UNITED STATES OF AMERICA 

NUCLEAR REGULATORY COMMISSION 

COMMISSIONERS: 

Stephen G. Burns, Chairman 

Kristine L. Svinicki 

William C. Ostendorff 

Jeff Baran 

 Docket Nos. 50-247-LR 

 50-286-LR 

CLI-15-6 

MEMORANDUM AND ORDER 

We have been asked to review the Atomic Safety and Licensing Board’s partial initial 

decision (and related interlocutory decisions) in this license renewal proceeding. Today’s 

decision addresses the Board’s partial initial decision and the challenged interlocutory decisions 

relating to Contention NYS-8 (Transformers) and Contention CW-EC-3A (Environmental 

Justice).1

 As discussed below, we take review of these decisions in part. We reverse the 

Board’s decision with respect to Contention NYS-8, and affirm in part, and reverse in part, its 

decision with respect to Contention CW-EC-3A. 

 

1

 LBP-13-13, 78 NRC 246 (2013). Also challenged is the Board’s order admitting the 

contentions and its denial of two motions in limine relating to Contention CW-EC-3A. See 

LBP-08-13, 68 NRC 43 (2008), Order (Granting in Part and Denying in Part Applicant’s Motions 

in Limine) (Mar. 6, 2012), at 35 (unpublished); Tr. at 1265 (Oct. 15, 2012) (bench ruling denying 

motion in limine). 

In the Matter of 

ENTERGY NUCLEAR OPERATIONS, INC. 

(Indian Point Nuclear Generating Units 2 and 3) 
- 2 - 

I. BACKGROUND 

A. Procedural History 

This proceeding involves the 2007 application of Entergy Nuclear Operations, Inc. to 

renew the operating licenses for Indian Point Nuclear Generating Units 2 and 3, located in 

Buchanan, New York. Renewed licenses would authorize each unit to operate for twenty years 

beyond the period specified in the current operating licenses.2

 Numerous petitioners sought to 

intervene in the proceeding and proposed dozens of contentions challenging the application. 

The Board determined that three petitioners—the State of New York, Riverkeeper, Inc., 

and Hudson River Sloop Clearwater, Inc. (Clearwater)—had demonstrated standing and had 

offered thirteen admissible contentions between them.3

 The issues admitted for litigation have 

evolved over the intervening years as the Staff’s review has progressed, as the Board’s partial 

initial decision describes.4

 In short, the Board has admitted updated versions of some of the 

original contentions, admitted new contentions, and approved settlements with respect to two of 

the originally admitted contentions.5

In 2012, the Board determined that the Staff’s review was complete with respect to ten of 

the pending contentions, which could, therefore, proceed to an evidentiary hearing.6 The Staff’s 

 

2

 The operating license for Unit 2 expired on September 28, 2013, and the license for Unit 3 will 

expire on December 12, 2015. Because the license renewal application was filed at least five 

years before the scheduled expiration date of the Indian Point 2 operating license, Unit 2 is in 

timely renewal; the existing license will not be deemed to have expired until the license renewal 

application has been finally determined. 10 C.F.R. § 2.109(b). 

3

 LBP-08-13, 68 NRC at 217-20. 

4 See generally LBP-13-13, 78 NRC at 546-50. 

5 Id. at 266-69.

6

 Notice of Hearing (Application for License Renewal) (June 8, 2012), at 4-6 (unpublished). See 

also Order (Ordering the NRC Staff to Address Board Questions) (June 7, 2012), at 1-3 

(continued . . .) 
- 3 - 

final supplemental environmental impact statement for the application (FSEIS) was released in 

December 2010.7 The safety evaluation report (SER) was issued in November 20098 and 

supplemented in August 2011.9

 Work on the license renewal application is ongoing; the Staff 

has determined that it will supplement these documents with respect to certain other areas.10 

The Board determined, however, that the unfinished subjects under review did not pertain to the 

ten hearing-ready contentions, which it designated the “Track 1” contentions and set for an 

evidentiary hearing. One “Track 1” contention settled prior to hearing.11

 

(unpublished) (citing NRC Staff’s Fourth Status Report in Response to the Atomic Safety and 

Licensing Board’s Order of February 16, 2012 (June 1, 2012)). 

7

 Ex. NYS00133A-J, “Generic Environmental Impact Statement for License Renewal of Nuclear 

Plants, Supplement 38 Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3,” NUREG1437, supp. 38 (Dec. 2010). 

8

 Ex. NYS00326A-F, “Safety Evaluation Report Related to the License Renewal of Indian Point 

Nuclear Generating Unit Nos. 2 and 3,” NUREG-1930 (Nov. 2009). 

9

 Ex. NYS000160, “Safety Evaluation Report Related to the License Renewal of Indian Point 

Nuclear Generating Unit Nos. 2 and 3,” NUREG-1930, supp. 1 (Aug. 2011).

10 The Staff supplemented the FSEIS in 2013. “Generic Environmental Impact Statement for 

License Renewal of Nuclear Plants, Supplement 38 Regarding Indian Point Nuclear Generating 

Unit Nos. 2 and 3,” NUREG-1437, supp. 38, vol. 4 (June 2013) (ML13162A616). The Staff 

issued a second supplement to its SER in November 2014. “Safety Evaluation Report Related 

to the License Renewal of Indian Point Nuclear Generating Unit Nos. 2 and 3, Supplement 2,” 

NUREG-1930, supp. 2 (Nov. 2014) (ML14310A803). The Staff plans to issue a further 

supplement to the FSEIS in 2015. See NRC Staff’s 36th Status Report In Response to the 

Atomic Safety and Licensing Board’s Order of February 16, 2012 (Feb. 2, 2015), at 4, 8. 

11 Consent Order (Approving Settlement of Consolidated Contention Riverkeeper EC-3 and 

Clearwater EC-1) (Oct. 17, 2012) (unpublished). The evidentiary hearing for “Track 2” 

contentions has not yet been scheduled. LBP-13-13, 78 NRC at 278-79. Additionally, other 

matters are pending. For example, in 2012, New York, Clearwater, and Riverkeeper moved for 

leave to file two new contentions based on the long-term on-site storage of nuclear waste at the 

Indian Point site. State of New York, Riverkeeper, Inc. and Hudson River Sloop Clearwater’s 

Joint Contention NYS-39/RK-EC-9/CW-EC-10 Concerning the On-Site Storage of Nuclear 

Waste at Indian Point (July 8, 2012); Hudson River Sloop Clearwater, Inc.’s Motion for Leave to 

Add a New Contention Based Upon New Information and Petition to Add New Contention (July 

9, 2012). The Board held those contentions in abeyance pursuant to our direction. Calvert 

Cliffs Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-12-16, 76 NRC 63, 

68-69 (2012); Order (Holding Contentions NYS-39/RK-EC-9/CW-EC-10 and CW-SC-4 in 

(continued . . .) 
- 4 - 

The evidentiary hearing involved enormous effort by the Board and the parties. The 

parties filed initial written statements of position, written testimony and exhibits, and rebuttal 

testimony for the Track 1 contentions between December 2011 and November 2012.12 The 

Board received, admitted, and reviewed more than one thousand exhibits amounting to tens of 

thousands of pages.13 The Board held evidentiary hearings over twelve days in October, 

November, and December 2012. 

In LBP-13-13, the Board resolved eight of the nine remaining contentions in favor of 

Entergy or the Staff. For three safety contentions—dealing with flow-accelerated corrosion, 

buried pipes, and non-environmentally qualified inaccessible cables, the Board found that 

Entergy had demonstrated that its aging management programs would adequately manage the 

effects of aging throughout the period of extended operation.14 The Board also resolved five 

environmental contentions in favor of the Staff, finding that no further action was required to 

 

Abeyance) (Aug. 9, 2012) (unpublished). Following our adoption of a revised Continued 

Storage Rule, we directed the Atomic Safety and Licensing Boards to reject “continued storage” 

contentions pending before them, with the exception of the contentions pending in this matter. 

Calvert Cliffs Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-14-8, 80 

NRC 71, 79-80 (2014). To the extent that CW-SC-4 and NYS-39/RK-EC-9/CW-EC-10 raised 

issues unresolved by the Continued Storage Rule, we directed the Board to rule on the 

admissibility of those challenges in this license renewal proceeding. Id. Those contentions 

remain pending before the Board. Order (Requesting Briefs on NYS-39/RK-EC-9/CW-EC-10 

and CW-SC-4) (Sept. 17, 2014) (unpublished). 

12 LBP-13-13, 78 NRC at 275-79. 

13 Id. at 277. 

14 See id. at 544. Specifically, the Board found that Entergy had “demonstrated that the effects 

of aging from [flow-accelerated corrosion] on the intended functions of the piping and 

components susceptible to [flow-accelerated corrosion] will be adequately managed” (id. at 310 

(Contention RK-TC-2)); that the effects of aging on buried pipes that “contain or may contain 

radioactive fluids can be adequately managed” (id. at 372 (Contention NYS-5)); and that its 

aging management program for non-environmentally qualified, inaccessible medium- and lowvoltage cables provides reasonable assurance that the harmful effects of aging will be managed 

during the period of extended operation (id. at 402-03 (Contention NYS-6/7)). 
- 5 - 

satisfy the requirements of the National Environmental Policy Act (NEPA).15 But with respect to 

one environmental contention—CW-EC-3A—the Board found that the Staff’s environmental 

justice analysis in the FSEIS was insufficient and only met the requirements of NEPA when 

supplemented by the hearing record.16 The Board resolved one safety contention, NYS-8, in 

New York’s favor. The Board agreed with New York that electrical transformers fit the definition 

of long-lived, passive components important to safety for which Entergy must have an adequate 

aging management program in place.17

As noted above, our decision today only addresses appeals of Board decisions related 

to Contentions NYS-8 and CW-EC-3A.18 Specifically, Entergy and the NRC Staff both seek 

review of (1) the Board’s ruling on NYS-8, and (2) the Board’s underlying rationale (although not 

its ultimate conclusion) on CW-EC-3A.19 Entergy also challenges the Board’s admission of the 

 

15 National Environmental Policy Act of 1969, 42 U.S.C. § 4321 et. seq. The Board found that 

the Staff had taken the requisite “hard look” at the effects of license renewal on the property 

values of the surrounding area (LBP-13-13, 78 NRC at 504-05 (Contention NYS-17B)), and had 

adequately addressed public comments concerning the no-action alternative (id. at 521 

(Contention NYS-37)). The Board found that Entergy’s population estimates used in its severe 

accident mitigation alternatives (SAMA) analysis, which the Staff later incorporated into the 

FSEIS, were reasonable (id. at 489 (Contention NYS-16B)). Finally, the Board also found that 

Entergy’s estimate of decontamination and cleanup costs associated with a severe accident, 

also incorporated into the FSEIS, was sufficiently site-specific and reasonable under NEPA (id.

at 474 (Contention NYS-12C)). The Board’s decision with respect to Contention 12C currently 

is before us on appeal (discussed infra note 18). 

16 LBP-13-13, 78 NRC at 542-44. 

17 See id. at 448-49. 

18 New York has appealed the Board’s ruling with respect to Contention 12C. See State of New 

York Petition for Review of Atomic Safety and Licensing Board Decision LBP-13-13 with 

Respect to Consolidated Contention NYS-12C (Feb. 14, 2014). The Staff and Entergy also 

have appealed an earlier interlocutory Board ruling resolving a second SAMA contention 

(NYS-35/36) in New York’s favor. See LBP-11-17, 74 NRC 11 (2011). We have asked for 

further briefing with respect to Contentions NYS-12C and NYS-35/36. See CLI-15-2 (Feb. 18, 

2015) (slip op.); CLI-15-3 (Feb. 18, 2015) (slip op.). We will address these appeals separately.

19 NRC Staff’s Petition for Review of LBP-13-13 in Part (Contentions NYS-8 and CW-EC-3A), 

and LBP-11-17 (Contention NYS 35/36) (Feb. 14, 2014) (Staff Petition); Applicant’s Petition for 

(continued . . .) 
- 6 - 

two contentions and the Board’s decisions on motions in limine related to CW-EC-3A.20 For its 

part, Clearwater seeks review of the Board’s ultimate conclusion on Contention CW-EC-3A. 

Clearwater argues that the record of decision is not sufficient to allow the NRC to make an 

informed decision on license renewal and that the NRC should supplement the FSEIS.21 New 

York also filed an answer in support of Clearwater’s appeal.22

 

Review of Board Decisions Regarding Contentions NYS-8 (Electrical Transformers), CW-EC-3A 

(Environmental Justice), and NYS-35/36 (SAMA Cost Estimates) (Feb. 14, 2014) (Entergy 

Petition). See also State of New York’s Answer to Entergy and Staff Petitions for Review of 

Atomic Safety and Licensing Board Decisions LBP-08-13 and LBP-13-13 with Respect to 

Contention NYS-8 and for Interlocutory Review of LBP-10-13 and LBP-11-17 with Respect to 

Contention 35/36 (Mar. 25, 2014) (New York Answer); Hudson River Sloop Clearwater, Inc.’s 

Combined Answer in Opposition to the Applicant’s Petition for Review and the NRC Staff’s 

Petition for Review of Board Decision Regarding Contention CW-EC-3A (Mar. 26, 2014) 

(Clearwater Answer). Clearwater filed an unopposed motion for a short extension of time to file 

its combined answer, which we grant. See Hudson River Sloop Clearwater Inc.’s Unopposed 

Motion for 3 Minute Extension of Time to File Combined Answer Brief (Mar. 26, 2014). See 

generally NRC Staff’s Reply to Hudson River Sloop Clearwater Inc.’s Answer in Opposition to 

the NRC Staff’s Petition for Review of LBP-13-13 (Contention CW-EC-3A) (Apr. 9, 2014) (Staff 

Reply to Clearwater); NRC Staff’s Reply to State of New York’s Answer in Opposition to Staff 

Petition for Review of LBP-13-13 and LBP-11-17 (Apr. 9, 2014) (Staff Reply to New York); 

Entergy’s Reply to New York State Answer to Entergy and Staff Petitions for Review Regarding 

Contentions NYS-8 and NYS-35/36 (Apr. 9, 2014) (Entergy Reply to New York); Entergy Reply 

to Clearwater Answer to Entergy and Staff Petitions for Review Regarding Contention 

CW-EC-3A (Apr. 9, 2014) (Entergy Reply to Clearwater). 

20 Entergy Petition at 9-12, 33-34. 

21 Hudson River Sloop Clearwater, Inc. Petition for Review (Feb. 14, 2014) (Clearwater 

Petition); see NRC Staff’s Answer in Opposition to Hudson River Sloop Clearwater, Inc.’s 

Petition for Review of LBP-13-13, Regarding Contention CW-EC-3A (Environmental Justice)

(Mar. 25, 2014) (Staff Answer to Clearwater); Applicant’s Answer Opposing Hudson River Sloop 

Clearwater, Inc. Petition for Review of Board Decision Regarding Contention CW-EC-3A 

(Environmental Justice) (Mar. 25, 2014) (Entergy Answer to Clearwater); Hudson River Sloop 

Clearwater, Inc. Combined Reply to Answers of Applicant and NRC Staff to Clearwater, Inc.’s 

Petition for Review of LBP-13-13, Regarding Contention CW-EC-3A (Environmental Justice)

(Apr. 7, 2014) (Clearwater Reply). 

22 State of New York Answer in Support of Hudson River Sloop Clearwater Inc.’s Petition for 

Review of the Atomic Safety and Licensing Board Decision LBP-13-13 with Respect to 

Contention CW-EC-3A (Mar. 11, 2014) (New York CW-EC-3A Answer); see also NRC Staff’s 

Reply to State of New York’s Answer in Opposition to Staff Petition for Review of LBP-13-13

(Contention CW-EC-3A) (Mar. 21, 2014) (Staff Reply to New York on CW-EC-3A); Entergy’s 

(continued . . .) 
- 7 - 

B. License Renewal Process

1. Safety Review 

The goal of the NRC’s license renewal safety review is to ensure that the licensee can 

successfully manage the detrimental effects of aging. As the Board explained in its partial initial 

decision, the license renewal regulations in 10 C.F.R. Part 54 focus on whether the licensee can 

manage the effects of aging on certain long-lived, passive components that are important to 

safety.23 The license renewal review is not intended to duplicate the NRC’s ongoing oversight 

of operating reactors.24

Part 54 requires applicants to demonstrate that they have programs in place that will 

effectively manage the effects of aging during the period of extended operation. Each applicant 

for a renewed license must first identify all structures, systems, and components (SSCs) that 

serve a function relating directly or indirectly to safety, as defined by 10 C.F.R. § 54.4.25 These 

SSCs are all “within the scope” of license renewal. The applicant then performs an integrated 

plant assessment to identify those structures and components that are subject to aging 

management review.26

 

Reply to New York State Answer Supporting Clearwater’s Petition for Review of LBP-13-13

(Mar. 21, 2014) (Entergy Reply to New York on CW-EC-3A). 

23 See LBP-13-13, 78 NRC at 279-84. 

24 Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), 

CLI-01-17, 54 NRC 3, 8-10 (2001). 

