ML17039B091

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Kwong Declaration of Lisa Kwong
ML17039B091
Person / Time
Site: Indian Point  Entergy icon.png
Issue date: 02/08/2017
From: Kwong L
State of NY, Office of the Attorney General
To:
Atomic Safety and Licensing Board Panel
SECY RAS
References
50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS 51581
Download: ML17039B091 (156)
v • d • e


Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of ) Docket Nos. 50-247-LR and

) 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )

)

(Indian Point Nuclear Generating Units 2 and 3) )

) February 8, 2017 DECLARATION OF LISA KWONG Pursuant to 28 U.S.C. § 1746, Lisa S. Kwong hereby declares as follows:

1. I serve as an Assistant Attorney General for the State of New York, counsel for Intervenor State of New York in this proceeding.
2. I submit this declaration and accompanying attachments in support of Intervenors Notice of Withdrawal of Track 2 Contentions and Unopposed Motion to Dismiss Those Contentions and This Proceeding in its Entirety (Feb. 8, 2017) (Intervenors Motion). The accompanying attachments are discussed in more detail below and in Intervenors Motion, and consist of documents related to the parties implementation of the January 8, 2017 Indian Point Agreement.
3. The purpose of my declaration is to explain the basis for the States decision to withdraw its Track 2 contentions (NYS-25, NYS-26B/RK-TC-1B, and NYS-38/RK-TC-5) and seek dismissal of the contentions from this proceeding.
4. The Intervenors notice of withdrawal and motion to dismiss Intervenors Track 2 Contentions is based on a global settlement agreement entered into on January 8, 2017, between NYS, Riverkeeper, Inc. and Entergy (the Indian Point Agreement), which resolves pending state administrative proceedings and federal litigation between the parties related to Entergys 1

current and future operation of Indian Point Units 2 and 3 (each respectively, IP2 and IP3),

including Intervenors remaining contentions in this license renewal proceeding before the Board. Among other things, the Agreement provides for the cessation of operations of IP2 and IP3 by no later than April 30, 2020 and April 30, 2021, respectively. Only in the event that the State determines that an emergency exists could Indian Point operate beyond 2020 and 2021, and then only for a maximum of two two-year periods, i.e., until their renewed licenses terminate in 2024 (IP2) and 2025 (IP3).

5. The Intervenors motion is also based on augmented aging management and other safety measures agreed to by Entergy in the Indian Point Agreement, such as the accelerated inspection and replacement of baffle-former bolts at IP2 and IP3 in response to Indian Point and industry operating experience with bolt cracking. As discussed in more detail below, Entergy recently updated its reactor vessel internal aging management program to reflect these enhancements. Under the Agreement, Entergys other operational commitments at IP2 and IP3, such as its agreement to permit annual plant inspections by New York State personnel, its commitment to perform general inspections of the steam generator channel head and tubesheet region during the IP3 2017 and IP2 2018 refueling outages in accordance with newly-issued NRC guidance (ISG-LR-2016-1), and its agreement to expedite the transfer of fuel assemblies from the spent fuel pools to dry cask storage, among other things, are additional bases for Intervenors motion. Intervenors have determined that these contractually binding commitments by Entergy, along with its agreement for early retirement of IP2 and IP3, are sufficient to address the aging management concerns raised by Intervenors contentions.

The NRCs Proceeding and Intervenors Track 2 Safety Contentions

6. Given the lengthy and somewhat complex procedural history of the Track 2 2

contentions, I provide a brief summary of the Track 2 contentions.

7. In April 2007, pursuant to 10 C.F.R. Part 54, Entergy submitted a license renewal application (LRA) to the NRC Staff to renew each of the operating licenses for IP2 and IP3 (License Nos. DPR-26 and DPR-64, respectively) for an additional 20 years. In November 2007, New York and Riverkeeper each moved to intervene by submitting various safety and environmental contentions to the Board. 1 In February 2012, the Board placed contention NYS-25 onto the second hearing track that already included NYS-38/RK-TC-5 and RK-EC-8, which had been placed in abeyance. 2 NYS-26 was also placed into the Track 2 proceeding.
8. In Contention NYS-25, the State challenged, among other things, Entergys approach to monitoring and managing the effects of aging due to embrittlement of the reactor pressure vessel and its internal components over the proposed 20-year period of extended operation. See NYS Petition, at 223-27. Subsequently, in September 2010 and in February 2015, New York moved to amend and supplement Contention NYS-25 to account for various revisions and amendments to Entergys Reactor Vessel Internals Program (or RVI Program) and to address NRC Staffs Supplement 2 to its Safety Evaluation Report (SSER2). 3 1

New York State Notice of Intention to Participate and Petition to Intervene (NYS Petition)

(Nov. 30, 2007) (ML073400187); Riverkeeper, Incs Request for Hearing and Petition to Intervene in the License Renewal Proceeding for the Indian Point Nuclear Power Plant (RVK Petition) (Nov. 30, 2007) (ML073410093).

