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State of New York'S Proposed Findings of Fact and Conclusions of Law Regarding the Adequacy of Entergy'S Aging Management Program for Buried Pipes and Tanks (Contention NYS-5)
	ML13081A747
Person / Time
Site:	Indian Point
Issue date:	03/22/2013
From:	Dean J A, Sipos J J; State of NY, Office of the Attorney General
To:	; Atomic Safety and Licensing Board Panel
	SECY RAS
References
	RAS 24270, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01
	Download: ML13081A747 (83)
	v • d • e

UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

x In re: Docket Nos. 50

-247-LR; 50-286-LR License Renewal Application Submitted by ASLBP No. 07

-858-03-LR-BD01 Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc.

March 22 , 2013 -----------------------------------------------------------

x

STATE OF NEW YORK'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW REGARDING THE ADEQUACY OF ENTERGY'S AGING MANAGEMENT PROGRAM FOR BURIED PIPES AND TANKS (CONTENTION NYS

-5)

Office of the Attorney General for the State of New York The Capitol State Street Albany, New York 12224

TABLE OF CONTENTS Page i GLOSSARY OF TERMS, ACRONYMS, & ABBREVIATIONS

................................

.............

G-i I. INTRODUCTION

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...............

2 A. Overview of Indian Point Facilities

................................

.........3 II. PROCEDURAL HISTORY

................................

.6 A. Entergy's April 2007 License Renewal Application and its Description of an "Aging Management Program" for Buried Pipes

................................

.......6 B. The Updated Final Safety Analysis Report

................................

.............................

8 C. The Standard Review Plan

................................

.......................

9 D. Generic Aging Lessons Learned (GALL) Report and GALL Revision One

........10 E. Contention NYS

-5 ................................

................................

.12 F. The Board's Admission of Contention NYS

-5 ................................

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14 G. Changes In Operating Experience

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.........15

1. Operating Experience at Indian Point

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15

2. Industry Responds to Changes in Operating Experience

...........................

15 H. June 2009 NRC Staff Request for Additional Information

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...18 I. Summer 2009 Teleconferences between Entergy and NRC Staff and a Slight Commitment Revision

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19 J. NRC Staff Issues its Initial Safety Evaluation Report in November 2009

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19 K. November 2010 Area Potential Earth Current (APEC) Survey

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20 L. NRC Issues GALL, Revision Two

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........21 M. February 2011 Request for Additional Information

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23 N. June 2011 Request for Additional Information

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24 O. Entergy's Corporate Documents (also referred to as "Implementing Procedures")

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25 TABLE OF CONTENTS Page ii 1. EN-DC-343: Fleetwide Buried Piping and Tanks Inspection and Monitoring Program

................................

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26 2. CEP-UPT-0100 ................................

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29

3. SEP-UIP-IPEC: Underground Components Inspection Plan

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31

4. EN-EP-S-002-MULTI - Buried Piping and Tanks General Visual Inspection Engineering Standard

................................

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32

5. The Role of These Implementing Procedures

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32 P. NRC Staff's Supplemental Safety Evaluation Report

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35 Q. The Updated Final Safety Analysis Report Supplement ................................

.......36 R. Pre-filed Testimony

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36 S. Staff Issues Draft and Final License Renewal Interim Staff Guidance f or Buried Pipes

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.....38 T. July 2012 Buried Piping Temporary Instruction Inspections

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40 III. WITNESSES................................

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41 A. State of New York Witness

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41 B. Entergy Witnesses

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..42 C. Staff Witnesses

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.......44 IV. LEGAL STANDARD

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........45 A. Burden of Proof

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......45 B. Evidentiary Standards

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46 C. Commitments and 10 C.F.R. 50.59

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........48 V. INDIAN POINT'S AGING MANAGEMENT PROGRAM FOR BURIED AND UNDERGROUND PIPES AND TANKS

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.........51 A. Entergy's Proposed Aging Management Program

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51 B. License Renewal Audits

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56 TABLE OF CONTENTS Page iii C. GALL Revision One vs. GALL Revision Two

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59 D. Cathodic Protection at Indian Point

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.......61 E. Likelihood of Future Coating Failures and "Holidays"

................................

.........63

1. Large Rocks Have Damaged Buried Piping Coating at Indian Point, and the Record Does Not Support Staff's Findings to the Contrary

..........

64

2. Recent Inspections Found Corrosion Problems Warranting the Application of Cathodic Protection

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65 F. Replacing Cathodic Protection With Increased Inspections

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..67 G. The UFSAR Supplement for Indian Point

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68 VI. CONCLUSIONS OF LAW

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70 VII. PROPOSED ORDER

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.........72 ATTACHMENTS ATT-1 "Indian Point Nuclear Generating Unit Nos. 2 and 3 Changes to the Indian Point LRA Aging Management Programs and Activities (Appendix B)

" ....................

ATT-1-1

ATT-2 "Indian Point Nuclear Generating Unit No. 2 Changes to the Indian Point LRA Updated Final Safety Analysis Report Supplement (Appendix A)

" ..........

ATT-2-1 G-i GLOSSARY OF TERMS, ACRONYMS, & ABBREVIATIONS

AMP aging management program

APEC survey Area Potential Earth Current survey cathodic protection (CP) a technique used to reduce the corrosion of a metal surface by making that surface the cathode of an electrochemical cell (2012 05 09 ENTERGY Corrected Testimony-SOP-Cavallo CV NYS

-5) FSAR Final Safety Analysis Report

holidays breaks or defects in coating of pipes

IP1 Indian Point Energy Center Unit 1

IP2 Indian Point Energy Center Unit 2

IP3 Indian Point Energy Center Unit 3

LRA license renewal application

opportunistic inspection An inspection performed when underground components are exposed or excavated due to another maintenance activity providing an

opportunity to inspect a program component (ENT000578)

PEO period of extended operation

SSCs systems, structures and components

UFSAR Updated Final Safety Analysis Report

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 1 THE STATE OF NEW YORK'S PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW AS TO CONTENTION NYS

-5 1. In accordance with 10 C.F.R.

§ 2.1209 and the January 15, 2013 Order issued by the Atomic Safety and Licensing Board ("Board"), the State of New York ("State") submits its proposed Findings of Fact and Conclusions of Law on the State's admitted Contention NYS

-5. At issue in this contention is whether Entergy's aging management program for the management of buried pipes at the Indian Point facilities demonstrates that the effects of aging on the intended function(s) will be adequately managed for the period of extended operation.

2. These proposed findings support the Board's determination, under 10 C.F.R.

§§ 54.21 and 54.29, that renewed operating licenses should not be issued authorizing Entergy to operate the Indian Point nuclear power plants for additional 20

-year terms.

3. As described in detail below, Entergy's aging management program (AMP) for buried pipes is inadequate.

First, Entergy has not demonstrated that its proposal for buried pipes and tanks complies with the appropriate section of either GALL Revision 1 or GALL Revision

2. Second, cathodic protection is necessary at this facility to prevent corrosion. Given the history of corrosion and the continual presence of corrosive conditions at Indian Point as referenced by Entergy's own recent inspections, Entergy's proposal to substitute additional inspections for cathodic protection is not adequate. Inspections are not preventive measures and cannot substitute for cathodic protection, which is a well

-accepted preventive measure.

Third, although as part of its formal license renewal application Entergy proposes to substitute inspections in lieu of cathodic protection, in their testimony Entergy witnesses disclosed that Entergy has in fact begun to add cathodic protection to certain buried pipes at State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 2 Indian Point. At present, the record in this adjudicatory proceeding does not contain an up

-to-date NRC Staff review of Entergy's current actual approach to aging pipes nor does it contain essential details of the program including (1) the criteria used to determine which pipes will receive the protection, (2) the type of protection, (3) how and where it was installed, or (4) the maintenance program for the cathodic protection system to mention only the most obvious missing elements.

Given this gap and discrepancy between Entergy's proposed program and its current actual approach, the record in this proceeding does not provide a basis on which the Board could base a finding of reasonable assurance that the facilities' current licensing basis will be maintained throughout the period of extended operation. Fourth, Entergy witnesses testified that implementing procedures are needed in order for Entergy to meet its license renewal commitments, but the se implementing procedures are not captured in the License Renewal Application or Updated Final Safety Analysis Report and are not binding on the applicant or enforceable by NRC Staff. On these grounds, the record is not even clear as to what constitutes Entergy's AMP , nor is it clear what aspects of any such program are actually binding and enforceable upon Entergy for the period of extended operation.

Entergy's AMP does not provide reasonable assurance that the current licensing basis for the Indian Point facilities will be maintained throughout the period of extended operation.

I. INTRODUCTION 4. These proposed findings of fact and conclusions of law address Entergy's license renewal application for Indian Point Units 2 and 3, and the State of New York's Contention

NYS-5, which asserts that Entergy's aging management program for the management of buried pipes does not demonstrate that the effects of aging on the intended function(s) will be adequately managed for the period of extended operation.

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 3 5. Based on the pre

-filed testimony and exhibits submitted by the parties, and the testimony provided during the evidentiary hearing held in Tarrytown, New York on December 10 and 11, 2012, and for the reasons set forth below, Entergy's AMP for buried pipes and tanks does not "demonstrate that ... [t]he effects of aging on the intended function(s) will be adequately managed for the period of extended operation" as required by 10 C.F.R. § 54.29.

6.Section II below summarizes the unusually extensive legal and procedural history of this contention and this issue, during which both Entergy's AMP and NRC's regulatory scheme for buried pipes underwent significant changes.Section III reviews the witnesses presented by parties.Section IV sets forth the applicable legal and regulatory standards.

Section V concerns deficiencies in Entergy's management of aging pipes at the Indian Point facilities. In Section V I the State presents its conclusions of law that Entergy's aging management program for the management of buried pipes does not demonstrate that the effects of aging on the intended function(s) will be adequately managed for the period of extended operation. Finally, in Section V II, the State submits a Proposed Order.

A. Overview of the Indian Point Facilities

7. The Indian Point facility is made up of three units, only two of which are still operational.

Unit One's construction permit was issued on May 4, 1956, and its conditional operating license was issued on March 26, 1962. It operated commercially from August 1962 until October 31, 1974. The plant was shut down because its emergency core cooling system did not meet regulatory requirements; it is currently in "SAFSTOR." See http://www.nrc.gov/info

-finder/decommissioning/power

-reactor/indian

-point-unit-1.html. Unit Two's construction permit was issued on October 10, 1966, and its operating license was issued on September 28, 1973; Unit Three's construction permit was issued on August 13, 1969, and its operating license was State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 4 issued on December 12, 1975.

See http://www.nrc.gov/reading

-rm/doc-collections/nuregs/staff/ sr1350/appa.xls.

8. Unit Two and Unit Three have inaccessible buried pipes, and some of Unit One's buried pipes are intertwined with Unit Two's pipes.

See LRA at 1-7 ("Although the extension of the IP1 license is not a part of this license renewal application, IP1 systems and components interface with and in some cases support the operation of IP2 and IP3."

) Collectively, Entergy estimates that there are nearly 15 miles of buried pipe at Indian Point. Tr. 3784:10

-13 (Biagiotti). Th ese buried pipes are shown on the following figure, provided in Entergy's pre

-filed testimony.

See ENTR00373 at 30, Fig. 1.

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 5 State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 6 9. Currently, piping systems for Unit Three could have been in the ground for 46 years, dating from its construction permit issuance; piping for Unit Two could have been in the ground for up to 51 years dating from its construction permit issuance; and piping for Unit One could have been in the ground for 56 years dating from its construction permit issuance. II. PROCEDURAL HISTORY

10. On April 30, 2007, Entergy submitted to the U.S.

Nuclear Regulatory Commission ("NRC" or "Commission") an application for a 20

-year renewal, pursuant to 10 C.F.R. Part 54, of Operating Licenses Nos. DPR

-26 and 64 for Indian Point Units 2 and 3. 11. Indian Point Units 2 and 3's current 40

-year operating licenses expire in 2013 and 2015, respectively.

A. Entergy's April 2007 License Renewal Application and its Description of an "Aging Management Program" for Buried Pipes

12. Entergy's April 2007 License Renewal Application contained a section discussing buried pipes and tanks. LRA, section B.1.6. In turn, that section contained what Entergy asserts constituted a proposed AMP for buried pipes and tanks. The ostensible AMP that Entergy referred to in its 2007 LRA contained almost no detail concerning measures that it would take to manage the aging of buried pipes, saying only that:

The Buried Piping and Tanks Inspection Program is a new program that includes (a) preventive measures to mitigate corrosion and (b) inspections to manage the effects of corrosion on the pressure

-retaining capability of buried carbon steel, gray cast iron, and stainless steel components.

Preventive measures are in accordance with standard industry practice for maintaining external coatings and wrappings. Buried components are inspected when excavated during maintenance.

If trending within the corrective action program identifies susceptible locations, the areas with a history of corrosion problems are evaluated for the need for additional inspection, alternate coating, or replacement.

LRA, section B.1.6. During the hearing, judges and witnesses referred to this program as the "BPTIP." See, e.g., Tr. 3298:18

-22 (J. Wardwell).

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 7 13. At the hearing, NRC Staff's witness clarified that there is in fact no document called the Buried Piping and Tanks Inspection Program or BPTIP, but that at the time of the LRA submission, the BPTIP was "what we described in the LRA section B.1.6." Tr. 3343:10

-14 (Cox). Entergy had a slightly different view, stating that "BPTIP, that's a site document that we use to implement the program that we described in the LRA. I think we call the program in the LRA the BPTIP as well." Tr. 3344:6

-9 (Cox). Entergy's expert could not answer Judge Wardwell's question whether he could identify a document called the BPTIP, saying that the BPTIP is Appendix B of the LRA. Tr. 3344:25

- 3345:1 (Cox).

1 Calling this "circular reasoning," Judge Wardwell pointed out that Appendix B of the LRA makes reference to the BPTIP so that cannot be the case. Tr. 3345:2

-4. After a confusing colloquy about whether the BPTIP program exists or does not exist (Tr. 3344

-3346), the record remains unclear on what document, if any, is referred to by the term "BPTIP."

14. As to inspections, the LRA said only that:

Prior to entering the period of extended operation, plant operating experience will be reviewed to verify that an inspection occurred within the past ten years.

If an inspection did not occur, a focused inspection will be performed prior to the period of extended operation.

A focused inspection will be performed within the first ten years of the period of extended operation, unless an opportunistic inspection occurs within this ten

-year period.

LRA, section B.1.6.

15. Without offering any detail, the LRA section entitled "Buried Piping and Tanks Inspection" concluded by stating that:

1 Appendix B of the Entergy's License Renewal Application, Aging Management Programs, "describes aging management programs and activities that will manage aging effects on components and structures within the scope of license renewal such that they will continue to perform their intended functions consistent with the current licensing basis for the period of extended operation. Appendix B contains a comparison of site programs to the programs evaluated in NUREG

-1801." LRA Preface.

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 8 The Buried Piping and Tanks Inspection Program will be effective for managing aging effects since it will incorporate proven monitoring techniques, acceptance criteria, corrective actions, and administrative controls.

The Buried Piping and Tanks Inspection Program assures the effects of aging will be managed such that applicable components will continue to perform their intended functions consistent with the current licensing basis through the period of extended operation.

Id. Entergy's witness testified at the hearing that at the time this AMP was written, there was in fact no buried piping and tanks inspection program in existence

, as this is a "new program

." Tr. 3345:18-22 (Cox). 16. Entergy's current LRA section on buried pipes is two pages long and is titled Indian Point Nuclear Generating Unit Nos. 2 and 3 Changes to the Indian Point LRA Aging Management Programs and Activities (Appendix B). It is annexed as Attachment 1.

B. The Updated Final Safety Analysis Report

17. Each application for a reactor operating license must include a final safety analysis report ("FSAR"). The FSAR shall include information that describes the facility, presents the design bases and limits on its operation, and presents a safety analysis of the structures, systems, and components of the facility as a whole. 10 C.F.R. § 50.34(b). An application for the renewal of an operating license must contain a supplement to the FSAR , called an Updated Final Safety Analysis Report or UFSAR. The UFSAR must contain a summary description of the programs and activities for managing the effects of aging and the evaluation of time

-limited aging analyses for the period of extended operation. 10 C.F.R. § 54.21(d).

