ML110270252

State of New Yorks 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 x

Inre:

License Renewal Application Submitted by Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc.

Docket Nos. 50-247-LR; 50-286-LR ASLBP No. 07-858-03-LR-BDO0 DPR-26, DPR-64 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

?TL3/4WA-WC7-,' 3C y/.D LIi b5 D3

TABLE OF CONTENTS Page INTRODUCTION........................................................................................................................

1 APPLICABLE LEGAL STANDARDS........................................................................................

3 MATERIAL FACTS....

6..............................

6 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

- i -

TABLE OF AUTHORITIES Page(s)

Federal Court Decisions Bowman Transp., Inc. v. Arkansas-Best Freight System, 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 Farm Mut. Auto. Ins. Co.,

463 U.S. 29 (1983).......................................................................................................

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

I................................... 5,13 Shieldalloy Metallurgical Corp. 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.

-ii-

TABLE OF AUTHORITIES Paue(s)

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

- i°

TABLE OF AUTHORITIES Pasge(s)

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

ý iv -

TABLE OF AUTHORITIES Page(s)

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 R C Staff (M ay 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

,. TABLE OF AUTHORITIES Paze(s)

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

- vi -

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 Freight System, 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 proceeding to 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 require the 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, regulatory history, guidance documents or any other source in support of this assertion. 4 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., Federal Power 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).

- II -

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 Freight System, 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 Metallurgical Corp. 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, J.

Aipos Janice A. Dean Assistant Attorneys General Office of the Attorney General of the State of New York The Capitol Albany, New York 12224 Dated: January 14, 201,1 Adam Dobson, of Counsel 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 1 2 3 4 5 Volume 69 of the Federal Register, pp. 2182 and 2187, published January 14, 2004, Changes to Adjudicatory Process; Final Rule, Statement of Considerations.

United States Nuclear Regulatory Commission's Regulatory Analysis Guidelines, NUREG/BR-0058, Revision 4 (September 2004), including coverpages and page 4.

.NEI 05-01 (Rev. A), Severe Accident Mitigation Alternatives (SAMA)

Guidance Document (Nov. 2005).

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.

Entergy, NL-09-165, License Renewal Application - SAMA Reanalysis Using Alternate Meteorological Tower Data (Dec. 14, 2009), and ("December 2009 SAMA Reanalysis").

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'

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, Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc.,

DPR-26, DPR-64 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 Administrative Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North 11545 Rockville Pike Rockville, MD 20852-2738 Lawrence.McDade@nrc.gov Richard E. Wardwell-Administrative Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North 11545 Rockville Pike Rockville, MD 20852-2738 Richard. Wardwell@nrc.gov Kaye D. Lathrop Administrative Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission 190 Cedar Lane E.

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

Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Mailstop 16 G4 One White Flint North 11555 Rockville Pike Rockville, MD 20852-2738 ocaamail@nrc.gov Office of the Secretary Attn: Rulemaking and Adjudications Staff U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North 11545 Rockville Pike Rockyille, MD 20852-2738 hearingdocket@nrc.gov Sherwin E. Turk, Esq.

David E. Roth, Esq.

Andrea Z. Jones, Esq.

Beth N. Mizuno, Esq.

Brian G. Harris, Esq.

Office of the General Counsel U.S. Nuclear Regulatory Commission Mailstop 15 D21 One White Flint North 11555 Rockville Pike Rockville, MD 20852-2738 sherwin.turk@nrc.gov andrea.jones@nrc.gov david.roth@nrc.gov beth.mizuno@nrc.gov brian.harris@nrc.gov, Kathryn M. Sutton, Esq.

Paul M. Bessette, Esq.

Morgan, Lewis & Bockius LLP IIII Pennsylvania Avenue, NW Washington, DC 20004 ksutton@morganlewis.com pbessette@morganlewis.com Martin J. O'Neill, Esq.

Morgan, Lewis & Bockius LLP Suite 4000 1000 Louisiana Street Houston, TX 77002 martin.o'neill@morganlewis.com Elise N. Zoli, Esq.

Goodwin Procter, LLP Exchange Place 53 State Street Boston, MA 02109 ezoli@goodwinprocter.com William C. Dennis, Esq.

Assistant General Counsel Entergy Nuclear Operations, Inc.

440 Hamilton Avenue White Plains, NY 10601 wdennis@entergy.com Robert D. Snook, Esq.

Assistant Attorney General Office of the Attorney General State of Connecticut 55 Elm Street P.O. Box 120 Hartford, CT 06141-0120 robert.snook@po.state.ct.us Melissa-Jean Rotini, Esq.

Assistant County Attorney Office of the Westchester County Attorney Michaelian Office Building 148 Martine Avenue, 6th Floor White Plains, NY 10601 MJR1 @westchestergov.com Daniel E. O'Neill, Mayor James Seirmarco, M.S.

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

Daniel Riesel, Esq.

Thomas F. Wood, Esq.

Jessica Steinberg, Esq.

Sive, Paget & Riesel, P.C.

460 Park Avenue New York, NY 10022 driesel@sprlaw.com jsteinberg@sprlaw.com Michael J. Delaney, Esq.,Director Energy Regulatory Affairs NYC Dep't of Environmental Protection 59-17 Junction Boulevard Flushing, NY 11373 (718) 595-3982 mdelaney@dep.nyc.gov Manna Jo Greene, Director Stephen Filler, Esq.

Hudson River Sloop Clearwater, Inc.

724 Wolcott Avenue Beacon, NY 12508 Mannajo@clearwater.org stephenfiller@gmail.com Ross H. Gould Member Hudson River Sloop Clearwater, Inc.

270 Route 308 Rhinebeck, NY 12572 rgouldesq@gmail.com 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 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 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 SP2

$420,459 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 S A, 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

---

......--------------------- X In re:

License Renewal Application Submitted by Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc.

X Docket Nos. 50-247-LR; 50-286-LR ASLBP No. 07-858-03-LR-BD01 DPR-26, DPR-64 January 12, 2011 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. 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. 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. 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. 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*

in Support of State of New Yo Summary Disposition Motion on NYS 35/:

an rk 36

7. 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. 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. 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. 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. 0 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. 1 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. 2 contains a true and correct copy of NEI 05-01 (Rev. A), Severe

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

14. 3 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. 4 contains a true and correct copy of NL-09-165, License Renewal Application - SAMA Reanalysis Using Alternate Meteorological Tower Data (Dec. 14, 2009), ("December 2009 SAMA Reanalysis").

16. 5 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 L I 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; License Renewal Application Submitted by Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc.

x Docket Nos. 50-247-LR; 50-286-LR ASLBP No. 07-858-03-LR-BDO1 DPR-26, DPR-64 January 13, 2011 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 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 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 S 1,656,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 SAMAt 061:

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 ST or 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 S L365,046

$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:

License Renewal Application Submitted by Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc.

7--------------------------

X Docket Nos. 50-247-LR; 50-286-LR ASLBP No. 07-858-03-LR-BDO1 DPR-26, DPR-64 January 12, 2011 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. 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. 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. 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. 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. 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. 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. 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. 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. 0 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. 1 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. 2 contains a true and correct copy of NEI 05-01 (Rev. A), Severe Accident Mitigation Alternatives (SAMA) Guidance Document (Nov. 2005).

14. 3 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. 4 contains a true and correct copy of NL-09-165, License Renewal Application - SAMA Reanalysis Using Alternate Meteorological Tower Data (Dec. 14, 2009), ("December 2009 SAMA Reanalysis").

16. 5 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. 201 1

.u tDeclaruitiniu olA\\C Janice Dean in Supponl of S;tate of Nov York Sumniary [Disposition Miotion on NIYS 3)536

Contention 35/36 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 (30) day period and the minimum nine-ty (90) day period may run concur-rently to the extent they overlap.

(b) In any rulemaking proceeding for the purpose of protecting the public health or safety or the common defense and security, the Commission may make and publish the decision on the final rule at the same time that the Environmental Protection Agency pub-lishes the FEDERAL REGISTER notice of filing of the final environmental im-pact statement.

§ 51.101 Limitations on actions.

(a) Until a record of decision is issued in connection with a proposed licensing or regulatory action for which an envi-ronmental impact statement is re-quired under § 51.20, or until a final finding of no significant impact is issued in connection with a proposed li-censing or regulatory action for which an environmental assessment is re-quired under § 51.21:

(1) No action concerning the proposal may be taken by the Commission which would (i) have an adverse envi-ronmental impact, or (ii) limit the choice of reasonable alternatives.

(2) Any action concerning the pro-posal taken by an applicant which would (i) have an adverse environ-mental impact, or (ii) limit the choice of reasonable alternatives may be grounds for denial of the license. In the case of an application covered by

§§30.32(f),

40.31(f),

50.10(c),

70.21(f),

or

§§72.16 and 72.34 of this chapter, the provisions of this paragraph will be ap-plied in accordance with §§30.33(a)(5),

40.32(e), 50.10 (c) and (e), 70.23(a)(7) or

§72.40(b) of this chapter, as appro-priate.

(b) While work on a required program environmental impact statement is in progress, the Commission will not un-dertake in the interim any major Fed-eral action covered by the program which may significantly affect the quality of the human environment un-less such action:

(1)

Is justified independently of the program; (2) Is itself accompanied by an ade-quate environmental impact state-ment; and (3) Will not prejudice the ultimate decision on the program. Absent any 10 CFR Ch. 1 (1-1-10 Edition) satisfactory explanation to the con-trary, interim action which tends to determine subsequent development or limit reasonable alternatives, will be considered prejudicial.

(c) This section does not preclude any applicant for an NRC permit, license, or other form of permission, or amend-ment to or renewal of an NRC permit, license, or other form of permission, (1) from developing any plans or designs necessary to support an application; or (2) after prior notice and consultation with NRC staff, (i) from performing any physical work necessary to support an application, or (ii) from performing any other physical work relating to the proposed action if the adverse environ-mental impact of that work is de mini-mis.

[49 FR 9381, Mar. 12, 1984, as amended at 53 FR 31682, Aug. 19, 1988]

§51.102 Requirement to provide a

record of decision; preparation.

(a) A Commission decision on any ac-tion for which a final environmental

• impact statement has been prepared shall be accompanied by or include a concise public record of decision.

(b) Except as provided in paragraph (c) of this section, the record of deci-sion will be prepared by the NRC staff director authorized to take the action.

(c) When a hearing is held on the pro-posed action under the regulations in subpart G of part 2 of this chapter or when the action can only be taken by the Commissioners acting as a colle-gial body, the initial decision of the presiding officer or the final decision of the Atomic Safety and Licensing Ap-peal Board or the final decision of the Commissioners acting as a collegial body will constitute the record of deci-sion. An initial or final decision consti-tuting the record of decision will be distributed as providedin § 51.93.

§ 51.103 Record of decision-general.

(a) The record of decision required by

§51.102 shall be clearly identified and shall:

(1) State the decision.

(2) Identify all alternatives consid-ered by the Commission in reaching the decision, state that these alter-natives were included in the range of 48

Nuclear Regulatory Commission alternatives discussed in the environ-mental impact statement, and specify the alternative or alternatives which were considered to be environmentally preferable.

(3) Discuss preferences among alter-natives based on relevant factors, in-cluding economic and technical consid-erations where appropriate, the NRC's statutory mission, and any essential considerations of national

policy, which were balanced by the Commis-sion in making the decision and state how these considerations entered into the decision.

(4) State whether the Commission has taken all practicable measures within its jurisdiction to avoid or mini-mize environmental harm from the al-ternative selected, and if not, to ex-plain why those measures were not adopted. Summarize any license condi-tions and monitoring programs adopted in connection with mitigation meas-ures.

(5) In making a final decision on a li-cense renewal action pursuant to part 54 of this chapter, the Commission shall determine whether or not the ad-verse environmental impacts of license renewal are so great that preserving the option of license renewal for energy planning decisionmakers would be un-reasonable.

(6) In a construction permit or a com-bined license proceeding where a lim-ited work authorization under 10 CFR 50.10 was issued, the Commission's de-cision on the construction permit or combined license application will not address or consider the sunk costs as-sociated with the limited work author-ization in determining the proposed ac-tion.

• (b) The record of decision may be in-tegrated into any other record pre-pared by the Commission in connection with the action.

(c) The record of decision may incor-porate by reference material contained in a final environmental impact state-.

ment.

[49 FR 9381, Mar. 12, 1984, as amended at 61 FR 28490, June 5, 1996; 61 FR 66546, Dec. 18, 1996; 61 FR 68543, Dec. 30, 1996; 72 FR 57445, Oct. 9, 20071

§51.104

§ 51.104 NRC proceeding using public hearings; consideration of environ-mental impact statement.

(a)(1) In any proceeding in which (i) a hearing is held on the proposed action, (ii) a final environmental impact state-ment has been prepared in connection with the proposed action, and (iii) mat-ters within the scope of NEPA and this subpart are in issue, the NRC staff may not offer the final environmental im-pact statement in evidence or present the position of the NRC staff on mat-ters within the scope of NEPA and this subpart until the final environmental impact statement is filed with the En-vironmental, Protection Agency, fur-nished to commenting agencies and made available to the public.

(2) Any party to the proceeding may take a position and offer evidence on the aspects of the proposed action within the scope of NEPA and this sub-part in accordance with the provisions of part 2 of this chapter applicable to that proceeding or in accordance with the terms of the notice of hearing.

(3) In the proceeding the presiding of-ficer will decide those matters in con-troversy among the parties within the scope of NEPA and this subpart.

(b) In any proceeding in which a hearing is held where the NRC staff has determined that no environmental im-pact statement need be prepared for the proposed action, unless the Com-mission orders otherwise, any party to the proceeding may take a position and offer evidence on *the aspects of the proposed action within the scope of NEPA and this subpart in accordance with the provisions of part 2 of this chapter applicable to that proceeding or in accordance with the terms of the notice of hearing. In the proceeding, the presiding officer will decide any such matters in controversy among the parties.

(c) In any proceeding in which a lim-ited work authorization is requested, unless the Commission orders other-wise, a party to the proceeding may take a position and offer evidence only on the aspects of the proposed action within the scope of NEPA and this sub-part which are within the scope of that party's admitted contention, in accord-ance with the provisions of part 2 of 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-ment based on a qualified life or speci-fied time period.

(2) Describe and justify the methods used in paragraph (a)(1) of this Section.

(3) For each structure and.component

.identified in paragraph (a)(1) of this section, demonstrate that the effects of aging will be adequately managed so that the intended function(s) will be maintained consistent with the CLB for the period of extended operation.

(b) CLB changes during NRC review of the application. Each year following submittal of the license renewal appli-cation and at least 3 months before scheduled completion of the NRC re-view, an amendment to the renewal ap-plication must be submitted that iden-tifies any change to the CLB of the fa-cility that materially affects the con-tents of the license renewal applica-tion, including the FSAR supplement.

(c) An evaluation of time-limited aging analyses.

(1)

A list of time-limited aging analyses, as defined in

§ 54.3, must be provided. The applicant shall demonstrate that-(i) The analyses remain valid for the period of extended operation; (ii) The analyses have been projected to the end of the period of extended op-eration; or (iii) The effects of aging on the in, tended function(s) will be adequately managed for the period of extended op-eration.

