In the Matter of Entergy Nuclear Operations, Inc., et al., Respondents,v.New York State Department of State et al., Appellants.BriefN.Y.October 19, 2016APL-2015-00152 App. Div. Third Dept. No. 518510; Albany Co. Index No. 1535-13 Court of Appeals of the State of New York IN THE MATTER OF ENTERGY NUCLEAR OPERATIONS, INC., ENTERGY NUCLEAR INDIAN POJJ\TT 2, LLC, AND ENTERGY NUCLEAR INDIAN POINT 3, LLC, Petitioners-Respondents ·-AGAINST- THE NEW YORK STATE DEPARTMENT OF STATE AND CESAR A. PERALES, SECRETARY OF THE NEW YORK STATE DEPARTMENT OF STATE, Respondents-Appellants. AMICUS CURIAE BRIEF OF NUCLEAR ENERGY INSTITUTE, INC. IN SUPPORT OF PETITIONERS-RESPONDENTS Dated: June 1, 2016 David A. Repka Winston & Strawn LLP 1700 K Street, NW Washington, DC 20006 (202) 282-5726 drepka@winston.com TABLE OF CONTENTS PRELIMINARY STATEMENT ............................................................................... 1 ARGlJMENT ............................................................................................................ 2 A. NRC Exclusively and Comprehensively Regulates the Operation of Nuclear Facilities and Continuously Assesses New Information ........ 2 1. Seismic Data ............................................................................... 4 2. Groundwater ............................................................................... 8 3. Spent Fuel Storage ................................................................... 10 B. NRC Regulates Aging Management and Assesses Environmental Impacts When Reviewing License Renewal Applications ................ 14 1. Safety Reviews ......................................................................... 14 2. Environmental Reviews ........................................................... 17 3. Public ... Participation .............. , ................................................... 19 CONCLUSION ....................................................................................................... 21 TABLE OF AUTHORITIES Page(s) JUDICIAL DECISIONS Balt. Gas & Elec. Co. v. NRDC, 462 u.s. 87 (1983) ................................................................................................................... 17 Bull creek v. NRC, 359 F.3d 536 (D.C. Cir. 2004) ................................................................................................. 10 County of Rockland v. NRC, 709 F.2d 766 (2d Cir. 1983) ...................................................................................................... .3 Nuclear Info. Res. Serv. v. NRC, 969 F.2d 1169 (D.C. Cir. 1992) ................................................................................................. 3 Pac .. Gas & Electric Co. v. State Energy Res. Conserv. & Dev. Comm 'n, 461 u.s. 190 (1983) ................................................................................................................... 2 Siegel v. Atomic Energy Comm 'n, 400 F.2d 778 (D.C. Cir. 1968) .................................................................................................. .3 Silkwood V; Kerr-McGee Corp., 464 u.s. 238 (1984) ................................................................................................................... 4 STATUTES 42 U.S.C. § 2133 ............................................................................................................................ 14 42 u.s.c. § 2011 .............................................................................................................. 2, 3, 14, 19 42l!.S.C. § 4321 ................................................................................................................ ~ ........... 17 REGULATIONS 10 C.F.R. Part 50 .............................................................................................................................. 4 10 C.F.R. Part 51 ............................................................................................................................ 17 10 C.F.R. Part 54 ............................................................................................................................ 14 10 c:.F.R. Part 72 ............................................................................................................................ 13 10 C.F.R. Part 100 ...................................................................................................................... 5, 12 10 C.F.R. § 20.1401 .............................. : .......................................................................................... 9 lV . 10 C.F.R. § 20.1406 ......................................................................................................................... 9 10 C.F.R. § 20.1501 ......................................................................................................................... 