ML13081A579

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NRC Staff'S Proposed Findings of Fact and Conclusions of Law Part 1: Overview and Regulatory Standards
ML13081A579
Person / Time
Site: Indian Point  Entergy icon.png
Issue date: 03/22/2013
From: Sherwin Turk
NRC/OGC
To:
Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 24263, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01
Download: ML13081A579 (38)
v • d • e


Text

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

)

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

)

(Indian Point Nuclear Generating )

Units 2 and 3) )

NRC STAFFS PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW PART 1: OVERVIEW AND REGULATORY STANDARDS Sherwin E. Turk Counsel for NRC Staff March 22, 2013

-i-TABLE OF CONTENTS I. INTRODUCTION . ............ 1 II. FINDINGS OF FACT: OVERVIEW ... ........... 3 A. Procedural History . ......... 3 B. Legal Standards Governing License Renewal .. ........ 9

1. License Renewal Background 10
2. Regulatory Requirements under 10 C.F.R. Part 54 . ...... 12 C. License Renewal Requirements under the National Environmental Policy Act of 1969 ..... ..... 25 III. CONCLUSIONS OF LAW .... 34

March 22, 2013 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

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

)

(Indian Point Nuclear Generating )

Units 2 and 3) )

NRC STAFFS PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW PART 1: OVERVIEW AND REGULATORY STANDARDS I. INTRODUCTION In accordance with 10 C.F.R. § 2.1209 and the Atomic Safety and Licensing Boards scheduling Orders,1 the NRC Staff (Staff) hereby submits its proposed findings of fact and conclusions of law (Proposed Findings or PFF) regarding the nine contested Track I contentions in this proceeding.

In Part I of the Staffs Proposed Findings, set forth herein, the Staff summarizes the procedural history and general principles of law applicable to this license renewal proceeding.

In Parts 2 - 10 of the Staffs Proposed Findings, set forth in nine separate filings submitted herewith, the Staff provides its proposed findings of fact and conclusions of law regarding the nine contested Track 1 contentions, as follows:

1 See (1) Scheduling Order (July 1, 2010), at 19; (2) Order (Scheduling Post-Hearing Matters and Ruling on Motions to File Additional Exhibits) (Jan. 15, 2013) at 1; and (3) Order (Granting Parties Joint Motion for Alteration of Filing Schedule (Feb. 28, 2013).

1. Part 2: Contention NYS-5 (Buried Piping and Tanks);
2. Part 3: Contention NYS-6/7 (Non-EQ Inaccessible Medium and Low Voltage Cables);
3. Part 4: Contention NYS-8 (Transformers);
4. Part 5: Contention NYS-12C (Severe Accident Mitigation Alternatives (SAMA) Analysis Decontamination and Cleanup Costs);
5. Part 6: Contention NYS-16B (SAMA Analysis Population Estimates);
6. Part 7: Contention NYS-17B (Real Estate Values);
7. Part 8: Contention NYS-37 (No-Action Alternative);
8. Part 9: Contention RK-TC-2 (Flow Accelerated Corrosion); and
9. Part 10: Contention CW-EC-3A (Environmental Justice).2 Four other contentions remain to be litigated as Track 2 contentions; those contentions are not addressed in the Staffs Proposed Findings.3 In addition, the Staffs Proposed Findings 2

The Staff utilized a unique number designator for each separate Part of its Proposed Findings, whereby all paragraphs in Part 1 are consecutively numbered 1.__; all paragraphs in Part 2 are consecutively numbered 2.__, etc. Accordingly, paragraph numbers in this Part commence with the number 1.1.

3 Four contentions have been designated as Track 2 contentions, for which hearings have not yet been scheduled: (1) Contention NYS-25 (Embrittlement of Reactor Pressure Vessels and Internals),

(2) Contention NYS-26B/RK-TC-1B (Metal Fatigue), (3) Contention NYS-38/RK-TC-5 (Aging Management Program (AMP) Commitments), and (4) Contention RK-EC-8 (Endangered Species).

do not address three contentions that were decided by the Board previously,4 or other proposed contentions whose admissibility has not yet been determined by the Board.5 II. FINDINGS OF FACT: OVERVIEW

.A. Procedural History 1.1. This proceeding concerns the license renewal application (LRA) for Indian Point Nuclear Generating Units 2 and 3 (IP2 and IP3 or Indian Point), which was submitted by Entergy Nuclear Operations Inc. (Entergy or Applicant) on April 23, 2007, on behalf of itself, Entergy Nuclear Indian Point 2, LLC, and Entergy Nuclear Indian Point 3, LLC.6 Indian Point Units 2 and 3 are located at the Indian Point Energy Center, situated on the east bank of the Hudson River in Buchanan, NY, approximately 24 miles north of the northern boundary of New York City. SER (Ex. NYS000326A), at 1-1. Units 2 and 3 are pressurized water reactors (PWRs) supplied by Westinghouse Electric Corp.; each reactor is authorized to operate at 3216 megawatts thermal (MWt), which corresponds to a turbine generator output of 4

See (1) Memorandum and Order (Ruling on Motion and Cross-Motions for Summary Disposition of NYS-35/36), LBP-11-17, 74 NRC 11 (July 14), interlocutory review declined, CLI-11-14, 74 NRC 801)

(Dec. 22, 2011) (implementation of cost-beneficial SAMAs); (2) Order (Approving Settlement of Contention NYS-24 (Jan. 26, 2012) (containment structures); and (3) Consent Order (Approving Settlement of Consolidated Contention Riverkeeper EC-3 and Clearwater EC-1) (Oct. 17, 2012)

(resolving spent fuel pool leak contention).

5 See Order (Holding Contentions NYS-39/RK-EC-9/CW-EC-10 and CW-SC-4 in Abeyance)

(Aug. 8, 2012) (waste confidence issues).

6 See generally, LRA (Ex. ENT00015A-B); NUREG-1930, Vols. 1-2, Safety Evaluation Report Related to the License Renewal of Indian Point Nuclear Generating Unit Nos. 2 and 3 (Nov. 2009)

(SER) (Ex. NYS000326A), at 1-2.

approximately 1080 MWe. Id.7 The current licenses for Indian Point Units 2 and 3 expire on September 28, 2013, and December 12, 2015; Entergys LRA seeks to authorize operation of Units 2 and 3 for an additional 20 years beyond the period specified in the current licenses, i.e.,

until September 28, 2033, and December 12, 2035, respectively. Id.

1.2. On May 11, 2007, the NRC published a notice of receipt of the Indian Point LRA,8 and on August 1, 2007, the NRC published a notice of acceptance for docketing and notice of opportunity for hearing on the LRA.9 On October 18, 2007, an Atomic Safety and Licensing Board (Board) was established to rule on petitions for leave to intervene and hearing requests, and to preside over any proceeding that may be held.10 Petitions for leave to intervene were 7

Units 2 and 3 share the site with Indian Point Unit 1. The LRA states, Unit 1 was permanently shut down on October 31, 1974, and has been placed in a safe storage condition (SAFESTOR) until Unit 2 is ready for decommissioning. LRA (Ex. ENT000015A) at 1-7. The Unit 1 license is subject to the provisions of 10 C.F.R. §§ 50.51(b) and 50.82. Entergy does not seek here to renew the license for Unit 1; however, Entergy states that it considered certain features of Unit 1 in the LRA for Units 2 and 3:

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. Therefore, IP1 systems and components were considered in the scoping process (see Section 2.1.1). The aging effects of Unit 1 SSCs within the scope of license renewal for IP2 and IP3 will be adequately managed so that the intended functions will be maintained consistent with the current licensing basis throughout the period of extended operation.

Id.

8 Entergy Nuclear Operations, Inc.; Notice of Receipt and Availability of Application for Renewal of Indian Point Nuclear Generating Unit Nos. 2 and 3; Facility Operating License Nos. DPR-26 and DPR-64 for an Additional 20-Year Period, 72 Fed. Reg. 26,850 (May 11, 2007).

9 Entergy Nuclear Operations, Inc., Indian Point Nuclear Generating Unit Nos. 2 and 3; Notice of Acceptance for Docketing of the Application and Notice of Opportunity for Hearing Regarding Renewal of Facility Operating License Nos. DPR-26 and DPR-64 for an Additional 20-Year Period, 72 Fed. Reg.

