ML15089A576

NRC Staff'S Response to the Commissions Memorandum and Order of February 18, 2015 (CLI-15-3), Regarding Contention NYS-35/36

ML15089A576
Person / Time
Site:	Indian Point
Issue date:	03/30/2015
From:	Sherwin Turk NRC/OGC
To:	NRC/OCM
SECY RAS
References
50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, CLI-15-3, RAS 27431
Download: ML15089A576 (27)

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 RESPONSE TO THE COMMISSIONS MEMORANDUM AND ORDER OF FEBRUARY 18, 2015 (CLI-15-3), REGARDING CONTENTION NYS-35/36 Sherwin E. Turk Counsel for NRC Staff March 30, 2015

ii TABLE OF CONTENTS TABLE OF AUTHORITIES ......................................................................................................... iii INTRODUCTION ....................................................................................................................... 1 BACKGROUND ......................................................................................................................... 1 NRC STAFF RESPONSE TO QUESTIONS PRESENTED ........................................................ 4 QUESTION 1.................................................................................................................. 4 QUESTION 2.................................................................................................................. 6 QUESTION 3................................................................................................................ 10 QUESTION 4................................................................................................................ 18 CONCLUSION ......................................................................................................................... 20

iii TABLE OF AUTHORITIES Page JUDICIAL DECISIONS U.S. Supreme Court Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989)......................................4, 20 U.S. Court of Appeals Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719 (3rd Cir. 1989) ..........................................19 STATUTES Atomic Energy Act of 1954, as amended, 42 U.S.C. § 2011, et seq. ......................................... 4 Atomic Energy Act of 1954, as amended, § 161, 42 U.S.C. § 2201............................................ 4 Atomic Energy Act of 1954, as amended, § 182, 42 U.S.C. § 2232............................................ 4 National Environmental Policy Act of 1969, as amended, 42 U.S.C. 4321, et seq. ..................................................................................................... 2, 4, 19 ADMINISTRATIVE DECISIONS Commission:

Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-03-17, 58 NRC 419 (2003) .......................... 19-20 Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-28, 56 NRC 373 (2002) ................................. 4 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc.

(Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287 (2010) ............................................... 4 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3),

CLI-15-6, 81 NRC __ (Mar. 9, 2015) (slip op.) ........................................................................... 3 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), CLI-15-3, 81 NRC ___ (Feb. 18, 2015) (slip op.) ...................................... 1, 3, 19 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3),

CLI-15-2, 81 NRC __ (Feb. 18, 2015) (slip op.) .......................................................................... 3 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3),

CLI-11-14, 74 NRC 801 (2011) ...............................................................................................3, 4

iv Atomic Safety and Licensing Board:

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

LBP-13-13, 78 NRC 246 (2013), affd in part and revd in part, CLI-15-6, 81 NRC __ (Mar. 9, 2015) (slip op.) ................................................................ 3, 19, 20 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) .......................................................................1, 3 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-10-13, 71 NRC 673, petition for interlocutory review denied, CLI-10-30, 72 NRC 564 (2010) .......................................................................1, 2 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3),

LBP-08-13, 68 NRC 43 (2008) .................................................................................................. 2 REGULATIONS 10 C.F.R. § 2.202....................................................................................................................... 7 10 C.F.R. § 2.202(e)(1) .............................................................................................................. 7 10 C.F.R. § 50.59....................................................................................................................... 6 10 C.F.R. § 50.59(d) .................................................................................................................. 6 10 C.F.R. § 50.90....................................................................................................................... 6 10 C.F.R. § 50.109.............................................................................................................. 4, 5, 6 10 C.F.R. § 50.109(a)(3) .............................................................................................. 5, 7, 8, 10 10 C.F.R. § 50.109(a)(4) ........................................................................................................... 7 10 C.F.R. § 50.109(a)(5) ........................................................................................................... 7 10 C.F.R. § 50.109(c)............................................................................................................8, 10 10 C.F.R. § 50.109(c)(1)-(9) ...................................................................................................5, 8 10 C.F.R. § 50.109(d) ............................................................................................................... 7 10 C.F.R. Part 51 ................................................................................................................ 19, 20 10 C.F.R. Part 51, Subpart A, App. B, Table B-1.......................................................................18 10 C.F.R. § 51.53(c)(3)(ii)(L) ....................................................................................................18

v 10 C.F.R. Part 54 .............................................................................................................. 4, 5, 12 10 C.F.R. § 54.33(b) ................................................................................................................. 5 10 C.F.R. § 54.33(c) .................................................................................................................. 5 MISCELLANEOUS Final Rule, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467, 28,480 (June 5, 1996) ..................................19 Notice of Availability of the Final License Renewal Interim Staff Guidance LR-ISG-2006-03: Staff Guidance for Preparing Severe Accident Mitigation Alternatives Analyses, 72 Fed. Reg. 45,466 (Aug. 14, 2007) .........................................................................................................................11 NRC Inspection Manual, NRC Inspection Procedure 71003, Post-Approval Site Inspection For License Renewal ............................................................... 5 NRC Regulatory Guide (RG) 4.2, Supp. 1, Preparation of Supplemental Environmental Reports for Applications to Renew Nuclear Power Plant Operating Licenses (Sept. 2000) ......................................... 11, 12, 13, 15 Nuclear Energy Institute; Denial of Petition for Rulemaking, 66 Fed. Reg. 10,834 (Feb. 20, 2001) ........................................................................................19 Nuclear Energy Institute (NEI) 05-01, Rev. A, Severe Accident Mitigation Alternatives (SAMA) Analysis - Guidance Document (Nov. 2005) ....................................................................................................... 11, 12, 13, 14, 15 NUREG/BR-0058, Rev. 4, Regulatory Analysis Guidelines of the U.S. Nuclear Regulatory Commission (Sept. 2004) ......................................................... passim NUREG/BR-0184, Regulatory Analysis Technical Evaluation Handbook, Final Report (Jan. 1997) ........................................................................ 7, 11, 16, 17 NUREG-1437, Supplement 38, Vols. 1-3, Final Report, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38 Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Final Report (Dec. 2010) (FSEIS). .................................................... passim NUREG 1437, Vols. 1-2, Main Report, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (May 1996) (GEIS)........................................................................................................ 3, 19, 20

vi NUREG-1437, Supplement 38, Vols. 1-2, Draft Report, 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 (Dec. 2008) (DSEIS). ...................................... 2 NUREG 1555, Standard Review Plans for Environmental Reviews of Nuclear Power Plants: Environmental Standard Review Plan for Operating Reactor License Renewal), Supp. 1 (Oct. 1999) .............................. 11, 15, 17, 18, 19

