ML110270252

State of New York'S Motion for Summary Disposition of Consolidated Contention NYS-35/36

ML110270252
Person / Time
Site:	Indian Point
Issue date:	01/14/2011
From:	State of NY, Office of the Attorney General
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS E-435
Download: ML110270252 (165)

Text

I - 41 UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

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x Inre: Docket Nos. 50-247-LR; 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BDO0 Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. January 14, 2011 STATE OF NEW YORK'S MOTION FOR

SUMMARY

DISPOSITION OF CONSOLIDATED CONTENTION NYS-35/36 Office of the Attorney General for the State of New York The Capitol State Street Albany, New York 12224

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TABLE OF CONTENTS Page INTRODUCTION ........................................................................................................................ 1 APPLICABLE LEGAL STANDARDS ........................................................................................ 3 MATERIAL FACTS .... 66..............................

PROCEDURAL BACKGROUND ............................................................................................... 8 ARGUMENT THE FSEIS'S TREATMENT OF SAMAS VIOLATES WELL-ESTABLISHED LEGAL STANDARDS ............................................................... 10

1. The Incomplete SAMA Cost Analysis Violates NRC Regulations and NEPA ....................................................................................... 11

2. Failure to Consider Implementation of Clearly Cost-Effective SAMAs Violates NRC, CEQ, and NEPA Requirements ................... 18 CONCLUSION..: ........................................................................................................................... 25 Certification ............................................................................................................................... A-i List of Attachments ................................................................................................................... A-2

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Federal Court Decisions Bowman Transp., Inc. v. Arkansas-Best FreightSystem, Inc.,

4 19 U .S . 28 1 (1974) .............................. .......................................................................... 5,18 Burlington Truck Lines, Inc. v. United States, 37 1 U .S . 156 (1962) ................................................................................................ I1 n.5,18 Federal Power Commission v. Texaco, Inc.,

417 U .S. 380 (1974) ......................... ..................................................................... 11 n.5 Limerick Ecology Action, Inc. v. Nuclear Regulatory Commission, 869 F.2d 719 (3d C ir. 1989) ................................................. ................... .............. passim Motor Vehicle Mfrs. Ass'n of US., Inc. v. State FarmMut. Auto. Ins. Co.,

463 U .S. 29 (1983) ....................................................................................................... 18 Robertson v. Methow Valley Citizens Council, 490 U .S. 332 (1989) .................................................................. I................................... 5,13 Shieldalloy MetallurgicalCorp. v. Nuclear Regulatory Commission, 624 F.3d 489 (D .C . Cir. 2010) ........................................................................ .............. 18 Federal Statutes Administrative Procedure Act (APA) 5 U .S.C . §§ 70 1-706 ....................................................................................................... 2,18 National Environmental Policy Act (NEPA) 42 U.S.C. § 4321-4370f ....................................... passim 42 U.S.C. § 4332(2)(C)(iii),(E) ...................................... 22 Federal Rules Federal Rules of Evidence R ule 80 1(d)(2) ............... . .................................................................... ................................ 4.

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Federal Administrative Agencv Regulations 10 C.F.R. § 2.323(b) ......................................................................................................................... 9 10 C.F.R. § 2.710 ..............................................................................  :...................................... 1,25 10 C.F.R. § 2.1205 ........................... I........................................................................................... 1,25 10 C.F.R. § 50.109 ................. .................................................................................. 10 n.4,16,22 n.9 10 C.F.R. Part 51.................................................................................................................... passim 10 C.F.R. § 51.53(c)(3)(ii)(L) ......................................... 1,3,15,21,24 10 C.F.R. § 51.71(d) .................................  :............................................................... 1,3,11 10 C.F.R. § 51.90 .............. .............................................................................................................. 3 10 C.F.R. § 51.101(a) ........................................................................................................... 3,12,19 10 C.F.R. § 51.103(a)(3) ................................................... ...................................................... 3 10 C.F.R. § 51.103(a)(4) ......................................................................................... 1,3,18,19,22,23 10 C.F.R. Part 51, Subpart A , Appendix B, Table B-I ........................................................ 1,14,24 10 C.F.R. § 54.29 .............................................................. .............................................................. 20 10 C.F.R. § 54.29(b) ................................................................................................................. 3,14 10 C.F.R. § 54.33(c) .......................................................................................................... 3,14,20,23 40 C.F.R. § 1502.14 .................................................................................................................... 5,22 40 C.F.R. § 1503.4(a) .................................................................................................................. 5,11 40 C.F.R. § 1505.1 ................................................................................................................. 5,22

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Federal Register Notices 45 Fed. Reg. 40101 (Jun. 13, 1980), Nuclear Power Plant Accident Considerations Under the National Environmental Policy Act of 1969 (Statem ent of Interim Policy) ......................................................................... 20 50 Fed. Reg. 32138 (Aug. 8, 1985), Severe Reactor Accidents Regarding Future Designs and Existing Plants (Policy Statement) .............................................. 20 61 Fed. Reg. 28467 (Jun. 5, 1996), Environmental Review for Renewal of Nuclear Power Plant Operating Licenses .................................. 21 66 Fed. Reg. 10834 (Feb. 20, 2001), Nuclear Energy Institute Denial of Petition for Rulemaking [Docket No. PRM 51-7] ................................... 3,15,20 69 Fed. Reg. 2182 (Jan. 14, 2004), Changes to Adjudicatory Process; Final Rule, Statement of Considerations ....... ............................... I................................ 4 72 Fed. Reg. 45466 (Aug. 14, 2007), Notice of Availability of the Final License Renewal Interim Staff Guidance LR-ISG-2006-03:

Staff Guidance for Preparing Severe Accident Mitigation Alternatives Analyses ........................................... 5,17 Nuclear Regulatory Commission Decisions Entergy Nuclear Operations,Inc. (Indian Point, Units 2 and 3),

LBP-10-13, 71 N.R.C.- (Jun. 30, 2010) ............................... 8,9 Entergy Nuclear Operations,Inc. (Indian Point, Units 2 and 3),

CLI-10-30, - N .R.C. - (Nov. 30, 2010)........................................................................ 9 Duke Energy Corporation(McGuire, Units 1 and 2; Catawba, Units 1 and 2)

CLI-02-17, 56 N.R.C. 1 (Jul. 23, 2002) ............................. 6,13,19

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Additional Citations Entergy, NL-09-165, License Renewal Application - SAMA Reanalysis Using Alternate Meteorological Tower Data (Dec. 14, 2009) ................ passim Entergy, Answer to New York State's New and Amended Contentions Concerning Entergy's December 2009 Revised SAMA Analysis (A pr. 5,2010) M L 101450328 ...................................................................................... 12 n.6 Entergy, Petition For Interlocutory Review of LBP- 10-13 (Jul. 15, 2010) M L 102030050 ...................................................................................... 9 n.3 LIC-202, Rev. 2, Change to Procedures for Managing Plant-Specific Backfits and 50.54(f) Information Requests, N RC Staff (May 17, 2010) ........................................................................ ................. 10 n.4 NEI 05-01 (Rev. A) Severe Accident Mitigation Alternatives (SAMA)

Guidance Document (Nov. 2005) ....................................... 4,17 NRC Regulatory Guide 4.2, Preparation of Supplemental Environmental Reports for Applications to Renew Nuclear Power Plant Operating Licenses, Supplement 1 (Sept. 2000) ................................................... 4,11,19,22 NRC Staff, Petition for Interlocutory Review of the Atomic Safety and Licensing Board's Decision Admitting New York State Contentions 35 and 36 on Severe Accident Mitigation Alternatives, LBP-10-13 (Jul. 15, 2010) ML101970197 ............................................... 9 n.3 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants ("GEIS") (1996) ................................................... 2 1,24 NUREG-1437, Supplement 38, Final Supplemental Environmental Impact Statement ("FSEIS") Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3 (Dec. 2010) ................................................................ passim NUREG-1555, NRC Standard Review Plan for Environmental Reviews for Nuclear Power Plants, Supplement 1:

Operating License Renewal (Oct. 1999) ............................................................ 1,4,16,19,24 NUREG/BR-0058, Revision 4, NRC's Regulatory Analysis Guidelines (Sept. 2004) ................................................ 5,16,19

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NUREG/BR-0 184, Regulatory Analysis Technical Evaluation Handbook (Jan. 2007) .............................................................. 22 SECY-93-086, S. Chilk, Staff Requirements Memorandum to J.M. Taylor and W.C. Parler, Backfit Considerations, PDR Accession No. 9307300095 930630 (Jun. 30, 1993) .......................................... 16 n.8 SECY-00-0210, Denial of Petition (PRM-51-7) for Rulemaking to Delete the Requirement from 10 CFR Part 51 to Consider Severe Accident Mitigation Alternatives in Operating License Renewal Reviews (Oct. 20, 2000) ................................................. 15,24 State of New York's Motion for Leave to File New and Amended Contentions Concerning the December 2009 Reanalysis of Severe Accident Mitigation Alternatives (M ar. 11, 2010) M L 100780366 ........................................... .... .................................. 6 n.2.

State of New York's and State of Connecticut's Combined Reply to Entergy and NRC Staff Petitions for Interlocutory Review of the Atomic Safety and Licensing Board's Decision Admitting the State of New York's Contentions 35 and 36 (LBP-10-13)

(Jul. 26, 2010) ML102110086 ........................... ................... ....... I 9n.3 Transcript, Prehearing Telephone Conference (Apr. 19, 2010) ML101160416 and Joint Motion for Correction of Transcript of April 19, 2010 Prehearing Telephone Conference (May 14, 2010) ML101440230 ............ 23 n.10

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INTRODUCTION The Nuclear Regulatory Commission has made clear that severe accident mitigation analyses must be conducted for nuclear power plant license renewals, and that a full record of the costs and benefits of potentially feasible alternatives is required. NRC regulations plainly require the Commission to state whether it has taken all practicable measures within its jurisdiction to avoid or minimize environmental harm from the alternative selected, and if not, to explain why those measures were not adopted. 10 C.F.R. § 51.103(a)(4). NRC Staffs December 2010 Final Supplemental Environmental Impact Statement ("FSEIS") contains neither a full record of costs and benefits, nor a commitment to taking all practicable measures to minimize environmental harm or an explanation of why it is not adopting such measures. As such, the FSEIS violates established law, entitling the State of New York to summary disposition on Combined Contention 35/36 pursuant to 10 C.F.R. §§ 2.710 and 2.1205.

NRC Staff is obligated to conduct a site-specific severe accident mitigation alternatives

("SAMA") analysis as part of its environmental obligations under the National Environmental Policy Act ("NEPA") during the review of a facility's license renewal application, unless Staff previously conducted such an analysis for the facility. 10 C.F.R. § 51.53(c)(3)(ii)(L); Part 51, Subpart A, Appendix B, Table B-1 ("alternatives to mitigate severe accidents must be considered for all plants that have not considered such alternatives. See § 51.53(c)(3)(ii)(L)"); 10 C.F.R. § 51.71 (d); see also NUREG- 1555 Standard Review Plans for Environmental Reviews of Nuclear Power Plants Supplement 1 (October 1999) at 5.1.1-1 ("This environmental standard review plan (ESRP) directs the staff s analysis and assessment of the severe accidents for the applicant's plant .... The intent is to identify additional cases-that might warrant either additional features or other actions that would prevent or mitigate the consequences of serious accidents"). The SAMA analysis for Indian Point identifies at least 9 mitigation alternatives which appear to be cost-effective but for which cost analyses have not been completed. NRC Staff's FSEIS fails to require completion of these cost analyses as part of the license renewal process. The SAMA analysis for Indian Point also identifies at least 9 additional mitigation alternatives where, based on cost analyses to date, benefits substantially out-weigh cost. The FSEIS does not even consider requiring implementation of any of the 9 SAMAs.

NRC Staff's justification in the FSEIS for the refusal to require completion of the cost analyses for potentially cost-effective SAMAs and for the refusal to consider requiring implementation of any SAMAs that are already shown to be substantially, more beneficial than their cost is the legally indefensible position that because the alternatives do not involve managing the effects of aging of non-moving parts, they are legally irrelevant to the process of deciding whether Entergy should be granted a new operating license, extending operation for an additional 20 years, for Indian Point Unit 2 ("IP2") and Indian Point Unit 3 ("IP3"). This position contrary to: NRC regulations, cases and guidance; long-standing Commission precedent; Council on Environmental Quality ("CEQ") regulations; federal courts rulings and NEPA. As such, it is indefensible under the Administrative Procedure Act ("APA").

Since the reason offered by the FSEIS for refusing to (1) require completion of the cost analyses for potentially cost-effective SAMAs and (2) consider requiring implementation of clearly cost-effective SAMAs is legally indefensible, the position stated in the FSEIS must be rejected as irrational. Unless and until (1) the FSEIS contains completed cost analyses for all potentially cost-effective SAMAs and (2) the FSEIS directs that all cost-effective SAMAs be implemented as a condition for license renewal or provides a rational basis as to why implementation is not required, there should be no final decision on the issuance of a new operating license for an additional 20 years of operation of IP2 and IP3 or, alternatively, the Board should deny the application because of NRC Staff's failure to comply with the requirements of NEPA and NRC environmental regulations.

APPLICABLE LEGAL STANDARDS The Commission's regulatory framework for compliance with NEPA is set forth in Part

51. NRC regulations mandate that NRC Staff conduct a SAMA analysis during the review of a license renewal application, unless the Staff previously conducted such an analysis for the facility. 10 C.F.R. § 51.53(c)(3)(ii)(L). In addition to requiring preparation of a draft and final impact statement for proposed license renewal (10 C.F.R. § § 51.71 (d), 51.90 et seq.), the regulations impose specific obligations with regard to evaluation of alternatives and actions to be taken in light of those evaluations. 10 C.F.R. §§ 51.101(a), 51.103(a)(3) and (4) [contained in Attachment ("Att.") 1].' These regulations require that a complete evaluation of the cost and benefits of viable alternatives must precede a decision on the proposed major federal action and that once viable alternatives are fully evaluated a decision is to be made, on the merits, as to whether requiring implementation of the alternative is warranted. Part 54 specifically requires full compliance with the requirements of 10 C.F.R. Part 51 (10 C.F.R. § 54.29(b)) and the addition of environmental obligations, warranted by Part 51 to the plants' current licensing basis (10 C.F.R. § 54.33(c)) [Att. 1].

The NRC Commissioners previously addressed the issue raised -by NYS Contention 35/36. In 2001, the'Commission considered and rejected a proposal from the Nuclear Energy Institute ("NEI") that sought to eliminate SAMA analysis from license renewal. 66 Fed. Reg.

'The citation "[Att. j" refers to the Attachments accompanying this motion and the declaration of AAG Janice Dean.

10834 (Feb. 20, 2001), Docket No. PRM 51-7, Denial of Petition for Rulemaking [Att. 9]. The Commission's PRM 51-7 decision confirmed that in the context of license renewal, NEPA requires the Commission to consider all the environmental impacts stemming from a decision to allow the continued operation of the entire plant for an additional 20 years, not simply the.

environmental impacts from the components included within Part 54. Id. at 10836.

These NRC regulatory requirements are supplemented by specific NRC guidance documents which, while not binding on other parties, certainly should be deemed binding on NRC Staff, which developed and published the guidance and for whom the guidance documents should be treated as admissions. See Fed. R. Evid. 801(d)(2) and 69 Fed. Reg. 2182, 2187 (Jan.

14, 2004)(Changes to Adjudicatory Process; Final Rule, Statement of Considerations)("Although the Commission has not required the application of the Federal Rules of Evidence in NRC adjudicatory proceedings, presiding officers and Licensing Boards have always looked to the Federal Rules for guidance in appropriate circumstances") [Att. 10]. Such guidance documents include Regulatory Guide 4.2, Supplement 1, Preparation of Supplemental Environmental Reports for Applications to Renew Nuclear Power Plant Operating Licenses at p. 4.2-S-50, which requires consideration of the. cost of SAMAs [Att. 7]. Similarly, NUREG-1555, Standard Review Plans for Environmental Reviews for Nuclear Power Plants, Supplement 1: Operating License Renewal October 1999 at 5.1.1-9 [Att. 6] indicates that one of the tasks required of NRC Staff is a determination of the SAMAs whose implementation is "warranted" and that the intent of the SAMA analysis is "to identify additional cases that might warrant either additional features or other actions that would prevent or mitigate the consequences of serious accidents."'

Id. at 5.1.1 -1. NEI has published a guide for how an applicant can comply with its SAMA obligations in its license renewal application (see NEI 05-01(Rev. A) Severe Accident Mitigation Alternatives (SAMA) Guidance Document) (Nov. 2005) [Att. 12] and that guidance has been adopted by NRC Staff (see 72 Fed. Reg. 45466 (Notice of Availability of the Final License Renewal Interim Staff Guidance LR-ISG-2006-03: Staff Guidance for Preparing Severe Accident Mitigation Alternatives Analyses) (Aug. 14, 2007)) [Att. 13]. Also, NRC Staffs Regulatory Analysis Guidelines, NUREG/BR-0058, Revision 4 (Sept. 2004) [Att. 11] set forth the guidelines for determining when a safety measure - which is not otherwise required to be implemented - should be implemented because it is deemed cost-effective.

These NRC requirements, guidance and decisionsecho the regulations adopted by CEQ.

See 40 C.F.R. § 1502.14 [Att. 1]. Those CEQ regulations require all federal agencies to fully analyze.all feasible alternatives and explain the basis for their acceptance or rejection. Id.; see also 40 C.F.R. §§ 1503.4, 1505.1(e).

In Limerick Ecology Action, Inc. v. Nuclear Regulatory Commission, 869 F.2d 719 (3d Cir. 1989), the Third Circuit rejected the Commission's position that the Atomic Energy Act limits NRC's review of environmental impacts under NEPA or that NRC could exclude examination of the environmental impacts of severe, accident at nuclear reactors through a generic policy statement. The court also held that given differences in design and location the risk and environmental impacts of severe accidents will vary across all plants. Id. at 738-39.

Federal court decisions have also addressed the duty of an agency to fully evaluate alternatives, to take a "hard look" at them, and to provide a rational basis for rejecting alternatives that are decidedly cost-effective. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989), Limerick Ecology, 869 F.2d at 737, and Bowman Transp., Inc. v.

Arkansas-Best FreightSystem, Inc. 419 U.S. 281, 285-286 (1974).

Finally, NRC case law also holds that a full record of the costs and benefits of potentially feasible alternatives is required. Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2) CLI-02-17, 56 N.R.C. 1 (2002).

MATERIAL FACTS The material facts relevant to Contention 35/36 are not in dispute. 2 NRC Staff acknowledges in its FSEIS that Entergy may not have completed the cost-benefit analysis for all of its SAMAs (FSEIS Volume 1 at 5-12, indicating that final analyses may not have been done) and Entergy admits to the absence of a completed cost analysis for those SAMAs in its December 2009 SAMA Reanalysis. See NL-09-165, License Renewal Application - SAMA Reanalysis Using Alternate Meteorological Tower Data (Dec. 14, 2009), Attachment 1 at 32

("December 2009 SAMA Reanalysis") [Att. 14]. NRC Staff accepts Entergy's incomplete SAMA analysis as sufficient for this license renewal proceeding. FSEIS at 5-1 1. The FSEIS also identifies at least 9 SAMAs whose cost analyses to date demonstrate that their benefits substantially outweigh their costs (FSEIS Volume 1 at.5-9, 5-10; Volume 3 at G G-38) and the details of the extent to which benefits exceed costs are admitted in Entergy's December 2009 SAMA Reanalysis. December 2009 SAMA Reanalysis at 10-28 (Tables 4 and 5) [Att. 14].

NRC Staff accepts Entergy's benefits and preliminary costs for all SAMAs. FSEIS at 5-11.

Entergy's December 2009 Reanalysis, which is now adopted by NRC Staff in the December 2010 FSEIS, provides dramatic evidence of the magnitude of benefits that could be obtained if certain SAMAs were adopted. For example, according to the December 2009 SAMA Reanalysis, implementation of SAMA 021 for IP2 would reduce the Population Dose Risk 2 A Statement of Undisputed Material Facts accompanies this motion. NYS Contentions 35 & 36 and supporting papers are contained in 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) ML100780366.

("PDR") by 11.33% and the Offsite Economic Cost Risk ("OECR") by 14.62% (December 2009 SAMA Reanalysis at 13) and implementation of SAMA 07 for IP3 would reduce the PDR by 24.16% and the OECR by 14.94% (December 2009 SAMA Reanalysis at 21) [Att. 14]. Despite the substantial benefits that could be achieved with either of these two SAMAs, NRC Staff does not require the final cost analysis be completed as part of the license renewal process. In addition, some of the SAMAs for which the FSEIS fails to consider requiring implementation represent dramatic improvements in the environmental impact of severe accidents for trivial costs. For example, IP2 SAMA 054 (Install flood alarm in the 480V switchgear room) is currently estimated to cost $200,000 and to produce a benefit of $5,591,781 (December 2009 SAMA Reanalysis at 17) and IP3 SAMA 061 (Upgrade the ASSS to allow timely restoration of seal injection and cooling) is currently estimated to cost $560,000 and to produce a benefit of

$4,359,371 (December 2009 SAMA Reanalysis at 28).

NRC Staff's entire basis for ignoring potentially cost beneficial SAMAs in this license renewal proceeding can be found in a few sentences in FSEIS § 5.2.6. NRC Staff first states:

[N]one 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 of1P2 and IP3 license renewal pursuant to 10 CFR Part 54.

FSEIS, § 5.2.6, ¶2. A few lines later, NRC Staff repeats this same rationale. FSEIS, § 5.2.6, ¶4.

Ignoring the undisputed fact that no SAMA analysis previously has been conducted for Indian Point and the unambiguous Commission regulatory requirement that a SAMA analysis must now be conducted as part of this proceedingto review the renewal of Indian Point's operating licenses, NRC Staff goes on to argue that the Current Licensing Basis doctrine prohibits implementation of cost effective SAMAs as part of this license renewal process. Id. Finally, ignoring another unambiguous Commission regulation that SAMAs developed as part of a facility's license renewal are non-generic, site-specific Category 2 environmental issues that must be examined by the applicant, the Staff, and the Commissioners in the site-specific context of each facility, NRC Staff attempts to argue that the environmental impacts of a severe accident at Indian Point are small "as a generic matter" and thus not relevant. FSEIS, § 5.2.6, ¶5.

PROCEDURAL BACKGROUND Contentions 35 and 36 were timely filed on March 11, 2010, as supplemental environmental contentions based upon the new SAMA analysis submitted by Entergy in December 2009. Following extensive challenges to these two contentions by NRC Staff and Entergy, the State of New York's Reply, and the State of Connecticut's Answer supporting the contentions, this Board admitted Contentions 35 and 36 with certain modifications. Entergy Nuclear Operations,Inc. (Indian Point Nuclear Generating Units 2 and 3), Memorandum and Order (Ruling on the Admissibility of New York's New and Amended Contentions 12B, 16B, 35, and 36), LBP-10-13, 71 N.R.C. - (June 30, 2010). The Board admitted NYS-35:

insofar as it alleges that the Applicant has not provided the NRC Staff with the necessary information- regarding specific SAMAs that New York maintains are potentially cost-beneficial.

we admit the portion of NYS-35 calling for completion of the cost-benefit.

analysis to determine which SAMAs are cost-beneficial to implement as a contention of omission.

Id. at 29 (underscore in original). In admitting Contention 36, in part, the Board held:

In accord with the substantive admissibility provisions of Section 2.309(f)(1), the triable issue of fact established in NYS-36 is whether the NRC Staff has fulfilled its duty to take a hard look at SAMAs deemed potentially cost-beneficial in Entergy's December 2009 SAMA Reanalysis by explaining in its record of decision why it would allow the license to be renewed without requiring the implementation of those SAMAs that are plainly cost-beneficial as a condition, precedent to the granting of license renewal.

Id. at 35. The Board consolidated the two contentions into NYS Contention 35/36. Id NRC Staff and Entergy sought interlocutory review of the Board's decision admitting Contention 35/36.3 On November 30, 2010, the Commission declined interlocutory review. Entergy Nuclear Operations,Inc. (Indian Point Nuclear Generating Units 2 and 3), CLI- 10-30, - N.R.C.

-(Nov. 30, 2010). The Commission:

find[s] uncompelling the Staff's and Entergy's claims that the Board's decision will result in a pervasive, unusual impact on the proceeding. We do not read LBP-10-13, a decision on contention admissibility, to requirethe Staff either to impose license conditions or to undertake formal Part 50 backfit analyses for the "potentially cost-beneficial" SAMAs identified in contention NYS-35/36. The Board has admitted a consolidated contention challenging the adequacy of the NEPA SAMA analysis. To the extent that the contention may call for further "explanation" of the SAMA analysis conclusions, we see no unusual or pervasive impact on the proceeding. Similarly, to the extent that the Board has admitted the issue of whether the current SAMA cost-benefit estimates are sufficient for the NEPA analysis, we can discern no "extraordinary" impact on the proceeding.

hI. at 6 (italics in original).

This Motion for Summary Disposition is filed within 60 days after release of the FSEIS (December 3, 2010), which included Staff's final position on the issues raised in NYS Contention 35/36. Thus, it is timely under the terms of the Board's July 1, 2010 Scheduling Order, 2010, as modified on December 27, 2010. Scheduling Order (July 1, 2010) at 11, ¶2; Order (Granting Intervenor's Unopposed Joint Motion for an Extension of Time) (Dec. 27, 2010) at 2. As required by the Scheduling Order (¶¶ G.2, H.1, 2) and 10 C.F.R. § 2.323(b), the State 3 Entergy's Petition for Interlocutory Review of LBP- 10-13 (July 15, 2010)

ML102030050; NRC Staff's Petition for Interlocutory Review of the Atomic Safety and Licensing Board's Decision Admitting New York State Contentions 35 and 36 on Severe Accident Mitigation Alternatives (LBP-10-13) (July 15, 2010) ML101970197. New York and Connecticut opposed the petitions. The State of New York's and State of Connecticut's Combined Reply to Entergy and NRC Staff Petitions for Interlocutory Review of the Atomic Safety and Licensing Board's Decision Admitting the State of New York's Contentions 35 and 36 (LBP-10-13) ML102110086.

timely initiated consultation with opposing counsel concerning this motion. This motion includes a certification of consultation and a representation that this motion is appropriate.

ARGUMENT THE FSEIS'S TREATMENT OF SAMAS VIOLATES WELL-ESTABLISHED LEGAL STANDARDS As the preceding authorities amply demonstrate, there is overwhelming legal support from NRC regulations, NRC and industry guidance, CEQ regulations, and NRC and federal case law for the propositions that a legally sufficient SAMA analysis must include (1) a sufficiently complete cost analysis to permit a "hard look" at each of the potentially cost-effective SAMAs and (2) must include either a requirement that substantially cost beneficial SAMAs be implemented as a condition of license renewal or the presentation of a rational basis for refusing.

to do so. The FSEIS rejects both of these propositions without even attempting to address the extensive support for them. Rather, the NRC Staff simply offers the bald, assertion that because all of the cost-effective SAMAs and potentially cost-effective SAMAs identified for Indian Point are unrelated to aging management of non-moving parts, completion of the cost estimates or making a decision on whether a cost-effective SAMA should be dealt with by the Staff and Entergy outside the scope of license renewal and this proceeding. FSEIS at 5-1I. While Staff offers conclusory arguments to support this "basis," it provides no citations to regulations, cases, 4

regulatory history, guidance documents or any other source in support of this assertion.

4 Since the completion of briefing and oral argument to the Board, NRC Staff generated a change to an internal NRR Office Instruction which relates solely to Procedures for Managing

.Plant-Specific.Backfits and 50.54(f) Information Requests. LIC-202, Rev. 2 (May 17, 2010)

[Att. 10]. For the first time, LIC-202 includes a self-serving assertion that Where safety issues outside the scope of Part 54 are addressed in license renewal proceedings, they are subject to the backfit rule (10 C.F.R. § 50.109). SAMA analyses, however, are conducted pursuant.to NEPA and Part 51 and thus SAMAs are environmental issues, not safety issues. Thus, this statement Moreover, in contravention of 40 C.F.R. § 1503.4(a) Staff fails to address thesubstantial citations offered by State in support of its position. Thus, the adequacy of the FSEIS and NRC Staff's compliance with NEPA must be judged on the basis of what is contained within the FSEIS and nothing more. It represents the final and full statement of the "rational basis" for the positions taken and conclusions reached. The inadequacy of the FSEIS's treatment of SAMAs, not the adequacy of post-hoc rationalizations by NRC Staff lawyers or witnesses, 5 is the subject of NYS Contention 35/36.

1. The Incomplete SAMA Cost Analysis Violates NRC Regulations and NEPA Pursuantto 10 C.F.R. § 51.71(d) the impact statement must "to the fullest extent practicable, quantify the various factors considered." One of the factors to be considered in the SAMA analysis is the cost of the proposed SAMA. Supplement I to Regulatory Guide 4.2, Preparation of Supplemental Environmental Reports for Applications to Renew.Nuclear Power Plant Operating Licenses at 4.2-S-50 [Att. 7]. The FSEIS identifies some "potentially" cost-effective SAMAs but accepts Entergy's partial cost analysis of these SAMAs allowing completion of the cost analysis to occur after a decision on license renewal has been reached.

FSEIS at 5-11 ("The treatment of SAMA benefits and costs support the general conclusion that the SAMA evaluations performed by Entergy are reasonable and sufficient for the license renewal submittal") and December 2009 SAMA Reanalysis at 32 ("consistent with those has no bearing here. LIC-202 Rev. 2 also has no legal force, nor is it "guidance" for applicants or the public.

5 Such post-hoc rationalizations for agency actions are routinely rejected as insufficient to sustain a prior action. See, e.g., FederalPower Commission v. Texaco, Inc., 417 U.S. 380, 397 (1974) ("we 'cannot accept appellate counsel's post hoc rationalizations for agency action'; for an agency's order must be upheld, if at all, 'on the same basis articulated in the order by the agency itself'"); Burlington Truck Lines Inc. v. United States, 371 U.S. 156, 168-69 (1962).

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SAMAs identified previously as cost beneficial, the above potentially cost beneficial SAMAs havebeen submitted for engineering project cost benefit analysis") [Att. 141.6 NRC Staff could accept the current, partially-completed cost analyses as sufficient for the NEPA process provided that it was willing to determine whether implementation of any SAMA was warranted on the basis of that partially completed cost analysis and Entergy was willing to have that decision made without further cost analyses. However, since both NRC Staff and Entergy refuse to consider implementation of any SAMAs at this point because of their mistaken belief that such consideration is not now required, it is not possible to determine whether, if an.

implementation decision were to be made at this time, either.Entergy or NRC Staff would insist on a completed cost analysis as a prerequisite to such consideration. Thus, it must be assumed NRC Staff would take the position that the information it now has is not sufficient for it to determine whether implementation of any particular SAMA is warranted. Staff implies as much by noting that it might impose some of the SAMAs as licensing conditions in the future if the SAMAs "are 'finally' found to be cost beneficial."- FSEIS at 5-12 (internal quotes in original).

The FSEIS's incomplete analysis of the cost of "potentially cost-effective" SAMAs violates NRC regulations on implementation of NEPA. 10 C.F.R. §§51.101(a) requires completion of the NEPA process before taking action on a major licensing proposal. Yet the FSEIS, by accepting Entergy's plan to postpone completion of the cost evaluation of SAMAs until some indefinite time in the future, leaves the NEPA process incomplete and deprives NRC 6 See ilso Entergy's Answer to New York State's New and Amended Contentions Concerning Entergy's December 2009 Revised SAMA Analysis (Apr. 5, 2010) at 10 (footnotes omitted) ML101450328 ("Although technically not related to adequately managing the effects of aging during the period of extended operation, Entergy submitted all 16 potentially cost beneficial SAMAs for detailed engineering project cost-benefit analysis.").

Staff of the ability to take a "hard look" at SAMAs. See Robertson v. Methow Valley Citizens Council, 490 U.S. at,350 ("The sweeping policy goals announced in § 101 of NEPA are thus realized through a set of "action-forcing" procedures that require that agencies take a "'hard look' at environmental consequences," Kleppe, 427 U.S., at 410, n. 21 (citation omitted), and that provide for broad dissemination of relevant environmental information") and Limerick Ecology, 869 F.2d at 737 ("First, to qualify, the [Final Environmental Statement] must contain sufficient discussion of the relevant issues and opposing viewpoints to enable the decisionmaker to take a "hard look" at the environmental factors and to make a reasoned decision"); accord Duke Energy Corp.:

While NEPA does not require agencies to select particular options, it is intended to "foster both informed decision-making and informed public participation, and thus to ensurelthat the agency does not act upon incomplete information, only to regret its decision after it is too late to correct." If Duke's premise held true, there never could be an admissible NEPA contention because, as Duke notes, "the only relief possible [under'NEPA],is further analysis." But the adequacy and accuracy of environmental analyses and proper disclosure of information are always at the heart of NEPA claims, if "further analysis" is called for, that in itself is a valid.

and meaningful remedy under NEPA.

56 N.R.C. at 10. The inclusion of full information on costs in the SAMA analysis is not only important to assure that the record is complete, but "to ensure that the agency does not act upon incomplete information, only to regret its decision after it is too late to correct." Id.

In this case, however, the FSEIS rejects the entire concept of taking a "hard look" at SAMAs because, it is asserted, the potentially cost-effective SAMAs are unrelated to the aging effects of license renewal and thus need not be given a "hard look" as part of the license renewal process. FSEIS at 5-1 1.7 The most important part of the "hard look" obligation is the requirement that after assembling all the relevant information the agency must make a "reasoned decision" (Limerick Ecology, 869 F.2d at 737) regarding the proposed alternative and yet NRC Staff refuses to make a "reasoned decision" with regard to the SAMAs at issue here.

NRC Staff s "excuse" for the incomplete NEPA and SAMA process is without any legal basis. First, 10 C.F.R. Part 54 specifically requires full compliance withthe requirements of Part

51. 10 C.F.R. § 54.29(b))(in order to issue a license renewal permit the Commission must find that "[a]ny applicable requirements of subpart A of 10 CFR part 51 have been satisfied").

Second, Part 54 authorizes implementation of modifications to the plants' current licensing basis when warranted by the Part 51 analysis:

Each renewed license will include those conditions to protect the environment that were imposed pursuant to 10 CFR 50.36b and that are part of the CLB for the facility at the time of issuance of the renewed license. These conditions may be supplemented or amended as necessary to protect the environment during the term of the renewed license and will be derived from information contained in the supplement to the environmental report submitted pursuant to 10 CFR part 51, as analyzed and evaluated in the NRC record of decision.

10 C.F.R. § 54.33(c). Third, when the Commission was asked in PRM 51-7 to adopt the position now taken in the FSEIS, i.e. that Part 54 limits the scope of the SAMA analysis under Part 51, the Commission squarely rejected that position and recognized that In the case of license renewal, it is the Commission's responsibility under NEPA to consider all environmental impacts stemming from its decision to allow the continued operation of the entire plant for an additional 20 years. The fact that the NRC has determined that it is not necessary to consider a specific matter in 7 Presumably NRC Staff will assert it has given SAMAs a "hard look" because it has checked the methodology used by Entergy to. identify SAMAs and to reach the point of identifying those SAMAs that are potentially cost-effective. However, the "hard look" contemplated by NEPA case law includes serious consideration of adoption of the analyzed alternatives (Limerick Ecology, 869 F.2d at 737), a consideration that the FSEIS refuses to make and that the incomplete SAMA cost analysis prevents it from making.

conducting its safety review under Part 54 does not excuse it from considering the impact in meeting its NEPA obligations.

66 Fed. Reg. at 10836 (emphasis added)[Att. 9]. NRC Staff expressed the same view - at that time. SECY-00-0210, October 20, 2000 at 4 ("The fact that NRC has excluded a specific aspect of the plant in conducting its safety review under Part 54 does not excuse it from considering the potential for an associated environmental impact in meeting its NEPA obligations") [Att. 8].

Fourth, the Indian Point reactors were never subjected to a SAMA analysis as part of the NEPA review during their initial operating licenses in the 1970s, and consistent with Limerick Ecology and § 51.53(c)(3)(ii)(L) such a review must be completed in the present relicensing proceeding.

Rather than explain why these precedents are not controlling, the FSEIS merely asserts:

Under the NRC's regulatory system, any potentially cost-beneficial SAMAs that do not relate to 10 CFR Part 54 requirements would be considered, to the extent necessary or appropriate, under the agency's oversight of a facility's current operating license in accordance with 10 CFR Part 50 requirements, inasmuch as such matters would pertain not just to the period of extended operation but to operations under the current operating license term as well.

FSEIS at 5-11. This is the same argument NEI made in 2000 when it urged the Commission to eliminate the SAMA analysis from the license renewal process:

The petitioner argues that actions to evaluate and address.SAMAs are part of each licensee's current licensing basis and that 10 CFR part 54 is designed to separate matters related to maintaining the current licensing basis from those considered in a license renewal review.

66 Fed. Reg. at 10835 (PRM 51-7) [Att. 9]. In rejecting that proposal, the Commission concluded it "does not find the petitioner's arguments here compelling" and despite the limitations on safety reviews under Part 54 "Part 54 does not excuse it from considering the impact in meeting its NEPA obligations." 66 Fed. Reg. at 10836 [Att. 9]. The FSEIS contains no answer to that controlling Commission decision in PRM 51-7.

Finally, NRC Staff has developed guidance documents which are directly relevant to the SAMA review but which guidance it now ignores in the FSEIS by allowing Entergy to present a less than complete cost analysis for the potentially cost-effective SAMAs. Regulatory Analysis Guidelines of the U.S. NuclearRegulatory Commission NUREG/BR-0058, Revision 4 (September 2004) [Att. 11 ] is one of the regulatory guidance documents to which the Staff is directed in conducting its, review of applications for license renewal. NUREG-1555, Standard Review Plans for Environmental Reviews for Nuclear Power Plants Supplement 1: Operating License Renewal October 1999 at 5.1.1-7 ("Evaluate the benefit-cost comparison to determine if it is consistent with the benefit-cost balance criteria and methodology given in NUREG/BR-0058, Rev. 2, Regulatory Analysis Guidelines of the U.S. Nuclear Regulatory Commission, Final Report (NRC 1997a)") [Att. 6]. The provisions of NUREG/BR-0058 make clear that a full and complete analysis of the cost of any feasible alternative being considered is required:

[T]he principal purposes of a regulatory analysis are to help ensure the following:

• The NRC's regulatory decisions made in support of its statutory responsibilities are based-on adequate information concerning the need for and consequences of proposed actions.

" Appropriate alternative approaches to regulatory objectives are. identified and analyzed.

• No clearly preferable alternative is available to the proposed action.

• Proposed actions subject to the backfit rule (10 CFR 50.109), and not within the exceptions at 10 CFR 50.109(a)(4), provide a substantial 3 increase in the overall protection of the public health and safety or the common defense and security and that the direct and indirect costs of implementation are justified in view of this substantial increase in protection.

3The Commission has stated that "substantial" means important or significant in a large amount, extent, or degree (Ref. 21). Applying such a standard, the Commission would not ordinarily expect that safety-applying improvements would be required as backfits that result in an insignificant 8 Reference 21 is "S. Chilk, Staff Requirements Memorandum to J.M. Taylor and W.C.

Parler, 'SECY-93-086--Backfit Considerations,' June 30, 1993" [Att. 3].

or small benefit to the public health and safety, regardless of costs. On the other hand, the standard is not intended to be interpreted in a manner that would result in disapprovals of worthwhile safety or security improvements having costs that are justified in view of the increased protection that would be provided. This approach is flexible enough to allow for qualitative arguments that a given proposed rule would substantially increase safety.

Id. at 4 (emphasis .added).

Since NRC's rejection of PRM 51-7, NEI has developed a guide for how an applicant can comply with its SAMA obligations in its license renewal application (see NEI 05-01(Rev. A)

Severe Accident Mitigation Alternatives (SAMA) Guidance Document) [Att. 12] and that guidance has been adopted by NRC Staff (see 72 Fed. Reg. 45466 (Notice of Availability of the Final License Renewal Interim Staff Guidance LR-ISG-2006-03: Staff Guidance for Preparing Severe Accident Mitigation Alternatives Analyses) (Aug. 14, 2007)) [AUt. 13]. The NEI Guide instructs an applicant to complete the SAMA analysis "to the point where economic viability of the proposed modification can be adequately gauged." NEI 05-01(Rev. A) at 28 [Att. 12]. The FSEIS ignores this guidance. Entergy and the FSEIS do not claim cost analyses to date allow for evaluation of the "economic viability of the proposed" SAMAs and reference instead future cost evaluations to be made outside the license renewal process. FSEIS at 5-11; December 2009 SAMA Reanalysis at 32 [Att. 14].

