ML13123A465

NRC Staff'S Reply Proposed Findings of Fact and Conclusions of Law on Contention NYS-5 (Buried Piping and Tanks)

ML13123A465
Person / Time
Site:	Indian Point
Issue date:	05/03/2013
From:	Sherwin Turk NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 24479, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01
Download: ML13123A465 (31)

Text

May 3, 2013 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247-LR/ 50-286-LR

)

(Indian Point Nuclear Generating )

Units 2 and 3) )

NRC STAFFS REPLY PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ON CONTENTION NYS-5 (BURIED PIPING AND TANKS)

I. INTRODUCTION In accordance with 10 C.F.R. § 2.1209 and the Atomic Safety and Licensing Boards Board) Orders in this proceeding,1 the NRC Staff (Staff) hereby submits its reply proposed findings of fact and conclusions of law (Reply Findings or RFF) regarding Contention NYS-5 (Buried Piping and Tanks).2 In these Reply Findings, the Staff sets forth its reply to the proposed findings of fact and conclusions of law that have been submitted by the State of New York (New York) regarding Contention NYS-5, concerning the adequacy of the Applicants aging management program (AMP) for buried piping and tanks, as set forth in the Applicants license renewal application (LRA) filed on April 23, 2007, for Indian Point Nuclear Generating 1

See (1) Scheduling Order (July 1, 2010), at 19; (2) Order (Scheduling Post-Hearing Matters and Ruling on Motions to File Additional Exhibits) (Jan. 15, 2013) at 1; and (3) Order (Granting Parties Joint Motion for Alteration of Filing Schedule) (Feb. 28, 2013).

2 The Staff filed ten separate parts of its proposed findings of fact and conclusions of law on the nine Track 1 contentions, in which each part was numbered separately and each paragraph therein was numbered accordingly. For example, in Part 2, relating to Contention NYS-5, the paragraphs were numbered in sequence from 2.1 through 2.227. See NRC Staffs Revised Proposed Findings of Fact and Conclusions of Law / Part 2: Contention NYS-5 (Buried Piping and Tanks) (Mar. 23, 2013, as revised 04/23/13) (Part 2 of Staffs Proposed Findings or Staff PFF). In these Reply Findings on Contention NYS-5, the Staff continues that numbering sequence, commencing with paragraph number 2.228.

2 Units 2 and 3 (Indian Point or IP2 and IP3).3 For the reasons set forth in the Staffs Proposed Findings and in the Reply Findings set forth below, the Staff submits that Contention NYS-5 should be resolved in favor of license renewal for Indian Point Nuclear Generating Units 2 and 3.4 II. FINDINGS OF FACT 2.228. In its Proposed Findings, New York argues that the Applicants recently announced plans to install cathodic protection (CP) for selected buried piping systems has not been evaluated by the Staff, and that insufficient details have been provided concerning the Applicants CP plans to allow a determination as to the adequacy of the Applicants current actual approach to managing aging effects for buried piping at this time. See, e.g., New York Proposed Findings at 2, 63, and 70-71. As discussed below in ¶¶ 2.229 - 2.231, these assertions should be rejected, in that they raise an issue that New York failed to raise prior to filing its Proposed Finding and is plainly outside the scope of Contention NYS-5 as admitted.

2.229. In this regard, Contention NYS-5 was filed by New York in November 2007. As filed, Contention NYS-5 asserted that the Applicants LRA (as filed in April 2007), failed to contain an adequate aging management program for buried piping and tanks that may convey or contain radioactively-contaminated water or other fluids and/or may be important to plant 3

See State of New Yorks Proposed Findings of Fact and Conclusions of Law Regarding the Adequacy of Entergys Aging Management Program for Buried Pipes and Tanks (Contention NYS-5)

(Mar. 22, 2013) (New Yorks Proposed Findings or New York PFF).

4 The Staff does not address the Applicants proposed findings of fact and conclusions of law herein, having identified no substantial disagreement therewith. See Entergys Proposed Findings of Fact and Conclusions of Law for Management Program for Contention NYS-5 (Buried Piping) (Mar. 22, 2013)

(Entergys Proposed Findings or Entergy PFF).

3 safety.5 The bases for Contention NYS-5 were set forth in New Yorks Petition at pages 80-92, as described in Staff PFF ¶¶ 2.4 - 2.5. As discussed in Staff PFF ¶¶ 2.3, the Board admitted this contention in LBP-08-13, which the Board restated to assert as follows:

NYS-5 The LRA does not provide [an] adequate AMP for buried pipes, tanks, and transfer canals that contain radioactive fluid that meet 10 C.F.R. § 54.4(a) criteria. In addition, the LRA is not clear whether an AMP for IP1 buried SSCs that are being used by IP2 and IP3 exists and whether the LRA is adequate if it does exist.

LBP-08-13, 68 NRC at 218. As noted in Staff PFF ¶ 2.6, upon admitting this contention, the Board limited the contention, stating that the issues for hearing include, inter alia, whether, and to what extent, inspections of buried SSCs containing radioactive fluids, a leak prevention program, and monitoring to detect future excursions are needed as part of Entergys AMP for these components, including the adequacy of the AMP for IP1-buried SSCs that are being used by IP2 and IP3 during the license renewal period. LBP-08-13, 68 NRC at 81.

2.230. Significantly, the bases for Contention NYS-5 addressed the need for cathodic protection (CP), asserting that no such protection was provided by the Applicants LRA:

11. The LRA contains no plan for using cathodic protection or other means to prevent leaks from occurring. Prevention is the best protection against leakage from pipes.6 Significantly, at no time subsequent to the filing of this contention did New York ever raise an issue regarding the adequacy of the information provided by the Applicant concerning its 5

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

(NY Petition), at 80.

6 NY Petition at 84 (emphasis added), citing Declaration of Rudolf H. Hausler (Nov. 26, 2007)

(Hausler Declaration), at ¶¶ 39-42, 43-49. New Yorks Declarant, Dr. Hausler similarly faulted the Applicants aging management program at the time, stating [i]t does not appear that cathodic protection was installed for buried pipes, despite indications that external corrosion of carbon steel piping was possible. Hausler Declaration at 16-17, ¶ 39.

4 installation of a CP system for certain buried piping systems at the IP2/IP3 site - not in the prefiled testimony of New York witness Dr. David Duquette,7 not in his written report,8 not in his rebuttal testimony,9 not in New Yorks Statement of Position,10 and not in New Yorks cross-examination of Entergys and the Staffs witnesses by two of its attorneys11 - despite the fact that New York had specifically requested, and was granted, the opportunity to conduct relevant cross-examination in order to ensure development of an adequate record in this proceeding.12 Indeed, even in its written filings, where New York cited Entergys testimony 7

Pre-Filed Written Testimony of Dr. David J. Duquette, Ph.D Regarding Contention NYS-5 (dated Dec. 16, 2011, filed Dec. 22, 2011) (New York Testimony on NYS-5) (Ex. NYS000164).

Dr. Duquettes pre-filed testimony faulted Entergys LRA, in pertinent part, because Entergy has not committed to reinstalling cathodic protection at Indian Point. Id. at 22-23.

8 Report of Dr. David J. Duquette, Ph.D in Support of Contention NYS-5 (Dec. 16, 2011)

(Duquette Report) (Ex. NYS000165). Dr. Duquettes report faulted Entergy, in part, because it had not committed to repairing its non-functioning cathodic protection systems. Duquette Report (Ex.

NYS000165), at 2; id. at 14, 16. Further, he asserted that Entergy has indicated that it has cathodically protected its city water line, but does not appear to have adopted any other of PCAs recommendations.

