ML15090A771

Redacted Memorandum and Order Granting Motions for Leave to File Amendments to Contentions

ML15090A771
Person / Time
Site:	Indian Point
Issue date:	03/31/2015
From:	Kennedy M, Lawrence Mcdade, Richard Wardwell Atomic Safety and Licensing Board Panel
To:
SECY RAS
References
50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS 27439
Download: ML15090A771 (18)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Lawrence G. McDade, Chairman Dr. Michael F. Kennedy Dr. Richard E. Wardwell In the Matter of Docket Nos. 50-247-LR and 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. ASLBP No. 07-858-03-LR-BD01 (Indian Point Nuclear Generating Units 2 and 3) March 31, 2015 MEMORANDUM AND ORDER (Granting Motions for Leave to File Amendments to Contentions NYS-25 and NYS-38/RK-TC-5)

Before the Board are motions for leave to supplement two previously admitted contentions, NYS-25 and joint contention NYS-38/RK-TC-5. These motions were filed after the publication of Supplement 2 to NUREG-1930, Safety Evaluation Report Related to the License Renewal of Indian Point Generating Unit Nos. 2 and 3 (SSER2).1 We first address the legal standards for amending contentions and then separately discuss each contention and its associated motion.

I. Legal Standards Governing Amended Contention Admissibility To be admissible, a new or amended contention must satisfy the good cause requirements of 10 C.F.R. § 2.309(c)(1) showing that:

(i) The information upon which the filing is based was not previously available; (ii) The information upon which the filing is based is materially different from information previously available; and (iii) The filing has been submitted in a timely fashion based on the availability of the subsequent information.

1 On June 10, 2013, the Board, in the interest of judicial economy, had directed the intervenors to postpone the filing of new or amended contentions addressing issues related to these contentions until after the publication of SSER2. See Tr. at 4531-35.

In addition, it must also meet the substantive contention admissibility standards set forth in 10 C.F.R. § 2.309(f)(1). Namely, the contention must:

(i) Provide a specific statement of the issue of law or fact to be raised or controverted . . . ;

(ii) Provide a brief explanation of the basis for the contention; (iii) Demonstrate that the issue raised in the contention is within the scope of the proceeding; (iv) Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; (v) Provide a concise statement of the alleged facts or expert opinions which support the requestors/petitioners position on the issue . . . ; [and]

(vi) . . . . [P]rovide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact.2 These rules are strict by design,3 and exist to focus litigation on concrete issues and result in a clearer and more focused record for decision.4 The failure of an intervenor to comply with any of these requirements is grounds for the Board not to admit a contention.

II. NYS-25 A. Background Admitted contention NYS-25 alleges that Entergys LRA does not include an adequate plan to monitor and manage the effects of aging due to embrittlement of the reactor pressure vessels (RPVs) and the associated internals.5 In its petition to intervene, New York asserted that embrittlement of the RPVs and their associated internals is one of the most important age-related phenomena . . . [and that] [f]ailure to carefully consider the effects of embrittlement could result in a meltdown of the core . . . .6 New York argued that the LRA was deficient because it 1) [did] not 2

10 C.F.R. § 2.309(f)(1).

3 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 2), CLI-03-14, 58 NRC 207, 213 (2003).

4 Changes to Adjudicatory Process, 69 Fed. Reg. 2,182, 2,202 (Jan. 14, 2004).

5 LBP-08-13, 68 NRC 43, 129, 131 (2008).

6 New York State Notice of Intention to Participate and Petition to Intervene (Nov. 30, 2007) at 224

[hereinafter NYS Petition] (quoting NYS Petition, attach. 2, Decl. of Dr. Richard T. Lahey, Jr. ¶ 6)

(Nov. 30, 2007) [hereinafter Lahey Decl.]. Specifically, New Yorks expert Dr. Richard Lahey stated that embrittlement adversely affects the reactors ability to withstand pressurized thermal shock transients. Lahey Decl. ¶ 12.

include any mention that Entergy performed any age-related accident analyses, 2) did not include any mention that it took embrittlement into account when it assessed the effect of transient loads, and 3) failed to discuss how embrittled RPVs and RPV internal structures and components would respond to the highly transient severe decompression shock loads associated with a [design basis accident] DBA [loss of coolant accident] LOCA.7 On September 15, 2010, New York sought leave to file additional bases to NYS-25 in response to Entergys Ninth Amendment to the LRA, NL-10-063, which added an aging management program for reactor pressure vessels and internal components.8 The additional bases refocused the contention from one of omission to one of inadequacy.9 In this motion, New York argued that Entergys AMP for Indian Points reactor pressure vessels and internal components did not meet the requirements of 10 C.F.R. § 54.51(c)(1)(iii) because it:

(1) fail[ed] to consider the synergistic effects of embrittlement and metal fatigue on RPV and internals; (2) fail[ed] to provide sufficient objective details about when it will conduct and complete baseline inspections and measurements; (3) fail[ed] to provide sufficient objective details about how and when it will implement corrective actions to address problems identified with embrittlement; (4) fail[ed] to include adequate inspection techniques to identify embrittlement issues for certain RPV internals, including bolts; and (5) rel[ied] on vague future commitments to undertake corrective action when Entergy has encountered difficulties in tracking and completing commitments and corrective actions in a timely manner.10 According to New York, reactor pressure vessel internal components that should have been, but were not, analyzed for combined, synergistic aging effects of embrittlement and fatigue included:

7 NYS Petition at 224 (quoting Lahey Decl. ¶ 15).

8 State of New Yorks Motion for Leave to File Additional Bases for Previously-Admitted Contention NYS-25 in Response to Entergys July 14, 2010 Proposed Aging Management Program for Reactor Pressure Vessels and Internal Components (Sept. 15, 2010). In support of the additional bases New York also filed additional supporting evidence and a second declaration from Dr.

Richard Lahey dated September 15, 2010. Id. at 2.

9 Id. at 5.

10 Id., 6.

the core baffle, intermediate shells, former plates and bolts (particularly the re-entrant corners), and including the baffle-to-baffle bolt locations, the core barrel-to-former bolt locations, and baffle-to-former bolt locations, core barrel (and its welds),

lower core plate and support structures, clevis bolts, fuel alignment pins, thermal shield, the lower support column and mixer, and the control rods and their associated guide tubes, plates, and welds.11 On July 6, 2011, the Board granted New Yorks motion, agreeing that the allegations [New York] has made flow[ed] from LRA Amendment 9, [were] within the scope of the contention as originally admitted, and support the existence of a genuine dispute regarding the adequacy of Entergys AMP relating to the potential embrittlement of RPV and related internals.12 On February 17, 2012 Entergy again amended its LRA with a Revised RVI Program and Inspection Plan.13 After 32 months of review and communications with Entergy, the NRC Staff released SSER2, approving Entergys modified AMP.14 New York filed the pending motion on February 13, 2015, to supplement the bases of NYS-25 to address Entergys Revised RVI Program and SSER2.15 B. Proposed Additional Bases for NYS-25 New York presents new bases for NYS-25 to address what it contends are deficiencies in Entergys Revised RVI Plan, challenging the plan as inadequate for managing the full range of 11 Additional Bases for Previously-Admitted Contention NYS-25 (Embrittlement of Reactor Pressure Vessels and Associated Internals) (Sept. 15, 2010) ¶ 3.2 [hereinafter NYS-25 Supplemental Bases 1].

12 Licensing Board Memorandum and Order (Ruling on Pending Motions for Leave to File New and Amended Contentions) (July 6, 2011) at 28 (unpublished).

13 Letter from Fred Dacimo, [Entergy] Vice President, Operations License Renewal to NRC, NL 037 (Feb. 17, 2012) (ADAMS Accession No. ML12060A312).

14 Office of Nuclear Reactor Regulation, Safety Evaluation Report Related to the License Renewal of Indian Point Nuclear Generating Unit Nos. 2 and 3, NUREG-1930 (Supp. 2 Nov. 2014) (ADAMS Accession No. ML14310A803).

15 State of New Yorks Motion for Leave to Supplement Previously-Admitted Contention NYS-25 (Feb. 13, 2015) [hereinafter NYS-25]; see also New York State February 2015 Supplement to Previously-Admitted Contention NYS-25 (Feb. 13, 2015) [hereinafter NYS-25 Supplemental Bases 2]; Decl. of Dr. Richard T. Lahey, Jr. (Feb 12, 2015); Decl. of Lisa S. Kwong (Feb. 13, 2015)

[hereinafter Kwong Decl.].

aging effects at [Indian Point 2 and Indian Point 3].16 Specifically, New York claims that the plan is inadequate in that it: (1) continues to ignore the potentially synergistic effects of irradiation-induced embrittlement and other aging mechanisms on reactor vessel internals[;]17 (2) inappropriately relies on EPRI guidance document MRP-227-A, Materials Reliability Program:

Pressurized Water Reactor Internals Inspection and Evaluation Guidelines;18 (3) does not take preventative actions in managing aging effects on RVIs and instead relies on periodic visual inspections; 19 and (4) uses an improper, and inconstant, methodology for calculating environmentally cumulative usage factors, some of which have yet to be completed and others which near the 1.0 limit, without an error analysis.20 Lastly, New York seeks to add bases concerning: (1) the importance of maintaining safety margins and a recent instance in which a modeling mistake was discovered;21 and (2) an assertion that synergistic age related degradation is a growing concern, evidenced by the NRC and DOEs congressional budget requests.22 16 NYS-25 at 8.