(2) A list must be provided of plant-specific exemptions granted pursuant to 10 CFR 50.12 and in effect that are based on time-limited aging analyses as defined in § 54.3. The applicant shall provide an evaluation that justifies the continuation of these exemptions for the period of extended operation.

(d) An FSAR supplement. The FSAR supplement for the facility must con-tain a summary description of the pro-grams and activities for managing the effects of aging and the evaluation of time-limited aging analyses for the pe-riod of extended operation determined by paragraphs (a) and (c) of this sec-tion; respectively.

§ 54.22 Contents of application-tech--

nical specifications.

Each application must include any technical specification changes or addi-tions necessary to manage the effects of aging during the period of extended operation as part of the renewal appli-cation. The justification for changes or additions to the technical specifica-tions must be contained in the license renewal application.

§ 54.23 Contents of application-envi-

• ronmental information.

Each application must include a sup-plement to the environmental report that complies with the requirements of subpart A of 10 CFR part 51.

§ 54.25 Report of the Advisory Com-mittee on Reactor Safeguards.

Each renewal application will be re-ferred. to the Advisory Committee on Reactor Safeguards for a review and re-port. Any report will be made part of the record of the application and made available to the public, except to the extent that security classification pre-vents disclosure.

§ 54.27 Hearings.

A notice of an opportunity for a hear-ing will be published in the FEDERAL REGISTER in accordance with.10 CFR 2.105. In the absence of a request for a hearing filed within 30 days by a person*

whose interest may be affected, the Commission may issue a renewed oper-ating license or renewed combined li-cense without a hearing upon 30-day notice and publication in the FEDERAL REGISTER of its intent to do so.

[72 FR 49560, Aug. 28, 2007]

§ 54.29 Standards for issuance of a re-newed license.

A renewed license may be issued by the Commission up to the full term au-thorized by §54.31 if the Commission finds that:

(a) Actions have been identified and have been or will be taken with respect to the matters identified in paragraphs (a)(1) and (a)(2) of this section, such that there is reasonable assurance that the activities authorized by the re-newed license will continue to be con-ducted in accordance with the CLB, and that any changes made to the plant's CLB in order to comply with this paragraph are in accord with the Act and the Commission's regulations.

These matters are:

146

Nuclear Regulatory Commission (1) managing the effects of aging dur-ing the period of extended operation on the functionality of structures and components that have been identified to require review under § 54.21(a)(1); and (2) time-limited aging analyses that have been identified to require review under § 54.21(c).

(b) Any applicable requirements of subpart A of 10 CFR part 51 have.been satisfied.

(c) Any matters raised under §2.335 have been addressed.

[60 FR 22491, May 8, 1995, as amended at 69 FR 2279, Jan. 14, 2004]

§54.30 Matters not subject' to a re-newal review.

(a) If the reviews required by §54.21 (a) or (d) show that there is not reason-able assurance during the current li-cense term that licensed activities will be conducted in accordance with the CLB, then the licensee shall take meas-ures under its current license, as ap-propriate, to ensure that the intended function of those systems, structures or components will be maintained in accordance with the CLB throughout the term of its current license.

(b) The licensee's compliance with the obligation under Paragraph (a) of this section to take measures under its current license is not within the scope of the license renewal review.

§ 54.31 Issuance of a renewed license.

(a) A renewed license will be of the class for which the operating license or combined license currently in effect was issued.

(b) A renewed license will be issued for a fixed period of time, which is. the sum of the additional amount of time beyond the expiration of the operating license or combined license (not to ex-ceed 20 years) that is requested in a re-newal application plus the remaining number of years on the operating li-cense or combined license currently in effect. The term of any renewed license may not exceed 40 years:.

(c) A renewed license will become ef-fective immediately upon its issuance, thereby superseding the operating li-cense or combined license previously in effect. If a renewed license is subse-quently set aside upon further adminis-trative or judicial appeal, the oper-

§ 54.33 ating license or combined license pre-viously in effect will be reinstated un-less its term has expired and the re-newal application was not filed in a

timely manner.

(d) A renewed license may be subse-quently renewed in accordance with all applicable requirements.

[60 FR 22491, May 8, 1995, as amended at 72 FR 49560, Aug. 28, 2007]

§ 54.33 Continuation of CLB and condi-tions of renewed license.

(a) Whether stated therein or not, each renewed license will contain and otherwise be subject to the conditions set forth in 10 CFR 50.54.

(b)

Each renewed license will be issued in such form and contain such conditions and limitations, including technical specifications, as the Com-mission deems appropriate and nec-essary to help ensure that systems, structures, and components subject to review in accordance with §54.21 will continue to perform their intended functions for the period of extended op-eration. In addition, the renewed li-cense will be issued in such form and contain such conditions and limita-tions as the Commission deems appro-priate and necessary to help ensure that systems, structures, and compo-nents associated with any time-limited aging analyses will continue to per-form their intended functions for the period of extended operation.

(c) Each renewed license will include those conditions to protect the envi-ronment 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 re-newed license and will be derived from information contained in the supple-ment to the environmental report sub-mitted pursuant to 10 CFR part 51, as analyzed and evaluated in the NRC record of decision. The conditions will identify the obligations of the licensee in the environmental area, including, as appropriate, requirements for re-porting and recordkeeping of environ-mental data and any conditions and monitoring requirements for the pro-tection of the nonaquatic environment.

147

§ 54.35 (d) The licensing basis for the re-newed license includes the CLB, as de-fined in §54.3(a); the inclusion in the li-censing basis of matters such as li-censee commitments does not change the legal status of those matters unless specifically so ordered pursuant to paragraphs (b) or (c) of this section.

§54.35 Requirements during term of renewed license.

During the term of a renewed license, licensees shall be subject to and shall continue to comply with all Commis-sion regulations contained in 10 CFE parts 2, 19, 20, 21, 26, 30, 40, 50, 51, 52, 54, 55, 70, 72, 73, and 100, and the appen-dices to these parts that are applicable to holders of operating licenses or com-bined licenses, respectively.

(72 FR 49560, Aug. 28, 2007]

§ 54.37 Additional records and record-keeping requirements.

(a) The licensee shall retain in an auditable and retrievable form for the term of the renewed operating license or renewed combined license all infor-mation and documentation required by, or otherwise necessary to document compliance with, the provisions of this part.

(b)

After the renewed license is issued, the FSAR update required by 10 CFR 50.71(e) must include any systems, structures, and components newly identified that would have been subject to an aging management review or evaluation of time-limited aging anal-yses in accordance with §54.21. This FSAR update must describe how the ef-fects of aging will be managed such that the intended function(s) in § 54.4(b) will be effectively maintained during the period of extended operation.

[60 FR 22491, May 8, 1995, as amended at 72 FR 49560, Aug. 28, 2007]

§ 54.41 Violations.

.(a) The Commission may obtain an injunction or other court order to pre-vent a violation of the provisions of the following acts-(1) The Atomic Energy Act of 1954, as amended.

(2) Title II of the Energy Reorganiza-tion Act of 1974, as amended or 10 CFR Ch. 1 (1-1-10 Edition)

(3) A regulation or order issued pur-suant to those acts.

(b) The Commission may obtain a court order for the payment of a civil penalty imposed under Section 234 of the Atomic Energy Act-(1) For violations of the following-(i) Sections 53, 57, 62, 63, 81, 82, 101, 103, 104, 107, or 109 of the Atomic En-ergy Act of 1954, as amended; (ii) Section 206 of the Energy Reorga-nization Act; (iii) Any rule, regulation, or order issued pursuant to the sections speci-fied in paragraph (b)(1)(i) of this sec-tion; (iv) Any term, condition, or limita-tion of any license, issued under the sections specified in paragraph (b)(1)(i) of this section.

(2) For any violation for which a li-cense may be revoked under Section 186 of the Atomic Energy Act of 1954, as amended.

§ 54.43 Criminal penalties.

(a) Section 223 of the Atomic Energy Act of 1954, as amended, provides for

-criminal sanctions for willful viola-tions of, attempted violation of, or con-spiracy to

violate, any regulation issued under sections 161b, 161i, or 161o of the Act. For purposes of section 223, all the regulations in part 54 are issued under one or more of sections 161b, 161i, or 161o, except for the sections listed in paragraph (b) of this section.

(b) The regulations in part 54 that are not issued under Sections 161b, 161i, or 161o for the purposes of Section 223 are as follows: §§54.1, 54.3, 54.4, 54.5, 54.7, 54.9, 54.11, 54.15, 54.17, 54.19, 54.21, 54.22, 54.23, 54.25, 54.27, 54.29, 54.31, 54.41, and 54.43.

PART 55--OPERATORS' LICENSES Subpart A--General Provisions Sec.

55.1 Purpose.

55.2 Scope.

55.3 License requirements.

55.4 Definitions.

55.5 Communications.

55.6 Interpretations.

55.7 Additional requirements.

55.8 Information collection requirements:

OMB approval.

55.9 Completeness and accuracy of informa-tion.

148

Council on Environmental Quality among alternatives). The summary will normally not exceed 15 pages.

§ 1502.13 Purpose and need.

The statement shall briefly specify the underlying purpose and need to which the agency is responding in pro-posing the alternatives including the proposed action.

§ 1502.14 Alternatives. including the proposed action.

This section is the heart of the envi-ronmental impact statement. Based on the information and analysis presented in the sections on the Affected Envi-ronment

(§ 1502.15) and the Environ-mental Consequences

(§ 1502.16),

it should present the environmental im-pacts of the proposal and the alter-natives in comparative form, thus sharply defining the issues and pro-viding a clear basis for choice among options by the decisionmaker and the public. In this section agencies shall:

(a)

Rigorously explore and objec-tively evaluate all reasonable alter-natives, and for alternatives which were eliminated from detailed study, briefly discuss the reasons for their having been eliminated.

(b) Devote substantial treatment to each alternative considered in detail including the proposed action so that reviewers may evaluate their compara-tive merits.

(c) Include reasonable alternatives not within the jurisdiction of the lead agency.

(d) Include the alternative of no ac-.

tion.

(e) Identify the agency's preferred al-ternative or alternatives, if one or more exists, in the draft statement and identify such alternative in the final statement unless another law prohibits the expression of such a preference.

(f)

Include appropriate mitigation measures not already included in the proposed action or alternatives.

§ 1502.15 Affected environment.

The environmental impact statement shall succinctly describe the environ-ment of the area(s) to be affected or created by the alternatives under con-sideration. The descriptions shall be no longer than is necessary to understand the effects of the alternatives. Data

§ 1502.16 and analyses in a statement shall be commensurate with the importance of the impact, with less important mate-rial summarized, consolidated, or sim-ply referenced. Agencies shall avoid useless bulk in statements and shall concentrate effort and attention on imý portant issues. Verbose descriptions of the affected environment are them-selves no measure of the adequacy of an environmental impact statement.

• § 1502.16 Environmental consequences.

' This section forms the scientific and analytic basis for the comparisons under §1502.14. It shall consolidate the discussions of those elements required by sections 102(2)(C)(i), (ii), (iv),. and (v) of NEPA which are within the scope of the statement and as much of section 102(2)(C)(iii) as is necessary to support the comparisons. The discussion will include the environmental impacts of the alternatives including the proposed action, any adverse environmental ef-fects which cannot be avoided should the proposal be implemented, the rela-tionship between short-term uses of man's environment and the mainte-nance and enhancement of long-term productivity, and any irreversible or ir-retrievable commitments of resources which would be involved in the pro-posal should it be implemented. This section should not duplicate discus-sions in

§1502.14. It shall include dis-cussions of:

(a) Direct effects and their signifi-cance (§ 1508.8).

(b) Indirect effects and their signifi-cance (§1508.8).

(c)

Possible conflicts between the proposed action and the objectives of Federal, regional, State, and local (and in the case of a reservation, Indian tribe) land use plans, policies and con-trols for the area concerned.

(See

§ 1506.2(d).)

(d) The environmental effects of al-ternatives including the proposed ac-tion. The comparisons under §1502.14 will be based on this discussion.

(e) Energy requirements and con-servation potential of various alter-natives and mitigation measures.

(f) Natural or depletable resource re-quirements and conservation potential of various alternatives and mitigation measures.

841

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

(Jun. 13, 1980)

MN Novyt Bactorin-o analysis ot* resul t otr itrationesot tne t] to challengematerial. The vaccinates and controls shall be observed'for 3 days postchaHenge and all deaths: recorded.

(21 U.S.C. 151,and 154; 37 FR 28477, 2864: 38 FR 19141),

Done at Washington, D.C., this 6thzday of, e

June 1980.

300 R. p. Jones" lose:.

Acting Deputy Administrator, Veterinary Services.

t

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

SILUNJ C00r534144-U ast 5 but not mor a, each weighing

ý beinjiected the reactor core. in tils regarcl, a shall be given both to the Probat occurrence of such releases and environmental consequences of releases.This statement of inten policy is taken in coordination iA other ongoing safety-related acti that are, directly related to accid conside 'rations in the areas of pl, design, operational safety, siting and emergency planninig. The Commission intends to continue rulemaking on thismatter when.

siting requirements. and other san related requiremenits incorporati accident -considerations are in DI Is after the firs Sdo'se shallbh Imme.detl on:

ne; e-the..

urovyi challenge upon request from

.Sa shall bemused for days folowing the.

E product.LEach of nd earch of five cinated guinea pigs for ijectead ith approxirnatelyJlou naterial. This dose d by statistical' NUCLEAR; REGULATORY COMMISSION h 10 CFR Parts 50 and 51 DATES.",This: statement of interfirpo is effective June.13. 1980oComment period expires Septemberk i, ig8.

Nuclear'Power Plant Accident Considerations Under the National EnvirontmhetalPollic Act of,1969 AGENCY: U.S Nuclear RegUlatory Commission.

ACTION. Statement of Interim Policy.

of t

. Thi bser all d to tiations of the SUMMARýY:T T6e*NucAear RAegulaiory avaccmiates and Commission(NRC) is revisingits policy ved.for8 days.

for conside~ig 'the more severe kinds of leaths recorded; very low probability accidents that are' physically possible, in environmentil mended by impact assessments required by the ryportion of National Envirofnmental Policy Act lgrkphs ()(1)* and (NEPA). Su6chaccidehita are commonly' referred to asClass 9 accidents, di following an accident classification n schemeproposed by the Atomi" Eiiergy Commission (prede"cessor t' IC]

o r final.podc 19.71 for purposes 6f implementing a

NEPA. ' The'Mair*h 28ý, 1979

• • cident at 3mpletedl product Unit 2'odf tle*'T, l-Isnd

Ula

)emtested fnit 2 ft e

TreMle Island ntuclar etested for i

plant has emphasized the need ffdr aling changes iwrNRtC ities regarding the i-itestwritten into considerations t6obe given to seio;Us dIio rth e accidents from an environmental as well

-i as a safety point. f view.

