ML14045A088

NRC Staff'S Petition for Commission Review of LBP-13-13 in Part (Contentions NYS-8 and CW-EC-3A), and LBP-11-17 (Contention NYS-35/36)

ML14045A088
Person / Time
Site:	Indian Point
Issue date:	02/14/2014
From:	Amitava Ghosh, Harris B, Mizuno B, Sherwin Turk NRC/OGC
To:	NRC/OCM
SECY RAS
References
50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, LBP-11-17, LBP-13-13, RAS 25582
Download: ML14045A088 (70)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket No. 50-247-LR/50-286-LR

)

(Indian Point Nuclear Generating )

Units 2 and 3) )

NRC STAFFS PETITION FOR COMMISSION REVIEW OF LBP-13-13 IN PART (CONTENTIONS NYS-8 AND CW-EC-3A), AND LBP-11-17 (CONTENTION NYS-35/36)

Sherwin E. Turk Brian G. Harris Beth N. Mizuno Anita Ghosh Counsel for NRC Staff February 14, 2014

TABLE OF CONTENTS INTRODUCTION ..................................................................................................................... BACKGROUND ....................................................................................................................... DISCUSSION ........................................................................................................................... I. Legal Standards Governing Petitions for Review........................................................... II. Commission Review is Warranted Because LBP-13-13 Incorrectly Requires an Applicant to Subject an Active Component, a Transformer, to an Aging Management Review .................................................................................. A. Procedural History ...................................................................................................... B. Summary of the Boards Decision .............................................................................. C. The Decision Misinterprets Regulatory Requirements Governing the Intended Scope of License Renewal, And Is Contrary to Well-Established Guidance and Precedent. ............................... 1. Regulatory Requirements in 10 C.F.R. Part 54 .................................................... 2. The Applicable Regulatory Guidance Classifies Transformers as an Active Component ................................................................ 3. The Finding that Transformers Are Passive Is Based Upon An Incorrect Understanding of Transformers, and Their Monitorability. ................................... 4. The Finding that Transformers Are Passive Is Contrary To the Commissions SOC, Regulatory Guidance and Precedent. ...................... 5. An Incorrect Standard Was Used to Distinguish Between Active and Passive Components.......................................................................... III. Commission Review is Warranted Because the Findings in LBP-13-13 Impermissibly Alter the Commissions Generic Conclusions Regarding the Environmental Effect of License Renewal ....................... A. Applicable Legal Principles ...................................................................................... 1. License Renewal under the National Environmental Policy Act of 1969. ............. 2. Consideration of Environmental Justice Impacts ................................................. B. Although the Boards Ultimate Conclusion Regarding Contention CW-EC-3A is Correct, Its Underlying Rationale Should Set Aside .......................... 1. The Decisions Requirement that the Impacts of Emergency Response Protective Actions on EJ Populations Must Be Considered in An EIS for License Renewal Was Clearly Erroneous. ..........................................

ii

2. The Staff Reasonably Relied on the Commissions Generic Findings in the GEIS and 10 C.F.R. Part 51, Appendix B, Table B-1 ................................. 3. The Staffs Comparison of the Differential Impacts Between License Renewal and Current Operations for EJ Populations, Was Reasonable Under NEPA ............................................................................ IV. Commission Review is Warranted Because Contrary to the Regulations, LBP-11-17 Requires the Supplemental EIS to Contain Information Beyond That Necessary for a Hard Look..................................... A. Procedural History .................................................................................................... B. The Decision in LBP-11-17 Was Clearly Erroneous and Warrants Commission Review under 10 C.F.R. § 2.341(b) ..................................................... 1. There Is No Legal or Regulatory Basis to Require Engineering Project Cost-Benefit Analyses as a Condition for License Renewal. ................... 2. The Staffs Detailed FSEIS Explanation of the Reasons Supporting Its License Renewal Recommendation Are Consistent with NEPA, the APA, and NRC Regulations, and Warrants Reversal of LBP-11-17. ............. C. Commission Review of LBP-11-17 Is Timely ........................................................... CONCLUSION .......................................................................................................................

iii TABLE OF AUTHORITIES Page JUDICIAL DECISIONS U.S. Supreme Court Baltimore Gas & Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87 (1983) ................................................................................................ 26 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) .................................. passim Stryckers Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223 (1980) ............................... 26 Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7 (2008) ..................................... 26 U.S. Courts of Appeals Beyond Nuclear v. NRC, 704 F.3d 12 (1st Cir. 2012) ................................................................. 26 Carolina Environmental Study Group v. AEC, 510 F.2d 796 (D.C. Cir. 1975) ............................ 28 City of New York v. DOT, 715 F.2d 732 (2d Cir. 1983) ............................................................... 28 Natural Resources Defence Council, Inc. v. Morton, 458 F.2d 827 (D.C. Cir. 1972) .................. 26 Massachusetts v. NRC, 708 F.3d 63 (1st Cir. 2013) ........................................................... passim N.J. Dep't of Environmental Protection v. NRC, 561 F.3d 132 (3rd Cir. 2009) ........................... 26 Town of Winthrop v. FAA, 535 F.3d 1 (1st Cir. 2008) ........................................................... 29, 50 STATUTES Administrative Procedure Act, 5 U.S.C. § 551, et seq. (2011) .................................................... 58 National Environmental Policy Act, as amended, 42 U.S.C. § 4321, et seq. (1969) .......... passim

iv ADMINISTRATIVE DECISIONS Commission:

Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-09-7, 69 NRC 235 (2009) ..................................................................................................... 31 Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant),

CLI-01-11, 53 NRC 370 (2001) ..................................................................................................... 7 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-05-24, 62 NRC 551 (2005) .......................................................................... 53 Dominion Nuclear Connecticut, Inc. (Millstone Power Station, Unit 3),

CLI-02-22, 56 NRC 213 (2002) ..................................................................................................... 7 Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-28, 56 NRC 373 (2002) .......................................... 48, 49 Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-03-17, 58 NRC 419 (2003) ........................................ passim Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), CLI-83-19, 17 NRC 1041 (1983) ................................................................................................................... 31 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc.

(Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287 (2010) ....................................... passim Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc.

(Pilgrim Nuclear Power Station), CLI-10-14, 71 NRC 449 (2010) ......................................... 12, 16 Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3),

CLI-11-14, 74 NRC 801 (2011) ........................................................................................... passim Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3),

CLI-10-30, 72 NRC 564 (2010) ........................................................................................... passim Entergy Nuclear Vermont Yankee, L.L.C. and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station),

CLI-10-17, 72 NRC 1 (2010) ......................................................................................................... 7 Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-07-1, 65 NRC 1 (2007) .............................. 45 Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station),

CLI-07-3, 65 NRC 13, reconsid. denied, CLI-07-13, 65 NRC 211 (2007) ........................... passim Florida Power & Light Co. (Turkey Point Nuclear Generating Plant,

v Units 3 and 4), CLI-01-17, 54 NRC 3 (2001). ..................................................................... passim Honeywell International, Inc. (Metropolis Works Uranium Conversion Facility), CLI-13-01, 77 NRC 1 (2013) .......................................................................................... 6 Louisiana Energy Services, L.P (National Enrichment Facility),

CLI-05-20, 62 NRC 523 (2005) ........................................................................................... passim Louisiana Energy Services, L.P. (Claiborne Enrichment Center),

CLI-98-3, 47 NRC 77 (1998) ................................................................................................. 29, 30 Louisiana Energy Services, L.P. (National Enrichment Facility),

CLI-06-15, 63 NRC 687 (2006) ..................................................................................................... 7 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1)

CLI-12-5, 75 NRC 301 (2012) ............................................................................................. passim Northeast Nuclear Energy Co. (Millstone Nuclear Power Station, Unit 3),

CLI-01-3, 53 NRC 22 (2001) ......................................................................................................... 7 Pa'ina Hawaii, LLC (Materials License Application), CLI-10-18, 72 NRC 56 (2010) ......................................................................................................................... 7 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-00-24, 52 NRC 351 (2000) ............................................................................................. 58, 59 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-01-9, 53 NRC 232 (2001) ....................................................................................................... 7 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-01-22, 54 NRC 255 (2001) ............................................................................................. 18, 19 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-02-20, 56 NRC 147 (2002) ....................................................................................... 29, 30, 31 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-02-25, 56 NRC 340 (2002) ................................................................................................... 26 Southern Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site),

CLI-10-5, 71 NRC 90 (2010) ............................................................................................... passim Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-05-15, 61 NRC 365 (2005) ..................................................................................................................... 19 Atomic Safety and Licensing Appeal Board:

Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAB-616, 12 NRC 419 (1980) ..................................................................................................................... 31

vi Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),

ALAB-900, 28 NRC 275 (1988) .................................................................................................. 19 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),

ALAB-156, 6 AEC 831 (1973) ......................................................................................... 30, 40, 43 Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2),

ALAB-875, 26 NRC 251 (1987) .................................................................................................. 59 Atomic Safety and Licensing Board:

Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-08-13, 68 NRC 43 (2008) ......................................................................... 3, 8 Entergy Nuclear Operations, Inc. (Indian Point Units 2 and 3), LBP-10-13, 71 NRC 673, partial interlocutory review declined, CLI-10-30, 72 NRC 564 (2010) ........... passim Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-11-17, 74 NRC 11, petition for interlocutory review denied, CLI-11-14, 74 NRC 801 (2011) ................................................................... passim Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-13-13, 78 NRC ___ (Nov. 27, 2013) (slip op.) .................................... passim Louisiana Energy Services, L.P. (Claiborne Enrichment Center),

LBP-96-25, 44 NRC 331 (1996), revd on other grounds, CLI-97-15, 46 NRC 294 (1997) ................................................................................................... 31 REGULATIONS 10 C.F.R. § 2.325........................................................................................................................ 37 10 C.F.R. § 2.341(b)(4) ................................................................................................................. 9 10 C.F.R. § 50.47........................................................................................................................ 38 10 C.F.R. § 50.54(q) ................................................................................................................... 38 10 C.F.R. § 50.54(s)-(u) .............................................................................................................. 38 10 C.F.R. § 50.109(a)(3). ............................................................................................................ 54 10 C.F.R. § 51.2.......................................................................................................................... 27 10 C.F.R. § 51.20(b)(2) ............................................................................................................... 27

vii 10 C.F.R. § 51.42(a)(2) ............................................................................................................... 58 10 C.F.R. § 51.53(c)(3)(ii)(L) ................................................................................................. 49, 52 10 C.F.R. § 54.21(a)(1)(i). ..................................................................................................... 14, 17 10 C.F.R. § 54.29........................................................................................................................ 16 10 C.F.R. §54.29(b) .................................................................................................................... 28 10 C.F.R. Part 50, Appendix E.................................................................................................... 38 10 C.F.R. Part 51, Subpart A, App. B, Table B-1 ................................................................ passim MISCELLANEOUS Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, Exec. Order No. 12898, 59 Fed. Reg. 7,629 (Feb. 16, 1994) ........................................................................................................................... 30 Final Rule, Changes to Requirements for Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 64 Fed.

Reg. 48,496 (Sept. 3, 1999)........................................................................................................ 33 Final Rule, Environmental Review of Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467 (June 5, 1996) ............................................... 27 Final Rule, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 66,537 (Dec. 18, 1996) ............................................. 33 Final Rule, Nuclear Power Plant License Renewal, 56 Fed. Reg.

64,943 (Dec. 13, 1991) ......................................................................................................... 33, 54 Final Rule, Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22,461 (May 8, 1995) .................................................................................... passim Final Rule, Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, Part II," 78 Fed, Reg.

37,282 (June 20, 2013) ............................................................................................................... 29 Final Rule: Correction, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses; Correction, 61 Fed. Reg. 68,543 (Dec. 30, 1996) ........................................................................................................................... 33 Final Rule: Correction, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses; Correction, 61 Fed. Reg. 39,555 (July 30, 1996) ............................................................................................................................ 33

viii Policy Statement on the Treatment of Environmental Justice Matters in NRC Regulatory and Licensing Actions, 69 Fed. Reg. 52,040 (Aug. 24, 2004) .................. 30, 31 Regulatory Guide, Issuance, Preparation of Environmental Reports for Nuclear Power Plant License Renewal Applications, Part II, 78 Fed. Reg.

37,324 (June 20, 2013) ............................................................................................................... 29 Proposed Rule, " 10 C.F.R. Part 50," 77 Fed. Reg. 16, 175 (Mar. 20, 2012) .......................... 490

February 14, 2014 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket No. 50-247-LR/50-286-LR

)

(Indian Point Nuclear Generating )

Units 2 and 3) )

NRC STAFFS PETITION FOR COMMISSION REVIEW OF LBP-13-13 IN PART (CONTENTIONS NYS-8 AND CW-EC-3A), AND LBP-11-17 (CONTENTION NYS-35/36)

INTRODUCTION Pursuant to 10 C.F.R. § 2.341(b), the staff of the Nuclear Regulatory Commission (Staff) hereby files a petition for review of two decisions by the Atomic Safety and Licensing Board (Board) in this proceeding: (1) The Boards Partial Initial Decision (Ruling on Track 1 Contentions), LBP-13-13, 78 NRC ___ (Nov. 27, 2013),1 regarding its resolution of Contentions NYS-8 (Transformers) and CW-EC-3A (Environmental Justice), and (2) the Boards Memorandum and Order (Ruling on Motion and Cross-Motions for Summary Disposition of NYS-35/36) (LBP-11-17), granting summary disposition of Contention NYS-35/36 (Potentially Cost Beneficial SAMAs) in favor of New York.2 In accordance with 10 C.F.R. § 2.341(b)(4), the Staff respectfully submits that LBP-13-13 correctly resolved seven of the nine Track 1 contentions, but was clearly erroneous in its 1

Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-13-13, 78 NRC ___ (Nov. 27, 2013) (slip op.). By Order of December 18, 2013, the Commission granted the parties an extension of time to file petitions for review of LBP-13-13, until February 14, 2014.

2 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-11-17, 74 NRC 11, petition for interlocutory review denied, CLI-11-14, 74 NRC 801 (2011).

resolution of two contentions.3 Specifically, (a) the Board erred in resolving Contention NYS-8 (Transformers), because the Boards erroneously determined that transformers are passive components requiring an aging management review (AMR) and an aging management program (AMP) - contrary to long-standing NRC regulatory guidance and well-established precedent, and (b) the Board erred with respect to Contention CW-EC-3A (Environmental Justice), insofar as it set aside the Staffs determination that emergency planning impacts to environmental justice (EJ) populations in the event of a severe accident need not be considered in a site-specific EIS, thereby reaching an erroneous conclusion that is without governing precedent and contrary to established law. Further, the Boards earlier decision in LBP-11-17, finding that the Staffs evaluation of Severe Accident Mitigation Alternatives (SAMAs) was deficient, and granting summary disposition in favor of New York on Contention NYS-35/36 (Cost-Beneficial SAMAs),

was clearly erroneous and contrary to Commission precedent and established regulatory practice. The Staff respectfully submits that each of these rulings also raises significant and novel legal issues, for which Commission review is warranted.

BACKGROUND This proceeding concerns the license renewal application (LRA) for Indian Point Nuclear Generating Units 2 and 3 (IP2 and IP3 or Indian Point), which Entergy Nuclear Operations Inc. (Entergy or Applicant) submitted on April 23, 2007.4 Indian Point Units 2 and 3 are located at the Indian Point Energy Center (IPEC) on the east bank of the Hudson River in Buchanan, NY, approximately 24 miles north of the northern boundary of New York City. Units 2 and 3 are pressurized water reactors (PWRs) supplied by Westinghouse Electric Corp.; each 3

Of the 16 individual or consolidated contentions that have been admitted by the Board in this proceeding, two contentions were dismissed upon settlement of the parties, one contention was summarily disposed of in LBP-11-17, and nine (Track 1) contentions were resolved in LBP-13-13. There are four remaining Track 2 contentions, for which hearings are not yet scheduled: (1) NYS-25 (AMP for reactor pressure vessels and internals); (2) NYS-26B/RK-TC-1A (AMP for metal fatigue/cumulative usage factors greater than 1.0); (3) NYS-38 (commitments); and (4) RK-EC-8 (endangered species).

4 See generally, LRA (Ex. ENT00015A-B).

reactor is authorized to operate at 3216 megawatts thermal (MWt), which corresponds to a turbine generator output of approximately 1080 MWe.5 The operating license for IP2 was to have expired on September 28, 2013; that Unit is now operating in timely renewal under 10 C.F.R. § 2.109(b). The license for IP3 is due to expire on December 12, 2015. Entergys LRA seeks authorization to operate IP2 and IP3 for an additional 20 years, i.e., until September 28, 2033, and December 12, 2035, respectively.6 The NRC published a notice of acceptance for docketing and notice of opportunity for hearing on the LRA, on August 1, 2007. Petitions for leave to intervene were filed by various petitioners, including the State of New York (New York or NYS), Riverkeeper, Inc.