42,134 (Aug. 1, 2007).

10 Establishment of Atomic Safety and Licensing Board, 72 Fed. Reg. 60,394 (Oct. 24, 2007).

then timely filed by various petitioners, including the State of New York (New York or NYS),11 Riverkeeper, Inc. (Riverkeeper),12 and Hudson River Sloop Clearwater, Inc. (Clearwater).13 1.3. On July 31, 2008, the Board granted New Yorks, Clearwaters and Riverkeepers petitions to intervene, and admitted many of their contentions, concerning the LRA or the Environmental Report (ER) incorporated therein.14 In addition, the Board authorized five governmental bodies to participate in the proceeding as interested governmental entities, in accordance with 10 C.F.R. § 2.315(c).15 1.4. Following the Boards initial ruling on contentions, the Intervenors submitted a number of late-filed new and amended contentions, many of which were then admitted for 11 See New York State Notice of Intention to Participate and Petition to Intervene (NY Petition)

(Nov. 30, 2007).

12 See Riverkeeper, Inc.s Request for Hearing and Petition to Intervene in the License Renewal Proceeding for the Indian Point Nuclear Power Plant (Nov. 30, 2007).

13 See Hudson River Sloop Clearwater Incs Petition to Intervene and Request for Hearing (Dec. 10, 2007).

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

LBP-08-13, 68 NRC 43 (2008).

15 These are (1) the State of Connecticut; (2) Westchester County, NY; (3) the City of New York, NY; (4) the Town of Cortlandt, NY; and (5) the Village of Buchanan, NY. See Memorandum And Order (Authorizing Interested Governmental Entities to Participate in this Proceeding) . . . (Granting in Part Riverkeepers Motion for Clarification and Reconsideration of the Boards Ruling in LBP-08-13 Related to the Admissibility of Riverkeeper Contention EC-2) / (Denying Riverkeepers Request to Admit Amended Contention EC-2 and New Contentions EC-4 and EC-5) / (Denying Entergys Motion for Reconsideration of the Boards Decision to Admit Riverkeeper Contention EC-3 and Clearwater Contention EC-1)

(Dec. 18, 2008), at 2.

litigation.16 The Board disposed of one contention during the course of the proceeding, upon granting New Yorks motion for summary disposition of Contention NYS-35/36,17 the Board denied all other motions for summary disposition that have been filed.18 1.5. While litigation in this proceeding progressed, the Staff conducted its review of 16 See, e.g., (1) Memorandum and Order (Admitting New Contention NYS-38/RK-TC-5) (Nov. 10, 2011), as clarified, Order (Granting Entergys Motion for Clarification of Licensing Board Memorandum and Order Admitting Contention NYS-38/RK-TC-5) (Dec. 6, 2011); (2) (Memorandum and Order (Ruling on Pending Motions for Leave to File New and Amended Contentions) (July 6, 2011) (admitting Contentions NYS-17B and NYS-37), as clarified, Memorandum and Order (Granting Entergys Request for Clarification) (Aug. 10, 2011); (3) Memorandum and Order (Ruling on Pending Motions for Leave to File New and Amended Contentions) (July 6, 2011) (admitting Contentions NYS-12C, NYS-17B, Amended Contention NYS-25, NYS-37, RK-EC3/CW-EC1, CW-EC-3A, and RK-EC-8; and rejecting four waste confidence decision contentions); (4) Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), LBP-10-13, 71 NRC 673 (June 30, 2010) (Memorandum and Order (Ruling on the Admissibility of New Yorks New and Amended Contentions 12B, 16B, 35, and 36)), partial interlocutory review declined, CLI-10-30, 72 NRC 564 (Nov. 30, 2010); (5) 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); and (6) Order (Ruling on New York States New and Amended Contentions) (June 16, 2009) (admitting Contentions NYS-12-A, 16-A, 17-A, and 33, and rejecting Contention NYS-34).

The Board also rejected various late-filed contentions in other decisions. See, e.g.,

(1) Memorandum and Order (Denying Riverkeepers and Clearwaters Motion for Leave to File New Environmental Contention Regarding NRCs Near-Term Task Force on Fukushima) (Mar. 30, 2012);

(2) Order (July 14, 2010) (dismissing Contentions CW-SC-1 and CW-EC-7) (July 14, 2010); and (3) Order (Denying Clearwaters Petition to File New Contention) (May 28, 2009); and (3) Memorandum and Order (Authorizing Interested Governmental Entities to Participate in this Proceeding)/ (Granting in Part Riverkeepers Motion for Clarification and Reconsideration of the Boards Ruling in LBP-08-13 Related to the Admissibility of Riverkeeper Contention EC-2) / (Denying Riverkeepers Request to Admit Amended Contention EC-2 and New Contentions EC-4 and EC-5) / (Denying Entergys Motion for Reconsideration of the Boards Decision to Admit Riverkeeper Contention EC-3 and Clearwater Contention EC-1)

(Dec. 18, 2008).

17 See n.4, supra.

18 See, e.g., (1) 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); (2) Memorandum and Order (Ruling on Entergys Motion for Summary Disposition of Riverkeeper TC-2 (Flow-Accelerated Corrosion)) (Nov. 4, 2010); (3) Memorandum and Order (Denying Entergys Motion for the Summary Disposition of NYS Contention 17/17A) (Apr. 22, 2010); and (4) Memorandum and Order (Ruling on Motions for Summary Disposition) (Nov. 3, 2009) (denying Entergys motion for summary disposition of Contention NYS-8, and New Yorks motion for summary disposition of Contention NYS-16/16A).

pertinent safety and environmental issues related to the Indian Point LRA. With respect to safety issues, on August 11, 2009, the Staff issued its Safety Evaluation Report (SER) (later published in November 2009), finding that the IP2/IP3 LRA satisfies the requirements of 10 C.F.R. § 54.29(a),19 such that a renewed license may be issued. In addition, the Advisory Committee on Reactor Safeguards (ACRS) issued a letter on September 23, 2009, recommending approval of the IP2/IP3 LRA.20 On August 30, 2011, the Staff issued Supplement 1 to the SER, documenting the Staffs review of additional information that was provided by Entergy in its annual updates, its LRA amendments, and its responses to Staff requests for additional information (RAIs) since issuance of the SER.21 1.6. With respect to environmental issues, in December 2008, the Staff published its draft evaluation of the site-specific environmental impacts of license renewal for IP2 and IP3, in Draft Supplement 3822 to the Generic Environmental Impact Statement for License Renewal of Nuclear Plants (GEIS).23 Consistent with its responsibilities under 10 C.F.R. §§ 51.73 and 51.95(a), the Staff requested comments from the public concerning the evaluation of 19 NUREG-1930, Vols. 1-2, Safety Evaluation Report Related to the License Renewal of Indian Point Nuclear Generating Unit Nos. 2 and 3 (Nov. 2009) (SER) (Ex. NYS000326A-F), at 6-1.

20 See Letter from Mario V. Bonaca, Chairman, ACRS, to Gregory B. Jaczko, Chairman, NRC (Sept. 23, 2009) (Ex. NYS000325) (reproduced in SER, Vol. 2 (Ex. NYS000326E) at 5 5-5).

21 NUREG-1930, Supp. 1, Safety Evaluation Report Related to the License Renewal of Indian Point Nuclear Generating Unit Nos. 2 and 3 (Aug. 2011) (SER Supplement 1) (Ex. NYS000160) at 1-1.

The Staff intends to issue a further supplement to the SER later this year, on matters not involving any Track 1 contentions. See Letter from Sherwin E. Turk to the Board (Dec. 21, 2012) (ADAMS Accession No. ML12356A291).

22 Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38 Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Draft Report for Comment, NUREG-1437, Supplement 38 (Dec. 2008) (Draft SEIS or DSEIS) (Ex. NYS000132A-D).

