ML102030050

Applicant'S Petition for Interlocutory Review of LBP-10-13

ML102030050
Person / Time
Site:	Indian Point
Issue date:	07/15/2010
From:	Bessette P Entergy Nuclear Operations, Morgan, Morgan, Lewis & Bockius, LLP
To:	NRC/OCM
SECY RAS
References
50-247-LR, 50-286-LR, LBP-10-13, RAS E-375
Download: ML102030050 (35)

Text

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DOCKETED USNRC UNITED STATES OF AMERICA June 16, 2010 (8:30 a.m.)

NUCLEAR REGULATORY COMMISSION OFFICE OF SECRETARY RULEMAKINGS AND BEFORE THE COMMISSION ADJUDICATIONS STAFF In the Matter of ) Docket Nos. 50-247-LR and

) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )

)

(Indian Point Nuclear Generating Units 2 and 3) )

I July 15, 2010 APPLICANT'S PETITION FOR INTERLOCUTORY REVIEW OF LBP-10-13 William C. Dennis, Esq. Kathryn M. Sutton, Esq.

Entergy Nuclear Operations, Inc. Paul M. Bessette, Esq.

440 Hamilton Avenue MORGAN, LEWIS & BOCKIUS LLP White Plains, NY 10601 1111 Pennsylvania Avenue, N.W.

Phone: (914) 272-3202 Washington, D.C. 20004 Fax: (914) 272-3205 Phone: (202) 739-5738 E-mail: wdennis@entergy.com E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com Martin J. O'Neill, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1000 Louisiana Street Suite 4000 Houston, TX 77002 Phone: (713) 890-5710 E-mail: martin.oneill@morganlewis.com COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC.

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TABLE OF CONTENTS Page TA B LE O F A UTH O RITIE S ......................................................................................................... ii I. PRELIM INARY STATEM ENT ................................................................................. 2 II. APPLICABLE REQUIREMENTS .............................................................................. 5 A. 10 C.F.R. Part 54-Aging Management Review .............................................. 5 B. 10 C.F.R. Part 51--Environmental Review and SAMA Analysis .................... 5 III. OVERVIEW OF THE INDIAN POINT SAMA ANALYSES ..................................... 7 IV.

SUMMARY

OF THE PROCEEDINGS BELOW ..................................................... 11 V. THE BOARD'S RULING IS CLEARLY ERRONEOUS .......................................... 13 A. The Board Overlooked Contrary and Controlling Legal Authorities in Concluding That NEPA Can Require Implementation of Cost-Beneficial SA M A s ................................................................................................................ 13 B. The Board Improperly Conflated the NRC's License Renewal Regulations and Part 50 Backfit Process in Concluding That the Staff May Require Implementation of All Cost-Beneficial SAMAs as a Condition Precedent to L icense Renew al .......................................................................................... 16 C. Due to the Board's Clearly Reversible Legal Error, Neither Basis Underlying the Board's Admission of NYS-35/36 Constitutes a "Triable Issue of F act"................................................................................................ . . 20 VI. INTERLOCUTORY REVIEW IS WARRANTED ................................................... 23 V II. CO N C L U S ION ............................................................................................................... 25

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TABLE OF AUTHORITIES Page DECISIONS A. U.S. Supreme Court Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc.

4 6 2 U .S . 87 (19 83) ......................................................................................................................... 14 Bowman Transp., Inc. v. Ark.-Best FreightSys., Inc.,

4 19 U .S . 2 8 1 (1974 ) ....................................................................................................................... 21 Burlington Truck Lines v. United States 371 U .S. 156 (1962) ............................. I.................................................................. 21 Motor Vehicle ManufacturersAssociation of the United States, Inc.

v. State Farm Mutual Automobile Insurance Co.

463 U .S . 29 (1983) ........................................................... ............................................................. 21 Robertson v. Methow Valley Citizens Council 490 U .S . 332 (1989) ................................................................................................... 3, 4, 13, 14, 15 Strycker 's Bay NeighborhoodCouncil, Inc. v. Karlen 444 U .S . 223 (19 80) ....................................................................................................................... 13 Vermont Yankee Nuclear Power Corp. v. NaturalResources Defense Council, Inc.

4 3 5 U .S . 5 19 (19 7 8) ....................................................................................................................... 13 B. U.S. Court of Appeals County of Rockland v. FederalAviation Administration 335 Fed.A ppx. 52 (D C . Cir. 2009) ........................................................................................... 14 Highway J Citizens Group v. Mineta 349 F.3d 938 (7th C ir. 2003) ................................................................................................... 21 Laguna Greenbelt, Inc. v. US. Department of Transportation 42 F .3d 517 (9th C ir. 1994) ........................................................................................................ 14 Limerick Ecology Action v. Nuclear Regulatory Commission 869 F .2d 719 (3d C ir. 1989) ....................................................................................................... 7 NationalParks & ConservationAssociation v. US. Department of Transportation 222 F.3d 677 (9th C ir. 2000) .................................................................................................... 14

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TABLE OF AUTHORITIES Page NaturalResources Defense Council,Inc. v. Federal Aviation Administration 564 F.3d 549 (2d C ir. 2009) ...................................................................................................... 14 Sierra Club v. US. Army Corps of Engineers 295 F.3d 1209, 1216 (llth C ir. 2002) ..................................................................................... 21 Union of ConcernedScientists v. Nuclear Regulatory Commission 824 F .2d 108 (D .C . C ir. 1987) ................................................................................................... 18 C. Nuclear Regulatory Commission Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 2 & 3)

LB P-83-36, 18 N RC 45 (1983) ................................................................................................. 24 CarolinaPower & Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 & 4)

C LI-80-12, 11 N R C 514 (1980) ................................................................................................ 24 CarolinaPower & Light Co. (Shearon Harris Nuclear Power Plant)

C LI-00-1 1, 51 N R C 297 (2000) ................................................................................................. 24 CarolinaPower & Light Co. (Shearon Harris Nuclear Power Plant, Unit 1)

LB P-07-11, 66 N RC 4 1 (2007) ................................................................................................ 16, 17 ConsolidatedEdison Co. of New York (Indian Point, Unit No. 2)

C LI-85-6, 21 N R C 1043 (1985) ................................................................................................. 18 Dominion Nuclear North Anna, LLC (Early Site Permit for North Anna ESP Site)

CLI-07-27, 66 N R C 215, 233 (2007) ........................................................................................ 19 Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility)

C L 7, 55 N R C 205 (2002) ........................................................................................................ 23 Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2)

C LI-01-20, 54 N RC 211 (2001) ................................................................................................. 5,22

-111-

TABLE OF AUTHORITIES Page Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2)

C LI-02-17, 56 N RC 1 (2002) ................................................................................... 7, 14, 15, 17, 22 Duke Energy Corp., (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2)

C LI-02-28, 56 N RC 373 (2002) ............................................................................................... 15, 18 Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2)

C LI-03-17, 58 NRC 419 (2003) ................................................................................................ 4, 15 Entergy Nuclear Operations Inc. (Indian Point Nuclear Generating Units 2 & 3)

C LI-09-06, 69 N RC 128 (2009) ................................................................................................. 23 Entergy Nuclear Operations,Inc. (Indian Point Nuclear Generating Units 2 and 3)

LBP-10-13, slip op. (June 30, 2010) ........................................ 1, 2, 3, 11, 12, 13, 16, 17, 20, 21, 24 Entergy Nuclear Operations,Inc. (Pilgrim Nuclear Power Station)

CLI-06-26, 64 NR C 225 (2006) ........................................................................................... 4, 16 Entergy Nuclear Operations Inc. (Pilgrim Nuclear Power Station)

C LI-07-2, 65 N R C 10 (2007) ................................................................................................... 23 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station)

CLI-09-11, 69 NRC 529 (2009) ............................................. 22 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station)

CLI 11, slip op. (Mar. 26, 2010) .......................................................................... 6, 7, 19, 20, 22 FloridaPower & Light Co. (Turkey Point Nuclear Power Plant, Units 3 & 4)

C LI-01-17, 54 NR C 3 (2001) ................................................................................................. 5, 24 Offshore Power Systems (Floating Nuclear Power Plants)

A LA B-489, 8 N RC 194 (1978) ................................................................................................. 24 PrivateFuel Storage,L.L. C. (Independent Spent Fuel Storage Facility)

C LI-98-7, 47 N RC 307 (1998) ................................................................................................. 23 Sacramento Municipal Utility District(Rancho Seco Nuclear Generating Station)

C LI-94-2, 39 N RC 91 (1994) ................................................................................................... 23

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TABLE OF AUTHORITIES Page Safety Light Corp. (Bloomsburg Decontamination & License Renewal Denials)