This si'atement ofinterim pblicy butnot more announces the withdrawal If th"

,:Weighing 300 proposed Annex to Appendix D'of 10 ajected CFR Part 50 and the suspension of the gutneanpig dose.

rulemaking proceeding that began with se shall be the publication of that'prdposed Annex ftter the first on December1, 197g1: Itis the ose shall be one-Commission' position th:ait its teidedon the Envirodnental Impact Statementsý shall include considerations of th sitte-

.li challenge specific environniental impacts I request from attributable to accident sequences that aillibe used for lead* to releases of radiation 'and/or*

afollo wing u

he r

adioarelmaterials, including f..oinh

• '__i_

radioactive ADDRESSES: T1he Commnission intc the inteirii poic guidac conta herein. to'be immediately effectiv(

However, all interestedpeorsons v~

desirejto submit written comment suggestionsfor consideration in coninedtioftiwith this statement sh send them to the Secretary of the Comminsio.in, U.S Nuclear Regula Commission, Wah singiton. D.C. 20 Attention: Docketing and Servicxe Branch.

FOR FURTHER INFORMATION COPTACTi R. Wayne Houston, Chief. Accident Evaluation Branh Qfflc of Nuclear Rkeactor Regulaion. U.S. Nuclear Regulatry Co0mission, Washington, D.C. 20555, Telephaone: (3011)492-7323.

SUPPLEMENTARY INFOR "ATI AccidentConsiderations Rieviewsl -

The proposed Annex to Appendix E of 10:CFR. Part 50 (hereafter the,

.Annex")was published for comment on December 1, 1971 by the (fornmer)

Atomic EnergyCo-mmission. It proposi to specify.a set of standardized accide assumnptions to be used in Environmental Reports,submittedhby applicants for construction.pernits or operating liCenses for nuclear power reactors. It also included a system iifor classifyihngaccidents according tona graded scale of sevierity &Wn prohabilii of occurrenceý Nine classes of acciden were defined, ranging*from trivi1: to very serious.,It directed that.for each clasS. except classes.1 and 9, the;-

environmental, consequences shaltbe evaluated as indicated." Class I ven were not to be considered because*f their trivial consequenceshereasin regard to o Class 9 events. the Annex stated asfodllows:

IJIuuu1L.,,a n of dh of five E, guinea pigs for Proposed as an Annex to 10 CFR Part 50.

Appendix D. 36 FR =8541. The commission's NEPA-implementing regulations were subsequently (July 18, 1974) revised and recast-as 10 CFR Part 51 but at that time the Commission noted that "The Proposed Annex is still under conaideration.

39 FR

26279, 1proximately 100 ial. This dose statistical

40192 Fedeigi L&e The occurrences in Class 9 in~volve sequences of -postulated successive:

~more severe than those postulateld fo design basis for protective sys~tems a engineered safety features. Their consequiences could be severe. Howi nf 0 ir r~irrffen is sa r/Vol.

se au gree of 1pnts in vivironmentlal Reports.

te to the Annex statel this annex refers to app 1 I tal Reports, -the current

'and other provisions th

!xcept as the content mW quie, to AEC draft abd 1-0lic 6oment-pei tani of thile Anni is m-s -of the -Anrir

)al among-these ophy lreacrib ts nottlad to ob w ithin'a 5O..mile' radius of the plant, and' ailures some differences between boling -water

ýiý the reactors (

-WRI and pressurized water no reactors6(PWRI. Beyond these few "ver, t specificshe discussions have sine.m allth reiterated the guidance of-theAnnex

-mely and have. relied-upon -the whex' kic.l-conclusion that`theopkobalbiliity of.

m;hl; occurre'nce of a Cl ass9 event, is too low ed to warrait consideration, a conclusion eative based upon.genarally.stated:safe6ty considerations.

.t.. "is With the publication of theReactor iyrem~ote Safety Study (WASHK1400)win.draft I risk.ii form in Augustý"1,9i74 and finalaform-in i j:j October,-1975 the accident discussions began to'refer toothis first,-detail e:ýstudy d of the risks associated with nuclear power plant accidents,.

diularly nlit*

s events which can lead to the melting of, ereo.,are the fuel inside a r*dactor. 2 The references ereof are eO is*

dy w ýre~i n kee ping w i itle,.'

to this stud wrinkengith the final intent and spirit of NEPA "to disclose",

relevant information, but Rt is obvious that t.WASH--4,did not form thelbasis o for the conlusionexpressed inthe-.

exa Annex. in171ilitte-probbilitY of x wereewee o ccurrence o0f¶.ihisSg 9.events wa*s..too were low!to Warfft ',their [s i e-specific) ini" -Consiera tion'*undier!NEPA*

ing ~

]4 heConiission's staff has, however, jective.

identified in certain-cases unique

'ijities of circurnstaices!which* it' felt warranted neral more extensive and detailed -

.. conisideria f

Claiss 9.events. One of s-ive these was t heproposeddClinch:River-Breeder Reactbr'lA, ntfCRkBRP),, a ýliquida atthir.

metal cooled veredy**ractor imertal different from themo*- conventional..,,

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 o the dicussonof th cdon* idieraoit*had, givdn en to Class9 events.

i are,t, In the early site re'iew for the diiii*",

Perryman site, ti.estaff perfor,.d-a.

informal

'aseau*s isit of the. relative risks are differences in Class 9,accidentw

rations, consequences amonig the alternative:

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

~except, Offshore Pow'er Systeims to manufacture 9

floating niuclearpower plants, the staff rig yea Irs judged that, the enviromental risksof ussqedin

.some Class 9 events. warran -iid specilal.

tsl~

cozisideratioh.Tlie special-eflected circumstances-were the potentially:.

few; serious consequences associated with sions:of, water (liquid) pathways leading to-Cilass 8" radiological exposures if a molten case' reactor core, were6ý tolfall-into the water body on which the plant T staff emphasized its focus environment but did; notfi probability of a coremelt occurring in the firit place essentially any different t!

based plant. In its Memor Order'In the Matter-of-fi f Systemis,' the Commissiox the staffsi ju.dgent. Thus Safety Study and NRC-e,i these cases has servttd to attention on the need'to n that enviro'nimenrial risk er probabilities and conseq'u that was madeiniithe p.ub Annex, but was not given emphis*:'..

In July 197 the NRC c6, Risk Assessment Review-clarify.t he-.achi.vem.ntsz ofthe Reactor safety stu conclusiofis of this study,

"'Risk Assessm'ent Revi to the U.S. NuclearReguhi Comraissioy,". wa*thaU1 Group was inabI le to dte the~absoluite: probabilities sequences inWASH-14X low, but beliea*yts that the on those estimnates are in greatly understated.'" ThiE findings of theRviepw*Gr subsequently-been'refe rr Envionmen-tal lipapfa t

with a reference tothe CGu po~lic~y statemepntbn theýR~

Review Group ReportpuIl Ja Inuary 18, 1979. -The Con d tp reat the probab

- any but the most ge uluptions

)-gast coar Sctors.-

onmentali ait conside Its 1111 Stater subsei acci'd landA ai id-cmd expi is&a thle-i impact ýiatemen ar power plants!r

-the Annex with

)ically. the-discus luences, throughI

-cidents] for each reviews ot accidents, accident clearly lea&~

a ch#nge is needed.

Accordingly, the pr Appendix D of 10 CH on December 1, 1971, withdrawn and shall used-by.;applicants-n(

reasons for the witlid followsý

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

(the dispersion *t*irelease-s

• 1 iis~i of iiterestthat, the* Reactor Safety Study. -.

never refets to nor uees the term 'Class S:accident"

..lthough thin-term ii c5ommoAusedas loosely equiva ekit-to a core-melt scdiL-

eX PrOBcnDeS ~-

'of the kinds. of accidents accordifigto thei Reactor dominate the. accident tion of. Class :9 accidents not sufficiently, precise irther use intCoinission id reguations, nor as a an in agency practice..

('9 prescription of be used in. the-, an1alysis tental consequences of not contribute to Jeratign.

cdoes not give adequate P the detailed treatment

ýen to prevent and to,

isequences of accidents ieewof each application.

ition of accidents..

t'Ainexcshall no longer

,lace, the followin v is given for the

-ident rinut in NEPJA reviews.

derations in Fuiture ie Commission Impact

),Seltion.102c)i mental Policy le a reasoned vironmentalrisks o accidents at the lities.within the ement. in the oi f-such risks, tention shall be of foccurrence of

)ability of 3,mental eleases.

ion and/or

. e eaenvronmental coinsequencesOfr releases-wIhse'prob0biity 4f. occurence has been estimated shall also be discussed in probabilistic terms. Such consequences shalfB be haracterized in terms of potential radiologi"cal exposwes to Indi"vIdai*. topopulation groups, and.,where applicable, to biota.

Health and safetyrisks that may be associated with expostre Uto people shall be discussed in a manner that fairly reflects the currenftstate of knowledge regarding such risks.

Socioeconomic' impacts that might be associated with emergency measures, during or following an, iacident should also be discussed& The enV*i"nmental risk of accidents' should. also be-compared to and contrasted.with radiological risks associated.with normal and anticipated operational relea'ses.

Inprom ati.g ti inteirmguidance, the. Coisnsion: is iaware. thatthere are and` Wil likely remain~i tor somlnetin'iie to come many uncertaiuties in the application oAfisk assessment methods, and it expects that-itsEnVironmental Impact Statements will identify major uncertainties injits probabilistic estimates. Ond the other hland the Commission believes ihat the state of the art is sufficiently advinced that a

-beginning shonld.now be made in the use of these methodologies I*nthe regulatory process, and that such use Will represent :a contructive and rational forward step in the discharge of its reponsibilities:

It is the intent of the Combmission in issuing this :Statement ofinterim Policy that the. staff willinitiate #tatments of accident-considerationSain accordance with the foregoing: guidance. in its" ongoingNEPA-reviews4 4e.*" for any proceeding *at alicensing stage where a Final 'Environmental Impact Statement has-not yet.been issued These new treatments, which will take into account significant site-and plant specific features, will result in more detailed discussions of accident riSks than in previous. environmental statements, particularly for those related to conventional light water plants at land-based sites. It isexpectedthat these revised treatments will lead to conclusions regarding the environmental risks'of accidents.sirmilar to those that would be reached by a continuation of current practices, particularly for cases involving special circumstances where Class.9 risks have been considered by the staff, as described above. Thus, this change in policy is not to be construed as any lack of confidence-in conclusions regarding the environmental risks of accidents expressed in any previously

,circumstances, as a basis tor opening, reopening,. or. expanding any previous o ongong.ro*ceeding..

Howe Iver, Witli also the intent of the Commission4that the staff take steps to identify additional

'cases that might warrant early consideration of either additional features or other actions which would prevent. or mitigate the consequences of serious ac6idents. -

Cases for such consideration are those for whicha, Final Environmental Statement has already been issued at the Con.tructi6n PerIit stage but for which the Operating License review.

stage has not yet been. reach r

ed, hI' carig out this directie -the staff should con"sider elevant site featur§es, includin"gppulatio' density,, associate(

with accidenit risk in comparison' to sodU features at presently eraiiig pl'fants:

tor adverse site teatures may be more easily incorporated'in plants when' construction has not yet progressed ivery far.

Environmental Reports s'ubmitted byr applicants for construction permits and for operating licenses on or after July 1, 1980 should include a discussion of the environmental risks associated with accidents thatfollows the guidance given herein.

Ridlited Policy Matters Under Consideration In addition to its responsibilities under NEPA, the NRC also bears respornsivbility under"the At'6*tOc'Energy Act for the protection of the public health and safety from the hazards associated with the ume of nuclear energy. Purs'uant to this'responsibility

.the Commission notes that there a-re currently a number of ongoing activities being considered. by the Cormmis.ro and its staff whi'ch intimately relate to the "Class9 9acdident" question and' which are either the subject of current rulemaking or are candidate s'ubjects for rulemaking.

On December 19, 1979 the Commission issued for ptiublic comment*0 a proposed rule which would significantly revise its requirements in 10 CFkPart 56 for emergency planning' for nuclear power plants.ý One of the consideratidns:in this rulemaking was!

r jway.,

uad water.

ces that

! but, not be ronably be ccident spectrum of nd :shall esult in fue* and to be extent to uses utors to the ticular plant ailed that form Jmiatebs Of

• rated in the mewts but Such applicable,

'Commissioners with the inclusion c They 'feel that they.

an even-hande~d, iei erroneous position.

44 FR 75167.

4~1O4 Federal Register I For the Nuclear ReguIatorY Commission.

samuelj.,"Chi:ic, Secretary of the.Commission.

,FR nec. 1I*5zl

.i...

1ILN 590-Ot-'

DEPARTMENT OF ENERGY' EconomiC RegulatO~rY AdministratiOn 10 CFR Parts 210,212.

loCkerts.

piR0-77'-

2El Reelr'and ReselW RetaPes" Price f'G A ne7 i

(fS l

b-jfl."1.

rese gast per bas or per typ rut*

ruli is.'

set ga se 88 AOENcy EconomicRegt r

.c.

o Administration, Department of EPnergy, Pt ACTION: Final rule-*

a SUMMARy'. The Department of Energy tIDPoE) hereby adopisatthree amtendments a

io it's reseller and re~ejle.-'retil6r price a

rules. First, smnall rellers and reselter.

v reta-ilers (sales in calen'dar ya 17 of n

5 million gallons of gag16 i1e o*i*l*ss) iae a

permitted the optJi-n 6t couputin

'acquisition cost" sin~ te fr hist Ori*jacGoun~*gn ractices r

r0.Consistentlly apiplied-;, Secoknd the normal business practices rule is,4arneid~to, treat ieseller-retailers eo"n isitnetlY With independent retailers thrpett retail gasol.ine sales.

the e x r e ti o -t o t h e r e f in e r 'e q u a

...ep 1

.at t

th r1' retiil sales'by application rule r consig eageents ' reinstated.,

DATE: Effective May 1. 1960.,

FOR" F WEiI.NFORMATIO"0ACT=-

Robert C.Gillette (Hearing Procedures).

,Economic Regulatory Adxninistration, Washington, D.C.- 2061ýTVZ (2(6534757 Williaim L.-Wdebb Office.of Publi

.*In0mation}, Ecoflomicge*uleatorY Str-eet, NCW.. Washington. D.tC. 20461J' (202)00 85-45 Qhuck Boehl: Meigulations'and-*

Emergency Planinin).E.conomic Regulatory Adminiustration. Room, 7204 2000 M Street.Nw.ý,iwashungtOtt D.C. 2046W (202* 53632062.

William Funk or.William Mayo 0;Lee (Office of*.General.Counsel),....