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 RESPONSE TO THE COMMISSIONS MEMORANDUM AND ORDER OF FEBRUARY 18, 2015 (CLI-15-3), REGARDING CONTENTION NYS-35/36 INTRODUCTION The staff of the U.S. Nuclear Regulatory Commission (Staff or NRC Staff) hereby responds to the questions delineated by the Commission in its Memorandum and Order of February 18, 2015 (CLI-15-3),1 regarding its review of the Atomic Safety and Licensing Boards (Board) decisions in LBP-10-132 and LBP-11-17,3 concerning Contention NYS-35/36.

BACKGROUND The Staff summarized the background of this proceeding in its petition for review of the Boards decisions on Contention NYS-35/36.4 In brief, on April 23, 2007, Entergy Nuclear Operations Inc. (Entergy or Applicant) submitted a license renewal application (LRA) for 1

Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), CLI-15-3, 81 NRC ___ (Feb. 18, 2015) (slip op.) (Order).

2 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-10-13, 71 NRC 673, petition for interlocutory review denied, CLI-10-30, 72 NRC 564 (2010).

3 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) (2011).

4 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) (Feb. 14, 2014) (Staff Petition), at 2-6.

Indian Point Units 2 and 3 (IP2 and IP3). On July 31, 2008, the Board issued LBP-08-13, in which it granted the petitions to intervene filed by New York, Riverkeeper, Inc., and Hudson River Sloop Clearwater, Inc., and admitted 13 consolidated contentions.5 In December 2008, the Staff issued its Draft Supplemental Environmental Impact Statement (DSEIS) for license renewal of IP2 and IP3.6 One year later, Entergy submitted a SAMA reanalysis for Staff review.7 The State of New York (New York) then filed new and amended contentions challenging Entergys SAMA Reanalysis. On June 30, 2010, the Board issued LBP-10-13, in which it, inter alia, admitted and consolidated Contention NYS-35/36 concerning Entergys SAMA Reanalysis, which asserted (a) that the Staff must evaluate Entergys engineering project cost information in estimating SAMA costs under the National Environmental Policy Act of 1969 (NEPA),8 and (b) the Staff must require implementation of cost-beneficial SAMAs as a condition for license renewal or provide a further explanation of why such implementation is not required.9 In December 2010, the Staff issued its Final Supplemental Environmental Impact Statement (FSEIS) for license renewal of IP2/IP3,10 in which it revised and expanded its 5

Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), LBP-08-13, 68 NRC 43 (2008)

(admitting, inter alia, Contentions NYS-12 and NYS-16, regarding Entergys Severe Accident Mitigation Alternatives (SAMA) analysis). See id. at 100-02, 110-13, 218.

6 NUREG-1437, Supplement 38, Vols. 1-2, Draft Report, 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 (Dec. 2008) (DSEIS) (Ex. NYS000132A-D).

7 Letter from Fed Dacimo (Entergy) to NRC Document Control Desk, NL-09-165 (Dec. 11, 2009)

(Ex. ENT000009).

8 National Environmental Policy Act of 1969, as amended, 42 U.S.C. 4321, et seq.

9 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), LBP-10-13, 71 NRC 673, petition for interlocutory review denied, CLI-10-30, 72 NRC 564 (2010).

10 NUREG-1437, Supplement 38, Vols. 1-3, Final Report, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38 Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Final Report (Dec. 2010) (FSEIS) (Ex. NYS000133A-J). In accordance

DSEIS discussion of this issue.11 Motions for summary disposition were then filed by New York, Entergy and the Staff. On July 14, 2011, the Board issued LBP-11-17, granting New Yorks motion for summary disposition and denying Entergys and the Staffs cross-motions for summary disposition of this contention.12 Following the Boards November 2013 issuance of its Partial Initial Decision (PID) on nine Track 1 contentions,13 Entergy and the Staff filed petitions seeking Commission review, inter alia, of the Boards rulings on Contention NYS-35/36.14 On February 18, 2015, the Commission issued CLI-15-3, in which it granted Entergys and the Staffs petitions for review of the Boards rulings on Contention NYS-35/36, and posed four questions to the Staff (as the party responsible for the FSEIS) to assist it in its review of this matter.15 The Staffs responses to the Commissions questions are set forth seriatim below.

with established practice, the FSEIS was issued as a site-specific supplement to NUREG 1437, Vols. 1-2, Main Report, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (May 1996) (GEIS) (Ex. NYS000131A-I).

11 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), CLI-11-14, 74 NRC 801, 805 (2011).

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

13 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), LBP-13-13, 78 NRC 246 (2013),

affd in part and revd in part, CLI-15-6, 81 NRC __ (Mar. 9, 2015) (slip op.).

14 See Staff Petition at 41-59; Applicants Petition for Review of Board Decisions Regarding Contentions NYS-8 (Electrical Transformers), CW-EC-3A (Environmental Justice), and NYS-35/36 (SAMA Cost Estimates) (Feb. 14, 2014) (Entergy Petition), at 43-60. On March 9, 2015, the Commission affirmed in part and reversed in part the Boards PID, resolving Contentions NYS-8 and CW-EC-5 in favor of Entergy and the Staff. Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), CLI-15-6, 81 NRC __ (Mar. 9, 2015) (slip op.).