25 The safety significance of an SSC is defined in the regulation in terms of its safety related 

functions, and within the scope of license renewal are included those SSCs whose failure could 

prevent satisfactory accomplishment of the safety-related function. 10 C.F.R. § 54.4. 

26 Id. § 54.21(a). The License Renewal Rule focuses on individual structures and components, 

rather than on the “system” level. 
- 8 - 

Structures and components are subject to aging management review if they perform an 

intended function “without moving parts or without a change in configuration or properties”27 and 

are not subject to routine replacement.28 These structures and components are generally 

referred to as “passive” components, although the terms “active” and “passive,” do not appear in 

the license renewal regulations. Rather, the Statements of Consideration for the 1995 License 

Renewal Rule used these terms to delineate between those components that require aging 

management review and those that do not.29 The Board used the terms in this manner, as do 

we. “Active” components are excluded from aging management review on the basis of existing 

regulatory requirements for maintenance and monitoring of SSCs, including the Maintenance 

Rule.30

The license renewal applicant must demonstrate that the effects of aging will be 

managed for each passive, long-lived structure or component identified in the integrated plant 

assessment, such that the component will perform its intended function throughout the period of 

extended operation.31 The license renewal application includes descriptions of the license 

 

27 Id. § 54.21(a)(1)(i). 

28 Id. § 54.21(a)(1)(ii).

29 Ex. NYS000016, Nuclear Power Plant License Renewal; Revisions; Final Rule, 60 Fed. Reg. 

22,461, 22,464, 22,471-72, 22,476-78 (May 8, 1995) (1995 Statements of Consideration). 

30 Id., 60 Fed. Reg. at 22,471-72. See generally 10 C.F.R. § 50.65 (Requirements for 

monitoring the effectiveness of maintenance at nuclear power plants). “The maintenance rule 

requires that power reactor licensees monitor the performance or condition of systems, 

structures, and components against licensee-established goals in a manner sufficient to provide 

reasonable assurance that these systems, structures, and components are capable of fulfilling 

their intended functions.” Ex. NYS000016, 1995 Statements of Consideration, 60 Fed. Reg. at 

22,470. 

31 10 C.F.R. § 54.21(a)(3) (An integrated plant assessment must demonstrate that the effects of 

aging for each structure and component will be “managed so that the intended function(s) will 

be maintained consistent with the [current licensing basis] for the period of extended 

operation”). 
- 9 - 

renewal applicant’s aging management programs for these components. An NRC guidance 

document, the Generic Aging Lessons Learned Report (GALL Report), describes aging 

management programs that the Staff has found to be adequate.32 The GALL Report and the 

Standard Review Plan for License Renewal (SRP-LR)33 are the principal documents guiding the 

Staff’s safety review of a license renewal application.34

In its partial initial decision, the Board found that Entergy’s aging management programs 

with respect to flow-accelerated corrosion, certain inaccessible underground cables, and buried 

pipes all complied with the GALL Report.35 But because the Staff has traditionally considered 

transformers to be “active” components, the GALL Report does not include an aging 

management program for transformers. As a result, although Entergy has programs and 

procedures in place for monitoring and maintaining transformers, including those safety-related 

 

32 Exs. NYS00147A-NYS00147D, “Generic Aging Lessons Learned Report,” NUREG-1801 

(Rev. 2 Dec. 2010). According to the GALL Report, an effective aging management program 

includes certain elements: the specific structures and components, preventive actions, and 

parameters monitored or inspected are clearly defined; detection of aging effects occurs prior to 

loss of function; monitoring and trending predicts the extent of aging to allow timely mitigative 

actions; acceptance criteria ensure that the component’s intended function is maintained; timely 

corrective actions; a confirmation process is in place to ensure that preventive actions are 

adequate and corrective actions are completed and effective; administrative controls provide a 

formal review and approval process; and due consideration is given to operating experience. 

This provides objective evidence that aging will be adequately managed. See Ex. NYS00147A, 

GALL Report, at 6. For each component requiring an aging management program, an applicant 

can either show that its program conforms to the GALL Report, or it can show that its own 

program will nonetheless effectively manage the effects of aging throughout the period of 

extended operation. 

33 Ex. NYS000195, “Standard Review Plan for Review of License Renewal Applications for 

Nuclear Power Plants,” NUREG-1800 (Rev. 2 Dec. 2010). 

34 Part 54 also requires applicants to reassess any time-limited aging analyses—analyses that 

considered the effects of aging on a component based on the original license term of 40 years— 

to show either that the analyses will remain valid throughout the period of extended operation or 

that the effects of aging on the subject component will be managed during that time period. 

10 C.F.R. §§ 54.3, 54.21(c). 

35 See LBP-13-13, 78 NRC at 310 (flow-accelerated corrosion), 372 (buried pipes), 402 (nonenvironmentally qualified inaccessible medium- and low- voltage cables). 
- 10 - 

transformers that are within the scope of license renewal, those programs have not been 

reviewed by the Staff as part of its review of the license renewal application. 

2. Environmental Review 

The decision to renew the operating license of an existing nuclear power plant is a 

“major federal action” under NEPA. Assessing the environmental impacts of extended 

operation involves consideration of the impacts of continued operation and any impacts 

associated with refurbishment activities during the period of extended operation.36

In the 1990s, the NRC determined that many of the environmental effects associated 

with renewing the licenses of existing facilities can be effectively assessed generically.37 The 

environmental effects of existing plants are well understood from operating experience, and the 

future effects of continued operation are reasonably predictable.38 Changes in the environment 

around nuclear power plants tend to be gradual, and such changes are expected to be within 

the range of operating experience.39 Therefore, in 1996, the NRC developed a generic 

environmental impact statement for license renewal, which contains generic findings applicable 

to all nuclear power plants.40

In the GEIS, the NRC assessed the significance of environmental impacts associated 

with particular issues. For each issue, the NRC made a determination whether the GEIS 

 

36 See Ex. NYS00131A, “Generic Environmental Impact Statement for License Renewal of 

Nuclear Plants,” NUREG-1437 (May 1996), § 1.5, at 1-3 (GEIS). The complete GEIS is 

included in the record as Exs. NYS00131A-I. 

37 See generally Exs. NYS00131A-I, GEIS.

38 Id. § 1.5, at 1-1. 

39 Id. 

40 Exs. NYS00131A-I, GEIS. The GEIS was revised in June 2013 “Generic Environmental 

Impact Statement for License Renewal of Nuclear Plants,” NUREG-1437 Rev. 1 (June 2013) 

(ML13106A241) (GEIS Rev. 1). The revision was finalized after the evidentiary hearing and is 

therefore not part of the record of this proceeding. 
- 11 - 

analysis could be applied to all plants and whether additional plant-specific mitigation measures 

would be warranted.41 The GEIS designated as “Category 1” issues those for which the Staff’s 

analysis demonstrated the following: 

(1) The environmental impacts associated with the issue have been determined 

to apply either to all plants or, for some issues, to plants having a specific 

type of cooling system or other specified plant or site characteristics; 

(2) A single significance level (i.e., small moderate, or large) has been assigned 

to the impacts (except for collective off-site radiological impacts from the fuel 

cycle and from high-level waste and spent fuel); and 

(3) Mitigation of adverse impacts associated with the issue has been considered 

in the analysis and it has been determined that additional plant-specific 

mitigation measures are likely not to be sufficiently beneficial to warrant 

implementation.42

Issues not fitting all of the above criteria are classified as “Category 2” issues, for which a sitespecific impacts analysis is required. The findings of the NRC’s review are summarized and 

codified in our regulations in 10 C.F.R. Part 51, Subpart A, Appendix B. Because the generic 

environmental analysis is incorporated into our regulations, Category 1 generic findings may not 

be challenged in individual license proceedings unless accompanied by a petition for rule 

waiver.43 The environmental portion of a license renewal application, the applicant’s 

environmental report, may adopt the generic findings of the GEIS, but must also include sitespecific analyses of Category 2 issues.44 The Staff uses the applicant’s environmental report as 

 

41 See Ex. NYS00131A, GEIS, Executive Summary at xxxv; see also 10 C.F.R. Part 51, subpt. 

A, app. B, Table B-1. 

42 Ex. NYS00131A, GEIS, § 1.5, at 1-5. 

43 See 10 C.F.R. § 2.335; see also, e.g., Entergy Nuclear Vermont Yankee, LLC (Vermont 

Yankee Nuclear Power Station), CLI-07-3, 65 NRC 13, 17-18 (2007) (Vermont Yankee/Pilgrim); 

Turkey Point, CLI-01-17, 54 NRC at 21-23. The GEIS also includes a process by which the 

NRC can seek to waive the application of the rule if a commenter on a draft supplemental EIS 

provides new, site-specific information demonstrating that the analysis of an impact codified in 

the rule is incorrect with respect to the particular plant. Ex. NYS00131A, GEIS, § 1.7, at 1-11. 

44 10 C.F.R. § 51.53(c).
- 12 - 

a starting point for its own environmental review of the application, the results of which are 

published as a supplement to the GEIS.45

C. Standard of Review 

We defer to the Board’s factual findings unless they are clearly erroneous. We generally 

step in only to correct factual findings “not even plausible in light of the record reviewed in its 

entirety”—for example, where it appears that the Board has overlooked or misunderstood 

important evidence.46 In contrast, with respect to legal issues, we review the Board’s rulings de 

novo and will reverse a Board’s legal rulings if they are contrary to established law.47

II. DISCUSSION 

A. NYS-8: Transformers 

We find that the issue involved in Contention NYS-8 raises substantial and important 

questions of law and material fact, and therefore merits our review.48 The Board’s ruling on 

NYS-8 turned on whether transformers are “active” components, as the Staff has traditionally 

considered them, or “passive” components, as New York claimed and the Board ultimately 

concluded. We are convinced that transformers function by changing their properties, and are 

therefore properly considered active components. We find that the Board misinterpreted the 

regulation’s exclusion from aging management review of components that function solely 

through a change in properties with no moving parts. In addition, the Board misinterpreted 

language in the Statements of Consideration for the 1995 License Renewal Rule that relates to 

 

45 Id. § 51.95(c). 

46 See, e.g., Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-06-15, 63 NRC 

687, 697 (2006); Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), 

CLI-05-19, 62 NRC 403, 411 (2005). 

47 Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont 

Yankee Nuclear Power Station), CLI-10-17, 72 NRC 1, 11, 35 (2010). 

48 10 C.F.R. § 2.341(b)(4)(i), (iii). 
- 13 - 

the ability to monitor an active component. As a result the Board created an erroneous legal 

test for determining whether a component is active, which in turn led to an implausible finding of 

fact relating to the same issue. We therefore find that the Board erred in its factual and legal 

determinations that transformers are passive components that require aging management 

review at the time of license renewal. 

1. Maintenance of “Active” and “Passive” Components

As explained above, a license renewal application must demonstrate, among other 

things, that the licensee will adequately manage the effects of aging on passive, long-lived 

components so that their intended functions will be maintained consistent with the current 

licensing basis for the period of extended operation.49 The regulation requires aging 

management review for those components that function “without moving parts and without a 

change in configuration or properties,” and includes a non-exhaustive list of components that 

either do or do not fit this description.50 The 1995 Statements of Consideration cautioned, 

however, that “industry concepts of ‘passive’ . . . do not accurately describe the structures and 

components that should be subject to aging management review for license renewal.”51

NRC regulations require that all structures and components that are important to safety 

be maintained to manage the effects of aging. But most systems, structures, and components 

are adequately maintained under existing programs as required by the Maintenance Rule, 

10 C.F.R. § 50.65, and other NRC regulations.52 The 1995 Statements of Consideration 

 

49 10 C.F.R. § 54.21(a)(3). 

50 Id. § 54.21(a)(1)(i). 

51 See Ex. NYS000016, 1995 Statements of Consideration, 60 Fed. Reg. at 22,477.

52 10 C.F.R. § 50.65(b). The Maintenance Rule requires monitoring or preventive maintenance 

for SSCs that are safety-related or are relied upon to mitigate accidents or transients, are used 

in the facility’s emergency operating procedures, or the failure of which could cause a reactor 

scram or prevent the safety-related SSCs from performing a safety-related function. See Ex. 

(continued . . .) 
- 14 - 

discussed the relationship between the License Renewal Rule and the Maintenance Rule.53 

The 1995 Statements of Consideration explained that, while the Maintenance Rule applies to 

passive components as well as active ones, passive components would likely receive “minimal 

preventive maintenance or monitoring to maintain [their] functionality” under that rule.54 The 

License Renewal Rule generically excludes active components from aging management review 

because “[f]unctional degradation resulting from the effects of aging on active functions is more 

readily determinable, and existing programs and requirements are expected to directly detect 

the effects of aging.”55 As the Staff explained in its hearing testimony, “[t]he Maintenance Rule, 

along with existing monitoring, surveillance, inspection and testing programs, serves the 

purpose for electrical transformers that an [aging management program] would serve for a 

passive component.”56\ 

2. Transformer Description and Operation 

We provide a brief description of how a transformer functions to lay the groundwork for 

the controversy over whether the component is active or passive. A transformer is an electrical 

device that either converts alternating current at a certain voltage level to alternating current at a 

 

ENT000101, Final Rule, Monitoring the Effectiveness of Maintenance at Nuclear Power Plants, 

56 Fed. Reg. 31,306 (July 10, 1991) (Maintenance Rule Statements of Consideration); Ex. 

ENT000102, Final Rule, Monitoring the Effectiveness of Maintenance at Nuclear Power Plants, 

58 Fed. Reg. 33,993 (June 23, 1993). 

53 Ex. NYS000016, 1995 Statements of Consideration, 60 Fed. Reg. at 22,462, 22,465, 22,469-

72. 

54 Id., 60 Fed. Reg. at 22,470.

55 Id. at 22,472. 

56 Ex. NRC000031, NRC Staff’s Testimony of Roy Mathew and Sheila Ray Concerning 

Contention NYS-8 (Transformers) (Mar. 22, 2012), at 20 (NRC Staff NYS-8 Testimony). 
- 15 - 

different level or that provides isolation to electrical circuits.57 The Board explained that a 

transformer is formed by winding two coils of wire around an iron core, which effects a 

conversion between electricity and magnetic energy: 

The coil or winding used to input power to the transformer is called 

the primary winding. The coil or winding used to output power 

from the transformer is called the secondary winding. The 

alternating current in the primary coil produces a magnetic field in 

the iron core that constantly varies in magnitude over time and 

induces a voltage in the secondary winding. Although there is a 

slight loss of power, the magnetic field is contained in the iron core 

and impacts the secondary coil. The voltages and currents at 

output terminals of the transformer are in close relationship to the 

ratio of the turns of wire that exist in the primary and secondary 

transformer windings.58 

The parties recognize that some transformers, specifically station auxiliary transformers and the 

Unit 3 gas turbine auto-start transformer, perform license renewal intended functions and are 

therefore within the scope of license renewal.59

3. The Board’s Ruling 

The Board based its decision on three lines of reasoning. First, it looked at how a 

transformer performs its intended function to determine whether it undergoes “a change in 

configuration or properties” within the meaning of 10 C.F.R. § 54.21(a)(1)(i).60 Second, because 

the 1995 Statements of Consideration distinguished between active and passive components 

largely on the ability to monitor the performance and condition of active components, the Board 

 

57 LBP-13-13, 78 NRC at 407 (quoting Ex. ENTR00091, Testimony of Applicant Witnesses 

Roger Rucker, Steven Dobbs, John Craig, and Thomas McCaffrey Regarding Contention 

NYS-8 (Electrical Transformers) (Mar. 28, 2012), at 26-27 (Entergy NYS-8 Testimony)). 

58 Id. (internal citations and quotation marks omitted). 

59 Ex. ENTR00091, Entergy NYS-8 Testimony, at 98; Ex. NRC000031, NRC Staff NYS-8 

Testimony, at 11, 17; Ex. NYSR00003, Prefiled Written Testimony of Dr. Robert C. Degeneff 

Regarding Contention NYS-8 (Dec. 9, 2012), at 4 (New York NYS-8 Testimony); LBP-13-13, 78 

NRC at 408 & n.1127. 

60 LBP-13-13, 78 NRC at 412-19. 
- 16 - 

considered whether transformers are “readily monitorable” to predict and prevent failure.61 

Third, the Board compared transformers with other types of components listed in 10 C.F.R. 

§ 54.21(a)(1)(i) as specifically falling into one category or the other, including electrical cables 

(expressly subject to aging management review) and transistors and batteries (expressly 

excluded from aging management review).62 The Board found that all three considerations 

favored the interpretation that transformers are passive components subject to aging 

management review. Because Entergy’s transformers have not undergone such review, the 

Board held that Entergy has not demonstrated that it will adequately manage the effects of 

aging on these components during the period of extended operation as required by 10 C.F.R. 