18. E ntergy submitted a UFSAR with its LRA. See LRA, App. A. As Appendix A itself describes, The first section identifies changes to the existing sections of each UFSAR related to license renewal.

The next two sections provide new information to be State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 9 incorporated into the Unit 2 UFSAR and Unit 3 UFSAR.

The information presented in each section will be incorporated into the respective UFSAR following issuance of the renewed operating licenses.

Upon inclusion of the UFSAR Supplement in each UFSAR, future changes to the descriptions of the programs and activities will be made in accordance with 10 CFR 50.59.

Id.

19. Entergy's current UFSAR for buried pipes is two pages long and is titled Indian Point Generating Unit No. 2 Changes to the Indian Point LRA Updated Final Safety Analysis Report Supplement (Appendix A). It is annexed as Attachment 2.

20. In addition, NRC Staff has prepared two reference documents addressing license renewal applications, the Standard Review Plan and the Generic Aging Lessons Learned Report

. These documents were initially issued in 2001 and were subsequently revised in 2005 and 2010.

C. The Standard Review Plan

21. The Standard Review Plan for Review of License Renewal Applications for Nuclear Power Plants, NUREG

-1800, Rev.

2 (Dec. 2010), "provides guidance to U.S. Nuclear Regulatory Commission (NRC) staff reviewers in the Office of Nuclear Reactor Regulation" and its "principal purposes - are to ensure the quality and uniformity of staff reviews and to present a well-defined base from which to evaluate applicant programs and activities for the period of extended operation." NYS000161 at ii; see also the Initial Report and Rev.

1 of this document

, which contain the same language.

See http://www.nrc.gov/reading

-rm/doc-collections/nuregs/staff/sr1800/final /index.html; http://www.nrc.gov/reading

-rm/doc-collections/nuregs/staff/sr1800/r1/index.html#abs. 22. The Standard Review Plan does not specifically address buried piping except by cross-referencing to the GALL Report, detailed below. See generally NYS000161.

23. The Standard Review Plan is not a regulation or a legal requirement to be followed by an applicant, but is guidance for NRC Staff in reviewing applications.

As NRC State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 10 Staff has stated previously in this proceeding, "[n]ot only is the [Standard Review Plan] merely guidance, it addresses only unenforceable commitments, not legally binding license conditions."

NRC Staff's Answer to State of New York's New and Amended Contentions Concerning the December 2009 Severe Accident Mitigation Alternative Reanalysis (Apr. 25, 2010) at 22

-23, citing SECY-00-045, Acceptance of NEI 04, Guidelines for Managing NRC Commitments, at 3 (Feb. 22, 2000) (ML003579799).

D. Generic Aging Lessons Learned (GALL) Report and GALL Revision One

24. NRC Staff originally released the Generic Aging Lessons Learned (GALL) report, NUREG

-1801, in July 2001 and then revised it in September 2005. NYS00146A-D. GALL is a technical basis document to the Standard Review Plan for License Renewal, which provides the NRC Staff with guidance in reviewing a license renewal application.

NYS00146A at 3. 25. As NRC Staff have explained, "[d]uring the review of the initial LRAs, NRC staff and the applicants have found that most of the programs to manage aging that are credited for license renewal are programs already in use by the applicants."

NYS000161 at 1.

26. The GALL Report contains the NRS Staff's generic evaluation of the existing plant programs and documents the technical basis for determining where existing programs are adequate without modification and where existing programs should be augmented for the extended period of operation. NYS000146A at 4.

27. An applicant may reference the GALL Report in a license renewal application to demonstrate that the programs at the applicant's facility correspond to those reviewed and approved in the GALL Report. NYS00146A at 3.

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 11 28. Entergy's LRA stated that its AMP for buried pipes would be consistent with GALL, Rev.

1 (2005),Section XI.M34, Buried Piping and Tanks Inspection, which was the version of GALL in place when Entergy submitted its LRA in 2007.

LRA, section B.1.6.

29. GALL, Rev. 1,Section XI.M34 contains very few details for a licensee to follow. NYS00146C at XI.M-111-12 , see also Tr. 3347:18 3348:15; Tr. 3349:20

-23 (Cox, acknowledging that Gall Rev. 1 does not include a number or percentage "or anything else" about how much pipe should be inspected

). In its entirety,Section XI.M34 requires an applicant to (a) take preventive measures to mitigate corrosion, and (b) conduct periodic inspections to manage the effects of corrosion on the pressure

-retaining capacity of buried steel piping and tanks. NYS00146C at XI.M

-111-12.Section XI.M34 calls for opportunistic inspections only and relies on preventive measures such as coating, wrapping and periodic inspection for loss of material caused by corrosion of the external surface of buried steel piping and tanks. Id. As NRC Staff testified at the hearing, "There was no requirement in the GALL Report in Rev 1 to specify a certain number of inspections or a percentage of inspections." Tr. 3348:7

-9 (Cox).

30. GALL, Rev. 1,Section XI.M34 does not address further steps once "holidays" (in layperson's terms, breaks) in coatings and wrappings have already been established; it only seeks to have the licensee address those holidays through a corrective action (that is, a coating holiday does not compel a change to the applicant's aging management program, but rather simply an action to repair that specific holiday). NYS00146C at XI.M-111. 31. Under GALL, Rev. 1,Section XI.M34, opportunistic inspections are to be performed "in areas with the highest likelihood of corrosion problems, and in areas with a history of corrosion problems, within the areas made accessible to support the maintenance activity."

NYS00146C at XI.M-111.

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 12 32. GALL, Rev. 1,Section XI.M34 offers no guidance on how to determine likelihood of corrosion problems except to rely on previous opportunistic inspections (i.e., those performed by chance throughout the plant's operating life), and does not address management of buried pipes and tanks in areas not subject to opportunistic inspections. NYS00146C at XI.M-111-12. 33. GALL, Rev. 1,Section XI.M34 does not require cathodic protection.

NYS00146C at XI.M-111-12. 34. In response to Entergy's License Renewal Application for the Indian Point facilities, the State filed a Petition to Intervene including Contention NYS

-5. E. Contention NYS

-5 35. On November 30, 2007, the State filed its Petition to Intervene and submitted numerous contentions, including Contention NYS

-5, which alleged that:

The Aging Management Plan Contained In The License Renewal Application Violates 10 C.F.R. §§ 54.21 And 54.29(A) Because It Does Not Provide Adequate Inspection And Monitoring For Corrosion Or Leaks In All Buried Systems, Structures, And Components That May Convey Or Contain Radioactively

-Contaminated Water Or Other Fluids And/Or May Be Important For Plant Safety

. New York State Notice of Intention to Participate and Petition to Intervene, at 80 (Nov. 30, 2007) (ML073400187).

36. Specifically, the State alleged that what Entergy asserted was a buried piping aging management program, set forth in section B.1.6 of the LRA, contain ed no preventive measures, improperly relies on inadequate opportunistic inspections, that even those were of inadequate scope, and contain ed no requirement for the installation (or re

-installation) of non

-existent or inoperative cathodic protection systems. Contention NYS

-5 addressed only external corrosion, not internal corrosion.

Id.

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 13 37. The State's contention identified previous subsurface leaks at the Indian Point facilities and at other reactor sites around the Nation. Id. at 84-86. 38. Entergy's License Renewal Application states that its "Buried Piping and Tanks Inspection Program" is a "new program that includes (a) preventive measures to mitigate corrosion and (b) inspections to manage the effects of corrosion on the pressure

-retaining capability of buried carbon steel, gray cast iron, and stainless steel components."

LRA, section B.1.6. 39. The LRA states that the program will be consistent with program attributes described in the GALL Report, Rev.

1,Section XI.M34.

40. As discussed below, the GALL Report to which Entergy referred has now been superseded.

41. Section B.1.6 of Entergy's LRA indicates that the Buried Piping and Tanks Inspection Program applies to buried components in the following systems:

Safety injection

Service water

Fire protection

Fuel oil

Security generator

City water

Plant drains

Auxiliary feedwater See LRA, section B.1.6.

42. NRC Staff's expert Mr. Holston testified that containment isolation piping also falls under license renewal and requires aging management review (Tr. 3308:19

- 3309:4 (Holston)), and Entergy's experts testified that circulating water systems also fall within the scope of license renewal. Tr. 3311: 23

-24; 3312:4

-20 (Azevedo; Cox).

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 14 43. The State's contention addresses all of these systems that do, or may, contain radioactive fluids.

F. The Board's Admission of Contention NYS

-5 44. On July 31, 2008, the Board admitted the State's Contention 5 to the extent that it pertains to the adequacy of Entergy's AMP for buried pipes, tanks, and transfer canals that contain radioactive fluid which meet 10 C.F.R.

§ 54.4(a) criteria. The questions to be addressed at hearing include, inter alia, whether, and to what extent, inspections of buried [structures, systems, and components]

containing radioactive fluids, a leak prevention program, and monitoring to detect future excursions, are needed as part of Entergy's AMP for these components.

Entergy Nuclear Operations, Inc.

(Indian Point, Units 2 and 3), Memorandum and Order (Ruling on Petitions to Intervene and Requests for Hearing), LB P-08-13, at 34, 68 N.R.C. 43, 81 (Jul. 31, 2008) (ML082130436) ("Contention Admissibility Order")

45. The Board admitted discussion of proposed inspection and monitoring details to the extent they are "needed to demonstrate that the Applicant's AMP does or does not achieve the desired goal of providing assurance that the intended function of relevant SSCs discussed herein will be maintained for the license renewal period, and specifically, to detect, prevent, or mitigate the effects of future inadvertent radiological releases as they might affect the safety function of the buried SSCs and potentially impact public health."

Id. at 35. 46. The Board found that with regard to Indian Point Unit 1, Entergy had not provided details including: (1) a definition of the relevant Indian Point Unit 1 components that fall under Section 54.21; (2) a demonstration that the Indian Point Unit s 2 and 3 AMP for buried pipes (contained in the LRA) pertains to Indian Point Unit 1 SSCs that are relied upon for the proposed extended operations; and (3) the extent of the proposed aging management activities that will be conducted on the Indian Point Unit 1 SSCs. Id. at 35.

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 15 47. Based on this, the Board concluded that "there remains a material dispute as to the existence and adequacy of the AMP for IP1

-buried SSCs that are being used by IP2 and IP3 during the license renewal period, and that this dispute is subject to further litigation under this admitted contention."

Id. G. Changes In Operating Experience

1. Operating Experience at Indian Point

48. During the preparation and following the submission of Entergy's LRA for the Indian Point facilities, significant new information concerning industry operating experience at Indian Point and elsewhere resulted in increasing industry and regulatory attention paid to the issue of failures in buried pipes. As Entergy's expert, Mr. Cox, testified, "buried piping is an evolving issue."

Tr. 3319:17

-18 (Cox).

49. In February 2009, a leak was detected in a carbon steel underground recirculating condensate storage line at Indian Point Unit 2 that resulted in a shutdown of the plant for seven days. NYS000170. The majority of buried and underground pipes at Indian Point are welded carbon steel. See NYS000178.

The root cause analysis of the leak indicated that there was damage to the pipe

's bituminous coating due to backfill. NYS000170.

The pipe was not cathodically protected. Id. 2. Industry Responds to Changes in Operating Experience

50. In December 2008, the Electric Power Research Institute ("EPRI") released Recommendations for an Effective Program to Control the Degradation of Buried Pipe ("EPRI Report"). NYS000167. This report followed workshops EPRI held in May and October of 2007, which Entergy and over 40 other utilities attended, and at which "the utility attendees unanimously recommended that EPRI sponsor the development of a recommendations document State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 16 for buried pipe to help plant engineers prevent and mitigate degradation and leaks in buried pipes." NYS000167 at v.

51. The EPRI Report focused on six elements:

Development of a corporate program including training, implementing procedures, documentation, and performance indicators, Prioritization of buried pipe systems and locations to be inspected based on risk of failure (likelihood and consequence of failure),

Performance of direct inspections to quantify the degree of degradation and damage, Evaluation of the fitness

-for-service of degraded buried pipes, Selection of the appropriate repair technique where required, including both

non-welded and welded repairs, and

Preventive actions taken to reduce the risk (likelihood and consequence) of future leaks or failures.

NYS000167 at vi.

52. The EPRI Report observes that a cathodic protection system "will fall into disrepair if not properly maintained, and will not protect the buried pipe."

NYS000167 at 2

-8 (section 2.4.1.2). EPRI recommends that where buried pipes are protected by a cathodic protection system, the cathodic protection system should be periodically inspected and tested to assess its continued adequacy. Id. EPRI recommends that periodic checks verify satisfactory cathodic potential on the pipe and groundheads, and that cathodically

-protected facilities be inspected annually by a National Association of Corrosion Engineers ("NACE") cathodic protection tester or equivalent. Id. EPRI cautions that foreign pipelines or stray currents can be the source of stray current corrosion, which can decrease cathodic protection effectiveness, and can make cathodic protection system assessments much more difficult.

Id. EPRI recommends, State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 17 inter alia , that a facility update its risk ranking to take into account changes in the faci lity's cathodic protection system

. Id. at 2-19 (section 2.9).

53. In 2010 the Nuclear Energy Institute ("NEI") also issued a report, entitled "Guideline for the Management of Underground Piping and Tank Integrity," also identified as NEI 09-14 (Rev. 1). NYS000168. It reflects the work product resulting from the Buried Piping Integrity Initiative of the Nuclear Strategic Issues Advisory Committee ("NSIAC"), which is made up of the chief nuclear officers of all nuclear utilities in the country. Id. 54. NEI 0 9-14 (Rev. 1) describes the policy and practices that the industry commits to follow in managing underground piping and tanks. It states that the specific inspections and examinations that are performed will be based on degradation observed or expected, the susceptibility of the pipe to leakage, the consequences of the leak, and the location of the pipe.

Id. The guidelines further detail the number of inspections that should be required, especially for those lines that carry Licensed Material (i.e., radionuclides). NEI expects every nuclear plant operator, including Entergy, to implement, "in accordance with the intent of the Initiative," an AMP for buried pipes. Id. at 9. § 3.5.

55. In April 2011, the Buried Pipe Integrity Task Force, which is affiliated with NEI, issued a document entitled "Industry Guidance for the Development of Inspection Plans for Buried Piping." NYS000169. According to this document, depending on pipe length, two, or in some cases three "direct examinations of the highest susceptible locations, with acceptable results, may be sufficient to demonstrate reasonable assurance." Id. at 13. 56. According to the State's expert Dr. Duquette, the phraseology "highest susceptible locations" is critical since susceptibility of buried pipes to corrosion is determined by the characteristics of the soil/water combination at all locations at a given site. NYS0000164 State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 18 Duquette Initial Test., at 14:12

-15. Accordingly, he testified that it is paramount that soil conductivity, chemistry, drainage, and water retention at a facility are characterized to determine the best locations for direct measurements. Id. at 14:15-18. H. June 2009 NRC Staff Request for Additional Information

57. In June 2009, NRC Staff sent a Request for Additional Information ("RAI")

to Entergy regarding its AMP for buried pipes following up on the February 2009 failure of the condensate storage return line at Indian Point Unit 2.

58. On June 30, 2009, Entergy responded to these questions and amended its AMP to increase inspection frequency by introducing a risk assessment process

, similar to that which EPRI proposed , in a revised commitment. NYS000203. The "risk assessment of in

-scope buried piping and tanks - includes consideration of the impacts of buried piping or tank leakage and of conditions affecting the risk for corrosion."

Id. 59. The revised commitment, which incorporates elements adopted by EPRI, obligates Entergy to:

Classify pipe segments and tanks as having a high, medium or low impact of leakage based on the safety class, the hazard posed by fluid contained in the piping and the impact of leakage on reliable plant operation. Determine corrosion risk through consideration of piping or tank material, soil resistivity, drainage, the presence of cathodic protection and the type of coating. Establish inspection priority and frequency for periodic inspections of the in

-scope piping and tanks based on the results of the risk assessment. Perform inspections using inspection techniques with demonstrated effectiveness.

