSs Response to the NRC Staffs Change in Position With leave of the Board, NYS filed a response to the NRC Staffs change in position on April 7, 2008.687 As mentioned, the NRC Staff initially did not object to the Board admitting NYS-30 and NYS-31 to the limited extent that the analysis of heat shock, impingement, and entrainment provided by Entergy in its ER was not adequate to meet the requirements of Section 51.53(c)(3)(ii)(B). However, the NRC Staff announced its change in position at Oral Argument, and now recommends that the Board reject this contention as being outside the scope of the proceeding. In its response, NYS alleges that the NRC Staffs change in position has no merit because these contentions are within the scope of the proceeding.688 NYS goes on to repeat many of the same arguments that it used in its original pleading, rather than focusing on the reasons that the NRC Staff used in changing its position, i.e., that the ER does have a sufficient description of the considerations that went into NYSs equivalent Section 316 determinations. NYS argues that the NRC Staffs change in position is procedurally invalid because the informal, last-minute notice to the Board of this change does not comply with NRC 685 Id. at 158, 168.

686 Id. at 169.

687 Petitioner State of New Yorks Response to NRC Staffs Change in Position to New Yorks Contentions 30 and 31 (Apr. 7, 2008) [hereinafter NYS-30 and NYS-31 Response].

688 Id. at 2.

-136-rules of procedure, and contend that the NRC Staff should have filed a motion to amend its January 22, 2008 response.689 Entergy and the NRC Staff responded on April 21, 2008. Entergy claims that NYS did not address the validity of the NRC Staffs updated position that NYSs SPDES permit is an equivalent CWA § 316 determination because it could not reasonably dispute that NYSDECs SPDES permit is valid and, as a matter of New York State law, contains the equivalent CWA

§ 316 determination.690 Rather, according to Entergy, NYS simply restates its Reply, repeating prior arguments, and offering nothing new to support the admissibility of NYS-30 and NYS-31.691 As such, Entergy argues that NYS still fails to furnish adequate factual or legal support to establish a genuine dispute on a material issue.692 Entergy goes on to specifically discuss why the NRC Staffs position change was procedurally proper and correct, and discusses how NYSs criticisms of Entergys position regarding Section 51.53(c)(3)(ii)(B) are unsupported by New York State or NRC law.693 The NRC Staff presents many of the same arguments as Entergy.694 The NRC Staff discusses how the 1987 SPDES permit is both current and valid,695 describes how the CWA 689 Id. at 7-8.

690 Entergy Nuclear Operations, Inc.s Reply to Riverkeeper, Inc.s and State of New Yorks Responses to NRC Staffs Change in Position Regarding Aquatics Contentions at 2 (Apr.

21, 2008).

691 Id. at 6.

692 Id. at 2.

693 Id. at 8-10.

694 NRC Staffs Reply to State of New York and Riverkeeper, Inc.s Responses to the Staffs Change in Position on New York Contentions 30 and 31 and Riverkeeper Contention EC-1 at 3-6 (Apr. 21, 2008).

695 Id. at 4-6.

-137-prohibits the NRC from requiring closed-cycle cooling in this instance,696 and asserts that its change in position was not procedurally defective.697 iii. Board Decision - NYS-30 and NYS-31 NYS-30 and NYS-31 contend that the NRC is required under NEPA to review the environmental impacts of the once-through cooling water intake system used at Indian Point, and states that this system causes (1) significant heat shock/thermal discharge impacts; and (2) massive impingement and entrainment of fish and shellfish, respectively. The Board assumes that the focus of these contentions is the quantity and quality of information that Entergy provided in its ER, as is evidenced by the contention support presented by NYS in its Petition,698 and not the adequacy of the NRC review, which is not yet complete. Even with this assumption, for reasons explained herein, the Board rejects NYS-30 and NYS-31 because they are outside the scope of the proceeding because they are attacks on NRC Regulations, specifically 10 C.F.R. § 51.53(c)(3)(ii)(B).

Section 51.53(c)(3)(ii)(B) requires an applicant to provide in its ER a site-specific analysis of entrainment, impingement, and heat shock/thermal discharge impacts from its once-through cooling systems.699 The applicant may meet its obligations by doing one of following:

(1) provide a copy of current CWA § 316(b) determination; (2) provide a Section 316(a) variance or equivalent State permit and supporting documentation; or (3) assess the impact of proposed action on fish and shellfish resources resulting from heat shock, impingement, and entrainment.

696 Id. at 6-7.

697 Id. at 7-8.

698 NYS Petition at 278-80, 285, 287-89.

699 Table B-1.

-138-In this case, Entergy has done two of the three. Entergy explains that its ER contains a copy of its existing SPDES permit, including supporting documentation.700 NYS acknowledges that Entergys SPDES is a valid discharge permit issued by the State of New York,701 and it is undisputed that the governing SPDES permit was included in Entergys ER. In addition, Entergy argues that its ER also includes an extensive assessment of ecological studies that have been conducted over the past three decades as they relate to the impacts from heat shock, impingement, and entrainment.702 Nowhere in NYSs pleadings does it refute the presence of this information or contend that these assessments do not meet the third option in Section 51.53(c)(3)(ii)(B).

From a review of the history relating to the validity of Entergys SPDES permit, it is clear that (1) the EPA delegated NYSDEC authority to administer the CWA surface water permitting program; (2) in the process of doing so, EPA confirmed that New York law is equivalent to CWA requirements (including the Section 316 provisions); (3) with the equivalency designation by EPA, creating and enforcing water quality standards rests with NYS; (4) NYSDEC can only grant a SPDES discharge permit to a holder that meets CWA § 316 provisions; (5) in accordance with CWA § 511(c)(2), as implemented by the Memorandum of Understanding between the agencies,703 the NRC is prohibited from determining whether nuclear facilities are in compliance with CWA limitations, assessing discharge limitations, or imposing additional alternatives to further minimize impacts on aquatic ecology that are subject to the CWA; and (6) the NRC has promulgated regulations, specifically 10 C.F.R. § 51.53(c)(3)(ii)(B), to 700 Entergy NYS Answer at 180.

701 NYS Petition at 288-89; Tr. at 470.

702 Entergy NYS Answer at 184, 197.

703 Federal Water Pollution Control Act Amendments of 1972, Second Memorandum of Understanding and Policy Statement Regarding Implementation of Certain NRC and EPA Responsibilities, 40 Fed. Reg. 60,115 (Dec. 31, 1975).

-139-implement these specific CWA requirements that help assure that the Commission does not second-guess the conclusions in CWA-equivalent state permits, or impose its own effluent limitations - thermal or otherwise. Therefore, by holding a valid SPDES permit, Entergy has met its specific obligations by providing in its ER the equivalent state permits and supporting documentation required by the NRC Regulations.

The history of IPECs SPDES permit is complex.704 In 1992, Entergy filed a timely application to renew its 1987 permit with NYSDEC.705 This renewal application is still under review by NYSDEC. In its ongoing proceeding, NYSDEC must decide the merits of Entergys 1992 renewal application for its SPDES permit, including the need, if any, to alter its cooling system and/or update discharge limits. As with the existing 1987 SPDES permit, the final decision from New York States licensing process will be binding on the Commission, given that the NRC is barred from altering any discharge limitation imposed by the EPA-approved governing body.

The Board is aware that a draft SPDES permit was prepared by the NYSDEC Staff in 2003, and this draft permit is currently being reviewed in the ongoing NYSDEC proceeding.706 The existing permit does not expire until NYSDEC makes a final decision on Entergys 1992 renewal application, and, therefore, Entergy currently holds a valid CWA-equivalent permit issued by NYSDEC. As discussed above, the Board is prohibited by Section 511 of the CWA 704 In 1982, NYSDEC issued the SPDES permit for IPEC which incorporated the Hudson River Settlement Agreement (HRSA), and renewed this permit in 1987 with the HRSA as a condition. While the HRSA expired in 1991, its substantive conditions were continued by consent orders, the last of which was approved in 1998.

705 Consistent with the CWA § 402(b)(1)(B), NYS-issued SPDES permits must be renewed every 5 years.

706 The 2003 draft permit is now before NYSDEC-appointed Administrative Law Judges.

Once completed, that proceeding will result in a proposed decision being forwarded to the NYSDEC Commissioner for issuance of a final SPDES permit decision.

-140-from modifying the prescribed discharge limits that are delineated in IPECs existing SPDES permit.

The Commission recently reinforced the need for Licensing Boards to defer to the States ruling on once-through cooling as reflected in these equivalent permits.707 It would be futile for the Board to review any of the CWA determinations, given that it is not possible for the Commission to implement any changes that might be deemed appropriate. As a result, the Board rejects NYS-30 and NYS-31.708 NYS claims that Entergys ER fails to provide a current discussion and analysis of the aquatic impacts caused by once-through cooling.709 The Board finds that: (1) in the context of the regulations, current is synonymous with most recent; (2) Entergy has met its regulatory burden by providing its most recent SPDES permit issued by the controlling CWA authority, NYSDEC; and (3) a timely renewal application for this permit was submitted by Entergy and is 707 Vermont Yankee, CLI-07-16, 65 NRC at 387.

708 The Board takes note that the prohibition against the Commission modifying CWA limits does not relieve the Commission from addressing the impacts from IPECs once-through cooling system (i.e., relating to heat shock, impingement, and entrainment) in the NRCs NEPA analysis. Compliance with the CWA limits imposed by a designated permitting state is not a substitute for and does not negate the requirements for NRC to weigh all environmental effects of the proposed action. 10 C.F.R. § 51.71 n.3 (in this case, the proposed action is the renewal of Entergys operating license for an additional twenty-year period). While the NRC Staff must still weigh all the impacts in its SEIS for IPECs license renewal, the Commission must incorporate the analysis of aquatic impact, in toto, from NYSDECs assessment, as reflected in the SPDES permit that it grants to Entergy. As stated in Seabrook, the permitting agency for the CWA determines the cooling system required at a facility, and the NRC Staff factors the impacts that result from the use of that system into its NEPA analysis. Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-78-1, 7 NRC 1, 28 (1978). Accordingly, meeting the submittal requirements of Section 51.53(c)(3)(ii)(B) does not excuse Entergy from providing in its ER the descriptions and discussions required by Section 51.53(c)(2) relating to environmental impacts from the proposed action (i.e., renewing Entergys IP2 and IP3 operating license for an additional twenty-year period) and its alternatives. While Entergy must discuss the environmental impacts of the proposed action and its alternatives in its ER, in the process, it must incorporate directly the water quality limits of the existing SPDES permit into this discussion.

709 NYS-30 and NYS-31 Response at 3.

-141-presently under review by NYSDEC. At this time, it is not within the Boards purview to evaluate the completeness or adequacy of the consent orders as it affects the currency of the existing SPDES permit.

While the current SPDES permit is over twenty years old, its age is a direct result of the lengthy review process being conducted by NYSDEC. Once that proceeding is completed, Entergys SPDES permit will be updated by NYSDEC to include its assessment of the cooling system impacts. While the NYSDEC proceeding continues, the Board does not have the option of looking behind the existing SPDES permit to make an independent CWA determination. The Commission has recently reaffirmed that the Board must take permit determinations at face value and is prohibited from undertaking any independent analysis of the permits limits.710 This position is consistent with the legislative intent to implement the CWA in a way that avoided duplication and unnecessary delays.711 In summary, the Board finds that these contentions are attacks on 10 C.F.R.

§ 51.53(c)(ii)(B) because Entergy has provided its most current SPDES permit and supporting documentation. By New York State law, the SPDES permit must address all aspects of the CWA including provisions in Section 316. While the existing permit was issued over twenty years ago, the responsibility for its age rests with the lengthy NYSDEC adjudicatory process over which the Applicant has no control. Any deficiencies that might have occurred as a result of this extended review period will be cured once the NYSDEC acts on the renewed permit application. Until then, the NRC is barred by the CWA from requiring different limitations than those that exist in IPECs governing permit.

710 Vermont Yankee, CLI-07-16, 65 NRC at 387-88 (citing Carolina Power and Light Co.

(H.B. Robinson, Unit 2), ALAB-569, 10 NRC 557, 562 (1979)).

711 Id. at 389.

-142-EE. NYS-32 NEPA REQUIRES THAT THE NRC REVIEW THE ENVIRONMENTAL IMPACTS OF THE OUTMODED ONCE-THROUGH COOLING WATER INTAKE SYSTEM USED AT INDIAN POINT, WHICH HARMS ENDANGERED SPECIES AND CANDIDATE THREATENED SPECIES.712

i. Background - NYS-32 NYS-32 alleges that NEPA requires the NRC to review the potential environmental impacts to endangered species and candidate threatened species from the once-through cooling system.713 NYS asserts that Section 7 of the Endangered Species Act (ESA) requires the NRC to ensure that, if it grants a license, its action will not jeopardize the existence of a regulated species.714 As supported by its expert witness, Dr. Roy A. Jacobson, Jr., NYS alleges that the shortnose sturgeon, an endangered species, has become impinged on the intake screens at Indian Point, and the NRC is thus required to determine if granting the license extension will jeopardize its continued existence.715 Additionally, according to NYS, Entergy violates ESA § 9 because it does not possess an incidental takings permit for the shortnose sturgeon that do become impinged in the facilitys intake structure.716 NYS also alleges that the intake structures impinge the Atlantic sturgeon, which is a candidate for listing as a threatened species.717 NYS points out that under NRC Regulations, the impact of the extended license period on threatened or endangered species is a Category 2 environmental issue that must be 712 NYS Petition at 290.

713 Id.

714 Id.

715 Id. at 291 (citing Declaration of Roy A. Jacobson, Jr. at 14-15 (Nov. 29, 2007)

[hereinafter Jacobson Declaration]).

716 Id. at 290.

717 Id.

-143-considered in the LRA.718 According to NYS, under the ESA, the burden is placed on both Entergy and the NRC to ensure that granting the license extension would not jeopardize an endangered species.719 NYS contends that the NRC must either demonstrate that no jeopardy to the endangered species exists, deny the license extension, or significantly modify operations at Indian Point.720 NYS then provides factual statements that support its argument regarding the adverse impacts to the shortnose sturgeon from impingement on the intake structure at Indian Point.721 Entergy opposes admission of NYS-32, claiming that it raises issues that are outside the scope of license renewal proceedings, lacks the factual or expert opinion support, and fails to demonstrate a genuine dispute on a material issue of law or fact.722 In support of its opposition, Entergy asserts that the ER includes the required analysis of impacts to threatened and endangered species.723 Entergy states that it has addressed all of the threatened and endangered species in the vicinity of Indian Point and that NYS does not allege that the assessment in the ER is deficient.724 Entergy maintains that shortnose sturgeon are not 718 Id. at 291 (citing Table B-1).

719 Id.

720 Id. at 292.

721 Id. at 293-96. NYS asserts that Entergy is impinging shortnose sturgeon, an endangered species, without an incidental takings permit in violation of the ESA. Entergy admits in its ER that the nuclear power plants do impinge shortnose sturgeon. National Marine Fisheries Service (NMFS) issued a Biological Opinion Report for nearby power plants that detailed mitigation measures employed there but not at IPEC. The other plants, unlike Indian Point, also have an adaptive management clause allowing NMFS to require further mitigation measures if the impact on the shortnose sturgeon is greater than expected. Furthermore, Atlantic sturgeon is now a candidate species as NMFS has begun a review to see if it should be listed as threatened or endangered.

722 Entergy NYS Answer at 207.

723 Id. at 207-09.

724 Id. at 208.

-144-susceptible to impingement or entrainment, and that the population has actually grown during the operation of Indian Point.725 Entergy also argues that it is not required to demonstrate in the ER that it complies with the ESA, thus any allegation of noncompliance by Entergy with the ESA is outside the scope of this proceeding.726 Entergy also contends that it does in fact comply with the ESA because it received a biological opinion under ESA § 7(b) that concluded that the once-through cooling system would not jeopardize the continued existence of the shortnose sturgeon.727 The NRC Staff also opposes the admission of NYS-32, arguing that NYS fails to allege sufficient facts to support its claim that Entergy is taking a threatened or endangered species with the once-through cooling intake system.728 The NRC Staff also maintains that NYS has not adequately supported its position that the shortnose surgeon has in fact been impinged.729 In its Reply, NYS rejects the NRC Staffs assertion that NYS did not provide evidence in its Petition, and states that it is apparent that the NRC Staff failed to look at the documentation NYS included in its Petition.730 In response to Entergys reliance on the biological opinion, NYS points out that it is twenty-nine years old and is simply not relevant to the incidental take permit issue, nor does it provide an exemption to the incidental take requirements for shortnose sturgeon.731 NYS notes that, during the States review of the SPDES permit for Indian Point, the operators of the facility represented that they needed an incidental take permit from National 725 Id. at 209.

726 Id.

727 See id. at 209-11.

728 NRC Staff Answer at 88.

729 Id.

730 NYS Reply at 172-73.

731 Id. at 176.

-145-Marine Fisheries Service (NMFS).732 NYS also asserts that Entergy is wrongfully dismissing the taking of an endangered species which is in fact a clear violation of the ESA.733 ii. Board Decision - NYS-32 This contention is inadmissible. In NYS-32, the Petitioner states that endangered shortnose sturgeon become impinged on the intake screens of the once-through cooling system for IP2 and IP3, and that the NRC has an obligation under ESA to ensure that its proposed action - granting a twenty-year license renewal - will not jeopardize the continued existence of an endangered species. As a Category 2 issue in the GEIS, NYS contends that the impact of an additional twenty years of operation on shortnose sturgeon and Atlantic sturgeon, a candidate threatened species, need to be addressed.

NYS does not refer to Entergys ER until the last page of its Petition and then only to point out that the Applicant admits that the shortnose sturgeon is impinged on the intake screens at Indian Point and that it does not possess an incidental takings permit for this impingement.734 While NYSs expert, Dr. Jacobson, states that the Applicant is violating the ESA whenever this occurs,735 NYS does not attack Entergys ER, but objects to NRCs inaction by stating that the NRC must make certain findings to ensure that no jeopardy of the species exists,736 and, if NYS is correct in its assessment of the impact on the shortnose sturgeon, NRC must either deny the license extension, or significantly modify the operations [at Indian Point].737 Whatever validity there might be in its arguments, NYS has failed to address these 732 Id.

733 Id. at 177.

734 NYS Petition at 296.

735 Id. at 291 (citing Jacobson Declaration at 14-15).

736 Id. at 292.

737 Id.

-146-issues as deficiencies in Entergys ER, the only relevant document at this point in the proceeding.

NYS does challenge Entergys ER in its Reply. The Board finds that the issues raised by NYS in its Reply - attacks on the lack of information and analyses in Entergys ER - are significantly different than the arguments raised in its Petition - that NEPA requires NRC to examine the environmental impacts to the endangered shortnose sturgeon. Likewise, these arguments could and should have been raised in its Petition and, having not been raised in the Petition could only be introduced into this proceeding pursuant to 10 C.F.R. § 2.309(c). For these reasons, the Board has not considered the new arguments presented in the Reply.

Even if the Board were to consider NYSs allegations presented for the first time in its Reply - that Entergys ER failed to adequately analyze environmental impacts to endangered species and does not analyze mitigation measures - this contention would still not be admissible because Entergy has done what is required of it by assessing the impacts of operations during the license renewal period on threatened and endangered species in Sections 4.10.5 and 4.10.6 of its ER. The Board notes that NYS fails to allege in either its Petition, or its Reply, that Entergys ER does not comply with 10 C.F.R. § 51.53(c)(3)(ii)(E). Whether Entergy should do more is outside the scope of this proceeding.

Viewing the contention as an attack on Entergys ER, the Board finds that the Applicant has provided the required information in the ER for the NRC to assess whether operation of the Indian Point plant for an additional twenty years would jeopardize the shortnose sturgeon.

