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| issue date = 03/01/2016
| issue date = 03/01/2016
| title = NRC Staff 49th Status Report
| title = NRC Staff 49th Status Report
| author name = Turk S E
| author name = Turk S
| author affiliation = NRC/OGC
| author affiliation = NRC/OGC
| addressee name =  
| addressee name =  
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=Text=
=Text=
{{#Wiki_filter:March 1, 201 6            UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
{{#Wiki_filter:March 1, 2016 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of                                           )
    )        ) ENTERGY NUCLEAR OPERATIONS, INC.
                                                          )
  ) Docket Nos. 50
ENTERGY NUCLEAR OPERATIONS, INC.                           )     Docket Nos. 50-247-LR/286-LR
-247-LR/286-LR       ) (Indian Point Nuclear Generating  
                                                          )
  )  Units 2 and 3)
(Indian Point Nuclear Generating                           )
    )  NRC STAFF'S 4 9 th STATUS REPORT IN RESPONSE TO THE ATOMIC SAFETY AND LICENSING BOARD'S ORDER OF FEBRUARY 16, 2012   In accordance with the Atomic Safety and Licensing Board's ("Board") "Order (Granting NRC Staff's Unopposed Time Extension Motion and Directing Filing of Status Updates)
Units 2 and 3)                                    )
" ("Order"), issued on February 16, 2012, the N RC Staff ("Staff") herewith provides its 4 9 th monthly status report to the Board
NRC STAFFS 49th STATUS REPORT IN RESPONSE TO THE ATOMIC SAFETY AND LICENSING BOARDS ORDER OF FEBRUARY 16, 2012 In accordance with the Atomic Safety and Licensing Boards (Board) Order (Granting NRC Staffs Unopposed Time Extension Motion and Directing Filing of Status Updates)
.          Safety Issues
(Order), issued on February 16, 2012, the NRC Staff (Staff) herewith provides its 49th monthly status report to the Board.
: 1. Track 2 Safety Issue
Safety Issues
: s. Hearings on the three "Track 2" safety contentions related to the License Renewal Application ("LRA") for Indian Point Units 2 and 3 ("IP2" and "IP3") were held on November 16-19, 2015. On February 5, 2016, the State of New York ("New York") filed a motion seeking the late admission of six documents as exhibits related to the Track 2 contentions; answers to that motion were filed on February 16, 2016
: 1.       Track 2 Safety Issues. Hearings on the three Track 2 safety contentions related to the License Renewal Application (LRA) for Indian Point Units 2 and 3 (IP2 and IP3) were held on November 16-19, 2015. On February 5, 2016, the State of New York (New York) filed a motion seeking the late admission of six documents as exhibits related to the Track 2 contentions; answers to that motion were filed on February 16, 2016. 1 On February 19, 2019, the Board granted New Yorks Motion, conditioned upon its filing of expert testimony demonstrating the relevance, materiality and reliability of the proposed exhibits by March 4, 1 State of New York Motion for Leave to File Six Documents as Additional Exhibits (Feb. 5, 2016); NRC Staff Answer to State of New York Motion for Leave to File Six Documents as Additional Exhibits (Feb. 16, 2016); Entergys Answer to State of New York Motion for Leave to File Six Documents as Additional Exhibits (Feb. 16, 2016).
.1 On February 19, 2019, the Board granted New York
 
's Motion, conditioned upon its filing of expert testimony demonstrating the relevance, materiality and reliability of the proposed exhibits by March 4, 1 "State of New York Motion for Leave to File Six Documents as Additional Exhibits" (Feb. 5, 2016); "NRC Staff Answer to 'State of New York Motion for Leave to File Six Documents as Additional Exhibits'" (Feb. 16, 2016); "Entergy
2016; responsive testimony is to be filed by Entergy and the Staff by March 18, 2016; New Yorks reply testimony is to be filed by March 25, 2016. 2 The Board suspended the schedule for filing proposed findings of fact and conclusions of law, and stated that the evidentiary record will be closed 10 days after its receipt of the above filings. 3
's Answer to State of New York Motion for Leave to File Six Documents as Additional Exhibits" (Feb. 16, 2016).
: 2.       Other Safety Issues. There has been no change in this item since the Staff filed its previous status report. The Staff is reviewing issues associated with two recent Interim Staff Guidance (ISG) documents (LR-ISG-2012-02 and LR-ISG-2013-01). 4 The Staff has not yet determined whether these matters will be addressed in an SER Supplement; the Staff will provide further information to the Board regarding these issues when available.
2016; responsive testimony is to be filed by Entergy and the Staff by March 18, 2016
; New York's reply testimony is to be filed by March 25, 20 16.2 The Board suspended the schedule for filing p roposed findings of fact and conclusions of law
, and stated that the evidentiary record will be closed 10 days after its receipt of the above filings
.3 2. Other Safety Issues.
There has been no change in this item since the Staff filed its previous status report. Th e Staff is reviewing issues associated with two recent Interim Staff Guidance ("ISG") documents (LR-ISG-2012-02 and LR-ISG-2013-01).4 The Staff has not yet determined whether these matters will be addressed in a n SER Supplement
; the Staff will provide further information to the Board regarding these issues when available.
Environmental Issues
Environmental Issues
: 3. FSEIS Supplem ent. There has been no change in this item since the Staff filed its previous status report. On December 22, 2015, the Staff issue d its draft second supplement (Volume 5) 5 to the Final Supplemental Environmental Impact Statement
: 3.       FSEIS Supplement. There has been no change in this item since the Staff filed its previous status report. On December 22, 2015, the Staff issued its draft second supplement (Volume 5) 5 to the Final Supplemental Environmental Impact Statement (FSEIS) for license 2 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Order (Requesting Expert Testimony on New Yorks Proposed Exhibits and Suspending Deadline for Filing Proposed Findings of Fact and Law) (Feb. 19, 2016).
("FSEIS") for license  
3 Id. at 3; See Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3),
Order (Setting Post-Hearing Briefing Schedule) (Dec. 7, 2015).
4 See (1) Notice of Issuance, Interim Staff Guidance; LR-ISG-2012-02; Aging Management of Internal Surfaces, Fire Water Systems, Atmospheric Storage Tanks, and Corrosion under Insulation, 78 Fed. Reg. 70,076 (Nov. 22, 2013); (2) Notice of Issuance, Interim Staff Guidance; LR-ISG-2013-01; Aging Management of Loss of Coating or Lining Integrity for Internal Coatings/ Linings on In-Scope Piping, Piping Components, Heat Exchangers, and Tanks, 79 Fed. Reg. 68,308 (Nov. 14, 2014).
5 Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38 Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Draft Report for Comment, NUREG-1437, Supplement 38, Vol. 5 (Dec. 2015) (Draft FSEIS Supplement 2). See Letter from Sherwin E. Turk to the Board (Dec. 22, 2015), at 1.
 
renewal of IP2 and IP3. Public comments on Draft FSEIS Supplement 2 are due on March 4, 2016; 6 the Staff expects to issue Final FSEIS Supplement 2 in September 2016. 7
: 4.      Contention NYS-35/36. There has been no change in this item since the Staff filed its previous status report. On July 14, 2011, the Board issued LBP-11-17, granting summary disposition on Contention NYS-35/36 (Implementation of Cost-Beneficial SAMAs) in favor of New York. 8 On February 18, 2015, the Commission granted the Staff and Entergys petitions for review of the Boards rulings on Contention NYS-35/36, and instructed the Staff to respond to four questions. 9 As required, the Staff filed its response on March 30, 2015; replies were filed by Entergy and New York on May 11, 2015.
: 5.      Contention NYS-40. In May 2013, the Applicant submitted a letter to the Staff (NL-13-075), reporting the results of its completed engineering project cost estimates for severe accident mitigation alternatives (SAMAs) that previously had been identified as potentially cost-beneficial. 10 The Applicant noted that it was submitting the information to support resolution of certain issues identified in LBP-11-17 concerning Contention NYS-35/36. The Staff presented its evaluation of this information in Draft FSEIS Supplement 2, issued on December 22, 2015. On February 22, 2016, New York filed a motion for leave to file new Contention NYS-40, purportedly based on the Staffs Draft FSEIS evaluation of Entergys 6 See Entergy Nuclear Operations, Inc.; Indian Point Nuclear Generating Unit Nos. 2 and 3, Draft supplemental environmental impact statement; request for comment, 80 Fed. Reg. 81,377 (Dec. 29, 2015).
7 See Letter from Sherwin E. Turk to the Board (Dec. 22, 2015), at 2.
8 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-11-17, 74 NRC 11, petition for review granted, CLI-15-3, 81 NRC 217 (Feb. 18, 2015).
9 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), CLI-15-3, 81 NRC 217 (Feb. 18, 2015).
10 See Letter from Kathryn M. Sutton, Esq., et al., to the Board (May 7, 2013), attaching Letter from Fred Dacimo (Entergy) to the NRC Document Control Desk, NL-13-075 (May 6, 2013) (ADAMS Accession No. ML13142A014).
 
engineering project cost estimates; 11 answers to New Yorks new contention are due March 18, 2016.
: 6.      Contention NYS-12C (SAMAs). There has been no change in this item since the Staff filed its previous status report. On February 14, 2014, New York filed a petition for Commission review of the Boards decision in LBP-13-13, 12 concerning its resolution of Contention NYS-12C; 13 on April 28, 2014, New York filed a petition for review of the Boards Order denying its motion to reopen and reconsider that decision. 14 On February 18, 2015, the Commission granted New Yorks petition for review and directed the parties to respond to eight related questions. 15 In accordance with the Commissions Order, initial briefs were filed by the Staff, Entergy, New York, and the State of Connecticut on March 30, 2015; reply briefs were filed by the Staff, Entergy and New York on April 29, 2015.
: 7.      CZMA Issues. To the best of the Staffs knowledge, information and belief, the current status of CZMA-related issues is as follows.
11 See State of New York Motion for Leave [to File] Contention NYS-40 (Feb. 22, 2016), and State of New York Contention NYS-40 (Feb. 22, 2016). See also Entergy Nuclear Operations, Inc.
(Indian Point Nuclear Generating Units 2 and 3),Order (Granting Entergys Motion [for] Clarification)
(July 9, 2013), at 3.
12 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-13-13, 78 NRC 246 (Nov. 27, 2013).
13 State of New York Petition for Review of Atomic Safety and Licensing Board Decision LBP-13-13 With Respect to Consolidated Contention NYS-12C (Feb. 14, 2014). On March 9, 2015, the Commission issued a Memorandum and Order resolving the Staffs, Entergys and Hudson River Sloop Clearwaters petitions for review of other portions of LBP-13-13. See Entergy Nuclear Operations, Inc.
(Indian Point Nuclear Generating Units 2 and 3), CLI-15-6, 81 NRC 340 (2015) (reversing the Boards resolution of Contention NYS-8 (Transformers), and reversing in part, and affirming in part, its resolution of Contention CW-EC3A (Environmental Justice).
14 See (1) State of New York Petition for Review of Atomic Safety and Licensing Boards April 1, 2014 Decision Denying the States Motion to Reopen the Record and for Reconsideration of the Boards November 27, 2013 Partial Initial Decision Concerning Consolidated Contention NYS-12C (Apr. 28, 2014); (2) Order (Denying New Yorks Motion to Reopen the Record; Setting Deadline for New or Amended Contention) (Apr. 1, 2014).
15 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), CLI-15-2, 81 NRC 213 (Feb. 18, 2015).
 