2 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Order Granting NRC Staffs Unopposed Time Extension Motion and Directing Filing of Status Updates (February 16, 2012) (unpublished) (ML12047A308).

3 State of New Yorks Motion for Leave to File Additional Bases for Previously-Admitted Contention NYS-25, etc. (Sept. 15, 2010) (ML103050402); State of New Yorks Motion to Supplement Previously-Admitted Contention NYS-25 (February 13, 2015) (ML15044A493);

New York State February 2015 Supplement to Previously-Admitted Contention NYS-25 (February 13, 2015) (ML15044A491).

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The States motions were supported by declarations of Dr. Lahey. 4 The Board admitted contention NYS-25 in July 2008 and later admitted the States amended and supplemental bases for Contention NYS-25. 5

9. In Contention NYS-26, New York asserted that Entergys LRA did not include an adequate plan to monitor and manage the effects of aging due to metal fatigue on key reactor components. 6 In Riverkeeper Contention TC-1, Riverkeeper asserted that Entergy had performed an inadequate aging analysis of various important components, had not expanded its aging analysis to other components, and did not demonstrate that it would adequately manage metal fatigue of various components. Subsequently, Intervenors submitted amended and supplemental Contentions NYS-26A and Riverkeeper TC-1A to challenge Entergys re-calculation of cumulative usage factors for certain RVI components at IP2 and IP3 to account for the contribution of environmentally-assisted fatigue. 7 Two years later, in September 2010, New York and Riverkeeper moved to admit a new and amended Consolidated Contention NYS-26B/RK-TC-1B, which challenged various aspects of Entergys further revised calculations of environmentally-assisted fatigue and continued to argue that Entergy had not 4

Declaration of Richard T. Lahey, Jr. (Sept. 15. 2010) (included in ML103050402) (Exh.

NYS000301); Declaration of Richard T. Lahey (February 13, 2015) (ML15044A499) (Exh.

NYS000483).

5 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), LBP-08-13, 68 N.R.C. 43 (July 31, 2008) (ML082130436); Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3),

Memorandum and Order Ruling on Pending Motions for Leave to File New and Amended Contentions (July 6, 2011) (unpublished) (ML111870344); Entergy Nuclear Operations, Inc.

(Indian Point Nuclear Generating Units 2 and 3), Memorandum and Order (Granting Motions for Leave to File Amendments to Contentions NYS-25 and NYS-38/RK-TC-5) (March 31, 2015)

(unpublished) (ML15090A771).

6 NYS Petition, at 227-233.

7 See Petitioner State of New York's Request for Admission of Supplemental Contention No. 26-A (Metal Fatigue) (Apr. 7, 2008) (included in ML081750691); Riverkeepers Request for Admission for Amendment Contention 6 [TC-1A] (Mar. 5, 2008) (ML080840441) (this became Contention RK-TC-1).

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submitted an adequate plan to manage the aging effects of metal fatigue. 8 In November 2010, the Board admitted Consolidated Contention NYS-26B/RK-TC-1B. 9 In June 2012, Intervenors submitted further support for Consolidated Contention NYS-26B/RK-TC-1B. 10

10. In 2011, Intervenors added Consolidated Contention NYS-38/RK-TC-5, which alleged that Entergys license renewal application lacked sufficient information, adequate programs, and enforceable, binding commitments concerning the aging management of certain components, such as the steam generators, to provide NRC with a record and a rational basis to grant a renewed license as required by NRC regulations at 10 C.F.R. § 54.21 and the Administrative Procedure Act, 42 U.S.C. §§ 2133 and 2232.
11. Intervenors Track 2 safety contentions, as amended and consolidated, are currently designated: NYS-25, NYS-26B/RK-TC-1B, and NYS-38/RK-TC-5. Between July and October, 2015, the parties filed their statements of position, pre-filed expert testimony and exhibits, and replies for the Track 2 safety contentions. From November 16-19, 2015, the Board presided over hearings on Intervenors three Track 2 safety contentions in Tarrytown, New York.
12. In January 2016, New York moved to admit six additional evidentiary exhibits 8

State of New Yorks and Riverkeepers Motion for Leave to File a New and Amended Contention Concerning the August 9, 2010 Entergy Reanalysis of Metal Fatigue (Sept. 9, 2010)

(ML102670665).