15 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), CLI-15-3, 81 NRC __ (Feb. 18, 2015), slip op. at 2-4. The Commission also has under consideration New Yorks petition for review of the Boards PID on Contention NYS-12C (SAMA Decontamination Costs), and has issued a Memorandum and Order seeking the parties responses to eight questions related thereto. See Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), CLI-15-2, 81 NRC __ (Feb. 18, 2015), slip op. at 3-4. The Staff is filing a separate response to those questions.

NRC STAFF RESPONSE TO QUESTIONS PRESENTED QUESTION 1 The Indian Point SAMA analysis concludes that risk can be further reduced in a cost-beneficial manner through the implementation of the identified, cost-beneficial SAMAs, and that [g]iven the potential for cost-beneficial risk reduction . . . further evaluation of these SAMAs by Entergy is warranted.

Does the Staff have a process in place to follow up with the licensee to determine which potentially cost-beneficial mitigation alternatives ultimately were found by the licensee to be cost-beneficial, if any, and which alternatives, if any, the licensee implemented? If not, explain why follow-up by the Staff is unwarranted.

STAFF RESPONSE Although not required by NEPA,16 the Staff would follow up with a licensee to determine which potentially cost-beneficial SAMAs are ultimately found to be cost-beneficial and the implementation of cost-beneficial SAMAs, in two specific circumstances. These are: (1) for any SAMAs that relate to managing the effects of aging during the period of extended operation (PEO), the Staff may require further detailed evaluation and implementation, if appropriate, as a condition of license renewal under 10 C.F.R. Part 54;17 and (2) for any SAMAs that are determined to warrant backfitting, the Staff may impose a backfit requirement outside the license renewal process, in accordance with 10 C.F.R. § 50.109.

16 While NEPA requires the NRC to evaluate potentially significant environmental impacts that may result from the proposed action and reasonable alternatives thereto, NEPA does not require the agency to take action to mitigate potential impacts. See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350, 353 (1989); Indian Point, CLI-11-14, 74 NRC at 813; see FSEIS (Ex. NYS000133C) at 5-11. Further, unless implementation of a SAMA is necessary for protection of the public health and safety and/or to promote the common defense and security, such implementation is not required by the Atomic Energy Act of 1954, as amended (AEA), 42 U.S.C. § 2011, et seq. See generally, AEA § 161, 42 U.S.C. § 2201; id., § 182, 42 U.S.C. § 2232.

17 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 293-94 n.26 (2010) (Because none of the . . . potentially cost-effective SAMAs bear on adequately managing the effects of aging, none need be implemented as part of the license renewal safety review, pursuant to 10 C.F.R. Part 54); Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-28, 56 NRC 373, 388 n.77 (2002)

(citing the Staffs similar conclusion); see FSEIS (Ex. NYS000133C) at 5 5.12.

More specifically, if the Staff determines that a potentially cost-beneficial SAMA relates to adequately managing the effects of aging during the period of extended operation, then further evaluation and implementation of that SAMA would be addressed, as appropriate, as a condition of any renewed license pursuant to 10 C.F.R. Part 54.18 Such further evaluation and implementation of a SAMA, if required as a condition of license renewal, would be subject to NRC inspection in accordance with NRC Inspection Procedure 71003 (Ex. ENT000251).19 As discussed below in response to Question 2, if the Staff determines that one or more of the potentially cost-beneficial SAMAs may warrant implementation outside of the license renewal process, the Staff would follow the requirements for backfitting in accordance with 10 C.F.R. § 50.109. In that situation, the Staff would likely contact the licensee to confirm the costs and risk reductions associated with the specific SAMA(s). As part of its review, the Staff would consider whether any other SAMAs or plant modifications or procedures have been implemented or are planned by the licensee that might affect the Staffs backfit considerations.

Upon conclusion of the Staffs review, a decision would be made whether to continue to pursue a backfit, in accordance with the process delineated in 10 C.F.R. § 50.109(a)(3) and (c)(1)-(9).20 In the Staffs FSEIS, the Staff observed that none of the potentially cost-beneficial SAMAs for Indian Point license renewal are related to adequately managing the effects of aging during the PEO. Therefore, the Staff concluded that none of the SAMAs must be implemented for license renewal under 10 C.F.R. Part 54. FSEIS Appendix G (Ex. NYS000133-I) at G-49.

18 10 C.F.R. § 54.33(b); see also 10 C.F.R. § 54.33(c) (a renewed license will include conditions to protect the environment that were imposed pursuant to 10 CFR 50.36b and that are part of the CLB for the facility, which may be supplemented or amended as necessary to protect the environment during the term of the renewed license based on information contained in the ER as analyzed and evaluated in the NRC record of decision).

19 NRC Inspection Manual, NRC Inspection Procedure 71003, Post-Approval Site Inspection For License Renewal (Ex. ENT000251), at 1.

20 See generally, NUREG/BR-0058, Rev. 4, Regulatory Analysis Guidelines of the U.S. Nuclear Regulatory Commission (Sept. 2004) (Ex. ENT000013), at 34-35.

For those SAMAs that neither relate to managing the effects of aging during the PEO, nor are identified as possibly warranting consideration under the backfit process (i.e., outside of the license renewal process), the licensee may voluntarily determine on its own to implement any SAMA that it deems appropriate or warranted. In that event, the Staff would generally become aware of and monitor the licensees actions implementing those SAMA(s) through the normal reactor inspection and oversight process.21 In this regard, the licensees actions implementing the SAMAs would likely be subject to licensee change evaluations (which are maintained as plant records) under 10 C.F.R. § 50.59 or the license amendment process under 10 C.F.R. § 50.90, and would be identifiable by the NRC Staff.

QUESTION 2 The SAMA analysis concludes that any potentially cost-beneficial SAMAs that do not relate to 10 C.F.R. Part 54 requirements 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.