In sum, there is no legal basis for the FSEIS position that an unfinished cost analysis of potentially cost-effective SAMAs is acceptable. The FSEIS's failure to either include such completed analyses or direct Entergy to provide them deprives NRC Staff of the ability to take a "hard look" at, and make a "reasoned decision" about, SAMAs that may substantially reduce environmental impacts of a severe accident at relatively small cost.

2. Failure to Consider Implementation of Clearly Cost-Effective SAMAs Violates NRC, CEQ, and NEPA Requirements The FSEIS's failure to either complete, or require completion of, cost analyses for potentially cost-effective SAMAs is compounded by its failure to consider implementation of any clearly cost-effective SAMAs and its failure to provide a rational basis for that failure.

10 C.F.R. § 51 .103(a)(4) requires that the Record of Decision, which is based on the FSEIS, must either adopt mitigation alternatives or explain why they were not adopted:

State whether the Commission has taken all practicable measures within its jurisdiction to avoid or minimize environmental harm from the alternative selected, and if not, to explain why those measures were not adopted. Summarize any license conditions and monitoring programs adopted in connection with mitigation measures.

Id. This regulation follows the mandates of the Administrative Procedure Act (5 U.S.C. §§ 701 et seq.) and controlling Supreme Court precedent regarding the need for a rational basis to support NRC's decision to either reject implementation of a cost-effective SAMA or require its implementation as a condition for relicensing. See, e.g. Bowman Transp., Inc. v. Arkansas-Best FreightSystem, Inc. 419 U.S. 281, 285-86 (1974), quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)(the "agency must articulate a 'rational connection between the facts found and the choice made"'); Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut.

Auto. Ins. Co., 463 U.S. 29, 57 (1983); see also Shieldalloy MetallurgicalCorp. v. Nuclear Regulatory Commission, 624 F.3d 489, 492-93 (D.C. Cir. 2010)("we must ensure that the agency has 'examine[d] the relevant data and articulate[d] a satisfactory explanation for its action including a "rational connection between the facts found and the choice made."' Encompassed in the latter duty, of course, is the obligation of an agency to explain any important changes of policy or legal interpretation. And agencies must evaluate parties' proposals of 'significant and viable' alternatives.")(internal citations omitted). By refusing to even consider whether to order implementation of any clearly cost-effective SAMAs, the FSEIS essentially has rejected their implementation, but does so without any rational basis.

As noted above, the NEI Guidance documents adopted by NRC Staff require that the SAMA analysis reach a point where a SAMA's economic viability can be "adequately gauged."

The purpose of this level of analysis is to then allow NRC Staff to determine whether implementation of any SAMA is "warranted." See NRC Reg. Guide 4.2, Supplement 1 (Sept.

2000) at 4.2-S-50 [Att. 7]; NUREG-1555, NRC Standard Review Plan for Environmental Reviews for Nuclear Power Plants - Supplement 1: Operating License Renewal (Oct. 1999)

("Standard Review Plan") at 5.1.1-8 to 5.1.1-9 [Att. 6]; and NRC Regulatory Analysis Guidelines of the U.S. Nuclear Regulatory Commission.NUREG/BR-0058, Revision 4 (Sept.

2004) at 4 [Att. 11]. NRC Staff takes the irrational position that while it is must fully explore mitigation alternatives and fully disclose all the relevant information regarding such mitigation alternatives, it has no duty to make a decision about whether to require implementation of any mitigation measures. This position is not only irrational but directly conflicts with the mandate of Limerick Ecology, 869 F.2d at 937, to use the information to reach a "reasoned decision" and with the Commission's holding in Duke Energy Corp., 56 N.R.C. at 10, that incomplete information gathering in the NEPA process will interfere with NRC's decision-making process.

These obligations to complete the SAMA analysis to the point where economic viability of each SAMA can be "adequately gauged" and to then determine whether implementation of cost-effective SAMAs is "warranted" are imposed by NRC's NEPA regulations. 10 C.F.R. §§ 51.101(a)(requiring completion of the NEPA process before taking action on a major licensing proposal) and 51.103(a)(4)(requiring that mitigation alternatives to the proposed action be adopted or an explanation be given as to why they are not being adopted). In addition, the NRC regulations for license renewal make clear that license conditions that are warranted by an environmental review under Part 51 are to be included in the license renewal process under Part 54, even though the scope of the safety review under Part 54 is limited to only a small subset of a facility's systems, structures, and components. See 10 C.F.R. §§ 54.29 and 54.33(c). Notably, in resolving NEI's PRM 51-7 rulemaking petition, the NRC Commissioners specifically rejected the view that Part 54 restrictions on relicensing apply to the NEPA review under Part 51. 66 Fed. Reg. 10834, 10836 [Att. 9] ("The fact that the NRC has determined that it is not necessary to consider a specific matter in conducting its safety review under Part 54 does not excuse it from considering the impact in meeting its NEPA obligations").

There is a long and consistent regulatory history demonstrating that the Commission now intends NRC Staff to fully evaluate potentially cost-effective SAMAs and to order their implementation as part of the license renewal process when such implementation is warranted by the cost-benefit analysis. In 1980, following the Three Mile Island nuclear accident, the Commission recognized "the need for changes in NRC policies regarding the considerations to be given to serious accidents from an environmental as well as a safety point of view."

Statement of Interim Policy, Nuclear Power Plant Accident Considerations Under the National Environmental Policy Act of 1969, 45 Fed. Reg. 40101 (June 13, 1980) [Att. 2]. Thus, the Commissioners determined that consideration should be given, under NEPA, to measures "that might warrant early consideration of either additional features or other actions which would prevent or mitigate the consequences of serious accidents." 45 Fed. Reg. at 40103. However; in a subsequent 1985 statement (Policy Statement on .Severe Reactor Accidents Regarding Future Designs and Existing Plants, 50 Fed. Reg. 32,138 (1985)), the Commission excluded consideration of severe accident mitigation. design alternatives from individual licensing proceedings. Limerick Ecology, 869 F.2d at 727. The Third Circuit reviewed that Policy, as applied to the Limerick Nuclear Power Plant in Pennsylvania, in Limerick Ecology. There, the Court held that in order for NRC to take a "hard look" at alternatives to mitigate severe accidents for an individual plant, the Final Environmental Statement for that plant must consider and, either accept or reject, mitigation alternatives. Limerick Ecology, 869 F.2d at 737.

NRC subsequently accepted the holding in Limerick Ecology and incorporated it into its environmental regulations related to license renewal (10 C.F.R. § 51.53(c)(3)(ii)(L)) and its 1996 Generic Environmental Impact Statement for License Renewal of Nuclear Plants ("GEIS").

NUREG-1437 (1996) Table 9.1 at 9-13. In adopting what are now the Part 51 Regulations relating to environmental reviews for license renewal the Commission stated:

reconsideration of the issue of severe accident mitigation for license renewal is based on the Commission's NEPA regulations that require a consideration of mitigation alternatives in its environmental impact statements (EISs) and supplements to EISs, as well as a previous court decision that required a review of severe mitigation alternatives (referred to as SAMDAs) at the operating license stage. See, Limerick Ecology Action v. NRC, 869 F.2d 719 (3d Cir. 1989).

61 Fed. Reg. 28467, 28480, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses (June 5, 1996) [Att. 4]. When it adopted the GEIS as a regulation, the Commission addressed SAMAs specifically and how they were to be treated. It stated, in part:

Although Level 3 PRAs have been used in SAMDA analyses to generate site-specific offsite dose estimates so that the cost-benefit of mitigation alternatives could be determined, the Commission does not believe that site specific Level 3 PRAs are required to determine whether an alternative under consideration will provide sufficient benefit to justify its cost. Licensees can use other quantitative approaches for assigning site-specific risk significance to IPE results and judging whether a mitigation alternative provides a sufficient reduction in core damage frequency (CDF) or release frequency to warrant implementation.

61 Fed. Reg. 28467, 28481 (emphasis added). Thus, the Commission held that a determination should be made during the license renewal process, based on a cost-effectiveness analysis, whether implementation of specific SAMDAs as part of the renewed license would be warranted.

The Commission's regulations and guidance documents requiring consideration of imposing clearly cost-effective SAMAs as conditions for license renewal implement the requirements of NEPA as set forth in CEQ regulations. 40 C.F.R. § 1502.14 describes the alternatives analysis as "the heart of the environmental impact statement" and charges each agency with the obligation to "rigorously explore and objectively evaluate all reasonable alternatives." See 42 U.S.C. § 4332(2)(C)(iii), (E); 40 C.F.R. § 1505.1(e).

Although the FSEIS suggests that requiring implementation of a SAMA as a condition of license renewal would be a :'backfit" to the current licensing basis within the meaning.of 10 C.F.R. §50.109, this is technically inaccurate. FSEIS at 5-11.9 While it is true that the steps contemplated for determining whether to impose a SAMA as a condition for license renewal may parallel the steps required to order a "backfit"- compare NUREG/BR-01 84 at iii [Att. 5] with Reg. Guide 4.2, Supplement 1, at 4.2-S-50 [Att. 7], which identifies one of the critical steps in the final step of the SAMA analysis as compliance with Chapter 5 of NUREG/BR-0184

("Perform a more detailed value-impact analysis for remaining SAMAs to identify any plant modifications and procedural changes that may be cost effective (see Chapter 5 of NUREG/BR-0184)"-- it is not the State's position that implementation .of a SAMA requires a Part 50 backfit.

Implementation of preferable alternatives that will reduce the adverse environmental impacts of severe accidents is fully authorized by Parts 51 and 54, particularly 10 C.F.R. § 51.103(a)(4) 9 In the FSEIS, the Staff mischaracterizes the State's position when it says the State's contentions generally assert that cost effective SAMAs must be imposed as a backfit on the current licensing basis. FSEIS, at 5-11, ¶ 3. At no time has the State asserted that the § 50.109 backfit procedure must be applied to implement a clearly cost effective environmental impact mitigation measure.

which requires the Commission to have "taken all practicable measures within its jurisdiction to avoid or minimize environmental harm" and 10 C.F.R. § 54.33(c) which indicates that CLB conditions "may be supplemented or amended as necessary to protect the environment during the term of the renewed license and will be derived from information contained in the supplement to the environmental report submitted pursuant to 10 CFR Part 51, as analyzed and evaluated in the NRC record of decision." Backfit analysis may be required for implementation of improvements justified by safety reviews, but implementation of improvements justified by environmental alternative analyses, such as, by way of example, better designed intake structures to reduce fish impingement or measures to mitigate environmental consequences of severe accidents, are authorized by 10 C.F.R. §§ 51.103(a)(4) and 54.33(c).

NRC Staff essentially agrees that a backfit analysis is not required to impose a SAMA as a condition for a renewed license. During the telephonic oral argument on admission of NYS Contentions 35 and 36, Mr. Turk, speaking for NRC Staff and apparently after consultation with NRC Staff members present during the call, stated the following regarding the hypothetical case of a SAMA that was related to aging-management and was clearly cost-effective:

if a SAMA related to an aging-related element of license renewal, if it was only marginally cost beneficial, then I would not' 0 think it would change our adequacy determination under Part 54. But if there was something that was significantly cost beneficial from a favorable standpoint, we would then examine whether or not the AMP was adequate under Part 54i because that might affect a determination whether the AMP was itself-adequate. And that's how we would consider it.

April 19, 2010 ASLB Conference at 896, ML101160416. Significantly, Mr. Turk does not 10 The word "not" was not in the original transcript, but was added by an agreed post-argument errata filing by NRC Staff. Joint Motion for Correction of Transcript of April 19, 2010 Prehearing Telephone Conference (May 14, 2010) ML101440230 at Attachment A, p. 3.

indicate that implementation of a SAMA related to aging management would have to be preceded by a backfit analysis. There is no reason why such a backfit analysis would be required if the SAMA were unrelated to aging management since in both cases the basis for implementation would be a finding that above and beyond safety requirements, environmental benefits of a SAMA would substantially outweigh the cost and implementation of the SAMA would be environmentally beneficial ,by reducing severe accident environmental consequences.

NRC Staff references the GEIS statement that probability-weighted radiological consequences of severe accidents are small (FSEIS 5-11, 5-12), apparently as an excuse for its failure to complete its SAMA analysis or to consider implementation of any cost-effective SAMAs. However, this ignores the regulatory directive contained in the GEIS, § 51.53(c), Table B-I, and note 2 thereto that NRC Staff must conduct a site-specific SAMA analysis for IP2 and IP3. See also SECY-00-0210, at 2, 3, 5 [Att. 8]; Limerick Ecology, 867 F.2d at 739. Moreover, it ignores the undisputed fact that Entergy has identified 22 potentially cost-beneficial SAMAs for IP2 and IP3 where the magnitude of the adverse environmental impact which would be mitigated is measured in the millions of dollars.

In sum, NRC has long recognized in its regulations and by its rulings that a part of its environmental review of a license renewal proposal is consideration of SAMAs and that implementation of clearly cost-effective SAMAs is warranted absent a rational explanation for rejection. Even NRC Staff in its Standard Review Plan for Envir~onmental Reports at Operating License Renewal (NUREG- 1555),accepts the proposition that the "intent [of the SAMA process]

is to identify additional cases that might warrant either additional features or other actions that would prevent or mitigate the consequences of serious accidents." Id. at 5.1.1-1 [Att. 6]. The FSEIS's "rationale" that Part 54 precludes consideration of implementation of any SAMA that is not directly related to aging management lacks legal support and is irrational. Essentially the FSEIS asserts that although a SAMA analysis must be conducted as a condition of license renewal, NRC may ignore the results of that SAMA analysis in the final decision on whether to approve license renewal. The FSEIS offers no rational reason why such an absurd resultwould be intended or desirable.

CONCLUSION The State respectfully submits that summary disposition in its favor on Combined Contention 35/36 is warranted because there are no material facts in dispute and because NRC Staff's stated rationale for declining to require the completion of cost analyses for potentially cost-effective SAMAs and declining to consider imposing clearly cost-effective SAMAs as license conditions are contrary to Commission regulations and decisions, NRC Staff guidance documents, federal court rulings, and CEQ requirements. Accordingly, pursuant to 10 C.F.R. §§ 2.710 and 2.1205, the State seeks a Board ruling that declares that the FSEIS is legally deficient, and denies the application based on the failure of NRC Staff to comply with NEPA and NRC and CEQ environmental, regulations. Alternatively, the State requests a Board order declaring that the FSEIS is legally deficient and postponing a final decision on the application until (1) the applicant completes the cost/benefit analyses for all potentially cost-beneficial SAMAs for which such analysis has not been completed, and (2) NRC Staff either makes implementation of those measures which are cost-beneficial a condition for license renewal or provides a rational basis why it is not requiring implementation of those measures.

Respectfully submitted, Dated: January 14, 201,1 Aipos J.

Janice A. Dean Assistant Attorneys General Office of the Attorney General Adam Dobson, of the State of New York of Counsel The Capitol Albany, New York 12224 Certification pursuant to 10 C.F.R. § 2.323 and ASLB Scheduling Order Pursuant to 10 C.F.R. § 2.323(b) and this Atomic Safety and Licensing Board's July 1, 2010 Scheduling Order ¶ G.6, I certify that I have made a sincere effort to contact the other parties in this proceeding, to explain to them the factual and legal issues raised in this motion for leave, and to resolve those issues, and I certify that my efforts have been unsuccessful.

I further certify that the State timely initiated such consultation via communications with counsel for the NRC Staff on Thursday, December 16, 2010 and counsel for Entergy on Monday, December 20, 2010 in accordance with the Scheduling Order ¶ H.2.

In accordance with the Scheduling Order ¶ H. 1, I also certify that this motion is not interposed for delay or any other improper purpose, that I believe in good faith that there is no genuine issue as to any material fact relating to this motion, and that the moving party is entitled to a decision as a matter of law, as required by 10 C.F.R. §§ 2.1205 and 2.7 10(d). The State notes that while NRC Staff does not agree with the ultimate relief requested by the State in the accompanying motion (i.e., summary judgment in favor of the State), counsel for NRC Staff did agree that the dispute raised by NYS 35/36 is ripe for resolution via the summary disposition procedure.

7thnJ. Sipos Assistant Attorney General State of New York January 14, 2011.

A-1

List of Attachments to State of New York Summary Disposition Motion on Combined Contention NYS 35/36 10 C.F.R. §-51.101, 10 C.F.R. § 51.103, 10 C.F.R. § 54.29, 10 C.F.R. § 54.33, and 40 C.F.R. § 1502.14. Volume 45 of the Federal Register, pages 40101-40104, published June 13, 1980, Nuclear Power Plant Accident Considerations Under the National Environmental Policy Act of 1969 (Statement of Interim Policy). Staff Requirements Memorandum, Samuel J. Chilk to J.M. Taylor and W.C. Parler, Re: SECY-93-086 - Backfit Considerations, PDR Accession No. 9307300095 930630 (June 30, 1993). Volume 61 of the Federal Register, including pages 28467, 28480, and 28481, published June 5, 1996, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses. NUREG/BR-0184, Regulatory Analysis Technical Evaluation Handbook, United States Nuclear Regulatory Commission Office of Nuclear Regulatory Research (January 1997), including cover page and page iii. NUREG-1555, Standard Review Plans for Environmental Reviews of Nuclear Power Plants Supplement 1 (October 1999), including the cover page and pages 5.1.1-1, 5.1.1-7, 5.1.1-8, and 5.1.1-9. United States Nuclear Regulatory Commission's Regulatory Guide 4.2, Supplement 1 (September 2000), including the cover page and page 4.2-S-50. SECY-00-0210, Denial Of Petition (PRM 51-7) For Rulemaking To Delete The Requirement From 10 CFR Part 51 To Consider Severe Accident Mitigation Alternatives In Operating License Renewal Reviews (October 20, 2000). Volume 66 of the Federal Register, pages 10834-10839, published February 20, 2001, Nuclear Energy Institute Denial of Petition for Rulemaking [Docket No. PRM 51-7].

A-2 List of Attachments to State of New York Summary Disposition Motion on NYS.35/36 0 Volume 69 of the Federal Register, pp. 2182 and 2187, published January 14, 2004, Changes to Adjudicatory Process; Final Rule, Statement of Considerations. 1 United States Nuclear Regulatory Commission's Regulatory Analysis Guidelines, NUREG/BR-0058, Revision 4 (September 2004), including coverpages and page 4. 2 .NEI 05-01 (Rev. A), Severe Accident Mitigation Alternatives (SAMA)

Guidance Document (Nov. 2005). 3 Volume 72 of the Federal Register, pages 45466-45467, published August 14, 2007, Notice of Availability of the Final License Renewal Interim Staff Guidance LR-ISG-2006-03: Staff Guidance for Preparing Severe Accident Mitigation Alternatives Analyses. 4 Entergy, NL-09-165, License Renewal Application - SAMA Reanalysis Using Alternate Meteorological Tower Data (Dec. 14, 2009), and Attachment 1 ("December 2009 SAMA Reanalysis"). 5 United States Nuclear Regulatory Commission's Procedures for Managing Plant-Specific Backfits and 50.54(f) Information Requests, LIC-202, Rev. 2 (May 17, 2010).

III A-3 List of Attachments to State of New York Summary Disposition Motion on NYS 35/36

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD v'

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-------------------------------------- x In re: Docket Nos. 50-247-LR and 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BDO1 Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc., January 14, 2011 CERTIFICATE OF SERVICE I hereby certify that on January 14, 2011, copies of the (1) State of New York's Motion of Summary Disposition of Consolidated Contention NYS-35-36, (2) State of New York's Statement of Undisputed Material Facts in Support of its Motion for Summary Disposition of Combined Contention NYS-35/36, and (3) Declaration of AAG Janice A. Dean and attachments thereto were served upon the following persons via U.S. Mail and e-mail at the following addresses:

Lawrence G. McDade, Chair Kaye D. Lathrop Administrative Judge Administrative Judge Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mailstop 3 F23 190 Cedar Lane E.

Two White Flint North Ridgway, CO 81432 11545 Rockville Pike Kaye.Lathrop@nrc.gov Rockville, MD 20852-2738 Lawrence.McDade@nrc.gov Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Richard E. Wardwell- Mailstop 3 F23 Administrative Judge Two White Flint North Atomic Safety and Licensing Board Panel 11545 Rockville Pike U.S. Nuclear Regulatory Commission Rockville, MD 20852-2738 Mailstop 3 F23 Two White Flint North Joshua A. Kirstein, Esq., Law Clerk 11545 Rockville Pike Atomic Safety and Licensing Board Panel Rockville, MD 20852-2738 U.S. Nuclear Regulatory Commission Richard. Wardwell@nrc.gov Mailstop 3 F23 Two White Flint North 11545 Rockville Pike Rockville, MD 20852-2738 Josh.Kirstein@nrc.gov I

Office of Commission Appellate Martin J. O'Neill, Esq.

Adjudication Morgan, Lewis & Bockius LLP U.S. Nuclear Regulatory Commission Suite 4000 Mailstop 16 G4 1000 Louisiana Street One White Flint North Houston, TX 77002 11555 Rockville Pike martin.o'neill@morganlewis.com Rockville, MD 20852-2738 ocaamail@nrc.gov Elise N. Zoli, Esq.

Goodwin Procter, LLP Office of the Secretary Exchange Place Attn: Rulemaking and Adjudications Staff 53 State Street U.S. Nuclear Regulatory Commission Boston, MA 02109 Mailstop 3 F23 ezoli@goodwinprocter.com Two White Flint North 11545 Rockville Pike William C. Dennis, Esq.

Rockyille, MD 20852-2738 Assistant General Counsel hearingdocket@nrc.gov Entergy Nuclear Operations, Inc.

440 Hamilton Avenue Sherwin E. Turk, Esq. White Plains, NY 10601 David E. Roth, Esq. wdennis@entergy.com Andrea Z. Jones, Esq.

Beth N. Mizuno, Esq. Robert D. Snook, Esq.

Brian G. Harris, Esq. Assistant Attorney General Office of the General Counsel Office of the Attorney General U.S. Nuclear Regulatory Commission State of Connecticut Mailstop 15 D21 55 Elm Street One White Flint North P.O. Box 120 11555 Rockville Pike Hartford, CT 06141-0120 Rockville, MD 20852-2738 robert.snook@po.state.ct.us sherwin.turk@nrc.gov andrea.jones@nrc.gov Melissa-Jean Rotini, Esq.

david.roth@nrc.gov Assistant County Attorney beth.mizuno@nrc.gov Office of the Westchester County Attorney brian.harris@nrc.gov, Michaelian Office Building 148 Martine Avenue, 6th Floor Kathryn M. Sutton, Esq. White Plains, NY 10601 Paul M. Bessette, Esq. MJR1 @westchestergov.com Morgan, Lewis & Bockius LLP IIII Pennsylvania Avenue, NW Daniel E. O'Neill, Mayor Washington, DC 20004 James Seirmarco, M.S.

ksutton@morganlewis.com Village of Buchanan pbessette@morganlewis.com Municipal Building 236 Tate Avenue Buchanan, NY 10511-1298 vob@bestweb.net 2

Daniel Riesel, Esq. Manna Jo Greene, Director Thomas F. Wood, Esq. Stephen Filler, Esq.

Jessica Steinberg, Esq. Hudson River Sloop Clearwater, Inc.

Sive, Paget & Riesel, P.C. 724 Wolcott Avenue 460 Park Avenue Beacon, NY 12508 New York, NY 10022 Mannajo@clearwater.org driesel@sprlaw.com stephenfiller@gmail.com jsteinberg@sprlaw.com Ross H. Gould Michael J. Delaney, Esq.,Director Member Energy Regulatory Affairs Hudson River Sloop Clearwater, Inc.

NYC Dep't of Environmental Protection 270 Route 308 59-17 Junction Boulevard Rhinebeck, NY 12572 Flushing, NY 11373 rgouldesq@gmail.com (718) 595-3982 mdelaney@dep.nyc.gov Phillip Musegaas, Esq, Deborah Brancato, .Esq.

Riverkeeper, Inc.

20 Secor Road Ossining, NY 10562 phillip@riverkeeper.org dbrancato@riverkeeper.org John J. Sipos Dated at Albany, New York this 14th day of January 2011 3

UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

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X In re: Docket Nos. 50-247-LR; 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BD0I Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. January 13, 2011

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x THE STATE OF NEW YORK'S STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF ITS MOTION FOR

SUMMARY

DISPOSITION OF COMBINED CONTENTION NYS-35/36

1. The Final Supplemental Environmental Impact Statement Regarding Indian Point Nuclear Generating Stations Unit 2 and Unit 3 ("FSEIS") identifies 13 potentially cost-beneficial severe accident mitigation alternatives ("SAMAs") for Indian Point Unit 2 ("IP2") and 9 potentially cost-beneficial SAMAs for Indian Point Unit 3 ("1P3"). FSEIS at 5-9 to 5-10.1

2. The FSEIS notes that the cost-benefit analyses have not been completed for these 22 SAMAs and that further analysis is required. FSEIS at 5-11.

3. In the original NYS Contention 35, New York State identified 9 potentially cost-beneficial SAMAs for which final cost analyses had not been completed. These 9 SAMAS are:

IP2 009 Create a reactor cavity flooding system; IP2 021 Install additional pressure or leak monitoring instrumentation for interfacing system loss of coolant accidents (ISLOCAs);

IP2 022 Add redundant and diverse limit switches to each containment isolation valve; These totals include the two unnumbered SAMAs involving a safety valve gagging device for steam generator tube rupture (SGTR) events. FSEIS at 5-10, G-48 (one each for IP2 and IP3).

State of New York Statement of Material Facts in Support of Summary Disposition Motion on.NYS 35 & 36

IP2 062 Provide a hard-wired connection to a safety injection (SI) pump from the alternate safe shutdown system (ASSS) power supply; IP2 053 Keep both pressurizer PORV block valves open; iP3 007 Create a reactor cavity flooding system; IP3 018 Route the discharge from the main steam safety valves through a structure where a water spraywould condense the steam and remove most of the fission products (cost beneficial in TI-SGTR sensitivity in Section [8]);

IP3 019 Install additional pressure or leak monitoring instrumentation for ISLOCAs; IP3 053 Install an excess flow valve to reduce the risk associated with hydrogen explosions.

Entergy December 2009 SAMA Reanalysis, December 11, 2009 Letter from Fred Dacimo to U.S. Nuclear Regulatory Commission,

Subject:

License Renewal Application - SAMA Reanalysis Using Alternate Meteorological Tower. Data, NL-09-165, Attachment 1, at 10-28 (Tables 4 & 5), ML093580089 ("December 2009 SAMA Reanalysis").

4. With regard to the 9 SAMAs identified in ¶ 3, supra, Entergy indicated that "the above potentially cost beneficial SAMAs have been submitted for engineering project cost-benefit analysis." December 2009 SAMA Reanalysis, Attachment 1, at 31-32.

5. Entergy has not submitted a completed cost-benefit analysis for any of these 9 SAMAs to the NRC Staff.

6. The FSEIS accepts the incomplete cost-benefit analyses as "sound" and concludes that the "evaluations performed by Entergy are reasonable and sufficient for the license renewal submittal." FSEIS at 5-11.

2 State of New York Statement of Material Facts in Support of Summary Disposition Motion on NYS 35 & 36

7. In the original NYS Contention 36, New York State identified 9 additional potentially cost-beneficial SAMAs where the benefits were substantially greater than the cost and contended that either the SAMA should be required to be implemented or a rational basis should be given for why it should not be implemented. The following table accurately summarizes the findings in the December 2009 SAMA Reanalysis regarding these 9 substantially cost-effective SAMAs for IP2 and IP3:

Original Original Haw.line New Ba1selhne Baseline New Baseline Benefit with Benefit with SAMA Number and Description Benefit lenefit Uncertainty Uncertainty Old Cost New Cost

$420,459 SP2 S1,357.046 $885,176 $2,856,939 $494,XWt S938,000 SAMA 02S; Provide a portable dieei-driven batteay charger.

IP2 S984.503 r2,350.530 $2,072.638 S4,948.485 S1.656,000 S1,656.000' SAMA 044; Use fire water sytem as backup for steam generator inventory.

fP2 $1,72,733 S5;591,781 53,626.807 " 11,772.170 S200.00 $200,0(9)

SAMA054:

Install flood alarm in the 480VAC switchgear room.

.P2 S387,828 1,27.5.337 $816.481 32.684,920 $216,000 5216,1)00 SAMA 060; Provide added protection against flood propagation from stairwell 4 into the 480VAC switchgear room.

IP2 $853,187 V20754,991 S1,796,183 " 5,799.9112 S192,X0O 192,1000 SAMA 061:

Provide addod protection against flood propagation from the deluge room into the 480V switchgear room.

IP2 $1,722,733 $5.591,781 53,626.807 S$1.772,170 $15W.000 .560.000 SAMA*065:

Upgrade the ASSS to allow timely restoration of seal injection and cooling.

IP3 $1,274,884 $4,073,152 S1,847.657 s5,903.1l8 51.288,()0 $1,2"88.0.

SAMA 055:

Provide hardwired connecton to one SI or R'R pump from the Appendix R bus (MCC 312.AI LP3 $1,365,046 34,359.371 $1,978;328 S61317.929 $560,000 $560.0()

SAMA 061:

Upgrade the ASSS to allow timely restoation of seal injection and cooling, lP3 $1-365,046 $4,359,371 S119787328 S6.317,929 $196,800 $196,800 SA, 062:

Install flood alarm in the 480NVAC switchgcar room.

3 State of New York Statement of Material Facts in Support of Summary Disposition Motion on NYS 35 & 36

8. The Staff has not made a decision on the merits on whether any of the cost-effective SAMAs identified in ¶ 7, supra, should be added as license conditions for IP2 or IP3 and Entergy has not committed to adopting any of these SAMAs.

9. The FSEIS does not include any additional cost-benefit analyses beyond those provided by Entergy in its December 2009 SAMA Reanalysis and early submittals.

10. The FSEIS concludes that completed cost-benefit analyses for the 18 above-identified potentially cost-effective SAMAs and a decision on the merits as to whether any of these potentially cost-effective SAMAs should be included as license conditions for the proposed extended operating licenses for IP2 or IP3 need not be made prior to the Atomic Safety and Licensing Board reaching a decision on the proposed license renewal applications for IP2 and IP3. FEIS at 5-11 to 5-12.

11. The entire basis for NRC Staff s decision to not require completion of the cost analyses for all potentially cost-effective SAMAs and to not require implementation of any of the potentially cost-effective SAMAs is contained in the FSEIS ¶ 5.2.6. FSEIS at pp. 5-11 to 5-12.

12. The Indian Point reactors were never subjected to a SAMA analysis as part of the NEPA review during the proceedings for their initial operating. licensesduring the 1970s. FSEIS at 5-4, § 5.2.

13. According to NRC Staff and Entergy, as of 2000 approximately 16,971,000 people live within 50 miles of [P2 and IP3. FSEIS at 2-124.

14. According to NRC Staff and Entergy, as of 2000 approximately 1,113,000 people live within 20 miles of [P2 and IP3. FSEIS at 2-124.

4 State of New York Statement of Material Facts in Support of Summary Disposition Motion on NYS 35 & 36

15. According to NRC Staff, IP2 and 1P3 each are located in a high-population area.

FSEIS at 2-124.

16. Entergy and NRC Staff project that by 2035 approximately 19,228,000 people will be within 50 miles of IP2 and IP3. FSEIS at G-20.

17. Of all the power reactors in the United States, the Indian Point reactors have the highest surrounding population both within a 50-mile radius and a 10-mile radius. NYS Contention 35, ¶¶ 10, 12; NYS Contention 36, ¶ 19; AEC, Population Distribution Around Nuclear Power Plant Sites, Figure 2: Typical Site Population Distribution (5-50 Miles) (April 17, 1973); FEMA, Nuclear Facilities & Population Density Within 10 Miles (June 2005).

Respectfully submitted, John J. Sipos Janice A. Dean Assistant Attorneys General Office of the Attorney General of the State of New York The Capitol Albany, New York 12224 (518) 402-2251 Dated: January 13,2011 5 State of New York Statement of Material Facts in Support of Summary Disposition Motion on NYS 35 & 36

UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

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......--------------------- X In re: Docket Nos. 50-247-LR; 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BD01 Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. January 12, 2011

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X DECLARATION OF JANICE A. DEAN Pursuant to 28 U.S.C. § 1746, Janice A. Dean hereby declares as follows:

1. I am an Assistant Attorney General for the State of New York, counsel for petitioner-intervenor State of New York in this proceeding.

2. Attachment I contains true and correct copies of 10 C.F.R. §§ 51.101, 51.103, 54.29, 54.33, and 40 C.F.R. § 1502.14.

3. Attachment 2 contains a true and correct copy of Volume 45 of the Federal Register, pages 40101-40104, published June 13, 1980, Nuclear Power Plant Accident Considerations Under the National Environmental Policy Act of 1969 (Statement of Interim Policy).

4. Attachment 3 contains a true and correct copy of Staff Requirements Memorandum, Samuel J. Chilk to J.M. Taylor and W.C. Parler, Re: SECY-93-086 - Backfit Considerations, PDR Accession No. 9307300095 930630 (June 30, 1993).

5. Attachment 4 contains a true and correct excerpt from Volume 61 of the Federal Register, including pages 28467, 28480, and 28481, published June 5, 1996, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses.

6. Attachment 5 contains a true and correct excerpt from NUREG/BR-0 184, Regulatory Analysis Technical Evaluation Handbook, United States Nuclear Regulatory Commission Office of Nuclear Regulatory Research (January 1997), including cover page and page iii.

Declaration of AAG Janice De*an in Support of State of New Yo rk Summary Disposition Motion on NYS 35/:36

7. Attachment 6 contains a true and correct excerpt of NUREG-1555, Standard Review Plans for Environmental Reviews of Nuclear Power Plants Supplement 1 (October 1999), including the cover page and pages 5.1.1-1, 5.1.1-7, 5.1.1-8, and 5.1.1-9.

8. Attachment 7 contains a true and correct excerpt from the United States Nuclear Regulatory Commission's Regulatory Guide 4.2, Supplement 1 (September 2000), including the cover page and page 4.2-S-50.

9. Attachment 8 contains a true and correct copy of SECY-00-0210, Denial Of Petition (PRM 51-7) For Rulemaking To Delete The Requirement From 10 CFR Part 51 To Consider Severe Accident Mitigation Alternatives In Operating License Renewal Reviews (October 20, 2000).

10. Attachment 9 contains a true and correct copy of Volume 66 of the Federal Register, pages 10834-10839, published February 20, 2001, Nuclear Energy Institute Denial of Petition for Rulemaking [Docket No. PRM 51-7].

11. Attachment 10 contains a true and correct copy of Volume 69 of the Federal Register, pp. 2182 and 2187, published January 14, 2004, Changes to Adjudicatory Process; Final Rule, Statement of Considerations.

12. Attachment 11 contains a true and correct excerpt from the United States Nuclear Regulatory Commission's Regulatory Analysis Guidelines, NUREG/BR-0058, Revision 4 (September 2004), including cover pages and page 4.

13. Attachment 12 contains a true and correct copy of NEI 05-01 (Rev. A), Severe

.Accident Mitigation Alternatives (SAMA) Guidance Document (Nov. 2005).

14. Attachment 13 contains a true and correct excerpt from Volume 72 of the Federal Register, pages 45466-45467, published August 14, 2007, Notice of Availability of the Final License Renewal Interim Staff Guidance LR-ISG-2006-03: Staff Guidance for Preparing Severe Accident Mitigation Alternatives Analyses.

15. Attachment 14 contains a true and correct copy of NL-09-165, License Renewal Application - SAMA Reanalysis Using Alternate Meteorological Tower Data (Dec. 14, 2009),

Attachment 1 ("December 2009 SAMA Reanalysis").

16. Attachment 15 contains a true and correct copy of the United States Nuclear Regulatory Commission's Procedures for Managing Plant-Specific Backfits and 50.54(f)

Information Requests, LIC-202, Rev. 2 (May 17, 2010).

2 Declaration of AAG Janice Dean in Support of State of New York Summary Disposition Motion on NYS 35/36

17. [ declare under penalty of perjury thatthe foregoing is tree and correct.

Executed on January 12, 20 LI

.- A. Dean jail--e A. Dean D)eciaracion of AAG Janice Dean in Su Pport of State of New Yo rk Summary Disposiiion Motion on NYS 35/36

UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD In re; Docket Nos. 50-247-LR; 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BDO1 Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. January 13, 2011

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x STATE OF NEW YORK'S MOTION FOR

SUMMARY

DISPOSITION OF CONSOLIDATED CONTENTION NYS-35/36 State of New York Statement of Undisputed Material Facts Declaration of AAG Janice A. Dean and Attachments 1 - 15 COPY

UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

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x In re: Docket Nos. 50-247-LR; 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BDOI Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. January 13, 2011

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------------------------------- x THE STATE OF NEW YORK'S STATEMENT OF UNDISPUTED MATERIAL FACTS IN SUPPORT OF ITS MOTION FOR

SUMMARY

DISPOSITION OF COMBINED CONTENTION NYS-35/36

1. The Final Supplemental Environmental Impact Statement Regarding Indian Point Nuclear Generating Stations Unit 2 and Unit 3 ("FSEIS") identifies 13 potentially cost-beneficial severe accident mitigation alternatives ("SAMAs") for Indian Point Unit 2 ("IP2") and 9

.potentially cost-beneficial SAMAs for Indian Point Unit 3 ("IP3"). FSEIS at 5-9 to 5-10.'

2. The FSEIS notes that the cost-benefit analyses have not been completed for these 22 SAMAs and that further analysis is required. FSEIS at 5-11.

3. In the original NYS Contention 35, New York State identified 9 potentially cost-beneficial SAMAs for which final cost analyses had not been completed. These 9 SAMAS are:

IP2 009 Create a reactor cavity flooding system; IP2 021 Install additional pressure or leak monitoring instrumentation for interfacing system loss of coolant accidents (ISLOCAs);

IP2 022 Add redundant and diverse limit switches to each containment isolation valve; These totals include the two unnumbered SAMAs involving a safety valve gagging device for steam generator tube rupture (SGTR) events. FSEIS at 5-10, G-48 (one each for IP2 and IP3).

State of New York Statement of Material Facts in Support of Summary Disposition Motion on.NYS 35.& 36

IP2 062 Provide a hard-wired connection to a safety injection (SI) pump from the alternate safe shutdown system (ASSS) power supply; IP2 053 Keep both pressurizer PORV block valves open; iP3 007 Create a reactor cavity flooding system; IP3 018 Route the discharge from the main steam safety valves through a structure where a water spraywould condense the steam and remove most of the fission products (cost beneficial in TI-SGTR sensitivity in Section [8]);

IP3 019 Install additional pressure or leak monitoring instrumentation for ISLOCAs; IP3 053 Install an excess flow valve to reduce the risk associated with hydrogen explosions.

Entergy December 2009 SAMA Reanalysis, December 11, 2009 Letter from Fred Dacimo to U.S. Nuclear Regulatory Commission,

Subject:

License Renewal Application - SAMA Reanalysis Using Alternate Meteorological Tower Data, NL-09-165, Attachment 1, at 10-28 (Tables 4 & 5), ML093580089 ("December 2009 SAMA Reanalysis").

4. With regard to the 9 SAMAs identified in ¶ 3, supra,Entergy indicated that "the above potentially cost beneficial SAMAs have been submitted for engineering project cost-benefit analysis." December 2009 SAMA Reanalysis, Attachment 1, at 31-32.

5. Entergy has not submitted a completed cost-benefit analysis for any of these 9 SAMAs to the NRC Staff.

6. The FSEIS accepts the incomplete cost-benefit analyses as "sound" and concludes that the "evaluations performed by Entergy are reasonable and sufficient for the license renewal submittal." FSEIS at 5-11.