17 Id. at 9; see also NYS-25 Supplemental Bases 2 ¶¶ 3.7, 3.8. Paragraph 3.7 provides a specific list of components including, but not limited to, the core baffle, intermediate shells, former plates and bolts (particularly the re-entrant corners, the baffle-to-baffle bolt locations, the core barrel-to-former bolt locations, and baffle-to-former bolt locations), core barrel (and its welds), lower core plate and support structures, clevis bolts, thermal shield, the lower support column and mixer, and the control rods and their associated guide tubes, plates, and welds. NYS-25 Supplemental Bases 2 ¶ 3.7.

18 Id. ¶ 3.9.

19 Id. ¶¶ 3.8, 7.13. New York argues that doing so fails to address the possibility that a shock load will cause highly fatigued and degraded RVI components to fail entirely prior to the appearance of cracks or other detectable signs of wear. Id. ¶ 3.8. New York also argues that the inspection is deficient in its reliance on remote-control VT-3 examinations and its lack of details of when replacement or repair of degraded components will occur following detection and its acceptance criteria. Id. ¶¶ 3.10, 7.12.

20 Id. ¶ 7.11.

21 Id. ¶ 7.15.

22 Id. ¶ 7.16.

C. Entergy Answer Entergy argues that the proposed amended contention is inadmissible as it is: [(1)] out of date;

[(2)] untimely; [(3)] represent[s] impermissible challenges to the license renewal rule; [(4)] fail[s] to challenge the technical bases for the RVI AMP; [(5)] rel[ies] upon mischaracterizations of key supporting documents; and [(6)] misconstrue[s] the purpose of EAF evaluations and the associated ASME Code requirements.23 More specifically, Entergy maintains that New Yorks challenge to the fatigue calculations for non-reactor vessel internal components is outside the scope of SSER2 and is untimely because those calculations were disclosed between 2010 and 2013.24 Concerning New Yorks proposed amendments to address synergistic effects, preventive actions, and shock loads, Entergy argues that New York fails to raise a genuine dispute, disregarding, rather than disputing the technical analyses underlying Entergys program.25 Similarly, Entergy argues that New Yorks proposed additional bases on specific componentsbaffle-former bolts, clevis insert bolts, and lower support column capsare unsupported.26 Finally, Entergy argues that New Yorks demand for repair or replacement of RVIs and maintenance of safety margins is an impermissible challenge to the license renewal rule.27 D. NRC Staff Answer The NRC Staff does not contest New Yorks request to supplement the bases for this contention except in two limited respects. The NRC Staff opposes admission of paragraphs 7.15 23 Entergys Consolidated Answer Opposing Intervenors Motions to Amend Contentions NYS-25 and NYS-38/RK-TC-5 (Mar. 10, 2015) at 13 [hereinafter Entergy Answer].

24 Id. at 16-17; see also id. at 30 (arguing that this is an effort to recycle old claims and expand the scope of NYS-25).

25 Id. at 20; see also id. at 22, 23.

26 Id. at 23-24, 25, 27.

27 Id. at 27-30.

and 7.16, asserting that New York seeks to introduce matters which have not been shown to be related to the adequacy of Entergys RVI AMP or the Staffs evaluation of that AMP in SSER2.28 Paragraphs 7.15 and 7.16 state respectively:

¶ 7.15. It is important to maintain safety margins when a reactor operates in a period of extended operation beyond its initial 40-year operating term. One reason safety margins should be maintained is to address unanticipated events or potential calculational or modeling mistakes. A recent recognition of a modeling mistake is the discovery that the Standard Review Plan (NUREG-0800) Branch Technical Position (BTP) 5-3 for estimating the initial fracture toughness of reactor vessel materials may be non-conservative for facilities that received their construction permits before 1973. See AAG Kwong Decl., Attach. 1, 2, 3.