§ 54.21(a)(1).63

4. Admissibility of Contention NYS-8 

We consider briefly the question of contention admissibility. Entergy argues that the 

Board should not have admitted Contention NYS-8 in the first instance because New York 

provided insufficient factual support for its claim.64 We typically defer to a Board’s judgment on 

issues of whether a contention had adequate factual support to raise a genuine dispute. As we 

recently reiterated, we afford substantial deference to a licensing board’s decision to admit a 

contention.65

 

61 Id. at 419-32. 

62 Id. at 432-47. 

63 Id. at 449. 

64 Entergy Petition at 9-13. The Staff did not contest the admission of this contention in its 

petition for review. 

65 Crow Butte Resources, Inc. (Marsland Expansion Area), CLI-14-2, 79 NRC 11, 26 (2014). 
- 17 - 

In its original intervention petition, New York supported its contention with the declaration 

of Paul Blanch, an electrical engineer with 25 years’ experience.66 Among the assertions in his 

declaration, Mr. Blanch stated that he had reviewed Entergy’s license renewal application, cited 

directly to the application, and observed that several transformers at Indian Point perform 

functions as described in 10 C.F.R. § 54.4.67 He further stated that transformers function 

without moving parts or without a change in configuration or properties.68 Finally, he asserted 

that failure to properly manage aging of transformers could result in loss of emergency power to 

safety equipment, and that the application included no aging management program for 

transformers.69 With this support, New York argued that transformers are important to safety 

and cited specific portions of the application in support of its assertions.70 In response to the 

proposed contention, Entergy and the Staff both argued that the applicable guidance documents 

considered transformers to be active components.71 The Board admitted the contention, 

 

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

(New York Petition to Intervene); Declaration of Paul Blanch (Nov. 8, 2007), at 5-6 (enclosed in 

New York State Notice of Intention to Participate and Petition to Intervene and Supporting 

Declarations and Exhibits, Volume I of II (Nov. 30, 2007)) (Blanch Declaration). 

67 Blanch Declaration at 5-6. 

68 Id. at 5. 

69 Id. at 5-6. 

70 New York Petition to Intervene at 105 (citing Indian Point 2 Updated Final Safety Analysis 

Report (Rev. 20 2006); Indian Point 3 Updated Final Safety Analysis Report (Rev. 20 2006), 

(admitted as exhibits NYSR0013G, NYSR0014G)).

71 Answer of Entergy Nuclear Operation, Inc. Opposing New York State Notice of Intention to 

Participate and Petition to Intervene (Jan. 22, 2008), at 69-73 (Entergy Board Answer); NRC 

Staff’s Response to Petitions for Leave to Intervene Filed by (1) Connecticut Attorney General 

Richard Blumenthal, (2) Connecticut Residents Opposed to Relicensing of Indian Point, and 

Nancy Burton, (3) Hudson River Sloop Clearwater, Inc., (4) the State of New York, (5) 

Riverkeeper, Inc., (6) the Town of Cortlandt, and (7) Westchester County (Jan. 22, 2008), at 45 

(NRC Staff Board Answer). 
- 18 - 

reasoning that the relevant guidance documents were not legally binding and finding that New 

York had established a genuine dispute over the proper classification of transformers.72

Entergy’s argument on appeal rests largely on our 2012 decision in the Seabrook license 

renewal proceeding, where we found a similar contention “too thinly supported” to be 

admissible.73 The petitioner in the Seabrook proceeding appeared to have copied, largely 

without change, the arguments and expert testimony that New York had used to support NYS-8 

in this proceeding.74 As a result, the contention we rejected in Seabrook was nearly identical to 

the one litigated here. Entergy’s appeal reasons that if the contention in Seabrook was 

inadmissible, the nearly identical NYS-8 must also have been inadmissible here. 

In relying on Seabrook, Entergy essentially faults the Board for not ruling as we did four 

years later after considering different arguments and a different record. Despite the similarities, 

the record we had before us in Seabrook differed substantially from the record the Board had 

before it in 2008. The Seabrook petitioner neither offered information specific to Seabrook 

Station nor challenged the Seabrook license renewal application.75 In contrast, New York’s 

contention and expert declaration specifically challenged portions of the Indian Point license 

renewal application. 

New York provided application-specific support for the factual assertions in its contention 

sufficient to satisfy our contention admissibility requirements. Entergy argues that the expert 

opinion accompanying New York’s intervention petition did not adequately counter the 

longstanding Staff position on transformers, but this is a merits determination. In ruling on the 

 

72 LBP-08-13, 68 NRC at 88-89. 

73 See NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 315-

22 (2012). 

74 See id. at 318-19 & n.108. 

75 See id. 
- 19 - 

contention’s admissibility, the Board weighed the arguments and support before it at the time. 

Given that record, the Board’s decision was not unreasonable. We therefore defer to the 

Board’s judgment in admitting NYS-8. 

5. The Board Erred in Concluding that Transformers 

Are “Passive” Components under the License Renewal Rule 

a. Relevant Guidance Designates Transformers as “Active”

As an initial matter, the Staff and Entergy point out that all relevant license renewal 

guidance that speaks to transformers considers them to be active.76 Guidance documents that 

are developed to assist in compliance with applicable regulations are, as Entergy and the Staff 

correctly observe, entitled to “special weight.”77 The Staff and Entergy argue that the Board 

dismissed the significance of the guidance documents and did not accord them the appropriate 

consideration. As discussed below, we agree. 

The Staff has considered transformers to be exempt from aging management review 

since the early days of license renewal. The Standard Review Plan identifies transformers as 

active components not requiring an aging management plan.78 The Staff’s position originated 

with a 1997 letter from the Director of the License Renewal Project Directorate (the “Grimes 

Letter”), in which the Staff concluded that transformers were not subject to aging management 

review because transformers function through a change in state and can be readily monitored: 

Transformers perform their intended function through a change in 

state by stepping down voltage from higher to a lower value, 

stepping up voltage to a higher value, or providing isolation to a 

load. Transformers perform their intended function through a 

 

76 Staff Petition at 18-19; Entergy Petition at 21-22.

77 See, e.g., Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), 

CLI-01-22, 54 NRC 255, 264 (2001); Yankee Atomic Electric Co. (Yankee Nuclear Power 

Station), CLI-05-15, 61 NRC 365, 375 n.26 (2005); Long Island Lighting Co. (Shoreham Nuclear 

Power Station, Unit 1), ALAB-900, 28 NRC 275, 290 (1988); see also Entergy Petition at 21-23. 

78 Ex. NYS000195, SRP-LR, § 2.5.3.2, at 2.1-26. 
- 20 - 

change in state similar to switchgear, power supplies, battery 

chargers, and power inverters which have been excluded in 

§ 54.21(a)(1)(i) from an aging management review. Any 

degradation of the transformer's ability to perform its intended 

function is readily monitorable by a change in the electrical 

performance of the transformer and the associated circuits. 

Trending electrical parameters measured during transformer 

surveillance and maintenance such as Doble test results, and 

advanced monitoring methods such as infrared thermography, 

and electrical circuit characterization and diagnosis provide a 

direct indication of the performance of the transformer. Therefore, 

transformers are not subject to an aging management review.79

Industry guidance on license renewal, NEI 95-10, refers to the Grimes Letter as the basis for the 

position that transformers need not be included in an integrated plant assessment.80 

Subsequently, the Staff developed Regulatory Guide 1.188 to provide guidance on the content 

of, and standard format for, a license renewal application. That guidance in turn endorsed the 

industry’s approach in NEI 95-10 “without exceptions,” reinforcing the view that transformers are 

not subject to aging management review.81

The Board considered the various documents that the Staff and Entergy provided to 

show there is a consensus that transformers are not properly subject to aging management 

review, including the Standard Review Plan, NEI 95-10, and Regulatory Guide 1.188.82 The 

Board acknowledged that the interpretation expressed therein was “not beyond the bounds of 

 

79 Ex. ENT000097, Grimes, Christopher I., NRC, letter to Douglas J. Walters, NEI, 

“Determination of Aging Management Review for Electrical Components” (Sept. 19, 1997), 

attachment at 2. 

80 Ex. ENT000098, Nuclear Energy Institute, Industry Guideline for Implementing the 

Requirements of 10 C.F.R. Part 54—The License Renewal Rule (Rev. 6 June 2005), at B-14, 

C-14 (NEI 95-10). NEI 95-10 provides methods that the Staff considers acceptable for 

complying with the requirements of 10 C.F.R. Part 54 for preparing a license renewal 

application. 

81 Ex. ENT000099, Regulatory Guide 1.188, “Standard Format and Content for Applications to 

Renew Nuclear Power Plant Operating Licenses” (Rev. 1 Sept. 2005), at 4, 7 (Regulatory Guide 

1.188). 

82 LBP-13-13, 78 NRC at 416-17. 
- 21 - 

reason.”83 But the Board concluded that these were “not independent assessments of a 

transformer’s activity, but merely a repetition of the previous position expressed in the 1997 

Grimes Letter,” which, the Board found, had “scant documentation justifying its technical 

conclusions.”84 Therefore, the Board disregarded the guidance documents and made its own 

determination, based on the evidence presented about whether transformers change their 

configuration or properties and are readily monitorable. 

To be sure, Staff guidance documents do not have the force of law and we are not 

bound to follow them.85 But we see no unusual circumstance in this proceeding that makes the 

guidance document inapplicable to Indian Point or which would justify lightly setting the 

guidance aside.86 While it is true, as the Board states, that the later guidance documents 

repeated the analysis contained in the Grimes Letter, we do not agree that repetition 

invalidated the guidance or diminished its persuasiveness. In analyzing whether various 

components should be classified as “active” or “passive,” the Grimes Letter explained that the 

Staff had compared transformers to the examples of electrical devices that were listed in the 

regulation as excluded from aging management review, including circuit breakers, relays, and 

 

83 Id. at 417. 

84 Id. 

85 International Uranium (USA) Corp. (Request for Materials License Amendment), 

CLI-00-1, 51 NRC 9, 19 (2000); Curators of the University of Missouri, CLI-95-1, 41 NRC 71, 

150 (1995). In Yankee Rowe, we also acknowledged that a standard review plan did not have 

the “force and effect of law.” CLI-05-15, 61 NRC 375 n.26. See also Shoreham, ALAB-900, 28 

NRC at 290 (guidance documents “set neither minimum nor maximum regulatory requirements,” 

although they are entitled to “special weight”). 

86 Where the guidance is not directly applicable to the issue at hand, we afford the presiding 

officer greater leeway in its application (see, e.g., Curators of the University of Missouri, CLI-95-

1, 41 NRC at 150 (guidance formulated for use in nuclear power plant licensing was not 

applicable in a materials license proceeding); Private Fuel Storage, CLI-01-22, 54 NRC at 264-

65 (where no Staff guidance was available for the particular type of facility undergoing license 

review, the Board reasonably selected standard for a facility most like the facility under review)).
- 22 - 

switches.87 The Grimes Letter pointed out that the subject electrical components are monitored 

in the same manner as the electrical components expressly excluded from aging management 

review by the regulation.88 The Grimes Letter also explained that the Staff considered “stepping 

up” and “stepping down” voltage and providing isolation to electric currents to be active 

functions.89

Although we consider all the evidence to determine whether Entergy’s and the Staff’s 

evidence so overwhelmed that of New York as to make the Board’s factual findings (and 

resulting legal conclusions) clearly erroneous, the longstanding guidance of the NRC Staff 

weighs in the Staff’s and Entergy’s favor. The Board did not provide sufficient justification to 

decline to accord it the “special weight” appropriate for Staff guidance. 

b. Transformers Function Through a Change in “Properties” 

The Staff and Entergy argue that a transformer is an “active” component because it 

undergoes a change in properties when it performs its intended function, as described in 

10 C.F.R. § 54.21(a)(1)(i).90 The Staff and Entergy explained, in their prefiled written testimony 

and during the evidentiary hearing, that a transformer changes the voltage and current of 

electricity passing through it by means of a changing magnetic flux in its core.91 They argue that 

 

87 See Ex. ENT000097, Grimes Letter, attachment at 2. In addition to transformers, the Grimes 

Letter evaluated the status of indicating lights, heat tracing systems, and electric heaters (found 

to be active); fuses (found to be passive); and recombiners (found to require plant-specific 

analysis). Id. at 1-4. 

88 Id. at 2. (“These techniques include performance or condition monitoring by testing and 

maintenance/surveillance programs that include instrument checks, functional tests, calibration 

functional tests, and response time verification tests. The results of these tests can be analyzed 

and trended to provide an indication of aging degradation for these electrical components . . .”). 

89 Id. 

90 Staff Petition at 16-17; Entergy Petition at 14-16. 

91 See, e.g., Ex. NRC000031, NRC Staff NYS-8 Testimony, at 6, 11; Ex. ENTR00091, Entergy 

NYS-8 Testimony, at 10-11, 33-36; Tr. at 4335-37 (Dobbs), 4354-55 (Ray and Mathew). 
- 23 - 

this change in magnetic flux is a change in “properties” as the regulation describes.92 For the 

reasons set forth below, we agree. 

The Board held that a transformer does not perform its intended function through a 

change in properties or state. It accepted the theory of New York’s expert, Dr. Robert Degeneff, 

that voltage, current and magnetism are all properties of the electricity that passes through a 

transformer, not of the transformer itself.93 In the Board’s view, it is the electricity, not the 

transformer, that undergoes a change in properties: 

[T]he change in magnetism does not occur in the transformer itself 

. . . but, rather, is caused by the changes in the alternating current 

flowing through the transformer. To accept Entergy’s argument 

one also would have to consider cables to be “active” devices 

because of this change in magnetism.94

The Board rejected the argument of Entergy’s expert, Dr. Steven Dobbs, that a transformer is 

“active” when it is “energized from an electrical source.”95 The Board found that by this 

reasoning, all electrical devices would be considered active when they are turned on.96 The 

Board also found compelling Dr. Degeneff’s representation that it is the prevailing view of the 

electrical engineering community that transformers are “passive.”97 The Board concluded that a 

 

92 Staff Petition at 16; Entergy Petition at 15. 

93 LBP-13-13, 78 NRC at 418; see also id. at 415 (citing Ex. NYSR00414, New York NYS-8 

Rebuttal Testimony, at 11-12; Tr. at 4343 (Degeneff)). 

94 Id. at 447. 

95 Id. at 418 (citing Ex. ENTR00091, Entergy NYS-8 Testimony, at 11). 

96 Id.

97 Id. (citing Tr. at 4442 (Degeneff)); see also Ex. NYSR00003, New York NYS-8 Testimony, at 

6, 8-9; Ex. NYSR00414, New York NYS-8 Rebuttal Testimony, at 6-8). In its prefiled testimony, 

Entergy argued that the electrical engineering community considers transformers to be, not 

“passive” components, but “static” ones. Ex. ENTR00091, Entergy NYS-8 Testimony, at 12, 52-

53. According to Dr. Dobbs, the electrical engineering community’s concept of “static” 

components also applies to transistors and battery chargers, both of which are specifically 

excluded from aging management review by 10 C.F.R. § 54.21(a)(1)(i). Id. But as noted above, 

(continued . . .) 
- 24 - 

transformer is not active because its parts are the same “prior to, during, and after being 

energized, similar to electrical cables.”98

As an initial matter, the Board’s emphasis on whether the transformers’ “parts change” 

during operation misinterprets the applicable regulation. The regulation on its face excludes 

from aging management review components that function solely through a change of properties 

with no moving parts. 

In addition, we find that the Board erred as a factual matter in finding that a transformer 

does not function through a change in properties. The evidence shows that a transformer 

performs its intended function through a change in magnetic flux, which is a property of the 

transformer. Dr. Dobbs, in his written testimony, explained that the transformer changes the 

voltage of the current entering it through a change in its magnetism: 

[T]ransformers are made with magnetic core materials, the 

magnetism of which can be changed by applying electric current 

to the primary winding. A transformer’s magnetism can be made 

to vary between very strong (full load) and very weak (no load). In 

fact a transformer is designed to change its magnetism, which 

clearly is a change in its properties and in some cases, a change 

in state from being “On” to being “Off” (or vice versa). . . . These 

changes in a transformer’s electromagnetic properties result 

directly from the transformer performing its intended function of 

supplying a load circuit with current at a specific voltage under 

varying conditions.99

Magnetic flux, when used in different applications, can result in converting electrical energy to 

mechanical force (as in a motor), in converting mechanical force into electricity (as in a 

 

the NRC explicitly stated in the 1995 Statements of Consideration that the components subject 

to aging management review under the regulation would not necessarily coincide with industry 

concepts of “passive” components. Ex. NYS000016, 1995 Statements of Consideration, 60 

Fed. Reg. at 22,477. 

98 LBP-13-13, 78 NRC at 447. 

99 Ex. ENTR00091, Entergy NYS-8 Testimony, at 35. 
- 25 - 

generator), or—as in the case of a transformer—in changing the magnitude of voltage and 

current. 