2 State of New York Statement of Material Facts in Support of Summary Disposition Motion on NYS 35 & 36

7. In the original NYS Contention 36, New York State identified 9 additional potentially cost-beneficial SAMAs where the benefits were substantially greater than the cost and contended that either the SAMA should be required to be implemented or a rational basis should be given for why it should not be implemented. The following table accurately summarizes the findings in the December 2009 SAMA Reanalysis regarding these 9 substantially cost-effective SAMAs for IP2 and IP3:

Original Original, Ilaline New W."line Baseline New Baseline Benefit with Bknefit with SANTA Number and Description l.enefit Benerit Uncertainty Uncertainty Old Cost New Cost iP2 .';420,459 $1,357.046 $85,116 S2,836,939 $494,)000 S93.,8(40 SAMA 028; Provide a portablediesel-driven battery charger.

IP2 $984.503 S2.350,530 S2,072,638 S4,949.4t5 51.656.000 S1,656,WK)

SA4*A 044; UIse fwe water .ystam as backup for steam generator inventory.

fP2 51.722.733 $5,591,781 53.626.807 $11,772170 520.00 5200,0)0(0 SAMA 054:

Install flood alarm in the 480VAC switchgcar room.

I2 . 387,=28 S4.275.337 $816,431 52.684,920 $216,00 3216,0M0 SAMA 060:

Provide added protection against flood propagation from stairwell 4 into the 480VAC switchgear room.

lln 5853,187 $2.754,991 51.796.183 55,799.9M2 S192,OW0 $192,000 SAMAt061:

• Provide added protection against flood propagation from the deluge room into the 4ROV switchgear room.

IP2 S1,722,733 55,591,781 $3,626,807 $11.772.170 $560,000 S560.0(=

SAMA 065:

Upgrade the ASSS to allow timely restoration of seal injection and cooling.

WP3 $1.274.884 $4,073,152 $1,847,657 $5,903.118 S1.288,000 S1,288.000 SAMA 055:

Provide hardwired connection to one STor R11R pump from the Appendix R bus (MCC 312A.

IP3 51,365,046 $4,359.371 S1,978;328 56.317r929 $560,000 S560.000 SAMA 061:

Upgrade the ASSS to allow timely restoration of seal injection and cooling,.

fl3 SL365,046 $4,359,371 S1,978,328 S6.317,929 S196,9W ,so6.800 SAMA 062:

Install flood alarm in the 480VAC switchgear room.

3 State of New York Statement of Material Facts in Support of Summary Disposition Motion on NYS 35 & 36

8. The, Staff has not made a decision on the merits on whether any of the cost-effective SAMAs identified in ¶ 7, supra, should be added as license conditions for IP2 or IP3 and Entergy has not committed to adopting any of these SAMAs.

9. The FSEIS does not include any additional cost-benefit analyses beyond those provided by Entergy in its December 2009 SANMA Reanalysis and early submittals.

10. The FSEIS concludes that completed cost-benefit analyses for the 18 above-identified potentially cost-effective SAMAs and a decision on the merits as to whether any of these potentially cost-effective SAMAs should be included as license conditions for the proposed extended operating licenses for IP2 or IP3 need not be made prior to the Atomic Safety and Licensing Board reaching a decision on the proposed license renewal applications for IP2 and IP3. FEIS at 5-11 to 5-12.

11. The entire basis for NRC Staff's decision to not require completion of the cost analyses for all potentially cost-effective SAMAs and to not require implementation of any of the potentially cost-effective SAMAs is contained in the FSEIS ¶ 5.2.6. FSEIS at pp. 5-11 to 5-12.

12. The Indian Point reactors were never subjected to a SAMA analysis as part of the NEPA review during the proceedings for their initial operating, licenses during the 1970s. FSEIS at 5-4, § 5.2.

13. According to NRC Staff and Entergy, as of 2000 approximately 16,971,000 people live within 50 miles of IP2 and IP3. FSEIS at 2-124.

14. According to NRC Staff and Entergy, as of 2000 approximately 1,113,000 people live within 20 miles of IP2 and IP3. FSEIS at 2-124.

4 State of New York Statement of Material Facts in Support of Summary Disposition Motion on NYS 35 & 36

15. According to NRC Staff, IP2 and IP3 each are located in a high-population area.

FSEIS at 2-124.

16. Entergy and NRC Staff project that by 2035 approximately 19,228,000 people will be within 50 miles of IP2 and IP3. FSEIS at G-20.

17. Of all the power reactors in the United States, the Indian Point reactors have the highest surrounding population both within a 50-mile radius and a 10-mile radius. NYS

• Contention 35, ¶¶ 10, 12; NYS Contention 36, ¶ 19; AEC, Population Distribution Around Nuclear Power Plant Sites, Figure 2: Typical Site Population Distribution (5-50 Miles) (April 17, 1973); FEMA, Nuclear Facilities & Population Density Within 10 Miles (June 2005).

Respectfully submitted, John J. Sipos Janice A. Dean Assistant Attorneys General Office of the Attorney General of the State of New York The Capitol Albany, New York 12224 (518) 402-2251 Dated: January 13, 2011 State of New York Statement of Material Facts in Support of Summary Disposition Motion on NYS 35 & 36

UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD In re: Docket Nos. 50-247-LR; 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BDO1 Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. January 12, 2011

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7-------------------------- X DECLARATION OF JANICE A. DEAN Pursuant to 28 U.S.C. § 1746, Janice A. Dean hereby declares as follows:

1. I am an Assistant Attorney General for the State of New York, counsel for petitioner-intervenor State of New York in this proceeding.

2. Attachment I contains true and correct copies of 10 C.F.R. §§ 51.101, 51.103, 54.29, 54.33, and 40 C.F.R. § 1502.14.

3. Attachment 2 contains a true and correct copy of Volume 45 of the Federal Register, pages 40101-40104, published June 13, 1980, Nuclear Power Plant Accident Considerations Under the National Environmental Policy Act of 1969 (Statement of Interim Policy).

4. Attachment 3 contains a true and correct copy of Staff Requirements Memorandum, Samuel J. Chilk to J.M. Taylor and W.C. Parler, Re: SECY-93-086 - Backfit Considerations, PDR Accession No. 9307300095 930630 (June 30, 1993)..

5. Attachment 4 contains a true and correct excerpt from Volume 61 of the Federal Register, including pages 28467, 28480, and 28481, published June 5, 1996, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses.

6. Attachment 5 contains a true and correct excerpt from NUREG/BR-0 184, Regulatory Analysis Technical Evaluation Handbook, United States Nuclear Regulatory Commission Office of Nuclear Regulatory Research (January 1997), including cover page and page iii.

1. Declaration of AAG Janice De;an in Support of State of New York Summary Disposition Motion on NYS 35/36

.7. Attachment 6 contains a true and correct excerpt of NUREG-1555, Standard Review Plans for Environmental Reviews of Nuclear Power Plants Supplement 1 (October 1999), including the cover page and pages 5.1.1-1, 5.1.1-7, 5.1.1-8, and 5.1.1-9.

8. Attachment 7 contains a true and correct excerpt from the United States Nuclear Regulatory Commission's Regulatoy Guide 4.2, Supplement I (September 2000), including the cover page and page 4.2-S-50.

9. Attachment 8 contains a true and correct copy of SECY-00-021 0, Denial Of Petition (PRM 51-7)*For Rulemaking To Delete The Requirement From 10 CFR Part 51 To Consider Severe Accident Mitigation Alternatives In Operating License Renewal Reviews (October 20, 2000).

10. Attachment 9 contains a true and correct copy of Volume 66 of the Federal Register, pages 10834-10839, published February 20, 2001, Nuclear Energy Institute Denial of Petition for Rulemaking [Docket No. PRM 51-7].

11. Attachment 10 contains a true and correct copy of Volume 69 of the Federal Register, pp. 2182 and 2187, published January 14, 2004, Changes to Adjudicatory Process;-

Final Rule, Statement of Considerations.

12. Attachment 11 contains a true and correct excerpt from the United States Nuclear Regulatory Commission's Regulatory Analysis Guidelines, NUREG/BR-0058, Revision 4 (September 2004), including cover pages and page 4.

13. Attachment 12 contains a true and correct copy of NEI 05-01 (Rev. A), Severe Accident Mitigation Alternatives (SAMA) Guidance Document (Nov. 2005).

14. Attachment 13 contains a true and correct excerpt from Volume 72 of the Federal Register, pages 45466-45467, published August 14, 2007, Notice of Availability of the Final License Renewal Interim Staff Guidance LR-ISG-2006-03: Staff Guidance for Preparing Severe Accident Mitigation Alternatives Analyses.

15. Attachment 14 contains a true and correct copy of NL-09-165, License Renewal Application - SAMA Reanalysis Using Alternate Meteorological Tower Data (Dec. 14, 2009),

Attachment 1 ("December 2009 SAMA Reanalysis").

16. Attachment 15 contains a true and correct copy of the United States Nuclear Regulatory Commission's Procedures for Managing Plant-Specific Backfits and 50.54(f)

Information Requests, LIC-202, Rev. 2 (May 17, 2010).

2 Declaration of AAG Janice Dean in Support of State of New York Summary Disposition Motion on NYS 35/36

17. [ declare under penalty of perjury thatthe foregoing is true and correct.

Executed on January 12. 2011

.u tDeclaruitiniuolA\C Janice Dean inSupponl of S;tate of Nov York Sumniary [Disposition Miotion on NIYS 3)536

Contention 35/36 Attachment 1 10 C.F.R. § 5 1.101 10 C.F.R. § 51.103 10 C.F.R. § 54.29 10 C.F.R. § 54.33 40 C.F.R. § 1502.14

§51.101 10 CFR Ch. 1(1-1-10 Edition)

(30) day period and the minimum nine- satisfactory explanation to the con-ty (90) day period may run concur- trary, interim action which tends to rently to the extent they overlap. determine subsequent development or (b) In any rulemaking proceeding for limit reasonable alternatives, will be the purpose of protecting the public considered prejudicial.

health or safety or the common defense (c) This section does not preclude any and security, the Commission may applicant for an NRC permit, license, make and publish the decision on the or other form of permission, or amend-final rule at the same time that the ment to or renewal of an NRC permit, Environmental Protection Agency pub- license, or other form of permission, (1) lishes the FEDERAL REGISTER notice of from developing any plans or designs filing of the final environmental im- necessary to support an application; or pact statement. (2) after prior notice and consultation with NRC staff, (i) from performing

§ 51.101 Limitations on actions. any physical work necessary to support (a) Until a record of decision is issued an application, or (ii) from performing in connection with a proposed licensing any other physical work relating to the or regulatory action for which an envi- proposed action if the adverse environ-ronmental impact statement is re- mental impact of that work is de mini-quired under § 51.20, or until a final mis.

finding of no significant impact is

[49 FR 9381, Mar. 12, 1984, as amended at 53 issued in connection with a proposed li-FR 31682, Aug. 19, 1988]

censing or regulatory action for which an environmental assessment is re- §51.102 Requirement to provide a quired under § 51.21: record of decision; preparation.

(1) No action concerning the proposal may be taken by the Commission (a) A Commission decision on any ac-tion for which a final environmental which would (i) have an adverse envi-

• impact statement has been prepared ronmental impact, or (ii) limit the shall be accompanied by or include a choice of reasonable alternatives.

concise public record of decision.

(2) Any action concerning the pro-posal taken by an applicant which . (b) Except as provided in paragraph would (i) have an adverse environ- (c) of this section, the record of deci-mental impact, or (ii) limit the choice sion will be prepared by the NRC staff director authorized to take the action.

of reasonable alternatives may be grounds for denial of the license. In the (c) When a hearing is held on the pro-case of an application covered by posed action under the regulations in

§§30.32(f), 40.31(f), 50.10(c), 70.21(f), or subpart G of part 2 of this chapter or

§§72.16 and 72.34 of this chapter, the when the action can only be taken by provisions of this paragraph will be ap- the Commissioners acting as a colle-plied in accordance with §§30.33(a)(5), gial body, the initial decision of the 40.32(e), 50.10 (c) and (e), 70.23(a)(7) or presiding officer or the final decision of

§72.40(b) of this chapter, as appro- the Atomic Safety and Licensing Ap-priate. peal Board or the final decision of the (b) While work on a required program Commissioners acting as a collegial environmental impact statement is in body will constitute the record of deci-progress, the Commission will not un- sion. An initial or final decision consti-dertake in the interim any major Fed- tuting the record of decision will be eral action covered by the program distributed as providedin § 51.93.

which may significantly affect the

§ 51.103 Record of decision-general.

quality of the human environment un-less such action: (a) The record of decision required by (1) Is justified independently of the §51.102 shall be clearly identified and program; shall:

(2) Is itself accompanied by an ade- (1) State the decision.

quate environmental impact state- (2) Identify all alternatives consid-ment; and ered by the Commission in reaching (3) Will not prejudice the ultimate the decision, state that these alter-decision on the program. Absent any natives were included in the range of 48

Nuclear Regulatory Commission §51.104 alternatives discussed in the environ- § 51.104 NRC proceeding using public mental impact statement, and specify hearings; consideration of environ-the alternative or alternatives which mental impact statement.

were considered to be environmentally (a)(1) In any proceeding in which (i) a preferable. hearing is held on the proposed action, (3) Discuss preferences among alter- (ii) a final environmental impact state-natives based on relevant factors, in- ment has been prepared in connection cluding economic and technical consid- with the proposed action, and (iii) mat-erations where appropriate, the NRC's ters within the scope of NEPA and this statutory mission, and any essential subpart are in issue, the NRC staff may not offer the final environmental im-considerations of national policy, pact statement in evidence or present which were balanced by the Commis-the position of the NRC staff on mat-sion in making the decision and state ters within the scope of NEPA and this how these considerations entered into subpart until the final environmental the decision. impact statement is filed with the En-(4) State whether the Commission vironmental, Protection Agency, fur-has taken all practicable measures nished to commenting agencies and within its jurisdiction to avoid or mini- made available to the public.

mize environmental harm from the al- (2) Any party to the proceeding may ternative selected, and if not, to ex- take a position and offer evidence on plain why those measures were not the aspects of the proposed action adopted. Summarize any license condi- within the scope of NEPA and this sub-tions and monitoring programs adopted part in accordance with the provisions in connection with mitigation meas- of part 2 of this chapter applicable to ures. that proceeding or in accordance with (5) In making a final decision on a li- the terms of the notice of hearing.

cense renewal action pursuant to part (3) In the proceeding the presiding of-54 of this chapter, the Commission ficer will decide those matters in con-shall determine whether or not the ad- troversy among the parties within the verse environmental impacts of license scope of NEPA and this subpart.

(b) In any proceeding in which a renewal are so great that preserving hearing is held where the NRC staff has the option of license renewal for energy determined that no environmental im-planning decisionmakers would be un- pact statement need be prepared for reasonable. the proposed action, unless the Com-(6) In a construction permit or a com- mission orders otherwise, any party to bined license proceeding where a lim- the proceeding may take a position and ited work authorization under 10 CFR offer evidence on *the aspects of the 50.10 was issued, the Commission's de- proposed action within the scope of cision on the construction permit or NEPA and this subpart in accordance combined license application will not with the provisions of part 2 of this address or consider the sunk costs as- chapter applicable to that proceeding sociated with the limited work author- or in accordance with the terms of the ization in determining the proposed ac- notice of hearing. In the proceeding, tion. the presiding officer will decide any

• (b) The record of decision may be in- such matters in controversy among the tegrated into any other record pre- parties.

pared by the Commission in connection (c) In any proceeding in which a lim-with the action. ited work authorization is requested, (c) The record of decision may incor- unless the Commission orders other-wise, a party to the proceeding may porate by reference material contained take a position and offer evidence only in a final environmental impact state-.

on the aspects of the proposed action ment. within the scope of NEPA and this sub-

[49 FR 9381, Mar. 12, 1984, as amended at 61 part which are within the scope of that FR 28490, June 5, 1996; 61 FR 66546, Dec. 18, party's admitted contention, in accord-1996; 61 FR 68543, Dec. 30, 1996; 72 FR 57445, ance with the provisions of part 2 of Oct. 9, 20071 this chapter applicable to the limited 49

§ 54.22 10 CFR Ch. 1 (1-1-10 Edition)

ý (ii) That are not subject to replace- tions necessary to manage the effects ment based on a qualified life or speci- of aging during the period of extended fied time period. operation as part of the renewal appli-(2) Describe and justify the methods cation. The justification for changes or used in paragraph (a)(1) of this Section. additions to the technical specifica-(3) For each structure and.component tions must be contained in the license

.identified in paragraph (a)(1) of this renewal application.

section, demonstrate that the effects of § 54.23 Contents of application-envi-aging will be adequately managed so

• ronmental information.

that the intended function(s) will be maintained consistent with the CLB Each application must include a sup-for the period of extended operation. plement to the environmental report (b) CLB changes during NRC review of that complies with the requirements of the application. Each year following subpart A of 10 CFR part 51.

submittal of the license renewal appli- § 54.25 Report of the Advisory Com-cation and at least 3 months before mittee on Reactor Safeguards.

scheduled completion of the NRC re-view, an amendment to the renewal ap- Each renewal application will be re-plication must be submitted that iden- ferred. to the Advisory Committee on tifies any change to the CLB of the fa- Reactor Safeguards for a review and re-cility that materially affects the con- port. Any report will be made part of tents of the license renewal applica- the record of the application and made tion, including the FSAR supplement. available to the public, except to the (c) An evaluation of time-limited aging extent that security classification pre-analyses. (1) A list of time-limited vents disclosure.

aging analyses, as defined in § 54.3,

§ 54.27 Hearings.

must be provided. The applicant shall demonstrate that- A notice of an opportunity for a hear-(i) The analyses remain valid for the ing will be published in the FEDERAL period of extended operation; REGISTER in accordance with .10 CFR (ii) The analyses have been projected 2.105. In the absence of a request for a to the end of the period of extended op- hearing filed within 30 days by a person*

eration; or whose interest may be affected, the (iii) The effects of aging on the in, Commission may issue a renewed oper-tended function(s) will be adequately ating license or renewed combined li-managed for the period of extended op- cense without a hearing upon 30-day eration. notice and publication in the FEDERAL (2) A list must be provided of plant- REGISTER of its intent to do so.

specific exemptions granted pursuant [72 FR 49560, Aug. 28, 2007]

to 10 CFR 50.12 and in effect that are based on time-limited aging analyses § 54.29 Standards for issuance of a re-as defined in § 54.3. The applicant shall newed license.

provide an evaluation that justifies the A renewed license may be issued by continuation of these exemptions for the Commission up to the full term au-the period of extended operation. thorized by §54.31 if the Commission (d) An FSAR supplement. The FSAR finds that:

supplement for the facility must con- (a) Actions have been identified and tain a summary description of the pro- have been or will be taken with respect grams and activities for managing the to the matters identified in paragraphs effects of aging and the evaluation of (a)(1) and (a)(2) of this section, such time-limited aging analyses for the pe- that there is reasonable assurance that riod of extended operation determined the activities authorized by the re-by paragraphs (a) and (c) of this sec- newed license will continue to be con-tion; respectively. ducted in accordance with the CLB,

§ 54.22 Contents of application-tech-- and that any changes made to the plant's CLB in order to comply with nical specifications. this paragraph are in accord with the Each application must include any Act and the Commission's regulations.

technical specification changes or addi- These matters are:

146

Nuclear Regulatory Commission § 54.33 (1) managing the effects of aging dur- ating license or combined license pre-ing the period of extended operation on viously in effect will be reinstated un-the functionality of structures and less its term has expired and the re-components that have been identified newal application was not filed in a to require review under § 54.21(a)(1); and timely manner.

(2) time-limited aging analyses that (d) A renewed license may be subse-have been identified to require review quently renewed in accordance with all under § 54.21(c). applicable requirements.

(b) Any applicable requirements of [60 FR 22491, May 8, 1995, as amended at 72 subpart A of 10 CFR part 51 have .been FR 49560, Aug. 28, 2007]

satisfied.

(c) Any matters raised under §2.335 § 54.33 Continuation of CLB and condi-have been addressed. tions of renewed license.

[60 FR 22491, May 8, 1995, as amended at 69 (a) Whether stated therein or not, FR 2279, Jan. 14, 2004] each renewed license will contain and otherwise be subject to the conditions

§54.30 Matters not subject' to a re- set forth in 10 CFR 50.54.

newal review. (b) Each renewed license will be (a) If the reviews required by §54.21 issued in such form and contain such (a) or (d) show that there is not reason- conditions and limitations, including able assurance during the current li- technical specifications, as the Com-cense term that licensed activities will mission deems appropriate and nec-be conducted in accordance with the essary to help ensure that systems, CLB, then the licensee shall take meas- structures, and components subject to ures under its current license, as ap- review in accordance with §54.21 will propriate, to ensure that the intended continue to perform their intended function of those systems, structures functions for the period of extended op-or components will be maintained in eration. In addition, the renewed li-accordance with the CLB throughout cense will be issued in such form and the term of its current license. contain such conditions and limita-(b) The licensee's compliance with tions as the Commission deems appro-the obligation under Paragraph (a) of priate and necessary to help ensure this section to take measures under its that systems, structures, and compo-current license is not within the scope nents associated with any time-limited of the license renewal review. aging analyses will continue to per-form their intended functions for the

§ 54.31 Issuance of a renewed license. period of extended operation.

(a) A renewed license will be of the (c) Each renewed license will include class for which the operating license or those conditions to protect the envi-combined license currently in effect ronment that were imposed pursuant was issued. to 10 CFR 50.36b and that are part of (b) A renewed license will be issued the CLB for the facility at the time of for a fixed period of time, which is. the issuance of the renewed license. These sum of the additional amount of time conditions may be supplemented or beyond the expiration of the operating amended as necessary to protect the license or combined license (not to ex- environment during the term of the re-ceed 20 years) that is requested in a re- newed license and will be derived from newal application plus the remaining information contained in the supple-number of years on the operating li- ment to the environmental report sub-cense or combined license currently in mitted pursuant to 10 CFR part 51, as effect. The term of any renewed license analyzed and evaluated in the NRC may not exceed 40 years:. record of decision. The conditions will (c) A renewed license will become ef- identify the obligations of the licensee fective immediately upon its issuance, in the environmental area, including, thereby superseding the operating li- as appropriate, requirements for re-cense or combined license previously in porting and recordkeeping of environ-effect. If a renewed license is subse- mental data and any conditions and quently set aside upon further adminis- monitoring requirements for the pro-trative or judicial appeal, the oper- tection of the nonaquatic environment.

147

§ 54.35 10 CFR Ch. 1(1-1-10 Edition)

(d) The licensing basis for the re- (3) A regulation or order issued pur-newed license includes the CLB, as de- suant to those acts.

fined in §54.3(a); the inclusion in the li- (b) The Commission may obtain a censing basis of matters such as li- court order for the payment of a civil censee commitments does not change penalty imposed under Section 234 of the legal status of those matters unless the Atomic Energy Act-specifically so ordered pursuant to (1) For violations of the following-paragraphs (b) or (c) of this section. (i) Sections 53, 57, 62, 63, 81, 82, 101, 103, 104, 107, or 109 of the Atomic En-

§54.35 Requirements during term of ergy Act of 1954, as amended; renewed license. (ii) Section 206 of the Energy Reorga-nization Act; During the term of a renewed license, (iii) Any rule, regulation, or order licensees shall be subject to and shall issued pursuant to the sections speci-continue to comply with all Commis-fied in paragraph (b)(1)(i) of this sec-sion regulations contained in 10 CFE tion; parts 2, 19, 20, 21, 26, 30, 40, 50, 51, 52, 54, (iv) Any term, condition, or limita-55, 70, 72, 73, and 100, and the appen- tion of any license, issued under the dices to these parts that are applicable sections specified in paragraph (b)(1)(i) to holders of operating licenses or com- of this section.

bined licenses, respectively. (2) For any violation for which a li-(72 FR 49560, Aug. 28, 2007] cense may be revoked under Section 186 of the Atomic Energy Act of 1954, as

§ 54.37 Additional records and record- amended.

keeping requirements.

§ 54.43 Criminal penalties.

(a) The licensee shall retain in an auditable and retrievable form for the (a) Section 223 of the Atomic Energy term of the renewed operating license Act of 1954, as amended, provides for or renewed combined license all infor- -criminal sanctions for willful viola-mation and documentation required tions of, attempted violation of, or con-by, or otherwise necessary to document spiracy to violate, any regulation compliance with, the provisions of this issued under sections 161b, 161i, or 161o part. of the Act. For purposes of section 223, (b) After the renewed license is all the regulations in part 54 are issued issued, the FSAR update required by 10 under one or more of sections 161b, 161i, CFR 50.71(e) must include any systems, or 161o, except for the sections listed in structures, and components newly paragraph (b) of this section.

identified that would have been subject (b) The regulations in part 54 that to an aging management review or are not issued under Sections 161b, 161i, evaluation of time-limited aging anal- or 161o for the purposes of Section 223 yses in accordance with §54.21. This are as follows: §§54.1, 54.3, 54.4, 54.5, FSAR update must describe how the ef- 54.7, 54.9, 54.11, 54.15, 54.17, 54.19, 54.21, fects of aging will be managed such 54.22, 54.23, 54.25, 54.27, 54.29, 54.31, 54.41, that the intended function(s) in § 54.4(b) and 54.43.

will be effectively maintained during the period of extended operation. PART 55--OPERATORS' LICENSES

[60 FR 22491, May 8, 1995, as amended at 72 Subpart A--General Provisions FR 49560, Aug. 28, 2007]

Sec.

§ 54.41 Violations. 55.1 Purpose.

55.2 Scope.

.(a) The Commission may obtain an 55.3 License requirements.

injunction or other court order to pre- 55.4 Definitions.

vent a violation of the provisions of the 55.5 Communications.

following acts- 55.6 Interpretations.

(1) The Atomic Energy Act of 1954, as 55.7 Additional requirements.

55.8 Information collection requirements:

amended. OMB approval.

(2) Title II of the Energy Reorganiza- 55.9 Completeness and accuracy of informa-tion Act of 1974, as amended or tion.

148

Council on Environmental Quality § 1502.16 among alternatives). The summary will and analyses in a statement shall be normally not exceed 15 pages. commensurate with the importance of the impact, with less important mate-

§ 1502.13 Purpose and need. rial summarized, consolidated, or sim-The statement shall briefly specify ply referenced. Agencies shall avoid the underlying purpose and need to useless bulk in statements and shall which the agency is responding in pro- concentrate effort and attention on imý posing the alternatives including the portant issues. Verbose descriptions of proposed action. the affected environment are them-selves no measure of the adequacy of

§ 1502.14 Alternatives . including the an environmental impact statement.

proposed action.

This section is the heart of the envi- *§ 1502.16 Environmental consequences.

ronmental impact statement. Based on ' This section forms the scientific and the information and analysis presented analytic basis for the comparisons in the sections on the Affected Envi- under §1502.14. It shall consolidate the ronment (§ 1502.15) and the Environ- discussions of those elements required mental Consequences (§ 1502.16), it by sections 102(2)(C)(i), (ii), (iv),. and (v) should present the environmental im- of NEPA which are within the scope of pacts of the proposal and the alter- the statement and as much of section natives in comparative form, thus 102(2)(C)(iii) as is necessary to support sharply defining the issues and pro- the comparisons. The discussion will viding a clear basis for choice among include the environmental impacts of options by the decisionmaker and the the alternatives including the proposed public. In this section agencies shall: action, any adverse environmental ef-(a) Rigorously explore and objec- fects which cannot be avoided should tively evaluate all reasonable alter- the proposal be implemented, the rela-natives, and for alternatives which tionship between short-term uses of were eliminated from detailed study, man's environment and the mainte-briefly discuss the reasons for their nance and enhancement of long-term having been eliminated. productivity, and any irreversible or ir-(b) Devote substantial treatment to retrievable commitments of resources each alternative considered in detail which would be involved in the pro-including the proposed action so that posal should it be implemented. This reviewers may evaluate their compara- section should not duplicate discus-tive merits. sions in §1502.14. It shall include dis-(c) Include reasonable alternatives cussions of:

not within the jurisdiction of the lead (a) Direct effects and their signifi-agency. cance (§ 1508.8).

(d) Include the alternative of no ac-. (b) Indirect effects and their signifi-tion. cance (§1508.8).

(e) Identify the agency's preferred al- (c) Possible conflicts between the ternative or alternatives, if one or proposed action and the objectives of more exists, in the draft statement and Federal, regional, State, and local (and identify such alternative in the final in the case of a reservation, Indian statement unless another law prohibits tribe) land use plans, policies and con-the expression of such a preference. trols for the area concerned. (See (f) Include appropriate mitigation § 1506.2(d).)

measures not already included in the (d) The environmental effects of al-proposed action or alternatives. ternatives including the proposed ac-tion. The comparisons under §1502.14

§ 1502.15 Affected environment. will be based on this discussion.

The environmental impact statement (e) Energy requirements and con-shall succinctly describe the environ- servation potential of various alter-ment of the area(s) to be affected or natives and mitigation measures.

created by the alternatives under con- (f) Natural or depletable resource re-sideration. The descriptions shall be no quirements and conservation potential longer than is necessary to understand of various alternatives and mitigation the effects of the alternatives. Data measures.

841

Contention 35/36 Attachment 2 45 Fed. Reg. 40101 Nuclear Power Plant Accident Considerations Under the National Environmental Policy Act of 1969 (Statement of interim Policy)

(Jun. 13, 1980)

analysis ot* resul t otr itrationesot tne t] to challengematerial. The vaccinates and controls shall be observed'for 3 days the reactor core. in tils regarcl, a postchaHenge and all deaths: recorded. shall be given both to the Probat MN Novyt Bactorin-o occurrence of such releases and (21 U.S.C. 151,and 154; 37 FR 28477, 2864: 38 environmental consequences of FR 19141), releases.This statement of inten Done at Washington, D.C., this 6thzday of, policy is taken in coordination iA ast 5 but not mor e June 1980.

a, each weighing 300 R. p. Jones" other ongoing safety-related acti

ýbeinjiected that are, directly related to accid lose:. Acting Services.Deputy Administrator, Veterinary conside 'rationsin the areas of pl, design, operational safety, siting Is after the firs * -

t [FR Dn, 80W-17917Filed 6-I12ý4O&45 am)

SILUNJC00r534144-U and emergency planninig. The Sdo'se shallbhne; e- Commission intends to continue Imme.detl on: the.. rulemaking on thismatter when.

siting requirements. and other san NUCLEAR; REGULATORY related requiremenits incorporati urovyi challenge COMMISSIONh upon request from accident -considerations are in DI

.Sashall bemused for 10 CFR Parts 50 and 51 DATES.",This: statement of interfirpo days folowing the. is effective June.13. 1980oComment E product.LEach of Nuclear'Power Plant Accident period expires Septemberk i, ig8.

nd earch of five Considerations Under the National cinated guinea pigs for EnvirontmhetalPollic Act of ,1969 ADDRESSES: T1he Commnission intc ijectead AGENCY: U.S Nuclear RegUlatory the inteirii poic guidac conta ith approxirnatelyJlou Commission. herein. to'be immediately effectiv(

naterial. This dose However, all interestedpeorsons v~

d by statistical' ACTION. Statement of Interim Policy.

desirejto submit written comment of t tiations of the SUMMARýY:TT6e*NucAear RAegulaiory " suggestionsfor consideration in

. Thiavaccmiates and Commission(NRC) is revisingits policy coninedtioftiwith this statement sh bser ved.for8 days . for conside~ig 'the more severe kinds of send them to the Secretary of the all dleaths recorded; very low probability accidents that are' Comminsio.in, U.S Nuclear Regula physically possible, in environmentil Commission, Wahsingiton. D.C. 20 mended by impact assessments required by the Attention: Docketing and Servicxe to ryportion of National Envirofnmental Policy Act Branch.

lgrkphs ()(1)* and (NEPA). Su6chaccidehita are commonly' referred to asClass 9 accidents, FOR FURTHER INFORMATION COPTACTi R. Wayne Houston, Chief. Accident di

• following an accident classification Evaluation Branh Qfflc of Nuclear nschemeproposed by the Atomi" Eiiergy Commission (prede"cessor t' IC] Rkeactor Regulaion. U.S. Nuclear Regulatry Co0mission, Washington, or final.podc 19.71 for purposes 6f implementing a D.C. 20555, Telephaone: (3011)492-7323.

3mpletedl product Unit NEPA. ' The'Mair*h 2'odf tle*'T, 28ý,l-1979Isnd;Ula

• • cident at

)emtested fnit 2 ft TreMle e Island ntuclar SUPPLEMENTARY INFOR "ATI ..

etested fori plant has emphasized the need ffdr aling ities changes iwrNRtC regarding the AccidentConsiderations i-itestwritten into considerations t6obe given to seio;Us Rieviewsl -

dIio rth e accidents from an environmental as well The proposed Annex to Appendix E

-i . . as a safety point. f view. of 10:CFR. Part 50 (hereafter the ,

.... This si'atement ofinterim pblicy .Annex")was published for comment butnot more announces the withdrawal If th" on December 1,1971 by the (fornmer)

,:Weighing 300 proposed Annex to Appendix D'of 10 Atomic EnergyCo-mmission. It proposi ajected CFR Part 50 and the suspension of the to specify.a set of standardized accide gutneanpig dose. rulemaking proceeding that began with assumnptions to be used in se shall be the publication of that'prdposed Annex Environmental Reports ,submittedhby ftter the first on December1, 197g1: Itis the applicants for construction .pernits or ose shall be one- Commission' position th:ait its operating liCenses for nuclear power teidedon the Envirodnental Impact Statementsý shall reactors. It also included a systemiifor include considerations of th sitte- classifyihngaccidents according tona

.li challenge specific environniental impacts graded scale of sevierity &Wnprohabilii Irequest usedfrom attributable to accident sequences aillibe for lead* to releases of radiation 'and/or*that of occurrenceý Nine classes of acciden afollo wing u he r adioarelmaterials, including were defined, ranging*from trivi1: to f..oinh *'__i_ radioactive . very serious.,It directed that .for each IJIuuu1L.,,a n of clasS. except classes.1 and 9, the;-

dh of five Proposed as an Annex to 10 CFR Part 50. environmental, consequences shaltbe E, guinea pigs for Appendix D. 36 FR =8541. The commission's NEPA- evaluated as indicated." Class I ven implementing regulations were subsequently (July 18, 1974) revised and recast-as 10 CFR Part 51 but at were not to be considered because*f 1proximately 100 their trivial consequenceshereasin that time the Commission noted that "The Proposed ial. This dose Annex is still under conaideration . 39 FR regard too Class 9 events. the Annex statistical 26279, stated asfodllows:

40192 Fedeigi L&e r/Vol.

The occurrences in Class 9 in~volve w ithin'a 5O..mile' radius of the plant, and' body on which the plant T sequences of -postulated successive: ailures some differences between boling -water staff emphasized its focus

~more severe than those postulateld foýiýthe reactors ( -WRI and pressurized water environment but did; notfi design basis for protective sys~tems ano reactors6(PWRI. Beyond these few probability of a coremelt engineered safety features. Their occurring in the firit place consequiences could be severe. Howi "ver,t specificshe discussions have allth reiterated the guidance of-theAnnex essentially any different t!

nf 0 irr~irrffen is sa sine.m

-mely and have. relied-upon -the whex' based plant. In its Memor kic.l- conclusion that`theopkobalbiliity of. Order'In the Matter-of-fif m;hl; occurre'nce of a Class9 event , is too low Systemis,' the Commissiox ed to warrait consideration, a conclusion the staffsi ju.dgent. Thus eative based upon.genarally .stated:safe6ty Safety Study and NRC-e,i se au considerations. these cases has servttd to gree of attention on the need'to n 1pnts in .t.. "is With the publication of theReactor that enviro'nimenrial risk er iyrem~ote Safety Study (WASHK1400)win.draft form in Augustý"1,9i74 and finalaform-in probabilities and conseq'u I risk.ii i j:j October,-1975 the accident discussions that was madeiniithe p.ub Annex, but was not given began to'refer toothis first,-detail e:ýstudy emphis*:'.. .

vivironmentlal Reports.

d of the risks associated with nuclear In July 197 the NRC c6, te to the Annex statel Risk Assessment Review-power plant accidents, . diularly this annex refers to app1I nlit* s events which can lead to the melting of, ..

clarify.t he-.achi.vem.ntsz tal Reports, -the current ereof ereo.,are are the eO is* inside fuel dy w a ýre~i r*dactor. 2 Thewreferences nkee ping ofthe Reactor safety stu i itle,.'

'and other provisions th --- to this stud wrinkengith the conclusiofis of this study,

!xcept as the content mW quie , to AEC draft abd final intent and spirit of NEPA "to disclose", "'RiskAssessm'ent Revi relevant information, but Rt is obvious 1-thatt.WASH--4,did not form thelbasis to the U.S. NuclearReguhi 0lic6oment-pei o for the conlusionexpressed inthe- . Comraissioy,". wa*thaU1 tani of thile Anni exa Annex. in171ilitte-probbilitY of Group was inabI the~absoluite: le to dte probabilities ewee occurrence o0f¶.ihisSg9.events wa*s..too ism-s -ofthe -Anrir x were

)al among-these were low!to Warfft ',their [si e-specific) sequences inWASH-14X ini" -Consiera tion'*undier!NEPA* - low, but beliea*yts that the ophy lreacrib ing - ~ heConiission's staff has, however,

]4 on those estimnates are in ts nottlad to ob jective. .. " identified in certain-cases unique greatly understated.'" ThiE findings of theRviepw*Gr d tp reat the probab'ijities of circurnstaices!which* it' felt warranted more extensive and detailed - - subsequently-been'refe rr neral Envionmen-tal lipapfa t

- any but the most ge

..conisideria f Claiss 9 .events. One of s-ive these was t heproposeddClinch:River- with a reference tothe CGu po~lic~y statemepntbn theýR~

Breeder Reactbr'lA, ntfCRkBRP),, aýliquida atthir. metal cooled *- - .

veredy**ractor Review Group ReportpuIl imertal different from themo*- conventional..,, JaInuary 18, 1979. -The Con I-I Ig eaer reactor-plants for which . I he.

to how safety experience base is mutch broader.

in the Final -E-icii"uirnental Statemnt it for the C`RBP,.,1he staff-included a Its 1111 o the dicussonof th cdon* idieraoit*had,

- givdn en to Class9 events. i , Stater uluptions are ,t, In the early site re'iew for the subsei

)-gast coar diiii*", Perryman site, ti.estaff perfor,.d-a. acci'd Sctors.- informal 'aseau*s isitof the. relative landA onmentali risks are differences in Class 9,accidentw aiid-cmd ait conside rations, consequences amonig the alternative:

siite's. (SECY-78Z.1377j ny In the case- of the application by expi

~except, Offshore Pow'er Systeims to manufacture is&a 9 floating niuclearpower plants, the staff thle-i rig yeaIrs judged that, the enviromental risksof ussqedin .some Class 9 events. warran-iid specilal. reviews ot accidents, impact ýiatemen tsl~ cozisideratioh.Tlie special- --

accident clearly lea&~

ar power plants!reflected circumstances-were the potentially:. a ch#nge is needed.

-the Annex with few; serious consequences associated with Accordingly, the pr

)ically. the- discus sions:of, water (liquid) pathways leading to- Appendix D of 10 CH luences, throughI Cilass 8" radiological exposures if a molten on December 1, 1971,

-cidents] for each case' reactor core, were6ý tolfall- into the water withdrawn and shall

• 1iis~iof iiterestthat, the* Reactor Safety Study. - . used-by.;applicants-n(

never refets to nor uees the term 'Class S:accident" reasons for the witlid (the dispersion *t*irelease-s ..lthough thin-term ii c5ommoAusedas loosely followsý " .

equiva ekit-to a core-melt scdiL-

.dcket No.,SN 5U.-4.,

eX PrOBcnDeS ~-  :. eeaenvronmental coinsequencesOfr

'of the kinds. of accidents releases-wIhse'prob0biity 4f. occurence accordifigto thei Reactor has been estimated shall also be ,circumstances, as a basis tor opening, dominate the.accident discussed in probabilistic terms. Such reopening,. or. expanding any previous or consequences shalfBbe haracterized in ongong .ro*ceeding..

tion of. Class :9 accidents terms of potential radiologi"cal Howe Iver, Witlialso the intent of the not sufficiently, precise exposwes to Indi"vIdai*. topopulation Commission4that the staff take steps to irther use intCoinission groups, and.,where applicable, to biota. identify additional 'cases that might id reguations, nor as a Health and safetyrisks that may be warrant early consideration of either an in agency practice.. associated with expostre Utopeople additional features or other actions

('9 prescription of shall be discussed in a manner that which would prevent. or mitigate the be used in. the-, an1alysis fairly reflects the currenftstate of consequences of serious ac6idents. -

tental consequences of knowledge regarding such risks. Cases for such consideration are those not contribute to Socioeconomic' impacts that might be for whicha, Final Environmental Jeratign. associated with emergency measures, Statement has already been issued at cdoes not give adequate during or following an,iacident should the Con.tructi6n PerIit stage but for Pthe detailed treatment also be discussed&The enV*i"nmental which the Operating License review.