CLI-92-13, 36 NRC 79 (1992) ........................................... 23, 24 FEDERAL STATUTES A dm inistrative Procedure A ct .............................................................................................. 1, 11, 21 Atom icE nergy A ct ........................................................................................................................ 11 N ational Environm ental Policy Act ................................................................................. 1, 3, 11, 20 FEDERAL REGULATIONS 10 C.F.R . § 2.206 ........................................................................................................................... 16 10 C.F.R . § 2.309(f)(1) ............................................................................................................ 5 10 C.F.R . § 2.341(f)(2) .................................................................................................... 1, 2, 16, 23 10 C.F.R . Part 50 ................................................................ .............................................. 3, 4, 17, 24 10 C.F.R . § 50.36b ........................................................................................................................ 17 10 C.F.R . § 50.109 ......................................................................................................................... 19 10 C.F.R . § 50.109(a)(3) ................................................................................................................ 18 10 C.F.R . § 50.109(a)(4)(i)-(iii) ................................................................................................ 18 10 C.F.R . § 50.109(c) .................................................................................................................... 18 10 C.F.R . Part 51 ................................................................................................ 3,4, 5, 6, 10, 17,22 10 C.F.R . Part 51, Subpart A , Appendix B, Table B-1 .......................................................... 3, 6 10 C.F.R . § 51.53(c)(3)(ii)(L) ...................................................................................................... 3, 6 10 C.F.R . § 51.75(d) ....................................................................................................................... 5

TABLE OF AUTHORITIES Page 10 C .F .R. § 5 1.95(c) ............................................................................................................... 5, 6, 2 1 10 C .F .R . P art 54 .................................................................................................... 3, 4, 5, 17, 2 1, 22 10 . C .F .R. § 54 .4 .............................................................................................................................. 5 10 C .F .R . § 54 .2 1((a) ......................................................................................................................... 5 10 C .F .R . § 54 .2 9 (a) ....................................................................................................................... 21 10 C .F .R . § 54 .33 (b ) ...................................................................................................................... 17 10 C .F .R . § 54 .33(c) ........................................................................................................................ 17 FEDERAL REGISTER Final Rule, Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22,461(M ay 8, 1995) ............................................................................................ 5 Final Rule; Environmental Review for-Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467 (June 5, 1996) ................................... 5, 6, 7, 19 Final Rule; Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 66,537 (Dec. 18, 1996) ............................................... 5 MISCELLANEOUS NEI 05-01, Rev. A, Severe Accident Mitigation Alternatives (SAMA)

Analysis, Guidance Document (Nov. 2005) ................................................................ 7, 8, 9, 10 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (May 1996) ..................................................................................... 3 NUREG-1850, Frequently Asked Questions on License Renewal of Nuclear Power Reactors (Mar. 2006) ................................................................................... 21 Final License Renewal Interim Staff Guidance LR-ISG-2006-03:

Staff Guidance for Preparing Severe Accident Mitigation Alternatives Analyses (A ug. 2, 2007) .......................................................................................................... 8

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of ) Docket Nos. 50-247-LR and

) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )

)

(Indian Point Nuclear Generating Units 2 and 3) )

_) July 15, 2010 APPLICANT'S PETITION FOR INTERLOCUTORY REVIEW OF LBP-10-13 Pursuant to 10 C.F.R. § 2.34 1(f)(2), Entergy Nuclear Operations, Inc. ("Entergy")

requests that the Commission grant interlocutory review of the Atomic Safety and Licensing Board's ("Board") June 30, 2010 Memorandum and Order ("Order"), insofar as it admits New York State ("NYS") consolidated contention NYS-35/36 in the above-captioned proceeding.'

NYS-35/36 purports to challenge Entergy's revised analysis of severe accident mitigation 2

alternatives ("SAMA") for Indian Point Units 2 and 3 ("IP2" and "IP3").

In its Order, the Board held that that NRC Staff "must"-as a "prerequisite" to extending the IP2 and IP3 operating licenses-impose license conditions mandating implementation of potentially cost-beneficial SAMAs. 3 Alternatively, the Staff must "explain why it has not instituted a backfit" to the IP2 and IP3 current licensing bases ("CLB") under Part 50 as a "condition precedent" to license renewal. 4 The Board further states that the failure to take either of these actions could constitute a failure by the Staff to meet its "hard look" obligations under Entergy Nuclear Operations,Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-10-13, slip op. at 35 (June 30, 2010) ("Order" or "LBP-10-13").

2 See NL-09-165, Letter from Fred Dacimo, Entergy, to NRC, "License Renewal Application - SAMA Reanalysis Using Alternate Meteorological Data" (Dec. 11, 2009), availableat ADAMS Accession No. ML093580089

("Revised SAMA Analysis").

3 LBP-10-13, slip op. at 28 & 30.

4 Id. at28.

the National Environmental Policy Act ("NEPA") and the Administrative Procedure Act 5

("APA"), thereby purportedly giving rise to a "triable issue of fact."

For the reasons set forth below, the admission of NYS-35/36 plainly affects the basic structure of the proceeding in a pervasive or unusual manner. By admitting NYS-35/36, the Board has (1) ignored controlling U.S. Supreme Court and Commission precedent, (2) imposed obligations on Entergy and the NRC Staff that have no basis in applicable law, (3) expanded the scope of this proceeding far beyond the long-standing and well-defined limits established by the Commission's regulations, (4) exceeded its jurisdiction, and (5) improperly directed the Staff in the conduct of its licensing review. Accordingly, prompt interlocutory review and reversal of the Board's ruling is warranted in these extraordinary circumstances.

I. PRELIMINARY STATEMENT This appeal presents an important and novel legal question, the resolution of which cannot and should not await the conclusion of this proceeding. Does the Board in a license renewal proceeding have the legal authority to require the NRC Staff, as a prerequisite to license renewal, to impose a license condition requiring the implementation of potentially cost-beneficial SAMAs that are unrelated to aging management? Alternatively, can the Board require the NRC Staff to undertake a backfit analysis under Part 50 to justify any decision not to impose such a license condition, solely for the purpose of satisfying its obligations under NEPA and Part 51 ?

Absent such Board authority, there simply is no valid basis for the admission of NYS-35/36. Specifically, the threshold legal question raised by this appeal derives directly from the Board's stated basis for admitting NYS-35/36; to wit, its conclusion that NEPA and Part 51, when read in concert with the NRC's Part 50 backfit rule, require-or even permit-the NRC 5 LBP-10-13, slip op. at 5, 28 & 35.

6 See 10 C.F.R. § 2.341(f)(2)(ii).

Staff "to institute a backfit prior to license renewal" to require implementation of SAMAs, even 7

if they have no nexus (actual or alleged) to aging management during the license renewal term.

There is nothing routine about the contention admissibility ruling at issue here. The Board's ruling is inconsistent with established law construing NEPA and the NRC's license renewal rules and has resulted in the admission of a contention that fundamentally alters the nature and scope of the NRC Staff s NEPA review as it pertains to mitigation analysis. The U.S.

Supreme Court has long held that "NEPA imposes no substantive requirement that mitigation measures actually be taken." 8 By ignoring this controlling precedent-as faithfully applied by the Commission-the Board imposes new, substantive obligations with no basis in law. In doing so, the Board confuses NEPA's and Part 5 l's requirements with the safety requirements of Part 54, which focuses solely on aging management matters and, in any event, excludes current licensing basis issues addressed under Part 50, including cost-justified safety backfits.

Importantly, the NRC's generic environmental impact statement ("GEIS") for license renewal already contains a thorough NEPA evaluation of the probability and consequences of severe reactor accidents and concludes that the associated impacts are "small for all plants" (i.e.,

the radiological impacts do not exceed permissible levels established in the NRC's regulations). 9 And, in accordance with 10 C.F.R. § 51.53(c)(3)(ii)(L), the NRC Staff s draft supplemental environmental impact statement ("DSEIS") for IP2 and IP3 license renewal fully evaluates and discloses possible mitigation measures based on the Staff s independent review of Entergy's 7 LBP-10-13, slip op. at 29.

Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 353 n.16 (1989).

9 See 10 C.F.R. pt. 51, subpt. A, app. B, tbl. B-1 (Postulated Accidents; Severe accidents); NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, vol. 1, at 1-4 (May 1996), available at ADAMS Accession Nos. ML040690705.

SAMA analyses. As the Commission noted in another license renewal proceeding involving a 10 contested SAMA analysis, "NEPA requires no more."

Further, by seeking to require implementation of SAMAs through the Part 50 backfit process, the Board has exceeded its authority and the bounds of this proceeding. The backfit rule does not expand an applicant's obligations or the Staff s authority under Parts 51 and 54. Rather, it creates a process, separate and distinct from license renewal, by which the NRC may require safety-based measures after initial licensing if they are cost-justified and achieve "a substantial increase in the overall protection of the public health and safety."" The Board's Order that the facility backfits are a "condition precedent" to license renewal contravenes the Commission's own holding that backfit requests are "not suitable for a license renewal adjudication."'12 Finally, the consideration of SAMAs is required by the NRC's NEPA-implementing regulations in Part 51--not by the agency's safety-based requirements in Part 50 or the subset of safety requirements in Part 54. To ensure that environmental concerns have been sufficiently evaluated, an EIS must contain only a "reasonably complete discussion" of measures to mitigate impacts. 13 While NEPA demands that a "hard look" be given to the potential measures for mitigating environmental impacts, it does not provide a basis for mandating the implementation 14 of such mitigation measures.