9 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3),

Memorandum and Order (Ruling on Motion for Summary Disposition of NYS 26/26A/Riverkeeper TC-1/1A [Metal Fatigue of Reactor Components] and Motion for Leave to File New Contention NYS-26B/Riverkeeper TC-1B) (Nov. 4, 2010) (ML103080987).

10 See Revised Statement of Position (Exh. NYS000439), pre-filed rebuttal testimony from Dr.

Lahey (Exh. NYS000440) and Dr. Hopenfeld (Exh. RIV000114), and additional technical exhibits.

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related to the Track 2 contentions. 11 The Board granted the motion on February 19, authorizing the parties to file the additional exhibits with supplemental testimony. 12 New York filed its supplemental testimony on March 4; Entergy and the Staff filed responsive testimony on March 18.

Baffle Former Bolt Cracking

13. On March 29, 2016, prior to New Yorks submission of its testimony in reply to the March 18 filings by Entergy and NRC Staff, Entergy advised the Board and the parties that, during a scheduled maintenance outage, visual and ultrasonic testing of the baffle-former assembly bolts in IP2 revealed that approximately one quarter of the baffle-former bolts showed signs of degradation. 13 As a result of these findings and at the request of the parties, 14 the Board deferred Track 2 post-hearing schedule for filings and evidentiary submissions. 15
14. In a joint status report dated June 28, 2016, 16 Entergy informed the Board that it planned to send cracked baffle-former bolts removed from IP2 to a hot lab facility for testing and recommended an extended briefing schedule to allow the parties time to prepare evidence and testimony related to bolt degradation issues. On July 13, the Board accepted the parties recommended briefing schedule and requested the parties to address in their filings the cause 11 State of New York Motion for Leave to File Six Documents as Additional Exhibits (Feb. 5, 2016).

12 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Order (Requesting Expert Testimony on New York 's Proposed Exhibits and Suspending Deadline for Filing Proposed Findings of Fact and Law) (Feb. 19, 2016).

13 Letter from Counsel for Entergy Nuclear Operations, Inc., to Lawrence G. McDade, Chairman, Dr. Michael F. Kennedy, and Dr. Richard Wardwell, Atomic Safety and Licensing Board (Mar. 29, 2016).

14 Joint Motion for Track 2 Hearing Schedule Deferral (Mar. 30, 2016).

15 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Order (Adopting Joint Motion for Track 2 Hearing Schedule Deferral) (Apr. 1, 2016) (unpublished).

16 Third Joint Status Report Regarding Proposed Track 2 Schedule (June 28, 2016).

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and consequences of bolt failures, and what steps would be taken to promptly identify and mitigate such failures. 17 Following several extensions of the briefing schedule to accommodate the parties request for additional time, on November 2, the Board issued an order setting forth new deadlines for the parties filing of supplemental testimony, and proposed findings of fact and conclusions of law. 18

15. On December 8, 2016, the Board issued an order requesting updates on pending litigation and other matters related to Indian Point relicensing, including the status of Entergys water use-related permits, approvals or licenses that could potentially affect NRC license renewal for IP2/IP3. 19 Entergy filed its response on December 21. NRC filed its response on January 6, 2017.

Other Pending, Non-NRC Litigation: the NYSDEC Matter and the NOAA Matter

16. In addition to this NRC relicensing proceeding, the parties have been engaged in long-standing litigation in other matters related to Indian Point operation and relicensing.

NYSDEC Matter (WQC/SPDES Proceeding)

Entergy, New York and Riverkeeper, among other individuals and entities, are parties to consolidated, mandatory adjudicatory proceedings before a panel of NYSDEC Administrative Law Judges relating to (i) certain NYSDEC-Staff proposed modifications to the renewed State Pollutant Discharge Elimination System (SPDES) Permit for Indian Point, and (ii) NYSDEC 17 Order (Adopting Schedule Deferral at Request of the Parties and Requesting Conference Call Availability) (June 8, 2016) (unpublished).

18 See Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3) Order (Granting Unopposed Motion for Extension of Time) (Nov. 2, 2016); Order (Granting Joint Motion for Reconsideration) (Aug. 3, 2016); Order (Scheduling of Further Filings on Track 2 Contentions) (July 13, 2016).

19 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Order (Requesting Updated Information on Pending Litigation and Other Matters) (Dec. 8, 2016).