Under what circumstances, if any, would the Staff judge a potentially cost-beneficial mitigation alternative to warrant further NRC consideration outside of the license renewal review, either via a backfit analysis under 10 C.F.R. § 50.109 or as part of another process? For example, is there any level of reduction in risk metric valuese.g., core damage frequency or large early release frequency that is or ought to be considered to determine whether a potentially cost-beneficial mitigation alternative warrants additional NRC consideration under Part 50?

STAFF RESPONSE Outside the license renewal review, the Staff would utilize the backfit process in 10 C.F.R. § 50.109 and related regulatory guidance to determine whether a mitigation 21 See 10 C.F.R. § 50.59(d); any inspections would be conducted in accordance with established NRC inspection procedures. Entergys witnesses testified that Indian Point SAMAs that were identified as potentially cost-beneficial would be entered into the licensees process for further evaluation, along with other potential improvements that may improve plant safety, to determine whether they should be implemented. Transcript of Evidentiary Hearing (Oct. 17, 2012), Tr. at 1921, 1923-25.

alternative warrants further NRC consideration and/or implementation.22 As part of this process, the Staff would perform a backfit analysis to assist in determining whether a proposed regulatory requirement or plant modification, identified as a backfit, constitutes a cost-justified substantial safety enhancement23 and should be adopted.24 Potentially cost-beneficial SAMAs would typically be considered under § 50.109(a)(3), which states:

[T]he Commission shall require the backfitting of a facility only when it determines, based on the analysis described in paragraph (c) of this section, 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.

In implementing the Backfit Rule, the Staff follows the requirements of the rule and published regulatory guidance documents, including two documents that are in evidence in this proceeding: (1) NUREG/BR-0058, Rev. 4, Regulatory Analysis Guidelines of the U.S. Nuclear Regulatory Commission (Sept. 2004) (Ex. ENT000013), and (2) NUREG/BR-0184, Regulatory Analysis Technical Evaluation Handbook, Final Report (Jan. 1997) (Ex. ENT00010A-D).25 22 The regulation in 10 C.F.R. § 50.109(d) states that no licensing action will be withheld during the pendency of backfit analyses required by the Commissions rules. Thus, if the Staff determines to conduct a backfit analysis for a SAMA identified in the license renewal process, § 50.109(d) indicates that the action of license renewal would not be withheld to await completion of the backfit analysis.

23 See, e.g., NUREG/BR-0058 (Ex. ENT000013) at 11, Fig. 3.1 (Regulatory Analysis for Nuclear Power Plant Cost-Justified Substantial Safety Enhancements).

24 The NRC could order a licensee to make plant modifications pursuant to 10 C.F.R. § 2.202.

See 10 C.F.R. § 2.202(e)(1) (If the order involves the modification of a part 50 license and is a backfit, the requirements of § 50.109 of this chapter shall be followed, unless the licensee consents to the action required). Cf. 10 C.F.R. § 50.109(a)(4) (a backfit analysis need not be performed if the action is necessary for compliance, to ensure that the facility affords adequate protection of public health and safety and is in accord with the common defense and security, or involves defining or redefining what level of protection . . . should be regarded as adequate); 10 C.F.R. § 50.109(a)(5) (adequate protection).

25 The guidance indicates that traditional cost/benefit analysis, as performed in the NRCs Regulatory Analyses, will satisfy the backfitting requirement that actions be shown to be cost-beneficial.

NUREG/BR-0058 (Ex. ENT000013) at 2 n. 2.

The staff can consider several factors (including the factors identified in

§ 50.109(c)(1)-(9)) to determine whether the backfit would provide a cost-justified substantial increase in protection to public health and safety or common defense and security.26 For backfits associated with nuclear reactors, the staff typically uses, if applicable, a safety goal screening evaluation to address the substantial increase in safety criterion.27 NUREG/BR-0058 states that [i]f the proposed safety goal screening criteria are satisfied, the NRC considers that the substantial additional protection standard is met for the proposed new requirement.28 NUREG/BR-0058 (Ex. ENT000013), Section 3.3.1 (Prevention of Core Damage Accidents -Comparison with Subsidiary Goal for Core Damage Mean Frequency of 10-4 per Reactor Year) presents screening criteria for the safety goal evaluation process that can be used to screen out actions strictly based on the identified reduction in core damage frequency when compared to containment performance, without any consideration of implementation costs.29 Specifically, Figure 3.2, Safety Goal Screening Criteria, reproduced below, presents the quantitative screening criteria.

26 Among the nine criteria listed in Section 50.109(c) that are to be considered in reaching the determination required by § 50.109(a)(3), is (3) Potential change in the risk to the public from the accidental off site release of radioactive material.

27 The guidance indicates that [s]afety goal evaluations are to be performed in conjunction with the substantial additional protection criterion contained in the backfit rule (10 CFR 50.109(a)(3)) and applied to 10 CFR 50.109 analyses associated with substantial safety enhancements wherein the costs of the implementation are justified in view of the safety improvement to be realized. NUREG/BR-0058 (Ex. ENT000013) at 10.

28 Id. at 8.

29 Once the staff determines that the potential backfit would result in a substantial increase in protection, it determines whether the backfit is cost-justified in light of this increased protection. See discussion infra, at 9.

1E-03 Change in Core Damage Proceed to V/I Portion of Proceed to V/I Portion of Regulatory Regulatory Analysis Analysis (Priority) 1E-04 Management Decision Whether to Proceed with Proceed to V/I Portion of Regulatory Frequency (CDF/RY)

V/I Portion of Regulatory Analysis Analysis 1E-05 Management Decision Whether to No Action Taken Proceed with V/I Portion of Regulatory Analysis 1E-06 1E-02 1E-01 Estimated Conditional Containment Failure Probability 30 Figure 3.2 Safety Goal Screening Criteria For example, for nuclear power plants that have a conditional containment failure probability (CCFP) of less than 1E-01 (i,e., less than one in ten), the analyst would use the 1E-02 column of Figure 3.2 in the safety goal evaluation screening process. 31 As indicated in that column, if a proposed plant enhancement would reduce the annual core damage frequency by more than 1E-4/reactor-year (RY), then the analysis would proceed to the cost-justification portion of the process to determine if the enhancement was justified to implement as a backfit.32 30 NUREG/BR-0058 (Ex. ENT000013) at 14. The column 1E-02 refers to a conditional containment failure probability (CCFP) of greater than 1E-02 and less than 1E-01; the column 1E-01 refers to a CCFP of greater than 1E-01 and less than 1. While Figure 3.2 refers to the CCFP, in Section 3.3.2 of the guidance, this measure is referred to as the conditional probability of early containment failure or bypass (CPCFB). Id. at 15.