A transformer’s function is similar to other “active” electrical components listed in 

10 C.F.R. § 54.21(a)(1)(i). The Grimes Letter recognized this similarity in determining that 

“transformers perform their intended function through a change in their state similar to 

switchgear, power supplies, battery chargers and power inverters” (all of which are excluded 

from aging management review by regulation).100 For example, a battery charger uses changes 

in electrical and magnetic properties to convert alternating current power into the direct current it 

supplies to the battery being charged.101 And a power inverter uses a similar principle in 

reverse to transform direct current input to alternating current output (possibly at a different 

voltage).102 Just as with transformers, these active components work as electrical current from 

another power source passes through them, even though their internal parts may be the same 

“prior to, during and after being energized,” as the Board said of transformers.103

A comparison of transformers and transistors is especially apt. The 1995 Statements of 

Consideration used the transistor as an example of a component that functions through a 

change of “state” without movement.104 A transistor is a three-terminal device made of 

semiconductor material (usually silicon), which can change its resistivity, or state, from low 

 

100 Ex. ENT000097, Grimes Letter, attachment at 2. 

101 See Ex. NRC000031, NRC Staff NYS-8 Testimony, at 21. 

102 Ex. ENTR00091, Entergy NYS-8 Testimony, at 81-82.

103 LBP-13-13, 78 NRC at 418. 

104 Ex. NYS000016, 1995 Statements of Consideration, 60 Fed. Reg. at 22,477. The 1995 

Statements of Consideration explained that “‘a change in configuration or properties’ should be 

interpreted to include ‘a change in state’ which is a term sometimes found in the literature 

relating to ‘passive.’” Id.
- 26 - 

resistivity (in which state it is a conductor) to high (in which state it is an insulator).105 The 

change in a transistor’s resistivity is achieved by “applying external voltages to ‘bias’ the 

transistor into the desired state.”106 The change in the transistor’s state involves a change in its 

internal electrical fields, directly analogous to the change in the magnetic fields inside a 

transformer through which the transformer steps up or down the voltage and current of the 

electricity passing through it.107 Entergy explained in its prefiled testimony that “the changing 

resistivity of the transistor and the changing magnetism of the transformer are both created and 

observed at the electrical terminals of the components where the voltages and currents vary 

during operation.”108 According to Entergy’s expert, because the changing electromagnetic 

fields in each device determine the terminal voltages and currents, “the terminal voltages and 

currents also must be considered properties of both devices.”109

As another example, from the standpoint of electrical design and operating and 

functional characteristics, the transformer is akin to an induction motor. Both the induction 

motor and the electrical transformer operate on Faraday's law of electromagnetic induction.110 

 

105 Ex. ENTR00091, Entergy NYS-8 Testimony, at 73-74. 

106 Id. at 74.

107 Id. Although it did not discuss transistors specifically in its findings, the Board generally cited 

the testimony of Dr. Degeneff in finding that transformers are more similar to passive devices 

than they are to active ones. LBP-13-13, 78 NRC at 444. Dr. Degeneff testified that 

“resistance” is a property of a transistor, whereas a changing magnetic field is not a “property” of 

a transformer. Id. at 440 (citing Ex. NYSR00414, New York NYS-8 Rebuttal Testimony, at 28-

29). We disagree with that conclusion for the reasons given here. 

108 Ex. ENTR00091, Entergy NYS-8 Testimony, at 75. 

109 Id.

110 Id. at 28. See also Ex. ENT000108, Declaration of Steven E. Dobbs in Support of Entergy’s 

Motion for Summary Disposition of New York State Contention 8 (Aug. 12, 2009), at 2-7. 

Electromagnetic induction (or induction) is a process where a conductor placed in a changing 

magnetic field (or a conductor moving through a stationary magnetic field) causes the 

production of a voltage across the conductor. This process of electromagnetic induction, in turn, 

(continued . . .) 
- 27 - 

An induction motor is fundamentally a transformer in which the motor’s stator is analogous to 

the primary winding in the transformer and the rotor is analogous to the transformer’s secondary 

winding. In an electrical transformer, when voltage is applied to the primary winding, it draws 

load current and magnetizing current, which is required to magnetize the core. In a transformer, 

this magnetizing current produces flux which travels to the transformer’s secondary winding.111 

In a motor, when voltage is applied to the stator winding it produces a rotating magnetic field. 

The resulting magnetic flux induces an electromagnetic field in the rotor, similar to the 

electromagnetic field induced in the secondary winding of the transformer. The rotor turns to 

oppose the rotating stator magnetic field. Aside from the difference that the induction motor’s 

rotor turns while the transformer’s secondary winding remains stationary, the principles of 

operation are the same. Thus, induction motors can be described as rotating transformers. 

The Board’s conclusion that a transformer is no more active than a cable disregards the 

difference between the transformer’s active use of electromagnetic induction and the incidental 

magnetic flux that occurs as a side effect to the flow of electricity.112 While it is true that current 

flowing through a cable will produce some magnetic flux, the flux is a byproduct of the cable’s 

primary function. In a cable, magnetic flux actually impedes the component’s sole function of 

conducting electrical current.113 Therefore, a cable does not “function” through changing 

 

causes (or induces) an electrical current. Faraday’s law mathematically relates the rate of 

change of the magnetic field flux with induced voltage. Simply put, Faraday’s law states that a 

magnetic field of changing intensity perpendicular to a wire will induce a voltage along the 

length of that wire. The amount of voltage induced depends on the rate of change of the 

magnetic field flux and the number of turns of wire (if coiled) exposed to the change in flux. 

111 Ex. ENTR00091, Entergy NYS-8 Testimony, at 27-29. 

112 See LBP-13-13, 78 NRC at 447. 

113 See Tr. at 4398-99 (Dobbs); see also Ex. ENTR00091, Entergy NYS-8 Testimony, at 65-67. 
- 28 - 

magnetic flux.114 For this reason, we find the Board’s comparison of transformers to cables 

inapposite. The Board’s comparison disregards the fact that the change in magnetism around a 

cable is not the means through which the cable performs its function. The Board similarly does 

not acknowledge the fact that the transformer, unlike the cable, uses this flux to perform the 

active function of altering the magnitude of current and voltage of the electricity that passes 

through it. 

New York argues before us that the properties of a transformer are its “turns ratio, 

winding conductor dimensions, insulation type and thickness, core dimensions, and cooling 

capacity,” none of which change.115 But this definition would restrict a component’s “properties” 

to those characteristics that it maintains when it is “switched off.” This narrow definition of 

“properties” would exclude other components such as induction motors and generators that are 

expressly listed as active in section 54.21(a)(1)(i). We decline to adopt New York’s restrictive 

view of what constitutes a component’s properties. 

Our review of the factual record in its entirety demonstrates that the Board’s findings are 

implausible. We find that the evidence is clear that transformers function through a change in 

properties, as the Staff has traditionally viewed them. As such, they are properly considered 

active components and excluded from aging management review by the terms of 10 C.F.R. 

§ 54.21(a)(1)(i). 

c. The Board Misinterpreted the 1995 Statements of Consideration

With Respect to the Ability to Monitor Active Components 

The Board also considered whether transformers can be easily monitored for agerelated degradation, because the 1995 Statements of Consideration distinguished between 

active and passive components partly on the basis of the relative ease of monitoring active 

 

114 See Ex. ENTR00091, Entergy NYS-8 Testimony, at 67. 

115 New York Answer at 18. 
- 29 - 

components. The Board considered the methods Entergy uses to determine whether its 

transformers are currently functional, as well as its programs for maintaining and monitoring 

transformers for aging degradation. The Board concluded that transformers are not “readily 

monitorable,” and that this conclusion supported its overall finding that transformers require an 

aging management program.116

On appeal, the Staff and Entergy argue that the Board misinterpreted what the 1995 

Statements of Consideration meant by describing active components as “readily monitorable.”117 

The Staff and Entergy argue that active components are excluded from aging management 

review because their function can be directly verified (and their failure immediately detected).118

In the 1995 Statements of Consideration, the NRC stated that compared with active 

components, passive components “generally do not have performance and condition 

characteristics that are as readily monitorable.”119 The NRC explained that licensees will be 

able to verify directly that active components remain functional, and provided examples of such 

components: 

Performance and condition monitoring for systems, structures, 

and components typically involves functional verification, either 

directly or indirectly. Direct verification is practical for active 

functions such as pump flow, valve stroke time, or relay actuation 

where the parameter of concern (required function), including any 

design margins, can be directly measured or observed.120

 

116 LBP-13-13, 78 NRC at 429. 

117 Staff Petition at 16-18, 21; Entergy Petition at 16-19. 

118 See Staff Petition at 21 & n.90; Entergy Petition at 17. 

119 Ex. NYS000016, 1995 Statements of Consideration, 60 Fed. Reg. at 22,477. 

120 Id. The Maintenance Rule also requires monitoring of a component’s “performance or

condition.” 10 C.F.R. § 50.65(a)(1). The 1991 Statements of Consideration for the 

Maintenance Rule noted that monitoring “can be performance oriented (such as the monitoring 

of reliability and availability), condition-oriented (parameter trending) or both.” Ex. ENT000101, 

Maintenance Rule Statements of Consideration, 56 Fed. Reg. at 31,308. 
- 30 - 

These examples suggest that the “direct verification” to which the statement refers is verification 

that the component is currently working (although the Board did not take that view). The NRC 

provided two examples of passive functions—pressure boundary and structural integrity—that 

“are generally verified indirectly, by confirmation of physical dimensions or component physical 

condition.”121 The NRC went on to determine that exemption from aging management review 

for components that perform active functions is justified because of existing maintenance and 

monitoring programs under the Maintenance Rule.122

At the evidentiary hearing, Entergy presented evidence that it continuously monitors 

transformers to assure that they are working and performs various tests both online and offline 

to track the harmful effects of aging. Both the Staff and Entergy explained that monitoring a 

transformer’s electrical currents at the terminal will indicate degradation, through a change in 

the transformer’s electrical output.123 In addition, both Entergy and the Staff discussed the 

various tests Entergy employs to detect various aging mechanisms.124 Such tests are 

performed when the transformer is both online and offline.125 In its prefiled testimony, Entergy 

provided evidence that the transformer maintenance plan addressed every aging mechanism 

 

121 Ex. NYS000016, 1995 Statements of Consideration, 60 Fed. Reg. at 22,471. 

122 Id. at 22,471-72. 

123 See Ex. NRC000031, Staff NYS-8 Testimony, at 17, Tr. at 4410-13 (Mathew) (monitoring at 

terminals can show over-current and under-voltage), 4396-97 (Dobbs). 

124 See Ex. ENTR00091, Entergy NYS-8 Testimony, at 96-104 (citing Ex. ENT000125, “Indian 

Point Energy Center Large Power Transformer Life Cycle Management Plan” (Indian Point 

Transformer Management Plan)); see also Ex. NRC000031, Staff NYS-8 Testimony, at 15-18. 

See generally Tr. at 4264-72 (McCaffrey, Mathew, and Ray), 4275 (Ray), 4280 (McCaffrey).

125 Tests performed while the transformer is online include dissolved gas analysis, oil quality 

analysis, and furanic oil compound analysis. See Tr. at 4254 (McCaffrey). Tests performed 

offline include power factor, capacitance, hot collar, excitation current, leakage current, 

transformer turns ratio, and insulation resistance analyses. Id. at 4253-54 (McCaffrey). 
- 31 - 

that New York’s expert identified as requiring monitoring.126 New York argued, however, that 

transformers are not readily monitorable because “[a]ge related degradation will not be 

observable through changes in the operating characteristics of a transformer during its normal 

operation.”127

Looking to the 1995 Statements of Consideration for guidance, the Board first 

determined that monitoring of an active component should be able to detect functional 

degradation so that necessary maintenance and repairs can be performed prior to ultimate 

failure.128 It also found that the “ability to detect incremental functional degradation (as opposed 

to gross failure) is the important criterion for a [system, structure, or component] to be 

considered “readily monitorable.”129 Applying this interpretation to transformers, the Board 

found that transformers are not “readily monitorable” because age-related degradation would 

“not be reflected in any noticeable change to the electrical characteristics of transformer 

operations.”130 The Board found that none of the various tests Entergy performs can detect a 

transformer’s degradation by monitoring its “allegedly ‘active’ function[]”—its electrical output.131 

Although the Board acknowledged that a transformer’s performance can be “continuously” 

monitored by measuring the voltage and currents at the terminals, it found that this will only 

indicate what the Board termed “gross failure,” that is, whether the transformer is performing its 

intended function or not.132

 

126 Ex. ENTR00091, Entergy NYS-8 Testimony, at 102-04. 

127 Ex. NYSR00003, New York NYS-8 Testimony, at 29. 

128 LBP-13-13, 78 NRC at 420. 

129 Id. at 421. 

130 Id. at 429. 

131 Id. at 430. 

132 Id. (citing Ex. NYSR00414, New York NYS-8 Rebuttal Testimony, at 36-39). 
- 32 - 

The Board therefore concluded that the inability to track incremental degradation of a 

transformer solely through monitoring its performance weighed toward subjecting the 

transformer to aging management review.133 The Board’s findings effectively created a 

standard by which a component is not “readily monitorable” unless it can be monitored for 

incremental degradation, through flagging performance, which is measured online and signals 

impending failure so that repairs can be made or replacement performed prior to component 

failure. 

We conclude that the Board erred in effectively formulating a test for active components 

that conflated the idea of “direct verification” of performance with the need for performance and 

condition monitoring. The portion of the 1995 Statements of Consideration that the Board cited 

for the idea that monitoring must detect incremental degradation related to the general purpose 

of maintenance, not to the distinction between active and passive components.134 While the 

Board is correct that managing the effects of aging requires the ability to detect degradation 

prior to component failure, the License Renewal Rule does not require that “direct verification” of 

a component’s active function indicate incremental degradation. The Board thus took an 

unnecessarily narrow view of the term “readily monitorable” to distinguish between active and 

passive components. Such a test is inconsistent with the agency’s intent to exclude active 

components from aging management review under the License Renewal Rule. 

Consideration of other components that are specifically excluded from aging 

management review confirms the view that the essential distinction between active and passive 

components is the ability to verify functionality directly, not incrementally. For example, 

transistors and circuit boards cannot be monitored for incremental degradation through 

 

133 Id. at 432. 

134 Id. at 419-20 (citing Ex. NYS000016, 1995 Statements of Consideration, 60 Fed. Reg. at 

22,469). 
- 33 - 

“performance monitoring,” yet both are classed as “active” components.135 Active electrical 

components are monitored by their output performance—in other words, their “terminal 

characteristics.”136 Moreover, electrical components such as circuit breakers, relays, and 

switches (each is listed as component excluded from aging management review in 10 C.F.R. 

§ 54.21(a)(1)(i)), and transformers are all monitored in a similar way.137 This evidence supports 

the Staff’s interpretation that components whose function can be confirmed directly—such as 

transformers—are appropriately classed as “active” components. We conclude that the Board 

created a standard for distinguishing between active and passive components that is not 

consistent with our regulations, and which therefore constitutes an error of law.138

On appeal, New York additionally argues that “the purpose of the license renewal rule is 

not merely to detect functionality or performance, but instead, to detect aging (i.e., functional) 

degradation.”139 While we agree with New York on this point, it is equally true that the purpose 

of both the License Renewal Rule and the Maintenance Rule (as well as other requirements 

related to maintenance) is to counter the effects of aging so that a component’s intended 

function is maintained. In this vein, we are persuaded that transformers are monitored for 

 

135 Ex. ENTR00091, Entergy NYS-8 Testimony, at 100. 

136 Tr. at 4396-97 (Dobbs). 

137 Ex. NRC000031, NRC Staff NYS-8 Testimony, at 12-13. Tests for these components 

include “instrument checks functional tests, calibration tests, and response time verification,” 

which are trended and analyzed for indications of component degradation. Id. 

138 Entergy also challenges the Board’s third line of reasoning, which compared transformers to 

the components specifically listed in 10 C.F.R. § 54.21(a)(1)(i) as either requiring aging 

management review or not. Entergy Petition at 19-21. See LBP-13-13, 78 NRC at 444-47. 

Given its findings with respect to whether transformers change properties and are “readily 

monitorable,” the Board’s finding that transformers are more like the listed passive components 

than they are like listed active components was, perhaps, a foregone conclusion. In view of our 

findings with respect to the same matters, we need not address the validity of the Board’s 

comparisons. 

139 New York Answer at 22. 
- 34 - 

indications of aging degradation by a variety of means. In sum, we find that the Board erred in 

its formulation and application of the concept of ready monitorability. 

d. Conclusion 

For the reasons set forth above, we hold that the Board’s findings of fact with respect to 

transformers are not plausible in light of the record viewed as a whole. Entergy and the NRC 

Staff have presented convincing arguments that transformers appropriately are classified as 

active components. Therefore, any purported deficiencies in the Indian Point Transformer 

Management Plan are addressed under Part 50 and as part of the Staff’s ongoing oversight 

activities, rather than in the context of license renewal.140 We reverse the Board’s merits 

decision in LBP-13-13 with respect to Contention NYS-8. We conclude that aging management 

review is not needed to ensure that transformers are appropriately monitored and maintained 

during the period of extended operation. 