(a) Previous Reviews. On June 12, 2013, the Board denied the Applicants and New Yorks motions seeking the entry of a declaratory order regarding Entergys claim that New York had previously conducted a review of IP2/IP3 for consistency with the New York State Coastal Management Program (CMP), such that no further review is required under the Coastal Zone Management Act (CZMA). 16 The Board left open the possibility that the motions might be re-filed after consultations between the Staff and New York pursuant to 15 C.F.R.
§ 930.51(e). The Staff engaged in a series of consultations with the New York State Department of State (NYSDOS) and the Applicant in 2013 and 2014.
(b) Grandfathering. On December 11, 2014, the State of New York Supreme Court, Appellate Division, Third Judicial Department, reversed the Supreme Courts December 2013 decision, and held (in a 5-0 decision) that Indian Point Units 2 and 3 were grandfathered under New Yorks CMP and are therefore exempt from consistency review. 17 On June 4, 2015, the Court of Appeals granted New Yorks motion for leave to appeal; Entergy has responded to New Yorks appeal, and on February 16, 2016, New York filed its reply to Entergys brief. Oral argument is expected later this year.
(c) 2012 Consistency Certification. On December 17, 2012, Entergy filed a certification with the NYSDOS, asserting that license renewal of IP2/IP3 is consistent with the New York CMP; on November 5, 2014, Entergy withdrew that consistency determination, subject to its resubmittal following issuance of the Staffs Final FSEIS Supplement. 18 On November 21, 16 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Order (Granting New Yorks Motions, Denying Clearwaters Motion, and Denying CZMA Motions) (June 12, 2013).
17 Entergy Nuclear Operation, Inc. v. New York State Department of State, 518510, 999 N.Y.S.2d 207, 2014 N.Y. App. Div. LEXIS 8686; 2014 NY Slip Op 08702 (App. Div. 3d Dep't, Dec. 11, 2014), revg 42 Misc. 3d 896, 976 N.Y.S.2d 650 (Sup. Ct. 2013).
18 See Letter from John Sipos to the Board (Nov. 6, 2014), attaching letter from Fred Dacimo (Entergy) to NRC Document Control Desk and Linda M. Baldwin, Esq. (NYSDOS), NL 14 140 (Withdrawal of December 17, 2012 Coastal Zone Management Act Consistency Certification) (Nov. 5, 2014) (ADAMS Accession No. ML14310A346).
 
2014, NYSDOS rejected Entergys withdrawal of its consistency certification, 19 and on November 6, 2015, NYSDOS issued its consistency determination, finding that license renewal of Indian Point Units 2 and 3 is not consistent with the New York CMP. 20 The U.S. Department of Commerce has extended the time for Entergy to appeal from NYSDOSs determination until 60 days after issuance of the Court of Appeals final order on New Yorks grandfathering appeal. 21 On January 14, 2016, Entergy filed an action against the New York Secretary of State in the U.S. District Court for the Northern District of New York (Case 1:16-cv-00051-LEK-DJS), asserting that NYSDOSs November 6, 2015 determination was based on nuclear safety concerns, intrudes on the NRCs exclusive regulatory authority over such matters, and is preempted by the Atomic Entergy Act.
: 8.      Other Matters. The Staff is not currently aware of any other matter that has the potential to impact the schedule for hearings in this proceeding. In accordance with the Boards direction (Order, at 2), the Staff will notify the Board as soon as any other event with potential to alter the hearing schedule arises.
19 Letter from Linda M. Baldwin, Esq., General Counsel (NYSDOS), to Fred Dacimo (Entergy)
(Nov. 21, 2014) (ADAMS Accession No.ML14328A474).
20 Letter from Cesar A. Perales (Secretary of State, NYSDOS), to Fred Dacimo (Entergy) (Nov. 6, 2015).
21 Letter from Lois Schiffer (General Counsel, NOAA) to Sanford I. Weisburst, Esq. and Linda Baldwin, Esq. (Nov. 25 2015).


2 Entergy Nuclear Operations, Inc.
Respectfully submitted,
(Indian Point Nuclear Generating Units 2 and 3), "Order (Requesting Expert Testimony on New York
                                /Signed (electronically) by/
's Proposed Exhibits and Suspending Deadline for Filing Proposed Findings of Fact and Law)
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 1st day of March 2016
" (Feb. 19, 201 6). 3 I d. at 3; See Entergy Nuclear Operations, Inc.
(Indian Point Nuclear Generating Units 2 and 3), "Order (Setting Post
-Hearing Briefing Schedule)" (Dec. 7, 2015).
4 See (1) Notice of Issuance, Interim Staff Guidance; LR
-ISG-2012-02; "Aging Management of Internal Surfaces, Fire Water Systems, Atmospheric Storage Tanks, and Corrosion under Insulation,"
78 Fed. Reg. 70,076 (Nov. 22, 2013); (2) Notice of Issuance, Interim Staff Guidance; LR
-ISG-2013-01; "Aging Management of Loss of Coating or Lining Integrity for Internal Coatings/ Linings on In
-Scope Piping, Piping Components, Heat Exchangers, and Tanks," 79 Fed. Reg. 68,308 (Nov. 14, 2014).
5 "Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Suppleme nt 38 Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Draft Report for Comment," NUREG-1437, Supplement 38, Vol. 5 (Dec. 2015) ("Draft FSEIS Supplement 2").
See Letter from Sherwin E. Turk to the Board (Dec. 22, 2015), at
: 1. renewal of IP2 and IP3
. Public comments on Draft FSEIS Supplement 2 are due on March 4, 2016;6 the Staff expects to issue Final FSEIS Supplement 2 in September 2016.
7 4. Contention NYS
-35/36. There has been no change in this item since the Staff filed its previous status report. On July 14, 2011, the Board issued LBP
-1 1-17, granting summary disposition on Contention NYS
-35/36 (Implementation of Cost-Beneficial SAMAs) in favor of New York.
8  On February 18, 2015, the Commission granted the Staff and Entergy's petitions for review of the Board's rulings on Contention NYS
-35/36, and instructed the Staff to respond to four questions.9  As required, the Staff filed its response on March 30, 2015; replies were filed by Entergy and New York on May 11, 2015.
: 5. Contention NYS
-40. In May 2013, the Applicant submitted a letter to the Staff (NL-13-075), reporting the results of its completed engineering project cost estimates for severe accident mitigation alternatives ("SAMAs")
that previously had been identified as potentially cost-beneficial
.10  The Applicant noted that it was submitting the information "to support resolution of certain issues identified" in LBP-11-17 concerning Contention NYS
-35/36. T he Staff present ed its evaluation of th is information in Draft FSEIS Supplement 2 , issued on December 22, 2015. On February 22, 2016, New York filed a motion for leave t o file new Contention NYS-40 , purportedly based on the Staff's Draft FSEIS evaluation of Entergy
's 6 See Entergy Nuclear Operations, Inc.; Indian Point Nuclear Generating Unit Nos. 2 and 3, "Draft supplemental environmental impact statement; request for comment," 80 Fed. Reg. 81,377 (Dec. 29, 2015). 7 See Letter from Sherwin E. Turk to the Board (Dec. 22, 2015), at 2
. 8 Entergy Nuclear Operations, Inc.
(Indian Point Nuclear Generating Units 2 and 3), LBP 17, 74 NRC 11, petition for review granted , CLI-1 5-3, 81 NRC 217 (Feb. 18, 2015). 9 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), C LI-15-3, 81 NRC 217 (Feb. 18, 2015).
10 See Letter from Kathryn M. Sutton, Esq., et al., to the Board (May 7, 2013), attaching Letter from Fred Dacimo (Entergy) to the NRC Document Control Desk, NL 075 (May 6, 2013) (ADAMS Accession No. ML13142A014).
engineering project cost estimates
;11 answers to New York
's new contention are due March 18, 2016. 6. Contention NYS
-12C (SAMAs). There has been no change in this item since the Staff filed its previous status report.
O n February 14, 2014, New York filed a petition for Commission review of the Board's decision in LBP 13,12 concerning its resolution of Contention NYS
-12C;13 on April 28, 2014, New York filed a petition for review of the Board's Order denying its motion to reopen and reconsider that decision
.14  On February 18, 2015, the Commission grant ed New York's petition for review and direct ed the parties to respond to eight related questions.15  In accordance with the Commission's Order, initial briefs we re filed b y the Staff, Entergy
, New York , and the State of Connecticut on March 30, 2015; reply briefs were filed by the Staff, Entergy and New York on April 29, 2015
. 7. CZMA Issues. To the best of the Staff's knowledge, information and belief, the current status of CZMA
-related issues is as follows.