'f Department of Energy. Room 6A-127*

.00Ii'depende P

ee AV uef S S

S Washingt~n. D.C. 20585o

,202) 25273 or.252-6754,

1. ackgfli ned 3k ii d

tsraRequiirementi liers and resgller-reti8tf uline.vGeie rally. the ne nit resellers and*resell' npute maximum lawfUl ed on the acquisition c prade of:gasbline; plius gallon markup depenI e of sale,' plus tax costl e* aregimilar to th'ereI es adopted it julyý1979 inder the new rules; a' defined as the last-purr ilers with gas0lineiale lions or less in calenad tiers with sales of' mDr lions of gasoline'in c:al

,st of product in invent irsuantt tothe 'seier"Bi ccounhting practices cor pplied.**'

Generally,.the retailer dopted in July 1B79 Per Iter theiri 'normal busin tith respect to-sales of tew resellermretailei ul similar provission Ho) tther respects the JulY1 for independent retaile, reseller-retaiier piýcr, Finally, the6reqstyrict of iicreased comisi passed through in.Pri:

refineris was removed-however 'thpriovior refiners Ian Ie xcePtio application rule* to refi conmissions in the rel ph,. r ed bv con"ImissiO 1I. AniefdmeiJs~

Comments received issuance ofythý e rifei cost of prod uctiiiPY**

the last pur.che prir aqquisitidfl costGeri purchase product fri supplier at widely ye

'IWith respect tc estobli lawfd iein* price for gas of a Notfizseof PropeDpd Liu Contrary in that rule.nalti resellers..rese r-rt5eta sellers thait blend ',gasohaI lawful sellia

'p gae treats the gasoline atndal gasohol as Separate pioth component. of tle blede' price for gasol-

'if a.fl-m has conaI5s more ttbn im the cos.t 'of product inl in pirtce 'rules aini one for In ftmji maty'choose eithe-r 0 practices to determmeth Invilort nder the new rslrreaerrule: ThI, eonaistelitly apply thaiF On April 26,1960 t45 FR W"

294, May-2, 19800) DOE issued new.

"S:

rueor'

Contention 35/36 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

,30730095 930630 PDR IOCFR "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 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 contains regulatory documents having general applicability and legal effect, most of which are keyed to and codified in the Code of Federal Regulations, which is published under 50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

-the Superintendent of Documents. Prices of new books are listed in the first FEDERAL REGISTER issue of each week.

NUCLEAR REGULATORY COMMISSION 10 CFR Part 51 RIN 3150-AD63 Environmental Review for Renewal of Nuclear Power Plant Operating Licenses AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

SUMMARY

The Nuclear Regulatory Commission (NRC) is amending its regulations regarding environmental protection regulations for domestic licensing and related regulatory functions to establish new requirements for the environmental review of applications to renew the operating licenses of nuclear power plants. The amendment defines those environmental impacts forwhich a generic analysis has been performed that will be adopted in plant-specific reviews for license renewal and those environmental impacts for which plant-specific analyses are to be performed.

The amendment improves regulatory efficiency in environmental reviews for license renewal by drawing on the considerable, experience of operating nuclear power reactors to generically assess many of the environmental impacts that are likely to be associated with license renewal. The amendment also eliminates consideration of the need for generating capacity and of utility economics from the environmental reviews because these matters are under the regulatory jurisdiction of the States and are not necessary for the NRC's understanding of the environmental consequences of a, license renewal decision.

The increased regulatory efficiency will result in lower costs to both the applicant in preparing a renewal application and to the NRC for reviewing plant-specific applications and better focus of review resources on significant case specific concerns. The results should be a more focused and therefore a more effective NEPA review for each license renewal. The amendment will also provide the NRC with the flexibility to address unreviewed impacts at the site-specific stage of review and allow full consideration of the environmental impacts of license renewal.

The NRC is soliciting public comment on this rule for a period of 30 days. In developing any comment specific attention should be given to the treatment of low-level waste storage and disposal impacts, the cumulative radiological effects from the uranium fuel cycle, and the effects from the disposal of high-level waste and spent fuel.

DATES: Absent a determination by the NRC that the rule should be modified, based on comments received, the final rule shall be effective on August 5, 1996. The comment period expires on July 5, 1996.

ADDRESSES: Send comments to: The Secretary of the Commission, U.S.

Nuclear Regulatory Commission, Washington, DC 20555-0001, Attention:

Docketing and Services Branch, or hand deliver comments to the Office of the Secretary, One White Flint North, 11555 Rockville Pike, Rockville, Maryland between 7:30 a.m. and 4:15 p.m. on Federal workdays. Copies of comments received and all documents cited in the supplementary information may be examined at the NRC Public Document Room, 2120 L Street NW. (Lower Level),

Washington, DC between the hours of 7:45a.m. and 4:15 p.m. on Federal workdays.

FOR FURTHER INFORMATION CONTACT:

Donald P. Cleary, Office of Nuclear Regulatory Research, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone: (301) 415-6263; e-mail DPC@nrc.gov.

SUPPLEMENTARY INFORMATION:

I. Introduction II. Rulemaking History III. Analysis of Public Comments A. Commenters B. Procedural Concerns

1. Public Participation and the Periodic Assessment of the Rule and GELS

2. Economic Costs and Cost-Benefit Balancing

3. Need for Generating Capacity and Alternative Energy Sources C. Technical Concerns

1. Category and Impact Magnitude Definitions

2. Surface Water Quality

3. Aquatic Ecology

4. Groundwater Use and Quality

5. Terrestrial Ecology

6. Human Health

7. Socioeconomics

8. The Uranium Fuel Cycle and Solid Waste Management

9. Accidents

10. Decommissioning

11. Need for Generating Capacity

12. Alternatives to License Renewal

13. License Renewal Scenario

.14. Environmental Justice IV. Discussion of Regulatory Requirements A. General Requirements B. The Environmental Report

1. Environmental Impacts of License Renewal

2. Consideration of Alternatives C. Supplemental Environmental Impact Statement

1. Public Scoping and Public Comments on the SEIS

2. Commission's Analysis and Preliminary Recommendation

3. Final Supplemental Environmental Impact Statement D. NEPA Review for Activities Outside NRC License Renewal Approved Scope V. Availability of Documents VI. Submittal of Comments in an Electronic Format VII. Finding of No Significant Environmental Impact Availability VIII. Paperwork Reduction Act Statement IX. Regulatory Analysis X. Regulatory Flexibility Act Certification XI. Small Business Regulatory Enforcement I

Fairness Act XII. Backfit Analysis I. Introduction The Commission has amended its environmental protection regulations in 10 CFR part 51 to improve the efficiency of the process of environmental review for applicants seeking to renew an operating license for up to an additional 20 years. The amendments are based on the analyses conducted for and reported in NUREG-1437, "Generic Environmental Impact Statement for License Renewal of Nuclear Plants" (May 1996). The Commission's initial decision to undertake a generic assessment of the environmental impacts associated with the renewal of a nuclear power plant operating license was motivated by its beliefs that:

(1) License renewal will involve 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 insignificant. Further, the Commission has conducted EAs for seven specific licensed ISFSIs and has reached a finding of no significant environmental impact for each site. Each EA addressed the impacts of construction, use, and decommissioning. Potential impacts that were assessed include radiological impacts, land use, terrestrial resources, water use, aquatic resources, noise, air quality, socioeconomics, radiological impacts during construction and routine operation, and radiological impacts of off-normal events and accidents. Trends in onsite spent fuel storage capacity and the volume of spent fuel that will be generated during an additional 20 years of operation are considered in the GEIS.

Spent fuel storage capacity requirements can be adequately met by ISFSIs without significant environmental impacts. The environmental impacts of onsite storage of spent fuel at all plants have been adequately assessed in the GElS for the purposes of an environmental review and agency decision on renewal of an operating license; thus, no further review within the license renewal proceeding is required. This provision is relative to the license renewal decision and does not alter existing Commission licensing requirements specific to on-site storage of spent fuel.

The environmental impacts from the transportation of fuel and waste attributable to license renewal are found to be small when they are within the range of impacts of parameters identified in Table S-4. The estimated radiological effects are within regulatory standards. The nonradiological impacts are those from periodic shipments of fuel and waste by individual trucks or rail cars and thus would result in infrequent and localized minor contributions to traffic density.

Programs designed to further reduce risk, which are already in place, provide for adequate mitigation. Recent, ongoing efforts by the Department of Energy to study the impacts of waste transportation in the context of the multi-purpose canister (see, 60 FR 45147, August 30, 1995) suggest that there may be unresolved issues regarding the magnitude of cumulative impacts from the use of a single rail line or truck route in the vicinity of the repository to carry all spent fuel from all plants. Accordingly, NRC declines to reach a Category 1 conclusion on this issue at this time. Table S-4 should continue to be the basis for case-by-case evaluation of transportation impacts of fuel and waste until such time as a detailed analysisof the environmental impacts of transportation to the proposed repository at Yucca Mountain becomes available.

9. Accidents Concern. Several commenters expressed concerns regarding the appropriateness of the severe accident determination in the GEIS and with the treatment of severe accident mitigation design alternatives (SAMDAs) for license renewal. A group of commenters identified areas of concern that they believe justify severe accidents being classified as a Category 3 issue. The areas included seismic risks to nuclear power plants and site-specific evacuation risks. Several commenters questioned whether the analyses of the environmental impacts of accidents were adequate to make a Category I determination for the issue of severe accidents. The contention is that a bounding analysis would be established only if plant-specific analyses were performed for every plant, which was not the case. Instead, the GEIS analysis made use of a-single generic.source term for each of the two plant types.

Response. The Commission believes that its analysis of the impacts of severe accidents is appropriate. The GEIS provides an analysis of the consequences of severe accidents for each site in the country. The analysis adopts standard assumptions about each site for parameters such as evacuation speeds and distances traveled, and uses site-specific estimates for parameters such as population distribution and meteorological conditions. These latter two factors were used to evaluate the exposure indices for these analyses. The methods used result in predictions of risk that are adequate to illustrate the general magnitude and types of risks

• that may occur from reactor accidents.

Regarding site-evacuation risk, the radiological risk to persons as they evacuate is taken into account within the individual plant risk assessments that form the basis for the GEIS. In addition, 10 CFR Part 50 requires that licensees maintain up-to-date emergency plans. This requirement will apply in the license renewal term as well as in the current licensing term.

As was done in the GEIS analysis, the use of generic source terms (one set for PWRs and another for BWRs) is consistent with the past practice that has been used and accepted by the NRC for individual plant Final Environmental Impact Statements (FEISs). The purpose of the source term discussion in the GEIS is to describe whether or not new information on source terms developed after the completion of the most recent FEISs indicates that the source terms used in the past under-predict environmental consequences. The NRC has concluded that analysis of the new source term information developed over the past 10

.years indicates that the expected frequency and amounts of radioactive release under severe accident conditions are less than that predicted using the generic source terms. A summary of the evolution of this research is provided in NUREG-1 150, "Severe Accident Risks:

An Assessment for Five U.S. Nuclear Power Plants" (December 1990), and its supporting documentation. Thus, the analyses performed for the GEIS represent adequate, plant-specific estimates of the impacts from severe accidents that would generally over-predict, rather than under-predict, environmental consequences. Therefore, the GEIS analysis of the impacts of severe accidents for license renewal is retained and is considered applicable to all plants.

Based on an evaluation of the comments, the Commission has reconsidered its previous conclusion in the draft GEIS concerning site-specific consideration of severe accident mitigation. The Commission has determined that a site-specific consideration of alternatives to mitigate severe accidents will be required at the' time of license renewal unless a previous consideration of such alternatives regarding plant operation has been included in a final environmental impact statement or a related supplement. Because the third criterion required to make a Category 1 designation for an issue requires a generic consideration of mitigation, the issue of severe accidents must be reclassified as a Category 2 issue that requires a consideration of severe accident mitigation alternatives, provided this consideration has not already been completed. The Commission's 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).

Although the Commission has considered containment improvements for all plants pursuant to its Containment Performance Improvement (CPI) program, which identified potential containment improvements for site-specific consideration by licensees,'

Federal Register / Vol. 61, No. 109 /MWednesday, June 5, 1996 / Rules and Regulations 28481 and the Commission has additional ongoing regulatory programs whereby licensees search for individual plant vulnerabilities to severe accidents and consider cost-beneficial. improvements, these programs have not yet been completed. Therefore, a conclusion that severe accident mitigation has been generically considered for license renewal is premature.

The Commission believes it unlikely that any site-specific consideration of severe accident mitigation alternatives for license renewal will identify major plant design changes or modifications that will prove to be cost-beneficial for reducing severe accident frequency or consequences. This Commission expectation regarding severe accident mitigation improvements is based on the analyses performed to date that are discussed below.

The Commission's CPI program examined each of the five U.S.

containment types to determine potential failure modes, potential plant improvements, and the cost-effectivenesses of such improvements.

As a result of this program, only a few containment improvements were found to be potentially beneficial and were either identified for further NRC research or for individual licensee evaluation.

In response to the Limerick decision, an NRC staff consideration of SAMDAs was specifically included in the Final Environmental Impact Statement for the Limerick 1 and 2 and Comanche Peak 1 and 2 operating license reviews, and in the Watts Bar Supplemental Final Environmental Statement for an operating license. The alternatives evaluated in these analyses included the items previously evaluated as part of the CPI Program, as well as improvements identified through other risk studies and analyses. No physical plant niodifications were found to be cost-beneficial in any of these severe accident mitigation considerations.

Only plant procedural changes were identified as being cost-beneficial.

Furthermore, the Limerick analysis was for a high-population site. Because risk is generally proportional to the population around a plant, this analysis suggests that other sites are unlikely to identify significant plant modifications that are cost-beneficial.

Additionally, each licensee is performing an individual plant examination (IPE) to look for plant vulnerabilities to internally initiated events and a separate IPE for externally initiated events (IPEEE). The licensees were requested to report their results to the Commission. Seventy-eight IPE submittals were received and seventy-five IPEEE submittals will be received, covering all operating plants in the United States. These examinations consider potential improvements to reduce the frequency or consequences of severe accidents on a plant-specific basis and essentially constitute a broad search for severe accident mitigation alternatives. The NRC staff is conducting a process review of each plant-specific IPE submittal and IPEEE submittal. To date, all IPE submittals have received a preliminary review by the NRC with 46 out of 78 completed; for the IPEEE submittals, 24 of the 75 are under review. These IPEs have resulted in a number of plant procedural or programmatic improvements and some plant modifications that will further reduce the risk of severe accidents.

In conclusion, the GElS analysis of severe accident consequences and risk is adequate, and additional plant-specific analysis of these impacts is not required. However, because the ongoing regulatory program related to severe accident mitigation (i.e., IPE and IPEEE) has not been completed for all plants and consideration of severe accident mitigation alternatives has not been included in an EIS or supplemental EIS related to plant operations for all plants, a site-specific consideration of severe accident mitigation alternatives is required at license renewal for those plants for which this consideration has not been performed. The Commission expects that if these reviews identify any changes as being cost beneficial, such changes generally would be procedural and programmatic fixes, with any hardware changes being only minor in nature and few in number.

NRC staff considerations of severe accident mitigation alternatives have already been completed and included in an EIS or supplemental EIS for Limerick, Comanche Peak, and Watts Bar. Therefore, severe accident mitigation alternatives need not be reconsidered for these plants for license renewal.

Based on the fact that a generic consideration of mitigation is not performed in the GElS, a Category 1 designation for severe accidents cannot be made. Therefore, the Commission has reclassified severe accidents as a Category 2 issue, requiring only that alternatives to mitigate severe accidents be considered for those plants that have not included such a consideration in a previous EIS or supplemental EIS. The Commission notes thatupon completion of its IPE/IPEEE 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.

The Commission does not intend to prescribe by rule the scope of an acceptable consideration of severe accident mitigation alternatives for license renewal nor does it intend to mandate consideration of alternatives identical to those evaluated previously.