¶ 7.16. Having now recognized the challenge posed by synergistic age related degradation mechanisms on light water reactor pressure vessel components, the federal government is spending considerable resources to investigate and understand these challenges. For example, NRCs 2016 Congressional Budget Justification lists research on materials degradation as one of the Commissions major activities (NUREG-1100, Vol. 31, at 20-21 (February 2015)) and the U.S. Department of Energy recently requested over $30 million in funding for the Light Water Reactor Sustainability Program as part of its Fiscal Year 2015 Congressional Budget Request (see USDOE FY 2015 Congressional Budget Request, DOE/CF-0098, Vol. 3, at 425-426, 430 (March 2014)).29 The NRC Staff contends that proposed paragraph 7.15 should be excluded from the matters to be litigated as New York offers no reason to believe that the alleged non-conservatism in BTP 5-3 affects the adequacy of Entergys AMP for RVIs, or that the Staff relied upon BTP 5-3 in approving Entergys revised RVI AMP.30 Likewise, they argue that New York has not shown that the matters addressed in paragraph 7.16 are relevant to the adequacy of Entergys revised RVI AMP or synergistic age related degradation mechanisms on light water reactor pressure vessel components.31 28 NRC Staffs Answer to (1) State of New Yorks Motion to Supplement Contention NYS-25, and (2) State of New York and Riverkeeper Inc.s Joint Motion to Supplement Contention NYS-38/RK-TC-5 (Mar. 10, 2015) at 6-7 [hereinafter NRC Staff Answer].

29 NYS-25 Supplemental Bases 2 ¶¶ 7.15, 7.16.

30 NRC Staff Answer at 7.

31 Id. at 8 (quoting NYS-25 Supplemental Bases 2 ¶ 7.16).

E. New York Reply New York replies, alleging that Entergy conflate[s] the evidentiary requirements for contention admissibility with the level of evidence required to prove a contention after an evidentiary hearing32 and maintaining that the State has met its burden for this stage of the proceeding.33 The State notes that Entergy has not submitted any expert declaration or report refuting its expert declaration and characterizes Entergys arguments as disputes over issues of fact to be resolved at the evidentiary hearing.34 The State seeks to refute Entergys allegation that it impermissibly challenges NRC regulations by noting that MRP-227-A is not a legally binding regulation but a guidance document, and both the [Commission] and this Board have recognized in this proceeding, [that]

alleged compliance . . . with guidance issued by NRC Staff is not a basis for refusing to admit a contention.35 Finally, the State responds that the proposed supplemental bases and evidence related to environmentally assisted fatigue calculations are timely and within the scope of Entergys amended and revised RVI Plan pursuant to new and approved Commitment 49, Entergys commitment to recalculate Cumulative Usage Factors adjusted for Environmental Fatigue (CUFen) values for RVI components.36 New York contends that because Entergy will take the CUFen analysis used for other locations in the reactor coolant pressure boundary and apply or import that 32 State of New York Reply in Support of Admission of the February 2015 Supplement to Previously-Admitted Contention NYS-25 (Mar. 17, 2015) at 7.

33 Id. at 9.

34 Id. at 10.

35 Id. at 13 (citing Perez v. Mortgage Bankers Assn., No. 13-1041, slip op. at 2 (Mar. 9, 2015); CLI-15-6, 81 NRC __, __ (slip op. at 18-19) (Mar. 9, 2015); Licensing Board Memorandum and Order (Ruling on Pending Motions for Leave to File New and Amended Contentions) (July 6, 2011) at 27-28 (unpublished)).

36 Id. at 14-16.

type of analysis into the category of reactor vessel internal components that its agreement to use CUFen measurements for reactor vessel components is firmly within the scope of the SSER2.37 Concerning NRC Staffs objections, New York notes that (1) Entergy disclosed documents relating to BTP 5-3 and identified [them] as relevant to Contention NYS-25; 38 The State reiterates its initial arguments on federal research and expenditures on materials degradation.

F. Board Decision Regarding Proposed Amendments to NYS-25 The proposed amendments to NYS-25 meet the requirements of 10 C.F.R. §§ 2.309(c)(1) and 2.309(f)(1) inasmuch as they are 1) based on information that was not previously available, (2) based on information that is materially different than information previously available, (3) within the scope of the previously admitted contention and (4) material to the findings that the NRC must make in its license renewal decision.39 The Board finds that the proposed amended Contention NYS-25 is timely, as the additional bases, as well as the supporting evidence and declarations of Dr. Richard Lahey and Assistant Attorney General Kwong, are based on information which was not previously available and which, pursuant to the Boards scheduling order, was to be submitted only after the publication of SSER2, which occurred on November 10, 2014. New Yorks motion was filed on February 13, 2015, in accordance with the Boards amendment to its Revised Scheduling Order, which set February 13, 2015 as the deadline.40 37 Id. at 15.