B. CW-EC-3A: Environmental Justice 

1. Background 

Clearwater’s Contention CW-EC-3A, as originally submitted, argued that the Staff’s 

environmental justice analysis in the FSEIS failed to recognize that a severe accident at Indian 

Point would have potentially greater impacts to certain disadvantaged populations surrounding 

the facility. Clearwater questioned the effectiveness of Entergy’s emergency planning for Indian 

Point to meet the particular needs of people who, according to Clearwater, are less able to 

evacuate or effectively shelter in place relative to the general population. In LBP-13-13, the 

Board agreed with Clearwater that the difference in ability to evacuate in an emergency could 

 

140 The Indian Point Transformer Management Plan (and related inspection, maintenance and 

monitoring procedures) are not before us today, and we do not review their adequacy. This 

program is subject to the inspection and enforcement tools that are applied as part of routine 

plant operations. As always, any member of the public may seek enforcement action 

associated with matters affecting plant operation, including the vitality of component 

maintenance programs, pursuant to 10 C.F.R. § 2.206. 
- 35 - 

cause a “disproportionate and adverse” effect on low-income and minority populations, but it 

found that the hearing record itself served to supplement the environmental justice discussion in 

the FSEIS.141 The Board therefore ruled in favor of the Staff in finding that no further 

supplementation of the FSEIS was needed. Parties on both sides of the issue now seek our 

review. 

The NRC Staff and Entergy seek partial review of the Board’s ruling on the ground that 

the contention itself—even though ultimately resolved in the Staff’s favor—raised issues that are 

outside the scope of license renewal and, in part, already determined generically.142 Both the 

Staff and Entergy ask us to set aside the underlying rationale that the “impacts” of emergency 

response actions must be considered in a license renewal environmental analysis.143 Entergy 

further argues that the Board’s factual finding of a disproportionate effect was not supported.144 

In addition, Entergy claims that the Board erred both in admitting the contention and in denying 

motions in limine filed by both itself and the Staff.145 The Staff and Entergy ask that the 

erroneous rulings be set aside so that future boards will not be persuaded by what they see as 

this Board’s flawed reasoning.146

Clearwater appeals the Board’s ruling that the FSEIS, as supplemented by the 

adjudicatory record, contained a sufficient environmental justice analysis.147 Clearwater argues 

that the evidence adduced at hearing only touched on specific examples of how various minority 

 

141 LBP-13-13, 78 NRC at 521-44. 

142 See Staff Petition at 24-41; Entergy Petition at 24-43. 

143 Staff Petition at 31-41; Entergy Petition at 37-39. 

144 Entergy Petition at 41-42. 

145 Id. at 33-37. 

146 Staff Petition at 25; Entergy Petition at 31. 

147 See generally Clearwater Petition. 
- 36 - 

and low-income populations could be disproportionately and adversely affected by renewal of 

the Indian Point operating licenses. It asks us to remand the FSEIS to the Staff for a “detailed 

examination, discussion, and analysis” of these effects, including potential “mitigation 

measures” and recirculation for further public comment.148 New York submitted an answer 

supporting Clearwater’s petition for review.149

We find that all three petitions for review raise substantial questions of law and 

procedure, and therefore we grant review.150 We affirm the Board’s decision as to CW-EC-3A in 

part and reverse it in part. Although this contention ultimately was resolved in the Staff’s favor, 

we will take review as a matter of discretion because the Board’s ruling raises substantial 

questions of precedential importance.151 Here, the Board’s ruling, if left to stand, reasonably 

would be expected to have a significant impact on future license renewal proceedings, both by 

widening the scope of inquiry to encompass emergency planning issues, and by restricting the 

Staff’s ability to rely on the GEIS. 

For the reasons discussed below, we reverse the Board’s ruling insofar as it required the 

Staff’s environmental justice analysis to discuss emergency planning measures and to revisit 

impacts analyses already determined in the GEIS. But we affirm the Board’s underlying 

procedural ruling that a hearing record and Board decision may, as a general matter, 

 

148 Id. at 4. 

149 New York CW-EC-3A Answer. See 10 C.F.R. § 2.341(b)(3) (any other party to the 

proceeding may file an answer “supporting or opposing” Commission review). 

150 10 C.F.R. § 2.341(a)(4)(iii), (iv).

151 See Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3, and 

4), ALAB-577, 11 NRC 18, 23-25 (1980), modified, CLI-80-12, 11 NRC 514 (1980); see also 

Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), ALAB-252, 

8 AEC 1175, 1177-78 (1975) (holding that a party may seek reconsideration of an earlier ruling 

whereby the party was not actually prejudiced, where the ruling “could well have an impact upon 

the course of many licensing hearings”). 
- 37 - 

supplement an environmental impact statement as well as its conclusion that this record needed 

no further supplementation. 

a. Environmental Justice and CW-EC-3A 

The term “environmental justice” refers to the federal policy established in 1994 by 

Executive Order 12898, which directed federal agencies to identify and address 

“disproportionately high and adverse human health or environmental effects of its programs, 

policies, and activities on minority and low-income populations.”152 Executive Order 12898 did 

not, in itself, create new substantive authority for federal agencies; therefore, the NRC 

determined at the time that it would endeavor to carry out these environmental justice principles 

as part of the agency’s responsibilities under NEPA.153 In a 2004 policy statement on 

environmental justice matters, we reiterated our commitment to consider, in NEPA reviews, 

factors “peculiar” to minority and low-income populations (environmental justice populations) 

and to “identify significant impacts, if any, that will fall disproportionately on minority and lowincome communities” due to these factors.154 The NRC Staff developed its own guidance, using 

the Council on Environmental Quality’s guidelines for implementing environmental justice as a 

reference.155 As particularly relevant here, the Staff’s guidance governing its environmental 

 

152 Ex. ENT000259, “Federal Actions to Address Environmental Justice in Minority Populations 

and Low-income Populations,” Exec. Order No. 12898, 59 Fed. Reg. 7629 (Feb. 16, 1994) (E.O. 

12898). 

153 See Selin, Ivan, NRC Chairman, letter to President Clinton (Mar. 31, 1994) (ML033210526). 

See generally Ex. ENT000260, Policy Statement on the Treatment of Environmental Justice 

Matters in NRC Regulatory and Licensing Actions, 69 Fed. Reg. 52,040, 52,040-41 (Aug. 24, 

2004) (Environmental Justice Policy Statement). 

154 Ex. ENT000260, Environmental Justice Policy Statement, 69 Fed. Reg. at 52,048. 

155 Ex. ENT000261, NRR, Procedural Guidance for Preparing Environmental Assessments and 

Considering Environmental Issues, app. D (Rev. 1) (May 24, 2004) (NRR Procedural 

Guidance); see also Ex. ENT000266, Council on Environmental Quality, Environmental Justice 

Guidance Under the National Environmental Policy Act (Dec. 10, 1997) (CEQ Guidance). 
- 38 - 

review of license renewal applications sets forth its procedures for identifying and analyzing 

environmental justice issues.156

At the outset of the proceeding, Clearwater proposed several bases for its environmental 

justice contention, but the Board accepted only the argument relating to emergency evacuation 

in the event of a severe accident at Indian Point.157 The Board rejected the Staff’s and 

Entergy’s arguments that the contention impermissibly challenged “emergency planning.”158 

While the Board acknowledged that emergency planning is not a license renewal issue with 

respect to safety contentions under Part 54 regulations, it reasoned that Part 51 environmental 

contentions may be broader in scope.159 The Board therefore admitted the narrowed contention 

as CW-EC-3 (Clearwater Environmental Contention 3) and later admitted an amended version 

of the contention, addressing the Staff’s analysis in the FSEIS, which it designated CW-EC-3A: 

Entergy’s environmental report and the Final Supplemental 

Environmental Impact Statement contain seriously flawed 

environmental justice analyses that do not adequately assess the 

impacts of relicensing Indian Point on the minority, low-income 

and disabled populations in the area surrounding Indian Point.160

 

156 Ex. ENT000261, NRR Procedural Guidance, app. D. 

157 LBP-08-13, 68 NRC at 196-201. The Board rejected as factually unsupported Clearwater’s 

arguments relating to a claimed disproportionate rate of cancers in the area and subsistence 

fishing. Id. at 200. Clearwater does not appeal the Board’s contention admissibility 

determination. 

158 NRC Board Answer at 98; Answer of Entergy Nuclear Operations, Inc. Opposing Hudson 

River Sloop Clearwater Inc.'s Petition to Intervene and Request for Hearing (Jan. 22, 2008), at 

63-64. 

159 LBP-08-13, 68 NRC at 201. 

160 Order (Ruling on Pending Motions for Leave to File New and Amended Contentions) (July 6, 

2011), at 52-60, 72 (unpublished). 
- 39 - 

At the same time, the Board rejected additional proposed amendments to the contention on 

grounds of timeliness and materiality.161

b. FSEIS Environmental Justice Analysis 

Environmental justice is a “Category 2” issue that must be considered in each license 

renewal review.162 In accordance with its guidance, the Staff’s environmental justice review for 

license renewal consists of: (1) identifying the locations of environmental justice populations that 

may be affected by the license renewal, (2) determining whether there would be any potential 

human health or environmental effects to these populations, and (3) determining if any such 

effects may be disproportionately high and adverse when compared with effects on the general 

population.163 Applying these standards, the Staff found no disproportionately high and adverse 

impacts to minority and low-income populations from the continued operation of Indian Point 

Units 2 and 3 during the license renewal period. 

The FSEIS addresses environmental justice primarily in Chapter 4, “Environmental 

Impacts of Operation.”164 Chapter 4 first describes the methods the Staff used to identify 

 

161 Id. at 56-60. Clearwater does not challenge this ruling. 

162 10 C.F.R. Part 51, subpt. A, app. B, Table B-1. 

163 See Staff Petition at 30 (citing Ex. NRC000063, NRC Staff Testimony of Jeffrey J. Rikhoff 

and Patricia A. Milligan Regarding Contention CW-EC-3A (Environmental Justice) (Mar. 30, 

2012), at 11-12 (Staff Environmental Justice Testimony); see also Ex. ENT000261, NRR 

Procedural Guidance, at D-3 to D-11. 

164 Ex. NYS00133B, FSEIS, § 4.4.6. Environmental justice is also discussed in Chapter 8, 

“Environmental Impacts of Alternatives to License Renewal,” with respect to the alternatives of 

renewing the Indian Point licenses with a closed cycle cooling system and of not renewing the 

licenses (which assumes that replacement power would be needed). The Staff did not find that 

any disproportionately high and adverse impacts to minority and low-income populations were 

likely to occur with the alternatives analyzed in Chapter 8. See Ex. NYS00133C, FSEIS, 

§ 8.1.1, at 8-18; § 8.2, at 8-26; § 8.3.1, at 8-36 to 8-37; see also id., Tables 8-1, 8-2, 8-3, 9-1. 
- 40 - 

minority and low-income populations that may be affected by the proposed license renewal.165 

Chapter 4 then documents the Staff’s examination of potential human health or environmental 

effects on these populations to determine if these effects could be disproportionately high and 

adverse. Among the effects considered are socioeconomic impacts to minority and low-income 

populations, such as to employment and to the tax base. The Staff concluded that employment 

levels and tax revenue would not change during the license renewal term, resulting in no 

additional socioeconomic impact to minority and low-income populations during the period of 

extended operation beyond what is currently being experienced.166

Chapter 4 of the FSEIS then discusses the potential radiological impacts to the 

environmental justice population, both from continuing normal operations and from potential 

accidents during the period of extended operation. The Staff concluded that severe accidents 

would cause no “disproportionately high” effects on the environmental justice population, 

because the probability-weighted consequences of such an accident are low for all populations, 

or, in FSEIS terms, they have a “small” impact: 

Potential impacts to minority and low-income populations would 

mostly consist of radiological effects; however radiation doses 

from continued operations associated with license renewal are 

expected to continue at current levels, and would remain within 

regulatory limits. Chapter 5 discusses the environmental impacts 

from postulated accidents that might occur during the license 

renewal term, which include both design basis and severe 

accidents. In both cases, the Commission has generically 

determined that impacts associated with such accidents are 

SMALL because nuclear plants are designed and operated to 

successfully withstand design basis accidents, and the probability 

weighted impacts risks associated with severe accidents [are] also 

SMALL.167

 

165 Ex. NYS00133B, FSEIS, § 4.4.6, at 4-49 to 4-53. Clearwater does not challenge the Staff’s 

identification of minority and low-income populations on appeal. 

166 Id., § 4.4.6, at 4-53. 

167 Id. Design basis accidents are accidents the calculated probability of which is considered 

sufficiently high that the facility must be designed to withstand them without undue hazard to 

(continued . . .) 
- 41 - 

Therefore, the Staff concluded that continuing operations would have minimal radiological 

impact to minority and low-income populations. 

Chapter 5 of the FSEIS relies on Chapter 5 of the GEIS, which explains how the Staff 

arrived at the determination that the “probability-weighted consequences” of postulated 

accidents during the period of extended operation are small.168 As relevant here, the GEIS 

estimated the future risks associated with extending the licenses of existing reactors for an 

additional twenty years. The GEIS examined the severe accident consequence analyses from 

twenty-eight nuclear sites (comprising the forty then-most-recently licensed operating units) to 

extrapolate the accident consequences for all plants.169 The GEIS identified severe accident 

consequences as a Category 1 issue and found that the probability-weighted impacts of such 

accidents are small for all plants.170 As a general matter, GEIS Chapter 5 reflects the 

Commission’s generic determination that the impacts from postulated accidents that might occur 

during the period of extended operation are small, because nuclear plants are designed and 

operated to successfully withstand design basis accidents and the probability of severe 

accidents is so low. Chapter 5 of the FSEIS therefore relies on the GEIS’s generic finding that 

the probability-weighted consequences of severe accidents are “small.”171

 

public health and safety. Severe accidents are those which could cause substantial damage but 

which are deemed so unlikely that the overall risk from them is small. See Ex. NYS00131C, 

GEIS, § 5.2.1. 

168 See Ex. NYS00131C, GEIS, ch. 5. 

169 Ex. NYS00131C, GEIS, § 5.3.3. A summary of the methodology used is given in § 5.3.3.2.1, 

at 5-19. 

170 See id., § 5.5 at 5-114 to 5-115. The GEIS separately analyzed impacts from atmospheric 

releases, fallout to open bodies of water, and groundwater contamination. 

171 Ex. NYS00133B, FSEIS, § 5.1, at 5-3 to 5-4. 
- 42 - 

Consistent with Executive Order 12898, the Staff also examined special pathways of 

exposure that could lead to a higher level of radiation exposure in minority and low-income 

populations in the area “including subsistence consumption of fish, native vegetation, surface 

waters, sediments, and local produce.”172 Because Indian Point’s radiological environmental 

monitoring program showed that routine operations have had “no significant or measurable 

radiological impact on the environment,” the Staff concluded that “no disproportionately high and 

adverse human health impacts would be expected in special pathway receptor populations.”173

c. The Evidentiary Hearing and the Board’s Decision 

Before the Licensing Board, Clearwater’s case turned on its claim that the emergency 

preparedness plans for Indian Point would not provide equivalent protection for all segments of 

the population surrounding Indian Point.174 Clearwater offered written and oral testimony of 

several witnesses who addressed subjects including the obstacles to evacuating prisons, 

hospitals, nursing homes, and other institutions.175 Clearwater argued that certain populations, 

 

172 Id., § 4.4.6, at 4-54; see also Ex. ENT000259, E.O. 12898, 59 Fed. Reg. at 7631-32. 

173 See Ex. NYS00133B, FSEIS, § 4.4.6, at 4-56. Entergy’s radiological monitoring program is 

discussed in more detail at Ex. NYS00133A, FSEIS § 2.2.7. 

174 See generally Ex. CLER00002, Initial Statement of Position for Clearwater’s Contention EC3A Regarding Environmental Justice (Dec. 22, 2011), at 19-32 (Clearwater Position Statement). 

Clearwater addressed some groups—incarcerated persons, children, the elderly and the 

disabled—who are not considered environmental justice populations per se. Executive Order 

12898 specifically directs agencies only to consider special impacts to “minority and low-income 

populations.” Clearwater provided evidence for its assertion that there is overlap among 

incarcerated persons, children, the elderly, and the disabled and environmental justice 

populations. See, e.g., Ex. CLE000003, Testimony of Dr. Michael Edelstein in Support of 

Hudson River Sloop Clearwater, Inc.’s Contention Regarding Environmental Justice (Dec. 22, 

2011), at 2 (Edelstein Testimony) (89% of Sing Sing Correctional Facility population is minority); 

Ex. CLE000010, Initial Prefiled Written Testimony of Manna Jo Greene Regarding Clearwater’s 

Environmental Justice Contention EC-3A (Dec. 22, 2011), at 6-7, 14 (Greene Testimony) (Head 

Start day care centers and nursing homes largely serve low-income populations).