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Staffs proposed denial of Entergys application for a Water Quality Certificate (WQC) under Section 401 of the Federal Clean Water Act (CWA) (the proceedings relating to (i) and (ii) collectively referred to as the NYSDEC Matter) for purposes of Indian Point operating license renewal.

CZMA Matter (NOAA Proceeding/N.D.N.Y. Action)

The parties have also been engaged in proceedings and other actions relating to Indian Points compliance with the Federal Coastal Zone Management Act of 1972 (CZMA), in the context of license renewal. The CZMA issues involving Indian Point were pending before the National Oceanic and Atmospheric Administration (NOAA) and the U.S. District Court for the Northern District of New York (CZMA Matter).

The Indian Point Settlement Agreement

17. On January 8, 2017, as a result of extensive negotiations between Entergy, New York, and Riverkeeper, the parties reached a global settlement agreement to resolve all pending litigation between the parties related to Indian Point operations, including the NRC re-licensing proceeding, the NYSDEC Matter and the CZMA Matter (both of which are distinct from this NRC license renewal proceeding). The most significant aspect of the parties agreement, and of greatest relevance to this proceeding, is Entergys commitment to an early closure plan for IP2 and IP3. That commitment, and other key elements of the agreement are discussed below:
  • Early Closure Date: Entergy will permanently cease operations at Indian Point Unit 2 by April 30, 2020, and Unit 3 by April 30, 2021. This would, in effect, result in closure of the plants 13 to 14 years earlier than anticipated under Entergys original license renewal application. Only in the event of an emergency situation, such as a terrorist attack affecting electricity generation, would the State consider allowing operations to continue, but not beyond April 30, 2024 (IP2) and April 30, 2025 (IP3).
  • Reduced Re-Licensing Period: Entergy will amend its license renewal application to update the proposed term of the renewed licenses from 20 years for each unit to 8

the periods ending April 30, 2024 for Unit 2 and April 30, 2025 for Unit 3. Renewed licenses for IP2 and IP3 would therefore expire no later than April 30, 2024 and April 30, 2025, respectively.

  • Enhanced Inspection Programs: New York will make annual inspections of the plants relating to key operational, regulatory, and environmental matters. In addition, at every refueling outage through 2020 and 2021, Entergy will inspect all accessible baffle former bolts, and replace bolts as needed to ensure the reactors structural integrity and maintain safety margin, taking into account the rate and pattern of bolt failures during operating experience. 20 Entergy will also inspect the steam generator channel heads and tubesheet region for potential cracking in accordance with newly-issued NRC guidance.
  • Retrieval of Loose Parts: Entergy will inspect for, find and remove or assess the safety consequences of any loose parts on a cycle-to-cycle basis starting with the 2018 IP2 inspections.
  • Expedited Transfer of Spent Fuel to Dry Storage: Entergy will use its best efforts to maximize the amount of spent fuel transferred to dry storage each year, with a minimum of four casks per year and a total of 24 casks by 2021.
  • Tritium Mitigation: Entergy will implement in 2017 targeted plant and hardware modifications at Indian Point to minimize potential releases of radiologically-contaminated fluids to groundwater from normal and temporary plant systems and operations.
  • New Emergency Operations Facility: Entergy will design and construct a new alternate emergency operations facility to provide key support for emergency planning activities for Indian Point.
  • Ongoing Environmental Protection: Entergy has also agreed to establish a $15 million fund to support environmental restoration and community benefit projects.
  • Resolution of Outstanding Litigation: Entergy, New York, and Riverkeeper will terminate all pending state and federal administrative and judicial litigation related to Indian Point license renewal.

Notice of Parties Global Settlement

18. By letter dated January 11, 2017, Counsel for Entergy advised the Board that the parties had entered into an agreement with New York and Riverkeeper regarding the continued 20 This is a general description of the enhanced baffle bolt inspection program. More specific information regarding the program is contained in Entergys updated RVI AMP, Attachment 4 to this Declaration.

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operation of Indian Point Units 2 and 3 (Settlement Agreement). 21 The letter requested a conference call to discuss the agreement and a proposed deferral of near-term filing deadlines.