10 Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-03-17, 58 NRC 419, 431 (2003).

11 10 C.F.R. § 50.109(a)(3).

12 Entergy Nuclear Operations,Inc. (Pilgrim Nuclear Power Station), CLI-06-26, 64 NRC 225, 226-27 (2006).

13 Methow Valley, at 351-52.

14 Id. at 333.

II. APPLICABLE NRC REQUIREMENTS The scope of a license renewal proceeding is limited to discrete safety and environmental issues, as defined by the Commission's regulations at 10 C.F.R. §§ 54.4 and 54.21(a) and 10 C.F.R. §§ 51.75(d) and 51.95(c)."5 Licensing Boards "shall be guided by these regulations" in assessing the admissibility of contentions under 10 C.F.R. § 2.309(f)(1).16 A. 10 C.F.R. Part 54-Aging Managiement Review Part 54 governs license renewal. It is limited in scope to aging-related matters and does not require applicants to revisit CLB issues that fall outside its limited scope.1 7 Part 54 requires applicants to demonstrate how current or proposed programs will effectively manage the effects of aging during a period of extended operation, such that "important systems, structures, and components will continue to perform their intended function in the period of extended operation.18 The NRC may issue a renewed license if the standards in Section 54.29 are met.

B. 10 C.F.R. Part 51-Environmental Review and SAMA Analysis The NRC promulgated Part 51 to implement NEPA's requirements and, in 1996, specifically amended Part 51 to address the scope of its environmental review for license renewal applications. 19 The NRC divided the environmental requirements for license renewal into generic and plant-specific components. It prepared the GEIS to evaluate and document those generic impacts that are well understood based on extensive current-fleet operating experience.

5 Duke Energy Corp. (McGuire Nuclear Station, Units I & 2; Catawba Nuclear Station, Units 1 & 2), CLI-01-20, 54 NRC 211, 212 (2001) (citing Fla. Power & Light Co. (Turkey Point Nuclear Power Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 6-13 (2001)).

16 Id. at 213.

17 Turkey Point., CLI-01-17, 54 NRC at 7-9 & 21.

18 Final Rule, Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22,461, 22,463 (May 8, 1995) ("1995 Part 54 Rulemaking"). See also 10 C.F.R. § 54.21(a). For example, applicants must identify any additional actions (e.g., inspections, testing, maintenance) needed to manage aging effects during the license renewal term.

19 See Final Rule; Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467 (June 5, 1996), amended by 61 Fed. Reg. 66,537 (Dec. 18, 1996) ("1996 Part 51 Rulemaking").

The NRC Staff must prepare a plant-specific supplement to the GEIS that adopts applicable generic impact findings from the GEIS, evaluates any new and significant information, and discusses site-specific impacts. 20 Under Section 51.95(c)(4), the relevant "decision standard" is "whether the adverse environmental impacts of license renewal (when compared with the environmental impacts of other energy generating alternatives) are so great that preserving the 21 option of license renewal for energy planning decisionmakers would be unreasonable.'"

The GEIS provides a generic "bounding" evaluation of severe accident impacts and the technical basis for that evaluation.22 Based on the GEIS evaluation, Part 51 concludes that the

"[t]he probability weighted consequences of atmospheric releases, fallout onto open bodies of water, releases to ground water, and societal and economic impacts from severe accidents are small for all plants." 23 Thus, a plant-specific analysis of severe accident impacts is not required in individual license renewal proceedings.

Part 51, nonetheless, provides that "[i]f the staff has not previously considered [SAMAs]

for the applicant's plant in an environmental impact statement or in an environmental assessment, a consideration of alternatives to mitigate severe accidents must be provided."24 In 1996, the Commission explained that the site-specific SAMA analysis requirement is based on the Commission's NEPA regulations (which require a consideration of mitigation alternatives in initial and supplemental EISs), and the Third Circuit's 1989 Limerick decision (which requires a NEPA review of severe accident mitigation design alternatives ("SAMDAs") at the initial 20 10 C.F.R. § 51.95(c).

21 1996 Part 51 Rulemaking, 61 Fed. Reg. at 28,485. See also 10 C.F.R. § 51.95(c)(4).

22 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-1 1, slip op. at 37-38 (Mar. 26, 2010).

23 10 C.F.R. pt. 51, subpt. A, app. B, tbl. B-1 (Postulated Accidents; Severe accidents) (emphasis added).

24 Id. § 51.53(c)(3)(ii)(L); see also 10 C.F.R. pt. 51, subpt. A, app. B, tbl. B-1.

operating license stage). 25 The Commission further explained that, at the time, it could not reach a generic conclusion regarding mitigation alternatives because all licensees had not completed the agency's Part 50-based ongoing regulatory program related to severe accident mitigation.26 SAMA analysis uses probabilistic safety analysis and cost-benefit analysis techniques to identify and assess possible plant modifications that could further reduce the radiological risk from a severe accident by preventing substantial core damage or by limiting releases from containment after any substantial core damage. 27 Whether a SAMA may be worthwhile to implement is based upon a weighing of the cost to implement the SAMA with the reduction in (monetized) risks to public health, occupational health, offsite and onsite property. When it imposed the SAMA analysis requirement, the Commission expected that any potentially cost-beneficial SAMAs "generally would be procedural and programmatic fixes, with any hardware 29 changes being only minor in nature and few in number."

III. OVERVIEW OF THE INDIAN POINT SAMA ANALYSES Entergy originally submitted its SAMA analyses in April 2007 as part of the Environmental Report ("ER") for the Indian Point license renewal application. 30 Entergy followed the NRC-approved guidance contained in NEI 05-01 in preparing its SAMA analysis.31 25 1996 Part 51 Rulemaking, 61 Fed. Reg. at 28,480. See also Limerick Ecology Action v. NRC, 869 F.2d 719, 736-39 (3d Cir. 1989) (holding that the NRC could not generically dispense with the consideration of SAMDAs, under NEPA, through a policy statement issued pursuant to its Atomic Energy Act authority).

26 See 1996 Part 51 Rulemaking, 61 Fed. Reg. at 28,480-81 (discussing the SAMA analysis requirement).

27 See id. at 28,480-82; Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1

& 2), CLI-02-17, 56 NRC 1, 5 (2002). See also Pilgrim, CLI-10-1 1, slip op. at 38-39 (stating that SAMA analysis "is neither a worst-case nor a best-case impacts analysis," but "an averaging of potential consequences.").

28 Catawba/McGuire,CLI-02-17, 56 NRC at 7-8.

29 1996 Part 51 Rulemaking, 61 Fed. Reg. at 28,481.

30 See generally, ER sec. 4.21 & att. E (Severe Accident Mitigation Alternatives Analysis), available at http://www.nrc.gov/reactors/operating/licensing/renewal/applications/indian-point.html#application (follow the links to the relevant section and attachment of the ER).

31 NEI 05-01, Rev. A, Severe Accident Mitigation Alternatives (SAMA) Analysis, Guidance Document (Nov. 2005),

available at ADAMS Accession No. ML060530203 ("NEI 05-01"). NEI 05-01 "relies upon NUREG/BR-0184 First, Entergy quantified the level of risk associated with potential reactor accidents using the plant-specific insights acquired from other prior risk assessments for each unit. Consistent with NEI 05-01 and state-of-the-art industry practice, Entergy used the NRC-approved MELCOR Accident Consequence System 2 ("MACCS2") code to calculate the offsite consequences using 32 site-specific meteorological, population, and economic data.

Entergy identified 231 candidate SAMAs for IP2 and 237 SAMAs for IP3 ("Phase I" SAMAs).33 It then performed an initial screening in which it removed Phase I SAMAs that were not applicable to IP2 and IP3 for design-related reasons, were already implemented at IPEC, or could be combined with other, similar SAMA candidates. 34 This screening process reduced the list of potential SAMAs to 68 for IP2 and 62 for IP3 ("Phase II" SAMAs).35 Entergy then prepared monetized estimates of how much each SAMA could reduce risk as well as cost estimates for implementing each candidate. 36 This process included reviewing cost estimates prepared by other licensees for similar improvements considered in prior NRC-approved SAMA analyses. 37 Consistent with NEI 05-01 guidance, Entergy developed conceptual cost estimates for implementing each SAMA candidate to an extent that allowed it to reasonably assess the economic viability of the proposed improvement.38 regulatory analysis techniques, is a result of experience gained through past SAMA analyses, and incorporates insights gained from review of NRC evaluations of SAMA analyses and associated RAIs." Id. at i. The NRC Staff has endorsed NEI 05-01. See also FinalLicense Renewal Interim Staff Guidance LR-ISG-2006-03: Staff Guidance for PreparingSevere Accident MitigationAlternatives Analyses (Aug. 2, 2007), available at ADAMS Accession No. ML071640133 (recommending that license renewal applicants follow NEI 05-01 for complete SAMA analyses).

