ML16004A459

NRC Staff'S 47th Status Report in Response to the Atomic Safety and Licensing Board'S Order of February 16, 2012

ML16004A459
Person / Time
Site:	Indian Point
Issue date:	01/04/2016
From:	Turk S E 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 50830
Download: ML16004A459 (9)

Text

January 4, 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 STAFF'S 47th 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 NRC Staff ("Staff") herewith provides its 47th 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. In accordance with the schedule proposed by the parties and adopted by the Board, proposed transcript corrections are due January 8, 2016; proposed findings of fact and conclusions of law are due February 29, 2016; and reply findings of fact and conclusions of law are due March 30, 2016.1 2. Implementation of IP3 License Renewal Commitments. On September 28, 2015, Entergy Nuclear Operations, Inc. ("Entergy" or "Applicant") informed the Staff that it had 1 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), "Order (Setting Post-Hearing Briefing Schedule)" (Dec. 7, 2015). implemented the LRA commitments for IP3 that were required to be implemented prior to the period of extended operation;2 on October 1, 2015, Entergy submitted Revision 6 to the IP3 Updated Final Safety Analysis Report ("UFSAR"), in which it incorporated changes to the facility since the UFSAR update of September 2013, including changes to incorporate the UFSAR Supplement in LRA Appendix A.3 The Staff conducted an inspection of Entergy's implementation of its IP3 license renewal commitments during the week of October 5-9, 2015. On November 19, 2015, the Staff issued its license renewal inspection report, in which it concluded that "the commitments reviewed associated with the [LRA] had been appropriately implemented;"4 this included implementation of LRA Commitments 3, 19, 23, 32, 48, and 49. Indian Point Unit 3 entered the period of timely renewal on December 13, 2015. 3. Proprietary Designation of Documents. On July 20, 2015, the Board denied the State of New York's ("New York") motion to withdraw the proprietary designation of five documents;5 on November 9, 2015, the Commission denied New York's petition for interlocutory review of that Order.6 On October 20, 2015, New York filed a second motion, seeking the disclosure of 10 Westinghouse Calculation Notes; the Board denied that motion in an oral ruling on November 16, 2015. On December 14, 2015, New York filed a third motion, 2 Letter from Fred Dacimo (Entergy) to NRC Document Control Desk (NL-15-121) (Sept. 28, 2015) (ADAMS Accession No. ML15279A074). 3 Letter from Fred Dacimo (Entergy) to NRC Document Control Desk (NL-15-130) (Oct. 1, 2015) (ADAMS Accession No. ML15293A144). 4 Letter from Mel Gray (NRC Region I) to Lawrence Coyle (Entergy) (Nov. 19, 2015) (ADAMS Accession No. ML14337A042), at 1. A copy of the inspection report ("Indian Point Nuclear Generating Unit 3 - License Renewal Inspection Report 05000286/2015011") is being submitted herewith for the convenience of the Board and parties. 5 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), "Order (Denying New York Motion to Withdraw Proprietary Designation)" (July 20, 2015). 6 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), CLI-15-24, 82 NRC ___ (Nov. 9, 2015) (slip op.). seeking the disclosure of six revised Westinghouse Calculation Notes;7 answers opposing that motion have been filed by the Staff, Entergy and Westinghouse.8 4. 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).9 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 5. FSEIS Supplement. On December 22, 2015, the Staff issued its draft second supplement (Volume 5)10 to the Final Supplemental Environmental Impact Statement ("FSEIS") for license renewal of IP2 and IP3. Public comments on Draft FSEIS Supplement 2 are due on March 4, 2015;11 the Staff expects to issue Final FSEIS Supplement 2 in September 2016.12 7 "State of New York Motion for Public Disclosure of Six Revised Westinghouse Documents" (Dec. 14, 2015). 8 See (1) "NRC Staff's Answer in Opposition to the State of New York's Third Motion to Compel Public Disclosure of Confidential Westinghouse Documents" (Dec. 22, 2015); (2) "Westinghouse Electric Company's Opposition to New York State's Motion for Disclosure of Proprietary Documents" (Dec. 23, 2015); and (3) "Entergy's Answer Opposing State of New York Motion for Public Disclosure of Six Revised Westinghouse Documents" (Dec. 23, 2015). 9 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). 10 "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. 11 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). 12 See Letter from Sherwin E. Turk to the Board (Dec. 22, 2015), at 2, 6. Contention NYS-35/36. 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.13 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.14 As required, the Staff filed its response on March 30, 2015; replies were filed by Entergy and New York on May 11, 2015. 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 SAMAs that previously had been identified as potentially cost-beneficial.15 The Applicant noted, inter alia, that it was submitting the information "to support resolution of certain issues identified by the Board" in LBP-11-17." The Staff presented its evaluation of the revised information in Draft FSEIS Supplement 2, issued on December 22, 2015. In accordance with the Board's Order of July 9, 2013, "adjudicatory submissions based on NL 13 075 are due no later than 60 days after the Staff issues its draft FSEIS supplement . . . discussing its review of NL 13 075. . . ."16 7. 