31 See id. at 13-14.

32 Id. at 14. NUREG/BR-0058 further states as follows:

In light of the inherent uncertainties of current PRA analysis, a reduction in CDF will be considered to be clearly substantial if the

-4 reduction is equal to or greater than 10 per reactor year. If the reduction

-4 in CDF is 10 percent or more of the subsidiary safety goal of 10 in

-4 mean CDF per reactor year but less than 10 , consideration should be given to the probability of containment failure before a conclusion is reached on whether the reduction in CDF constitutes substantial additional protection. As illustrated in Figure 3.2, this means that, with certain exceptions as discussed later in this document, regulatory

If a proposed plant enhancement would reduce the annual core damage frequency by less than 1E-5/RY, then the analysis would typically be terminated since the proposed enhancement would not be characterized as having a substantial benefit.33 Proposed plant enhancements that are determined to have a reduction in core damage frequency of between 1E-4/RY and 1E-5/RY fall into an area of management discretion.34 If the safety goal evaluation results in a decision to proceed to the cost-justification phase, then the analysis may presume that the substantial additional protection standard of 10 CFR 50.109(a)(3) is achievable.35 In sum, NRC regulations allow the Staff to identify, evaluate, and, if determined appropriate, require the implementation of enhancements that constitute cost-justified substantial increases in safety. The provisions for these types of backfits are set forth in 10 C.F.R.§§ 50.109(a)(3) and (c) and related regulatory guidance, which provides quantitative risk criteria for use in deciding whether an action should be pursued as a cost-justified substantial increase in safety backfit.

QUESTION 3 The Staff states that it does not require license renewal applicants to finalize their SAMA calculations by including engineering project costs in their analyses.

What level of uncertainty does the Staff consider acceptable for the implementation cost portion of the cost-benefit analysis, and why?

initiatives involving new requirements to prevent core damage should

-5 result in a reduction of at least 1x10 in the estimated mean value CDF (i.e., the CDF before the proposed regulatory change should exceed the

-5 CDF after the change by at least 1x10 ) in order to justify proceeding with further analyses. . . .

NUREG/BR-0058 (Ex. ENT000013), at 13.

33 Id. at 14.

34 Id.

35 Id. at 16. In this case, the initiative should then be assessed further to determine the costs associated with the action to make a final determination if the action is cost-justified. Id.

STAFF RESPONSE The Staff seeks to assure that an applicants SAMA cost estimates, as well as its estimates of the potential benefits of those SAMAs, are reasonable, in accordance with the requirements of NEPA. The Staff does not seek certainty in an applicants SAMA cost estimates, nor has the Staff established any particular level of uncertainty that must be avoided.

Rather, the Staff recognizes that uncertainties exist on both sides of the cost-benefit analysis, but seeks to assure that the applicants SAMA analysis provides a reasonable estimate or approximation of the potential costs and benefits of each SAMA. As indicated in Staff guidance documents discussed below, the Staff considers that the use of reasonable estimates in a SAMA analysis provides sufficient information for decision-makers and the public to assess the environmental impacts and alternatives of license renewal, as required by NEPA.

The Staff utilizes several regulatory guidance documents to assist it in its review of these estimates, including (1) NRC Regulatory Guide (RG) 4.2, Supplement 1, Preparation of Supplemental Environmental Reports for Applications to Renew Nuclear Power Plant Operating Licenses (Sept. 2000) (Ex. ENT000136); (2) guidance in Nuclear Energy Institute (NEI) 05-01, Rev. A, Severe Accident Mitigation Alternatives (SAMA) Analysis - Guidance Document (Nov.

2005) (Ex. NYS000287);36 (3) NUREG/BR-0058 (Ex. ENT000013), supra; (4) NUREG/BR-0184 (Ex. ENT00010A-D), supra; and (5) NUREG 1555, Standard Review Plans for Environmental Reviews of Nuclear Power Plants: Environmental Standard Review Plan for Operating Reactor License Renewal), Supp. 1 (Oct. 1999) (Ex. ENT00019A-B).

36 The Staff has approved the use of NEI 05-01, Rev. A, for preparation of license renewal SAMA analyses. See Notice of Availability of the Final License Renewal Interim Staff Guidance LR-ISG-2006-03: Staff Guidance for Preparing Severe Accident Mitigation Alternatives Analyses, 72 Fed. Reg. 45,466, 45,467 (Aug. 14, 2007) (Ex. ENT000451).

(1) Regulatory Guide 4.2 Regulatory Guide 4.2, Supp. 1 (Ex. ENT000136), provides guidance on the format and content of an environmental report (ER) to be submitted as part of an application for renewal of a nuclear power plant operating license submitted pursuant to 10 C.F.R. Part 54. With regard to SAMA analyses, RG 4.2 advises license renewal applicants to estimate the approximate cost of each modification and procedural and administrative change that reduces the dose consequence risk of severe accidents.37 It further states that [p]otential SAMAs that are not expected to be cost beneficial, even when uncertainties in the analysis (e.g., a factor of 10) are taken into consideration, may be screened out based on a bounding analysis;38 these are referred to as Phase I SAMAs in NEI 05-01, Rev. A.39 For the SAMAs that remain after this screening, RG 4.2 recommends that licensees [p]erform a more detailed value-impact analysis