Id. 60. This commitment, however, contains no methodologies, ranking criteria, or other specific information concerning the new elements of the AMP, and reiterates Entergy's intention to comply with section XI.M34 of the GALL Report, Rev.

1, indicating Entergy would not revive or install cathodic protection systems at Indian Point. Id. at Attachment 2, p.

2 of 18.

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 19 61. NRC Staff testified at the hearing that Entergy could change its risk ranking procedure with no notice to the NRC because it does not appear in the Updated Final Safety Analysis Report, which is detailed below. Tr. 3335:17

- 3337:24 (Holston).

I. Summer 2009 Teleconferences between Entergy and NRC Staff and a Slight Commitment Revision 62. On July 22, and August 4 and 5, 2009, Entergy and NRC Staff held teleconferences concerning Entergy's response to an RAI concerning the Buried Piping and Tanks Inspection program.

NYS000198; NYS000171.

63. Despite the admission of the State's Contention 5, the State of New York was not notified of these teleconferences, invited to participate, or permitted to listen.

64. During these calls, Entergy indicated that it would be updating its Buried Piping and Tanks Inspection Program to reflect operating experience. In response to NRC Staff's inquiry, Entergy sent a letter to the NRC amending its revised commitment to "perform inspections using inspection techniques with demonstrated effectiveness" instead of "qualified inspection techniques with demonstrated effectiveness

." NYS000171 at Attachment 1 (emphasis added). J. NRC Staff Issues its Initial Safety Evaluation Report in November 2009

65. In November 2009, NRC Staff issued the Safety Evaluation Report for Indian Point Unit s 2 and 3, NUREG

-1930. NYS00326A

-NYS00326F. This document lays out the NRC Staff's technical review of the Indian Point license renewal application.

Id. It covers information submitted through August 6, 2009, unless otherwise specified, following a previous Safety Evaluation Report issued on January 15, 2009, in which 20 open items were identified for further review.

Id. These open items were to be resolved before the NRC Staff made a final LRA determination.

Id.

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 20 66. The November 2009 SER summarizes the results of NRC Staff's review for compliance with 10 C

.F.R. Part 54, and it describes the considered technical details for evaluation of the safety of the units' proposed period of extended operation, reviewed in accordance with the Standard Review Plan, Rev. 1.

Id. The safety review is based on the LRA, amendments to the LRA, and responses to NRC Staff RAIs. Id. Following the review, NRC Staff identified three license conditions:

(1) the applicant must include the 10 C

.F.R. § 54.21(d) UFSAR supplement in the first update after issuance of the renewed licenses; (2) future activities in the UFSAR supplement must be completed prior to the PEO; and (3) all reactor vessel capsules that are removed and tested should meet American Society for Testing and Materials requirements to the extent practicable for those capsule configurations.

Id. Any changes to the applicant's withdrawal schedule or storage requirements must be approved by NRC Staff. Id. Appendix A includes a table showing Indian Point's commitments for renewal of the licenses, while Appendix B lists principle NRC Staff-applicant correspondence about the LRA safety review. Id. K. November 2010 Area Potential Earth Current (APEC) Survey

67. In November of 2010, Entergy contracted with Structural Integrity Associates, Inc., to conduct an Area Potential Earth Current ("APEC") survey of Indian Point. ENT000445. Entergy witness Mr. Steven Biagiotti reviewed and approved the survey and it was subsequently approved by Entergy employees (and witnesses)

Nelson Azevedo and Robert Lee in November 2011. Id. 68. Entergy's witnesses testified that the APEC survey is designed to identify:

(1) where minimum polarization levels of 100 millivolt ("mV") or

-850 mV Instant Off potentials are present, indicating adequate cathodic protection levels per NACE standards;

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 21 (2) where localized changes in the measured potentials exist, relative to surrounding readings, as a means to locate potential areas containing corrosion cells; and (3) localized variations in earth currents, relative to surrounding readings, which would indicate coating degradation.

ENT000373 at 100

, citing ENT000445 at 2

-4. 69. The APEC inspection found that only "16% of the inspected areas are receiving adequate [cathodic protection]

to ensure corrosion control based on the 100 millivolt polarization [cathodic protection]

criteria specified by NACE."

ENT000445 at 1

-1 (see also Tr. 3784, at which Entergy's expert Mr. Biagiotti explained that 100 mV is one of the NACE criteria).

70. The APEC Survey recommended that Entergy augment the Indian Point cathodic protection system to provide complete site coverage, concluding that "[t]he design, installation and use of additional cathodic protection systems for the buried piping is in the best interest of plant reliability." Id. at 1-2. 71. Because of data indicating likely coating degradation, the APEC Survey recommended excavation and inspection at four locations. Tr. 3805

-06 (Azevedo). Of these, two have been examined so far, and coating degradation was found at one of those locations.

Id. L. NRC Issues GALL Report, Revision Two

72. In December of 2010, NRC Staff issued the GALL Report, Rev.

2. NYS00147A

-D. GALL, Rev.

2 contained a new section pertaining to buried and underground pipes and tanks:

Section XI.M41, entitled "Buried and Underground Piping and Tanks."

Id. at XI.M41-1. 73. GALL, Rev.

2,Section XI.M41 replaced GALL Rev.

1 XI.M28, "Buried Piping and Tanks Surveillance," and GALL Rev.

1 XI.M34, "Buried Piping and Tanks Inspection."

NYS00147A at 1.

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 22 74. Unlike GALL Rev.

1, which included very few specifics, GALL Rev.

2 contained more detail as to what an applicant was to do to create a sufficient AMP, and it, like Entergy's revised AMP, reflects similarities to the EPRI and NEI buried piping initiatives.

NYS00147D at XI.M41-1 -XI.M41-14. 75. The new GALL "reinforced the importance of preventive actions including cathodic protection." NRC000162 at 1.

76. For steel pipes such as those present at Indian Point, GALL Rev.

2 recommends preventive measures such as coatings, cathodic protection, and an assessment of backfill quality.2 77. Notwithstanding the significant changes between GALL Rev.

1 and Rev. 2, or the similarities between GALL Rev.

2 and current industry initiatives referenced above, NRC Staff chose to continue to measure Entergy's AMP against only GALL, Rev.

1. NRCR000016, n. 5

("Inasmuch as AMP XI.M41 was issued after Entergy submitted its LRA, the Staff has not applied this AMP to the IP2/IP3 LRA").

78. Although NRC Staff testified that they evaluated the Applicant's AMP against "key elements" of XI.M41 (which is part of GALL Rev.

2) and the draft Interim Staff Guidance and concluded that Entergy's AMP (as revised through its responses to th e NRC Staff's RAIs) is adequate to manage the applicable aging effects to ensure that buried piping and tanks will perform their current licensing basis functions (i d.), NRC Staff testified that the AMP did not meet GALL Rev.

2. Tr. 3393:18

- 3394:21 (Holston).

2 GALL Report, Rev. 2 ,Section XI.M41

-2. GALL Report, Rev. 2 also defines the terms "buried" and "underground": "buried piping and tanks are in direct contact with soil or concrete (e.g., a wall penetration).

Underground piping and tanks are below grade but are contained within a tunnel or vault such that they are in contact with air and are located where access for inspection is restricted."

Dr. Duquette limited his testimony to buried piping. NYS000164 at 3:1-2.

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 23 M. February 2011 NRC Staff Request for Additional Information

79. In February of 2011, NRC Staff expressed concern to Entergy that "the LRA and supplemental material did not contain enough specifics on the planned inspections for the staff to determine if the inspections would be adequate to manage the aging effect for all types/materials of in-scope buried pipes [and] that the LRA and supplemental material did not contain enough specifics for the staff to understand the general condition of the backfill used in the vicinity of buried in-scope piping," saying "[g]iven that cathodic protection has not been installed for all buried in-scope piping, the staff lacks sufficient information to conclude that the applicant's evaluation of soil corrosivity will provide reasonable assurance that in

-scope buried piping will meet its intended license renewal function(s)." NYS000199.

80. NRC Staff also expressed concern that although Entergy said it was considering soil resistivity and drainage, it did not state that other important soil parameters would be included such as, pH, chlorides, redox potential (its electronegativity), sulfates and sulfides; that Entergy did not state how often it would conduct testing of localized soil conditions, nor provide the specific locations relative to buried in

-scope piping that is not cathodically protected; that Entergy did not state how it would integrate the various soil parameters into an assessment of corrosivity of the soil; and that Entergy did not specify how localized soil data would be factored into increased inspections, including the increase in the number of committed inspections by material type and location.

Id. 81. Entergy responded in March of 2011, (1) providing tables of the number of planned inspections for different components, (2) stating that the city water line is the only cathodically protected line, and (3) reporting that Entergy had done two excavations which State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 24 indicated no backfill problems, among other things. NYS000151. Entergy also stated that soil at Indian Point would be sampled prior to the period of extended operation to determine whether soil conditions were aggressive, and that these samples would form the basis for the number of inspections during the PEO. Id. Entergy stated that the additional inspections would be in locations with aggressive soil conditions. Id. 82. Notably, Entergy did not make any alterations to its broad ly-worded regulatory commitment after sharing these details, and NRC Staff neither inquire d as to the documentation in which these details could be found nor request ed that Entergy's AMP, UFSAR, or regulatory commitments be amended to include these details. N. June 2011 NRC Staff Request for Additional Information

83. In June of 2011, NRC Staff sent Entergy an RAI concerning its buried piping aging management plan.

NYS000200.

84. In July of 2011, Entergy amended its commitment to replace the phrase "[p]erform inspections using inspection techniques with demonstrated effectiveness" with "[p]erform inspections using direct visual inspection."

NYS000153, Attachment 2, p. 1 of 17.

85. NRC Staff expressed its concern that the UFSAR supplement did not reflect the planned number and frequency of buried in

-scope piping inspections and soil testing to be conducted during the thirty

-year period starting ten years prior to the period of extended operation, and asked that Entergy update the UFSAR.

86. In response to the June 2011 RAI, Entergy summarized statements it had made in response to NRC Staff's February RAI, agreeing to additional inspections:

IP2 will perform 20 direct visual inspections of buried piping during the 10 year period prior the PEO.

IP2 will perform 14 direct visual inspections during each 10-year period of the PEO.

Soil samples will be taken prior to the PEO and at least once every 10 years in the PEO. Soil will be tested at a minimum of two State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 25 locations at least three feet below the surface near in

-scope piping to determine representative soil conditions for each system.

If test results indicate the soil is corrosive then the number of piping inspections will be increased to 20 during each 10-year period of the PEO.

IP3 will perform 14 direct visual inspections of buried piping during the 10 year period prior the PEO.

IP3 will perform 16 direct visual inspections during each 10-year period of the PEO.

Soil samples will be taken prior to the PEO and at least once every 10 years into the PEO.

Soil will be tested at a minimum of two locations at least three feet below the surface near in

-scope piping to determine representative soil conditions for each system. If test results indicate the soil is corrosive then the number of piping inspections will be increased to 20 during each 10-year period of the PEO.

3 NYS000152, Att. 2, p. 3

-4 of 17. 87. On March 15, 2013, Entergy again notified the Board and parties of another change to its inspections. This time while the number of inspections would ultimately sta y the same, Entergy would take credit for more in the pre

-PEO period than previously. Entergy proposed Exhibit ENT000606 (NL-13-037 , served on parties and the Board March 13, 2013, modifying NYS000151).

O. Entergy's Corporate Documents (also referred to as "Implementing Procedures")

88. Entergy's approach to the aging of buried pipes and tanks at Indian Point is not set forth in a single discrete document.

89. Entergy has developed numerous fleet

-wide , and one site-specific , procedures to implement its aging management program. These procedures are based on standards developed by the industry, not NRC.

Tr. 3498:4

- 3499:6 (Cavallo).

3 Previous versions of this document referred to the Program as the "Buried" Piping and Tanks Inspection and Monitoring Program.

See, e.g. NYS 000201.

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 26 90. Four of these documents are particularly relevant:

(1) EN-DC-343, Entergy's Fleetwide Underground Piping and Tanks Inspection and Monitoring Program, effective date November 30, 20 12, submitted December 6, 2012 (ENT000599);

(2) CEP-UPT-0100, which contains details about the scope, risk ranking, and examination techniques referenced by EN

-DC-343, and which received final internal concurrence November 14, 2012 (ENT000598);

(3) SEP-UIP-IPEC, Indian Point's Underground Components Inspection Plan, which received final internal concurrence April 29, 2011 (NYS000174); and (4) EN-EP-002-S-MULTI, the General Visual Inspection Engineering Standard, effective date November 30, 2012 (ENT000600).

91. NRC Staff's testimony refers to these documents as "corporate procedures" (NRCR200016 at 49 (A37)

, and Entergy's testimony refers to them as "implementing procedures" (ENT000373 at 64). Each is detailed below.

1. EN-DC-343: Fleetwide Buried Piping and Tanks Inspection and Monitoring Program

92. On November 19, 2007, Entergy issued Nuclear Management Manual EN-DC-343 introducing a fleetwide "Buried Piping and Tanks Inspection and Monitoring Program" applicable to nearly all of its facilities across the Nation.

NYS000201. As of the December 2013 evidentiary hearing, this document is currently in its sixth revision.

ENT000599.

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 27 93. EN-DC-343, Rev. 6 incorporates many of the elements also present in EPRI Report 1016456

, including prioritization of buried pipe systems and locations to be inspected based on risk of failure (taking into account the likelihood and consequence of failure), and the performance of direct inspections to quantify the degree of degradation and damage.

ENT000599.

94. EN-DC-343 "provides the requirements for each site to develop its own site specific Underground Piping and Tanks (UPT) Inspection and Monitoring Program [and] provides a set of recommendations for Entergy nuclear power plants to use in implementing an effective program to detect and mitigate life

-limiting degradation that may occur in underground piping systems and tanks." Id. The Entergy document acknowledges that "[t]he risk of a failure caused by corrosion, directly or indirectly represents the most common hazard associated with underground piping and tanks."

Id. According to the document, Entergy's approach "consists of inspection and monitoring of selected operational underground piping and tanks for external corrosion" (emphasis in original) and indicates that the details of the risk ranking criteria, reasonable assurance guidance, recommendations for inspection, monitoring, and mitigation portion of this procedure are contained in CEP

-UPT-0100. 95. According to the EN

-DC-343, "[t]his procedure and CEP

-UPT-0100 contain the required elements to help Program Owners prioritize inspections of underground segments, evaluate the inspection results, make fitness for service decisions, select a repair technique where required, and take preventive measures to reduce the likelihood and consequence of failure."

ENT000599 at 3. The remainder of the document details the inspection and monitoring program into Risk Ranking, Inspections, Fitness for Service, Repairs, and Prevention, Mitigation and Long Term Strategies.

ENT000599.

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 28 96. With regard to repairs, EN

-DC-343 says that contingency planning should be in place for prompt implementation in case an underground segment fails to meet acceptance criteria, the detailed design of the selected repair option should accommodate the specifics of the failed line, and leak detection techniques and leak isolation options should be pre-selected for prompt implementation should a leak occur. ENT000599 at 16.

97. In terms of prevention of leaks, this document offers only that "[w]here the risk of failure is unacceptable, [unspecified] preventive measures and options to mitigate the possible leakage should be implemented." Id. (emphasis added). EN

-DC-343 calls for coating of newly installed piping, proper use of fill when excavating and re

-burying components, and baseline inspections to be performed prior to piping installation.

98. EN-D C-343 goes on to say that for plants with installed cathodic protection systems for underground (which includes buried) piping and tanks, Entergy should ensure that the proper operation of the cathodic systems is verified annually. ENT000599 at 11, 14.

EN-DC-343 calls for cathodic protection affecting safety

-related structures, systems, and components ("SSCs") to be repaired on a presumably expeditious schedule (as compared with the non-safety-related SSCs, which are to be repaired within only six months of detection of a problem). ENT000599 at

16. 99. It is not clear what document, if any, constitutes the "Site Specific Underground Piping and Tanks (UPT) Inspection and Monitoring Program" called for by EN

-DC-343 Rev. 6.