38 Id. at 5 39 10 C.F.R. §§ 2.309(f)(1)(i)-(iii) and 2.309(f)(1)(i)-(vi).

40 See Licensing Board Order (Revised Scheduling Order) (Dec. 9, 2014) at 2 (unpublished)

[hereinafter Revised Scheduling Order] and Licensing Board Order (Granting New York and Riverkeepers Motion) (Feb. 6, 2015) (unpublished) [hereinafter Extension Order].

We hereby grant New Yorks Motion for Leave to add additional bases to previously admitted NYS-25 without altering or amending the contention as written. NYS-25, as previously amended, challenges the adequacy of Entergys aging management plan due to embrittlement of RPVs and the associated internals. New Yorks proposed supplemental bases, addressing Entergys revised RVI AMP that was approved in the recently issued SSER2, are within the scope of the contention. Paragraph 7.15 and BTP 5-3 support the existence of a genuine dispute regarding the adequacy of Entergys AMP. Furthermore, Paragraph 7.16 is relevant as supporting evidence of the synergistic effects of aging which are part and parcel to the contention.41 We remind the parties that at this stage of the proceeding, we do not weigh the evidence.42 We merely conclude that New York has made the requisite showing that its proposed additional bases are within the scope of NYS-25, pertain to new information not previously available, and are material to the findings the NRC must make to support license renewal. Accordingly, New Yorks Motion to add bases to NYS-25 is granted.

III. NYS-38/RK-TC-5 A. Background In November 2011, the Board admitted and consolidated the State of New Yorks and Riverkeepers Joint Contention NYS-38/RK-TC-5. As admitted, this contention states:

Entergy is not in compliance with the requirements of 10 C.F.R. §§ 54.21(a)(3) and (c)(1)(iii) and the requirements of 42 U.S.C. §§ 2133(b) and (d) and 2232(a) because Entergy does not demonstrate that it has a program that will manage the affects of aging of several critical components or systems and thus NRC does not have a record and a rational basis upon which it can determine whether to grant a renewed license to Entergy as required by the Administrative Procedure Act.43 41 See NYS-25 Supplemental Bases 1 ¶3.2.

42 See LBP-08-13, 68 NRC at 61-64.

43 See Licensing Board Memorandum and Order (Admitting New Contention NYS-38/RK-TC-5)

(Nov. 10, 2011) [hereinafter Order Admitting NYS-38], as clarified, Licensing Board Order (Granting Entergys Motion for Clarification of Licensing Board Memorandum and Order Admitting Contention NYS-38/RK-TC-5) (Dec. 6, 2011) [hereinafter Order Clarifying NYS-38].

As noted above, in June 2013, the Board confirmed that a hearing on Contention NYS-25, Consolidated Contention NYS-26B/RK-TC-1B, and Joint Contention NYS-38/RK-TC-5 would be held in abeyance until the NRC Staff released a Supplement to its 2009 Safety Evaluation Report and that, in the interest of judicial economy, the intervenors should postpone the filing of new or amended contentions addressing issues related to these contentions until after publication of the SSER2.44 In November 2014, NRC Staff released Supplement 2 to its 2009 Safety Evaluation Report (SSER2), which evaluated and approved Entergys February 2012 Revised Reactor Vessel Internals Program and Inspection Plan (NL-12-037), as modified over a 32-month period by Entergys responses to various requests for additional information from NRC Staff (collectively, the Amended and Revised RVI Plan).

B. Proposed Additional Bases for NYS-38/RK-TC-5 In their Motion for Leave to Supplement NYS-38/RK-TC-5, New York State and Riverkeeper argued that new information provided in the SSER2 necessitated additional bases to their existing contention related to the contents and conclusions of Entergys Amended and Revised RVI Plan, as well as the contents and conclusions of the SSER2, which approved Entergys Amended and Revised RVI Plan.45 Intervenors argued that the Amended and Revised RVI Plan substantially modified and replaced Entergys previously-proposed approach relating to RVIs.46 Furthermore, they asserted that the SSER2 revealed for the first time that NRC Staff would accept Entergys current proposal to manage the combined and synergistic effects of various aging mechanisms on RVIs through periodic inspections, rather than preventative actions, and that the NRC would accept Entergys continued reliance on NUREG/CR-5704 and NUREG/CR-6909 (Rev.