23 Generic Environmental Impact Statement for License Renewal of Nuclear Plants, NUREG-1437 (May 1996) (GEIS) (Ex. NYS000131A-I).

environmental impacts contained in its Draft SEIS.24 Voluminous comments were then filed by members of the public and various governmental entities concerning the Draft SEIS; in addition, new and amended contentions regarding the Draft SEIS were filed by the Intervenors, some of which were then admitted for litigation.25 1.7. On December 3, 2010, the Staff issued its Final SEIS,26 in which the Staff (a) set out and addressed the public comments that had been submitted regarding the Draft FSEIS,27 (b) provided its final evaluation of the environmental impacts of IP2/IP3 license renewal, and (c) presented its conclusion, consistent with 10 C.F.R. §§ 51.95(c)(4), that the adverse environmental impacts of license renewal for IP2 and IP3 are not so great that preserving the option of license renewal for energy planning decision makers would be unreasonable.28 As in the case of the DSEIS, publication of the Final SEIS was followed by the filing of new and 24 The Staff had previously published notice of its intent to prepare an environmental impact statement for the Indian Point LRA and requested public participation in identifying any significant environmental issues and to determine the scope of the issues to be addressed in the EIS for license renewal. See DSEIS (Ex. NYS000132A) at xiii and 1-6; Entergy Nuclear Operations, Inc., Indian Point Nuclear Generating Units Nos. 2 and 3; Notice of Intent to Prepare an Environmental Impact Statement and Conduct Scoping Process, 72 Fed. Reg. 45075 (Aug. 10, 2007).

25 See n.16 supra.

26 Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 38 Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Final Report, NUREG-1437, Supplement 38 (Dec. 2010) (Final SEIS or FSEIS) (Ex. NYS000133A-J).

27 See FSEIS, Appendix A, § A.1 (Comments Received on the Draft SEIS) (Ex.

NYS000133C-D) at A-2 to A-46 (providing an overview of the comments received); Id., § A.2 (Comments and Responses), at A-46 to A-174 (summarizing the comments and responding thereto); DSEIS (Ex.

NYS000133E-I) at A-175 to A-1316 (reproducing the comments with comment identification codes).

28 FSEIS (Ex. NYS000133C), § 9.3, at 9-8. The Staff has indicated it intends to issue a supplement (Volume 4) to the FSEIS later this year, to address new information it has received concerning the aquatic impacts of IP2/IP3 license renewal (including impacts to endangered species); the Staff further indicated that the FSEIS supplement will not involve any Track 1 contentions. See Letter from Sherwin E. Turk to the Board (Dec. 21, 2012) (ADAMS Accession No. ML12356A291).

amended contentions on environmental issues, some of which were admitted for litigation.29 1.8. Evidentiary hearings on all admitted contentions were held in Tarrytown, New York, on October 15 through 18, October 22 through 24, and December 10 through 13, 2012.

An additional evidentiary hearing was held in Rockville, Maryland on November 28, 2012.

Witnesses appeared for the Staff, the Applicant, New York, Clearwater and Riverkeeper. At the hearing, the witnesses oral testimony was transcribed,30 and the Board ruled on the admissibility of evidence proffered by the parties.

B. Legal Standards Governing License Renewal 1.9. The Commission has adopted a comprehensive regulatory scheme that governs the agencys consideration of nuclear power plant license renewal applications. The license renewal process requires two concurrent reviews by the Staff: A technical review of safety issues, and an environmental review. See SER (Ex. NYS000326A), at 1-2.

1.10. With respect to safety issues, the Commission has adopted license renewal regulatory requirements in 10 C.F.R. Part 54, which an applicant must satisfy in order to be granted a renewed license. Detailed guidance concerning the means by which these requirements may be satisfied has been published by the Commission, as discussed below and in other portions of the Staffs Proposed Findings. The agencys safety review is based upon the applicant's LRA, its amendments to the LRA, and its responses to Staff requests for additional information. Id.

29 See n.16 supra.

30 The Board has issued two Orders, adopting various corrections to the hearing transcript. See (1) Order (Adopting Proposed Transcript Corrections with Minor Edits) (Dec. 27, 2012); and (2) Order (Adopting Proposed Transcript Corrections and Resolving Contested Corrections) (Feb. 28, 2013). In these Proposed Findings, citations are made to the Official Transcript of Proceedings (Tr.) as corrected.

1.11. With respect to environmental issues, the Commission has adopted 10 C.F.R. Part 51 ("Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions"), which sets out the requirements for the agencys environmental review. As discussed below, in taking any significant action that could affect the human environment (including nuclear power plant license renewal), the agency is to consider the environmental impacts of that action, consistent with the requirements of the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321, et seq. Regulatory guidance addressing the consideration of environmental impacts by license applicants and the agency has also been published by the Commission, as discussed below and in other portions of the Staffs Proposed Findings.

1. License Renewal Background 1.12. Pursuant to Section 182(a) of the Atomic Energy Act of 1954, as amended (AEA or the Act), 42 U.S.C. § 2232(a), the NRC is authorized to issue licenses for nuclear power plants upon finding, inter alia, that such action will provide adequate protection to the health and safety of the public. In accordance with the Act and NRC regulations, operating licenses for commercial power reactors are issued for 40 years and can be renewed for up to 20 additional years. AEA, 42 U.S.C. § 2233; 10 C.F.R. § 50.51(a); 10 C.F.R. § 54.31(b); see Massachusetts v. NRC, Docket Nos. 12-1404, 12-1772 (1st Cir., Feb. 25, 2013), slip op. at 5 n.3.

The original 40-year operating license term was selected based on economic and antitrust considerations rather than on technical limitations; however, some individual plant and equipment designs may have been engineered for an expected 40-year service life. SER (Ex.

NYS000326A), at 1-3.

1.13. Commencing in the 1980s, the NRC initiated a program to develop license renewal regulations and associated regulatory guidance in anticipation of receiving applications for the renewal of nuclear power plant operating licenses. In 1986, the Staff published a request

for comment on a policy statement that would address major policy, technical, and procedural issues related to license renewal for nuclear power plants. Id.

1.14. In 1991, the Staff published 10 C.F.R. Part 54 (Requirements for Renewal of Operating Licenses for Nuclear Power Plants).31 The license renewal rules were then revised in 1995, after the Staff found that adverse aging effects on many plant systems and components are managed during the period of initial license, and that the prescribed scope of the license renewal review under the 1991 rule did not allow sufficient credit for existing management programs, particularly the implementation of 10 C.F.R. § 50.65, "Requirements for Monitoring the Effectiveness of Maintenance at Nuclear Power Plants," which regulates the management of plant aging phenomena. As a result, the Staff amended 10 C.F.R. Part 54 in 1995, in part (a) to focus on the management of adverse aging effects and to ensure that important systems, structures, and components (SSCs) will continue to perform their intended functions during the period of extended operation, and (b) to clarify and simplify the integrated plant assessment process to be consistent with the revised focus on passive, long-lived structures and components (SCs). Id.32 31 See Final Rule, Nuclear Power Plant License Renewal, 56 Fed. Reg. 64,943 (Dec. 13, 1991)

(Ex. ENT000270).

32 See Final Rule, Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22,461, 22,463 (May 8, 1995) (Ex. NYS000016).

2. Regulatory Requirements under 10 C.F.R. Part 54 1.15. In 10 C.F.R. Part 54, as revised, the Commission set out the regulatory requirements that must be satisfied for a license renewal application to be granted. While a plethora of safety issues may pertain to the operation of a nuclear power plant, as principally set forth in 10 C.F.R. Part 50, the Commission has made clear that only certain issues, defined in 10 C.F.R. Part 54, are to be considered within the scope of a license renewal proceeding.

1.16. The Commissions requirements governing the management of aging for structures, systems and components (SSCs) at a nuclear power plant are set forth in various regulations in Part 54, most notably 10 C.F.R. §§ 54.4 (Scope), 54.21(a)(3) (Contents of Application) and 54.29(a) (Standards for Issuance of Renewed License). These standards, along with other regulations in 10 C.F.R. Part 54 and the environmental regulations related to license renewal set forth in 10 C.F.R. Part 51 and Appendix B thereto, establish the scope of issues that may be considered in a license renewal proceeding.

1.17. As summarized by the Staff in its SER, license renewal requirements for power reactors are based on two key principles:

(1) The regulatory process is adequate to ensure that the licensing bases of all currently operating plants maintain an acceptable level of safety with the possible exceptions of the detrimental aging effects on the functions of certain SSCs, as well as a few other safety-related issues, during the period of extended operation.

(2) The plant-specific licensing basis must be maintained during the renewal term in the same manner and to the same extent as during the original licensing term.

SER (Ex. NYS000326A), at 1-4.