100. Entergy has made no binding, enforceable regulatory commitment to implement EN-DC-343 at Indian Point.

101. In EN-DC-343, Rev. 6, Entergy does not commit to following NUREG

-1801, GALL Revision 2, section XI.M41 at Indian Point.

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 29 2. CEP-UPT-0100 102. On December 11, 2008, Entergy issued a Corrective Action report to track the scheduling of future inspections "pending formal issue of the IPEC Buried Pipe Program document. NYS000202. The Corrective Action report states that "in lieu of each of the Entergy sites issuing its own buried piping program document, it has been decided - that a fleet Central Engineering Program (CEP) Buried Piping Program Document will be generated." Id. 103. In October of 2009, Entergy issued the fleetwide Central Engineering Program document it referenced in its December 2008 Corrective Action report. The document, identified at the time as CEP

-BPT-0100, has since been updated (now identified as CE P-UPT-0100). NYS000173.

4 This fleetwide Central Engineering Document "details the program requirements associated with the scope, risk ranking, and examination techniques" required by EN

-DC-343, including the risk

-based matrix into which Entergy will place segments of buried and underground tanks based on a non

-quantified likelihood of failure (i.e., low, medium, or high) versus the non

-quantified consequences of failure (i.e., none, low, medium, and high) that will then be used to determine inspection intervals. NYS000173 at §§ 5.2[2] and 5.3[1].

104. CEP-UPT-0100 contains the specifics of how to classify a plant's pipes. Entergy considers any piping/tanks containing radioactive material as high risk and automatically ranked as a High Inspection Priority and that the plant owner is required to conduct further risk ranking of piping and tanks containing radioactive material using the methodology developed in Engineering Report ECH

-EP-10-00001, "Radiological SSC Groundwater Initiative Risk Evaluation Criteria" to prioritize radioactive or contaminated piping and tanks in relation to each

4 Entergy's use of the abbreviation "BPT" refers to buried pipes and tanks and the abbreviation "UPT" refers to underground pipes and tanks.

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 30 other. NYS000173.

Other pipes are classified as either high, medium, or low inspection priority. Id. 105. Under this procedure, Entergy will group pipes together depending on the specific features of the components for inspection. CEP

-UPT-0100 explains how examinations should take the place of the grouped lines or segments of lines, and includes inspection methodologies for underground and buried pipes and tanks, specifically including direct examination options (internal pipeline inspection gauges ("pigs") and local pipe non

-destructive examination ("NDE")) and indirect examination options including guided wave.

NYS000173 at 14

-15. 106. CEP-UPT-0100 section 5.5, entitled "Evaluation of Inspection Data," states that "[a]cceptance criteria for any degradation of external coating, wrapping, and pipe wall or tank plate thickness shall be developed prior to performing opportunistic and scheduled inspections." (emphasis in original). NYS000173 at 16. It states that "[a]cceptance criteria are published in

[unspecified] approved engineering documents" and that "[p]iping with measured wall thickness less than 1/16" will be repaired/replaced." Id. It states also that "[a] condition report shall be initiated when measured wall thickness is found to be less than 87.5% of nominal thickness."

Id. 107. In terms of preventive actions, CEP

-UPT-0100 states that "existing [cathodic protection] systems may be upgraded or a new [cathodic protection] system installed" (emphasis added), and requires that plants with installed cathodic protection systems verify proper operation of these systems, periodically test them, ensure the system is evaluated in accordance with EN-DC-343, place an individual in charge of the cathodic protection system, and verify that cathodic protection systems are corrected on a schedule commensurate with the safety significance of the system or component being protected. Id.

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 31 108. Entergy has not committed to comply with the recommendations of CEP-UPT-0100, its own internal guidance document, at the Indian Point facilities and CEP-UPT-0100 is a fleetwide, not a site

-specific document

. 3. SEP-UIP-IPEC: Underground Components Inspection Plan 109. Program Section No. SEP

-UIP-IPEC, the Underground Components Inspection Plan, appears to be the only Indian Point

-specific document Entergy produced in its line of buried and underground piping management manuals and programs.

110. SEP-UIP-IPEC states that "[w]ithout effective cathodic protection there is increased potential for external corrosion of the metal pipe" and acknowledges that although many buried or underground pipes were once cathodically protected, such cathodic protection systems have lapsed, accelerating external corrosion where coatings have failed. NYS000174 at 5, 8. 111. SEP-UIP-IPEC notes that there are currently no industry guidelines for determining and achieving "Reasonable Assurance (RA) of Integrity" for inspected buried or underground SSCs but that Entergy aims to achieve RA with a combination of a Fitness

-for-Service engineering evaluation, indirect inspections, direct examinations, and remediation

- if necessary.

Through this combination, Entergy believes a "high level of confidence that the structural and/or leakage integrity of the underground SSCs will be maintained."

NYS000174 at

9. 112. SEP-UIP-IPEC reiterates the risk ranking scheme laid out in EN

-DC-343 and CEP-UPT-0100 and states that "[a]n effective cathodic protection system is essential to minimize underground piping corrosion."

However, it observes that Indian Point's cathodic protection State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 32 systems were "rarely maintained" and were in some cases abandoned, rendering the systems incapable of providing the needed corrosion protection. Id. at 14. 113. SEP-UIP-IPEC recommends that Entergy conduct an Area Potential and Earth Current Study to analyze and implement improvements to coatings and cathodic protection effectiveness.

NYS000174 at 14. As described below, Entergy has conducted this study.

4. EN-EP-S-002-MULTI - Buried Piping and Tanks General Visual Inspection Engineering Standard 114. EN-EP-S-002-MULTI, Entergy's Buried Piping and Tanks General Visual Inspection Engineering Standard sets forth how Entergy employees should perform buried piping general visual inspection. ENT000408. "The visual examination is performed to assess the general condition of the coatings and piping/tank surfaces to detect evidence of degradation that may affect structural integrity or leak tightness." Id. 115. As increased inspections are at the heart of Entergy's revised approach to aging buried pipes and tanks, and since these inspections take the place of cathodic protection in Entergy's proposal, the details of how Entergy would perform these inspections are critical. EN-EP-S-002-MULTI contains inspection elements that serve as a guide for examination personnel to determine when an existing condition is acceptable or requires acceptance review.

Id. at 8, § 5.2.1. As Entergy's expert testified, EN-EP-S-002-MULTI contains acceptance criteria for the inspections. Tr. 3496:12

-14 (Ivy). This document also provides inspection guidelines for coated surfaces, uncoated surfaces, and bolting assemblies, and provides qualifications for personnel performing the inspections.

Id. at 9-10. 5. The Role of These Implementing Procedures 116. The record is unclear as to the role of these implementing procedures. Testimony during the evidentiary hearing from both Entergy and NRC Staff offered conflicting accounts of State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 33 the role these documents play in the regulatory scheme, and Staff's testimony was internally inconsistent as well.

117. In his pre

-filed testimony, NRC Staff witness Mr. Holston testified that:

Any corporate policies that may be adopted by Entergy are not binding on the licensee, for NRC regulatory purposes, unless they are NRC regulatory requirements or are incorporated in the license or the UFSAR.

Although Entergy may elect to supplement its license requirements by following its corporate policies at the Indian Point site, those policies would not be enforced by the NRC unless they are incorporated in the current or renewed license or otherwise become NRC requirements.

This applies to the three documents discussed by Dr.

Duquette at pages 17

-26 of his testimony and pages 12

-19 of his Report (EN-DC-343, CEP-UPT-0100, and SEP

-UIP-IPEC) (respectively, Exhibits NYS000172, NYS000173, and NYS000174).

NRC000016 at 47. Mr. Holston testified that these procedures "are not part of a commitment, and they are available on site to demonstrate how the program is being implemented."

Tr. 3467: 16

-19 (Holston).

118. But NRC Staff's license renewal audit at Indian Point took place in 2007 and 2008, before Entergy created these procedures.

119. At the hearing, Mr. Holston testified (A) that the details of the implementing procedures could be changed without Entergy evaluating the change under 10 C.F.R. § 50.59 (Tr.3398:24

-25 (Holston)) (B) but that "[t]he pieces that are most critical to implementation of the program are generally in the UFSAR supplement."

(Tr. 3353:5

-7 (Holston)). NRC Staff witness Ms. Green testified that "[t]hey don't typically list the implementing procedures by name and number in a commitment because they put that commitment into the UFSAR. In order to ever change a procedure, they would have to go through a 50.59 evaluation and not just the screening -

" Tr. 3649:1-7 (Green) (emphasis added).

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 34 120. Ms. Green went on to say that:

the UFSAR description that is provided to us gives us a general description of the program and how they carry out that program without citing specific procedures.

But as Mr. Holston mentioned yesterday certain key aspects that we would like to see in the program description such as they will a certain [sic] number of inspections, we do like to see in the program description because we would like to hold them to that.

And if they wanted to decrease the number, they would have to do a 50.59 evaluation.

Tr. 3649:8

-20 (Green).

121. NRC Staff testified to their view that the Aging Management Program "clearly" does "not [have] the level of detail that is in the implementing procedures." Tr. 3384:10-11 (Holston).

122. Based on NRC Staff's testimony, it is therefore unclear why these more detailed implementing procedures are absent from the UFSAR and NRC enforcement.

123. Entergy witness Alan Cox testified that Entergy "screens" every change in an Aging Management Program's implementing procedures "to see if it meets the criteria that would require reporting under 50.59." He stated:

There may be a change in procedure that may not affect the description of the program in the SAR but we still have to go through that screening process to make sure that is the case. Every procedure gets a screening to see if further evaluation under 50.59 is necessary.

Tr. 3399:13-21 (Cox).

124. NRC Staff's expert expressed his understanding that that Entergy itself does a 50.59 screen of changes to implementing procedures, and that Entergy decides whether a change requires notice to the NRC or not.

Tr. 3472:8 3473: 2 (Holston).

125. Thus, the record is ultimately not clear as to whether changes to implementing procedures are subject to a 50.59 "evaluation," a 50.59 "screening," or any NRC Staff review at all.

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 35 P. NRC Staff's August 2011 Supplemental Safety Evaluation Report 126. In its Supplemental Safety Evaluation Report ("SSER") issued in August 2011, NRC Staff found that "although the service water, containment isolation support, auxiliary feedwater, plant drains, fuel oil, security diesel propane, and fire protection systems are not cathodically protected, the applicant's response is acceptable in that:

The applicant is "risk informing" its piping inspection locations to select those with the greatest potential for leakage.

The applicant is sampling the soil for corrosivity prior to and during the period of extended operation, using standard industry methodologies to determine soil corrosivity, and will be increasing the number of inspections if the soil is corrosive.

Steel piping is coated.

Recent inspections found that the backfill did not contain rocks or foreign material that would damage external coatings and the coatings were found to be in good condition.

The staff noted that foreign material in backfill caused sufficient damage of the condensate storage tank return line coating such that the line corroded and leaked, and in other instances inspections found coating damage; however, the applicant's proposed number of inspections meet the current staff position for number of inspections.

NYS000160 at § 3.0.3.1.2.

127. In its SSER , NRC Staff adopted Entergy's statements in response to Staff's RAIs, noting that:

The applicant revised the number of planned inspections of buried piping within the scope of license renewal from 45 (a non

-specific mix of direct and indirect inspections) in the 10

-year period prior to the period of extended operation to 31 direct inspections of steel piping, 3 direct inspections of stainless steel piping, and 17 indirect inspections in the 10

-year period prior to the period of extended operation.

The applicant also revised the number of inspections to be conducted in the period of extended operation from a non

-specific total in the first 10 years of the period of extended operation based on the results of inspections to be completed prior to the period of extended operation to 28 direct inspections of steel piping and two direct inspections of stainless steel piping in each 10

-year period of the period of extended operation.

Id.

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 36 Q. The Updated Final Safety Analysis Report Supplement 128. Subsequent to submitting its License Renewal Application in April 2007, Entergy released at least one UFSAR Supplement for each Unit (ML11236A226 and ML11236A228), and responded to NRC Staff's RAIs indicating changes that would be made to the UFSAR if the plants' renewed licenses were granted. 129. As NRC Staff counsel stated during the hearing, there is currently no up

-to-date version of the UFSAR one can look to in order to ascertain its contents (Tr. 3547

-48. (Turk)); one must look to the previous version and the most recent correspondence between Entergy and the NRC in which Entergy promised changes to the UFSAR. See ENT000597.

130. As NRC Staff witness Mr. Holston testified, the NRC "would like" an applicant to incorporate critical aspects of a proposed Aging Management Program into the UF S AR. As an example, Mr. Holston characterized the number of inspections of buried pipes, 14 over each

10-year period of extended operation, as a "critical aspect" of the AMP for buried pipes and that number of inspections was incorporated in the U FSAR. Tr. 3641:21-3642:03 (Holston). NRC NRC Staff witness Kimberly Green also testified that Staff "would like to see" key aspects of an AMP incorporated in the AMP's description in the UFSAR so that Entergy would be required to perform a 50.59 evaluation before changing a key aspect. Tr. 3649:08

-20 (Green).

131. Entergy does not include its more detailed implementing procedures in the UFSAR. R. Pre-filed Testimony 132. In December 2011, the State of New York submitted pre

-filed testimony and an initial statement of position on NYS-5. NYS000163, NYS000164. Primarily, the State argued that conditions at Indian Point warranted the application of cathodic protection that increased State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 37 inspections would not suffice to replace cathodic protection, and that Entergy's AMP lacked sufficient enforceable detail to enable the Board to make a finding of reasonable assurance.

Id. 133. On March 30, 2012, Entergy and NRC Staff submitted pre

-filed testimony and statements of position

, which were subsequently amended in December. ENTR20372l, ENTR30373, NRCR00015, NRCR00016. Primarily, Entergy and NRC Staff argued that the absence of cathodic protection at Indian Point was not problematic because conditions did not warrant cathodic protection and/or because increased inspections take the place of cathodic protection, and that Entergy's AMP contains sufficient detail to be found adequate under the regulations.

Id. Entergy's witnesses mentioned without detail that cathodic protection had been installed on buried piping between the condensate storage tank and the auxiliary feedwater buildings for both Indian Point Units 2 and 3 in the first quarter of 2012. ENTR30373, Entergy Pre-filed Test. at 96, A114 (Azevedo, Lee, Biagiotti). NRC Staff's testimony did not acknowledge or respond to new cathodic protection installations.

134. On June 29, 2012, the State submitted rebuttal testimony arguing that conditions warrant the application of cathodic protection at this plant, that failing to apply current engineering standards (i.e., GALL Rev. 2) to all aspects of the LRA is inconsistent with industry standards and good engineering practice, rendering what Entergy proposed as a putative Aging Management Program inadequate to provide reasonable assurance that the current licensing basis

("CLB") functions of the buried systems within the scope of license renewal will be maintained throughout the period of extended operation. NYS000398, NYS000399.

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 38 S. NRC Staff Issues Draft and Final License Renewal Interim Staff Guidance f or Buried Pipes 135. On March 9, 2012, after the State submitted pre

-filed testimony in this matter, NRC Staff requested public comments on a Draft Interim Staff Guidance for Buried Pipes, LR-ISG-2011-03. ENT000379 ("Draft ISG"). The Draft ISG proposed changes to the then

-recently-released GALL Rev.

2, section XI.M41, including, inter alia, providing (1) inspection recommendations for plants not utilizing a cathodic protection system during the period of extended operation; (2) a recommendation that, where damage to the coating is significant and the damage was caused by non

-conforming backfill, an extent of condition evaluation should be conducted to ensure that the as

-left condition of backfill in the vicinity of observed damage will not lead to further degradation; (3) specific acceptance criteria for cathodic protection surveys; and (4) preventive and mitigative actions utilized by the AMP in the FSAR Supplement description of the program. Id. 136. The Draft ISG made clear that cathodic protection is the default for all plants, and required that the failure to provide cathodic protection be justified in the LRA. Id. at 2-3. It further required that an exception be stated and justified if the basis for not providing cathodic protection is other than demonstrating that cathodic protection and coatings are not required, or demonstrating that installation, operation, or surveillance of a cathodic protection system is not practical. Id. 137. The Draft ISG was finalized on August 2, 2012. NRC000 162. 138. In response to industry comments on the draft, NRC Staff's final version of the ISG adopts a less rigorous position on what Staff should consider in its reviews.