32 DSEIS, vol. 1, at 5-5; id, vol. 2, app. G at G-1 & G-17, available at http://www.nrc.gov/reading-rm/doc-collections/

nuregs/staff/srl437/supplement3 8/.

33 Id., vol. 1, at 5-4; id vol. 2, app. G at G-1 & G-20.

34 Id., vol. 1, at 5-4; id vol. 2. app. G at G-20.

35 Id., vol. 1, at 5-4 to 5-5; id. vol. 2. app. G at G-20.

36 Id., vol. 1, at 5-5 & 5-8; id vol. 2, app. G at G-22 to G-24.

37 Id., vol. 1, at 5-5; id vol. 2, app. G at G-24.

38 ER, att. E at E.2-3 to E.2-4 & E.4-3 to E.4-4. The process used by Entergy to estimate SAMA implementation costs and discussed in the ER is based on the approach described in NEI 05-01:

Finally, Entergy assessed whether the benefits of the Phase II SAMAs exceeded the costs of implementing those SAMAs. 39 To account for uncertainties associated with the internal events core damage frequency calculations, Entergy also compared the cost of SAMA implementation with a benefit value estimated by applying an uncertainty multiplier to the internal and external events estimated benefit (i.e., the "baseline benefit with uncertainty").4 ° Entergy and the NRC Staff identified a total of 16 potentially cost-beneficial SAMAs.41 As Entergy explained, because a SAMA analysis is conservative and is not a complete engineering project cost analysis, it does not estimate all of the costs of a SAMA. As a result, Entergy indicated that it had submitted the potentially cost-beneficial SAMAs for internal 42 engineering project analysis, even though they are unrelated to aging management.

In November 2009, as part of its ongoing environmental review, the NRC Staff sought clarification regarding certain wind direction data used by Entergy as an input to the MACCS2 code. 43 In responding to the Staff s inquiry, Entergy determined that the 5-year averaged wind As SAMA analysis focuses on establishing the economic viability of potential plant enhancement when compared to attainable benefit, often detailed cost estimates are not required to make informed decisions regarding the economic viability of a particular modification. SAMA implementation costs may be clearly in excess of the attainable benefit estimated from a particular analysis case. For less clear cases, engineering judgment may be applied to determine if a more detailed cost estimate is necessary to formulate a conclusion regarding the economic viability of a particular SAMA.

Nonetheless, the cost of each SAMA candidate should be conceptually estimated to the point where economic viability of the proposed modification can be adequately gauged.

NEI 05-01, at 28. As NEI 05-01 notes, implementation costs are generally underestimated by neglecting certain cost factors, such as inflation adjustments, replacement power costs during any necessary outages, etc. See id. at 29.

39 DSEIS, vol. 1, at 5-8 to 5-10; id vol. 2, app. G at G-27 to G-35.

40 ER at 4-64 & att. E at E.1-31; DSEIS, vol. 2, app. G at G-31 to G-33.

41 These 16 SAMAs included nine out of 68 Phase II SAMAs for IP2 (9, 28, 44, 53, 54, 56, 60, 61, and 65) and five out of 62 Phase II SAMAs for IP3 (52, 53, 55, 61, and 62), and an additional (unnumbered) SAMA for both IP2 and IP3 involving a dedicated gagging device for steam generator tube rupture events.

42 See, e.g., ER at 4-73.

43 See Email from Kimberly Green, NRC, to Michael Stroud, Entergy, "Telecon Summaries for November 3rd and 9th" (Nov. 18, 2009) (telecon summaries attached), available at ADAMS Accession No. ML093220329.

direction data used in the original SAMA Analysis were not representative of the region's wind direction conditions for the five-year period (2000-2004) originally considered by Entergy.44 Consequently, in December 2009, Entergy submitted its Revised SAMA Analysis, in which it used a single, representative year of meteorological data. 45 Entergy selected the year 2000 because, of the five years of data used in the original analysis, this year resulted in the most conservative (i.e., largest) calculated population doses.46 Entergy performed the revised analysis for the most conservative case. 47 With relatively few exceptions, Entergy used the same implementation cost estimates reported in ER Tables E.2-2 and E.4-2. 48 Consistent with NEI 05-01, for some less clear cases, Entergy prepared more detailed cost estimates to reach a reasonable conclusion concerning the economic viability of a particular SAMA.49 Entergy identified six additional potentially cost-beneficial SAMAs, none of which is related to aging management. 5 As with the 16 potentially cost-beneficial SAMAs that were previously identified, Entergy indicated that it would submit these six additional SAMAs for further internal engineering project cost analysis, even though they do not relate to adequately managing the effects of aging and need not be implemented as part of license renewal.51 Significantly, Entergy never stated (or believed) that its SAMA analyses, including its cost estimates, were incomplete for purposes of the submission required by 10 C.F.R. Part 51.

44 See NL-09-151, Letter from Fred Dacimo, Entergy, to NRC, Telephone Conference Call Regarding Met Tower Data for SAMA Analysis at 1 (Nov. 16, 2009) ("NL-09-151"), available at ADAMS Accession No. ML093340049.

45 Revised SAMA Analysis, att. 1, at 3.

46 Id. at 3 & 5. The use of one year of meteorological data also is permitted by NEI 05-01. NEI 05-01, at 15 (stating that an applicant may use a "full year" of consecutive hourly values).

47 Revised SAMA Analysis, att. 1, at 3-4.

48 Id. at7.

49 Id. at 8-9; NEI 05-01, at 28.

50 Revised SAMA Analysis, att. 1, at 31-32. The six additional SAMAs included three for IP2 (21, 22, 62) and three for IP3 (7, 18, 19).

51 Id. at 32; see also ER at 4-73.

IV.

SUMMARY

OF THE PROCEEDINGS BELOW52 The Board's Order details the underlying procedural history and the parties' specific arguments. In brief, on March 11, 2010, NYS submitted proposed new contentions NYS-35 and NYS-36 as purported challenges to Entergy's Revised SAMA analyses.53 NYS-35 alleged that, for nine specific SAMAs, Entergy has "indefinitely postponed" the engineering cost-benefit analyses required to determine whether those SAMAs are cost-effective and should be required to be implemented by license condition. NYS-36 alleged that for nine other SAMAs, the difference between the estimated costs and benefits is so great that refined cost estimates are unlikely to change the outcome, such that implementation is clearly required. Any NRC failure to do so, NYS alleged, would violate the Atomic Energy Act ("AEA"), NEPA, and the APA.

On April 5, 2010, Entergy and the NRC Staff both filed answers opposing the admission of NYS-35 and NYS-36 in their entirety. 54 Entergy and the NRC opposed the admission of these contentions for reasons that parallel those set forth herein. Specifically, both parties contended that the new contentions (in addition to being untimely) lacked a basis in law, raised issues beyond the scope of this proceeding, and failed to raise a genuine material dispute.55 52 This appeal pertains only to the Board's admission of NYS-35/36. In LBP-10-13, the Board also admitted amended contentions NYS-12B and NYS-16B, which essentially reassert issues admitted by the Board in NYS-12A and NYS-16A. See LBP-10-13, slip op. at 9-15. NYS-12B alleges that MACCS2 does not accurately reflect decontamination and clean up costs associated with a severe accident in the New York metropolitan area and, therefore, underestimates the cost of a severe accident. NYS-16B alleges that (i) population projections used by Entergy are too low, (ii) MACCS2 is being used beyond its range of validity (31 miles), and (iii) use of the ATMOS module leads to non-conservative geographical distribution of radioactive dose within a 50-mile radius of Indian Point.

5 See State of New York's Motion for Leave to File New and Amended Contentions Concerning the December 2009 Reanalysis of Severe Accident Mitigation Alternatives (Mar. 11, 2010) ("Motion for Leave"); State of New York's New and Amended Contentions Concerning the December 2009 Reanalysis of Severe Accident Mitigation Alternatives Reanalysis (Mar. 11, 2010) ("New & Amended Contentions").

5 See Applicant's Answer to New York State's New and Amended Contentions Concerning Entergy's December 2009 Revised SAMA Analysis (Apr. 5, 2010) ("Entergy Answer"); NRC Staffs Answer to State of New York's New and Amended Contentions Concerning the December 2009 Severe Accident Mitigation Alternative Reanalysis (Apr. 5, 2010) ("NRC Staff Answer").