44 Tr. at 4531-35.

45 State of New York and Riverkeepers Joint Motion for Leave to Supplement Previously-Admitted Joint Contention NYS-38/RK-TC-5 (Feb. 13, 2015) at 5 [hereinafter NYS-38/RK-TC-5].

46 Id.

0) to calculate CUFen for various components.47 By pointing to specific sections in the SSER2, Intervenors sought to demonstrate that the information upon which their supplemented contention and its bases rely was not previously available, and is materially different from previously available information.48 C. Entergys Answer On March 10, 2015, Entergy filed a consolidated answer to Intervenors Motion to Amend NYS-25 and NYS-38/RK-TC-5.49 In challenging this motion, Entergy argued that Intervenors failed to address current technical documentation related to this contention, and related contention NYS-25, such as EPRI-MRP, that Intervenors base their motion on unsupported speculation and impermissibly attack Commission rules, specifically 10 C.F.R. §§ 2.335 and 2.309(f)(1)(ii).50 Entergy also challenged the timeliness of Intervenors claims because the calculations of Dr. Lahey were based on previously-available information.51 D. NRC Staff Answer The NRC Staff opposed Intervenors motion because, in its view, it would duplicate and confuse issues between this contention and NYS-25 and impermissibly aims to expand the scope of the admitted contention, which was admitted as a challenge to the regulatory sufficiency of Entergys commitment to develop an adequate AMP in the future, and is now being re-cast as a challenge to the adequacy of Entergys revised AMP.52 In its answer to New York and 47 Id. at 5-6.

48 Id.

49 See generally Entergy Answer.

50 Id. at 3, 18, 32.

51 Id. at 17.

52 Id. at 11.

Riverkeepers Motion, the NRC Staff did not contest New Yorks request to supplement the bases for this contention to include the matters addressed in SSER2.53 E. New York and Riverkeeper Reply In its Reply, Intervenors repeated earlier arguments that the overlap between NYS-25 and NYS-38/RK-TC-5 does not unduly confuse related issues and this does not defeat their motion, that MRP-27 is not a regulation and, accordingly, is not exempt from expert attack in this proceeding, and that because Entergys Revised RVI plan postpones the evaluation of CUFen values for IP3s RVI components, they are within the scope of this contention and timely.54 F. Board Decision Regarding Proposed Amendments to NYS-38/RK-TC-5 The proposed amendments to NYS-38/RK-TC-5 meet the requirements of 10 C.F.R. § 2.309(f)(1) and 10 C.F.R. § 2.309(f)(1) inasmuch as they are (1) based on information that was not previously available, (2) based on information that is materially different than information previously available, (3) within the scope of the previously admitted contention and (4) material to the findings that the NRC must make in its license renewal decision.55

i. New York and Riverkeepers Motion is Timely The Board finds that the proposed amended Contention NYS-38/RK-TC-5 is timely, as the additional bases, as well as the supporting evidence and declarations of Dr. Richard Lahey and Dr.

Joram Hopenfeld, are based on information which was not previously available and which, pursuant to the Boards scheduling order, was to be submitted only after the publications of SSER2, which occurred on November 10, 2014. New York and Riverkeepers Motion was filed on 53 NRC Staff Answer at 2, 6, 10-13.

54 State of New York and Riverkeeper Joint Reply in Support of Admission of the February 2015 Supplement to Previously-Admitted Contention NYS-38/RK-TC-5 (Mar. 17, 2015) at 3, 6, 13, 14

[hereinafter NYS and RK Reply Regarding NYS-38/RK-TC-5].

55 10 C.F.R. §§ 2.309(f)(1)(i)-(iii) and 2.309(f)(1)(i)-(vi).