As reflected in Appendix G ("Resolution of Public Comment") of the Final License Renewal Interim Staff State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 39 Guidance, LR

-ISG-2011-03, in response to Nuclear Energy Institute (NEI) comments, NRC Staff agreed to , inter alia , (1) only increase inspections by 50 percent for a 2 unit site and double inspections for a 3 unit site (as opposed to doubling and tripling the inspections, respectively); (2) change the inspection requirements to allow for exposing just the top surfaces and at least 50 percent of the side surface for inspection, rather than the entire surface; and (3) while the draft ISG required 20 years of plant specific operating experience if cathodic protection were not installed to determine the existence of adverse conditions, following receipt of NEI's comment urging the period to be updated to be consistent with NEI 95

-10, Staff reduced the operating experience to be evaluated from 20 to 10 years. NRC000162, Appendix G.

139. The Final ISG requires that the demonstration that cathodic protection is not required or not practical consist of either: (1) conducting soil samples in the vicinity of buried in

-scope piping and demonstrating that the soil is not corrosive, where the soil testing should consist of multiple samples testing for soil resistivity, corrosion accelerating bacteria, pH, moisture, chlorides, and redox potential and determining the overall soil corrosivity, or demonstrating through the submission of a study the impracticality of installing or operating a cathodic protection system, conducted by a competent person as defined in NACE standards , who is knowledgeable in the design, installation, and operation of cathodic protection systems.

NRC000162 at 2.

The Final ISG requires that an applicant conduct a 10

-year search of operating experience for evidence of adverse conditions and include that information in the LRA.

Id. at 2, 3. 140. Given that coatings, backfill quality, and cathodic protection are the key preventive or mitigative actions, the Standard Review Plan, FSAR Supplement for Aging Management of Applicable Systems, was revised to include these.

Id.

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 40 T. July 2012 Buried Piping Temporary Instruction Inspections 141. On March 5

-9, 2012, NRC Staff inspectors assessed Entergy's progress in implementing license renewal AMPs and commitments at Indian Point Unit 2 pursuant to NRC Inspection Manual Temporary Instruction 2516/001, Review of License Renewal Activities.

ENTR30373 at 79

-80 (A98) (citing ENT000252). The purpose of this assessment was not to determine the adequacy of Entergy's implementing procedures, but to assess Entergy's compliance with the industry initiative. Id. Entergy's testimony on this point reiterates that the industry initiative is not a regulatory requirement. ENTR30373 at 78, Q98.

142. On November 17, 2011, the NRC issued NRC Inspection Manual Temporary Instruction ("TI") 2515/182, Review of the Implementation of the Industry Initiative to Control Degradation of Underground Piping and Tanks. ENTR30373 at 78, A97 (citing ENT000425).

143. TI 2515/182 is unrelated to license renewal and applies to all facilities. ENT000425. Its stated purpose is "to gather information that will enable the staff of the U.S.

Nuclear Regulatory Commission (NRC) to assess whether the [NEI] initiative provides reasonable assurance of the structural and leakage integrity of buried piping and underground piping and tanks." Id. at 1. As such, even a favorable outcome from this inspection does not equate with a finding of reasonable assurance under NRC's license renewal regulations.

144. On June 9-11, 2012, NRC Staff performed Phase 1 of its TI 2515/182 assessment at Indian Point.

ENTR30373 at 78, A97. The record does not indicate that a Phase 2 has yet been performed at Indian Point.

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 41 III. WITNESSES A. State of New York Witness 145. The State's testimony on Contention NYS

-5 was presented by Dr. David Duquette, an expert in corrosion science and engineering. Dr. Duquette is the John Tod Horton Professor of Engineering at Rensselaer Polytechnic Institute ("RPI") and a member of the Department of Materials Science and Engineering. NYS000164, Initial Written Testimony of Dr. David J. Duquette, Ph.D Regarding Contention NYS

-5 ("State Initial Test.") at 2, 3. He performed his graduate work at the Corrosion Laboratory at the Massachusetts Institute of Technology ("MIT"), and spent two years as a Research Associate at the Advanced Materials Research and Development Laboratory at Pratt and Whitney Aircraft prior to joining the faculty at RPI. Id. at 2. Among his awards, he has been elected a Fellow of three learned societies, ASMI (formerly the American Society of Metals), NACE (formerly known as the National Association of Corrosion Engineers) and ECS (the Electrochemical Society). Id. at 3. 146. Dr. Duquette has received the Whitney Award from NACE for outstanding corrosion research, and an A.

V. Humboldt Senior Scientist Award from the German government.

Id. In addition to his academic duties, Dr. Duquette maintains an active consulting practice, primarily in the area of corrosion and mechanical failures, including at nuclear power plants Diablo Canyon, Three Mile Island, Byron, LaSalle, Braidwood, Dresden, Quad Cities, Clinton, and Seabrook. Id. at 2; NYS000399 at 2:16

-21. From 2002 to 2011 he served as a member of the U.S. Nuclear Waste Technical Advisory Board as an appointee of the President of the United States. He testified that he has reviewed documents relevant to Contention NYS

-5. NYS000164 at 3, 4.

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 42 B. Entergy Witnesses 147. Entergy's testimony on Contention NYS

-5 was presented by a panel of witnesses made up of Alan Cox, Ted Ivy, Nelson Azevedo, Robert Lee, Stephen Biagiotti, and Jon Cavallo. Testimony of Entergy Experts Cox, Ivy, Azevedo, Lee, Biagiotti, and Cavallo

ENT0 00373 ("Entergy Pre

-filed Test.") (Mar. 30, 2012) (modified December 7, 201 2 (ENTR30373)).

148. Mr. Cox represents that he is employed by Entergy Nuclear Operations, Inc. ("Entergy") as the Technical Manager for License Renewal.

Entergy Pre

-filed Test. at 1 (Q2) (Cox). Mr. Cox testified that he was directly involved in preparing the Indian Point LRA and developing or reviewing AMPs for Unit Two and Unit Three including the proposed AMP for buried piping and tanks that may be susceptible to external corrosion (which he refers to as the Buried Piping and Tanks Inspection Program ("BPTIP")

), and that he has been directly involved in developing or reviewing Entergy responses to NRC Staff RAIs concerning the LRA and various amendments or revisions to the application (principally as they relate to aging management issues). Entergy Pre

-filed Test. (ENTR30373) at 2, A4 (Cox).

149. Ted Ivy testified that he is employed by Entergy as Manager, License Renewal. Entergy Pre

-filed Test. (ENTR30373) at 3, A6. He testifie d that as a member of the Entergy License Renewal Services team, he has been directly involved in seven license renewal projects, including the applications for Indian Point Unit s 2 and 3. He testifies that he is also the Responsible Lead for development and maintenance of the web

-based License Renewal Information System database that Entergy uses to develop aging management review reports and license renewal applications.

Id. at A7. He testifies that his responsibilities have encompassed review of the license renewal BPTIP and revisions to that program. Id. at 3-4, A 8.

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 43 150. Nelson Azevedo testified that he is employed by Entergy as Supervisor, Code Programs, at the Indian Point facilities facility in Buchanan, New York. Entergy Pre

-filed Test. (ENTR30373) at 4, A10. As Supervisor, Code Programs at the Indian Point facilities, Mr. Azevedo testified that he has contributed to the development and review of license renewal documentation, including the BPTIP, Entergy responses to related NRC Staff RAIs, and amendments to the BPTIP. Id. at 4, A12.

151. Robert Lee testified that he is employed by Entergy as Senior Engineer, Code Programs, at the Indian Point facilities in Buchanan, New York. Entergy Pre

-filed Test. (ENTR30373) at 5, A14. He testified that he is the program engineer for the IPEC Underground Piping and Tanks Inspection and Monitoring Program ("UPTIMP"), Entergy's current program for managing Indian Point's buried piping and tanks and that in this capacity, he has been responsible for developing and implementing that program, which Entergy also is using to implement its proposed AMP for buried pipes and tanks at the Indian Point facilities (i.e., the BPTIP). He testifies that he is familiar with the proposed AMP set forth in LRA Section B.1.6; amendments to that program, including license renewal commitments related to buried piping; and specific actions being taken by Entergy to implement the UPTIMP and the BPTIP. Id. at 6, Q16. 152. Stephen Biagiotti testified that he is a Senior Associate with Structural Integrity Associates, Inc. ("SIA") in Centennial, Colorado and is an outside consultant who was retained by Entergy to provide expert services in connection with the adjudication of Contention NYS

-5. Entergy Pre

-filed Test. (ENTR30373) at 6

-7, A18. He testified that he has reviewed relevant documentation relating to Entergy's buried piping aging management and Contention NYS

-5.

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 44 Id. at 9, A20. Mr. Biagiotti reviewed and approved the APEC Survey performed by Structural Integrity Associates, Inc., which is Exhibit ENT000445.

Id. 153. Jon Cavallo testified that he is a Vice President and Senior Consultant with UESI Nuclear Services, specializing in corrosion mitigation and protective coatings based in Portsmouth, New Hampshire. Entergy Pre

-filed Test. (ENTR30373) at 9, A22. He testified that he has reviewed relevant documentation relating to Entergy's buried piping aging management and Contention NYS

-5. Id. at 9. C. NRC Staff Witnesses 154. NRC Staff's testimony on Contention NYS

-5 was presented by a panel of Kimberly J. Green and William C. Holston. NRC000016 , NRC Staff Pre

-filed Testimony (modified December 7, 2012 (NRCR20016))

("NRC Pre-filed Test."). 155. Ms. Green testified that she is a Senior Mechanical Engineer in the Division of License Renewal, Office of Nuclear Reactor Regulation , where she conducts technical reviews of aging management programs and aging management review results related to auxiliary and steam and power conversion systems in license renewal applications submitted by operating reactor licensees. NRC Pre-filed Test., NRCR20016 at 1 (A.1(a)); 2 (A.2(a)). She also testified that from April 2007 until April 2011, she was the project manager responsible for NRC Staff's safety review of the Indian Point Unit s 2 and 3 license renewal application and that since November 28, 2011, she has served as the Staff's environmental project manager for the Indian Point LRA.

Id. at 2 (A.2(a)). She further testified that she served as one of the NRC Staff's technical reviewers of the proposed aging management program for buried piping and tanks submitted by Entergy in its LRA for Indian Point Unit s 2 and 3, and prepared Section 3.0.3.1.2 concerning buried piping and tanks in the Staff's initial November 2009 SER for the Indian Point State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 45 Units 2and 3 LRA, NUREG

-1930, "Safety Evaluation Report Related to the License Renewal of Indian Point Nuclear Generating Units 2 and 3," (November 2009). Id. at 3 (A.3(a)).

156. Mr. Holston testified that he served as the NRC Staff's principal reviewer of Entergy's proposed aging management program for buried and underground piping and tanks for the Indian Point Units 2 and 3 License Renewal Application from January 2011 to the present, and that he authored the Draft and Final Interim Staff Guidance. NRC Pre-filed Test., NRCR20016 at 2

-3 (A.2(b)). He testified that he is the lead reviewer for buried and underground piping and tank AMPs and related issues. Id. at 4 (A.3(b)). Mr. Holston also testified that he authored Section 3.0.3.1.2, "Buried Piping and Tanks Inspection Program," in NRC Staff's August 2011 Supplemental SER, NUREG-1930, "Safety Evaluation Report Related to the License Renewal of Indian Point Nuclear Generating Units 2 and 3," Supplement 1 (Aug

. 2011). Id. IV. LEGAL STANDARD A. Burden of Proof 157. "It is well established that the Applicant carries the burden of proof on safety issues." Duke Power Co., (Catawba Nuclear Station, Units 1 and 2), CLI 19, 17 N.R.C. 1041 (1983), citing Consumers Power Company (Midland Plant, Units 1 and 2), ALAB

-283, 2 N.R.C. 11, 17 (1975).

Once the State has "introduced sufficient evidence to establish a prima facie case, the burden then shifts to the applicant who, as part of his overall burden of proof, must provide a sufficient rebuttal to satisfy the Board that it should reject the contention as a basis for denial of the permit or license."

Louisiana Power and Light Co.

(Waterford Steam Electric Station, Unit 3), ALAB-732, 17 N.R.C. 1076, 1093 (1983) (quoting Consumers Power Co.

(Midland Plant, Units 1 and 2), ALAB

-123, 6 A.E.C. 331, 345 (1973)).

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 46 B. Evidentiary Standards 158. The NRC's license renewal regulations require Entergy to "demonstrate that ... [t]he effects of aging on the intended function(s) will be adequately managed for the period of extended operation."

10 C.F.R. § 54.21.

Among the actions that must be taken are "managing the effects of aging during the period of extended operation on the functionality of structures and components that have been identified to require review under §54.21(a)(1)."

10 C.F.R. § 54.29(a)(1).

159. Systems, structures, and components ("SSCs") requiring an aging management review perform an intended function, as described in § 54.4:

(1) Safety

-related systems, structures, and components which are those relie d upon to remain functional during and following design

-basis events (as defined in 10 CFR 50.49 (b)(1)) to ensure the following functions

-- (i) The integrity of the reactor coolant pressure boundary; (ii) The capability to shut down the reactor and maintain it in a safe shutdown condition; or (iii) The capability to prevent or mitigate the consequences of accidents which could result in potential offsite exposures comparable to those referred to in § 50.34(a)(1), § 50.67(b)(2), or § 100.11 of this chapter, as applicable.

(2) All nonsafety

-related systems, structures, and components whose failure could prevent satisfactory accomplishment of any of the functions identified in paragraphs (a)(1)(i), (ii), or (iii) of this section.

(3) All systems, structures, and components relied on in safety analyses or plant evaluations to perform a function that demonstrates compliance with the Commission's regulations for fire protection (10 CFR 50.48), environmental qualification (10 CFR 50.49), pressurized thermal shock (10 CFR 50.61),

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 47 anticipated transients without scram (10 CFR 50.62), and station blackout (10 CFR 50.63).

5 160. Therefore, those buried pipes, and tanks, that are safety

-related, or which are nonsafety related but whose failure could affect the reactor pressure boundary's integrity, the capability to safely shut down the plant, or the capability to prevent or mitigate the consequences of accidents that could result in potential offsite exposures, must be the subject of an Aging Management Program in license renewal. 161. The United States Supreme Court recognized that, pursuant to section 182(a) of the Atomic Energy Act (42 U.S.C. § 2232(a)), definitive safety findings must be made before issuance of an operating license. Power Reactor Development Co. v. International Union of Elec., Radio and Mach. Workers, AFL

-CIO, 367 U.S. 396, 397 (1961)("It is clear from this provision that before licensing the operation of PRDC's reactor, the AEC will have to make a positive finding that operation of the facility will 'provide adequate protection to the health and safety of the public.'"); see also Union of Concerned Scientists v. NRC, 735 F.2d 1437, 1451 (D.C. Cir.1984), cert. denied, 469 U.S. 1132 (1985) (holding that material licensing issues may not be excluded from a licensing hearing).

162. Under the Atomic Energy Act and NRC regulations, as the applicant seeking a renewed operating license, Entergy's License Renewal Application must contain a proposed Aging Management Program for buried and underground pipes and tanks, NRC must then review that proposed program, and make an affirmative finding that the proposed program

5 10 C.F.R. §§ 54.4(1)

-(3); see also Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc.

(Pilgrim Nuclear Power Station

), CLI-10-14, Docket No. 50

-293-LR (June 17, 2010) at 5

-8.

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 48 complies with 10 C.F.R. Part 54 and provides reasonable assurance of adequate protection to the health and safety of the public.

163. The regulatory language in § 54.29 obligates Entergy to prove that "actions have been identified and . . . will be taken" (emphasis added) such that Entergy demonstrates that it will be managing the effects of aging on critical safety components.