. . . to identify any plant modifications and procedural and administrative changes that may be cost effective;40 these are referred to as Phase II SAMAs in the NEI guidance.41 Regulatory Guide 4.2 instructs license renewal applicants that their SAMA analyses may be guided by analyses performed for previous applications for renewal of operating licenses and by the Staff in its GEIS supplements, and should consider the methodology presented in NUREG/BR-0184.42 Further, RG 4.2 instructs that [t]he results of the following analytical steps should be presented in the ER, and the methodology or analytical process should be described:

37 RG 4.2 (Ex. ENT000136), § 4.20 (Severe Accident Mitigation Alternatives), at 4.2-S-50.

38 Id.

39 See NEI 05-01 (Ex. NYS000287), at 25-26.

40 RG 4.2 (Ex. ENT000136), at 4.2-S-50 41 See NEI 05-01 (Ex. NYS000287), at 27-29.

42 RG 4.2 (Ex. ENT000136), at 4.2-S-49.

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

6. Perform a more detailed value-impact analysis for remaining SAMAs to identify any plant modifications and procedural changes that may be cost effective (see Chapter 5 of NUREG/BR-0184).

7. List plant modifications and procedural changes (if any) that have or will be implemented to reduce the severe accident dose consequence risk.43 (2) NEI 05-01, Rev. A NEI 05-01, Rev. A (Ex. NYS000287) provides a template for license renewal applicants to complete their SAMA analyses for license renewal, and seeks to identify the information that should be included in the SAMA portion of an applicants ER to reduce the necessity for issuance of NRC Staff requests for additional information.44 The method described in NEI 05-01, Rev. A relies upon NUREG/BR-0184 regulatory analysis techniques and incorporates insights gained from review of NRC evaluations of [previous] SAMA analyses and associated RAIs.45 The NEI guidance establishes a process whereby potential actions first undergo a preliminary screening in a Phase I SAMA analysis. SAMAs that are determined to be potentially beneficial in Phase I of the analysis then undergo Final Screening in a Phase II SAMA Analysis. In Phase II of the analysis, applicants are instructed to [e]stimate the benefit of severe accident risk reduction to each remaining SAMA candidate and compare to an 43 Id. at 4.2-S-50.

44 NEI 05-01 (Ex. NYS000287), at 1.

45 Id.

implementation cost estimate to determine net cost-benefit (Section 7).46 The guidance instructs that in an implementation cost estimate, all costs associated with the SAMA should be considered including design, engineering, safety analysis, installation, and long-term maintenance, calibrations, training, etc. that will be required as a result of the change. 47 NEI 05-01, Section 7.2 (Cost of SAMA Implementation) instructs license renewal applicants that their cost estimates should describe the cost estimating process and the resulting cost estimates for each Phase II SAMA candidate. The guidance further states that, often detailed cost estimates are not required to make informed decisions regarding the economic viability of a particular modification, as in clear cases; and that for less clear cases, engineering judgment may be applied.48 Finally, NEI 05-01 advises that even those SAMAs which appear to be cost-beneficial following the conclusion of Phase II and sensitivity analyses should be regarded still as only potentially cost-beneficial - and the SAMA analysis is not intended to determine whether an identified SAMA is actually cost-beneficial or whether its implementation is warranted:

This analysis may not estimate all of the benefits or all of the costs of a SAMA. For instance, it may not consider increases or decreases in maintenance or operation costs following SAMA implementation. Also, it may not consider the possible adverse consequences of procedure changes, such as additional personnel dose. Since the SAMA analysis is not a complete engineering project cost-benefit analysis, the SAMAs that are 46 Id. at 2.

47 Id.

48 Id. at 28. The performance of sensitivity analyses is discussed in NEI 05-01, § 8, regarding the PSA or PRA model;, it does not discuss sensitivity analyses for implementation cost estimates. The guidance instructs that the SAMA analysis should include a discussion of CDF uncertainty, and conservatisms in the SAMA analysis that off-set uncertainty. For example, use of conservative risk modeling to represent a particular plant change may be used to offset uncertainty in risk modeling; use of conservative implementation cost estimates may be used to offset uncertainty in cost estimates; and use of an uncertainty factor derived from the ratio of the 95th percentile to the mean point estimate for internal events CDF may be used to account for CDF uncertainties. Id. at 30 (emphasis added).

cost-beneficial after the Phase II analysis and sensitivity analyses are only potentially cost-beneficial.49 As suggested in NEI 05-01, detailed estimates are not required to make informed decisions about the economic viability of a modification. As such, the staff does not require a detailed cost estimate for SAMAs. An order-of-magnitude cost estimate is sufficient for the purpose of determining whether a SAMA is economically viable.50 Further, as suggested in NEI 05-01, the use of cost estimates for previously-studied SAMAs (which would include SAMA cost estimates calculated for other plants) is acceptable. 51 Finally, as indicated in the Staffs testimony, the costs of implementing a SAMA are generally conservative in that they neglect certain cost factors (e.g., surveillance/ maintenance, the cost of replacement power during implementation), therefore tending to increase the number of potentially cost beneficial SAMAs.52 49 This approach was followed by Entergy here. See, e.g., LRA, Environmental Report (Ex. ENT000015B), at E.2 E.2-3 (the expected cost of implementation of each SAMA was established from existing estimates of similar modifications at other plants). Additionally, Entergy described various conservatisms in its cost estimates, such as omission of the cost of replacement power during extended outages required to implement the modifications, contingency costs associated with unforeseen implementation obstacles, and inflation adjustments to present-day dollars. Entergy therefore concluded that the cost estimates were conservative. Id. at E.2-3. The Staff approved Entergys cost estimate methodology and its resulting cost estimates. See FSEIS (Ex. NYS000133-I),

at G G-35, G G-40, and G-49.

50 See, e.g., NUREG-1555, Supp. 1 (Ex. ENT00019B) at 5.1.1-7 (SAMA estimates within a decade of the Staffs guidance values, to account for uncertainties); RG 4.2 (Ex. ENT000136),

at 4.2-S-50 (uncertainties of e.g. factor of 10).