9 10 C.F.R. § 50.36 ........................................................................................................................... 15 10 C.F.R. § 50.54 ............................................................................................................................. 6 10 C.F.R. §, 50.55a ......................................................................................................................... 15 10 C.F.R. § 50.69 ........................................................................................................................... 15 1 0 C.F .R. § 51.23 ........................................................................................................................... 11 10 C.F.R. § 54.21 ........................................................................................................................... 15 56 Fed. Reg. 64,943 (Dec. 13, 1991) ............................................................................................. 14 60 Fed. Reg. 22,461 (May 8, 1995) ........................................................................................ ; ...... 16 79 Fed. Reg. 56,238 (Sept. 19, 2014) ........................................................................................... .1 1 v PRELIMINARY STATEMENT The Nuclear Energy Institute, Inc. ("NEI") respectfully submits this amicus curiae brief in support of Petitioners-Respondents, Entergy Nuclear Operations, Inc., Entergy Nuclear Indian Point 2, LLC, and Entergy Nuclear Indian Point, 3 LLC (together, "Entergy"). NEI is the policy organization responsible for representing the commercial nuclear energy industry on significant regulatory, legal, and technical issues.1 NEI has substantial expertise in connection with the legal and regulatory framework for the licensing and oversight of nuclear power plants by the federal Nuclear Regulatory Commission ("NRC"). In this brief, NEI provides this Court with perspective on and context for various arguments made in this matter by Respondents-Appellants, New York State Department of State ("NYSDOS"), and in the amicus curiae brief of River keeper, Inc., Scenic Hudson, Inc., and Hudson River Sloop Clearwater, Inc. (together, "Riverkeeper"). This case concerns whether the renewal of the NRC licenses for Entergy's two-unit Indian Point nuclear power plant is exempt from review under the New York State Coastal Management Program ("CMP"). Entergy has addressed that issue in its briefs and has shown that the Appellate Division NEI has more than 350 members, including all of the companies licensed by NRC to own or operate commercial nuclear power plants, nuclear plant designers and suppliers, major architect-engineer firms, fuel cycle facilities, nuclear materials licensees, universities, and other organizations involved in the nuclear industry. 1 correctly concluded that Indian Point was, by the plain language of the CMP, exempted from state CMP revie~. Entergy has further demonstrated that this ·exemption is not limited by alleged "material changes" related to Indian Point operations since initial licensing. Nonetheless, in this matter NYSDOS and Riverkeeper have injected various arguments on new seismic information for the Indian Point site and alleged adverse impacts from Indian Point operations a.Ild spent fuel storage. NYSDOS and River keeper assert that these matters necessitate state review under the CMP. As NEI discusses below, these are issues within the exclusive jurisdiction of the federal NRC-in fact, NRC is an expert agency and comprehensively regulates these matters through ongoing oversight of nuclear plants and during its review of Entergy's license renewal application. State review of these same issues under the CIVIP is neither authorized under the Supremacy Clause of the U.S. Constitution nor necessary. ARGUMENT A. NRC Exclusively and Comprehensively Regulates the Operation of Nuclear Facilities and Continuously Assesses New Information. In accordance with the Atomic Energy Act ("AEA"), 42 U.S.C. § 2011 et seq, NRC has exclusive authority for the licensing and regulation of the radiological safety of nuclear power plants. See, e.g., Pac. Gas & Electric Co. v. State Energy Res. Conserv. & Dev. Comm 'n, 461 U.S. 190, 207 (1983). Federal 2 courts have long recognized tha~ the ABA grants NRC broad authority and discretion to achieve its statutory purpose. See Siegel v. Atomic Energy Comm 'n, 400 F.2d 778, 783 (D.C. Cir. 1968) (explaining that the ABA creates a "regulatory scheme which is virtually unique in the degree to which broad responsibility is reposed in the administering agency"); Nuclear Info. Res. Serv. v. NRC, 969 F.2d 1169, 1177 (D.C. Cir. 1992) ("The ABA has been read ... to give the Commission broad regulatory latitude."). With this authority, NRC has established a comprehensive regulatory framework governing