(Riverkeeper), and Hudson River Sloop Clearwater, Inc. (Clearwater) (collectively, the Intervenors).7 On July 31, 2008, the Board issued LBP-08-13, in which it granted the Intervenors petitions to intervene and admitted many of their contentions, including Contentions NYS-8 and CW-EC-3.8 5

Id. Units 2 and 3 share the site with Indian Point Unit 1, which has been permanently shut down and placed in a safe storage condition (SAFESTOR) until Unit 2 is ready for decommissioning. LRA (Ex. ENT000015A) at 1-7. The IP2/IP3 LRA states that Unit 1 systems and components were considered in the scoping process; and [t]he aging effects of Unit 1 SSCs [structures, systems, and components]

within the scope of license renewal for IP2 and IP3 will be adequately managed so that the intended functions will be maintained consistent with the current licensing basis throughout the period of extended operation. Id.

6 Id.

7 See (1) New York State Notice of Intention to Participate and Petition to Intervene (NY Petition) (Nov. 30, 2007); (2) Riverkeeper, Inc.s Request for Hearing and Petition to Intervene in the License Renewal Proceeding for the Indian Point Nuclear Power Plant (Nov. 30, 2007); and (3) Hudson River Sloop Clearwater Inc.s Petition to Intervene and Request for Hearing (Dec. 10, 2007).

8 See Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3),

LBP-08-13, 68 NRC 43, 86-89, 196-201 (2008). The Board also authorized five governmental bodies to participate in the proceeding as interested governmental entities, in accordance with 10 C.F.R. § 2.315(c).

These are (1) the State of Connecticut; (2) Westchester County, NY; (3) the City of New York, NY; (4) the Town of Cortlandt, NY; and (5) the Village of Buchanan, NY. See Memorandum And Order (Authorizing Interested Governmental Entities to Participate in this Proceeding) . . . (Dec. 18, 2008), at 2.

Following the issuance of LBP-08-13, the Intervenors filed a number of additional new and amended contentions, which were admitted for litigation.9 In particular, as pertinent here, on March 11, 2010, New York filed Contentions NYS-35 and NYS-36,10 which the Board admitted as Consolidated Contention NYS-35/36 on June 30, 2010.11 On July 14, 2011, the Board issued LBP-11-17, granting New Yorks motion for summary disposition of Contention NYS-35/36 and denying the Applicants and Staffs cross-motions for summary disposition of that contention.12 The Board denied all other motions for summary disposition, including Entergys motion for summary disposition of Contention NYS-8 (Transformers).13 During the litigation, the Staff conducted its independent safety review and environmental evaluation. With respect to safety issues, the Staff issued its Safety Evaluation Report (SER) on August 11, 2009, finding that the IP2/IP3 LRA satisfies the requirements of 10 C.F.R. § 54.29(a) such that the license may be renewed.14 On August 30, 2011, the Staff issued Supplement 1 to the SER, documenting the Staffs review of information it had received after the 9

On July 6, 2011, the Board granted-in-part Clearwaters motion to amend Contention CW-3.

Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3) (July 6, 2011)

(unpublished).

10 See State of New Yorks New and Amended Contentions Concerning the December 2009

[SAMA] Reanalysis (Mar. 11, 2010); State of New Yorks Motion for Leave to File New and Amended Contentions Concerning the December 2009 Reanalysis of [SAMAs] (Mar. 11, 2010).

11 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-10-13, 71 NRC 673, 688-702, partial interlocutory review declined, CLI-10-30, 72 NRC 564, 569 (2010).

12 Indian Point, LBP-11-17, 74 NRC at 11, petitions for interlocutory review denied, CLI-11-14, 74 NRC 801 (2011).

13 Memorandum and Order (Ruling on Motions for Summary Disposition) (Nov. 3, 2009) (denying Entergys motion for summary disposition of Contention NYS-8, and New Yorks motion for summary disposition of Contention NYS-16/16A).

14 NUREG-1930, Vols. 1-2, Safety Evaluation Report Related to the License Renewal of Indian Point Nuclear Generating Unit Nos. 2 and 3 (Nov. 2009) (Ex. NYS000326A-F), at 6-1.

SER was issued.15 On September 23, 2009, the Advisory Committee on Reactor Safeguards (ACRS) issued a letter recommending approval of the IP2/IP3 LRA.16 With respect to environmental issues, in December 2008, the Staff published its Draft Supplemental Environmental Impact Statement, Supplement 38,17 to the NRCs Generic Environmental Impact Statement for License Renewal of Nuclear Plants (GEIS).18 On December 3, 2010, the Staff issued its Final SEIS,19 in which it addressed the comments that were submitted regarding the DSEIS,20 provided its final evaluation of the environmental impacts of IP2/IP3 license renewal, and presented its conclusion, consistent with 10 C.F.R. § 51.95(c)(4),

that the adverse environmental impacts of license renewal for IP2 and IP3 are not so great that preserving the option of license renewal for energy planning decision makers would be unreasonable.21 The Staff issued a supplement (Volume 4) to the FSEIS in June 2013.22 15 NUREG-1930, Supp. 1, Safety Evaluation Report Related to the License Renewal of Indian Point Nuclear Generating Unit Nos. 2 and 3 (Aug. 2011) (SER Supplement 1) (Ex. NYS000160) at 1-1.

The Staff plans to issue a second supplement to the SER in mid-2014. See NRC Staffs 24th Status Report in Response to the . . . Boards Order of February 16, 2012 (Feb. 3, 2014) (24th Status Report), at 2-3.

16 See Letter from Mario V. Bonaca, Chairman, ACRS, to Gregory B. Jaczko, Chairman, NRC (Sept. 23, 2009) (Ex. NYS000325) (reproduced in SER, Vol. 2 (Ex. NYS000326E) at 5 5-5).

17 Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38 Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Draft Report for Comment, NUREG-1437, Supplement 38 (Dec. 2008) (Ex. NYS000132A-D) (DSEIS or Draft SEIS).

18 Generic Environmental Impact Statement for License Renewal of Nuclear Plants, NUREG-1437 (May 1996) (GEIS) (Ex. NYS000131A-I).

19 Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38 Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Final Report, NUREG-1437, Supplement 38 (Dec. 2010) (Final SEIS or FSEIS) (Ex. NYS000133A-J).

20 See FSEIS, Appendix A, §§ A.1 and A-2 (Ex. NYS000133C-I) at A-2 to A-1316.

21 FSEIS (Ex. NYS000133C), § 9.3, at 9-8.

22 The FSEIS Supplement addressed new information concerning the aquatic impacts of IP2/IP3 license renewal (including impacts to endangered species), and did not affect any Track 1 contentions.

See 24th Status Report, at 1-2. The Staff notes that it has not yet determined whether it will issue a further FSEIS Supplement to address new information that Entergy has submitted regarding the cost of implementing its cost-beneficial SAMAs pursuant to the Boards decision in LBP-11-17. See id. at 5-6.

Evidentiary hearings on nine Track 1 contentions were held in Tarrytown, New York, on October 15 - 18, October 22 - 24, and December 10 - 13, 2012; an additional evidentiary hearing session was held in Rockville, Maryland on November 28, 2012.23 The parties filed proposed findings of fact and conclusions of law on March 23, 2013, and filed reply findings of fact and conclusions of law on May 2, 2013. On November 27, 2013, the Board issued LBP-13-13, resolving all of the nine Track 1 contentions.

DISCUSSION I. Legal Standards Governing Petitions for Review Pursuant to 10 C.F.R. § 2.341(b)(4), the Commission may grant review of a Board decision, in its discretion, giving due weight to the existence of a substantial question with respect to the following considerations:

(i) A finding of material fact is clearly erroneous or in conflict with a finding as to the same fact in a different proceeding; (ii) A necessary legal conclusion is without governing precedent or is a departure from or contrary to established law; (iii) A substantial and important question of law, policy or discretion has been raised; (iv) The conduct of the proceeding involved a prejudicial procedural error; or (v) Any other consideration which the Commission may deem to be in the public interest.

10 C.F.R. § 2.341(b)(4). Accord, Honeywell International, Inc. (Metropolis Works Uranium Conversion Facility), CLI-13-01, 77 NRC 1, 17 (2013) (the petitioner had identified a substantial question as to whether the Board decision reaches at least one necessary legal conclusion without governing precedent or addresses at least one substantial and important question of law, policy or discretion); Entergy Nuclear Vermont Yankee, L.L.C. and Entergy Nuclear Operations, 23 The Board has issued two Orders correcting the transcript of the evidentiary hearings. See (1) Order (Adopting Proposed Transcript Corrections with Minor Edits) (Dec. 27, 2012); and (2) Order (Adopting Proposed Transcript Corrections and Resolving Contested Corrections) (Feb. 28, 2013). In this petition, transcript citations refer to the Official Transcript of Proceedings (Tr.) as corrected.

Inc. (Vermont Yankee Nuclear Power Station), CLI-10-17, 72 NRC 1, 13 (2010) (the challenged portions of [the Boards decision] address significant issues of law and policy that lack governing precedent and raise issues that could affect other license renewal determinations).24 In Southern Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), CLI-10-5, 71 NRC 90, 98 (2010), the Commission summarized its standards for review as follows:

. . . . We do not exercise our authority to make de novo findings of fact where a Licensing Board has issued a plausible decision that rests on carefully rendered findings of fact. As we have stated on other occasions, [w]hile [we have] discretion to review all underlying factual issues de novo, we are disinclined to do so where a Board has weighed arguments presented by experts and rendered reasonable, record-based factual findings. We defer to a board's factual findings and generally step in only to correct clearly erroneous findings - that is, findings not even plausible in light of the record viewed in its entirety - where there is strong reason to believe that . . . a board has overlooked or misunderstood important evidence. Our standard of clear error for overturning a Board's factual finding is quite high.

As for conclusions of law, our standard of review is more searching. We review legal questions de novo. We will reverse a licensing board's legal rulings if they are a departure from or contrary to established law.

Decisions on evidentiary questions fall within our boards' authority to regulate hearing procedure. [A] licensing board normally has considerable discretion in making evidentiary rulings.

We review decisions on evidentiary questions under an abuse of discretion standard.

Id. at 98-99 (footnotes omitted).25 24 Accord, Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-06-15, 63 NRC 687, 690 (2006); Northeast Nuclear Energy Co. (Millstone Nuclear Power Station, Unit 3), CLI-01-3, 53 NRC 22, 28 (2001); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-01-9, 53 NRC 232, 234 (2001); cf. Pa'ina Hawaii, LLC (Materials License Application), CLI-10-18, 72 NRC 56, 73 (2010).

25 Under the clearly erroneous standard in 10 C.F.R. § 2.341(b)(4)(i) and former § 2.786(b)(4)(i),

the Commission generally declines to second-guess plausible Board decisions that rest on carefully rendered findings of fact, but will undertake review where the Board decision contains an obvious error.

See Dominion Nuclear Connecticut, Inc. (Millstone Power Station, Unit 3), CLI-02-22, 56 NRC 213, 222 (2002); Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), CLI-01-11, 53 NRC 370, 382 (2001).

II. Commission Review is Warranted Because LBP-13-13 Incorrectly Requires an Applicant to Subject an Active Component, a Transformer, to an Aging Management Review A. Procedural History Contention NYS-8, as filed, asserted that [t]he [license renewal application] for IP2 and IP3 violates 10 C.F.R. §§ 54.21(a) and 54.29 because it fails to include an aging management plan for each electrical transformer whose proper function is important for plant safety.26 Both Entergy and the Staff opposed the admission of this contention.27 On July 31, 2008, the Board admitted Contention NYS-8, to the extent that it questions the need for an AMP for safety-related electrical transformers that are required for compliance with 10 C.F.R. §§ 50.48 and 50.63.28 The Board then restated Contention NYS-8, to read as follows:

Entergy has not proposed an AMP for each electrical transformer in IP2 and IP3 required for compliance with 10 C.F.R. §§ 50.48 and 50.63. This does not include transformer support structures.29 On August 14, 2009, Entergy moved for summary disposition of Contention NYS-8, arguing that transformers do not require AMPs and that New Yorks position to the contrary conflicts with Commission guidance, the intent of the license renewal regulations, and the Staffs regulatory position.30 The Staff filed an answer in support of Entergys motion, along with two 26 New York State Notice of Intention to Participate and Petition to Intervene (Nov. 30, 2007),

at 103-105.

27 See NRC Staffs Response to Petitions for Leave to Intervene Filed by (1) Connecticut Attorney General Richard Blumenthal, (2) Connecticut Residents Opposed to Relicensing of Indian Point, and Nancy Burton, (3) Hudson River Sloop Clearwater, Inc., (4) The State of New York, (5) Riverkeeper, Inc., (6) The Town of Cortlandt, and (7) Westchester County (Jan. 22, 2008), at 44-46 (ADAMS Accession No. ML080300014); Answer of Entergy Nuclear Operations, Inc. Opposing New York State Notice of Intention to Participate and Petition to Intervene (Jan. 22, 2008), at 69-73 (ADAMS Accession No. ML080300149).

28 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), LBP-08-13, 68 NRC 43, 60, 89 (2008). The Boards decision to admit NYS-8 was incorrect. Recently, the Commission reaffirmed that a contention virtually identical contention NYS-8 was inadmissible. See NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 322 (2012).

29 Indian Point, LBP-08-13, 68 NRC at 218.

30 Applicants Motion for Summary Disposition of New York States Contention 8 (Electrical Transformers) (Aug. 14, 2009) (ADAMS Accession No. ML092330784).

expert affidavits.31 New York opposed the motion, and filed an experts declaration asserting that transformers do not change state or rely on moving parts.32 Facing what it described as a battle of the experts, the Board denied Entergys motion.33 Evidentiary hearings on Contention NYS-8 were held on December 13, 2012. At the hearings, Entergy presented four witnesses, the Staff presented two witnesses, and New York presented one witness. On November 27, 2013, the Board issued LBP-13-13, in which it, inter alia, resolved NYS-8 in favor of New York.34 B. Summary of the Boards Decision In LBP-13-13, the Board found that transformers are passive components and therefore require an aging management review (AMR) pursuant to 10 C.F.R. § 54.21,35 based on its view that transformers perform their intended function without moving parts or a change in configuration, properties, or state.36 Further, the Board found that the magnetism that causes a change between incoming and outgoing current and voltage is a property of the electricity that flows through the transformer, rather than a property of the transformer.37 In addition, the Board compared transformers to the active and passive components listed in 10 C.F.R. § 54.21(a)(1),

and found that transformers were more similar to passive components than active components.38 31 NRC Staffs Answer to Applicants Motion for Summary Disposition of New York Contention 8 (Sept.14, 2009) (ADAMS Accession No. ML092580042).

32 Response of the State of New York to Entergys Summary Disposition Motion and NRC Staffs Supporting Answer (Sept. 23, 2009) (ADAMS Accession No. ML092930142).

33 Memorandum and Order (Ruling on Motions for Summary Disposition) (unpublished), slip op.

at 7-8 (Nov. 3, 2009).

34 Indian Point, LBP-13-13, slip op. at 196-259.

35 Id. at 259.

36 Id.

37 Id. at 216.

38 Id. at 258.

Acknowledging that the touchstone for determining whether a component is active or passive is the degree to which that component is monitorable, the Board found that monitoring a transformers output reveals only whether it has failed and does not provide information regarding the extent of degradation or the imminence of failure.39 In so ruling, the Board disregarded the Staff and Entergy substantial evidence that was presented regarding the monitorability of transformers. Instead, the Board inexplicably found that no evidence has been provided by any of the parties indicating that the incremental degradation of transformers can be successfully monitored to predict impending failure on a consistent basis.40 Further, the Board found that age-related degradation will not be reflected in any noticeable change to the electrical characteristics of transformer operations, and over time, this lack of trending data can lead to an unforeseen transformer failure.41 These determinations were clearly erroneous because the Staff and Entergy presented ample evidence of successful monitoring and trending.

Further, the Board dismissed the testimony of the Staffs and Entergys witnesses, who cited long-standing NRC regulatory guidance (contained in the Grimes letter of September 1997).42 The Grimes letter identified transformers as active components and provided ample justification for its conclusion; however, the Board found that the Grimes Letter provided no technical justification to support the conclusion that this transformation of electrical power 39 Id. at 257. The Board wrote, [w]hile transformer operation can be readily monitored for gross failure by measuring the output voltage and current, there is no evidence that monitoring these variables is useful in tracking the service life of a transformer and predicting its future failure - actions that are required in managing aging to implement corrective actions before there is a complete loss of its intended function.

Id.

40 Id.

41 Id. at 231.

42 Letter from Christopher Grimes (NRC) to Douglas J. Walters (Nuclear Energy Institute (NEI),

Determination of Aging Management Review for Electrical components (Sept. 19, 1997) (Ex. ENT000097)

(Grimes Letter). See infra at p. 14-15 for additional discussion of the Staffs applicable guidance.

characteristics is a change in property or state of the transformer.43 The Board then dismissed subsequent NRC and industry guidance,44 finding that the statements in that guidance are not independent assessments of a transformers activity, but merely a repetition of the previous position expressed in the 1997 Grimes letter - an opinion that, at best, has scant documentation justifying its technical conclusions.45 The Board observed, however, that if Entergy employs its existing procedures as part of its AMR and adopts them as an AMP, that action might suffice to address age-related degradation.46 C. The Decision Misinterprets Regulatory Requirements Governing the Intended Scope of License Renewal, And Is Contrary to Well-Established Guidance and Precedent.

The Boards resolution of Contention NYS-8 is clearly erroneous and contrary to well-established NRC regulatory guidance and all prior NRC precedent, based on an erroneous determination that transformers are passive components that require aging management review (AMR). Further, the Boards conclusion, that 10 C.F.R. § 54.21(a) requires that electrical transformers be subject to aging management review because they are passive components, is based on an incorrect and unsupported definition of monitorability.