5 See Entergy Answer at 21-31; NRC Staff Answer at 13-34.

After extensive discussion on the admissibility of NYS-35 and NYS-36 on April 19, 2010, during a routine scheduled status conference, the Board issued its Order on June 30, 2010.

The Board cited two grounds for admission of consolidated contention NYS-35/36. First, the Board ruled that Entergy must submit "sufficiently complete" and "final" implementation cost estimates for the 18 potentially cost-beneficial SAMAs identified by NYS.56 Otherwise, the Board concluded, the NRC Staff lacks "sufficient facts to satisfy its obligations under NEPA to take a hard look at the environmental consequences that would result from license renewal." 57 The Board admitted NYS-35/36 insofar as it calls for completion of the cost-benefit analysis to 58 determine which SAMAs are cost-beneficial to implement as a "contention of omission."

Second, the Board found that if the benefit-to-cost ratio is "glaringly large" for a potentially cost-beneficial SAMA, "the NRC Staff must, as a prerequisite to extending the license, impose implementation of that SAMA as a license condition or, in the alternative, explain why it is not requiring implementation of that SAMA." 59 It further concluded that the 60 failure to take either of these actions "would be to act arbitrarily and capriciously.'"

While it may be that implementation of non-aging related SAMAs is not directly required as license conditions within a Part 54 license renewal review, the NRC Staff nonetheless is authorized to impose such conditions that are necessary to protect the environment to an applicant's CLB under a Part 50 backfit procedure. Thus, when faced with cost-beneficial SAMAs, an alleged failure by the NRC Staff to explain why it has not instituted a backfit to a CLB as a condition precedent to license renewal could constitute a failure to meet the hard look obligations the NRC Staff has under the APA and NEPA.

Moreover, simply saying that implementation of SAMAs is outside of the scope of license renewal review is not sufficient to meet that 56 LBP-10-13, slip op. at 28-29. See also id at 35 ("Likewise, the applicant must supply information that is sufficiently complete for the Commission to be able to explain its decision.").

57 Id. at 29.

58 Id. at 29-30.

59 Id. at 28.

60 Id.

obligation because the NRC Staff must review SAMAs under Part 51 and has the option, if necessary, to institute a backfit 61 prior to license renewal under Part 50 as a result of its SAM4 review.

V. THE BOARD'S RULING IS CLEARLY ERRONEOUS The specific portions of the Board's decision of which Entergy seeks review are the Board's findings that, to satisfy NEPA and Part 51: (1) the NRC Staff must either require implementation of cost-beneficial SAMAs or, in the alternative, explain why it has decided not to require their implementation prior to license renewal; and (2) Entergy must submit refined or augmented SAMA implementation cost estimates so that the Staff has "sufficient facts" to determine which SAMAs are cost-beneficial to implement. 62 As demonstrated below, the foregoing findings are contrary to established law, without factual basis, and affect the basic structure of this proceeding in a pervasive and unusual manner.

A. The Board Overlooked Contrary and Controlling Legal Authorities in Concluding That NEPA Can Require Implementation of Cost-Beneficial SAMAs The Board's admission of NYS-35/36 rests on the mistaken conclusion that NEPA, when read inconjunction with Part 50 and Part 54, compels implementation of cost-beneficial SAMAs regardless of their nexus to aging management. This conclusion runs counter to one of the most fundamental and settled precepts of NEPA law, as espoused.by the U.S. Supreme Court: "NEPA 63 itself does not mandate particular results, but simply prescribes the necessary process."

61 Id. at 28-29 (emphasis added). In this regard, the Board, incongruously, rejected that "portion" of NYS-35/36 demanding SAMA implementation as "outside the scope of this proceeding." Id at 29.

62 Although Entergy has decided to focus this petition on the two specific issues identified above, it is not waiving its objections to other portions of the Board's decision. In particular, Entergy submits that the Board also erred in ruling that NYS-35/36 was timely because the arguments it raises concerning the sufficiency of Entergy's SAMA implementation cost estimates and the alleged need for license conditions requiring implementation of SAMAs are issues that could have been raised much earlier in this proceeding based on Entergy's ER and/or the NRC Staff's DSEIS. See Entergy Answer at 20-23; see also NRC Staff Answer at 30-35.

63 Methow Valley, 490 U.S. at 350 (citing Strycker's Bay Neighborhood Council,Inc. v. Karlen, 444 U.S. 223, 227-228 (1980) (per curiam); Vt. Yankee NuclearPower Corp. v. NaturalRes. Def Council, Inc., 435 U.S. 519, 558 (1978)).

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Significantly, while the Methow Valley Court acknowledged that the mitigation discussion is "one important ingredient of an EIS", 64 it further noted that:

There is a fundamental distinction . . . between a requirement that mitigation be discussed in sufficient detail to ensure that environmental consequences have been fairly evaluated, on the one hand, and a substantive requirement that a complete 65 mitigation plan be actually formulated and adopted, on the other.

Based in large part on this critical distinction, the Court concluded that "it would be inconsistent with NEPA's reliance on procedural mechanisms-as opposed to substantive, result-based standards-to demand the presence of a fully developed plan that will mitigate environmental harm before an agency can act." 66 Even more unequivocally, the Court stated that "NEPA imposes no substantive requirement that mitigation measures actually be taken." 67 The courts have applied Methow Valley repeatedly in ruling that NEPA requires a "reasonably complete 68 discussion"--but not implementation-of "possible mitigation measures."

The Commission has faithfully applied the holding of Methow Valley in its proceedings.

The Catawba/McGuirelicense renewal proceeding is illustrative. There, the Board admitted a contention, filed by the Blue Ridge Environmental Defense League ("BREDL"), challenging the applicant's SAMA analyses. Although the Commission affirmed, in part, the Board's admission 64 Id., 490 U.S. at 351.

65 Id. at 352.

66 Id. at 352-53 (citing Balt. Gas & Elec. Co. v. NaturalRes. Def Council, Inc., 462 U.S. 87, 100 (1983) ("NEPA does not require agencies to adopt any particular internal decisionmaking structure"))

67 Id. at 353 n. 16 (emphasis added).

68 Id. at 352. See, e.g., Laguna Greenbelt,Inc. v. US. Dep't ofTransp., 42 F.3d 517, 528 (9th Cir. 1994) ("NEPA does not require a fully developed plan that will mitigate all environmental harm before an agency can act; NEPA requires only that mitigation be discussed in sufficient detail to ensure that environmental consequences have been fully evaluated." (citations omitted)); Nat'l Parks & ConservationAss'n v. U.S. Dep't of Trans., 222 F.3d 677, 681 n.4 (9th Cir. 2000) ("Contrary to National Parks' assertion, a mitigation plan need not be legally enforceable, funded or even in final form to comply with NEPA's procedural requirements."); Cnty. of Rockland v. FAA, 335 Fed.Appx. 52 (DC. Cir. 2009) ("NEPA does not impose 'substantive requirement that a complete mitigation plan be actually formulated and adopted" before agency can act") (quoting Methow Valley, 490 U.S. at 352); NaturalRes. Def Council,Inc. v. FAA, 564 F.3d 549, 560-61 (2d Cir. 2009) (relying on Methow Valley in holding that the discussion of mitigation measures in the FAA's EIS for a new airport was adequate).

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of the contention, 69 it later noted~that the contention appeared to be moot because the Staff s draft EISs cured the alleged omission.7 0 The Commission stated that "it is unclear what additional result or remedy would prove meaningful to the Intervenors," 71 and that "the ultimate agency decision on whether to require facilities with ice condenser containments to implement 72 any particular SAMA will fall under a Part 50 current licensing basis review."

In later affirming the Board's denial of an amended contention concerning the beneficial effects of providing backup hydrogen control capability, the Commission held that:

[T]he EISs at issue here already find the backup capability cost-beneficial .... It is not apparent why BREDL continues to pursue the issue. While the cost-benefit discussion in the EISs may not be as detailed or unequivocal as BREDL would like, the Supreme Court has made clear that the underlying statute, NEPA, demands no "fully developed plan" or "detailed explanation of specific measures which will be employed" to mitigate adverse environmental effects.

Under NEPA, mitigation (and the SAMA issue is one of mitigation) need only be discussed in "sufficient detail to ensure that environmental consequences [of the proposed project] have been fairly evaluated." Here, in a generic EIS the NRC has conducted a thorough NEPA evaluation of the probability and consequences of severe reactorplant accidents, and in plant-specific EISs the NRC staff has discussed at length possible' mitigation measures. The mitigation analysis outlines relevant factors, discloses opposing viewpoints, and indicates particular assumptions under which the Staff ultimately concludes that "providing backup power to hydrogen igniters is cost-beneficial." The staff presented its analysis and conclusion based 73 upon the "available technical information." NEPA requires no more.

The import and effect of these holdings could not be clearer: NEPA and Part 51 do not compel implementation of SAMAs, whether cost-beneficial or not.