175 See Ex. CLE000003 (Edelstein Testimony) (impacts on prisoners); Ex. CLE000004, 

Testimony of Anthony Papa in Support of Hudson River Sloop Clearwater, Inc.’s Contention 

Regarding Environmental Justice (EC-3A) (Oct. 11, 2011) (Papa Testimony) (impacts on 

(continued . . .) 
- 43 - 

such as hospital patients and nursing home residents, would not be able to evacuate and would 

therefore have to “shelter in place,” which Clearwater argued is a less desirable alternative to 

evacuation.176 Clearwater also argued that there would not be adequate public transportation to 

evacuate low-income or disabled people who do not own their own vehicles.177 In addition, it 

claimed that language barriers would prevent some minority populations from understanding 

emergency instructions.178

The Board rejected efforts by both the NRC Staff and Entergy to exclude emergency 

planning issues from the hearing at the contention admissibility stage and throughout the 

proceeding. In response to Clearwater’s prefiled testimony and exhibits, Entergy filed a motion 

in limine challenging all or portions of several Clearwater submissions.179 The Board denied the 

 

prisoners); Ex. CLE000005, Initial Prefiled Written Testimony of Erik A. Larsen, MD, FACEP 

Regarding Clearwater’s Environmental Justice Contention EC-3A (Dec. 22, 2011) (care of 

ambulatory and non-ambulatory patients under evacuation conditions); Ex. CLE000010, Greene 

Testimony (emergency planning issues associated with day care centers, nursing homes, 

hospitals, homeless shelters, and jails); Tr. at 2799-801 (Dr. Edelstein on prison conditions), 

2803-06 (Mr. Papa on conditions associated with evacuation at the Sing Sing Correctional 

Facility). 

176 Ex. CLER00002, Clearwater Position Statement, at 2, 24, 26; see Ex. CLE000006, 

Testimony of John Simms in Support of Hudson River Sloop Clearwater, Inc.’s Contention 

Regarding Environmental Justice (Oct. 11, 2011) (assisted living facility resident’s perspective 

on obstacles to evacuation or sheltering in place); Ex. CLE000009, Initial Prefiled Written 

Testimony of Stephen Filler Regarding Clearwater’s Environmental Justice Contention EC-3A

(Dec. 22, 2011) (attorney’s analysis of the emergency plans of Westchester County, Rockland 

County, and New York State concerning provisions for sheltering non-ambulatory populations in 

place). 

177 Ex. CLER00002, Clearwater Position Statement, at 2, 27-28, 29-31. See also Ex. 

CLE000007, Initial Prefiled Written Testimony of Aaron Mair Regarding Clearwater’s 

Environmental Justice Contention (Dec. 22, 2011), at 8-9. 

178 Ex. CLER00002, Clearwater Position Statement, at 28, 32; Ex. CLE000008, Initial Prefiled 

Written Testimony of Dolores Guardado Regarding Clearwater’s Environmental Justice 

Contention EC-3A (Dec. 22, 2011) (impacts to Hispanic community). 

179 Specifically, Entergy sought to exclude: (1) portions of the testimony of Dr. Edelstein, Mr. 

Mair, and Mr. Filler; (2) all of the testimony of Ms. Greene, Dr. Larson, Mr. Papa, Mr. Simms, 

and Ms. Guardado; and (3) eleven other exhibits in their entirety, to which these witnesses had 

(continued . . .) 
- 44 - 

motion in its entirety, finding that it was “capable of distinguishing between disparaging 

comments against Indian Point’s emergency plans and Clearwater’s witnesses’ descriptions of 

how certain [environmental justice] populations will be adversely harmed by a severe accident 

compared to the general population.”180 The Board later denied, from the bench and without 

explanation, motions in limine by both Entergy and the Staff with respect to Clearwater’s rebuttal 

testimony.181

At the evidentiary hearing, the Board first questioned the Staff’s methodology for 

identifying minority and low-income populations.182 The Board then questioned the Staff and 

Entergy’s witnesses about emergency planning, such as thresholds for evacuation and the 

provisions made for various populations.183 Clearwater presented testimony from nine 

witnesses concerning factors that Clearwater believes would interfere with either timely 

evacuation or effective sheltering in place.184

In its partial initial decision, the Board held that the Staff’s FSEIS failed to take a “hard 

look” at the question whether renewing the Indian Point operating licenses would have 

 

referred in the challenged testimony. See Entergy’s Motion in Limine to Exclude Portions of 

Prefiled Testimony and Exhibits for Contention CW-EC-3A (Environmental Justice) (Jan. 30, 

2012), at 7-24. 

180 See Order (Granting in Part and Denying in Part Applicant’s Motions in Limine) (Mar. 6, 

2012), at 35 (unpublished). 

181 See Tr. at 1265 (Oct. 15, 2012); Entergy’s Motion in Limine to Exclude Portions of 

Clearwater’s Rebuttal Filings on Contention CW-EC-3A (Environmental Justice) (July 30, 2012) 

(seeking to eliminate challenges to the emergency plans, discussions of non-environmental 

justice populations, and new arguments concerning evacuations necessitated by terrorist 

attacks on Indian Point); NRC Staff’s Motion in Limine to Exclude Portions of Prefiled Rebuttal 

Testimony and Rebuttal Exhibits Regarding Contention CW-EC-3A (Environmental Justice)

(July 30, 2012) (seeking to eliminate challenges to the emergency plans, discussions of nonenvironmental justice populations, and testimony not responsive to prior testimony). 

182 See Tr. at 2735-57. 

183 Id. at 2758-83. 

184 Id. at 2783-866. 
- 45 - 

“disproportionate and adverse” impacts on the minority and low-income populations when 

compared to the impacts on the non-environmental justice population. The Board found that 

“while the risk to both the environmental justice and non-environmental justice population is 

small, the higher risk to environmental justice populations should be discussed.”185

The Board found that the Staff had failed to follow its own internal procedure for 

determining if the proposed action would have disproportionately high and adverse effects on 

environmental justice populations and, as a consequence, that the Staff’s environmental justice 

analysis fell short in two respects.186 First, the Board held that the Staff incorrectly compared 

the effects on the environmental justice populations during the period of extended operation to 

the effects on the same population from current operations. The Board found that the correct 

comparison is, rather, whether environmental justice populations would suffer “disproportionate 

and adverse effects” during the period of extended operations in comparison to the general 

population.187 Second, the Board found that the FSEIS should analyze whether certain 

members of the public might not be able to evacuate as quickly, or shelter-in-place as 

effectively, as the general population.188 The Board reasoned that “this type of total population 

analysis without a specific [environmental justice] population analysis defeats the purpose of 

[environmental justice] analyses under NEPA.”189

Despite finding these shortcomings in the Staff’s analysis, the Board rejected 

Clearwater’s argument that the FSEIS should be remanded to the Staff for further discussion 

 

185 See LBP-13-13, 78 NRC at 543. 

186 LBP-13-13, 78 NRC at 543; see also id. at 540 (citing Ex. ENT000261, NRR Procedural 

Guidance). 

187 Id. at 541. 

188 Id. at 540-41. 

189 Id. at 541. 
- 46 - 

and analysis of mitigation measures. Relying on our 1998 decision in Louisiana Energy 

Services,

190 the Board held that the FSEIS was supplemented by its decision as well as by the 

hearing record.191 Specifically, the Board held that the testimony of Clearwater’s witnesses 

“sufficiently illustrated the potentially disproportionate and adverse impacts on the 

environmental justice population surrounding Indian Point in the event of a severe accident.”192 

Therefore, the Board ultimately ruled in the Staff’s favor, holding that the “record now contains 

evidence of informed public participation and adequate analysis to foster informed 

decisionmaking” and that the NRC had therefore met its burden under NEPA.193

2. The Staff’s and Entergy’s Petitions for Review 

Although the Staff’s and Entergy’s petitions do not align in all respects, they agree in 

their principal objection to the Board’s ruling: that the Board’s decision impermissibly expands 

the scope of license renewal to consider questions of emergency planning and “impermissibly 

alter[s] the generic conclusions regarding the environmental effect of license renewal.”194 Both 

also argue that, while the Board correctly resolved Contention CW-EC-3A in favor of the Staff, it 

 

190 Louisiana Energy Services, L.P. (Claiborne Enrichment Center), CLI-98-3, 47 NRC 77, 89 

(1998). 

191 LBP-13-13, 78 NRC at 542-43; see also id. at 543 n.2107 (“the Commission and the public 

have been presented with the relevant [environmental justice] facts so that an informed decision 

can be made”). See 10 C.F.R. §§ 52.102, 52.103 (the decision of the Board or Commission 

becomes the record of decision, which may also incorporate the final environmental impact 

statement); see also Nuclear Innovation North America LLC (South Texas Project, Units 3 and 

4), CLI-11-6, 74 NRC 203, 208-09 (2011); Pacific Gas and Electric Co. (Diablo Canyon Power 

Plant Independent Spent Fuel Storage Installation), CLI-08-26, 68 NRC 509, 526 (2008), 

petition for review denied on other grounds, San Luis Obispo Mothers for Peace v. NRC, 635 

F.3d 1109 (9th Cir. 2011); Hydro Resources, Inc. (P.O. Box 15910, Rio Rancho, NM 87174), 

CLI-01-4, 53 NRC 31, 53 (2001). 

192 LBP-13-13, 78 NRC at 543. 

193 Id. at 543-44. 

194 Staff Petition at 24-29; Entergy Petition at 27-36. 
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employed an incorrect rationale. Entergy and the Staff ask us to find that the discussion of 

environmental impacts to “environmental justice populations” in the FSEIS satisfied the NRC’s 

obligations under NEPA. We therefore discuss these two appeals together. We find, for the 

reasons discussed below, that the contention was legally flawed and raised issues outside the 

scope of license renewal. 

a. The Board Erred in Allowing Collateral Attacks on Indian Point Emergency Plans 

The Staff and Entergy both argue that the Board’s ruling should be reversed because 

emergency planning is a safety issue that is appropriately addressed as part of a facility’s 

current licensing basis. The adequacy of emergency planning is evaluated by the Commission 

on an ongoing basis as part of its oversight of operating reactors under 10 C.F.R. Part 50. 

Entergy and the Staff argue that emergency planning therefore falls outside the scope of this 

license renewal proceeding. We agree. As discussed below, we hold that the Board erred in 

requiring the Staff to reevaluate emergency preparedness in the context of a license renewal 

NEPA analysis. And although the Board has considerable discretion in the conduct of the 

evidentiary hearing, we find that its denial of the motions in limine in this instance resulted in a 

hearing beyond the scope of license renewal and constituted procedural error. 

The NRC expressly considered whether to include a review of emergency planning 

considerations when it promulgated the License Renewal Rule. In the 1991 Statements of 

Consideration for the first License Renewal Rule, the Commission explained that the licensee 

must maintain an emergency plan, review it annually through an independent reviewer, and 

conduct periodic exercises to measure the plan’s effectiveness.195 The Indian Point emergency 

plans, like those of any facility, are subject to ongoing regulatory oversight and periodic 

assessment. For example, the offsite emergency plans are reviewed biennially by the NRC and 

 

195 Ex. ENT000270, 1991 Statements of Consideration, 56 Fed. Reg. at 64,966-67; see 

10 C.F.R. § 50.54(q) (emergency planning requirements). 
- 48 - 

the Federal Emergency Management Agency (FEMA) in a comprehensive emergency 

preparedness exercise.196 In response to public comment on the subject, the Commission 

determined that these periodic reviews and exercises ensure that the plans will be “adequate 

throughout the life of any plant even in the face of changing demographics and other site-related 

factors.”197 For these reasons, the Commission amended its emergency planning regulation to 

provide specifically that “[n]o finding under this section is necessary for issuance of a renewed 

nuclear power reactor operating license.”198

Because emergency planning is addressed as part of ongoing plant oversight and is 

appropriately outside the scope of license renewal, the license renewal environmental review 

may not serve as a “back door” to litigating the effectiveness of site emergency plans. In the 

recently revised GEIS, the NRC reconsidered the emergency planning issue in response to 

public comments and reconfirmed that “there is no need for a special review of emergency 

planning issues in the context of an environmental review for license renewal” because 

emergency planning is reviewed and updated throughout the life of an operating plant: 

[T]he programs for emergency preparedness at nuclear power 

facilities apply to all nuclear power facility licensees and require 

the specified levels of protection from each licensee regardless of 

plant design, construction, or license date. Requirements related 

to emergency planning . . . will continue to apply to facilities with 

renewed licenses. Through its standards and required exercises, 

the Commission reviews existing emergency preparedness plans 

throughout the life of any facility keeping up with changing 

demographics and other site-related factors.199

 

196 See 10 C.F.R. § 50.47(a)(2); 10 C.F.R. Part 50, Appendix E, § IV.F.2. 

197 Ex. ENT000270, 1991 Statements of Consideration, 56 Fed. Reg. at 64,966. 

198 10 C.F.R. § 50.47(a)(1)(i). 

199 GEIS (Rev. 1), § 1.7.3, at 1-14 to 1-15; § 1.9, at 1-31. 
- 49 - 

In making this determination, the Commission again referenced the 1991 Statements of 

Consideration for the original License Renewal Rule to reaffirm that emergency planning is not a 

license renewal issue.200

Emergency plans are approved by the NRC and FEMA and are updated on an ongoing 

basis.201 Carrying out the offsite emergency plans is primarily the responsibility of the counties 

surrounding the plant, with the support of the States in which the counties are located. As 

explained below, emergency plans include provisions to address the very concerns that 

Clearwater raised in its contention. 

In contrast to this ongoing review, the FSEIS is a “‘snapshot’ in time” of expected 

environmental consequences.202 Although an environmental impact statement should discuss 

reasonably foreseeable environmental impacts associated with a proposed action, as well as 

measures to mitigate such impacts, it is not the appropriate vehicle to address the evolving 

circumstances that are inherent in emergency preparedness, such as changing demographics 

and changing offsite infrastructure. Rather, it is appropriate for the Staff to assume for purposes 

of its NEPA analysis that an effective emergency plan will be in place throughout the life of the 

plant. We find that the Board erred in admitting and litigating a contention that constituted an 

impermissible collateral attack on emergency preparedness plans, which are outside the scope 

of this proceeding. 

 

 

200 Id.; see also Ex. ENT000270, 1991 Statements of Consideration, 56 Fed. Reg. at 64,966. 

201 See 10 C.F.R. § 50.47; see also Ex. NRC000063, Staff Environmental Justice Testimony, at 

8, 23, 24-25. 

202 Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 and 4), 

CLI-12-7, 75 NRC 379, 391-92 (2012). 
- 50 - 

b. The Board Erred in Allowing a Collateral Attack on the 

GEIS Category 1 Finding Associated With Severe Accident Consequences 

In LBP-13-13, the Board found that the Staff’s environmental justice analysis improperly 

failed to assess the “disproportionate and adverse” impacts to “environmental justice 

populations” that might result from actions taken in response to a severe accident.203 In making 

this ruling, the Board in effect improperly allowed Clearwater to challenge the GEIS’s generic 

finding regarding severe accident consequences.204 Although environmental justice, as stated 

above, is a Category 2 issue that must be addressed in individual license renewal proceedings, 

the environmental impact of severe accidents has been assessed generically through 

rulemaking and may not be revisited in individual licensing actions. As reflected in the GEIS, 

and codified in 10 C.F.R. Part 51, Table B-1, the probability-weighted environmental 

consequences of severe accidents are small.205 The FSEIS specifically relied on this generic 

determination in the GEIS.206

The Board found that the Staff improperly used the FSEIS finding regarding the 

environmental consequences of severe accidents to “exempt itself” from evaluating the potential 

“disproportionate and adverse” effects of a severe accident on the environmental justice 

 

203 LBP-13-13, 78 NRC at 539; see also id. at 540, 541, 542. 

204 See 10 C.F.R. § 2.335. The Supreme Court has approved our use of rulemaking to address 

generic issues. See Balt. Gas & Elec. Co. v. Natural Res. Def. Council, Inc., 462 U.S. 87, 98 

(1983). Where special circumstances make a generic rule inapplicable to a particular 

proceeding, a participant may petition for a rule waiver or exception. See 10 C.F.R. 

§ 2.335(b); Vermont Yankee/Pilgrim, CLI-07-3, 65 NRC at 20 (“In theory, Commission approval 

of a waiver could allow a contention on a Category 1 issue to proceed where special 

circumstances exist.”). Clearwater did not seek a waiver, nor do we find that Clearwater 

provided sufficient information to call into question the generic determination regarding severe 

accident consequences as it relates to Indian Point. 

205 Ex. NYS00131C, GEIS, § 5.5, at 5-114 to 5-115. 

206 Ex. NYS00133A, FSEIS, § 4.4.6. 
- 51 - 

population.207 The Board cited the U.S. Court of Appeals for the District of Columbia Circuit in 

New York v. NRC for the proposition that only if the probability of a severe accident is so small 

as to be effectively zero could the Staff “‘dispense with the consequences portion of the 

analysis.’”208

As an initial matter, the Board’s repeated reference to a finding of “disproportionate and 

adverse” impacts misstates the provisions of Executive Order 12898: the Executive Order 

directs agencies to examine “disproportionately high and adverse” impacts to environmental 

justice populations.209 Although the Board briefly acknowledged the GEIS’s generic 

determination that the probability-weighted impacts of a severe accident are small, the 

remainder of its ruling assumes the magnitude of this impact determination is irrelevant. By the 

terms of the Executive Order, magnitude is relevant. In addition, Council on Environmental 

Quality guidance on environmental justice provides that in determining whether health effects 

are “disproportionately high and adverse,” agencies should consider whether the risks are 

“significant (as employed by NEPA) or above generally accepted norms.”210 As discussed 

further in section e below, estimated doses to all populations in the event of a severe accident 

are expected to be within regulatory limits, that is, within generally accepted norms.211

 

207 LBP-13-13, 78 NRC at 542; see also id. at 387 (“[W]hile the risk to both the [environmental 

justice] and [non-environmental justice] population is small, the higher risk to the [environmental 

justice] population should be discussed in an adequate [environmental justice] analysis.”). 