1. Regulatory Requirements in 10 C.F.R. Part 54 The regulations governing license renewal are set forth in 10 C.F.R. Part 54. In brief, pursuant to 10 C.F.R. § 54.29, the Commission may issue a renewed license if it finds reasonable assurance that licensed activities will continue to be conducted so that the current licensing basis 43 Indian Point, LBP-13-13, slip op. at 214.

44 See (1) Standard Review Plan for Review of License Renewal Applications for Nuclear Power Plants (NUREG-1800, Rev. 2) (SRP-LR) (Ex. NYS000161); (2) NEI 95-10, Industry Guideline for Implementing the Requirements of 10 CFR Part 54 - The License Renewal Rule, Rev. 6 (June 2005)

(Ex. ENT000098); and (3) Regulatory Guide 1.188, Standard Format and Content for Applications to Renew Nuclear Power Plant Operating Licenses, Rev. 1 (Sept. 2005) (Ex. ENT000099).

45 Indian Point, LBP-13-13, slip op. at 214.

46 Id. at 259.

(CLB) will be maintained and the effects of aging will be adequately managed.47 In the Statement of Consideration (SOC) that accompanied the 1995 revisions to the license renewal regulations, the Commission identified age-related degradation as the principal concern for license renewal and stated that the goal of the license renewal review process is to ensure monitoring of performance or condition that allows for the timely identification and correction of degraded conditions.48 Pursuant to 10 C.F.R. § 54.21(a)(1), an aging management review is required for structures and components - (i) [t]hat perform an intended function, as described in § 54.4, without moving parts or without a change in configuration or properties. . . .; and (ii) [t]hat are not subject to replacement based on a qualified life or specified time period.49 Pursuant to 10 C.F.R.

§ 54.21(a)(3), license renewal applicants must demonstrate, for each structure and component (SC) that is identified pursuant to § 54.21(a)(1), that the effects of aging will be adequately managed so that the intended function(s) will be maintained consistent with the CLB for the extended period of operation. In order to make that demonstration, license renewal applicants are required to adopt acceptable aging management programs (AMPs), for which they can (but are not required to) use the AMPs contained in NRC guidance set forth in the GALL Report.50 47 10 C.F.R. § 54.29; Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc.

(Pilgrim Nuclear Power Station), CLI-10-14, 71 NRC 449, 462 n.71, and 465. The license renewal regulations are founded on the principle that each nuclear power plant has a plant-specific CLB that must be maintained during the renewal term in the same manner and to the same extent as during the original licensing term. Id. at 453 (citing Final Rule, Nuclear Power Plant License Renewal; Revisions, 60 Fed.

Reg. 22,461, 22,464 (May 8, 1995) (1995 Statement of Consideration) (Ex. NYS000016). The CLB is the set of NRC requirements (including regulations, orders, technical specifications, and license conditions) applicable to a specific plant, and includes the licensees written, docketed commitments for ensuring compliance with applicable NRC requirements and the plant-specific design basis. Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-14, 71 NRC 449, 453-54 (2010) (citing 10 C.F.R. § 54.3).

48 1995 Statement of Consideration (Ex. NYS000016), 60 Fed. Reg. at 22,469.

49 10 C.F.R. § 54.21(a)(1) (emphasis added). SSCs that are within the scope of the license renewal regulations are identified in 10 C.F.R. § 54.4.

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

Consistent with these requirements, structures and components that are not subject to an AMR do not require an AMP.

The Commission has explained that an AMR is required for passive components (which perform their intended function without moving parts or a change in configuration or properties),

but not for active components (which perform their intended function with moving parts or a change in configuration or properties.51 Further, the Commission noted that the performance of active functions could be verified directly, but the performance of passive functions is less directly verified, and the performance and condition-monitoring programs for structures and components that perform passive functions present limitations that should be considered in determining that structures and components can be generically excluded from an aging management review for license renewal.52 The Commission concluded as follows:

On the basis of consideration of the effectiveness of existing programs which monitor the performance and condition of systems, structures, and components that perform active functions, the Commission concludes that structures and components associated only with active functions can be generically excluded from a license renewal aging management review. Functional degradation resulting from the effects of aging on active functions is more readily determinable, and existing programs and requirements are expected to directly detect the effects of aging.

Considerable experience has demonstrated the effectiveness of these programs and the performance-based requirements of the maintenance rule delineated in 50.65 are expected to further enhance existing maintenance programs.53 (GALL Report, Rev. 1) (Ex. NYS000146A-C); NUREG-1801, Rev. 2, Generic Aging Lessons Learned (GALL) Report (Dec. 2010) (GALL Report Rev. 2) (Ex. NYS000146). See Seabrook, CLI-12-5, 75 NRC at 315.

51 1995 Statement of Consideration (Ex. NYS000016), 60 Fed. Reg. at 22,471-72 and 22,477.

52 Id. at 22,471.

53 Id. at 22,471-72 (emphasis added).

In sum, where performance or condition is readily monitorable through existing programs, no AMR is required; where, however, performance or condition cannot be readily monitored, as is the case with passive components, an AMR is needed.54

2. The Applicable Regulatory Guidance Classifies Transformers as an Active Component The regulations in 10 C.F.R. Part 54 provide examples of components that may be considered to be active or passive. Thus, § 54.21(a)(1) provides examples of passive components such as the reactor vessel, containment, and piping, as well as examples of active components, such as pumps, transistors, and batteries.55 The list of active and passive SSCs in the regulation is not comprehensive, however, and it does not mention electrical transformers.

When the Commission issued the regulation, it stated in its SOC that it would provide additional clarification and examples of components requiring an aging management review in its implementation guidance for the rule.56 The NRC Staff then provided that guidance in 1997, in a letter from Christopher Grimes to Douglas Walters at NEI.57 In the Grimes letter, the Staff explained that transformers are active, in that they operate through a change in state, are more similar to the active SSCs than the passive ones, and are readily monitored.58 Additional regulatory guidance concerning the proper classification of transformers is contained in other documents. For example, the Standard Review Plan for License Renewal (SRP-LR), which the Staff uses to guide its review of license renewal applications, summarizes and quotes from the Grimes Letter, and classifies transformers as components for which no aging 54 Id. at 22,471-72, see also Seabrook, CLI-12-5, 75 NRC at 316-17.

55 10 C.F.R. § 54.21(a)(1)(i).

56 1995 Statement of Consideration (Ex. NYS000016), 60 Fed. Reg. at 22,485.

57 Letter from C. Grimes to D. Walters (Ex. ENT000097) (Grimes Letter), discussed in Seabrook, CLI-12-05, 75 NRC at 317-18, 320.

58 Grimes Letter at 2.

management review is required.59 Further, the nuclear industry has published guidance of its own, in NEI-95 which, consistent with the Staffs guidance, treats transformers as active components;60 that guidance was explicitly approved without exceptions in NRC Regulatory Guide (Reg. Guide) 1.188.61 Finally, the GALL Report - which provides recommended AMPs for SSCs that are subject to an AMR, contains no AMP for transformers62 - implicitly recognizing that an AMP for transformers is not required.63

3. The Finding that Transformers Are Passive Is Based Upon An Incorrect Understanding of Transformers, and Their Monitorability.

In LBP-13-13, the Board determined that transformers are passive components, for which an AMR and AMP are required.64 In doing so, the Board contrary to the agencys regulatory guidance and the recent Commission decision in Seabrook decision altered the long-standing treatment of transformers as active components.65 The Board dismissed that guidance and authority because of the absence of a definitive decision by the Commission that transformers are active.66 As set forth above, that determination was contrary to the Commissions SOC and all applicable regulatory guidance for license renewal that has been 59 Standard Review Plan for Review of License Renewal Applications for Nuclear Power Plants (NUREG-1800, Rev. 2) (Ex. NYS000161) at 2.1-26.

60 NEI 95-10, Industry Guideline for Implementing the Requirements of 10 CFR Part 54 - The License Renewal Rule, Rev. 6 (June 2005) (Ex. ENT000098) at B-14.

61 Regulatory Guide 1.188, Standard Format and Content for Applications to Renew Nuclear Power Plant Operating Licenses, Rev. 1 (Sept. 2005) (Ex. ENT000099) at 4; see also id. at 7.

62 Nowhere in the GALL Report is there any indication that an AMP is needed to manage aging effects for transformers. See (1) NUREG 1801, Rev. 1, Generic Aging Lessons Learned (GALL) Report (Sept. 2005) (GALL Report, Rev. 1) (Ex. NYS000146A-C); and (2) NUREG-1801, Rev. 2, Generic Aging Lessons Learned (GALL) Report (Dec. 2010) (GALL Report, Rev. 2) (Ex. NYS000147A-D).

63 See Seabrook, CLI-12-5, 75 NRC at 322.

64 Indian Point, LBP-13-13, slip op. at 259.

65 Seabrook, CLI-12-5, 75 NRC at 301, discussed in LBP-13-13, slip op. at 202-06.

66 Indian Point, LBP-13-13, slip op. at 205.

issued to date, including the Grimes Letter, the SRP for license renewal, NEI-95-10, and Reg.

Guide 1.188. Moreover, the Boards decision failed to credit the substantial evidence of record that transformers (a) undergo a change in configuration, property or state as they operate, and (b) are readily and directly monitorable, consistent with the Commissions use of those terms in the 1995 SOC.

Change in configuration, property or state.

In the 1995 SOC for license renewal, the Commission stated that active components, which operate via a change in configuration, property, or state, and which are directly or readily monitored, do not require aging management; in contrast, passive components generally do not have performance and condition characteristics that are as readily monitorable as those that perform active functions.67 The Staff and Entergy presented abundant evidence establishing that transformers operate via a change in state and are directly and readily monitored. They explained that as transformers operate and perform their intended function, there is varying magnetic flux within the transformer core;68 further, as a result of the changes in the magnetic flux in the transformer, energy is transformed from electrical energy into magnetic energy, then back into electrical energy again.69 Accordingly, they described the change in the magnetic flux as a change in the properties or state of the transformer.70 Based on these considerations, the witnesses concluded that, consistent with the SOC, transformers are active components and do not require 67 1995 Statement of Consideration, 60 Fed. Reg. at 22,471 and 22,477.

68 Staff Testimony at 6, 11-12; Entergy Pre-Filed Testimony (Entergy Testimony)

(Ex. ENTR000091) at 33-36; Tr. at 4335-37, 4354-55.

69 Staff Testimony at 6, 11; Entergy Testimony at 30-37, 60-65; Tr. at 4335, 4351-52, 4355, 4377.

70 Tr. at 4335-37, 4354-55, 4376-77, 4384; see also EPRI, Plant Support Engineering: License Renewal Electrical Handbook (Ex. ENT000100), at B-9.

an AMR.71 Contrary to this evidence, the Board held that transformers do not operate through a change in state and are passive components, relying on the testimony of New York witness Dr. Degeneff.72 This determination was not plausible in light of the record viewed in its entirety, and should therefore be set aside as clearly erroneous.

Monitorability Further, the Board concluded that transformers are not monitorable, because age-related degradation will not be reflected in any noticeable change to the electrical characteristics of transformer operations and the lack of trending data can lead to an unforeseen transformer failure.73 The Board reached this conclusion despite extensive testimony to the contrary. For example, the Staffs witnesses testified that [d]egradation of a transformers ability to perform its intended function is readily monitorable by a change in the electrical performance of the transformer and the associated circuits.74 In addition, they testified that degraded performance would be revealed through the surveillance, monitoring, and maintenance required by 10 C.F.R.

§ 50.65 and other Part 50 regulatory requirements.75 Moreover, the Staffs witnesses testified that the results of surveillance and maintenance activities are trended and provide a direct indication of the performance of the transformer.76 Entergys witnesses confirmed that plant 71 Staff Testimony at 6, 11, 12, 22; Entergy Testimony at 10-11, 55.

72 Dr. Degeneff asserted that the change in state occurred not in the transformer, but in the electricity that he viewed as passing through the transformer. See LBP-13-13, slip op. at 216. His testimony was rebutted by the Staffs and Entergys witnesses, who testified that electricity does not pass through a transformer; rather, as indicated in the text above, the transformer changes incoming electrical energy into magnetic energy and then into electrical energy, again. See Tr. at 4351-52, 4356-58, 4377.

73 Indian Point, LBP-13-13, slip op. at 231.

74 Staff Testimony at 17, see also Tr. at 4410-13. Further, the Staffs witnesses explained that you have over-current, under-voltage. You can monitor through more parameters that the transformer either is functioning properly, [or] is not functioning properly. Tr. at 4411.

75 Staff Testimony at 11-12, 14, 18-20; Tr. at 4250-55, 4314-15, 4448.

76 Staff Testimony at 15; see also, Transcript at 4269.

operators monitor the in-service performance of large power transformers,77 that transformer data is trended, and that the resulting analysis is used to identify degrading conditions within transformers.78 Indeed, the record is replete with evidence showing that the results of performance and condition monitoring are trended, and that those results are used to address degradation prior to failure.79 Contrary to this mass of evidence, the Board held that transformers were not readily monitorable, and that transformer monitoring data is not trended such that unexpected failure could occur. Like the Boards determination regarding changes in configuration, property or state, these conclusions should be set aside as clearly erroneous, in that the Board overlooked or misunderstood important evidence, and its decision is not plausible in light of the record viewed in its entirety."80

4. The Finding that Transformers Are Passive Is Contrary To the Commissions SOC, Regulatory Guidance and Precedent.

The Commission has held that where (as here) the NRC has developed guidance documents to assist licensees in complying with applicable regulations, those guidance documents are entitled to special weight.81 As the Appeal Board noted long ago, while guidance 77 As Entergys witnesses explained, [i]f voltage conditions are outside the defined range, then operators in the control room are alerted through automatic actuation of an alarm on the 480 electrical buses so that they may take appropriate corrective action. Entergy Testimony at 107; see also Tr.

at 4269-71.

78 Entergy Testimony at 97.

79 Thus, the Staffs witnesses testified that [t]rending electrical parameters measured during transformer surveillance and maintenance provides a direct indication of the performance of the transformer. Staff Testimony at 15; see also, Tr. at 4269. Likewise, Entergys witnesses testified that

[p]redictive maintenance results are monitored and trended to identify degrading conditions within transformers. Entergy Testimony at 97. Further, they testified that Entergy employs a number of techniques for transformer condition and performance monitoring, and the results of that monitoring are trended to identify degradation and to develop a life-cycle management plan that specifically addresses Indian Point transformers. Entergy Testimony at 97-98, Tr. at 4253-56, 4259-61. See generally, Indian Point Energy Center Large Power Transformers Life Cycle Management Plan (Ex. ENT000125).

80 Vogtle, CLI-10-5, 71 NRC at 99 (citations omitted).

81 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-01-22, 54 NRC

documents do not have the force of legally binding regulations, they are at least implicitly endorsed by the Commission [and] entitled to correspondingly special weight.82 This principle applies here to the Grimes Letter, the SRP-LR (NUREG-1800), and Reg. Guide 1.188. The NRC Staff developed the Grimes Letter and NUREG-1800 pursuant to the Commissions commitment when it promulgated the 1995 License Renewal Rule that it would provide additional clarification and examples of components requiring an aging management review in its implementation guidance for the rule.83 The Board, however, dismissed the Grimes Letter, asserting that it provided no technical justification to support its conclusion that transformers are active components.84 Further, the Board dismissed the guidance in the SRP-LR, concluding that the NRC Staffs incorporation of its own guidance in addressing the need for aging management of transformers in its review of LRAs, including this one, rests upon the Grimes Letter.85 Instead of affording the NRC guidance documents the correspondingly special weight that NRC guidance should be given as at least implicitly endorsed by the Commission, the Board summarily rejected these NRC guidance documents and associated industry guidelines because it did not view them as independent assessments of a transformers activity, but merely a repetition of the previous position expressed in the 1997 Grimes Letter - an opinion that, at best, has scant documentation justifying its technical conclusions.86 255, 264 (2001). See also Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-05-15, 61 NRC 365, 375 n.26 (2005) (discussing the contents of a Standard Review Plan).

82 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-900, 28 NRC 275, 290 (1988).

83 1995 Statement of Consideration, 60 Fed. Reg. at 22,485.

84 Indian Point, LBP-13-13, slip op. at 214.

85 Id.

86 Id.

Even assuming, arguendo, that the Board was correct in holding that guidance documents must provide sufficient basis for their determinations, the Grimes Letter does, in fact, provide sufficient bases for its conclusion that transformers are active components. The Grimes Letter states that transformers perform their intended function through a change in state by stepping down voltage from higher to a lower value, stepping up voltage to a higher value, or providing isolation to a load and that this change in state is similar to the change in state that renders power supplies, battery chargers, and power inverters active components.87 The letter also states that transformers are readily monitorable and that any change in their ability to perform their functions is reflected in a change in the electrical performance of the transformer and the associated circuits.88 The Grimes Letter goes on to discuss specific surveillance and maintenance techniques and procedures, and states that [t]rending electrical parameters provide a direct indication of the performance of the transformer.89 Thus, contrary to the Boards determination, the Grimes Letter provided adequate justification for its conclusion that transformers are active components.