VII. STATE OF CONNECTICUT CONTENTIONS In its Petition to Intervene, Connecticut submits two contentions and indicates that it wishes to adopt the NYS contentions discussed in Section VI above.738 The two contentions submitted by Connecticut include a spent fuel pool contention that is similar to NYS-27, and an 738 Connecticut Petition at 1-3.

-147-emergency planning contention comparable to NYS-29. For the reasons discussed below, both of the contentions submitted by Connecticut are inadmissible under the contention admissibility standards of 10 C.F.R. § 2.309(f)(1). In addition, because Connecticut has not submitted an admissible contention of its own, it is barred from adopting the contentions of any other party.739 The Connecticut petition to adopt is therefore denied. Connecticut may, however, participate in this proceeding as an interested State pursuant to 10 C.F.R. § 2.315(c).

A. Connecticut EC Spent Fuel Pool

i. Background - Connecticut EC-1 Connecticut EC-1 contends that the majority of the radioactive material at Indian Point is located not within reactor containment but in spent fuel pools that are far more vulnerable to accident and terrorist attack.740 Citing to reports authored by the Department of Energy (DOE) and the NRC, Connecticut argues that a fire or attack affecting the spent fuel pools could potentially result in radioactive releases leading to human fatalities and large-scale contamination of land.741 For this reason, Connecticut asserts, the issue is material and must be considered as part of the license renewal process.742 Entergy opposes admission of Connecticut EC-1, arguing that it (1) is outside the scope of the proceeding and not material to the relicensing decision; (2) does not represent a genuine dispute with the Applicant on a material issue of fact or law; (3) contravenes Commission legal precedent; and (4) represents a collateral attack on the Commissions Part 51 regulations.743 To 739 See supra Part IV.

740 Connecticut Petition at 13. Entergy has proposed moving some of the spent fuel in the pools to dry cask storage to make room in the pools for additional spent fuel that would result from an additional twenty years of operation. Id. at 14.

741 Id. at 15.

742 Id. at 14, 16.

743 Entergy Connecticut Answer at 30.

-148-the extent that the contention reflects terrorism concerns, Entergy argues that the Commission precedent in Oyster Creek controls and renders the contention inadmissible.744 Furthermore, Entergy says, the contention is an attack on Part 51 in that it challenges the findings of the GEIS, which contain the conclusion that the risk of intentional attack is small and adequately covered by analyses for other types of plant accidents.745 In addition, to the extent the contention alleges that accidents other than terrorism need to be considered, Entergy notes that the Commission has recently upheld decisions in Vermont Yankee and Pilgrim which held that such a contention is not within the scope of license renewal proceedings.746 Finally, Entergy says, the contention itself is not specific, contains vague references to documents, does not challenge the ER, and fails to demonstrate that a genuine dispute exists.747 For the same reasons presented by Entergy, the NRC Staff argues that Connecticut EC-1 is outside the scope of a license renewal proceeding and is therefore inadmissible.748 The NRC has chosen to address spent fuel storage generically through rulemaking, the Staff says, because it is a common issue at all plants.749 Connecticut presents no new information that would cause the issue to be reopened, the NRC Staff continues, and the issue therefore remains outside the scope of this proceeding.750 ii. Board Decision - Connecticut EC-1 744 Id. at 30-32 (citing Oyster Creek, CLI-07-8, 65 NRC at 128-30).

745 Id. at 32.

746 Id. at 33 (citing Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station) and Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-07-3, 65 NRC 13 (2007)).

747 Id.

748 NRC Staff Answer at 103-04.

749 Id. at 104.

750 Id. at 104-05.

-149-For the reasons presented in the discussion of NYS-27,751 the Board finds that those aspects of Connecticut EC-1 that deal with terrorism are outside the scope of a license renewal proceeding and are therefore inadmissible. The Commission in Oyster Creek has made its position clear: terrorism is unrelated to the general category of aging issues that license renewal proceedings are meant to address.752 Furthermore, the licensing decision in this proceeding is not related to any change in the risk of terrorist attack, and the terrorism issue is therefore not material.753 To the extent that Connecticut EC-1 addresses accidents rather than terrorist events, the Board agrees with Entergy and the NRC Staff that the issue of spent fuel storage pools has been dealt with in the GEIS for license renewal. The Commission has addressed this issue in the Vermont Yankee and Pilgrim proceedings, and Connecticut has not presented any information that would distinguish this contention from those submitted and rejected in prior proceedings. For all these reasons, Connecticut EC-1 is rejected.

B. Connecticut EC Evacuation Protocols

i. Background - Connecticut EC-2 Connecticut EC-2 contends that the emergency evacuation plan for the area around the Indian Point plant is inadequate.754 Further, Connecticut argues that safe evacuation of such a densely populated area may not be possible and supports this claim with a citation to the work of a former head of the Federal Emergency Management Agency.755 According to Connecticut, 751 See discussion supra Part VI.AA.ii.

752 Oyster Creek, CLI-07-08, 65 NRC at 128-29.

753 Id. at 130.

754 Connecticut Petition at 16.

755 Id.

-150-the NRC is required under NEPA to evaluate evacuation protocols as part of the license renewal process,756 and

[i]t is unacceptable for the NRC to say that emergency planning is the domain of the Federal Emergency Management Agency ("FEMA") and thereby decline to examine the environmental impacts resulting from the need to evacuate citizens from the EPZ or the impacts of a deficient evacuation plan and process. The emergency evacuation plan is a central and critical element of the NRC's reactor permit and regulatory program. Thus, the NRC's review of the potential impacts resulting from operation of two nuclear reactors, three spent fuel pools, and dry cask storage facility for an additional 20 years must include an analysis of the impacts of the emergency evacuation plan for Indian Point, and whether it is meaningful and effective.757 Entergy opposes the admission of Connecticut EC-2, arguing that it (1) constitutes an impermissible challenge to the Commission's regulations, contrary to 10 C.F.R. § 2.335(a); (2) raises issues that are neither within the scope of this proceeding or material to the Staff's license renewal findings, contrary to 10 C.F.R. § 2.309(f)(1)(iii)-(iv); (3) directly contravenes controlling Commission legal precedent; and (4) fails to establish a genuine dispute with the Applicant on a material issue of law or fact, contrary to 10 C.F.R.

§ 2.309(f)(1)(vi).758 According to Entergy, NRC Regulations preclude consideration of emergency plans in license renewal proceedings because they are already covered by ongoing regulatory review.759 Therefore, Entergy argues that EC-2 constitutes an impermissible challenge to Commission regulations.760 Despite Connecticuts assertions about the NRCs responsibilities under NEPA, Entergy argues that the contention as presented fails to challenge the ER or to establish a 756 Id. at 17 757 Id. at 18.

758 Entergy Connecticut Answer at 35.

759 Id. (citing 10 C.F.R. § 50.47(a)(1)(ii)).

760 Id. at 36.

-151-genuine dispute with the Applicant.761 For these reasons, according to Entergy, the contention should be rejected.

The NRC Staff also opposes admission of Connecticut EC-2, arguing that it is outside the scope of the proceeding and represents an impermissible challenge to the regulations.762 According to the NRC Staff, emergency planning is not related to age-related degradation.763 Furthermore, the NRC Staff says, both the text of the relevant regulations and Commission precedent indicate that emergency planning issues do not need to be considered in license renewal proceedings.764 For these reasons, the NRC Staff asserts that Connecticut EC-2 should be rejected.

ii. Board Decision - Connecticut EC-2 For the same reasons presented in the discussion of NYS-29,765 the Board rejects EC-2 because emergency planning issues are outside the scope of this proceeding. In particular, 10 C.F.R. § 50.47 states that [n]o finding under this section is necessary for issuance of a renewed nuclear power reactor operating license.766 In our discussion of NYS-29, the Board observed that this statement was inserted intentionally by the Commission in order remove any ambiguity as to whether consideration of emergency planning was required at the license renewal stage.767 As we have noted 761 Id.

762 NRC Staff Answer at 106.

763 Id.

764 Id. (citing 10 C.F.R. § 50.47(a) and Millstone, CLI-05-24, 62 NRC at 565).

765 See supra Part VI.CC.ii.

766 10 C.F.R. § 50.47(a)(1)(i).

767 See discussion supra Part VI.CC.ii.

-152-elsewhere,768 the scope of a license renewal proceeding is limited to the detrimental effects of aging on plant structures, systems, and components,769 and to the environmental issues listed in 10 C.F.R. § 51.53(c)(ii) and designated as Category 2 in the GEIS.770 The majority of emergency planning issues do not fall into these categories, and are dealt with as part of the ongoing regulatory review of reactor operations.

It is true that a contention related to emergency planning was admitted in the Pilgrim case. However, that contention was different in scope than Connecticut EC-2, and touched on the adequacy of a SAMA analysis in the context of environmental review during license renewal proceedings.771 Connecticut has presented a different contention than that admitted in Pilgrim.

Connecticut EC-2 is a broad-based, general contention targeting an area that has been designated by the Commission as outside the scope of a license renewal proceeding. For this reason, the Board is obliged to reject it.

VIII. RIVERKEEPER CONTENTIONS A. Riverkeeper TC-1/TC-1A INADEQUATE TIME LIMITED AGING ANALYSES AND FAILURE TO DEMONSTRATE THAT AGING WILL BE MANAGED SAFELY.772 768 See supra Part V.

769 10 C.F.R. § 54.21; see supra Part V.

770 10 C.F.R. § 51.53(c)(ii)(A)-(L); Table B-1.

771 See 10 C.F.R. § 51.53(c)(3)(ii)(L) (SAMA analysis requirement); Pilgrim, LBP-06-23, 64 NRC at 338-41 (ruling on admissibility of SAMA contention, which included a question about evacuation time estimates along with other questions related to inputs into the SAMA analysis).

772 Riverkeeper Petition at 7. The full contention states:

Entergys LRA fails to satisfy 10 C.F.R. § 54.21(c)(1) in the following respects:

1. Tables 4.3-13 and 4.3-14 identify four representative reactor coolant components for which Entergys evaluation of Time Limited Aging Analyses (continued...)

-153-

i. Background - Riverkeeper TC-1/TC-1A Riverkeeper TC-1, which is similar to NYS-26, was included with Riverkeepers Petition.773 Entergy opposed its admission in its entirety, while the NRC Staff did not initially oppose admitting portions of the contention.774 Riverkeeper filed its Reply on February 2, 2008.775 Thereafter, on March 4, 2008, the NRC Staff sent a letter to the Board in which it stated that Entergy had submitted LRA Amendment 2 on January 22, 2008, and that, based on this submittal, the NRC Staff asserted that Riverkeepers TC-1 was moot and that the NRC Staff now opposed admitting any portion of it. Based on this new development, Riverkeeper filed a 772

(...continued)

(TLAAs) is facially non-compliant with the standard of 10 C.F.R. § 54.21(c)(i)-(ii) for avoiding a demonstration, under 10 C.F.R. § 54.21(c)(iii), that it will adequately manage the effects of aging on the intended functions of the components during the license renewal term. For these four components -

pressurizer surge line piping (IP2 & IP3), the RCS piping charging system nozzle (IP2), and pressurizer surge line nozzles (IP3) - the environmentally adjusted cumulative usage factor (CUF) estimated by Entergy exceeds the regulatory threshold for submitting an aging management program. Yet, Entergy has failed to broaden its TLAA analysis beyond the scope of the representative components identified in Tables 4.3-13 and 4.3-14 to identify other components whose CUF may be greater than one; nor has it submitted any demonstration that it will adequately manage the aging of components with a CUF greater than one. Therefore Entergys LRA does not satisfy 10 C.F.R. §§ 54.21(c) or (c)(iii).

2. Entergys list of components with CUFs of less than one in Tables 4.3-3 and 4.3-14 is incomplete, because Entergys methods and assumptions for identifying those components are unrealistic and inadequate.

3. For a number of other components subject to the license renewal regulations, which are listed in Tables 4.3-3 through 4.3-12, Entergy has also failed to perform complete TLAAs. The TLAAs for these components are incomplete because they omit consideration of the exacerbating effects of environmental conditions on the fatigue of metal components. Therefore Entergy has failed to satisfy 10 C.F.R. § 54.21(c)(1)(i)-(ii). Nor has Entergy submitted an aging management program for these components, as required by 10 C.F.R.

§ 54.21(c)(1)(iii).

Id. at 7-8.

773 Id. at 7-15.

774 Entergy Riverkeeper Answer at 29-43; NRC Staff Answer at 115-18.

775 Riverkeeper Reply at 2-12.

-154-timely request to amend its contention (Riverkeeper TC-1A),776 which was answered by Entergy,777 and the NRC Staff,778 and to which Riverkeeper replied.779 Using arguments similar to those made by NYS in its contention 26/26A, Riverkeeper, in its Petition, alleges that Entergys LRA fails to comply with 10 C.F.R. § 54.21(c)(1) because its metal fatigue analyses are insufficient.780 As supported by the Declaration of its expert witness, Dr. Joram Hopenfeld,781 Riverkeeper points to four components of the reactor coolant system which have environmentally adjusted CUFs that are higher than the relevant regulatory thresholds.782 Furthermore, according to Riverkeeper, Entergy has failed to broaden its TLAA beyond the scope of the representative components identified in the LRA to identify other components whose CUFs might be greater than 1.0.783 In addition, Riverkeeper alleges that some of Entergys TLAAs are incomplete because the CUF calculations fail to satisfy 10 C.F.R.

§ 54.21(c)(1)(i)-(ii), which requires Entergy to demonstrate in its LRA that (1) required TLAAs remain valid for the license renewal period and (2) the analyses have been projected to the end 776 Riverkeeper, Inc.s Request for Admission of Amended Contention 6 (Mar. 5, 2008)

[hereinafter Riverkeeper TC-1A].

777 Answer of Entergy Nuclear Operations, Inc. to Riverkeepers Request for Admission of Amended Contention TC-1 (Concerning Environmentally Assisted Metal Fatigue) (Mar. 31, 2008) [hereinafter Entergy TC-1A Answer].

778 NRC Staffs Response to Riverkeeper, Inc.s Request for Admission of Amended Contention TC-1 [TC-1A] (Metal Fatigue) (Apr. 21, 2008) [hereinafter NRC Staff TC-1A Response].

779 Riverkeeper, Inc.s Reply to Entergys and NRC Staffs Oppositions to Request for Admission of Amended Contention TC-1 (May 1, 2008) [hereinafter Riverkeeper TC-1A Reply].

780 Riverkeeper Petition at 7.

781 Id. at 8.

782 These are the pressurizer surge line piping for Units 2 and 3, the RCS piping charging system nozzle for Unit 2, and the pressurizer surge line nozzles for Unit 3.

783 Riverkeeper Petition at 12 (citing LRA Tables 4.3-13 and 4.3-14).

-155-of that period.784 Riverkeeper cites 10 C.F.R. § 54.21(c)(1)(i)-(iii), which requires Entergy to demonstrate that the effects of aging will be adequately managed during the license renewal period, and alleges that Entergy has failed to fulfill this regulatory requirement. Riverkeeper contends that, rather than demonstrate that the effects of aging will be adequately managed, Entergy has merely submitted a list of future options without specific details.

The first future option offered by Entergy - to refine the fatigue analysis to determine CUFs less than one - Riverkeeper argues is unacceptable because 10 C.F.R. § 54.21(c)(1)(i)-

(ii) require that either the LRA demonstrate that the CUFs are less than 1.0 or that the LRA include an AMP.785 According to Dr. Hopenfeld, Entergy will not be able to reduce CUFs significantly, because many CUFs, without the environmental correction that increases their values, already approach unity and will continue to increase with plant age as the number of transients increases.786 Dr. Hopenfeld also claims that Entergys existing calculations are unrealistically low in several areas and, purportedly in violation of regulatory guidance,787 and have not considered environmental effects on component fatigue.788 Entergy opposes admission of Riverkeepers TC-1, claiming that it fails to establish a genuine dispute on a material issue of law or fact and raises issues outside the scope of the proceeding. In regard to the former, Entergy responds that Riverkeeper does not establish a genuine dispute because it fails to controvert the acceptability of the approach set forth in LRA 784 Id. at 7-8.

785 Id. at 12.

786 Id. at 13.

787 Id. at 14-15 (citing the GALL Report at X.M-1 to X.M-2; MRP-47, Rev. 1, Electric Power Research Institute, Materials Reliability Program: Guidelines for Addressing Fatigue Environmental Effects in a License Renewal Application at 3-4 (2005)).

788 Id.

-156-Section 4.3.3, Effects of Reactor Water Environment on Fatigue Life.789 Likewise, it is Entergys position that Riverkeeper TC-1 lacks adequate support because of the conclusory expert opinion and unexplained, vague references to documents.

According to Entergy, it is sufficient for the Environmentally Assisted Fatigue (EAF) to be evaluated prior to entering the period of extended operation.790 It contends that its proposed approach complies with the 10 C.F.R. § 54.21(c)(1)(iii) requirement that applicants demonstrate that the effects of aging will be adequately managed by following the guidance presented in Section X.M1 of the GALL Report, which specifies the method to be used to calculate environmentally adjusted CUFs.791 Following the recommendations in the GALL Report, Entergy committed to carry out a plan, at least two years before the beginning of the license renewal term, that would involve a choice among three options, an approach that is, according to Entergy, consistent with industry practice and has been approved by the NRC at other plants.792 As discussed below,793 Entergy notes that it submitted LRA Amendment 2 to define how it will refine the fatigue analyses to determine valid CUFs less than 1.0, and reiterates a commitment to repairing or replacing affected locations before a CUF of 1.0 is exceeded.794 The NRC Staff did not oppose the admission of this contention initially, with one exception. It stated that the issue of CUFs and aging was within the scope of a license renewal, and that the contention was appropriate to the extent that it challenged Entergys demonstration regarding the methodology of calculating CUFs or the programs used to manage aging for 789 Entergy Riverkeeper Answer at 31.

790 Id. at 32.

791 Id. at 32-33.

792 Id. at 34.

793 See infra Part VIII.A.ii.

794 Entergy Riverkeeper Answer at 36.

-157-components with CUFs greater than 1.0.795 However, the NRC Staff objected to the part of the contention that argued for expansion of the list of components or locations for which fatigue analyses must be done. According to the NRC Staff, Riverkeeper did not provide adequate support for this part of the contention.796 In its Reply, Riverkeeper argued that (1) Entergy had provided no reason to believe that the recalculated CUFs would be lower than 1.0,797 and (2) Entergy only committed to performing its reanalysis before the license renewal period began, rather than as a part of the LRA approval process that can be challenged at a hearing.798 Accordingly, Riverkeeper reasons that Entergy does not resolve these fundamental aspects of the contention and instead merely offers vague promises to do something about this issue.799 ii. LRA Amendment 2 The week before Oral Argument, the NRC Staff sent a letter to the Licensing Board indicating that it had changed its position on Riverkeeper TC-1 (and the related NYS-26).800 On March 6, 2008, NYS and Riverkeeper moved to strike the paragraph of this letter reflecting this change in position, noting that NRC Regulations do not provide for this kind of sur-opposition.801 In their Motion, the two organizations argued that the information upon which

[the NRC] Staff relies for its change of position is not relevant to the admissibility of contentions 795 NRC Staff Answer at 117.

796 Id.

797 Riverkeeper Reply at 5.

798 Id. at 6.

799 Id. at 11.

800 NRC Staff LRA Amendment 2 Letter. See supra notes 554, 556 and accompanying text.

801 Joint Motion to Strike Paragraph One of Staffs Pleading Letter Dated March 4, 2008 at 1 (Mar. 6, 2008).

-158-that were required to be filed on the basis of the information available at the time petitions were due, and that the proper time to argue that a contention had been rendered moot was after its admission.802 Furthermore, the two Petitioners objected to the submission of a pleading in letter form, which may leave other parties uncertain how to respond.803 Based on the information in the Motion and subsequent discussions at Oral Argument,804 the Board rejected this request and has considered the NRC Staffs change of position.805 802 Id.