1.18. In implementing these two principles, 10 C.F.R. § 54.4, "Scope," defines the scope of license renewal as including those SSCs that (1) are safety-related, (2) whose failure could affect safety-related functions, or (3) are relied on to demonstrate compliance with the

NRC's regulations for fire protection, environmental qualification (EQ), pressurized thermal shock (PTS), anticipated transient without scram (ATWS), and station blackout (SBO). Id.

1.19. In sum, not all of the myriad SSCs at a nuclear power plant are within the scope of license renewal under the Commissions license renewal regulations. In this regard, 10 C.F.R. § 54.4 defines the scope of SSCs to be considered for license renewal, as follows:

54.4 Scope (a) Plant systems, structures, and components within the scope of this part are (1) Safety-related systems, structures, and components which are those relied 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),

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

(b) The intended functions that these systems, structures, and components must be shown to fulfill in § 54.21 are those functions that are the bases for including them within the scope of license renewal as specified in [10 C.F.R.§ 54.4(a)(1)-(3)].

1.20. Our consideration of the proper scope of a license renewal proceeding, as set forth above and in the Boards previous rulings, follows numerous pronouncements by the Commission. In a recent decision, the Commission made it clear that the scope of the license renewal process is limited. See NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1),

CLI-12-05, 75 NRC __ (Mar. 8, 2012) (slip op. at 2), petition for review denied sub nom Beyond Nuclear v. NRC, 704 F.3d 12 (1st Cir., Jan. 4, 2013). The agencys safety review - as well as any associated license renewal adjudicatory proceedings - focuses on the detrimental effects of aging posed by long-term reactor operation. Id., slip op. at 3. To satisfy the license renewal requirements, an applicant must demonstrate reasonable assurance that the effects of aging will be adequately managed so that the intended function(s) will be maintained consistent with the CLB [current licensing basis] for the period of extended operation. Id. The Commission has further explained that the license renewal process is not intended to demonstrate absolute assurance that structures or components will not fail, but rather that there is reasonable assurance that they will perform such that the intended functions . . . are maintained consistent with the CLB.33 1.21. Similarly, in Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 6 (2001), the Commission observed that its license renewal safety review focuses on plant systems, structures, and components for which current

[regulatory] activities and requirements may not be sufficient to manage the effects of aging in the period of extended operation. Id. at 10, quoting 60 Fed. Reg. at 22,469. Further, the Commission stated, Adjudicatory hearings in individual license renewal proceedings will share 33 Statement of Consideration, Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg.

22,461, 22,479 (May 8, 1995) (1995 Statement of Consideration) (Ex. NYS000016).

the same scope of issues as our NRC Staff review; for our hearing process (like our Staffs review) necessarily examines only the [safety] questions our safety rules make pertinent. Id.

1.22. In this regard, regardless of whether or not a license renewal application has been filed for a facility, the Commission has a continuing responsibility to oversee the safety and security of ongoing plant operations, and it routinely oversees a broad range of issues under existing operating licenses under its responsibility to assure the protection of public health and safety. Therefore, for license renewal, the Commission has found it unnecessary to include a review of operating issues already monitored and reviewed in its ongoing regulatory oversight processes. Id. at 8-10. Accord, LBP-08-13, 68 NRC at 67.34 1.23. Nor does a license renewal proceeding constitute the appropriate forum for consideration of issues pertaining to a plants current licensing basis (CLB). 35 Rather, it is well settled that a plants CLB is not subject to challenge in a license renewal proceeding, because 34 For example, the Commission has explained that [i]ssues like emergency planning - which already are the focus of ongoing regulatory processes - do not come within the NRC's safety review at the license renewal stage. Turkey Point, CLI-01-17, 54 NRC at 10. Accord, Seabrook, CLI-12-05, slip op. at 3; Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-05-24, 62 NRC 551, 565 (2005); Indian Point, LBP-08-13, 68 NRC at 147-50 & 163-66. These principles are further discussed in Part 10 of these findings of fact and conclusions of law, pertaining to Contention CW-EC-3 (environmental justice).

35 As the Board has stated, [t]he Current Licensing Basis (CLB) refers to all of the Commission requirements applicable to a licensed nuclear power facility. LBP-08-13, 68 NRC at 67. [T]he CLB includes plant-specific design basis information documented in the plants most recent Final Safety Analysis Report, and any orders, exemptions, and licensee commitments that are part of the docket for the plants license, i.e., responses to NRC bulletins, generic letters, and enforcement actions, and other licensee commitments documented in NRC safety evaluations or licensee event reports.

Ongoing NRC oversight programs are the mechanisms through which compliance with the CLB is monitored and ensured. The CLB need not be reviewed again and is not subject to attack in a license renewal proceeding.

Id.,at 67-68, citing Turkey Point, CLI-01-17, 54 NRC at 9-10.

such issues: (1) are not germane to aging management concerns; (2) previously have been the subject of thorough review and analysis; and, accordingly (3) need not be revisited in a license renewal proceeding. AmerGen Energy Co. (Oyster Creek Nuclear Generating Station),

LBP-07-17, 66 NRC 327, 339 n.17 (2007); see also Turkey Point, CLI-01-17, 54 NRC at 10 (Issues . . . which already are the focus of ongoing regulatory processes - do not come within the NRC's safety review at the license renewal stage.).

1.24. Moreover, the facilitys CLB becomes a part of the terms of any renewed license, whereby as part of the regulatory process, the Applicant must provide reasonable assurance of the adequacy of, and compliance with, the CLB, during the period of extended operations under a renewed license. See 10 C.F.R. § 54.33; 1995 Statement of Consideration, 60 Fed. Reg.

at 22,461, 22,473 (Ex. NYS000016). Thus, a plants CLB will be considered during the license renewal review process only with respect to the structures and components of the plant . . . that can suffer detrimental effects of aging), i.e., only so far as necessary to make a licensing decision on the continued functionality of systems, structures, and components subject to an aging management review and a license renewal evaluation. Id. at 22,474. Further, a finding of compliance of a plant with its [CLB] is not required for issuance of a renewed license.

1991 Statement of Consideration, 56 Fed. Reg. at 64,951 (Ex. ENT000270).

1.25. The Board took note of these principles in its initial ruling on petitions to intervene, stating as follows:

The scope of proceedings challenging technical issues in the context of relicensing proceedings for nuclear powered electrical generating facilities is limited to a review of the plant structures and components that will require an aging management review for the period of extended operation and the plants systems, structures and components that are subject to an evaluation of time-limited aging analysis.61 61 Florida Power & Light Co. (Turkey Point Units 3 and 4), CLI-00-23, 52 NRC 327, 329 (2000) (citing 10 C.F.R. §§ 54.21(a) and (c),

54.4; Nuclear Power Plant License Renewal; Revisions, Final Rule, 60 Fed. Reg. 22,461 (May 8, 1995)).

LBP-08-13, 68 NRC at 66.

1.26. Once a plants SSCs that are within the scope of license renewal have been identified, pursuant to 10 C.F.R. § 54.21(a) a license renewal applicant must review all SSCs that are within the scope of 10 C.F.R. Part 54 to identify SCs subject to an aging management review (AMR). If a structure of component performs no intended function as defined in

§ 54.4(a), it is not within the scope of license renewal, and therefore is not subject to an AMR.

The SCs that are subject to an AMR perform an intended function without moving parts or without change in configuration or properties and are not subject to replacement based on a qualified life or specified time period. SER (Ex. NYS000326A), at 1-4.36 1.27. In 10 C.F.R. § 54.21, the Commission identified the information and demonstration of adequacy that must be submitted by a license renewal applicant, as follows:

54.21 Contents of application-technical information.

Each application must contain the following information:

(a) An integrated plant assessment (IPA). The IPA must--

(1) For those systems, structures, and components within the scope of this part, as delineated in § 54.4, identify and list those structures and components subject to an aging management review. Structures and components subject to an aging management review shall encompass those structures and components--

(i) That perform an intended function, as described in § 54.4, without moving parts or without a change in configuration or properties. These structures and 36 The Commission has determined that the term, a change in configuration or properties, includes a change in state. 1995 Statement of Consideration (Ex. NYS000016), 60 Fed. Reg.

at 22,477.

components include, but are not limited to, the reactor vessel, the reactor coolant system pressure boundary, steam generators, the pressurizer, piping, pump casings, valve bodies, the core shroud, component supports, pressure retaining boundaries, heat exchangers, ventilation ducts, the containment, the containment liner, electrical and mechanical penetrations, equipment hatches, seismic Category I structures, electrical cables and connections, cable trays, and electrical cabinets, excluding, but not limited to, pumps (except casing), valves (except body), motors, diesel generators, air compressors, snubbers, the control rod drive, ventilation dampers, pressure transmitters, pressure indicators, water level indicators, switchgears, cooling fans, transistors, batteries, breakers, relays, switches, power inverters, circuit boards, battery chargers, and power supplies; and (ii) That are not subject to replacement based on a qualified life or specified time period.