Importantly, the conclusions in the Grimes Letter, the SRP-LR (NUREG-1800), Reg.

Guide 1.188, and the GALL Report (which contains no AMP for transformers) have been relied upon by the Staff and numerous license renewal applicants for over 15 years, during which time that guidance has been utilized in examining 43 license renewal applications and granting license renewal for 73 nuclear power plants. Consistent with this regulatory guidance, no AMR has been required for transformers until now; moreover, in none of the renewed licenses that were issued to date has the Commission found it necessary to require an AMR or an AMP for transformers in order to find reasonable assurance that they will continue to perform their intended functions 87 Grimes Letter at 2.

88 Id.

89 Id.

during the period of extended operations. The Boards ruling is thus contrary to the Commissions well-established and long-standing guidance and practice concerning license renewal. As such, the Boards decision raises a substantial and important question of law and policy, and warrants Commission review.

5. An Incorrect Standard Was Used to Distinguish Between Active and Passive Components In LBP-13-13, the Board correctly observed that the ability to directly and readily monitor the performance or condition of a component distinguishes active components from passive ones.90 The Board erred, however, in finding that monitorability must include the ability to predict impending failure.91 Specifically, the Board erroneously determined that SSCs within the scope of 10 C.F.R. Part 54 that cannot be measured for trending data to predict impending failure could not realistically be considered to be readily monitorable.92 The Boards formulation of this standard for monitorability is not supported by the regulations, the SOC, NRC regulatory guidance, or other precedent. Indeed, the Commissions SOC expressly found to the contrary, stating that the purpose of monitoring is not to predict failure, but to prevent it:

Because the detrimental effects of aging are manifested in degraded performance or condition, an appropriate license renewal review would ensure that licensee programs adequately monitor 90 LBP-13-13. slip op. at 220. In its 1995 SOC, the Commission pointed out that [d]irect verification is practical for active functions where the parameter of concern (required function) . . . can be directly observed, whereas [p]assive functions, such as pressure boundary and structural integrity are generally verified indirectly, by a confirmation of physical dimensions or component physical condition[.]

1995 Statement of Consideration, 60 Fed. Reg. at 22,471. Further, the Commission stated that

[f]unctional degradation resulting from the effects of aging on active functions is more readily determinable, and existing programs and requirements are expected to directly detect the effects of aging. Id. at 22,472.

See also id. at 22,476-78.

91 LBP-13-13, slip op. at 220, 232, 234-45, 253, and 257-58.

92 Id. at 220. The Board also stated that no evidence has been provided by any of the parties indicating that the incremental degradation of transformers can be successfully monitored to predict impending failure on a consistent basis. Id. at 257.

performance or condition in a manner that allows for the timely identification and correction of degraded conditions.93 Notably, the Commission did not include the ability to predict impending failure as a goal of monitoring. Instead, the Commission focused on identifying and correcting degradation in advance of failure. The Commission observed, [o]nce functional degradation is identified through performance or condition monitoring, corrective actions can be applied.94 Thus, in accordance with the regulations, in order to be considered readily monitorable, a component must be capable of being monitored so that degradation can be identified and corrective action taken.

In this regard, expert witnesses for the Staff and Entergy testified that transformers can be monitored, readily and directly, so that age-related degradation can be identified and corrected.

The Staff witnesses testified that for transformers, [a]ge-related degradation can be readily identified and addressed through existing regulatory programs, and there is no need for an AMR or AMP to address age-related degradation.95 Similarly, Entergys witnesses stated that the existing preventive maintenance and performance monitoring programs in place at Indian Point 93 1995 Statement of Consideration, 60 Fed. Reg. at 22,469 (emphasis added). Further, when asked to provide an example of the kind of performance or condition-based replacement program that would adequately manage aging, the Commission stated (id. at 22,478):

[T]he Commission would generally expect that such a replacement program would have defined performance or condition measuring methods (e.g., wall thickness of heat exchanger tubes), an established monitoring frequency that supports timely discovery of degraded conditions (e.g., every refueling outage), and an appropriate replacement criterion (e.g., upon reaching a specified number of tubes plugged).

94 Id., 60 Fed. Reg. at 22,469.

95 Staff Testimony (Ex. NRC000031), at 12; see id. at 11, 13, and 14-20. With respect to performance, the Staffs witnesses testified that [a]ny degradation of the transformers ability to perform its intended function is readily monitorable by a change in the electrical performance of the transformer and the associated circuits. Id. at 20. They further stated that the input and output voltage and current, power output, and oil temperature can be monitored, Id. at 15; in addition, numerous methods, such as Doble tests, infrared thermography, electrical circuit characterization and diagnosis, and oil analysis are used to measure transformer performance and condition. Id. at 16. They also identified a number of maintenance procedures that are used to identify and correct the effects of aging. These include visual inspections, operational checks, examination and testing for oil and nitrogen leaks, insulation resistance tests, turns ratio tests, insulating liquid testing, oil analysis, insulating power factor tests, insulation oil filtration tests, load tap changer tests, and low voltage excitation tests. Id. at 17; Tr. at 4247.

are intended to ensure plant reliability by identifying and correcting any potential degradation issues, including age-related degradation associated with active systems and components, including electrical transformers.96 Thus, transformers can be, and are, monitored in such a way that degradation can be identified and corrected, consistent with the Commissions SOC.

New Yorks witness, Dr. Degeneff, did not identify any specific deficiency in Entergys current program for transformer inspection, surveillance, or maintenance. Indeed, when asked to identify deficiencies in Entergys current program, he testified that the suite of measurements that theyre making, the measurements are fine. The frequency is whats of concern.97 Dr.

Degeneff did not, however, state what frequency of monitoring would be sufficient in his view to establish reasonable assurance of functionality during the period of extended operation.98 In sum, substantial evidence was presented showing that Indian Points transformers are readily and directly monitorable, and there are currently programs in place to monitor the performance and condition of transformers, for which no deficiency has been identified. Nor did the Board identify any specific deficiencies in Entergys current program. Instead, the Board ruled that the current program could be sufficient, if it were cast as an aging management program.99 That conclusion, however, ignores the Commissions explicit determination in its 96 Entergy Testimony at 96-97; see also Tr. at 4269-71. They listed 15 predictive and preventive maintenance techniques used on large oil-filled transformers (Entergy Testimony at 97; see also Tr. at 4251-52, 75); submitted documentation of the procedures used at Indian Point for the inspection and maintenance of transformers (see Exs. ENT000121, ENT000124, ENT000125, ENT000126); described instances in which Entergy had proactively identified and corrected degradation in a transformer (Tr. at 4255); and explained the role of Entergys Life Cycle Management Plan (LCMP) in proactively identifying and correcting transformer performance issues (Tr. at 4276; see also ENT000121 and ENT000125).

97 Tr. at 4282; see also id. at 4296-97.

98 Similarly, while he expressed a concern that current programs should incorporate the newest techniques and advancements in technology, Entergys witnesses testified that the Indian Point program was updated at least every two years to address new information and technological advances. Tr. at 4297, 4306. Finally, while Dr. Degeneff criticized the current program on the grounds that it was not subject to review (Id. at 4298), Entergys witnesses testified that the program is subject to NRC inspection. Entergy Testimony at 87.

99 LBP-13-13, slip op. at 258-59.

SOC, that AMPs are not required for active components because the functional degradation resulting from the effects of aging on active functions is more readily determinable, for which existing programs and requirements are expected to directly detect the effects of aging.100 The Boards decision that transformers are passive components for which an AMR and AMP is required, was contrary to the Commissions determinations regarding monitorability in the 1995 SOC, long-standing regulatory guidance, and NRC practice in all prior licensing actions.

Further, the Boards decision raises substantial and important questions of law and policy that could affect pending and future license renewal determinations. Accordingly, the Commission should undertake review of, and reverse, this portion of LBP-13-13, pursuant to 10 C.F.R.

§ 2.341(b)(4).

III. Commission Review is Warranted Because the Findings in LBP-13-13 Impermissibly Alter the Commissions Generic Conclusions Regarding the Environmental Effect of License Renewal In LBP-13-13, the Board correctly resolved Contention CW-EC-3A (Environmental Justice) in favor of the Applicant and Staff. In doing so, however, the Board employed an erroneous and improper rationale - finding (a) the Staffs FSEIS evaluation was deficient for not considering emergency planning protective action impacts on EJ (minority and low-income) populations in the event of a severe accident at Indian Point, but (b) sufficient evidence had been presented by Clearwater as to the potentially disparate impacts on EJ populations that might occur in the event of an emergency, to complete the record on this issue. In reaching this determination, the Board erroneously held that the impacts to EJ populations that might result from an evacuation or sheltering-in-place in the event of a highly unlikely severe accident must be considered in an FSEIS for license renewal - notwithstanding the Commissions previous generic determination, in the GEIS, that (a) the probability-weighted consequences of a severe accident 100 60 Fed. Reg. at 22,471-72.

are SMALL,101 and (b) this GEIS analysis should reasonably account for the effects of emergency planning.102 In essence, the Board effectively held that it was unreasonable for the Staff to rely on the GEIS findings as to the environmental consequences resulting from severe accidents at all plants, as codified in 10 C.F.R. Part 51, Table B-1. The Boards decision contravenes the Commissions generic GEIS determinations, lacks legal precedent, and establishes a flawed legal precedent that may incorrectly be relied upon by Boards in other NRC proceedings, absent Commission review. For these reasons, the Staff submits that the rationale underlying the Boards decision should be set aside, and the Commission should find that the FSEIS discussion of environmental impacts to EJ populations satisfied the NRCs obligations under NEPA.

A. Applicable Legal Principles

1. License Renewal under the National Environmental Policy Act of 1969.

Section 102 of the National Environmental Policy Act of 1969, as amended, 42 U.S.C.

§ 4321 et seq., requires, in pertinent part, that Federal agencies are to include in every recommendation or report on major Federal actions that significantly affect the quality of the human environment, a detailed statement on (a) the environmental impact of the proposed action, (b) any adverse environmental effects which cannot be avoided should the proposal be implemented, (c) alternatives to the proposed action, (d) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (e) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

It is well-established that NEPA requires federal agencies to take a hard look at the environmental impacts of major federal actions. Robertson v. Methow Valley Citizens Council, 101 10 C.F.R. Part 51, App. A, Table B-1 at 65 (2013 ed.); GEIS (Ex. NYS000131A-I), at 5-115.

102 GEIS (Ex. NYS000131A-I), at 5-26 (emphasis added).

490 U.S. 332, 350 (1989); accord, Massachusetts v. NRC, 708 F.3d 63, 67 (1st Cir. 2013).103 This hard look is tempered by a rule of reason that requires federal agencies to address only impacts that are reasonably foreseeable - not remote and speculative. See, e.g., Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-02-25, 56 NRC 340, 348-49 (2002). In other words, the Staff is not required to conduct a NEPA analysis of remote and speculative impacts or worst case scenarios. Id. Importantly, NEPA does not call for certainty or precision, but an estimate of anticipated (not unduly speculative) impacts.

Louisiana Energy Services, L.P (National Enrichment Facility) (LES), CLI-05-20, 62 NRC 523, 536 (2005) (emphasis in original).

NEPA seeks to ensure that the agency will consider every significant aspect of the environmental impact of a proposed action, and will inform the public that it has considered environmental concerns in its decisionmaking process.104 Significantly, NEPA does not require a specific outcome or mandate a course requiring the mitigation of potential impacts, and does not require that any particular outcome be recommended or adopted as the agencys action.105 Further, NEPA does not require that action be taken to mitigate the adverse effects of major federal actions. Methow Valley, 490 U.S. at 353.

103 In addition, agencies are required to consider reasonable and feasible alternatives to their proposed actions, and the impacts thereof. Beyond Nuclear v. NRC, 704 F.3d 12, 19 (1st Cir., Jan. 4, 2013), citing Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827, 837 (D.C. Cir. 1972), and Vt. Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 551 (1978).

104 Massachusetts v. NRC, 708 F.3d at 67, quoting Baltimore Gas & Elec. Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97 (1983) (internal quotation marks and citations omitted); accord, N.J.

Dep't of Environmental Protection v. NRC, 561 F.3d 132, 134 (3rd Cir. 2009).

105 Although NEPA states sweeping policy goals, NEPA itself does not mandate particular results, but simply prescribes the necessary process. Methow Valley, 490 U.S. at 350, citing Stryckers Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227-28 (1980) and Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 558 (1978). Further, [i]f the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs. Id. at 350; citations omitted. Cf. Winter v. Natural Resources Defense Council, 555 U.S. 7, 23 (2008) (NEPA imposes only procedural requirements and does not mandate any particular results).

The Commissions regulations in 10 C.F.R. Part 51 establish the procedures by which the agency implements and satisfies the requirements of NEPA, for a broad range of NRC regulatory and licensing activities106 including license renewal.107 In turn, 10 C.F.R. § 54.29(b) provides that a renewed license may be issued if the Commission finds that [a]ny applicable requirements of subpart A of 10 C.F.R. Part 51 have been satisfied.

The Commission adopted specific requirements for evaluating the environmental impacts of license renewal, with its publication, in June 1996, of GEIS,108 and a revision of 10 C.F.R.

Part 51 to define the scope of the agencys review of the environmental impacts of license renewal under NEPA, based on the findings and analyses contained in the GEIS.109 In so doing, the Commission recognized that the environmental impacts of license renewal can be differentiated between (a) those impacts that are likely to be the same or similar at all nuclear power reactor sites or plants with specified plant or site characteristics, such that they may be evaluated on a generic basis and need not be addressed in an applicants environmental report (ER) or the Staffs plant-specific supplement to the GEIS; and (b) other impacts which may be expected to vary on a site-specific basis, for which a site- or plant-specific analysis is to be performed by the applicant in its ER and by the Staff in its plant-specific SEIS.110 106 See 10 C.F.R. § 51.2.

107 See, e.g., 10 C.F.R. § 51.20(b)(2) (requiring preparation of an environmental impact statement (EIS) for license renewal actions).

108 See generally GEIS) (Ex. NYS000131A-I).

109 Final Rule, Environmental Review of Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467 (June 5, 1996) (Ex. NYS000127).

110 The 1996 GEIS identified 92 environmental issues for license renewal, of which 69 issues were determined to be generic (i.e., Category 1), 21 were determined to be plant-specific (i.e., Category 2), and two did not fit into either category (i.e., uncategorized) and are to be evaluated in each SEIS. Table B-1 of Appendix B summarizes the findings of the environmental impact analyses conducted for the 1996 GEIS, listing each issue and its category level. Table B-1 also identified the impact levels of Category 1 issues, as small, moderate, or large: A SMALL impact means that the environmental effects are not detectable, or are so minor that they will neither destabilize nor noticeably alter any important attribute of the resource; a MODERATE impact means that the environmental effects are sufficient to alter noticeably, but not to destabilize, important attributes of the resource; a LARGE impact means that the environmental effects

In addition, the 1996 rule added Appendix B to Subpart A of 10 C.F.R. Part 51, including Table B-1, Summary of Findings on NEPA Issues for License Renewal of Nuclear Power Plants, which summarized the findings of the 1996 GEIS. Under the rule, environmental impacts that can be evaluated on a generic basis were identified as Category 1 issues, while issues that require evaluation in an applicants environmental report and in an NRC site-specific SEIS were identified as Category 2 issues.111 Under this established regulatory approach, license renewal applicants do not need to submit analyses of Category 1 issues in their ERs, but instead may reference and adopt the Commissions generic findings; applicants must, however, provide a plant-specific review of the non-generic Category 2 issues, and must identify any new and significant information that would affect their ability to rely on the Commissions generic Category 1 determinations. Florida Power and Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 11-12.112 As the Commission has explained, Part 51 defines the scope of license renewal environmental reviews; further, [b]ecause the generic environmental analysis was incorporated into a regulation, the conclusions of that analysis may not be challenged in litigation unless the rule is waived by the Commission for a particular proceeding or are clearly noticeable and are sufficient to destabilize important attributes of the resource. 10 C.F.R. Part 51, Appendix B, Table B-1, n.3. Radiological impacts that do not exceed permissible levels in the Commissions regulations are considered small as the term is used in [Table B-1]. Id. An agency may consider the improbability of an event occurring, among other things, in assessing and determining its environmental impact. Carolina Environmental Study Group v. AEC, 510 F.2d 796, 798-800 (D.C. Cir.

1975); City of New York v. DOT, 715 F.2d 732, 748-50 (2d Cir. 1983).

111 The 1996 environmental review rule has been revised on several occasions. Most recently, in June 2013, the Commission amended Part 51 and issued a revision of the GEIS. See Final Rule, Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, Part II, 78 Fed. Reg. 37,282 (June 20, 2013). These actions were accompanied by a revision to Regulatory Guide 4.2. See Regulatory Guide, Issuance, Preparation of Environmental Reports for Nuclear Power Plant License Renewal Applications, 78 Fed. Reg. 37,324 (June 20, 2013).

112 As a result, Category 1 issues "are not subject to site-specific review and thus fall beyond the scope of individual license renewal proceedings." Turkey Point, CLI-01-17, 54 NRC at 12; see 10 C.F.R.

