ML15049A112

Memorandum and Order CLI-15-3

ML15049A112
Person / Time
Site:	Indian Point
Issue date:	02/18/2015
From:	Vietti-Cook A L NRC/SECY
To:
SECY RAS
References
50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, CLI-15-3, RAS 27252
Download: ML15049A112 (8)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

COMMISSIONERS:

Stephen G. Burns, Chairman Kristine L. Svinicki William C. Ostendorff

Jeff Baran

_________________________________________ ) In the Matter of )

)

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

) 50-286-LR (Indian Point Nuclear Generating Units 2 and 3) ) )

_________________________________________ )

CLI-15-3 MEMORANDUM AND ORDER This proceeding concerns the application of Entergy Nuclear Operations, Inc. to renew the operating licenses of the Indian Point Nuclear Generating Units 2 and 3 for an additional twenty years. The Atomic Safety and Licensing Board recently issued Partial Initial Decision LBP-13-13.

1 We have before us several petitions for review of LBP-13-13 and associated Board decisions. Our decision today addresses only the NRC Staff's and Entergy's requests for review of decisions regarding contention NYS-35/36, an environmental contention challenging 1 LBP-13-13, 78 NRC 246 (2013). The Board's decision addresses only contentions that the Board earlier designated as "Track 1" contentions, on which a hearing was held in October 2012. See id. at 275-76, 278-79. Several "Track 2" contentions remain pending before the Board and will be the subject of a later evidentiary hearing.

See id. the Indian Point severe accident mitigation alternatives (SAMA) analysis.

2 Specifically, Entergy and the Staff seek review of LBP-11-17, the Board's decision dismissing NYS-35/36, and LBP-10-13, the Board's decision admitting the contention.

3 NYS-35/36 raised legal and policy questions going to the completeness of the SAMA analysis cost-benefit results and the adequacy of the SAMA analysis conclusions. In LBP-11-17, the Board granted New York's motion for summary disposition of NYS-35/36, agreeing with New York that the SAMA analysis in the Indian Point Final Supplemental Environmental Impact Statement (FSEIS) is deficient as a matter of law.

4 Entergy and the Staff now seek review of the Board's decisions on NYS-35/36. New York opposes these requests.

5 We find that the Staff and Entergy petitions each raise at least one substantial question warranting further consideration of the Board's decisions on NYS-35/36. We therefore grant the Entergy and Staff petitions insofar as they challenge the Board's decisions in LBP-11-17 and

LBP-10-13.

6 2 See Applicant's Petition for Review of Board Decisions Regarding NYS-8 (Electrical Transformers), CW-EC-3A (Environmental Justice), and NYS-35/36 (SAMA Cost Estimates) (Feb. 14, 2014), at 3, 43-60 (Entergy Petition); NRC Staff's Petition for Review of LBP-13-13 in Part (Contentions NYS-8 and CW-EC-3A), and LBP-11-17 (Contention NYS 35/36) (Feb. 14, 2014), at 41-59 (Staff Petition). We also issue today a companion order granting review of the State of New York's petitions associated with NYS-12C, another SAMA analysis contention.

See CLI-15-2, 80 NRC __ (Feb. 18, 2015) (slip op.).

3 See LBP-11-17, 74 NRC 11 (2011); LBP-10-13, 71 NRC 673 (2010).

4 See LBP-11-17, 74 NRC at 25-27.

5 See State of New York's Answer to Entergy and Staff Petitions for Review of Atomic Safety and Licensing Board Decisions LBP-08-13 and LBP-13-13 with Respect to Contention NYS-8 and for Interlocutory Review of LBP-10-13 and LBP-11-17 with Respect to Contention NYS-35/36 (Mar. 25, 2014), at 37-64

. 6 See Entergy Petition at 43-60; Staff Petition at 41-59. Of note, the Staff recently-after filing its petition-concluded that it will supplement the FSEIS SAMA analysis.

See, e.g., NRC Staff's 36th Status Report in Response to the Atomic Safety and Licensing Board's Order of February 16, 2012 (Feb. 2, 2015), at 2-3. The Staff stated that the supplement will address Entergy's May 2013 submission of engineering project cost estimates for the mitigation alternatives (continued . . .) To aid our review, we request briefing on the following questions. Because the Board in LBP-11-17 found the FSEIS deficient and the Staff is responsible for the FSEIS analysis, we direct our questions below to the NRC Staff. 1) The Indian Point SAMA analysis concludes that "risk can be further reduced in a cost-beneficial manner through the implementation of the identified, cost-beneficial SAMAs,"

and that "[g]iven the potential for cost-beneficial risk reduction . . . further evaluation of these SAMAs by Entergy is warranted."