164. As the Commission has made clear, an applicant's promise to develop the details of an adequate AMP in the future is not enough: such a commitment does not absolve the applicant from demonstrating, prior to issuance of a renewed license, that its AMP is indeed consistent with the GALL Report.

The Commission does not simply take the applicant at its word. When an applicant makes such a statement, the NRC Staff will draw its own independent conclusion as to whether the applicant's programs are in fact consistent with the GALL Report.

Vermont Yankee, LLC and Entergy Nuclear Operations, Inc.

(Vermont Yankee Nuclear Power Station), CLI-10-17 at 45-46, 72 N.R.C. 1, 37 (July 8, 2010)

. C. Commitments and 10 C.F.R. § 50.59 165. As discussed in substantial detail during the hearing, Entergy has included some information concerning its management of aging of buried pipes in its proposed AMP contained in its license renewal application, some in its list of regulatory commitments, some in its updated final safety analysis report ("UFSAR"), and some in statements made to the NRC via other means, including in corporate documents and responses to RAIs. 166. Pursuant to 10 C.F.R. § 50.59(c)(2), the only time a commitment or statement in an AM P is meaningful is when the commitment is part of the FSAR, UFSAR, or the Technical Specifications, because changes to the UFSAR or Technical Specifications require an applicant State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 49 to seek a license amendment if a § 50.59 evaluation is performed and the applicant concludes that a license amendment is required.

167. As the NRC Inspector General has stated:

One way NRC provides oversight of licensees is through the management of regulatory commitments (commitments), which are non

-legally binding actions that the licensee agrees or volunteers to take.

Licensees are responsible for creating, tracking, and handling all commitments made to NRC.

Within NRC, the primary responsibility for managing commitments lies with Division of Operating Reactor Licensing (DORL) project managers in the Office of Nuclear Reactor Regulation (NRR).

- - Commitments are neither legally binding nor obligations of a license; however, a commitment may be escalated into a legally binding obligation only if NRC staff deems that the commitment is essential for ensuring public health and safety.

- - Licensees are responsible for creating, tracking, and handling all commitments made to NRC.

The licensee is entirely responsible for tracking the commitments, and this includes any changes to the commitments and notification to NRC about such changes. NRC expects licensees to honor commitments in good faith.

NYS000181.

168. An AMP or a commitment that does not get included in the FSAR, UFSAR, or the Technical Specifications can be modified by the applicant without seeking an amendment and need only be identified to NRC Staff in a summary of all such non

-regulated modifications every twenty

-four months. 10 C.F.R. § 50.59(d)(2).

169. Even if the U F SAR contains a critical or key aspect of an aging management program, Entergy can change that critical aspect without first informing the NRC under certain circumstances. 10 C.F.R. § 50.59(c)(1)(2) permits Entergy to make changes in the UFSAR without prior notice to the NRC and without obtaining a license amendment if there is no change State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 50 in the technical specifications in the license and the change does not meet any of the following eight criteria:

(i) Result in more than a minimal increase in the frequency of occurrence of an accident previously evaluated in the final safety analysis report (as updated); (ii) Result in more than a minimal increase in the likelihood of occurrence of a malfunction of a structure, system, or component (SSC) important to safety previously evaluated in the final safety analysis report (as updated); (iii) Result in more than a minimal increase in the consequences of an accident previously evaluated in the final safety analysis report (as updated); (iv) Result in more than a minimal increase in the consequences of a malfunction of an SSC important to safety previously evaluated in the final safety analysis report (as updated);

(v) Create a possibility for an accident of a different type than any previously evaluated in the final safety analysis report (as updated); (vi) Create a possibility for a malfunction of an SSC important to safety with a different result than any previously evaluated in the final safety analysis report (as updated);

(vii) Result in a design basis limit for a fission product barrier as described in the FSAR (as updated) being exceeded or altered; or (viii) Result in a departure from a method of evaluation described in the FSAR (as updated) used in establishing the design bases or in the safety analyses.

10 CFR § 50.59(c)(1)(2). Entergy must document the 50.59 reviews in which it concludes no amendment was necessary and present that documentation at least every 2 years to NRC Staff, and at that time Staff can require Entergy to seek a license amendment or reject the change outright. 10 C.F.R. § 50.59(d).

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 51 V. INDIAN POINT'S AGING MANAGEMENT PROGRAM FOR BURIED AND UNDERGROUND PIPES AND TANKS A. Entergy's Proposed Aging Management Program 170. Entergy and NRC Staff witnesses offered contradictory testimony as to whether the GALL Report constitutes in and of itself an actual "of f-the shelf" Aging Management Program, or whether it is a summary guidance document that offers guidance on how to construct a separate, site

-specific Aging Management Program.

171. Entergy's expert Mr. Cox attempted to assert that GALL itself is an AMP:

"[w]e consider the GALL - to be an aging management program described in terms of the ten elements that are specified in the standard review plan."

Tr. 3313:19

-22 (Cox). When Judge Wardwell asked: "[i]s it your opinion that it stands on its own as an AMP?".

Mr. Cox answered, "[y]es, that's correct."

Id. 172. But GALL itself says otherwise, requiring an applicant to "verify that [its] programs are consistent with GALL."

NYS00147A at iii (emphasis added)

. 173. NRC Staff has consistently stated that GALL is merely a set of recommendations. NRC000016 at 11; Tr. 3323:3

-7 (Holston). However, NRC Staff does agree that if, as Entergy testified, GALL is Entergy's AMP, it must be followed and it is no longer guidance. Tr. 3732:13-18 (Holston):

First of all, when an applicant adopts the AMP and states that they're going to be consistent with the AMP, it then becomes requirements, because the applicant said that's the way we're going to meet and demonstrate that we'll have reasonable assurance . . .

174. According to Entergy's expert Mr. Cox, one sentence professing an applicant's intention to comply with the GALL Report is all that is required to "demonstrate" that the applicant will adequately manage the aging effects of a particular component. He asserts that State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 52 once an applicant sees what components are subject to aging management review, an aging management program could be a "one sentence application that says 'We will do everything consistent with GALL' and that would be adequate

." Tr. 3316:21

-25 (responding to Judge Wardwell's question at 3316:6

-13) ("The GALL program, saying that we're going to use the GALL program to manage that aging effect would be a demonstration that we will effectively manage the aging effect for that particular component and environment"). 175. Therefore, the record supports the conclusion that GALL itself is not an AMP, but is instead merely guidance, and that an applicant must develop a program which is consistent with GALL to rely on GALL as a measure of reasonable assurance.

176. In addition, Entergy's witness also testified that implementing procedures are necessary to demonstrate GALL consistency. Responding to Judge Wardwell's question whether there is any more work required after an applicant had stated it would comply with GALL, Mr. Cox replied, "- I mean we obviously would have to do

- We would have to have implemented procedures to implement those elements of that GALL program."

Tr. 3314:1

-5, 6-9. Judge Wardwell asked, "How do you define implement?

You mean implementing the GALL program. But that's not implementing an aging management program, is it?"

Tr. 3314:10

-13. Mr. Cox said, "Yes.

I believe it is."

Tr. 3314:14.

177. Thus, Entergy's expert Mr. Cox admits that implementing procedures are needed in order for Entergy to meet its license renewal commitments. See Tr. 3314; 3355 ("What we would do to verify that we were meeting that commitment, we would go take each element of the GALL Report and develop a procedure and implement a procedure that ensured that we followed whatever action was specified by that GALL element. We would do that for each of the ten elements to make sure that we had appropriately implemented the commitment."). Mr. Cox State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 53 admits that "license renewal applications to my knowledge have never included implementing procedures."

Tr. 3316: 3

-5 (Cox). Judge McDade followed up:

JUDGE McDADE: But isn't it necessary in order to demonstrate that you have sufficient details so that we not only know what it is you intend to do but how you intend to do it so that we can make a determination as to whether or not that will be adequate?

MR. COX: I think it does have those details.

If you go to the GALL report that tells you what kind of inspections to do for buried piping, for example, it says you're going to do a visual inspection. You've got to dig up the piping and do a direct visual inspection of the piping and the coating that's applied to that piping.

Tr. 3317:13

-25. 178. But Mr. Cox goes on to state that GALL Rev. 1 does not contain details about how many visual inspections need to be done.

MR. COX: I think we'd have to talk about specific details. I don't see that when you say aspirational in nature when it doesn't define what to do, I don't see it that way. The inspection method, for example, it's a visual inspection and that's spelled out in the GALL report.

So I'm not sure what more you would need to see to say how are you going to do a visual inspection.

JUDGE McDADE: Well, does it specify, for example, what percentage of the piping needs to be visually observe d?

MR. COX: There was no

--

JUDGE McDADE: Is it one percent? Ninety

-one percent? One half of one percent?

MR. COX: There was no requirement in the GALL report in Rev 1 to specify a certain number of inspections or a percentage of inspections.

JUDGE WARDWELL: Did it say you did not have to do that?

MR. COX: No, it did not address percentages.

JUDGE WARDWELL: So it's silent on that.

Tr. 3347:18 3348:15. ***

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 54 MR. COX: The standard of the guidance of the GALL report, it specified opportunistic inspections only. It didn

't give a number or percentage or anything else about how much pipe you need to inspection.

Tr. 3349:20

-23. 179. Therefore, Entergy's experts admit that an insufficient amount of detail is present in GALL Rev.

1 to identify even basic requirements like the number of inspections that should be performed. 180. Entergy has developed plant procedures to implement its proposed Aging Management Program and consider s the implementation part of its commitment.

Tr. 3317:7

-9 ("Well, the commitment is to implement the program"); Tr. 3341:19

-21 (Cox: "I would consider the demonstration to be the fact that we've committed to implement the program."); Tr. 3596:10-17 (Cox: "I'm trying to draw a distinction between the program which I consider to be the program we described in the LRA with the references to the GALL Report and the changes that were made during the review. That's the program.

And the procedures that implement that program are the plant procedures, the EN

-DC-343 and the CEP and the SEP procedures that we talked about yesterday."); Tr. 3674:19

-21 (Cox: "We have to implement the program which means we have to go out there and develop the procedures to do that."); Tr. 3677:2

-13 (Cox): If the GALL Report says you have to do a visual inspection or in our case it says we have to do

-- I can't remember the number, 34 visual inspections. We

're going to have to look in the procedure to see if has directions to do that. And we'll flag that procedure as implementing a commitment. It

's part of the commitment. All of the individual steps that are entailed in that commitment will be flagged in the procedure that says you can

't change this procedure without considering that you may be changing something that we've committed to do as part of the License Renewal Application.

181. NRC Staff's expert agreed:

JUDGE WARDWELL: Those implementing procedures

--

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 55 MR. HOLSTON: Yes, sir

-- JUDGE WARDWELL:

-- are by definition what is considered to achieve that consistency with GALL.

MR. HOLSTON: Yes, sir.

JUDGE WARDWELL: And therefore, it is incumbent upon Entergy to be performing their aging management and according to those procedures in order to maintain their consistency with GALL to provide the linkage that's needed.

MR. HOLSTON: Yes, sir.

Tr. 3668-3 669. 182. NRC Staff expert Kimberly Green confirmed the importance of implementing procedures when she testified that The Staff currently interprets the word "implemented" to mean that they have all their procedures in place prior to entering the period of extended operation - The commitment that they typically give for a new program is to implement the new program prior to entering the period of extended operation. In that context, we would expect that they would have developed all of their implementing procedures to put that program into action when the last day of their current license expires.

Tr. 3647:9

-18, 3648:7

-13 (Green).

183. It is the implementing procedures that are the key to what is finally accepted by NRC as the actual and enforceable Aging Management Program, and that are by necessity part of the Aging Management Program itself, as Entergy has testified.

184. However, currently the substance of the implementing procedures

- identified as EN-DC-343, CEP-UPT-0100, SEP-UIP-IPEC, and EN

-EP-S-002-MULTI (see Tr. 3596)

- are not captured in the proposed Aging Management Program for the Indian Point facilities, nor are they found elsewhere in the LRA, UFSAR, or any other enforceable document.

185. The proposed AMP (made up of section B.1.6 of the LRA and responses to NRC Staff RAIs) and the UFSAR contain significantly fewer details than the totality of these four State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 56 implementing documents that both Staff and Entergy testified are critical to the AMP's ability to comply with GALL. Yet when Entergy experts are asked about inspections, which are at the heart of Entergy's revised proposal to address the aging of buried pipes and tanks, Entergy experts respond with information from these implementing procedures, not the AMP or GALL.

Ent. Initial Test., ENT000373 at 87

-88 (A107); see also Tr. 3397:12

-21: JUDGE McDADE: You are talking about the degree of specificity here but yet it talks about classifying pipe segments as having high, medium, or low impact of leakage. But it doesn

't define what high is, what medium, what low is.

Couldn't that be in the eye of the beholder?

What one person viewed as high another person would view as low if you don't have specific criteria for that?

MR. HOLSTON: The corporate procedure defines the criteria for that.

B. License Renewal Audits 186. NRC Staff testified that applicants are not required to include the demonstration that they will meet GALL's recommendation in the four corners of their License Renewal Applications ("as you are well aware from looking at the application itself, it contains very little details if the program is consistent" Tr. 3323:12

-13 (Holston)) because NRC Staff confirms this compliance during an AMP audit by reviewing corporate implementing procedures:

JUDGE WARDWELL: Okay.

And how do they

- Don't they have to demonstrate that consistency prior to be granting a license renewal application?

MR. HOLSTON: Again, this is Holston.

Yes, sir.

They do.

JUDGE WARDWELL: And how is that demonstration achieved if there isn

't more in the license renewal application or are they just saying "Fine. We'll do it as part of the RAI process"

? Why isn't it just done as part of the license renewal application?

MR. HOLSTON: Well, I can't answer the why it isn't done because that

's our process. ***

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 57 JUDGE WARDWELL: Have you ever required them to do it as part of a license renewal application?

MR. HOLSTON: We do in that we do an AMP audit. And an aging management program audit where the Staff goes to the site for a week or longer if necessary and reviews all of the implementing procedures that will implement that aging management program. So if I can provide an example, one of the recommendations at AMP XI.M41 is to risk rank your piping inspection locations. When I conduct the AMP audit, I go to the site and review their implementing procedures to determine if they have an adequate risk management scheme of checking to have risk from both the perspective of the potential for corrosion and the consequences of corrosion. If they don

't have those available, then I would write a request for additional information. If they're available and I can review them and they're adequate, then that resolves the issue of consistency. And we write an audit report which documents where they're consistent or where there are gaps.

JUDGE WARDWELL: Why shouldn't they provide a general description of those in their license renewal application to show that in fact those exist and here's what's in those particular documents that you just described that you call implementing procedures?

MR. HOLSTON: This is Holston again.

I can only answer that because that's the way we built the process.

Tr. 3323:16

-3325:9. 187. But Mr. Holston must have been testifying in the hypothetical, because NRC Staff's license renewal audit at Indian Point was conducted in 2007 and 2008 (ENT00041 at 1), and states that "At the time of the audits, the applicant had not yet developed procedures for this new program." ENT000041 at 8, section 3.1.2. The record contains no indication that NRC Staff has reviewed Entergy's implementing procedures in the context of license renewal, or that Staff will be conducting a follow

-up audit given the creation of these new procedures since Staff's original (and only) license renewal audit.

188. Notwithstanding NRC Staff's observation that Entergy "had not yet developed procedures for this new program" at the time of the audit, Staff nevertheless concluded that the State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 58 "applicant's AMP elements - are consistent with the GALL Report AMP elements."

ENT000041 at 9. 189. Judge McDade found "troubling" Mr. Holston's testimony that GALL refers to things like visual inspections, but that one has to look at the site procedures in order to determine whether or not the way an applicant implements GALL will be adequate to manage the effects of aging. Tr. 3348:19

-25. Judge McDade questioned how the Board can render a decision on the question of reasonable assurance when these procedures, which factor into NRC Staff's review, are not part of the AMP before the Board.

Tr. 3348:25

- 3349:1-3 (J. McDade).

The record does not contain a clear response to this question.