11 S ee "State of New York Motion for Leave [to File]
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of                             )
Contention NYS-40" (Feb. 22, 2016)
                                            )
, and "State of New York Contention NYS
ENTERGY NUCLEAR OPERATIONS, INC. )                 Docket Nos. 50-247/286-LR
-40" (Feb. 22, 2016).
                                            )
See also Entergy Nuclear Operations, Inc.
(Indian Point Nuclear Generating             )
(Indian Point Nuclear Generating Units 2 and 3),"Order (Granting Entergy's Motion [for] Clarification)" (July 9, 2013), at 3.
Units 2 and 3)                       )
12 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP 13, 78 NRC 246 (Nov. 27, 2013).
CERTIFICATE OF SERVICE Pursuant to 10 C.F.R § 2.305 (as revised), I hereby certify that copies of the foregoing NRC STAFFS 49th STATUS REPORT IN RESPONSE TO THE ATOMIC SAFETY AND LICENSING BOARDS ORDER OF FEBRUARY 16, 2012, dated March 1, 2016, have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned proceeding, this 1st day of March 2016.
13 "State of New York Petition for Review of Atomic Safety and Licensing Board Decision LBP-13-13 With Respect to Consolidated Contention NYS
                                                  /Signed (electronically) by/
-12C" (Feb. 14, 2014).
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
On March 9, 2015, the Commission issued a Memorandum and Order resolving the Staff's, Entergy's and Hudson River Sloop Clearwater's petitions for review of other portions of LBP 13. See Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), CLI-15-6, 81 NRC 340 (2015) (reversing the Board's resolution of Contention NYS
-8 (Transformers), and reversing in part, and affirming in part, its resolution of Contention CW
-EC3A (Environmental Justice
). 14 See (1) "State of New York Petition for Review of Atomic Safety and Licensing Board's April 1, 2014 Decision Denying the State's Motion to Reopen the Record and for Reconsideration of the Board's November 27, 2013 Partial Initial Decision Concerning Consolidated Contention NYS
-12C" (Apr. 28, 2014); (2) "Order (Denying New York's Motion to Reopen the Record; Setting Deadline for New or Amended Contention)" (Apr. 1, 2014).
15 Entergy Nuclear Operations, Inc.
(Indian Point Nuclear Generating Units 2 and 3), CLI 2, 81 NRC 213 (Feb. 18, 2015).    (a)  Previous Reviews. On June 12, 2013, the Board denied the Applicant's and New York's motions seeking the entry of a declaratory order regarding Entergy's claim that New York had previously conducted a review of IP2/IP3 for consistency with the New York State Coastal Management Program
("CMP"), such that no further review is required under the Coastal Zone Management Act ("CZMA").16  The Board left open the possibility that the motions might be re
-filed after consultations between the Staff and New York pursuant to 15 C.F.R.
§ 930.51(e). The Staff engaged in a series of consultations with the New York State Department of State ("NYSDOS") and the Applicant in 2013 and 2014.
(b)  Grandfathering. O n December 11, 2014, the State of New York Supreme Court, Appellate Division
, Third Judicial Department
, reversed the Supreme Court's December 2013 decision, and held (in a 5
-0 decision) that Indian Point Units 2 and 3 were "grandfathered" under New York's CMP and are therefore exempt from consistency review
.17  On June 4, 2015, the Court of Appeals granted New York's motion f or leave to appeal
; Entergy has responded to New York's appeal, and on February 16, 2016, New York filed its reply to Entergy
's brief. Oral argument is expected later this y ear. (c) 2012 Consistency Certification. On December 17, 2012, Entergy filed a certification with the NYSDOS, asserting that license renewal of IP2/IP3 is consistent with the New York CMP; on November 5, 2014, Entergy withdr e w that consistency determination, subject to its resubmittal following issuance of the Staff's Final FSEIS Supplement
.18  On November 21, 16 Entergy Nuclear Operations, Inc.
(Indian Point Nuclear Generating Units 2 and 3)
, "Order (Granting New York's Motions, Denying Clearwater's Motion, and Denying CZMA Motions)" (June 12, 2013). 17 Entergy Nuclear Operation, Inc. v. New York State Department of State
, 518510, 999 N.Y.S.2d 207 , 2014 N.Y. App. Div. LEXIS 8686; 2014 NY Slip Op 08702 (App. Div. 3d Dep't, Dec. 11, 2014), rev'g 42 Misc. 3d 896, 976 N.Y.S.2d 650 (Sup. Ct. 2013)
. 18 See Letter from John Sipos to the Board (Nov. 6, 2014), attaching letter from Fred Dacimo (Entergy) to NRC Document Control Desk and Linda M. Baldwin, Esq. (NYSDOS), NL 14 140
("Withdrawal of December 17, 2012 Coastal Zone Management Act Consistency Certification") (Nov. 5, 2014) (ADAMS Accession No. ML14310A346).
2014, NYSDOS reject ed Entergy's withdrawal of its consistency certification
,19 an d o n November 6, 2015, NYSDOS issued its consistency determination, finding that license renewal of Indian Point Units 2 and 3 is not consistent with the New York CMP.20  The U.S. Department of Commerce has extended the time for Entergy to appeal from NYSDO S's determination until 60 days after issuance of th e Court of Appeals
' final order on New York's grandfathering appeal.21  On January 14, 2016, Entergy filed an action against the New York Secretary of State in the U.S. District Court for the Northern District of New York (Case 1:16
-cv-00051-LEK-DJS), asserting that NYSDOS's November 6, 2015 determination was based on nuclear safety concerns, intrudes on the NRC's exclusive regulatory authority over such matters, and is preempted by the Atomic Entergy Act.
: 8. Other Matters. The Staff is not currently aware of any other matter that has the potential to impact the schedule for hearings in this proceeding.
In accordance with the Board's direction (Order, at 2), the Staff will notify the Board as soon as any other event with potential to alter the hearing schedule arises.
19 Letter from Linda M. Baldwin, Esq., General Counsel (NYSDOS), to Fred Dacimo (Entergy) (Nov. 21, 2014) (ADAMS Accession No.ML14328A474).
20 Letter from Cesar A. Perales (Secretary of State, NYSDOS), to Fred Dacimo (Entergy) (Nov.
6 , 201 5). 21 Letter from Lois Schiffer (General Counsel, NOAA) to Sanford I. Weisburst, Esq. and Linda Baldwin, Esq. (Nov. 25 2015).          Respectfully submitted,        /Signed (electronically) by/
Sherwin E. Turk Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Couns el        Mail Stop  
- O-15D21       Washington, DC 20555 Telephone: (301) 415
-1 53 3        E-mail: Sherwin.Turk@nrc.gov


Dated at Rockville, Maryland this 1 st day of March 201 6 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of  
March 1, 2016 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of                                           )
    )      ) ENTERGY NUCLEAR OPERATIONS, INC. )
                                                          )
Docket Nos. 50
ENTERGY NUCLEAR OPERATIONS, INC.                           )     Docket Nos. 50-247-LR/286-LR
-247/286-LR ) (Indian Point Nuclear Generating  
                                                          )
  ) Units 2 and 3)
(Indian Point Nuclear Generating                           )
    )  CERTIFICATE OF SERVICE Pursuant to 10 C.F.R § 2.305 (as revised), I hereby certify that copies of the foregoing "NRC STAFF'S 4 9 th STATUS REPORT IN RESPONSE TO THE ATOMIC SAFETY AND LICENSING BOARD'S ORDER OF FEBRUARY 16, 2012," dated March 1, 201 6 , have been served upon t he Electronic Information Exchange (the NRC's E
Units 2 and 3)                                    )
-Filing System), in the above
NRC STAFFS 49th STATUS REPORT IN RESPONSE TO THE ATOMIC SAFETY AND LICENSING BOARDS ORDER OF FEBRUARY 16, 2012 In accordance with the Atomic Safety and Licensing Boards (Board) Order (Granting NRC Staffs Unopposed Time Extension Motion and Directing Filing of Status Updates)
-captioned proceeding, this 1 st day of March 201 6.           /Signed (electronically) by/
(Order), issued on February 16, 2012, the NRC Staff (Staff) herewith provides its 49th monthly status report to the Board.
Sherwin E. Turk Counsel for NRC Staff U.S. Nuclear Regulatory Commission        Office of the General Counsel Mail Stop
Safety Issues
- O-15D21        Washington, DC  20555 Telephone:  (301) 415
: 1.      Track 2 Safety Issues. Hearings on the three Track 2 safety contentions related to the License Renewal Application (LRA) for Indian Point Units 2 and 3 (IP2 and IP3) were held on November 16-19, 2015. On February 5, 2016, the State of New York (New York) filed a motion seeking the late admission of six documents as exhibits related to the Track 2 contentions; answers to that motion were filed on February 16, 2016. 1 On February 19, 2019, the Board granted New Yorks Motion, conditioned upon its filing of expert testimony demonstrating the relevance, materiality and reliability of the proposed exhibits by March 4, 1 State of New York Motion for Leave to File Six Documents as Additional Exhibits (Feb. 5, 2016); NRC Staff Answer to State of New York Motion for Leave to File Six Documents as Additional Exhibits (Feb. 16, 2016); Entergys Answer to State of New York Motion for Leave to File Six Documents as Additional Exhibits (Feb. 16, 2016).
-1 53 3        E-mail:  Sherwin.Turk@nrc.gov