NRC-licensed activities. Under that framework, NRC ensures the safe operation of nuclear plants through its regulatory processes and continuing oversight The U.S. Court of Appeals for the Second Circuit in County of Rockland v. NRC, 709 F.2d 766, 768 (2d Cir. 1983) observed: One of the most emotional issues confronting our society today is the adequacy of safety measures at nuclear power facilities. Fueled by the Three Mile Island incident, the debate over nuclear safety persists as public interest groups charge that serious problems remain and operator-utilities seek to assure the public that all reasonable measures have been taken to protect surrounding populations in the event of a major nuclear accident But it is the United States Nuclear Regulatory Commission (NRC or Commission) which must decide the difficult questions concerning nuclear power safety.2 ----··------ 2 ''Congress's decision to prohibit the states from regulating the safety aspects of nuclear development was premised on its belief that the [Atomic Energy, now the Nuclear Regulatory] Commission was more qualified to determine 3 Consistent with its statutory mandate, the NRC has, and will continue to, evaluate and appropriately respond to each of the issues raised by NYSDOS and Riverkeeper, including new seismic information, radiological leaks and groundwater contamination, and extended spent fuel storage. 1. Seismic Data The capability of nuclear facilities to safely withstand seismic events is an area squarely within NRC's exclusive authority and one that l'JRC is actively regulating. Nuclear plants are licensed to stringent seismic design requirements. NRC requires that each plant establish a seismic_ licensing basis for safety-related systems, structures, and components that protects against natural hazards, including "the most severe phenomena that have been historically reported for the site and surrounding area." 10 C.F.R. Part 50, Appendix A, Criterion 2. NRC requirements also ensure that safety systems, structures, and components are qualified to withstand the ''maxim urn earthquake potential at a site, considering regional and local geology and seismology and specific characteristics of the local subsurface materiaL" 10 C.F .R. Part 100, Appendix A, III. c. River keeper asserts (Br. 29-31) that the "understanding of regional seismicity" near Indian Point has changed since the units began operating. But, what type of safety standards should be enacted in this complex area." Silkwood v. Kerr-McGee Corp., 464 U.S. 238,250 (1984). 4 NRC has not ignored new seismic information, new seismic methodologies, or operating experience. In 2005, NRC initiated Generic Issue ("GI") 199 to evaluate new seismic information suggesting hazards potentially greater than previously understood for plants in the Central and Eastern U.S.3 NRC developed a methodology to assess the risk. After considering this new seismic information, NRC concluded that "[o]verall seismic risk estimates remain small in an absolute sense."4 NRC also concluded that for "all operating plants" in the Central and Eastern U.S., including Indian Point, "there is no immediate concern regarding adequate protection."5 Following the Fukushima accident, the NRC's Japan Lessons-Learned Near-Term Task Force further recommended that NRC require all operating plant licensees to take certain actions and provide specific information to address seismic issues.6 Within approximately one year of the Fukushima event, NRC 3 4 5 6 "GI-199: Implications of Updated Probabilistic Seismic Hazards Estimates on Central and Eastern United States," dated June 9, 2005 (ADAMS Accession No. ML051600272). "GI-199: Implications of Updated Probabilistic Seismic Hazard Estimates In Central And Eastern United States On Existing Plants - Safety /Risk Assessment," dated August 2010, at 5 (ADAMS Accession No. ML100270639). Jd. at 6. "Recommendations for Enhancing Reactor Safety in the 21st Century: The Near-Term Task Force Review of Insights from the Fukushima Dai-Ichi 5 directed actions by all licensees to address the Near-Term Task Force Recommendations. 7 NRC first asked all power reactor licensees to complete seismic "walkdowns" at each facility. The walkdowns were to promptly identify any adverse seismic conditions and ensure the operability of equipment for anticipated seismic events. Entergy completed the seismic walkdowns and responded to that request for both Indian Point units in November 2012.8 NRC concluded that Entergy had verified the plant configuration using the current seismic licensing basis and had resolved degraded, nonconforming, or unanalyzed seismic conditions.9 NRC found no immediate safety concerns. NRC also directed that its licensees reevaluate seismic hazards using present day data, methods, and regulatory guidance to identify potential 7 8 9 -~-------~--~------~ .. -- Accident," July 12, 2011 (ADAMS Accession No. ML112510271) (see Recommendation 2). NRC also requested information on flooding issues. NRC Letter to All Power Reactor Licensees, ''Request for Information Pursuant to [10 C.P.R. §] 50.54(£) Regarding Recommendations 2.1, 2.3, and 9.3, of the [Fukushima] Near-Term Task Force Review," dated March 12, 2012 (ADAMS Accession No. ML12053A340) ("NRC Request for Information"). Indian Point Unit 2, "Seismic Walkdown Report," dated November 27, 2012 (ADAMS Accession No. ML12346A341); Indian Point Unit 3, "Seismic Walkdown Report," dated November 27, 2012 (ADAMS Accession No. ML12353A465). Indian Point Unit 2, "Staff Assessment of the Seismic Walkdown Report," dated March 20, 2014 (ADAMS Accession No. ML14071Al98); Indian. Point Unit 3, "Staff Assessment of the Seismic Walkdown Report," dated March 20, 2014 (ADAMS Accession No . .JVlL14071A183). 6 vulnerabilities. 10 NRC asked each U.S. nuclear power plant to develop a new ground motion response spectrum, or "hazard curve," for NRC review and compare the new hazard curve to its current licensing basis. 11 If the new hazard exceeds the current licensing basis (i.e., the plant "screens in"), a power plant would be asked to perform additional analyses, such as a detailed seismic risk evaluation or a spent fuel pool seismic evaluation. 12 Based on the results of the subsequent evaluations, NRC will determine the need for further regulatory action, including any need for plant modifications. In March 2014, Entergy submitted seismic hazard screemng evaluations for Indian Point using updated seismic information and current NRC guidance and methodologies. 13 Entergy also compared the results to the current seismic licensing basis. NRC found Entergy's hazard reevaluation acceptable and concluded that Indian Point Units 2 and 3 "screen in" for further seismic risk 10 II 12 13 NRC Request for Information, Enc. 1, Recommendation 2.1: Seismic, at 5-6. !d. at 6-7. !d. at 6-8; see also id., Attach. 1 to Seismic Encl. 1, at 1-4. Indian Point Unit 2, "Seismic Hazard and Screening Report," dated March 31, 2014 (ADAMS Accession No. ML14099A110); Indian Point Unit 3, "Seismic Hazard and Screening Report," dated March 31, 2014 (ADAMS Accession No. ML14099All1). 7 evaluation. 14 NRC is continuing its oversight of this process, but has concluded in the interim that there is "continued plant safety." 15 Experts from NEI and the Electric Power Research Institute ("EPRI") agree. 16 2. Groundwater NRC's regulatory framework also requires licensees to minimize the potential for radiological leaks and mitigate groundwater contamination events. Nuclear plants systems and structures are designed and maintained to contain nuclear materials used and produced in the generation of electricity. Nonetheless, NRC regulations require groundwater monitoring programs to detect leakage of radionuclides. The monitoring allows mitigation of any leaks that do occur. NRC regulations such as 10 C.F.R. § 20.150l(a)(2) require surveys to evaluate the 14 15 16 Indian Point Nuclear Generating Unit Nos. 2 and 3, "Staff Assessment of Seismic Hazard Reevaluations," dated May 7, 2015 (ADAMS Accession No. ML 15096A340). Indian Point Nuclear Generating Unit Nos. 2 and 3, "StaffReview of Interim Evaluation Associated With Reevaluated Seismic Hazard Implementing Near-Term Task Force Recommendation 2.1," dated September 15, 2015, at 2 (ADAMS Accession No. ML 15232A667). See NEI, "Perspectives on the Seismic Capacity of Operating Plants," dated March 12, 2014 (ADAMS Accession No. ML14083A596) (addressing data supporting the conclusion that current nuclear plant and equipment designs contain safety margin beyond the design and licensing bases and ensure safety in the event of increased hazards); see also EPRI Letter to NEI, "Fleet Seismic Core Damage Frequency Estimates Using New Site-Specific Seismic Hazard Estimates," dated March 11, 2014 (ADAMS Accession No. ML14083A586). 8 magnitude, extent, and potential radiological hazard of any leaks. Under 10 C.F.R. § 20.1501 (b) licensees must maintain records of subsurface residual radioactivity. NRC decommissioning requirements also direct remediation of any radiological contamination that may exist at the site, and establish clear release criteria to be met, prior to termination of the NRC license. 10 C.F.R. §§ 20.1401-1406. Riverkeeper asserts (Br. 25-29) that "radiological leaks have been a persistent problem at Indian Point" and that "decades of inadvertent releases and leaks of radioactive water" have caused "two extensive contaminated groundwater plumes underlying the site." Putting aside the technical validity of those claims, these issues are appropriately and actively under the oversight of NRC. Indeed, Riverkeeper relies exclusively on Entergy reports and NRC inspection reports for its claims. 