On January 12, the Board issued an order holding further filings in abeyance. 22 On January 18, 2017, the Board held a telephone conference call with the parties in which Entergy provided a general description of the Agreement and Intervenors notified the ASLB of their intention to move to withdraw the contentions without prejudice. 23 Implementation of the Agreement

19. The parties have begun implementation of the Agreement. On January 27, 2017, the NYSDEC Commissioner issued a decision and order concluding the protracted adjudication of Entergys Water Quality Certification and discharge permit requirements and remanding the matter to DEC Staff for processing in accordance with State administrative procedure and environmental quality review regulations. A copy of the NYSDEC Decision and Order Regarding Termination of Administrative WQC and SPDES Proceeding dated January 27, 2017 is attached as Attachment 1 to this Declaration. Entergy has likewise withdrawn its appeal to NOAA regarding prior New York Department of State CZMA-consistency determinations. A copy of Entergys notice to the NRC of its withdrawal of its previous CZMA review claim (NL-17-015) dated January 24, 2017, is attached as Attachment 2to this Declaration. On January 31, 2017, Entergy submitted to the New York Department of State a new CZMA consistency 21 Letter from Paul M. Bessette, Esq. to the Board (Jan. 11, 2017) (Joint Request for Conference Call to Discuss the Parties Recent Settlement Agreement and Need for Immediate Deferral of Near-Term Filing Deadlines).

22 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Order (Holding Further Filings in Abeyance and Requesting Availability for Telephone Status Conference) (Jan. 12, 2017).

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

Official Transcript of Proceedings (Jan. 18, 2017), Tr. 5,895-5,938.

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certification, and the States concurrence with the new CZMA consistency certification is expected to be issued shortly. A copy of Entergys CZMA Consistency Certification dated January 31, 2017, is attached as Attachment 3to this Declaration.

20. On February 6, Entergy submitted to NRC a revised RVI Aging Management Plan incorporating recent operating experience involving baffle bolt cracking. A copy of Entergys submission to the NRC of its updated Reactor Vessel Internals Aging Management Plan (NL-17-020) dated February 6, 2017 is attached as Attachment 4 to this Declaration.

Among other things, the updated RVI AMP describes Entergys Spring 2016 bolt inspection and replacement activities, as well as its plan for addressing bolt cracking going forward. Id., , Section 6.2, pp. 62-63. The plan provides that [B]ased on as-found conditions and current industry knowledge, including the results of the fractographic examinations of the eight IP2 baffle former bolts discussed in Westinghouse Report MCPE-TR-16-18, IPEC concludes that performing a volumetric examination (i.e., UT) of the required original bolts during each refueling outage, and replacing those bolts found to be degraded until none of the remaining original bolts is required to be credited for the baffle structure to be capable of performing its intended safety function, is a reasonable and acceptable approach. Entergys plan for baffle former bolts will consist of: UT inspections at every outage, including replacement bolts if degradation is observed. In addition to replacing all bolts with indications, Entergy will replace good bolts with new anti-cluster bolts as necessary to ensure adequate safety margin.

21. Today, Entergy filed with NRC a notice pursuant to 10 C.F.R. 50.82(a)(1)(i), of its intention to permanently cease operations for IP2 and IP3 by 2020 and 2021, respectively. A copy of Entergys Notice of Permanent Cessation of Power Operations (NL-17-021) dated 11

February 8, 2017 is attached as Attachment 5 of this Declaration. Entergy also filed with the NRC an amendment to its license renewal application requesting a reduced renewal terms for IP2 and IP3. A copy of the License Renewal Application Amendment (NL-17-019) dated February 8, 2017 is attached as Attachment 6 to this Declaration.

22. Finally, Hudson River Sloop Clearwater has indicated that it does not oppose Intervenors motion to withdraw their remaining contentions in this proceeding. A copy of Clearwaters Board of Directors resolution of non-opposition dated January 26, 2017 is attached as Attachment 7 to this Declaration.

Conclusion

23. For the foregoing reasons, the State has determined that the above-described binding commitments by Entergy, along with its agreement for early retirement of IP2 and IP3, are sufficient to address the aging management concerns raised by Intervenors Track 2 Contentions. I declare under penalty of perjury that the foregoing is true and correct.

Executed on February 8, 2017 Signed (electronically) by Lisa S. Kwong Assistant Attorney General Office of the Attorney General of the State of New York The Capitol Albany, New York 12224 (518) 776-2422 Lisa.Kwong@ag.ny.gov 12

Attachment 1 NYSDEC Decision and Order Regarding Termination of Administrative WQC and SPDES Proceeding dated January 27, 2017

STATE OF NEW YORK DEPARTMENT OF ENVIRONMENTAL CONSERVATION In the Matter of a Renewal and Modification of a State Pollutant Discharge Elimination System (SPDES)

Permit Pursuant to Environmental Conservation Law (ECL) Article 17 and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York Parts 704 and 750, et seq.