§ 51.53(c)(3)(i)-(ii).

the rule itself is suspended or altered in a rulemaking proceeding.113 This approach has been found to comply with NEPA. See, e.g., Massachusetts v. NRC, 708 F.3d at 68.114

2. Consideration of Environmental Justice Impacts The term, environmental justice, refers to a federal policy established in 1994 by Executive Order (E.O.) 12898, directing Federal agencies to address environmental justice issues by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of [an agencys] programs, policies, and activities on minority populations and low-income populations.115 The Commission has indicated that it will endeavor to act in a manner consistent with this Executive Order, as set forth in its August 24, 2004, policy statement regarding the treatment of environmental justice issues in NRC regulatory and licensing actions.116 Therein, the Commission observed that E.O. 12898 does not establish new substantive or procedural requirements applicable to NRC regulatory or licensing activities.117 Rather, environmental justice is considered by the NRC as part of its evaluation of environmental impacts under NEPA, since NEPA is the only available statute under which the NRC can carry out the general goals of 113 Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-07-3, 65 NRC 13, 17 (footnotes omitted), reconsideration denied, CLI-07-13, 65 NRC 211, 214 (2007)..

114 Following the issuance of a site-specific supplement to the GEIS, further supplementation is required only if there are significant new circumstances or information . . . [that] paint[s] a dramatically different picture of impacts compared to the description of impacts in the EIS. Massachusetts v. NRC, 708 F. 3d at 68-69, quoting Town of Winthrop v. FAA, 535 F.3d 1, 7, 12 (1st Cir. 2008).

115 Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, Exec. Order No. 12898, 59 Fed. Reg. 7,629 (Feb. 16, 1994) (Ex. ENT000259).

116 See Policy Statement on the Treatment of Environmental Justice Matters in NRC Regulatory and Licensing Actions, 69 Fed. Reg. 52,040 (Aug. 24, 2004) (Policy Statement) (Ex. ENT000260). The Policy Statement incorporates past Commission decisions, staff environmental guidance, as well as Federal case law on environmental justice. Id. at 52,041; see also Private Fuel Storage, L.L.C.

(Independent Spent Fuel Storage Installation), CLI-02-20, 56 NRC 147, 153 (2002); Louisiana Energy Services, L.P. (Claiborne Enrichment Center), CLI-98-3, 47 NRC 77, 100-10 (1998).

117 Policy Statement, 69 Fed. Reg. at 52,046.

E.O. [12898];118 accordingly, environmental justice issues are only considered when and to the extent required by NEPA.119 As the Commission stated, the focus of an EJ analysis should be on identifying and weighing disproportionately significant and adverse environmental impacts on minority and low-income populations that may be different from the impacts on the general population.120 Consistent with the Commissions Policy Statement, the Staff issued guidance concerning its EJ disparate impact analysis, in LIC-203, Rev. 2 (Ex. ENT000264). In accordance with this guidance, the Staff conducts its EJ reviews for license renewal by (1) identifying the location of minority and low-income populations that may be affected by the operation of the nuclear power plant during the license renewal term or by refurbishment activities associated with license renewal, (2) determining whether there would be any potential human health or environmental effects to these populations and special pathway receptors, and (3) determining if any of the effects may be disproportionately high and adverse.121 118 Id. at 52,046 n.2.

119 Id. at 52,047 (quoting LES, CLI-98-3, 47 NRC at 100).

120 Id. at n.3 121 Staff Testimony on CW-EC-3A (Ex. NRC000063) at 11-12. In its EJ analyses, the Staff considers radiological (human health) and socioeconomic (environmental) effects, including employment and tax-revenue impacts that could affect public services that minority and/or low-income populations may depend on during the license renewal term. Id. at 13. Additionally, the Staff conducts a special pathway receptors analysis in accordance with Section 4-4 of E.O. 12898, directing Federal agencies, whenever practical and appropriate, to collect and analyze information on the consumption patterns of populations that rely principally on fish and/or wildlife for subsistence and to communicate the risks of these consumption patterns to the public. Id. at 12.

B. Although the Boards Ultimate Conclusion Regarding Contention CW-EC-3A is Correct, Its Underlying Rationale Should Set Aside In the FSEIS for Indian Point, the Staff presented its analysis of the human health and environmental effects from the continued operation of IP2 and IP3 on minority and low-income (EJ) populations during the license renewal term.122 The Staff found, inter alia, as follows:

Potential impacts to minority and low-income populations would mostly consist of radiological effects; however radiation doses from continued operations associated with license renewal are expected to continue at current levels, and would remain within regulatory limits. Chapter 5 discusses the environmental impacts from postulated accidents that might occur during the license renewal term, which include both design basis and severe accidents. In both cases, the Commission has generically determined that impacts associated with such accidents are SMALL because nuclear plants are designed and operated to successfully withstand design basis accidents, and the probability weighted impacts risks associated with severe accidents were also SMALL.

Therefore, based on this information and the analysis of human health and environmental impacts presented in Chapters 4 and 5 of this SEIS, there would be no disproportionately high and adverse impacts to minority and low-income populations from the continued operation of IP2 and IP3 during the license renewal period.123 As described by Staff witness Jeffrey Rikhoff, the Staff found that there would be no additional socioeconomic impact (environmental effect), and no additional human health impact (human health effect), on minority and low-income populations during the license renewal term, beyond what is currently being experienced.124 In particular, as pertinent here, the Staffs EJ analysis considered the impacts of postulated accidents, including both design basis and severe 122 See FSEIS (Ex. NYS000133B), § 4.4.6, at 4 4-56.

123 Id. § 4.4.6, at 4-53.

124 Staff Testimony on CW-EC-3A (Ex. NRC000063) at 14.

accidents, and concluded that there would be no disproportionately high and adverse impact on minority and low-income populations due to an accident.125 In LBP-13-13, the Board found the Staffs EJ evaluation failed to satisfy the agencys EJ obligations under NEPA, on the grounds that it (1) did not include a discussion of emergency planning protective actions in the event of a severe accident, (2) improperly relied on the generic findings in the GEIS regarding the environmental consequences resulting from severe accidents, and (3) analyzed the wrong variables by comparing the impacts of license renewal to the impacts of current operations for EJ populations. Notwithstanding these perceived deficiencies, the Board held that the evidence proffered by Clearwater provided sufficient information for the agencys consideration, as to the disparate impacts of emergency preparedness protective actions on EJ populations, thus satisfying the NRCs obligation to take a hard look at the environmental impacts of IP2/IP3 license renewal under NEPA. LBP-13-13, slip op. at 387-88.

As set forth below, the Boards determinations regarding the adequacy of the FSEIS evaluation of impacts to EJ populations were clearly erroneous. Moreover, the Boards rulings are without governing precedent, are contrary to established regulatory guidance and NRC practice, and raise fundamentally important legal and policy issues that warrant Commission review.

1. The Decisions Requirement that the Impacts of Emergency Response Protective Actions on EJ Populations Must Be Considered in An EIS for License Renewal Was Clearly Erroneous.

In LBP-13-13, the Board found that the Staff had failed to determine if the members of the low-income population who cannot afford to, or do not have the freedom to, self-evacuate or effectively shelter-in-place due to substandard housing would be disparately and adversely impacted in comparison to those who have the freedom, financial means, and readily-available 125 Id. at 17. In addition, the Staff concluded that no disproportionately high and adverse human health impacts would be expected in special pathway receptor populations in the region as a result of subsistence consumption of fish and wildlife. Id. at 16.

modes of transportation to self-evacuate or access adequate shelter. LBP-13-13, slip op.

at 383-84. In reaching this conclusion, the Board established an unprecedented and fundamentally incorrect requirement that this agencys EJ analyses must include an evaluation of the impacts of emergency planning protective response actions in the event of a severe accident at the facility in question - contrary to the Commissions previous generic determinations.

In this regard, the Commission has concluded that the adequacy of existing emergency preparedness plans need not be considered anew as part of issuing a renewed operating license.126 Rather, the adequacy of emergency planning is a safety issue that is evaluated by the Commission on an ongoing basis as part of its oversight of operating reactors under 10 C.F.R.

Part 50.127 In establishing the requirements for license renewal, the Commission explained that:

Through its standards and required exercises, the Commission ensures that existing plans are adequate throughout the life of any plant even in the face of changing demographics and other site-related factors. Thus, these drills, performance criteria, and independent evaluations provide a process to ensure continued adequacy of emergency preparedness in light of changes in site characteristics that may occur during the term of the existing operating license, such as transportation systems and demographics. There is no need for a licensing review of emergency planning issues in the context of license renewal.128 Both Entergy and the Staff presented testimony in this proceeding, explaining that emergency planning is undertaken with respect to all segments of the population surrounding a nuclear power plant. Thus, Entergy witness Mr. Slobodien testified that NRC regulations specifically require that licensee emergency plans consider a range of protective actions for all members of the public within the 10-mile EPZ, including, evacuation and sheltering, under 126 Final Rule, Nuclear Power Plant License Renewal, 56 Fed. Reg. 64,943, 64,967 (Dec. 13, 1991) (Ex. ENT000270) (1991 Statement of Consideration).

127 The requirements for maintaining, implementing, and revising emergency preparedness programs for licensed nuclear power plants are governed by the NRCs regulations in 10 C.F.R. Part 50.

See 10 C.F.R. §§ 50.47, 50.54(q), 50.54(s) through (u), and 10 C.F.R. Part 50, Appendix E.

128 1991 Statement of Consideration (Ex. ENT000270), 56 Fed. Reg. at 64,966.

10 C.F.R. § 50.47(b)(10).129 Staff witness Patricia Milligan similarly testified that the Staff considers all populations in its emergency preparedness reviews.130 Additionally, the Staff and Entergy submitted evidence that sheltering-in-place is an appropriate protective action option in the emergency plans, in accordance with regulations and guidance promulgated by the NRC and the Federal Emergency Management Agency (FEMA), and guidance from the Environmental Protection Agency (EPA).131 Further, while much of Clearwaters testimony addressed potential difficulties involving the evacuation of persons who may be disabled, incarcerated, transport-dependent, and/or do not speak English, the Staff and Entergy rebutted that evidence and submitted testimony describing how the NRCs regulatory framework for emergency planning, combined with New York State law, provide for the protection of all populations - including low-income and minority populations -

in the event of a severe accident at Indian Point.132 The witnesses explained that the emergency plans contain specific provisions that would protect low-income and minority populations (such as persons who may be disabled, incarcerated, transport-dependent, and/or do not speak English),

in the event of a severe accident at Indian Point,133 such that there would be no disproportionately high and adverse impacts to those populations.134 The Boards conclusion to the contrary, finding that the Staff should have considered emergency planning protective actions such as 129 Entergy Testimony on CW-EC-3A (Ex. ENT000258) at 48-49.

130 See, e.g., Tr. At 2760-61.

131 Staff Testimony on CW-EC-3A (Ex. NRC000063) at 31-33; Entergy Testimony on CW-EC-3A (Ex. ENT000258) at 50-52, 56-57.

132 See generally, Staff Testimony on CW-EC-3A (Ex. NRC000063) at 23-38; Entergy Testimony on CW-EC-3A (Ex. ENT000258) at 47-61.

133 Staff Testimony on CW-EC-3A (Ex. NRC000063) at 29-38; Entergy Testimony on CW-EC-3A (Ex. ENT000258) at 53-61.

134 Staff Testimony on CW-EC-3A (Ex. NRC000063) at 34-38; Entergy Testimony on CW-EC-3A (Ex. ENT000258) at 60-61.

evacuation and sheltering-in-place as factors in the FSEIS, directly challenges the adequacy of emergency planning and raises issues that are outside the scope of this proceeding.

Further, as discussed supra at p. 25-29, NEPA is governed by a rule of reason that requires agencies to address only impacts that are reasonably foreseeable - not remote and speculative impacts. The Boards requirement that the impacts to EJ populations from emergency planning protective actions should be analyzed contravenes this principle, in suggesting that the emergency plans for Indian Point are deficient and/or that emergency response personnel will be unable to protect EJ populations in the event of a severe accident, contrary to NRC regulations, NRC and FEMA guidance, and New York State law. Such assertions are speculative and unreasonable under NEPA, and fall outside the scope of this proceeding.

In sum, the Boards unprecedented decision that the adequacy of emergency planning protective actions for EJ populations must be considered in an EIS for license renewal,135 improperly conflates the Commissions emergency planning requirements in 10 C.F.R. Part 50 with the required evaluation of environmental impacts to EJ populations under NEPA, and establishes a fundamentally erroneous precedent that warrants Commission review as an important matter of law and policy.

2. The Staff Reasonably Relied on the Commissions Generic Findings in the GEIS and 10 C.F.R. Part 51, Appendix B, Table B-1 In LBP-13-13, the Board found that the Staff had summarily concluded, without analysis, that since the probability-weighted consequences of a severe accident are small for all 135 For example, the Board quoted Staff witness Patricia Milligan, as stating that the Staff does not specifically look at EJ populations in the context of emergency preparedness because the NRC prepares for all populations, not just EJ populations; the Board found that this type of population analysis without a specific EJ population analysis defeats the purpose of EJ analyses under NEPA. LBP-13-13, slip op.

at 384. In reaching this conclusion, the Board essentially found that the NRC must conduct a specific analysis of impacts to EJ populations in the context of emergency preparedness under 10 C.F.R. Part 50, thereby requiring an analysis that is outside the proper scope of an NRC license renewal proceeding.

populations, including the EJ population, there is no disproportionate [high] and adverse impact on minority and low-income populations due to a severe accident.136 The Board dismissed this FSEIS conclusion as inadequate under NEPA, finding that there [was] no legal foundation for the Staffs failure to analyze the possible disproportionate and adverse impacts of a severe accident at Indian Point on the EJ population within the 50-mile radius of the plant.137 The Boards findings in this regard were clearly erroneous. The Staffs FSEIS conclusion, which the Board rejected, had relied on the generic findings in the GEIS regarding the environmental consequences resulting from severe accidents at all plants.138 Thus, the GEIS had found, as a generic matter, that the environmental impacts of design basis accidents, and the probability-weighted consequences of severe accidents, are SMALL for all plants; these generic determinations apply, without exception, to all populations and all plants.139 Indeed, the Commission recently reaffirmed this GEIS principle in the Pilgrim license renewal proceeding, stating that [b]ecause the GEIS provides a severe accident impacts analysis that envelopes the potential impacts at all existing plants, the environmental impacts of severe accidents during the license renewal term already have been addressed generically in bounding fashion.140 These determinations are codified in Table B-1 of 10 C.F.R. Part 51, Appendix B, as follows:

The probability weighted consequences of atmospheric releases, fallout onto open bodies of water, releases to ground water, and societal and economic impacts from severe accidents are small for all plants. . . .141 136 LBP-13-13, slip op. at 385.

137 Id. at 386.

138 FSEIS (Ex. NYS000133A-J), § 5.1.2, at 5-3.

139 GEIS (Ex. NYS000131A-I), § 5.5.2.5 at 5-115.

140 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 316 (2010) (emphasis in original).

141 Like the GEIS (at 5-115-116), the rule goes on to address the potential need to conduct an analysis of severe accident mitigation alternatives (SAMAs) for plants that have not considered such

These generic determinations, codified in the Commissions regulations, may not be challenged, waived or set aside in a plant-specific licensing proceeding, absent Commission authorization under.10 C.F.R. § 2.335.142 In the GEIS and 10 C.F.R. Part 51, Table B-1, the Commission generically determined that the environmental impacts of design basis accidents are of SMALL significance for all plants, and that the probability-weighted consequences of severe accidents are SMALL for all plants; these determinations apply to all populations, including EJ populations - and explicitly included consideration of emergency planning.143 The Staffs evaluation of impacts to EJ populations at Indian Point, presented in section 4.4.6 of the FSEIS, specifically relied on the GEIS, in concluding that there would be no disproportionately high and adverse impacts to EJ populations during the license renewal term. Thus, the Staff found that the potential impacts to minority and low-income populations would mostly consist of radiological effects, which are expected to continue at current levels, and would remain within regulatory limits; further, the Staff cited its analysis of postulated accidents in Chapter 5 of the FSEIS, and observed that the Commission has generically determined that impacts associated with [design basis] accidents are SMALL because nuclear plants are designed and operated to successfully withstand design basis accidents, and the probability weighted impacts risks associated with severe accidents were also SMALL.144 The Staff concluded:

Therefore, based on this information and the analysis of human health and environmental impacts presented in Chapters 4 and 5 of alternatives. See § 51.53(c)(3)(ii)(L). 10 C.F.R. Part 51, App. B, Table B-1, at 65.

142 Vermont Yankee, CLI-07-3, 65 NRC at 17. In addition, the Staff considered whether any special circumstances existed at Indian Point, such that the generic findings in the GEIS should not apply, and did not identify any new and significant information with regard to the consequences from severe accidents. FSEIS (Ex. NYS000133A-J), § 5.1.2, at 5-3 to 5-4.. Therefore, the Staff concluded that there are no impacts of severe accidents beyond those discussed in the GEIS. Id. at 5-4.

143 GEIS (Ex. NYS000131A-I), § 5.3.3.2.1 at 5-26, and § 5.5.2.5 at5-115-116.

144 FSEIS (Ex. NYS000133A-J), § 4.4.6, at 4-53

this SEIS, there would be no disproportionately high and adverse impacts to minority and low-income populations from the continued operation of IP2 and IP3 during the license renewal period.145 Thus, the Staffs EJ analysis reasonably relied on the GEIS findings in concluding that there would be no disproportionately high and adverse impact on minority and low-income populations in the event of a severe accident. The Boards determination to the contrary should be set aside.