In general, the Commission expects that significant efficiency can be gained by using site-specific IPE and IPEEE results in the consideration of severe accident mitigation alternatives. The IPEs and IPEEEs are essentially site-specific PRAs that identify probabilities of core damage (Level 1 PRA) and include assessments of containment performance under severe accident conditions that identify probabilities of fission product releases (Level 2 ). As discussed in Generic Letter 88-20, "Individual Plant Examination for Severe Accident Vulnerabilities" (November 23, 1988), one of the important goals of theIPE and IPEEE was to reduce the overall probabilities of core damage and fission product releases as necessary by modifying

.hardware and procedures to help prevent or mitigate severe accidents.

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. For example, a licensee could use information provided in the GEIS analysis (exposure indices, wind frequencies, and demographics) to translate the dominant contributors to CDF and the large release frequencies from the IPE/IPEEE results into dose estimates so that a cost-benefit determination can be performed. In some instances, a consideration of the magnitude of reduction in the site-specific CDF and release frequencies alone.(i.e., no conversion to a dose estimate) may be sufficient to conclude that no significant reduction in off-site risk will be provided and, therefore, implementation of a mitigation alternative is not warranted. The Commission will review each severe accident mitigation consideration provided by a license renewal applicant on its merits and determine whether it

Contention 35/36 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 and opinions of authors expressed herein do not rneessarity state or reflect those of the United States Government or any agency thereof.

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 iii NUREG/BR-0194

Contention 35/36 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 Plansfor Environmental 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, Generic Environmental Impact Statement for 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 Environmental Statement for License Renewal of Nuclear Plants (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, Regulatory Analysis Guidelines of the U.S. Nuclear Regulatory Commission, Final Report (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 Considerations in 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 Evaluation Report 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 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 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:

1. Federal Register Notice

2. Letter of Denial Package Accession No.: ML003750136 SECY Paper Accession No.: ML003750123 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 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 contains notices to the public of the proposed issuance of rules and regulations. The purpose of these notices is to give interested persons an opportunity to participate in the rule making prior to the adoption of the final rules.

NUCLEAR REGULATORY COMMISSION 10 CFR Part 51

[Docket No. PRM 51-7]

Nuclear Energy Institute; Denial of Petition for Rulemaking AGENCY: Nuclear Regulatory Commission.

ACTION: Denial of petition for rulemaking.

suMMARY: The Nuclear Regulatory Commission (NRC) is denying a petition for rulemaking submitted by the Nuclear Energy Institute (NEI) (PRM-51-7). The petitioner requested that the NRC amend its regulations to delete the requirement to consider Severe Accident Mitigation Alternatives (SAMAs) as part of the environmental review to support license renewal decisions. The NRC is denying the petit.ion because the NRC must continue to consider SAMAs for issuance of a new or renewed operating license for a power reactor in order to meet its responsibilities under the National Environmental Policy Act (NEPA),

notwithstanding the legal arguments presented in the petition. However, the NRC staff will continue to work.with stakeholders to determine if efficiencies in the conduct of SAMA analyses for environmental reviews can be realized.

ADDRESSES: Copies of the petition for rulemaking, the public comments received, and the NRC's letter of denial to the petitioner are available for public inspection or copying for a fee, at the NRC's Public Document Room, located at One White Flint North, 11555 Rockville Pike (first floor), Rockville, Maryland. These documents are also available at the NRC's rulemaking website at http://ruleforum.lin1.gov FOR FURTHER INFORMATION CONTACT:

Donald P. Cleary, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-3903, e-mail dpc@nrc.gov.

SUPPLEMENTARY INFORMATION:

Background

On July 14, 1999, the NRC received a petition for rulemaking submitted by the NEI, by letter dated July.13, 1999. On September 2, 1999 (64 FR 48117), the NRC published a notice of receipt of the petition (PRM-51-7). The petitioner requested that the NRC amend its regulations to delete the requirement for the NRC to evaluate Severe Accident Mitigation Alternatives (SAMAs) as part of its National Environmental Policy Act (NEPA) review associated with license renewal, The petitioner requests 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.

The technical requirements for renewal of operating licenses are specified in 10 CFR part 54 (60 FR 22461; May 8, 1995). This regulation focuses the license renewal review on certain types of systems, structures, and components that the NRC has determined require evaluation to ensure that the effects of aging will be adequately managed in the period of extended operation. This regulation is based on two regulatory principles. The first principle of license renewal is that, with the possible exception of the detrimental effects of aging on the functionality of certain plant systems, structures, and components in the period of extended operation and possibly a few other issues related to safety only during extended operation, the ongoing regulatory process is adequate to ensure that the licensing bases of all currently operating plants provide and maintain an acceptable level of safety. The second principle of license renewal is that the plant-specific licensing basis must be maintained during the renewal term in the same manner and to the same extent as during the original licensing term. This principle is attained, in part, through a program of age-related degradation management for systems, structures, and components that are within the scope of license renewal. There is no requirement in 10 CFR part 54 for-analysis of SAMAs.

The NRC's regulations implementing NEPA appear in 10 CFR part 51. The regulations contain specific provisions related to the requirements for the environmental review of applications to renew the operating licenses of nuclear power plants. See, for example, 10 CFR 51.53(c) and Subpart A, Appendix B.

The regulations were developed to improve the efficiency of the process of environmental review for applicants seeking to renew a nuclear power plant operating license for up to an additional 20 years. The regulations are based on generic analyses reported in NUREG-1437, "Generic Environmental Impact Statement for License Renewal of Nuclear Plants" (May 1996) and in part on NUREG-1437, Vol. 1, Addendum 1 (August 1999). Those environmental issues for which the NRC made generic findings that may be adopted in individual plant license renewal reviews are defined as Category 1 issues in the rule. Those environmental issues that require further site-specific review are defined as Category 2 issues in the rule. The regulations also provide for the consideration of "new and significant information" that might change a previous finding or introduce issues not. previously reviewed and codified in the regulations.

With respect to the issue of environmental effects of severe accidents from license renewal, the NRC found that the probability weighted consequences are small. Specifically, the regulations state in Table B-I: "The probability-weighted consequences of atmospheric releases, fallout onto open bodies of water, releases to groundwater, and societal and economic impacts from severe accidents are small for all plants." Accordingly, the impacts of severe accidents are encoded in the rule and are not open for review in individual license renewal actions.

However, one of the criteria for a Category 1 finding is, as stated in footnote 2 of Table B-i, Part 51, "Mitigation of adverse impacts associated with the issue have been considered in the analysis, and it has been determined that additional plant-specific mitigation measures are likely not to be sufficiently beneficial to warrant implementation." At the time the final rule was promulgated in 1996, the NRC discussed the ongoing regulatory programsfocused on individual plant vulnerabilities to severe accidents and cost-beneficial improvements for reducing severe

Federal Register/Vol. 66, No. 34/Tuesday, February 20, 2001/Proposed Rules 10835 accident frequency or consequences. For each plant, an individual plant examination (IPE) to look for plant vulnerabilities to internally initiated events and a separate IPE for externally initiated events (IPEEE) was performed (61 FR 28467; June 5, 1996). The NRC believed that it would be premature to reach a generic conclusion regarding severe accident mitigation alternatives

.before completing these programs.

Therefore, even though the Commission has reached a generic conclusion on the magnitude of severe accident impacts, the issue is nevertheless designated as a Category 2 issue because of the unresolved questions regarding

.mitigation, and applicants for license renewal are subject to the following requirement at 10 CFR 51.53(c)(3)(ii)(L):

"If the staff has not previously considered severe accident mitigation alternatives for the applicant's plant in an environmental impact statement or in an environmental assessment, a consideration of alternatives to mitigate severe accidents must be provided."

The NRC stated, "- *

• that upon completion of its IPE/rPEEE 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" (61 FR 28481; June 5, 1996).

The Petition The petition was submitted by the Nuclear Energy Institute (NEI) by letter dated July 13, 1999. Its receipt was noticed in the Federal Register on September 2, 1999 (64 FR 48117), with a full description of its content. The petitioner requested the NRC "*

• to delete 10 CFR 51.53(c)(3)(ii)(L) and, thereby, eliminate the requirement for NRC to evaluate SAMAs as part of the NEPA review associated with license renewal." The rulemaking would include conforming changes to 10 CFR part 51, Appendix B and NUREG-1437.

The petitioner requests elimination of the requirement for SAMA reviews in 10 CFR part 51 on the belief that the requirement conflicts with the technical requirements for license renewal in 10 CFR part 54. 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. The petitioner's argument, briefly stated, is as follows.

The petition makes reference to the two principles of license renewal, discussed in the Background section above. The first principle focuses the license renewal review on age-related degradation of plant systems, structures, and components. The second principle is continuation of the current licensing basis during the renewal term, in part, through a program of age-related degradation management of systems, structures, and components that are important to license renewal. The petitioner notes that 10 CFR 54.39, "Matters not subject to a renewal review," specifically provides that deviations from the current licensing basis identified in the integrated plant assessment performed for license renewal will be corrected under the terms of the current license and are not within the scope of the license renewal review. The petitioner then states that actions to evaluate and address SAMAs are part of each licensee's 'current licensing basis, citing the IPE and IPEEE program to identify and evaluate plant-specific severe accident vulnerabilities and ways to rrmitigate those vulnerabilities.

Concluding that SAMAs are outside of the scope of a 10 CFR part 54 license renewal review, the petitioner then presents legal arguments for deleting SAMAs from the NEPA review. The essence of these arguments is that 10 CFR part 54 defines the scope of the proposed Federal action, and that Federal action establishes the scope of environmental consequences of license renewal that are to be reviewed under NEPA. Citing several court cases, the petitioner asserts that this approach is consistent with the "rule of reason" that generally governs environmental impact reviews under NEPA. The petitioner then states, "Thus, under the 'rule of reason,' the impacts appropriately considered under NEPA would be those that reasonably flow from the part 54 decision-making." Next, the petitioner cites two cases to support the position that there should be no consideration of SAMAs for license renewal. In City of Aurora v. Hunt, the court ruled that a new procedure to use a specific airport runway in particular weather conditions involved.

• ... no significant safety impact * *

• to trigger further assessment or inquiry under NEPA."

749 F.2d 1457, 1468 n. 8 (10th Cir.

1984) overruled on other grounds by Village of Los Ranchos de Albuquerque

v. Marsh, 956 F.2d 970 (10th Cir. 1992).

In the second court case, Upper Snake River Chapter of Trout Unlimited v.

Hodel, the court ruled that the Department of Interior did not have to prepare an environmental impact statement (EIS) to adjust the flow of water from a dam to accommodate drought conditions where the range of flow change was within the contemplation of the original project.

921 F.2d 232, 235 (9th Cir. 1990). The petitioner concludes from these decisions that a NEPA review of SAMAs is not required in the license renewal review because, (1) the current licensing basis is not subject to evaluation in a license renewal review, and (2) by maintaining the current licensing basis in the renewal term, there will be no change in risk of a severe accident due to license renewal.

The petitioner goes on to assert that NRC's requirement to include SAMAs in NEPA license renewal reviews was based on an overly broad application of language in the Limerick Ecology Action

v. NRC, 869 F.2d 719 (3rd Cir. 1989),

decision and that the decision -

leaves undisturbed the proposition that the 'rule of reason' defines whether the EIS has addressed the significant aspects of the probable environmental consequences * *

• that reasonably may flow from the proposed action-renewing a plant's license as that plant is currently designed and operated."

Finally, citing a number of court cases, the petitioner argues that -* *

• judicial precedents allow the NRC to eliminate SAMAs from consideration in license renewal proceedings based on a determination, through proper rulemaking, that severe accidents are highly unlikely."

Public Comments on the Petition 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 information to support.

the arguments made in the petition.

Except for one comment, Comment 1 below, all of the comments made by supporters of the petition reiterated arguments made in the petition. Because those arguments are addressed in the NRC's reasons for denying the petition they are not addressed in the comment response below. A public interest group provided the one letter opposed to the petition, and NRC's responses to their comments are provided below.

Comment 1: A utility commented-that the costs of performing the SAMA reviews required by Part 51 are not justified when compared to the small potential safety benefits that result from the reviews, when the costs associated with implementing changes to realize those benefits are evaluated, and when the fact that the reviews are largely duplicative of the previously completed Individual Plant Examination (IPE) and Individual Plant Examination for

10836 Federal Register/Vol. 66, No. 34/Tuesday, February 20, 2001/Proposed Rules External Events (IPEEE) programs is considered.

Response: The NRC believes that it should-continue to consider SAMAs for individual license renewal applications to continue to meet its responsibilities under NEPA. That statute requires NRC to analyze the environmental impacts of its actions and consider those impacts in its decisionmaking. In doing so, Section 102(2)(C) of NEPA implicitly requires agencies to consider measures to mitigate those impacts when preparing impact statements. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989). NRC's obligation to consider mitigation exists whether or not mitigation is ultimately found to be cost-beneficial and whether or not mitigation ultimately will be implemented by the licensee. Id. The NRC understands that a SAMA analysis can be relatively expensive and is prepared to discuss.ways in which SAMA analyses can be conducted efficiently while, at the same time, ensuring that NRC meets its NEPA responsibilities.

Comment 2: Granting the petition would continue the NRC's recent course of "regulatory subtraction" during which it has "methodically amputated and dismantled its statutory authority."

Further, numerous site-specific and generic challenges have precipitated "beyond design basis" events, and demonstrate that it is imperative to maintain Severe Accident Mitigation Alternatives evaluations.

Response: The NRC has denied the petition because it believes that the legal arguments presented are insufficient to demonstrate that a license renewal NEPA review need not consider alternatives to mitigate the potential for and consequences of severe accidents.

Comment 3: Given the NRC's shrinking budget, "this type of frivolous legal action must be indexed to punitive damages." NEI "must be held accountable, and reimburse the NRC for all legal and administrative costs associated with this malicious petition."

Response: While NRC has denied the petition, NRC does not believe that there are any aspects of the submittal that would suggest an abuse of the petition process. Accordingly, whether or not reimbursement measures are even available to the Commission, no Commission action is warranted in this regard.

Reasons for Denial The Commission is denying the petition for the following reasons:

1. Scope of the License Renewal Rule The petitioner's principal argument for the elimination of SAMAs as part of the NEPA review associated with individual license renewal reviews is that the scope of license renewal establishes a basis for deleting SAMAs from associated NEPA reviews. In particular, the petitioner believes that because the NRC's safety review under Part 54 does not require consideration of all aspects of plant operation and administration, the agency's review of environmental impacts under NEPA should be similarly limited. In its petition and subsequent comments, NEI identified several Federal court cases and NRC decisions to support its position.I The petitioner believes that the primary thrust of these cases is that no consideration of impacts is necessary where the proposed Federal action would not change the status quo. In its comments, the petitioner indicated that "itlhe line of cases using the status quo analysis does not turn on maintaining the level of safety per se, but on whether the major federal action will change the operation of the facility sufficient to warrant an inquiry into the changes in environmental effect."

The Commission does not find the petitioner's arguments here compelling.

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. Thus, the review of the environmental impacts of this Federal action under the provisions of Part 51 appropriately involves the consideration of environmental impacts caused by 20 additional years of operation. The petitioner is correct in stating 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 addressed in the NRC's safety review under Part 54. In fact, the vast majority of environmental impacts from license renewal required to be considered by the NRC under its NEPA review (in accordance with Part 51) are not included in the analysis conducted in fulfilling the NRC's Atomic Energy City of Aurora v. Hunt, 749 F.2d 1457 (loth Cir.

