The issues that Entergy (NYSE: ETR) has with life expectancy for its Indian Point nuclear plant in New York are often referred to in relation to extension of NRC licenses, but the plant operator has plenty of water permitting issues to clear up, as well.
The questions about Indian Point’s future as so large that the New York State Public Service Commission in late 2012 opened a docket within which it is looking at options to replace Indian Point and its nearly 2,100 MW of capacity if it has to shut. The PSC, to this point, has not approved any generating options as replacements.
The original expiration date of the Nuclear Regulatory Commission-issued operating license for Indian Point 2 was in September 2013 and the original expiration date of the NRC operating license for Indian Point 3 is in December 2015, Entergy noted in its Feb. 27 annual Form 10-K report. In April 2007, Entergy submitted the applications to the NRC to renew the operating licenses for Indian Point 2 and 3 for an additional 20 years.
In the meantime, Indian Point Unit 2 has now entered its “period of extended operation” after expiration of the plant’s initial license term under a “timely renewal” policy that allows continued operation after a license has expired provided that a license extension application is pending.
Various parties have expressed opposition to renewal of the licenses. The Atomic Safety and Licensing Board (ASLB), the board within the NRC that conducts hearings and performs other regulatory functions that the NRC authorizes, has admitted 21 contentions raised by the state of New York or other parties, which were combined into 16 discrete issues. Three of the 16 discrete issues have been resolved by the ASLB without hearing. Of the remaining 13 discrete issues, nine that were designated by the ASLB as “Track 1” were subject to hearings over 12 days in late 2012.
In November 2013, the ASLB issued a decision on the nine Track 1 contentions. The ASLB resolved eight Track 1 contentions favorably to Entergy. One Track 1 contention based on a dispute over the characterization of certain electrical equipment as “active” or “passive” was resolved in favor of the state of New York despite precedent supporting the characterization advocated by Entergy and NRC staff, the Form 10-K noted. Appeals to the NRC of issues raised by the ASLB’s Track 1 decision were due in February of this year.
The ASLB’s decision on issues not appealed is now final. NRC rules provide for two further rounds of filings after submission of appeals. There is no deadline for the NRC to resolve appeals from the ASLB. The remaining four discrete issues have been designated by the ASLB as “Track 2.” Testimony on Track 2 contentions has not been completed, and Track 2 hearings have not been scheduled.
The NRC staff is also continuing to perform its technical and environmental reviews of the Indian Point 2 and 3 license renewals. The NRC staff issued a Final Safety Evaluation Report (FSER) in August 2009, a supplement to the FSER in August 2011, a FSEIS in December 2010, and a supplement to the FSEIS in June 2013. In addition, the NRC staff has stated its intent to issue a further supplement to the FSER by mid-2014. The NRC staff is considering whether a second supplement to the FSEIS is necessary. The second supplement to the FSER and the already-issued supplement to the FSEIS are expected to affect testimony yet to be filed on Track 2 contentions.
Water permitting also a contentious issue
In the meantime, outside of the NRC, the New York State Department of Environmental Conservation (NYSDEC) has taken the position that Indian Point must obtain a new state-issued Clean Water Act Section 401 water quality certification as part of the license renewal process. Entergy submitted its application for a water quality certification to the NYSDEC in April 2009, with a reservation of rights regarding the applicability of Section 401 in this case. After Entergy submitted certain additional information in response to NYSDEC requests for additional information, in February 2010 the NYSDEC staff determined that Entergy’s water quality certification application was complete.
In April 2010 the NYSDEC staff issued a proposed notice of denial of Entergy’s water quality certification application. That notice triggered an administrative adjudicatory hearing before NYSDEC administrative law judges (ALJs). The NYSDEC staff decision does not restrict Indian Point operations, but the issuance of a certification is potentially required prior to NRC issuance of renewed unit licenses. In June 2011, Entergy filed notice with the NRC that the NYSDEC had taken longer than one year to take final action on Entergy’s application for a water quality certification and, therefore, had waived its opportunity to require a certification under the provisions of Section 401 of the Clean Water Act. The NYSDEC has notified the NRC that it disagrees with Entergy’s position and does not believe that it has waived the right to require a certification.