17 The reports show that Entergy investigated the source of leaks, took corrective actions, and is continuing to monitor water quality. 18 Entergy is also required to submit annual radiological effluent release reports to 1\TRC, which 17 18 Br. at 25; id. at Attach. 5 (Entergy Report) and Attach. 6 (NRC Inspection Report). See Br. at Attach. 5 (describing ongoing monitoring efforts and assessing potential sources of contamination); id. at Attach. 6 (documenting NRC evaluation ofEntergy's assessment ofleak sources and remediation efforts). 9 include evaluations of potential risks to the public.19 According to these reports, the groundwater releases from Indian Point result in an annual dose to a hypothetical maximally-exposed individual of less than one-tenth of one percent of the federal regulatory limits.Z0 3. Spent Fuel Storage · Both NYSDOS (Br. 48-49) and Riverkeeper (Br. 31-33) assert the need for state CMP review of the long-term storage of spent nuclear fuel. Here too, however, NRC has the exclusive authority to regulate and oversee spent fuel storage/' whether in licensed spent fuel pools or at licensed dry cask storage facilities. 22 NRC's regulatory framework ensures the safe interim storage of spent 19 20 21 22 See, e.g., "20 14 Annual Radioactive Effluent Release Report - Indian Point Nuclear Generating Unit Nos. 1, 2 and 3," dated April 28, 2015 (ADAMS Accession No. ML15124A715). !d., Enclosure 1, at 44. Federal regulators have established these limits . conservatively to protect human health. NRC has confirmed that a recent tritium event at Indian Point likewise presents only "a very small fraction of the allowable dose" and has "no safety impact to the public." Indian Point Nuclear Generating- Integrated Inspection Report 05000247/2016001 and 05000286/2016001, Attach. at 36, dated May 12, 2016 (ADAMS Accession No. ML16133A448). See, e.g., Bull creek v. NRC, 359 F.3d 536, 538 (D.C. Cir. 2004). When spent fuel is removed from a reactor, the fuel assemblies are first stored in steel~lined, concrete pools equipped with storage racks. After the fuel cools and radiological material decays, the spent fuel may be transferred out of the pool to create more space for newer spent fuel. The fuel is transferred into a container, or "dry cask," for storage away from the pool. The casks are typically steel cylinders that are welded or bolted closed to 10 nuclear fuel, even for an extended period if needed due to delay in the availability of a licensed disposal repository. NRC also has addressed the safety and environmental impacts of short-term, long-term, and indefinite storage of spent nuclear fuel at reactor sites in a comprehensive generic environmental impact statement on the continued storage of spent fuel. 23 As discussed in the Continued Storage GEIS, Appendix E, spent fuel storage pools are required to be robust structures to avoid the potential for leaks. "Typically, the reinforced concrete walls are between [2 and 10 feet] thick and the inside surfaces are lined with welded stainless steel plates to form a leak-tight barrier." Continued Storage GEIS, at E-2. Licensees are required to actively monitor spent fuel pools leakage, through leak detection systems or other controls. Id. And, as discussed above, licensees are required to mitigate any leakage that should occur. 23 ensure leak-tight containment. Each cylinder is surrounded by additional steel, concrete, or other shielding materiaL NUREG-2157, "Generic Environmental Impact Statement for Continued . Storage of Spent Nuclear Fuel" (September 2014) (ADAMS Accession No. IYIL14196A1 05) ("Continued Storage GEIS"). NRC has codified its findings and conclusions in 10 C.P.R. § 51.23 (and related regulations) ("Continued Storage Rule"). 79 Fed. Reg. 56,238 (Sept. 19, 2014). The State of New York, Riverkeeper, and other government entities and organizations have a petition for review in the U.S. Court of Appeals for the D.C. Circuit challenging the Continued Storage Rule. New York v. NRC, Nos. 14-1210, 14-1212, 14-1216, and 14-1217 (consolidated). 11 The Continued Storage GElS, Appendix E, provides a thorough bounding analysis of the likelihood and potential cmisequences of reasonably foreseeable leaks from spent fuel pools at all licensed reactor sites. The Continued Storage GElS describes the spent fuel pool design, maintenance, and groundwater monitoring program requirements that apply at all reactor sites. Continued Storage GElS at E-2 to E-7. The GElS also considers the range of conditions that exist at reactor sites. Because of the siting requirements for nuclear plants (1 0 C.F.R. Part 1 00), plants are located in areas with similar hydrogeologic characteristics. I d. at E-13. And the characteristics of. groundwater flow and transport of radionuclides will necessarily limit the amounts and types of radionuclides that would travel offsite. ld. at 11 to E-12. The Continued Storage GElS concludes that "it is unlikely that a leak ... of sufficient magnitude and duration would go undetected long enough to result in offsite consequences." Id. at E-17?4 Dry storage facilities and canisters are also subject to NRC license requirements and oversight. See generally 10 C.F .R. Part 72. J\TRC regulations only allow casks to be used if they continue to ensure safety (such as through maintenance and aging management activities). ld. at §§ 72.42(a), 72.240(c). 