In addition, the Board erred in its determination that the potential impacts of emergency response protective actions must be considered for license renewal. In this regard, the Board cited the requirement for emergency plans in 10 C.F.R. § 50.47(a)(1)(i), finding that the regulation is a clear indication that there exists a possibility of a severe accident. LBP-13-13, slip op.

at 386. The Board stated that it escapes logic that the NRC would use this finding - that the probability-weighted consequences of a severe accident at a nuclear reactor are small - as the basis to exempt itself from evaluating the possible disproportionate and adverse effects of a severe accident on the EJ population, and that acceptance of the Staffs position would run counter to the NRC requirement that nuclear reactor licensees create [emergency] plans and devote resources to protecting the public from the consequences of a severe accident. Id.

These determinations were clearly erroneous. The Board failed to note that the GEIS had generically addressed the environmental consequences that would result from design basis and severe accidents at all plants - and that the effects of emergency preparedness and planning were specifically considered. For example, the GEIS discusses the requirement for emergency preparedness plans, noting that they are reviewed by responsible federal and state agencies to ensure that the condition of on-and off-site emergency preparedness provides reasonable assurance that adequate protective measures can and will be taken in the event of a radiological emergency.146 Additionally, the GEISs evaluation of the radiological impacts of a severe 145 Id.

146 GEIS (Ex. NYS000131C), § 5.2.3.3, at 5-10.

accident specifically considered uncertainties associated with emergency planning and evacuation-related risks, including evacuation effectiveness under different circumstances, possible sheltering and its effectiveness, the effectiveness of population relocation, and the fraction of people assumed not to relocate.147 Further, the GEIS observed that the Staff had reviewed the environmental impacts of severe accidents at numerous plants; that those evaluations had consider[ed] the effects of site-specific emergency planning in calculating exposures and risks to the public; and that those plants include[d] sites with populations that reasonably cover the range of populations at all 74 sites.148 The GEIS concluded, [t]hus, this GElS analysis should reasonably account for the effects of emergency planning.149 In sum, the environmental impacts related to emergency planning were considered in the GEIS, and the Staffs reliance on the GEIS was not unreasonable under NEPA. The Boards assertion that the Staff improperly relied on the GEIS findings regarding the environmental consequences resulting from severe accidents - which were codified in 10 C.F.R. Part 51, Table B contravenes the Commissions generic determination and establishes a fundamentally erroneous precedent under NEPA, for which Commission review is warranted as an important matter of law and policy.150 147 Id., § 5.3.4.3, at 5-102.

148 Id., § 5.3.3.2.1, at 5-26.

149 Id., § 5.3.3.2.1, at 5-26.

150 Entergy and the Staff, separately, filed motions in limine seeking to exclude portions of Clearwaters pre-filed and rebuttal testimony, some exhibits because it challenged issues outside the limited scope of this proceeding and was not reliable or relevant. See, e.g., Order (Granting in part and Denying in Part Applicants Motion in Limine) (Mar. 6, 2012) (unpublished). The Boards admission of portions of Clearwaters testimony and supporting exhibits offered by unqualified witnesses on issues outside the scope of this limited proceeding should be reversed. That inadmissible evidence should not form the basis of any decision by the Board or Commission. See LBP-13-13, at 367-69.

3. The Staffs Comparison of the Differential Impacts Between License Renewal and Current Operations for EJ Populations, Was Reasonable Under NEPA In LBP-13-13, the Board found that the Staffs internal procedures for analyzing EJ issues was sufficient under NEPA, but that the Staff failed to follow this procedure. LBP-13-13, slip op.

at 382-83. Specifically, the Board found that the Staff failed to determine whether the EJ population would suffer disproportionate and adverse effects during the PEO [period of extended operation] from relicensing Indian Point in comparison to those effects that the non-EJ population would experience during the PEO. Id. at 383-84. The Board stated that the correct analysis would assess the effects of the PEO on the EJ population and non-EJ populations to ascertain any disparate impacts, and that the Staff had analyzed the wrong variables by comparing impacts on the EJ population during the PEO to the current impacts on the EJ population. Id. at 384.

The Boards finding that the Staff had analyzed the wrong variables by comparing impacts on the EJ population during the PEO to the current impacts on the EJ population, was clearly erroneous. In the EJ analysis presented in the FSEIS, the Staff considered the radiological (human health) and socioeconomic (environmental) effects to minority and low-income populations during the license renewal term. In doing so, the Staff used the human health and environmental impacts to EJ populations under current operations as a baseline for assessing the impacts to EJ populations during the license renewal term.151 The Board provided no reason to support its view that this approach was incorrect or unreasonable under NEPA.

151 As Staff witness Jeffrey Rikhoff testified, the Staff determined that employment levels and tax revenues generated by the continued operation of IP2 and IP3 would remain relatively unchanged; therefore, direct and indirect employment opportunities and public services would remain unchanged. The Staff also established that human health effects from the continued operation of IP2 and IP3 on the offsite population would remain unchanged. Moreover, the Staff determined that radiation doses from continued operations associated with this license renewal would be expected to continue at current levels, and remain within regulatory limits. From this analysis, the Staff concluded there would be no additional socio-economic impact (environmental effect) or human health impact (human health effect) on minority and low-income populations during the license renewal term beyond what is currently being experienced. Staff Testimony on CW-EC-3A (Ex. NRC000063) at 14.

Given that there are no significant impacts on the general population including the EJ populations resulting from operations (or from potential emergency preparedness protective response actions in the event of a severe accident) during the current operating license term, and no new or significant information suggesting that the impacts to EJ populations would change during the license renewal term, the Staff reasonably concluded that no disproportionately high and adverse impacts to EJ populations would result from the continued operation of IP2 and IP3 during the license renewal term.152 The Boards finding to the contrary, concluding that the Staff analyzed the wrong variables in its EJ analysis, is clearly erroneous and should be set aside.

IV. Commission Review is Warranted Because Contrary to the Regulations, LBP-11-17 Requires the Supplemental EIS to Contain Information Beyond That Necessary for a Hard Look In LBP-11-17, the Board granted New Yorks motion for summary disposition of Contention NYS-35/36, and denied the Applicants and Staffs cross-motions for summary disposition of that contention. The Staff respectfully submits that the Boards decision in LBP-11-17 was clearly erroneous and contrary to established Commission precedent and regulatory practice. Moreover, the Boards decision constitutes a departure from or contrary to established law,153 and raises significant and novel legal issues for which Commission review is warranted. Finally, review of LBP-11-17 is now timely, in that the Boards issuance of LBP-13-13 resolved a major segment of this case, including all other SAMA-related contentions.154 152 As the Commission has stated, An NRC impacts analysis does not require a full-scale site-specific review . . . . NEPA also does not call for certainty or precision, but an estimate of anticipated (not unduly speculative) impacts. LES, CLI-05-20, 62 NRC at 536 (emphasis in original).

153 Vogtle, CLI-10-5, 71 NRC at 99 (citations omitted).

154 As discussed above, the Commission previously declined to review the Boards decision in LBP-11-17, finding that the Applicants July 2011 petition for review did not meet the standards for interlocutory review. CLI-11-14, 74 NRC at 805.

A. Procedural History In its Environmental Report, Entergy submitted a Severe Accident Mitigation Alternatives (SAMA) analysis, which the Staff evaluated in its December 2008 Draft SEIS.155 In December 2009, Entergy submitted a revised SAMA analysis, to correct the wind direction inputs it had utilized in its previous SAMA analysis.156 On March 11, 2010, New York filed Contentions NYS-35 and NYS-36,157 in which it asserted (a) that Entergys analysis of various potentially cost-beneficial SAMAs was incomplete in the absence of full engineering project cost analyses, and (b) that any SAMAs that are finally determined to be cost-effective must be imposed as a condition for license renewal, or the Staff must provide a rational basis for not requiring such implementation.158 On June 30, 2010, the Board issued its decision in LBP-10-13, admitting and consolidating these contentions as Contention NYS-35/36.159 Entergy and the Staff filed 155 DSEIS (Ex. NYS000132A-D), § 5.2.

156 See Letter from Fred Dacimo, Vice President/License Renewal (Entergy Nuclear Northwest), to NRC Document Control Desk (Dec. 11, 2009) (ADAMS Accession No. ML093580089). See also Letter from Paul Bessette, Esq. to the Board (Nov. 17, 2009), enclosing Letter from Fred Dacimo, Vice President/License Renewal (Entergy) to NRC Document Control Desk (Nov. 16, 2009) (ADAMS Accession No. ML093340049).

157 State of New Yorks New and Amended Contentions Concerning the December 2009 [SAMA]

Reanalysis (March 11, 2010) (SAMA Reanalysis Contentions); see also State of New Yorks Motion for Leave to File New and Amended Contentions Concerning the December 2009 Reanalysis of [SAMAs]

(March 11, 2010). In this filing, New York also submitted amended Contentions NYS-12B and NYS-16B (amending Contentions NYS-12/12A and NYS-16/16A to apply to Entergys SAMA Reanalysis).

158 SAMA Reanalysis Contentions, at 14, 15, 34, 40, and 41. Entergy and the Staff filed answers opposing the admission of Contentions NYS-35 and NYS-36. See NRC Staffs Answer to State of New Yorks New and Amended Contentions Concerning the December 2009 [SAMA] Reanalysis (Apr. 5, 2010 (Staff Answer); Applicants Answer to New York States New and Amended Contentions Concerning Entergys December 2009 Revised SAMA Analysis (Apr. 5, 2010) (Applicants Answer). In their Answers, the Staff and Entergy asserted, inter alia, that the contentions failed to satisfy the timeliness and good cause requirements of 10 C.F.R. §§ 2.309(c) and 2.309(f)(2), in that the DSEIS (issued 15 months prior to New Yorks filing of these contentions) had contained the same conclusion that New York now challenged for the first time: Thus, New York had not challenged the DSEIS conclusions that none of the potentially cost-beneficial SAMAs relate[d] to adequate management of the effects of aging during the period of extended operation and [t]herefore, they do not need to be implemented as part of the license renewal pursuant to 10 CFR Part 54. DSEIS at 5-10. See Staff Answer at 30-35; Applicants Answer at 21-24.

159 Indian Point, LBP-10-13, 71 NRC 673 (2010). In its decision, the Board, inter alia, rejected the Staffs and Applicants arguments that New Yorks challenge to the DSEIS conclusion was untimely, finding

petitions for interlocutory review of that decision160 - which the Commission denied in CLI-10-30, finding that the petitions did not meet the standards for interlocutory review.161 On December 3, 2010, the Staff published its Final SEIS, in which the Staff, inter alia, provided its evaluation of Entergys SAMA analysis, as revised in Entergys December 2009 SAMA Reanalysis;162 also, in accordance with the Boards decision in LBP-10-13, the Staff provided an expanded explanation in the FSEIS, regarding its conclusion that Entergys potentially cost-beneficial SAMAs (none of which relate to managing the effects of aging), need not be implemented as a condition for IP2/IP3 license renewal.163 New York filed a motion for summary disposition of Contention NYS-35/36 on January 14, 2011;164 Entergy and the Staff then filed cross-motions for summary disposition.165 On July 14, that the information on which this conclusion relied was materially different than the information on which the DSEIS conclusion relied. Id. at 696, 702.

160 See (1) NRC Staffs Petition For Interlocutory Review of the . . . Boards Decision Admitting New York State Contentions 35 and 36 on Severe Accident Mitigation Alternatives (LBP-10-13) (July 15, 2010); and (2) Applicants Petition for Interlocutory Review of LBP-10-13 (July 15, 2010).

161 Indian Point, CLI-10-30, 72 NRC at 568-69. In its decision, the Commission observed that the Staffs and Applicants arguments concerning the Boards importation of Part 50 operating reactor oversight issues - going to the Indian Point reactors current licensing basis - into a NEPA analysis and a Part 54 license renewal proceeding . . . are not without force. Portions of the Boards decision appear problematic, and may warrant our review later in the proceeding. Id. at 568. Finding, however, that the petitions did not satisfy the standards for interlocutory review, the Commission denied those petitions without prejudice to Entergys and the Staffs ability to file petitions for review following a final order by the Board. Id. at 569.

162 See FSEIS § 5.2, and Appendix G.

163 See, e.g., FSEIS § 5.2 at 5-11 to 5-12; cf. Appendix G, at G-48 to G-49.

164 State of New Yorks Motion for Summary Disposition of Consolidated Contention NYS-35/36 (Jan. 14, 2011) (New York Motion). New York sought summary disposition of Contention NYS-35/36 (which had been filed in March 2010, based on Entergys December 2009 SAMA Reanalysis), without amending the contention to address the adequacy of the December 2010 FSEIS.

165 Applicants Consolidated Memorandum in Opposition to New York States Motion for Summary Disposition of Contention NYS-35/36 and in Support of Its Cross-Motion for Summary Disposition (Feb. 3, 2011) (Entergy Cross-Motion); NRC Staffs (1) Cross-Motion for Summary Disposition, and (2) Response to New York States Motion for Summary Disposition, of Contention NYS-35/36 (Severe Accident Mitigation Alternatives) (Feb. 7, 2011) (Staff Cross-Motion).

2011, the Board issued its decision in LBP-11-17, in which it granted New Yorks motion for summary disposition, and dispose[d] of NYS-35/36 as a matter of law.166 The Board held:

[W]e grant New Yorks Motion and, in so doing, hold that, under NRC Regulations, the APA, and NEPA, Entergys licenses cannot be renewed unless and until the NRC Staff reviews Entergys completed SAMA analyses and either incorporates the result of these reviews into the FSEIS or, in the alternative, modifies its FSEIS to provide a valid reason for recommending the renewal of the licenses before the analysis of potentially cost-effective SAMAs is complete and for not requiring the implementation of cost-beneficial SAMAs.167 On July 29, 2011, Entergy filed a petition for review of LBP-11-17;168 the Staff filed an answer in support of that petition.169 On December 22, 2011, the Commission issued CLI-11-14, in which it denied Entergys petition for review, finding that Entergys appeal is interlocutory in nature, and must await the Boards final decision in this proceeding.170 B. The Decision in LBP-11-17 Was Clearly Erroneous and Warrants Commission Review under 10 C.F.R. § 2.341(b)

In LBP-11-17, the Board held that the operating licenses for IP2 and IP3 cannot be renewed unless and until the Staff reviews Entergys engineering project cost analyses and incorporates the results of that review into the FSEIS for license renewal of IP2/IP3 - or, in the 166 Indian Point, LBP-11-17, 74 NRC at 27.

167 The Board further explained its decision, as follows:

By granting New Yorks Motion, we are not directing the implementation of any SAMA. Rather, we hold that the FSEIS must demonstrate that the NRC Staff has received sufficient information to take a hard look at SAMAs as required by 10 C.F.R. § 51.53(c)(3)(ii)(L), has in fact taken that hard look, and has adequately explained its conclusions that may, but need not, include requiring the implementation of cost-effective SAMAs.

Id. (footnote omitted).

168 Applicants Petition for Review of LBP-11-17 Granting Summary Disposition of Consolidated Contention NYS35/36 (July 29, 2011) (Applicants Petition).

169 NRC Staffs Answer to [Applicants Petition] (Aug. 11, 2011) (Staff Answer to Petition).

170 Indian Point, CLI-11-14, 74 NRC at 803.

alternative, modifies its FSEIS to provide a valid reason for recommending license renewal before the analysis of potentially cost-effective SAMAs is complete and for not requiring the implementation of cost-beneficial SAMAs.171 The Boards ruling thus requires denial of the LRA unless the Staff (a) evaluates the Applicants engineering project cost information, and (b) provides a further (or different) explanation for its conclusions (which, presumably, would then be addressed in further hearings) -- which is altogether unnecessary, as a matter of law, in that the Staff had already reviewed sufficient cost estimates for purposes of NEPA, and the SAMAs at issue here do not relate to managing the effects of aging.172 Importantly, the Boards decision rests solely upon its interpretation of legal and regulatory requirements. The Board reviewed the information presented in the FSEIS as to the potentially cost-beneficial SAMAs that had been identified,173 and agree[d] with all parties that there remains no genuine dispute over any material fact. LBP-11-17, 74 NRC at 25. The Board took note of the Staffs position that these SAMAs do not relate to adequately managing the effects of aging during the period of extended operation. Therefore they need not be implemented as part of license renewal pursuant to [10 C.F.R. Part 54]. Id. at 24. The Board, however, rejected the Staffs view that the FSEIS satisfied the agencys obligations under NEPA, for two reasons.

First, with respect to the need for an engineering project cost-benefit analysis, the Board found it plausible that such an analysis would provide the agency and the public with a more accurate sense of the costs and benefits of relicensing IP2 and IP3. Id. at 26. Accordingly, the Board held that the Staff had prematurely concluded its review before receiving all the requisite 171 Indian Point, LBP-11-17, 74 NRC at 27 (emphasis added).

172 See Vermont Yankee, CLI-07-01, 65 NRC at 9 (Commissioners Merrifield and McGaffigan, concurring) (Commission review undertaken, where the Boards decision might otherwise result in a completely unnecessary exercise and would be inconsistent with efficient conduct of the proceeding).