March 1, 201 6            UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
2016; responsive testimony is to be filed by Entergy and the Staff by March 18, 2016; New Yorks reply testimony is to be filed by March 25, 2016. 2 The Board suspended the schedule for filing proposed findings of fact and conclusions of law, and stated that the evidentiary record will be closed 10 days after its receipt of the above filings. 3
    )        ) ENTERGY NUCLEAR OPERATIONS, INC.
: 2.       Other Safety Issues. There has been no change in this item since the Staff filed its previous status report. The Staff is reviewing issues associated with two recent Interim Staff Guidance (ISG) documents (LR-ISG-2012-02 and LR-ISG-2013-01). 4 The Staff has not yet determined whether these matters will be addressed in an SER Supplement; the Staff will provide further information to the Board regarding these issues when available.
  ) Docket Nos. 50
-247-LR/286-LR        ) (Indian Point Nuclear Generating
  )  Units 2 and 3)
    )  NRC STAFF'S 4 9 th STATUS REPORT IN RESPONSE TO THE ATOMIC SAFETY AND  LICENSING BOARD'S ORDER OF FEBRUARY 16, 2012  In accordance with the Atomic Safety and Licensing Board's ("Board") "Order (Granting NRC Staff's Unopposed Time Extension Motion and Directing Filing of Status Updates)
" ("Order"), issued on February 16, 2012, the N RC Staff ("Staff") herewith provides its 4 9 th monthly status report to the Board
.          Safety Issues
: 1. Track 2 Safety Issue
: s. Hearings on the three "Track 2" safety contentions related to the License Renewal Application ("LRA") for Indian Point Units 2 and 3 ("IP2" and "IP3") were held on November 16-19, 2015. On February 5, 2016, the State of New York ("New York") filed a motion seeking the late admission of six documents as exhibits related to the Track 2 contentions; answers to that motion were filed on February 16, 2016
.1  On February 19, 2019, the Board granted New York
's Motion, conditioned upon its filing of expert testimony demonstrating the relevance, materiality and reliability of the proposed exhibits by March 4, 1 "State of New York Motion for Leave to File Six Documents as Additional Exhibits" (Feb. 5, 2016); "NRC Staff Answer to 'State of New York Motion for Leave to File Six Documents as Additional Exhibits'" (Feb. 16, 2016); "Entergy
's Answer to State of New York Motion for Leave to File Six Documents as Additional Exhibits" (Feb. 16, 2016).
2016; responsive testimony is to be filed by Entergy and the Staff by March 18, 2016
; New York's reply testimony is to be filed by March 25, 20 16.2 The Board suspended the schedule for filing p roposed findings of fact and conclusions of law
, and stated that the evidentiary record will be closed 10 days after its receipt of the above filings
.3 2. Other Safety Issues.
There has been no change in this item since the Staff filed its previous status report. Th e Staff is reviewing issues associated with two recent Interim Staff Guidance ("ISG") documents (LR-ISG-2012-02 and LR-ISG-2013-01).4 The Staff has not yet determined whether these matters will be addressed in a n SER Supplement
; the Staff will provide further information to the Board regarding these issues when available.
Environmental Issues
Environmental Issues
: 3. FSEIS Supplem ent. There has been no change in this item since the Staff filed its previous status report. On December 22, 2015, the Staff issue d its draft second supplement (Volume 5) 5 to the Final Supplemental Environmental Impact Statement
: 3.       FSEIS Supplement. There has been no change in this item since the Staff filed its previous status report. On December 22, 2015, the Staff issued its draft second supplement (Volume 5) 5 to the Final Supplemental Environmental Impact Statement (FSEIS) for license 2 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Order (Requesting Expert Testimony on New Yorks Proposed Exhibits and Suspending Deadline for Filing Proposed Findings of Fact and Law) (Feb. 19, 2016).
("FSEIS") for license  
3 Id. at 3; See Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3),
Order (Setting Post-Hearing Briefing Schedule) (Dec. 7, 2015).
4 See (1) Notice of Issuance, Interim Staff Guidance; LR-ISG-2012-02; Aging Management of Internal Surfaces, Fire Water Systems, Atmospheric Storage Tanks, and Corrosion under Insulation, 78 Fed. Reg. 70,076 (Nov. 22, 2013); (2) Notice of Issuance, Interim Staff Guidance; LR-ISG-2013-01; Aging Management of Loss of Coating or Lining Integrity for Internal Coatings/ Linings on In-Scope Piping, Piping Components, Heat Exchangers, and Tanks, 79 Fed. Reg. 68,308 (Nov. 14, 2014).
5 Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38 Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Draft Report for Comment, NUREG-1437, Supplement 38, Vol. 5 (Dec. 2015) (Draft FSEIS Supplement 2). See Letter from Sherwin E. Turk to the Board (Dec. 22, 2015), at 1.
 
renewal of IP2 and IP3. Public comments on Draft FSEIS Supplement 2 are due on March 4, 2016; 6 the Staff expects to issue Final FSEIS Supplement 2 in September 2016. 7
: 4.      Contention NYS-35/36. There has been no change in this item since the Staff filed its previous status report. On July 14, 2011, the Board issued LBP-11-17, granting summary disposition on Contention NYS-35/36 (Implementation of Cost-Beneficial SAMAs) in favor of New York. 8 On February 18, 2015, the Commission granted the Staff and Entergys petitions for review of the Boards rulings on Contention NYS-35/36, and instructed the Staff to respond to four questions. 9 As required, the Staff filed its response on March 30, 2015; replies were filed by Entergy and New York on May 11, 2015.
: 5.      Contention NYS-40. In May 2013, the Applicant submitted a letter to the Staff (NL-13-075), reporting the results of its completed engineering project cost estimates for severe accident mitigation alternatives (SAMAs) that previously had been identified as potentially cost-beneficial. 10 The Applicant noted that it was submitting the information to support resolution of certain issues identified in LBP-11-17 concerning Contention NYS-35/36. The Staff presented its evaluation of this information in Draft FSEIS Supplement 2, issued on December 22, 2015. On February 22, 2016, New York filed a motion for leave to file new Contention NYS-40, purportedly based on the Staffs Draft FSEIS evaluation of Entergys 6 See Entergy Nuclear Operations, Inc.; Indian Point Nuclear Generating Unit Nos. 2 and 3, Draft supplemental environmental impact statement; request for comment, 80 Fed. Reg. 81,377 (Dec. 29, 2015).
7 See Letter from Sherwin E. Turk to the Board (Dec. 22, 2015), at 2.
8 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-11-17, 74 NRC 11, petition for review granted, CLI-15-3, 81 NRC 217 (Feb. 18, 2015).
9 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), CLI-15-3, 81 NRC 217 (Feb. 18, 2015).
10 See Letter from Kathryn M. Sutton, Esq., et al., to the Board (May 7, 2013), attaching Letter from Fred Dacimo (Entergy) to the NRC Document Control Desk, NL-13-075 (May 6, 2013) (ADAMS Accession No. ML13142A014).
 
engineering project cost estimates; 11 answers to New Yorks new contention are due March 18, 2016.
: 6.      Contention NYS-12C (SAMAs). There has been no change in this item since the Staff filed its previous status report. On February 14, 2014, New York filed a petition for Commission review of the Boards decision in LBP-13-13, 12 concerning its resolution of Contention NYS-12C; 13 on April 28, 2014, New York filed a petition for review of the Boards Order denying its motion to reopen and reconsider that decision. 14 On February 18, 2015, the Commission granted New Yorks petition for review and directed the parties to respond to eight related questions. 15 In accordance with the Commissions Order, initial briefs were filed by the Staff, Entergy, New York, and the State of Connecticut on March 30, 2015; reply briefs were filed by the Staff, Entergy and New York on April 29, 2015.
: 7.      CZMA Issues. To the best of the Staffs knowledge, information and belief, the current status of CZMA-related issues is as follows.
11 See State of New York Motion for Leave [to File] Contention NYS-40 (Feb. 22, 2016), and State of New York Contention NYS-40 (Feb. 22, 2016). See also Entergy Nuclear Operations, Inc.
(Indian Point Nuclear Generating Units 2 and 3),Order (Granting Entergys Motion [for] Clarification)
(July 9, 2013), at 3.
12 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-13-13, 78 NRC 246 (Nov. 27, 2013).
13 State of New York Petition for Review of Atomic Safety and Licensing Board Decision LBP-13-13 With Respect to Consolidated Contention NYS-12C (Feb. 14, 2014). On March 9, 2015, the Commission issued a Memorandum and Order resolving the Staffs, Entergys and Hudson River Sloop Clearwaters petitions for review of other portions of LBP-13-13. See Entergy Nuclear Operations, Inc.
(Indian Point Nuclear Generating Units 2 and 3), CLI-15-6, 81 NRC 340 (2015) (reversing the Boards resolution of Contention NYS-8 (Transformers), and reversing in part, and affirming in part, its resolution of Contention CW-EC3A (Environmental Justice).
14 See (1) State of New York Petition for Review of Atomic Safety and Licensing Boards April 1, 2014 Decision Denying the States Motion to Reopen the Record and for Reconsideration of the Boards November 27, 2013 Partial Initial Decision Concerning Consolidated Contention NYS-12C (Apr. 28, 2014); (2) Order (Denying New Yorks Motion to Reopen the Record; Setting Deadline for New or Amended Contention) (Apr. 1, 2014).
15 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), CLI-15-2, 81 NRC 213 (Feb. 18, 2015).
 
(a) Previous Reviews. On June 12, 2013, the Board denied the Applicants and New Yorks motions seeking the entry of a declaratory order regarding Entergys claim that New York had previously conducted a review of IP2/IP3 for consistency with the New York State Coastal Management Program (CMP), such that no further review is required under the Coastal Zone Management Act (CZMA). 16 The Board left open the possibility that the motions might be re-filed after consultations between the Staff and New York pursuant to 15 C.F.R.
§ 930.51(e). The Staff engaged in a series of consultations with the New York State Department of State (NYSDOS) and the Applicant in 2013 and 2014.
(b) Grandfathering. On December 11, 2014, the State of New York Supreme Court, Appellate Division, Third Judicial Department, reversed the Supreme Courts December 2013 decision, and held (in a 5-0 decision) that Indian Point Units 2 and 3 were grandfathered under New Yorks CMP and are therefore exempt from consistency review. 17 On June 4, 2015, the Court of Appeals granted New Yorks motion for leave to appeal; Entergy has responded to New Yorks appeal, and on February 16, 2016, New York filed its reply to Entergys brief. Oral argument is expected later this year.
(c) 2012 Consistency Certification. On December 17, 2012, Entergy filed a certification with the NYSDOS, asserting that license renewal of IP2/IP3 is consistent with the New York CMP; on November 5, 2014, Entergy withdrew that consistency determination, subject to its resubmittal following issuance of the Staffs Final FSEIS Supplement. 18 On November 21, 16 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Order (Granting New Yorks Motions, Denying Clearwaters Motion, and Denying CZMA Motions) (June 12, 2013).
17 Entergy Nuclear Operation, Inc. v. New York State Department of State, 518510, 999 N.Y.S.2d 207, 2014 N.Y. App. Div. LEXIS 8686; 2014 NY Slip Op 08702 (App. Div. 3d Dep't, Dec. 11, 2014), revg 42 Misc. 3d 896, 976 N.Y.S.2d 650 (Sup. Ct. 2013).
18 See Letter from John Sipos to the Board (Nov. 6, 2014), attaching letter from Fred Dacimo (Entergy) to NRC Document Control Desk and Linda M. Baldwin, Esq. (NYSDOS), NL 14 140 (Withdrawal of December 17, 2012 Coastal Zone Management Act Consistency Certification) (Nov. 5, 2014) (ADAMS Accession No. ML14310A346).