Id. at 21. He further stated that [t]here are no cathodic protection systems currently in operation at IPEC for the protection of safety related buried piping, and there are apparently no plans to either re-commission the existing inoperative systems or to install new systems. Id. at 24.

9 Pre-Filed Written Rebuttal Testimony of Dr. David J. Duquette Regarding Contention NYS-5 (revised Oct. 16, 2012) (New York Rebuttal) (Ex. NYSR20399). Dr. Duquettes rebuttal testimony faulted Entergy, in pertinent part, for failing to demonstrate that cathodic protection is impractical or unnecessary at Indian Point. Id. at 9.

10 State of New Yorks Revised Statement of Position Regarding the Adequacy of Entergys Aging Management Program for Buried Pipes and Tanks (Contention NYS-5) (June 29, 2012) (Ex.

NYS000398) (Statement ofPosition). In its Statement of Position, New York asserted, in pertinent part, that Entergy had failed to install cathodic protection, and had not justified the lack of such protection. Id.

at 6, 15, 17.

11 See Tr. at 3,917 - 3,940 (questioning by Ms. Dean and Mr. Sipos).

12 See Order (Granting, in part, New Yorks Motion for Cross Examination) (Sept. 21), slip op.

at 6-7 , as corrected (Sept. 25), interlocutory review declined, CLI-12-18, 76 NRC __ (Oct. 12, 2012);

State of New York Motion to Implement Statutorily-Granted Cross-Examination Rights Under Atomic Energy Act § 274(l) (Aug. 8, 2012).

5 regarding its installation of CP systems, New York never claimed that the record was incomplete or that more information was required on this issue.13 2.231. New Yorks belated attempt to introduce this issue into Contention NYS-5 through (and at the time of) its proposed findings comes too late, and fails to follow fundamental Commission requirements for the supplementation or amendment of contentions for new issues to be raised. As the Commission recently stated:

We have long required contention claims to be set forth "with particularity," stressing that it "should not be necessary to speculate about what a pleading is supposed to mean." Our proceedings would prove unmanageable--and unfair to the other parties--if an intervenor could freely change an admitted contention "at will as litigation progresses," "stretching the scope of admitted contentions beyond their reasonably inferred bounds."

"Petitioners must raise and reasonably specify at the outset their objections to a license application."

Our rules allow for amendment of contentions and the submission of new contentions when good cause is shown. But

[the Intervenor] here does not suggest that new information was introduced that it could not have known about earlier, and it never has sought to amend its contention. It instead insists that Contention 3 as proffered was intended, all along, to include this challenge . . . . We are not persuaded . . . .

13 Dr. Duquettes rebuttal testimony (Ex. NYSR200399) stated that he had reviewed all of the testimony and exhibits submitted by Entergy and the Staff on this contention, and that none of those documents have changed my opinions related to the management of buried pipelines at IPEC. Id. at 2.

Rather, he again asserted that cathodic protection has not been shown to be impractical at the Indian Point site and should be required - but he did not suggest that more information is needed regarding Entergys plans to install cathodic protection at the site. See, e.g. id., at 7-8 and 9. Moreover, Dr. Duquette explicitly noted that Entergy has installed a limited cathodic protection system in the vicinity of the city water lines (Entergy Testimony, A119(a)), and asserted that [i]t should not be a major exercise to expand the existing cathodic protection system to the piping under consideration in Contention NYS-5, id. at 12 but he nowhere stated that more information was required regarding Entergys installation of cathodic protection. Similarly, New Yorks Statement of Position (Ex.

NYS000398) noted that Entergy has installed cathodic protection on the city water line. Entergy Test.

A119a, but did not claim that more information is needed regarding Entergys installation of cathodic protection at the site. See id. at 18 n.15.

6 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-01, 75 NRC 39, 55-56 (2012) (footnotes omitted). Accord, Southern Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), CLI-10-05, 71 NRC 90, 100-05 (2010);

Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-28, 56 NRC 373, 380-81, 386 (2002). Indeed, this Board has previously acknowledged that intervenors must amend their contentions to raise new issues that are beyond the scope of a contention as admitted, citing the Commissions admonition against allowing distinctly new complaints to be added at will as litigation progresses, [and thereby]

stretching the scope of admitted contentions beyond their reasonably inferred bounds.14 Accordingly, New Yorks attempt to inject these issues into the proceeding for the first time, by way of its proposed findings of fact and conclusions of law, must be rejected as impermissible. 15 2.232. New York incorrectly asserts that [a]t the hearing, NRC staff witnesses clarified that there is in fact no document called the Buried Piping and Tanks Inspection Program or 14 Order (Granting in Part and Denying in Part Applicants Motions in Limine) (Mar. 6, 2012),

slip op. at 3-4, citing, inter alia, Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc.

(Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 309 (2010) (emphasis added by the Board). In its Order, the Board found that certain issues raised in the intervenors testimony were within the scope of the contentions as admitted, while one issue (leaks from sources other than the spent fuel pools) was not.

See, e.g., id., slip op. at 28-31.

15 To the extent that an application presents issues that are not within the scope of an admitted contention, those issues would be addressed outside the scope of the adjudicatory proceeding, as appropriate, by the Staff in the performance of its delegated responsibilities. See, e.g., Public Service Co.

of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-854, 24 NRC 783, 790-91 (1986);

Consolidated Edison Co. of New York, Inc. (Indian Point Units 1, 2 & 3), ALAB-319, 3 NRC 188, 190 (1976). Cf. Exelon Generation Co. (Early Site Permit for Clinton ESP Site), CLI-05-17, 62 NRC 5, 35-36 (2005) (in a proceeding with a mandatory hearing, the Staff has prime responsibility for technical fact-finding on uncontested matters associated with the application); Texas Utilities Generating Co.

(Comanche Peak Steam Electric Station, Units 1 and 2), CLI-81-36, 14 NRC 1111, 1113-14 (1981)

(Board lacks sua sponte authority to monitor the Staff's progress in identifying and/or evaluating potential safety or environmental issues that had been the subject of an intervenors contentions after the intervenor was dismissed). See also, 10 C.F.R. § 2.340(a)(1) (scope of Boards authority to render findings of fact and conclusions of law).

7 BPTIP. New York PFF ¶ 13, citing Tr. 3343:10-14 (Cox). The sole citation for this assertion is a statement by Entergy witness Alan Cox - and his testimony is directly contrary to New Yorks claim. See Tr. 3343. Similarly, while New York claims that the BPTIP did not exist at the time the LRA was submitted, New York PFF ¶ 15, it overlooks Appendix B of the LRA, § B.1.6, which describes the BPTIP and states that the BPTIP will be consistent with program attributes described in NUREG-1901,Section XI.M34, without exception.16 The ten elements of the AMP to which the Applicant committed to conform are explicitly set out in GALL Report Rev. 1, AMP XI.M34 (Buried Piping and Tanks Inspection). See Ex. NYS000146-C at XI M-111 - M-112.

2.233. In Paragraph 17 of its Proposed Findings, New York incorrectly utilizes NRC regulatory terminology, confusing a licensees updated Final Safety Analysis Report (UFSAR),

which is required to be periodically updated and maintained under 10 C.F.R. § 50.71(e), with the UFSAR Supplement that license renewal applicants are required to submit under 10 C.F.R.

§ 54.21(d). Contrary to New Yorks statement that a license renewal application must contain a supplement to the FSAR, called an Updated Final Safety Analysis Report or UFSAR,17 license renewal applicants are required to submit a supplement to the existing updated FSAR, pursuant to 10 C.F.R. § 54.21(d). Similarly, in ¶ 18 of its Proposed Findings, New York incorrectly states that the UFSAR Supplement which Entergy submitted as Appendix A to its LRA is a UFSAR.18 16 See LRA (Ex. ENT00015A), at B-27; NRC Staffs Testimony of Kimberly J. Green and William C. Holston Concerning Contention NYS-5 (Buried Pipes and Tanks) (Dec. 7, 2012) (Staff Testimony on NYS-5) (Ex. NRCR20016), at 54-55.