803 Id. at 3.

804 Tr. at 410-17.

805 Tr. at 417-18. While it may have been more appropriate for the NRC Staff to submit a motion to the Board clarifying its new position, the new information appropriately could be considered in addressing the admissibility of this contention.

-159-iii. Amended Contention Description (TC-1A)

On March 5, 2008, Riverkeeper filed a motion for leave to amend TC-1 (labeled TC-1A herein) to take LRA Amendment 2 into account.806 In addition to addressing the timeliness of the amendment submittal, Riverkeeper argues that it does not want to withdraw any portion of Riverkeeper TC-1, but rather to amend the basis to Subpart 1 of the contention to address the reasons that Entergy's LRA Amendment 2 does not cure Entergy's failure to demonstrate that it will adequately manage the aging of components with a CUF greater than one.807 Specifically, Riverkeeper claims that Entergy does not explain why it is likely that CUFs that are now above one are likely to be less than one when re-calculated, does not address the legal requirement that the LRA application itself is required to demonstrate that CUFs for representative components are less than one, and fails to address NRC guidance requiring that if CUFs for representative components in the license renewal application are more than one, the applicant must evaluate all components that are subject to the effects of aging.808 Neither Entergy nor the NRC Staff has objected to Riverkeeper TC-1A based on timeliness, but both argue that it is inadmissible based on 10 C.F.R. § 2.309(f)(1) criteria.809 In addition to hypothesizing that Riverkeepers real dispute is with the postponement of the immediate implementation of corrective measures, Entergy alleges that Riverkeeper TC-1A raises issues beyond the scope of the proceeding and does not establish a genuine dispute.

Entergy claims that Riverkeeper (1) has not identified any legal requirement for CUF analysis to be included as part of the LRA; (2) failed to show that Part 54 or the GALL Report requires the Applicant to expand its EAF analyses to include all components subject to the effects of aging; 806 Riverkeeper TC-1A at 1-2.

807 Id. at 3.

808 Id. at 4-5.

809 Entergy TC-1A Answer at 1; NRC Staff TC-1A Response at 16.

-160-(3) mistakenly argued that LRA Amendment 2 excludes the six representative locations identified in NUREG/CR-6260; and (4) failed to reference any factual or legal basis for asserting that Entergys plan for addressing EAF is unacceptably vague and adds little substantive information.810 In general, Entergy continues to claim that it has satisfied license renewal regulations by committing to revise, before the extended operational period, the calculations to determine if CUFs exceed critical values for key reactor components and to repair or replace these components prior to these values exceeding 1.0.811 Using arguments similar to those of Entergy, the NRC Staff recommends that the admission of Riverkeepers TC-1A be rejected. Specifically, the NRC Staff claims that the Petitioners assertions that Entergys LRA is non-compliant with 10 C.F.R. § 54.21(c) has been rendered moot with Entergys promise to propose aging management pursuant to 10 C.F.R.

§ 54.21(c)(iii), and that the Applicant has removed any uncertainty in its plans.812 The NRC Staff provides specifics which, in the Staffs view, demonstrate that Riverkeeper fails to offer regulatory support for its assertions, misunderstands changes in the LRA regarding the list of items to be addressed with CUF analyses, lacks understanding that the reanalysis is a corrective action, misreads NUREG/CR-6260 to be a requirement rather than guidance, and does not provide support for its assertion that the criterion for repair or replacement is vague.

Finally, the NRC Staff posits that Riverkeeper refuses to acknowledge that LRA Amendment 2 removes the uncertainty of Entergys addressing TLAAs for metal fatigue.813 810 Entergy TC-1A Answer at 7-12.

811 Id. at 8.

812 NRC Staff TC-1A Response at 6.

813 Id. at 6-13.

-161-In its Reply, Riverkeeper claims that Entergys and the NRC Staffs arguments presented in their Answers are legally infirm and self-contradictory in many respects.814 First, Riverkeeper alleges that the Applicant and the NRC Staff have misread 10 C.F.R. § 54.21(c)(1), which requires the LRA to contain the evaluation of TLAAs.815 According to Riverkeeper, Entergys and the NRC Staffs argument that a promise to perform these evaluations at a future date effectively renders Section 54.21(c)(1)(i)-(ii) superfluous.816 In addition, Entergys choice and application of a method to revise CUF calculations will determine compliance with the regulation and is therefore a material licensing issue that should not be deferred to the post-licensing period.817 Riverkeeper concludes with the argument that Entergy must provide sufficient information to demonstrate that the aging of equipment is adequately managed during the extended period of operations and that, just as in Vermont Yankee, it is not sufficient for an applicant to propose a plan to develop a future plan.818 iv. Board Decision - Riverkeeper TC-1/TC-1A The Board rejects Entergys claim that the LRA contains an adequate AMP for metal fatigue of key reactor components, and admits Riverkeeper TC-1 relating to the calculation of the CUFs and the adequacy of the resulting AMP for those components with CUFs greater than 1.0. In addition to incorporating by reference all the reasons put forth in the Boards decision on the admissibility of NYS-26A,819 the Board notes that many of the arguments proffered by Entergy and the NRC Staff and subsequently addressed by Riverkeeper in its Reply, present us 814 Riverkeeper TC-1A Reply at 2.

815 Id.

816 Id. at 3.

817 Id. at 3-4.

818 Id. at 8-10 (citing Vermont Yankee, LBP-06-20, 64 NRC at 186-87).

819 See supra Part VI.Z.vi.

-162-with material disputes that under NRC rules are best litigated in the course of a hearing, including, but not limited to, questions relating to (1) the extent to which an applicant must expand the scope of its TLAAs to meet the recommendations of the GALL Report and NUREG/CR-6260; (2) the extent, if any, that refinement of the CUFs is a valid corrective action and what relationship it has to the repair and replacement options; (3) the scope of commitments to monitor, manage, and correct age-related degradation to meet the regulations; and (4) the degree of detail and specificity with which the repair/replacement decision criteria must be defined.

For the reasons previously presented in NYS-26A and specific reasons presented herein, the Board admits Riverkeeper TC-1A. We also note that Riverkeeper TC-1A will be consolidated with NYS-26A.

B. Riverkeeper TC Flow Accelerated Corrosion (FAC)

ENTERGYS PROGRAM FOR MANAGEMENT OF FLOW ACCELERATED CORROSION (FAC) - AN AGING PHENOMENON WITH SIGNIFICANT SAFETY IMPLICATIONS - FAILS TO COMPLY WITH 10 C.F.R. § 54.21(a)(3).820 820 Riverkeeper Petition at 15. The full contention states:

Entergys program for management of Flow Accelerated Corrosion (FAC)

- an aging phenomenon with significant safety implications - fails to comply with 10 C.F.R. § 54.21(a)(3)s requirement that: For each structure and component identified in paragraph (a)(1) of this section, demonstrate that the effects of aging will be adequately managed so that the intended function(s) will be maintained consistent with the CLB for the period of extended operation. Entergy also fails to follow the guidance of NUREG-1800, which requires that an aging management program, including a FAC program for life extension, must address each of the following (1) Scope (2) Preventative actions (3) Parameters monitored or inspected (4) Detection of aging effects (5) Trending (6) Acceptance criteria (7) Corrective actions (8) Confirmation processes (9) Administrative processes (10) Operating experience. NUREG-1800, § A.1.2.3.

Entergys program for management of FAC is deficient because it has not demonstrated that components in the Indian Point nuclear power plant that are within the scope of the license renewal rule are vulnerable to FAC will be adequately inspected and maintained during the license renewal term. In particular, Entergys program for management of FAC is deficient because it relies on the computer code CHECWORKS, without sufficient benchmarking of (continued...)

-163-

i. Background - Riverkeeper TC-2 Riverkeeper TC-2 contends that Entergy's program for the management of Flow Accelerated Corrosion (FAC) fails to comply with the requirements of 10 C.F.R. § 54.21(a)(3) to demonstrate that the effects of aging will be adequately managed for the period of extended operation.821 According to Riverkeeper, by failing to follow the guidance of the SRP-LR, Entergy has not considered all ten recommended elements for an AMP.822 Riverkeeper concludes that Entergy's program for management of FAC is deficient because the LRA fails to demonstrate that the intended functions of the FAC-vulnerable plant components will be adequately maintained during the license renewal term by not specifying the method and frequency of inspections or the criteria for component repair or replacement.823 Riverkeeper also argues that Entergy's AMP is deficient because it relies on the computer code CHECWORKS, which has not been sufficiently benchmarked to Indian Point operating parameters associated with the recent power uprate. Riverkeeper argues that this benchmarking is necessary because CHECWORKS is an empirical program that relies upon plant-specific calibrations to be reliable.824 As supported by its expert witness, Dr. Joram 820

(...continued) the IP operating parameters. In addition, Entergys license renewal application fails to specify the method and frequency of component inspections or criteria for component repair or replacement.

Id. at 15-16.

821 Id. at 15.

822 Id. at 16 (citing SRP-LR § A.1.2.3).

823 Id. at 16, 23.

824 Id. at 16, 20, 21.

-164-Hopenfeld, Riverkeeper contends that CHECWORKS can only be reliably used to predict pipe wall thinning if the following conditions are met:

(a) All relevant locations are benchmarked for relevant plant parameters; (b) Relevant plant parameters do not change significantly over time; and (c) Benchmark data on relevant plant parameters are collected for a sufficiently long period of time.825 In its Petition, Riverkeeper discusses the technical aspects associated with the use of CHECWORKS at Indian Point, including the need to re-benchmark the program because of recent power uprates in order to demonstrate a successful track record of using CHECWORKS at Indian Point over a long period of time. According to Riverkeeper, CHECWORKS has not been successful in predicting failures due to FAC.826 Riverkeeper argues that, in the absence of adequate benchmarking, it is important for Entergy to provide detailed information regarding the method and frequency of component inspections and its criteria for component repair or replacements.827 According to Riverkeeper, Entergy has identified the components susceptible to FAC, but has only made vague statements regarding the specifics of its AMP.828 Entergy argues that Riverkeeper TC-2 is inadmissible because it raises issues outside the scope of a license renewal proceeding, lacks sufficient factual or expert support, and fails to establish a genuine dispute with the Applicant, and therefore fails to meet the contention admissibility requirements of 10 C.F.R. § 2.309(f)(1)(iii), (iv), and (vi).829 Entergy also alleges that Riverkeeper TC-2 fails to demonstrate that the LRA is deficient in any material respect.830 According to Entergy, its FAC program is fully consistent with both 10 C.F.R. § 54.21 and the 825 Id. at 20.

826 Id. at 20-23.

827 Id. at 23.

828 Id.

829 Entergy Riverkeeper Answer at 44-45.

830 Id. at 45.

-165-GALL Report, which recommends the use of predictive codes such as CHECWORKS.831 Entergy argues that [t]he NRC has stated explicitly that [a]n applicant may reference the GALL Report in a license renewal application to demonstrate that the programs at the applicants facility correspond to those reviewed and approved in the GALL Report and that no further staff review is required.832 Entergy further states that the GALL Report has been referenced in numerous license renewal applications to show that a program complies with 10 C.F.R.

§ 54.21.833 Entergy contends that Appendix B of the LRA explains that (1) each of its AMPs has ten elements, in accordance with the guidance in the SRP-LR; (2) for AMPs comparable with the programs described in the GALL Report, the ten elements have been compared to the elements of the GALL Report program; (3) for plant-specific programs that do not correlate with the GALL Report, the ten elements are addressed in the program evaluation; and (4) essentially, the full ten-element program described in the GALL Report is incorporated by reference in the LRA.

Entergy therefore argues that Riverkeepers assertion that the LRA improperly excludes elements of the FAC program is incorrect, and that Riverkeeper has failed to identify any omission or deficiency in the LRA.834 Entergy also argues that a challenge to the adequacy of CHECWORKS is outside the scope of a license renewal proceeding. Such a challenge is nothing short of a direct challenge to an NRC approved method, Entergy asserts, and is contrary to the requirement that contentions challenge material contained in a LRA.835 Entergy represents that its ongoing FAC 831 Id. at 46.

832 Id. (citing GALL Report, Vol. 2, at iii).

833 Id. at 47.

834 Id. at 47-48 (citing LRA, Appendix B, Section B.0.1).

835 Id. at 48-49.

-166-program has already used one set of outage inspection data to calibrate CHECWORKS to IPECs post-uprate flow conditions.836 Entergy notes that based on present refueling outage schedules, there will be at least three more sets of inspection data to calibrate CHECWORKS models before the period of extended operation, providing at least six years of calibration/benchmarking before entering the period of extended operation.837 Finally, Entergy argues that the support provided by Riverkeepers expert is vague and conclusory, and that documents submitted in support of the contention fail to provide the support that Riverkeeper alleges.838 The NRC Staff also opposes admission of Riverkeeper TC-2, arguing that it is unduly vague and that Riverkeeper fails to demonstrate that its concerns about CHECWORKS have any basis or would materially affect the adequacy of the FAC program at Indian Point.839 According to the NRC Staff, Riverkeepers expert provides absolutely no empirical proof, data, or research to back his statements, and therefore does not provide an adequate basis for the contention.840 In its Reply, Riverkeeper claims that Entergy is wrong when it argues that TC-2 does not challenge the LRA directly. The contention identifies the relevant sections in the LRA, Riverkeeper says, and specifies the ways in which the LRA is deficient.841 Furthermore, Riverkeeper contends that citation to the GALL Report and industry practice does not 836 Id. at 52.

837 Id. at 60.

838 Id. at 52, 54.

839 NRC Staff Answer at 119.

840 Id. at 120.

841 Riverkeeper Reply at 13-14.

-167-demonstrate compliance with binding regulations.842 According to Riverkeeper, Entergy confuses approval of a challengeable NRC Staff program with an unchallengeable NRC regulation.843 Finally, Riverkeeper alleges that Entergy is urging the Board to apply a higher level of expert and documentary support than is required at the contention admissibility stage of a proceeding.844 ii. Board Decision - Riverkeeper TC-2 The Board admits Riverkeeper TC-2 because it raises questions regarding the sufficiency of Entergys AMP to demonstrate that a specific class of components subject to FAC will be managed so that their intended functions will be maintained during the period of extended operations. Specifically, Riverkeeper alleges that Entergys program is deficient because it has not demonstrated that by simply addressing the elements presented in SRP-LR the relevant steel members will be adequately inspected and maintained during the license renewal term, and that Entergy relies on the computer model CHECWORKS without adequate benchmarking at the uprated power levels used at IPEC since 2005.

Consistent with a recent Licensing Board license renewal decision in Vermont Yankee,845 this Board finds that Riverkeeper TC-2 is within the scope of the license renewal proceeding. We also find that Riverkeeper has presented sufficient facts and expert opinion to raise a genuine dispute regarding a material issue. Though Entergy alleges it has addressed the ten elements of the SRP-LR by committing to develop a program consistent with the GALL Report, Entergy did not state where in its LRA it discusses the details of the AMP elements (e.g., the parameters to be monitored or inspected, detection method for aging effects, trending, 842 Id. at 14.

843 Id. at 15.

844 Id. at 19.

845 LBP-06-20, 64 NRC at 192-96.

-168-acceptance criteria, corrective actions, etc.).

Riverkeeper also alleges that Entergys reliance on CHECWORKS for predicting the location and timing for wall thinning due to FAC is unsound due to the lack of benchmarking at IPECs increased power levels. Contrary to the allegations by Entergy, the Board believes this contention is not a challenge to the use of the model, but rather questions the sufficiency of the benchmarking needed to provide valid results at IPEC once the plant parameters changed with the 3.26% and 4.85% power uprates during 2004 and 2005. The same argument was used for challenging the effect of the 20% uprate at Vermont Yankee on the FAC program at that facility.846 While the maximum power increase at IPEC is much smaller than the uprate levels at Vermont Yankee, Entergy has not provided any information to explain what percent change in plant operating parameters would be small enough not to have a material effect on the CHECWORKS results.

Entergy and the NRC Staff are correct that Riverkeepers expert, Dr. Joram Hopenfeld, has not provided overwhelming support for his allegation that CHECWORKS needs to be benchmarked for ten to fifteen years to validate the new power levels at the plant since 2005.

But neither Entergy nor the NRC Staff has provided any support for the claim that the inspection data that will be collected during refueling outages prior to the license renewal period will be sufficient to benchmark the model. On balance, the Board finds that the Petitioner has adequately supported the position of its expert in questioning the effectiveness of Entergys AMP.

Without reference to the specific regulatory criteria, the NRC Staff merely states that Riverkeeper TC-2 is unduly vague because it does not identify the specific systems or components that are of concern for FAC. The Board realizes that this portion of Riverkeepers contention is not well defined, given that it is a challenge to an overall process that has the 846 Id. at 194.

-169-potential to affect a large group of components. Even so, Riverkeeper related this contention directly to a specific class of components susceptible to FAC, i.e., carbon and low alloy steel components carrying high-energy fluids for more than 2% of the time. Short of listing each of these components in its Petition, there is little more that Riverkeeper could or should do at the contention admissibility stage of the hearing process.

In summary, the Board admits Riverkeepers TC-2 which contends that (1) Entergys AMP for components affected by FAC is deficient because it does not provide sufficient details (e.g., inspection method and frequency, criteria for component repair or replacement) to demonstrate that the intended functions of the applicable components will be maintained during the extended period of operation; and (2) Entergys program relies on the results from CHECWORKS without benchmarking or a track record of performance at IPECs power uprate levels.

C. Riverkeeper EC-1 FAILURE TO ADEQUATELY ANALYZE IMPACTS OF COOLING SYSTEM- ENTERGYS ENVIRONMENTAL REPORT VIOLATES THE NATIONAL ENVIRONMENTAL POLICY ACT (NEPA) AND NRC IMPLEMENTING REGULATIONS 10 C.F.R. § 51.45 AND 10 C.F.R.

§ 51.53(C)(3)(ii)(B) BECAUSE IT FAILS TO ADEQUATELY ANALYZE THE ADVERSE INPACTS ON AQUATIC RESOURCES FROM HEAT SHOCK, IMPINGEMENT AND ENTRAINMENT CAUSED BY INDIAN POINTS ONCE-THROUGH COOLING SYSTEM.

ENTERGYS ENVIRONMENTAL REPORT ALSO VIOLATES NEPA AND NRC IMPLEMENTING REGULATIONS 10 C.F.R. § 51.54(B), (C),(D) BECAUSE IT FAILS TO PROVIDE A COMPLETE ANALYSIS OF THE CLOSED CYCLE COOLING ALTERNATIVE FOR REDUCING OR AVOIDING ADVERSE ENVIRONMENTAL EFFECTS AT INDIAN POINT.847 847 Riverkeeper Petition at 24.

-170-

i. Background - Riverkeeper EC-1 Riverkeeper EC-1, which is similar to NYS-30 and NYS-31, alleges that Entergys ER fails to evaluate the environmental impacts of the once-through cooling water intake system used at Indian Point and, as a result, that Entergys ER violates regulations because it fails to provide a complete analysis of the closed cycle cooling alternative for minimizing adverse environmental impacts from the Indian Point facility. Specifically, Riverkeeper asserts that Entergy has no valid CWA determination to submit in compliance with 10 C.F.R.

§ 51.53(c)(3)(ii)(B), because it is operating under an expired SPDES permit issued by NYSDEC covering the period from 1987 to 1992.848 Therefore, according to Riverkeeper, Entergy must assess the impacts of heat shock, impingement, and entrainment in the ER.849 Based on the history of this issue, Riverkeeper claims that (1) the NYSDEC, in a draft SPDES permit prepared in 2003, required the installation of closed cycle cooling if the Indian Point operating license is renewed; and (2) the State of New York has taken the position that the expired SPDES permit, while technically current for operation of the plant, does not adequately address the environmental impacts from once-through cooling.850 For these reasons, Riverkeeper argues that the 1987 SPDES permit cannot be taken as satisfying the requirement for a current CWA § 316(b) determination; therefore, Entergy must submit an analysis that complies with 10 C.F.R. § 51.53(c)(3)(ii)(B), and Riverkeeper alleges that it has failed to do so.851 Riverkeeper also describes the deficiencies in Entergys analysis of entrainment, impingement, and heat 848 Id. at 26.