February 13, 2015, in accordance with the Boards amendment to its Revised Scheduling Order, which set February 13, 2015 as the deadline.56 ii. The Proposed Additional Bases Are Material to the License Renewal Decision and Within the Scope of the Contention The Board finds that New York and Riverkeeper have identified genuine and material disputes with Entergys approach to RVI components at Indian Point in their supplement to contention NYS-38/RK-TC-5. Intervenors proposed supplement does not expand the issues beyond the reasonable scope of the contention as admitted by the Board. Although the Board admitted NYS-38/RK-TC-5 as a contention challenging the sufficiency of Entergys reliance on commitments to develop an aging management program that satisfies NRC regulatory requirements,57 the contention continues to be admissible as it alleges that Entergy failed to comply with 10 C.F.R. §§ 54.21(a)(3) because it did not demonstrate that it has a program to manage aging effects on certain components.58 The Board has acknowledged that there is significant overlap between contentions NYS-25 and NYS-38/RK-TC-5, and thus it is permissible that the supplemental Declaration of Dr. Richard Lahey does not fully distinguish between its discussion of issues relating to the two contentions.59 Furthermore, NYS-38/RK-TC-5 discusses specific components of the AMP which are not addressed in NYS-25, and thus the parties have sufficient notice of the issues which they are expected to defend or oppose.60 56 See Revised Scheduling at 2 and see generally Extension Order.

57 Order Admitting NYS-38 at 3-4.

58 NYS and RK Reply Regarding NYS-38/RK-TC-5 at 3.

59 Order Clarifying NYS-38 at 5.

60 See February 2015 Supplement to Joint Contention NYS-38/RK-TC-5 ¶¶ 5.1-5.3.

Thus, the Board finds that New York and Riverkeepers proposed supplement and additional bases for Contention NYS-38/RK-TC-5 are admissible.

It is so ORDERED.

THE ATOMIC SAFETY AND LICENSING BOARD

/RA/

Lawrence G. McDade, Chairman ADMINISTRATIVE JUDGE

/RA/

Dr. Michael F. Kennedy ADMINISTRATIVE JUDGE

/RA/

Dr. Richard E. Wardwell ADMINISTRATIVE JUDGE Rockville, Maryland March 31, 2015

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

)

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

) and 50-286-LR (Indian Point Nuclear Generating, )

Units 2 and 3) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing [REDACTED] MEMORANDUM AND ORDER (Granting Motions for Leave to File Amendments to Contentions NYS-25 and NYS-38/RK-TC-5) have been served upon the following persons by Electronic Information Exchange.

U.S. Nuclear Regulatory Commission Edward L. Williamson, Esq.

Office of Commission Appellate Adjudication Beth N. Mizuno, Esq.

Mail Stop O-7H4M David E. Roth, Esq.

Washington, DC 20555-0001 Sherwin E. Turk, Esq.

ocaamail@nrc.gov Brian Harris, Esq.

Mary B. Spencer, Esq.

U.S. Nuclear Regulatory Commission Anita Ghosh, Esq.

Office of the Secretary of the Commission Christina England, Esq.

Mail Stop O-16C1 Catherine E. Kanatas, Esq.

Washington, DC 20555-0001 Joseph Lindell, Esq.

hearingdocket@nrc.gov John Tibbetts, Paralegal U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of the General Counsel Atomic Safety and Licensing Board Panel Mail Stop O-15D21 Mail Stop T-3F23 Washington, DC 20555-0001 Washington, DC 20555-0001 sherwin.turk@nrc.gov; edward.williamson@nrc.gov Lawrence G. McDade, Chair beth.mizuno@nrc.gov; brian.harris.@nrc.gov Administrative Judge david.roth@nrc.gov; mary.spencer@nrc.gov lawrence.mcdade@nrc.gov anita.ghosh@nrc.gov; christina.england@nrc.gov; Richard E. Wardwell catherine.kanatas@nrc.gov; Administrative Judge joseph.lindell@nrc.gov; richard.wardwell@nrc.gov john.tibbetts@nrc.gov Michael F. Kennedy OGC Mail Center Administrative Judge OGCMailCenter@nrc.gov michael.kennedy@nrc.gov William B. Glew, Jr.

Alana Wase, Law Clerk Organization: Entergy alana.wase@nrc.gov 440 Hamilton Avenue, White Plains, NY 10601 wglew@entergy.com Kathleen E. Schroeder, Law Clerk Kathleen.Schroeder@nrc.gov Elise N. Zoli, Esq.

Goodwin Proctor, LLP Exchange Place, 53 State Street Boston, MA 02109 ezoli@goodwinprocter.com

Docket Nos. 50-247-LR and 50-286-LR

[REDACTED] MEMORANDUM AND ORDER (Granting Motions for Leave to File Amendments to Contentions NYS-25 and NYS-38/RK-TC-5)

Daniel Riesel, Esq. Melissa-Jean Rotini, Esq.