17 New Yorks Proposed Findings at 8, ¶ 17.

18 See New Yorks Proposed Findings at 8-9, ¶ 18-19; LRA (Ex. ENT00015A), App. A (Updated Final Safety Analysis Report Supplement).

8 2.234. In Paragraph 29 of its Proposed Findings, New York incorrectly states that the NRC Staff testified at the hearing concerning the lack of certain inspection requirements in the GALL Report, - but again, the sole citation for this assertion is a statement by Entergy witness Alan Cox. See New York PFF at 11 ¶ 29, citing Tr. 3348:7-9 (Cox).

2.235. In Paragraph 30 of its Proposed Findings, New York incorrectly asserts that GALL Report Rev. 1,Section XI M.34 does not address further steps once holidays . . . in coatings and wrappings have already been established; it only seeks to have the licensee address those holidays through a corrective action (that is, a coating holiday does not compel a change to the applicants aging management program, but rather simply an action to repair that specific holiday). Id., citing GALL Report Rev. 1 (Ex. NYS00146C), at XI.M-111. This assertion misstates applicable guidance in the GALL Report, § XI M.34, which states as follows:

Corrective Actions: The site corrective actions program, quality assurance (QA) procedures, site review and approval process, and administrative controls are implemented in accordance with 10 CFR Part 50, Appendix B. The Staff finds the requirements of 10 CFR Part 50, Appendix B, acceptable to address the corrective actions, confirmation process, and administrative controls.

Ex. NYS00146C at XI.M-112.

2.236. Contrary to New Yorks apparent belief, Appendix B of 10 C.F.R. Part 50 requires not just the repair of defective components, but includes broader requirements to assure that a licensees QA program provides adequate confidence that a structure, system or component will perform satisfactorily in service. 10 C.F.R. Part 50, Introduction. For example, Appendix B includes the following provision regarding corrective actions:

XVI. CORRECTIVE ACTION Measures shall be established to assure that conditions adverse to quality, such as failures, malfunctions, deficiencies, deviations, defective material and equipment, and nonconformances are promptly identified and corrected. In the case of significant conditions adverse to quality, the measures shall assure that the cause of the condition is determined and corrective action taken to preclude repetition. The identification of

9 the significant condition adverse to quality, the cause of the condition, and the corrective action taken shall be documented and reported to appropriate levels of management.

10 C.F.R. Part 50, App. B, § XVI; emphasis added. See Staff Testimony on NYS-5 (Ex. NRCR20016), at 43-44 (discussing this requirement and finding that the Applicant had effectively utilized its corrective action program as it relates to the BPTIP, as seen in its response to the 2008 discovery of degraded coatings on the IP2 CST return line piping, whereby the Applicant replaced the degraded piping, conducted a root cause analysis of the failure, and revised its AMP . . . to conduct additional inspections and to risk-rank future inspection locations prior to the period of extended operation.) Further, New Yorks assertion ignores other evidence of record concerning the Applicants BPTIP, in which the detection of defects in buried piping would lead to further actions. See, e.g., Staff Testimony on NYS-5 (Ex. NRCR20016), at 46, citing LRA Sections A.2.1.5 and A.3.1.5 ([b]uried components are inspected when excavated during maintenance. If trending within the corrective action program identifies susceptible locations, the areas with a history of corrosion problems are evaluated for the need for additional inspection, alternate coating, or replacement.)

2.237. In Paragraph 32 of its Proposed Findings, New York claims that GALL Report Rev. 1, AMP XI M.34, does not address management of buried pipes and tanks in areas not subject to opportunistic inspections. New York PFF at 12, ¶ 32. This assertion ignores the requirements of 10 C.F.R. Part 50, Appendix B, discussed above, and disregards the fact that Entergy has committed to a much broader inspection program than the program contained in GALL Report AMP XI M.34.

2.238. In Paragraphs 62-63 of its Proposed Findings, New York refers to licensing teleconferences that were held between Entergy and the Staff, and complains that despite the admission of this contention, New York was not notified of these teleconferences, invited to participate, or permitted to listen. Id. at 19. New York offers no reason to believe it should

10 have been notified in advance or permitted to listen or participate in these calls; moreover, it omits mention of the telephone conference call summaries that are routinely prepared by the Staff following such calls,19 and the Boards ruling that the Staff need not provide advance notice to New York of its meetings and phone calls with the Applicant so as to allow New York to attend the meetings or listen to the calls.20 2.239. In Paragraph 73 of its Proposed Findings, New York incorrectly states that GALL, Rev. 2,Section XI.M41 replaced GALL Rev. 1 XI.M28, Buried Piping and Tanks Surveillance, and GALL Rev. 1 XI.M34, Buried Piping and Tanks Inspection. NYS00147A at 1. New York PFF at 21 ¶ 73. The sole citation provided by New York in support of this assertion was GALL Report Rev. 2 (Ex. NYS000174A at 1) - which contains no such statement. In fact, while GALL Report Rev. 2 contains an AMP (XI.M41) for buried piping and tanks that differs from the AMP (XI.M34) that was contained in GALL Report Rev. 1, the guidance in GALL Report Rev. 1 continues to apply to license renewal applications that were submitted prior to issuance of GALL Report Rev. 1. Staff Testimony on NYS-5 (Ex. NRCR20016), at 65-66. As Staff witness William Holston explained, Revision 1 of the GALL Report, which was cited in Entergys AMP for buried piping and tanks, has not been superseded by GALL Report Rev. 2; rather, [t]he guidance provided in GALL Report Revision 1 continues to apply to plants whose license renewal applications were docketed prior to issuance of GALL Report Revision 2, in December 2010. Id. at 66.

19 See, e.g., Exhibits NYS000449 and ENT000595 (summary of telephone conference call held on October 11, 2012);

20 Memorandum and Order (Scheduling Prehearing Conference and Ruling on New York States Motion Requesting Consideration of Additional Matters) (Dec. 18, 2008), at 4-5; see Transcript of Board Telephone Conference (Jan. 14, 2009), Tr. at 804-06, 815-21 (procedures for disclosing Staff communications with an applicant).

11 2.240. In Paragraph 78 of its Proposed Findings, New York states that the Staff reviewed Entergys AMP (as revised through its responses to Staff RAIs) against the key elements of XI.M41 and Draft LR-ISG-2011-03, concluded that the AMP was adequate, but testified that the AMP did not meet GALL Rev. 2. Id at 22 ¶ 78, citing Tr. 3393:18 - 3394:21.

In fact, Staff witness Holston, whose testimony is cited by New York, stated that GALL, Rev 2, AMP XI.M41, had no provisions for a plant without cathodic protection . . . . [s]o we didn't evaluate Indian Point against that. Tr. at 3,394. Mr. Holstons written testimony explained, however, that the Applicants BPTIP, as revised, is consistent with key elements in the GALL Report Rev. 2 and Final LR-ISG-2011-03. See Staff Testimony on NYS-5 (Ex. NRCR20016),

at 34, 36, 37, 40, 50, 53, 58, 59, 65, 66, and 72. Further, he explained at hearing that because Indian Point did not have cathodic protection, it wouldn't have been consistent with GALL, Rev 2 AMP XI.M41. It is consistent with the Interim Staff Guidance. Tr. at 3,394.