2 Entergy Nuclear Operations, Inc.
2014, NYSDOS rejected Entergys withdrawal of its consistency certification, 19 and on November 6, 2015, NYSDOS issued its consistency determination, finding that license renewal of Indian Point Units 2 and 3 is not consistent with the New York CMP. 20 The U.S. Department of Commerce has extended the time for Entergy to appeal from NYSDOSs determination until 60 days after issuance of the Court of Appeals final order on New Yorks grandfathering appeal. 21 On January 14, 2016, Entergy filed an action against the New York Secretary of State in the U.S. District Court for the Northern District of New York (Case 1:16-cv-00051-LEK-DJS), asserting that NYSDOSs November 6, 2015 determination was based on nuclear safety concerns, intrudes on the NRCs exclusive regulatory authority over such matters, and is preempted by the Atomic Entergy Act.
(Indian Point Nuclear Generating Units 2 and 3), "Order (Requesting Expert Testimony on New York
: 8.       Other Matters. The Staff is not currently aware of any other matter that has the potential to impact the schedule for hearings in this proceeding. In accordance with the Boards direction (Order, at 2), the Staff will notify the Board as soon as any other event with potential to alter the hearing schedule arises.
's Proposed Exhibits and Suspending Deadline for Filing Proposed Findings of Fact and Law)
19 Letter from Linda M. Baldwin, Esq., General Counsel (NYSDOS), to Fred Dacimo (Entergy)
" (Feb. 19, 201 6). 3 I d. at 3; See Entergy Nuclear Operations, Inc.
(Nov. 21, 2014) (ADAMS Accession No.ML14328A474).
(Indian Point Nuclear Generating Units 2 and 3), "Order (Setting Post
20 Letter from Cesar A. Perales (Secretary of State, NYSDOS), to Fred Dacimo (Entergy) (Nov. 6, 2015).
-Hearing Briefing Schedule)" (Dec. 7, 2015).
21 Letter from Lois Schiffer (General Counsel, NOAA) to Sanford I. Weisburst, Esq. and Linda Baldwin, Esq. (Nov. 25 2015).
4 See (1) Notice of Issuance, Interim Staff Guidance; LR
-ISG-2012-02; "Aging Management of Internal Surfaces, Fire Water Systems, Atmospheric Storage Tanks, and Corrosion under Insulation,"
78 Fed. Reg. 70,076 (Nov. 22, 2013); (2) Notice of Issuance, Interim Staff Guidance; LR
-ISG-2013-01; "Aging Management of Loss of Coating or Lining Integrity for Internal Coatings/ Linings on In
-Scope Piping, Piping Components, Heat Exchangers, and Tanks," 79 Fed. Reg. 68,308 (Nov. 14, 2014).
5 "Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Suppleme nt 38 Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Draft Report for Comment," NUREG-1437, Supplement 38, Vol. 5 (Dec. 2015) ("Draft FSEIS Supplement 2").
See Letter from Sherwin E. Turk to the Board (Dec. 22, 2015), at
: 1. renewal of IP2 and IP3
. Public comments on Draft FSEIS Supplement 2 are due on March 4, 2016;6 the Staff expects to issue Final FSEIS Supplement 2 in September 2016.
7 4. Contention NYS
-35/36. There has been no change in this item since the Staff filed its previous status report. On July 14, 2011, the Board issued LBP
-1 1-17, granting summary disposition on Contention NYS
-35/36 (Implementation of Cost-Beneficial SAMAs) in favor of New York.
8  On February 18, 2015, the Commission granted the Staff and Entergy's petitions for review of the Board's rulings on Contention NYS
-35/36, and instructed the Staff to respond to four questions.9  As required, the Staff filed its response on March 30, 2015; replies were filed by Entergy and New York on May 11, 2015.
: 5. Contention NYS
-40. In May 2013, the Applicant submitted a letter to the Staff (NL-13-075), reporting the results of its completed engineering project cost estimates for severe accident mitigation alternatives ("SAMAs")
that previously had been identified as potentially cost-beneficial
.10  The Applicant noted that it was submitting the information "to support resolution of certain issues identified" in LBP-11-17 concerning Contention NYS
-35/36. T he Staff present ed its evaluation of th is information in Draft FSEIS Supplement 2 , issued on December 22, 2015. On February 22, 2016, New York filed a motion for leave t o file new Contention NYS-40 , purportedly based on the Staff's Draft FSEIS evaluation of Entergy
's 6 See Entergy Nuclear Operations, Inc.; Indian Point Nuclear Generating Unit Nos. 2 and 3, "Draft supplemental environmental impact statement; request for comment," 80 Fed. Reg. 81,377 (Dec. 29, 2015). 7 See Letter from Sherwin E. Turk to the Board (Dec. 22, 2015), at 2
. 8 Entergy Nuclear Operations, Inc.
(Indian Point Nuclear Generating Units 2 and 3), LBP 17, 74 NRC 11, petition for review granted , CLI-1 5-3, 81 NRC 217 (Feb. 18, 2015). 9 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), C LI-15-3, 81 NRC 217 (Feb. 18, 2015).
10 See Letter from Kathryn M. Sutton, Esq., et al., to the Board (May 7, 2013), attaching Letter from Fred Dacimo (Entergy) to the NRC Document Control Desk, NL 075 (May 6, 2013) (ADAMS Accession No. ML13142A014).
engineering project cost estimates
;11 answers to New York
's new contention are due March 18, 2016. 6. Contention NYS
-12C (SAMAs). There has been no change in this item since the Staff filed its previous status report.
O n February 14, 2014, New York filed a petition for Commission review of the Board's decision in LBP 13,12 concerning its resolution of Contention NYS
-12C;13 on April 28, 2014, New York filed a petition for review of the Board's Order denying its motion to reopen and reconsider that decision
.14  On February 18, 2015, the Commission grant ed New York's petition for review and direct ed the parties to respond to eight related questions.15  In accordance with the Commission's Order, initial briefs we re filed b y the Staff, Entergy
, New York , and the State of Connecticut on March 30, 2015; reply briefs were filed by the Staff, Entergy and New York on April 29, 2015
. 7. CZMA Issues. To the best of the Staff's knowledge, information and belief, the current status of CZMA
-related issues is as follows.


11 S ee "State of New York Motion for Leave [to File]
Respectfully submitted,
Contention NYS-40" (Feb. 22, 2016)
                                /Signed (electronically) by/
, and "State of New York Contention NYS
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 1st day of March 2016
-40" (Feb. 22, 2016).
See also Entergy Nuclear Operations, Inc.
(Indian Point Nuclear Generating Units 2 and 3),"Order (Granting Entergy's Motion [for] Clarification)" (July 9, 2013), at 3.
12 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP 13, 78 NRC 246 (Nov. 27, 2013).
13 "State of New York Petition for Review of Atomic Safety and Licensing Board Decision LBP-13-13 With Respect to Consolidated Contention NYS
-12C" (Feb. 14, 2014).
On March 9, 2015, the Commission issued a Memorandum and Order resolving the Staff's, Entergy's and Hudson River Sloop Clearwater's petitions for review of other portions of LBP 13. See Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), CLI-15-6, 81 NRC 340 (2015) (reversing the Board's resolution of Contention NYS
-8 (Transformers), and reversing in part, and affirming in part, its resolution of Contention CW
-EC3A (Environmental Justice
). 14 See (1) "State of New York Petition for Review of Atomic Safety and Licensing Board's April 1, 2014 Decision Denying the State's Motion to Reopen the Record and for Reconsideration of the Board's November 27, 2013 Partial Initial Decision Concerning Consolidated Contention NYS
-12C" (Apr. 28, 2014); (2) "Order (Denying New York's Motion to Reopen the Record; Setting Deadline for New or Amended Contention)" (Apr. 1, 2014).
15 Entergy Nuclear Operations, Inc.
(Indian Point Nuclear Generating Units 2 and 3), CLI 2, 81 NRC 213 (Feb. 18, 2015).    (a)  Previous Reviews. On June 12, 2013, the Board denied the Applicant's and New York's motions seeking the entry of a declaratory order regarding Entergy's claim that New York had previously conducted a review of IP2/IP3 for consistency with the New York State Coastal Management Program
("CMP"), such that no further review is required under the Coastal Zone Management Act ("CZMA").16  The Board left open the possibility that the motions might be re
-filed after consultations between the Staff and New York pursuant to 15 C.F.R.
§ 930.51(e). The Staff engaged in a series of consultations with the New York State Department of State ("NYSDOS") and the Applicant in 2013 and 2014.
(b)  Grandfathering. O n December 11, 2014, the State of New York Supreme Court, Appellate Division
, Third Judicial Department
, reversed the Supreme Court's December 2013 decision, and held (in a 5
-0 decision) that Indian Point Units 2 and 3 were "grandfathered" under New York's CMP and are therefore exempt from consistency review
.17  On June 4, 2015, the Court of Appeals granted New York's motion f or leave to appeal
; Entergy has responded to New York's appeal, and on February 16, 2016, New York filed its reply to Entergy
's brief. Oral argument is expected later this y ear. (c)  2012 Consistency Certification. On December 17, 2012, Entergy filed a certification with the NYSDOS, asserting that license renewal of IP2/IP3 is consistent with the New York CMP; on November 5, 2014, Entergy withdr e w that consistency determination, subject to its resubmittal following issuance of the Staff's Final FSEIS Supplement
.18  On November 21, 16 Entergy Nuclear Operations, Inc.
(Indian Point Nuclear Generating Units 2 and 3)
, "Order (Granting New York's Motions, Denying Clearwater's Motion, and Denying CZMA Motions)" (June 12, 2013). 17 Entergy Nuclear Operation, Inc. v. New York State Department of State
, 518510, 999 N.Y.S.2d 207 , 2014 N.Y. App. Div. LEXIS 8686; 2014 NY Slip Op 08702 (App. Div. 3d Dep't, Dec. 11, 2014), rev'g 42 Misc. 3d 896, 976 N.Y.S.2d 650 (Sup. Ct. 2013)
. 18 See Letter from John Sipos to the Board (Nov. 6, 2014), attaching letter from Fred Dacimo (Entergy) to NRC Document Control Desk and Linda M. Baldwin, Esq. (NYSDOS), NL 14 140
("Withdrawal of December 17, 2012 Coastal Zone Management Act Consistency Certification") (Nov. 5, 2014) (ADAMS Accession No. ML14310A346).
2014, NYSDOS reject ed Entergy's withdrawal of its consistency certification
,19 an d o n November 6, 2015, NYSDOS issued its consistency determination, finding that license renewal of Indian Point Units 2 and 3 is not consistent with the New York CMP.20  The U.S. Department of Commerce has extended the time for Entergy to appeal from NYSDO S's determination until 60 days after issuance of th e Court of Appeals
' final order on New York's grandfathering appeal.21  On January 14, 2016, Entergy filed an action against the New York Secretary of State in the U.S. District Court for the Northern District of New York (Case 1:16
-cv-00051-LEK-DJS), asserting that NYSDOS's November 6, 2015 determination was based on nuclear safety concerns, intrudes on the NRC's exclusive regulatory authority over such matters, and is preempted by the Atomic Entergy Act.
: 8. Other Matters. The Staff is not currently aware of any other matter that has the potential to impact the schedule for hearings in this proceeding.
In accordance with the Board's direction (Order, at 2), the Staff will notify the Board as soon as any other event with potential to alter the hearing schedule arises.
19 Letter from Linda M. Baldwin, Esq., General Counsel (NYSDOS), to Fred Dacimo (Entergy) (Nov. 21, 2014) (ADAMS Accession No.ML14328A474).
20 Letter from Cesar A. Perales (Secretary of State, NYSDOS), to Fred Dacimo (Entergy) (Nov.
6 , 201 5). 21 Letter from Lois Schiffer (General Counsel, NOAA) to Sanford I. Weisburst, Esq. and Linda Baldwin, Esq. (Nov. 25 2015).          Respectfully submitted,         /Signed (electronically) by/
Sherwin E. Turk Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Couns el        Mail Stop  
- O-15D21       Washington, DC 20555 Telephone: (301) 415
-1 53 3        E-mail: Sherwin.Turk@nrc.gov