69 See Catmvba/McGuire, CLI-02-17, 56 NRC at 9-10.

70 Duke Energy Corp., (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-02-28, 56 NRC 373, 387-88 (2002).

71 Id. at 388.

72 Id. n.77 (emphasis added).

73 Catawba/McGuire,CLI-03-17, 58 NRC at 431 (emphasis added) (quoting Methow Valley, 490 U.S. at 353).

B. The Board Improperly Conflated the NRC's License Renewal Regulations and Part 50 Backfit Process in Concluding That the Staff May Require Implementation of All Cost-Beneficial SAMAs as a Condition Precedent to License Renewal Further compounding the error, the Board concluded that "an order by the NRC Staff to implement SAMAs not dealing with aging management can be issued concurrently as part of a Part 50 CLB review" as a "condition precedent to license renewal." 74 The Board erroneously posits that the Staff may "institute a backfit prior to license renewal under Part 50 as a result of 76 its SAMA review."7 5 Again, the Board's ruling is contrary to established law.

First, the Board again overlooks controlling Commission precedent. In the Pilgrim and Vermont Yankee license renewal proceedings, the Massachusetts Attorney General ("AG") filed hearing requests that each included a "Petition for Backfit Order." 77 The AG sought to initiate proceedings to change the storage configuration in the Pilgrim and Vermont Yankee spent fuel pools for asserted environmental and safety reasons. The Commission denied the petitions, noting that they amounted to "a request for agency enforcement action, a request not suitablefor a license renewal adjudicationbut perhaps suitable for consideration under 10 C.F.R. § 2.206."'7 Subsequently, in the Shearon Harrislicense renewal proceeding, a Licensing Board similarly denied the petitioners' request for fire barrier system backfits in light of their proffered contentions, which included SAMA issues. 80 The Board denied the request under the authority 74 LBP-10-13, slip op. at 5 & 28.

75 Id. at 29 (emphasis added).

76 See 10 C.F.R. § 2.341(b)(4)(ii).

77 See Pilgrim,CLI-06-26, 64 NRC at 226 & n.3.

78 Id. at 226. Specifically, the petitions requested that the Commission require each of the spent fuel pools to return "to its original low-density storage configuration and [to] us[e] dry storage for any excess fuel." Id 79 Id. at 226-27 (emphasis added).

80 CarolinaPower & Light Co. (Shearon Harris Nuclear Power Plant, Unit 1), LBP-07-11, 66 NRC 41, 96-97 (2007).

of CLI-06-26, noting that a petition for-backfits is essentially a request for enforcement action 81 under 10 C.F.R. § 2.206 and is "not cognizable in a license renewal adjudication."

As discussed above, the Board's admission of NYS-35/36 is based on the express supposition that the NRC Staff can and sometimes some must institute a backfit to a CLB, as a conditionprecedent to license renewal, to implement SAMAs that have no link to aging management. The necessary implication of the Board's ruling is that requests for SAMA-related backfits to a CLB (even if unrelated to aging management) are cognizable in a license renewal adjudication. This result directly contravenes the Commission and Board holdings cited above.

In effect, the Board has improperly conflated the disparate regulatory processes set forth in Part 54, Part 51, and Part 50. However, these regulations, viewed singly or collectively, do not dictate SAMA-implementing backfits as a "condition precedent" to license renewal. The Staff s Part 54 safety review focuses solely on the detrimental effects of aging that are not routinely addressed by ongoing regulatory oversight programs. 82 Furthermore, individual license renewal proceedings share the same scope of issues as the Staff s review, "for [the] hearing 83 process... necessarily examines only the questions [NRC] safety rules make pertinent."

The Board openly concedes this fact in stating that "an intervenor such as New York cannot 84 demand [SAMA] implementation from the NRC Staff as part of a license renewal proceeding."

The Board's reading of a statement made by the Commission in the Catawba/McGuire license renewal proceeding further underscores this confusion. There, the Commission stated 81 Id. at97.

82 Turkey Point, CLI-01-17, 54 NRC at 7.

83 Id. at 10.

84 LBP-10-13, slip op. at 29. Although the Board cites 10 C.F.R. § 54.33(b) and § 54.33(c), those provisions, by their express terms, apply to circumstances not germane to the consideration or implementation of SAMAs. Section 54.33(b) is a safety-focused regulation that applies only to systems, structures, and components requiring aging management review under Part 54. Section 54.33(c) refers to possible amendment or supplementation of current operating license conditions related to a licensee's ongoing environmental monitoring, reporting, and recordkeeping obligations under 10 C.F.R. § 50.36b.

that "the ultimate agency decision on whether to require facilities with ice condenser containments to implement any particular SAMA will fall under a Part 50 current licensing basis review." 85 The Board construes this statement to mean that the Staff can mandate a SAMA-related CLB backfit "as a prerequisite for the extension" of a plant's operating licenses. This plainly was not the Commission's intent. The Commission prefaced its statement by noting that any need for plant design and procedural changes would be resolved as part of a generic safety issue (GSI-189) and addressed for affected ice condenser plants "as a current operating license issue."86 The Commission also reiterated that NEPA's charge is strictly procedural.87 More fundamentally, the Board appears to misunderstand the purpose and operation of the backfit rule, an AEA-derived requirement that, by its terms, centers on protection of the public health andsafety. It has no bearing on the NRC's compliance with NEPA. It creates a process, separate and distinct from license renewal, by which the NRC may require safety-based measures after initial licensing. In the absence of an "adequate protection" or "compliance" exception, 88 the NRC may order a facility backfit only if it is cost-justified and achieves "a substantial increase in the overall protection of the public health and safety or the common defense and security." 89 Judicial and Commission precedent amplify on this point. 90 85 Catawba/McGuire,CLI-02-28, 56 NRC at 388 n.77.

86 Id. (emphasis added).

87 Id. ("NEPA does not mandate the particulardecisions an agency must reach, only the process the agency must follow while reaching its decisions.") (citations and internal quotation marks omitted).

88 See 10 C.F.R. § 50.109(a)(4)(i)-(iii).

89 See id. § 50.109(a)(3) (emphasis added); see also id § 50.109(c).

90 See, e.g., Union of ConcernedScientists v. NRC, 824 F.2d 108, 118-19 (D.C. Cir. 1987) (explaining that the backfit rule derives from the NRC's authority to under AEA Section 161 to "order plants to provide 'extra-adequate' protection," but that "[u]nder the rule, the Commission may order may order a backfit analyzed in this manner only if the added protection to public health and safety resulting from the backfit justifies the cost of implementation")

(emphasis added); Consol. Edison Co. ofN.Y. (Indian Point, Unit No. 2), CLI-85-6, 21 NRC 1043, 1068 (1985)

(reversing a Board decision to impose a "safety assurance program" because backfits are permitted only when they offer "substantial, additional protection which is required for the public health and safety").

Entergy is not aware of any instance in which the Commission or a Board has invoked the backfit rule to impose plant modifications based on environmental considerations alone. A recent Commission Order suggests that this scenario is unlikely. During the mandatory hearing on the North Anna early site permit ("ESP") application, a dissenting judge questioned why the Staff had not imposed a permit condition requiring that the system design of North Anna's two existing reactors be modified to provide for water saving measures "as a form of offset to the impacts of the proposed new reactors."91 In approving the ESP, the Commission noted that its Notice of Hearing did not permit the Board to attach conditions to the operating licenses for the existing reactor units. 92 Importantly, the Commission further concluded that "such a result would run afoul of our Backfit Rule, which permits the Staff to impose new conditions on existing licenses only under very limited circumstances,none of which the dissent suggests apply 93 here."

The Board's Order suffers from the same flaw. The Board does not suggest that the implementation of any SAMA will achieve a "substantial increase" in the overall protection of public health and safety-a sine qua non for any cost-justified backfit under § 50.109.

Moreover, given Indian Point's compliance with NRC safety requirements and the GEIS's bounding determination that severe accident impacts are small for all plants, it seems likely that the level of risk reduction afforded by the SAMAs at issue would be relatively modest, particularly given the conservatisms inherent in both the GEIS analysis of severe impacts and 94 site-specific SAMA analyses such as those performed for Indian Point.

91 Dominion Nuclear North Anna, LLC (Early Site Permit for North Anna ESP Site), CLI-07-27, 66 NRC 215, 233 (2007).

92 Id. at 233-34.

93' Id at 234 n.103 (emphasis added).

94 The GEIS analyses estimated and used 95 percent upper confidence bounding values (Pilgrim,CLI-10-11, slip op. at

38) and "represent adequate, plant-specific estimates of the impacts from severe accidents that would generally over-C. Due to the Board's Clearly Reversible Legal Error, Neither Basis Underlying the Board's Admission of NYS-35/36 Constitutes a "Triable Issue of Fact" The Board claims that, to meet its NEPA obligations, the Staff must either require implementation of "plainly cost-effective" SAMAs or explain why it has decided not to require their implementation before license renewal.95 For the above reasons, this first purported basis for the admission of NYS-35/36 is legally erroneous and presents no litigable material issue.