208 New York, 681 F.3d 471, 482 (D.C. Cir. 2012). The court made this statement in the context 

of its decision to vacate the agency’s 2010 Waste Confidence Decision and Temporary Storage 

Rule. As relevant here, the court found fault with the NRC’s analysis of spent fuel fires, arguing 

that the NRC improperly failed to assess the consequences of such fires. 

209 Ex. ENT000259, E.O. 12898, 59 Fed. Reg. at 7629 (emphasis added). 

210 Ex. ENT000266, CEQ Guidance, at 26. 

211 Ex. NRC000063, Staff Environmental Justice Testimony, at 12. 
- 52 - 

Moreover, the Board’s reliance on the court’s holding in New York v. NRC is misplaced. 

The court in New York stated that an agency conducting a NEPA analysis “must examine both 

the probability of a given harm occurring and the consequences of that harm if it does occur.”212 

In the license renewal GEIS, the Staff did not “dispense with the consequences portion of the 

analysis.” Rather, the Staff assessed the severe accident consequences for a large number of 

licensed facilities in reaching its determination and came to the conclusion that the probabilityweighted consequences of a severe accident are small for all plants.213 In performing the 

environmental justice assessment for Indian Point, the Staff reasonably relied on its generic 

analysis, which took consequences into account.214

We find that the Staff reasonably relied on its findings in the GEIS that the probabilityweighted consequences of a severe accident are small for all populations. As the Staff 

observes, the GEIS evaluation took into account emergency response effectiveness and 

warning time as part of its consideration of severe accident consequences.215 Clearwater 

provided no evidence that radiation doses received by any group as a result of a severe 

 

212 New York v. NRC, 681 F.3d at 482. 

213 See, e.g., Ex. NYS00131C, GEIS, at 5-29, Table 5-5 (information used for regression 

analyses for expected early, latent and total dose at 28 nuclear plant sites for the license 

renewal period). 

214 We recently reaffirmed, in the Pilgrim license renewal proceeding, that the GEIS findings with 

respect to severe accident consequences are not subject to challenge in individual license 

renewal proceedings. Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), 

CLI-10-11, 71 NRC 287, 316 (2010). 

215 Ex. NYS00131C, GEIS, at 5-102 (discussing uncertainties associated with modeling the 

atmospheric transport of radioactivity that could affect the magnitude of early and late health 

consequences in the event of a severe accident). In addition, when preparing the GEIS, the 

Staff reviewed the Final Environmental Statements for plants that had addressed severe 

accidents. The Staff concluded that those evaluations “consider[ed] the effects of site-specific 

emergency planning in calculating exposures and risks to the public.” Id. § 5.3.3.2.1, at 5-26. 

The Staff found that these reviews “include sites with populations that reasonably cover the 

range of populations at all 74 sites” and thereby “[the] GEIS analysis should reasonably account 

for the effects of emergency planning.” Id. 
- 53 - 

accident would exceed federal guidelines. The Board therefore erred in holding that the Staff 

must analyze “possible disproportionate and adverse” impacts to some populations when the 

Staff has generically determined that the societal and economic impacts from severe accidents 

are small for all plants. 

c. The Board Erred in Finding that the Staff Analyzed 

the Wrong Variables in its Environmental Justice Review

The Staff asks us to set aside the Board’s finding that it “analyzed the wrong variables” 

in its environmental justice analysis.216 The Board, citing the Staff’s hearing testimony, found 

that the Staff compared impacts on minority and low-income populations during the period of 

extended operation to the impacts of current operation on the same groups. The Board held 

that “the correct analysis” would compare impacts to “environmental justice populations” with 

the impacts to the general population during the period of extended operation.217 We find that 

the Board did not misstate the applicable rule, but that it clearly erred by misinterpreting the 

Staff’s analysis. 

On appeal, the Staff explains that it used the current human health and environmental 

effects as a “baseline” for assessing potential impacts to minority and low-income populations 

during the period of extended operation.218 Because it initially determined that the current 

impacts to “environmental justice populations” are small, and because it expects those impacts 

to remain unchanged during the period of extended operation, the Staff concluded that there 

 

216 Staff Petition at 40-41. 

217 LBP-13-13, 78 NRC at 541 (citing Tr. at 2751-52, 2476 (Rikhoff)); see also id. at 540-41, 

543. 

218 Staff Petition at 40. 
- 54 - 

would be no disproportionately high and adverse impacts on environmental justice populations 

during the period of extended operation.219

The Staff’s guidance describes the procedure it follows in performing its environmental 

justice analysis.220 After identifying the locations of minority and low-income populations within 

a 50-mile radius of the facility, the Staff determines whether there are “potentially significant 

environmental impacts” to minority and low-income populations.221 The Staff then determines 

whether the impacts would be “disproportionately high and adverse” when compared to the 

general population. The guidance directs the Staff to consider the following questions: 

 Are the radiological or other effects significant or above 

generally accepted norms? Is the risk or rate of hazard 

significant and appreciably in excess of the general 

population? Do the radiological or other health effects occur in 

groups affected by cumulative or multiple adverse exposures 

from environmental hazards? 

 Is there an impact on the natural or physical environment that 

significantly and adversely affects a particular group? Are 

there any significant adverse impacts on a group that 

appreciably exceed those on the general population? Do the 

environmental effects occur or would they occur in groups 

affected by cumulative or multiple adverse exposure from 

environmental hazards?222

Applying these standards, and relying on the GEIS determination that the probability-weighted 

consequences of severe accidents are small, the Staff determined that there would be no 

“potentially significant environmental impacts to” environmental justice populations. The Board 

 

219 Id. at 41. 

220 Ex. ENT000261, NRR Procedural Guidance, app. D. 

221 See id. at D-8 to D-9. 

222 Id. at D-10. 
- 55 - 

acknowledged that this procedural guidance, which is based on CEQ guidelines, complies with 

NEPA.223

The environmental justice discussion in the FSEIS states that radiation doses “are 

expected to continue at current levels and would remain within regulatory limits. Therefore, 

there would be no additional human health impact . . . on minority and low-income people.”224 

At the hearing, Staff witness Jeffrey Rikhoff testified that the Staff looked for increased effects 

during the period of extended operation: 

From an operational standpoint, we could not discern that there 

would be an increase in the workforce at the plant or that 

radiological effects would be increased. So we had . . . no effect 

to investigate, no increased new or added effect that we would be 

required to investigate under our current guidance.225

The Board cited Mr. Rikhoff’s testimony in concluding that the correct comparison had not been 

made.226 But the comparison would be incorrect only if identified environmental justice 

populations were already experiencing “disproportionately high and adverse” environmental 

effects; we find no evidence of such circumstances in the record. As discussed above, 

Clearwater did not establish that there would be any such effects. 

We agree with the Board that an environmental justice analysis correctly compares 

impacts to minority and low-income populations to those experienced by the general population, 

but we find that this is what the Staff did in its analysis. In contrast, Clearwater did not 

demonstrate a disparity between impacts to the environmental justice population and impacts to 

the general population, such that impacts to the former would be disproportionately high and 

 

223 LBP-13-13, 78 NRC at 540. 

224 Ex. NYS00133B, FSEIS § 4.4.6, at 4-53. 

225 Tr. at 2752 (Rikhoff). 

226 LBP-13-13, 78 NRC at 532-33. 
- 56 - 

adverse, either currently or during the period of extended operation. For these reasons, we find 

that the Board erred in finding that the Staff compared the wrong variables in its environmental 

justice analysis. We reverse the Board’s decision on this point. 

d. The Board’s Decision Does Not Reflect How It Weighed the Evidence 

Entergy also argues that the Board erred in denying its motions in limine, which sought 

to exclude emergency planning issues from the evidentiary hearing.227 As a general matter, the 

boards have considerable discretion in their evidentiary rulings.228 But after denying the motions 

in limine, the Board failed to “distinguish between attacks on the emergency plan” and evidence 

concerning a disproportionately large and adverse impact on minority and low-income 

populations. The Board did not parse the evidence to demonstrate how it used Clearwater’s 

witness testimony to supplement the record, nor did it address the Staff’s and Entergy’s contrary 

witness testimony in its decision. As a result, neither the parties nor the public can understand 

whether—and how—the Board considered and weighed that contrary testimony. The absence 

of such reasoning constitutes reversible procedural error. In the end, the error was not 

prejudicial since the Staff—as a technical matter—prevailed on the contention. 

Although the Board ultimately found that the FSEIS did not need further 

supplementation, the Board’s decision presented only Clearwater’s testimony that certain 

populations would be left behind in the event of a severe accident. Instead of providing a clearly 

reasoned decision as to which, if any, of Clearwater’s concerns presented a realistic obstacle to 

effective emergency preparedness, the Board simply recounted the testimony.229 To be sure, 

even had the Board provided a thorough discussion of all the parties’ evidence and witness 

 

227 Entergy Petition at 36-37. 

228 See, e.g., Duke Energy Corp. (Catawba Nuclear Station, Units 1 and 2), CLI-04-21, 60 NRC 

21, 27 (2004). 

229 LBP-13-13, 78 NRC at 530-39. 
- 57 - 

credibility, it would not resolve the Staff’s and Entergy’s fundamental objection that the 

emergency planning contention was litigated at all. But the Board did not present and discuss 

the evidence provided by the Staff and Entergy to show that the plans take into account the 

safety of all potentially affected populations. 

The Staff’s and Entergy’s presentations before the Board provided evidence that the 

needs of “movement restricted” people are already considered—and provided for—in 

emergency planning.230 Each county surrounding Indian Point has an emergency plan that 

includes plans for transporting people who do not have access to a vehicle by bus to reception 

centers outside the emergency planning zone.231 The State of New York also has a 

Radiological Emergency Preparedness Plan that sets forth its role in assisting the counties 

surrounding the four nuclear power plant facilities that could impact its residents.232 The county 

emergency plans provide for moving schoolchildren to pre-determined, alternative locations to 

be reunited with their parents should their schools be evacuated.233 In addition, these 

emergency plans take into account persons who would need assistance to evacuate, such as 

 

230 See, e.g., Ex. NRC000063, Staff Environmental Justice Testimony, at 26; Ex. ENT000258, 

Testimony of Entergy Witnesses Donald P. Cleary, Jerry L. Riggs, and Michael J. Slobodien 

Regarding Contention CW-EC-3A (Environmental Justice) (Mar. 29, 2012), at 49-61 (Entergy 

Environmental Justice Testimony); Tr. at 2769 (Slobodien). 

231 See, e.g., Ex. ENT00286A, “Rockland County Radiological Emergency Preparedness Plan” 

(May 2010), at III-35 to III-42 (Rockland Emergency Plan); ENT00285A, “Westchester County 

Radiological Emergency Plan for the Indian Point Energy Center” at III-32 (Westchester 

Emergency Plan); see also Ex. ENT000287, Westchester County Indian Point Emergency 

Planning Guide (2010-2011), at 9-13 (Westchester Planning Guide); Ex. ENT000288, Rockland 

County Emergency Planning for Indian Point Booklet (2011-2012), at 12-17 (Rockland Planning 

Guide). 

232 See generally Ex. ENT000272, “New York State Radiological Emergency Preparedness Plan 

for Commercial Nuclear Power Plants” (March 2011) (New York Emergency Plan). 

233 See, e.g., Ex. ENT000288, Rockland Planning Guide, at 6-7 (unnumbered); Ex. ENT000287, 

Westchester Planning Guide, at 7-8. 
- 58 - 

residents of hospitals and nursing homes.234 People who would need assistance in evacuating 

but do not live in a special facility may identify themselves to emergency planners in advance of 

an emergency by mailing in a postcard, or during an emergency by calling a telephone number 

that will be furnished through the news media.235 The record also reflects that correctional 

facilities have evacuation plans, although sheltering in place would “likely be the initial protective 

action.”236

The Staff and Entergy also provided evidence that sheltering in place is not necessarily 

an inferior option compared to evacuation. According to Entergy’s prefiled testimony, sheltering 

in place is an appropriate option for protective action in accordance with FEMA regulations and 

Environmental Protection Agency guidelines.237 Staff witness Patricia Milligan testified that 

sheltering in place, contrary to being a less-protective alternative to evacuation, is “a preferred 

action when emergency events develop rapidly and/or evacuation would be problematic.”238 

According to Ms. Milligan, “Sheltering in place does not mean that the affected populations will 

receive a higher or harmful radiation dose because they did not immediately evacuate.”239 She 

confirmed that, regardless of whether a population evacuates or shelters in place, estimated 

 

234 See, e.g., Ex. ENT00286A, Rockland Emergency Plan, at III-39 to III-40; ENT00285A, 

Westchester Emergency Plan, at III-32; Ex. ENT000272, New York Emergency Plan, at III-35. 

235 Ex. ENT000272, New York Emergency Plan, at III-35. 

236 See Ex. ENT000258, Entergy Environmental Justice Testimony, at 53-55. 

237 See id. at 56-57 (citing Ex. ENT00284A, U.S. Environmental Protection Agency, “Manual of 

Protective Action Guides and Protective Actions for Nuclear Incidents” (1992), at 1-5 (EPA 

Protective Action Manual)). 

238 Ex. NRC000063, Staff Environmental Justice Testimony, at 28. 

239 Id. at 31; see also Tr. at 2762-63 (Milligan). 
- 59 - 

radiation doses are conservatively estimated to be within regulatory limits.240 Moreover, the 

choice to shelter a particular population in place is not based on any characteristic peculiar to 

minority or low-income communities, but on considerations of the safety of the individuals 

involved.241

With respect to non-English-speaking minorities, the Staff and Entergy provided 

evidence that provisions had been made to make emergency planning information available in 

other languages where necessary.242 FEMA guidelines require that if any non-English language 

is spoken by more than five percent of a county’s population, then the county must plan for 

communications in that language.243

In contrast to the evidence presented by the Staff and Entergy, much of Clearwater’s 

testimony does not appear to take into account the existing emergency planning measures for 

Indian Point.244 Clearwater’s testimony also focused on populations such as the elderly, preschool children, and the disabled, which are not environmental justice populations per se, and 

on facilities such as nursing homes and day care centers, which were not shown to house 

 

240 Ex. NRC000063, Staff Environmental Justice Testimony, at 12; Tr. at 2763, 2764-65 

(Milligan) (in calculating projected dose from a release, no credit is given for shielding of a 

building). 

241 See Ex. ENT00284A, EPA Protective Action Manual, at 2-5 to 2-7. 

242 Ex. NRC000063, Staff Environmental Justice Testimony, at 37 (Spanish language 

emergency information materials are available in both Westchester and Rockland counties, in 

accordance with FEMA requirements). 

243 See Ex. ENT000295, FEMA, Program Manual, Radiological Emergency Preparedness 

(2011), at II-33. 

244 See, e.g., Tr. at 2872 (Guardado) (witness had not seen any information about evacuation 

planning in Spanish prior to her involvement in the proceeding below); Ex. CLE000004, Papa 

Testimony, at 3 (during his years at Sing Sing, witness never “saw any planning whatever for 

evacuation . . . and never heard anyone discuss an evacuation plan”). 
- 60 - 

primarily minority or low-income populations.245 As a result, Clearwater’s claimed 

“disproportionately high and adverse” effects were not shown to be primarily linked to identified 

environmental justice populations. 

Given our ruling with respect to emergency planning and the generic findings in the 

GEIS, we need not consider whether the Board’s findings of fact with respect to environmental 

justice were “clearly erroneous.” Upon review of the extensive evidentiary record, however, we 

note that the Staff and Entergy provided substantial evidence that the emergency preparedness 

plans consider all segments of public in the event of a severe accident with offsite 

consequences at Indian Point.246 The purpose of the FSEIS is “to inform the decisionmaking 

agency and the public of a broad range of environmental impacts that will result, with a fair 

degree of likelihood, from a proposed project, rather than to speculate about ‘worst case’ 

scenarios and how to prevent them.”247 Viewing the record as a whole, and giving due weight to 

all parties’ testimony on this contention—which the Board did not do—we find that the Staff and 

Entergy have demonstrated that no particular population segment will suffer a disproportionately 

high risk of radiological exposures from a severe accident.248

 

245 See, e.g., Ex. CLE000010, Greene Testimony, at 6-12 (day care centers), 13-22 (nursing 

and retirement homes). But see Ex. NRC000063, Staff Environmental Justice Testimony, at 20-

22 (disabled individuals and prisoners are only counted among the environmental justice 

population if they are also either minority or low-income). 