(2) Describe and justify the methods used in paragraph (a)(1) of this section.

(3) For each structure and component identified in paragraph (a)(1) of this section, demonstrate that the effects of aging will be adequately managed so that the intended function(s) will be maintained consistent with the CLB for the period of extended operation.

1.28. Pursuant to 10 C.F.R. § 54.21(a), a license renewal applicant must demonstrate that the aging effects will be managed such that the intended function(s) of those SCs will be maintained consistent with the current licensing basis (CLB) for the period of extended operation. Active equipment, however, is considered to be adequately monitored and maintained by existing programs. In other words, detrimental aging effects that may affect active equipment can be readily identified and corrected through routine surveillance, performance monitoring, and maintenance. Surveillance and maintenance programs for active equipment, as well as other maintenance aspects of plant design and licensing basis, are required throughout the period of extended operation. SER (Ex. NYS000326A), at 1-4.

1.29. Further, 10 C.F.R. § 54.21(d) requires a license renewal application to include a supplement to the plants existing Updated Final Safety Analysis Report (UFSAR), with a summary description of the applicant's programs and activities for managing aging effects and an evaluation of time-limited aging analyses (TLAAs) for the period of extended operation.

License renewal also requires TLAA identification. Thus, during the plants design phase, certain assumptions about the length of time the plant may operate are incorporated into design calculations for several plant SSCs. In accordance with 10 C.F.R. § 54.21(c)(1), the license renewal applicant must (a) show that these calculations remain valid for the period of extended operation, (b) project the analyses to the end of the period of extended operation, or (c) demonstrate that the aging effects on these SSCs will be adequately managed for the period of extended operation. Id.

1.30. The Commissions determination as to whether a license renewal application should be granted is based upon consideration of whether the following standards, set forth in 10 C.F.R. § 54.29, have been satisfied:

54.29 Standards for issuance of a renewed license A renewed license may be issued by the Commission up to the full term authorized by § 54.31 if the Commission finds that:

(a) Actions have been identified and have been or will be taken with respect to the matters identified in Paragraphs (a)(1) and (a)(2) of this section, such that there is reasonable assurance that the activities authorized by the renewed license will continue to be conducted in accordance with the CLB, and that any changes made to the plant's CLB in order to comply with this paragraph are in accord with the Act and the Commission's regulations. These matters are:

(1) 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); and (2) time-limited aging analyses that have been identified to require review under § 54.21(c).

(b) Any applicable requirements of Subpart A of 10 C.F.R. Part 51 have been satisfied.

(c) Any matters raised under § 2.335 have been addressed.

1.31. The Commission has provided detailed regulatory guidance for license renewal applicants regarding the means by which they may demonstrate their compliance with the requirements in 10 C.F.R. Part 54. Principal among these are three guidance documents that were in place when Entergy submitted its LRA for IP2 and IP3 in 2007:

(a) NUREG-1800, Rev. 1, Standard Review Plan for Review of License Renewal Applications for Nuclear Power Plants (Sept. 2005) (SRP-LR, Rev. 1)

(Ex. NYS000195);37 (b) NUREG-1801, Rev. 1, Generic Aging Lessons Learned (GALL) Report (Sept. 2005) (GALL Report, Rev. 1) (Ex. NYS000146A-C);38 and (c) NRC Regulatory Guide (RG) 1.188, "Standard Format and Content for Applications to Renew Nuclear Power Plant Operating Licenses" (June 2005)

(RG 1.188) (Ex. ENT000099).39 GALL Report Rev. 1 (Ex. NYC000146A), at 1.

37 In December 2010, the Staff issued Revision 2 to the SRP-LR. See NUREG-1800, Revision 2, Standard Review Plan for Review of License Renewal Applications for Nuclear Power Plants (SRP-LR, Rev. 2) (Dec. 2010) (Ex. NYS000161).

38 In December 2010, the Staff issued GALL Report Revision 2. See NUREG-1801, Revision 2, Generic Aging Lessons Learned (GALL) Report (Dec. 2010) (GALL Report, Rev. 3) (Ex.

NYS000147A-D).

39 Reg. Guide 1.188, in turn, endorses the guidance in a Nuclear Energy Institute (NEI) guidance document, NEI 95-10, Rev. 6, "Industry Guideline for Implementing the Requirements of 10 CFR Part 54 - The License Renewal Rule (June 2005) (Ex. ENT000098); NEI-95-10 details an acceptable method of implementing 10 C.F.R. Part 54. See SER (Ex. NYS000326A), at 1-5; GALL Report Rev. 1 (Ex. NYS000146A), at 1.

1.32. The GALL Report is a technical basis document to the SRP-LR, that provides specific guidance to an applicant on how it may demonstrate that its aging management programs (AMPs) satisfy the requirements in 10 C.F.R. Part 54. GALL Report, Rev. 1 (Ex. NYS000146A), at 3-4.40 The GALL Report contains the NRCs approved set of recommendations which the agency has found to be acceptable for license renewal.41 If an applicant commits to implement the AMP that is consistent with the GALL Report, that commitment will be found to be an adequate demonstration of reasonable assurance under section 54.29(a). NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-05, 75 NRC __, __ ( Mar. 8, 2012) (sip op. at 4), petition for review denied sub nom Beyond Nuclear

v. NRC, 704 F.3d 12 (1st Cir., Jan. 4, 2013); Amergen Energy Co, LLC (Oyster Creek Nuclear Generating Station), CLI-08-23, 68 NRC 461, 468 (2008). Accord, Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee Nuclear Power Station), CLI-10-17, 72 NRC 1, 36-37 (2010) )

(noting that the NRC does not simply take the applicant at its word; rather, its commitment is subject to Staff verification (through its LRA review and audit process), that the applicants AMP is in fact, consistent with the GALL Report).

40 The GALL Report summarizes staff-approved AMPs for many SCs subject to an AMR. If an applicant commits to implementing these staff-approved AMPs, the time, effort, and resources for LRA review can be greatly reduced, improving the efficiency and effectiveness of the license renewal review process. The GALL Report summarizes the aging management evaluations, programs, and activities credited for managing aging for most of the SCs used by nuclear power plants, and identifies AMPs and activities that can manage aging adequately during the period of extended operation. See SER (Ex.

NYS000326A), at 1-5.

41 These recommendations relate to preventive actions, mitigative actions, condition monitoring, and performance monitoring as applicable to the component and material type, the environment to which the items are exposed (e.g., raw water, soil, outdoor air), and the aging effect which is being managed. This is documented in a series of NRC-approved AMPs described in the GALL Report. See NRC Staffs Testimony of Kimberly J. Green and William C. Holston Concerning Contention NYS-5 (Buried Pipes and Tanks) (Staff Testimony on NYS-5) (Ex. NRCR20016) at 11-13; see generally GALL Report, Rev. 1 (Ex. NYS000146A), at 2-3 and XI M.111 - M.112.

1.33. The GALL Report is treated in the same manner as an NRC-approved topical report that is generically applicable. GALL Report, Rev. 1 (Ex. NYS000146A) at 3. An applicant may reference NUREG-1801 in its LRA to demonstrate that the programs at its facility correspond to those reviewed and approved in the GALL Report. Id. Further, meeting the guidance in the GALL Report constitutes one acceptable way to manage the aging effects for license renewal. Id. at 4.

