UNITED STATES OF AMERICA 

NUCLEAR REGULATORY COMMISSION 

COMMISSIONERS: 

Stephen G. Burns, Chairman 

Kristine L. Svinicki 

William C. Ostendorff 

Jeff Baran 

In the Matter of 

ENTERGY NUCLEAR OPERATIONS, INC. Docket No. 50-247-LA 

(Indian Point Nuclear Generating Station, Unit 2) 

CLI-16-05 

MEMORANDUM AND ORDER 

This proceeding stems from the application of Entergy Nuclear Operations, Inc. to 

amend the operating license for the Indian Point Nuclear Generating Station, Unit 2, to 

permanently reduce the frequency of the reactor containment Integrated Leak Rate Test from 

once every ten years to once every fifteen years. In LBP-15-26, the Atomic Safety and 

Licensing Board denied the State of New York’s intervention petition challenging the request.1 

The State of New York has appealed. As discussed below, we affirm the Board’s decision. 

 

 

1 LBP-15-26, 82 NRC 163 (2015); see State of New York Petition to Intervene and Request for 

Hearing (May 18, 2015) (New York Petition to Intervene). 
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 BACKGROUND 

A. Containment Leakage Tests 

Nuclear power plants in the United States, like Indian Point, have containment systems 

that serve as “the principal barrier, after the reactor coolant pressure boundary, to prevent the 

release of quantities of radioactive material that would have a significant radiological effect on 

the health of the public.”2 To ensure the continued integrity of the containment system during 

the operating life of the reactor, 10 C.F.R. § 50.54(o) mandates that “[p]rimary reactor 

containments ... shall be subject to the requirements set forth in appendix J to [10 C.F.R. Part 

50].” Appendix J directs licensees to conduct periodic tests to ensure that leakage from the 

containment does not exceed the allowable leakage rates specified in the plant’s technical 

specifications.3 The Appendix J test requirements ensure that the “integrity of the containment 

structure is maintained during its service life.”4 At issue here are “Type A” tests, which measure 

the containment’s overall integrated leakage rate.5

As explained by the Board, under the original regulations governing these tests, 

licensees performed three Type A tests over a ten-year period.6 In 1995, the NRC amended 

 

2 10 C.F.R. pt. 50, app. J, Option B § II. 

3 Id. pt. 50, app. J, Option B § I. 

4 Id.

5 Id. pt. 50, app. J, Option B § III.A. The regulations also require licensees to perform “Type B” 

and “Type C” tests. Type B tests detect and measure local leakage rates across pressureretaining, leakage-limiting boundaries. Type C tests measure containment isolation valve 

leakage rates. Id. pt. 50, app. J, Option B § III.B. 

6 LBP-15-26, 82 NRC at 169 (citing Final Rule, Primary Reactor Containment Leakage Testing 

for Water-Cooled Power Reactors, 60 Fed. Reg. 49,495, 49,499 (Sept. 26, 1995) (Containment 

Leakage Testing Rule)). 
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Appendix J to add a performance-based option for containment leakage testing requirements 

(“Option B”).7 Under Option B, a licensee with two consecutive successful Type A tests may 

seek to amend its license to require one test in each ten-year period instead of the previously 

required three.8 In 2001, the industry began developing a technical basis to justify further 

reducing the frequency of Type A testing.9 By 2008, about seventy-five operating reactors, 

including Indian Point, had used this information to support a one-time extension of the Type A 

testing interval to fifteen years.10 In June 2008, the NRC staff reviewed and accepted a 

methodology for licensees to apply when seeking to amend their licenses to permanently extend 

the Type A testing interval to fifteen years.11

B. Containment Leakage Tests at Indian Point, Unit 2 

On December 9, 2014, Entergy submitted the subject license amendment application, 

which builds on two previous license amendments granted for Unit 2.12 The first amendment, 

approved by the NRC Staff in 1997, allowed the use of the “Option B” performance-based 

testing schedule for Unit 2, which changed the schedule from three times every ten years to 

 

7 See Containment Leakage Testing Rule, 60 Fed. Reg. at 49,499. 

8 See id.

9 LBP-15-26, 82 NRC at 169 n.8. 

10 Id. 

11 Id. at 170. 

12 Letter from Lawrence Coyle, Site Vice President, Entergy Nuclear Northeast, to NRC (Dec. 9, 

2014) (ADAMS accession no. ML14353A015) (License Amendment Request), Attach. 1, at 2. 
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once every ten years.13 The second amendment, approved by the Staff in 2002, allowed for a 

one-time extension to the Type A testing interval from once every ten years to once every fifteen 

years.14 The instant license amendment request seeks to make this change permanent.15

Following receipt of the license amendment application, the Staff published in the 

Federal Register a notice of the application, the opportunity to request a hearing on the 

application, and the Staff’s proposed no significant hazards consideration determination.16 In 

response, New York challenged the request, submitting two proposed contentions.17 Entergy 

and the Staff both opposed New York’s intervention petition, arguing that neither contention was 

 

13 Letter from Jefferey F. Harold, Project Manager, Office of Nuclear Reactor Regulation, NRC, 

to Mr. Stephen E. Quinn, Vice President, Nuclear Power, Consolidated Edison Co. of New York, 

Inc. (Apr. 10, 1997) (ML003778846). 