190. When pushed on the reason why such detail was not included in the LRA requirements, NRC Staff's expert opined that it could be because the LRA "would be a hug e

document - 200 to 300 pages of procedures and reports."

Tr. 3325:19

-25. 191. The Atomic Safety and Licensing Board may take judicial notice that other critical documents in this proceeding are hundreds of pages in length. See, e.g., Final Supplemental Environmental Impact Report, NRC000004 (NYS00133A

-J) (2,187 pp.); GALL Report, Rev. 2 NYS000174A

-D (756 pp.). 192. NRC Staff admits that it could require applicants to include some level of this information in a license renewal application that would allow one to "look [] and say, "Yes.

Okay. They have done what GALL is asking them to do."

Tr. 3326:1

-15 (J. Wardwell).

NRC Staff admits that "[t]he procedure to do something like a risk assessment could be described in a license renewal application."

Tr. 3327:17

-21. 193. However, the audits are not part of the LRA, the State is not permitted to participate in the audit, and documents reviewed in an audit are not provided to the Board or State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 59 parties to be adjudged adequate or not. NRC Staff admits that it would be helpful if this information were provided to the public. Tr. 3377

-78 (Holston) (discussing Staff's position that certain information is only available to Staff although it is relevant to the question of whether the applicant has "demonstrated" compliance with GALL). And of course, in this proceeding, NRC Staff did not review the implementing procedures during its audit.

C. GALL Revision One vs. GALL Revision Two 194. NRC Staff is not consistently applying any one set of guidance or standards to Indian Point's License Renewal application.

195. Moreover, NRC Staff and Entergy expressed confusion about which version of GALL against which they were measuring Entergy's proposed AMP.

196. Entergy's proposed AMP only commits to meeting guidelines set out in GALL Rev. 1. LRA, section B.1.6. GALL Rev.

1's requirements are clearly not enough to support a finding of reasonable assurance at Indian Point given Indian Point's history of corrosion problems. GALL Rev.

1 calls for only one inspection:

JUDGE WARDWELL: And is this one inspection on every pipe?

MR. COX: No, sir.

It is one inspection.

JUDGE WARDWELL: So you are saying the way you are reading this is that GALL is asking for just one look at one pipe somewhere on the whole plant.

MR. COX: That was the recommendation in the GALL report, yes.

Tr. 3381:4

-11. 197. NRC Staff acknowledges that Entergy's proposed AMP asserted only consistency with GALL Rev.

1,Section XI.M34. Tr. 3732:23

-25 (Holston).

198. NRC Staff also acknowledges that Entergy's proposed AMP is not consistent with GALL Rev.

2:

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 60 WARDWELL: My question to you, Staff, did you find Entergy's AMP consistent with GALL 2?

MR. HOLSTON: When the RAIs were responded to, I would not say that it was consistent with GALL. - But - GALL Rev 2, AMP XI.M41 had no provisions for a plant without cathodic protection, except for the ten year period prior to extended operation. So we didn't evaluate Indian Point against that. And we recognize they didn't have cathodic protection and we knew that we were going

to be developing [sic] and that because the Interim Staff Guidance document that is referred to in our testimony for recommendations for plants without cathodic protection. So that is an example of one [of] the things where it wouldn't have been consistent with GALL, Rev 2 AMP XI

-M41. It is consistent with the Interim Staff Guidance.

Tr. 3393:18

- 3394:21. 199. The Interim Staff Guidance Mr. Holston refers to is the Final ISG referred to above that states that "[a] licensee may reference this ISG in its license renewal application (LRA) to demonstrate that its buried and underground piping and tanks program is acceptable to the staff until the guidance in this LR

-ISG is implemented into the next update of the license renewal guidance documents."

Id. at 1. 200. Entergy's LRA as amended references the ISG although Entergy has not committed to meeting Section XI.M41 of GALL Rev. 2, which the ISG modifies.

ENT000597 at Attachment 2, p. 2 of 4.

201. Additionally, the record does not support Mr. Holston's statement; the IS G requires a demonstration through the submission of a study submitted with the LRA the impracticality of installing or operating a cathodic protection system.

NRC000162 at 2.

Entergy's LRA as amended contains no such study, and makes no mention of whether installing or operating a cathodic protection system at Indian Point would be impractical. ENT000597 at Attachment 2 (Entergy's most recent LRA amendment).

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 61 202. The Standard Review Plan for License Renewal instructs NRC Staff reviewers to "ensure that the material presented in the GALL Report is applicable to the specific plant involved and that the applicant has identified specific programs, as described and evaluated in the GALL Report, if they rely on the report for license renewal."

NYS000161 at 2.

203. Entergy's current proposed Aging Management Program purports to follow Section XI.M34 of GALL Rev.

1 (2005), which is a section applying to plants without cathodic protection.

204. During the December 2012 evidentiary hearing, however, Entergy's witnesses testified that Entergy is utilizing cathodic protection on multiple in

-scope systems. Tr. 3452:1

-12. Thus, "the material presented in the GALL Report is [not] applicable to the specific plant involved" and as such, mere reference to Rev.

1 of the GALL Report cannot suffice to support a finding of an acceptable application without an independent review of the AMP on its own terms to determine whether it provides reasonable assurance

. D. Cathodic Protection At Indian Point 205. Entergy's Indian Point facilities have generally operated without cathodic protection. Tr. 3459:20-21 (Lee). 206. For this reason, when Entergy submitted its License Renewal Application in April 2007, Entergy's application did not invoke Section XI.M28 of GALL Rev. 1, which applies to plants with cathodic protection. Instead, Entergy's application stated that it was relying on and was consistent with XI.M34 of GALL Rev. 1, which only applies to plants without cathodi c protection.

NYS000203, Att. 1 at 2 of 7.

207. The record contains no dispute that cathodic protection is the most effective way to prevent corrosion.

NYS000164 at 8:18

-19; Tr. 3688:5

-12 (Holston) (NRC Staff testifies that State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 6 2 if a system has cathodic protection, it would not need more than one inspection); see also NRC000162 (calling for cathodic protection unless an applicant justifies why cathodic protection would be infeasible).

208. Cathodic protection prevents corrosion where coating has failed.

NYS000164 a t 8:18-19. 209. Entergy's pre

-filed testimony submitted in March 2012 argued that "[a]vailable soil data do not indicate that soil corrosivity is a significant concern at IPEC, or that soil corrosivity, by itself, warrants cathodic protection."

ENTR30373 at 19(A.34(7)).

But in his testimony, Entergy's expert Mr. Azevedo testified that cathodic protection has now been applied to the condensate storage tank return line for both units, the city water line, and IP3's sewer line systems. Tr. 3452:1

-12, 3805:20

-3806:8; see also Tr. 3799:24

-3800:13. 210. Entergy has consistently argued before this Board that cathodic protection was not warranted at Indian Point. ENTR30373.

211. Entergy's position change is an acknowledgement of the State's longstanding position that cathodic protection is both efficacious and necessary at this plant.

212. Entergy's new hearing testimony appears to have also caught NRC Staff unaware, as Staff's expert testified that Staff "didn't pursue any questions for cathodic protection for Indian Point given that at the time they only had cathodic protection on their city water line, a very small portion of their entire in scope piping."

Tr. 3930:7

-11 (Holston).

213. N RC Staff did not testify that it had been made aware of new cathodic protection installations and had revisited its questioning. But as Entergy's expert Mr. Azevedo made clear at the hearing, Entergy has recently installed cathodic protection on multiple systems and plans further installations.

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 63 214. At present, the record in this adjudicatory proceeding does not contain an up

-to-date NRC Staff review of Entergy's current actual approach to aging pipes (which includes cathodic protection), nor does it contain essential details of the program including the criteria used to determine which pipes received or will receive the protection; the type of protection, how and where it was installed; or the maintenance program for the cathodic protection system, among other missing elements. The AMP for buried pipes that Entergy previously submitted (the only program of record in this proceeding) does not match Entergy's current actual approach to buried aging pipes as reflected by Entergy witness testimony at the hearing. Given this gap and discrepancy between Entergy's proposed program and its current actual approach, the record in this proceeding does not presently provide a basis on which the Board could base a finding of reasonable assurance that the facilities' current licensing basis will be maintained throughout the period of extended operation.

E. Likelihood of Future Coating Failures and "Holidays" 215. Entergy's expert Mr. Cox acknowledged that coating failures were likely to occur again: MR. COX: Let me add one point of clarification.

We're not trying to say that there's never going to be another coating failure.

JUDGE WARDWELL: Well, that's what I heard one of your experts imply.

MR. COX: Well, we're obviously not standing on that, on that precept, or we wouldn't be doing this extensive program of inspections and cathodic protection and the other monitoring that we've talked about before.

So I don't want to get bogged down -because like I said, if we were banking on the fact that the coating was good for 100 years, we wouldn't be doing all these other things.

Tr. 3830:3

-16.

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 64 1. Large Rocks Have Damaged Buried Piping Coating at Indian Point

, and the Record Does Not Support NRC Staff's Findings to the Contrary 216. Rocks in backfill have damaged buried piping coating at pipes at Indian Point in places. In February 2009, Indian Point experienced a leak on the return line to the condensate storage tank on Unit 2. The leak rate was estimated at less than fifteen gallons per minute. The February 2009 leak was the result of damaged pipe coating. Specifically, Entergy concluded that the root cause of the leak was an original construction installation specification which did not appropriately specify the type of fill to be used when covering piping and components after installation. See NYS000203 at 2 of 7 ("As a result, rocks in the original construction backfill surrounding the piping damaged its protective coating ultimately leading to the leak in the piping caused by corrosion originating on the external

-piping surface at a localized area where the coating was damaged. Moisture in the soil surrounding the pipe contributed to the corrosion as the elevation of the pipe is near the elevation of the water table in the area.").

217. Visual examinations in the fall of 2008 on three ten

-foot lengths of Unit 2 condensate storage tank pipes (auxiliary feed pump supply, condensate storage tank return, and condensate storage tank overflow) at two separate locations revealed areas that required coating repair and two locations with minor coating defects.

NYS000203 at 2 of 7. The defective coating observed during these inspections also were attributed to the backfill materials used when covering the piping during initial construction.

Id. 218. Entergy is aware of the shortcomings in the technical specifications guiding installation of buried piping at the time of construction. ("Azevedo: I looked at the original spec.

It was basically a page and a half. Did not have a lot of controls on the size of rocks, for State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 65 example."); see also Tr. 3613 (Cavallo: "In general in the industry, we really did not recognize the effect of very, very pure backfill on coatings.").

219. Despite these well

-recognized problems with backfill and related corrosion problems at Indian Point, NRC Staff testified that "in regard to preventive actions to mitigate potential corrosion, all steel pipings has been coated in accordance with standard industry practices. Recent excavated direct visual examinations of buried piping have demonstrated that the coatings are in acceptable condition and the backfill in the vicinity of the pipe does not damage the coatings."

NRC000016 at 21, A18; Tr. 3627:14

-22. 220. The record does not support NRC Staff's conclusion.

NYS000203 at 2 of 7.

221. The State's expert Dr. Duquette testified that due to these coating problems, spot inspections, such as the ones Entergy proposes, are not going to detect areas where one might find significant corrosion and that cathodic protection is required at Indian Point. Tr. 3634:18-22. 2. Recent Inspections Found Corrosion Problems Warranting the Application of Cathodic Protection 222. Entergy's witnesses and experts acknowledge that recent inspections have uncovered corrosion problems. While performing guided wave inspections following the condensate return pipe leak in 2009, Entergy found corrosive conditions that warranted cathodic protection.

MR. AZEVEDO: - We have done a number of guided wave inspections. We identified other areas where there was potentially some corrosion going on that we have installed cathodic protection and we are in the process of installing additional cathodic protection. In addition, we also did an impact survey of the site. So we have done a lot of testing, a lot of inspections. We have added cathodic protection as a result of what we found in the 2009 leak.

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 66 Tr. 3452:1

-12.6 223. More recently, following the November 2010 APEC Survey (ENT000445), Entergy performed excavations adjacent to the first two of four locations recommended for investigation.

The excavation of the third location is planned in 2013, and the fourth location has no current timetable (Tr. 3799 (Azevedo)).

224. Entergy found corrosion during the excavation of Location Two.

JUDGE McDADE: Okay, and what did you find at Location 1?

MR. AZEVEDO: In Location 1, as Mr. Lee has said, we didn

't really find any coating damage.

We didn't really find any issues.

JUDGE McDADE: And Location 2?

MR. AZEVEDO: Location 2, that hole is still open right now.

We did find some coating degradation. We

're in process.

This is asbestos coating. We're in the process of cleaning up that coating this week and we're going to do some ultrasonic inspections. But based on the initial visual examinations that we did, we didn't find any significant corrosion, just surface corrosion.

Tr. 3805:20

-3806:8. See also Tr. 3799:24

-3800:13 (explaining that "there is some coating degradation for possibly in the other areas, but not where we excavated.").

225. Entergy's experts acknowledged that they cannot prevent coating failure based on their current efforts.

MR. COX: Let me add one point of clarification. We're not trying to say that there's never going to be another coating failure.

JUDGE WARDWELL: Well, that

's what I heard one of your experts imply.

MR. COX: Well, we

're obviously not standing on that, on that precept, or we wouldn't be doing this extensive program of inspections and cathodic protection

6 This testimony reflects a correction to the transcript adopted by the Board.

See Entergy Nuclear Operations, Inc.

(Indian Point Units 2 and 3) Order (Adopting Proposed Transcript Corrections) at 9 (Dec. 10, 2012).

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 67 and the other monitoring that we

've talked about before. So I don

't want to get bogged down in the PCAC and the coating life, because like I said, if we were banking on the fact that the coating was good for 100 years, we wouldn't be doing all these other things.

Tr. 3830:3

-16. F. Replacing Cathodic Protection With Increased Inspections 226. Even putting aside the fact that Entergy is in fact installing cathodic protection i n multiple places at these plants, Entergy and NRC Staff's experts assert that Entergy's current proposed AMP compensates for lack of cathodic protection by requiring additional inspections.

227. Judge Wardwell observed that "inspections themselves are not a preventive measure."

Tr. 3859:1

-2. 228. NRC Staff's witness acknowledges that only 7% of the plant's buried piping will be exposed and inspected by 2035 under Entergy's currently

-proposed approach to buried pipes and tanks (3631:15

-20 (Holston)), a percentage which Entergy's own witnesses characterize as "very small":

JUDGE WARDWELL: In regards to your direct excavations though, that's still a very small percentage of the total length of the pipe that's buried.

Isn't that correct?

AZEVEDO: It is.

Tr. 3615:1 3-17. 229. This percentage of total buried piping is too low to be used as a meaningful measure of buried piping integrity, especially at a plant which has already experienced through

-wall failures from the random occurrence of damaged coatings at the time of installation. Tr. 3634:11-3636:8 (Duquette).

230. Entergy has asserted that it is inspecting pipes in the areas most likely to be subject to corrosion (ENTR30373 at 114 (A.126)), but given that coating damage could have State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 68 occurred anywhere at the facility from the inadvertent placement of large rocks on or near the pipes, these inspections do not provide a basis for reasonable assurance.

231. Further, Entergy's experts testified that cathodic protection effectively controls corrosion if properly installed and tested:

MR. BIAGIOTTI: But when a CP system is

-- and, again, CP system/systems, the plural is important because it's usually not one thing, it's multiple CP systems in combination that work.

But when properly installed and tested yes, they do effectively control corrosion in the area they've been applied.

Tr. 3877:13

-18. 232. Entergy's installation of cathodic protection at Indian Point undercuts its position that increased inspections are an adequate substitute for cathodic protection.

G. The UFSAR Supplement for Indian Point 233. Under the NRC's regulatory scheme, licensees are allowed to change certain commitments they made to the NRC during license renewal after the license has been granted if the applicant performs a screening procedure pursuant to 10 C.F.R. § 50.59 and the results indicate no notice to NRC or the public is required. However, as NRC Staff testified, commitments the applicant decides to make part of the UFSAR after license renewal, which appear at this stage in a UFSAR Supplement, are definitively subject to § 50.59, and are treated more seriously by the Staff.