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

2) The SAMA analysis concludes that "any potentially cost-beneficial SAMAs that do not relate to 10 C.F.R. Part 54 requirements would be considered, to the extent necessary or appropriate, under the agency's oversight of a facility's current operating license in accordance with 10 CFR Part 50 requirements."

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

50?

identified in the FSEIS as potentially cost-beneficial.

See Dacimo, Fred F., Entergy, letter to NRC Document Control Desk, NL-13-075, License Renewal Application-Completed Engineering Project Cost Estimates for SAMAs Previously Identified as Potentially Cost-Beneficial (May 6, 2013) (ML13127A459). The core legal and policy questions raised by NYS-35/36 can, however, be addressed now. Our decision on review will elaborate further on our grounds for granting the petitions. The Staff and Entergy petitions for review before us also contest the Board's resolution of contentions CW-EC-3A (environmental justice) and NYS-8 (transformers). We will address these claims in a future decision, based upon the briefs and the existing adjudicatory record.

7 See Ex. NYS00133I, "Final Report, Generic Envi ronmental Impact Statement for License Renewal of Nuclear Plants," NUREG-1437, Supplement 38, Vol. 3, regarding Indian Point Nuclear Generating Unit Nos. 2 and 3 (Dec. 2010), App. G at G-49 (FSEIS). The FSEIS is divided into multiple exhibits: NYS00133A-NYS00133J.

8 See Ex. NYS00133C, FSEIS, Vol. 1, Main Report at 5-11.

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

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

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

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

11 The Staff's initial brief shall not exceed 20 pages, exclusive of title page, table of contents or table of authorities, and shall be filed within 40 calendar days of the date of this order. Entergy and New York may file reply briefs, not to exceed 20 pages, exclusive of title page, table of contents, or table of authorities. Reply briefs are due within 40 calendar days of the initial brief's filing.

9 See Ex. NYS00133I, FSEIS, Vol. 3, App. G at 47-48.

10 See Staff Petition at 51 n.187.

11 See Ex. NYS000220, "Standard Review Plans for Environmental Reviews for Nuclear Power Plants, Supp. 1: Operating License Renewal," NUREG-1555, Supp. 1 (Oct. 1999), at 5.1.1-7 to 5.1.1-8. The parties must not introduce any new documents or exhibits; all references shall be limited to submissions already in the record. References to affidavits and exhibits should include page citations.

IT IS SO ORDERED.

12 For the Commission NRC SEAL /RA/

_____________________________

Annette L. Vietti-Cook Secretary of the Commission Dated at Rockville, Maryland

this 18 th day of February, 2015 12 Chairman Burns did not participate in this matter.

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

)

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

) and 50-286-LR (Indian Point Nuclear Generating, ) Units 2 and 3) )

CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER (CLI-15-3) have been served upon the following persons by Electronic Information Exchange.

U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Mail Stop O-7H4M Washington, DC 20555-0001

ocaamail@nrc.gov U.S. Nuclear Regulatory Commission Office of the Secretary of the Commission Mail Stop O-16C1 Washington, DC 20555-0001

hearingdocket@nrc.gov

U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Mail Stop T-3F23 Washington, DC 20555-0001

Lawrence G. McDade, Chair

Administrative Judge lawrence.mcdade@nrc.gov Richard E. Wardwell

Administrative Judge richard.wardwell@nrc.gov

Michael F. Kennedy

Administrative Judge michael.kennedy@nrc.gov

Alana Wase, Law Clerk alana.wase@nrc.gov Kathleen E. Schroeder, Law Clerk

Kathleen.Schroeder@nrc.gov

Edward L. Williamson, Esq.

Beth N. Mizuno, Esq. David E. Roth, Esq. Sherwin E. Turk, Esq.

Brian Harris, Esq.

Mary B. Spencer, Esq.

Anita Ghosh, Esq.

Christina England, Esq.

Catherine E. Kanatas, Esq. Joseph Lindell, Esq.

John Tibbetts, Paralegal U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop O-15D21 Washington, DC 20555-0001

sherwin.turk@nrc.gov; edward.williamson@nrc.gov beth.mizuno@nrc.gov; brian.harris.@nrc.gov david.roth@nrc.gov; mary.spencer@nrc.gov anita.ghosh@nrc.gov; christina.england@nrc.gov; catherine.kanatas@nrc.gov; joseph.lindell@nrc.gov; john.tibbetts@nrc.gov OGC Mail Center OGCMailCenter@nrc.gov

William B. Glew, Jr.

Organization: Entergy 440 Hamilton Avenue, White Plains, NY 10601 wglew@entergy.com

Elise N. Zoli, Esq.