1984)(overruled on other grounds); Upper Snake River Chapter of Trout Unlimited v. Hodel, 921 F.2d 232, 235 (9th Cir. 1990); Consumers Power Company, (Big Rock Point Nuclear Plant), ALAB-636, 13 NRC 312 (1982); and General Electric Company (GE Morris Operation Spent Fuel Storage Facility), LBP-82-14, 15 NRC 530 (1982).

Act responsibilities under Part 54 (see, 10 CFR part 51 Subpart A, Appendix B, Table B-1).

However, under NEPA the NRC is charged with considering all of the environmental impacts of its actions, not just the impacts of specific technical matters that may need to be reviewed to support.the action. These impacts may involve matters outside of the NRC's jurisdiction or matters within its jurisdiction that, for sound reasons, are not otherwise addressed in the NRC's safety review during the licensing process. 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 conducting its safety review under Part 54 does not excuse it from considering the impact in meeting its NEPA obligations.

The Commission does not believe that the various cases offered by the petitioner provide convincing support for the elimination of the review of SAMAs. It would appear that the logical extension of many ofthe petitioner's arguments go far beyond the mere elimination of SAMAs conisideration from license renewal reviews. Indeed, to the extent that license renewal involves a continuation of impacts already experienced at the site under the current operating.license, the arguments made by the petitioner would appear to call for the elimination of almost the entire environmental review of impacts from operation during the license renewal term, a position clearly at odds with the Commission's approach to the matter and also, as discussed below, inconsistent with case law related to relicensing.

The Commission does not dispute that a line of cases exists under NEPA law which excuses agencies from preparing EISs (or considering certain environmental impacts) where the Federal action does not change existing environmental conditions. See, for example, State of North Carolina v.

Federal Aviation Administration, 957 F.2d 1125 (4th Cir. 1992); Cronin v.

Department of Agriculture, 919 F.2d 439 (7th Cir. 1990). In most of these cases, the Federal action taken does not itself create any additional impacts to activities that are ongoing and will continue with or without the Federal action. None of these cases appears to provide firm support for the petitioner's argument that the NRC can ignore the 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 circuit court squarely addressed the.

issue of relicensing and concluded that there is the need to consider environmental impacts in that context.

In Confederated Tribes and Bands of the Yakima Indian Nation v. Federal Energy Regulatory Commission, 746 F.2d 466 (9th Cir. 1984), the Ninth Circuit Court of Appeals considered whether the Federal Energy Regulatory Commission (FERC) was required to prepare an EIS for its relicensing decision for the Rock Island Dam. In response to the FERC's argument that there had been "no change in the status quo" and thus no EIS was necessary, the court found:

Relicensing is more akin to an irreversible and irretrievfable commitment of a public resource than a mere continuation of the status quo. [Citation omitted] Simply because the same resource had been committed in the past does not make relicensing a phase in a continuous activity.

Relicensing involves a new commitment of the resource, which in this case lasts for a forty-year period.2 The court's statements here are consistent with NRC's position and its practice in promulgating and implementing the license renewal rule.

The cases offered in support of the petitioner's arguments offer no comnpelling reasons to alter this approach.

In City of Aurora v. Hunt,3 the Federal Aviation Administration (FAA), through a rulemaking, approved a new approach procedure for the Stapleton airport in order to reduce delays caused by the use of the existing procedure during periods of low visibility. The City of Aurora challenged the rule claiming, among other things, that the FAA failed to discuss the safety risks of the new procedure in its environmental assessment. In ruling against the City's claim, the Court pointed out that the FAA was required by law to issue the new procedure only if it did not involve a change in safety risk. The FAA considered and responded to a vast number of safety concerns as part of the rulemaking process. Accordingly, the Court found that the agency's approval of the procedure, in itself, was adequate to fulfill the agency's responsibility under NEPA. In a footnote, the Court explained that "'wihile an agency may be required to consider the effects that will occur if a risk is realized, where no increase in risk is permitted, as here, no significant safety impact exists to trigger 2746 F.2d 466 at 476-477.

3749 F.2d 1457 (loth Cir. 1984).

further assessment or inquiry under NEPA." 7.49 F.2d at 1468, n. 8.

While certain aspects in the City of Aurora decision provide some general support for the petitioner's argument, the facts in that case do not appear to be sufficiently analogous to support the elimination of SAMAs reviews for license renewal. First of all, the Court found the FAA's decision to permit the new procedure, in essence, served as a finding of an equivalent level of flight safety and thus allowed the FAA to meet its NEPA obligations even though safety was not explicitly considered in the EA itself. Under NRC's license renewal process, NRC's review under Part 54 does not itself meet the agency's NEPA obligations. Environmental issues such as the potential impacts of severe accidents during the license renewal term do not fall under the Part 54 review. Accordingly, unlike the FAA in City of Aurora, NRC cannot use the Part 54 process as the vehicle for meeting its NEPA responsibilities for considering SAMAs in the license renewal context in the same way that the FAA was allowed to use its procedure approval process in City of Aurora. Secondly, it should be noted that, absent the NRC's decision to approve a license renewal application, the licensee's plant will not operate an additional 20 years.

Accordingly, the NRC's action is a "but for" cause of those additional impacts and NRC has the responsibility to consider those impacts under NEPA. In City of Aurora, the FAA's rule permitted the use of a new landing procedure at the airport. While there is no explicit discussion in the decision, it appears that the current landing procedures at the airport would have continued whether or not FAA had issued the new procedure. Accordingly, the status quo in the context of the City of Aurora decision appears to have been the continued operation of the airport, whereas the status quo in the context of license renewal is the expiration of the facility's operating license.

Similarly, the decision in Upper Snake River Chapter of Trout Unlimited

v. Hodel4 does not appear to provide strong support for the petitioner's proposal. In that case, the court found that the reduction in river flows approved by Federal agencies was not a major Federal action within the meaning of NEPA. The court held that, in allowing the flow reductions, the Federal defendants were "simply operating the facility in the manner intended" and that they were doing "nothing new, nor more extensive, nor other than that contemplated when the

'921 F.2d 232 l9th Cir. 1990).

project was first operational." 921 F.2d at 235. In other words, the flow reductions were part of the normal operations originally approved by the agencies in that case. Conversely, in the license'renewal context, the additional 20 years of operation authorized by a renewed license were not considered during the initial licensing of the facility. Thus, the reasoning in Upper Snake River Chapter does not appear to be applicable to NRC's license renewal decisions. The Commission believes, and has stated before, that a license renewal decision by NRC is a major Federal action that warrants the preparation of an environmental impact statement (61 FR 55637, 66541; December 18, 1996).

In submitting comments on its petition, NEI identified several NRC decisions which it believes support its position. The first, Consumers Power Company (Big Rock Nuclear Plant)

ALAB 636, 13 NRC 312 (1982), involved a license amendment request to expand the Big Rock Point Nuclear Plant's spent fuel pool. As NEI indicates, the Appeal Board emphasized the limited scope of the request in rejecting claims that aspects of the plant's continued operation should also be considered in the EA. As quoted by the petitioner, the Appeal Board found that "there are no environmental changes to evaluate" with the secondary or indirect effects (e.g., the plant's continued operation) of the spent fuel pool licensing decision.

13 NRC at 328. The petitioner's comments indicate that:

' The Appeal Board correctly noted that, by granting the license amendment request, the Commission is not also issuing approval to alter any other aspect of the plant's operation or the licensed operating term of the facility.

Petition for Rulemaking (Docket No.

PRM-51-7; July 13, 1999), letter from NEI to Secretary, NRC, dated November 16, 1999, at pp. 2, 3. The Commission believes that the petitioner's own statement here demonstrates the lack of support Consumers Power Company provides for its own position. In the context of license renewal, the Commission is, in fact, approving an extension of the licensed operating term of the facility. Accordingly, the facts in Consumers Power Company are not analogous to those presented by license renewal. While the Commission has appropriately decided through rulemaking that it may focus its safety evaluation on certain matters specified in Part 54, its overall license renewal decision applies to the operation of the entire plant. Therefore, the limited 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 renewal context.

Finally, petitioners have also cited General Electric (Morris Operation Spent Fuel Storage Facility) LBP-82-14, 15 NRC 530 (1982). In that case, the Atomic Safety and Licensing Board ruled that NRC did not have to issue an EIS for the license renewal of a storage facility. However, in that case, the NRC staff did issue an environmental impact appraisal (referred to under current NRC regulations as an environmental assessment (EA)) for the action. There is no suggestion that the NRC staff was free to eliminate or ignore consideration of the impacts of the action. Rather, the Board agreed with the NRC staff that the impacts of the action were not significant enough to warrant the preparation of a full EIS and, instead, an environmental impact appraisal was sufficient. The Commission believes that the preparation of EISs, not EAs, are appropriate in the context of license renewal. However, whether an EIS or an EA is prepared for a particular action, the Commission still is responsible for considering the environmental impacts of the action. Accordingly, this case seems to provide little support for the petitioner's position.

2. Impact of the Limerick Decision The petitioner is correct in stating that the 3rd Circuit's holding in Limerick Ecology Action v. NRC does not itself preclude NRC from ever eliminating SAMA reviews from its licensing actions. Specifically, 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 (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 address in order to eliminate the consideration of SAMAs. In addition to holding that the NRC could not eliminate consideration of these SAMAs through a policy statement, the court also suggested that the generic consideration of SAMAs may be difficult to accomplish given differences in individual plants. 869 F.2d at 733-739. In addition, as the petitioner has indicated, the court rejected NRC's argument that severe accidents were remote and speculative because there was no basis for this conclusion in the agency's record. Id. at 739-741.

Despite the adverse ruling handed to NRC, the Limerick decision outlines several paths the Commission could attempt to follow in order to eliminate the requirements to analyze both severe accidents and associated mitigation alternatives in individual license renewal reviews. First of all, the Commission could attempt to conclude generically through rulemaking that it has considered these matters and that further consideration in individual license renewal actions is not warranted. In other words, the NRC would change the designation of the severe accident issue to "Category 1" for license renewal in Appendix B of 10 CFR part 51. Secondly, as discussed in Section 3 of this notice, the Commission could eliminate consideration of SAMAs for license renewal based on a finding that severe accidents, in the context of plant operation during the license renewal term, are remote and speculative.

The Commission believes that insufficient information is available to conclude generically that a SAMA analysis is not warranted for individual plant license renewal reviews. In promulgating the license renewal rule in 1996, the Commission indicated that 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" (61 FR 66537; 66540; December 18, 1996). In early 1999, in anticipation of completion of the IPE and IPEEE programs, the NRC staff began considering the actions needed to fulfill the commitment made in the Federal Register notice. 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.

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. While the information developed in the IPE/

IPEEE program provides a valuable starting point, 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 include the 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 whethert at the.conclusion of this effort, the staff would be successful in developing a sufficient technical basis to reclassify severe accidents as a Category 1 issue. 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.

In September 2000, the staff 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 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 conduct of SAMA analyses for environmental reviews can be realized. Furthermore, if new information becomes available that indicates 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.

Accordingly, the Commission believes that there is an inadequate basis for a rulemaking to change severe accidents from a Category 2 to Category 1 issue at this time. Applicants should continue to refer to the guidance set out for SAMA analyses in the Statements of Consideration for the license renewal rule (61 FR 28467, 28480-28482; June 5, 1996). The NRC staff will continue to work with stakeholders to discuss the process by which SAMA reviews are done and to determine if efficiencies are possible while ensuring compliance with NRC's NEPA responsibilities to consider the environmental impacts of its licensing decisions.

3. Consideration, of Remote and Speculative Impacts The Commission agrees with the 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 does not require the consideration of remote and speculative risks.5 The court inthe Limerick proceeding rejected the NRC's argument that severe accidents were remote and speculative because the court could find no basis for the conclusion iri the NRC record. Id. at 739-741. The Commission is not prepared to reach the conclusion that the risks of all severe accidents in the context of license renewal are so unlikely as to warrant their elimination from consideration in our NEPA reviews. Even though there is a low probability of a severe accident, the NRC has invested considerable resources toward understanding potential severe accident sequences and alternatives for further reducing the.

probability of and mitigating the consequences of severe accidents, but has not yet established an agency record that severe accidents may be eliminated from NRC's NEPA reviews. In reviewing licensing actions outside of the license renewal context, it may be possible for the NRC to conclude that certain severe accident scenarios are remote and speculative and do not warrant detailed consideration for the purposes of the NEPA review for that particular NRC action. However, for the purposes of consideration of severe accidents in the context of license renewal NEPA reviews, the NRC staff has not developed the necessary basis for concluding that such occurrences are remote and speculative, and thus inappropriate for NRC review under NEPA. This position does not alter the.

conclusion that, in light of margins of safety and defense-in-depth, the likelihood of radiological offsite consequences is small.

In its comments, the petitioner cited two cases which, in its view, demonstrate that NEPA's requirements are satisfied where potential impacts to the environment are remote and difficult to quantify and ongoing regulatory safeguards are in place to protect against potential risks of impacts into the future. Environmental Defense Fund v. Andrus, 619. F.2d 1368 (10th Cir. 1980) reh'g en banc denied; and Citizens for Environmental Quality v.

Lyng, 731 F. Supp. 970 (D. Colo. 1989).

While these cases may provide more support for the general proposition that remote and speculative impacts need not be considered under NEPA, they do not displace the Commission's responsibility to make the threshold determination based on the NRC record 5 See, e.g., Limerick Ecology Action v. NRC, 6ee F.2d at 739; San Luis Obispo Mothers for Peace v.

NRC, 751 F.2d 1287,1300-01 (D.C. Cir. 1984).

that severe accidents are remote and speculative for the purpose of license renewal reviews. As discussed, the Commission is unable to reach that conclusion.

For the reasons cited in this document, the Commission denies the petition.

Dated at Rockville, Maryland, this 13th day of February, 2001.

For the Nuclear Regulatory Commission.

Annette L. Vietti-Cook, Secretary of the Commission.

lFR Doc. 01-4104 Filed 2-16-01; 8:45 am]

BILLING CODE 7590-01-P NUCLEAR REGULATORY COMMISSION 10 CFR Parts 73, 76, and 95

[Docket No. PRM-76-1]

United Plant Guard Workers of America; Denial of Petition for Rulemaking AGENCY: Nuclear Regulatory Commission.

ACTION: Denial of petition for rulemaking.

SUMMARY

The Nuclear Regulatory Commission (NRC) is denying a petition for rulemaking submitted by the United Plant Guard Workers of America (PRM-76-1)..The petitioner requested that the NRC amend its regulations concerning security at the gaseous diffusion plants to address sites that have both special nuclear material security concerns and protection of classified matter concerns; to require that these facilities be able to detect, respond' to, and mitigate threats of a sabotage event; and to require that the security force be armed and empowered to make arrests in limited situations. The petitioner believes that these amendments are necessary to -

address the protection of classified information, equipment and materials, and special nuclear material at the gaseous diffusion plants.