849 Id. at 29. The history of the expired 1987 permit and the associated legal proceeding is set forth in considerable detail in Riverkeepers Petition at 26-29 and in our discussion of NYS-30 and NYS-31. See discussion supra pp. 138-39.

850 Riverkeeper Petition at 28.

851 Id. at 28-29.

-171-shock provided in its ER.852 Finally, Riverkeeper argues that Entergy has failed to provide a complete analysis of alternative, closed cycle cooling systems.853 Entergy argues that Riverkeeper EC-1 is inadmissible because it falls outside the scope of a license renewal proceeding, lacks adequate factual or expert support, and fails to establish a genuine, material dispute with the Applicant, and that therefore, the contention does not meet the requirements of 10 C.F.R. §§ 2.309(f)(1)(iii), (v), and (vi) respectively.854 Entergy argues that it is required only to submit a current CWA § 316(a) and (b) determination, and that it has met this requirement by submitting a current SPDES permit.855 Entergy argues that Riverkeeper concedes that IPECs SPDES permit is current as a matter of New York law, and contains provisions implementing the New York State equivalent of Section 316(a) and (b).856 Entergy also challenges the qualifications of Riverkeepers experts, asserting that they are not engineers qualified to assess hydrothermal modeling and claims that Riverkeeper has misread Entergys application and asked for relief that the NRC does not have the legal authority to provide.857 Finally, Entergy argues that Riverkeeper EC-1 is not material to the license renewal proceeding because the issues involved will be resolved as part of the adjudicatory proceeding for renewing the SPDES permit and, therefore, admitting this contention would create duplicate proceedings.858 852 Id. at 30-52.

853 Id. at 52-54.

854 Entergy Riverkeeper Answer at 61.

855 Id. at 62.

856 Id.

857 Id.

858 Id. at 63.

-172-The NRC Staff initially did not object to admitting Riverkeeper EC-1 to the limited extent that it challenged the adequacy of the analysis for heat shock, impingement, and entrainment provided in the ER.859 However, the NRC Staff did object to those portions of the contention that dealt with the closed cycle cooling alternative and the validity of the SPDES permit, which, according to the Staff, are beyond the authority of the NRC under the Clean Water Act, for the same reasons outlined in the NRC Staffs response to NYS-30 and NYS-31.860 At Oral Argument, the NRC Staff alerted all participants in this proceeding that it had modified its position and opposed the admission of this contention in its entirety.861 The NRC Staff explained that, in its initial reading of the LRA and the ER, it was not clear that Entergy had met the requirements of CWA § 316.862 However, in its continuing review of the LRA, the ER, and the pleadings, the NRC Staff concluded that Entergys SPDES permit did meet the CWA

§ 316(b) requirement and therefore satisfied 10 C.F.R. § 51.53(c)(3)(ii)(B).863 For that reason, the NRC Staff now maintains that all of Riverkeeper EC-1 is outside the scope of this proceeding.864 In its Reply, Riverkeeper argues that Entergy has inaccurately characterized the materials it submitted in connection with its SPDES permit. In particular, Riverkeeper notes that the Hudson River Settlement Agreement (HRSA) and the consent orders were originally part of the supporting documentation for the 1987 SPDES permit and neither were provided in the 859 NRC Staff Answer at 110.

860 Id.

861 Tr. at 467.

862 Tr. at 468.

863 Tr. at 468.

864 Tr. at 469.

-173-ER.865 It is Riverkeepers position that the HRSA is out of date and no longer reflects the obligations of the various parties and, as a result, the 1987 SPDES permit - although administratively extended - no longer constitutes a valid CWA § 316(a) or (b) determination and cannot be relied upon to satisfy the requirements of 10 C.F.R. § 51.53(c)(3)(ii)(B).866 ii. Riverkeeper Response to the NRC Staffs Change in Position Riverkeeper filed a response to the NRC Staffs change in position on April 7, 2008.867 Riverkeeper continues to assert that the 1987 permit, as extended, and the HRSA do not represent a current CWA § 316(b) determination.868 Riverkeeper argues that the issue is not whether a given permit is valid in a legal sense, but rather whether there is a current Section 316(b) determination - based on a current analysis - that can be used in a NEPA analysis of the Category 2 environmental impacts that the NRC must consider in making its licensing decision.869 If a current analysis of the facilitys impact on the aquatic ecology is not available in such a form, 10 C.F.R. § 51.53(c)(3)(ii)(B) requires applicants to present such an analysis in the ER itself.870 Entergy and the NRC Staff replied to Riverkeepers Response on April 21, 2008.

Entergy claims that the Petitioner did not address the validity of the NRC Staffs updated position that Entergys SPDES permit is an equivalent CWA § 316 determination, because it could not reasonably dispute that the SPDES permit is valid and, as a matter of New York State 865 Riverkeeper Reply at 23-24.

866 Id. at 29.

867 Riverkeeper, Inc.s Response to the NRC Staffs Change in Position Regarding the Admissibility of Contention EC-1 (Apr. 7, 2008).

868 Id. at 5.

869 Id. at 13.

870 Id. at 14.

-174-law, contains the equivalent CWA § 316 determination.871 According to Entergy, the Petitioner still fails to furnish adequate factual or legal support and does not establish a genuine dispute on a material issue.872 Entergy specifically discusses how Riverkeepers criticisms of Entergys position regarding Section 51.53(c)(3)(ii)(B) are unsupported by New York State or NRC law.873 The NRC Staff posits many of the same arguments as Entergy in alleging that the contention is inadmissible.874 The NRC Staff goes on, however, to discuss how the 1987 SPDES permit is both current and valid;875 describes why, in its view, the CWA prohibits the NRC from requiring closed-cycle cooling;876 and points out that its change in position was not procedurally defective.877 iii. Board Decision - Riverkeeper EC-1 As we decided in NYS-30 and NYS-31, the Board rejects Riverkeepers EC-1 because it is outside the scope of the proceeding and constitutes an attack on NRC Regulation 10 C.F.R.

§ 51.53(c)(3)(ii)(B). NRC Regulations require an applicant to provide in its ER a site-specific analysis of entrainment, impingement, and heat shock/thermal discharge impacts from its 871 Entergy Nuclear Operations, Inc.s Reply to Riverkeeper, Inc.s and State of New Yorks Responses to NRC Staffs Change in Position Regarding Aquatics Contentions at 2 (Apr.

21, 2008).

872 Id.

873 Id. at 8-10.

874 NRC Staffs Reply to State of New York and Riverkeeper, Inc.s Responses to the Staffs Change in Position on New York Contentions 30 and 31 and Riverkeeper Contention EC-1 at 3-4 (Apr. 21, 2008).

875 Id. at 5-6.

876 Id. at 6-7.

877 Id. at 7-8.

-175-once-through cooling systems.878 Pursuant to 10 C.F.R. § 51.53(c)(3)(ii)(B), an applicant may meet its obligations by doing one of following: (1) provide a copy of current CWA § 316(b) determination; (2) provide a Section 316(a) variance or equivalent State permit and supporting documentation; or (3) assess the impact of proposed action on fish and shellfish resources resulting from heat shock, impingement, and entrainment. As discussed in our decision on the admissibility of NYS-30 and NYS-31, Entergy has met its obligation.879 The Applicant has provided a copy of its current CWA determination by submitting its existing SPDES permit and the supporting documentation.880 Additionally, Entergy provided a detailed description of its assessment of ecological studies that have been conducted over the past three decades as that assessment relates to the impacts from heat shock, impingement, and entrainment.881 Nowhere does Riverkeeper refute the presence of this information or contend that these assessments do not meet the second option provided by 10 C.F.R. § 51.53(c)(3)(ii)(B).

D. Riverkeeper EC-2 INADEQUATE ANALYSIS OF SEVERE ACCIDENT MITIGATION ALTERNATIVES.

ENTERGYS ANALYSIS OF SEVERE ACCIDENT MITIGATION ALTERNATIVES (SAMAs) IN ITS ENVIRONMENTAL REPORT FAILS TO SATISFY NEPA, 42 U.S.C. § 4321-4370f, BECAUSE ITS ANALYSIS OF THE BASELINE OF SEVERE ACCIDENTS IS INCOMPLETE, INACCURATE, NONCONSERVATIVE, AND LACKING IN THE SCIENTIFIC RIGOR REQUIRED BY NEPA.882 878 Table B-1.

879 See supra Part VI.DD.iii. Additional discussion on the validity and currency of this permit and the prohibition against the NRCs modifying any of the SPDES discharge limits has been presented in detail in the discussion of NYS-30 and NYS-31 and is not repeated here.

880 Entergy Riverkeeper Answer at 28.

881 Id. at 82-83.

882 Riverkeeper Petition at 54.

-176-

i. Background - Riverkeeper EC-2 Riverkeeper EC-2 contends that the SAMA analysis in Entergys ER fails to satisfy NEPA, 42 U.S.C. § 4321-4370f, because its analysis of the baseline of severe accidents is incomplete, inaccurate, non-conservative, and lacking in the scientific rigor required by NEPA.883 In particular, Riverkeeper argues that Entergy has not provided an adequate analysis of the probability and scope of severe accidents, and of their likely consequences.884 Riverkeeper alleges that Entergy has failed to consider the contribution to severe accident costs resulting from reactor containment bypass via induced failure of steam generator tubes, fires in the spent fuel pools, and intentional attacks on the reactors or spent fuel pools.885 Riverkeeper also claims that Entergy underestimates population doses from severe accidents, in part because Entergy uses an unusually low source term, fails to address uncertainties due to meteorological variation, and makes inappropriate use of a $2,000 per person-rem dose conversion factor.886 Riverkeeper contends that Entergy should be required to redo its SAMA analysis incorporating complete and accurate inputs and based on rigorous scientific methods.887 The contention is supported by Declarations from two experts, Dr. Gordon Thompson and Dr. Edwin S. Lyman, and by reports attached to the experts Declarations.888 According to Riverkeeper, the adequacy of an applicants SAMAs are Category 2 environmental issues that must be addressed during license renewal on a plant-by-plant 883 Id.

884 Id. at 54-55.

885 Id. at 55.

886 Id.

887 Id. at 56.

888 Id.

-177-basis.889 According to Riverkeeper, a SAMA analysis must be contained in the ER, and a decision about whether to implement a specific SAMA should be determined on the basis of a cost-benefit analysis.890 Riverkeeper states that Entergy initially considered 231 SAMA candidates, screened out 163 of these based on unsuitability for the site, rejected 61 because their projected costs exceeded their benefits, and recommended only seven that were potentially worth implementing.891 Riverkeeper believes this result to be flawed in that it does not take full account of the potential costs of severe accidents, and therefore does not constitute the hard look at environmental impacts that NEPA requires.892 Riverkeeper states that it is aware that some of the accident scenarios it proposes are currently the subject of rulemakings and other adjudications. According to Riverkeeper, the NRC classifies spent fuel pool accidents as Category 1 environmental impacts and deals with them generically in license renewals.893 Riverkeeper notes that the Commission is currently considering two petitions for rulemaking seeking to overturn this classification, and requests that the Board admit this aspect of Riverkeeper EC-2 and hold it in abeyance pending the completion of the rulemaking process.894 Riverkeeper also states that it is aware that the NRC has refused to consider the environmental impacts of terrorist attacks outside of the Ninth 889 Id. at 58 (citing Table B-1).

890 Id. at 58-59.

891 Id. at 59-60.

892 Id. at 60.

893 Id. at 62.

894 Id. The petitions for rulemaking have been filed by Massachusetts Attorney General and the State of California. Massachusetts Attorney General; Receipt of Petition for Rulemaking, 71 Fed. Reg. 64,169 (Nov. 1, 2006); State of California; Receipt of Petition for Rulemaking, 72 Fed. Reg. 27,068 (May 14, 2007).

-178-Circuit, where it is required to do so under Mothers for Peace.895 Nevertheless, Riverkeeper asks that the Board refer this aspect of Riverkeeper TC-2 to the Commission, with a request for reconsideration of its previous decision in this matter.896 Entergy asserts that Riverkeeper EC-2 is inadmissible as a matter of law.897 Entergy claims that only those SAMA analyses related to managing the effects of aging should be evaluated as part of a LRA, and that other SAMAs should fall under ongoing review of a facilitys CLB.898 Entergy states that both the issue of spent fuel pool fires and the question of terrorist attacks are outside the scope of this proceeding, the first because it is currently subject to rulemaking, and the second because the Commission has stated that the potential impact of terrorism is not litigable in license renewal proceedings.899 The third of Riverkeepers accident scenarios - containment bypass via induced failure of steam generator tubes - is not subject to such a categorical ban; however, Entergy says, it is an attempt to manipulate the inputs and assumptions underlying Entergys SAMA analysis, so as to create the false appearance that Entergy has improperly excluded potential cost-beneficial SAMAs.900 Doing so, according to Entergy, would in effect impose a requirement that Entergy consider hypothetical, worst-case scenarios in its SAMA analyses, and Riverkeeper provides no regulatory or factual support to indicate that this necessary.901 895 449 F.3d 1016; see also Oyster Creek, CLI-07-8, 65 NRC at 124.

896 Riverkeeper Petition at 64.

897 Entergy Riverkeeper Answer at 103.

898 Id. at 106-07.

899 Id. at 118, 123.

900 Id. at 112.

901 Id. at 112-16.

-179-The NRC Staff also opposes admission of Riverkeeper EC-2, raising the same issues that Entergy does with respect to the scope of the proceeding and the bar to considering contentions that deal with spent fuel pool fires or intentional acts of terrorism.902 With respect to other aspects of the contention, the NRC Staff argues that Riverkeeper has failed to demonstrate that any aspect of Entergys SAMA analysis is insufficient. According to the NRC Staff, the mere fact that other calculations are possible does not invalidate Entergys analyses.903 In its Reply, Riverkeeper argues that the part of its contention dealing with containment bypass via induced failure of steam generator tubes is based on NRC-sponsored studies.904 Furthermore, Riverkeeper asserts that its analysis is by no means a worst-case scenario.

Rather, it relies in large part on Entergys own analysis, making only limited changes based on findings in studies by Entergy, previous licensees of the Indian Point reactors, and the NRC Staff.905 Riverkeeper alleges that Entergys Answer ignores the process used to generate the alternate analysis, which is presented in one of the documents Riverkeeper submits in support of the contention.906 Regarding the part of Riverkeeper EC-2 that addresses spent fuel pool fires, Riverkeeper argues that NEPA requires the NRC to ensure that the results of any rulemaking are plugged in to specific licensing decisions pending before the Commission.907 902 NRC Staff Answer at 111.

903 Id. at 111-12.

904 Riverkeeper Reply at 48.

905 Id.

906 Id.

907 Id. at 54.

-180-According to Riverkeeper, admitting this part of the contention and holding it in abeyance until the rulemaking is resolved would provide a mechanism for doing so.908 At Oral Argument, the Board offered Riverkeeper the opportunity to submit a written response to certain technical questions that could not be answered adequately without further consultation with Riverkeepers experts.909 Riverkeeper filed its response to that request, which focused on issues related to the source term, on April 7, 2008.910 The NRC Staff filed its response to this filing on April 21, 2008, at which time it stated that it believed the contention -

even as clarified by Riverkeepers latest filing - was inadmissible.911 ii. Board Decision - Riverkeeper EC-2 The Board finds that Riverkeeper EC-2 is inadmissible in this proceeding. In doing so, we address the contention in three parts: spent fuel pool fires, terrorist attacks, and issues related to containment bypass accidents.

Riverkeeper is correct in noting that spent fuel pool fires are Category 1 environmental issues and, therefore, are addressed generically in the GEIS for license renewals.912 The Commission reaffirmed this designation in Vermont Yankee/Pilgrim.913 NRC Regulations state that no rule or regulation of the Commission, or any provision thereof . . . is subject to attack by 908 Id.

909 Tr. at 632-33.

910 Riverkeeper, Inc.s Response to Atomic Safety and Licensing Board Questions Regarding Contention EC-2 (Apr. 7, 2008) [hereinafter Riverkeeper Response to EC-2 Questions].

911 NRC Staffs Reply to Riverkeeper, Inc.s Response to the Licensing Boards Questions Regarding Contention EC-2 (SAMAs) (Apr. 21, 2008) [hereinafter NRC Staff Reply to Riverkeeper Response].

912 Table B-1.

913 Vermont Yankee/Pilgrim, CLI-07-3, 65 NRC at 16.

-181-way of discovery, proof, argument, or other means in any adjudicatory proceeding . . . .914 For this reason, we find that this aspect of Riverkeeper EC-2 is outside the scope of a license renewal proceeding.

As the Commission noted in Vermont Yankee/Pilgrim, a petition for rulemaking that addresses issues related to spent fuel pool fires would be a more appropriate venue to seek relief for resolving . . . generic concerns about spent fuel fires than a site-specific contention in an adjudication.915 Riverkeeper has requested that we nevertheless admit EC-2 and hold it in abeyance pending resolution of multiple petitions for rulemaking that addresses spent fuel pool fires.916 We decline to do so. In the event that the petitions are denied, the current rule will remain in force, and any attack on the validity of that rule will be impermissible in this proceeding as a matter of law. In the event that the Commission changes the rule, petitioners will have the opportunity to file new contentions at that time.

With respect to terrorist attacks, the Board has previously discussed its adherence to the Commission precedent established in Oyster Creek.917 The Commission maintains that terrorism is unrelated to the aging issues that license renewal proceedings are meant to address.918 In addition, the Commission says, license renewals are not related to any change in the risk of terrorist attack, and the terrorism issue is therefore not material to the decision the Board must make in this proceeding.919 Recognizing this, Riverkeeper has requested that the 914 10 C.F.R. § 2.335(a).

915 Vermont Yankee/Pilgrim, CLI-07-3, 65 NRC at 17.

916 Riverkeeper Petition at 62.

917 Oyster Creek, CLI-07-8, 65 NRC at 128-30; see also supra Part VI.AA.ii, Part VII.A.ii.

918 Oyster Creek, CLI-07-8, 65 NRC at 128-29.

919 Id. at 130.

-182-Board refer this issue to the Commission for reconsideration of its decision in Oyster Creek.920 We decline to do so, finding no justification for the suggested action in Riverkeepers argument.

Finally, we turn to the question of accidents involving containment bypass via induced failure of steam generator tubes. Entergy notes, correctly, that this aspect of Riverkeeper EC-2 is not categorically outside the scope of a license renewal proceeding.921 In its Petition, Riverkeeper alleged that Entergys estimate of accident consequences were too low by a factor of three or more, primarily because Entergy (1) used an unusually low source term; (2) failed to consider uncertainties due to meteorologic variation; and (3) used an inappropriate dose conversion factor that resulted in an underestimate of costs.922 At Oral Argument, the Board requested additional briefing of the first of these issues.923 In its response to the Boards request, Riverkeeper explains its view that Entergys SAMA analysis for such accidents employs a source term - which Riverkeeper defines as a description of the fraction of the radioactive contents of the reactor core that is assumed to be released to the environment during a severe accident - that is too low, and that the projected consequences of a severe accident are therefore too low.924 In particular, Riverkeeper claims that Entergy should have used a source term based on the methodology used in NUREG-1465, which would result in higher projected accident costs, rather than the source term based on the MAAP code.925 Additionally, Riverkeeper says, Entergy may have used problematic 920 Riverkeeper Petition at 64.