14 Letter from Patrick D. Milano, Senior Project Manager, Office of Nuclear Reactor Regulation, 

NRC, to Michael R. Kansler, Senior Vice President and Chief Operating Officer, Entergy 

Nuclear Operations, Inc. (Aug. 5, 2002) (ML021860178) (2002 License Amendment). 

15 See License Amendment Request at 1. The Staff recently granted Entergy’s request to 

extend permanently the Type A testing interval from ten to fifteen years for Indian Point, Unit 3. 

See Letter from Douglas V. Pickett, Senior Project Manager, Office of Nuclear Reactor 

Regulation, NRC, to Vice President, Operations, Entergy Nuclear Operations, Inc. (Mar. 13, 

2015) (ML15028A308). 

16 Biweekly Notice; Applications and Amendments to Facility Operating Licenses and Combined 

Licenses Involving No Significant Hazards Considerations, 80 Fed. Reg. 13,902, 13,903-06 

(Mar. 17, 2015); see 10 C.F.R. §§ 50.58(b)(5), 50.92(c). The Staff has issued the license 

amendment to Entergy. Notification of Issuance of License Amendment (Feb. 24, 2016); Letter 

from Douglas V. Pickett, Senior Project Manager, Office of Nuclear Reactor Regulation, NRC, to 

Vice President, Operations, Entergy Nuclear Operations, Inc. (Feb. 23, 2016) (ML15349A794). 

17 See New York Petition to Intervene. The Board found that New York had established 

standing to intervene—neither Entergy nor the Staff argued otherwise. See LBP-15-26, 82 NRC 

at 172-73; see also Entergy’s Answer Opposing State of New York’s Petition to Intervene and 

Request for Hearing (June 12, 2015), at 1-2 (Entergy Answer to New York Petition); NRC Staff’s 

Answer to “State of New York Petition to Intervene and Request for Hearing” (June 12, 2015), at 

3-4 (Staff Answer to New York Petition). 
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admissible.18 The Board rejected both of New York’s proposed contentions and denied New 

York’s intervention petition.19 New York now seeks review of the Board’s decision.20 Entergy 

and the Staff oppose New York’s appeal.21

 DISCUSSION 

Our rules of practice provide for an automatic right to appeal a Board decision on the 

question of whether a petition to intervene should have been granted.22 We defer to a Board’s 

contention admissibility rulings “unless the appeal points to an ‘error of law or abuse of 

discretion.’”23

A. Contention Admissibility Requirements 

Under our rules, a request for hearing must “set forth with particularity the contentions 

sought to be raised.”24 A petitioner must: 

(i) Provide a specific statement of the issue of law or fact to be raised or 

controverted; 

 

18 Entergy Answer to New York Petition at 14-38; Staff Answer to New York Petition at 12-27. 

19 LBP-15-26, 82 NRC at 179, 180, 183. 

20 State of New York Notice of Appeal of LBP 15-26 (Oct. 20, 2015); State of New York Brief 

Supporting Appeal Pursuant to 10 CF.R. § 2.311 of Atomic Safety and Licensing Board 

Decision LBP-15-26 Denying New York’s Petition to Intervene and Request for Hearing (Oct. 

20, 2015) (New York Appeal). 

21 Entergy’s Answer Opposing New York State’s Appeal of LBP-15-26 (Nov. 16, 2015) (Entergy 

Answer to New York Appeal); NRC Staff’s Answer to the State of New York’s Appeal from the 

Atomic Safety and Licensing Board’s Denial of Its Petition to Intervene and Request for Hearing

(LBP-15-26) (Nov. 16, 2015) (Staff Answer to New York Appeal). 

22 See 10 C.F.R. § 2.311(c). 

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

(quoting Crow Butte Resources, Inc. (North Trend Expansion Project), CLI-09-12, 69 NRC 535, 

543 (2009)). 

24 10 C.F.R. § 2.309(f)(1). 
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(ii) Provide a brief explanation of the basis of the contention; 

(iii) Demonstrate that the issue raised in the contention is within the scope of 

the proceeding; 

(iv) Demonstrate that the issue raised in the contention is material to the 

findings the NRC must make to support the action that is involved in the 

proceeding; 

(v) Provide a concise statement of the alleged facts or expert opinions that 

support the petitioner’s position on the issue and on which the petitioner 

intends to rely at hearing, together with references to the specific sources 

and documents on which the petitioner intends to rely to support its 

position on the issue; and 

(vi) Provide sufficient information to show that a genuine dispute exists with 

the applicant on a material issue of law or fact. This information must 

include references to specific portions of the application that the petitioner 

disputes and the supporting reasons for each dispute, or, if the petitioner 

believes the application fails to contain information on a relevant matter 

as required by law, the identification of each failure and the supporting 

reasons for the petitioner’s belief. 