1.34. An applicant can take credit for a program described in the GALL Report such that its AMP would be found acceptable, in one of three ways:

1) It may establish a program that is completely consistent with all the recommendations in the GALL Report, or
2) It may establish a program that is consistent with the GALL Report with exception(s) to certain portion(s) of the GALL Report that the applicant does not intend to implement, and/or it may state enhancements, revisions or additions to existing aging management programs that the applicant commits to implement prior to the period of extended operation to ensure that its AMP is consistent with the GALL Report AMP. Enhancements may expand, but not reduce the scope of an AMP, or
3) If an applicants facility has specific materials, environments, aging effects and/or plant-specific operating experience for which aging cannot be effectively managed by any of the GALL Report AMPs, the applicant may develop a plant-specific program that meets the recommended format and content of an AMP as set forth in Section A.1.2.2, Aging Management Program for License Renewal, NUREG-1800, Standard Review Plan for Review of License Renewal Applications for Nuclear Power Plants.

Staff Testimony on NYS-5 (Ex. NRCR20016) at 12-13; see generally, GALL Report, Rev. 1 (Ex. NYS000146A), at 3-4; SRP-LR, Rev. 1 (Ex. NYS000195), at 3.01 - 3.03.

1.35. In conducting its license renewal review, the Staff evaluates an applicants AMPs and any applicable exceptions and enhancements, to ensure they provide reasonable assurance that the effects of aging will be adequately managed so that the in-scope system, structure or components intended function(s) will be maintained consistent with the current

licensing basis (CLB) for the period of extended operation. Staff Testimony on NYS-5 (Ex. NRCR20016), at 13; see generally, GALL Report, Rev. 1 (Ex. NYS000146A), at 3-4; SRP-LR, Rev. 1 (Ex. NYS000195), at 3.01 - 3.03.

1.36. In its LRA for IP2 and IP3, as submitted in 2007, the Applicant utilized the process defined in the GALL Report, Rev. 1, issued in September 2005. Similarly, in its SER, the Staff reviewed the LRA in accordance with NRC regulations and the guidance in NUREG-1800, Rev. 1 (SRP-LR, Rev. 1), which was the version of the SRP then in effect. See SER (Ex. NYS000326A), at 1-2 and 1-5. 42 Nonetheless, upon developing Revision 2 to the GALL Report, the Staff requested additional information from the Applicant to assure that the IP2/IP3 LRA was consistent in all important respects with the guidance contained in that document. The Applicant then provided additional information to the Staff in response to its RAIs, which the Staff then evaluated. See, e.g., Staff Testimony on NYS-5 (Ex. NRCR20016),

at 60-61 and 65-66; SER Supp. 1 (Ex. NYS000160) at 3 3-17.

1.37. The Staffs SER addresses the adequacy of the LRA for IP2 and IP3 LRA under 10 C.F.R. Part 54 utilizing, inter alia, the guidance contained in GALL Report Rev. 1. In SER Chapter 6, the Staff presented its conclusion that, On the basis of its review of the LRA, the staff determines that the requirements of 10 CFR 54.29(a) have been met.43 In SER Supplement 1, after reviewing the additional information provided by Entergy in LRA amendments, UFSAR updates, and responses to Staff requests for additional information, 42 Both the SRP-LR and the GALL Report were revised in December 2010, following the issuance of the Staffs SER for license renewal of IP2 and IP3. See (a) NUREG-1800, Rev. 2, Standard Review Plan for Review of License Renewal Applications for Nuclear Power Plants (SRP-LR, Rev. 2)

(Dec. 2010) (Ex. NYS000161), and (b) NUREG-1801, Rev. 2, Generic Aging Lessons Learned (GALL)

Report (GALL Report, Rev. 2) (Dec. 2010) (Ex. NYS000147A-D),

43 SER (Ex.NYS000326E), at 6-1. The SER further noted that any requirements of 10 CFR Part 51, Subpart A, will be documented in Supplement 38 to NUREG-1437. Id.

including its responses to Staff RAIs prompted by recent industry operating experience (the subject of GALL Report Rev. 2),44 the Staff conclude[d] that the additional information provided by [Entergy] does not alter the conclusions stated in the SER and that the requirements of 10 CFR 54.29(a) have been met.45 Further information regarding the Staffs consideration of the specific issues raised in the four Track 1 safety contentions, in which the Staff concluded that the contentions should be resolved in favor of license renewal, is provided in the Staffs testimony regarding those contentions.

1.38. With respect to the specific issues raised by the Intervenors in the four Track 1 safety contentions, we agree with the Staffs findings of adequacy. In this regard, with respect to each of these contested issues, we find that the Applicant has identified and has taken (or will take) actions with respect to the matters identified in 10 C.F.R. § 54.29(a)(1) and (a)(2), such that there is reasonable assurance that the activities authorized by the renewed license will continue to be conducted in accordance with the CLB, and that any changes made to the plant's CLB in order to comply with [§ 54.29] are in accord with the [Atomic Energy] Act and the Commission's regulations. 10 C.F.R. § 54.29(a). The bases for this determination are set forth in our proposed findings of fact and conclusions of law regarding Contentions NYS-5 (buried piping and tanks), NYS-6/7 (inaccessible medium and low voltage cables), NYS-8 (electrical transformers), and RK-TC-2 (flow-accelerated corrosion).

44 GALL Report Rev. 2 (Ex. NYS000147A), at 3 - 4.

45 SER Supplement 1 (Ex. NYS000160), at 6-1.

C. License Renewal Requirements under the National Environmental Policy Act of 1969.

1.39. Section 102 of the National Environmental Policy Act of 1969, as amended (NEPA), 42 U.S.C. § 4321 et seq., requires, in pertinent part, as follows:

§ 4332. Cooperation of agencies; reports; availability of information; recommendations; international and national coordination of efforts The Congress authorizes and directs that, to the fullest extent possible: . . . (2) all agencies of the Federal Government shall--

(C) include in every recommendation or report on proposals for legislation and other major Federal actions significantly affecting the quality of the human environment, a detailed statement by the responsible official on--

(i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of man's environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented.

Prior to making any detailed statement, the responsible Federal official shall consult with and obtain the comments of any Federal agency which has jurisdiction by law or special expertise with respect to any environmental impact involved. Copies of such statement and the comments and views of the appropriate Federal, State, and local agencies, which are authorized to develop and enforce environmental standards, shall be made available to the President, the Council on Environmental Quality and to the public as provided by section 552 of title 5, United States Code, and shall accompany the proposal through the existing agency review processes . . . .

1.40. NEPA requires federal agencies to take a hard look at the environmental impacts of major federal actions. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 339 (1989); accord, Massachusetts v. NRC, slip op. at 6. In addition, agencies are required to

consider reasonable and feasible alternatives to their proposed actions, and the impacts thereof. Beyond Nuclear v. NRC, 704 F.3d 12, 16 (1st Cir., Jan. 4, 2013), citing Natural Resources Defense Council, Inc. v. Morton, 458 F.2d 827, 837 (D.C. Cir. 1972), and Vt. Yankee Nuclear Power Corp. v. Natural Resources Defense Council, Inc., 435 U.S. 519, 551 (1978). An agency need not consider remote and highly speculative consequences. Trout Unlimited v.

Morton, 509 F.2d 1276, 1283 (9th Cir. 1974); Natural Resources Defense Council, Inc. v.

Morton, 458 F.2d 827, 837-38 (D.C. Cir. 1972).

1.41. NEPAs requirements serve two purposes: (a) that the agency will consider every significant aspect of the environmental impact of a proposed action, and (b) that the agency will inform the public that it has considered environmental concerns in its decisionmaking process. Massachusetts v. NRC, slip op. at 6, quoting Baltimore Gas &

Electric Co. v. Natural Resources Defense Council, Inc., 462 U.S. 87, 97 (1983) (internal quotation marks and citations omitted); accord, N.J. Dep't of Environmental Protection v. NRC, 561 F.3d 132, 134 (3rd Cir. 2009).

1.42. Importantly, NEPA does not require a specific outcome or mandate a course requiring the mitigation of potential impacts; indeed, NEPA does not require that any particular outcome be recommended or adopted as the agencys action. In Methow Valley, the Supreme Court noted that while NEPA announced sweeping policy goals, NEPA itself does not mandate particular results, but simply prescribes the necessary process. Id. at 350, citing Strykers Bay Neighborhood Council, Inc. v. Karlen, 444 U.S. 223, 227-28 (1980) and Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519, 558 (1978). If the adverse environmental effects of the proposed action are adequately identified and evaluated, the agency is not constrained by NEPA from deciding that other values outweigh the environmental costs. Id., citing Strykers Bay Neighborhood Council, 444 U.S. at 227-28,

(quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976)); accord, Massachusetts v. NRC, slip op. at 30, 33, & 39 n.27.46 1.43. In light of these principles, the Supreme Court identified a fundamental distinction . . . between a requirement that mitigation be discussed in sufficient detail to ensure that environmental consequences have been fairly evaluated on the one hand, and a substantive requirement that a complete mitigation plan be actually formulated and adopted on the other. Methow Valley, 490 U.S. at 352. The Court then concluded that the lower court erred in in assuming that NEPA requires that action be taken to mitigate the adverse effects of major federal actions. Id. at 353 (internal quotations omitted).