51 NRC Staff Testimony of Nathan E. Bixler, S. Tina Ghosh, Joseph A. Jones, and Donald G.

Harrison Concerning NYS Contentions NYS 12/16 (Mar. 30, 2012) (NRC Staff Testimony on Contentions NYS-12/16) (Ex. NRC000041), at 20. As the Staffs witnesses noted, [c]ost estimates for hardware modifications can be taken from past studies performed for a similar plant, or developed on a plant-specific basis. Procedure and training cost estimates are typically estimated based on plant experience. Cost estimates are generally conservative in that they neglect certain cost factors (e.g.,

surveillance/maintenance, the cost of replacement power during implementation), therefore tending to increase the number of potentially cost beneficial SAMAs. Id.

52 Id.

(3) NUREG/BR-0058 NUREG/BR-0058, Rev. 4 (Ex. ENT000013) provides guidance concerning the uncertainties that may be present in a SAMA analysis. This guidance document indicates that an applicant should provide best estimates of SAMA costs and benefits, and recognizes that uncertainty may exist in those estimates. The guidance further states:

Uncertainties are important to consider and need to be presented in a regulatory analysis. However, common sense needs to be applied in determining the level of effort to be given to the consideration and discussion of uncertainty. In general, the detail and breadth of the uncertainty analysis should be commensurate with the overall policy significance, complexity, and level of controversy, as well as the perceived importance of the uncertainties to the bottom line conclusion. Thus, to the extent practical, the sources and magnitudes of uncertainties in value and impact estimates should be discussed in the regulatory analyses. In addition, best available peer-reviewed studies, and data collected by accepted or best available methods, should be utilized and discussed. Specifically, expected values, expressions of uncertainty that can be presented in terms of upper- and lower-bounds, and studies, data, and methodologies that support or fail to support the value and impact estimates must, to the extent practical, be reported in the regulatory analysis. Hypothetical best-and worst-case values and impacts can also be estimated from sensitivity analyses. Sensitivity analysis can be used in addition to, or in lieu of, formal uncertainty analysis. It should be exercised when uncertainty analysis is impractical or exceedingly complicated and costly. Additional information on incorporating uncertainties and sensitivities in a regulatory analysis is in the Handbook.53 (4) NUREG/BR-0184 NUREG/BR-0184 (Ex. ENT00010A-D) (the Handbook) was published to promote preparation of quality regulatory analysis documents and to implement the policies of [ ]

NUREG/BR-0058 Rev. 2.54 The Handbook expands upon policy concepts in NUREG/BR-0058 53 NUREG/BR-0058 (Ex. ENT000013), at 23-24. The Handbook referred to in this paragraph is NUREG/BR-0184 (Ex. ENT00010A-D).

54 NUREG/BR-0184 (Ex. ENT00010A) at iii.

and provides standardized methods of preparation and presentation of regulatory analyses.55 Section 5.4 (Treatment of Uncertainty) observes that uncertainties are to be addressed in those analyses, both for exposure and cost measures.56 In particular, Section 5.4.4 observes that:

Uncertainty/sensitivity analysis for the cost measures is generally simpler than that for exposures. Complex accident scenarios are not involved. Moreover, the analyst usually has a better "feel" for cost-related measures (e.g., labor rates, interest rates, and equipment costs) than for risk-related ones. Thus, such analyses require no more than the straightforward variation of interest rates, labor hours, contingency factors, etc. However, the analyst is cautioned that, while the calculational techniques may be simple, wide ranges can still result.57 The Handbook provides examples of the types of costs that should be considered and data sources from which cost information may be obtained, and instructs that [w]hen performing a sensitivity analysis, but not for the best estimate, the analyst should include contingencies.58 (5) The Environmental Standard Review Plan for License Renewal.

The ESRP, NUREG-1555, Supp. 1 (Oct. 1999) (Ex. ENT00019A-B) also provides guidance concerning uncertainties that may exist in a SAMA cost analysis. Section 5.1.1 of the ESRP directs the Staff to [e]valuate the benefit-cost comparison to determine if it is consistent with the benefit-cost balance criteria and methodology given in NUREG/BR-0058, Rev. 2 [ ],

and further analyze any SAMAs that are within a decade of the NUREG/BR-0058, Rev. 2, or NUREG/CR-6349 (Mubayi et al. 1995) benefit-cost criteria to ensure that a sufficient margin is 55 Id.

56 Id. at 5.3.

57 Id. at 5.8.

58 NUREG/BR-0184 (Ex. ENT00010B) at 5.50. The Handbook suggests use of certain construction project contingency allowances (adding different contingency allowances at the conceptual, schematic, and preliminary working drawing stages); cites a computer code which contains an option to include an allowance for uncertainty and cost variations at the summary cost level; and cites Electric Power Research Institute guidelines which suggest applying two separate contingency factors, one for projects to cover costs resulting from more detailed design, and one for process to cover costs associated with uncertainties of implementing a commercial-scale new technology. Id.

present to account for uncertainties in assumptions used to determine the cost and benefit estimates.59 QUESTION 4 The Staff states that even if the NRC had authority to require implementation of mitigation alternatives for license renewal, there is no reason to require such SAMAs for environmental protection purposes because the Generic Environmental Impact Statement (GEIS) for reactor license renewal has already found the probability- weighted consequences of . . . severe accidents to be SMALL for all plants, and Indian Point Units 2 and 3 fall within these generic determinations.

Given that the SMALL probability-weighted impacts finding applies generically to all plants, why does the Staff expect a SAMA analysis to be a comprehensive, systematic effort to identify and evaluate [ ] potential plant enhancements to mitigate severe accidents?