921 Entergy Riverkeeper Answer at 112.

922 Riverkeeper Petition at 68.

923 Tr. at 632-33.

924 Riverkeeper Response to EC-2 Questions at 1-2.

925 Id. at 3.

-183-assumptions about the release of radioactive material from the reactor core into containment, from containment into the environment, or both.926 While Entergy did not respond, the NRC Staff response is that Riverkeeper has failed to show that Entergys use of the MAAP code is improper, and that this aspect of Riverkeeper EC-2 is therefore inadmissible.927 According to the NRC Staff, NUREG-1465 addresses only releases into containment and assumes that containment remains intact but leaks.928 Therefore, its methodology does not apply in the scenario in which Riverkeeper would like to apply it, that of early energetic containment breach.929 Furthermore, the NRC Staff says, the MAAP code that Entergy employs does include the scenario raised by Riverkeeper, along with other accident scenarios all weighted in proportion to their probabilities of occurrence.930 In light of this additional briefing related to the source term, and considering the contention pleading rules of 10 C.F.R. § 2.309(f)(1), the Board rejects this aspect of Riverkeeper EC-2 on the ground that it fails to demonstrate a genuine dispute with the applicant on a material issue of law or fact. We take no position on Entergys allegation that this aspect of the contention is a request that Entergy be required to consider worst-case scenarios.931 It is sufficient that Riverkeeper has failed to make the minimal demonstration, as required by contention admissibility rules, that Entergys ER analysis fails to meet a statutory or regulatory requirement. Presentation of an alternative analysis is, without more, insufficient to support a contention alleging that the original analysis failed to meet applicable requirements. The same 926 Id. at 3-4.

927 NRC Staff Reply to Riverkeeper Response at 1.

928 Id.

929 Id. at 2.

930 Id.

931 See Entergy Riverkeeper Answer at 112-16.

-184-argument applies to Riverkeepers arguments related to meteorologic variation and the dose conversion factor.

Because all three parts of Riverkeeper Contention EC-2 are inadmissible, the Board rejects this contention in its entirety.932 E. Riverkeeper EC-3 FAILURE TO ADEQUATELY ANALYZE IMPACTS OF SPENT FUEL POOLS. ENTERGYS ER FAILS TO SATISFY THE REQUIREMENTS OF NEPA, 42 U.S.C. § 4332 ET SEQ., AND NRC REGULATIONS IMPLEMENTING NEPA, INCLUDING 10 C.F.R. § 51.45(c) AND (e).

BECAUSE THE ER DOES NOT ADEQUATELY ASSESS NEW AND SIGNIFICANT INFORMATION REGARDING THE ENVIRONMENTAL IMPACTS OF THE RADIOACTIVE WATER LEAKS FROM THE INDIAN POINT 1 AND INDIAN POINT 2 SPENT FUEL POOLS ON THE GROUNDWATER AND THE HUDSON RIVER ECOSYSTEM.933

i. Background - Riverkeeper EC-3 Riverkeepers EC-3, which is similar to NYS-28 and Clearwater EC-1, contends that Entergys LRA fails to satisfy NEPA requirements and NRC Regulations implementing NEPA that are contained in 10 C.F.R. Part 51 because its ER does not adequately assess new and significant information regarding the environmental impacts of radionuclide leaks from the IP1 and IP2 spent fuel pools into the groundwater and Hudson River ecosystem.934 While Riverkeeper admits that Entergy has identified the groundwater contamination in its ER, the Petitioner challenges the Applicants conclusion that the impacts are small and therefore not significant for purposes of NEPA.935 Because NRC Regulations do not specifically define significant, Riverkeepers assertion is based on the lengthy description of the factors to be considered when determining significance that are presented in the Council on Environmental 932 NYS expressed its intent to adopt Riverkeeper EC-2. See NYS Petition at 311.

However, given that this contention has been ruled inadmissible, it cannot be adopted.

933 Riverkeeper Petition at 74.

934 Id. at 74.

935 Id. at 76.

-185-Quality (CEQ) Regulations implementing NEPA.936 According to Riverkeeper, because it fails to consider these criteria, Entergys ER is inadequate in several respects including: (1) the claim that the IP2 spent fuel pool is no longer leaking; (2) the conclusion that only low concentrations of radionuclides have been detected in the groundwater; and (3) the current and future impacts of the groundwater contamination on the Hudson River fish and shellfish.937 As a result of these deficiencies, Riverkeeper contends that it is uncertain whether Entergys assessment of new and significant information is accurate and complete enough to enable the Commission to determine whether the impacts of the proposed action are of such magnitude that license renewal would be unreasonable.938 In its Answer, Entergy opposes the admission of Riverkeeper EC-3 because Riverkeeper (1) has raised issues outside the scope of license renewal by suggesting stricter requirements than imposed by the regulations, (2) fails to provide adequate factual or expert support, and (3) fails to establish a genuine dispute on a material fact or law. Entergy admits that an ER for an LRA is required to address new and significant information for either Category 1 or Category 2 issues.939 However, as part of its extensive discussion of the merits of this contention, Entergy claims that its ER appropriately characterized the impacts due to spent fuel pool leaks as new but not significant, even though the characterization of the groundwater impacts was ongoing when the ER was submitted.940 Entergy represents that the hydrogeological investigation of the Indian Point site is now complete,941 confirms the 936 Id. at 77-79.

937 Id. at 80-86.

938 Id. at 79.

939 Entergy Riverkeeper Answer at 140.

940 Id. at 140-44.

941 Id. at 145 n.618 (referencing Investigation Report); see also supra notes 617-20 and (continued...)

-186-conclusions in the ER, and included an assessment of the dose exposure to fish and invertebrates in the Hudson River.942 Entergy discusses the status of the current leaks and the merits of its conclusions regarding the resulting impacts as they relate to the three bases proffered by Riverkeeper.943 The NRC Staff also opposed admission of this contention claiming that it raises issues outside the scope of the proceeding and constitutes an impermissible challenge to NRC Regulations by raising an issue that has already been addressed generically by the Commission.944 The NRC Staff claims that Riverkeeper erroneously asserts deficiencies in Entergys new and significant information relating to the radiological leaks from the spent fuel pools, arguing that the Petitioner must show, and has not, that the Applicants information invalidates the conclusions of the GEIS.945 Discounting the factual information provided by the Petitioner, the NRC Staff asserts that Riverkeepers claim that Entergy failed to assess the resulting impacts of the leaks on Hudson River ecosystem lacks a necessary predicate and is, thus, unsupported.946 In its Reply, Riverkeeper asks the Board to disregard the recent Investigation Report, positing that all parties should be required to rely on the LRA and the ER in supporting their positions on contention admissibility, and that it is patently unfair to allow the Applicant the 941

(...continued) accompanying text.

942 Entergy Riverkeeper Answer at 147.

943 Id. at 147-50.

944 NRC Staff Answer at 112.

945 Id. at 113 (citing Shearon Harris, LBP-07-11, 65 NRC at 64 n.83; Pilgrim, LBP-06-23, 64 NRC at 288).

946 Id.

-187-opportunity to cure application deficiencies with attachments to its Answer.947 Riverkeeper goes on to state that both the NRC Staff and Entergy have failed to show that Riverkeeper EC-3 is inadmissible. Contrary to the assertion that it is challenging a Category 1 issue, Riverkeeper points out that EC-3 never claimed that the leaks are new information regarding a Category 1 issue, but that the leaks represent a previously unanticipated type of environmental impact that is neither Category 1 or Category 2, and thus must be addressed under 10 C.F.R.

§ 51.53(c)(3)(iv).948 Depriving a party of the opportunity to address issues not previously defined in the GEIS would, in Riverkeepers opinion, violate the NEPA requirement to address all the impacts of a proposed action. The Petitioner goes on at length to discuss the merits of the contention, which it asserts helps to show that the issue statement is within the scope of, and not an attack on, current regulations.949 Riverkeeper also highlights its factual support for EC-3, specifically for its assertions that the impacts are higher than alleged by Entergy and that the appropriate level of impact has not been assessed in the long-term impacts to the Hudson River ecology.950 ii. Board Decision - Riverkeeper EC-3 The Board admits Riverkeeper EC-3 as it relates to the environmental impacts from the spent fuel pool leaks. Even though the NRC Staff claims that Riverkeepers allegations are an impermissible challenge to the regulations, Entergy is required to address new and significant 947 Riverkeeper Reply at 61.

948 Id. at 63.

949 Id. at 63-70.

950 Id. at 70-76. Riverkeeper points out that it used the EPA drinking water standards as a conservative benchmark for comparison purposes, for which they are also used by Entergy and the NRC Staff in their own analyses of the spent fuel leaks; it provided supporting data showing that high levels of tritium, strontium-90 and cesium-137 have been detected in the groundwater; it relied on fish samples to show elevated levels of radionuclides along with internal Entergy memoranda that suggest that further studies on fish contamination were required, etc.

-188-information for either Category 1 or Category 2 issues in its ER for a LRA.951 Leaks from the spent fuel pools are new information which Entergy asserts is not significant because the radiological concentrations are small and the resulting dose exposures to the public are minimal.952 Riverkeeper, however, contends that the release concentrations are not low and that Entergy has failed to assess the impacts of these levels of releases on the Hudson River ecosystem.953 Based on factual statements presented by Riverkeeper, it is uncertain whether Entergys conclusions contained in the ER regarding the significance of the groundwater contamination are sufficient for purposes of satisfying NEPA and NRC Regulations.

There is a genuine issue regarding the significance of the new information, including the data and conclusions presented in the recently submitted hydrogeologic report relating to the radiological leaks from the spent fuel pools that is undisputedly within the scope of the LRA proceedings. We believe that Riverkeeper has raised a genuine issue, within the scope this proceeding, as to whether Entergys ER contains sufficient information to aid the Commission in preparation of its EIS. For this reason, the Board admits Riverkeepers contention EC-3 to litigate this material dispute at the hearing. We also note that Riverkeeper EC-3 will be consolidated with Clearwater EC-1.

IX. CLEARWATER CONTENTIONS A. Clearwater EC-1 FAILURE OF ER TO ADEQUATELY ADDRESS THE IMPACTS OF KNOWN & UNKNOWN LEAKS954 951 Entergy Riverkeeper Answer at 140.

952 Id. at 144.

953 Riverkeeper Petition at 74-75.

954 Clearwater Petition at 18.

-189-

i. Background - Clearwater EC-1 Clearwater EC-1, which is similar to Riverkeeper EC-3 and NYS-28, contends that Entergys LRA does not comply with NEPA in that its ER fails to address adequately new and significant information concerning environmental impacts of radioactive substances that are leaking from spent fuel pools. By failing to do so, according to Clearwater, Entergys ER does not contain the information needed by the Commission to perform its independent analysis required by 10 C.F.R. Part 51.955 Clearwater expressly seeks to adopt NYS-28 and shares the concerns of Riverkeeper EC-3. Clearwater repeats much of what was stated by Riverkeeper, including allegations that many of Entergys conclusions in its ER are not accurate (e.g., IP2 is no longer leaking, and only low concentrations of radionuclides have been detected in the groundwater). Clearwater also alleges that Entergy erroneously concluded that the impacts from the leaks would be small and therefore insignificant, and that the ER does not evaluate the impacts of the leaks upon fish in the Hudson River.956 While not designating them as expert witnesses, Clearwater includes statements attributed to NYSDEC personnel which discuss the potential groundwater flow paths for leaks, the types and concentrations of radionuclides detected in the groundwater, and the fish sampling performed to date.957 Clearwater concludes by contending, as NYS did, that groundwater leaks have far exceeded anything the NRC reviewed in 1996 during the development of the GEIS, and that the extent of leaks, number of radionuclides released, uniqueness of the site, and pathway to the Hudson River mean that the impacts are significant and reviewable under NEPA in this proceeding.958 955 Id.

956 Id. at 19-20.

957 Id. at 22-23.

958 Id. at 23.

-190-Entergy opposes the admission of this contention for many of the same reasons it opposed Riverkeeper EC-3 and NYS-28, i.e., that the contention (1) raises issues outside the scope of license renewal by suggesting stricter requirements than those imposed by the regulations; (2) lacks adequate factual or expert support; and (3) fails to establish a genuine dispute on a material issue of law or fact.959 Entergy maintains that Section 5.0 of the ER appropriately stated that the releases into the environment from the spent fuel leaks were potentially new but not significant per 10 C.F.R.

§ 51.53(c)(3)(iv).960 Specifically, Entergy estimated that the total body dose caused by the groundwater contamination is well below the NRC limit, and therefore concluded that the impact would be small and that the discovery was not significant.961 Entergy notes that the ongoing characterization of the impact to groundwater referenced in its ER has been completed and states that at no time did the results of that analysis yield any indication of potential adverse environmental or health risk . . . .962 Furthermore, Entergy states that while there have been leaks into the groundwater, the facility does not use the groundwater on-site and the groundwater is not associated with any drinking water pathway; for these reasons, EPA limits on drinking water are not applicable.963 Entergy also argues that, based on the information in the ER and in the Investigation Report, all of Clearwaters issues in this contention are either moot, invalid, or outside the scope of this proceeding, and that Clearwater has not provided adequate support for Clearwater EC-1.964 959 Entergy Clearwater Answer at 34.

960 Id. at 35.

961 Id. at 37-38.

962 Id. at 39; see supra notes 617-20 and accompanying text.

963 Entergy Clearwater Answer at 37.

964 See id. at 42-47.

-191-The NRC Staff asserts that Clearwater EC-1 is inadmissible for the same reasons as NYS-28 and Riverkeeper EC-3, i.e., it is an impermissible challenge to Commission regulations, raises an issue beyond the scope of a license renewal proceeding, lacks specificity, and fails to raise a dispute as to a material issue of law or fact.965 In addition, the NRC Staff claims that the NYSDEC statements referenced in the contention do not contravene any portion of the LRA, and are beyond the scope of this proceeding in that they deal with issues regarding the current operation of the plants.966 In its Reply, Clearwater asserts it has presented serious questions that demonstrate that Entergys ER is insufficient and that these questions should be resolved at hearing.967 Clearwater points out that New York State law requires that discharge of waste shall not impair water below its best use - which for groundwater is its use as a potable water supply.968 Clearwater states its belief that the leaks are symptomatic of an aging facility whose components are subject to and showing increasing signs of aging.969 In support of the need to address the impacts of the contamination on the Hudson River, Clearwater notes that four municipalities currently take drinking water from the Hudson River and that there is a plan in development to build a large water intake facility to serve Rockland County.970 ii. Board Decision - Clearwater EC-1 965 NRC Staff Answer at 90; see supra Parts VI.BB.i, VIII.E.i.

966 See NRC Staff Answer at 90-91.

967 Clearwater Reply at 4.

968 Id. Clearwater uses Part 701 of New York States Classification - Surface Waters and Groundwaters, as support. Specifically, it quotes Section 701.1 - General Conditions Applying to All Water Classification, and Section 701.10 - Class GA Fresh Groundwaters. Id.

969 Id.

970 Id. at 4-5.

-192-The Board admits Clearwaters EC-1. The Petitioner has addressed the regulatory criteria and raised a genuine dispute regarding the significance of the environmental impacts from the spent fuel pool leaks. By using similar arguments to those presented in Riverkeepers EC-3, Clearwater has presented sufficient information and expert opinion to question whether Entergys conclusions, contained in the ER regarding the significance of the groundwater contamination, are incomplete and legally insufficient for purposes of satisfying 10 C.F.R. Part

51. Although Entergy estimates that the total body dose caused by the groundwater contamination is well below the NRC limit, there is still the question as to whether the maximum groundwater impact (and, in turn, the maximum dose) has been determined for the site. Hence, the contention is not an impermissible challenge to Commission regulations.

There are serious factual differences between the positions of the Applicant and Petitioner regarding the radiological leaks from the spent fuel pools and whether that is within the scope of the LRA proceedings. These disputes need to be resolved through an evidentiary hearing. Clearwater EC-1 is admitted. We also note that Clearwater EC-1 will be consolidated with Riverkeeper EC-3.

B. Contention EC-2 ENTERGYS ENVIRONMENTAL REPORT FAILS TO CONSIDER THE HIGHER THAN AVERAGE CANCER RATES AND OTHER HEALTH IMPACTS IN COUNTIES SURROUNDING INDIAN POINT.971 971 Clearwater Petition at 24.

-193-

i. Background - Clearwater EC-2 Clearwater EC-2 alleges that Entergys ER does not adequately address the impact on the health of the local population from the relicensing of IP2 and IP3.972 Clearwater represents that it has presented data that constitutes new and significant information showing higher than average cancer rates among people living in the area around Indian Point.973 Clearwater suggests that this information justifies the contentions admissibility under 10 C.F.R.

§ 51.53(c)(3)(iv), even though the radiological impact of continued operation of the facility is a Category 1 issue pursuant to Table B-1.974 In support of its position, Clearwater relies on a report prepared by Joseph Mangano,975 which purports to show that the continued operation of Indian Point would raise the risk of exposure to radioactivity.976 Clearwater contends that Mr.

Manganos research shows that emissions from Indian Point are likely causing increased rates of cancer incidence for adjacent populations [and that] his analysis raises critical and troubling empirically-based questions about potential negative health impacts caused by the Indian Point facility and demands further study.977 Additionally, Clearwater suggests that Mr. Manganos work exposes potentially significant environmental justice issues because areas with high minority and poverty levels had higher than expected cancer rates.978 972 Id.

973 Id.

974 Id. at 25.

975 Id. at 26; see also Exh. 4, Declaration of Joseph J. Mangano, Attach. A, Public Health Risks of Extending Licenses of the Indian Point 2 and 3 Nuclear Reactors (Nov. 26, 2007) [hereinafter Mangano Report].

976 Clearwater Petition at 26.

977 Id. at 28-29.

978 Id. at 29.

-194-Entergy opposes the admission of Clearwater EC-2 for several reasons. First, according to Entergy, the Mangano Report only raises generic issues that are inappropriate challenges to the Commissions regulations.979 Entergy contends that the issue raised in Clearwater EC-2 is the same issue rejected by the Licensing Board in McGuire/Catawba,980 where that Board found a similar contention raised a Category 1 issue that did not require site-specific consideration in a license renewal proceeding.981 Entergy argues that because Clearwater fails to provide any support for the notion that these are not Category 1 issues, the contention is outside of the scope of license renewal proceedings. Furthermore, Entergy asserts that its most recent reports regarding radioactive releases show that Indian Point operations did not release more radionuclides than the regulations allow.982 Finally, Entergy maintains that the contention is based on speculation and does not raise a dispute of a material fact.983 Entergy criticizes the Mangano Report and associated Declaration for being based on dated information that has been used in support of similar contentions rejected in other proceedings, as well as using various facts not at issue in this proceeding.984 Entergy points out that Mr. Manganos analyses and hypotheses with respect to health effects previously have been rejected by the NRC, and discredited by the State of New Jersey, Commission on Radiation Protection, Department of Environmental Protection.985 979 See Entergy Clearwater Answer at 50-55.

980 Id. at 51 (citing Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2, Catawba Nuclear Station, Units 1 and 2), LBP-02-4, 55 NRC 49, 85-87 (2002)).

981 Id.

982 Id. at 56.

983 Id. at 57.

984 Id.

985 Id. at 57-58 (citations omitted).

-195-The NRC Staff opposes the admission of Clearwater EC-2 because, in its view, it presents an impermissible challenge to NRC Regulations and does not have adequate factual support.986 The NRC Staff asserts that Clearwater is challenging the GEIS and 10 C.F.R. Part 51 in contending that Entergy must make a site-specific determination regarding the environmental impacts from radiation exposure during the renewal period, and that a challenge to the regulations is impermissible under 10 C.F.R. § 2.335(b).987 Furthermore, the NRC Staff maintains that the evidence presented by Clearwater is not new and significant, or relevant.988 Finally, the NRC Staff argues that the Mangano Report is inadequate, as it does not demonstrate the special circumstances required to permit a site-specific reconsideration of the Category 1 determination regarding radiation exposures.989 The NRC Staff asserts that Mr.