2.241. In Paragraph 87 of its Proposed Findings, New York states that Entergys letter of March 15, 2013 (Ex. ENT000606) made a change in its buried piping inspection programs, and that while the number of inspections would ultimately stay the same, Entergy would take credit for more in the pre-PEO period than previously. New York PFF at 25 ¶ 87, citing Ex.

ENT000606. This statement does not correctly characterize Entergys March 2013 submittal, which neither changed the number of inspections to be conducted prior to the period of extended operation (PEO), nor took credit for more [inspections] in the pre-PEO period than previously. Rather, Entergy combined two categories of buried piping (hazmat and Code/SR) into a single category, thereby allowing a single risk ranking process to be conducted for this piping - both prior to and during the PEO. See Ex. ENT000606, Attachment 1 at 1-2. New York provides no citation to any evidence that would support its assertion.

2.242. In Paragraph 116 of its Proposed Findings, New York states that [t]he record is unclear as to the role of these implementing procedures, presumably referring to the four

12 procedures discussed on the preceding pages of its Proposed Findings.21 Further, New York claims that [t]estimony during the evidentiary hearing from both Entergy and NRC Staff offered conflicting accounts of the role these documents play in the regulatory scheme, and Staffs testimony was internally inconsistent as well. New York PFF at 32-33, ¶ 116. As discussed below, these assertions lack merit.

2.243. First, the role of Entergys corporate procedures was fully explained by Entergys and the Staffs witnesses, as summarized in the Staffs Proposed Findings. See Staff PFF at 111-117, ¶¶ 2.205 - 2.216. In a nutshell, as stated in Staff PFF ¶ 2.207, Entergys corporate procedures EN-DC-343,113 CEP-UPT-0100, and EN-EP-S-002-MULTI, along with site-specific procedure SEP-UIP-IPEC, constitute its implementing procedures for the BPTIP. Id. at 113

¶ 2.207, citing Tr. at 3420, 3484-87, 3666.

2.244. Second, to support its claim that the Staffs testimony was internally inconsistent, New York points to Mr. Holstons testimony that the procedures are available on site to demonstrate how the program is being implemented, New York PFF at 33 ¶ 117, and contrasts that statement with its assertion that the Staffs license renewal audit at Indian Point took place in 2007 and 2008, before Entergy created these procedures. Id., PFF ¶ 118.

Despite New Yorks claims, no inconsistency exists.

2.245. The audit to which New York refers in its PFF ¶ 118 was the Staffs scoping and screening audit, which the Staff conducted early in its review of the LRA, to verify the adequacy of the scoping methodology that Entergy utilized in determining which SSCs should be included within the scope of license renewal for IP2 and IP3. Staff Testimony on NYS-5 (Ex.

21 See New Yorks Proposed Findings at 25-32, discussing Procedures EN-DC-343 (Ex. ENT000599), CEP-UPT-0100 (Ex. ENT000598), SEP-UIP-IPEC (Ex. NYS000174), and EN-EP-002-S-MULTI (Ex. ENT000600).

13 NRCR20016), at 3-4; Scoping and Screening Methodology Audit Trip Report (Ex. NRC000124);

Staff PFF ¶ 2.73. The Staff conducts a second set of audits much later in the license renewal process, to verify that the Applicant has met its license renewal commitments. These two different sets of audits were described in detail in the Staffs testimony and summarized in its Proposed Findings, where the Staff stated, inter alia, as follows:

The Staff conducted an extensive audit of the Applicants AMPs in August, October, and November 2007, and February 2008. The results of that audit were reported in the Staffs Audit Report for Plant Aging Management Programs and Reviews (Audit Report) (Ex. ENT000041), which considered numerous AMPs including LRA AMP B.1.6, Buried Piping and Tanks Inspection. The Audit Report noted that the LRA had indicated that the [BPTIP] is a new program that will be consistent with GALL AMP XI.M34, Buried Piping and Tanks Inspection. The Audit Report described the Staffs audit of this AMP, and reported that the AMP elements reviewed during the audit are consistent with the GALL Report AMP elements. Id. at 8, 9. The BPTIP procedures were not reviewed at that time, as they had not yet been developed, Tr. at 3679-80; those procedures will be (and have been) reviewed during the Staffs pre-PEO inspections, conducted under Inspection Procedure 71003 or TI-2516, in which the Staff verifies that procedures have been developed consistent with the approved AMP. See Tr. at 3686-87. The Staffs witnesses described the Staffs on-site AMP audit process, in which it examines the applicants procedures to confirm whether its AMP is consistent with the GALL Report. See, e.g., Tr. at 3323-25, 3331-32. For example, during its on-site audits at Indian Point, the Staff reviewed extensive documentation to verify whether the applicants process of risk-ranking buried piping is consistent with the GALL AMP Tr. at 3668, 3686-87.

Staff Proposed Findings at 64 n.59 (emphasis added).

2.246. Further, the Staffs testimony and Proposed Findings explained that a license renewal applicants detailed procedures for implementing its aging management programs are required to be available for Staff verification during an on-site inspection prior to or subsequent to license renewal, conducted to confirm that the Applicants license renewal commitments have been implemented (under Inspection Procedure 71003 (Post Approval Site Inspection for License Renewal) (Ex. ENT000251) or Temporary Instruction (TI) 2516/001 (Review of

14 License Renewal Activities) (Ex. ENT000252). 22 The Staff then described the audits which have been (and will be) conducted at Indian Point under TI-2516, to verify the Applicants fulfillment of its commitments. The Staff stated:

During the week of March 5-9, 2012, the Staff conducted an inspection of the Applicants progress in satisfying its license renewal commitments, under TI 2516/001. During that inspection, Mr. Holston personally confirmed that the Applicants Inspection Plan, which is modeled on its corporate program, CEP-UPT-0100, Underground Piping and Tanks Inspection and Monitoring, Revision 0, (Ex. NYS 000173) contains adequate details for assessing the risk of failure and corrosion for in scope buried piping and tanks. In addition, Mr. Holston personally confirmed that the Applicant utilized its corporate process to classify its in scope buried piping and tanks, as documented in site procedure SEP-UIP-IPEC, Underground Components Inspection Plan, Revision 0 (NYS Ex. 000174). Staff Testimony on NYS-5 (Ex.

NRCR20016) at 47-48; cf. Entergy Testimony on NYS-5 (Ex.

ENTR30373) at 79-80.

Staff Proposed Findings at 103 n.105.

2.247. Accordingly, there is no basis for New Yorks claim that the record is unclear, that the testimony of Entergys and the Staffs witnesses is conflicting, or that the Staffs testimony is somehow internally inconsistent.

2.248. In Paragraph 119 of its Proposed Findings, New York points to testimony by Staff witness Kimberly Green, in which she explained that license renewal applicants dont typically list the implementing procedures by name and number in a commitment because they put that commitment into the UFSAR. Id. at 33, citing Tr. 3649:1-7. New York then cites, with emphasis, Ms. Greens next statement, that In order to ever change a procedure, they would have to go through a 50.59 evaluation and not just the screening that was being referred to 22 Staff Proposed Findings at 103 ¶ 2.190, citing Staff Testimony on NYS-5 (Ex. NRCR20016) at 47, and Entergy Testimony on NYS-5 (Ex. ENTR30373) at 79.