STAFF RESPONSE The Staff performs an evaluation of a license renewal applicants SAMA analysis as part of its review of the license renewal application, in accordance with 10 C.F.R. § 51.53(c)(3)(ii)(L)

- which requires the Staffs FSEIS to consider alternatives to mitigate severe accidents if the Staff has not previously considered SAMAs for that plant in an EIS or related supplement or an environmental assessment. In addition, SAMA analyses are required by 10 C.F.R. Part 51, Subpart A, App. B, Table B-1, which states, in pertinent part, as follows:

Postulated Accidents Design- 1 SMALL. The NRC staff has concluded that the environmental impacts of basis design-basis accidents are of small significance for all plants.

accidents Severe 2 SMALL. The probability-weighted consequences of atmospheric releases, accidents fallout onto open bodies of water, releases to groundwater, and societal and economic impacts from severe accidents are small for all plants.

However, alternatives to mitigate severe accidents must be considered for all plants that have not considered such alternatives.

59 NUREG-1555, Supp. 1 (Ex. ENT00019B) at 5.1.1-7 (emphasis added).

The Commission adopted the requirement to consider SAMAs on a site-specific basis, in part, in response to the decision in Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719, 739, 741 (3rd Cir. 1989),60 in which the court held that NEPA requires the NRC to take a hard look at severe accident mitigation design alternatives on a site-specific basis if it has not already done so.61 The court in Limerick did not prescribe how the agency must perform its evaluation of SAMAs to satisfy its hard look obligations under NEPA, nor did the Commission do so in promulgating this requirement in Part 51.62 The Staff adopted a rigorous approach (requiring SAMA analyses to be a comprehensive, systematic effort to identify and evaluate [ ] potential plant enhancements to mitigate severe accidents),63 in order to assure that its FSEIS evaluations in license renewal proceedings will withstand any possible claim that the agency has not taken a hard look at the environmental impacts of license renewal and reasonable alternatives thereto under NEPA.64 Regulatory guidance has been published to assure that 60 See Final Rule, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467, 28,480 (June 5, 1996) (1996 Statement of Consideration).

61 The court rejected the Commissions generic treatment of this issue in a policy statement, finding that [h]ere, the NRC excluded consideration of design alternatives through a generic policy statement rather than through careful consideration. Because the action not to consider SAMDAs was promulgated as a policy statement, rather than a rule, and because it applies to an issue that we find is unlikely to be treated as generic, it does not meet the Baltimore Gas criteria for a generic rulemaking and therefore SAMDAs must be given careful consideration. Limerick, 869 F.2d at 741. In 1996, the Commission issued the GEIS for license renewal and adopted its revisions to 10 C.F.R. Part 51; in 2001, the Commission reaffirmed its determination to require site-specific consideration of SAMAs, denying a petition for rulemaking that requested elimination of this requirement. See Nuclear Energy Institute; Denial of Petition for Rulemaking, 66 Fed. Reg. 10,834, 10,838 (Feb. 20, 2001) (the NRC must continue to consider SAMAs for issuance of a new or renewed operating license for a power reactor in order to meet its responsibilities under [NEPA] - finding that insufficient information was available at this time to support generic SAMA impact conclusions, and further Staff evaluation was needed to reach those conclusions before the site-specific SAMA requirement could be changed).

62 See generally, 1996 Statement of Consideration, 61 Fed. Reg. at 28,480 - 24,481.

63 CLI-15-3, slip op. at 4, quoting NUREG-1555, Supp.1, at 5.1.1-7 to 5.1.1.8.

64 In its PID, the Board observed that SAMA analyses, as issues of mitigation, need only be discussed in sufficient detail to ensure that environmental consequences [of the proposed project] have been fairly evaluated. LBP-13-13, 78 NRC at 453, citing 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) (quoting

license renewal applicants provide sufficient information to permit the Staff to conduct a thorough evaluation of potentially cost-beneficial SAMAs for each facility on a site-specific basis, notwithstanding the Commissions generic rulemaking determination in 10 C.F.R. Part 51 that the probability-weighted impacts of severe accidents is SMALL for all plants.65 CONCLUSION The Commissions regulations in 10 C.F.R. Part 51 require the Staff to perform a site-specific evaluation of an applicants SAMAs as part of its license renewal review. The Staffs FSEIS (Ex. NYS000133A-J) presented a thorough evaluation of potentially cost-beneficial SAMAs for IP2 and IP3, considered appropriate information regarding implementation costs, and provided a rational explanation of why the SAMAs identified as potentially cost-beneficial need not be implemented as a condition for IP2/IP3 license renewal. The Staff respectfully submits that the Boards rulings on Contention NYS-35/36 should be reversed.

Signed Electronically by Sherwin E. Turk Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-1533 E-mail: Sherwin.Turk@nrc.gov Dated at Rockville, Maryland this 30th day of March 2015 Methow Valley, 490 U.S. at 353). The Board concluded that Entergys SAMA analysis and the Staffs SAMA evaluation were sufficiently site specific and reasonable under NEPA, with respect to the issues raised in Contentions NYS-12C and NYS-16. Id. at 465-66, 470-71, 474.

65 The GEIS identifies SMALL impacts as [e]nvironmental effects [that] are not detectable or are so minor that they will neither destabilize nor noticeable alter any important attribute of the resource.

For the purposes of assessing radiological impacts, the Commission has concluded that those impacts that do not exceed permissible levels in the Commissions regulations are considered small. Id.

(Ex. NYS000131A), Executive Summary at xxxv.

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) )

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I hereby certify that copies of the foregoing NRC STAFFS RESPONSE TO THE COMMISSIONS MEMORANDUM AND ORDER OF FEBRUARY 18, 2015 (CLI-15-3), REGARDING CONTENTION NYS-36/36, dated March 30, 2015, have been served upon the Electronic Information Exchange, the NRCs E-Filing System, in the above-captioned proceeding, this 30th day of March, 2015.

/Signed (electronically) by/

Sherwin E. Turk Counsel for NRC Staff Office of the General Counsel U.S. Nuclear Regulatory Commission Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-1533 E-mail: Sherwin.Turk@nrc.gov Date of Signature: March 30, 2015