Our case law makes clear that these standards are “strict by design” and that failure to fulfill any 

one of these requirements renders a contention inadmissible.25 Moreover, a petitioner cannot 

satisfy these requirements by “[m]ere ‘notice pleading.’”26

In its intervention petition, New York proposed two contentions. In Contention NYS-1, 

New York challenged the license amendment request on the ground that it constituted “a 

 

25 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), 

CLI-01-24, 54 NRC 349, 358 (2001); see South Carolina Electric & Gas Co. (Virgil C. Summer 

Nuclear Station, Units 2 and 3), CLI-10-1, 71 NRC 1, 7 (2010). 

26 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 

111, 119 (2006) (quoting Exelon Generation Co., LLC (Early Site Permit for Clinton ESP Site), 

CLI-05-29, 62 NRC 801, 808 (2005)). 
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significant safety and environmental hazard.”27 In Contention NYS-2, New York challenged the 

compliance of the license amendment request with the NRC’s environmental regulations—

specifically calling into question whether the license amendment request met the criteria in our 

regulations for a categorical exclusion from the requirement to prepare an environmental 

analysis under the National Environmental Policy Act of 1969 (NEPA).28 On appeal, New York 

contends that the Board erred in finding its proposed contentions inadmissible.29 We find that 

New York has not demonstrated that the Board either made an error of law or abused its 

discretion in declining to admit New York’s contentions. Accordingly, and as explained further 

below, we affirm the Board’s decision. 

B. Contention NYS-1 

Contention NYS-1, as submitted by New York, states: 

Entergy’s request to amend the Indian Point Unit 2 operating license and 

technical specification should be denied because it involves a significant safety 

and environmental hazard, fails to demonstrate that it complies with 10 C.F.R. 

§§ 50.40 and 50.92 or 10 C.F.R. [Part] 50, Appendix J, and fails to demonstrate 

that it will provide reasonable assurance of adequate protection for the public 

health and safety as required by Section 182(a) of the Atomic Energy Act (42 

U.S.C. § 2232[a]) if the proposed amendment to the operating license is 

approved.30

 

27 New York Petition to Intervene at 5. 

28 Id. at 20; see 10 C.F.R. § 51.22 (describing the NRC’s process for applying categorical 

exclusions); 42 U.S.C. § 4332. 

29 New York Appeal at 1. 

30 New York Petition to Intervene at 5. 
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New York made numerous arguments in support of Contention NYS-1, but the Board 

determined that none rendered the contention admissible.31 On appeal, New York contends 

that the Board erred in rejecting the contention.32

New York articulates two general challenges to the Board’s ruling. First, New York 

argues that the Board made improper merits determinations regarding the claims New York 

raised in its petition.33 Second, New York asserts, without more, that “the Board effectively 

ignored ... aspects of Contention NYS-1 that go directly to the findings which the Commission 

must make to grant the license amendment ....”34 We disagree. Regarding the first argument, 

as Entergy and the Staff note, rather than reach the merits of the contention, the Board followed 

our precedent and considered whether the bases proffered by New York actually supported the 

contention and found they did not.35 With respect to the second argument, the Board did not 

 

31 LBP-15-26, 82 NRC at 175. 

32 New York Appeal at 17-27. 

33 See id. at 18-21, 23, 25-27. For example, New York contended for the first time at oral 

argument before the Board that the analysis Entergy cited to support its request was 

insufficiently plant-specific because it relied on analysis developed for use at the Calvert Cliffs 

site in Maryland. Tr. at 62-63; see also License Amendment Request, Attach. 1, at 13. The 

Board did not address this argument in its decision. On appeal, New York points to what it 

contends are key differences between Calvert Cliffs and Indian Point, Unit 2 and argues that the 

Board prevented it from pursuing these claims by ruling on the merits of the contention rather 

than focusing solely on contention admissibility. New York Appeal at 25-27. Our case law 

makes clear that “[a petitioner] is confined to the contention as initially filed and may not rectify 

its deficiencies through its reply brief or on appeal.” U.S. Department of Energy (High-Level 

Waste Repository), CLI-09-14, 69 NRC 580, 588 (2009) (citing Louisiana Energy Services, L.P.

(National Enrichment Facility), CLI-04-25, 60 NRC 223, 225 (2004)). Therefore, the Board did 

not err in declining to consider this argument, as it was not timely made. 

34 New York Appeal at 18. 

35 Entergy Answer to New York Appeal at 16-17; Staff Answer to New York Appeal at 16-17; see 

also Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-15-22, 82 NRC __, __ 

(Nov. 9, 2015) (slip op. at 14) (noting that the “Board appropriately reviewed the support 
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ignore regulatory findings but simply provided a short-hand description of the claim at one point 

in the order and in fact fully stated the regulatory findings New York challenged elsewhere.36 

Indeed, with respect to each argument New York put forth to support Contention NYS-1, the 

Board identified a deficiency regarding the contention admissibility standards, ultimately 

concluding that NYS-1 did not meet the requirements of 10 C.F.R. § 2.309(f)(1).37 New York 

has not shown that the Board erred in reaching its conclusion. 

In addition to its general challenges to the Board’s decision, New York raised several 

specific arguments on appeal. We address each in turn. 