15 yesterday. Id. By emphasizing this second sentence, New York appears to imply that Ms. Green testified that a procedure cannot be changed without going through a § 50.59 evaluation; that interpretation of Ms. Greens testimony is baseless. In context, it is clear that Ms. Green was describing the undesirable effect that would result if a procedure was identified by name and number in a commitment that is placed in the UFSAR. Ms. Green explained that this would then require that changes to be procedure be evaluated under § 50.59; in contrast, the testimony is clear that changes to procedures that are not identified in the UFSAR need not go through a § 50.59 evaluation. See Staff PFF ¶¶ 2.189, 2.208, 2.210, 2.211, 2.212, and 2.214; Staff Testimony on NYS-5 (Ex. NRCR20016), at 47-49 and 56-57; Tr. at 3329-30, 3334-35, 3398-99, 3467-69, 3474-76, 3530-31, 3533, 3542, 3641, 3644-46, 3649, and 3966.

2.249. In Paragraph 122 of its Proposed Findings, New York argues that it is unclear why all of the detailed implementing procedures are absent from the UFSAR and NRC enforcement. New York PFF at 34 ¶ 122. New York is wrong. The record contains extensive testimony by the Staffs witnesses, that the Staff required key elements of the Applicants aging management program to be placed in the UFSAR, to assure that any changes to those aspects of the program would be evaluated under § 50.59, while other matters were not needed in the UFSAR. See Staff PFF 2.248, supra. Further, as stated in Staff PFF ¶ 2.212, there are practical reasons for not requiring that all of the details in an applicants implementing procedures be included in the UFSAR:

The implementing procedures for all of the IP2/IP3 AMPs are comprised of thousands of pages. Tr. at 3967. Entergys screening process applies not only to the BPTIP implementing procedures, but to hundreds of other procedures that are not included in the UFSAR; it would be unnecessary and cumbersome to include the details of so many procedures in a UFSAR, since changes would require use of the § 50.59 process. Tr. at 3656-58, 3659.

Staff PFF at 116, ¶ 2.212.

16 2.250. Similarly, New York is incorrect in its assertion, in Paragraph 126 of its Proposed Findings, that the record is ultimately not clear as to whether any changes to implementing procedures are subject to a 50.59 evaluation, a 50.59 screening, or any Staff review at all.

New York PFF at 34 ¶ 125. New York is wrong: The record on this matter is quite clear. As stated in the Staffs Proposed Findings, Entergys and the Staffs witnesses provided a clear explanation of this matter:

Entergys witnesses testified that Entergys administrative controls require that even implementing procedures that are not incorporated in the UFSAR must undergo a screening process (involving three screening questions developed by Entergy) before they can be changed, to determine whether a § 50.59 analysis is required. Tr. at 3399-3400, 3470-72, 3650-51, 3655-56, 3661. If the Applicant then determines that § 50.59 applies to a proposed procedure change, Entergy would perform a § 50.59 analysis in accordance with that regulation. Tr. at 3661-64. The screening process and Entergys screening determinations are described in documents that are maintained at the Indian Point site, which are available for NRC Staff inspection. Tr. at 3942-43. The NRC audits Entergys § 50.59 process on an annual basis. Tr.

at 3943. . . .

Staff PFF at 115-116, ¶ 2.212.

2.251. In Paragraph 126 of its Proposed Findings (at 35), New York quotes extensively from § 3.0.3.1.2 of SER Supplement 1 (Ex. NYS000160) - but omits an important clause that was included in that portion of the evaluation. Thus, New Yorks recitation of the fourth bullet of that section should be correctly restated to include the language it omitted, as underlined below:

Recent inspections found that the backfill did not contain rocks or foreign material that would damage external coatings and the coatings were found to be in good condition. The staff noted that foreign material in backfill caused sufficient damage of the condensate storage tank return line coating such that the line corroded and leaked, and in other instances inspections found coating damage; however, the applicants proposed number of inspections meet the current staff position for number of inspections for a plant with no cathodic protection and unacceptable backfill quality.

See New York PFF at 35, ¶ 126; SER Supplement 1 (Ex. NYS000160), at 3-4.

17 2.252. In Paragraph 129 of its Proposed Findings (at 36), New York misstates a comment by Staff Counsel Sherwin Turk. Contrary to New Yorks representation, Mr. Turk did not state that there is currently no up-to-date version of the UFSAR one can look to in order to ascertain its contents (Tr. 3547-48. (Turk)). New York PFF at 36, ¶ 129. Rather, Mr. Turk explained that the existing UFSAR, which applies to the current Part 50 operating license, would be updated to include the Applicants license renewal commitments, once a renewed license is issued (or sooner, should the Applicant choose to do so). See Tr. at 3547.23 2.253. In Paragraph 130 of its Proposed Findings (at 36), New York incorrectly states that Staff witness Holston testified, the NRC would like an applicant to incorporate critical aspects of a proposed Aging Management Program into the UFSAR. Id. at 36. New York provides no record citation for asserting that Mr. Holston made that statement, and the Staff has found none. Rather, the only statement that to that effect appears to have been made by Ms. Green, which New York cites. See id., citing Tr. at 3649. In contrast, Mr. Holstons testimony indicated that Entergy had included in the UFSAR Supplement the important elements of its AMP, as required by the Staff. See, e.g., Staff Testimony on NYS-5 (Ex.

NRCR20016), at 45-47, 51, 57, 67, and 73.

2.254. In Paragraph 138 of its Proposed Findings, New York contends that the Staff adopted a less rigorous position in Final LR-ISG-2011-03 (Ex. NRC000162) than had been contained in the Draft ISG (Ex. ENT000379), [i]n response to industry comments. New York PFF at 38-39 ¶ 138. Regardless of New Yorks characterization of the Staffs revision of the Draft ISG, it is clear that the Staff did so openly, based upon its determination that certain 23 See also Staff PFF ¶ 2.233, supra (explaining the process for updating a UFSAR under 10 C.F.R. § 50.71(e)).

18 revisions were appropriate.24 The resulting guidance represents the Staffs conclusion as to license renewal applicants may satisfy NRC regulatory requirements for license renewal.25 2.255. In Paragraph 141 of its Proposed Findings, New York claims that the purpose for the Staffs audit of March 5-9, 2012, was not to determine the adequacy of Entergys implementing procedures, but to assess Entergys compliance with the industry initiative. New York PFF at 40 ¶ 141, citing Entergys Testimony at 79-80.26 This assertion is not supported by the testimony that New York cites, and is in fact baseless. In the testimony cited by New York, Entergys witnesses referred to NRC Temporary Instruction (TI) 2516/001 (Review of License Renewal Activities) (Ex. ENT000252). NRC Temporary Inspection procedure TI- 2516/001 describes the process that is used by the Staff to confirm that an applicants license renewal commitments have been implemented.27 As stated above, the Staffs on-site inspection during the week of March 5-9, 2012 was conducted for just that purpose - to evaluate the Applicants progress in satisfying its license renewal commitments. See discussion supra at 13-14, ¶ 2.246.

24 See (1) Interim Staff Guidance on Changes to the Generic Aging Lessons Learned (GALL)

Report Revision 2 AMP XI.M41, "Buried and Underground Piping and Tanks," 77 Fed. Reg. 46,127, 46,128 (Aug. 2, 2012) (Ex. NRC000163); and (2) Final LR-ISG-2011-03 (Ex. NRC000162), Appendix G (Resolution of Public Comments) (accepting in part, and rejecting in part, comments made by the Nuclear Energy Institute, as well as by other commenters, with explanations provided).

25 Without going into a line-by-line review of New Yorks characterization of the changes that were made to the draft ISG, the Staff notes that it does not agree with New Yorks characterization of the changes that were made; in any event, the document clearly identifies the changes that were made and the reasons for such changes. See Final LR-ISG-2011-03 (Ex. NRC000162), App. G.

26 Testimony of Entergy Witnesses Alan Cox, Ted Ivy, Nelson Azevedo, Robert Lee, Stephen Biagiotti, and Jon Cavallo Concerning Contention NYS-5 (Buried Piping and Tanks)) (Dec. 6, 2012)

(Entergy Testimony on NYS-5) (Ex. ENTR30373).