24 The Continued Storage GETS similarly addresses the hypothetical impact of severe accidents at storage facilities. For example, in Appendix F NRC considered (at F -16) both the potential consequences and the very low probability of spent fuel fires. NRC concluded that the risk of fires is low at all plants and therefore the probability-weighted consequences are small. 12 NRC certifications for storage casks are subject to renewal every 40 years based on a demonstration of continued safety. Id. at§ 72.240(a). As noted above, the Continued Storage GEIS addresses impacts of interim storage in three timeframes: a short-term storage period extending until 60 years beyond the licensed term for operations; long-term storage pending disposal for up to 100 years beyond the short-term storage period; and an indefinite storage period that assumes that no repository ever becomes available. NRC concluded t,hat availability of a repository in the short-term timeframe is the "most likely" scenario. Continued Storage GElS at B-27. But NRC nonetheless evaluated all three scenarios, including the impacts of possible spent fuel pool leaks and the probability-weighted impacts of accidents and natural events. The GElS conclusions are weighed, along with other determinations, in connection with any site-specific licensing action, including the license renewal for Indian Point. Again, these issues do not provide a proper basis for separate review under the CMP or any other state statute, regulation, or program. Whether in spent fuel pools or dry storage, the spent fuel remains subject to an NRC license and NRC oversight as long as it remains on a reactor site. ***** The responsibility for ensuring public health and safety with respect to radiological hazards, including seismic hazards, radioactive groundwater 13 contamination, and spent fuel storage, is vested exclusively in NRC. NRC's ongoing regulatory processes provide assurance that, as these or other concerns arise, measures are implemented to protect public health and safety. Attempts by NYSDOS and Riverkeeper to inject these federal issues into a state coastal management plan review are inappropriate and unnecessary. B. NRC Regulates Aging Management and Assesses Environmental Impacts When Reviewing License Renewal Applications. 1. Safety Reviews The AEA limits initial licensees for power plants to a 40-year term,25 but grants NRC authority to renew licenses. 42 U.S.C. § 2133(c). NRC's regulations in 1 0 C.F .R. Parts 54 provide a detailed framework for the NRC safety review of a license renewal application. NRC's regulatory scheme specifically addresses plant maintenance and equipment "aging" issues and ensures that structures, systems, and components will continue to perform safely beyond the original 40-year term. NYSDOS (e.g., Br. 30) and Riverkeeper (e.g., Br. 28) characterize the Indian Point units as "aging" or the equipment as "degraded," as if the plant structures, systems, and components were not subject to any ongoing maintenance 25 The 40-year term for initial licenses was adopted for antitrust and financial reasons (e.g., the typical amortization period for large capital investments by electric utilities), not for safety, environmental, or engineering reasons. "Nuclear Power Plant License Renewal; Final Rule," 56 Fed. Reg. 64,943, 64,960 (Dec. 13, 1991). 14 or oversight. By their lights, the units just get older and inevitably become more susceptible to leaks and other failures. But in fact, under NRC licenses (and operating Technical Specifications incorporated as license conditions), safety- related equipment must be maintained, and if necessary replaced, such that it can function under operational and accident conditions. Testing and surveillance requirements are established and implemented as part of routine plant operations (e.g., 10 C.F.R. § 50.36(c)(3)). Pressure boundary components are subject to in- service inspection and in-serv~ce testing requirements (1 0 C.F.R. § 50.55a). And nuclear operators implement comprehensive preventive and corrective maintenance programs to ensure that the plant continues to operate in conformance with NRC regulations and the licensing basis of the plant (e.g., 10 C.F.R. § 50.69). Equipment aging issues related to operations during an extended license term must be addressed in aging management programs reviewed prior to issuance of the renewed license. 