1. History of Unit 2 Containment Liner 

To support Contention NYS-1, New York argued that Entergy’s license amendment 

request did not comply with 10 C.F.R. Part 50, Appendix J because it failed to consider the 

plant-specific history of Unit 2’s containment liner.38 New York contended that Unit 2 has a 

“specific history of structural and corrosive damage” revealed by recent inspections.39 The 

Board found this argument both “factually and legally flawed.”40 Contrary to New York’s claims, 

the Board determined that New York’s argument was factually flawed because the license 

amendment request addressed observed corrosion or degradation of the Unit 2 containment 

 

provided for the contention and determined that it did not apply to the circumstances 

presented”). 

36 Compare New York Appeal at 18, with LBP-15-26, 82 NRC at 172, 175-76. 

37 See LBP-15-26, 82 NRC at 175-179. 

38 New York Petition to Intervene at 5-8. 

39 See id. at 7-8. 

40 LBP-15-26, 82 NRC at 175. 
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liner.41 In its ruling, the Board noted that the documents New York provided in support of its 

contention actually contradicted its claims.42 Additionally, the Board found that New York’s 

challenge was legally flawed, calling it “an improper attempt to graft a ‘historical event’ criterion 

onto the ‘performance criteria’ specified in Appendix J, Option B.”43 The Board therefore also 

concluded that this argument constituted an impermissible challenge to 10 C.F.R. Part 50, 

Appendix J, Option B, which, absent a waiver, is barred by 10 C.F.R. § 2.335(a).44

Further, the Board addressed New York’s assertion that a decades-old recommendation 

by the Atomic Energy Commission (AEC) Staff “that the [Unit 2] containment liner should be 

subject to more frequent inspections” indicated continued concerns with the containment liner at 

Unit 2.45 The Board noted that the AEC recommendation was superseded by the 1997 and 

2002 analyses, which supported the Staff’s approvals of the prior Type A testing frequency 

reductions.46

 

41 Id. (citing License Amendment Request, Attach. 1, at 11-13 (explaining that inspection 

records state that all observed corrosion or degradation has either been remediated or was not 

deemed to have reduced the structural capacity of the containment to perform its safety 

function)). 

42 Id. at 176 & n.25. For example, New York relied on the Staff’s safety evaluation attached to 

the 2002 license amendment to support its arguments “that significant corrosion, resulting from 

a 1980 flooding event, had reduced the liner thickness to within .015 inches of the minimum 

required thickness.” New York Petition to Intervene at 8. But the Board noted that the 2002 

safety evaluation discussed the 1980 event and concluded “that the structural integrity of the 

containment is acceptable because the remaining liner thickness is sufficient to withstand the 

loading associated with design-basis accident conditions.” LBP-15-26, 82 NRC at 176 n.25 

(quoting 2002 License Amendment, Enclosure 2, at 8). 

43 Id. at 175 (citing 10 C.F.R. pt. 50, app. J, Option B §§ II and III; Tr. at 128). 

44 Id. at 175-76. 

45 New York Petition to Intervene at 7. 

46 LBP-15-26, 82 NRC at 176 n.26. 
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On appeal, New York takes issue with the Board’s rulings regarding historic degradation 

events. Specifically, New York argues that the Board “ignored or misapplied relevant 

substantive law.”47 New York contends that the Board erred in concluding that historic 

degradation events had been remediated and had no ongoing impact on the Unit 2 containment 

liner.48 And New York disagrees with the Board’s conclusion that subsequent NRC 

assessments superseded the AEC Staff recommendation regarding increased monitoring of the 

containment liner at Unit 2.49 Therefore, New York argues, it should have been allowed “to 

explore the basis and continued vitality of the AEC recommendation in an evidentiary hearing.”50

As noted above, we will defer to a board’s contention admissibility determinations unless 

an appellant demonstrates an error of law or abuse of discretion.51 Based on our review of the 

record, New York has not done so here. Contrary to New York’s suggestion, the Board did not 

find a legal bar to considering the operating history of the Unit 2 containment liner in the license 

amendment request.52 Rather, in responding to an earlier assertion from New York, the Board 

reasonably concluded that because the “Commission was aware of containment degradation 

issues [but still] promulgated performance-based testing,” there is no “‘historical event’ 

restriction on reactors electing to comply with Appendix J through performance-based testing.”53 

 

47 New York Appeal at 19. 

48 Id. at 20. 

49 Id. 

50 Id. at 21. 

51 Crow Butte, CLI-14-2, 79 NRC at 13-14. 

52 New York Appeal at 19. 

53 LBP-15-26, 82 NRC at 175 (emphasis added). 
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Likewise, the Board did not conclude that the historic degradation events had been remediated. 