ýen to prevent and to , risk of accidents' should. also be- stage has not yet been. reach r ed, hI' isequences of accidents compared to and contrasted.with ieewof each application. carig out this directie -the staff radiological risks associated.with should con"sider elevant site featur§es, ition of accidents.. normal and anticipated operational t'Ainexcshall no longer includin"gppulatio' density,, associate(

,lace,the followin relea'ses. with accidenit risk in comparison' to sodU Inprom ati.g ti inteirmguidance, features at presently eraiiig pl'fants:

v is given for the the. Coisnsion: isiaware. thatthere are

-ident rinut and` Willikely remain~i tor somlnetin'iie to inNEPJA reviews. come many uncertaiuties in the derations in Fuiture application oAfisk assessment methods, tor adverse site teatures may be more and it expects that-itsEnVironmental easily incorporated'in plants when' Impact Statements will identify major construction has not yet progressed ivery ie Commission far. " .; , *'"::

Impact

),Seltion.102c)i uncertainties injits probabilistic estimates. Ond the other hland the Environmental Reports s'ubmitted byr mental Policy Commission believes ihat the state of applicants for construction permits and le a reasoned the art is sufficiently advinced that a for operating licenses on or after July 1, vironmentalrisks -beginning shonld.now be made in the 1980 should include a discussion of the o accidents at the use of these methodologies I*nthe environmental risks associated with lities .within the regulatory process, and that such use accidents thatfollows the guidance ement. in the Will represent :a contructive and rational given herein.

oif-such risks, forward step in the discharge of its tention shall be reponsibilities: Ridlited Policy Matters Under It is the intent of the Combmission in Consideration offoccurrence of

)ability of issuing this :Statement ofinterim Policy In addition to its responsibilities 3,mental that the. staff willinitiate #tatmentsof under NEPA, the NRC also bears eleases. accident-considerationSain accordance respornsivbility under"the At'6*tOc'Energy ion and/or with the foregoing: guidance. in its" Act for the protection of the public ongoingNEPA-reviews4 4e.*" for any health and safety from the hazards jway., proceeding *at alicensing stage where a associated with the ume of nuclear uad water. Final 'Environmental Impact Statement energy. Purs'uant to this'responsibility ces that has-not yet.been issued These new .the Commission notes that there a-re

! but, not be treatments, which will take into account currently a number of ongoing activities ronably be significant site- and plant specific being considered. by the Cormmis.ro ccident features, will result in more detailed and its staff whi'ch intimately relate to spectrum of discussions of accident riSks than in the "Class99acdident" question and' nd :shall previous. environmental statements, which are either the subject of current esult in particularly for those related to rulemaking or are candidate s'ubjects for fue* and to conventional light water plants at land- rulemaking.

be extent to based sites. It isexpectedthat these On December 19, 1979 the uses revised treatments will lead to Commission issued for ptiublic comment*0 conclusions regarding the environmental a proposed rule which would utors to the risks'of accidents.sirmilar to those that significantly revise its requirements in ticular plant would be reached by a continuation of 10 CFkPart 56 for emergency planning' ailed current practices, particularly for cases for nuclear power plants.ý One of the that form involving special circumstances where consideratidns:in this rulemaking was!

Jmiatebs Of Class.9 risks have been considered by

• rated in the the staff, as described above. Thus, this 'Commissioners mewts but change in policy is not to be construed with the inclusion c Such as any lack of confidence-in conclusions They 'feel that they.

applicable, an even-hande~d, iei regarding the environmental risks of erroneous position.

accidents expressed in any previously 44 FR 75167.

4~1O4 Federal Register I rese liers and resgller-reti8tf For the Nuclear ReguIatorY Commission. gastuline.vGeie rally. the ne nit resellers and*resell' samuelj.,"Chi:ic, per npute maximum lawfUl Secretary of the.Commission. ed on the acquisition c

, bas prade of:gasbline; plius

.i ...

,FR nec. 1I*5zl or gallon markup depenI 5 90-Ot-'

1ILN per e of sale,' plus tax costl typ DEPARTMENT OF ENERGY' to th'ereI rut* es aregimilar rulie* adopted it julyý1979 inder the new rules; a' EconomiC RegulatO~rY AdministratiOn as the last-purr is.' defined ilers with gas0lineiale 10 CFR Parts 210,212. setlions or less in calenad 2El ga tiers with sales of'mDr piR0-77'-

loCkerts. se lions of gasoline'in c:al Reelr'and ReselW RetaPes" . Price 88 f'G (fS-A i ne7 l b-jfl."1

,st of product in invent tothe 'seier"Bi AOENcy EconomicRegt r .c. oirsuantt Pt ccounhting practices cor of EPnergy, Administration, Department pplied.**'

ACTION: Final rule-* a Generally,.the retailer of Energy dopted in July 1B79 Per SUMMARy'. The Department adopisatthree amtendments a Iter theiri 'normal busin tIDPoE) hereby re~ejle.-'retil6r price atith respect to-sales oful io it's reseller and rellers and reselter. vtew resellermretailei rules. First, smnall in calen'dar ya 17 iae of n similar provission Ho) reta-ilers (sales i1e o*i*l*ss) atther respects the JulY1 5 million gallons ofgag16 for independent retaile, permitted the optJi-n 6t couputin reseller-retaiier piýcr,

'acquisition cost" sin~ractices te fr r Finally, the6reqstyrict hist Ori*jacGoun~*gn normal of iicreased comisi r0.Consistentlly apiplied-;, Secoknd the passed through in.Pri:

business practices rule is,4arneid~to, With treat ieseller-retailers eo"n isitnetlY refineris was removed-thrpett however 'thpriovior independent retailers refiners IanIe xcePtio retail gasol.ine sales. the t 1h ere f inr1' a e r 'equretiil sales'by application rule* to refi

-t oth

... epextir.eo t.at rule r conmissions in the rel application consig eageents ' reinstated., ph,. r ed bv con"ImissiO DATE: Effective May 1. 1960.,

FOR"F WEiI.NFORMATIO"0ACT=- 1I. AniefdmeiJs~

Procedures). Comments received Robert C.Gillette (Hearing

,Economic Regulatory Adxninistration, issuance ofythý rifei e (2(6534757 cost of productiiiPY**

Washington, D.C.- 2061ýTVZ Publi '

Williaim L.-Wdebb Office.of the last pur.che prir

.*In0mation}, Ecoflomicge*uleatorY aqquisitidfl costGeri purchase product fri D.tC. 20461J' Str-eet, NCW..

(202)00 Washington. 85-45 supplier at widely ye Qhuck Boehl: Meigulations'and-* 'IWith respect tc estobli Emergency Planinin).E.conomic lawfd iein* price for gas Regulatory Adminiustration. Room, of a Notfizseof PropeDpd Liu 7204 2046W2000 M(202* Street.Nw.ý,iwashungtOtt 53632062. Contrary in that rule.nalti D.C. resellers..rese r-rt5eta William Funk or.William Mayo0;Lee sellers thait blend ',gasohaI (Office of*.General.Counsel),.... lawful sellia 'pgae 6A-127*

'f Department of Energy. Room S '.

treats the gasoline atndal

.00Ii'depende P ee AV uef S gasohol as Separate pioth 25273

,202)

SWashingt~n. D.C. 20585o . component. of tle blede' or.252-6754, price for gasol-more'if ttbn im a.fl-mhas conaI5s the cos.t 'of product inl in

1. ackgfli ned pirtce 'rules aini one for In0 3k ii d tsraRequiirementi - ftmjimaty'choose eithe-r practices to determmeth ThI, nder the new Invilort rslrreaerrule:

On April 26,1960 t45 FR 294, W" May-2, eonaistelitly apply thaiF 19800) DOE issued new. "S:

rueor'

Contention 35/36 Attachment 3 SECY-93-086 S. Chilk, Staff Requirements Memorandum to J.M. Taylor and W.C. Parler, Backfit Considerations, PDR Accession No. 9307300095 930630 (Jun. 30, 1993)

NI It. S TATF S.

1:A f~ I GU L A T OH Y cOMým i Ss,

.11 MEMORANDUM TO: James M. Taylor Executive Director for Operations William C. Parler General Counsel FROM: Samuel J. Chilk, SecretarJ- .

SUBJECT:

SECY-93-086 - BACKFIT CONSID ATIONS Overall, the Commission is pleased with the Backfit Rule and its implementdtion. For the most part, the process has worked well, even though, as the staff has pointed out, there are some valid concerns regarding difficulties encountered in trying to satisfy the Backfit Rule's requirement for a "substantial increase in overall protection to public health and safety".

Being reasonably satisfied with the Rule, the Commission has, therefore, agreed that the staff should continue to carry out a disciplined regulatory analysis for rulemaking initiatives, and to determine, as part of that analysis, whether proposed rules meet the safety enhancement criterion of the Backfit Rule.

However, although the Commission is interested in preserving the discipline of the Backfit Rule, the Commission is also interested in assuring that the safety enhancement criterion is administered with the degree'of flexibility the Commission originally intended. When the "substantial increase" criterion was promulgated in its present form in 1985, the commission said:

"substantial" means "important or significant in a large amount, extent, or degree." Under such a standard the Commission would not ordinarily expect that safety improvements would be required as backfits that result in an insignificant or small benefit to public health and safety

... regardless of costs. On the other hand, the standard is not intended to be interpreted in a manner that would result in disapprovals of worthwhile safety or security SECY NOTE: THIS SRM, SECY-93-086, AND THE VOTE SHEETS OF ALL COMMISSIONERS WILL BE MADE PUBLICLY AVAILABLE 10 WORKING DAYS FROM THE 'DATE OF THIS SRM k"V PDR IOCFR 930630

,30730095 "R*

pTy97 PDR~

improvements having costs that are justified In 'View of the increased protection that would be provided.

A majority of the commission (with the Chairman"and Commissioners Rogers, Remick and de Planque agreeing) continues to believe that these words embody a sound approach to the "substantial increase" criterion and that this approach is flexible enough to allow for qualitative arguments that a given proposed rule would substantially increase safety. The approach is also flexible enough to allow for arguments that consistency with national and international standards, or the incorporation of widespread industry practices, contributes either directly or indirectly to a substantial increase in safety. Such arguments concerning consistency with other standards, or incorporation of industry practices, would have to rest on the particulars of a given proposed rule. The Commission also believes that this approach to "substantial increase" is consistent with the agency's policy of encouraging voluntary industry initiatives.

The Commission asks the staff to consider whether existing documents such as the CRGR Charter or office letters should be revised to reflect better the Commission's understanding of the "substantial increase" standard. The Commission would entertain a staff recommendation that separate guidance should be drafted, or other appropriate mechanisms for implementation prepared. Any revisions, drafts, or mechanisms which the staff believes advisable should be brought to the Commission for approval.

Despite the flexibility which the Commission believes inheres in the "substantial increase" standard, there may be proposed rules which, in the staff's opinion, do not meet that standard and should be promulgated mainly for nonsafety reasons. As in the past, the Commission remains willing to consider, on a case-by-case basis, whether such rules should be promulgated as exceptions to the Backfit Rule. However, it is the judgement of the General Counsel that using 10 CFR 50.12 to promulgate such exceptions is not a sound regulatory approach. The Commission therefore concludes that such exceptions should be promulgated only if the proposal not to apply the Backfit Rule to the proposed rulemaking is made the subject of notice and comment.

For the reasons set forth in his vote, Commissioner Curtiss believes that the preferred courdS of action would be to modify the backfit rule to directly %04resa situations where-a seemingly worthwhile change to the regu+/-a..ions cannot be adopted because of difficulties in demonstrating that the change represents a "substantial increase in the overall protection of the public health and safety or the common defense and security." In Commissioner Curtiss' view, the Commission has encountered a sufficient number of such cases, where the current backfit rule does not permit a reasonable, well-justified change to-be made, to warrant modifying the backfit rule to address such situations.

RIRTN`AUYNý"' t cc: The Chairman Commissioner Rogers Commissioner Curtiss Commissioner Remick Commissioner de Planque OGC OIG Office Directors, Regions, ACRS, ACNW (via E-Mail)

ASLBP (via FAX)

Contention 35/36 Attachment 4 61 Fed. Reg. 28467 Environmental Review for Renewal of Nuclear Power Plant Operating Licenses (Jun. 5, 1996)

28467 Rules- and Regulations Federal Register Vol. 61. No. 109

- Wednesday, June 5, 1996 This section of the FEDERAL REGISTER reviewing plant-specific applications 3. Need for Generating Capacity and contains regulatory documents having general and better focus of review resources on Alternative Energy Sources applicability and legal effect, most of which significant case specific concerns. The C. Technical Concerns are keyed to and codified in the Code of results should be a more focused and 1. Category and Impact Magnitude Federal Regulations, which is published under Definitions therefore a more effective NEPA review 50 titles pursuant to 44 U.S.C. 1510. 2. Surface Water Quality for each license renewal. The 3. Aquatic Ecology The Code of Federal Regulations is sold by amendment will also provide the NRC 4. Groundwater Use and Quality

-the Superintendent of Documents. Prices of with the flexibility to address 5. Terrestrial Ecology new books are listed in the first FEDERAL unreviewed impacts at the site-specific 6. Human Health REGISTER issue of each week. stage of review and allow full 7. Socioeconomics consideration of the environmental 8. The Uranium Fuel Cycle and Solid impacts of license renewal. Waste Management NUCLEAR REGULATORY 9. Accidents The NRC is soliciting public comment 10. Decommissioning COMMISSION on this rule for a period of 30 days. In 11. Need for Generating Capacity developing any comment specific 12. Alternatives to License Renewal 10 CFR Part 51 attention should be given to the 13. License Renewal Scenario RIN 3150-AD63 treatment of low-level waste storage and .14. Environmental Justice disposal impacts, the cumulative IV. Discussion of Regulatory Requirements Environmental Review for Renewal of radiological effects from the uranium A. General Requirements Nuclear Power Plant Operating fuel cycle, and the effects from the B. The Environmental Report Licenses disposal of high-level waste and spent 1. Environmental Impacts of License Renewal AGENCY: Nuclear Regulatory fuel. 2. Consideration of Alternatives Commission. DATES: Absent a determination by the C. Supplemental Environmental Impact ACTION: Final rule. NRC that the rule should be modified, Statement based on comments received, the final 1. Public Scoping and Public Comments on

SUMMARY

The Nuclear Regulatory rule shall be effective on August 5, the SEIS Commission (NRC) is amending its 1996. The comment period expires on 2. Commission's Analysis and Preliminary regulations regarding environmental Recommendation July 5, 1996.

protection regulations for domestic 3. Final Supplemental Environmental ADDRESSES: Send comments to: The Impact Statement licensing and related regulatory Secretary of the Commission, U.S. D. NEPA Review for Activities Outside functions to establish new requirements Nuclear Regulatory Commission, NRC License Renewal Approved Scope for the environmental review of V. Availability of Documents Washington, DC 20555-0001, Attention:

applications to renew the operating Docketing and Services Branch, or hand VI. Submittal of Comments in an Electronic licenses of nuclear power plants. The Format deliver comments to the Office of the amendment defines those VII. Finding of No Significant Environmental Secretary, One White Flint North, 11555 Impact Availability environmental impacts forwhich a Rockville Pike, Rockville, Maryland VIII. Paperwork Reduction Act Statement generic analysis has been performed between 7:30 a.m. and 4:15 p.m. on IX. Regulatory Analysis that will be adopted in plant-specific Federal workdays. Copies of comments X. Regulatory Flexibility Act Certification reviews for license renewal and those received and all documents cited in the XI. Small Business Regulatory Enforcement environmental impacts for which plant- supplementary information may be I Fairness Act specific analyses are to be performed. XII. Backfit Analysis examined at the NRC Public Document The amendment improves regulatory Room, 2120 L Street NW. (Lower Level), I. Introduction efficiency in environmental reviews for Washington, DC between the hours of license renewal by drawing on the The Commission has amended its 7:45a.m. and 4:15 p.m. on Federal considerable, experience of operating environmental protection regulations in workdays.

nuclear power reactors to generically 10 CFR part 51 to improve the efficiency assess many of the environmental FOR FURTHER INFORMATION CONTACT: of the process of environmental review impacts that are likely to be associated Donald P. Cleary, Office of Nuclear for applicants seeking to renew an with license renewal. The amendment Regulatory Research, U.S. Nuclear operating license for up to an additional also eliminates consideration of the Regulatory Commission, Washington, 20 years. The amendments are based on need for generating capacity and of DC 20555-0001, telephone: (301) 415- the analyses conducted for and reported utility economics from the 6263; e-mail DPC@nrc.gov. in NUREG-1437, "Generic environmental reviews because these SUPPLEMENTARY INFORMATION: Environmental Impact Statement for matters are under the regulatory License Renewal of Nuclear Plants" jurisdiction of the States and are not I. Introduction (May 1996). The Commission's initial necessary for the NRC's understanding II. Rulemaking History III. Analysis of Public Comments decision to undertake a generic of the environmental consequences of a, A. Commenters assessment of the environmental license renewal decision. B. Procedural Concerns impacts associated with the renewal of The increased regulatory efficiency 1. Public Participation and the Periodic a nuclear power plant operating license will result in lower costs to both the Assessment of the Rule and GELS was motivated by its beliefs that:

applicant in preparing a renewal 2. Economic Costs and Cost-Benefit (1) License renewal will involve application and to the NRC for Balancing nuclear power plants for which the

28480 Federal Register / Vol. 61, No. 109 / Wednesday, June 5, 1996 / Rules and Regulations assessed in an EA and found to be impacts of transportation to the indicates that the source terms used in insignificant. Further, the Commission proposed repository at Yucca Mountain the past under-predict environmental has conducted EAs for seven specific becomes available. consequences. The NRC has concluded licensed ISFSIs and has reached a that analysis of the new source term

9. Accidents finding of no significant environmental information developed over the past 10 impact for each site. Each EA addressed Concern. Several commenters .years indicates that the expected the impacts of construction, use, and expressed concerns regarding the frequency and amounts of radioactive decommissioning. Potential impacts appropriateness of the severe accident release under severe accident conditions that were assessed include radiological determination in the GEIS and with the are less than that predicted using the impacts, land use, terrestrial resources, treatment of severe accident mitigation generic source terms. A summary of the water use, aquatic resources, noise, air design alternatives (SAMDAs) for evolution of this research is provided in quality, socioeconomics, radiological license renewal. A group of commenters NUREG-1 150, "Severe Accident Risks:

impacts during construction and routine identified areas of concern that they An Assessment for Five U.S. Nuclear operation, and radiological impacts of believe justify severe accidents being Power Plants" (December 1990), and its off-normal events and accidents. Trends classified as a Category 3 issue. The supporting documentation. Thus, the in onsite spent fuel storage capacity and areas included seismic risks to nuclear analyses performed for the GEIS the volume of spent fuel that will be power plants and site-specific represent adequate, plant-specific evacuation risks. Several commenters estimates of the impacts from severe generated during an additional 20 years of operation are considered in the GEIS. questioned whether the analyses of the accidents that would generally over-environmental impacts of accidents predict, rather than under-predict, Spent fuel storage capacity requirements were adequate to make a Category I environmental consequences. Therefore, can be adequately met by ISFSIs determination for the issue of severe the GEIS analysis of the impacts of without significant environmental accidents. The contention is that a severe accidents for license renewal is impacts. The environmental impacts of bounding analysis would be established retained and is considered applicable to onsite storage of spent fuel at all plants only if plant-specific analyses were all plants.

have been adequately assessed in the performed for every plant, which was Based on an evaluation of the GElS for the purposes of an not the case. Instead, the GEIS analysis comments, the Commission has environmental review and agency made use of a-single generic.source term reconsidered its previous conclusion in decision on renewal of an operating for each of the two plant types. the draft GEIS concerning site-specific license; thus, no further review within Response. The Commission believes consideration of severe accident the license renewal proceeding is that its analysis of the impacts of severe mitigation. The Commission has required. This provision is relative to accidents is appropriate. The GEIS determined that a site-specific the license renewal decision and does provides an analysis of the -

consideration of alternatives to mitigate not alter existing Commission licensing consequences of severe accidents for severe accidents will be required at the' requirements specific to on-site storage each site in the country. The analysis time of license renewal unless a of spent fuel. adopts standard assumptions about each previous consideration of such The environmental impacts from the site for parameters such as evacuation alternatives regarding plant operation transportation of fuel and waste speeds and distances traveled, and uses has been included in a final attributable to license renewal are found site-specific estimates for parameters environmental impact statement or a to be small when they are within the such as population distribution and related supplement. Because the third range of impacts of parameters meteorological conditions. These latter criterion required to make a Category 1 identified in Table S-4. The estimated two factors were used to evaluate the designation for an issue requires a radiological effects are within regulatory exposure indices for these analyses. The generic consideration of mitigation, the standards. The nonradiological impacts methods used result in predictions of issue of severe accidents must be are those from periodic shipments of risk that are adequate to illustrate the reclassified as a Category 2 issue that fuel and waste by individual trucks or general magnitude and types of risks requires a consideration of severe rail cars and thus would result in *that may occur from reactor accidents. accident mitigation alternatives, infrequent and localized minor Regarding site-evacuation risk, the provided this consideration has not contributions to traffic density. radiological risk to persons as they already been completed. The Programs designed to further reduce evacuate is taken into account within Commission's reconsideration of the risk, which are already in place, provide the individual plant risk assessments issue of severe accident mitigation for for adequate mitigation. Recent, ongoing that form the basis for the GEIS. In license renewal is based on the efforts by the Department of Energy to addition, 10 CFR Part 50 requires that Commission's NEPA regulations that study the impacts of waste licensees maintain up-to-date require a consideration of mitigation transportation in the context of the emergency plans. This requirement will alternatives in its environmental impact multi-purpose canister (see, 60 FR apply in the license renewal term as statements (EISs) and supplements to 45147, August 30, 1995) suggest that well as in the current licensing term. EISs, as well as a previous court there may be unresolved issues As was done in the GEIS analysis, the decision that required a review of severe regarding the magnitude of cumulative use of generic source terms (one set for mitigation alternatives (referred to as impacts from the use of a single rail line PWRs and another for BWRs) is SAMDAs) at the operating license stage.

or truck route in the vicinity of the consistent with the past practice that See, Limerick Ecology Action v. NRC, repository to carry all spent fuel from all has been used and accepted by the NRC 869 F.2d 719 (3d Cir. 1989).

plants. Accordingly, NRC declines to for individual plant Final Although the Commission has reach a Category 1 conclusion on this Environmental Impact Statements considered containment improvements issue at this time. Table S-4 should (FEISs). The purpose of the source term for all plants pursuant to its continue to be the basis for case-by-case discussion in the GEIS is to describe Containment Performance Improvement evaluation of transportation impacts of whether or not new information on (CPI) program, which identified fuel and waste until such time as a source terms developed after the potential containment improvements for detailed analysisof the environmental completion of the most recent FEISs site-specific consideration by licensees,'

Federal Register / Vol. 61, No. 109 /MWednesday, June 5, 1996 / Rules and Regulations 28481 and the Commission has additional five IPEEE submittals will be received, separate rulemaking, reclassifying ongoing regulatory programs whereby covering all operating plants in the severe accidents as a Category 1 issue.

licensees search for individual plant United States. These examinations The Commission does not intend to vulnerabilities to severe accidents and consider potential improvements to prescribe by rule the scope of an consider cost-beneficial. improvements, reduce the frequency or consequences of acceptable consideration of severe these programs have not yet been severe accidents on a plant-specific accident mitigation alternatives for completed. Therefore, a conclusion that basis and essentially constitute a broad license renewal nor does it intend to severe accident mitigation has been search for severe accident mitigation mandate consideration of alternatives generically considered for license alternatives. The NRC staff is identical to those evaluated previously.

renewal is premature. conducting a process review of each In general, the Commission expects that The Commission believes it unlikely plant-specific IPE submittal and IPEEE significant efficiency can be gained by that any site-specific consideration of submittal. To date, all IPE submittals using site-specific IPE and IPEEE results severe accident mitigation alternatives have received a preliminary review by in the consideration of severe accident for license renewal will identify major the NRC with 46 out of 78 completed; mitigation alternatives. The IPEs and plant design changes or modifications for the IPEEE submittals, 24 of the 75 IPEEEs are essentially site-specific PRAs that will prove to be cost-beneficial for are under review. These IPEs have that identify probabilities of core reducing severe accident frequency or resulted in a number of plant procedural damage (Level 1 PRA) and include consequences. This Commission or programmatic improvements and assessments of containment expectation regarding severe accident some plant modifications that will performance under severe accident mitigation improvements is based on further reduce the risk of severe conditions that identify probabilities of the analyses performed to date that are accidents. fission product releases (Level 2 ). As discussed below. In conclusion, the GElS analysis of discussed in Generic Letter 88-20, The Commission's CPI program severe accident consequences and risk "Individual Plant Examination for examined each of the five U.S. is adequate, and additional plant- Severe Accident Vulnerabilities" containment types to determine specific analysis of these impacts is not (November 23, 1988), one of the potential failure modes, potential plant required. However, because the ongoing important goals of theIPE and IPEEE improvements, and the cost- regulatory program related to severe was to reduce the overall probabilities effectivenesses of such improvements. accident mitigation (i.e., IPE and IPEEE) of core damage and fission product As a result of this program, only a few has not been completed for all plants releases as necessary by modifying containment improvements were found .hardware and procedures to help and consideration of severe accident to be potentially beneficial and were prevent or mitigate severe accidents.

mitigation alternatives has not been either identified for further NRC Although Level 3 PRAs have been included in an EIS or supplemental EIS research or for individual licensee used in SAMDA analyses to generate related to plant operations for all plants, evaluation. site-specific offsite dose estimates so In response to the Limerick decision, a site-specific consideration of severe that the cost-benefit of mitigation an NRC staff consideration of SAMDAs accident mitigation alternatives is alternatives could be determined, the was specifically included in the Final required at license renewal for those Commission does not believe that site-Environmental Impact Statement for the plants for which this consideration has specific Level 3 PRAs are required to Limerick 1 and 2 and Comanche Peak 1 not been performed. The Commission determine whether an alternative under and 2 operating license reviews, and in expects that if these reviews identify consideration will provide sufficient the Watts Bar Supplemental Final any changes as being cost beneficial, benefit to justify its cost. Licensees can Environmental Statement for an such changes generally would be use other quantitative approaches for operating license. The alternatives procedural and programmatic fixes, assigning site-specific risk significance evaluated in these analyses included the with any hardware changes being only to IPE results.and judging whether a items previously evaluated as part of the minor in nature and few in number. mitigation alternative provides a CPI Program, as well as improvements NRC staff considerations of severe sufficient reduction in core damage identified through other risk studies and accident mitigation alternatives have frequency (CDF) or release frequency to analyses. No physical plant already been completed and included in warrant implementation. For example, a niodifications were found to be cost- an EIS or supplemental EIS for licensee could use information provided beneficial in any of these severe Limerick, Comanche Peak, and Watts in the GEIS analysis (exposure indices, accident mitigation considerations. Bar. Therefore, severe accident wind frequencies, and demographics) to Only plant procedural changes were mitigation alternatives need not be translate the dominant contributors to identified as being cost-beneficial. reconsidered for these plants for license CDF and the large release frequencies Furthermore, the Limerick analysis was renewal. from the IPE/IPEEE results into dose for a high-population site. Because risk Based on the fact that a generic estimates so that a cost-benefit is generally proportional to the consideration of mitigation is not determination can be performed. In population around a plant, this analysis performed in the GElS, a Category 1 some instances, a consideration of the suggests that other sites are unlikely to designation for severe accidents cannot magnitude of reduction in the site-identify significant plant modifications be made. Therefore, the Commission has specific CDF and release frequencies that are cost-beneficial. reclassified severe accidents as a alone.(i.e., no conversion to a dose Additionally, each licensee is Category 2 issue, requiring only that estimate) may be sufficient to conclude performing an individual plant alternatives to mitigate severe accidents that no significant reduction in off-site examination (IPE) to look for plant be considered for those plants that have risk will be provided and, therefore, vulnerabilities to internally initiated not included such a consideration in a implementation of a mitigation events and a separate IPE for externally previous EIS or supplemental EIS. The alternative is not warranted. The initiated events (IPEEE). The licensees Commission notes thatupon completion Commission will review each severe were requested to report their results to of its IPE/IPEEE program, it may review accident mitigation consideration the Commission. Seventy-eight IPE the issue of severe accident mitigation provided by a license renewal applicant submittals were received and seventy- for license renewal and consider, by on its merits and determine whether it

Contention 35/36 Attachment 5 NUREG/BR-0184 Regulatory Analysis Technical Evaluation Handbook (Jan. 1997)

NURFEGABR-0184 United States Nuclear Regulatory Commission Regulatory Analysis Technical Evaluation Handbook Final Report Office of Nuclear Regulatory Research January 1997 DISCLAIMER This report was prepared as an account of work sponsored by an agency of the United States Government. Neither the United States Government nor any agency thereof, nor any of their employees, makes any warranty, express or implied, or assumes any legal liability or responsi-bity for the accuracy, Completeness, or Usefulness of any information, apparatus, product, or process disclosed, or represents that its use wuld not infringe privately owned rights. Refer.

ence herein to any specific commercial product, process, or service by trade name, trademark, manufacturer, or otherwise does not necessarily constitute or imply its endorsement, recom-mendation, or favoring by the United States Government or any agency thereof. The views not rneessarity state or reflect those of the and opinions of authors expressed herein do thereof.

United States Government or any agency

Abstract The purpose of this Handbook is to provide guidance to the regulatory analyst, to promote preparation of quality regulatory analysis documents and to implement the policies of the Regulatory Analysis Guidelines of the U.S.

Nuclear Regulatory Commission (NUREG/BR-0058 Rev. 2). This Handbook expands upon policy concepts included in the NRC Guidelines and translates the six steps in preparing regulatory analyses into implementable methodologies for the analyst. It provides standardized methods of preparation and presentation of regulatory analyses, with the inclusion of input that will satisfy all backfit requirements and requirements of NRC's Committee to Review Generic Requirements. Information on the objectives of the safety goal evaluation processs and potential data sources for preparing a safety goal evaluation is also included. Consistent application of the methods provided here will result in more directly comparable analyses, thus aiding decision-makers in evaluating and comparing various regulatory actions.

The handbook is being issued in loose-leaf format to facilitate revisions. NRC intends to periodically revise the handbook as new and improved guidance, data, and methods become available.

iii iiiNUREG/BR-0194

Contention 35/36 Attachment 6 NUREG-1555 Standard Review Plans for Environmental Reviews of Nuclear Power Plants Supplement I (Oct. 1999)

NUREG-1555, Supplement 1 U.S. NUCLEAR REGULATORY COMMISSION ENVIRONMENTAL STANDARD REVIEW PLAN OFFICE OF NUCLEAR REACTOR REGULATION STANDARD REVIEW PLANS FOR ENVIRONMENTAL REVIEWS FOR NUCLEAR POWER PLANTS Supplement 1: Operating License Renewal October 1999 OFFICE OF NUCLEAR REACTOR REGULATION U.S. NUCLEAR REGULATORY COMMISSION October 1999 NUREG- 1555, Supplement I USNRC ENVIRONMENTAL STANDARD REVIEW PLAN Environmental standard review plans are prepared for the guidance of the Office of Nuclear Reactor Regulation staff responsible for environmental reviews for nuclear power plants. These documents are made available to the public as part of the Commissions policy to inform the nuclear industry and the general public of regulatory procedures and policies. Environmental standard review plans are not substitutes for regulatory guides or the Commission's regulations and compliance with them is not required. These supplemental environmental standard review plans are keyed to the U.S. NRC Regulatory Guide 4.2, Supplement 1, Preparation of Supplemental Environmental Reports for Applications to Renew Nuclear Power Plant Operating Licenses.

Published environmental standard review plans will be revised periodically, as appropriate, to accommodate comments and to reflect new information and experience.

Comments and suggestions for improvement will be considered and should be sent to the U.S.

Nuclear Regulatory Commission, ffice of Nuclear Reactor Regulation, Washington, D;C. 20555-0001.

ABSTRACT This document provides guidance to Nuclear Regulatory Commission staff in implementing provisions of 10 CFR 51, "Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions," related to reactor operating license renewals. It supplements NUREG-1555, Standard Review PlansforEnvironmental Reviews for Nuclear Power Plants, which covers reviews related to reactor construction permits, initial operating licenses, early site permits, and combined licenses.

Reviews conducted following this review plan lead to preparation of site-specific environmental impact statement supplements to NUREG-1437, GenericEnvironmentalImpact Statementfor License Renewal of Nuclear Plants.

October 1999 iii NUREG-1555, Supplement I

NUREG-1 555, Supplement 1 t- .U.S. NUCLEAR REGULATORY COMMISSION ENVIRONMENTAL STANDARD REVIEW PLAN OFFICE OF NUCLEAR REACTOR REGULATION 5.1.1 SEVERE ACCIDENT MITIGATION ALTERNATIVES REVIEW RESPONSIBILITIES Primary-Appendix A Secondary-Appendix A I. AREAS OF REVIEW This environmentalstandard review plan (ESRP) directs the staff s analysisand assessment of the severe accidents for the applicant's plant. This. issue was identified as a Category 2 issue in NUREG-1437, Generic EnvironmentalStatementfor License Renewal of NuclearPlants (NRC 1996), and in Table B-1 of Appendix B, Subpart A to 10 CFR 51. An applicant for license renewal (LR) is required by 10 CFR 51.53(c)(3)(ii)(L) to consider alternatives to mitigate severe accidents at the plant if the staff has not previously considered severe accident mitigation alternatives for the applicant's plant in an environmental impact statement (EIS) or related supplement or in an environmental assessment for the plant.

The scope of the review directed by this plan includes an analysis of severe accident mitigation alterna-tives (SAMAs), referred to as severe accident mitigation design alternatives (SAMDAs) in some references, and the preparation of an appropriate statement for the supplemental environmental impact statement (SEIS). The analysis of SAMAs includes the identification and evaluation of alternatives that reduce the. radiological risk from a severe accident by preventing substantial core damage (i.e., prevent-ing a severe accident) or by limiting releases from containment in the event that substantial core damage occurs (i.e., mitigating the impacts of a severe accident). The intent is to identify additional cases that might warrant either additional features or other actions that would prevent or mitigate the consequences of serious accidents.

October 1999 5.1.1-I NUREG-1555, Supplement I USNRC ENVIRONMENTAL STANDARD REVIEW PLAN Environmental standard review plans are prepared for the guidance of the Office of Nuclear Reactor Regulation staff responsible for environmental reviews for nuclear power plants. These documents are made available to the public as part of the Commission's policy to inform the nuclear industry and the general public of regulatory procedures and policies: Environmental standard review plans are not substitutes for regulatory guides or the Commission's regulations and compliance with them is not required. These supplemental environmental standard review plans are keyed to the U.S. NRC Regulatory Guide 4.2, Supplement 1, Preparation of Supplemental Environmental Reports for Applications to Renew Nuclear Power Plant Operating Licenses.

Published environmental standard review plans will be revised periodically, as appropriate, to accommodate comments and to reflect new information and experience.

Comments and suggestions for improvement will be considered and should be sent to the U.S.

Nuclear Regulatory Commission, Office of Nuclear Reactor Regulation, Washington, D.C. 20555-0001.

- the Containment Improvement Program

• Generic Environmental Impact Statement for License Renewal (NUREG-1437).

(4) Evaluate the applicant's methods for identifying the potential mitigation alternatives. If the applicant used an alternative methodology to a probabilistic risk assessment approach to assess potential SAMAs for example, a margins-based approach to evaluate external events initiated by fires or seismic activity),

the staff evaluation should be appropriately modified. For example, the synergistic effects of mitigation alternatives that reduce risks for internally initiated events that also provide a benefit for mitigation of externally initiated events should be considered. Alternative benefit-cost approaches are appropriate when a margins method has been used to screen external events.

(a) Determine if this set of potential alternatives represents a reasonable range of preventive and mitigative alternatives.

(b) Verify that the applicant's list of potential SAMAs includes a reasonable range of applicable SAMAs derived from consideration of previous analyses and based on insights from the Level 1 and Level 2 portions of the applicant's probabilistic risk assessment (PRA) or IPE/IPEEE.

(5) Evaluate the applicant's basis for estimating the degree to which various alternatives would reduce risk (expressed as a reduction in core-damage frequency or in terms of person-rem averted). In performing its independent assessment, the staff may make bounding assumptions to determine the magnitude of the potential risk reduction for each SAMA.

(6) Evaluate whether the applicant's cost estimates for each SAMA are reasonable, and compare the cost estimates with estimates developed elsewhere (e.g., using previous SAMA evaluations or using accepted cost-estimation tools).

(7) Evaluate the benefit-cost comparison to determine if it is consistent with the benefit-cost balance criteria and methodology given in NUREG/BR-0058, Rev. 2, RegulatoryAnalysis Guidelines of the U.S. Nuclear Regulatory Commission, FinalReport (NRC 1997a), and further analyze any SAMAs that are within a decade of the NUREG/BR-0058, Rev. 2, or NUREG/CR-6349. (Mubayi et al. 1995) benefit-cost criteria to ensure that a sufficient margin is present to account for uncertainties in assumptions used to determine the cost and benefit estimates. The benefit-cost criterion in NUREG/BR-0058 is $200,000 per person-sievert averted ($2000 per person-rem averted) for health effects.. In addition, a criterion of $300,000 per person-sievert averted ($3000 per person-rem averted) is given in NUREG/CR-6349 (Mubayi et al. 1995) for offsite damage and other related costs for severe accidents.

(8) Subject any SAMAs that remain following the screening given above to further probabilistic and deterministic considerations, including a qualitative assessment of the following:

October 1999 5.1.1-7 NUREG-1555, Supplement I

• the impact of additional benefits that could accrue for the SAMA if it would be effective in reducing risk from certain external events, as well as internal events

• the effects of improvements already made at the plant

• any operational disadvantage associated with the potential SAMA.

(9) Prepare a statement for the SEIS that describes the applicant's analysis and details the staff's review process. Any mitigation should be described along with the estimated benefit-cost ratio. The risk reduction for the facility should be provided. The statement for the SEIS should identify and describe the mitigative measures considered and committed to by the applicant.

IV. EVALUATION FINDINGS The depth and extent of the input to the SEIS will be governed by the extent of the analysis required to reach a conclusion related to the applicant's SAMA analysis. The information that should be included in the SEIS is described in the review procedures. Examples of statements that might be appropriate for inclusion in an SEIS are provided in the following paragraphs.

When the reviewer determines that the staff previously considered SAMAs for the applicant's plant in an EIS or related supplement or in an environmental assessment, then the reviewer should provide a statement for the SEIS similar to the following:

SAMAs for the applicant's plant were previously considered by the staff in __ (provide reference.

for document). The analysis was based on the licensee's analysis in ___(provide reference for document). The staff has concluded that the applicant completed a comprehensive, systematic effort to identify and evaluate the potential plant enhancements to mitigate the consequences of severe accidents. The staff has considered the robustness of this conclusion relative to critical assumptions in the analysis-specifically the impact of uncertainties in the risk and cost estimates and the use of alternative benefit-cost screening criteria. The staff has concluded that the findings of the analysis would be unchanged even considering these factors. Therefore, the staff concludes that the mitigation alternatives committed to by the applicant are appropriate, and no further mitigation measures are warranted.

If the reviewer determines that there was no previous consideration of SAMAs. for the plant, then the reviewer should prepare a statement for the SEIS similar to the following:

The staff has concluded that the applicant completed a comprehensive, systematic effort to identify and evaluate the potential plant enhancements to mitigate the consequences of severe accidents. The

• staff has considered the robustness of this conclusion relative to critical assumptions in the analysis-specifically the impact of uncertainties in the averted offsite risk estimates and the use of NUREG-1555, Supplement I 5.1.1-8 October 1999

alternative benefit-cost screening criteria. The staff has concluded that the findings of the analysis would be unchanged even considering these factors. Therefore, the staff concludes that the mitigation alternatives committed to by the applicant are appropriate, and no further mitigation measures are warranted.