173 The Board reviewed the Staffs evaluation of SAMAs in Appendix G to the FSEIS, presenting a Table of 20 SAMAs that had been found to be potentially cost-beneficial. Indian Point, LBP-11-17, 74 NRC at 23-24; cf. FSEIS App. G, Table G-6, at G-36 to G-38. Two other (unnumbered) SAMAs were also found to be potentially cost-beneficial. See FSEIS § 5.2.5 at 5-10.

information, and until the NRC Staff receives and analyzes that information, it necessarily cannot take the requisite hard look at Entergys LRA that is required under NEPA. Id.

Second, with respect to the need for backfit analyses and implementation of cost-beneficial SAMAs, the Board held as follows:

[T]he Staff has the option and the duty . . . to pursue modifications to Entergys CLB at all periods during normal and extended operations through the backfit procedure if there is a substantial increase in the overall protection of the public health and safety or the common defense and security to be derived from the backfit and that the direct and indirect costs of implementation for that facility are justified in view of this increased protection.

Consequently, we disagree with the Staff as a matter of law that its citation to the aging management limitations of Part 54 constitutes the requisite rational basis for refusing to require implementation of SAMAs whose benefits, at this juncture and on this record, clearly outweigh their costs. Other than the Staffs misplaced citation to Part 54s limitations, we are left with no explanation at all for why it has decided not to require implementation of these cost-beneficial SAMAs by setting conditions for the license renewal, by directing a backfit, or through some other procedure.

Accordingly, we find that the FSEIS does not articulate a rational basis for not requiring Entergy to complete its SAMA review and for not requiring the implementation of cost-beneficial SAMAs prior to the relicensing of Indian Point Units 2 and 3. We further conclude, as a matter of law, that the FSEIS violates NRC regulations, NEPA, and the APA. Therefore, we grant New Yorks Motion and dispose of NYS-35/36 as a matter of law.

LBP-11-17, 74 NRC at 26-27.174 The Staff submits that the Boards determinations on both of these issues were clearly erroneous, and should be reversed.

174 In CLI-11-14, the Commission noted that the Board had not actually required the implementation of cost-beneficial SAMAs, but had offered the Staff an alternative. The Commission observed:

[W]e note that NEPA is a procedural statute--although it requires a "hard look" at mitigation measures, it does not, in and of itself, provide the statutory basis for their implementation. In granting New York's motion for summary disposition of Contention NYS-35/36, the Board was careful not to require that the Staff impose the cost-beneficial SAMAs as a condition on the renewal of Entergy's licenses. Rather, it provided the Staff with an option to explain further its reasoning for not requiring implementation of cost-beneficial SAMAs in the context of this license renewal review. To the extent the Board would have the Staff elaborate

1. There Is No Legal or Regulatory Basis to Require Engineering Project Cost-Benefit Analyses as a Condition for License Renewal.

NYS Contention 35 listed nine specific SAMAs (IP2-09, IP2-21, IP2-22, IP2-53, IP2-62, IP3-07, IP3-18, IP3-19, and IP3-53) which the Applicant or Staff had found to be potentially cost-beneficial;175 it asserted that the Applicant should be required to finalize its SAMA calculations by completing its planned engineering project cost-benefit analysis; and it asserted that the Commission must, as a matter of law, impose those SAMAs as backfits to the current licensing basis as a pre-condition to license renewal.176 The Board erroneously admitted these issues, in LBP-10-13,177 -- and erroneously resolved them in favor of New York, in LBP-11-17.

There is no legal or regulatory basis for the Boards view that engineering project cost-benefit analyses must be conducted by an applicant and evaluated in the Staffs FSEIS as a on its analysis, the Board's decision, in our view, does not appear patently unreasonable.

Indian Point, CLI-11-14, 74 NRC at 813.

175 SAMA Reanalysis Contentions, at 22-23.

176 See, e.g., SAMA Reanalysis Contentions at 14-16, 23, 25, 28, 34, 39, 40, 42, and 46.

177 The Board erred in admitting Contention NYS-35, in that it was inexcusably filed more than one year late. Thus, the contention challenged the level of detail contained in the cost estimates used in Entergys 2009 SAMA Reanalysis - but the same level of detail had been used in the initial cost estimates which Entergy submitted with the LRA. New York did not challenge Entergys cost estimates in its original contentions, and did not demonstrate why it could not have raised the issue earlier. See NRC Staff's Answer to State of New York's New and Amended Contentions Concerning the December 2009 Severe Accident Mitigation Alternative Reanalysis at 30-35; Applicant's Answer to New York State's New and Amended Contentions Concerning Entergy's December 2009 Revised SAMA Analysis at 21-24. Likewise, the Boards decision in LBP-10-13 to admit Contention NYS-36 disregarded the Commissions requirement that intervenors must demonstrate why their late-filed contentions could not have been raised earlier.

Indian Points original SAMA analysis identified a number of potentially cost-beneficial SAMAs, and the Staffs DSEIS clearly indicated that these SAMAs would not be implemented as part of license renewal because they were not related to managing the effects of aging. New York, however, did not challenge this conclusion in the DSEIS and instead waited until the Staff reiterated this same conclusion concerning Entergys SAMA Reanalysis. Inasmuch as New York failed to challenge this conclusion in the Staffs DSEIS, and failed to demonstrate good cause for its lateness in raising the issue, the Board should have rejected the contention as inexcusably late. See NRC Staff's Answer to State of New York's New and Amended Contentions Concerning the December 2009 Severe Accident Mitigation Alternative Reanalysis at 30-35; Applicant's Answer to New York State's New and Amended Contentions Concerning Entergy's December 2009 Revised SAMA Analysis at 21-24. Thus, the Boards decision in LBP-10-13, admitting Contention NYS-36; should be reversed.

condition for license renewal. In this regard, the NRC is obliged, under NEPA, to evaluate the environmental impacts of its licensing actions and reasonable alternatives thereto. In reviewing a nuclear power plant license renewal application, if SAMAs were not considered for the plant previously, the NRC includes in its EIS an evaluation of severe accident mitigation alternatives.178 The Staffs FSEIS for license renewal of IP2 and IP3 satisfied this obligation. Here, the Applicant identified the full range of all potentially cost-beneficial SAMAs179 for IP2 and IP3, establishing the complete set of SAMAs that might conceivably be cost-beneficial; indeed, neither New York nor the Board ever expressed a concern that some plausible SAMA had not been identified. See LBP-11-17, 74 NRC at 23-25. Although detailed engineering project cost-benefit analyses of the 22 potentially cost-beneficial SAMAs identified in the FSEIS could result in a refinement of the cost/benefit ratio of those SAMAs, and/or the elimination of some of those 22 SAMAs as no longer cost-beneficial, they could not lead to the identification of any additional cost-beneficial SAMAs.

Accordingly, such analyses would afford little, if any, value in the agencys evaluation of environmental impact mitigation alternatives under NEPA.

Moreover, inasmuch as none of these 22 SAMAs relate to managing the effects of aging, the additional analyses would not provide a regulatory basis for imposing those SAMAs as a backfit to the CLB as a pre-condition to license renewal.180 Thus, in McGuire/Catawba,181 the 178 See 10 C.F.R. § 51.53(c)(3)(ii)(L) (requiring the Staff to consider SAMAs in its EIS if SAMAs were not considered for the plant previously). Section § 51.53 does not require a final determination of cost-beneficial SAMAs, or the implementation of such SAMAs as a condition for license renewal.

179 The term potentially cost-beneficial derives from regulatory guidance, issued by the Nuclear Energy Institute and endorsed by the Staff. See (1) Severe Accident Mitigation Alternatives (SAMA)

Analysis - Guidance Document, NEI 05-01, Rev. A, (Nov. 2005); and (2) Final License Renewal Interim Staff Guidance LR-ISG-2006-03: Staff Guidance for Preparing Severe Accident Mitigation Alternatives Analyses (Aug. 2007), at 1 (ADAMS Accession No. ML071640133). The NEI guidance states, [s]ince the SAMA analysis is not a complete engineering project cost benefit analysis, the SAMAs that are cost beneficial after the Phase II analysis and sensitivity anesaly are only potentially cost-beneficial.

NEI 05-01, at 33 (underlining added; bold in original).

180 Methow Valley, 490 U.S. at 339, 350; McGuire/Catawba, CLI-03-17, 58 NRC at 431.

181 Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1

Commission rejected a contention that a refined SAMA analysis was required, where the Draft SEIS had already found that the specified mitigative measure appear[ed] to be cost-beneficial, and it was unclear what additional result or remedy would prove meaningful to the Intervenors.

McGuire/Catawba, CLI-02-28, 56 NRC at 388. Further, the Commission cited the Draft SEIS conclusion that this SAMA does not relate to adequately managing the effects of aging during the period of extended operation, and [t]herefore, it need not be implemented as part of license renewal pursuant to 10 CFR Part 54.182 In its subsequent McGuire/Catawba decision (CLI-03-17), the Commission explained its conclusion in CLI-02-28, stating as follows:

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

Under NEPA, mitigation (and the SAMA issue is one of mitigation) need only be discussed in sufficient detail to ensure that environmental consequences [of the proposed project] have been fairly evaluated. Here, in a generic EIS the NRC has conducted a thorough NEPA evaluation of the probability and consequences of severe reactor plant accidents, and in plant-specific EISs the NRC staff has discussed at length possible mitigation measures. The mitigation analysis outlines relevant factors, discloses opposing viewpoints, and indicates particular assumptions under which the staff ultimately concludes that providing backup power to hydrogen igniters is cost-beneficial. The staff presented its analysis and conclusion based upon the available technical information.

NEPA requires no more.

and 2), CLI-02-28, 56 NRC 373, 387-88 (2002).

182 McGuire/Catawba, CLI-02-28, 56 NRC at 388 n.77. The Commission concluded, the need for plant design and procedural changes will be resolved as part of GSI-189 and addressed . . . as a current operating license issue. . . . Thus, the ultimate agency decision on whether to require facilities with ice condenser containments to implement any particular SAMA will fall under a Part 50 current licensing basis review. Id. Similarly, if the Commissions post-Fukushima studies point to the need to make any plant design and procedural changes that Entergy has identified as potentially cost-beneficial SAMAs, those matters would be addressed as part of the Commissions Order (EA-12-049) and the follow-on rulemaking.

See Proposed Rule, Station Blackout, 77 Fed. Reg. 16175 (Mar. 20, 2012).

NRC adjudicatory hearings are not EIS editing sessions.

Our busy boards do not sit to parse and fine-tune EISs. To litigate a NEPA claim, an intervenor must allege, with adequate support, that the NRC staff has failed to take a hard look at significant environmental questions - i.e., the staff has unduly ignored or minimized pertinent environmental effects. . . . 183 The Commission further explained its views in the Pilgrim proceeding.184 There, the Commission stated, [t]he question is not . . . whether the SAMA analysis can be refined further.

Pilgrim, CLI-10-11, 71 NRC at 315. Further, NEPA does not demand virtually infinite study and resources. While there will always be more data that could be gathered, agencies must have some discretion to draw the line and move forward with decisionmaking.185 The Commission concluded:

Unless it looks genuinely plausible that inclusion of an additional factor or use of other assumptions or models may change the cost-benefit conclusions for the SAMA candidates evaluated, no purpose would be served to further refine the SAMA analysis, whose goal is only to determine what safety enhancements are cost-effective to implement.186 Here, New York did not allege - and the Board did not find - that additional SAMAs should have been identified as potentially cost-beneficial, or that any significant errors were made in the Applicants SAMA Reanalysis or the Staffs Final SEIS, such that inclusion of an additional factor or use of other assumptions or models may change the cost-benefit conclusions for the SAMA candidates evaluated. Accordingly, the Boards conclusion that further analysis might plausibly identify further information, fails to provide an adequate legal basis for requiring the Applicant to 183 Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-03-17, 58 NRC 419, 431 (2003) (italics in original; footnotes omitted).

184 Pilgrim, CLI-10-11, 71 NRC at 287.

185 Id. at 315 (citing Town of Winthrop v. FAA, 535 F.3d 1, 11-13 (1st Cir 2008)).

186 Id. at 317 (emphasis added).

perform highly detailed engineering project cost-benefit analyses and for requiring the Staff to evaluate those analyses in a supplement to the FSEIS.187 The Staff and Applicant cited the Commissions decisions in McGuire/Catawba and Pilgrim in their cross-motions for summary disposition.188 The Board, however, rejected those Commission decisions as inapposite, on the grounds that the SAMAs identified in the FSEIS as potentially cost-beneficial have not been analyzed under the NRCs Part 54 license renewal safety review, having instead been analyzed under its Part 51 environmental review, and the Staff has not indicated that issues raised by any of the subject SAMAs currently are being resolved generically across all plants through an agency review of their current licensing bases.

LBP-11-17, 74 NRC at 25. The Staff respectfully submits that the Board misread the Commissions conclusions in McGuire/Catawba and Pilgrim, that NEPA does not require final estimates of mitigation costs, where the potential mitigation measures have already been discussed in sufficient detail to ensure that environmental consequences [of the proposed project] have been fairly evaluated.189 The Boards requirement that engineering project costs must be submitted by the Applicant, and evaluated by the Staff, should therefore be reversed.190 187 The FSEIS observed that the probability of severe accidents was determined to be low, both generically and at IP2/IP3; [t]he probability-weighted consequences of severe accidents was determined on a generic basis in the GEIS to be SMALL; and no reason appeared why this generic determination would not apply to IP2 and IP3. FSEIS § 5.1, at 5-2 to 5-4; § 5.2.6, at 5-11 to 5-12. In other words, regardless of the question of the agencys authority to impose SAMAs as a condition for license renewal, the FSEIS concluded there is no reason to require such SAMAs for environmental protection purposes. Significantly, Contention NYS-35/36 nowhere challenges that conclusion, nor does it challenge similar, supporting statements which were made in sections 5.1 and 5.2 of the DSEIS. See SAMA Reanalysis Contentions, at 13-50.

188 See, e.g., Entergy Cross-Motion at 27-28; Staff Cross-Motion at 18-19, 21-23.

189 McGuire/Catawba, CLI-03-17, 58 NRC at 431, quoting Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 352 (1989).

190 To be sure, Entergy has now provided engineering cost estimates, as required by the Board in LBP-11-17, and the Staff is undertaking to review that information. If the Staff concludes that the is information is new and significant, it may determine to address the information in a supplement to the FSEIS. Nonetheless, the Boards determination that such detailed information was required, as a matter of law, was clearly erroneous, in that such information is not needed (and has never before been required) to satisfy the agencys obligations under NEPA.

2. The Staffs Detailed FSEIS Explanation of the Reasons Supporting Its License Renewal Recommendation Are Consistent with NEPA, the APA, and NRC Regulations, and Warrants Reversal of LBP-11-17.

The Boards decision in LBP-11-17 appears to rest upon a fundamental misreading of the regulatory framework underlying the Commissions requirements for license renewal. In this regard, the Board mistakenly concluded that SAMAs which are identified in an FSEIS as potentially cost-beneficial for NEPA purposes,191 must be pursue[d] by the Staff as a condition for license renewal under 10 C.F.R. Part 54.192 In support of this conclusion, the Board opined that the Staff has the duty . . . to pursue modifications to Entergys CLB at all periods during normal and extended operations through the backfit procedure and, [c]onsequently, the Board disagree[d] with the Staff as a matter of law that its citation to the aging management limitations of Part 54 constitutes the requisite rational basis for refusing to require implementation of cost-beneficial SAMAs, apart from which it found no explanation at all for why it has decided not to require implementation of these cost-beneficial SAMAs by setting conditions for the license renewal, by directing a backfit, or through some other procedure.193 There is no legal basis for the Boards ruling. Although the Board did not directly require the implementation of cost-beneficial SAMAs as a condition for license renewal, its decision erroneously conflates 10 C.F.R. Part 54 license renewal requirements and Part 51 environmental reviews, with 10 C.F.R. Part 50 regulations governing backfits to an operating reactors CLB,194 191 Indian Point, LBP-11-17, 74 NRC at 25, 26-27.

192 This portion of the Boards decision derives from Contention NYS 36, which asserted that nine SAMAs (IP2-28, IP2-44, IP2-54, IP2-60, IP2-61, IP2-65, IP3-55, IP3-61, and IP3-62) identified in Entergys SAMA Reanalysis as having substantially greater benefits in excess of their costs, must be included as conditions in the renewed license. SAMA Reanalysis Contentions, at 36, 46.

193 Indian Point, LBP-11-17, 74 NRC at 26 (emphasis added footnotes omitted).

194 The Commissions regulations impose strict requirements for the conduct of a backfit analysis, as set forth in 10 C.F.R. §§ 50.109(a)(2)-(4), (c) and (e). A backfit may be required without a backfit analysis if the Commission or staff determines that a modification is necessary to bring a facility into compliance with a license or [the CLB], or that action is necessary to ensure adequate protection of public health and safety and the common defense and security, 10 C.F.R. § 50.109(a)(4); otherwise, a backfit may

on the theory that the Staff is authorized to pursue modifications to the CLB at all periods during normal and extended operations through the backfit procedure. The Board failed to recognize, however, that the Staffs analysis of non-aging management-related backfits is conducted as part of its Part 50 reactor oversight process rather than as part of its Part 54 license renewal review, since such backfits would be important, not only for operations under a renewed license, but with respect to the current operating license as well.195 Further, the NRCs NEPA-implementing regulations in Part 51 - like NEPA, itself - require only that the agency evaluate the environmental impacts of its licensing actions, and impose no duty to implement mitigation measures.196 Thus, if the Staff determines that a backfit may be be required when the Commission determines, based on a backfit analysis, that there is a substantial increase in the overall protection of the public health and safety or the common defense and security to be derived from the backfit and that the direct and indirect costs of implementation for that facility are justified in view of this increased protection. 10 C.F.R. § 50.109(a)(3).