Instead, the Board only noted that contrary to New York’s assertions in its petition to intervene, 

the license amendment request in fact considered the historic degradation in its analysis.54 With 

respect to the AEC recommendation, New York argues that the Board’s finding was 

unreasonable because the subsequent NRC findings may not have been informed by the AEC 

recommendation. But such speculation, without more, does not demonstrate error.55 The 

Board carefully considered New York’s claims with respect to historic degradation at Unit 2 and 

reasonably concluded that New York’s arguments did not support admission of Contention 

NYS-1.56

2. Test Results Trend 

New York also argued before the Board that the proposed license amendment would 

jeopardize public health and safety because previous Type A test results reveal that Unit 2’s 

containment leakage rate is increasing over time.57 New York contended that this trend 

suggests that leakage would likely exceed 0.75 La by 2016, which New York asserted was the 

current technical specification leakage rate acceptance criterion.58 The Board found that New 

 

54 Id. (citing New York Petition at 6, 7-8; License Amendment Request, Attach. 1, at 11-13). 

55 New York Appeal at 20-21; see Dominion Nuclear Connecticut (Millstone Power Station, Unit 

3), CLI-08-17, 68 NRC 231, 241 (2008) (finding appeals based on “nothing more than 

speculation” insufficient to support Commission review). 

56 LBP-15-26, 82 NRC at 175-76. 

57 New York Petition to Intervene at 8, 16-17. 

58 Id. at 17. As relevant here, 10 C.F.R. Part 50, Appendix J, Option B defines “La (percent/24 

hours)” as the maximum allowable leakage rate at pressure Pa as specified in the plant’s 

technical specifications. “Pa,” in turn, means “the calculated peak containment internal pressure 

related to the design basis loss-of-coolant accident as specified in the Technical Specifications.” 
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York’s argument “reflect[ed] a fundamental misunderstanding of the acceptance criteria” and 

explained that the regulatory limit for Type A leakage—also known as the “as-found acceptance 

rate”—is, in fact, 1.0 La.

59 By contrast, the Board noted “the 0.75 La criterion cited by New York 

is referred to as the ‘as left’ criterion ... and there is no regulatory bar to exceeding that criterion 

during plant operations; rather, it is a criterion that must be satisfied prior to a plant restart.”60 

Moreover, the Board concluded that “dispositively, even if the apparent trend in Type A tests 

were extrapolated, it is undisputed that the leakage would not exceed the regulatory limit of 1.0 

La during the fifteen-year period between consecutive Type A tests.”61 Therefore, the Board 

concluded that New York’s claims regarding the trend in Type A test results did not raise a 

material issue, as required by 10 C.F.R. § 2.309(f)(1)(iv).62 The Board also cited Entergy’s 

explanation for the perceived trend and noted that New York did not attempt to rebut this 

explanation.63

On appeal, New York challenges the Board’s finding that this claim did not raise a 

material fact sufficient to merit a hearing.64 Here again, New York argues that the Board made 

its determination based on the merits of the arguments rather than limiting itself to contention 

 

59 LBP-15-26, 82 NRC at 176; see also id. at 170 n.9. 

60 Id. at 176-77. Unit 2 Technical Specification 5.5.14 states that the leakage rate acceptance 

criterion for the first unit startup following testing—the “as left” criterion—is less than or equal to 

0.75 La for Type A tests. Further, the technical specifications clarify that the containment 

leakage rate acceptance criterion—or “as found” criterion—is 1.0 La. See License Amendment 

Request, Attach. 2; see also 2002 License Amendment, Enclosure 2, at 4. 

61 LBP-15-26, 82 NRC at 177 (citing Entergy Answer to New York Petition, Attach. 1, at 5). 

62 Id. 

63 Id.

64 New York Appeal at 21. 
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admissibility.65 But as discussed above, the Board did not consider the merits of New York’s 

contention. At this stage in a proceeding the petitioner bears the burden of proffering an 

admissible contention. The Board found that New York has not done so, and New York has not 

provided us with sufficient information to show that the Board finding was an error of law or 

abuse of discretion. 

New York also questions the distinction the Board drew between the “as left” and “as 

found” acceptance criteria, arguing that “the supposedly dispositive distinction between the ‘as 

found’ acceptance criteri[on] of 1.0 La and the ‘as left’ acceptance criteri[on] of 0.75 La is simply 

not supported by the regulations or prior submissions from Entergy or NRC Staff ....”66 But as 

New York itself argues, Option B states that for Type A tests, “[t]he leakage rate must not 

exceed the allowable leakage rate (La) with margin, as specified in the Technical 

Specifications.”67 The Unit 2 Technical Specifications provide that the “[c]ontainment leakage 

rate acceptance criterion is 1.0 La. During the first unit startup following testing in accordance 

with this program the leakage rate acceptance criteri[on] [is] ... [less than or equal to] 0.75 La for 

Type A tests.”68 In reaching its decision, the Board relied on the plain language of the technical 

specifications.69 Nothing New York has raised on appeal would lead us to question the Board’s 

determination here. 

 

65 Id.

66 Id. at 22. 

67 10 C.F.R. pt. 50, app. J, Option B § III.A; see also New York Appeal at 22. 