Manganos assertions are not unique to Indian Point.990 ii. Board Decision - Clearwater EC-2 The Board finds that Clearwater EC-2 raises a Category 1 environmental issue regarding the radiological impact of the continued operation of the Indian Point facility that is adequately addressed by the GEIS, and is thus outside the scope of this proceeding.

Clearwater has not demonstrated any special circumstances at Indian Point that are sufficiently different from those that are present at other nuclear power plants to warrant site-specific treatment. Clearwater EC-2 thus is rejected.

986 NRC Staff Answer at 93.

987 Id. at 93-94 988 Id. at 94.

989 Id.

990 Id. at 94-95.

-196-C. Contention EC-3 ENTERGYS ENVIRONMENTAL REPORT CONTAINS A SERIOUSLY FLAWED ENVIRONMENTAL JUSTICE ANALYSIS THAT DOES NOT ADEQUATELY ASSESS THE IMPACTS OF INDIAN POINT ON THE MINORITY, LOW-INCOME AND DISABLED POPULATIONS IN THE AREA SURROUNDING INDIAN POINT.991

i. Background - Clearwater EC-3 Clearwater EC-3 alleges that Entergys ER does not meet the requirements of NEPA because its methodology is flawed, and its analysis is incomplete and limited to questionable interpretations and presentation of data.992 According to Clearwater, the ER fails to acknowledge or describe potential impacts upon the large minority and low-income populations that surround the plant.993 Clearwater asserts that the Indian Point facility causes a disparate impact on minority communities for cancer, that subsistence fishermen who fish in the Hudson River are at a disparate risk of cancer from fish contaminated by radiation released into the river by Entergy, and that there is a large minority, low-income and disabled population in special facilities (including hospitals and prisons) within fifty miles [of Indian Point] who will be severely impacted if there is an evacuation from the area . . . .994 Clearwater contends that NEPA mandates that the NRC must consider socioeconomic impacts that have a nexus to the environment.995 Although the ER acknowledges that minority 991 Clearwater Petition at 31.

992 Id.

993 Id.

994 Id.

995 Id. at 33. Clearwater adds that the Commission acknowledged in the LES case that the NRC does consider EJ issues using disparate impact analysis. The NRCs goal is to identify and adequately weigh, or mitigate, effects on low-income and minority communities that become apparent only by considering factors peculiar to those communities. Louisiana Energy Services (Claiborne Enrichment Center), CLI-98-3, 47 NRC 77, 100 (1998). Clearwater also noted that the NRC issued a policy statement that stated that EJ is a tool, within the normal NEPA context, to identify communities that might otherwise be overlooked and identify impacts (continued...)

-197-and low-income populations exist in the vicinity of Indian Point,996 according to Clearwater, it wrongly concludes that there does not need to be an environmental justice (EJ) analysis because there are no off-site impacts.997 Clearwater argues that this conclusion is mistaken,998 and maintains that (1) the EJ and demographic methodology is both flawed and incomplete;999 (2) the ER does not adequately acknowledge the minority and low-income communities near Indian Point or assess the impact of the facility on them;1000 (3) these populations may be more susceptible than other populations to cancer from emissions from the Indian Point facility;1001 (4) the ER ignores subsistence fishing in the Hudson River;1002 (5) low-income populations will be more impacted by an evacuation due to an accident at Indian Point;1003 (6) residents in special facilities (hospitals, long-term care facilities, prisons) will be more impacted by their inability to be evacuated in the event of an accident at Indian Point;1004 and (7) the ER ignores EJ issues relating to the impact on Native American populations from the production, use and 995

(...continued) due to their uniqueness as part of the NRCs NEPA review process. Policy Statement on the Treatment of Environmental Justice Matters in NRC Regulatory and Licensing Actions, 69 Fed.

Reg. 52,040, 52,047 (Aug. 24, 2001).

996 Clearwater Petition at 35 (citing ER § 2.6.2).

997 Id. (citing ER § 4.22.5).

998 Id. at 36.

999 See id. at 36-38.

1000 See id. at 38-41.

1001 See id. at 41-42.

1002 See id. at 42-47.

1003 See id. at 47-48.

1004 See id. at 48-53.

-198-storage of radioactive fuel as Native Americans are disproportionately impacted by the nuclear fuel life cycle.1005 Entergy opposes the admission of Clearwater EC-3 because, in Entergys view, it is outside the scope of this proceeding to the extent it deals with emergency planning and with issues dealt with in the GEIS.1006 Entergy asserts that its EJ analysis is guided by the Final Policy Statement on the Treatment of Environmental Justice Matters in NRC Regulatory and Licensing Actions,1007 which concludes that if no significant and adverse impacts are identified in the EJ analysis a detailed analysis of disparate impacts is not appropriate.1008 Thus, according to Entergy, an EJ contention must show that there are significant environmental impacts and those impacts disproportionately affect EJ populations.1009 Entergy asserts that Clearwaters Petition fails to identify a significant adverse impact from the relicensing of Indian Point or to provide evidence of a disproportionate impact on EJ populations.1010 Entergy maintains that the issues raised in Clearwater EC-3, although purported to be EJ issues, are actually emergency planning issues outside the scope of the proceeding because the contention deals with evacuation of EJ populations during an emergency.1011 Entergy also asserts that Clearwaters concerns regarding the impact on Native American communities are Category 1 issues and inadmissible here.1012 1005 See id. at 53-55.

1006 Entergy Clearwater Answer at 61.

1007 Id. at 61-62 (citing 69 Fed. Reg. 52,040).

1008 Id. at 62 (citing 69 Fed. Reg. at 52,047).

1009 See id. at 62-63.

1010 See id. at 67-71.

1011 Id. at 64.

1012 Id. at 65.

-199-The NRC Staff opposes the admission of Clearwater EC-3 because, in its view, the contention does not provide adequate support to demonstrate a genuine dispute regarding the LRAs EJ analysis, and because it raises issues, including evacuation plans and uranium fuel cycle issues, that are outside the scope of the proceeding.1013 The NRC Staff maintains that Clearwater provides no expert opinion or factual support to substantiate its claim that the ER contained flawed methodology and failed analysis, nor does Clearwater demonstrate how the ER does not meet the EJ requirements.1014 The NRC Staff also asserts that Clearwater fails to show that there are disproportionate impacts on the EJ communities around Indian Point.1015 The NRC Staff asserts, as does Entergy, that the EJ concerns raised in Clearwater EC-3 about Native American populations are outside the scope of the proceeding because they are Category 1 issues.1016 In its Reply, Clearwater asserts that if EJ issues are not reviewed in this proceeding they never will be properly addressed.1017 Clearwater maintains that it has demonstrated in its Petition the disproportionate impacts of the relicensing on EJ communities.1018 Clearwater also makes the point, in response to objections to its position regarding the effect of waste storage, that relicensing will lead to more waste until there is a permanent waste storage facility.1019 ii. Board Decision - Clearwater EC-3 1013 NRC Staff Answer at 96.

1014 Id. at 98.

1015 Id.

1016 Id. at 98-99.

1017 Clearwater Reply at 6.

1018 Id. at 7.

1019 Id.

-200-NEPA, which mandates a hard look at the environmental impact of proposed federal actions, is the only legal grounds for an admissible contention relating to the EJ matters raised in this contention.1020 In the context of this proceeding, Petitioners such as Clearwater may properly raise EJ contentions seeking corrections of significant omissions from the Applicants ER.1021 Under NEPA, the purpose of an EJ review is to insure that the Commission considers and publicly discloses environmental factors peculiar to minority or low-income populations that may cause them to suffer harm disproportionate to that suffered by the general population.1022 The goals of NEPA are to inform federal agencies and the public about the environmental effects of proposed projects.1023 Environmental harm is NEPAs core concern. Accordingly, the essence of an EJ claim under NEPA is disparate environmental harm to a minority or low-income population,1024 and a disparate impact analysis is the principal tool for advancing EJ under NEPA.1025 Accordingly, to be admissible in this proceeding an EJ contention must point to significant, adverse, environmental impacts that may result from the relicensing of Indian Point that will fall disproportionately on disadvantaged (minority and low-income) populations.1026 1020 See 69 Fed. Reg. at 52,044.

1021 System Energy Resources, Inc. (Early Site Permit for Grand Gulf ESP Site),

CLI-05-4, 61 NRC 10, 13 (2005).

1022 Id.

1023 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 339 (1989).

1024 Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), CLI-02-20, 56 NRC 147, 153 (2002) (citing LES, CLI-98-3, 47 NRC at 106-10).

1025 LES, CLI-98-3, 47 NRC at 100.

1026 69 Fed. Reg. at 52,047: Southern Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), LBP-07-3, 65 NRC 237, 262 (2007).

-201-Clearwater contends that there will be a significant adverse impact in three areas that will disproportionately impact disadvantaged populations and that Entergys failure to discuss these impacts is a significant omission from the Applicants ER.

First, Clearwater contends that the continued operation of the Indian Point facility will result in additional cancers that will disproportionately impact poor and minority populations.1027 Conclusory assertions or mere speculation, however, are insufficient to support the admission of a contention1028 and, with regard to this allegation, Clearwater has offered nothing other than conclusory assertions and speculation. Clearwater states that the cancer rates in the area surrounding Indian Point are above the national average, but offers no evidence tying the Indian Point facility to any increase in the incidents of cancer. Likewise, Clearwater states that

[m]inority groups in the four-county region are more vulnerable to the adverse impacts of radiological and nuclear plant-induced chemical pollution in the environment than is the case for the general minority or total population of the United States,1029 but does not support this conclusion with facts or expert opinion. The Mangano Report, which is cited by Clearwater in its Petition, simply does not support these conclusions.

Next, Clearwater speculates that the low-income populations in the lower Hudson Valley region who engage in subsistence fishing will be likely to ingest radionuclides and other toxic substances generated by the reactors in greater proportions than the population at large.1030 But, the Petitioner presents no facts which indicate that any subsistence fisherman has consumed, or will consume, a fish that has been contaminated by radionuclides originating at the Indian Point facility. This speculation does not support the admissibility of a contention.

1027 Clearwater Petition at 41-42.

1028 Vogtle, LBP-07-3, 65 NRC at 253 (citing Fansteel, CLI-03-13, 58 NRC at 203).

1029 Clearwater Petition at 41-42.

1030 Id. at 42.

-202-Finally, Clearwater identifies minority and low-income populations located in numerous institutions located near Indian Point who would not be evacuated in the event of a severe accident.1031 Specifically, Clearwater identifies Sing Sing, a maximum security correctional facility located less than ten miles from Indian Point that houses more than 1,750 predominately minority inmates.1032 Clearwater also identifies twenty five other prisons and jails located within fifty miles of Indian Point.1033 Clearwater then contends that Entergys ER is deficient because it does not address the impact of a severe accident at Indian Point on these EJ populations.1034 Both Entergy and the NRC Staff attempt to dismiss this contention as an emergency planing issue which is outside the scope of a license renewal proceeding.1035 (The Commission noted in Millstone that emergency planing is, by its very nature, not germane to age-related degradation.1036) However, Clearwater EC-3 is a Part 51 Environmental Contention brought under NEPA. It is not a Part 54 Safety Contention based on emergency planning. Clearwater has not contended that Entergys emergency plan is deficient. Rather the Petitioner has contended that Entergys ER is deficient because it does not supply sufficient information from which the Commission may properly consider, and publicly disclose, environmental factors that may cause harm to minority and low-income populations that would be disproportionate to that suffered by the general population.1037 We agree.

1031 Id. at 47-53.

1032 Id. at 48.

1033 Id.

1034 Id. at 53.

1035 NRC Staff Answer at 89; Entergy Clearwater Answer at 63-64.

1036 Millstone, CLI-05-24, 62 NRC at 561.

1037 Grand Gulf, CLI-05-04, 61 NRC at 13.

-203-Clearwater has raised a genuine issue regarding the adequacy of Entergys ER for Indian Point. As limited above, Clearwater EC-3 is admitted.1038 D. Clearwater EC-4 INADEQUATE ANALYSIS OF SEVERE ACCIDENT MITIGATION ALTERNATIVES.1039

i. Background - Clearwater EC-4 Clearwater EC-4 contends that Entergys SAMA analysis is incomplete, inaccurate and is not adequately based upon scientific and probabilistic analysis.1040 Specifically, Clearwater avers that Entergys SAMA analysis does not adequately consider the impacts of a possible terrorist attack, a radiological event, or an evacuation at Indian Point, particularly the impact on the EJ communities discussed in Clearwater EC-3 and EC-6.1041 Clearwater also seeks to adopt NYS-12 through NYS-15 pursuant to 10 C.F.R. § 2.309(f)(3), and expresses shared concerns raised by Riverkeepers EC-2.1042 Entergy asserts that Clearwater, without an admissible contention of its own, does not meet the requirements for adopting the contentions of other parties in 10 C.F.R.

§ 2.309(f)(3).1043 Entergy also asserts that Clearwater EC-4 is not admissible because it does not provide facts or expert opinion beyond that provided in the contentions of other parties it is 1038 NEPA does not require that a federal agency take any particular action. It does, however, require that the federal agency take a hard look at the environmental impact its proposed action could have before the action is taken, and to document what it has done. As noted above, the goals of NEPA are to inform federal agencies and the public about the environmental effects of proposed projects. See Robertson, 490 U.S. at 339.

1039 Clearwater Petition at 56.

1040 Id.

1041 Id.

1042 Id.

1043 Entergy Clearwater Answer at 72.

-204-attempting to adopt. Entergy also asserts that the contention does not establish a genuine dispute on a material issue of law or fact.1044 The NRC Staff opposes the admission of the contention because it is conclusory and adds nothing to the other contentions it references and seeks to incorporate.1045 The NRC Staff incorporates its answers to NYS-12 through NYS-15, Riverkeepers EC-2 and Clearwaters EC-3 and EC-6.1046 Finally, the NRC Staff asserts that Clearwaters attempt to adopt the contentions of other Petitioners does not meet the 10 C.F.R. § 2.309(f)(3) requirements.1047 In its Reply, Clearwater provides no response to the Answers of Entergy and the NRC Staff. During Oral Argument, Clearwater stated that it was not attempting to adopt Riverkeepers EC-2 at this time but reserved the right to do so.1048 Also during Oral Argument, Clearwater agreed that it had offered no support of its own for this contention but was relying on the factual and expert basis supplied by NYS for NYS-12 through NYS-15 and did refer to its own EC-3 and EC-6.1049 1044 Id. at 72-73.

1045 NRC Staff Answer at 100.

1046 Id.; see discussion supra pp. 62-63, 66, 70, 73, 179, 199, infra p. 211; see also NRC Staff Answer at 50-56, 96-99, 101-02, 111-12.

1047 Id.

1048 Tr. at 707.

1049 Tr. at 706.

-205-ii. Board Decision - Clearwater EC-4 Because Clearwater offers no basis and no factual or expert support for the admissibility of EC-4, the Board rejects this contention. The Board finds that, because it has established standing and proffered a separate admissible contention of its own, Clearwater is eligible to adopt contentions of other parties under 10 C.F.R. § 2.309(f)(3).1050 However, Clearwater must meet the requirements of that regulation for specifying who shall have the authority to act for the requestor/petitioners with respect to the contentions being adopted. Because Clearwater has agreed that NYS will have such authority,1051 the Board finds Clearwater may adopt NYS-12.

E. Clearwater EC-5 ENTERGYS ENVIRONMENTAL REPORT FAILS TO ADEQUATELY CONSIDER RENEWABLE ENERGY AND ENERGY EFFICIENCY ALTERNATIVES TO THE LICENSE RENEWAL OF INDIAN POINT.1052

i. Background - Clearwater EC-5 Clearwater EC-5 contends that the LRA does not comply with NEPA because the ER does not adequately assess the potential for renewable energy and energy efficiency as an alternative to license renewal of Indian Point.1053 Clearwater seeks to adopt NYS-9 through NYS-11 pursuant to 10 C.F.R. § 2.309(f)(3) and agrees that NYS shall have the authority to act for Clearwater with respect to this contention.1054 Clearwater contends that Entergys alternatives analysis in the ER is inadequate because it only considers coal, nuclear, and natural gas as alternatives. Clearwater also concurs with NYS that the ER misstates the 1050 See supra Part IV.

1051 Clearwater Petition at 73.

1052 Id. at 56.

1053 Id.

1054 Id. at 57.

-206-findings of the GEIS and that the ER fails to consider other reasonable alternatives.1055 Clearwater goes on to discuss numerous demand-side and supply-side options in the remainder of this contention.1056 Entergy opposes the admission of this contention for failing to provide a concise statement of facts or expert opinion and for not establishing a genuine dispute with the Applicant on a material issue. Entergy opines that NRC case law and NEPA only require an applicant to consider only reasonable alternatives in the ER, specifically only those that are feasible, non-speculative, and for the Indian Point relicensing, that will meet the goal of providing 2,158 MWe of base-load power.1057 Additionally, Entergy asserts that where a private entity, and not a federal agency, is sponsoring the project, the consideration of alternatives should give significant weight to the preferences of the sponsor.1058 According to Entergy, the ER adequately analyzed all of the alternatives raised by Clearwater, but, consistent with Commission precedent, did not consider them in detail, and properly determined that they were not reasonable.1059 Furthermore, Entergy asserts that Clearwater does not provide adequate 1055 Id. at 58.

1056 See id. at 59-65. The various demand-side options that Clearwater looks at include conservation, a peak load reduction program, enabling technology for price sensitive load management, the Keep Cool Program, the concept of Negawatt whereby the public utilizes consumption efficiently, and off peak discounted pricing. Id. at 59-61. The supply-side options discussed include purchasing power from sources outside the grid, repowering older facilities with new and cleaner power sources, distributed generation of electricity including backup generators at hospitals, photovoltaic systems on rooftops, and combined heat and power systems in industrial plants and at universities, geothermal heat pump systems, and wind power. Id. at 61-65.

1057 See Entergy Clearwater Answer at 74-76.

1058 Id. at 76 (citing Monticello, LBP-05-31, 62 NRC at 753 n.83).

1059 See id. at 76-79.

-207-support for its contention, nor does it identify specific deficiencies in the ER regarding the alternatives analysis.1060 The NRC Staff opposes the admission of the contention because, in its view, Clearwater fails to assert any material issue of law or fact or show that there is a genuine dispute.1061 The NRC Staff asserts that Clearwater has not shown how Entergys analysis of alternatives in the ER is inadequate.1062 Regarding Clearwaters NEPA argument, the NRC Staff incorporates its answer to NYS-9.1063 In its Reply, Clearwater maintains that Entergys ER fails to consider the cumulative capacity of renewable energy resources to compensate for the power generation from Indian Point.1064 Clearwater goes on to state that Entergy has erred by looking at all potential energy resources individually as if one new 2,158 MWe facility were the only viable alternative for replacement energy, and, as a result, did not adequately consider the collective benefits of a mix of energy resources.

ii. Board Decision - Clearwater EC-5 The Board rejects this contention as a direct attack on NRC Regulations. An applicant in its ER need only consider the range of alternatives that are capable of achieving the goal of the proposed action,1065 which, in the instant case, is to generate approximately 2,158 MWe of base-load energy for an additional twenty years of operation.1066 Consistent with the GEIS § 1060 Id. at 79.

1061 NRC Staff Answer at 100.

1062 Id.

1063 Id. at 101; see discussion supra p. 48-49; see also NRC Staff Answer at 47-48.

1064 Clearwater Reply at 7.

1065 See supra notes 259-61 and accompanying text.

1066 See Hydro Resources, CLI-01-4, 53 NRC at 55; Rancho Seco, CLI-93-3, 37 NRC at (continued...)

-208-8.1, the reasonable alternatives for license renewal proceedings are limited to discrete electric generation sources that are technically feasible and commercially available. Ignoring the feasibility question and the lack of commercial availability, Clearwater has not provided any demonstration that the renewable energy sources it presents in its Petition could provide the 2,158 MWe from one discrete source.