ADDRESSES: Copies of the petition for rulemaking, the public comments received, and NRC's letter to the

.petitioner may be examined at the NRC Public Document Room, 11555 Rockville Pike, Rockville, MD. These documents also may be viewed and downloaded electronically via the rulemaking website.

Documents created or received at the NRC after November.1, 1999 are also available electronically at the NRC's Public Electronic Reading Room on the Internet at http://www.nrc.gov/NRCI ADAMS/index.html. From this site, the public can gain entry into the NRC's Agencywide Document Access and Management System (ADAMS), which provides text and image files of NRC's public documents. For more information, contact the NRC Public Document Room (PDR) Reference staff at 1-800-397-4209, 301-415--4737, or by e-mail, pdr@nrc.gov.

FOR FURTHER INFORMATION CONTACT:

Merri Horn, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-8126, e-mail mlhl@nrc.gov.

SUPPLEMENTARY INFORMATION:

The Petition On May 10, 2000 (65 FR 30018), the NRC published a notice of receipt of a petition for rulemaking filed by the United Plant Guard Workers of America.

The petitioner requested that the NRC amend its regulations concerning security at the gaseous diffusion plants to address sites that have both special nuclear material security concerns and protection of classified matter concerns; to require that these facilities be able to detect, respond to, and mitigate threats of a sabotage event; and to require that the security force be armed and empowered to make arrests in limited situations. The petitioner believes that these amendments are necessary to address the protection of classified information, equipment and materials, and special nuclear material at the gaseous diffusion plants.

First, the petitioner asserted that the regulations do not adequately address sites that have both nuclear material security concerns and classified matter concerns. The petitioner believes that the applicable regulations were not appropriately merged in the regulations governing gaseous diffusion plants to address a site that covers the protection of classified information, equipment and materials, and special nuclear material.

As an example, the petitioner stated that the Controlled Area Fence Line does provide a minimum level of protection against the unauthorized removal of special nuclear material contained in 10- and 20-ton cylinders.

However, the petitioner questioned whether the fence line adequately protects against the unauthorized removal of restricted information, equipment, and other materials or the unauthorized access to these types of materials.

The petitioner asserted that other facilities that possess Category III quantities of special nuclear material regulated by the NRC do not share the

Contention 35/36 0 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 COMMISSION 10 CFR Parts 1, 2, 50, 51, 52, 54, 60, 63, 70, 72, 73, 75, 76, and 110 RIN 3150-AG49 Changes to Adjudicatory Process AGENCY: Nuclear Regulatory Commission.

ACTION: Final rule.

SUMMARY

The Nuclear Regulatory Commission (NRC) is amending its regulations concerning its rules of practice to make the NRC's hearing process more effective and efficient. The final rule will fashion hearing procedures that are tailored to the differing types of licensing and regulatory activities the NRC conducts and will better focus the limited resources of involved parties and the NRC.

DATES: This final rule is effective February 13, 2004. The rules of procedure in the final rule apply to proceedings noticed on or after the effective date, unless otherwise directed by the Commission.

FOR FURTHER INFORMATION CONTACT:

Geary S. Mizuno, Office of the General Counsel, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001, telephone (301) 415-1639, e-mail GSM@nrc.gov.

SUPPLEMENTARY INFORMATION:

Contents I. Background.

A. Policy Statement.

B. Reexamination of NRC's Hearing.

Process.

C. Comments on Policy Statement.

D. Comments from Hearing Process Workshop.

II. Discussion of the Final Rule.

A. Resolution of Public Comments on Proposed Rule; Bases for Final Rule.

1. Overview of Public Comments on Proposed Rule.

2. Significant Comments and Issues, and Their Resolution in Final Rule.

(a) Overall Organization of Part 2.

(b) Commission Response to Eight General Questions in Proposed Rule.

(c) Introductory provisions.

(d) Subpart A.

(e) Subpart B (f) Subpart C..

(g) Subpart G.

(h) Subpart I.

(i) Subpart J.

(j) Subpart K.

(k) Subpart L.

(1) Subpart M.

(m) Subpart N.

(n) Subpart 0.

(o) Part 60.

B. Section-by-Section Analysis.

1. Implementation of Rule.

2. Introductory provisions-Sections 2.1-2.8.

3. Subpart A-Sections 2.100-2.111.

4. Subpart B-Sections 2.200-2.206.

5. Subpart C-Sections 2.300-2.348, 2.390.

6. Subpart G-Sections 2.700-2.713.

7. Subpart I.-Sections 2.900-2.913.

8. Subpart J.-Sections 2.1000-2.1027.

9. Subpart K.-Sections 2.1101-2.119.

10. Subpart L-Sections 2.1200-2.1213.

11. Subpart M.-Sections 2.1300-2.1331.

12. Subpart N-Sections 2.1400-2.1407.

13. Subpart O-Sections 2.1500-2.1509.

III. Availability of Documents.

IV. Voluntary Consensus Standards.

V. Environmental Impact: Categorical Exclusion.

VI. Paperwork Reduction Act Statement.

VII. Regulatory Analysis.

VIII. Regulatory Flexibility Certification.

IX. Backfit Analysis.

I. Background Among the very first actions taken by the Nuclear Regulatory Commission (NRC) following its creation in 1975 was an affirmation of the fundamental importance it attributes to public participation in the Commission's adjudicatory processes. Public participation, the Commission said, "is a Vital ingredient to the open and full consideration of licensing issues and in establishing public confidence in the sound discharge of the important duties which have been entrusted to us." N.

States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), CLI-75-1, 1 NRC 1, 2 (1975). However, the form and formality of the processes provided for public participation have long been debated, well'before the NRC was established and well after the foregoing statement was made.

The Commission has taken a number of steps in recent years to reassess its processes to identify ways in which it can conduct its regulatory activities more effectively. This assessment has extended across the full range of the NRC's programs, from its oversight and inspection program to evaluate and assess licensee performance, to its internal program management activities.

One of the cornerstones of the NRC's regulatory approach has always been ensuring that its review processes and decisionmaking are open, understandable, and accessible to all interested parties. Its processes for achieving this goal have been part of the reassessment as well. Recently, steps have been taken to expand the opportunities for stakeholder awareness and involvement in NRC policy and decisionmaking through greater use of public workshops in rulemaking, inviting stakeholder participation in Commission meetings, and.more extensive use of public meetings with interested parties, on a variety of safety and regulatory matters.

The Commission has had a longstanding concern that the adjudicatory (hearing) process in 10 CFR part 2, subpart G, associgted with licensing and enforcement actions, is not as effective as it could be. Beginning with case-by-case actions in 1983, and with a final rule in 1989, the Commission took steps to move away from the trial-type, adversarial format to resolve technical disputes with respect.

to its materials license applications.

Commission experience suggested that in most instances, the use of the full panoply of formal, trial-like adjudicatory procedures in subpart G is not essential to the development of an adequate hearing record; yet all too frequently their use resulted in protracted, costly proceedings. The Commission adopted more informal procedures with the goals of reducing the burden of litigation costs, and enhancing the role of the presiding officer as a technical fact finder by giving him or her the primary responsibility for controlling the development of the hearing record beyond the initial submissions of the parties. A significant portion of the NRC's proceedings in the past ten years has been conducted under these more informal procedures. Although the Commission's experience to date indicates that some of the original objectives have been achieved, there have also been some aspects of the more informal procedures that have continued to prolong proceedings without truly enhancing the decisionmaking process. Given the Commission's experience, and with the potential in the next few years for new proceedings to consider applications for new facilities, to renew reactor operating licenses, to reflect restructuring in the electric utility industry, and to license waste storage facilities; the Commission concluded it needs to reassess its hearing processes to identify improvements that will result in a better use of all participants' limited resources. To that end, the Commission initiated certain actions related to its hearing processes-development of a Policy Statement on the hearing process, and a reexamination of the NRC's hearing process and requirements under the Atomic Energy Act of 1954, as amended (AEA)-as a foundation for possible rule changes.

A. Policy Statement In 1998, the Commission adopted a new Policy Statement that provides specific guidance for Licensing Boards

Federal Register/Vol. 69, No. 9/Wednesday, January 14, 2004/Rules and Regulations 2187 decisions on summary disposition motions.

Comment. The limitation of discovery on the NRC staff until after the Safety Evaluation Report. (SER) and final Environmental Impact Statement (EIS) is overly broad and could delay the proceeding.

Response. The most fruitful time for discovery of NRC staff review documents is after the staff has developed its position. Subjecting the NRC staff to extensive discovery early in the process will often require the staff to divert its resources from completing its review. In addition, early discovery before the NRC staff has finalized the major part of its reviews may present a misleading impression of staff views:

Finally, a focus on discovery against the NRC staff diverts the focus from the real issues in a licensing proceeding, which should be the adequacy of the applicant's/licensee's proposal.

Nevertheless, the Commission recognizes the importance of timely completion of the NRC staff s reviews and the staff is making a concerted effort at rigorous planning and scheduling of staff reviews. In this regard, the NRC staff has continued to refine and complete its standard review plans and its review guidance, and has moved to.

a more performance-goal oriented approach in an effort to improve the timeliness of its reviews. Steering and oversight.committees are sometimes formed to direct the course of major technical review efforts and detailed milestone schedules are developed and tracked. NRC managers and staff are held accountable for these schedules.

The NRC will continue with these efforts to improve the timeliness of licensing reviews.

Comment. The hearing should not be delayed until after the SER and the final EIS are issued as it could delay the proceedings.

Response. In proceedings where the NRC staff is a party, the staff may not be in a position to provide testimony or take a final position on some issues until these documents have been completed. This may be the case in particular with regard to the NRC staff s environmental evaluation, less so with regard to the staff's safety evaluation. In many cases, it could be unproductive and cumbersome to have a two-pronged hearing with one part of the hearing being conducted before issuance of the NRC staff documents and a second hearing after issuance of the documents.

Nonetheless, the Commission recognizes that where the NRC staff is a party, the staff could prepare testimony and evidence, and take a final position on contested matters if its safety review has been completed in areas relevant to the contested matters.

The Commission also recognizes that the current regulations governing submission of the SER and/or EIS are not clear and could be misleading. To address these matters, the Commission is taking a number of actions which are described below in II.A.2.(f) in the discussion of § 2.337.

Comment. Licensing Boards should rule on standing before the submission of contentions.

Response. The Commission expects that standing issues would be among the first issues addressed by a presiding officer in an adjudication, but that does not dictate that the submission of contentions should be delayed. The Commission also expects that concrete issues of concern to the public would be raised on the basis of the application or the proposal for NRC action and can be identified at the same time the petition addresses the matter of standing.

Comment. The Commission should apply the Federal Rules of Evidence with respect to scientific testimony.

Response. Neither this final rule nor the supersededprovisions of part 2 contain a special provision for scientific testimony. Scientifictestimony can be tested and evaluated in the same manner as other evidence presented at a hearing. Although the Commission has not required the application of the Federal Rules of Evidencein NRC.

adjudicatory proceedings, presiding officers and Licensing Boards have always looked to the Federal Rules for guidance in appropriate circumstances.

The Commission continues to believe that greater informality and flexibility in the presentation of evidence in hearings, rather than the inflexible use of the formal rules of evidence imposed in the Federal courts, can result in more effective and efficient issue resolution.

Comment. The Commission should place limitations on cross-examination.

Response. The final rule does place limitations on cross-examination for the less formal procedures. Under these procedures, the presiding officer may question witnesses who testify at the hearing, but parties normally may not do so. However, parties may submit to the presiding officer written suggestions for questions to be asked. The final rule also allows motions to the presiding officer to allow cross-examination by the parties where the party believes this would be necessary to develop an adequate record. As a general matter, the presiding officer may limit and control cross-examination in appropriate circumstances, under

§ 2.333 of the final rule. Among other things, the final rule requires the filing and use of cross-examination plans whenever a party cross-examines witnesses.

Comment. The Commission should be actively involved in overseeing proceedings 4nd there should be expedited interlocutory review for novel legal or policy issues.

Response. Providing for a Commission ruling on significant issues before the hearing is completed can focus the issues to be addressed in a hearing, and the final rule provides for presiding officer certification of novel legal or policy issues to the Commission. However, the Commission believes that the additional delay necessarily associated with interlocuitory appeals by parties outweighs any potential reduction in hearing time that may come about through a Commission decision in such an appeal, unless a party seeking interlocutory review can also demonstrate that it would be threatened with immediate and serious irreparable harm, or if the basic structure of the proceeding would be affected in a pervasive or unusual manner.

Accordingly, the Commission has decided that it should not depart from existing practice by permitting interlocutory appeals by parties based solely on the existence of novel legal or policy issues.

Comment. The Commission should actively review the performance of Licensing Boards and ensure that boards make prompt decisions.

Response. The Commission has been carefully monitoring all adjudicatory proceedings to ensure that they are.

being appropriately managed to avoid unnecessary delay. The Commission, through its Policy Statements and case-specific orders, has been encouraging presiding officers (including Licensing Boards) to issue timely decisions consistent with presiding officers' independent decisionmaking functions.

Section 2.334(b) of the final rule explicitly addresses case management and would require the presiding officers to notify the Commission when there is non-trivial delay in completion of the proceeding. The Commission wishes to emphasize, however, that the Commission's oversight of presiding officers with respect to case management is not intended to intrude on the independence of presiding officers in discharging their decisionmaking responsibilities.

D. Comments From Hearing Process Workshop The October 26-27, 1999, hearing process workshop involved participants from the nuclear industry, states, citizen

Contention 35/36 1 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~k REG(,

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.

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 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 2 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 NA W., 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., increased battery capacity or the installation of a diesel-powered generator that would effectively increase battery capacity).

Although the proposed SAMAs would not completely eliminate, the potential failure, 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 3 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 the scope of the application as originally noticed, and did not change the staff's original proposed no significant hazards consideration determination as

• published in the Federal Register.

The Commission's related evaluation of the amendments is contained in a Safety Evaluation dated July 20, 2007.

No significant hazards consideration comments received: No.

Dated at Rockville, Maryland, this 2nd day of August 2007.

For the Nuclear Regulatory Commission.

Catherine Haney, Director, Division of Operating Reactor Licensing, Office of Nuclear Reactor Regulation.

[FR Doc. E7-15459 Filed 8-13-07; 8:45 am]

BILLING CODE 7590-01-P NUCLEAR REGULATORY COMMISSION Notice of Availability of the Final License Renewal Interim Staff Guidance LR-ISG-2006-03: Staff Guidance for Preparing Severe Accident Mitigation Alternatives.

Analyses AGENCY: Nuclear Regulatory Commission (NRC).

ACTION: Notice of Availability.

contact the NRC Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by e-mail at pdr@nrc.gov.

FOR FURTHER INFORMATION CONTACT: Mr.

Richard L. Emch, Jr., Seniof Project Manager, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory.

Commission, Washington, DC 20555-0001; telephone 301-415-1590 or by e-mail at rle@nrc.gov.

SUPPLEMENTARY INFORMATION: to this Federal Register notice, entitled Staff Position and Rationale for the Final License Renewal Interim Staff Guidance LR-ISG-2006-03: Staff Guidance for Preparing Severe Accident Mitigation Alternatives (SAMA) Analyses contains the NRC staff's rationale for publishing the Final LR-ISG-2006-03. Attachment 2 to this Federal Register notice, entitled Proposed License Renewal Interim Staff.