246 The Board did not find that the emergency plans were insufficient to protect all populations, 

and correctly acknowledged that the issue of whether those plans provide adequate protection 

was not before it. LBP-13-13, 78 NRC at 539. 

247 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Facility), CLI-02-25, 56 NRC 

340, 347 (2002); see also id. at 352 (“NEPA’s mandate to federal agencies, as we see it, is to 

consider a broad range of environmental effects that are reasonably likely to ensue as a result 

of major federal action.”). 

248 Concerns about a facility’s emergency plans may be raised at any time pursuant to 10 C.F.R. 

§ 2.206. See, e.g., Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, 

Inc. (Vermont Yankee Nuclear Power Station), DD-06-2, 63 NRC 425 (2006). 
- 61 - 

In sum, as discussed above, we find that the Staff’s environmental analysis in the FSEIS 

appropriately considered the reasonably foreseeable impacts of license renewal to 

environmental justice populations. Contention CW-EC-3A improperly raised matters, including 

emergency preparedness and challenges to the GEIS, that are outside the scope of license 

renewal. We conclude that the Board thus erred in both its admission of the contention and its 

conclusion that the Staff’s environmental justice analysis required supplementation beyond what 

was contained in the FSEIS.

3. Clearwater’s Petition for Review

Clearwater’s petition for review raises an important legal question that is not necessarily 

related to the emergency planning questions. Clearwater argues that that our longstanding 

practice of supplementing the Staff’s environmental review document with the hearing record 

and adjudicatory findings is contrary to NEPA. Clearwater maintains, citing the Board’s own 

language, that the potential disparities in impacts to minority and low-income populations are 

merely “illustrated” by the evidentiary record, and that the Staff has yet to analyze these 

effects.249 Therefore, Clearwater argues that the Board’s findings were insufficient to satisfy 

NEPA. New York’s answer in support of Clearwater makes a similar argument, adding that, in 

New York’s view, the Board’s decision effectively circumvents the requirement that the Staff 

consider mitigation measures.250

Clearwater asserts that because the Board found the FSEIS deficient, the FSEIS must 

be remanded to the Staff for further supplementation, including “an examination of the 

circumstances and conditions and discussion and analysis of not just one or two but each of the 

movement restricted institutions or communities within the [environmental justice] population to 

 

249 Clearwater Petition at 7. 

250 New York CW-EC-3A Answer at 14-15. 
- 62 - 

determine the scope of the risk, impact and disparity [of impacts],” and a “detailed discussion of 

possible mitigation measures.”251 Given the conclusions we reach above that the Staff was not 

required to address emergency planning in the context of license renewal or in the context of its 

environmental justice review, we find no need for further supplementation of the record of this 

proceeding. But even had we agreed with the Board’s finding of a disparate impact, there would 

not necessarily be a need to direct the Staff to supplement or recirculate the FSEIS. 

Our regulations provide that when a hearing is held on a proposed action, “the initial 

decision of the presiding officer or the final decision of the Commissioners acting as a collegial 

body will constitute the record of decision.”252 Section 51.102(c) “merges the [FSEIS] with any 

relevant licensing board decision.” 253 The current provision replaced a previous version that 

expressly permitted licensing boards to “modify the content” of an environmental impact 

statement.254 We have consistently interpreted section 51.102(c) to provide that environmental 

impact statements are modified by any subsequent Board or Commission decision.255

 

251 Clearwater Petition at 11. See generally New York CW-EC-3A Answer. 

252 10 C.F.R. § 51.102(c). 

253 See Philadelphia Electric Co. (Limerick Generating Company, Units 1 and 2), ALAB-819, 22 

NRC 681, 706 (1985), aff’d in part, CLI-86-5, 23 NRC 125 (1986), remanded in part on other 

grounds sub nom. Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719 (1989). 

254 Id. 

255 See Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-1, 75 NRC 39, 

61 (2012); LES, CLI-06-15, 63 NRC at 700 (FEIS “as amplified by” both Board and Commission 

decisions, provided adequate consideration of environmental impacts of near-surface waste 

disposal); Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-05-28, 62 NRC 

721, 731 (2005) (approving Board’s decision to incorporate material from a U.S. Department of 

Energy Programmatic Environmental Impact Statement, which was submitted in the hearing 

record, as part of the record of decision); see also South Texas, CLI-11-6, 74 NRC at 208-09; 

Hydro Resources, CLI-01-4, 53 NRC at 53. The NRC’s approach has also been approved by 

the courts of appeal. See, e.g., New England Coalition on Nuclear Pollution v. NRC, 582 F.2d 

87, 93-94 (1st Cir. 1978) (Licensing Board decision modifying a Final Environmental Statement 

“satisfied the spirit of NEPA”); Citizens for Safe Power, Inc. v. NRC, 524 F.2d 1291, 1294 n.5 

(D.C. Cir. 1975) (Appeal Board’s ruling that the environmental impact statement was “deemed 

(continued . . .) 
- 63 - 

There is good reason to deem an EIS modified by the hearing record. Our hearing 

procedures “[allow] for additional and a more rigorous public scrutiny of the [FSEIS] than does 

the usual ‘circulation for comment.’”256 Clearwater had months to marshal its evidence for 

hearing, had the opportunity to respond to the Staff’s and Entergy’s evidence, and had the 

benefit of extensive Board questions to party witnesses. Clearwater is mistaken that our 

hearing process allows an “end run” around NEPA’s requirement to engage the public in the 

NEPA process.257

We therefore affirm the Board’s ruling that the environmental record of decision may be 

supplemented by the hearing and relevant Board and Commission decisions.258 For the 

 

modified” by the parties’ stipulations at hearing did not violate the “letter or spirit” of NEPA); 

Ecology Action v. AEC, 492 F.2d 998, 1001-02 (2d Cir. 1974) (nothing in “any . . . decision of 

which we are aware holds that any deficiency in a FEIS is automatic ground for reversal of an 

order granting a permit although the issue has been opened for full consideration in an agency 

hearing”). 

256 Limerick, ALAB-819, 22 NRC at 707. 

257 Separate from the hearing process, the Staff provided extensive opportunities for public 

participation during the preparation of the FSEIS. The Staff held public meetings and solicited 

comments on the scoping process and on the draft SEIS. See Entergy Nuclear Operations, Inc. 

Indian Point Nuclear Generating Unit Nos. 2 and 3; Notice of Intent to Prepare an Environmental 

Impact Statement and Conduct Scoping Process, 72 Fed. Reg. 45,075 (Aug. 10, 2007); Indian 

Point Nuclear Generating Unit Nos. 2 and 3; Notice of Availability of the Draft Supplement 38 to 

the Generic Environmental Impact Statement for License Renewal of Nuclear Plants and Public 

Meeting for the License Renewal of Indian Point Generating Unit Nos. 2 and 3, 73 Fed. Reg. 

80,440 (Dec. 31, 2008). Several commenters took the opportunity to raise the concern that 

evacuation plans may have not kept up with changing demographics. See Ex. YS00133D, 

FSEIS, app. A, at A-106 to A-107. 

258 Clearwater argues that the Board’s ruling could not supplement the FSEIS because it 

included no specific analysis or findings. Clearwater Petition at 7-9; see also New York 

CW-EC-3A Answer at 16-17. We observe that, were supplementation of the FSEIS called for in 

this case, the Board’s ruling on environmental justice should have been more clear. For 

example, it is not apparent whether the Board found that differences in the ability to evacuate 

would lead to higher radiological exposures to the minority and low-income populations living 

near Indian Point, or that the difference between self-evacuation and relying on rescuers is 

inherently a “disproportionate impact.” At a minimum, a ruling that supplements the record 

should state clearly what evidence the Board found credible, whether the evidence supports or 

alters the Staff’s conclusions in the environmental impact statement, and what the impact of the 

(continued . . .) 
- 64 - 

reasons given in today’s decision, however, the Indian Point FSEIS need not have been 

supplemented by the evidence put forward by the parties on emergency planning with respect to 

Contention CW-EC-3A, as the issues raised in the contention fall outside the scope of this 

license renewal proceeding. 

III. CONCLUSION 

We take review of LBP-13-13 and the related interlocutory decisions discussed herein. 

Because we find that transformers are properly considered active components, we reverse the 

Board’s decision in LBP-13-13 with respect to Contention NYS-8. With respect to Contention 

CW-EC-3A, we find that the Board erred in admitting the contention and in failing to explain its 

findings with respect to the evidence and reverse LBP-13-13 on those points. 

IT IS SO ORDERED.259

 For the Commission 

NRC SEAL 

 /RA/ . 

 Annette L. Vietti-Cook 

 Secretary of the Commission 

Dated at Rockville, Maryland, 

this 9th day of March, 2015 

 

proposed action for the specific issue is expected to be. See, e.g., Southern Nuclear Operating 

Co. (Early Site Permit for Vogtle ESP Site), LBP-09-7, 69 NRC 613, 696-702 (2009), review 

denied, CLI-10-5, 71 NRC 90 (2010) (Board found that “preponderance of the evidence” 

supplemented the FEIS discussion). 

259 Chairman Burns did not participate in this matter. 
UNITED STATES OF AMERICA 

NUCLEAR REGULATORY COMMISSION 

In the Matter of ) 

 ) 

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

 ) and 50-286-LR 

(Indian Point Nuclear Generating, ) 

 Units 2 and 3) ) 

 

CERTIFICATE OF SERVICE 

I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER CLI-15-6 

have been served upon the following persons by Electronic Information Exchange. 

 

U.S. Nuclear Regulatory Commission 

Office of Commission Appellate Adjudication 

Mail Stop O-7H4M 

Washington, DC 20555-0001 

ocaamail@nrc.gov

U.S. Nuclear Regulatory Commission 

Office of the Secretary of the Commission 

Mail Stop O-16C1 

Washington, DC 20555-0001 

hearingdocket@nrc.gov 

U.S. Nuclear Regulatory Commission 

Atomic Safety and Licensing Board Panel 

Mail Stop T-3F23 

Washington, DC 20555-0001 

Lawrence G. McDade, Chair 

Administrative Judge 

lawrence.mcdade@nrc.gov

Richard E. Wardwell 

Administrative Judge 

richard.wardwell@nrc.gov 

Michael F. Kennedy 

Administrative Judge 

michael.kennedy@nrc.gov 

Alana Wase, Law Clerk 

alana.wase@nrc.gov 

Kathleen E. Schroeder, Law Clerk 

Kathleen.Schroeder@nrc.gov

Edward L. Williamson, Esq. 

Beth N. Mizuno, Esq. 

David E. Roth, Esq. 

Sherwin E. Turk, Esq. 

Brian Harris, Esq. 

Mary B. Spencer, Esq. 

Anita Ghosh, Esq. 

Christina England, Esq. 

Catherine E. Kanatas, Esq. 

Joseph Lindell, Esq. 

John Tibbetts, Paralegal 

U.S. Nuclear Regulatory Commission 

Office of the General Counsel 

Mail Stop O-15D21 

Washington, DC 20555-0001 

sherwin.turk@nrc.gov; 

edward.williamson@nrc.gov 

beth.mizuno@nrc.gov; brian.harris.@nrc.gov 

david.roth@nrc.gov; mary.spencer@nrc.gov 

anita.ghosh@nrc.gov; 

christina.england@nrc.gov; 

catherine.kanatas@nrc.gov; 

joseph.lindell@nrc.gov; 

john.tibbetts@nrc.gov 

OGC Mail Center 

OGCMailCenter@nrc.gov 

William B. Glew, Jr. 

Organization: Entergy 

440 Hamilton Avenue, White Plains, NY 10601 

wglew@entergy.com 

Elise N. Zoli, Esq. 

Goodwin Proctor, LLP 

Exchange Place, 53 State Street 

Boston, MA 02109 

ezoli@goodwinprocter.com 
Docket Nos. 50-247-LR and 50-286-LR 

COMMISSION MEMORANDUM AND ORDER CLI-15-6 

2

Daniel Riesel, Esq. 

Victoria Shiah Treanor, Esq. 

Adam Stolorow, Esq. 

Natoya Duncan, Paralegal 

Counsel for Town of Cortlandt 

Sive, Paget & Riesel, P.C. 

460 Park Avenue 

New York, NY 10022 

driesel@sprlaw.com; vtreanor@sprlaw.com 

astolorow@sprlaw.com; nduncan@sprlaw.com 

Kathryn M. Sutton, Esq. 

Paul M. Bessette, Esq. 

Martin J. O’Neill, Esq. 

Raphael Kuyler, Esq. 

Brooke McGlinn, Esq. 

Grant Eskelsen, Esq. 

Ryan Lighty, Esq. 

Lesa G. Williams-Richardson, Legal Secretary 

Doris Calhoun, Legal Secretary 

Mary Freeze, Legal Secretary 

Morgan, Lewis & Bockius, LLP 

1111 Pennsylvania Avenue, NW 

Washington, DC 20004 

ksutton@morganlewis.com 

martin.oneill@morganlewis.com 

rkuyler@morganlewis.com; 

lescher@morganlewis.com 

bmcglinn@morganlewis.com 

sraimo@morganlewis.com 

geskelsen@morganlewis.com 

rlighty@morganlewis.com 

lrichardson@morganlewis.com 

dcalhoun@morganlewis.com 

mfreeze@morganlewis.com 

Deborah Brancato, Esq. 

Ramona Cearley, Secretary 

Riverkeeper, Inc. 

20 Secor Road 

Ossining, NY 10562 

dbrancato@riverkeeper.org

rcearley@riverkeeper.org

Melissa-Jean Rotini, Esq. 

Assistant County Attorney 

Office of Robert F. Meehan, 

Westchester County Attorney 

148 Martine Avenue, 6th Floor 

White Plains, NY 10601 

mjr1@westchestergov.com

Bobby Burchfield, Esq. 

Matthew Leland, Esq. 

Emre Ilter, Esq. 

McDermott, Will and Emery LLP 

500 North Capitol Street NW 

Washington, DC 20001 

bburchfield@mwe.com 

mleland@mwe.com 

eilter@mwe.com 

Matthew W. Swinehart, Esq. 

Covington & Burling LLP 

1201 Pennsylvania Avenue, NW 

Washington, DC 20004 

mswinehart@cov.com 

Edward F. McTiernan, Esq. 

New York State Department 

 of Environmental Conservation 

Office of General Counsel 

625 Broadway 

14th Floor 

Albany, NY 12233-1500 

efmctier@gw.dec.state.ny.us

Manna Jo Greene, Environmental Director 

Steven C. Filler 

Peter A. Gross 

Hudson River Sloop Clearwater, Inc. 

724 Wolcott Ave. 

Beacon, NY 12508 

mannajo@clearwater.org; 

stephenfiller@gmail.com; 

peter@clearwater.org 

Andrew Reid, Esq. 

Organization: Hudson River Sloop 

Clearwater, Inc. 

Springer & Steinberg, P.C. 

1600 Broadway, Suite 1200 

Denver, CO 80202 

lawyerreid@gmail.com 
Docket Nos. 50-247-LR and 50-286-LR 

COMMISSION MEMORANDUM AND ORDER CLI-15-6 

3

Richard Webster, Esq. 

Public Justice, P.C. 

For Hudson River Sloop Clearwater, Inc. 

1825 K Street, NW, Suite 200 

Washington, D.C. 20006 

rwebster@publicjustice.net

Michael J. Delaney, Esq. 

Director, Energy Regulatory Affairs 

NYC Department of Environmental Protection 

59-17 Junction Boulevard 

Flushing, NY 11373 

mdelaney@dep.nyc.gov

Robert D. Snook, Esq. 

Assistant Attorney General 

Office of the Attorney General 

State of Connecticut 

55 Elm Street 

P.O. Box 120 

Hartford, CT 06141-0120 

robert.snook@po.state.ct.us

John J. Sipos, Esq. 

Lisa S. Kwong, Esq. 

Brian Lusignan, Esq. 

Assistant Attorneys General 

Teresa Manzi, Legal Assistant 

Office of the Attorney General 

 of the State of New York 

The Capitol, State Street 

Albany, New York 12224 

john.sipos@ag.ny.gov 

lisa.kwong@ag.ny.gov 

brian.lusignan@ag.ny.gov

teresa.manzi@ag.ny.gov 

Kathryn M. DeLuca, Esq. 

Laura Heslin, Esq. 

Assistant Attorneys General 

Office of the Attorney General 

 of the State of New York 

120 Broadway, 26th Floor 

New York, New York 10271 

kathryn.deluca@ag.ny.gov 

laura.heslin@ag.ny.gov 

 

Sean Murray, Mayor 

Kevin Hay, Village Administrator 

Village of Buchanan 

Municipal Building 

236 Tate Avenue 

Buchanan, NY 10511-1298 

smurray@villageofbuchanan.com

administrator@villageofbuchanan.com

 [Original signed by Brian Newell ] 

 Office of the Secretary of the Commission 

Dated at Rockville, Maryland 

this 9th day of March, 2015