Similarly, energy conservation, including the demand-side options presented by Clearwater in its Petition, are not discrete electric generation sources. As discussed in the Boards decision on NYS-9,1067 the Commission in Clinton held that NEPA does not require an analysis of conservation as an alternative,1068 and, concluded that NEPAs rule of reason does not demand an analysis of energy efficiency, because, inter alia, conservation measures are beyond the ability of an applicant to implement, and are therefore outside the scope required by NEPA for considering reasonable alternatives.

While GEIS § 8.1 includes a discussion of numerous power source options for the alternatives analysis, including the no-action alternative,1069 it does not preclude the approach used by Entergy. Specifically, the Petitioner ignored the definitive statement in the last paragraph of Section 8.1, which limited the reasonable set of alternatives to a single, discrete, feasible, and commercially viable electric generation source. Section 8.2 of the GEIS states the need to address energy conservation when evaluating the no-action alternative. Clearwaters contention, however, was limited to the consideration of renewable energy and energy efficiencies in the alternatives analysis with no mention of the requirements for the no-action alternative.

1066

(...continued) 144-45.

1067 See supra at Part VI.I.ii.

1068 Clinton, CLI-05-29, 62 NRC at 805, 807.

1069 GEIS §§ 8.1, 8.2.

-209-As required under the Commissions decision in Clinton, Entergy has submitted information concerning other alternatives it finds reasonable and feasible to achieving its goals.

Because there is no requirement for Entergy to look at every conceivable option, especially one as amorphous as energy conservation, the Applicant has met it obligations under Part 51 for preparation of its ER.

In summary, Clearwater is attacking the regulations by contending Entergys ER is deficient by not addressing renewable energy sources and energy efficiencies, directly contradicting Commission precedent. Specifically, as clarified by the Commission in Clinton, renewable energy and energy efficiency are not within the range of reasonable alternatives related to the scope and goals of the proposed license renewal, and are not discrete electric generation sources that are technically feasible and commercially available. Furthermore, the Commission has made it clear that NEPAs rule of reason does not demand an analysis of energy efficiency, because, inter alia, conservation measures are beyond the ability of an applicant to implement, and are therefore outside the scope required by a NEPA review of reasonable alternatives. For these reasons, the Board finds that it is reasonable for Entergy to have only briefly discussed renewable energy and energy conservation in its ER, and concludes that Clearwaters EC-5 is inadmissible.

In addition, Clearwater seeks to adopt NYS-9, 10, and 11 and agrees that NYS would act as the representative for these contentions. Clearwater may adopt NYS-9, but cannot adopt NYS-10 and NYS-11 because these contentions have been found inadmissible.

F. Clearwater EC-6 ENTERGYS ENVIRONMENTAL REPORT FAILS TO CONSIDER THE POTENTIAL HARM TO THE SURROUNDING AREA OF TERRORIST ATTACK ON THE FACILITY INCLUDING ITS SPENT FUEL POOLS, CONTROL ROOMS, THE WATER INTAKE VALVES, COOLING PIPES AND ELECTRICITY SYSTEM.1070 1070 Clearwater Petition at 65.

-210-

i. Background - Clearwater EC-6 Clearwater EC-6 asserts that the LRA does not comply with NEPA in that Entergys ER does not consider the potential for harm that would result from a terrorist or other attack on Indian Points control rooms, water intake valves and cooling pipes, and the significant and reasonably foreseeable environmental harm that could result from destruction of control and cooling capacities.1071 Clearwater claims that a SAMA analysis is needed to deal with this possibility.1072 Clearwater also maintains that the ER fails to deal with the issues surrounding the spent fuel pools and other insufficiently protected, at-risk features.1073 Clearwater seeks to adopt NYS-27 under 10 C.F.R. § 2.309(f)(3) and agrees that NYS shall act as the representative for the contention.1074 Clearwater also shares the concerns expressed in Riverkeepers EC-2.1075 Entergy opposes the admission of Clearwater EC-6 because issues relating to the consideration of terrorism do not need to be considered in license renewal proceedings. To support its position, Entergy relies on Oyster Creek, which rejects terrorism related contentions in license renewal proceedings.1076 Entergy asserts that the contention also improperly challenges NRC Regulations, specifically 10 C.F.R. Part 51 and the GEIS.1077 1071 Id.

1072 Id.

1073 Id. at 66.

1074 Id.

1075 Id.

1076 See Entergy Clearwater Answer at 82-84.

1077 See id. at 84-85.

-211-The NRC Staff opposes the admission of Clearwater EC-6 because, in its view, it is beyond the scope of this proceeding.1078 The NRC Staff asserts that the Commission has held that this type of contention is outside the scope of license renewal proceedings, and that NEPA does not require the NRC to consider them.1079 The NRC Staff relies extensively on the Commissions decision in Oyster Creek.1080 ii. Board Decision - Clearwater EC-6 As explained in the Boards ruling on the admissibility of NYS-27, Connecticut EC-1, and Riverkeeper EC-2,1081 the Commission has specifically determined that the potential environmental impact of a terrorist attack on the Indian Point facility is not within the scope of this proceeding. Accordingly, we must reject this contention.

X. CORTLANDT CONTENTIONS At Oral Argument, Cortlandt withdrew two of its contentions, TC-2, relating to Entergys leak-before-break analysis, and MC-2, relating to the adequacy of the Indian Point decommissioning trust fund.1082 Accordingly, we have not considered them in this Memorandum and Order.

1078 NRC Staff Answer at 101.

1079 Id.

1080 Id. at 102.

1081 See supra Parts VI.AA.ii, VII.A.ii, VIII.D.ii.

1082 Tr. at 496.

-212-A. Cortlandt Technical / Health / Safety Analysis Contention TC-1 THE LICENSE RENEWAL APPLICATION (LRA) DOES NOT PROVIDE SUFFICIENT DETAILED INFORMATION REGARDING TECHNICAL AND SAFETY ISSUES AS REQUIRED BY 10 C.F.R. PART 54.1083

i. Background - Cortlandt TC-1 Cortlandt TC-1 contends that Entergy has not provided specific technical information in the LRA regarding the Equipment Environmental Qualification (EQ) and the FAC Programs required pursuant to 10 C.F.R. Part 54.1084 In addition, Cortlandt suggests that Entergy has not met its burden, under 10 C.F.R. § 54.21, of justifying the methods used for performing an IPA.1085 Cortlandt maintains that Entergy fails to provide a specific and particularized FAC Program that defines the component and system scope, inspection criteria, methodology, frequency and remediation commitments when acceptance criteria for FAC inspections are not met, even though it was required to do so by 10 C.F.R. Part 54 and SRP-LR.1086 Cortlandt also asserts that it is precluded from adequately reviewing the legal or technical integrity of the

[Aging Management] Programs because of Entergys noncompliance.1087 Entergy opposes the admission of this contention because the Petitioner fails to provide any support for its position that the LRA is materially deficient, and does not show that a genuine material dispute exists.1088 Entergy argues that Cortlandt has not identified a deficiency in any specific portion of the LRA, and maintains that the references made by Cortlandt to the EQ and FAC Programs are broad brush references that do not explain how the programs are 1083 Cortlandt Petition at 2.

1084 Id.

1085 Id.

1086 Id. at 3.

1087 Id.

1088 Entergy Cortlandt Answer at 29-30.

-213-inadequate.1089 Entergy claims that Cortlandt misquotes Section 54.21, which actually requires an applicant to justify the methods used to identify the SSCs subject to AMR.1090 Entergy maintains that the LRA and its EQ and the FAC Programs comply with the SRP-LR, regulatory guidance for a LRA, and industry guidelines, which incorporate by reference the program descriptions contained in the GALL Report.1091 The NRC Staff also opposes the admission of this contention for being vague and not providing support for its claim that the LRA is insufficient.1092 The NRC Staff maintains that Cortlandt relies on generalized suspicions and vague references to alleged issues at Indian Point and equally unparticularized portions of the LRA for providing a factual basis.1093 The NRC Staff asserts that Cortlandts brief explanation of its bases does not meet the legal requirements for admitting contentions.1094 In its Reply, Cortlandt attempts to supplement its contention by submitting additional factual support, but does not provide viable arguments as to why its Petition metes the regulatory requirements. Cortlandt also raises several additional concerns not addressed in its Petition, including safety issues in the temporary storage facilities for spent fuel rods,1095 its belief that the GEIS is patently dated and inadequate,1096 its objection that the SEIS will not be 1089 Id. at 27.

1090 Id. at 27-28.

1091 Id. at 28.

1092 NRC Staff Answer at 123.

1093 Id.

1094 Id. (citing 10 C.F.R. § 2.309(f)(1)(v); Millstone, CLI-01-24, 54 NRC at 363).

1095 Cortlandt Reply at 4.

1096 Id. at 5.

-214-available to the public until August 2008,1097 the risk of a spent fuel fire,1098 and, the fact that the national nuclear waste repository at Yucca Mountain is well behind schedule.1099 ii. Board Decision - Cortlandt TC-1 While the Board finds that Cortlandt has provided some foundation for its contention, it has not provided adequate facts or expert opinion to support its position. Rather, Cortlandt has only provided general allegations covering the overall adequacy of everything from the EQ to the FAC, to the IPA, with no mention of potential errors or deficiencies in Entergys LRA. While it is questionable whether, as alleged by Entergy, conformance with the general requirements of regulatory and industry guidance provides sufficient specificity to demonstrate an adequate AMP, Cortlandt nonetheless has not proffered any justification to back its contention.

Therefore, this Board rejects Cortlandt TC-1.

B. Cortlandt Technical / Health / Safety Analysis Contention TC-3 APPLICANTS LRA DOES NOT SPECIFY AN AGING MANAGEMENT PLAN TO MONITOR AND MAINTAIN ALL STRUCTURES, SYSTEMS, AND COMPONENTS ASSOCIATED WITH THE STORAGE, CONTROL, AND MAINTENANCE OF SPENT FUEL IN A SAFE CONDITION, IN A MANNER SUFFICIENT TO PROVIDE REASONABLE ASSURANCE THAT SUCH STRUCTURES, SYSTEMS, AND COMPONENTS ARE CAPABLE OF FULFILLING THEIR INTENDED FUNCTIONS.1100

i. Background - Cortlandt TC-3 Cortlandt TC-3 asserts that the LRA does not offer an AMP to monitor and maintain all SSCs associated with spent fuel to ensure that they are fulfilling their intended functions pursuant to 10 C.F.R. § 50.65.1101 Cortlandt asserts that the spent fuel pool at IP2 is compromised and that the LRA does not have an AMP that adequately addresses leaks in the 1097 Id.

1098 Id. at 5-6.

1099 Id. at 6.

1100 Cortlandt Petition at 5.

1101 Id.

-215-spent fuel pool.1102 Cortlandt also asserts that there have been leaks from Indian Point into the groundwater and the Hudson River. Cortlandt suggests that while Entergy has investigated the source of the leaks, it has not identified or located them.1103 Cortlandt maintains that the NRC will violate its mandate to protect public health and safety if it considers Applicants LRA for an additional twenty years before considering a comprehensive remediation of the leaks.1104 Entergy opposes the admission of Cortlandt TC-3, claiming that it lacks the specificity required and adequate factual or expert support and because, in Entergys view, it fails to establish a genuine dispute on a material issue of law or fact.1105 Entergy asserts that its LRA does include AMPs for spent fuel pool structural components, including liner plates and gates, primary and secondary water chemistry control programs, concrete structures including floor slabs, interior walls and ceilings, spent fuel storage racks, and neutron absorbers.1106 Additionally, Entergy points out that 10 C.F.R. § 50.65, upon which Cortlandt relies, pertains to on-going regulatory requirements and thus is outside the scope of this license renewal proceeding. Finally, Entergy states that contrary to Cortlandts assertion, Entergy has identified and characterized known leaks, repaired known leaks from IP2 spent fuel pool, and has established a detailed, workable plan . . . .1107 The NRC Staff opposes the admission of Cortlandt TC-3 for being vague, failing to establish a genuine dispute on a material issue of law or fact, and lacking supporting facts and 1102 Id. at 6-7.

1103 Id. at 6.

1104 Id. at 7.

1105 Entergy Cortlandt Answer at 35.

1106 Id. (citing LRA Tables 3.3.2-1-IP2, 3.3.2-1-IP3, 3.5.2-3).

1107 Id. at 36.

-216-expert opinions.1108 Like Entergy, the NRC Staff asserts that Entergys contention that the LRA does not have an AMP for the spent fuel pools is totally erroneous, and points to Tables 2.4-3 and 3.5.2-3 and Sections 2.4.3 and 3.5.2 of the LRA.1109 In terms of the support for Cortlandt TC-3, the NRC Staff asserts that Cortlandt only provides a general citation to the LRA and alludes to the status of the spent fuel pools without providing any support for the contention.

In its Reply, Cortlandt asserts that the ER does not deal with mitigation measures for the leaks in the spent fuel pools, and that failure to address the issue, according to Cortlandt, will likely result in harm to the health and safety of the public or environment.1110 Cortlandt maintains that a petitioner need only show that there is a nexus between the omission and the protection of public health and safety, and that by showing that Entergy has failed to provide a detailed and workable AMP for the spent fuel pools, Cortlandt has submitted an admissible contention.1111 Cortlandt brings up a new point in its Reply, not included in its Petition, that Entergy did not (as required by 10 C.F.R. § 51.53(c)(3)(ii)) discuss alternatives to spent fuel storage in its LRA or ER even though it knew of the leak.1112 Cortlandt suggests dry cask storage as an alternative.1113 In another new argument, not mentioned in the original Petition, Cortlandt asserts that there is a likelihood of fires in the spent fuel pools and that Entergys failure to address these as safety issues makes the ER inadequate.

1108 NRC Staff Answer at 128.

1109 Id. at 129.

1110 Cortlandt Reply at 9 (citing Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), LBP-04-15, 60 NRC 81, 89 (2004).

1111 Id.

1112 Id.

1113 Id. at 9-10.

-217-ii. Board Decision - Cortlandt TC-3 Cortlandt TC-3 is inadmissible because the Petitioner has not provided any facts or expert opinion in support of the contention. Cortlandt contends that Entergy has not submitted an AMP which provides reasonable assurance that SSCs associated with the storage, control and maintenance of spent fuel will remain capable of fulfilling their intended functions during the proposed extended period of operation.1114 However, Cortlandt offers no analysis of the AMPs included in the LRA, nor does it explain in any way how those plans are deficient. Instead, Cortlandt notes, without citation, that radioactive contamination has been found in numerous monitoring wells at IPEC, that the spent fuel pool at IP2 is known to be compromised, and the that LRA does not propose an AMP that addresses the leaks.1115 The LRA, however, does include AMPs for spent fuel structural components,1116 and Cortlandt does not discuss or even identify any alleged deficiency with these plans.

At Oral Argument, Cortlandt made it clear that in its view, long-term storage in a spent fuel pool is inherently dangerous and, accordingly, no AMP for the long-term maintenance of spent fuel pools can be adequate.1117 Without commenting on the validity of Cortlandts claim, we note that this proceeding is not the appropriate vehicle for such a challenge.1118 In this proceeding, Cortlandt must identify specific deficiencies in the AMP in order to secure a hearing on the issue. It has not done so. Accordingly, Cortlandt TC-3 is inadmissible in this proceeding.

1114 Cortlandt Petition at 5-6.

1115 Id. at 6.

1116 LRA Tables 3.3.2-1-IP2, 3.3.2-1-IP3, 3.5.2-3.

1117 Tr. at 503.

1118 See 10 C.F.R. § 2.802.

-218-C. Cortlandt Miscellaneous Contention MC-1 IMPACTS TO THE LOCAL ECONOMY IF INDIAN POINT UNITS 2 AND 3 ARE NOT RE-LICENSED.1119

i. Background - Cortlandt MC-1 Cortlandt MC-1 asserts that Entergy must consider the potential effect on the economy if the license renewal is not granted.1120 Cortlandt lists the economic benefits that stem from the plants operation - including employment, tax payments, and non-profit programs and projects supported by Entergy.1121 Cortlandt maintains that the effect on the community if the license is not renewed will be severe and that the NRC must consider them in deciding whether to grant the relicensing.1122 Entergy does not dispute the assertions made in Cortlandt MC-1, but argues that the contention is outside the scope of the proceeding, and cites to the Boards rejection of a similar contention brought by the Village of Buchanan in this proceeding.1123 The NRC Staff also argues that this contention is beyond the scope of a license renewal proceeding. The NRC Staff maintains that 10 C.F.R. § 51.45(c) provides that an applicant in its ER is not required to discuss economic costs or benefits of license renewal unless it is necessary to determine inclusion of an alternative or it is relevant to mitigation.1124 Cortlandt did not address these arguments in its Reply.

1119 Cortlandt Petition at 7.

1120 Id. at 7-8.

1121 Id.

1122 Id. at 8.

1123 Entergy Cortlandt Answer at 41 (citing Licensing Board Memorandum and Order (Denying the Village of Buchanans Hearing Request and Petition to Intervene) at 8-9 (Dec. 5, 2007) (unpublished)).

1124 NRC Staff Answer at 130.

-219-ii. Board Decision - Cortlandt MC-1 The Board finds that this contention is inadmissible because it is outside the scope of the adjudicatory proceedings for a LRA. Pursuant to 10 C.F.R. § 51.45(c), an ER prepared for a license renewal pursuant to 10 C.F.R. § 51.53(c) need not discuss the economic or technical benefits and costs of the proposed action or alternatives except as they are either essential for determining whether an alternative should be included or relevant to mitigation. Because the Petitioner has not provided any support to show how its alleged benefits related to the two exceptions,1125 challenging the need to consider the economic benefits of Entergys LRA is outside the scope of this proceeding and is rejected.

D. Cortlandt Miscellaneous Contention MC-3 APPLICANTS LRA FAILS TO ADDRESS THE CATASTROPHIC CONSEQUENCES OF A POTENTIAL TERRORIST ATTACK ON THE AGING INDIAN POINT NUCLEAR REACTORS.1126

i. Background - Cortlandt MC-3 Cortlandt MC-3 asserts that Entergy is required to include in its LRA the potential significant impacts on the human environment from a successful terrorist attack at IPEC.1127 Cortlandt states that in Mothers for Peace, the Ninth Circuit found that the NRC did not satisfy its requirements under NEPA when it refused to consider the environmental impacts of a terrorist attack. Furthermore, according to Cortlandt, the potential for a terrorist attack is new and significant information which, pursuant to 10 C.F.R. § 51.53(c)(3)(iv), must be analyzed in 1125 The regulation only requires an applicant to discuss the economic benefits in its ER during a license renewal if these benefits and costs are either essential for a determination regarding the inclusion of an alternative in the range of alternatives considered or relevant to mitigation. 10 C.F.R. § 51.45(c).

1126 Cortlandt Petition at 10.

1127 Id.

-220-the ER. Cortlandt avers that it is unreasonable for the NRC not to require Entergy to consider the environmental and safety effects of a potential terrorist attack.1128 Entergy opposes the admission of Cortlandt MC-3 for raising issues outside the scope of the proceeding, being immaterial to the NRC Staffs license renewal finding, failing to establish a genuine dispute on a material issue of law or fact, directly contravening Commission legal precedent, and collaterally attacking NRC Regulations.1129 Entergy asserts that the Commission and Licensing Boards have consistently held that the NRC Staff does not need to consider, as part of its safety or environmental review, terrorist attacks on nuclear power plants seeking renewed licenses.1130 The NRC Staff opposes the admission of the contention because, it asserts, the NRC is not required under NEPA to consider the impact of terrorist attacks.1131 In its Reply, Cortlandt asserts that the NRC cannot avoid its statutory responsibility under NEPA merely by asserting that an activity it wishes to pursue will have an insignificant effect on the environment.1132 Cortlandt restates its position that the potential for a terrorist attack is new and significant information that should be included in the ER pursuant to 10 C.F.R.