DEC No.: 3-5522-00011/00004

-by- SPDES No.: NY-0004472 Entergy Nuclear Indian Point 2, LLC and Entergy Nuclear Indian Point 3, LLC, DECISION Permittee.

In the Matter of the Application of Entergy Nuclear Indian Point 2, LLC, and Entergy Nuclear Indian Point 3, LLC DEC Application Nos.:

3-5522-00011/00030 and for a Water Quality Certificate Pursuant to Section 401 3-5522-00105/00031 of the Federal Clean Water Act and Section 608.9 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR).

On January 13, 2017, counsel for staff of the New York State Department of Environmental Conservation (the Department) in the above-referenced proceedings (the Proceedings) delivered to the Administrative Law Judges (the ALJs) for the Proceedings:

(1) a final State Pollutant Discharge Elimination System (SPDES) permit, with accompanying Fact Sheet and Coastal Assessment Form, and (2) a final § 401 Water Quality Certification (WQC) (collectively, the Final Permits) for Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc.s (collectively, Entergy)

Indian Point Nuclear Power Plant (Indian Point).

Department staff counsels correspondence to the ALJs also included a proposed Supplemental Final Environmental Impact Statement (SFEIS) under the State Environmental Quality Review Act, pursuant to Environmental Conservation Law (ECL) Article 8 and 6 NYCRR Part 617 (collectively, SEQRA). Department staff counsels correspondence to the ALJs further included a Stipulation between Department staff, Entergy, and Riverkeeper, Inc.

(on behalf of Riverkeeper, Inc., Scenic Hudson, Inc., and the Natural Resources Defense

Council, Inc.) outlining the process for issuance of the Final Permits and completion of the SEQRA process.

In a ruling and order of disposition dated January 27, 2017, the presiding ALJ determined that the Stipulation, along with the accompanying documents included in Department staffs submission on January 13, 2017, resolved the issues advanced by all parties to the Proceedings.

The ALJ ruled that the Proceedings were concluded, closed the hearing record, and remanded the matter to Department staff.

I concur with and affirm the ALJs January 27, 2017 ruling and order of disposition. All pending appeals are dismissed as academic, and the Proceedings in this matter are concluded.

Notwithstanding any prior decision of this Department, including without limitation the 2008 Interim Decision in this matter, I affirm the ALJs remand to Department staff for processing and issuance of the Final Permits and completion of the SEQRA process, including the issuance of the SFEIS and SEQRA findings in accordance with the applicable legal requirements.

After appropriate public process, upon the Departments issuance of the Final Permits, along with the SFEIS and SEQRA findings, the matter shall be concluded and SEQRA satisfied in accordance with ECL Article 8 and 6 NYCRR Part 617.

New York State Department of Environmental Conservation By: _______________/s/___________________

Basil Seggos, Commissioner Albany, New York January 27, 2017 2

STATE OF NEW YORK DEPARTMENT OF ENVIRONMENTAL CONSERVATION In the Matter of a Renewal and Modification of a State Pollutant Discharge Elimination System (SPDES)

Permit Pursuant to Environmental Conservation Law (ECL) Article 17 and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York Parts 704 and 750, et seq.

DEC No.: 3-5522-00011/00004

-by- SPDES No.: NY-0004472 Entergy Nuclear Indian Point 2, LLC and RULING AND Entergy Nuclear Indian Point 3, LLC, ORDER OF DISPOSITION Permittee.

In the Matter of the Application of Entergy Nuclear Indian Point 2, LLC, and Entergy Nuclear Indian Point 3, LLC DEC Application Nos.:

3-5522-00011/00030 and for a Water Quality Certificate Pursuant to Section 401 3-5522-00105/00031 of the Federal Clean Water Act and Section 608.9 of Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York.

Procedural History and Background The predecessors in interest of Entergy Nuclear Indian Point 2, LLC and Entergy Indian Point 3, LLC (collectively, Entergy or Applicant) applied in 1992 for renewal of a State Pollutant Discharge Elimination System (SPDES) permit for the Indian Point nuclear powered steam electric generating stations 2 and 3 (the Indian Point Energy Center (IPEC or the Stations)). IPEC is located on the east side of the Hudson River in the Village of Buchanan, Westchester County, New York. The New York SPDES permit program is a federally-delegated, State-administered program governing the discharge of pollutants (including, as relevant to the electric sector, thermal discharges) into State surface and ground waters.