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

Docket Nos. 50-247-LR and 50-286-LR COMMISSION MEMORANDUM AND ORDER (CLI-15-3) 2 Daniel Riesel, Esq.

Victoria Shiah Treanor, Esq.

Adam Stolorow, Esq.

Natoya Duncan, Paralegal Counsel for Town of Cortlandt Sive, Paget & Riesel, P.C.

460 Park Avenue New York, NY 10022

driesel@sprlaw.com; vtreanor@sprlaw.com astolorow@sprlaw.com; nduncan@sprlaw.com Kathryn M. Sutton, Esq. Paul M. Bessette, Esq.

Martin J. O'Neill, Esq.

Raphael Kuyler, Esq.

Brooke McGlinn, Esq. Grant Eskelsen, Esq. Ryan Lighty, Esq.

Lesa G. Williams-Richardson, Legal Secretary

Doris Calhoun, Legal Secretary Mary Freeze, Legal Secretary

Morgan, Lewis & Bockius, LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 ksutton@morganlewis.com martin.oneill@morganlewis.com rkuyler@morganlewis.com; lescher@morganlewis.com bmcglinn@morganlewis.com sraimo@morganlewis.com geskelsen@morganlewis.com rlighty@morganlewis.com lrichardson@morganlewis.com dcalhoun@morganlewis.com mfreeze@morganlewis.com Deborah Brancato, Esq. Ramona Cearley, Secretary Riverkeeper, Inc.

20 Secor Road

Ossining, NY 10562 dbrancato@riverkeeper.org rcearley@riverkeeper.org

Melissa-Jean Rotini, Esq. Assistant County Attorney

Office of Robert F. Meehan, Westchester County Attorney

148 Martine Avenue, 6th Floor

White Plains, NY 10601 mjr1@westchestergov.com Bobby Burchfield, Esq.

Matthew Leland, Esq.

Emre Ilter, Esq. McDermott, Will and Emery LLP 500 North Capitol Street NW Washington, DC 20001 bburchfield@mwe.com mleland@mwe.com eilter@mwe.com

Matthew W. Swinehart, Esq.

Covington & Burling LLP

1201 Pennsylvania Avenue, NW Washington, DC 20004 mswinehart@cov.com Edward F. McTiernan, Esq.

New York State Department

of Environmental Conservation Office of General Counsel 625 Broadway

14 th Floor Albany, NY 12233-1500 efmctier@gw.dec.state.ny.us Manna Jo Greene, Environmental Director Steven C. Filler Peter A. Gross

Hudson River Sloop Clearwater, Inc.

724 Wolcott Ave.

Beacon, NY 12508 mannajo@clearwater.org; stephenfiller@gmail.com; peter@clearwater.org

Andrew Reid, Esq. Organization: Hudson River Sloop Clearwater, Inc.

Springer & Steinberg, P.C.

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

Docket Nos. 50-247-LR and 50-286-LR COMMISSION MEMORANDUM AND ORDER (CLI-15-3) 3 Richard Webster, Esq.

Public Justice, P.C.

For Hudson River Sloop Clearwater, Inc.

1825 K Street, NW, Suite 200 Washington, D.C. 20006 rwebster@publicjustice.net

Michael J. Delaney, Esq.

Director, Energy Regulatory Affairs NYC Department of Environmental Protection 59-17 Junction Boulevard Flushing, NY 11373 mdelaney@dep.nyc.gov Robert D. Snook, Esq. Assistant Attorney General Office of the Attorney General State of Connecticut 55 Elm Street P.O. Box 120 Hartford, CT 06141-0120 robert.snook@po.state.ct.us

John J. Sipos, Esq.

Lisa S. Kwong, Esq.

Brian Lusignan, Esq.

Assistant Attorneys General Teresa Manzi, Legal Assistant Office of the Attorney General of the State of New York The Capitol, State Street Albany, New York 12224 john.sipos@ag.ny.gov lisa.kwong@ag.ny.gov brian.lusignan@ag.ny.gov teresa.manzi@ag.ny.gov

Kathryn M. DeLuca, Esq.

Laura Heslin, Esq. Assistant Attorneys General Office of the Attorney General of the State of New York

120 Broadway, 26th Floor

New York, New York 10271 kathryn.deluca@ag.ny.gov laura.heslin@ag.ny.gov Sean Murray, Mayor Kevin Hay, Village Administrator Village of Buchanan Municipal Building

236 Tate Avenue

Buchanan, NY 10511-1298 smurray@villageofbuchanan.com administrator@villageofbuchanan.com

[Original signed by Herald M. Speiser ] Office of the Secretary of the Commission

Dated at Rockville, Maryland

this 18 th day of February, 2015