Dated at Rockville, Maryland this 1 st day of March 201 6 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of  
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of                             )
    )      ) ENTERGY NUCLEAR OPERATIONS, INC. )
                                            )
Docket Nos. 50
ENTERGY NUCLEAR OPERATIONS, INC. )                 Docket Nos. 50-247/286-LR
-247/286-LR ) (Indian Point Nuclear Generating  
                                            )
  ) Units 2 and 3)
(Indian Point Nuclear Generating             )
    )  CERTIFICATE OF SERVICE Pursuant to 10 C.F.R § 2.305 (as revised), I hereby certify that copies of the foregoing "NRC STAFF'S 4 9 th STATUS REPORT IN RESPONSE TO THE ATOMIC SAFETY AND LICENSING BOARD'S ORDER OF FEBRUARY 16, 2012," dated March 1, 201 6 , have been served upon t he Electronic Information Exchange (the NRC's E
Units 2 and 3)                      )
-Filing System), in the above
CERTIFICATE OF SERVICE Pursuant to 10 C.F.R § 2.305 (as revised), I hereby certify that copies of the foregoing NRC STAFFS 49th STATUS REPORT IN RESPONSE TO THE ATOMIC SAFETY AND LICENSING BOARDS ORDER OF FEBRUARY 16, 2012, dated March 1, 2016, have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned proceeding, this 1st day of March 2016.
-captioned proceeding, this 1 st day of March 201 6.           /Signed (electronically) by/
                                                  /Signed (electronically) by/
Sherwin E. Turk Counsel for NRC Staff U.S. Nuclear Regulatory Commission       Office of the General Counsel Mail Stop  
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}}
- O-15D21       Washington, DC 20555 Telephone: (301) 415
-1 53 3        E-mail: Sherwin.Turk@nrc.gov}}

Latest revision as of 22:19, 30 October 2019

NRC Staff 49th Status Report
ML16061A584
Person / Time
Site: Indian Point  Entergy icon.png
Issue date: 03/01/2016
From: Sherwin Turk
NRC/OGC
To:
Atomic Safety and Licensing Board Panel
SECY RAS
References
50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS 50978
Download: ML16061A584 (8)
v • d • e


Text

March 1, 2016 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

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

)

(Indian Point Nuclear Generating )

Units 2 and 3) )

NRC STAFFS 49th STATUS REPORT IN RESPONSE TO THE ATOMIC SAFETY AND LICENSING BOARDS ORDER OF FEBRUARY 16, 2012 In accordance with the Atomic Safety and Licensing Boards (Board) Order (Granting NRC Staffs Unopposed Time Extension Motion and Directing Filing of Status Updates)

(Order), issued on February 16, 2012, the NRC Staff (Staff) herewith provides its 49th monthly status report to the Board.

Safety Issues

1. Track 2 Safety Issues. Hearings on the three Track 2 safety contentions related to the License Renewal Application (LRA) for Indian Point Units 2 and 3 (IP2 and IP3) were held on November 16-19, 2015. On February 5, 2016, the State of New York (New York) filed a motion seeking the late admission of six documents as exhibits related to the Track 2 contentions; answers to that motion were filed on February 16, 2016. 1 On February 19, 2019, the Board granted New Yorks Motion, conditioned upon its filing of expert testimony demonstrating the relevance, materiality and reliability of the proposed exhibits by March 4, 1 State of New York Motion for Leave to File Six Documents as Additional Exhibits (Feb. 5, 2016); NRC Staff Answer to State of New York Motion for Leave to File Six Documents as Additional Exhibits (Feb. 16, 2016); Entergys Answer to State of New York Motion for Leave to File Six Documents as Additional Exhibits (Feb. 16, 2016).

2016; responsive testimony is to be filed by Entergy and the Staff by March 18, 2016; New Yorks reply testimony is to be filed by March 25, 2016. 2 The Board suspended the schedule for filing proposed findings of fact and conclusions of law, and stated that the evidentiary record will be closed 10 days after its receipt of the above filings. 3

2. Other Safety Issues. There has been no change in this item since the Staff filed its previous status report. The Staff is reviewing issues associated with two recent Interim Staff Guidance (ISG) documents (LR-ISG-2012-02 and LR-ISG-2013-01). 4 The Staff has not yet determined whether these matters will be addressed in an SER Supplement; the Staff will provide further information to the Board regarding these issues when available.

Environmental Issues

3. FSEIS Supplement. There has been no change in this item since the Staff filed its previous status report. On December 22, 2015, the Staff issued its draft second supplement (Volume 5) 5 to the Final Supplemental Environmental Impact Statement (FSEIS) for license 2 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Order (Requesting Expert Testimony on New Yorks Proposed Exhibits and Suspending Deadline for Filing Proposed Findings of Fact and Law) (Feb. 19, 2016).

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

Order (Setting Post-Hearing Briefing Schedule) (Dec. 7, 2015).

4 See (1) Notice of Issuance, Interim Staff Guidance; LR-ISG-2012-02; Aging Management of Internal Surfaces, Fire Water Systems, Atmospheric Storage Tanks, and Corrosion under Insulation, 78 Fed. Reg. 70,076 (Nov. 22, 2013); (2) Notice of Issuance, Interim Staff Guidance; LR-ISG-2013-01; Aging Management of Loss of Coating or Lining Integrity for Internal Coatings/ Linings on In-Scope Piping, Piping Components, Heat Exchangers, and Tanks, 79 Fed. Reg. 68,308 (Nov. 14, 2014).

5 Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38 Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Draft Report for Comment, NUREG-1437, Supplement 38, Vol. 5 (Dec. 2015) (Draft FSEIS Supplement 2). See Letter from Sherwin E. Turk to the Board (Dec. 22, 2015), at 1.

renewal of IP2 and IP3. Public comments on Draft FSEIS Supplement 2 are due on March 4, 2016; 6 the Staff expects to issue Final FSEIS Supplement 2 in September 2016. 7

4. Contention NYS-35/36. There has been no change in this item since the Staff filed its previous status report. On July 14, 2011, the Board issued LBP-11-17, granting summary disposition on Contention NYS-35/36 (Implementation of Cost-Beneficial SAMAs) in favor of New York. 8 On February 18, 2015, the Commission granted the Staff and Entergys petitions for review of the Boards rulings on Contention NYS-35/36, and instructed the Staff to respond to four questions. 9 As required, the Staff filed its response on March 30, 2015; replies were filed by Entergy and New York on May 11, 2015.
5. Contention NYS-40. In May 2013, the Applicant submitted a letter to the Staff (NL-13-075), reporting the results of its completed engineering project cost estimates for severe accident mitigation alternatives (SAMAs) that previously had been identified as potentially cost-beneficial. 10 The Applicant noted that it was submitting the information to support resolution of certain issues identified in LBP-11-17 concerning Contention NYS-35/36. The Staff presented its evaluation of this information in Draft FSEIS Supplement 2, issued on December 22, 2015. On February 22, 2016, New York filed a motion for leave to file new Contention NYS-40, purportedly based on the Staffs Draft FSEIS evaluation of Entergys 6 See Entergy Nuclear Operations, Inc.; Indian Point Nuclear Generating Unit Nos. 2 and 3, Draft supplemental environmental impact statement; request for comment, 80 Fed. Reg. 81,377 (Dec. 29, 2015).