10 C.F.R. § 54.21(a). The licensee ~must demonstrate that "the effects of aging will be adequately managed so that the intended function(s) will be maintained consistent with the [currentlicensing basis] for the period of extended operation." In other words, regardless of the "age" of 15 the equipment, it must operate and be capable of performing its safety functions at all times just as if it were "new.26 During the renewal period, NRC regulatory oversight continues just as in the initial operating license term. NRC's ongoing programs include continuous ' resident inspector oversight; NRC routine inspections of various programs, equipment, and functional areas; and . special inspections to respond to new information, operating experience, or performance deficiencies. As such, plant operations, including maintenance and equipment replacement programs, remain subject to active NRC inspection and oversight during the renewal period. For the Indian Point license renewal application, NRC documented its safety reviews in an initial safety evaluation report and in two supplemental safety evaluations.27 In the initial report, NRC concluded that the application provides reasonable assurance that the activities authorized under the renewed license will 26 27 A basic principle of NRC license renewal holds that 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. "Nuclear Power Plant License Renewal; Revisions, Final Rule" 60 Fed. Reg. 22,461, 22,464 (May 8, 1995). "Safety Evaluation Repmi Related to the License Renewal of Indian Point Nuclear Generating Unit Nos. 2 and 3" (NUREG-1930); Initial Repmi, dated November 2009, available at http://www.nrc.gov/reading-rm/doc- collections/nuregs/staf£'sr1930/initiall; Supplement 1, dated August 2011, available at http://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/ sr1930/sl/; and Supplement 2, dated July 2015, available at http://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr1930/s2/. 16 continue to be conducted in accordance with the current licensing basis. NRC subsequently concluded that the information considered in the supplemental evaluations did not alter the conclusions of the initial safety evaluation and that Indian Point meets NRC standards for license renewal. 2. Environmental Reviews Under the National Environmental Policy Act ("NEPA"), 42 U.S.C. § 4321 et seq, NRC "consider[s] every significant aspect of the environmental impact of a proposed action" and "inform[ s] the public that it has indeed considered environmental concerns in its decisionmak:ing process." Balt. Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97 (1983). NRC regulations in 10 C.P.R. Part 51 address the environmental review under NEP A for license renewal. NRC's license renewal environmental review involves a Generic Environmental Impact Statement28 and a site-specific supplement addressing those issues identified in Part 51, Table B-1 that require site-specific analysis. Those issues include impingement and entrainment of aquatic organisms for plants with once-through cooling systems. Other aquatic impacts, such as effects of cooling water discharge on dissolved oxygen and effects of non-radiological and 28 NUREG-1437, Rev. 1, "Generic Environmental Impact Statement for License Renewal ofNuclear Power Plants" (June 2013). 17 radiological contaminants on aquatic organisms, have been addressed in the GElS and determined to be small for the additional 20 years of operation for all plants. NRC has assessed the environmental impacts of renewing Indian Point's operating licenses for a 20-year period?9 NRC considered and weighed the environmental impacts of the proposed action, the environmental impacts of alternatives (including alternative cooling systems), and mitigation measures available for reducing or avoiding adverse impacts. In a supplemental evaluation, NRC staff considered new impingement and entrainment data, modified conclusions regarding thermal impacts based on new studies, and updated the status of NRC's consultation with the National Marine Fisheries Service under section 7 of the Endangered Species Act.30 NRC also issued a draft supplement in December 2015 that included NRC's evaluation of revised engineering project cost information for severe accident mitigation alternatives, newly-available aquatic impact information, and the Continued Storage GEIS.31 New York State agencies 29 30 3! "Generic Environmental Impact Statement for License Renewal of Nuclear Plants Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3 (NUREG-1437, Supp. 38) Final Report" (December 2010) (ADAMS Accession No. ML103350405). NUREG 1437, Supplement 38, Volume 4 (June 20, 2013) (ADAMS Accession No. ML13162A616). ' NUREG 1437, Supplement 38, Volume 5 (draft issued December 22, 2015) (ADAMS Accession No. ML15351A422). The Commission has directed the NRC Staff to supplement the evaluation of severe accident mitigation 18 and Riverkeeper provided comments on the NRC's environmental evaluation and supplements.32 NRC therefore has comprehensively evaluated and documented the environmental impacts of renewing the Indian Point licenses, including those identified in comments by New York and Riverkeeper. 