V. IMPLEMENTATION The method described in this ESRP will be used by the staff in evaluating conformance with the Commission's regulations, except in those cases in which the applicant for LR proposes an acceptable alternative for complying with specified portions of the regulations.

VI. REFERENCES 10 CFR 50, "Domestic Licensing of Production and Utilization Facilities."

10 CFR 50.34, "Contents of application; technical information."

10 CFR 51.53, "Postconstruction environmental reports."

10 CFR 51 Subpart A, Appendix B, "Environmental Effect of Renewing the Operating License of a Nuclear Power Plant."

10 CFR 51.70, "Draft environmental impact statement-general."

10 CFR 52, "Early Site Permits; Standard Design Certifications; and Combined Licenses for Nuclear Power Plants."

Limerick Ecology Action vs. NRC 869 F. 2D 719 [3rd Cir. 1989]

Mubayi, V., V. Sailor, and G. Anandalingam. 1995. Cost-Benefit Considerationsin Regulatory Analysis. NIJREG/CR-6349, U.S. Nuclear Regulatory Commission, Washington, D.C.

U.S. Nuclear Regulatory commission (NRC). 1985a. Policy Statementon Severe Reactor Accidents Regarding Future Designs and Existing Plants." 50 FR 32138, Washington, D.C.

U.S. Nuclear Regulatory Commission (NRC). 1985b. Safety EvaluationReport Related to the Final Design Approval of the GESSAR II BWR/6 Nuclear Island Design." NUREG-0979, Supplement 4, Washington, D.C.

U.S. Nuclear Regulatory Commission (NRC). 1988. Generic Letter 88-20," Individual Plant Examination for Severe Accident Vulnerabilities." November 23, 1988, Washington, D.C.

October 1999 5.1.1-9 NUREG-1555, Supplement I

Contention 35/36 Attachment 7 NRC Supplement 1 to Regulatory Guide 4.2 Preparation of Supplemental Environmental Reports for Applications to Renew Nuclear Power Plant Operating Licenses (Sept. 2000)

4 V- 4..*0 U.S. NUCLEAR REGULATORY COMMISSION September 2000 REGULATORY GUIDE

( OFFICE OF NUCLEAR REGULATORY RESIEARCH SUPPLEMENT 1 TO REGULATORY GUIDE 4.2 (Drafts were issued as DG-4002 and DG-4005)

PREPARATION OF SUPPLEMENTAL ENVIRONMENTAL REPORTS FOR APPLICATIONS TO RENEW NUCLEAR POWER PLANT OPERATING LICENSES Regulatory guides are issued to describe and make available to the public such information as methods acceptable to the NRC staff for implementing specific parts of the NRC's regulations, techniques used by the staff in evaluating specific problems or postulated accidents, and data needed by the NRC staff in its review of applications for permits and licenses. Regulatory guides are not substitutes for regulations, and compliance with them is not required. Methods and solutions different from those set out in the guides will be acceptable if they provide a basis for the findings requisite to the issuance or continuance of a permit or license by the Commission.

This guide was issued after consideration of comments received from the public. Comments and suggestions for improvements in these guides are encouraged at all times, and guides will be revised, as appropriate, to accommodate comments and to reflect new information or experience. Written comments may be submitted to the Rules and Directives Branch, ADM, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001.

Regulatory guides are issued in ten broad divisions: 1, Power Reactors; 2, Research and Test Reactors; 3, Fuels and Materials Facilities; 4, Environmental and Siting; 5, Materials and Plant Protection; 6, Products; 7, Transportation; 8, Occupational Health; 9, Antitrust and Financial Review; and 10, General.

Single copies of regulatory guides (which may be reproduced) may be obtained free of charge by writing the Distribution Services Section, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, or by fax to (301)415-2289, or by email to DISTRIBUTION@NRC.GOV. Many regulatory guides are also available on the internet at NRC's home page at <WWW.NRC.GOV>. This guide is also in the NRC's Electronic Reading Room at NRC's same web site, Accession Number ML003710495.

offsite risk information may require additional site-specific analyses if the existing risk study does not include an assessment of offsite consequences.

2. From the IPEEE and any other external event afialyses, provide estimates of the incremental contribution to dose consequence risk identified from the IPE.

3. Identify practical physical plant modifications and plant procedural and administrative changes that can reduce severe accident dose consequence risk. For each modification or change, estimate the approximate reduction in risk.

4. Estimate the value of the reduction in risk. Value is usually calculated for public health, occupational health, offsite property, and onsite property. A detailed discussion of calculating values is found in Chapter 5 of NUREG/BR-0 184.

5. Estimate the approximate cost of each modification and procedural and administrative change found to reduce the dose consequence risk of severe accidents. Potential SAMAs that are not expected to be cost beneficial, even when uncertainties in the analysis (e.g., a factor of 10) are taken into consideration, may be screened out based on a bounding analysis.

6. Perform a more detailed value-impact analysis for remaining SAMAs to identify any plant modifications and procedural changes that may be cost effective (see Chapter 5 of NUREG/BR-0 184).

7. List plant modifications and procedural changes (if any) that have or will be implemented to reduce the severe accident dose consequence risk.

4.21 Transportation of Radiological Waste This is a Category 1 issue and the impacts are small as long as the fuel used is not enriched beyond 5 percent uranium-235 and average burnup for the peak rod does not exceed 62,000 Mwd/MTU.

Table B-lstates that The impacts of transporting spent fuel enriched up to 5 percent uranium-235 with average burnup for the peak rod to current levels approved by NRC up to 62,000 MWd/MTU and the cumulative impacts of transporting high-level waste to a repository, such as Yucca Mountain, Nevada are found to be consistent with the impact values contained in Summary Table S-4--Environmental Impact of Fuel and Waste to and from One Light-Water-Cooled Nuclear Power Reactor. If fuel enrichment or burnup conditions are not met, the applicant must submit an assessment of the implications for the environmental values reported in Sec. 51.52.

This issueis discussed in Section 5.4 and Section 5.5.2.5 of NUREG-1437, which has been updated by Volume 1, Addendum 1, "Generic Environmental Impact Statement for License 4.2-S-50

Contention 35/36 Attachment 8 SECY-00-0210, Denial of Petition (PRM-51-7) for Rulemaking To Delete the Requirement from 10 CFR Part 51 to Consider Severe Accident Mitigation Alternatives in Operating License Renewal Reviews (Oct. 20, 2000)

POLICY ISSUE NOTATION VOTE October 20, 2000 SECY-00-021 0 FOR: The Commissioners FROM: William D. Travers Executive Director for Operations

SUBJECT:

DENIAL OF PETITION (PRM 51-7) FOR RULEMAKING TO DELETE THE REQUIREMENT FROM 10 CFR PART 51 TO CONSIDER SEVERE ACCIDENT MITIGATION ALTERNATIVES IN OPERATING LICENSE RENEWAL REVIEWS PURPOSE:

To obtain Commission approval for denying the petition for rulemakingto delete the requirement.from 10 CFR Part 51 to consider Severe Accident Mitigation Alternatives (SAMAs) in operating license renewal reviews (PRM 51-7). .

BACKGROUND:

By letter dated July 13, 1999, the Nuclear Energy Institute (NEI), on behalf of the commercial nuclear energy industry,submitted a petition for rulemaking seeking to delete 10 CFR 51.53(c)(3)(ii)(L). This provision requires an evaluation of SAMAs as part of the Commission's National Environmental Policy Act (NEPA) review of applications for license renewal. The petitioner requested that the NRC take this action to achieve consistency in the scope of its regulatory requirements for environmental protection under NEPA (10 CFR Part 51), and its technical requirements for license renewal under the Atomic Energy Act (10 CFR Part 54). A notice of receipt of the petition was published in the Federal Reqister on September 2, 1999, (64 FIR 48117) with the comment period closing on November 16, 1999. The NRC received letters from 11 commenters. Ten of the comment letters supported the petition. Nine of those letters were from nuclear utilities and the tenth was from NEI, providing supplemental CONTACT:

Donald P. Cleary NRR/DRIP/RGEB 301-41-5-3903

The Commissioners information to support the arguments made in the petition. A public interest group provided the one letter opposed to the petition.

The Part 51 requirement to consider SAMAs in license renewal reviews was placed in the final rule, "Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, (61 FR 28467; June 5, 1996) after careful deliberation. Section 51.53(c)(3)(ii)(L) states-If the staff has not previously considered severe accident mitigation alternatives for the applicant's plant in an environmental impact statement or related supplement or in an environmental assessment, a consideration of alternatives to mitigate severe accidents must be provided.

This requirement reversed the provision in the proposed Part 51 rule (56 FR 47016; September 17, 1991) that SAMAs need not be assessed in individual license renewal reviews.

The provision in the proposed rule was thought to be justified for three reasons. First, the 1980 Commission policy statement, "Statement of Interim Policy, Nuclear Power Plant Accident Considerations Under the National Environmental Policy Act of 1969" (45 FR 40101; June 12, 1980) stated that the consideration of additional features or other actions that would prevent or mitigate the consequences of severe accidents should be made before the operating license review stage because plant changes may be more easily incorporated when construction has not progressed very far. Second, the NRC has in place a process and programs to effectively identify and appropriately disposition issues related to the prevention and mitigationof severe accidents subsequent to the receipt of an operating license. Third-, the risk to the environment from a severe accident is low.

After considering public comments and the implications of the decision in Limerick Ecology Action v. NRC, 867 F.2d 719 (3d Cir. 1989), the staff concluded that the reasons under the proposed rule for not requiring SAMA analyses were not legally sufficient and that SAMAs need to be considered in license renewal reviews. Because a generic assessment of SAMAs was not performed for NUREG-1437, "Generic Environmental Impact Statement for License Renewal of Nuclear Plants," May 1996, the final rule requires a SAMA analysis for each license renewal review unless the NRC staff has previously considered SAMAs for the applicant's plant.

Note that in the final rule, the phrase "Severe Accident Mitigation Alternatives (SAMAs)" was adopted, rather than the previously used phrase "Severe Accident Mitigation Design Alternatives (SAMDAs)." This terminology recognizes that severe accident mitigation can involve plant procedural and programmatic improvements in addition to plant design modifications. In promulgating the final rule, the Commission stated-The Commission notes that upon completion of its IPE/IPEEE (individual plant examination/individual plant examination for externally initiated events) program, it may review the issue of severe accident mitigation for license renewal and consider, by separate rulemaking, reclassifying severe accidents as a Category 1 issue.

CONTACT:

Donald P. Cleary NRR/DRIP/RGEB 301-415-3903

The Commissioners In the rule, Category 1 issues are those that have been satisfactorily assessed generically, and Category 2 issues are those that have not been satisfactorily assessed generically and thus need to be assessed in individual license renewal reviews. The NEI petition would eliminate the requirement to address SAMAs in license renewal, in contrast to addressing SAMAs generically and reclassifying it as a Category 1 issue that need not be reviewed for individual license renewal applications.

The Commissioners DISCUSSION:

The Petition In its petition, NEI makes three arguments for eliminating the requirement to consider SAMAs as part of the NEPA review associated with license renewal reviews. The first argument is that severe accident mitigation is within the scope of each licensee's current licensing basis and not within the scope of the technical requirements for renewal of operating licenses specified in 10 CFR Part 54. NEI argues that the provisions of Part 54 define the scope of the proposed Federal action and, therefore, the scope of the environmental review. It cites a number of NEPAcourt cases that it believes supports its argument. The second argument is that the decision in Limerick Ecology Action v. NRC does not extend to renewal of licenses for operating reactors. The third argument is that.there is a legal basis to eliminate SAMAs upon a finding that severe accidents are highly unlikely.

Basis for Denying the Petition NEI's principal argument for eliminating SAMAs as part of the NEPA review associated with license renewal is that Part 54 defines the scope of the proposed Federal action and, thereby, the scope of the environmental review. NEI states that, because NRC's safety review under Part 54 does not require consideration of all aspects of plant operation and administration, the NRC's review of environmental impacts pursuant to NEPA should be similarly limited. In its petition and subsequent comments submitted on November 16, 1999, NEI identified several Federal court cases and NRC decisions to support its position. NEI believes that the primary thrust of these cases is that no consideration of impacts is necessary when the proposed Federal action either maintains the current level of safety or does not change the "status quo."

The staff does not agree with the petitioner's argument. By approving a license renewal application under Part 54, the Commission authorizes operation of the entire plant for an additional 20 years beyond the initial licensing term irrespective of the scope of review determined to be necessary to support the action. The petitioner is correct that the Commission, in promulgating 10 CFR Part 54, has limited its safety review under the Atomic Energy Act to certain aspects of the plant that are directly related to aging and other issues specific to the license renewal. The petitioner is also correct in pointing out that many environmental impact issues, such as SAMAs, are not factored into the NRC's safety review under Part 54. The fact that NRC has excluded a specific aspect of the plant in conducting its safety review under Part 54 does not excuse it from considering the potential for an associated environmental impact in meeting its NEPA obligations. In fact, the vast majorityof environmental impacts from license renewal required to be considered by NRC in its NEPA review (in accordance with Part 51) are not related to the specific technical aspects of plant operation analyzed to fulfill the agency's Atomic Energy Act responsibilities under Part 54. The staff believes that the various court cases offered by the petitioner do not provide convincing support for the elimination of SAMAs. The attached Federal Reqister notice addresses each of the cases raised by the petitioner.

The Commissioners The petitioner's second argument for the elimination of SAMAs as part of the NEPA review associated with license renewal is that Limerick Ecology Action v. NRC does not preclude the NRC from eliminating SAMAs, through rulemaking, from the scope of the NEPA review for license renewal. The court held that the NRC could not generically dispense with the consideration of SAMAs through a policy statement. Instead, the NRC would need to do so through a generic rulemaking similar to the one completed for Table S-3 (see 10 CFR 51.51) and upheld by the Supreme Court in Baltimore Gas and Electric v. Natural Resources Defense Council, 464 U.S. 87 (1983). Despite the limited nature of its holding, the court in the Limerick decision identified a variety of issues that NRC would have to overcome in order to eliminate the consideration of SAMAs. The court suggested that the generic consideration of SAMAs would be difficult to accomplish, given differences in individual plants. The staff agrees with the petitioner that Limerick does not preclude NRC from eliminating SAMAs from the NEPA license renewal review through rulemaking. However, the NRC has not made the findings necessary to support such a rulemaking..

Regarding NEI's third argument that there is a legal basis for eliminating SAMAs upon a finding that severe accidents are highly unlikely, the staff agrees that there is support in case law for the proposition that NEPA does not require the consideration of remote and speculative risk. In Limerick, the court rejected NRC's argument that severe accidents were remote and speculative because no basis for this conclusion was established in the agency's record. The Commission has continued to commit resources to programs to assess severe accidents and their mitigation. Even though there is a low probability of a severe accident, the NRC has invested considerable resources toward severe accident mitigation in its containment performance improvement program, its IPE/IPEEE program, and its accident management program but it has not yet established an agency record that severe accidents are "remote and speculative" as contemplated by courts.

For these reasons, the staff finds that the arguments presented in the petition do not support rulemaking to delete the requirement to consider SAMAs as part of the NEPA review associated with operating license renewal reviews from 10 CFR Part 51.

Related Staff SAMA Activities In early 1999, in anticipation of completion of the IPE and IPEEE programs, the staff began considering the actions needed to fulfill the commitment made in the Federal Register notice for the license renewal Part 51 final rule (61 FR 28467; June 5, 1996). The commitment was that the Commission "may review the issue of severe accident mitigation for license renewal and consider, by separate rulemaking, reclassifying severe accidents as a Category 1 issue."

The IPE program has been completed and the findings of the program are summarized in NUREG-1560, "Individual Plant Examination Program: Perspective on Reactor Safety and Plant Performance," December 1997. The IPEEE program is nearing completion. The current target for completing the reviews of the balance of the individual submittals is January 2001. A draft insights report will be issued for public comment in April 2001, and the final report is scheduled to be completed in October 2001.

The Commissioners Over the past year, the staff has considered the scope of the. analysis that would be required to reach generic technical conclusions supporting a rulemaking to reclassify severe accidents as a Category 1 issue. Whilethe information developed in the IPE/IPEEE program provides a valuable starting point to understand the differences among plants at the time the IPE/IPEEE reviews were undertaken, considerable staff and contractor effort would be required to extend the conclusions resulting from the IPE/IPEEE reviews to draw generic conclusions regarding SAMAs. This would includethe need to evaluate changes in plant design and procedures since the IPEs/IPEEEs were completed, incorporate changes in the state of knowledge regarding certain severe accident issues, and to extend the IPE/IPEEE analyses to include offsite consequences. In addition, both benefit and cost considerations of potential plant improvements would need to be developed. Further, there is uncertainty whether, at the conclusion of this effort, staff would-be successful in developing a sufficient technical basis to reclassify severe accidents as a Category 1 issue.

It should also be noted that the SAMA reviews for Calvert Cliffs Nuclear Power Plant and the Arkansas Nuclear One Nuclear Power Plant identified several cost-beneficial enhancements.

The staff had originally estimated that to develop a technical basis for reclassifying SAMAs from Category 2 to Category 1 would cost approximately 2.0 FTE and $700,000 over 3 years. The staff estimates that an additional 2 years and approximately 1 to 1.5 FTE would be needed to then complete the rulemaking. Although a reclassification of severe accidents as a Category 1 issue for license renewal would reduce unnecessary regulatory burden and improve the efficiency and effectiveness of staff reviews, these outcomes need to be weighed against the staff resources needed to pursue this rulemaking. Given the resources that would be required and the uncertainty in achieving a successful outcome, the staff does not believe it would be cost beneficial to pursue rulemaking at this time.

Since the completion of the Calvert Cliffs and Oconee reviews, the staff has issued Supplement 1 to Regulatory Guide 4.2, "Preparation of Supplemental Environmental Reports for Applications to Renew Nuclear Power Plant Operating Licenses," which includes guidance on information and analysis content on SAMAs for the environmental reports submitted as part of license renewal applications. Its use is intended to ensure the completeness of the information ,provided, to assist the NRC staff and others in locating the information, and to shorten the review process. The staff will continue to work with stakeholders to determine if additional efficiencies in the process can be realized. Furthermore, if new information becomes available that indicates that it is feasible to reclassify SAMAs to Category 1, the staff will notify the Commission and provide a recommendation as to a course of action.

COORDINATION:

The Office of the General Counsel has no legal objection to the denial of the petition. The Office of the Chief Financial Officer has reviewed this Commission paper for resource implications and has no objection. The Office of the Chief Information Officer has reviewed this Commission paper for information technology and information management implications and concurs in it.

The Commissioners RECOMMENDATION:

That the Commission:

Approve publication of theattached Notice of Denial of Rulemaking Petition in the Federal Register and the issuance of the attached letter of denial to the petitioner.

IRA/

William D. Travers Executive Director for Operations Attachments:

1.. Federal Reqister Notice

2. Letter of Denial

The Commissioners RECOMMENDATION:

That the Commission:

Approve publication of the attached Notice of Denial of Rulemaking Petition in the Federal Register and the issuance of the attached letter of denial to the petitioner.

/RA/

William D. Travers Executive Director for Operations Attachments: Package Accession No.: ML003750136

1. Federal Register Notice SECY PaperAccession No.: ML003750123

2. Letter of Denial Template SECY-012 FRN Accession No.: ML003750141 Template ADM-018 Letter of Denial Accession No.: ML003750428 Template EDO-002

• See previous concurrence DOCUMENT NAME:O:\NRR\DRIP\RGEB\RS\CLEARY\SAMA\COMMPAPER9-12.WPD To receive a copy of this document, indicate in the box: "C" Copy without attachment/enclosure "E" = Copy with attachment/enclosure "N" =.No copy OFFICE *RGEB:DRIP E *Tech. Ed. N *RGEB:DRIP E *RGEB:DRIP i *RGEB:DRIP [

NAME DCleary:ayw BCalure MMalloy BZalcman CCarpenter DATE 06/20/00 06/16/00 06/20/00 06/14/00 06/21/00.

OFFICE -RLSB:DRIP *SPSB:DSSA ! *D:DSSA *PPRB/PMAS *OE/DRED NAME CGrimes RBarrett GHolahan MCase RWBorchart DATE 07/07/00 09/12/00 09/13/00 09/13/00 07/28/00 OFFICE *OGC L *D:RES *CFO I *CIO L *ADM ]

NAME STreby AThadani JFunches BShelton DMeyer DATE 09/11/00 08/31/00 07/07/00 07/07/00 07/17/00 OFFICE *D:DRIP I *ADIP 1I *D:NRR I 11 OEDO .I NAME DMatthews JJohnson SCollins WTravers DATE J 06/27/00 09/20/00 10/09/00 10/19/00 OFFICIAL RECORD COPY

Contention 35/36 Attachment 9 66 Fed. Reg. 10834 PRM 51-7, Nuclear Energy Institute Denial of Petition for Rulemaking (Feb. 20, 2001)

10834 Proposed Rules Federal Register

.Vol. 66, No. 34 Tuesday, February 20,. 2001 This section of the FEDERAL REGISTER SUPPLEMENTARY INFORMATION: regulations contain specific provisions contains notices to the public of the proposed

Background

related to the requirements for the issuance of rules and regulations. The environmental review of applications to purpose of these notices is to give interested On July 14, 1999, the NRC received a renew the operating licenses of nuclear persons an opportunity to participate in the petition for rulemaking submitted by the power plants. See, for example, 10 CFR rule making prior to the adoption of the final NEI, by letter dated July.13, 1999. On 51.53(c) and Subpart A, Appendix B.

rules. September 2, 1999 (64 FR 48117), the The regulations were developed to NRC published a notice of receipt of the improve the efficiency of the process of NUCLEAR REGULATORY petition (PRM-51-7). The petitioner environmental review for applicants requested that the NRC amend its seeking to renew a nuclear power plant COMMISSION regulations to delete the requirement for operating license for up to an additional 10 CFR Part 51 the NRC to evaluate Severe Accident 20 years. The regulations are based on Mitigation Alternatives (SAMAs) as part generic analyses reported in NUREG-

[Docket No. PRM 51-7] of its National Environmental Policy Act 1437, "Generic Environmental Impact (NEPA) review associated with license Statement for License Renewal of Nuclear Energy Institute; Denial of renewal, The petitioner requests that the Nuclear Plants" (May 1996) and in part Petition for Rulemaking NRC take this action to achieve on NUREG-1437, Vol. 1, Addendum 1 AGENCY: Nuclear Regulatory consistency in the scope of its (August 1999). Those environmental Commission. regulatory requirements for issues for which the NRC made generic ACTION: Denial of petition for environmental protection under NEPA, findings that may be adopted in rulemaking. 10 CFR part 51, and its technical individual plant license renewal requirements for license renewal under reviews are defined as Category 1 issues suMMARY: The Nuclear Regulatory the Atomic Energy Act, 10 CFR part 54. in the rule. Those environmental issues Commission (NRC) is denying a petition The technical requirements for that require further site-specific review for rulemaking submitted by the Nuclear renewal of operating licenses are are defined as Category 2 issues in the Energy Institute (NEI) (PRM-51-7). The specified in 10 CFR part 54 (60 FR rule. The regulations also provide for petitioner requested that the NRC 22461; May 8, 1995). This regulation the consideration of "new and amend its regulations to delete the focuses the license renewal review on significant information" that might requirement to consider Severe certain types of systems, structures, and change a previous finding or introduce Accident Mitigation Alternatives components that the NRC has issues not. previously reviewed and (SAMAs) as part of the environmental determined require evaluation to ensure codified in the regulations.

review to support license renewal that the effects of aging will be With respect to the issue of decisions. The NRC is denying the adequately managed in the period of environmental effects of severe petit.ion because the NRC must continue extended operation. This regulation is accidents from license renewal, the NRC to consider SAMAs for issuance of a based on two regulatory principles. The found that the probability weighted new or renewed operating license for a first principle of license renewal is that, consequences are small. Specifically, power reactor in order to meet its with the possible exception of the the regulations state in Table B-I: "The responsibilities under the National detrimental effects of aging on the probability-weighted consequences of Environmental Policy Act (NEPA), functionality of certain plant systems, atmospheric releases, fallout onto open notwithstanding the legal arguments structures, and components in the bodies of water, releases to presented in the petition. However, the period of extended operation and groundwater, and societal and economic NRC staff will continue to work.with possibly a few other issues related to impacts from severe accidents are small stakeholders to determine if efficiencies safety only during extended operation, for all plants." Accordingly, the impacts in the conduct of SAMA analyses for the ongoing regulatory process is of severe accidents are encoded in the environmental reviews can be realized. adequate to ensure that the licensing rule and are not open for review in ADDRESSES: Copies of the petition for bases of all currently operating plants individual license renewal actions.

rulemaking, the public comments provide and maintain an acceptable However, one of the criteria for a received, and the NRC's letter of denial level of safety. The second principle of Category 1 finding is, as stated in to the petitioner are available for public license renewal is that the plant-specific footnote 2 of Table B-i, Part 51, inspection or copying for a fee, at the licensing basis must be maintained "Mitigation of adverse impacts NRC's Public Document Room, located during the renewal term in the same associated with the issue have been at One White Flint North, 11555 manner and to the same extent as during considered in the analysis, and it has Rockville Pike (first floor), Rockville, the original licensing term. This been determined that additional plant-Maryland. These documents are also principle is attained, in part, through a specific mitigation measures are likely available at the NRC's rulemaking program of age-related degradation not to be sufficiently beneficial to website at http://ruleforum.lin1.gov management for systems, structures, and warrant implementation." At the time FOR FURTHER INFORMATION CONTACT: components that are within the scope of the final rule was promulgated in 1996, Donald P. Cleary, Office of Nuclear license renewal. There is no the NRC discussed the ongoing Reactor Regulation, U.S. Nuclear requirement in 10 CFR part 54 for- regulatory programsfocused on Regulatory Commission, Washington, analysis of SAMAs. individual plant vulnerabilities to DC 20555-0001, telephone (301) 415- The NRC's regulations implementing severe accidents and cost-beneficial 3903, e-mail dpc@nrc.gov. NEPA appear in 10 CFR part 51. The improvements for reducing severe

Federal Register/Vol. 66, No. 34/Tuesday, February 20, 2001/Proposed Rules 10835 accident frequency or consequences. For renewal review on age-related flow change was within the each plant, an individual plant degradation of plant systems, structures, contemplation of the original project.

examination (IPE) to look for plant and components. The second principle 921 F.2d 232, 235 (9th Cir. 1990). The vulnerabilities to internally initiated is continuation of the current licensing petitioner concludes from these events and a separate IPE for externally basis during the renewal term, in part, decisions that a NEPA review of SAMAs initiated events (IPEEE) was performed through a program of age-related is not required in the license renewal (61 FR 28467; June 5, 1996). The NRC degradation management of systems, review because, (1) the current licensing believed that it would be premature to structures, and components that are basis is not subject to evaluation in a reach a generic conclusion regarding important to license renewal. The license renewal review, and (2) by severe accident mitigation alternatives petitioner notes that 10 CFR 54.39, maintaining the current licensing basis

.before completing these programs. "Matters not subject to a renewal in the renewal term, there will be no Therefore, even though the Commission review," specifically provides that change in risk of a severe accident due has reached a generic conclusion on the deviations from the current licensing to license renewal.

magnitude of severe accident impacts, basis identified in the integrated plant The petitioner goes on to assert that the issue is nevertheless designated as a assessment performed for license NRC's requirement to include SAMAs Category 2 issue because of the renewal will be corrected under the in NEPA license renewal reviews was unresolved questions regarding terms of the current license and are not based on an overly broad application of

.mitigation, and applicants for license within the scope of the license renewal language in the Limerick Ecology Action renewal are subject to the following review. The petitioner then states that v. NRC, 869 F.2d 719 (3rd Cir. 1989),

requirement at 10 CFR 51.53(c)(3)(ii)(L): actions to evaluate and address SAMAs decision and that the decision - * *

"If the staff has not previously are part of each licensee's 'current leaves undisturbed the proposition that considered severe accident mitigation licensing basis, citing the IPE and IPEEE the 'rule of reason' defines whether the alternatives for the applicant's plant in program to identify and evaluate plant- EIS has addressed the significant an environmental impact statement or specific severe accident vulnerabilities aspects of the probable environmental in an environmental assessment, a and ways to rrmitigate those consequences * *

• that reasonably consideration of alternatives to mitigate vulnerabilities. may flow from the proposed action-severe accidents must be provided." Concluding that SAMAs are outside renewing a plant's license as that plant The NRC stated, "- *

• that upon of the scope of a 10 CFR part 54 license is currently designed and operated."

completion of its IPE/rPEEE program, it renewal review, the petitioner then Finally, citing a number of court cases, may review the issue of severe accident presents legal arguments for deleting the petitioner argues that -* *

• mitigation for license renewal and SAMAs from the NEPA review. The judicial precedents allow the NRC to consider, by separate rulemaking, essence of these arguments is that 10 eliminate SAMAs from consideration in reclassifying severe accidents as a CFR part 54 defines the scope of the license renewal proceedings based on a Category 1 issue" (61 FR 28481; June 5, 1996). proposed Federal action, and that determination, through proper Federal action establishes the scope of rulemaking, that severe accidents are The Petition environmental consequences of license highly unlikely."

The petition was submitted by the renewal that are to be reviewed under Public Comments on the Petition Nuclear Energy Institute (NEI) by letter NEPA. Citing several court cases, the dated July 13, 1999. Its receipt was petitioner asserts that this approach is The NRC received letters from 11 noticed in the Federal Register on consistent with the "rule of reason" that commenters. Ten of the comment letters September 2, 1999 (64 FR 48117), with generally governs environmental impact supported the petition. Nine of those a full description of its content. The reviews under NEPA. The petitioner letters were from nuclear utilities and petitioner requested the NRC "* *

• to then states, "Thus, under the 'rule of the tenth was from NEI, providing delete 10 CFR 51.53(c)(3)(ii)(L) and, reason,' the impacts appropriately supplemental information to support.

thereby, eliminate the requirement for considered under NEPA would be those the arguments made in the petition.

NRC to evaluate SAMAs as part of the that reasonably flow from the part 54 Except for one comment, Comment 1 NEPA review associated with license decision-making." Next, the petitioner below, all of the comments made by renewal." The rulemaking would cites two cases to support the position supporters of the petition reiterated include conforming changes to 10 CFR that there should be no consideration of arguments made in the petition. Because part 51, Appendix B and NUREG-1437. SAMAs for license renewal. In City of those arguments are addressed in the The petitioner requests elimination of Aurora v. Hunt, the court ruled that a NRC's reasons for denying the petition the requirement for SAMA reviews in new procedure to use a specific airport they are not addressed in the comment 10 CFR part 51 on the belief that the runway in particular weather conditions response below. A public interest group requirement conflicts with the technical involved . *... no significant safety provided the one letter opposed to the requirements for license renewal in 10 impact * *

• to trigger further petition, and NRC's responses to their CFR part 54. The petitioner argues that assessment or inquiry under NEPA." comments are provided below.

actions to evaluate and address SAMAs 749 F.2d 1457, 1468 n. 8 (10th Cir. Comment 1: A utility commented-that are part of each licensee's current 1984) overruled on other grounds by the costs of performing the SAMA licensing basis and that 10 CFR part 54 Village of Los Ranchos de Albuquerque reviews required by Part 51 are not is designed to separate matters related to v. Marsh, 956 F.2d 970 (10th Cir. 1992). justified when compared to the small maintaining the current licensing basis In the second court case, Upper Snake potential safety benefits that result from from those considered in a license River Chapterof Trout Unlimited v. the reviews, when the costs associated renewal review. The petitioner's Hodel, the court ruled that the with implementing changes to realize argument, briefly stated, is as follows. Department of Interior did not have to those benefits are evaluated, and when The petition makes reference to the two prepare an environmental impact the fact that the reviews are largely principles of license renewal, discussed statement (EIS) to adjust the flow of duplicative of the previously completed in the Background section above. The water from a dam to accommodate Individual Plant Examination (IPE) and first principle focuses the license drought conditions where the range of Individual Plant Examination for

10836 Federal Register/Vol. 66, No. 34/Tuesday, February 20, 2001/Proposed Rules External Events (IPEEE) programs is 1. Scope of the License Renewal Rule Act responsibilities under Part 54 (see, considered. The petitioner's principal argument 10 CFR part 51 Subpart A, Appendix B, Response: The NRC believes that it for the elimination of SAMAs as part of Table B-1).

should- continue to consider SAMAs for the NEPA review associated with However, under NEPA the NRC is individual license renewal reviews is charged with considering all of the individual license renewal applications that the scope of license renewal environmental impacts of its actions, to continue to meet its responsibilities establishes a basis for deleting SAMAs not just the impacts of specific technical under NEPA. That statute requires NRC from associated NEPA reviews. In matters that may need to be reviewed to to analyze the environmental impacts of support .the action. These impacts may its actions and consider those impacts particular, the petitioner believes that because the NRC's safety review under involve matters outside of the NRC's in its decisionmaking. In doing so, jurisdiction or matters within its Section 102(2)(C) of NEPA implicitly Part 54 does not require consideration of all aspects of plant operation and jurisdiction that, for sound reasons, are requires agencies to consider measures not otherwise addressed in the NRC's to mitigate those impacts when administration, the agency's review of environmental impacts under NEPA safety review during the licensing preparing impact statements. See process. In the case of license renewal, Robertson v. Methow Valley Citizens should be similarly limited. In its petition and subsequent comments, NEI it is the Commission's responsibility Council, 490 U.S. 332 (1989). NRC's under NEPA to consider all obligation to consider mitigation exists identified several Federal court cases and NRC decisions to support its environmental impacts stemming from whether or not mitigation is ultimately its decision to allow the continued found to be cost-beneficial and whether position.I The petitioner believes that operation of the entire plant for an or not mitigation ultimately will be the primary thrust of these cases is that no consideration of impacts is necessary additional 20 years. The fact that the implemented by the licensee. Id. The NRC has determined that it is not where the proposed Federal action NRC understands that a SAMA analysis would not change the status quo. In its necessary to consider a specific matter can be relatively expensive and is in conducting its safety review under comments, the petitioner indicated that prepared to discuss.ways in which Part 54 does not excuse it from SAMA analyses can be conducted "itlhe line of cases using the status quo analysis does not turn on maintaining considering the impact in meeting its efficiently while, at the same time, NEPA obligations.

the level of safety per se, but on whether ensuring that NRC meets its NEPA the major federal action will change the The Commission does not believe that responsibilities. operation of the facility sufficient to the various cases offered by the Comment 2: Granting the petition warrant an inquiry into the changes in petitioner provide convincing support would continue the NRC's recent course environmental effect." for the elimination of the review of of "regulatory subtraction" during The Commission does not find the SAMAs. It would appear that the logical which it has "methodically amputated petitioner's arguments here compelling. extension of many ofthe petitioner's and dismantled its statutory authority." By approving a license renewal arguments go far beyond the mere Further, numerous site-specific and application under Part 54, the elimination of SAMAs conisideration generic challenges have precipitated Commission authorizes operation of the from license renewal reviews. Indeed, to "beyond design basis" events, and entire plant for an additional 20 years the extent that license renewal involves beyond the initial licensing term. Thus, a continuation of impacts already demonstrate that it is imperative to the review of the environmental impacts experienced at the site under the current maintain Severe Accident Mitigation of this Federal action under the operating.license, the arguments made Alternatives evaluations.

provisions of Part 51 appropriately by the petitioner would appear to call Response: The NRC has denied the for the elimination of almost the entire petition because it believes that the legal involves the consideration of environmental review of impacts from environmental impacts caused by 20 arguments presented are insufficient to additional years of operation. The operation during the license renewal demonstrate that a license renewal petitioner is correct in stating that the term, a position clearly at odds with the NEPA review need not consider Commission's approach to the matter Commission, in promulgating 10 CFR alternatives to mitigate the potential for part 54, has limited its safety review and also, as discussed below, and consequences of severe accidents. under the Atomic Energy Act to certain inconsistent with case law related to Comment 3: Given the NRC's aspects of the plant that are directly relicensing.

shrinking budget, "this type of frivolous related to .aging and other issues specific The Commission does not dispute legal action must be indexed to punitive to the license renewal. The petitioner is that a line of cases exists under NEPA damages." NEI "must be held also correct in pointing out that many law which excuses agencies from accountable, and reimburse the NRC for environmental impact issues, such as preparing EISs (or considering certain all legal and administrative costs SAMAs, are not addressed in the NRC's environmental impacts) where the associated with this malicious petition." safety review under Part 54. In fact, the Federal action does not change existing vast majority of environmental impacts environmental conditions. See, for Response: While NRC has denied the example, State of North Carolinav.

petition, NRC does not believe that there from license renewal required to be Federal Aviation Administration, 957 are any aspects of the submittal that considered by the NRC under its NEPA review (in accordance with Part 51) are F.2d 1125 (4th Cir. 1992); Cronin v.

would suggest an abuse of the petition Departmentof Agriculture, 919 F.2d 439 process. Accordingly, whether or not not included in the analysis conducted in fulfilling the NRC's Atomic Energy (7th Cir. 1990). In most of these cases, reimbursement measures are even the Federal action taken does not itself available to the Commission, no create any additional impacts to City of Aurora v. Hunt, 749 F.2d 1457 (loth Cir.

Commission action is warranted in this 1984)(overruled on other grounds); Upper Snake activities that are ongoing and will regard. River Chapter of Trout Unlimited v. Hodel, 921 F.2d continue with or without the Federal 232, 235 (9th Cir. 1990); Consumers Power action. None of these cases appears to Reasons for Denial Company, (Big Rock Point Nuclear Plant), ALAB-636, 13 NRC 312 (1982); and General Electric provide firm support for the petitioner's The Commission is denying the Company (GE Morris Operation Spent Fuel Storage argument that the NRC can ignore the petition for the following reasons: Facility), LBP-82-14, 15 NRC 530 (1982). impacts of its actions in the context of

Federal Register/Vol. 66, No. 34/Tuesday, February 20, 2001/Proposed Rules 10837 license renewal. In fact, at least one further assessment or inquiry under project was first operational." 921 F.2d circuit court squarely addressed the. NEPA." 7.49 F.2d at 1468, n. 8. at 235. In other words, the flow issue of relicensing and concluded that While certain aspects in the City of reductions were part of the normal there is the need to consider Aurora decision provide some general operations originally approved by the environmental impacts in that context. support for the petitioner's argument, agencies in that case. Conversely, in the In Confederated Tribes and Bands of the facts in that case do not appear to license'renewal context, the additional the Yakima Indian Nation v. Federal be sufficiently analogous to support the 20 years of operation authorized by a Energy Regulatory Commission, 746 elimination of SAMAs reviews for renewed license were not considered license renewal. First of all, the Court during the initial licensing of the F.2d 466 (9th Cir. 1984), the Ninth found the FAA's decision to permit the facility. Thus, the reasoning in Upper Circuit Court of Appeals considered new procedure, in essence, served as a Snake River Chapterdoes not appear to whether the Federal Energy Regulatory finding of an equivalent level of flight be applicable to NRC's license renewal Commission (FERC) was required to safety and thus allowed the FAA to decisions. The Commission believes, prepare an EIS for its relicensing meet its NEPA obligations even though and has stated before, that a license decision for the Rock Island Dam. In safety was not explicitly considered in renewal decision by NRC is a major response to the FERC's argument that the EA itself. Under NRC's license Federal action that warrants the there had been "no change in the status renewal process, NRC's review under preparation of an environmental impact quo" and thus no EIS was necessary, the Part 54 does not itself meet the agency's statement (61 FR 55637, 66541; court found:

NEPA obligations. Environmental issues December 18, 1996).