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 Board's decision in LBP-13-13,17 concerning its resolution of 13 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). 14 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), CLI-15-3, 81 NRC 217 (Feb. 18, 2015). 15 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). 16 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3),"Order (Granting Entergy's Motion [for] Clarification)" (July 9, 2013), at 3. 17 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-13-13, 78 NRC 246 (Nov. 27, 2013). Contention NYS-12C;18 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.19 On February 18, 2015, the Commission granted New York's petition for review and directed the parties to respond to eight related questions.20 In accordance with the Commission's 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. 8. CZMA Issues. To the best of the Staff's knowledge, information and belief, the current status of CZMA-related issues is as follows. (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").21 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 18 "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-13-13. 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). 19 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). 20 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), CLI-15-2, 81 NRC 213 (Feb. 18, 2015). 21 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). Department of State ("NYSDOS") and the Applicant in 2013 and 2014. The Staff will provide further information to the Board regarding this matter when available. (b) Grandfathering. On 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.22 On June 4, 2015, the Court of Appeals granted New York's motion for leave to appeal; on December 4, 2015, the court temporarily suspended the briefing schedule pending its review of recent correspondence regarding the State's consistency determination of November 6, 2015. (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 Staff's Final FSEIS Supplement.23 On November 21, 2014, NYSDOS rejected Entergy's withdrawal of its consistency certification,24 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.25 On November 25, 2015, the U.S. Department of Commerce extended the time for Entergy to appeal from NYSDOS's consistency determination until 60 days after issuance of the Court of Appeals' final 22 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). 23 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). 24 Letter from Linda M. Baldwin, Esq., General Counsel (NYSDOS), to Fred Dacimo (Entergy) (Nov. 21, 2014) (ADAMS Accession No.ML14328A474). 25 Letter from Cesar A. Perales (Secretary of State, NYSDOS), to Fred Dacimo (Entergy) (Nov. 6, 2015). order on New York's appeal from the Appellate Division's grandfathering decision.26 9. Aquatic Impacts. As stated previously, on February 19, 2014, Entergy submitted new information to the Staff regarding the impacts of plant operation on various aquatic species in the Hudson River,27 modifying the information that had been evaluated in the FSEIS and FSEIS Supplement (FSEIS Vol. 4).28 The Staff presented its evaluation of the new information in Draft FSEIS Supplement 2, issued on December 22, 2015. 10. Endangered and Threatened Species. On April 2, 2015, the U.S. Fish and Wildlife Service published a final rule listing the northern long-eared bat as threatened throughout its range, which includes the Indian Point site.29 On July 1, 2015, the Staff issued a Biological Assessment, finding that license renewal of IP2/IP3 may affect but is "not likely to adversely affect" the northern long-eared bat and Indiana bat;30 on July 14, 2015, FWS concurred in the Staff's assessment.31 The Staff presented its evaluation of this information in Draft FSEIS Supplement 2, issued on December 22, 2015. 26 Letter from Lois Schiffer (General Counsel, NOAA) to Sanford I. Weisburst, Esq. and Linda Baldwin, Esq. (Nov. 25 2015). 27 See Letter from Fred Dacimo (Entergy), to Lois James and NRC Document Control Desk, "Final Supplemental Environmental Impact Statement," NL-14-030 (Feb. 19, 2014) (ADAMS Accession No. ML14063A528). 28 "Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38 Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Final Report," NUREG-1437, Supplement 38, Volume 4 (June 2013) (ADAMS Accession No. ML13162A616). 29 80 Fed. Reg. 17,973 (Apr. 2, 2015). 30 See (1) letter from David J. Wrona (NRC) to David Stilwell (FWS) (July 1, 2015) (ADAMS Accession No. ML15161A066); and (2) "Biological Assessment on the Northern Long-Eared Bat (Myotis septentrionalis) and Indiana Bat (Myotis sodalis) / Indian Point Nuclear Generating Units 2 and 3 Proposed License Renewal" (July 2015) (ADAMS Accession No. ML15161A086). 31 Letter from David A. Stilwell (FWS) to David J. Wrona (NRC) (July 14, 2015) (ADAMS Accession No. ML15196A013). 11. 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. 