Victoria Shiah Treanor, Esq. Assistant County Attorney Adam Stolorow, Esq. Office of Robert F. Meehan, Natoya Duncan, Paralegal Westchester County Attorney Counsel for Town of Cortlandt 148 Martine Avenue, 6th Floor Sive, Paget & Riesel, P.C. White Plains, NY 10601 460 Park Avenue mjr1@westchestergov.com New York, NY 10022 driesel@sprlaw.com; vtreanor@sprlaw.com Bobby Burchfield, Esq.

astolorow@sprlaw.com; nduncan@sprlaw.com Matthew Leland, Esq.

Emre Ilter, Esq.

Kathryn M. Sutton, Esq. McDermott, Will and Emery LLP Paul M. Bessette, Esq. 500 North Capitol Street NW Martin J. ONeill, Esq. Washington, DC 20001 Raphael Kuyler, Esq. bburchfield@mwe.com Brooke McGlinn, Esq. mleland@mwe.com Grant Eskelsen, Esq. eilter@mwe.com Ryan Lighty, Esq.

Lesa G. Williams-Richardson, Legal Secretary Matthew W. Swinehart, Esq.

Doris Calhoun, Legal Secretary Covington & Burling LLP Mary Freeze, Legal Secretary 1201 Pennsylvania Avenue, NW Morgan, Lewis & Bockius, LLP Washington, DC 20004 1111 Pennsylvania Avenue, NW mswinehart@cov.com Washington, DC 20004 ksutton@morganlewis.com Edward F. McTiernan, Esq.

martin.oneill@morganlewis.com New York State Department rkuyler@morganlewis.com; of Environmental Conservation lescher@morganlewis.com Office of General Counsel bmcglinn@morganlewis.com 625 Broadway sraimo@morganlewis.com 14th Floor geskelsen@morganlewis.com Albany, NY 12233-1500 rlighty@morganlewis.com efmctier@gw.dec.state.ny.us lrichardson@morganlewis.com dcalhoun@morganlewis.com Manna Jo Greene, Environmental Director mfreeze@morganlewis.com Steven C. Filler Peter A. Gross Hudson River Sloop Clearwater, Inc.

Deborah Brancato, Esq. 724 Wolcott Ave.

Ramona Cearley, Secretary Beacon, NY 12508 Riverkeeper, Inc. mannajo@clearwater.org; 20 Secor Road stephenfiller@gmail.com; Ossining, NY 10562 peter@clearwater.org dbrancato@riverkeeper.org rcearley@riverkeeper.org Andrew Reid, Esq.

Organization: Hudson River Sloop Clearwater, Inc.

Springer & Steinberg, P.C.

1600 Broadway, Suite 1200 Denver, CO 80202 lawyerreid@gmail.com 2

Docket Nos. 50-247-LR and 50-286-LR

[REDACTED] MEMORANDUM AND ORDER (Granting Motions for Leave to File Amendments to Contentions NYS-25 and NYS-38/RK-TC-5)

Richard Webster, Esq. John J. Sipos, Esq.

Public Justice, P.C. Lisa S. Kwong, Esq.

For Hudson River Sloop Clearwater, Inc. Brian Lusignan, Esq.

1825 K Street, NW, Suite 200 Assistant Attorneys General Washington, D.C. 20006 Teresa Manzi, Legal Assistant rwebster@publicjustice.net Office of the Attorney General of the State of New York The Capitol, State Street Michael J. Delaney, Esq. Albany, New York 12224 Director, Energy Regulatory Affairs john.sipos@ag.ny.gov NYC Department of Environmental Protection lisa.kwong@ag.ny.gov 59-17 Junction Boulevard brian.lusignan@ag.ny.gov Flushing, NY 11373 teresa.manzi@ag.ny.gov mdelaney@dep.nyc.gov Kathryn M. DeLuca, Esq.

Robert D. Snook, Esq. Laura Heslin, Esq.

Assistant Attorney General Assistant Attorneys General Office of the Attorney General Office of the Attorney General State of Connecticut of the State of New York 55 Elm Street 120 Broadway, 26th Floor P.O. Box 120 New York, New York 10271 Hartford, CT 06141-0120 kathryn.deluca@ag.ny.gov robert.snook@po.state.ct.us laura.heslin@ag.ny.gov Sean Murray, Mayor Kevin Hay, Village Administrator Village of Buchanan Municipal Building 236 Tate Avenue Buchanan, NY 10511-1298 smurray@villageofbuchanan.com administrator@villageofbuchanan.com

[Original signed by Brian Newell ]

Office of the Secretary of the Commission Dated at Rockville, Maryland this 31st day of March, 2015 3