The implementation of cost-beneficial SAMAs (or a backfit analysis justifying their non-implementation) is not necessary to the NRC's compliance with its "hard look" obligations under NEPA. Here, the Staff already has taken the necessary "hard look" at severe accident impacts in the GEIS and found them to be small for all plants. "NRC SAMA analyses are not a substitute 96 for, and do not represent, the NRC NEPA analysis of potential impacts of severe accidents."

Furthermore, Entergy and the Staff have provided reasonably thorough discussions of mitigation alternatives in their respective site-specific environmental review documents. NEPA requires no further action to ensure proper consideration of all factors relevant to granting a license renewal.

The backfit rule, moreover, does not expand an applicant's obligations or the Staff's authority under Parts 51 and 54, neither of which compels implementation of SAMAs unrelated to aging management as a prerequisite to license renewal.

Furthermore, the APA does not expand the NRC's obligations under NEPA. Rather, it simply prescribes the applicable standard of judicial review. In reviewing agency decisions under NEPA, courts often apply the APA's "arbitrary and capricious" standard and equate that predict, rather than under-predict, environmental consequences." 1996 Part 51 Rulemaking, 61 Fed. Reg. at 28,480.

With respect to the Indian Point SAMA analyses, the NRC Staff's DSEIS concludes that "Entergy's bases for calculating the risk reduction for the various plant improvements ... are reasonable and generally conservative (i.e.,

the estimated risk reduction is higher than what would actually be realized)." DSEIS, vol. 2, app. G at G-24.

95 LBP-10-13, slip op. at 35.

96 Pilgrim, CLI-10-1 1, slip op. at 37.

standard with the "hard look" doctrine. 97 Here, the NRC Staff's DSEIS states in clear terms that "none of the potentially cost-beneficial SAMAs relate to adequately managing the effects of aging during the period of extended operation. Therefore, they need not be implemented as part of the license renewal pursuant to 10 CFR Part 54.",98 This explanation is fully consistent with governing law and the Staff's long-standing position, as manifested in NRC guidance and all prior license renewals. 99 No further explanation is necessary to satisfy NEPA or the APA, or to support issuance of the renewed operating licenses under the specific decision standards contained in 10 C.F.R. §§ 54.29(a) and 51.95(c)."'° The Board's second asserted basis for admitting NYS-35/36 also is unfounded. The Board suggests that Entergy must submit additional information concerning the estimated cost of implementing potentially cost-beneficial SAMAs, purportedly to provide "sufficient facts" for the Staff's NEPA review.°0 1 Entergy followed the same process for estimating SAMA implementation costs in its Revised SAMA Analysis as it did in its original SAMA analysis.

The Staff reviewed Entergy's implementation cost estimates and "found them to be reasonable 97 See 5 U.S.C. § 706(2)(A) (2006) (stating that the reviewing court shall set aside an agency action if it is "arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with the law); see also Sierra Club v. US. Army Corps of Eng'rs, 295 F.3d 1209, 1216 (1 1th Cir. 2002) (equating hard look with arbitrary and capricious standard of judicial review); Highway J Citizens Grp. v. Mineta, 349 F.3d 938, 952-53 (7th Cir. 2003) (same).

98 DSEIS, vol. 1, at 5-10.

99 See, e.g., NUREG-1850, Frequently Asked Questions on License Renewal of Nuclear Power Reactors at 4-34 (Mar.

2006), available at http://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/srl850/sri850_faq_lr.pdf (stating that plant enhancements that appear to be cost-beneficial but are unrelated to aging management during the period of extended operation "are considered as current operating issues and are further evaluated as changes that might appropriately be made under the current operating license rather than as a license renewal issue").

100 The APA cases cited by the Board simply stand for the proposition that federal agencies must make rational decisions and disclose the bases for their decisions, as supported by the underlying factual record. See Burlington Truck Lines v. UnitedStates, 371 U.S. 156, 168 (1962) (stating that an agency must articulate a "rational connection between the facts found and the choice made"); Bowman Transp., Inc. v. Ark-Best FreightSys., Inc., 419 U.S. 281, 285-286 (1974) (stating that a court will uphold a decision "if the agency's path may reasonably be discerned");

Motor Vehicle Mfrs. Ass'n of the US., Inc. v. State FarmMut. Auto. Ins. Co., 463 U.S. 29, 57 (1983) (holding that the NHTSA arbitrarily revoked a "passive restraint" motor vehicle safety standard). The NRC's implementation of NEPA in this proceeding plainly is rational because it is entirely consistent with established law.

101 LBP-10-13, slip op. at 29.

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and generally consistent with estimates provided in support of other licensees' analyses."'10 2 The Board misses the key distinction between the conservatively low, conceptual implementation cost estimates that an applicant prepares for a NEPA-based SAMA analysis and subsequent internal engineering project analyses that an applicant may perform to assess the viability of implementing a particular plant modification under its current operating procedures.

Even assuming, arguendo,that Entergy is obligated to submit more detailed or refined implementation cost estimates for the SAMAs at issue, there still is no litigable issue of material fact. As both Entergy and the NRC Staff noted, NYS-35/36 does not allege that additional SAMAs should have been identified, or that Entergy's implementation costs contain significant 0 3 errors (e.g., they substantially overestimate the implementation cost of any SAMA).° As the Commission has recognized, the key consideration in determining the materiality of a SAMA contention is whether it purports to show that an "additionalSAMA should have been identified as potentially cost-beneficial."' 01 4 "The question is not whether ... the SAMA analysis can be refined further."'01 5 Thus, NYS does not seek the type of further analysis that the Commission has described as a valid and meaningful remedy under NEPA.106 NEPA does not demand "virtually infinite study and resources."' 10 7 "And while there will always be more data that could be gathered, agencies must have some discretion to draw the line and move forward 102 DSEIS, vol. 2, app. G at G-24.

103 Entergy Answer at 29-30; NRC Staff Answer at 23-27.

104 Entergy Nuclear GenerationCo. (Pilgrim Nuclear Power Station), CLI-09-11, 69 NRC 529, 533 (2009) (emphasis added).

105 Pilgrim, CLI-10-11, slip op. at 37 106 Catawba/McGuire,CLI-02-17, 56 NRC at 10.

107 Pilgrim, CLI 11, slip op. at 37.

with decisionmaking."'10 8 The Board plainly erred in finding that additional cost estimates are needed because, in any event, there is no litigable dispute on a material issue of fact.

VI. INTERLOCUTORY REVIEW IS WARRANTED Although the Commission disfavors "piecemeal" interlocutory appeals, it may grant interlocutory review under compelling circumstances. 109 Relevant here, the Commission may grant interlocutory review if the Board ruling in question "[a]ffects the basic structure of the proceeding in a pervasive or unusual manner."'1 10 Clearly, the Board's action here amounts to 1 12 more than a "routine contention admissibility ruling""' or a "mere expansion of issues."

First, the Board has imposed substantial and material obligations on Entergy and the NRC Staff that have no basis in applicable law. The regulations governing this license renewal proceeding, 10 C.F.R. Parts 54 and 51, do not compel implementation of the identified cost-beneficial SAMAs or the conduct of Part 50 backfit analyses to justify their non-implementation.

Such actions, even if authorized by law (which they are not), would not further the informed decisionmaking and aging management objectives of NEPA and Part 54, respectively.

Second, the Board has impermissibly and substantially expanded the scope of this proceeding well beyond the bounds delineated by the Commission's carefully-crafted license 108 Id. (internal quotations marks omitted).

109 Entergy Nuclear OperationsInc. (Pilgrim Nuclear Power Station), CLI-07-2, 65 NRC 10, 12 (2007); 10 C.F.R.

§ 2.341(f)(2).

110 10 C.F.R. § 2.341(f)(2)(ii). See, e.g., Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), CLI-02-7, 55 NRC 205, 214 (2002) (granting interlocutory review to address a question as to the lawfulness of a proceeding that involved a two-step process that addressed construction authority separately from operating authority); Private Fuel Storage, L.L. C. (Independent Spent Fuel Storage Facility), CLI-98-7, 47 NRC 307, 310-12 (1998) (granting interlocutory review to reverse a Board decision that divided a licensing proceeding and set up a second Licensing Board to hear questions regarding the applicant's physical security plan, thereby "mandating duplicative or unnecessary litigating steps"); Safety Light Corp. (Bloomsburg Decontamination &

License Renewal Denials), CLI-92-13, 36 NRC 79, 82 (1992) (granting interlocutory review on a question of whether a Licensing Board and a Presiding Officer, in two separate proceedings, had the jurisdiction and authority to consolidate their formal Subpart G and informal Subpart L proceedings).