27 See Staff Testimony on NYS-5 (Ex. NRCR20016) at 47; Entergy Testimony on NYS-5 (Ex. ENTR30373) at 79.

19 2.256. In Paragraph 160 of its Proposed Findings, New York provides a general summary of the NRCs regulatory requirements in 10 C.F.R. § 54.4. In doing so, however, New York misstates the requirements in that section, and omits important language from the regulation, thereby incorrectly suggesting that the Commissions regulations require that the prevention or mitigation of accidents that could lead to any offsite radiological doses are required to be addressed in an aging management plan. In fact, however, the accidents referred to in § 54.4 are those which could result in significant doses in excess of those addressed in the cited regulations. Accordingly, New York PFF ¶ 160 should be corrected and modified to include the underlined language in § 54.4, as set forth below:

160. Therefore, those buried pipes, and tanks, that are safety-related, or which are nonsafety related but whose failure could affect the reactor pressure boundarys integrity, the capability to safely shut down the plant, or the capability to prevent or mitigate the consequences of accidents that could result in potential offsite exposures comparable to those referred to in

§ 50.34(a)(1), § 50.67(b)(2), or § 100.11, are within the scope of must be the subject of an Aging Management Program in license renewal.

2.257. In Paragraph 170 of its Proposed Findings, New York argues that Entergy and NRC Staff witnesses offered contradictory testimony as to whether the GALL Report constitutes in and of itself an actual off-the shelf Aging Management Program, or whether it is a summary guidance document that offers guidance on how to construct a separate, site-specific Aging Management Program. New York PFF at 51, ¶ 170. Then, in ¶¶ 171-174 of its Proposed Findings, New York selectively cites various scraps of testimony in an effort to demonstrate some sort of contradiction - leading it to assert that [t]herefore, the record supports the conclusion that GALL itself is not an AMP, but is instead merely guidance, and that an applicant must develop a program which is consistent with GALL to rely on GALL as a measure of reasonable assurance. Id. at 52 ¶ 175. New Yorks arguments should be rejected.

20 2.258. As discussed in both Entergys and the Staffs testimony, and as summarized in the Staffs Proposed Findings, the GALL Report is, in fact, regulatory guidance. One way that an applicant for license renewal may demonstrate that it meets the Commissions license renewal requirements is to commit to implement an aging management plan that is consistent with the AMP described in the GALL Report. This was described at length in the Staffs Proposed Findings at PFF ¶¶ 2.15 - 2.18. In particular, the Staff stated as follows:

2.17. Further, the GALL Report establishes one acceptable way for an applicant to manage the aging effects for license renewal. Thus, an applicant may reference NUREG-1801 in its LRA to demonstrate that the programs at its facility correspond to those reviewed and approved in the GALL Report.

Id. GALL Report Rev. 1 (Ex. NYS000146A) at 3-4. To demonstrate the adequate management of aging effects, license renewal applicants may use AMPs that are consistent with GALL Report Rev. 1 (Ex. NYS000146A-C), or (for more recent license renewal applications) GALL Report Rev. 2 (Dec. 2010) (Ex.

NYS000147A-D. . . .

2.18. If an applicant commits to implement the AMP that is consistent with the GALL Report, that commitment will be found to be an adequate demonstration of reasonable assurance under section 54.29(a).

Staff PFF at 10-11 (citations omitted). The testimony of Staff witness Holston and Entergy witness Cox, cited by New York (New York PFF at 51-52) are not inconsistent with these well-known principles.

2.259. Moreover, the Commission directly addressed this issue earlier in this proceeding, clearly explaining that an applicants use of an AMP in the GALL Report establishes its compliance with the license renewal requirements:

The GALL Report identifies generic aging management programs that the Staff has determined to be acceptable, based on the experiences and analyses of existing programs at operating plants during the initial license period. The report describes each aging management program with respect to the ten program elements defined in the SRP-LR. The report also includes a table summarizing various structures and components, the materials from which they are made, the environment to which they are exposed, the aging effect (e.g., loss of material through pitting,

21 leaching or corrosion), the aging management program found to manage the particular aging effect in that component, and whether additional evaluation is necessary.

An applicant for license renewal "may reference the GALL Report ... to demonstrate that the programs at the applicant's facility correspond to those reviewed and approved" therein, and the applicant must ensure and certify that its programs correspond to those reviewed in the GALL Report. In other words, the license renewal applicant's use of an aging management program identified in the GALL Report constitutes reasonable assurance that it will manage the targeted aging effect during the renewal period. If the applicant uses a different method for managing the effects of aging for particular SSCs at its plant, then the applicant should demonstrate to the Staff reviewers that its program includes the ten elements cited in the GALL Report and will likewise be effective. In addition, many plants will have plant-specific aging management programs for which there is no corresponding program in the GALL Report. For each aging management program, the application gives a brief description of the licensee's operating experience in implementing that program.28 2.260. In Paragraphs 176 - 178 of its Proposed Findings, New York recites various statements by Entergy witness Alan Cox, and claims: Therefore, Entergys experts admit that an insufficient amount of detail is present in GALL Rev. 1 to identify even basic requirements like the number of inspections that should be performed. New York PFF at 54 ¶ 179. New Yorks arguments should be rejected. First, regardless of New Yorks views as to the adequacy of GALL Report Rev. 1, the testimony by Mr. Cox which New York cites merely responded to the Boards questions as to what is contained in that guidance document. Second, Entergys BPTIP (including its provisions regarding the number of inspections that will be performed, which was the issue discussed in Mr. Coxs cited testimony) far exceeds the recommendations 28 Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Unit Nos. 2 and 3), Entergy Nuclear Operations, Inc.

(Pilgrim Nuclear Power Station), Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-08-23, 68 NRC 461, 467-68 (2008) (footnotes omitted; emphasis added).

22 in GALL Report Rev. 1. Moreover, the UFSAR Supplements for IP2 and IP3 contain specific information regarding the number of inspections that are to be performed, as well as other provisions of primary importance; and the testimony provided by Entergys and the Staffs witnesses establishes that no additional details are needed in either the BPTIP or the UFSAR Supplements. See generally, Staff PFF at 96 - 105, ¶¶ 2.179 - 2.193.

2.261. Similarly, in Paragraphs 180 - 185 of its Proposed Findings, New York assembles various bits of testimony by Entergy witness Alan Cox and the Staffs witnesses, arguing that the Applicants implementing procedures must be included in the BPTIP, itself, to demonstrate consistency with the GALL Report. See, e.g., New York PFF at 55 ¶ 183. New Yorks argument, however, improperly conflates (a) what is needed to be stated in an applicants AMP to be consistent with the AMP described in the GALL Report, with (b) details describing the specific procedures by which the AMP will be implemented. See Staff PFF

¶¶ 2.187 - 2.191, 2.208 - 2.211. In particular, as stated in Staff PFF ¶ 2.211, no further detail is needed in ether the BPTIP or the UFSAR Supplements:

2.211. Mr. Holston testified that the Standard Review Plan pre-sanctioned the level of detail that the Staff would expect to see in the FSAR supplement. Tr. 3537-38. As he further stated, the Standard Review Plan identified what must be included in an AMP, and the level of detail that is expected for the FSAR Supplement. Tr. at 3376, 3531-32. The most critical aspects of Entergys AMP are incorporated in its UFSAR; likewise, the principal bases for the Staffs acceptance of the AMP [i.e.,

coatings, number of inspections, risk-informing, and soil sampling]

are set out in SER Supplement 1 (Ex. NYS000160) at 3-4, Tr. at 3641-42. Other aspects of the procedure that are not captured in the UFSAR can be changed without requiring an analysis under 10 C.F.R. § 50.59. Tr. at 3329-30, 3334-35, 3398-99, 3467-69, 3474-76, 3530-31, 3533, 3542.