Conditions contained in a SPDES permit govern the discharges of permit holders. New York also uses its SPDES program to enforce the cooling water intake structure requirements of

§ 316(b) of the federal Clean Water Act (33 U.S.C. § 1365 - CWA), and Title 6 of the Official Compilation of Codes, Rules and Regulations of the State of New York (6 NYCRR) § 704.5.

In 1999, for purposes of the State Environmental Quality Review Act (SEQRA),

Entergys predecessor (together with the then-owners of other Hudson River power plants, known as the Hudson River Facilities) produced a joint draft environmental impact statement

(DEIS) in support of their respective applications for SPDES permit renewals for the Hudson River Facilities.

On June 23, 2003, staff of the New York State Department of Environmental Conservation (Department or DEC) accepted and noticed for public comment a proposed Final Environmental Impact Statement (FEIS) for the Hudson River Facilities, including Indian Point.

On November 12, 2003, Department staff proposed various modifications to the existing SPDES permit for IPEC, including new conditions to implement closed cycle cooling as the best technology available (BTA) to minimize adverse environmental impacts from the Stations cooling water intake systems. Department staffs BTA determination involved certain conditions related to Nuclear Regulatory Commission (NRC) issuance of license renewal determinations for the Stations, feasibility and SEQRA assessments for the proposed BTA technology, as well as Entergys right to propose an alternative BTA. Various entities, including Entergy, challenged Department staffs proposed SPDES permit, and various third parties moved to intervene as parties or amici.

A public hearing and issues conference were held with respect to the draft SPDES permit.

An issues ruling, granting party status and identifying certain issues for adjudication, was issued on February 3, 2006. In an interim decision dated August 13, 2008 (the Interim Decision), the Assistant Commissioner ruled on interlocutory appeals and advanced various issues to adjudication in the SPDES permit proceeding. See Matter of Entergy Indian Point 2, LLC, Interim Decision of the Assistant Commissioner, 2008 N.Y. Env. LEXIS 52 (August 13, 2008).

Among other things, the Interim Decision directed the parties to proceed to hearings on the issue of the site-specific BTA for the Stations.

On April 30, 2007, Entergy filed with NRC the federal license 20-year renewal applications for IPEC. On April 6, 2009, Department staff received a joint application for a federal CWA § 401 Water Quality Certificate (WQC) on behalf of Entergy Nuclear Operations, Inc., Entergy Indian Point Unit 2, LLC, and Entergy Indian Point Unit 3, LLC.

Entergy submitted the joint application for a § 401 WQC to the Department as part of Entergys license renewal application. Section 401 conditions federal licensing of an activity which causes a discharge into navigable waters on certification from the State in which the discharge might originate that the proposed activity would not violate federal or State water-protection laws. 33 U.S.C. § 1341(a). In order to grant a WQC, the Department must determine whether IPECs continued operation meets State water quality standards and criteria pursuant to CWA § 401 and

§ 608.9 of 6 NYCRR.

By letter dated April 2, 2010, Department staff issued a Notice of Denial of the WQC application, precipitating a hearing on the grounds identified by various entities, including Entergy. A public hearing was held on July 20, 2010, and the issues conference took place the following day, on July 21, 2010. In an Issues Ruling dated December 13, 2010 (WQC Issues Ruling), the administrative law judges (ALJs) advanced additional issues to adjudication relating to the joint §401 WQC application. See Matter of Entergy Nuclear Indian Point, LLC, Ruling on Proposed Issues for Adjudication and Party Status, 2010 N.Y. Env. LEXIS 86 2

(December 13, 2010). The ALJs determined that the hearings on the SPDES and WQC issues would proceed simultaneously, in order to develop a joint record.

The background and procedural history with respect to the renewal and modification of the SPDES permit are set forth in greater detail in the February 3, 2006 ruling on proposed issues for adjudication and petitions for party status, 2006 N.Y. Env. LEXIS 3; the Interim Decision, 2008 N.Y. Env. LEXIS 52 (August 13, 2008); the November 28, 2012 ruling of the Regional Director, 2012 N.Y. Env. LEXIS 80; and the February 3, 2015 issues ruling on permanent forced outages, 2015 N.Y. Env. LEXIS 4. The background and procedural history with respect to the

§401 WQC proceeding are set forth in greater detail in the WQC Issues Ruling.

Parties to the adjudicatory proceedings have included the mandatory parties Department staff and Entergy; intervenors (Riverkeeper, Inc.; Scenic Hudson, Inc.; and the Natural Resources Defense Council, Inc. (collectively, Riverkeeper); County of Westchester; Town of Cortlandt; the African American Environmentalist Association (AAEA); and the Honorable Richard Brodsky); and amici (City of New York; Independent Power Producers of New York; and Central Hudson Gas & Electric (CHG&E)). By letter dated June 26, 2014, CHG&E withdrew from the proceedings.