Relicensing is more akin to an such as the potential impacts of severe irreversible and irretrievfable commitment of accidents during the license renewal In submitting comments on its a public resource than a mere continuation term do not fall under the Part 54 petition, NEI identified several NRC of the status quo. [Citation omitted] Simply review. Accordingly, unlike the FAA in decisions which it believes support its because the same resource had been City of Aurora, NRC cannot use the Part position. The first, Consumers Power committed in the past does not make 54 process as the vehicle for meeting its Company (Big Rock Nuclear Plant) relicensing a phase in a continuous activity. NEPA responsibilities for considering ALAB 636, 13 NRC 312 (1982), involved Relicensing involves a new commitment of a license amendment request to expand SAMAs in the license renewal context the resource, which in this case lasts for a the Big Rock Point Nuclear Plant's spent 2 in the same way that the FAA was forty-year period. fuel pool. As NEI indicates, the Appeal allowed to use its procedure approval process in City of Aurora. Secondly, it Board emphasized the limited scope of The court's statements here are should be noted that, absent the NRC's the request in rejecting claims that consistent with NRC's position and its decision to approve a license renewal aspects of the plant's continued practice in promulgating and application, the licensee's plant will not operation should also be considered in implementing the license renewal rule.

operate an additional 20 years. the EA. As quoted by the petitioner, the The cases offered in support of the Accordingly, the NRC's action is a "but Appeal Board found that "there are no petitioner's arguments offer no for" cause of those additional impacts environmental changes to evaluate" comnpelling reasons to alter this and NRC has the responsibility to with the secondary or indirect effects approach.

consider those impacts under NEPA. In (e.g., the plant's continued operation) of In City of Aurora v. Hunt,3 the Federal City of Aurora, the FAA's rule permitted the spent fuel pool licensing decision.

Aviation Administration (FAA), through the use of a new landing procedure at 13 NRC at 328. The petitioner's a rulemaking, approved a new approach the airport. While there is no explicit comments indicate that:

procedure for the Stapleton airport in discussion in the decision, it appears ' The Appeal Board correctly noted that, by order to reduce delays caused by the use that the current landing procedures at granting the license amendment request, the of the existing procedure during periods the airport would have continued Commission is not also issuing approval to of low visibility. The City of Aurora whether or not FAA had issued the new alter any other aspect of the plant's operation challenged the rule claiming, among procedure. Accordingly, the status quo or the licensed operating term of the facility.

other things, that the FAA failed to in the context of the City of Aurora discuss the safety risks of the new decision appears to have been the Petition for Rulemaking (Docket No.

procedure in its environmental continued operation of the airport, PRM-51-7; July 13, 1999), letter from assessment. In ruling against the City's whereas the status quo in the context of NEI to Secretary, NRC, dated November claim, the Court pointed out that the license renewal is the expiration of the 16, 1999, at pp. 2, 3. The Commission FAA was required by law to issue the facility's operating license. believes that the petitioner's own new procedure only if it did not involve Similarly, the decision in Upper statement here demonstrates the lack of a change in safety risk. The FAA Snake River Chapterof Trout Unlimited support Consumers Power Company considered and responded to a vast v. Hodel4 does not appear to provide provides for its own position. In the number of safety concerns as part of the strong support for the petitioner's context of license renewal, the rulemaking process. Accordingly, the proposal. In that case, the court found Commission is, in fact, approving an Court found that the agency's approval that the reduction in river flows extension of the licensed operating term of the procedure, in itself, was adequate approved by Federal agencies was not a of the facility. Accordingly, the facts in to fulfill the agency's responsibility major Federal action within the Consumers Power Company are not under NEPA. In a footnote, the Court meaning of NEPA. The court held that, analogous to those presented by license explained that "'wihile an agency may in allowing the flow reductions, the renewal. While the Commission has be required to consider the effects that Federal defendants were "simply appropriately decided through will occur if a risk is realized, where no operating the facility in the manner rulemaking that it may focus its safety increase in risk is permitted, as here, no intended" and that they were doing evaluation on certain matters specified significant safety impact exists to trigger "nothing new, nor more extensive, nor in Part 54, its overall license renewal other than that contemplated when the decision applies to the operation of the 2746 F.2d 466 at 476-477. entire plant. Therefore, the limited 3749 F.2d 1457 (loth Cir. 1984). '921 F.2d 232 l9th Cir. 1990). scope considered in Consumers Power

10838 Federal Register/Vol. 66, No. 34/Tuesday, February 20, 2001/Proposed Rules I

Company is not present in the license Despite the adverse ruling handed to conclusions regarding SAMAs. This renewal context. NRC, the Limerick decision outlines would include the need to evaluate Finally, petitioners have also cited several paths the Commission could changes in plant design and procedures General Electric (Morris Operation attempt to follow in order to eliminate since the IPEs/IPEEEs were completed, Spent Fuel Storage Facility) LBP-82-14, the requirements to analyze both severe incorporate changes in the state of 15 NRC 530 (1982). In that case, the accidents and associated mitigation knowledge regarding certain severe Atomic Safety and Licensing Board alternatives in individual license accident issues, and to extend the IPE/

ruled that NRC did not have to issue an renewal reviews. First of all, the IPEEE analyses to include offsite EIS for the license renewal of a storage Commission could attempt to conclude consequences. In addition, both benefit facility. However, in that case, the NRC generically through rulemaking that it and cost considerations of potential staff did issue an environmental impact has considered these matters and that plant improvements Would need to be appraisal (referred to under current NRC further consideration in individual developed. Further, there is uncertainty regulations as an environmental license renewal actions is not whethert at the.conclusion of this effort, assessment (EA)) for the action. There is warranted. In other words, the NRC the staff would be successful in no suggestion that the NRC staff was would change the designation of the developing a sufficient technical basis free to eliminate or ignore consideration severe accident issue to "Category 1" for to reclassify severe accidents as a of the impacts of the action. Rather, the license renewal in Appendix B of 10 Category 1 issue. Given the resources Board agreed with the NRC staff that the CFR part 51. Secondly, as discussed in that would be required and the impacts of the action were not Section 3 of this notice, the Commission uncertainty in achieving a successful significant enough to warrant the could eliminate consideration of outcome, the staff does not believe it preparation of a full EIS and, instead, an SAMAs for license renewal based on a would be cost beneficial to pursue environmental impact appraisal was finding that severe accidents, in the rulemaking at this time.

sufficient. The Commission believes context of plant operation during the In September 2000, the staff issued that the preparation of EISs, not EAs, are license renewal term, are remote and Supplement 1 to Regulatory Guide 4.2, appropriate in the context of license speculative. "Preparation of Supplemental renewal. However, whether an EIS or an The Commission believes that Environmental Reports for Applications EA is prepared for a particular action, insufficient information is available to to Renew Nuclear Power Plant the Commission still is responsible for conclude generically that a SAMA Operating Licenses," which includes considering the environmental impacts analysis is not warranted for individual guidance on information and analysis plant license renewal reviews. In content on SAMAs for environmental of the action. Accordingly, this case promulgating the license renewal rule in reports submitted as part of license seems to provide little support for the 1996, the Commission indicated that it renewal applications. Its use is intended petitioner's position. "may review the issue of severe to ensure the completeness of the

2. Impact of the Limerick Decision accident mitigation for license renewal information provided, to assist the NRC and consider, by separate rulemaking, staff and others in locating the The petitioner is correct in stating that reclassifying severe accidents as a information, and to shorten the review the 3rd Circuit's holding in Limerick Category 1 issue" (61 FR 66537; 66540; process. The staff will continue to work Ecology Action v. NRC does not itself December 18, 1996). In early 1999, in with stakeholders to determine if preclude NRC from ever eliminating anticipation of completion of the IPE additional efficiencies in the conduct of SAMA reviews from its licensing and IPEEE programs, the NRC staff SAMA analyses for environmental actions. Specifically, the court held that began considering the actions needed to reviews can be realized. Furthermore, if the NRC could not generically dispense fulfill the commitment made in the new information becomes available that with the consideration of SAMAs Federal Register notice. The IPE indicates it is feasible to reclassify through a policy statement. Instead, the program has been completed and the SAMAs to Category 1, the staff will NRC would need to do so through a findings of the program are summarized notify the Commission and provide a generic rulemaking similar to the one in NUREG-1560, "Individual Plant recommendation as to a course of completed for Table S-3 (10 CFR 51.51) Examination Program: Perspective on action.

and upheld by the Supreme Court in Reactor Safety and Plant Performance," Accordingly, the Commission believes Baltimore Gas and Electric v. Natural December 1997. The IPEEE program is that there is an inadequate basis for a Resources Defense Council, 464 U.S. 87 nearing completion. The current target rulemaking to change severe accidents

.(1983). Despite the limited nature of its for completing the reviews of the from a Category 2 to Category 1 issue at holding, the court in the Limerick balance of the individual submittals is this time. Applicants should continue to decision identified a variety of issues January 2001. A draft insights report refer to the guidance set out for SAMA that NRC would have to address in will be issued for public comment in analyses in the Statements of order to eliminate the consideration of April 2001 and the final report is Consideration for the license renewal SAMAs. In addition to holding that the scheduled to be completed in October rule (61 FR 28467, 28480-28482; June 5, NRC could not eliminate consideration 2001. . 1996). The NRC staff will continue to of these SAMAs through a policy Over the past year, the staff has work with stakeholders to discuss the statement, the court also suggested that considered the scope of the analysis that process by which SAMA reviews are the generic consideration of SAMAs would be required to reach generic done and to determine if efficiencies are may be difficult to accomplish given technical conclusions supporting a possible while ensuring compliance differences in individual plants. 869 rulemaking to reclassify severe with NRC's NEPA responsibilities to F.2d at 733-739. In addition, as the accidents as a Category 1 issue. While consider the environmental impacts of petitioner has indicated, the court the information developed in the IPE/ its licensing decisions.

rejected NRC's argument that severe IPEEE program provides a valuable accidents were remote and speculative starting point, considerable staff and 3. Consideration,of Remote and because there was no basis for this contractor effort would be required to Speculative Impacts conclusion in the agency's record. Id. at extend the conclusions resulting from The Commission agrees with the 739-741. the IPE/IPEEE reviews to draw generic petitioner that there is support in the

Federal Register/Vol. 66, No. 34/Tuesday, February 20, 2001/Proposed Rules 10839 case law for the proposition that NEPA that severe accidents are remote and public can gain entry into the NRC's does not require the consideration of speculative for the purpose of license Agencywide Document Access and remote and speculative risks.5 The court renewal reviews. As discussed, the Management System (ADAMS), which inthe Limerick proceeding rejected the Commission is unable to reach that provides text and image files of NRC's NRC's argument that severe accidents conclusion. public documents. For more were remote and speculative because For the reasons cited in this information, contact the NRC Public the court could find no basis for the document, the Commission denies the Document Room (PDR) Reference staff conclusion iri the NRC record. Id. at petition. at 1-800-397-4209, 301-415--4737, or 739-741. The Commission is not Dated at Rockville, Maryland, this 13th day by e-mail, pdr@nrc.gov.

prepared to reach the conclusion that of February, 2001. FOR FURTHER INFORMATION CONTACT:

the risks of all severe accidents in the For the Nuclear Regulatory Commission. Merri Horn, Office of Nuclear Material context of license renewal are so Safety and Safeguards, U.S. Nuclear Annette L. Vietti-Cook, unlikely as to warrant their elimination Regulatory Commission, Washington, Secretary of the Commission.

from consideration in our NEPA DC 20555-0001, telephone (301) 415-reviews. Even though there is a low lFR Doc. 01-4104 Filed 2-16-01; 8:45 am]

BILLING CODE 7590-01-P 8126, e-mail mlhl@nrc.gov.

probability of a severe accident, the SUPPLEMENTARY INFORMATION:

NRC has invested considerable resources toward understanding NUCLEAR REGULATORY The Petition potential severe accident sequences and On May 10, 2000 (65 FR 30018), the alternatives for further reducing the . COMMISSION NRC published a notice of receipt of a probability of and mitigating the 10 CFR Parts 73, 76, and 95 petition for rulemaking filed by the consequences of severe accidents, but

[Docket No. PRM-76-1] United Plant Guard Workers of America.

has not yet established an agency record The petitioner requested that the NRC that severe accidents may be eliminated United Plant Guard Workers of amend its regulations concerning from NRC's NEPA reviews. In reviewing licensing actions outside of the license America; Denial of Petition for security at the gaseous diffusion plants renewal context, it may be possible for Rulemaking to address sites that have both special the NRC to conclude that certain severe nuclear material security concerns and AGENCY: Nuclear Regulatory protection of classified matter concerns; accident scenarios are remote and Commission. to require that these facilities be able to speculative and do not warrant detailed consideration for the purposes of the ACTION: Denial of petition for detect, respond to, and mitigate threats NEPA review for that particular NRC rulemaking. of a sabotage event; and to require that action. However, for the purposes of the security force be armed and

SUMMARY

The Nuclear Regulatory empowered to make arrests in limited consideration of severe accidents in the Commission (NRC) is denying a petition context of license renewal NEPA situations. The petitioner believes that for rulemaking submitted by the United these amendments are necessary to reviews, the NRC staff has not Plant Guard Workers of America (PRM-developed the necessary basis for address the protection of classified 76-1)..The petitioner requested that the information, equipment and materials, concluding that such occurrences are NRC amend its regulations concerning remote and speculative, and thus and special nuclear material at the security at the gaseous diffusion plants gaseous diffusion plants.

inappropriate for NRC review under to address sites that have both special First, the petitioner asserted that the NEPA. This position does not alter the. nuclear material security concerns and regulations do not adequately address conclusion that, in light of margins of protection of classified matter concerns; sites that have both nuclear material safety and defense-in-depth, the to require that these facilities be able to security concerns and classified matter likelihood of radiological offsite detect, respond' to, and mitigate threats concerns. The petitioner believes that consequences is small. of a sabotage event; and to require that In its comments, the petitioner cited the applicable regulations were not the security force be armed and appropriately merged in the regulations two cases which, in its view, empowered to make arrests in limited demonstrate that NEPA's requirements governing gaseous diffusion plants to situations. The petitioner believes that address a site that covers the protection are satisfied where potential impacts to these amendments are necessary to -

the environment are remote and of classified information, equipment address the protection of classified and materials, and special nuclear difficult to quantify and ongoing information, equipment and materials, regulatory safeguards are in place to material.

and special nuclear material at the As an example, the petitioner stated protect against potential risks of impacts gaseous diffusion plants.

into the future. Environmental Defense that the Controlled Area Fence Line ADDRESSES: Copies of the petition for does provide a minimum level of Fund v. Andrus, 619. F.2d 1368 (10th rulemaking, the public comments protection against the unauthorized Cir. 1980) reh'g en banc denied; and received, and NRC's letter to the removal of special nuclear material Citizens for Environmental Quality v. .petitioner may be examined at the NRC Lyng, 731 F. Supp. 970 (D. Colo. 1989). contained in 10- and 20-ton cylinders.

While these cases may provide more Public Document Room, 11555 However, the petitioner questioned Rockville Pike, Rockville, MD. These whether the fence line adequately support for the general proposition that documents also may be viewed and protects against the unauthorized remote and speculative impacts need downloaded electronically via the removal of restricted information, not be considered under NEPA, they do rulemaking website. equipment, and other materials or the not displace the Commission's Documents created or received at the unauthorized access to these types of responsibility to make the threshold determination based on the NRC record NRC after November.1, 1999 are also materials.

available electronically at the NRC's The petitioner asserted that other 5See, e.g., Limerick Ecology Action v. NRC, 6ee Public Electronic Reading Room on the facilities that possess Category III F.2d at 739; San Luis Obispo Mothers for Peace v. Internet at http://www.nrc.gov/NRCI quantities of special nuclear material NRC, 751 F.2d 1287,1300-01 (D.C. Cir. 1984). ADAMS/index.html. From this site, the regulated by the NRC do not share the

Contention 35/36 Attachment 10 69 Fed. Reg. 2182 Changes to Adjudicatory Process; Final Rule, Statement of Considerations (Jan. 14, 2004)

2182 Federal Register/Vol. 69, No. 9/Wednesday, January 14, 2004/Rules and Regulations NUCLEAR REGULATORY 1. Implementation of Rule. interested parties, on a variety of safety COMMISSION 2. Introductory provisions-Sections 2.1- and regulatory matters.

2.8. The Commission has had a 10 CFR Parts 1, 2, 50, 51, 52, 54, 60, 3. Subpart A-Sections 2.100-2.111.

4. Subpart B-Sections 2.200-2.206.

longstanding concern that the 63, 70, 72, 73, 75, 76, and 110 5. Subpart C-Sections 2.300-2.348, 2.390. adjudicatory (hearing) process in 10

6. Subpart G-Sections 2.700-2.713. CFR part 2, subpart G, associgted with RIN 3150-AG49 licensing and enforcement actions, is

7. Subpart I.-Sections 2.900-2.913.

Changes to Adjudicatory Process 8. Subpart J.-Sections 2.1000-2.1027. not as effective as it could be. Beginning

9. Subpart K.-Sections 2.1101-2.119. with case-by-case actions in 1983, and AGENCY: Nuclear Regulatory 10. Subpart L-Sections 2.1200-2.1213. with a final rule in 1989, the Commission. 11. Subpart M.-Sections 2.1300-2.1331. Commission took steps to move away

12. Subpart N-Sections 2.1400-2.1407.

ACTION: Final rule. from the trial-type, adversarial format to

13. Subpart O-Sections 2.1500-2.1509.

III. Availability of Documents. resolve technical disputes with respect.

SUMMARY

The Nuclear Regulatory IV. Voluntary Consensus Standards. to its materials license applications.

Commission (NRC) is amending its V. Environmental Impact: Categorical Commission experience suggested that regulations concerning its rules of Exclusion. in most instances, the use of the full practice to make the NRC's hearing VI. Paperwork Reduction Act Statement. panoply of formal, trial-like process more effective and efficient. The VII. Regulatory Analysis. adjudicatory procedures in subpart G is final rule will fashion hearing VIII. Regulatory Flexibility Certification. not essential to the development of an procedures that are tailored to the IX. Backfit Analysis. adequate hearing record; yet all too differing types of licensing and I. Background frequently their use resulted in regulatory activities the NRC conducts protracted, costly proceedings. The Among the very first actions taken by and will better focus the limited Commission adopted more informal the Nuclear Regulatory Commission resources of involved parties and the procedures with the goals of reducing (NRC) following its creation in 1975 was NRC. the burden of litigation costs, and an affirmation of the fundamental enhancing the role of the presiding DATES: This final rule is effective importance it attributes to public February 13, 2004. The rules of officer as a technical fact finder by participation in the Commission's giving him or her the primary procedure in the final rule apply to adjudicatory processes. Public responsibility for controlling the proceedings noticed on or after the participation, the Commission said, "is development of the hearing record effective date, unless otherwise directed a Vital ingredient to the open and full beyond the initial submissions of the by the Commission. consideration of licensing issues and in parties. A significant portion of the FOR FURTHER INFORMATION CONTACT: establishing public confidence in the NRC's proceedings in the past ten years Geary S. Mizuno, Office of the General sound discharge of the important duties has been conducted under these more Counsel, U.S. Nuclear Regulatory which have been entrusted to us." N.

informal procedures. Although the Commission, Washington, DC 20555- States Power Co. (Prairie Island Nuclear Commission's experience to date 0001, telephone (301) 415-1639, e-mail Generating Plant, Units 1 and 2), CLI- indicates that some of the original GSM@nrc.gov. 75-1, 1 NRC 1, 2 (1975). However, the objectives have been achieved, there SUPPLEMENTARY INFORMATION: form and formality of the processes have also been some aspects of the more provided for public participation have informal procedures that have Contents long been debated, well'before the NRC continued to prolong proceedings I. Background. was established and well after the without truly enhancing the A. Policy Statement. foregoing statement was made.

B. Reexamination of NRC's Hearing. decisionmaking process. Given the The Commission has taken a number Process. Commission's experience, and with the of steps in recent years to reassess its C. Comments on Policy Statement. potential in the next few years for new processes to identify ways in which it proceedings to consider applications for D. Comments from Hearing Process Workshop. can conduct its regulatory activities new facilities, to renew reactor II. Discussion of the Final Rule. more effectively. This assessment has operating licenses, to reflect A. Resolution of Public Comments on extended across the full range of the restructuring in the electric utility Proposed Rule; Bases for Final Rule. NRC's programs, from its oversight and industry, and to license waste storage

1. Overview of Public Comments on inspection program to evaluate and facilities; the Commission concluded it Proposed Rule. assess licensee performance, to its needs to reassess its hearing processes

2. Significant Comments and Issues, and internal program management activities.

Their Resolution in Final Rule. to identify improvements that will One of the cornerstones of the NRC's result in a better use of all participants' (a) Overall Organization of Part 2. regulatory approach has always been (b) Commission Response to Eight General limited resources. To that end, the Questions in Proposed Rule. ensuring that its review processes and Commission initiated certain actions (c) Introductory provisions. decisionmaking are open, related to its hearing processes-(d) Subpart A. understandable, and accessible to all development of a Policy Statement on (e) Subpart B interested parties. Its processes for the hearing process, and a (f) Subpart C.. achieving this goal have been part of the reexamination of the NRC's hearing (g) Subpart G. reassessment as well. Recently, steps process and requirements under the (h) Subpart I. have been taken to expand the (i) Subpart J. Atomic Energy Act of 1954, as amended opportunities for stakeholder awareness (AEA)-as a foundation for possible rule (j) Subpart K. and involvement in NRC policy and changes.

(k) Subpart L.

decisionmaking through greater use of (1)Subpart M. A. Policy Statement (m) Subpart N. public workshops in rulemaking, (n) Subpart 0. inviting stakeholder participation in In 1998, the Commission adopted a (o) Part 60. Commission meetings, and.more new Policy Statement that provides B. Section-by-Section Analysis. extensive use of public meetings with specific guidance for Licensing Boards

Federal Register/Vol. 69, No. 9/Wednesday, January 14, 2004/Rules and Regulations 2187 decisions on summary disposition safety review has been completed in and use of cross-examination plans motions. areas relevant to the contested matters. whenever a party cross-examines Comment. The limitation of discovery The Commission also recognizes that witnesses.

Comment. The Commission should on the NRC staff until after the Safety the current regulations governing be Evaluation Report. (SER) and final submission of the SER and/or EIS are actively involved in overseeing Environmental Impact Statement (EIS) not clear and could be misleading. To proceedings 4nd there should be is overly broad and could delay the address these matters, the Commission expedited interlocutory review for novel proceeding. is taking a number of actions which are legal or policy issues.

Response. The most fruitful time for described below in II.A.2.(f) in the Response. Providing for a discovery of NRC staff review discussion of § 2.337. Commission ruling on significant issues documents is after the staff has Comment. Licensing Boards should before the hearing is completed can developed its position. Subjecting the rule on standing before the submission focus the issues to be addressed in a NRC staff to extensive discovery early in of contentions. hearing, and the final rule provides for the process will often require the staff Response. The Commission expects presiding officer certification of novel to divert its resources from completing that standing issues would be among the legal or policy issues to the its review. In addition, early discovery first issues addressed by a presiding Commission. However, the Commission before the NRC staff has finalized the officer in an adjudication, but that does believes that the additional delay major part of its reviews may present a not dictate that the submission of necessarily associated with misleading impression of staff views: contentions should be delayed. The interlocuitory appeals by parties Finally, a focus on discovery against the Commission also expects that concrete outweighs any potential reduction in NRC staff diverts the focus from the real issues of concern to the public would be hearing time that may come about issues in a licensing proceeding, which raised on the basis of the application or through a Commission decision in such should be the adequacy of the the proposal for NRC action and can be an appeal, unless a party seeking applicant's/licensee's proposal. identified at the same time the petition interlocutory review can also Nevertheless, the Commission addresses the matter of standing. demonstrate that it would be threatened recognizes the importance of timely Comment. The Commission should with immediate and serious irreparable completion of the NRC staff s reviews apply the Federal Rules of Evidence harm, or if the basic structure of the and the staff is making a concerted effort with respect to scientific testimony. proceeding would be affected in a at rigorous planning and scheduling of Response. Neither this final rule nor pervasive or unusual manner.

staff reviews. In this regard, the NRC the supersededprovisions of part 2 Accordingly, the Commission has staff has continued to refine and contain a special provision for scientific decided that it should not depart from complete its standard review plans and testimony. Scientifictestimony can be existing practice by permitting its review guidance, and has moved to. tested and evaluated in the same interlocutory appeals by parties based a more performance-goal oriented manner as other evidence presented at solely on the existence of novel legal or approach in an effort to improve the a hearing. Although the Commission has policy issues.

timeliness of its reviews. Steering and not required the application of the Comment. The Commission should oversight.committees are sometimes Federal Rules of Evidencein NRC. actively review the performance of formed to direct the course of major adjudicatory proceedings, presiding Licensing Boards and ensure that boards technical review efforts and detailed officers and Licensing Boards have make prompt decisions.

milestone schedules are developed and always looked to the Federal Rules for Response. The Commission has been tracked. NRC managers and staff are guidance in appropriate circumstances. carefully monitoring all adjudicatory held accountable for these schedules. The Commission continues to believe proceedings to ensure that they are.

The NRC will continue with these that greater informality and flexibility in being appropriately managed to avoid efforts to improve the timeliness of the presentation of evidence in hearings, unnecessary delay. The Commission, licensing reviews. rather than the inflexible use of the through its Policy Statements and case-Comment. The hearing should not be formal rules of evidence imposed in the specific orders, has been encouraging delayed until after the SER and the final Federal courts, can result in more presiding officers (including Licensing EIS are issued as it could delay the effective and efficient issue resolution. Boards) to issue timely decisions proceedings. Comment. The Commission should consistent with presiding officers' Response. In proceedings where the place limitations on cross-examination. independent decisionmaking functions.

NRC staff is a party, the staff may not Response. The final rule does place Section 2.334(b) of the final rule be in a position to provide testimony or limitations on cross-examination for the explicitly addresses case management take a final position on some issues less formal procedures. Under these and would require the presiding officers until these documents have been procedures, the presiding officer may to notify the Commission when there is completed. This may be the case in question witnesses who testify at the non-trivial delay in completion of the particular with regard to the NRC staff s hearing, but parties normally may not proceeding. The Commission wishes to environmental evaluation, less so with do so. However, parties may submit to emphasize, however, that the regard to the staff's safety evaluation. In the presiding officer written suggestions Commission's oversight of presiding many cases, it could be unproductive for questions to be asked. The final rule officers with respect to case and cumbersome to have a two-pronged also allows motions to the presiding management is not intended to intrude hearing with one part of the hearing officer to allow cross-examination by on the independence of presiding being conducted before issuance of the the parties where the party believes this officers in discharging their NRC staff documents and a second would be necessary to develop an decisionmaking responsibilities.

hearing after issuance of the documents. adequate record. As a general matter, Nonetheless, the Commission the presiding officer may limit and D. Comments From HearingProcess recognizes that where the NRC staff is control cross-examination in Workshop a party, the staff could prepare appropriate circumstances, under The October 26-27, 1999, hearing testimony and evidence, and take a final § 2.333 of the final rule. Among other process workshop involved participants position on contested matters if its things, the final rule requires the filing from the nuclear industry, states, citizen

Contention 35/36 Attachment 11 NUREG/BR-0058, Revision 4 NRC's Regulatory Analysis Guidelines (Sept. 2004)

NUREG/BR-0058 Revision 4 Regulatory Analysis Guidelines of the U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of Nuclear Regulatory Research Washington, DC 20555-0001

NUREG/BR-0058 Revision 4 Regulatory Analysis Guidelines of the U.S. Nuclear Regulatory Commission Manuscript Completed: August 2004 Date Published: September 2004 Division of Systems Analysis and Regulatory Effectiveness Office of Nuclear Regulatory Research U.S. Nuclear Regulatory Commission Washington, DC 20555-0001

%p~kREG(,

1-1pl

2 DISCUSSION 2.1 Purpose of a Regulatory Analysis The statutory mission of the NRC is to ensure that civilian uses of nuclear materials in the United States-in the operation of nuclear power plants and related fuel cycle facilities or in medical, industrial, or research applications-are carried out with proper regard and provision for the protection of the public. health and safety, property, environmental quality, common defense and security, and in accordance with applicable antitrust laws. Accordingly, the principal purposes of a regulatory analysis are to help ensure the following:

• The NRC's regulatory decisions made in support of its statutory responsibilities are based on adequate information concerning the need for and consequences of proposed actions.

• Appropriate alternative approaches to regulatory objectives.are deptified and analyzed

° *No clearly preferable alternative is available to the proposed action.

• Proposed actions subject to the backfit rule (10 CFR 50.109), and not within the exceptions at 10 CFR 50.109(a)(4), provide a substantial' increase in.hthe overall protection of the'public health and safety or the common defense and security and that the direct and indirect costs of implementation are justified in view of this substantial increase in protection.

The regulatory analysis process should begin when it becomes apparent that some type of.

.action to address an identified problem may be needed. Initial efforts should be focused on the nature, extent, and magnitude of the problem being addressed, why NRC action is required, and identification of alternative solutions. Detailed information-gathering and analysis activities should be focused on the most promising alternatives.

The regulatory analysis process is intended to be an integral part of the NRC's decisionmaking that systematically provides complete disclosure of the relevant information supporting a regulatory decision. The process is to be used neither to produce after-the-fact rationalizations to justify decisions already made, nor to unnecessarily delay regulatory actions. The conclusions and recommendations included in a regulatory analysis document are neither final nor binding, but are intended to enhance the soundness of decisionmaking by NRC managers and the Commission.

3 The Commission has stated that "substantial" means important or significant in a large amount, extent, or degree (Ref. 21). Applying such a standard, the Commission would not ordinarily expect that safety-applying improvements would be required as backfits that result in aninsignificant or small benefit to the public health and safety, regardless of costs. On the other hand, the standard isnot intended to be interpreted in a manner that would result in disapprovals of worthwhile safety or security improvements having costs that are justified in view of the increased protection that would be provided. This approach is flexible enough to allow for qualitative arguments that a given proposed rule Would substantially increase safety. The approach is also.flexible enough to allow for arguments that consistency with national and international standards, or the incorporation of widespread industry practices, contributes either directly or indirectly to a substantial increase in safety. Such arguments concerning consistency with other standards, or incorporation of industry practices, would have to rest on the particulars of a given proposed rule. The Commission also believes that this approach of "substantial increase" is consistent with the Agency's policy of encouraging voluntary initiatives.

4

Contention 35/36 Attachment 12 NEI 05-01 (Rev. A) Severe Accident Mitigation Alternatives (SAMA) Guidance Document (Nov. 2005)

NEI 05-01 [Rev A]

Severe- Accident Mitigation Alternatives (SAMA) Analysis Guidance Document November 2005

NEI 05-01 [Rev A]

Nuclear Energy Institute Severe, Accident Mitigation Alternatives (SAMA) Analysis Guidance Document November 2005 Nuclear Energy Institute, 1776 1 Street NAW., Suite 400, Washington D.C (202.739.8000)

NEI 05-01 (Rev A)

November 2005 DCPWR This analysis case was used to evaluate plant modifications that would increase the availability of Class 1E DC power (e.g., increasedbattery capacity or the installationof a diesel-poweredgenerator that would effectively increase battery capacity). Although the proposed SAMAs would not completely eliminate,the potentialfailure, a bounding benefit was estimated by removing the battery discharge events and battery failure events. This analysis case was used to model the benefit of SAMAs 4, 5, 10, 12, and 24.

7.1.2 COST OF SEVERE ACCIDENT RISK WITH SAMA IMPLEMENTED Using the risk measures from Section 7.1.1, calculate severe accident impacts in four areas: off-site exposure cost, off-site economic cost, on-site exposure cost, and on-site economic cost using the same procedure used for the baseline case described in Section 4.

As in. Section 4.5, sum the severe accident impacts and combine with the external events multiplier (Section 3.1.2.4) to estimate the total cost of severe accident risk with the SAMA implemented. Use of the external events multiplier is inappropriate for some SAMAs. For example, SAMAs specifically related to external events that would not impact internal events (e.g., enhanced fire detections) and SAMAs related to specific internal event initiators (e.g.,

guard pipes for main steam line break events). Provide a discussion of SAMAs on which the external events multiplier was not applied.

7.1.3 SAMA BENEFIT Subtract the total cost of severe accident risk with the SAMA implemented from the baseline cost of severe accident risk (maximum benefit from Section 4.5) to obtain the benefit.

List the estimated benefit for each SAMA candidate.

Table 11 provides a sample portion of a Phase II SAMA candidate list with estimated benefits listed.

7.2 COST OF SAMA IMPLEMENTATION Perform a cost estimate for each of the Phase II SAMA candidates. Describe the cost estimating process and list the cost estimate for each SAMA candidate.

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.

28

Contention 35/36 Attachment 13 72 Fed. Reg. 45466 Notice of Availability of the Final License Renewal Interim Staff Guidance LR-ISG-2006-03:

Staff Guidance for Preparing Severe Accident Mitigation Alternatives Analyses (Aug. 14, .2007)

45466 Federal Register/Vol. 72, No. 156/Tuesday, August 14, 2007/Notices clarified the application, did not expand contact the NRC Public Document Room submittals. The staff finds that the scope of the application as originally (PDR) reference staff at 1-800-397- utilization of the guidance provided in noticed, and did not change the staff's 4209, 301-415-4737, or by e-mail at NEI 05-01, Revision A, will result in original proposed no significant hazards pdr@nrc.gov. improved quality in SAMA analyses consideration determination as FOR FURTHER INFORMATION CONTACT: Mr. and a reduction in the number of

• published in the Federal Register. Richard L. Emch, Jr., Seniof Project requests for additional information.

The Commission's related evaluation Manager, Office of Nuclear Reactor Attachment 2-Final License Renewal of the amendments is contained in a Regulation, U.S. Nuclear Regulatory. Interim Staff Guidance LR-ISG-2006-Safety Evaluation dated July 20, 2007. Commission, Washington, DC 20555-No significanthazards consideration 03: Staff Guidance for Preparing Severe 0001; telephone 301-415-1590 or by e- Accident Mitigation Alternatives comments received: No. mail at rle@nrc.gov. Analyses Dated at Rockville, Maryland, this 2nd day SUPPLEMENTARY INFORMATION:

of August 2007. Attachment 1 to this Federal Register Introduction For the Nuclear Regulatory Commission. notice, entitled Staff Position and A severe accident mitigation Catherine Haney, Rationalefor the FinalLicense Renewal alternatives (SAMA) analyses is Director,Division of OperatingReactor Interim Staff Guidance LR-ISG-2006- required as part of a license renewal Licensing, Office of NuclearReactor 03: Staff Guidancefor PreparingSevere application, if a SAMvIA analysis has not Regulation. Accident MitigationAlternatives already been performed for the plant "

[FR Doc. E7-15459 Filed 8-13-07; 8:45 am] (SAMA) Analyses contains the NRC and reviewed by the NRC staff. SAMA BILLING CODE 7590-01-P staff's rationale for publishing the Final analyses have been performed and.

LR-ISG-2006-03. Attachment 2 to this submitted to the NRC for all "

Federal Register notice, entitled applications for license renewal NUCLEAR REGULATORY ProposedLicense Renewal Interim Staff. received by the staff thus far. Therefore, COMMISSION Guidance LR-ISG-2006-03: Staff this LR-ISG is being recommended as Guidancefor PreparingSevere Accident guidance consistent with our goal to Notice of Availability of the Final Mitigation Alternatives (SAMA) more effectively and efficiently resolve License Renewal Interim Staff Analyses, contains the guidance for Guidance LR-ISG-2006-03: Staff license renewal issues identified by the preparing SAMA analyses related to staff or the industry.

Guidance for Preparing Severe license renewal applications. The NRC Accident Mitigation Alternatives. staff approves this LR-ISG for NRC and Background and Discussion Analyses industry use. The NRC staff will also After receiving extensive requests for AGENCY: Nuclear Regulatory incorporate the approved LR-ISG into additional information regarding the Commission (NRC). the next revision of Supplement 1 to SAMA analyses, several applicants for ACTION: Notice of Availability. Regulatory Guide 4.2, "Preparation of license renewal concluded that they did Supplemental Environmental Reports not fully understand the kind of

SUMMARY

NRC is issuing its Final for Applications to Renew Nuclear information that the NRC staff was License Renewal Interim Staff Guidance Power Plant Operating Licenses." expecting to see in SAMA analyses.

LR-ISG-2006-03 for preparing severe Dated at Rockville, Maryland, this 2nd day The Nuclear Energy Institute (NEI) accident mitigation alternatives (SAMA) of August 2007. developed a generic guidance document analyses. This LR-ISG recommends that For the Nuclear Regulatory Commission. to help clarify the NRC staff's applicants for license renewal use the Pao-Tsin Kuo, expectations regarding the information Guidance Document Nuclear Energy Director,Division of License Renewal, Office that should be submitted in SAMA Institute 05-01, Revision A, (ADAMS of Nuclear ReactorRegulation. analyses. On April 8, 2005, NEI Accession No. ML060530203) when submitted NEI 05-01, "Severe Accident preparing their SAMA analyses. The Attachment 1-Staff Position and' Mitigation Alternatives (SAMA)

NRC staff issues LR-ISGs to facilitate Rationale for the Final License Renewal Analysis--Guidance Document." The timely implementation of the license Interim Staff Guidance LR-ISG-2006- NRC staff reviewed this guidance renewal rule and to review activities 03: Staff Guidance for Preparing Severe document, and by letter, dated July 12, associated with a license renewal Accident Mitigation Alternatives 2005, provided comments on NEI 05-application. The NRC staff will also Analyses 01. The NRC staff's comments were incorporate the approved LR-ISG into Staff Position:The NRC staff discussed during a public meeting the next revision of Supplement 1 to recommends that applicants for license between NEI and NRC on July 21, 2005.

Regulatory Guide 4.2, "Preparation of renewal follow the guidance provided On February 17, 2006, NEI submitted Supplemental Environmental Reports in Nuclear Energy Institute (NEI) 05-01, its NEI 05-01, Revision A, dated for Applications to Renew Nuclear "Severe Accident Mitigation November 2005. The NRC staff reviewed Power Plant Operating Licenses." Alternatives (SAMA) Analysis- and concluded that this version fully ADDRESSES: The NRC maintains an Guidance Document," Revision A, when resolved the NRC staff's comments. In Agencywide Documents Access and preparing their SAMA analyses. addition, the NRC staff concluded that Management System (ADAMS), which Rationale:The NEI developed a NEI 05-01, Revision A, describes provides text and image files of NRC's generic Guidance Document NEI 05-01, existing NRC regulations, and facilitates public documents. These documents, Revision A, to help clarify the NRC complete preparation of SAMA analysis may be accessed through the NRC's staff's expectations regarding the submittals.

Public Electronic Reading Room on the information that needs to be included in Some applicants for license renewal Internet at http://www.nrc.gov/reading- SAMA analyses. The NRC staff have submitted SAMA analyses using rm/adams.html. Persons who do not reviewed and concluded that NEI 05- the guidance provided in NEI 05-01, have access to ADAMS or who 01, Revision A, describes existing NRC Revision A. The NRC staff found encounter problems in accessing the regulations and facilitates complete improved quality in the submitted documents located in ADAMS should preparation of SAMA analysis SAMA analyses and a reduction in the

Federal Register/Vol. 72, No. 156/Tuesday, August 14, 2007/Notices 45467 number of requests for additional FOR FURTHER INFORMATION CONTACT: The Request relies on record information for those applications that Stephen L. Sharfman, General Counsel, testimony entered in the baseline followed the guidance provided in NEI 202-789-6820 and docket. This material is identified in the 05-01, Revision A. stephen.sharfman@prc.gov. Postal Service's Compliance Statement, SUPPLEMENTARY INFORMATION: On August Request Attachment E.

Recommended Action 3, 2007, the United States Postal Service Requests that are proffered as The staff is recommending that filed a request seeking a recommended functionally equivalent to baseline applicants for license renewal follow decision from the.Postal Regulatory NSAs are handled expeditiously, until a the guidance provided in NEI 05-01, Commission approving a Negotiated final determination has been made as to Revision A, when preparing their Service Agreement (NSA) with The their proper status. The Postal Service's SAMA analyses. The staff finds that NEI Bradford Group.' The NSA is proffered Compliance Statement, Request 05-01, Revision A, describes existing as functionally equivalent to the Attachment E, is noteworthy in that it NRC regulations, and facilitates Bookspan NSA recommended by the provides valuable information to complete preparation of SAMA analysis Commission in Docket No. MC2005-3 facilitate rapid review of the Request to submittals. (baseline agreement). [70 FR 42602.] aid participants in evaluating whether Although this proposed LR-ISG does The Request, which includes six or not the procedural path suggested by not convey a change in the NRC's. attachments, was.filed pursuant to the Postal Service is.appropriate.

r..egulations or how they are interpreted,ý chapter 36 of title 39, United States it is being provided to facilitate 2 The Postal Service submitted several.