7 See Letter from Sherwin E. Turk to the Board (Dec. 22, 2015), at 2.

8 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-11-17, 74 NRC 11, petition for review granted, CLI-15-3, 81 NRC 217 (Feb. 18, 2015).

9 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), CLI-15-3, 81 NRC 217 (Feb. 18, 2015).

10 See Letter from Kathryn M. Sutton, Esq., et al., to the Board (May 7, 2013), attaching Letter from Fred Dacimo (Entergy) to the NRC Document Control Desk, NL-13-075 (May 6, 2013) (ADAMS Accession No. ML13142A014).

engineering project cost estimates; 11 answers to New Yorks new contention are due March 18, 2016.

6. Contention NYS-12C (SAMAs). There has been no change in this item since the Staff filed its previous status report. On February 14, 2014, New York filed a petition for Commission review of the Boards decision in LBP-13-13, 12 concerning its resolution of Contention NYS-12C; 13 on April 28, 2014, New York filed a petition for review of the Boards Order denying its motion to reopen and reconsider that decision. 14 On February 18, 2015, the Commission granted New Yorks petition for review and directed the parties to respond to eight related questions. 15 In accordance with the Commissions Order, initial briefs were filed by the Staff, Entergy, New York, and the State of Connecticut on March 30, 2015; reply briefs were filed by the Staff, Entergy and New York on April 29, 2015.
7. CZMA Issues. To the best of the Staffs knowledge, information and belief, the current status of CZMA-related issues is as follows.

11 See State of New York Motion for Leave [to File] Contention NYS-40 (Feb. 22, 2016), and State of New York Contention NYS-40 (Feb. 22, 2016). See also Entergy Nuclear Operations, Inc.

(Indian Point Nuclear Generating Units 2 and 3),Order (Granting Entergys Motion [for] Clarification)

(July 9, 2013), at 3.

12 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-13-13, 78 NRC 246 (Nov. 27, 2013).

13 State of New York Petition for Review of Atomic Safety and Licensing Board Decision LBP-13-13 With Respect to Consolidated Contention NYS-12C (Feb. 14, 2014). On March 9, 2015, the Commission issued a Memorandum and Order resolving the Staffs, Entergys and Hudson River Sloop Clearwaters petitions for review of other portions of LBP-13-13. See Entergy Nuclear Operations, Inc.

(Indian Point Nuclear Generating Units 2 and 3), CLI-15-6, 81 NRC 340 (2015) (reversing the Boards resolution of Contention NYS-8 (Transformers), and reversing in part, and affirming in part, its resolution of Contention CW-EC3A (Environmental Justice).

14 See (1) State of New York Petition for Review of Atomic Safety and Licensing Boards April 1, 2014 Decision Denying the States Motion to Reopen the Record and for Reconsideration of the Boards November 27, 2013 Partial Initial Decision Concerning Consolidated Contention NYS-12C (Apr. 28, 2014); (2) Order (Denying New Yorks Motion to Reopen the Record; Setting Deadline for New or Amended Contention) (Apr. 1, 2014).

15 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), CLI-15-2, 81 NRC 213 (Feb. 18, 2015).

(a) Previous Reviews. On June 12, 2013, the Board denied the Applicants and New Yorks motions seeking the entry of a declaratory order regarding Entergys claim that New York had previously conducted a review of IP2/IP3 for consistency with the New York State Coastal Management Program (CMP), such that no further review is required under the Coastal Zone Management Act (CZMA). 16 The Board left open the possibility that the motions might be re-filed after consultations between the Staff and New York pursuant to 15 C.F.R.

§ 930.51(e). The Staff engaged in a series of consultations with the New York State Department of State (NYSDOS) and the Applicant in 2013 and 2014.

(b) Grandfathering. On December 11, 2014, the State of New York Supreme Court, Appellate Division, Third Judicial Department, reversed the Supreme Courts December 2013 decision, and held (in a 5-0 decision) that Indian Point Units 2 and 3 were grandfathered under New Yorks CMP and are therefore exempt from consistency review. 17 On June 4, 2015, the Court of Appeals granted New Yorks motion for leave to appeal; Entergy has responded to New Yorks appeal, and on February 16, 2016, New York filed its reply to Entergys brief. Oral argument is expected later this year.

(c) 2012 Consistency Certification. On December 17, 2012, Entergy filed a certification with the NYSDOS, asserting that license renewal of IP2/IP3 is consistent with the New York CMP; on November 5, 2014, Entergy withdrew that consistency determination, subject to its resubmittal following issuance of the Staffs Final FSEIS Supplement. 18 On November 21, 16 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Order (Granting New Yorks Motions, Denying Clearwaters Motion, and Denying CZMA Motions) (June 12, 2013).

17 Entergy Nuclear Operation, Inc. v. New York State Department of State, 518510, 999 N.Y.S.2d 207, 2014 N.Y. App. Div. LEXIS 8686; 2014 NY Slip Op 08702 (App. Div. 3d Dep't, Dec. 11, 2014), revg 42 Misc. 3d 896, 976 N.Y.S.2d 650 (Sup. Ct. 2013).

18 See Letter from John Sipos to the Board (Nov. 6, 2014), attaching letter from Fred Dacimo (Entergy) to NRC Document Control Desk and Linda M. Baldwin, Esq. (NYSDOS), NL 14 140 (Withdrawal of December 17, 2012 Coastal Zone Management Act Consistency Certification) (Nov. 5, 2014) (ADAMS Accession No. ML14310A346).

2014, NYSDOS rejected Entergys withdrawal of its consistency certification, 19 and on November 6, 2015, NYSDOS issued its consistency determination, finding that license renewal of Indian Point Units 2 and 3 is not consistent with the New York CMP. 20 The U.S. Department of Commerce has extended the time for Entergy to appeal from NYSDOSs determination until 60 days after issuance of the Court of Appeals final order on New Yorks grandfathering appeal. 21 On January 14, 2016, Entergy filed an action against the New York Secretary of State in the U.S. District Court for the Northern District of New York (Case 1:16-cv-00051-LEK-DJS), asserting that NYSDOSs November 6, 2015 determination was based on nuclear safety concerns, intrudes on the NRCs exclusive regulatory authority over such matters, and is preempted by the Atomic Entergy Act.

8. Other Matters. The Staff is not currently aware of any other matter that has the potential to impact the schedule for hearings in this proceeding. In accordance with the Boards direction (Order, at 2), the Staff will notify the Board as soon as any other event with potential to alter the hearing schedule arises.

19 Letter from Linda M. Baldwin, Esq., General Counsel (NYSDOS), to Fred Dacimo (Entergy)

(Nov. 21, 2014) (ADAMS Accession No.ML14328A474).

20 Letter from Cesar A. Perales (Secretary of State, NYSDOS), to Fred Dacimo (Entergy) (Nov. 6, 2015).

21 Letter from Lois Schiffer (General Counsel, NOAA) to Sanford I. Weisburst, Esq. and Linda Baldwin, Esq. (Nov. 25 2015).

Respectfully submitted,

/Signed (electronically) by/

Sherwin E. Turk Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-1533 E-mail: Sherwin.Turk@nrc.gov Dated at Rockville, Maryland this 1st day of March 2016

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

)

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

)

(Indian Point Nuclear Generating )

Units 2 and 3) )

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R § 2.305 (as revised), I hereby certify that copies of the foregoing NRC STAFFS 49th STATUS REPORT IN RESPONSE TO THE ATOMIC SAFETY AND LICENSING BOARDS ORDER OF FEBRUARY 16, 2012, dated March 1, 2016, have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned proceeding, this 1st day of March 2016.

/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

March 1, 2016 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

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

)

(Indian Point Nuclear Generating )

Units 2 and 3) )

NRC STAFFS 49th STATUS REPORT IN RESPONSE TO THE ATOMIC SAFETY AND LICENSING BOARDS ORDER OF FEBRUARY 16, 2012 In accordance with the Atomic Safety and Licensing Boards (Board) Order (Granting NRC Staffs Unopposed Time Extension Motion and Directing Filing of Status Updates)

(Order), issued on February 16, 2012, the NRC Staff (Staff) herewith provides its 49th monthly status report to the Board.

Safety Issues

1. Track 2 Safety Issues. Hearings on the three Track 2 safety contentions related to the License Renewal Application (LRA) for Indian Point Units 2 and 3 (IP2 and IP3) were held on November 16-19, 2015. On February 5, 2016, the State of New York (New York) filed a motion seeking the late admission of six documents as exhibits related to the Track 2 contentions; answers to that motion were filed on February 16, 2016. 1 On February 19, 2019, the Board granted New Yorks Motion, conditioned upon its filing of expert testimony demonstrating the relevance, materiality and reliability of the proposed exhibits by March 4, 1 State of New York Motion for Leave to File Six Documents as Additional Exhibits (Feb. 5, 2016); NRC Staff Answer to State of New York Motion for Leave to File Six Documents as Additional Exhibits (Feb. 16, 2016); Entergys Answer to State of New York Motion for Leave to File Six Documents as Additional Exhibits (Feb. 16, 2016).

2016; responsive testimony is to be filed by Entergy and the Staff by March 18, 2016; New Yorks reply testimony is to be filed by March 25, 2016. 2 The Board suspended the schedule for filing proposed findings of fact and conclusions of law, and stated that the evidentiary record will be closed 10 days after its receipt of the above filings. 3

2. Other Safety Issues. There has been no change in this item since the Staff filed its previous status report. The Staff is reviewing issues associated with two recent Interim Staff Guidance (ISG) documents (LR-ISG-2012-02 and LR-ISG-2013-01). 4 The Staff has not yet determined whether these matters will be addressed in an SER Supplement; the Staff will provide further information to the Board regarding these issues when available.

Environmental Issues

3. FSEIS Supplement. There has been no change in this item since the Staff filed its previous status report. On December 22, 2015, the Staff issued its draft second supplement (Volume 5) 5 to the Final Supplemental Environmental Impact Statement (FSEIS) for license 2 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Order (Requesting Expert Testimony on New Yorks Proposed Exhibits and Suspending Deadline for Filing Proposed Findings of Fact and Law) (Feb. 19, 2016).