Staff PFF at 114-115 ¶ 2.211 (footnotes omitted). New Yorks arguments to the contrary lack any substantial basis and should be rejected.

23 2.262. In Paragraph 187 of its Proposed Findings, New York mistakenly asserts that when Staff witness William Holston described the license renewal AMP audit process, he must have been testifying in the hypothetical, because NRC Staffs license renewal audit at Indian Point was conducted in 2007 and 2008 (ENT00041 at 1), and states that At the time of the audits, the applicant had not yet developed procedures for this new program. New York PFF at 57 ¶ 187, citing Ex. ENT000041 at 8, § 3.1.2. Further, New York mistakenly asserts that

[t]he record contains no indication that NRC Staff has reviewed Entergys implementing procedures in the context of license renewal, or that Staff will be conducting a follow-up audit given the creation of these new procedures since Staffs original (and only) license renewal audit. Id. at 57-58 ¶ 187. Finally, New York claims that [n]otwithstanding NRC Staffs observation that Entergy had not yet developed procedures for this new program at the time of the audit, Staff nevertheless concluded that the applicants AMP elements are consistent with the GALL Report AMP elements. Id. at 58 ¶ 188, citing Ex. ENT000041 at 9.

2.263. Contrary to New Yorks assertions, the audit that took place in 2007-2008 concerned the Applicants scoping and screening methodology; in March 2012, the Staff conducted the first installment of a different audit (for which additional installments will be conducted later this year), to verify the Applicants implementation of its license renewal commitments. See discussion supra, at ¶¶ 2.244 - 2.247, and 2.255. New York incorrectly confuses these two different types of audits.

2.264. In Paragraph 190 of its Proposed Findings, New York cites a statement by Staff witness Holston that if the BPTIP implementing procedures were to be included in the LRA, the LRA would be a huge document, in that the procedures and reports that he reviews during an AMP audit are 200 to 300 pages in length. of procedures and reports. New York PFF at 58

¶ 190, citing Tr. 3325:19-25. New York fails to note, however, that the BPTIP is only one of numerous AMPs that are set out in the LRA. See, e.g., LRA (Ex.. ENT00015B), Appendix B,

24 at B B-139. However, while New York may have a particular interest in the BPTIPs implementing procedures, there are 40 other AMPs described in Appendix B of the AMP -

each of which has its own implementing procedures, totaling thousands of pages.

Tr. at 3967 (Azevedo). The inclusion of all of those implementing procedures in the UFSAR would result in an extremely lengthy document which, in any event, is unnecessary. See Staff PFF ¶ 2.249 supra; Staff PFF ¶ 2.212.

2.265. In Paragraph 193 of its Proposed Findings, New York objects that it is not permitted to participate in the Staffs audit of the Applicants implementation of its license renewal commitments, and that the documents reviewed in the audit are not provided to the Board or parties to be adjudged adequate or not. New York PFF at 58-59 ¶ 193. These assertions - which New York raised for the first time in its Proposed Findings - fail to raise a material issue within the scope of this contention, as admitted, and come too late in the proceeding to warrant their consideration. See discussion supra at 5-6 ¶ 2.231, and the cases cited therein. In addition, the Applicants implementing procedures, which establish the means by which it will fulfill its license renewal commitments, were provided to the Intervenors and were the subject of considerable testimony and questioning (by both the Board and New York) at the evidentiary hearing. New York has thus had a full opportunity to litigate its contentions; as the Commission has held, nothing more is required.29 Moreover, the Staffs license renewal audit process is an accepted and important component of the agencys license renewal review, which has been considered and approved by the Commission in this very proceeding.30 For all of these reasons, New Yorks assertions should be rejected.

29 Oyster Creek, supra, CLI-08-23, 68 NRC at 476-77.

30 Id., 68 NRC at 465, 467, 480-81, and 483.

25 2.266. Also in Paragraph 193 of its Proposed Findings, New York mistakenly asserts, once again, that the Staff has not conducted an audit of the Applicants implementing procedures. New York PFF at 59 ¶ 193. For the reasons discussed in Staff PFF

¶¶ 2.244 - 2.247 and 2.255, supra, this assertion should be rejected.

2.267. In Paragraphs 194 -195 of its Proposed Findings, New York claims that the NRC Staff is not consistently applying any one set of guidance or standards to Indian Points License Renewal application, and that the Staff and Entergy expressed confusion about which version of GALL against which they were measuring Entergys proposed AMP. New York PFF at 59.

New York proffered these ipse dixit assertions without evidentiary support; in any event, the record is entirely clear in this regard. See Staff PFF at ¶¶ 2.56, 2.126, and 2.185. In particular, the Staff provided the following summary of the guidance it used in reviewing the BPTIP:

. . . GALL Report, Revision 2, AMP XI.M41, was issued after Entergy submitted its LRA, and the Staff therefore did not directly apply that AMP to the IP2/IP3 LRA; nonetheless, the Staff, through a series of RAIs issued after publication of SER Supplement 1, evaluated the Applicants AMP against the key elements of GALL Report Rev. 2, AMP XI.M41. In addition, the Staff compared the Applicants BPTIP to the guidance in the Draft and Final versions of LR-ISG-2011-03 (Exs. NRC000019 and NRC000162) (e.g., number of inspections, soil sampling, and use of plant specific operating experience). The Staff concluded that Entergys AMP (as revised through its responses to the Staffs RAIs) is adequate to manage the applicable aging effects to ensure that buried piping and tanks will perform their current licensing basis functions. See Staff Testimony on Contention NYS-5 at 12 n.3, 20-21, 36, 39-41, 52-53, 58-60, 65, 67, and 72.

Further, the Staff found that the Applicants AMP is consistent with Final LR-ISG-2011-03. Tr. at 3972. As stated in n.21, supra, the Staffs review effectively consisted of a hybrid evaluation, under GALL Report Rev. 1, GALL Report Rev. 2, and LR-ISG-2011-03.

Tr. at 3938.

Staff PFF ¶ 2.126 at 62 n. 58.

2.268. In Paragraph 201 of its Proposed Findings, New York incorrectly claims that the ISG requires a demonstration through the submission of a study submitted with the LRA [of] the

26 impracticality of installing or operating a cathodic protection system. New York PFF at 60

¶ 201, citing Final LR-ISG-2011-03 (Ex. NRC000167) at 2. Further, New York states that Entergys LRA as amended contains no such study, and makes no mention of whether installing or operating a cathodic protection system at Indian Point would be impractical. Id.,

citing Ex. ENT000597 at Attachment 2.

2.269. New Yorks claims in PFF ¶ 201are based upon an incorrect reading of the guidance in Final LR-ISG-2011 which provides an alternative means of satisfying the guidance other than the submission of a study. The Final ISG states as follows:

Failure to provide cathodic protection in accordance with Table 2a must be justified in the LRA. The justification should include sufficient detail (e.g., soil sample locations, soil sample results, the methodology and results of how the overall soil corrosivity was determined, pipe-to-soil potential measurements) for the staff to independently reach the same conclusion as the applicant. An exception must be stated and justified if the basis for not providing cathodic protection is other than demonstrating that external corrosion control (i.e., cathodic protection and coatings) is not required or demonstrating that installation, operation, or surveillance of a cathodic protection system is not practical.

Inspections in excess of those recommended in program element 4 of this AMP may be required based on plant-specific operating experience.