Code. contemporaneous related filings with its complete preparation of future SAMA The Postal Service has identified The analysis submittals in support of Request. The Postal Service has filed a Bradford Group, along with itself, as applications for license renewal. The proposal for limitation of issues in this parties to the NSA. This identification NRC staff plans to incorporate the docket.a Rule 196(a)(6) 139 CFR serves as notice of intervention by The guidance provided in NEI 05-01, 3001.196(a)(6)]. The proposal identifies Bradford Group. It also indicates that Revision A, into a future update of issues that were previously decided in The Bradford Group shall be considered Supplement 1 to Regulatory Guide 4.2, a co-proponent, procedurally and the baseline docket, and key issues that "Preparation of Supplemental substantially, of the Postal Service's are unique to the instant Request.

Environmental Reports for Applications Request during the Commission's Rule 196(b) [39 CFR 3001.196(b)]

to Renew Nuclear Power Plant review of the NSA. Rule 191(b) [39 CFR requires the Postal Service to provide Operating Licenses." This LR-ISG 3001.191(b).] An appropriate Notice of written notice of its Request, either by provides a clarification of existing The Bradford Group of Appearance and hand delivery or by First Class Mail, to guidance. with no additional Filing of Testimony as Co-Proponent, all participants of the baseline docket.

requirements. For those that are August 3, 2007, has been filed. This requirement provides additional interested in reviewing NEI 05-01,, In support of the direct case, the time, due to an abbreviated intervention Revision A, the Agencywide Documents Postal Service has filed Direct period, for the most likely participants Access and Management System Testimony of Broderick A. Parr on to decide whether or not to intervene. A (ADAMS) Accession Number is Behalf of the United States Postal copy of the Postal Service's notice was ML060530203. Service, August 3, 2007 (USPS-T-1) filed with the Commission on August 3,

[FR Doc. E7-15926 Filed 8-13-07; 8:45 am] and library reference USPS-LR-L-1, 2007.4 MC2004-3 Opinion and Further The Request, accompanying BILLING CODE 7590-01-P Recommended Decision Analysis for testimonies of witnesses Parr (USPS-T-The Bradford Group NSA. The Bradford 1), Gustafson (BG-T-1), and Ring (BG-.

Group has separately filed direct T-2), the baseline agreement, and other POSTAL REGULATORY COMMISSION testimonies of Steve Gustafson (BG-T- related material can be accessed

[Docket No. MC2007-4; Order No. 23] 1) and Wendy Ring (BG-T-2) both on electronically, via the Internet, on the behalf of The Bradford Group, August 3, Commission's Web site (http://

Negotiated Service Agreement 2007. The Postal Service has reviewed www.prc.gov).

AGENCY: Postal Regulatory Commission.

The Bradford Group testimony and, in accordance with rule 192(b) [39 CFR I.

Background:

Baseline Bookspan ACTION: Notice and order. Negotiated Service Agreement, Docket 3001.192(b)], states that such testimony

SUMMARY

This document establishes a may be relied upon in presentation of No. MC2005-3 docket for consideration of the Postal the Postal Service's direct case. USPS- If a request predicated on a NSA is Service's request for approval of T-1 at 3. found to be functionally equivalent to a contract rates with The Bradford Group. previously recommended, and currently It identifies key elements of the Request of the United States Postal Service for a Recommended Decision on Classifications and in effect, NSA, it may be afforded proposed agreement, which involves Rates to Implement a Functionally Equivalent accelerated review. Rule 196 [39 CFR Standard Mail letters and flats rates, and Negotiated Service Agreement with Bradford 3001.1961. The Postal Service asserts addresses preliminary procedural Group, August 3, 2007 (Request).

2 Attachments A and B to the Request contain that the NSA in the instant Request is matters. functionally equivalent to the now in proposed changes to the Domestic Mail DATES: 1. August 24, 2007: Deadline for Classification Schedule and associated rate effect Bookspan NSA recommended by intervention and responses to limitation schedules; Attachment C is a certification required the Commission in Docket No. MC2005-of issues. 2. August 28, 2007: Prehearing by Commission rule 193(i) specifying that the cost statements and supporting data submitted by the conference, 11 a.m. in the Commission's Postal Service, which purport to reflect the books United States Postal Service Proposal for

• hearing room. of the Postal Service, accurately set forth the results Limitation of Issues, August 3, 2007.

ADDRESSES: Submit comments shown by such books; Attachment Dis an index of Notice of the United States Postal Service testimony and exhibits; Attachment E is a Concerning the Filing of a Request for a electronically via the Commission's compliance statement addressing satisfaction of Recommended Decision on a Functionally Filing Online system at http:// various filing requirements; and Attachment F is a Equivalent Negotiated Service Agreement, August www.prc.gov. copy of the Negotiated Service Agreement. 3, 2007.

Contention 35/36 Attachment 14 Entergy, NL-09-165 License Renewal Application - SAMA Reanalysis Using Alternate Meteorological Tower Data (Dec. 14, 2009)

Enterqy Nuclear Northeast Indian Point Energy Center 450 Broadway, GSB P.O. Box 249 Buchanan, NY 10511-0249 Tel (914) 788-2055 Fred Dacirno Vice President License Renewal NL-09-165 December 11, 2009 U.S.. Nuclear Regulatory Commission Attn: Document Control Desk Washington, DC 20555-0001

SUBJECT:

License Renewal Application - SAMA Reanalysis Using Alternate Meteorological Tower Data Indian Point Nuclear Generating Unit Nos. 2 & 3 Docket Nos. 50-247 and 50-286 License Nos. DPR-26 and DPR-64

REFERENCE:

1. Entergy Nuclear Operations Inc. Letter NL-09-151, "Entergy Nuclear Operations Inc. Telephone Conference-Call Regarding Met Tower Data for SAMA Analysis" dated November 16, 2009

Dear Sir or Madam:

In Reference 1 above, Entergy Nuclear Operations, Inc.(Entergy) committed to providing the following information on or before December 16, 2009.

" The meteorological data and justification supporting its use in the SAMA analysis (e.g., if a single year is used or an average of several years),

& Revised estimates of the offsite population dose and offsite economic costs,

" Identification of the meteorological tower elevation from which meteorological data were obtained and the rationale for selecting the data from that tower elevation,

" Revised SAMA analysis results, specifically for the analysis case discussed in response to RAI 4e, dated February 5, 2008, and

" The complete MACCS2 input file used for the reanalysis (in electronic format).

The purpose of this letter is to transmit the requested information. Attachment 1 provides the.

SAMA reanalysis using alternate Meteorological Tower Data.

There are no new commitments identified in this submittal. If you have any questions, or require additional information, please contact Mr. Robert Walpole at 914-734-6710.

NL-09-165 Page 2 of 2 I elre under penalty of perjury that the foregoing is true and correct. Executed on Si FRD/dmt

Enclosure:

1. License Renewal Application- SAMA Reanalysis Using Alternate Meteorological Tower Data cc: Mr. Samuel J. Collins, Regional Administrator, NRC Region I Mr. Sherwin E. Turk, NRC Office of General Counsel, Special Counsel Ms. Kimberly Green, NRC Project Manager Mr. John Boska, NRR Senior Project Manager IPEC NRC Resident Inspector's Office Mr. Paul Eddy, New York State Department of Public Service Mr. Francis J. Murray, President and CEO, NYSERDA

ATTACHMENT 1 TO NL-09-165 License Renewal Application - SAMA Reanalysis Using Alternate Meteorological Tower Data ENTERGY NUCLEAR.OPERATIONS, INC.

INDIAN POINT NUCLEAR GENERATING UNIT NOS. 2 & 3 DOCKET NOS. 50-247 AND 50-286 LICENSE NOS. DPR-26 AND DPR-64

NL-09-165 Attachment 1 Docket Nos. 50-247 & 50-286 Page 1 of 33 INDIAN POINT NUCLEAR GENERATING UNIT NOS. 2 AND 3 LICENSE RENEWAL APPLICATION SAMA Reanalysis Using Alternate Meteorological Tower Data NRC Requests from November 9, 2009 Teleconference (1) Provide meteorological data and justification supporting its use in the SAMA analysis (e.g., if a single year is used or an average of several years).

(2) Provide revised estimates of the offsite population dose and offsite economic costs.

(3) Provide identification of the meteorological tower elevation from which meteorological data were obtained and the rationale for selecting the data from that tower elevation.

(4) Provide revised SAMA analysis results, specifically for the analysis case discussed in response to RAI 4e, dated February 5, 2008.

(5) Provide the complete MACCS2 input file used for the reanalysis (in electronic format).

Response

The following document provides responses to the requests listed above.

(1) Section [4] describes and justifies the meteorological data used in the SAMA reanalysis.

(2) Revised estimates of the offsite population dose and offsite economic costs are provided in Tables 1 and 2.

(3) Identification of the meteorological tower elevation from which meteorological data were obtained and the rationale for selecting the data from that tower elevation are provided in Section [2].

(4) Revised SAMA analysis results, specifically for the analysis case discussed in response to RAI 4e, are provided in Tables 4 and 5.

(5) The complete MACCS2 input files used for the SAMA reanalysis listed in Section

[10] are provided in electronic format.

NL-09-165 Attachment 1 Docket Nos. 50-247 & 50-286 Page 2 of 33 TABLE OF CONTENTS

[1] INTRODUCTION ............. ................................ ...............

.. 3

[21 PREPARATION OF ANNUAL METEOROLOGICAL DATA ..................... 4

[31 NON-METEOROLOGICAL LEVEL 3 MODEL INPUTS ............................................ 5

[4] MACCS2 ANALYSIS AND RESULTS ............................... ........................... 5

[5] COST BENEFIT ANALYSIS RESULTS ............................................................... 7

[6] REVISED COST ESTIMATES ......... ......................................... 7

[7] MAIN STEAM SAFETY VALVE GAGGING SAMA (UPDATED RESPONSE TO R O UND 2 R A I 6) ..................................................................... . ........ 2 9

[8] TI-SGTR SENSITIVITY ANALYSIS (REVISED RESPONSE TO ROUND 2 RAI

5) ......................................... ................... 29

[9] C ONCLUSION .... .... ... ..................... .................. 31

[10] MACCS2 INPUT FILES ......................................................................... 33

[1 11 R E F ER ENC ES ............................................... ....................................... 33

NL-09-165 Attachment I Docket Nos. 50-247 & 50-286 Page 3 of 33 IP2 and IP3-SAMA Reanalysis

[1] Introduction The tP2 and IP3 Severe Accident Mitigation Alternative (SAMA) analyses originally described in the Environmental Report (ER) of the. license renewal application, dated April 3, 2007, used site specific meteorological. data (wind speed, wind direction, temperature, and accumulated precipitation) obtained from the IPEC onsite meteorological monitoring system (Reference 1).

As permitted by NEI 05-01, "Severe Accident Mitigation Alternatives (SAMA) Analysis Guidance Document,"' (Reference 4) five years of meteorological data (2000-2004) were averaged and used in the original SAMA analyses. Since the SAMA analyses began in the fall of 2005, these five years were the most recent data available at the time of the original analyses. The five-year data included 43,848 (two leap years) consecutive hourly values of wind speed, wind direction, precipitation, and temperature recorded at the IPEC meteorological tower from January 2000 through December 2004. The results of the original SAMA analyses were reported in the ER and clarified in response to questions from the Nuclear Regulatory Commission (References 2 and 3).

As described above, the original SAMA analyses used five year averages of wind speed, wind direction, precipitation, and temperature. The averaging method for wind direction, however, was determined to be incorrect and, as a result, the averaged wind direction data was not representative of wind direction conditions in the region for the five year period (Reference 5).

Therefore, the SAMAs have been reanalyzed using a single representative year of meteorological data as described below. As described further in Section [41 below, Year 2000 was selected as the representative year because, of the five years of data, it is the year that resulted in the most conservative (i.e. largest) calculated. population doses. Using one representative year avoids the need to average multiple years of meteorological data, including wind direction.

In accordance with NEI 05-01 recommendations, the original SAMA analyses described in the ER included multiple cases including a baseline case with uncertainty and three sensitivity cases (use of a 3 percent discount rate, use of a longer plant life, and consideration of economic losses by tourism and business). The sensitivity cases in the ER did not identify additional.

potentially cost beneficial SAMAs beyond those already identified by the baseline with uncertainty case.

During their review, the Nuclear Regulatory Commission (NRC) Staff noted that incorporation of tourism and business losses could result in identification of additional cost beneficial SAMAs if it was considered the baseline case and multiplied to account for uncertainties. Therefore, in.

response to request for additional information (RAI) 4e, Entergy provided the results of a revised uncertainty analysis in which the impact of. lost tourism and business was analyzed as the baseline analysis and multiplied to account for uncertainties (Reference 2). This uncertainty case resulted in the identification of two additional potentially cost beneficial SAMAs for IP2 and one additional potentially cost beneficial SAMA for IP3. Since it resulted in the largest number of potentially cost beneficial SAMAs, the RAI 4e analysis case is the most conservative case.

The SAMA reanalysis described below was performed for the same most conservative case; NEI 05-01 was endorsed by NRC in Federal Register / Vol. 72, No. 156 / Tuesday, August 14, 2007.

NL-09-165 Attachment 1 Docket Nos. 50-247 & 50-286 Page 4 of 33 i.e., the RAI 4e analysis case in which the impact of lost tourism and business was analyzed as the baseline analysis and multiplied to account for uncertainties.

Following the SAMA reanalysis, an additional sensitivity case was analyzed to provide a revised response to Round 2 RAI 5 (Reference 3). This sensitivity case determined the impact of applying values derived from NUREG-1 570, Risk Assessment of Severe Accident-Induced Steam Generator Tube Rupture, although final industry consensus on the thermally-induced steam generator tube rupture (TI-SGTR) issue has not yet been reached. See Section [8] for a description of this sensitivity case.

As a result of the SAMA reanalysis and sensitivity case using a conservatively representative, single year of meteorological data (2000), three additional SAMA candidates were found to be potentially cost beneficial for mitigating the consequences of a severe accident.for IP2 and three additional SAMA candidates were found to be potentially cost beneficial for IP3 (in addition to those previously designated as cost beneficial in Section 4.21.6 of the ER and References 2 and 3).

[2] Preparation of Annual Meteoroloqical Data The MACCS2 code accepts 8,760 consecutive hourly values (one year) of meteorological data.

Each of the five years of meteorological data used in the original analysis was prepared for input into the MACCS2 code by converting values recorded at the primary meteorological tower at the IPEC site to the units used by MACCS2, assigning an atmospheric stability class based upon the temperature data, and using data substitution to fill in limited missing data.-

The primary meteorological tower at IPEC records data on an hourly basis at three elevations, 1Om, 60m, and 122m. All available data from the 1Om elevation of the primary meteorological tower was used in both the original SAMA analysis and reanalysis because it is closest to the assumed release height of 30m and, therefore, would be most representative of the conditions.

at the point of release. Both the original SAMA analysis and reanalysis assumed a release height of 30m because it is approximately half the height above grade level of the IP2 and IP3 containment buildings, as recommended by NEI 05-01 to provide adequate dispersion of the plume to the surrounding area. Data from this elevation is also currently used.in calculations.for the effluent release reports submitted to the NRC pursuant to 10 CFR Part 50.36a and the IPEC emergency plan.

Data substitution methods used in the SAMA reanalysis were in accordance with Environmental Protection Agency (EPA) guidance provided'in Reference 6. These methods included substitution of limited missing meteorological data with data interpolated, averaged, or curve-fit from previous and subsequent hours and substitution of valid data collected from the 60m elevation. In the MACCS2 input file for 2000, which was conservatively selected for use in the SAMA reanalysis, the following data substitutions were made.

Seventy-four hours of 10-meter wind direction data was missing for day 316 hour0.00366 days <br />0.0878 hours <br />5.224868e-4 weeks <br />1.20238e-4 months <br /> 14 through day 319 hour0.00369 days <br />0.0886 hours <br />5.274471e-4 weeks <br />1.213795e-4 months <br /> 15 (in METIOO.inp). To maintain consistency and wind variability, data from the 60-meter sensor was substituted for the seventy four hours of missing 10-meter wind direction data.

NL-09-165 Attachment 1 Docket Nos. 50-247 & 50-286 Page 5 of 33 Eight hours of temperature data was missing for day 95 h6urs 2 through 9 (in METIOO.inp).

Values for these eight hours were obtained by linear interpolation of the preceding and subsequent valid temperature values.

Data for all meteorological parameters was missing on day 104 hours0.0012 days <br />0.0289 hours <br />1.719577e-4 weeks <br />3.9572e-5 months <br /> 10 and 11, day 104 hour0.0012 days <br />0.0289 hours <br />1.719577e-4 weeks <br />3.9572e-5 months <br /> 19, day 255 hours0.00295 days <br />0.0708 hours <br />4.21627e-4 weeks <br />9.70275e-5 months <br /> 18 and 19, and. day 294 hours0.0034 days <br />0.0817 hours <br />4.861111e-4 weeks <br />1.11867e-4 months <br /> 10 and 11 (in METIOO.inp).

Substitute values were obtained by interpolation, curve-fitting, or averaging the preceding and subsequent valid data values as appropriate.

[3] Non-Meteorological Level 3 Model Inputs In addition to meteorological data, MACCS2 also uses input data for population, land fraction, watershed class, regional economic data, agriculture data, emergency response assumptions, and source terms. These inputs are described in Sections E.1.5.and E.3.5 of the ER.

For the regional average value of non-farm wealth (VALWNF), a value of $208,838.49/person was used in the SAMA reanalysis consistent with sensitivity case 3 in the ER. As mentioned in Section [1], the RAI 4e analysis case (which is ER sensitivity case 3 multiplied to account for uncertainty) is the most conservative case, resulting in the largest number of potentially cost beneficial SAMAs. The reanalysis was performed for the RAI 4e analysis case in which the impact of lost tourism and business was analyzed as the baseline analysis and multiplied to account for uncertainties. Consequently, the revised benefit results for all SAMAs include the impact of lost tourism and business, as described in the response to request for additional information (RAI) 4e (Reference. 2).

The other, non-meteorological data were the same as those described for the baseline case in the ER (described in Sections E.1.5 and E.3.5 of the ER). Since the reanalysis uses the same non-meteorological input data as the original RAI 4e analysis case, the only difference between the original RAI 4e analysis and the reanalysis is the meteorological data.

[4] MACCS2 Analysis and Results As with the original SAMA analysis, the SAMA reanalysis also used MACCS2 to estimate the mean population dosersk (PDR) and offsite economic cost risk (OECR). Preliminary results from MACCS2 using each of the five years of meteorological data (2000-2004) were compared.

Since the dose and economic cost results for all of the individual years were similar, the year that resulted in the most conservative (i.e. largest) doses (year 2000)was selected as the representative year for use in the SAMA reanalysis. This method of choosing a representative year agrees with the example provided in NEI 05-01. The revised estimated mean values of PDR and OECR for IP2 and IP3 using year 2000 meteorological data are presented in Table 1 for 1P2 and Table 2 for IP3. Comparison of the values in Tables 1 and 2 with those in ER Tables E. 1-14 and E.3-14 shows that the individual year PDR and OECR values are larger than the original ER values due to removal of wind direction biases introduced by the faulty wind direction averaging method.

Table 3 provides a breakdown of the total population dose by containment failure mode, similar to information provided in response to RAI 2a (Reference 2).

NL-09-165 Attachment 1 Docket Nos. 50-247 & 50-286 Page 6 of 33 Table I IP2 Mean PDR and OECR Using Year 2000 Meteorological Data Offsite Population Offsite Population Economic Dose Risk Economic Release Frequency Dose Conm (PDR) Cost Mode (/yr) (person-sv)* Cost (person- -Risk (OECR) rem/yr) ($/yr)

NCF 1.19E-05 4.75E+01 9.98E+04 5.64E-02** 1.18E+00 EARLY HIGH 6.50E-07 6.51 E+605 2.05E+1 1 4.23E+01 -1.33E+05 EARLY MEDIUM 4.23E-07 1.94E+05 5.87E+10 8.21E+00 2.48E+04 EARLY LOW 1.11E-07 7.93E+04 6.39E+09 8.81E-01 7.10OE+02 LATE HIGH 6.88E-07 1.63E+05 4.64E+10 1,12E+01 3.19E+04 LATE MEDIUM 3.43E-06 6.87E+04 6.06E+09 2.36E+01 2.08E+04 LATE LOW 6.43E-07 1.61 E+04 6.59E+08 1.04E+00 4.24E+02 LATE LOWLOW 5.82E-08 1.38E+04 5.62E+08 8.04E-02 3.27E+01 Total 8.74E+01 2.12E+05

• lsv=100rem

• • 5.64E-02 (person-rem/yr) = 1.19E-05 (/yr) x 4.75E+01 (person-sv) x 100 (rem/sv)

Table 2 IP3 Mean PDR and OECR Using Year 2000 Meteorological Data Population Offsite Population Offsite Economic Release Frequency Dose Economic Dose Risk.

Mode (/yr) os Cost (PR) Cost (person-sv)* (person-* Risk (OECR)

_____($) rem/yr) ($/yr)

NCF 6.30E-06 8.04E+01 2.95E+05 5.06E-02** 1.86E+00 EARLY HIGH 9.43E-07 5.08E+05 1.70E+11 4.79E+001 1.60E+05 EARLY MEDIUM 1.24E-06 2OOE+05 5.55E+10 2.47E+01 6.87E+04 EARLY LOW 1.46E-07 5.21E+04 3.58E+09 7.59E-01 5.21 E+02 LATE HIGH 4.23E-07 1.63E+05 4.61E+10 6.89E+00 1.95E+04 LATE MEDIUM 2.01 E-06 6.85E+04 6.06E+09 1 37E+01 1.22E+04 LATE LOW 3.75E-07 1.61 E+04 6.58E+08 6.03E-01 2.47E+02 LATE LOWLOW 5.66E-08 1.38E+04 5.62E+08 7.81E-02 ý 3.18E+01 Total 9.48E+01 2.61E+05

• lsv= 100rem

• • 5.06E-02 (person-rem/yr) = 6.30E-06 (/yr) x 8.04E+01 (person-sv) x 100 (rem/sv)

NL-09-165 Attachment 1 Docket Nos. 50-247 & 50-286 Page 7 of 33 Table 3 Breakdown of Population Dose by Containment Failure Mode IP2 IP3 Containment Failure Population Percent Population -Percent Mode Dose Dose (person-remyr) C(person-rem/yr) Contribution Intact containment 0.06 0.06% 0.05 0.05%

Basemat melt-through 4.08 4.67% 2.42 2.56%.

Gradual overpressure 28.27 32.35% 16.78 17.70%

Late hydrogen bums 3.55 4.07% 2.11 2.23%

Early hydrogen burns 8.64 9.89% 3.16 3.33%

In-vessel steam explosion 0.57 0.65% 0.21 0.22%

Ex-vessel steam explosion 0.0027 0.00% 0.0010. 0.00%

Vessel overpressure 4.10 4.69% 1.50 1.58%

Containment isolation 0.0375 0.04% 0.0137 0.01%

ISLOCA 6.61 7.57% 4.18 4,41%

SGTR 31.46 36.00% 64.35 67.89%

Total 87.4 100 94.8 100

[5] Updated Cost Benefit Analysis Results The cost benefit reanalysis was performed using the MACCS2 results for year .2000. The.

results are reported in Table 4 for IP2 and in Table 5 for IP3. The assumptions used to determine the change in plant risk that could be realized by implementation of each of the SAMAs originally described in Sections E.2.3 and E.4.3 of the ER and subsequent RAI responses were not altered in this reanalysis. Therefore, the CDF reduction for each SAMA has not been repeated in the tables. The benefit values account for risk reduction in both internal and external events (using multipliers described in Section 4.21.5.4 of the ER) and include the economic impact of lost tourism and business following a severe accident (as discussed in Section [3]). The benefit with uncertainty values account for analysis uncertainties (using.

multipliers described in Section 4.21.5.4 of the ER). Except as noted with "t" and as described in Section (6], the estimated cost values for SAMA candidates are the same as those reported previously (in Tables E.2-2 and E.4-2 inthe ER and References 2 and 3).

[6] Revised Cost Estimates As described in Sections E.2.3 and E.4.3 of the ER, the original SAMA implementation costs were conceptually estimated to the point where conclusions regarding the economic viability of the proposed modification could be adequately gauged. Specifically, in the original analysis, the initial cost. estimate for each SAMA was obtained by applying engineering judgment to determine if the implementation cost was clearly in excess of the estimated attainable benefit or by applying an existing estimate from a previous SAMA analysis. The engineering judgment cost estimates were conservative i.e. minimum or low cost estimates to implement the SAMA.

NL-09-165 Attachment 1 Docket Nos. 50-247 & 50-286 Page 8 of 33 A SAMA that appeared to be cost beneficial with the initial implementation cost estimate was subjected to successively more comprehensive and more precise cost estimating to determine if.

the SAMA was indeed potentially cost beneficial. Only the final cost estimate for each SAMA was reported in the ER.

This method of cost estimating is consistent with NEI 05-01 guidance which states the following.

"As SAMA analysis focuses on establishingthe economic viability of potential plant enhancement when compared to attainablebenefit, often detailed cost estimates are not required to make informed decisions regardingthe economic viability of a particular modification. SAMA implementation costs may be clearly in excess of the attainable benefit estimated from a particularanalysis case. For less clear cases, engineering judgment may be applied to determine if a more detailed cost estimate is necessary to formulate a conclusion regardingthe economic viability of a particularSAMA.

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.

Forhardware modifications, the cost of implementation may be established from existing estimates of similarmodifications from previously performed SAMA and SAMDA analyses."

Comparison of Tables 4 and 5 with the tables provided in response to RAI 4e (Reference 2) shows that the benefit obtained from each of the SAMAs (except those with no benefit) has increased in the reanalysis. Consistent with the approach described in NEI 05-01 and used'in the original analysis, SAMAs in the reanalysis that appeared to be cost beneficial with the new benefit estimate and the old implementationcost estimate were subjected to more comprehensive and precise cost estimating techniques to determine if they are indeed potentially cost beneficial. The cost estimates for SAMAs noted with "t" in Table 4 and Table 5 are those that were developed in more detail.

For example, in the reanalysis, IP3 SAMA 040, "Provide automatic nitrogen backup to steam generator atmospheric dump valves," was estimated to have a benefit with uncertainty of

$344,225 (see Table 5). If this benefit is compared to the original cost estimate of $214,000, IP3 SAMA 040 appears cost beneficial. A more comprehensive plant-specificcost estimate was performed to determine if IP3 SAMA 040 is indeed potentially cost beneficial. This more comprehensive estimate concluded that a modification to provide automatic nitrogen backup to the steam generator atmospheric dump valves at 1P3 would actually cost approximately

$950,000 (see Table 5). Since this value is greater than the revised benefit with uncertainty, 1P3 SAMA 040 is not potentially. cost beneficial.

Also, in the reanalysis IP2 SAMA 062, "Provide a hard-wired connection to an SI pump from ASSS power supply," was estimated to have a benefit with uncertainty of $1,789,822 (See Table 4). If this benefit is compared to the original cost estimate of $722,000, IP2 SAMA 062 appears cost beneficial. The original cost estimate was reviewed and found to have conservatively not included some of the expenses necessary to implement the modification.

Therefore, a more comprehensive cost estimate was performed to determine if this SAMA is indeed potentially cost beneficial. This estimate concluded that a modification to provide a hard-wired connection to a. safety injection pump from an alternate safe shutdown system power

NL-09-165 Attachment 1 Docket Nos. 50-247 & 50-286 Page 9 of 33 supply would actually cost approximately $1,500,000 (See Table 4). Since the more comprehensive cost estimate is still smaller than the revised benefit, IP2 SAMA 062 is-potentially cost beneficial following the reanalysis.

Entergy's standard process for development of conceptual level project estimates was followed for the new, more comprehensive SAMA implementation cost estimates. The estimates capture anticipated expenses by identifying all parts of the organization that must support the proposed SAMA modification from the conceptual perspective. Typical expenses associated with project cost estimating include calculations, drawing updates, specification updates, bid evaluations, contract issuance, design package preparation, walkdowns, planning and scheduling, estimating, procurement, configuration management, as-low-as-reasonably-achievable (ALARA), quality control and quality assurance, training, simulator changes, information technology, design basis update, construction, multi-discipline and independent review of design concepts and calculations, 50.59 review, final safety analysis report (FSAR) update, cost control, contingency, security, procedures, post work testing, and project management and close-out. In addition, the project cost estimates include corporate indirect charges.

NL-09-165 Attachment 1 Docket Nos, 50-247 & 50-286 Page 10 of 33 Table 4 Results of Cost Benefit Analysis of IP2 SAMA Candidates Risk Reduction Benefit with IP2 Phase IISAMA (%)j Benefit Uncertainty EsiaeCotonlin PDR OECR ______

001 - Create an independent RCP seal 1.60% 1.42% $374,757 $788,963 $1,137,000 Not cost injection system with a effective dedicated diesel.

002 - Create an independent RCP seal 1.49% 1.42% $350,396 $737,676 $1,000,000 Not cost injection system without a effective dedicated diesel.

003 - Install an additional Not cost 0.00% 0.00% $0 $0 $1,500,000 Notect CCW pump. ___ _______________effective 004 - Enhance procedural Not cost guidance for use of 0.23% 0.00% $48,723 $102,574 $1,750,000 effective service water pumps.

005 - Improve ability to cool the RHR heat Not cost exchangers by allowing 0.34% 0.47% $105,892 $222,931 $565,000 effective manual alignment of the fire protection system. ....

006 - Add a diesel building 0.110/ Not cost high temperature alarm. 0 0.07% $30,496 $64,202 $274,000 effective 007 - Install a filtered containment vent to 16.70% 6.13% $1,725,939 $3,633,555 $5,700,000 Not cost provide fission product 6 effective scrubbing.

NL-09-165 Attachment 1 Docket Nos. 50-247 & 50-286 Page 11 of 33 Table 4 Results of Cost Benefit Analysis of IP2 SAMA Candidates Risk Reduction Benefit with 1P2 Phase SARMdA R uci) Benefit Uncertainty Estimated Cost Conclusion PDR OECRUnetny 008 - Create a large concrete crucible with heat removal potential $13,363,217 $108000000 Not cost under the base mat to 47.03% 34.43% $6,347,528 effective contain molten core debris.I 009 cavity- Create a reactor flooding system., 47.03% 34.43% i $6,347,528 63758 $13,363,217 $4,100,000t Retain

$33327 $,0,0t Rti 010 - Create a core melt 47.03% 34.43% $6,347,528 $13,363,217 $90,000,000 Not cost source reduction system. effective 011 - Provide a means to Not cost inert17.51% 21.23% $3,091,966 $6,509,402 $10,900,000 effective 012- Use the fire protection system as a Not cost backup source for the 0.00% 0.00% $0 $0 $565,000 effective containment spray system.  :

013 - Install a passive Not cost containment spray 0.00% 0.00% $0 $0 $2,000,000 effective system.

014 - Increase the depth of the concrete base mat or use an alternative 1Not cost concrete material to 11.56% 4.25% $1,194,251 $2,514,214 >$5,000,000 effective ensure melt-through does not~occur.

NL-09-165 Attachment 1 Docket Nos. 50-247 & 50-286 Page 12 of 33 Table 4 Results of Cost Benefit Analysis of IP2 SAMA Candidates Risk Reduction Benefitwith IP2 Phase IISAMA Benefit Uncertainty Estimated Cost Conclusion PDR OECR 015 - Construct a building connected to primary 40.50% 35.38% $5,963,077 $12,553,847 $61,000,000 Notcost containment that is effective maintained at a vacuum.

016 - Install a redundant Not cost containment spray 0.00% 0.00% $0 $0 $5,800,000 effective system.

017 - Erect a barrier that provides containment liner Not cost protection from ejected 10.07% 11.79% $1,742,298 $3,667,996 $5,500,000t effective core debris at high pressure.

018 - Install a highly reliable steam generator shell-side heat removal 0.46% 0.47% $73,618 $154,986 $7,400,000 effecost system that relies on 0 effective natural circulation and stored water sources.

019 - Increase secondary side pressure capacity Not cost such that a SGTR would 30.21% 39.15% $5,594,541 $11,777,981 >$100,000,00Ot effectiye not cause the relief valves to lift.

NL-09-165 Attachment 1 Docket Nos. 50-247 & 50-286 Page 13 of 33 Table 4 Results of Cost Benefit Analysis of IP2 SAMA Candidates Risk Reduction Benefit with IP2 Phase IISAMA (%) Benefit Uncertainty Estimated Cost Conclusion

• PDR OECR Uncertainty 020 - Route the discharge from the main steam safety valves through a Not cost structure where a water, 2.97% 4.25% $580,766 $1,222,665 $97000 effective spray would condense the steam and remove most of the fission products.

021 - Install additional pressure or leak monitoring 11.33% 14.62% $2,093,852 $4,408,109 $3,200,000t Retain instrumentation for ISLOCAs. _

022 - Add redundant and diverse limit switches to 5.72% 755% $1,071,465 $2,255,716 $2,200,000t Retain each containment (New) isolation valve.

023 - Increase leak testing Not cost of valves in ISLOCA 5.72% 7.55% $1,071,465 $2,255,716 $7,964,000 effective paths.

024 - Ensure all ISLOCA Not cost releases are scrubbed. 11.33% 14.62% $2,093,852 $4,408,109 $9,700,000 effective 025 - Improve MSIV 0/ $122,697 $258,310 $476000 Not cost design..0.57o 0.94% $ , effective 026 - Provide additional Not cost DC battery capacity. 0.23% 0.00% $48,723 $102,574 >$1,875,000 effective 027 - Use fuel cells instead of lead-acid 0.23% 0.00% $48,723 $102,574 $2,000,000 effect batteries.

NL-09-165 Attachment 1 Docket Nos. 50-247 & 50-286 Page 14 of 33 Table 4 Results of Cost Benefit Analysis of IP2 SAMA Candidates Risk Reduction Benefit with IP2 Phase IISAMA (%_ BBenefitBnefit Estimated Cost Conclusion PDR OECR PDR OECRUncertainty 028 - Provide a portable diesel-driven battery 9.38% 7.08% $1,357,046 $2,856,939 $938,000t Retain charger.

029 - Increase/improve 023% 000% $48723 $102,574 $460,000t Not cost DC bus load shedding. 0._3% $,2$257$6,0 _0% effective 030 - Create AC power Not cost cross-tie capability with 0.23% 0.00% $56,813 $119,607 $1,156,000 effective other unit.

031 - Create a backup Not cost source for diesel cooling 0.23% 0.00% $40,632 $85,541 $1,700,000 effective (not from existing system).

032 - Use fire protection Not cost system as a backup 0.23% 0.00% $40,632 $85,541 $497,000 effective source for diesel cooling.

033 - Convert under-voltage AFW and reactor v se Not cost protective signals actuation system from 2-:efctv 0.00% 0.00% $0 $0 $1,254,000 effective out-of-4 to 3-out-of-4 logic.

034 - Provide capability Not cost for diesel-driven, low 0.06% 0.05% $8,180 $17,221 >$632,000 effective

.pressure vessel makeup.

035 - Provide an '

additional high pressure 0.34% 0.47% $73,529 $154,798 $5,000,000 Not cost injection pump with effective independent diesel.

NL-09-165 Attachment 1

,Docket Nos. 50-247 & 50-286 C Page 15 of 33 Table 4 Results of Cost Benefit Analysis of IP2 SAMA Candidates Risk Reduction IP2 Phase IISAMA Benefit Benefit with Estimated Cost Conclusion PDR OECR POR "". OECRUncertainty 036 - Create automatic swapove to eciculaionNot cost swap-over to recirculation 0.46% 0.47% $138,344 $291,251 >$1,000,000 effective cooling upon RWSTefctv depletion.

037 - Provide capability Not cost for alternate injection via 0.06% 0.05% $8,180 $17,221 $750,000 effective diesel-driven fire pump.

038 - Throttle low pressure injection pumps earlier in medium or large- Not cost break LOCAs to maintain 0.11% 0.07% $22,405 $82,000-reactor water storage tank inventory.

039 - Replace two of three moto-drven I pmpsNot cost motor-driven Sl pumps 0.34% 0.47% $73,529 $154,798 $2,000,000 effective with diesel-poweredefctv pumps.

040 - Create/enhance a Not cost reactor coolant 3.20% 3.77% $572,408 $1,205,070 $2,000,000t effective depressurization system.

041 - Install a digital feed " Not cost wae prd.0.92% 0.47% $179,154 $3771167 $900,000 efctv wae pgae effective 042 - Provide automatic nitrogen backupto.steam 0.Not cost generator atmospheric 0.23% 0.% $16,360 $34,441 $214,000 effective dump valves.

043- Add a motor-driven Not cost feed water pump. 0.92% 0.47% $179,154 $377,167 $2,000,000 effective

NL-09-165 Attachment 1 Docket Nos. 50-247 & 50-286 Page 16 of 33 Table 4 Results of Cost Benefit Analysis of IP2 SAMA Candidates Risk Reduction Benefit with IP2 Phase IISAMA (%) Benefit Uncertainty Estimated Cost Conclusion PDR OECR Unerait 044 - Use fire water system as backup for 14.19% 9.91% $2,350,530 $4,948,485 $1,656,000 Retain steam generator inventory.

045 - Replace current pilot operated relief valves with larger ones such that only 332% 1.89% $667806 $1,405907 $2700000 Not cost one is required for effective successful feed and bleed.

046 - Modify emergency operating procedures for Not cost ability to align diesel 0.00% 0.00% $0 $0 $82,000 effect effective power to more air compressors.

047 - Add an independent Not cost boron injection system. 0.00% 0.00% $0. $0 $300,000 effective 048 - Add a system of relief valves that prevent 0.46% 0.47% $105,981 $223,119 $615,000 Not cost equipment damage from a pressure spike during an ATWS.

049 - Install motor Nto generator set trip breakers 0.23%' 0.00% $32,541 $68,508 $716,000 effective effective in control room.

NL-09-165 Attachment 1 Docket Nos. 50-247 & 50-286 Page 17 of 33 Table 4 Results of Cost Benefit Analysis of IP2 SAMA Candidates Risk Reduction Benefit with IP2 Phase IISAMA _ %_ Benefit Uncertainty Estimated Cost Conclusion PDR OECR 050 - Provide capability to remove power from the 0.23% 0.00% $32,541 $68,508 $90,000 Not cost bus powering the control effective rods.

051- Provide digital large Not cost break LOCA protection. 0.00% 0.00% $0 $0 $2,036,000 effective 052 - Install secondary Not cost side guard pipes up to the 1.72% 1.89% $294,384 $619,756 $1,100,000 effective MSIVs. efeciv 053 - Keep both pressurizer PORV block 3.32% 1.89% $659,715 $1,388,873 $800,000 Retain valves open.

054 - Install flood alarm in the 480V switchgear 39.24% 28.77% $5,591,781 $11,772,170 $200,000 Retain room.

055 - Perform a hardware modification to allow high- Not cost head recirculation from 0.00% 0.00% $0 $0 $1,330,000 either RHR heat effective exchanger.

056 - Keep RHR heat exchanger discharge 0.23% 0.00% $48,723 $102,574 $82,000 Retain motor operated valves (MOVs) 057 - Prvdnormally open.

CpwrNot cost 057 fProvide DC power 0.46% 0.47% $89,800 $189,052 $376,000 effective

-backup for the PORVs. __________________________ effective

NL-09-165 Attachment 1 Docket Nos, 50-247 & 50-286 Page 18 of 33 Table 4 Results of Cost Benefit Analysis of IP2 SAMA Candidates Risk Reduction IP2 Phase II SAMA ____%) Benefit Benefit with Estimated Cost Conclusion PDR OECR Uncertainty 058 - Provide procedural guidance to allow high- Not cost 0.00% 0.00% $0 $0 $82,000 effective head recirculation from e either RHR heat exchanger.

059 - Re-install the low pressure suction trip on the AFW pumps and 0.23% 0.00% $24,450 $51,474 $318,000 Not cost enhance procedures to effective respond to loss of the normal suction path.

060 - Provide added protection against flood propagation from 8.92% 6.60% $1,275,337 $2,684,920 $216,000 Retain stairwell 4 into the 480V switchgear room.