1 See Entergy Nuclear OperationsInc. (Indian Point Nuclear Generating Units 2 & 3), CLI-09-06, 69 NRC 128, 133

& n. 16 (2009).

112 Sacramento Mun. Util. Dist. (Rancho Seco Nuclear Generating Station), CL1-94-2, 39 NRC 91, 93-94 (1994) renewal rules. The Commission never intended "to throw open the full gamut of provisions in a plant's current licensing basis to re-analysis during the license renewal review."'"13 The Board, however, has essentially done so here by opening up for litigation 18 SAMAs unrelated to aging management. Importantly, the Board's ruling would propel the parties in this proceeding (and potentially other licensing proceedings) into an unwarranted and resource-intensive foray into Part 50 backfit space for issues unrelated to aging management. Barring Commission intervention, the Board would have the parties expend substantial time and resources to prepare and/or litigate additional cost analyses on issues unrelated to aging management, with the aim of assessing potential backfits to the IP2 and IP3 current licensing bases.

Third, "licensing boards and presiding officers possess only the powers granted to them by regulation or Commission Order.""11 4 The Board clearly has acted ultra vires (and contrary to established law) in holding that the Staff "must" either require implementation of each cost-effective SAMA or "explain why it is not requiring implementation of that SAMA" vis-d-vis the backfit rule in Part 50.1 15 In the same vein, it is well established that the Board lacks the 116 authority to direct the NRC Staff in the conduct of its licensing reviews.

Finally, while perhaps not providing grounds for interlocutory review under Section 2.341(f)(2)(i) or (ii), the Board's ruling raises novel and substantial questions of law that may warrant exercise of the Commission's inherent supervisory authority."17 SAMA contentions have proven anything but rare in. license renewal proceedings to date. If not promptly reversed, 113 Turkey Point,CLI-01-17, 54 NRC at 9.

114 Safety Light, CLI-92-13, 36 NRC at 86.

11 LBP-10-13, slip op. at 28.

116 See, e.g., Ariz. Pub. Serv. Co. (Palo Verde Nuclear Generating Station, Units 2 & 3), LBP-83-36, 18 NRC 45, 48-49 (1983) (citing Offshore Power Sys. (Floating Nuclear Power Plants), ALAB-489, 8 NRC 194, 206-07 (1978));

CarolinaPower & Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3 & 4), CLI-80-12, 11 NRC 514, 516-17 (1980).

11 See, e.g., CarolinaPower & Light Co. (Shearon Harris Nuclear Power Plant), CLI-00-11, 51 NRC 297, 299 (2000).

the Board's erroneous ruling could adversely impact the efficient conduct of other proceedings on pending and/or future license renewal applications in which SAMA challenges are raised.

VII. CONCLUSION For the foregoing reasons, the Commission should grant interlocutory review and summarily reverse the Board's admission of consolidated contention NYS-35/36.

Respectfully submitted, William C. Dennis, Esq. Kathryn . Sutton, Esq.

Entergy Nuclear Operations, Inc. Paul M. Bessette, Esq.

440 Hamilton Avenue Martin J. O'Neill, Esq.

White Plains, NY 10601 MORGAN, LEWIS & BOCKIUS LLP Phone: (914) 272-3202 1111 Pennsylvania Avenue, N.W.

Fax: (914) 272-3205 Washington, D.C. 20004 E-mail: wdennis@entergy.com Phone: (202) 739-5738 E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com E-mail: martin.oneill@morganlewis.com COUNSEL FOR ENTERGY NUCLEAR OPERATIONS, INC.

Dated in Washington, D.C.

this 15th day of July 2010 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of ) Docket Nos. 50-247-LR and

) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )

)

(Indian Point Nuclear Generating Units 2 and 3) )

______________________________) July15, 2010 CERTIFICATE OF SERVICE I hereby certify that copies of the "Applicant's Petition for Interlocutory Review of LBP-10-13" dated July 15, 2010, were served this 15th day of July, 2010 upon the persons listed below, by first class mail and e-mail as shown below.

Administrative Judge Administrative Judge Lawrence G. McDade, Chair Kaye D. Lathrop Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel Mail Stop: T-3 F23 190 Cedar Lane E.

U.S. Nuclear Regulatory Commission Ridgway, CO 81432 Washington, DC 20555-0001 (E-mail: kdl2gnrc.gov)

(E-mail: lgml @nrc.gov)

Administrative Judge Office of the Secretary*

Richard E. Wardwell Attn: Rulemaking and Adjudications Staff AtOmic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop: T-3 F23 Washington, D.C. 20555-0001 U.S. Nuclear Regulatory Commission (E-mail: hearingdocket@,nrc.gov)

Washington, DC 20555-0001 (E-mail: rew@nrc.gov)

Office of Commission Appellate Adjudication Zachary S. Kahn, Law Clerk U.S. Nuclear Regulatory Commission Josh Kirstein, Law Clerk Mail Stop: O-16G4 Atomic Safety and Licensing Board Panel Washington, DC 20555-0001 Mail Stop: T-3 F23 (E-mail: ocaamail@nrc.gov) U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: zxkl @nrc.gov)

(E-mail: Josh.Kirstein@nrc. gov)

Sherwin E. Turk, Esq. Greg Spicer, Esq.

Beth N. Mizuno, Esq. Office of the Westchester County Attorney David E. Roth, Esq. 148 Martine Avenue, 6th Floor Brian G. Harris, Esq. White Plains, NY 10601 Andrea Z. Jones, Esq. (E-mail: gssl1 westchestergov.com)

Office of the General Counsel Mail Stop: 0-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: set@nrc.gov)

(E-mail: bnml nrc.gov)

(E-mail: david.rothgnrc.gov)

(E-mail: brian.harris@nrc.gov)

(E-mail: andrea.j ones(inrc, gov)

Manna Jo Greene Thomas F. Wood, Esq.

Environmental Director Daniel Riesel, Esq.

Hudson River Sloop Clearwater, Inc. Ms. Jessica Steinberg, J.D.

724 Wolcott Avenue Sive, Paget & Riesel, P.C.

Beacon, NY 12508 460 Park Avenue (E-mail: mannai ogclearwater.ori) New York, NY 10022 (E-mail: drieselgsprlaw.com)

(E-mail: j steinbergýsprlaw.com)

Stephen C. Filler, Board Member John Louis Parker, Esq.

Hudson River Sloop Clearwater, Inc. Regional Attorney 303 South Broadway, Suite 222 Office of General Counsel, Region 3 Tarrytown, NY 10591 NYS Dept. of Environmental Conservation (E-mail: sfillergnylawline.com) 21 S. Putt Corners Road New Paltz, New York 12561-1620 (E-mail: j lparker@gw.dec.state.ny.us)

Ross Gould, Member Michael J. Delaney, V.P. - Energy Hudson River Sloop Clearwater, Inc. New York City Economic Development 10 Park Avenue, #5L Corp.

New York, NY 10016 110 William Street (E-mail: rgouldesq(gmail.com) New York, NY 10038 (E-mail: mdelaney@nycedc.com)

Phillip Musegaas, Esq. Daniel E. O'Neill, Mayor Deborah Brancato, Esq. James Siermarco, M.S.

Riverkeeper, Inc. Liaison to Indian Point 828 South Broadway Village of Buchanan Tarrytown, NY 10591 Municipal Building (E-mail: phillipgriverkeeper.org) 236 Tate Avenue (E-mail: dbrancato@riverkeeper.org) Buchanan, NY 10511-1298 (E-mail: vob@bestweb.net)

Robert D. Snook, Esq. Mylan L. Denerstein, Esq.

Assistant Attorney General Executive Deputy Attorney General, Office of the Attorney General Social Justice State of Connecticut Office of the Attorney General 55 Elm Street of the State of New York P.O. Box 120 120 Broadway, 2 5 1h Floor Hartford, CT 06141-0120 New York, New York 10271 (E-mail: Robert. Snook@po.state.ct.us) (E-mail: Mylan.Denersteingoag.state.ny.us)

Andrew M. Cuomo, Esq. Janice A. Dean Attorney General of the State of New York Office of the Attorney General John J. Sipos, Esq. of the State of New York Charlie Donaldson Esq. Assistant Attorney General Assistants Attorney General 120 Broadway, 26th Floor TheCapitol New York, New York 10271 Albany, NY 12224-0341 (E-mail: Janice.Deangoag.state.ny.us)

(E-mail: john.sipos@oag.state.ny.us)

Joan Leary Matthews, Esq.

Senior Attorney for Special Projects Office of the General Counsel New York State Department of Environmental Conservation 625 Broadway, 14th Floor Albany, NY 12207 (E-mail: jlmatthekgw.dec.state.nU.us)

• Original and 2 copies provided to the Office of the Secretary.

Martin J. O'X'eill, Esq.

Counsel for Entergy Nuclear Operations, Inc.

DB 1/65205178