Final LR-ISG-2011-03 (Ex. NRC000167) at A-3, § 2.a.iii (emphasis added). Entergy provided the justification specified in the Final ISG in its March 28, 2011 response to the Staffs Requests for Additional Information (RAIs). See Ex. NYS000151, Attachment 1, p. 6 of 27 (Response

27 for RAI 3.0.3.1.2-1 Part 2c).31 The Staff reviewed the Applicants response and found it to be acceptable. See SER Supplement 1 (Ex. NYS000160) at 3 3-4. Accordingly, New Yorks assertion that the Applicant failed to submit a study in accordance with the Final ISG should be rejected.

2.270. In Paragraphs 204 and 209 - 214 of its Proposed Findings, New York observes that Entergys witnesses provided testimony concerning the Applicants recent and planned installation of cathodic protection for various buried piping systems, inter alia, renders the current record incomplete, such that it does not presently provide a basis on which the Board could base a finding of reasonable assurance that the facilities current licensing basis will be maintained throughout the period of extended operation. New York PFF at 63 ¶ 214. These assertions should be rejected, for the reasons stated supra, at 2-6, ¶¶ 2.228 - 2.231.

2.271. In Paragraph 219 of its Proposed Findings, New York incorrectly asserts that

[d]espite . . . well-recognized problems with backfill and related corrosion problems at Indian Point, NRC Staff witness William Holston testified that . . . the coatings are in acceptable condition and the backfill in the vicinity of the pipe does not damage the coatings. New York PFF at 65 ¶ 219, citing Ex. NRC00016 at 21, A18, Tr. 3627:14-22. This statement, however, 31 In Section 2.c of its RAIs of February 10, 2011, the Staff requested as follows:

2.c. For buried in-scope steel piping systems that are not cathodically protected:

i. Justify why this piping will continue to meet or exceed the minimum design wall thickness throughout the period of extended operation, assuming that no coatings are applied to the piping, or ii. Justify why the number of the planned inspections of this piping is sufficient to reasonably assure that this piping will continue to meet or exceed the minimum design wall thickness throughout the period of extended operation.

RAI of February 10, 2011 (Ex. NYS000150), Enclosure at 3.

28 does not quote Mr. Holstons testimony, but instead quotes a question by Judge Wardwell, at Tr. 3627, in which he had incorrectly quoted Mr. Holstons prefiled written testimony. In fact, Mr. Holstons prefiled written testimony had stated as follows:

A.18. (WCH) Based on a review of the LRA and the Applicants answers to several RAIs related to buried piping and tanks of the Indian Point facility, the Staff has concluded that the AMP for buried piping and tanks at the facility will adequately manage the effects of aging for the in-scope components so that their intended function(s) will be maintained consistent with the CLB for the period of extended operation. As documented in SER Supplement 1, Section 3.0.3.1.2 (Exhibit NYS000160), the basis for this determination may be summarized as follows:

In regard to preventive actions to mitigate potential corrosion, all steel piping has been coated in accordance with standard industry practices. Recent excavated direct visual examinations of buried pipe have demonstrated that the coatings are in acceptable condition and the backfill in the vicinity of the pipe has not damaged the coatings.

Staff Testimony on NYS-5 (Ex. NRCR20016), at 22. Contrary to New Yorks suggestion, Mr. Holston did not state that "[r]ecent excavated direct visual examinations of buried pipe have demonstrated that the coatings are in acceptable condition and the backfill in the vicinity of the pipe does not damage the coatings.

2.272. The record is clear that the Staff gave thorough and proper consideration to the buried piping coating damage that had been detected at the Indian Point site. Indeed, this matter was discussed at length in Mr. Holstons testimony, as summarized in the Staffs Proposed Findings. See Staff PFF at 64-67, ¶ 2.128, ¶¶ 2.131 - 2.132, notes 61, 62 and 64, and testimony cited therein. There is simply no basis for New Yorks apparent suggestion that the Staffs evaluation improperly failed to consider evidence of coating damage at the Indian

29 Point site. See New York PFF at 65 ¶ 220, citing Ex. NYS000203 at 2 of 7.32 2.273. In Paragraph 233 of its Proposed Findings, New York incorrectly summarizes the process outlined in 10 C.F.R. § 50.59 governing changes to procedures that are, or are not, identified in the UFSAR. New York PFF at 68 ¶ 233. Contrary to New Yorks stated belief, the NRCs regulatory scheme does not address, much less allow changes to be made to license renewal commitments after the license has been granted if the applicant performs a screening procedure pursuant to 10 C.F.R. § 50.59 and the results indicate no notice to NRC or the public is required. See id. Further, contrary to New Yorks characterization, the Staff did not testify that after license renewal, commitments that appear . . . in a UFSAR Supplement, are definitively subject to § 50.59, and are treated more seriously by the Staff. Id. A correct description of the § 50.59 process is provided in the Staffs Proposed Findings. See Staff PFF at ¶¶ 2.189, 2.191, 2.208, 2.210. 2.211, 2.212, and 2.214. The Applicants use of a § 50.59 screening process (of its own creation) is discussed in Staff PFF at ¶ 2.212.

2.274. In Paragraph 237 of its Proposed Findings, New York asserts that it is unclear from the record what information becomes part of the UFSAR and what information remains in an unenforceable commitment. New York PFF at 69 ¶ 237. This assertion is without merit.

32 Exhibit NYS000203, cited by New York, is a letter from Fred Dacimo (Entergy) to the NRC Document Control Desk,

Subject:

Questions Regarding Buried Piping Inspections (NL-09-106) (July 27, 2009). Therein, Entergy responded, inter alia, to certain questions posed by the Staff regarding the Applicants operating experience, including the February 2009 discovery of a leak in the return line for the Unit 2 condensate storage tank (CST). Entergy stated that this leak resulted from damaged pipe coating, and that the root cause for the leak was an original construction installation specification which did not appropriately specify the type of fill to be used when covering piping and components after installation. Id., Attachment 1 at 2 of 7. As a result of this leak, Entergy amended the BPTIP in LRA

§ B.1.6 and added a new commitment to address this matter. See id., at pages 2 - 4 of 7. This matter was discussed at length in Mr. Holstons testimony, as summarized in the Staffs Proposed Findings.

See, e.g., Staff PFF at 66-67, notes 61, 62 and 64, and testimony cited therein.

30 The record is very clear as to which provisions are included in the UFSAR and which are not.

See discussion supra at 15-17 and 22-23, ¶¶ 2.248 - 2.250, and 2.260 - 2.261.

III. CONCLUSIONS OF LAW 2.275. For the reasons stated above and in the Staffs Proposed Findings of March 22, 2013 (as revised on 04/22/2013), and the Conclusions of Law set forth therein (in PFF

¶¶ 2.218 - 2.227, all contested issues raised in Contention NYS-5 are hereby resolved in favor of Entergys application for license renewal for Indian Point Units 2 and 3. Accordingly, we find that Contention NYS-5 should be, and is hereby, resolved in favor of the Applicant.

Respectfully submitted,

/Signed (electronically) by/

Sherwin E. Turk Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-1533 E-mail: sherwin.turk@nrc.gov Dated at Rockville, Maryland this 3rd day of May 2013

31 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247/286-LR

)

(Indian Point Nuclear Generating )

Units 2 and 3) )

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R § 2.305 (as revised), I hereby certify that copies of the foregoing NRC STAFFS REPLY PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW ON CONTENTION NYS-5 (BURIED PIPING AND TANKS), dated May 3, 2013, have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above- captioned proceeding, this 3rd day of May, 2013.

/Signed (electronically) by/

Sherwin E. Turk Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-1533 E-mail: sherwin.turk@nrc.gov