1.44. Consistent with the Courts decision in Methow Valley, this Board has observed:

NEPA does not require that a federal agency take any particular action. It does, however, require that the federal agency take a hard look at the environmental impact its proposed action could have before the action is taken, and to document what it has done. . . . [T]he goals of NEPA are to inform federal agencies and the public about the environmental effects of proposed projects.

LBP-08-13, 68 NRC at 201 n.1038, citing Methow Valley, 490 U.S. at 339.

1.45. With these principles in mind, we turn now to consider the NRCs requirements for consideration of the environmental impacts of license renewal.

1.46. The Commissions regulations in 10 C.F.R. Part 51 (Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions) establish the procedures by which the agency implements and satisfies the requirements of NEPA for a 46 See also, Baltimore Gas and Elec. Co. v. Natural Resources Defense Council, 462 U.S. 87, 97 (1983) (quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976)) (NEPA requires only that the agency take a hard look at the environmental consequences before taking a major action); Louisiana Energy Services, L.P. (Claiborne Enrichment Center), CLI-98-3, 47 NRC 77, 87-88 (1998) (same); see also Winter v. Nat. Res. Def. Council, 129 S.Ct. 365, 376 (2008) (NEPA imposes only procedural requirements and does not mandate any particular results).

broad range of NRC regulatory and licensing activities.47 1.47. As noted above, 10 C.F.R. § 54.29(b) provides that a renewed license may be issued if the Commission finds that [a]ny applicable requirements of Subpart A of 10 C.F.R. Part 51 have been satisfied. Thus, license renewal actions require satisfaction of the applicable requirements of 10 C.F.R. Part 51.48 1.48. The Commission has adopted specific requirements applicable to the evaluation of the environmental impacts of license renewal. Concurrent with its consideration of license renewal technical issues, the Commission commenced a rulemaking proceeding to consider the environmental impacts of license renewal. This effort culminated in June 1996 with the agencys (a) publication of a generic environmental impact statement for license renewal,49 and (b) revision of 10 C.F.R. Part 51 to define the scope of the agencys review of the environmental impacts of license renewal under NEPA, based upon the findings and analyses contained in the GEIS.50 47 See 10 C.F.R. § 51.2.

48 Generally, an applicant has the burden of proof in a licensing proceeding. See 10 C.F.R.

§ 2.325; Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 269 (2009). Thus, the applicant must demonstrate that its AMP is adequate and that it satisfies the reasonable assurance standard, by a preponderance of the evidence. See, e.g., Commonwealth Edison Co. (Zion Station, Units 1 and 2), ALAB-616, 12 NRC 419, 421 (1980). In cases involving NEPA contentions, the burden shifts to the NRC Staff, because the NRC, not the applicant, has the burden of complying with NEPA. See, e.g., Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), CLI-83-19, 17 NRC 1041, 1049 (1983). However, because the Staff, as a practical matter, relies heavily upon the Applicant's ER in preparing the EIS, should the Applicant become a proponent of a particular challenged position set forth in the EIS, the Applicant, as such a proponent, also has the burden on that matter.

Louisiana Energy Services, L.P. (Claiborne Enrichment Center), LBP-96-25, 44 NRC 331, 339 (1996),

revd on other grounds, CLI-97-15, 46 NRC 294 (1997).

49 Generic Environmental Impact Statement for License Renewal of Nuclear Plants, NUREG-1437 (GEIS) (Ex. NYS000131A-I).

50 Final Rule, Environmental Review of Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467 (June 5, 1996) (Ex. NYS000127).

1.49. In its 1996 amendment of Part 51, the Commission recognized that the environmental impacts of license renewal can be differentiated between (a) those impacts that are likely to be the same or similar at all nuclear power reactor sites or plants with specified plant or site characteristics, such that they may be evaluated on a generic basis, and (b) other impacts which may be expected to vary on a site-specific basis.

1.50. Under the regulatory approach adopted in the 1996 rule for license renewal environmental reviews, the Commission identified the environmental impacts of license renewal for which a generic analysis had been conducted and which need not be addressed by an applicant in its environmental report or by the NRC in a plant-specific environmental impact statement to be published as a supplement to the GEIS (SEIS). Similarly, the rule identified the environmental impacts for which a site- or plant-specific analysis is required to be performed by the applicant in its environmental report and by the NRC in its plant-specific SEIS.51 1.51. In addition, the 1996 rule added Appendix B to Subpart A of 10 C.F.R. Part 51, Environmental Effect of Renewing the Operating License of a Nuclear Power Plant; that Appendix included Table B-1, Summary of Findings on NEPA Issues for License Renewal of 51 The 1996 GEIS identified 92 environmental issues for license renewal, of which 69 issues were determined to be generic (i.e., Category 1), 21 were determined to be plant-specific (i.e., Category 2), and two did not fit into either category (i.e., uncategorized) and which are to be evaluated in each SEIS.

Table B-1 of Appendix B summarizes the findings of the environmental impact analyses conducted for the 1996 GEIS, listing each issue and its category level. In addition, Table B-1 identified the impact levels of Category 1 issues, as small, moderate, or large: A SMALL impact means that the environmental effects are not detectable, or are so minor that they would neither destabilize nor noticeably alter any important attribute of the resource; a MODERATE impact means that the environmental effects are sufficient to alter noticeably, but not to destabilize, important attributes of the resource; a LARGE impact means that the environmental effects are clearly noticeable and are sufficient to destabilize important attributes of the resource. 10 C.F.R. Part 51, Appendix B, Table B-1, n.3. Radiological impacts that do not exceed permissible levels in the Commissions regulations are considered small as the term is used in [Table B-1]. Id. An agency may consider the improbability of an event occurring, among other things, in assessing and determining its environmental impact. Carolina Environmental Study Group v. AEC, 510 F.2d 796, 798-800 (D.C. Cir. 1975); City of New York v. DOT, 715 F.2d 732, 748-50 (2d Cir. 1983).

Nuclear Power Plants, which summarized the findings of the 1996 GEIS. Under the rule, environmental impacts that can be evaluated on a generic basis were identified as Category 1 issues, while issues that require evaluation in an applicants environmental report and in an NRC site-specific SEIS were identified as Category 2 issues.52 1.52. Under this established regulatory approach, license renewal applicants do not need to submit analyses of Category 1 issues in their Environmental Reports, but instead may reference and adopt the Commissions generic findings; applicants must, however, provide a plant-specific review of the non-generic Category 2 issues, and must identify any new and significant information that would affect their ability to rely on the Commissions generic Category 1 determinations. Turkey Point, CLI-01-17, 54 NRC at 11-12.53 52 The final rule was revised in certain respects following its issuance. See (1) Final Rule:

Correction, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses; Correction, 61 Fed. Reg. 39,555 (July 30, 1996); (2) Final Rule, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 66,537 (Dec. 18, 1996) (Ex. NYS000128); (3) Final Rule:

Correction, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses; Correction, 61 Fed. Reg. 68,543 (Dec. 30, 1996); and (4) Final Rule, Changes to Requirements for Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 64 Fed. Reg. 48,496 (Sept. 3, 1999).

A further proposed rulemaking is currently in progress, involving (1) revisions to Part 51, Appendix B, Table B-1; (2) the 1996 GEIS; (3) Regulatory Guide (RG) 4.2, Supplement 1, Preparation of Environmental Reports for Nuclear Power Plant License Renewal Applications (Sept. 2000); and (4) NUREG-1555, Supplement 1, Standard Review Plans for Environmental Reviews for Nuclear Power Plants (Oct. 1999). See Proposed Rule, Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 74 Fed. Reg. 38,117 (July 31, 2009).

53 As a result, Category 1 issues "are not subject to site-specific review and thus fall beyond the scope of individual license renewal proceedings." Turkey Point, CLI-01-17, 54 NRC at 12; see 10 C.F.R.