Guidance LR-ISG-2006-03: Staff Guidance for Preparing Severe Accident Mitigation Alternatives (SAMA)

Analyses, contains the guidance for preparing SAMA analyses related to license renewal applications. The NRC staff approves this LR-ISG for NRC and industry use. The NRC staff will also incorporate the approved LR-ISG into the next revision of Supplement 1 to Regulatory Guide 4.2, "Preparation of Supplemental Environmental Reports for Applications to Renew Nuclear Power Plant Operating Licenses."

Dated at Rockville, Maryland, this 2nd day of August 2007.

For the Nuclear Regulatory Commission.

Pao-Tsin Kuo, Director, Division of License Renewal, Office of Nuclear Reactor Regulation. -Staff Position and' Rationale for the Final License Renewal Interim Staff Guidance LR-ISG-2006-03: Staff Guidance for Preparing Severe Accident Mitigation Alternatives Analyses Staff Position: The NRC staff recommends that applicants for license renewal follow the guidance provided in Nuclear Energy Institute (NEI) 05-01, "Severe Accident Mitigation Alternatives (SAMA) Analysis-Guidance Document," Revision A, when preparing their SAMA analyses.

Rationale: The NEI developed a generic Guidance Document NEI 05-01, Revision A, to help clarify the NRC staff's expectations regarding the information that needs to be included in SAMA analyses. The NRC staff reviewed and concluded that NEI 05-01, Revision A, describes existing NRC regulations and facilitates complete preparation of SAMA analysis submittals. The staff finds that utilization of the guidance provided in NEI 05-01, Revision A, will result in improved quality in SAMA analyses and a reduction in the number of requests for additional information. -Final License Renewal Interim Staff Guidance LR-ISG-2006-03: Staff Guidance for Preparing Severe Accident Mitigation Alternatives Analyses Introduction A severe accident mitigation alternatives (SAMA) analyses is required as part of a license renewal application, if a SAMvIA analysis has not already been performed for the plant "

and reviewed by the NRC staff. SAMA analyses have been performed and.

submitted to the NRC for all "

applications for license renewal received by the staff thus far. Therefore, this LR-ISG is being recommended as guidance consistent with our goal to more effectively and efficiently resolve license renewal issues identified by the staff or the industry.

Background and Discussion After receiving extensive requests for additional information regarding the SAMA analyses, several applicants for license renewal concluded that they did not fully understand the kind of information that the NRC staff was expecting to see in SAMA analyses.

The Nuclear Energy Institute (NEI) developed a generic guidance document to help clarify the NRC staff's expectations regarding the information that should be submitted in SAMA analyses. On April 8, 2005, NEI submitted NEI 05-01, "Severe Accident Mitigation Alternatives (SAMA)

Analysis--Guidance Document." The NRC staff reviewed this guidance document, and by letter, dated July 12, 2005, provided comments on NEI 05-

01. The NRC staff's comments were discussed during a public meeting between NEI and NRC on July 21, 2005.

On February 17, 2006, NEI submitted its NEI 05-01, Revision A, dated November 2005. The NRC staff reviewed and concluded that this version fully resolved the NRC staff's comments. In addition, the NRC staff concluded that NEI 05-01, Revision A, describes existing NRC regulations, and facilitates complete preparation of SAMA analysis submittals.

Some applicants for license renewal have submitted SAMA analyses using the guidance provided in NEI 05-01, Revision A. The NRC staff found improved quality in the submitted SAMA analyses and a reduction in the

SUMMARY

NRC is issuing its Final License Renewal Interim Staff Guidance LR-ISG-2006-03 for preparing severe accident mitigation alternatives (SAMA) analyses. This LR-ISG recommends that applicants for license renewal use the Guidance Document Nuclear Energy Institute 05-01, Revision A, (ADAMS Accession No. ML060530203) when preparing their SAMA analyses. The NRC staff issues LR-ISGs to facilitate timely implementation of the license renewal rule and to review activities associated with a license renewal application. The NRC staff will also incorporate the approved LR-ISG into the next revision of Supplement 1 to Regulatory Guide 4.2, "Preparation of Supplemental Environmental Reports for Applications to Renew Nuclear Power Plant Operating Licenses."

ADDRESSES: The NRC maintains an Agencywide Documents Access and Management System (ADAMS), which provides text and image files of NRC's public documents. These documents, may be accessed through the NRC's Public Electronic Reading Room on the Internet at http://www.nrc.gov/reading-rm/adams.html. Persons who do not have access to ADAMS or who encounter problems in accessing the documents located in ADAMS should

Federal Register/Vol. 72, No. 156/Tuesday, August 14, 2007/Notices 45467 number of requests for additional information for those applications that followed the guidance provided in NEI 05-01, Revision A.

Recommended Action The staff is recommending that applicants for license renewal follow the guidance provided in NEI 05-01, Revision A, when preparing their SAMA analyses. The staff finds that NEI 05-01, Revision A, describes existing NRC regulations, and facilitates complete preparation of SAMA analysis submittals.

Although this proposed LR-ISG does not convey a change in the NRC's.

r.. egulations or how they are interpreted,ý it is being provided to facilitate complete preparation of future SAMA analysis submittals in support of applications for license renewal. The NRC staff plans to incorporate the guidance provided in NEI 05-01, Revision A, into a future update of Supplement 1 to Regulatory Guide 4.2, "Preparation of Supplemental Environmental Reports for Applications to Renew Nuclear Power Plant Operating Licenses." This LR-ISG provides a clarification of existing guidance. with no additional requirements. For those that are interested in reviewing NEI 05-01,,

Revision A, the Agencywide Documents Access and Management System (ADAMS) Accession Number is ML060530203.

[FR Doc. E7-15926 Filed 8-13-07; 8:45 am]

BILLING CODE 7590-01-P POSTAL REGULATORY COMMISSION

[Docket No. MC2007-4; Order No. 23]

Negotiated Service Agreement AGENCY: Postal Regulatory Commission.

ACTION: Notice and order.

SUMMARY

This document establishes a docket for consideration of the Postal Service's request for approval of contract rates with The Bradford Group.

It identifies key elements of the proposed agreement, which involves Standard Mail letters and flats rates, and addresses preliminary procedural matters.

DATES: 1. August 24, 2007: Deadline for intervention and responses to limitation of issues. 2. August 28, 2007: Prehearing conference, 11 a.m. in the Commission's

• hearing room.

ADDRESSES: Submit comments electronically via the Commission's Filing Online system at http://

www.prc.gov.

FOR FURTHER INFORMATION CONTACT:

Stephen L. Sharfman, General Counsel, 202-789-6820 and stephen.sharfman@prc.gov.

SUPPLEMENTARY INFORMATION: On August 3, 2007, the United States Postal Service filed a request seeking a recommended decision from the.Postal Regulatory Commission approving a Negotiated Service Agreement (NSA) with The Bradford Group.' The NSA is proffered as functionally equivalent to the Bookspan NSA recommended by the Commission in Docket No. MC2005-3 (baseline agreement). [70 FR 42602.]

The Request, which includes six attachments, was.filed pursuant to chapter 36 of title 39, United States Code. 2 The Postal Service has identified The Bradford Group, along with itself, as parties to the NSA. This identification serves as notice of intervention by The Bradford Group. It also indicates that The Bradford Group shall be considered a co-proponent, procedurally and substantially, of the Postal Service's Request during the Commission's review of the NSA. Rule 191(b) [39 CFR 3001.191(b).] An appropriate Notice of The Bradford Group of Appearance and Filing of Testimony as Co-Proponent, August 3, 2007, has been filed.

In support of the direct case, the Postal Service has filed Direct Testimony of Broderick A. Parr on Behalf of the United States Postal Service, August 3, 2007 (USPS-T-1) and library reference USPS-LR-L-1, MC2004-3 Opinion and Further Recommended Decision Analysis for The Bradford Group NSA. The Bradford Group has separately filed direct testimonies of Steve Gustafson (BG-T-

1) and Wendy Ring (BG-T-2) both on behalf of The Bradford Group, August 3, 2007. The Postal Service has reviewed The Bradford Group testimony and, in accordance with rule 192(b) [39 CFR 3001.192(b)], states that such testimony may be relied upon in presentation of the Postal Service's direct case. USPS-T-1 at 3.

Request of the United States Postal Service for a Recommended Decision on Classifications and Rates to Implement a Functionally Equivalent Negotiated Service Agreement with Bradford Group, August 3, 2007 (Request).

2 Attachments A and B to the Request contain proposed changes to the Domestic Mail Classification Schedule and associated rate schedules; Attachment C is a certification required by Commission rule 193(i) specifying that the cost statements and supporting data submitted by the Postal Service, which purport to reflect the books of the Postal Service, accurately set forth the results shown by such books; Attachment D is an index of testimony and exhibits; Attachment E is a compliance statement addressing satisfaction of various filing requirements; and Attachment F is a copy of the Negotiated Service Agreement.

The Request relies on record testimony entered in the baseline docket. This material is identified in the Postal Service's Compliance Statement, Request Attachment E.

Requests that are proffered as functionally equivalent to baseline NSAs are handled expeditiously, until a final determination has been made as to their proper status. The Postal Service's Compliance Statement, Request Attachment E, is noteworthy in that it provides valuable information to facilitate rapid review of the Request to aid participants in evaluating whether or not the procedural path suggested by the Postal Service is.appropriate.

The Postal Service submitted several.

contemporaneous related filings with its Request. The Postal Service has filed a proposal for limitation of issues in this docket.a Rule 196(a)(6) 139 CFR 3001.196(a)(6)]. The proposal identifies issues that were previously decided in the baseline docket, and key issues that are unique to the instant Request.

Rule 196(b) [39 CFR 3001.196(b)]

requires the Postal Service to provide written notice of its Request, either by hand delivery or by First Class Mail, to all participants of the baseline docket.

This requirement provides additional time, due to an abbreviated intervention period, for the most likely participants to decide whether or not to intervene. A copy of the Postal Service's notice was filed with the Commission on August 3, 2007.4 The Request, accompanying testimonies of witnesses Parr (USPS-T-1), Gustafson (BG-T-1), and Ring (BG-.

T-2), the baseline agreement, and other related material can be accessed electronically, via the Internet, on the Commission's Web site (http://

www.prc.gov).

I.

Background:

Baseline Bookspan Negotiated Service Agreement, Docket No. MC2005-3 If a request predicated on a NSA is found to be functionally equivalent to a previously recommended, and currently in effect, NSA, it may be afforded accelerated review. Rule 196 [39 CFR 3001.1961. The Postal Service asserts that the NSA in the instant Request is functionally equivalent to the now in effect Bookspan NSA recommended by the Commission in Docket No. MC2005-United States Postal Service Proposal for Limitation of Issues, August 3, 2007.

Notice of the United States Postal Service Concerning the Filing of a Request for a Recommended Decision on a Functionally Equivalent Negotiated Service Agreement, August 3, 2007.

Contention 35/36 4 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 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 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 U N D 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 E N C E S

....................................... 3 3

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 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 1 0-meter wind direction data.

NL-09-165 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 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 Release Frequency Dose Economic Dose Risk.

Economic 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 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 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 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.

For hardware modifications, the cost of implementation may be established from existing estimates of similar modifications 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 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 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 II SAMA

(%)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 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 R

SARMdA 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 - Create a reactor 47.03%

34.43%

$6,347,528

$13,363,217

$4,100,000t Retain cavity flooding system.,

i 63758

$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 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 II SAMA 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 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 II SAMA

(%)

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 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 II SAMA

(%_

BBenefitBnefit Estimated Cost Conclusion PDR OECRUncertainty PDR OECR 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%

_0%

$,2$257$6,0 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 system 0.00%

0.00%

$0

$0

$1,254,000 effective actuation signals from 2-:efctv 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

,Docket Nos. 50-247 & 50-286 Page 15 of 33 C

Table 4 Results of Cost Benefit Analysis of IP2 SAMA Candidates Risk Reduction IP2 Phase II SAMA Benefit Benefit with Estimated Cost Conclusion POR OECRUncertainty PDR OECR "".

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 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 II SAMA

(%)

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 power to more air effective 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 equipment damage from a 0.46%

0.47%

$105,981

$223,119

$615,000 Not cost pressure spike during an ATWS.

049 - Install motor Nto generator set trip breakers 0.23%'

0.00%

$32,541

$68,508

$716,000 effective in control room.

effective

NL-09-165 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 II SAMA 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) normally open.

057 - Prvd 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 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 head recirculation from 0.00%

0.00%

$0

$0

$82,000 effective either RHR heat e

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 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 II SAMA Benefit Benefit with Estimated Cost Conclusion PDR OECR Uncertainty 063 - Provide a water-tight door for additional Not cost protection of the RHR 0.11%

0.00%

$32,452

$68,320

$324,000 eotect effective 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 transfer pumps against 8.96%

6.19%

$2,505,846

$5,275,465

$33,500,000t effective 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 c~oo the charging pumps.

efeciv 068 - Provide independent source of cooling for the Not cost recirculation pump 0.06%

01.01%

$13,408

$28,227

$710,000efctv motors.effective 1 Cost estimate revised from what was previously reported. -See Section [61 for more information.

NL-09-165 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 II SAMA

%)

Benefit with Estimated Cost Conclusion PDR OECRUncertainty 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 heat removal potential Not cost 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 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 II SAMA

.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 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 I

NL-09-165 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 11 SAMA

)

benefit w

Estimated Cost Conclusion PDR OECR Uncertainty 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 effective not cause the relief valves 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 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 II SAMA

(%)

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 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 II SAMA 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 Not cost effective 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 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 II SAMA 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.

039 - Install a digital feed

$900,000 Not cost waeruprae.0.95%

0.00%

$271,481

$393,450

$0,0 fetv 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 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 11 SAMA Renk Rd Benefit U ity Estimated Cost Conclusion PDR OECR Uncertainty 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 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 II SAMA 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 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 II SAMA

(%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 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 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 11 SAMA 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 Docket Nos. 50-247.& 50-286 Page 31 of 33 Table 7 - IP3 TI-SGTR Sensitivity Results Original TI-SGTR Revised IP3 Phase II SAMA 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 char er.effective charger.

040 - Provide automatic nitrogen backup to steam Not cost beeackup atmospei

$344,225

$447,549

$950,000t

.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.

information.

See Section [6) for more

[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 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 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 5 LIC-202, Rev. 2 Change to Procedures for Managing Plant-Specific Backfits and 50.54(f) Inforniation Requests NRC Staff (May 17, 2010)

~p~REG&t.

C, 0

~

• ~

'~

,~

U.S. Nuclear Regulatory Commission Office of Nuclear Reactor Regulation NRR OFFICE INSTRUCTION Change Notice Office Instruction No.:

Office Instruction

Title:

Effective Date:

Approved By:

Date Approved:

Primary

Contact:

LIC-202, Revision 2 Procedures for Managing Plant-Specific Backfits and 50.54(f) Information Requests May 17, 2010 Timothy McGinty May 12, 2010 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 OFFICE NRR/DDECS PMDA/D NRR/DDRSP NRR/D 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