The NYSDEC ALJs overseeing the agency’s certification adjudicatory process stated in a ruling issued in July 2011 that while the waiver issue is pending before the NRC, the NYSDEC hearing process will continue on selected issues. The ALJs held a Legislative Hearing (agency public comment session) and an Issues Conference (pre-trial conference) in July 2010 and set certain issues for trial in October 2011, which is continuing into 2014. After the full hearing on the merits and post-hearing briefing, the ALJs will issue a recommended decision to the commissioner who will then issue the final agency decision. A party to the proceeding can appeal the decision of the commissioner to state court.
In addition that ongoing issue, the consistency of Indian Point’s operations with New York State’s coastal management policies must be resolved to the extent required by the Coastal Zone Management Act (CZMA).
Three avenues pursued to resolve CZMA issues
Entergy said it has undertaken three independent initiatives to resolve CZMA issues.
- First, in July 2012, Entergy filed a supplement to the Indian Point license renewal applications at the NRC. The supplement states that, based on applicable federal law and in light of prior reviews by the state of New York, the NRC may issue the requested renewed operating licenses for Indian Point without the need for an additional consistency review by the state of New York under the CZMA. In July 2012, Entergy filed a motion for declaratory order with the ASLB seeking confirmation of its position that no further CZMA consistency determination is required before the NRC may issue renewed licenses. In April 2013, the state of New York and the Riverkeeper environmental group filed answers opposing Entergy’s motion. The state of New York also filed a cross-motion for declaratory order seeking confirmation that Indian Point had not been previously reviewed, and that only the New York State Department of State (NYSDOS) could conduct a CZMA review for NRC license renewal purposes. In April 2013, the NRC staff filed answers recommending the ASLB deny both Entergy’s and the state of New York’s motions for declaratory order. In June 2013, the ASLB denied Entergy’s and New York’s motions, without prejudice, on the ground that consultation on the matter of previous review among the NRC, Entergy and New York had not taken place. In December 2013, NRC staff initiated consultation under federal CZMA regulations by serving on NYSDOS written questions related to whether Indian Point had been previously reviewed. NRC staff did not state a deadline for NYSDOS to respond. It is uncertain what further steps may be entailed in the consultation process, the Form 10-K noted.
- Second, Entergy filed with the NYSDOS in November 2012 a petition for declaratory order that Indian Point is grandfathered under either of two criteria prescribed by the New York Coastal Management Program (NYCMP), which sets forth the state coastal policies applied in a CZMA consistency review. NYSDOS denied the motion by order dated January 2013. Entergy filed a petition for judicial review with the New York State Supreme Court for Albany County in March 2013. The court denied Entergy’s appeal in December 2013. Entergy initiated an appeal to the Appellate Division of the New York State Supreme Court on Jan. 22. Briefing and oral argument have not yet been scheduled.
- Third, in December 2012, Entergy filed with NYSDOS a consistency determination explaining why Indian Point satisfies all applicable NYCMP policies. Entergy said it included in the consistency determination a “reservation of rights” clarifying that Entergy does not concede NYSDOS’s right to conduct a new CZMA review for Indian Point. The six-month federal deadline for state decision on a consistency determination runs from the date the submission is complete. In January 2013, NYSDOS notified Entergy that it deemed the consistency determination incomplete because it did not include the final version of a further supplement to the FSEIS that was targeted for subsequent issuance by NRC staff. In June 2013, NYSDOS notified Entergy that it had received a copy of the final version of the FSEIS and that NYSDOS’s review of the Indian Point consistency determination had begun. In October 2013, Entergy and NYSDOS executed a stay agreement that extended the deadline for NYSDOS to decide Indian Point’s CZMA consistency certification to March 22. In January, Entergy and NYSDOS executed another stay agreement that further extends NSDOS’s deadline for decision to Dec. 31, 2014. A basis for the further extension is a request by NYSDOS for supplemental information, to which Entergy will be responding during 2014.
In August 2013, Riverkeeper filed with the ASLB a proposed amended Endangered Species Act contention alleging that NRC staff’s supplemental FSEIS issued in June 2013 did not adequately consider Riverkeeper comments or explain the effect of certain new information used to develop the supplemental FSEIS. Entergy and NRC Staff have filed answers in opposition. Riverkeeper’s proposed amended contention and Entergy’s motion to dismiss Riverkeeper’s original admitted contention on endangered species are pending before the ASLB.