3. Public Participation As required by the AEA, NRC also offered a hearing opportunity to interested parties on the license renewal application. Both New York and Riverkeeper requested a hearing on Indian Point license renewal. The NRC hearing process began in 2007 and has been ongoing since then. The NRC's Atomic Safety and Licensing Board has considered dozens of proposed contentions on safety and environmental matters, including the very matters that NYSDOS and Riverkeeper now claim necessitate state review under the CIVIP: 32 • NYS Contention 5 alleged that the Indian Point aging management plan did not provide adequate inspection and monitoring for leaks. • NYS Contentions 14 and 15 alleged that the severe . accident alternatives analysis did not include new seismic data. alternatives to address New York's contention that NRC underestimated decontamination costs associated with a hypothetical severe accident. Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), CLI-16-07 (May 4, 2016) (ADAMS Accession No. ML16125A150). See, e.g., New York State Department of Enviromnental Conservation, . "Comments on the NRC Staffs Draft [SEIS] for [Indian Point License Renewal]," dated March 18, 2009 (ADAMS Accession No. ML090780782). 19 • NYS Contention 22 alleged insufficient analysis of earthquakes because Indian Point failed to include new seismic data. • NYS Contention 27 argued that NRC should reconsider the safety of on-site storage of spent fuel. • NYS Contention 28 alleged inadequate assessment of impacts of spent fuel pool leaks on groundwater and the Hudson River. • NYS Contentions 30-32 alleged inadequate assessment of impacts of once-through cooling for heat shock, impingement and entrainment, and endangered species. • Riverkeeper Contention EC-1 alleged inadequate assessment of once-through cooling impacts, including heat shock, impingement, and entrainment, and a closed cycle cooling alternative. • Riverkeeper Contention EC-3 alleged a failure to adequately assess new and significant information on the environmental impacts of the spent fuel pool leaks on groundwater and the Hudson River. • A joint contention, NYS Contention 39 and Riverkeeper Contention EC-9, alleges inadequacies in NRC's assessment of on- site storage of nuclear waste at Indian Point. 33 While not all issues were admitted for an evidentiary hearing, they were considered and dispositioned according to NRC processes. And the NRC's Licensing Board has considered testimony from experts offered by all parties on a 33 See, e.g., Entergy Nuclear Operations, Inc~ (Indian Point Nuclear Generating Units 2 & 3), LBP-08-13, 68 l\TRC 43 (2008); Calvert Cliffs 3 Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3) CLI-14-08, 80 NRC 71, 79-80 (2014). In CLI-14-08, the Commission referred two proposed spent fuel-related contentions to the Indian Point Board for further consideration. The Board subsequently dismissed those contentions. Order (Dismissing Contentions NYS-39/RK-EC-9/CW-EC-10 and CW-SC-4) (November 10, 2014) (ADAMS Accession No. ML14314A350). 20 number of issues. The Board's first initial decision on nine admitted contentions was issued in 2014 and comprised more than 400 pages. Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), LBP-13-13, 78 NRC 246 (2013). An evidentiary hearing on an additional three admitted contentions was held in November 2015. NRC's regulatory process therefore has allowed New York and River keeper to directly pursue their concerns before the agency, making any further state review under the CMP inappropriate and unnecessary. · CONCLUSlON N1ZC has exclusive authority for licensing and regulating radiological safety at nuclear power plants. Consistent with its statutory mandate and its comprehensive regulatory framework, NRC has conducted in-depth safety and environmental reviews of Entergy's Indian Point license renewal application. NRC's inspection and oversight programs will continue during the renewed license term and will continue as long as spent fuel remains at the site. The operational concerns raised by NYSDOS and Riverkeeper have been and are being regulated by the NRC. These federal issues should not be reconsidered in a state forum. 21 Dated in Washington, D.C. this 2.-'l~day of June 2016 DC:796272.8 22 Respectfully submitted, ~~\~~ Winston & Strawn LLP 1700 K Street, NW Washington, DC 20006 (202) 282-5726 drepka@winston.com