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

Order (Setting Post-Hearing Briefing Schedule) (Dec. 7, 2015).

4 See (1) Notice of Issuance, Interim Staff Guidance; LR-ISG-2012-02; Aging Management of Internal Surfaces, Fire Water Systems, Atmospheric Storage Tanks, and Corrosion under Insulation, 78 Fed. Reg. 70,076 (Nov. 22, 2013); (2) Notice of Issuance, Interim Staff Guidance; LR-ISG-2013-01; Aging Management of Loss of Coating or Lining Integrity for Internal Coatings/ Linings on In-Scope Piping, Piping Components, Heat Exchangers, and Tanks, 79 Fed. Reg. 68,308 (Nov. 14, 2014).

5 Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38 Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Draft Report for Comment, NUREG-1437, Supplement 38, Vol. 5 (Dec. 2015) (Draft FSEIS Supplement 2). See Letter from Sherwin E. Turk to the Board (Dec. 22, 2015), at 1.

renewal of IP2 and IP3. Public comments on Draft FSEIS Supplement 2 are due on March 4, 2016; 6 the Staff expects to issue Final FSEIS Supplement 2 in September 2016. 7

4. Contention NYS-35/36. There has been no change in this item since the Staff filed its previous status report. On July 14, 2011, the Board issued LBP-11-17, granting summary disposition on Contention NYS-35/36 (Implementation of Cost-Beneficial SAMAs) in favor of New York. 8 On February 18, 2015, the Commission granted the Staff and Entergys petitions for review of the Boards rulings on Contention NYS-35/36, and instructed the Staff to respond to four questions. 9 As required, the Staff filed its response on March 30, 2015; replies were filed by Entergy and New York on May 11, 2015.
5. Contention NYS-40. In May 2013, the Applicant submitted a letter to the Staff (NL-13-075), reporting the results of its completed engineering project cost estimates for severe accident mitigation alternatives (SAMAs) that previously had been identified as potentially cost-beneficial. 10 The Applicant noted that it was submitting the information to support resolution of certain issues identified in LBP-11-17 concerning Contention NYS-35/36. The Staff presented its evaluation of this information in Draft FSEIS Supplement 2, issued on December 22, 2015. On February 22, 2016, New York filed a motion for leave to file new Contention NYS-40, purportedly based on the Staffs Draft FSEIS evaluation of Entergys 6 See Entergy Nuclear Operations, Inc.; Indian Point Nuclear Generating Unit Nos. 2 and 3, Draft supplemental environmental impact statement; request for comment, 80 Fed. Reg. 81,377 (Dec. 29, 2015).

7 See Letter from Sherwin E. Turk to the Board (Dec. 22, 2015), at 2.

8 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-11-17, 74 NRC 11, petition for review granted, CLI-15-3, 81 NRC 217 (Feb. 18, 2015).

9 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), CLI-15-3, 81 NRC 217 (Feb. 18, 2015).

10 See Letter from Kathryn M. Sutton, Esq., et al., to the Board (May 7, 2013), attaching Letter from Fred Dacimo (Entergy) to the NRC Document Control Desk, NL-13-075 (May 6, 2013) (ADAMS Accession No. ML13142A014).

engineering project cost estimates; 11 answers to New Yorks new contention are due March 18, 2016.

6. Contention NYS-12C (SAMAs). There has been no change in this item since the Staff filed its previous status report. On February 14, 2014, New York filed a petition for Commission review of the Boards decision in LBP-13-13, 12 concerning its resolution of Contention NYS-12C; 13 on April 28, 2014, New York filed a petition for review of the Boards Order denying its motion to reopen and reconsider that decision. 14 On February 18, 2015, the Commission granted New Yorks petition for review and directed the parties to respond to eight related questions. 15 In accordance with the Commissions Order, initial briefs were filed by the Staff, Entergy, New York, and the State of Connecticut on March 30, 2015; reply briefs were filed by the Staff, Entergy and New York on April 29, 2015.
7. CZMA Issues. To the best of the Staffs knowledge, information and belief, the current status of CZMA-related issues is as follows.

11 See State of New York Motion for Leave [to File] Contention NYS-40 (Feb. 22, 2016), and State of New York Contention NYS-40 (Feb. 22, 2016). See also Entergy Nuclear Operations, Inc.

(Indian Point Nuclear Generating Units 2 and 3),Order (Granting Entergys Motion [for] Clarification)

(July 9, 2013), at 3.

12 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-13-13, 78 NRC 246 (Nov. 27, 2013).

13 State of New York Petition for Review of Atomic Safety and Licensing Board Decision LBP-13-13 With Respect to Consolidated Contention NYS-12C (Feb. 14, 2014). On March 9, 2015, the Commission issued a Memorandum and Order resolving the Staffs, Entergys and Hudson River Sloop Clearwaters petitions for review of other portions of LBP-13-13. See Entergy Nuclear Operations, Inc.

(Indian Point Nuclear Generating Units 2 and 3), CLI-15-6, 81 NRC 340 (2015) (reversing the Boards resolution of Contention NYS-8 (Transformers), and reversing in part, and affirming in part, its resolution of Contention CW-EC3A (Environmental Justice).

14 See (1) State of New York Petition for Review of Atomic Safety and Licensing Boards April 1, 2014 Decision Denying the States Motion to Reopen the Record and for Reconsideration of the Boards November 27, 2013 Partial Initial Decision Concerning Consolidated Contention NYS-12C (Apr. 28, 2014); (2) Order (Denying New Yorks Motion to Reopen the Record; Setting Deadline for New or Amended Contention) (Apr. 1, 2014).

15 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), CLI-15-2, 81 NRC 213 (Feb. 18, 2015).

(a) Previous Reviews. On June 12, 2013, the Board denied the Applicants and New Yorks motions seeking the entry of a declaratory order regarding Entergys claim that New York had previously conducted a review of IP2/IP3 for consistency with the New York State Coastal Management Program (CMP), such that no further review is required under the Coastal Zone Management Act (CZMA). 16 The Board left open the possibility that the motions might be re-filed after consultations between the Staff and New York pursuant to 15 C.F.R.

§ 930.51(e). The Staff engaged in a series of consultations with the New York State Department of State (NYSDOS) and the Applicant in 2013 and 2014.

(b) Grandfathering. On December 11, 2014, the State of New York Supreme Court, Appellate Division, Third Judicial Department, reversed the Supreme Courts December 2013 decision, and held (in a 5-0 decision) that Indian Point Units 2 and 3 were grandfathered under New Yorks CMP and are therefore exempt from consistency review. 17 On June 4, 2015, the Court of Appeals granted New Yorks motion for leave to appeal; Entergy has responded to New Yorks appeal, and on February 16, 2016, New York filed its reply to Entergys brief. Oral argument is expected later this year.

(c) 2012 Consistency Certification. On December 17, 2012, Entergy filed a certification with the NYSDOS, asserting that license renewal of IP2/IP3 is consistent with the New York CMP; on November 5, 2014, Entergy withdrew that consistency determination, subject to its resubmittal following issuance of the Staffs Final FSEIS Supplement. 18 On November 21, 16 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Order (Granting New Yorks Motions, Denying Clearwaters Motion, and Denying CZMA Motions) (June 12, 2013).

17 Entergy Nuclear Operation, Inc. v. New York State Department of State, 518510, 999 N.Y.S.2d 207, 2014 N.Y. App. Div. LEXIS 8686; 2014 NY Slip Op 08702 (App. Div. 3d Dep't, Dec. 11, 2014), revg 42 Misc. 3d 896, 976 N.Y.S.2d 650 (Sup. Ct. 2013).

18 See Letter from John Sipos to the Board (Nov. 6, 2014), attaching letter from Fred Dacimo (Entergy) to NRC Document Control Desk and Linda M. Baldwin, Esq. (NYSDOS), NL 14 140 (Withdrawal of December 17, 2012 Coastal Zone Management Act Consistency Certification) (Nov. 5, 2014) (ADAMS Accession No. ML14310A346).

2014, NYSDOS rejected Entergys withdrawal of its consistency certification, 19 and on November 6, 2015, NYSDOS issued its consistency determination, finding that license renewal of Indian Point Units 2 and 3 is not consistent with the New York CMP. 20 The U.S. Department of Commerce has extended the time for Entergy to appeal from NYSDOSs determination until 60 days after issuance of the Court of Appeals final order on New Yorks grandfathering appeal. 21 On January 14, 2016, Entergy filed an action against the New York Secretary of State in the U.S. District Court for the Northern District of New York (Case 1:16-cv-00051-LEK-DJS), asserting that NYSDOSs November 6, 2015 determination was based on nuclear safety concerns, intrudes on the NRCs exclusive regulatory authority over such matters, and is preempted by the Atomic Entergy Act.

8. Other Matters. The Staff is not currently aware of any other matter that has the potential to impact the schedule for hearings in this proceeding. In accordance with the Boards direction (Order, at 2), the Staff will notify the Board as soon as any other event with potential to alter the hearing schedule arises.

19 Letter from Linda M. Baldwin, Esq., General Counsel (NYSDOS), to Fred Dacimo (Entergy)

(Nov. 21, 2014) (ADAMS Accession No.ML14328A474).

20 Letter from Cesar A. Perales (Secretary of State, NYSDOS), to Fred Dacimo (Entergy) (Nov. 6, 2015).

21 Letter from Lois Schiffer (General Counsel, NOAA) to Sanford I. Weisburst, Esq. and Linda Baldwin, Esq. (Nov. 25 2015).

Respectfully submitted,

/Signed (electronically) by/

Sherwin E. Turk Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-1533 E-mail: Sherwin.Turk@nrc.gov Dated at Rockville, Maryland this 1st day of March 2016

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

)

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

)

(Indian Point Nuclear Generating )

Units 2 and 3) )

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R § 2.305 (as revised), I hereby certify that copies of the foregoing NRC STAFFS 49th STATUS REPORT IN RESPONSE TO THE ATOMIC SAFETY AND LICENSING BOARDS ORDER OF FEBRUARY 16, 2012, dated March 1, 2016, have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned proceeding, this 1st day of March 2016.

/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

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