234. The current UFSAR Supplement section on buried and underground pipes and tanks is one page long for each unit.

ENT000597, Att. 2

see also Attachment 2

. 235. In contrast, Entergy's implementing procedures for buried and underground pipes and tanks total 132 pages, and include critical details not present in the UFSAR (and therefore not subject to NRC enforcement) including, inter alia

How to determine the final corrosion risk assessment number (NYS000173 at 13)

,

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 69 How to determine the inspection priority and applicable inspection intervals (NYS000173 at 13)

, How to select pipes for examination (NYS000173 at 14), how to group pipes for inspection (NYS000174 at 11), pipeline inspection locations (NYS000174 at 12), and preferred inspection methodologies for piping (NYS000174 at 10)

, Leak detection methods that may be used (NYS000173 at 15)

, Acceptance criteria (NYS000173 at 16), and Replacement and mitigation strategies (NYS000173 at 17

-18, ENT000599 at 16-17). 236. In contrast, the UFSAR Supplement contains only the number of inspections that Entergy will conduct, and mentions in a sentence each, with no specifics, corrosion risk assessment, pipe classification, corrosion risk, pipe inspection and frequency. ENT000597, Att.

2. 237. It is unclear from the record what information becomes part of the UFSAR and what information remains in an unenforceable commitment.

238. NRC Staff testified that when the applicant makes commitments in a letter, Staff should track them in the SER and that the applicant should reflect them in the UFSAR, but then said that the SER and UFSAR are not identical and the UFSAR is more weighty, even though the applicant writes the UFSAR and the Staff writes the SER:

JUDGE WARDWELL: So what would you consider to have more weight, those changes in Appendix A that we understood yesterday are associated with the UFSAR or those that you have talked about as being adopted into the SER? Or do they have equal weight and are they kinda one in the sam e?

MS. GREEN: They are not the same.

I would give more weight to what is included in the UFSAR Supplement which is then incorporated into their UFSAR.

And any changes made to their UFSAR has to go through the 50.59 process.

State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 70 JUDGE WARDWELL: Do the ones that you've adopted into the SER necessarily have to go through the 50.59 process?

MS. GREEN: Not necessarily unless they are also made part of the UFSAR.

I'd like to add that most of the commitments that an applicant makes to the NRC in support of its License Renewal Application are also included in the UFSAR.

So if an applicant commits to implement a new program, that

's a commitment.

We will also find in the program description for the UFSAR supplement that they will implement that new program prior to entering the period of extended operation.

They're the same, but more weight is given to what's in the UFSAR because they can't make a change to that unless they go through the 50.59 process.

Tr. 3645:18

- 3646:20. 239. The record does not indicate why NRC Staff's tracking of commitments in the SER and the applicant's listing of them in the UFSAR would not be identical, or why the NRC would place more weight on UFSAR than on the SER.

240. Most of the details concerning how exactly Entergy will manage the aging of buried pipes and tanks are not found in the UFSAR, the LRA, the SER, or RAI responses. Such details are found in Entergy's implementing procedures , its internal corporate documents.

VI. CONCLUSIONS OF LAW 241. Based upon a review of the entire hearing record and the foregoing discussion and Findings of Fact, the following Conclusions of Law follow:

(A) Entergy has not demonstrated compliance with either the appropriate section of GALL Rev.

1 or GALL Rev.

2. As Entergy has now installed cathodic protection on multiple in

-

scope systems, GALL Rev.

1,Section XI.M34 (which is explicitly for plants without cathodic protection, whereas Indian Point is now utilizing cathodic protection) is facially inapplicable to Indian Point. NRC Staff testified that Entergy's proposed aging management program does not comply with GALL Report Rev.

2. As such, Entergy's statement purporting compliance the GALL Report, Rev. 1, is not sufficient to provide reasonable assurance that the current licensing State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 71 basis for the Indian Point facilities will be maintained throughout the period of extended operation, and an independent review of Entergy's aging management program is necessary.

(B) Given the history of corrosion and the continual presence of corrosive conditions at Indian Point as referenced by Entergy's own recent inspections, Entergy's proffered aging management progra m that proposes to substitute additional inspections for cathodic protection is not adequate. Inspections are not preventive measures and cannot substitute for cathodic protection, which is a well

-accepted preventive measure. Moreover, Entergy has proposed to inspect only 7% of pipes at the plant, which is too low a percentage to adequately represent conditions at the facilities. Entergy's proposed aging management program as it stands, without a NRC Staff-approved aging management program incorporating cathodic protection and proposing to inspect only a small fraction of buried pipes at Indian Point, does not provide reasonable assurance that the current licensing base s for Indian Point Unit 2, Unit 3 (and Unit 1 components) will be maintained throughout the period of extended operation as required by 10 C.F.R. § 54.29.

(C) NRC Staff has not conducted a review, inspection, or audit of Entergy's proposed aging management program since Entergy recently installed numerous cathodic protection systems, so there is in fact no current Staff review of Entergy's actual aging management program on which the Board could find reasonable assurance that the Indian Point current licensing basis will be maintained throughout the period of extended operation as required by 10 C.F.R. § 54.29.

(D) Entergy testified that implementing procedures are needed in order for Entergy to meet its license renewal commitments and be in compliance with the GALL Report, but the se implementing procedures are not captured in the LRA or UFSAR and are not binding on the State of New York Findings of Fact and Conclusions of Law Contention NYS

-5 72 applicant or enforceable by NRC Staff. On these grounds, Entergy's AMP does not provide reasonable assurance that the current licensing basi s for Indian Point will be maintained throughout the period of extended operation as required by 10 C.F.R. § 54.29.

(E) In light of the above, there is no reasonable assurance that the current licensing base s for Indian Point Unit 2, Unit 3 (and Unit 1 components) will be maintained throughout the period of extended operation as required by 10 C.F.R. § 54.29.

VI I. PROPOSED ORDER 242. For the foregoing reasons, the State of New York's Contention NYS

-5 is resolved in favor of the State of New York. Accordingly, the Director of Nuclear Reactor Regulation is not authorized to issue, and may not issue, renewed operating licenses for the Indian Point nuclear power plants Units 2 and 3. 243. In accordance with 10 C.F.R. § 2.341(b)(1), any party to this proceeding may file a petition for review of this Initial Decision with the Commission within twenty

-five (25) days after service of this initial decision.

In accordance with 10 C.F.R. § 2.340(g) and § 2.1210, this Initial Decision shall constitute the final decision of the Commission forty (40) days after its issuance, unless there is a petition for Commission review filed, or the Commission decides to review this Initial Decision under 10 C.F.R. §2.1210(a)(2) or (3).

Respectfully submitted, Signed (electronically) by Signed (electronically) by Janice A. Dean Assistant Attorney General Office of the Attorney General for the State of New York 120 Broadway New York, New York 10271 (212) 416-8459 John J. Sipos Assistant Attorney General Office of the Attorney General for the State of New York The Capitol Albany, New York 12224 (518) 402-2251 March 22 , 2013 Attachment 1 Indian Point Nuclear Generating Unit Nos. 2 and 3 Changes to the Indian Point LRA Aging Management Programs and Activities (Appendix B)

NL-12-174Page 3 of 4 INDIAN POINT NUCLEAR GENERATING UNIT NOS. 2 AND 3 CHANGES TO THE INDIAN POINT LRA AGING MANAGEMENT PROGRAMS AND ACTIVITIES (APPENDIX B) The LRA is revised as described below (underline - added) B.1.6 BURIED PIPING AND TANKS INSPECTION Program Description The Buried Piping and Tanks Inspection Program is a new program that includes (a) preventive measures to mitigate corrosion and (b) inspections to manage the effects of corrosion on the pressure-retaining capability of buried and underground carbon steel, gray cast iron, copper alloy and stainless steel components. Preventive measures are in accordance with standard industry practice for maintaining external coatings and wrappings. Buried components are inspected when excavated during maintenance. If trending within the corrective action program identifies susceptible locations, the areas with a history of corrosion problems are evaluated for the need for additional inspection, alternate coating, or replacement. The program applies to buried components in the following systems. Safety injection Service water Fire protection Fuel oil Security generator City water Plant drains Auxiliary feedwater Containment isolation support River water service (IP1) Circulating Water System (IP2)

Of these systems, only the safety injection system contains radioactive fluids during normal operations. The safety injection system buried components are stainless steel. Stainless steel is used in the safety injection system for its corrosion resistance. This program also applies to underground components in the IP3 service water and city water systems and the IP2 and IP3 fuel oil systems. The Buried Piping and Tanks Inspection Program will be modified based on operating experience to include a risk assessment of in-scope buried piping and tanks that includes consideration of the impacts of buried piping tank or tank leakage and of conditions affecting the risk for corrosion. The program will classify pipe segments and tanks as having a high, medium or low impact of leakage based on the safety class, the hazard dosed by fluid contained in the piping and the impact of leakage on reliable plant operation. Corrosion NL-12-174Page 4 of 4 risk will be determined through consideration of piping or tank material, soil resistivity, drainage, the presence of cathodic protection and the type of coating. Inspection priority and frequency for periodic inspections of the in-scope piping and tanks will be based on the results of the risk assessment. Inspections will be performed using qualified inspection techniques with demonstrated effectiveness. Inspections will begin prior to the period of extended operation.Prior to entering the period of extended operation, plant operating experience will be reviewed and multiple inspections will be completed within the past ten years. Additional periodic inspections will be performed within the first ten years of the period of extended operation. Underground piping within the scope of license renewal and subject to aging management review will be visually inspected prior to the period of extended operation and then on a frequency of at least once every two years during the period of extended operation. This inspection frequency will be maintained unless the piping is subsequently coated in accordance with the preventive actions specified in NUREG-1801 Section XI.M41 as modified by LR-ISG-2011-03. Visual inspections will be supplemented with surface or volumetric non-destructive testing if indications of significant loss of material are observed. Consistent with revised NUREG-1801 Section XI.M41, such adverse indications will be entered into the plant corrective action program for evaluation of extent of condition and for determination of appropriate corrective actions (e.g., increased inspection frequency, repair, replacement). The program will be implemented prior to the period of extended operation.

Attachment 2 Indian Point Nuclear Generating Unit No. 2 Changes to the Indian Point LRA Updated Final Safety Analysis Report Supplement (Appendix A)

NL-12-174Page 1 of 4 INDIAN POINT NUCLEAR GENERATING UNIT NO. 2 CHANGES TO THE INDIAN POINT LRA UPDATED FINAL SAFETY ANALYSIS REPORT SUPPLEMENT (APPENDIX A) The LRA is revised as described below (underline - added) A.2.1.5 Buried Piping and Tanks Inspection Program The Buried Piping and Tanks Inspection Program is a new program that includes (a) preventive measures to mitigate corrosion and (b) inspections to manage the effects of corrosion on the pressure-retaining capability of buried and underground carbon steel, gray cast iron, and stainless steel components. Preventive measures are in accordance with standard industry practice for maintaining external coatings and wrappings. Buried components are inspected when excavated during maintenance. If trending within the corrective action program identifies susceptible locations, the areas with a history of corrosion problems are evaluated for the need for additional inspection, alternate coating, or replacement. IP2 will perform 20 direct visual inspections of buried piping during the 10 year period prior the PEO. IP2 will perform 14 direct visual inspections during each 10-year period of the PEO. Soil samples will be taken prior to the PEO and at least once every 10 years in the PEO. Soil will be tested at a minimum of two locations at least three feet below the surface near in-scope piping to determine representative soil conditions for each system. If test results indicate the soil is corrosive then the number of piping inspections will be increased to 20 during each 10-year period of the PEO. The Buried Piping and Tanks Inspection Program will be implemented prior to the period of extended operation. This new program will be implemented consistent with the corresponding program described in NUREG-1801 Section XI.M34, Buried Piping and Tanks Inspection with the following modification. The Buried Piping and Tanks Inspection Program will be modified based on operating experience to include a risk assessment of in-scope buried piping and tanks that includes consideration of the impacts of buried piping or tank leakage and of conditions affecting the risk for corrosion. The program will classify pipe segments and tanks as having a high, medium or low impact of leakage based on the safety class, the hazard posed by fluid contained in the piping and the impact of leakage on reliable plant operation. Corrosion risk will be determined through consideration of piping or tank material, soil resistivity, drainage, the presence of cathodic protection and the type of coating. Inspection priority and frequency for periodic inspections of the in-scope piping and tanks will be based on the results of the risk assessment. Inspections will be performed using qualified inspection techniques with demonstrated effectiveness. Inspections will begin prior to the period of extended operation. Underground piping within the scope of license renewal and subject to aging management review will be visually inspected prior to the period of extended operation and then on a frequency of at least once every two years during the period of extended operation. This inspection frequency will be maintained unless the piping is subsequently coated in accordance with the preventive actions specified in NUREG-1801 Section XI.M41 as modified by LR-ISG-2011-03. Visual inspections will be supplemented with surface or volumetric non-destructive testing if indications of significant loss of material are observed. Consistent with revised NUREG-1801 Section XI.M41, such adverse indications will be entered into the plant corrective action program for evaluation of extent of condition and for determination of appropriate corrective actions (e.g., increased inspection frequency, repair, replacement). NL-12-174Page 2 of 4 INDIAN POINT NUCLEAR GENERATING UNIT NO. 3 CHANGES TO THE INDIAN POINT LRA UPDATED FINAL SAFETY ANALYSIS REPORT SUPPLEMENT (APPENDIX A) The LRA is revised as described below (underline - added) A.3.1.5 Buried Piping and Tanks Inspection Program The Buried Piping and Tanks Inspection Program is a new program that includes (a) preventive measures to mitigate corrosion and (b) inspections to manage the effects of corrosion on the pressure-retaining capability of buried and underground carbon steel, gray cast iron, copper alloy and stainless steel components. Preventive measures are in accordance with standard industry practice for maintaining external coatings and wrappings. Buried components are inspected when excavated during maintenance. If trending within the corrective action program identifies susceptible locations, the areas with a history of corrosion problems are evaluated for the need for additional inspection, alternate coating, or replacement. IP3 will perform 14 direct visual inspections of buried piping during the 10 year period prior the PEO. IP3 will perform 16 direct visual inspections during each 10-year period of the PEO. Soil samples will be taken prior to the PEO and at least once every 10 years into the PEO. Soil will be tested at a minimum of two locations at least three feet below the surface near in-scope piping to determine representative soil conditions for each system. If test results indicate the soil is corrosive then the number of piping inspections will be increased to 22 during each 10-year period of the PEO. The Buried Piping and Tanks Inspection Program will be implemented prior to the period of extended operation. This new program will be implemented consistent with the corresponding program described in NUREG-1801 Section XI.M34, Buried Piping and Tanks Inspection with the following modification. The Buried Piping and Tanks Inspection Program will be modified based on operating experience to include a risk assessment of in-scope buried piping and tanks that includes consideration of the impacts of buried piping or tank leakage and of conditions affecting the risk for corrosion. The program will classify pipe segments and tanks as having a high, medium or low impact of leakage based on the safety class, the hazard posed by fluid contained in the piping and the impact of leakage on reliable plant operation. Corrosion risk will be determined through consideration of piping or tank material, soil resistivity, drainage, the presence of cathodic protection and the type of coating. Inspection priority and frequency for periodic inspections of the in-scope piping and tanks will be based on the results of the risk assessment. Inspections will be performed using qualified inspection techniques with demonstrated effectiveness, Inspections will begin prior to the period of extended operation. Underground piping within the scope of license renewal and subject to aging management review will be visually inspected prior to the period of extended operation and then on a frequency of at least once every two years during the period of extended operation. This inspection frequency will be maintained unless the piping is subsequently coated in accordance with the preventive actions specified in NUREG-1801 Section XI.M41 as modified by LR-ISG-2011-03. Visual inspections will be supplemented with surface or volumetric non-destructive testing if indications of significant loss of material are observed. Consistent with revised NUREG-1801 Section XI.M41, such adverse indications will be entered into the plant corrective action program for evaluation of extent of condition and for determination of appropriate corrective actions (e.g., increased inspection frequency, repair, replacement).

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