68 License Amendment Request, Attach. 2, Technical Specification 5.5.14. 

69 See LBP-15-26, 82 NRC at 170 n.9, 176-77. 
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New York further argues that the Board erred when it accepted Entergy’s arguments and 

disregarded New York’s viewpoint.70 But the Board carefully analyzed New York’s arguments 

regarding the perceived increasing trend in Type A test results and determined that those 

arguments failed to meet the requirements of 10 C.F.R. § 2.309(f)(1)(v) and (vi).71 Our review of 

the record does not reveal any error of law or abuse of discretion with respect to the Board’s 

holding on this aspect of NYS-1. 

3. Seismic Risk 

In its petition to intervene, New York stated that the updated seismic hazard analysis for 

Unit 2 “shows that the anticipated ground motion is larger for higher frequency events than was 

understood when [Unit 2] received its operating license in 1973.”72 The Board found that New 

York had merely referenced this seismic hazard analysis without adequately explaining its 

significance to the proposed permanent extension of the Type A test interval or how it 

controverts the portion of the license amendment request discussing seismic impacts.73 

Accordingly, the Board concluded that this portion of New York’s contention neither raised a 

material issue nor established a genuine dispute, as required by 10 C.F.R. § 2.309(f)(1)(iv) and 

(vi).74

 

70 New York Appeal at 23. 

71 LBP-15-26, 82 NRC at 177-78. 

72 New York Petition to Intervene at 15. 

73 LBP-15-26, 82 NRC at 178. 

74 Id.
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On appeal, New York argues that the Board erred in rejecting its seismic risk 

argument—“[t]he ‘significance’ of a [probabilistic risk assessment] purporting to evaluate a risk 

factor but failing to consider the most up-to-date information regarding that risk factor should be 

self-explanatory.”75 This argument misconstrues our contention admissibility standards, which 

require a petitioner to address—and meet—each of the six factors set forth in 10 C.F.R. 

§ 2.309(f)(1). Here, the Board found that New York failed to demonstrate a material issue or 

raise a genuine dispute with the application.76 On appeal New York does not identify any error 

of law or abuse of discretion with respect to the Board’s ruling on the updated seismic studies. 

4. Severe Accident Mitigation Alternatives (SAMA) Analysis 

As part of NYS-1, New York claimed that the SAMA analysis prepared for the Indian 

Point license renewal proceeding “does not take into account the value or decontamination cost 

of offsite properties with iconic value,” “artificially and improperly limits its scope to land and 

population only within 50 miles of the site,” and “relied on [an outdated] dollar per person rem 

value of $2,000.”77 The Board concluded that New York had not demonstrated how its SAMA 

analysis claims raised a genuine dispute on a material issue with the license amendment 

 

75 New York Appeal at 24. Additionally, New York argues in its appeal that it had “removed any 

remaining confusion” in its reply in support of its petition to intervene. Id. But a reply cannot 

introduce arguments not originally included in an intervention petition. See, e.g., U.S. 

Department of Energy, CLI-09-14, 69 NRC at 588. 

76 LBP-15-26, 82 NRC at 178. 

77 New York Petition to Intervene at 20. The SAMA analysis is being litigated in the context of 

the Indian Point, Units 2 and 3 license renewal proceeding. See Entergy Nuclear Operations, 

Inc. (Indian Point, Units 2 and 3), CLI-15-2, 81 NRC 213 (2015); Entergy Nuclear Operations, 

Inc. (Indian Point, Units 2 and 3), LBP-13-13, 78 NRC 246, 450-89 (2013) (appeals pending); 

see also Staff Answer to New York Petition at 19 & n.78. 
- 17 - 

application.78 Moreover, the Board found that New York “fail[ed] to provide expert opinions or 

adequate facts in support of [the] alleged deficiencies, as required by 10 C.F.R. 

§ 2.309(f)(1)(v).”79 Therefore, the Board concluded that New York had not met its burden to 

show a genuine dispute with the license amendment application.80

On appeal, New York argues that the Board erred by dismissing New York’s concerns 

regarding the adequacy of Entergy’s license renewal SAMA analysis. Specifically, New York 

claims that the Board erred by turning “the evidentiary standard for an admissible contention ... 

on its head—‘expert opinions’ or multitudinous supporting facts are simply not required.”81 

However, the Board did not require New York to provide support for its contentions beyond our 

normal contention admissibility standard.82 Also, the Board noted that, like the seismic claim, 

the SAMA claim did not demonstrate a material dispute with the application.83 

 

78 LBP-15-26, 82 NRC at 179. 

79 Id. 

80 Id. 

81 New York Appeal at 25. 

82 Compare New York Appeal at 25, with LBP-15-26, 82 NRC at 179 (noting that New York did 

not provide expert opinions or “adequate facts in support of these alleged deficiencies”). 

83 LBP-15-26, 82 NRC at 179. To the extent that New York generally challenges the Indian 

Point SAMA analysis, New York has not demonstrated that such a claim is within the scope of 

this license amendment proceeding, as required by 10 C.F.R. § 2.309(f)(1)(iii). Nonetheless, 

the SAMA analysis is being litigated in the context of the Indian Point license renewal 

application; the adjudication on that application is ongoing and New York is pursuing its SAMA 

analysis claims in that forum. 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) (ML14045A414) (pending). 
- 18 - 

In sum, New York has not persuaded us that the Board erred at law or abused its 

discretion in holding Contention NYS-1 inadmissible. Accordingly, we affirm the Board’s 

decision with respect to NYS-1. 