Hearings have been held to consider Entergys proposed BTA (cylindrical wedge wire screens), Department staffs proposed BTA (closed-cycle cooling, and summertime outages of 42 and 62 days at each unit), and Riverkeepers proposed BTA (summertime outages of 118 days at each unit), as well as radiological issues and the issue of best usages, as advanced to adjudication in the WQC Issues Ruling. SEQRA issues relating to each of the BTA alternatives were also the subject of hearings. The hearings began on October 17, 2011, and fifty-eight (58) days of hearings followed. The transcript in the proceedings is 16,423 pages long, and approximately 1,500 exhibits have been proposed to be admitted into the evidentiary record.

On January 13, 2017, counsel for Department staff in the above-referenced proceedings delivered to the ALJs: (1) a Stipulation; (2) a final WQC permit; (3) a final SPDES permit with accompanying Fact Sheet; and (4) a Supplemental Final Environmental Impact Statement (SFEIS), which included a completed Coastal Assessment Form and proposed SEQRA Findings.

In accordance with the terms of the Settlement Agreement, the parties were provided an opportunity to concur or otherwise respond to the Stipulation and other documents. The following were received:

  • Notice of Withdrawal of Riverkeepers Intervention, signed by counsel for Riverkeeper on behalf of Riverkeeper, Scenic Hudson, Inc., and the Natural Resources Defense Council, Inc., and dated January 17, 2017;
  • Email from the Town of Cortlandt dated January 18, 2017, stating that the Town neither concurs with nor objects to the Stipulation;
  • Email from the County of Westchester dated January 18, 2017, stating that the County does not concur with the Stipulation;
  • Email from the AAEA dated January 18, 2017, stating that the AAEA concurs with the settlement and termination of the proceedings; 3
  • Email from the City of New York dated January 18, 2017, stating that the City takes no position on the Stipulation; and
  • Email from Richard Brodsky dated January 20, 2017, attaching a letter of the same date, stating that Mr. Brodsky does not concur with, and objects to the Stipulation.

Mr. Brodsky and counsel for Entergy thereafter exchanged additional emails relating to Mr. Brodskys objection, as follows:

  • Email from Entergy dated January 23, 2017, at 9:38 a.m.;
  • Email from Mr. Brodsky dated January 23, 2017, at 11:32 a.m.;
  • Email from Entergy dated January 23, 2017, at 11:55 a.m.; and
  • Email from Mr. Brodsky dated January 23, 2017, at 12:29 p.m.

The Stipulation, the final SPDES permit and WQC, as well as the related documents, resolve the issues advanced by the parties to the proceedings. This includes all issues that formed the basis of Mr. Brodskys party status. Moreover, the three issues Mr. Brodsky raises in his January 20, 2017 letter do not warrant further adjudication or are otherwise outside the purview of these proceedings. Similarly, although in its January 18, 2017 e-mail the County of Westchester does not concur with the Stipulation, the County does not raise any adjudicable issues. Accordingly, the Stipulation is accepted and these adjudicatory proceedings are concluded.

Pursuant to the papers submitted to the ALJs, this matter is remanded to Department staff for processing and issuance of a final SPDES permit and WQC for IPEC. Issuance of the final SPDES permit and WQC shall include Department staffs appropriate action pursuant to SEQRA.

The above-referenced Part 624 permit hearing proceedings are concluded and the joint hearing record for these matters is closed.

__________________/s/_____________________

Maria E. Villa Administrative Law Judge Albany, New York January 27, 2017 c: Administrative Law Judge Daniel P. OConnell Service List 4

Attachment 2 NL17015 Entergy Notice of Withdrawal of Previous CZMA Review Claim (NL17015) dated January 24, 2017

Attachment 3 Entergy CZMA Consistency Certification dated January 31, 2017

Attachment 4 NL17020 Entergy Updated IPEC RVI Aging Management Plan (NL17020) dated February 6, 2017

Attachment 5 NL17021 Entergy Notice of Permanent Cessation of Power Operations Pursuant to 10 C.F.R. 50.82(a) dated February 8, 2017

Attachment 6 NL17019 Indian Point License Renewal Application Amendment dated February 8, 2017

Attachment 7 Clearwater Resolution of NonOpposition to Intervenors Motion to Withdraw dated January 26, 2017

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