§ 51.53(c)(3)(iv). Cortlandt maintains that because Indian Point is in a highly populated and visible area, it is particularly vulnerable and a highly attractive terrorist target.1133 Cortlandt also contends that NRCs assertion that the risk of an attack is not quantifiable does not 1128 Id. at 11.

1129 Entergy Cortlandt Answer at 48.

1130 Id. (citations omitted).

1131 NRC Staff Answer at 132.

1132 Cortlandt Reply at 12-13 (citing Twp. of Lower Alloways Creek v. Pub. Serv. Elec. &

Gas Co., 687 F.2d 732, 741 (3d Cir. 1982)).

1133 Id. at 14.

-221-preclude further consideration under NEPA.1134 Finally, Cortlandt cites to a Sandia National Laboratory report, not mentioned in its Petition, that found that a plane crashing into a spent fuel pool would create a fireball leading to a large radioactive release.1135 ii. Board Decision - Cortlandt MC-3 Cortlandt MC-3 is inadmissible as explained above in the Boards decision on NYS-27, Connecticut EC-1, Riverkeeper EC-2, and Clearwater EC-6.1136 The Commission has determined that the environmental impact of a terrorist attack on Indian Point is not within the scope of this proceeding.

XI. WESTCHESTER COUNTY PETITION In its Petition Westchester does not offer a single contention, but seeks to support and adopt the NYS contentions discussed in Part VI above.1137 Because Westchester has not submitted an admissible contention of its own, it is barred from adopting the contentions of any other party.1138 Westchesters request to adopt the NYS contentions is therefore denied.

Westchester may, however, participate in this proceeding as an interested governmental entity pursuant to 10 C.F.R. § 2.315(c).

XII. CONNECTICUT RESIDENTS OPPOSED TO RELICENSING OF INDIAN POINT (CRORIP) CONTENTIONS A. CRORIP EC-1 HEALTH RISKS FROM THE CUMULATIVE EFFECTS OF RADIATION EXPOSURE TRACEABLE TO INDIAN POINT ROUTINE AND ACCIDENTAL RELEASES DURING THE 1134 Id. at 15 (citing Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1),

LBP-80-8, 11 NRC 297, 307 (1980), Potomac Alliance v. U.S. Nuclear Regulatory Commn, 682 F.2d 1030, 1036-37 (D.C. Cir. 1982)).

1135 Id. at 15-16.

1136 See supra Parts VI.AA.ii, Part VII.A.ii, VIII.D.ii, IX.F.ii.

1137 Westchester Petition at 1.

1138 See supra Part IV.

-222-PROJECTED RELICENSING TERM ARE SUBSTANTIAL, HAVE NOT BEEN ADEQUATELY ACCOUNTED FOR IN THE LRA AND CONSTITUTE NEW INFORMATION WHICH MUST BE BUT WHICH HAS NOT BEEN ANALYZED UNDER 10 CFR PART 51.1139

i. Background - CRORIP EC-1 In its sole contention, CRORIP alleges that the LRA has not adequately taken account of the health risks to local populations from the cumulative effects of radiation exposure from the routine and accidental releases of radiation from Indian Point.1140 The alleged basis for the contention is that Indian Point released the fifth highest amount of radiation between 1970 and 1993 compared to other nuclear power stations, and that there has been a six-fold increase in the release of fission gases from the fourth quarter of 2001 to the first quarter of 2002.1141 According to CRORIP, this information provide[s] a basis for concern about the potential releases of radiation during the projected relicensing period as the facility ages and cracks and leaks which have been detected currently inevitably worsen over time.1142 CRORIP contends that the issue is material to the proceeding because the NRC must decide whether Indian Point can operate safely through the renewal period and, according to CRORIP, Indian Point operations beyond the current licensing period will subject the public to undue health and safety risks which have not been adequately analyzed.1143 Finally, CRORIP maintains that a statistical link has been established between elevated levels of the fission product strontium-90 in the baby teeth of children living near Indian Point and heightened incidences of cancer and related 1139 CRORIP Petition at 4.

1140 Id.

1141 Id.

1142 Id.

1143 Id. at 5.

-223-diseases in the same population and that this information should have been addressed by Entergy in the LRA.1144 Entergy argues that the contention is inadmissible as it attempts to raise a generic issue already covered by the GEIS.1145 Entergy asserts that the Petition and its supporting Declarations do not provide any assertion or information showing that the Applicant has not and is not operating Indian Point Units 2 and 3 in accordance with the Commissions requirements with respect to radiological release. . . . [And] there is no basis for concluding that the pending application fails to satisfy NRC requirements for license renewal.1146 Entergy points out that this same issue, again supported by Mr. Mangano, was raised and rejected in McGuire/Catawba, where that Licensing Board found that the matter is a Category 1 issue that does not require a site-specific analysis and that it is outside the scope of this proceeding.1147 Entergy also maintains that the contention lacks specificity and is outside the scope of the proceeding in violation of 10 C.F.R. § 2.309(f)(iii). Essentially, Entergy believes this contention is nothing more than a challenge to the Commissions permissible doses set by 10 C.F.R. Part 20, which simply cannot be contested in an individual license renewal proceeding such as this.1148 1144 Id. (citing the Declaration of Joseph Mangano and the Declaration of Dr. Helen M.

Caldicott).

1145 Entergy CRORIP Answer at 30.

1146 Id.

1147 Id. at 31 (citing McGuire/Catawba, LBP-02-4, 55 NRC 49). Entergy also points to another case where CRORIPs designated representative, Nancy Burton proffered a similar contention that was rejected by the Board. Millstone, LBP-04-15, 60 NRC at 90-92. On review, the Commission found the contention to impermissibly deal with an operational issue not within the scope of license renewal. Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Station, Units 2 and 3), CLI-06-4, 63 NRC 32, 37 (2006).

1148 Entergy CRORIP Answer at 43 (citing 10 C.F.R. § 2.335(a); Turkey Point, CLI-01-17, 54 NRC at 3).

-224-The NRC Staff also opposes the admission of the contention because it is a challenge to a Category 1 issue, which is generic for all applicants and beyond the scope of license renewal proceedings.1149 CRORIPs Reply deals largely with the issue of the Section 2.335 waiver, which the Board deals with in an accompanying order, and does not need to address here.1150 The only argument offered by CRORIP in its Reply regarding CRORIP EC-1 being within the scope of the proceeding is to point to its Petition for Waiver as a clear set of circumstances which are unique to Indian Point and therefore qualify for waiver of the Category 1 rule.1151 ii. Board Decision - CRORIP EC-1 The Board finds that CRORIPs contention is outside the scope of this proceeding. It is a direct challenge to the Commissions GEIS for the relicensing of nuclear power generating facilities. As explained in our denial of CRORIPs Section 2.335 Petition,1152 CRORIP has not pointed us to facts that are unique to the Indian Point facility. Likewise, CRORIP has not demonstrated that the application of the regulation here would be inconsistent with its purpose.

Having denied the Section 2.335 Petition, we find this contention inadmissible.

XIII. CONCLUSION Based on the preceding, the following Petitioners are admitted as Parties to this license renewal proceeding for the IPEC: New York State, Riverkeeper, and Clearwater. While not admitted as Parties to this proceeding pursuant to 10 C.F.R. § 2.309, the State of Connecticut, 1149 NRC Staff Answer at 107.

1150 Connecticut Residents Opposed to Relicensing of Indian Point (CRORIP) and Nancy Burtons Reply to Answers of NRC Staff and Entergy Nuclear Operations, Inc. Opposing Request for Hearing, Petition to Intervene and Petition for Waiver (Feb. 8, 2008) [hereinafter CRORIP Reply].

1151 Id. at 30.

1152 Licensing Board Order (Denying CRORIPs 10 C.F.R. § 2.335 Petition) (July 31, 2008) (unpublished).

-225-Westchester County, and the Town of Cortlandt have the option to participate in this proceeding as interested State and local governmental entities, pursuant to 10 C.F.R. § 2.315(c). In addition we note that on December 5, 2007, we dismissed the Village of Buchanan from this proceeding, and on December 12, 2007, we dismissed the City of New York from this proceeding because those governmental bodies had not submitted admissible contentions.

However, in those Orders we advised the Village of Buchanan and the City of New York that within 30 days after any contention was admitted in this proceeding each could petition to participate pursuant to 10 C.F.R. § 2.315(c).1153 We now remind these two local governmental entities of that opportunity to participate, and also remind them of the deadline that we set for the submission of Section 2.315(c) Petitions.

The following contentions have been admitted:1154

1. NYS The LRA does not provide adequate AMP for buried pipes, tanks, and transfer canals that contain radioactive fluid that meet 10 C.F.R. § 54.4(a) criteria. In addition, the LRA is not clear whether an AMP for IP1 buried SSCs that are being use by IP2 and IP3 exists and whether the LRA is adequate if it does exist.

2. NYS-6/7 - Entergy has not proposed an AMP for Non-EQ Inaccessible Medium-Voltage and Low-Voltage Cables and Wiring.

3. NYS Entergy has not proposed an AMP for each electrical transformer in IP2 and IP3 required for compliance with 10 C.F.R. §§ 50.48 and 50.63. This does not include transformer support structures.

1153 Licensing Board Order (Denying the Village of Buchanans Hearing Request and Petition to Intervene at 10 (Dec. 5, 2007) (unpublished); Licensing Board Order (Denying the City of New Yorks Petition for Leave to Intervene) at 9 (Dec. 12, 2007) (unpublished).

1154 The Admitted Contentions remain as written by the Petitioners/Parties. The brief descriptions of the Admitted Contentions set out in this Conclusion are intended as a summary and do not supercede the Contentions as submitted and admitted.

-226-

4. NYS Entergy in its ER has not evaluated energy conservation as part of its no action alternative analysis.

5. NYS-12 (Adopted by Clearwater) - Entergys SAMAs for IP2 and IP3 do not accurately reflect decontamination and clean up costs associated with a severe accident because specific inputs and assumptions made in the MACCS2 code regarding decontamination and clean up costs may not be correct.

6. NYS NYS challenges whether the population projections used by Entergy are underestimated. And also, within the framework of the bounding assumptions and conservative inputs used in MACCS2 SAMA analyses, whether the ATMOS module in MACCS2 is being used beyond its range of validity - beyond thirty-one miles (fifty kilometers) - and, whether use of MACCS2 with the ATMOS module leads to non-conservative geographical distribution of radioactive dose within a fifty-mile radius of IPEC.

7. NYS The ER limits consideration of land value to tax-driven land-use changes and does not consider the impact on real estate values caused by license renewal or the positive impacts on land values if the license is not renewed.

8. NYS The LRA does not include an adequate AMP to ensure the continued integrity of the containment structures during the license renewal period.

9. NYS The LRA does not include an adequate AMP to monitor and manage the effects of aging due to embrittlement of the RPVs and associated internals.

10. NYS-26A - The LRA does not include an adequate AMP to manage the effects of aging due to metal fatigue on key reactor components, specifically relating to the calculation of the CUFs and the resulting AMP for components with CUFs greater than 1.0. (Consolidated with Riverkeeper TC-1A).

11. Riverkeeper TC-1A - The LRA does not include an adequate AMP to manage the effects of aging due to metal fatigue on key reactor components, specifically relating to the calculation of

-227-the CUFs and the resulting AMP for components with CUFs greater than 1.0. (Consolidated with NYS-26A).

12. Riverkeeper TC The LRA does not include an adequate AMP to manage components subject to FAC.

13. Riverkeeper EC The ER does not adequately assess new and significant information regarding the environmental impacts of radionuclide leaks from spent fuel pool leaks at Indian Point. (Consolidated with Clearwater EC-1).

14. Clearwater EC The ER does not adequately assess new and significant information regarding the environmental impacts of radionuclide leaks from spent fuel pool leaks at Indian Point. (Consolidated with Riverkeeper EC-3).

15. Clearwater EC The EJ analysis in the ER does not adequately assess the impacts of Indian Point on the minority, low-income and disabled populations in the surrounding area.

Having determined that the hearing requests of New York State, Riverkeeper and Clearwater should be granted, this Board must determine, under 10 C.F.R. § 2.310, the type of hearing procedures to be used for each admitted contention. Given that the timing of initial disclosures and the availability of discovery1155 are contingent on our determination as to whether Subpart G or Subpart L procedures apply, the parties are instructed to hold such activities in abeyance until the hearing procedure ruling is issued. New York State, Riverkeeper and Clearwater shall, no later than, August 21, 2008, indicate, for each admitted contention, whether each Party wishes to proceed pursuant to Subpart G or Subpart L. This motion should indicate why the contention proponent believes a particular Subpart is more appropriate. The NRC Staff and Entergy may reply to these proposals no later than September 15, 2008.

1155 See 10 C.F.R. §§ 2.336, 2.704, and 2.705.

-228-The following Contentions have been consolidated pursuant to 10 C.F.R. § 2.316:

1. NYS-26A and Riverkeeper TC Metal Fatigue

2. Riverkeeper EC-3 and Clearwater EC Spent Fuel Pool Leaks We direct the Parties who have submitted consolidated contentions to confer and submit a draft of the Consolidated Contention for the Boards consideration within 21 days of the date of this Order. In addition, at the time the draft of the Consolidated Contention is submitted, the Parties who have submitted these contentions shall advise the Board which Party will take the lead in litigating the Consolidated Contention. If agreement cannot be reached among the Parties, the Board will recast the Consolidated Contention and assign a lead party.

-229-This Memorandum and Order is subject to appeal in accordance with the provisions of 10 C.F.R. § 2.311. Any petitions for review must be filed within ten days of service of this Memorandum and Order.

It is so ORDERED.

THE ATOMIC SAFETY AND LICENSING BOARD1156

/RA/

Lawrence G. McDade, Chairman ADMINISTRATIVE JUDGE

/RA/

Kaye D. Lathrop ADMINISTRATIVE JUDGE

/RA/

Richard E. Wardwell ADMINISTRATIVE JUDGE Rockville, MD July 31, 2008 1156 A copy of this Order was sent this date by E-mail and First Class Mail to: (1) Counsel for the NRC Staff; (2) Counsel for Entergy; (3) Counsel for the State of New York; (4) Counsel for Riverkeeper, Inc.; (5) Manna Jo Green, Representative for Clearwater; (6) Counsel for the State of Connecticut; (7) Counsel for the Town of Cortlandt; (8) Counsel for Westchester County; (9) Counsel for New York City - Economic Development Corporation; (10) Mayor Daniel E. ONeill, Representative for the Village of Buchanan; (11) Nancy Burton, Representative of CRORIP; and (12) Counsel for WestCAN, RCCA, PHASE and the Sierra Club - Atlantic Chapter; and Richard Brodsky.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247/286-LR

)

)

(Indian Point Nuclear Generating Station, )

Units 2 and 3) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing LB MEMORANDUM AND ORDER (RULING ON PETITIONS TO INTERVENE AND REQUESTS FOR HEARING) (LBP-08-13) have been served upon the following persons by U.S. mail, first class, or through NRC internal distribution.

Office of Commission Appellate Administrative Judge Adjudication Lawrence G. McDade, Chair U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Administrative Judge Administrative Judge Richard E. Wardwell Kaye D. Lathrop Atomic Safety and Licensing Board Panel 190 Cedar Lane E.

Mail Stop - T-3 F23 Ridgway, CO 81432 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Sherwin E. Turk, Esq. Arthur J. Kremer, Chairman Beth N. Mizuno, Esq. New York AREA David E. Roth, Esq. 347 Fifth Avenue, Suite 508 Jessica A. Bielecki, Esq. New York, NY 10016 Marcia J. Simon, Esq.

Karl Farrar, Esq.

Brian Newell, Paralegal Office of the General Counsel Mail Stop - O-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001

2 Docket Nos. 50-247/286-LR LB MEMORANDUM AND ORDER (RULING ON PETITIONS TO INTERVENE AND REQUESTS FOR HEARING) (LBP-08-13)

Michael J. Delaney, Vice President - Energy Robert D. Snook, Esq.

New York City Assistant Attorney General Economic Development Corporation of the State of Connecticut 110 William Street 55 Elm Street New York, NY 10038 P.O. Box 120 Hartford, CT 06141-0120 Martin J. ONeill, Esq. Thomas F. Wood, Esq.

Kathryn M. Sutton, Esq. Daniel Riesel, Esq.

Paul M. Bessette, Esq. Counsel for the Town of Cortlandt Mauri T. Lemoncelli, Esq. Sive, Paget & Riesel, P.C.

Morgan, Lewis & Bockius LLP 460 Park Avenue 1111 Pennsylvania Avenue, NW New York, NY 10022 Washington, DC 20004 Daniel E. ONeill, Mayor Nancy Burton Village of Buchanan Connecticut Residents Opposed to James Seirmarc, M.S., Liaison to Indian Point Relicensing (CROIP) 236 Tate Avenue 147 Cross Highway Buchanan, NY 10511 Redding Ridge, CT 06876 Charlene M. Indelicato, Esq. Janice A. Dean, Assistant Attorney General Westchester County Attorney Office of the Attorney General Justin D. Pruyne, Esq. of the State of New York Assistant County Attorney 120 Broadway, 26th Floor 148 Martine Avenue, 6th Floor New York, NY 10271 White Plains, NY 10601 Andrew M. Cuomo, Esq. Joan Leary Matthews, Esq.

Attorney General of the State of New York Senior Counsel for Special Projects John J. Sipos, Esq. Office of General Counsel Assistant Attorney General New York State Department of The Capitol Environmental Conservation Albany, NY 12224-0341 625 Broadway Albany, NY 12224

3 Docket Nos. 50-247/286-LR LB MEMORANDUM AND ORDER (RULING ON PETITIONS TO INTERVENE AND REQUESTS FOR HEARING) (LBP-08-13)

FUSE USA Elise N. Zoli, Esq.

Heather Ellsworth Burns-DeMelo Goodwin Procter, LLP John LeKay Exchange Place Remy Chevalier 53 State Street Belinda J. Jaques Boston, MA 02109 Bill Thomas 351 Dyckman Street Peekskill, New York 10566 Diane Curran, Esq. Riverkeeper, Inc.

Counsel for Riverkeeper, Inc. Phillip Musegaas, Esq.

Harmon, Curran, Spielberg, Victor Tafur, Esq.

& Eisenberg, LLP 828 South Broadway 1726 M. Street NW, Suite 600 Tarrytown, NY 10591 Washington, DC 20036 Westchester Citizens Awareness Network Mylan L. Denerstein (WestCan), Citizens Awareness Network Executive Deputy Attorney General (CAN), etc. Social Justice Office of the Attorney General Susan H. Shapiro, Esq. of the State of New York 21 Perlman Drive 120 Broadway, 25th Floor Spring Valley, NY 10977 New York, NY 10271 Richard L. Brodsky Assemblyman 5 West Main Street Suite 205 Elmsford, NY 10523 Sarah L. Wagner, Esq.

Legislative Office Building, Room 422 Albany, NY 12248

4 Docket Nos. 50-247/286-LR LB MEMORANDUM AND ORDER (RULING ON PETITIONS TO INTERVENE AND REQUESTS FOR HEARING) (LBP-08-13)

Manna Jo Greene, Director Hudson River Sloop Clearwater, Inc.

112 Little Market St.

Poughkeepsie, NY 12601 Stephen C. Filler, Board Member Hudson River Sloop Clearwater, Inc.

303 South Broadway, Suite 222 Tarrytown, NY 10591

[Original signed by Christine M. Pierpoint]

Office of the Secretary of the Commission Dated at Rockville, Maryland this 31st day of July 2008