C. Contention NYS-2 

Contention NYS-2, as submitted by New York, states: 

Entergy’s request to amend the Indian Point Unit 2 operating license and 

technical specifications should be denied because Entergy has not submitted an 

Environmental Report as required by 10 C.F.R. [§] 51.53 and it has not 

undergone the required NRC Staff environmental review pursuant to 10 C.F.R. 

§ 51.101 and, despite Entergy’s claim to the contrary, the proposed amendment 

is not categorically exempt from that review under 10 C.F.R. § 51.22(c)(9).84

As part of Contention NYS-2, New York asserted that the license amendment request 

could not be considered for a categorical exclusion85 because it involves a significant hazards 

consideration, which would prevent it from being exempted pursuant to 10 C.F.R. 

§ 51.22(c)(9).86 New York contended that its “argument [was] relevant to whether the 

Commission should ultimately make such a final determination.”87 Additionally, New York 

argued that if the no significant hazards consideration determination is unreviewable, then a 

 

84 New York Petition to Intervene at 20. 

85 Section 51.22 identifies categories of actions that are exempt from NEPA review because the 

NRC has made a generic finding that the “actions do[] not individually or cumulatively have a 

significant effect on the human environment.” 10 C.F.R. § 51.22(a). These are generally 

referred to as “categorical exclusions.” 

86 New York Petition to Intervene at 21. Before the Board New York made the same argument 

in support of Contention NYS-1. See New York Petition to Intervene at 8-10. The Board 

rejected this argument because our regulations do not allow the Staff’s no significant hazards 

consideration determination to be contested. LBP-15-26, 82 NRC at 178; see 10 C.F.R. § 

50.58(b)(6). New York did not appeal this aspect of the Board’s holding on Contention NYS-1. 

87 State of New York Reply in Support of Petition to Intervene and Request for Hearing (June 

19, 2015), at 19. 
- 19 - 

categorical exclusion pursuant to 10 C.F.R. § 51.22(c)(9) “becomes an unassailable substantive 

conclusion that Industry and NRC Staff can employ to avoid environmental review of proposed 

actions.”88

The Board reiterated that a no significant hazards consideration determination may not 

be contested, consistent with our regulation in 10 C.F.R. § 50.58(b)(6).89 But the Board 

differentiated a petitioner’s ability to challenge the categorical exclusion determination. In 

particular, the Board observed that a petitioner may either show the existence of “special 

circumstances” or show that the license amendment would result in increased offsite releases of 

effluents or increased individual or cumulative occupational radiation exposure.90 The Board 

found that New York did not seek to show that the license amendment would result in significant 

increases to offsite effluent releases or occupational radiation exposure.91 And while New York 

sought to demonstrate the existence of “special circumstances,” it first did so in its reply brief, 

which the Board found untimely.92 The Board noted that, even if New York had timely asserted 

“special circumstances,” the arguments it presented—“various historical degradation events ... 

as well as the reactor’s location in the most densely populated part of the country”—would have 

been unavailing and, therefore, that the contention was inadmissible.93

 

88 Id. at 20. 

89 LBP-15-26, 82 NRC at 180-81; see also id. at 178 n.30 (citing Carolina Power & Light Co.

(Shearon Harris Nuclear Power Plant), CLI-01-7, 53 NRC 113, 118 (2001)). 

90 Id. at 181. 

91 Id.

92 Id. at 181-82. 

93 Id. at 182 (internal citations omitted). 
- 20 - 

On appeal, New York renews its argument that the bar on challenges to no significant 

hazards consideration determinations effectively bars challenges to categorical exclusions.94 

We disagree. As the Board observed, our regulations provide specific avenues for petitioners to 

challenge categorical exclusion determinations.95 New York did not avail itself of these 

opportunities, nor does it explain how the Board’s holding constituted an error of law or abuse of 

discretion. New York also objects to the Board’s rejection of the “special circumstances” 

argument as untimely—New York asserts that the argument was “a natural extension” of its 

intervention petition.96 But the Board did not base its determination solely on timeliness—it 

reasonably determined that the arguments New York presented would have been unavailing 

even if timely proffered.97 

New York does not demonstrate error of law or abuse of discretion by the Board; we 

therefore affirm the Board’s holding with respect to Contention NYS-2.98

 

94 New York Appeal at 27. 

95 See 10 C.F.R. § 51.22(b), (c)(9)(ii) and (iii). 

96 New York Appeal at 29. 

97 LBP-15-26, 82 NRC at 182. Further, New York does not demonstrate Board error as to the 

timeliness determination. At oral argument New York conceded that its original petition neither 

cited 10 C.F.R. § 51.22(b) nor argued for “special circumstances.” See Tr. at 138-39. And it is 

well-settled in our jurisprudence that “a petitioner may not use its reply to raise new issues for 

the first time.” DTE Electric Co. (Fermi Nuclear Power Plant, Unit 2), CLI-15-18, 82 NRC 135, 

146 (2015) (citing Crow Butte, CLI-09-12, 69 NRC at 568; Nuclear Management Co., LLC

(Palisades Nuclear Plant), CLI-06-17, 63 NRC 727, 732 (2006); Louisiana Energy Services, 

CLI-04-25, 60 NRC at 224-25). 