§ 51.53(c)(3)(i)-(ii). Nonetheless, the Commission has recognized that even generic findings sometimes need revisiting in particular contexts. Our rules thus provide a number of opportunities for individuals to alert the Commission to new and significant information that might render a generic finding invalid, either with respect to all nuclear power plants or for one plant in particular. In the hearing process, for example, petitioners with new information showing that a generic rule would not serve its purpose at a particular plant may seek a waiver of the rule." Turkey Point, supra, 54 NRC at 12.

1.53. The Commission reiterated these principles in 2007, explaining that Part 51 defines the scope of license renewal environmental reviews, and that GEIS Category 1 conclusions generally may not be challenged in a license renewal proceeding:

In 1996, the Commission amended the environmental review requirements in 10 C.F.R. Part 51 to address the scope of environmental review for license renewal applications. The regulations divide the license renewal environmental review into generic and plant-specific issues. The generic impacts of operating a plant for an additional 20 years that are common to all plants, or to a specific subgroup of plants, were addressed in a 1996 GEIS. Those generic impacts analyzed in the GEIS are designated "Category 1" issues. A license renewal applicant is generally excused from discussing Category 1 issues in its environmental report. Generic analysis is "clearly an appropriate method" of meeting the agency's statutory obligations under NEPA.

. . . Because the generic environmental analysis was incorporated into a regulation, the conclusions of that analysis may not be challenged in litigation unless the rule is waived by the Commission for a particular proceeding or the rule itself is suspended or altered in a rulemaking proceeding.

Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc.

(Pilgrim Nuclear Power Station), CLI-07-3, 65 NRC 13, 17 (footnotes omitted), reconsid. denied, CLI-07-13, 65 NRC 211, 214 (2007). This approach has been found to comply with NEPA. See, e.g., Massachusetts v. NRC, slip op. at 7-9. Following publication of a site-specific supplement to the GEIS, further supplementation is required only if there are significant new circumstances or information . . . [that] paint[s] a dramatically different picture of impacts compared to the description of impacts in the EIS. Id., slip op. at 9, quoting Town of Winthrop v. FAA, 535 F.3d 1, 7, 12 (1st Cir. 2008).

1.54. The Board has previously considered and addressed these principles. For example, in ruling on the petitions to intervene, the Board observed as follows:

A. Environmental Review Pursuant to Part 51 Part 51 of 10 C.F.R. divides environmental issues for license renewal into generic and site-specific components. The issues that have been dealt with generically are identified as Category 1 issues. Other issues that require site-specific analysis are identified as Category 2 issues. Category 1 issues are not subject to challenge in a relicensing proceeding because they involve environmental effects that are essentially similar for all plants [and] need not be assessed repeatedly on a site-specific basis. Absent a waiver pursuant to 10 C.F.R. § 2.335, these Category 1 issues cannot be addressed in a license renewal proceeding. Category 2 issues, on the other hand, are not essentially similar for all plants because they must be reviewed on a site-specific basis; accordingly, challenges relating to these issues are properly part of a license renewal proceeding.

LBP-08-13, 68 NRC at 67 (footnotes omitted).

1.55. In accordance with the regulatory scheme in 10 C.F.R. Part 51, the NRC performs an evaluation of the environmental impacts of license renewal for a particular plant, to assess the potential impacts of twenty additional years of operation.54 This evaluation is then published in a Supplement to the GEIS.55 1.56. These procedures were followed by the Staff in its evaluation of the Indian Point LRA. As discussed supra at 6-7, in December 2008 the Staff published an evaluation of the site-specific environmental impacts of license renewal for IP2 and IP3 in Draft Supplement 38 to the GEIS. In December 2010, the Staff issued its Final SEIS for license renewal of IP2 and IP3, in which it concluded that the adverse environmental impacts of license renewal for IP2 and IP3 54 See 10 C.F.R. § 51.20(b)(2) (requiring preparation of an environmental impact statement (EIS) for license renewal actions).

55 10 C.F.R. § 51.2.

are not so great that preserving the option of license renewal for energy planning decision makers would be unreasonable.56 1.57. We have given careful consideration to the legal principles set forth above and elsewhere in these Proposed Findings, and to the evidence presented during the evidentiary hearings on each of the five Track 1 environmental contentions. With respect to the specific issues raised by the Intervenors in those contentions, we find no reason to disagree with the Staffs environmental findings, as set forth in the FSEIS and in Staff testimony. We find that with respect to each of these contested issues, Entergy and the Staff have properly considered and evaluated the environmental impacts of license renewal for IP2 and IP3, and have fully complied with the requirements of 10 C.F.R. Part 51. The bases for this determination are set forth in our proposed findings of fact and conclusions of law regarding Contentions NYS-12C (SAMA analysis decontamination and cleanup costs), NYS-16B (SAMA analysis population estimates), NYS-17B (real estate values); NYS-37 (no-action alternative/ alternative fuels); and CW-EC-3A (environmental justice). We therefore find, consistent with 10 C.F.R. § 54.29(b), that any applicable requirements of Subpart A of 10 C.F.R. Part 51 have been satisfied.

56 FSEIS (Ex. NYS000133C), § 9.3, at 9-8. As noted above, the Staff intends to issue a supplement to the FSEIS later this year, to address new information it has received concerning the aquatic impacts of IP2/IP3 license renewal (including impacts to endangered species. See n. 28, supra.

III. CONCLUSIONS OF LAW 1.58. The Board has considered all of the evidence presented by the parties on the nine Track 1 contentions. Based upon a review of the entire record in this proceeding and the proposed findings of fact and conclusions of law submitted by the parties, and based upon the findings of fact set forth above and in our proposed findings of fact and conclusions of law regarding each of the nine Track 1 contentions (filed separately herewith), which are supported by reliable, probative and substantial evidence in the record, the Board has decided all matters in controversy concerning these contentions and reaches the following conclusions.

1.59. In accordance with 10 C.F.R. § 54.29(a), with respect to the issues raised in Contentions NYS-5, NYS-6/7, NYS-8, and RK-TC-2, actions have been identified and have been or will be taken with respect to the matters identified in 10 C.F.R. § 54.29(a)(1) and (a)(2),

such that there is reasonable assurance that the activities authorized by the renewed license will continue to be conducted in accordance with the CLB, and that any changes made to the plant's CLB in order to comply with 10 C.F.R. § 54.29 are in accord with the Act and the Commission's regulations.

1.60. Further, in accordance with 10 C.F.R. § 54.29(b), with respect to the issues raised in Contentions NYS-12C, NYS-16B, NYS-17B, NYS-37, and CW-EC-3, the applicable requirements of Subpart A of 10 C.F.R. Part 51 have been satisfied.

1.61. In accordance with 10 C.F.R. § 54.29(c), any matters raised prior to this date under 10 C.F.R. § 2.335 have been addressed.

1.62. We therefore conclude, with respect to the issues raised in the nine Track 1 contentions discussed herein (Contentions NYS-5, NYS-6/7, NYS-8, NYS-12C, NYS-16B, NYS-17B, NYS-37, RK-TC-2, and CW-EC-3), that Entergys license renewal application for Indian Point Units 2 and 3 complies with the requirements of 10 C.F.R. § 54.29.

1.63. These findings of fact and conclusions of law resolve all contested issues raised in the Intervenors Track 1 safety and environmental contentions, in favor of Entergys application for license renewal for Indian Point Units 2 and 3. A final decision on whether license renewal for Indian Point Units 2 and 3 may be authorized will be made following the resolution of all other matters, including (without limitation) the four Track 2 contentions.

Respectfully submitted,

/Signed (electronically) by/

Sherwin E. Turk Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-1533 E-mail: sherwin.turk@nrc.gov Dated at Rockville, Maryland this 22nd day of March 2013

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

)

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

)

(Indian Point Nuclear Generating )

Units 2 and 3) )

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R § 2.305 (as revised), I hereby certify that copies of the foregoing NRC STAFFS PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW, PART 1:

OVERVIEW AND REGULATORY STANDARDS, dated March 22, 2013, have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above- captioned proceeding, this 22nd day of March, 2013.

/Signed (electronically) by/

Sherwin E. Turk Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-1533 E-mail: sherwin.turk@nrc.gov

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