195 In adopting its license renewal regulations, the Commission endorsed the principle that issues that are material as to whether a nuclear power plant operating license may be renewed should be confined to those issues that are uniquely relevant to protecting the public health and safety and common defense and security during the renewal period. Final Rule, Nuclear Power Plant License Renewal, 56 Fed. Reg.

64,943, 64,946 (Dec. 13, 1991). Only issues that are unique to the period of extended operation, such as age-related degradation unique to license renewal are to be addressed for license renewal. Id. at 64,947. Other issues that are relevant to both current plant operation and operation during the extended period must be addressed now within the present license term rather than at the time of renewal -- which would assure that safety or security issues pertinent to current reactor operations are not left unresolved until a licensee seeks license renewal and the Commission issues its renewal decision. Id., at 64,946. In sum, the NRC's decision should normally be limited to whether actions have been identified and have been or will be taken to address age-related degradation unique to license renewal and whether the relevant

[NEPA] requirements, as set forth in 10 CFR part 51, have been met. Id. at 64,960-61; Turkey Point, CLI-01-17, 54 NRC at 9-10; Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-05-24, 62 NRC 551, 560-61 (2005). This regulatory approach applies to both safety and environmental issues. See Final Rule, Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg.

22,461, 22,481 (May 8, 1995).

196 See Methow Valley, 490 U.S. at 339, 350 (NEPA does not impose an obligation upon an agency to take any particular action, such as mitigation of environmental impacts, but simply prescribes the necessary process). Accord, McGuire/Catawba, CLI-03-17, 58 NRC at 431. In Methow Valley, the Court found a fundamental distinction . . . between a requirement that mitigation be discussed in sufficient detail to ensure that environmental consequences have been fairly evaluated, on the one hand, and a substantive requirement that a complete mitigation plan be actually formulated and adopted, on the other.

Id. 490 U.S. at 352. The Court found no requirement in NEPA that action be taken to mitigate the adverse effects of major federal actions, ruling that it would be inconsistent with NEPA's reliance on procedural mechanisms as opposed to substantive, result-based standards to demand the presence of a fully developed plan that will mitigate environmental harm before an agency can act. Id. at 353.

appropriate, it could undertake a backfit review under the existing (or a renewed) license - and the results of that review would apply to any renewed license, as well. The backfit review function, however, is separate from the Staffs review of license renewal applications. Contrary to the Boards reading of 10 C.F.R. Parts 51 and 54, nothing in those regulations requires the implementation of non-aging related cost-beneficial SAMAs as a condition for license renewal.

In addition, there is no basis for the Boards conclusion that the Staffs FSEIS had failed to state a rational basis for the Staffs determinations, as required by NEPA and the Administrative Procedure Act (APA), 5 U.S.C. § 551, et seq. Indian Point, LBP-11-17, 71 NRC at 27.

Significantly, the Board failed to consider or address the augmented legal and technical explanation which the Staff had provided in § 5.2.6 of the Final SEIS, expanding upon the rationale in § 5.2.6 of the DSEIS that was challenged in this contention. There is thus no factual basis for the Boards pivotal determination that, [o]ther than the Staffs misplaced citation to Part 54s limitations, we are left with no explanation at all for why it has decided not to require implementation of these cost-beneficial SAMAs by setting conditions for the license renewal, by directing a backfit, or through some other procedure. Indian Point, LBP-11-17, 71 NRC at 26 (emphasis added). The Staff respectfully submits that the FSEIS provides a clear and rational basis for the Staffs license renewal recommendation. No more is required by NEPA or the APA.

Specifically, in Chapter 5 and Appendix G of the FSEIS, the Staff provided a thorough evaluation of the Applicants SAMA analysis, as revised in Entergys SAMA Reanalysis. Further, the Staff addressed the issues raised in Contention NYS-35/36, explaining (as it had stated in the DSEIS) that its review of Entergys revised SAMA analysis found, inter alia, that the methodology used was sound and the SAMA cost-benefit evaluations were reasonable and sufficient for license renewal purposes. Further, the Staff agreed with Entergys identification of areas in which risk can be further reduced in a cost-beneficial manner through the implementation of all or a subset of potentially cost-beneficial SAMAs, and that further evaluation of these SAMAs by

Entergy is appropriate - but because none of the potentially cost-beneficial SAMAs relate to adequately managing the effects of aging during the period of extended operation . . . they need not be implemented as part of IP2 and IP3 license renewal pursuant to 10 CFR Part 54. FSEIS

§ 5.2.6 at 5-11.

In addition, the FSEIS discussion of applicable legal principles restated and expanded upon the explanation of legal principles that was provided in the DSEIS,197 and then provided a further, technical basis for not requiring Entergy to implement the potentially cost-beneficial SAMAs as a condition for license renewal. In particular, § 5.2.6 of the FSEIS stated:

. . . SAMAs, by definition, pertain to severe accidents - i.e., those accidents whose consequences could be severe, but whose probability of occurrence is so low that they may be excluded from the spectrum of design basis accidents (DBAs) that have been postulated for a plant (see GEIS §§ 5.3.2, 5.3.3, 5.4); this is consistent with the conclusions reached in § 5.2.2 of this SEIS concerning severe accidents at IP2 and IP3. The Commission has previously concluded, as a generic matter, that the probability-weighted radiological consequences of severe accidents are SMALL. GEIS § 5.5.2; 10 CFR Part 51, App. B, Table B1. As stated in §§ 5.1.1 and 5.1.2 above, no significant new information has been identified that would remove IP2 and IP3 from these generic determinations. Thus, there is no regulatory basis to impose any of the potentially cost-beneficial SAMAs as a condition for license renewal of IP2 and IP3 - even if those potentially cost-beneficial SAMAs are finally found to be cost beneficial.

FSEIS § 5.2.6, at 5-11 to 5-12.198 197 The Staffs augmented explanation of the legal bases for its determination explained that NEPA requires consideration of environmental impacts and alternatives, but does not require that SAMAs be imposed to redress environmental impacts. FSEIS § 5.2.6 at 5-11. The Staff further explained that potentially cost-beneficial SAMAs which are unrelated to license renewal requirements in 10 C.F.R. Part 54 (i.e., managing the effects of aging), would be considered, to the extent necessary or appropriate, under the agencys oversight of a facilitys 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. Id. The Staff concluded its legal analysis, stating, there is no regulatory basis to suggest that potentially cost-beneficial SAMAs that are unrelated to Part 54 requirements must be imposed as a backfit to the CLB, as a condition for license renewal. Id.

198 The Staffs FSEIS conclusions, recited in the text above, were supported by the following considerations - none of which were addressed by the Board upon finding that it was left with no explanation at all for why [the Staff] has decided not to require implementation of cost-beneficial SAMAs:

In sum, the additional statements presented in § 5.2.6 of the FSEIS substantially augmented and expanded the Staffs prior explanation in § 5.2.6 of the DSEIS - which Contention NYS-35/36 had challenged - and provided an adequate and rational explanation of the bases for the Staffs determination not to require implementation of the potentially cost-beneficial SAMAs as a condition for license renewal.199 The explanation provided in the FSEIS is consistent with the GEIS for license renewal, the NRCs license renewal regulations, and the Commissions decisions in McGuire/Catawba and Pilgrim. Moreover, the IP2/IP3 FSEIS explanation is consistent with the NRCs actions in all other license renewal proceedings to date, whereby the NRC has approved the license renewal applications of more than 70 of the nations 100 nuclear power plants (of which over 50 plants had identified potentially cost-beneficial (a) SAMAs, by definition, address mitigation alternatives for severe accidents. See GEIS, § 5.4 (Severe Accident Mitigation Design Alternatives (SAMDAs)); see Transcript of Indian Point Teleconference, April 19, 2010, Tr. at 853-54 (Turk).

(b) The probability of occurrence of severe accidents is so low that they are excluded from the spectrum of design basis accidents (DBAs) postulated for a plant. Tr. at 853-54 (Turk); See generally, GEIS, § 5.3.2 (Design Basis Accidents) and § 5.3.3 (Probabilistic Assessment of Severe Accidents). (It should be noted that the GEIS discussion of postulated accidents included explicit consideration of Indian Point. See, e.g., GEIS at 5-14, 5-15, 5-17, 5-22, 5-29, 5-34, 5-36, 5-38, 5-40, 5-43, 5-45, 5-47, 5-52, 5-85, 5-87, 5-88, and 5-97).

(c) The CDFs for severe accidents at IP2 and IP3 are quite low. As stated in the FSEIS, the baseline core damage frequency (CDF) for all of the postulated internally-generated severe accidents at Indian Point, combined, is approximately 1.79x10-5 per year for IP2 and 1.15x10-5 per year for IP3.

Entergy performed separate assessments of the CDF from external events, and accounted for the potential risk benefits associated with such events by multiplying the internally-initiated CDFs by a factor of approximately 3.8 for IP2 and 5.5 for IP3. FSEIS at 5-5. The CDFs for each specific initiating event are provided in FSEIS Table 5-3. See FSEIS at 5-6.

(d) The Commission has determined, as a generic matter, that the probability-weighted radiological consequences of severe accidents, for all plants, are SMALL; 10 C.F.R. Part 51, App. B., Table B-1 (Postulated Accidents); GEIS, § 5.5.2 (Impacts from Severe Accidents).

(e) No significant, new information has been identified that would remove IP2 and IP3 from these generic determinations. FSEIS, § 5.1.1 at 5-3, § 5.1.2 at 5-3 to 5-4.

199 Indeed, as was shown in Attachment 2 to the Staffs petition for review of LBP-10-30, the explanation provided in § 5.2.6 of the Indian Point FSEIS is entirely consistent with - and substantially more detailed than - the explanation provided in the FSEIS (or DSEIS) published in every other license renewal proceeding conducted to date, where the Staff determined not to require the implementation of cost-beneficial SAMAs that do not relate to managing the effects of aging.

SAMAs that were unrelated to managing the effects of aging), without ever imposing such requirements.200 The Staffs Cross-Motion presented unequivocal evidence of this consistent, established regulatory practice,201 to no avail: The Board ignored this established practice, stating only that it was unwilling to accept the Staffs position and thereby put its imprimatur on an uninformed agency decision. Id., 74 NRC at 27.

The Boards decision in LBP-11-17 did not address the augmented explanation of the Staffs rationale, and provided no indication as to why the Board found that this augmented explanation failed to provide a valid or acceptable reason for not requiring the implementation of these SAMAs as a condition for license renewal. See LBP-11-17, 74 NRC at 27.202 Thus, there is no way of knowing whether the Board would find any further explanation to be valid.203 200 Consistent with the Staffs endorsement of NEI 05-01 (discussed infra, at n. 187), the Staff has not required license renewal applicants to submit engineering project cost analyses as part of their SAMA analyses. Nonetheless, because the Applicant recently submitted updated SAMA analysis and final engineering project costs, the Staff plans to determine whether it constitutes new and significant information that would require supplementation of the FSEIS. See 10 C.F.R. § 51.92(a)(2).

201 The Staff attached to its Cross-Motion excerpts from the FSEIS (or DSEIS) for the 35 license renewal proceedings (involving 53 reactors), where potentially cost-beneficial SAMAs had been identified.

In each such instance, the FSEIS concluded - in similar (but far less detailed) terms - that any cost-beneficial SAMAs which are unrelated to managing the effects of aging need not be implemented as a condition for license renewal. See Attachment 2 to Staffs Cross-Motion, passim.

202 As the Commission observed in CLI-10-30, the Staffs petition for review of LBP-10-13 expressed the Staffs concern that it had already provided the Board with a detailed and rational explanation of why SAMA-based backfits to the CLB are not required for license renewal. Indian Point, CLI-10-30, 72 NRC at 569. As the Commission noted, [t]he Staffs concern is that while it could provide the same type of explanation it provided previously, the Board appears to have implicitly rejected this explanation. Id. The Commission then stated, If the Board in fact ultimately rejects the Staffs arguments, the Staff will have the opportunity to appeal the final decision. Id.

203 Similarly, the Staff already explained to the Board, without success, that further refinement of the Applicants analysis of the cost of implementing its SAMAs is unnecessary, since a refined estimate of implementation costs could not identify any additional cost-beneficial SAMAs. Staff Cross-Motion, at 32-33. Further, the Staff explained, without success, that the license renewal regulations do not require an applicant to implement cost-beneficial SAMAs as a condition for license renewal, unless the SAMAs relate to managing the effects of aging. These explanations are fundamental to the Staffs view of this matter, and would likely be recited by the Staff in any future explanation of its views - notwithstanding the likelihood that the Board would again reject that explanation as unacceptable.

C. Commission Review of LBP-11-17 Is Timely In CLI-11-14, the Commission denied Entergys previous petition for review of LBP-11-17, without prejudice, finding that Entergys appeal is interlocutory in nature, and must await the Boards final decision in this proceeding. Indian Point, CLI-11-14, 74 NRC at 803. The Commission explained, in part, that the Boards grant of summary disposition of Contention 35/36 did not dispose of a major segment of the case, including the two other SAMA contentions that were still pending at that time (NYS-12C and NYS-16B). Id. at 811. The Boards partial initial decision, LBP-13-13, changes this situation, in that it resolves nine of the 14 admitted contentions in this proceeding, including the other two SAMA contentions.204 Accordingly, the Staff submits that LBP-11-17 is now ripe for review.

The Commission provided useful guidance regarding the proper time to appeal from decisions granting summary disposition, in Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-00-24, 52 NRC 351 (2000) (addressing former § 2.786(b)). There, the Commission observed that the regulations may be less than clear in the context of complex, multi-issue licensing proceedings. Id. at 352. The Commission indicated, however, that when a party petitions for review of a partial initial decision, it should raise all rulings that deal with the subject matter of the partial initial decision and any claims or errors that could have affected the outcome of the proceeding, without regard to whether the issue was originally designated a separate contention or a basis for a contention. Id. at 353. The Commission emphasized that this was consistent with the practice of the Atomic Licensing Appeal Board, which treated appeals from partial initial decisions as including preliminary related rulings, including rulings 204 The Staff notes that following the Boards issuance of LBP-13-13, New York filed a motion to reopen and for reconsideration of the Boards decision on Contention NYS-12C, citing new information regarding the Staffs recent study of spent fuel pool accident consequences. See State of New York Motion to Reopen the Record and for Reconsideration on Contention NYS-12C (Dec. 7, 2013). Entergy and the Staff filed answers opposing that motion, on December 23, 2013. New Yorks motion does not affect the Boards ruling on Contention NYS-35/36.

rejecting contentions. Id., citing Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-875, 26 NRC 251 (1987).

Significantly, in Seabrook, the Appeal Board took review of a severe accident analysis contention that was decided on summary disposition, but was not addressed in the partial initial decision. See Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2),

ALAB-875, 26 NRC 251, 267-69 (1987). In accordance with the Appeal Boards decision in Seabrook, the Staff respectfully submits that Commission review of LBP-11-17, granting summary disposition of Contention NYS-35/36 in favor of New York, is now appropriate.

In addition, Commission review of the Boards grant of summary disposition on Contention NYS-36/36 at this time will aid all the parties and the Board in making efficient use of their limited resources. Thus, the Boards decision in LBP-11-17 renders it likely that further hearings may be required to consider the new engineering project cost information which Entergy recently-submitted, to satisfy the ruling in LBP-11-17 that renewed licenses may not be issued unless such information is received and evaluated by the Staff. As such, the Commissions review of the Boards decision in LBP-11-17 could provide finality with respect to the Boards ruling on Contention NYS-35/36 and useful guidance as to how the Board and parties should now proceed.

CONCLUSION For the reasons set forth above, the Staff respectfully submits that the Commission should undertake review of the Boards decisions in LBP-13-13 and LBP-11-17. Insofar as the Board erroneously resolved Contentions NYS-8 (Transformers) and NYS-35/36 (SAMA Implementation), the Boards decisions should be reversed. Although the Board correctly resolved Contention CW-EC-3A (Environmental Justice) in favor the Staff, the Boards underlying rational was erroneous and should be set aside in favor the Staffs EJ analysis as explained in the FSEIS.

Respectfully submitted,

/Signed (electronically) by/

Sherwin E. Turk Brian G. Harris Beth N. Mizuno Anita Ghosh Counsel for NRC Staff Dated at Rockville, Maryland this 14th day of February 2014

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247-LR, 50-286-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 PETITION FOR COMMISSION REVIEW OF LBP-13-13 IN PART (CONTENTIONS NYS-8 AND CW-EC-3A), AND LBP-11-17 (CONTENTION NYS-35/36), have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above- captioned proceeding, this 14th day of February, 2014.

/Signed (electronically) by/

Brian G. Harris Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-1392 E-mail: brian.harris@nrc.gov Date of signature: February 14, 2014