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 4th day of January 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 STAFF'S 47th STATUS REPORT IN RESPONSE TO THE ATOMIC SAFETY AND LICENSING BOARD'S ORDER OF FEBRUARY 16, 2012," dated January 4, 2016, have been served upon the Electronic Information Exchange (the NRC's E-Filing System), in the above-captioned proceeding, this 4th day of January 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 January 4, 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 STAFF'S 47th 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 NRC Staff ("Staff") herewith provides its 47th 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. In accordance with the schedule proposed by the parties and adopted by the Board, proposed transcript corrections are due January 8, 2016; proposed findings of fact and conclusions of law are due February 29, 2016; and reply findings of fact and conclusions of law are due March 30, 2016.1 2. Implementation of IP3 License Renewal Commitments. On September 28, 2015, Entergy Nuclear Operations, Inc. ("Entergy" or "Applicant") informed the Staff that it had 1 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), "Order (Setting Post-Hearing Briefing Schedule)" (Dec. 7, 2015). implemented the LRA commitments for IP3 that were required to be implemented prior to the period of extended operation;2 on October 1, 2015, Entergy submitted Revision 6 to the IP3 Updated Final Safety Analysis Report ("UFSAR"), in which it incorporated changes to the facility since the UFSAR update of September 2013, including changes to incorporate the UFSAR Supplement in LRA Appendix A.3 The Staff conducted an inspection of Entergy's implementation of its IP3 license renewal commitments during the week of October 5-9, 2015. On November 19, 2015, the Staff issued its license renewal inspection report, in which it concluded that "the commitments reviewed associated with the [LRA] had been appropriately implemented;"4 this included implementation of LRA Commitments 3, 19, 23, 32, 48, and 49. Indian Point Unit 3 entered the period of timely renewal on December 13, 2015. 3. Proprietary Designation of Documents. On July 20, 2015, the Board denied the State of New York's ("New York") motion to withdraw the proprietary designation of five documents;5 on November 9, 2015, the Commission denied New York's petition for interlocutory review of that Order.6 On October 20, 2015, New York filed a second motion, seeking the disclosure of 10 Westinghouse Calculation Notes; the Board denied that motion in an oral ruling on November 16, 2015. On December 14, 2015, New York filed a third motion, 2 Letter from Fred Dacimo (Entergy) to NRC Document Control Desk (NL-15-121) (Sept. 28, 2015) (ADAMS Accession No. ML15279A074). 3 Letter from Fred Dacimo (Entergy) to NRC Document Control Desk (NL-15-130) (Oct. 1, 2015) (ADAMS Accession No. ML15293A144). 4 Letter from Mel Gray (NRC Region I) to Lawrence Coyle (Entergy) (Nov. 19, 2015) (ADAMS Accession No. ML14337A042), at 1. A copy of the inspection report ("Indian Point Nuclear Generating Unit 3 - License Renewal Inspection Report 05000286/2015011") is being submitted herewith for the convenience of the Board and parties. 5 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), "Order (Denying New York Motion to Withdraw Proprietary Designation)" (July 20, 2015). 6 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), CLI-15-24, 82 NRC ___ (Nov. 9, 2015) (slip op.). seeking the disclosure of six revised Westinghouse Calculation Notes;7 answers opposing that motion have been filed by the Staff, Entergy and Westinghouse.8 4. 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).9 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 5. FSEIS Supplement. On December 22, 2015, the Staff issued its draft second supplement (Volume 5)10 to the Final Supplemental Environmental Impact Statement ("FSEIS") for license renewal of IP2 and IP3. Public comments on Draft FSEIS Supplement 2 are due on March 4, 2015;11 the Staff expects to issue Final FSEIS Supplement 2 in September 2016.12 7 "State of New York Motion for Public Disclosure of Six Revised Westinghouse Documents" (Dec. 14, 2015). 8 See (1) "NRC Staff's Answer in Opposition to the State of New York's Third Motion to Compel Public Disclosure of Confidential Westinghouse Documents" (Dec. 22, 2015); (2) "Westinghouse Electric Company's Opposition to New York State's Motion for Disclosure of Proprietary Documents" (Dec. 23, 2015); and (3) "Entergy's Answer Opposing State of New York Motion for Public Disclosure of Six Revised Westinghouse Documents" (Dec. 23, 2015). 9 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). 10 "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. 11 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). 12 See Letter from Sherwin E. Turk to the Board (Dec. 22, 2015), at 2, 6. Contention NYS-35/36. 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.13 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.14 As required, the Staff filed its response on March 30, 2015; replies were filed by Entergy and New York on May 11, 2015. 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 SAMAs that previously had been identified as potentially cost-beneficial.15 The Applicant noted, inter alia, that it was submitting the information "to support resolution of certain issues identified by the Board" in LBP-11-17." The Staff presented its evaluation of the revised information in Draft FSEIS Supplement 2, issued on December 22, 2015. In accordance with the Board's Order of July 9, 2013, "adjudicatory submissions based on NL 13 075 are due no later than 60 days after the Staff issues its draft FSEIS supplement . . . discussing its review of NL 13 075. . . ."16 7. 