98 Just after the Staff issued the license amendment, New York requested that we vacate or, in 

the alternative, stay the Staff’s issuance of the license amendment to Entergy pending our 

resolution of this appeal. State of New York Motion to Vacate or for Stay of Staff Action 

Pending Appeal of Atomic Safety and Licensing Board Decision LBP-15-26 Regarding License 

Amendment for Entergy Indian Point Unit 2 to Delay the Containment Leak Rate Test for Five 

Years (Feb. 26, 2016); see NRC Staff’s Answer in Opposition to State of New York Motion to 
- 21 - 

 CONCLUSION 

For the reasons set forth above, we affirm the Board’s decision in LBP-15-26. 

IT IS SO ORDERED. 

 For the Commission 

NRC SEAL 

 /RA/ 

 ___________________________ 

 Annette L. Vietti-Cook 

 Secretary of the Commission 

Dated at Rockville, Maryland, 

This 5th day of April, 2016. 

 

Vacate or Stay Issuance of License Amendment (Mar. 7, 2016); Entergy’s Answer Opposing 

New York State’s Motion to Vacate or Stay the Effectiveness of the February 23, 2016 License 

Amendment Regarding Indian Point Unit 2 Integrated Leak Rate Testing (Mar. 7, 2016). We 

deny New York’s motion as moot. Because New York sought to stay or vacate the Staff’s action 

pending our review of its appeal and we have now taken action on its appeal, we need not 

consider the stay application further. 
UNITED STATES OF AMERICA 

NUCLEAR REGULATORY COMMISSION 

In the Matter of ) 

 ) 

ENTERGY NUCLEAR OPERATIONS, INC. ) Docket No. 50-247-LA 

) 

(Indian Point Nuclear Generating ) 

 Station, Unit 2) ) 

 

CERTIFICATE OF SERVICE 

I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER 

(CLI-16-05) 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 

E. Roy Hawkens, Chairman 

Chief Administrative Judge 

Roy.Hawkens@nrc.gov

Dr. Gary S. Arnold 

Administrative Judge 

Gary.Arnold@nrc.gov 

Dr. Sue H. Abreu 

Administrative Judge 

Sue.Abreu@nrc.gov 

Alana Wase, Law Clerk 

alana.wase@nrc.gov 

Catherine Scott, Esq. 

Beth N. Mizuno, Esq. 

David E. Roth, Esq. 

Sherwin E. Turk, Esq. 

Brian Harris, Esq. 

Anita Ghosh, Esq. 

John Tibbetts, Paralegal 

U.S. Nuclear Regulatory Commission 

Office of the General Counsel 

Mail Stop O-15D21 

Washington, DC 20555-0001 

Catherine.Scott@nrc.gov

edward.williamson@nrc.gov 

beth.mizuno@nrc.gov 

david.roth@nrc.gov 

sherwin.turk@nrc.gov 

brian.harris.@nrc.gov 

anita.ghosh@nrc.gov 

john.tibbetts@nrc.gov 

OGC Mail Center 

OGCMailCenter@nrc.gov 

Paul M. Bessette, Esq. 

Raphael Kuyler, Esq. 

Kathryn M. Sutton, Esq. 

Morgan, Lewis & Bockius, LLP 

1111 Pennsylvania Avenue, NW 

Washington, DC 20004 

pbessette@morganlewis.com

rkuyler@morganlewis.com; 

ksutton@morganlewis.com

 
Docket No. 50-247-LA 

COMMISSION MEMORANDUM AND ORDER (CLI-16-05)

2 

Martin O’Neil, Esq. 

Morgan, Lewis & Bockius, LLP 

1000 Louisiana Street 

Suite 4000 

Houston, TX 77002 

martin.oneill@morganlewis.com

Siobhan Blank, Esq. 

Lisa S. Kwong, Esq. 

Brian Lusignan, Esq. 

John J. Sipos, Esq. 

Assistant Attorneys General 

Teresa Manzi, Legal Assistant 

Office of the Attorney General 

 of the State of New York 

The Capitol 

Albany, New York 12224-0341 

siobhan.blank@ag.ny.gov

lisa.kwong@ag.ny.gov 

brian.lusignan@ag.ny.gov

john.sipos@ag.ny.gov 

teresa.manzi@ag.ny.gov

William B. Glew, Jr. 

Organization: Entergy 

440 Hamilton Avenue, White Plains, NY 

10601 

wglew@entergy.com 

Jeanne Cho, Esq. 

Senior Counsel 

Entergy Services, Inc. 

440 Hamilton Avenue 

White Plains, NY 10601 

jcho1@entergy.com

 [Original signed by Clara Sola ] 

 Office of the Secretary of the Commission 

Dated at Rockville, Maryland 

this 5th day of April, 2016