061 - Provide added protection against flood propagation from the 19.34% 14.15% $2,754,991 $5,799,982 $192,000 Retain deluge room into the 480V switchgear room.

062 - Provide a hard-wired connection to an Retain wired fron to a 6.06% 4.25% $850,165 $1,789,822 $1,500,000t (New)

SI pump from ASSS power supply. _______ _________ _______ I_______

NL-09-165 Attachment 1 Docket Nos. 50-247 & 50-286 Page 19 of 33 Table 4 Results of Cost Benefit Analysis of IP2 SAMA Candidates Risk Reduction IP2 Phase IISAMA  % Benefit Benefit with Estimated Cost Conclusion OECR Uncertainty PDR 063 - Provide a water-tight door for additional $324,000 Not cost eotect 0.11% 0.00% *$32,452 $68,320 effective protection of the RHR pumps against flooding.

064 - Provide backup cooling water source for Not cost the CCW heat 0.23% 0.00% $40,632 $85,541 $710,000 effective exchangers.

065 - Upgrade the ASSS to allow timely restoration of seal 39.24% 28.77% $5,591,781 $11,772,170 $560,000 Retain injection and cooling.

066 - Harden the EDG building and fuel oil Not cost effective 6.19% $2,505,846 $5,275,465 $33,500,000t transfer pumps against 8.96%

tornados and high winds.

067 - Provide hardware connections to allow the Not cost primary water system to 0.02% 0e00% $9,727 $20,477 $576,000 efeciv c~oo the charging pumps.

068 - Provide independent source of cooling recirculation pumpfor the 0.06% 01.01% $13,408 $28,227 $710,000efctv Not cost motors.effective 1 Cost estimate revised from what was previously reported. -See Section [61 for more information.

NL-09-165 Attachment 1 Docket Nos. 50-247 & 50-286 Page 20 of 33 Table 5 Results of Cost Benefit Analysis of 1P3 SAMA Candidates Risk Reduction Benefit ith IP3 Phase IISAMA  %) PDR Benefit OECRUncertainty with Estimated Cost Conclusion PDR IOECR 001 - Create an independent RCP seal 0.74% 0.38% $236,610 $342,913 $1,137,000 Not cost injection system with a effective dedicated diesel.

002 - Create an independent RCP seal Not cost injection system without a 0.63% 0.38% $201,222 $291,626 $1,000,000 effective dedicated diesel.

003 - Install an additional Not cost CCW pump. 0.00% 0.00% $0 $0 $1,500,000 effective 004 - Improved ability to cool the RHR heat Not cost exchangers by allowing 0.53% 0.38% $130,575 $189,240 $565,000 effective manual alignment of the

.fire protection system.

005 - Install a filtered containment vent to Not cost provide fission product 9:60% 2.68% $1,497,163 $2,169,801 $5,700,000 effective scrubbing.

006 - Create a large concrete crucible with Not cost heat removal potential under the base mat to 24.16% 14.94% $5,038,071 $7,301,552 $108,000,000 Netfct underthe ase mt toeffective contain molten core debris.

NL-09-165 Attachment 1 Docket Nos. 50-247 & 50-286 Page 21 of 33 Table 5 Results of Cost Benefit Analysis of IP3 SAMA Candidates Risk Reduction Benefit with Estimated Cost Conclusion P3 Phase IISAMA .Benefit Uncertainty PDR OECR 007 - Create a reactor Retain cavity flooding system. 24.16% 14.94% $5,038,071 $7,301,552 $4,100,000t (New) 008 - Create a core melt Not cost source reduction system. 24.16% 14.94% $5,038,071 $7,301,552 $90,000,000 effective 009 - Provide means to 8.76% 9.20% $2,412,095 $3,495,790 $10,900,000 Not cost inert containment, 8.7%_.2%_2,1209 $3_95,90 $1,90,0 effective 010 - Use the fire protection system as a Not cost backup source for the 0.00% 0.00% $0 $0 $565,000 effective containment spray system.

011 - Install a passive Not cost I containment spray 0.00% 0.00% $0 $0 $2,000,000 effective system.

012 - Increase the depth of the concrete base mat or use an alternative

• Not cost concrete material to 5.59% 1.53% $867,404 $1,257,107 >$5,000,000 effective ensure melt-through does not occur.

013 - Construct a building connected to primary $61000000 Not cost containment that is 21.73% 15.71% $4,883,602 $7,077,683 effective maintained at a vacuum.

014 - Install a redundant Not cost containment spray 0.00% 0.00% $0 $0 $5,800,000 effective system, effective

NL-09-165 Attachment 1 Docket Nos. 50-247 & 50-286 Page 22 of 33 Table 5 Results of Cost Benefit Analysis of IP3 SAMA Candidates Risk Reduction P3 Phase 11SAMA ) benefit w Estimated Cost Conclusion OECR Uncertainty PDR 015 - Erect a barrier that provides containment liner Not cost protection from ejected 4.32% 4.21% $1,140,695 $1653,182 $5,500,000t effective core debris at high pressure.

016 - Install a highly reliable steam generator shell-side heat removal 5.27%. 4.98% $1,401,717 $2,031,473 $7,400,000 Not cost system that relies on effective natural circulation and stored water sources.

017 - Increase secondary side pressure capacity Not cost such that an SGTR would 45.15% 53.64% $13,520,698 $19,595,215 >$100,000,00Ot otect not cause the relief valves effective to lift.

018 - Route the discharge from the main steam safety valves through a Not cost structure where a water 11.08% 13.41% $3i327,028 $4,821,779 $12,000,000t effective spray would condense the steam and remove most of the fission products.

019 - Install additional pressure or leak Retain monitoring 7.07% 8.43% $2,126,663 $3,082,120 $2,800,000t (New) instrumentation for ISLOCAs.

NL-09-165 Attachment 1 Docket Nos. 50-247 & 50-286 Page 23 of 33 Table 5 Results of Cost Benefit Analysis of IP3 SAMA Candidates Risk Reduction Benefit with Estimated Cost Conclusion IP3 Phase IISAMA (%) Benefit Uncertainty PDR OECR 020 - Add redundant and diverse limit switches to 3.59% 4.21% $1,069,272 $1,549,670 $4,000,000t effecost each containment 3 effective isolation valve.

021 - Increase leak testing Not cost of valves in ISLOCA 3.59% 4.21% $1,069,272 $1,549,670 $10,604,000 effective paths.

022 - Ensure all ISLOCA Ntcs releases are scrubbed. 7,07% 8.43% $2,126,663 .$3,082,120 $9,700,000 Not cost releases___ are__scrubbed._ effective 023 - Improve MSIV 0Not cost design. 0.00% 0.00% $0 $0 $476,000 effective 024 - Provide additional -Not cost DC battery capacity. 0.11% 0.00% $47,141 $68,320 >$1,875,000 effective 025 - Use fuel cells instead of lead-acid 0.11% 0.00% $47,141 $68,320 '$2,000,000 Notcost batteries. effectiv 026 - Increase/improve Not cost DC bus load shedding. 0.11% 0.00% $47,141 $68,320 $460,O0t effective 027 - Create AC power cross-tie capability with 0.11% 0.00% $70,647 $102,387 $1,156,000 Not cost other unit. effective 028 - Create a backup source for diesel cooling 0.03% 0.00% $15,318 $22,199 $1,700,000 Not cost (not from existing system). __effective 029 - Use fire protection N system as a backup 0.03% 0.00% $15,318 $22,199 $497,000 Not cost source for diesel cooling. effective

NL-09-165 Attachment 1 Docket Nos. 50-247 & 50-286 Page 24 of 33 Table 5 Results of Cost Benefit Analysis of IP3 SAMA Candidates Risk Reduction Benefit with IP3 Phase IISAMA Benefit Uncertaintyh Estimated Cost Conclusion PDR OECR) Uncertai 030 - Provide a portable Not cost diesel-driven battery 0.95% 0.38% $213,363 $309,222 $938,000t effective charger.

031 - Convert under-voltage, AFW and reactor.Ntcs protective system 0.53% 0.38% $118,822 $172,206 $1,254,000 Notecost effective actuation signals from 2-out-of-4 to 3-out-of-4 logic.

032 - Provide capability Not cost for diesel-driven, low 0.21% 0.00% $23,764 $34,441 >$632,000 effective pressure vessel makeup..

033 - Provide an additional high pressure 0.42% 0.38% $118,693 $172,019 $5,000,000 Notcost injection pump with effective independent diesel. __._ _

034 - Create automatic swap-over to recirculation 1.27% 0.77% $530,551 $768,914 >$11,000,000 effective Not cost upon RWST depletion.

035 - Provide capability Not cost for alternate injection via 0.21% 0.00% $23,764 $34,441 $750,000 effective diesel-driven fire pump.

036 - Throttle low pressure injection pumps earlier in medium or large- $82,000 Not cost break LOCAs to maintain 0.00% 0.00% $11,753 $17,033 effective reactor water storage tank inventory.

NL-09-165 Attachment 1 Docket Nos. 50-247 & 50-286 Page 25 of 33 Table 5 Results of Cost Benefit Analysis of IP3 SAMA Candidates Risk Reduction IP3 Phase IISAMA RiskBenefit Benefit with Estimated Cost Conclusion P OER Benefit Uncertainty PýDR OECR____ ___

037 - Replace two of three motor-driven SI pumps 0.42% 0.38% $118,693 $172,019 $2,000,000 Not cost with diesel-powered effective pumps.

038 - Create/enhance a Not cost reactor coolant 0.95% 0.77% $237,516 $344,225 $4,600,000 effective depressurization system.

waeruprae.0.95%

039 - Install a digital feed 0.00% $271,481 $393,450 $900,000

$0,0 Not fetvcost water upgrade. -____effective 040 - Provide automatic nitrogen backup to steam 0.95% 0.77% $237,516 $344,225 $950,000t Not cost generator atmospheric effective dump valves.

041 - Add a motor-driven 0.95% 0.00% $271,481 $393,450 $2,000,000 Not cost feedwater pump. effective 042 - Provide hookup for portable generators to Not cost power the turbine-driven 0.11% 0.00% $47,141 $68,320 $1,072,000 Notect AFW pump after station batteries are depleted.

043 - Use fire water system as backup for 1.58%/ 1.15% $450,490 $652,885 $1,656,000 Not cost steam generator effective inventory. .__ _

NL-09-165 Attachment 1 Docket Nos. 50-247 & 50-286 Page 26 of 33 Table 5 Results of Cost Benefit Analysis of IP3 SAMA Candidates Risk Reduction Benefit with IP3 Phase 11SAMA Renk Rd Benefit U ity Estimated Cost Conclusion OECR Uncertainty PDR 044 - Replace current pilot operated relief valves with larger ones such that only 4.759 4.21% $1,246,989 $1,807,230 $2,700,000 Not cost one is required for effective successful feed and bleed.

045 - Add an independent rNot cost boron injection system. effective 046 - Add a system of relief valves that prevent Not cost equipment damage from a 0.74% 0.00% $224,210 $324,943 $615,000 effective pressure spike during an ATWS.

047 - Install motor Not cost generator set trip breakers 0.11% 0.00% $35,388 $51,287 $716,000 effective in control room. effective 048 - Provide capability to remove power from the $51,287 $90,000" Not cost bus powering the control 0.11% 0.00% $35,388 effective rods.

049 - Provide digital large 0.00% 0.00% $0 $2,036,000 Not cost break LOCA protection. 0.00%__.00%_$0_$0_$2,036,000_effective 050 - Install secondary Not cost side guard pipes up to the 9.07% 8.81% $2,447,095 $3,546,515 $9,671,000t effective MSIVs.

051 - Operator action: Not cost Align main feedwater for 0.11% 0.00% $23,635 $34,254 $55,000 effective secondary heat removal, --------------------

NL-09-165 Attachment 1 Docket Nos. 50-247 & 50-286 Page 27 of 33 Table 5 Results of Cost Benefit Analysis of IP3 SAMA Candidates Risk Reduction Benefit with IP3 Phase IISAMA _ %_ Benefit Uncertainty Estimated Cost Conclusion PDR OECR 052 - Open city water supply valve for 1.05% 0.77% $249,398 $361,446 $50,000 Retain alternative AFW pump suction.

053 - Install an excess flow valve to reduce the 2.07% 1.51% $498,795 $722,892 $228,000 Retain risk associated with1.5% $9,5$7282Rti hydrogen explosions.

054 - Provide DC power Not cost backup for the PORVs. 0.00% 0.00% $0 $0 $376,000 effective 055 - Provide hard-wired connection to a SI or RHR pump from the 18.35% 11.49% $4,073,152 $5,903,118 $1,288,000 Retain Appendix R bus (MCC 312A).

056 - Install pneumatic controls and indication for 0.11% 0.00% $47,141 $68,320 $982,000 Not cost the turbine-driven AFW effective pump.

057- Provide backup cooling water source for 0 Not cost the CCW heat 0.21% 0.00% $59,023 $85541 $109,000 effective exchangers.

058 - Provide automatic 0.21% 0.00% $94,282 $136,640 $1,868,000 Not cost DC power backup. 0 0$ effective

NL-09-165 Attachment 1 Docket Nos.. 50-247 & 50-286 Page 28 of 33 Table 5 Results of Cost Benefit Analysis of IP3 SAMA Candidates Risk Reduction Benefit with IP3 Phase IISAMA (%j Benefit Uncertainty Estimated Cost Conclusion PDR OECR 059 - Provide hardware connections to allow the 0.00% 0.00% $0 $0 $576,000 Not cost primary water system to effective cool the charging pumps.

060 - Provide independent Not cost source of cooling for the 0.00% 0.00% $0 $0 $710,000 effective recirculation pump motors.

061 - Upgrade the ASSS to allow timely 19.73% 12.26% $4,359,371 $6,317,929 $56.0,000 Retain restoration of seal injection and cooling.

062 - Install flood alarm in the 480 VAC 19.73% 12.26% $4,359,371 $6,317,929 $196,800 Retain switchgear room.

IP3 SAMA 048 - Cost as corrected in response to RAI 4e (Reference 2)

Cost estimate revised from what was previously reported. See Section [6] for more information.

NL-09-165 Attachment 1 Docket Nos. 50-247 & 50-286 Page 29 of 33

[7] Main Steam Safety Valve Gagqing SAMA (Updated Response to Round 2 RAI 6)

The benefit associated with installing a device to gag a stuck-open main steam safety valve following a. steam generator tube rupture (SGTR) was originally assessed in response to Round 2 RAI 6 (Reference 3). In that response, the estimated benefit with uncertainty assuming-that this SAMA is fully successful in preventing all thermally-induced steam generator tube ruptures was almost $3 million for IP2 and over $4 million for IP3. As indicated inthat response, with an estimated cost of $50,000, this additional SAMA is potentially cost beneficial and it has been submitted for engineering project cost benefit analysis for more detailed examination of viability and implementation cost. With the revised meteorological input data used for the SAMA reanalysis, the total benefit of this SAMA is now estimated to be about $13 million for IP2 and $19 million for IP3.

[8] TI-SGTR Sensitivity Analysis (Revised Response to Round 2 RAJ 5)

In response to Round 2 RAI 5 (Reference 3), a sensitivity study was performed to determine the impact of applying values derived from NUREG-1570. The TI-SGTR sensitivity study was performed again, as described below, to determine the impact of applying NUREG-1570 values to the SAMA reanalysis and provide an updated response to Round 2 RAI 5.

The full lists of IP2 and IP3 Phase II SAMAs were reviewed for impact. Of those, the following twenty-seven IP2 SAMAs and twenty-two IP3 SAMAs were identified as potentially impacted by the TI-SGTR assumption.

IP2 SAMAs: 1,6, 18, 19, 20, 25, 26, 27, 28, 29,30, 31, 32, 35, 39, 40, 42, 44, 46, 52, 54, 59, 60,61,62,65,66 IP3 SAMAs: 1, 16, 17, 18, 23, 24, 25, 26, 27, 28, 29, 30, 33, 38, 40, 42, 43, 55;56, 58, 61, 62 Since IP2 SAMAs 28, 44, 54, 60, 61, 62 and 65 and IP3 SAMAs 55, 61 and 62 were previously determined to be potentially cost beneficial, they were not re-evaluated. Of the remaining SAMAs, those for which the implementation cost outweighed the benefit by less than a factor of five were re-evaluated. This screening criterion was applied to facilitate the re-evaluation by limiting it to those potentially impacted SAMA candidates with a realistic possibility of becoming cost beneficial. The appropriateness of this screening criterion is justified by the fact that only one of the twelve SAMAs evaluated was found to be potentially cost beneficial following this conservative sensitivity analysis. See paragraph prior to Table 6 for discussion of conservatism.

The SAMAs re-evaluated were:

IP2 SAMAs: 1,6, 25, 29, 40, 52 IP3 SAMAs: 1, 16, 18, 30, 40, 43 The baseline case (Table 5.8 of NUREG-1570) associated with moderate tube degradation was used for this sensitivity study. The full conditional induced SGTR value (0.25) shown for that case was used. The NUREG-1570 conditional probability was applied to all high/dry sequences in the Level 2 model for each unit; in both station blackout and transient sequences; The benefit values in this sensitivity analysis included the additional impact of the loss of tourism and business. Tables 6 and 7 show the values for the IP2 and IP3 SAMAs evaluated in this

NL-09 -165 Attachment 1 Docket Nos. 50-247 & 50-286 Page 30 of 33 sensitivity analysis. While the severe accident costs of both the baseline case and the individual SAMAs increased, the extent to which the revised TI-SGTR assumption impacted the benefit varied, based on the nature of the specific SAMA.

IP3 SAMA 18 was found potentially cost beneficial as a result of this sensitivity analysis.

Although the NUREG-1 570 baseline case values were used for thissensitivity analysis, the baseline case applies to a steam generator with a moderate flaw distribution. The IP2 and IP3 steam generators have been replaced and are being maintained in accordance with the stringent standards recommended by NEI 97-06. The IP2 and IP3 steam generators have only 0.19% and 0.12% of the tubes plugged, and would be classified as "pristine" in accordance with generic criteria established by Westinghouse for categorizing steam generator tube integrity.

Corrosion has not been observed in either the 1P2 or 1P3 steam generators. Therefore, use of the baseline case for this sensitivity study is conservative relative to application of the NUREG-1570 results for pristine generators (Table 5.8, Case 8).

Table 6 - IP2 TI-SGTR Sensitivity Results IP.2 Phase 11SAMA 001 - Create an independent RCP seal injection system with a dedicated diesel.

006 - Add a diesel building high temperature alarm.

025 - Improve MSIV design.

029 - Increase/improve DC bus load shedding.

040 - Create/enhance a reactor coolant depressurization system.

052 - Install secondary side guard pipes up to the MSIVs.

t Cost estimate revised from what was previously information.

NL-09-165 Attachment 1 Docket Nos. 50-247.& 50-286 Page 31 of 33 Table 7 - IP3 TI-SGTR Sensitivity Results Original TI-SGTR Revised IP3 Phase IISAMA Benefit with Benefit with Estimated Cost Conclusion Uncertainty Uncertainty 001 - Create an independent RCP seal $342,913 $480,678 $1,137,000 Not cost injection system with a effective dedicated diesel.

016 - Install a highly reliable steam generator shell-side Not cost heat removal system that $2,031,473 $2,289,783 $7,400,000 effective relies on natural circulation and stored water sources.

018 - Route the discharge from the main steam safety valves through a Retin structure where a water $4,821,779 $14,637,545 $12,000,000t (New) spray would condense the steam and remove most of the fission products.

030 - Provide a portable Not cost diesel-driven battery $309,222 $515,869 $938,000t ect charger. char er.effective 040 - Provide automatic nitrogen beeackup backup atmospeito steam $344,225 $447,549 $950,000t Not cost

.effective generator atmosphericefctv dump valves.

043 - Use fire water system as backup for steam $652,885 $825,091 $1,656,000 effective generator inventory. efIec tIv t Cost estimate revised from what was previously reported. See Section [6) for more information.

[9] Conclusion In the SAMA reanalysis using a conservatively representative, single year of meteorological data (2000), the following additional three SAMA candidates were found to be potentially cost beneficial for mitigating the consequences of a severe accident for IP2 (in addition to those previously designated as cost beneficial in Section 4.21.6 of the ER and References 2 and 3).

021 - Install additional pressure or leak monitoring instrumentation for interfacing system loss of coolant accidents (ISLOCAs) 022 - Add redundant and diverse limit switches to each containment isolation valve 062 - Provide a hard-wired connection to a safety injection (SI) pump from the alternate safe shutdown system (ASSS) power supply

NL-09-165 Attachment 1 Docket Nos. 50-247 & 50-286 Page 32 of 33 In the.SAMA reanalysis using a conservatively representative, single year of meteorological data, the following three SAMA candidates were found to be potentially cost beneficial for mitigating the consequences of a severe accident for IP3 (in addition to those previously designated as cost beneficial in Section 4.21.6 of the ER and References 2 and 3),

007 - Create a reactor cavity flooding system 018 - Route the discharge from the main. steam safety valves through a structure where a water spray would condense the steam and remove most of the fission products (cost beneficial in TI-SGTR sensitivity in Section [8]) -

019 - Install additional pressure or leak monitoring instrumentation for ISLOCAs As described in the aging management review results for the integrated plant assessment presented in Sections 3.1 through 3.6 of the license renewal application, IP2 and IP3 have programs for managing aging effects for components within the scope of license renewal (Reference 1). Since these programs are sufficient to manage the effects of aging during the license renewal period without implementation of the above SAMA candidates for IP2 and IP3, these potentially cost beneficial SAMAs need not be implemented as part of license renewal pursuant to 10 CFR Part 54. However, consistent with those SAMAs identified previously as cost beneficial, the above potentially cost beneficial SAMAs have been submitted for engineering project cost benefit analysis.

Since some of the potentially cost beneficial SAMAs address the same risk contributors, implementation of an optimal subset of these SAMAs could achieve a large portion of the total risk reduction at a fraction of the cost, and render the remaining SAMAs no longer cost beneficial.

IP2 SAMAs 54, 65, and the main steam safety valve gagging SAMA have the highest priority for implementation due to their potential for significant risk reduction and relatively low implementation cost (cost estimate is less than 20% of the benefit with uncertainty). SAMAs 9, 21, 28, 44, 53, and 56 would have second priority based on their potential for risk reduction and their mitigation of plant risk contributors not addressed by the highest priority SAMAs. The remaining potentially cost beneficialFSAMAs (22, 60, 61, and 62) are considered lowest priority because their benefit and cost estimates are similar or because their benefit is expected to be reduced significantly if the higher priority SAMAs are implemented.

IP3 SAMAs 52, 61, 62, and the main steam safety valve gagging SAMA have the highest priority for implementation due to their potential for significant risk reduction and relatively low implementation cost (cost estimate is less than 20% of the benefit with uncertainty). SAMAs 7, 53, and 55 would have second priority based on their potential for risk reduction and their mitigation of plant risk contributors not addressed by the highest priority SAMAs. The remaining potentially cost beneficial SAMAs (18 and 19) are considered lowest priority because their benefit and cost estimates are similar or because their benefit is expected to be reduced significantly if the higher priority SAMAs are implemented.

NL-09-165 Attachment 1 Docket Nos. 50-247 & 50-286 Page 33 of 33

[10) MACCS2 Input Files The following MACCS2 input files, used in the analysis described above, are provided in electronic format.

Filename Description siteiec.inp site input file with loss of tourism and business metiO0.inp meteorological data for year 2000 chrbiec.inp chronc input file with loss of tourism and business earbi-noE.inp early input file atmbi2ns.inp atmos input file for IP2 atmbi3ns.inp atmos input file for IP3-

[11] References

1. Entergy Letter NL-07-039, Indian Point Energy Center License Renewal Application, April 23, 2007,

2. Entergy Letter NL-08-028, Reply to Request for Additional Information Regarding License Renewal Application - Severe Accident Mitigation Alternatives Analysis, February 05, 2008

3. Entergy Letter NL-08-086, Supplemental Reply to Request for Additional Information Regarding License Renewal Application - Severe Accident Mitigation Alternatives Analysis, May 22, 2008

4. NEI 05-01, Severe Accident Mitigation Alternatives (SAMA) Analysis Guidance Document [Revision A], November 2005

5. Entergy Letter NL-09-151, Entergy Nuclear Operations Inc. Telephone Conference Call Regarding Met Tower Data for SAMA Analysis Indian Point Nuclear Generating Unit Nos. 2 & 3, November 16, 2009

6. Procedures for Substituting Values for Missing NWS Meteorological Data for Use in Regulatory Air Quality Models, Dennis Atkinson and Russell F. Lee, July 7, 1992

[May be found on the "Meteorological Guidance" page at epa.gov.]

7. Severe Accident Mitigation Alternatives Analysis Applicant's Environmental Report for License Renewal, Calvert Cliffs Nuclear Power, April 1998.

Contention 35/36 Attachment 15 LIC-202, Rev. 2 Change to Procedures for Managing Plant-Specific Backfits and 50.54(f) Inforniation Requests NRC Staff (May 17, 2010)

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C, U.S. Nuclear Regulatory Commission 0

Office of Nuclear Reactor Regulation

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NRR OFFICE INSTRUCTION Change Notice Office Instruction No.: LIC-202, Revision 2 Office Instruction

Title:

Procedures for Managing Plant-Specific Backfits and 50.54(f) Information Requests Effective Date: May 17, 2010 Approved By: Timothy McGinty Date Approved: May 12, 2010 Primary

Contact:

Andrea Russell 301-415-8553 Andrea.Russell(dnrc.aov Responsible Organization: NRR/DPR/PGCB Summary of Changes: This is Revision 2 of LIC-202, "Procedures for Managing Plant-Specific Backfits and 50.54(f) Information Requests," which is revised to update the primary contact, correct language and formatting errors, clarify the staff process for identifying, determining, resolving, and implementing plant-specific backfits, and provide circumstances where the staff may limit or prohibit discussion of the staffs position that constitutes the potential backfit with the licensee, prior to the backfit determination.

Training: Training summary materials will be provided to the NRR divisions by the implementation date.

ADAMS Accession No.: ML092010045

ML092010045 OFFICE DPR/PGCB/PM DPR/PGCB/LA DPR/PCGB/BC DPR/D DE/D DRAID NAME ARussell CHawes MMurphy TMcGinty PHiland MCunningham DATE. 07/21/09 07/23/09 04/22/10 04/26/10 08/11/09 01/14/10 OFFICE DLR/D . DORL/D DIRS/D DCI/D DSS/D OGC (NLO)

NAME BHolian JGiitter FBrown MEvans WRuland GMizuno

_JLubinski for)

DATE 10/27/09 08/28/09 07/31/09 08/10/09 03/17/10 03/09/10 NRR/DDECS PMDA/D NRR/DDRSP NRR/D OFFICE NAME JGrobe MGivvines BBoger ELeeds (WRuland for) (TMcGinty for) (TMcGinty for)

DATE 04/27/10 05/10/10 05/11/10 05/12/10 ,.

NRR OFFICE INSTRUCTION LIC-202, Revision 2 Procedures for Managing Plant-Specific Backfits and 50.54(f) Information Requests

1. POLICY The Backfit Rule, Title 10 of the Code of Federal Regulations (10 CFR).50.109, governs the requirements for backfitting of nuclear power plants. It requires that the Nuclear Regulatory Commission (NRC) justify each backfit with either a backfit analysis or a documented evaluation. The term backfit is used in these procedures to denote modification of or addition to (1) systems, structures, components, or design of a facility; (2) the design approval ormanufacturing license for a facility; (3) the procedures or organization required to design, construct, or operate a facility if the modification or addition results from a new or amended provision in the Commission rules or from the

.imposition of a regulatory staff position interpreting the Commission rules that is either new or different from a previously applicable staff position. To be considered a backfit, these new or different positions must be taken after certain dates specified in 50.109(a)(1)(i-vii). Furthermore, a backfit is plant-specific when it involves the imposition of a position that is unique to a particular plant.1 A modification or action proposed by a licensee is not deemed to be subject to the Backfit Rule.*

For new nuclear power reactors using the provisions of 10 CFR Part 52, applicable backfitting and issue finality provisions are also found in that part. For nuclear power.

reactor combined licenses, backfitting provisions are contained in both 10 CFR 50.109 and in Subpart C of Part 52.

The Backfit Rule ordinarily does not apply in renewal of a nuclear power plant operating license under 10 CFR Part 54. However, if the NRC proposes to address safety issues outside the. scope of Part 54 (e.g., time-limited aging analyses pnd aging of long-lived passive structures, systems, and components (SSCs)), then any actions necessary to address such out-of-scope safety issues are subject to the Backfit Rule. Once a renewed license is issued, the Backfit Rule applies, with the exception of the identification of newly-identified SSCs under 10 CFR 54.37(b).

Section 50.54(f) of 10 CFR enables the staff to seek information necessary to determine the need to modify, suspend, or revoke a plant license. Section 50.54(f) further states "Except for information sought to verify licensee compliance with the current licensing basis for that facility, the NRC must prepare the reason or reasons for each information request prior to issuance to ensure that the burden to be imposed on respondents is justified in view of the potential safety significance of the issue to be addressed in the requested information." NRC Management Directive (MD) 8.4, "NRC Program for Management of Plant-Specific Backfitting of Nuclear Power Plants," establishes roles and responsibilities for NRC staff implementation of 10 CFR 50.109 and 10 CFR 50.54(f).

Plant-specific backfitting involves positions unique to a particular plant, whereas generic backfitting involves the imposition of the same or similar positions on more than one plant.

An exception to this general principle is when the NRC conditions approval of the licensee-initiated modification or action upon a matter not technically relevant to the determination of the licensee's proposed modification or action.

NRR Office Instruction LIC-202, Revision 2 Page 2 of 6

2. OBJECTIVES This office instruction provides guidance to ensure that plant-specific backfitting of nuclear power plants is properly justified and documented and establishes the responsibilities and authorities for the Office of Nuclear Reactor Regulation (NRR) staff to resolve backfit issues and to issue 10 CFR 50.54(f) information requests. This office instruction provides the guidance to implement the requirements in 10 CFR 50.109, 10 CFR 50.54(f), and NRC MD 8.4 (formerly NRC Manual Chapter 0514). Additional guidance is provided in NUREG-1409, "Backfitting Guidelines." This office instruction should be used in conjunction with LIC-100, "Control of Licensing Bases for Operating Reactors," which gives overall guidance for the management of design features, equipment descriptions, operating practices, site characteristics, programs and procedures, and other factors that describe a plant's design, construction, maintenance, and operation. In addition, LIC-504, "Integrated Risk-Informed Decision-Making Process for Emergent Issues" provides a useful framework to address plant-specific backfits, helps assist decision-makers on emergent issues, and provides guidance on documentation of the staffs rationale for the actions taken.

3. BACKGROUND The procedures in Office Letter 901, dated January 11, 1990, previously provided the guidance for implementing the requirements of 10 CFR 50.109, 10 CFR 50.54(f), and NRC Manual Chapter 0514.

Since the issuance of Office Letter 901, NRR has adopted the office instruction system, an improved set of office-wide procedures. The procedures to implement the governing regulations and the governing management directive (MD 8.4) are now contained in this office instruction (LIC-202). The guidance has been updated as necessary to adapt to organizational changes.

4. BASIC REQUIREMENTS Appendix B applies to the information necessary to evaluate the safety significance of the proposed backfit and identifies the specific responsibilities and authorities for the NRR staff during the process of managing plant-specific backfits, and for preparing 10 CFR 50.54(f) information requests. The process includes the following activities:

• Identification of plant-specific backfits:

- Staff Identification - The NRR staff is responsible for identifying proposed plant-specific backfits. The staff must determine whether or not any proposed plant-specific position should be considered to be a backfit.

- Licensee Claims - A licensee may claim that a proposed staff action constitutes a plant-specific backfit even though the NRR staff did not identify it as such. At the time the claim is made, the licensee should provide any and all supporting information to the Director of NRR. The Director of NRR will forward such claims to the Director of the Division of Policy and Rulemaking (DPR), which will serve as the single point of contact throughout the backfit process.

NRR Office Instruction LIC-202, Revision 2 Page 3 of 6 Backfit determinations - Once either the staff or a licensee has identified a proposed staff position as a potential backfit, the staff should move promptly to resolve the issue. In the case of staff-identified backfits, the person or persons identifying the potential backfit should bring it to the attention of their line management and the cognizant project manager immediately. DPR shall ensure that the potential backfit is presented to the appropriate technical division for review. The technical division shall determine whether or not the identified position is, in fact, a backfit and whether a backfit analysis or a documented evaluation is required. In the case of a licensee-identified backfit, DPR is again responsible for presenting the issue to the appropriate technical division. The technical division is responsible for making the backfit determination in time to allow the Division of Operating Reactor Licensing (DORL) to inform the licensee of that backfit determination within 60 days of the licensee's initial written backfit claim.

Resolution of plant-specific backfits - Once a position has been determined to be a backfit, the staff should move quickly to a resolution. The staff may use either a backfit analysis or a documented evaluation to resolve a plant-specific backfit.

Resolution with a documented evaluation - If the technical staff determines that a position proposed by the staff is a backfit that is necessary to bring a facility into compliance with a license or rules or orders of the Commission, or if it is necessary to ensure that a facility provides adequate protection to the public health and safety, or if the staff position defines or redefines the level of protection to the public health and safety or common defense and security, the technical staff should, within 60 days of determination that the position is a backfit, provide DORL with a documented evaluation as described in Appendix B.

DORL should send a letter to the licensee detailing the staff's position as described in the documented evaluation within 2 weeks of receiving the documented evaluation. The licensee will be given 30 days from the date of this letter to appeal the staff's position.

Resolution with a backfit analysis - If the technical staff determines that a proposed action constitutes a backfit but that the action is neither necessary to ensure that the plant presents no undue risk to public health and safety or.

common defense and security nor to bring the plant into compliance with rules, orders, or written commitments, the staff shall prepare a backfit analysis in accordance with Appendix B. The staff shall normally complete this backfit analysis and provide it to DORL within.90 days of the backfit determination.

DORL should forward a letter detailing the staff's backfit analysis to the licensee within 2 weeks of receiving the backfit analysis from the technical staff. The licensee will be given 30 days from the date of this letter to appeal the staff's position.

Backfit Analysis - The technical staff should prepare backfit analyses for backfits other than backfits needed to ensure adequate protection or compliance. These backfit analyses should ascertain whether or not (1) a substantial increase in the overall protection of the public health and safety or the common defense and security is to be derived from implementing the proposed backfit and (2) the direct and indirect costs of implementing the backfit are justified in view of the increased

NRR Office Instruction LIC-202, Revision 2 Page 4 of 6 protection. The criteria in 10 CFR 50.109(a)(1) through (9) should be addressed, as applicable to the plant-specific backfit.

Non-adjudicatory Appeal Process - A licensee may appeal any proposed backfit or denied backfit claim to NRR, as discussed in Appendix B,Section IV, "Appeal Process," to modify or withdraw a backfit that has been identified and for which the staff has prepared a backfit analysis, to appeal to reverse a denial of a previous licensee claim that a staff position is a backfit; or to appeal a staff determination that a backfit meets the compliance or adequate-protection exceptions. Within 3 weeks after the staff receives the appeal request, NRR should respond to the licensee informing it of the staff plans for review of the appeal.

Implementation of backfits - In some cases, the Deputy Director for Reactor Safety Programs (RSP) may determine that it is necessary to implement a backfit immediately. In such cases, the imposition is usually done by order. If it is not necessary to implement a backfit immediately, implementation will normally be on a schedule negotiated between the licensee and DORL.

Recordkeeping - The assigned backfit evaluation project manager (BEPM) tracks the backfit in accordance with Section II.C. of Appendix. B. An Agencywide Documents Access and Management System (ADAMS)-based record access system has been instituted for plant-specific backfits. Staff should use this system for plant-specific backfit recordkeeping as discussed in Section VI. of Appendix B, "Recordkeeping."

Identification and procedures for handling of requests for additional safety information to enable the staff to make a decision to modify, suspend, or revoke a license pursuant to 10,CFR 50.54(f).

Appendix C, "Mechanisms Used by the NRC Staff to Establish or Communicate Requirements or Staff Positions," identifies mechanisms used by the staff to establish or communicate requirements or staff positions.

Appendix D, "Backfit Identification and Tracking Form" is an aid in tracking the backfit.

5. RESPONSIBILITIES AND AUTHORITIES Office of the General Counsel The Office of the General Counsel (OGC) is responsible for:

& Assisting the staff in identifying backfits and performing legal reviews of staff-initiated plant-specific backfits.

0 Providing legal advice and assistance during the backfit identification, justification,

• imposition, and licensee appeal processes.

NRR Office Instruction LIC-202, Revision 2 Page 5 of 6 Office of the Director, NRR The Director of NRR is responsible to the Executive Director for Operations (EDO) for office compliance with the requirements in 10 CFR 50.109, 10 CFR 50.54(f), and NRC MD 8.4. Specifically, the Director of NRR is responsible for:

o Ensuring that the NRR staff appropriately makes backfit determinations and that staff manages plant-specific backfit actions in accordance with this office instruction and other relevant staff requirements documents.

• Appointing panel members to evaluate the licensee's appeal of the staff's backfit determination or its appeal to reverse a denial of a previous claim that a staff position is a backfit. The Director of NRR shall sign the letter to the licensee forwarding NRR's decision.

NRR Deputy Director for Reactor Safety Programs The Deputy Director for RSP concurs in all information requests made pursuant to 10 CFR 50.54(f).

The Deputy Director for RSP consults and coordinates with the regional administrators or the Director, Office of Federal and State Materials and Environmental Management Programs, or the Director, Office of Nuclear Security and Incident Response, and the Office of the General Counsel to resolve proposed plant-specific backfits in NRR program areas.

The Deputy Director for RSP concurs in the backfit analysis or documented evaluation and the backfit decision before the backfit and the analysis or evaluation are forwarded to a licensee. The letter forwarding the backfit and the backfit analysis or documented evaluation to the licensee may be signed by the Director of DORL with concurrence of the Deputy Director for RSP.

NRR Division Director The appropriate technical division director ensures that a comprehensive backfit analysis or documented evaluation is developed to support the backfit determination.

NRR Branch Chief The appropriate technical branch chief assigns technical staff to review the potential backfit. The appropriate DORL branch chief assigns a BEPM to evaluate and lead the review of the potential backfit and establishes a review schedule for the potential backfit.

NRR Backfit Evaluation Promect Manaqer The BEPM evaluates all the information that supports the backfit determination to ensure that the proposed backfit is properly evaluated for backfit implications, coordinate activities related to any plant-specific backfit, ensure that all correspondence related to plant-specific backfits is prepared in accordance with this office instruction and associated reference documents, and ensure that proper determinations and backfit

NRR Office Instruction LIC-202, Revision 2 Page 6 of 6 analyses or documented evaluations are forwarded for management review.

Appendix B gives the specific responsibilities for identifying, determining, evaluating, and implementing backfits. In all stages of the plant-specific backfitting process, the BEPM should consult with OGC.

6. PERFORMANCE MEASURES None.

7. PRIMARY CONTACT Andrea Russell NRR/DPR/PGCB 301-415-8553" Andrea.Russellnrc..qov

8. RESPONSIBLE ORGANIZATION NRR/DPR/PGCB

9. EFFECTIVE DATE May 17, 2010

10. REFERENCES

• Management Directive 8.4, "Management of Facility-Specific Backfitting and Information Collection"

• 10 CFR 50.109, "Backfitting"

• NUREG-1409, "Backfitting Guidelines"

" LIC-100, Revision 1, "Control of Licensing Bases for Operating Reactors"

" LIC-504, Revision 2, "Integrated Risk-informed Decision-Making Process for Emergent Issues"

" NUREG/BR-0058, Revision 4, "Regulatory Analysis Guidelines of the U.S. Nuclear Regulatory Commission"

" NUREG/BR-01 84, "Regulatory Analysis Technical Evaluation Handbook"

• LIC-106, "Issuance of Safety Orders"

" LIC-101, "License Amendment Review Procedures"

Enclosures:

1. Appendix A - Change History

2. Appendix B - Procedures for Managing Plant-Specific Backfits and 10 CFR 50.54(f)

Information Requests

3. Appendix C - Mechanisms Used by the NRC Staff to Establish or Communicate Requirements or Staff Positions

4. Appendix D- Backfit Identification and Tracking Form