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 Board's decision in LBP-13-13,17 concerning its resolution of 13 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). 14 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), CLI-15-3, 81 NRC 217 (Feb. 18, 2015). 15 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). 16 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3),"Order (Granting Entergy's Motion [for] Clarification)" (July 9, 2013), at 3. 17 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), LBP-13-13, 78 NRC 246 (Nov. 27, 2013). Contention NYS-12C;18 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.19 On February 18, 2015, the Commission granted New York's petition for review and directed the parties to respond to eight related questions.20 In accordance with the Commission's 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. 8. CZMA Issues. To the best of the Staff's knowledge, information and belief, the current status of CZMA-related issues is as follows. (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").21 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 18 "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-13-13. 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). 19 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). 20 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), CLI-15-2, 81 NRC 213 (Feb. 18, 2015). 21 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). Department of State ("NYSDOS") and the Applicant in 2013 and 2014. The Staff will provide further information to the Board regarding this matter when available. (b) Grandfathering. On 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.22 On June 4, 2015, the Court of Appeals granted New York's motion for leave to appeal; on December 4, 2015, the court temporarily suspended the briefing schedule pending its review of recent correspondence regarding the State's consistency determination of November 6, 2015. (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 Staff's Final FSEIS Supplement.23 On November 21, 2014, NYSDOS rejected Entergy's withdrawal of its consistency certification,24 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.25 On November 25, 2015, the U.S. Department of Commerce extended the time for Entergy to appeal from NYSDOS's consistency determination until 60 days after issuance of the Court of Appeals' final 22 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). 23 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). 24 Letter from Linda M. Baldwin, Esq., General Counsel (NYSDOS), to Fred Dacimo (Entergy) (Nov. 21, 2014) (ADAMS Accession No.ML14328A474). 25 Letter from Cesar A. Perales (Secretary of State, NYSDOS), to Fred Dacimo (Entergy) (Nov. 6, 2015). order on New York's appeal from the Appellate Division's grandfathering decision.26 9. Aquatic Impacts. As stated previously, on February 19, 2014, Entergy submitted new information to the Staff regarding the impacts of plant operation on various aquatic species in the Hudson River,27 modifying the information that had been evaluated in the FSEIS and FSEIS Supplement (FSEIS Vol. 4).28 The Staff presented its evaluation of the new information in Draft FSEIS Supplement 2, issued on December 22, 2015. 10. Endangered and Threatened Species. On April 2, 2015, the U.S. Fish and Wildlife Service published a final rule listing the northern long-eared bat as threatened throughout its range, which includes the Indian Point site.29 On July 1, 2015, the Staff issued a Biological Assessment, finding that license renewal of IP2/IP3 may affect but is "not likely to adversely affect" the northern long-eared bat and Indiana bat;30 on July 14, 2015, FWS concurred in the Staff's assessment.31 The Staff presented its evaluation of this information in Draft FSEIS Supplement 2, issued on December 22, 2015. 26 Letter from Lois Schiffer (General Counsel, NOAA) to Sanford I. Weisburst, Esq. and Linda Baldwin, Esq. (Nov. 25 2015). 27 See Letter from Fred Dacimo (Entergy), to Lois James and NRC Document Control Desk, "Final Supplemental Environmental Impact Statement," NL-14-030 (Feb. 19, 2014) (ADAMS Accession No. ML14063A528). 28 "Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38 Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Final Report," NUREG-1437, Supplement 38, Volume 4 (June 2013) (ADAMS Accession No. ML13162A616). 29 80 Fed. Reg. 17,973 (Apr. 2, 2015). 30 See (1) letter from David J. Wrona (NRC) to David Stilwell (FWS) (July 1, 2015) (ADAMS Accession No. ML15161A066); and (2) "Biological Assessment on the Northern Long-Eared Bat (Myotis septentrionalis) and Indiana Bat (Myotis sodalis) / Indian Point Nuclear Generating Units 2 and 3 Proposed License Renewal" (July 2015) (ADAMS Accession No. ML15161A086). 31 Letter from David A. Stilwell (FWS) to David J. Wrona (NRC) (July 14, 2015) (ADAMS Accession No. ML15196A013). 11. 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. 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 4th day of January 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 STAFF'S 47th STATUS REPORT IN RESPONSE TO THE ATOMIC SAFETY AND LICENSING BOARD'S ORDER OF FEBRUARY 16, 2012," dated January 4, 2016, have been served upon the Electronic Information Exchange (the NRC's E-Filing System), in the above-captioned proceeding, this 4th day of January 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