Entergy inches forward on Indian Point issues at the NRC, New York state agencies

Entergy Corp. (NYSE: ETR) in its Aug. 6 quarterly Form 10-Q report described the recent signposts passed in its long and winding road to get license extensions from the Nuclear Regulatory Commission for its Indian Point Units 2 and 3, and approval through a contentious process with New York regulators to get new Clean Water Act permitting for the plant.

Indian Point is located on the Hudson River and has two operating units: Unit 2 (1,028 MW maximum dependable) and Unit 3 (1,041 MW maximum dependable). A couple of years ago the New York State Public Service Commission soiicited offers from various power developers for replacement capacity, in case the two Indian Point units had to be shut. That process has largely been on hold lately as the regulatory processes move forward on license/permit renewals.

Those recent developments, as described by Entergy, are:

  • In March 2015 the NRC resolved the remaining appeals from its own Atomic Safety Licensing Board’s (ASLB) Track 1 decisions in favor of Entergy and NRC staff. Those appeals addressed electrical transformers and environmental justice. All filings in response to the NRC’s request for additional information on Severe Accident Mitigation Alternatives (SAMA) issues raised by the pending two SAMA-related appeals have been completed. There is no deadline for the NRC to act on the SAMA-related appeals.
  • In March 2015 the ASLB granted New York State’s motions to amend and update two of the remaining three previously-admitted Track 2 contentions. The ASLB scheduled Track 2 hearings for November 2015.
  • Independent of the ASLB process, the NRC staff has performed its technical and environmental reviews of the Indian Point 2 and 3 license renewal application. In June 2015 the NRC staff advised the ASLB that the schedule for issuance of a further Final Supplemental Environmental Impact Statement (FSEIS) supplement to address new information would be postponed by six months. Under the updated schedule, the new final FSEIS supplement is expected in September 2016.
  • In March 2015 the New York State Department of Environmental Conservation (NYSDEC) staff withdrew from consideration at trial before the administrative law judges (ALJs) its proposal for annual fish protection outages of 92 days. NYSDEC staff and environmental group Riverkeeper continue to advance other annual outage proposals. NYSDEC staff also withdrew from further consideration a $24 million annual interim payment that had been proposed as a condition of the draft water pollution control permit.
  • In March 2015, New York State Department of State’s (NYSDOS) motion for reargument or, alternatively, for leave to appeal the December 2014 Coastal Zone Management Act grandfathering decision to the New York State Court of Appeals was denied by the Appellate Division. In April 2015, as permitted by New York rules, NYSDOS filed a separate motion directly with the State Court of Appeals requesting leave to appeal that decision. The State Court of Appeals granted NYSDOS’s motion for leave to appeal in June 2015 and scheduled briefing on the appeal through January 2016.
  • In June 2015, Entergy and NYSDOS executed an agreement extending their agreement intended to preserve the parties’ respective positions on the effectiveness of Entergy’s November 2014 notice withdrawing the Indian Point consistency certification. Under the extension agreement, if NYSDOS is correct that withdrawal was not effective, the parties will be deemed to have agreed to a stay until Sept. 28, 2015, thus making the deemed deadline for decision on the 2012 consistency certification Oct. 5, 2015.

In April 2007, Entergy submitted to the NRC a joint application to renew the operating licenses for Indian Point 2 and Indian Point 3 for an additional 20 years. The original expiration date of the NRC 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. Authorization to operate Indian Point 2 rests, and for Indian Point 3 will rest, on Entergy’s having timely filed a license renewal application that remains pending before the NRC. So the licenses will be good for as long as the renewal requests are ongoing.

The New York State Department of Environmental Conservation 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 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. The notice triggered an administrative adjudicatory hearing before NYSDEC ALJs on the proposed notice. 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 NYSDEC, the agency that would issue or deny a water quality certification for the Indian Point license renewal process, 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.

In 2014, hearings were held on NYSDEC’s proposed best technology available, which is closed cycle cooling. The NYSDEC staff also has proposed annual fish protection outages of 42, 62, or 92 days at both units or at one unit with closed cycle cooling at the other. The ALJs held a further legislative hearing and issues conference on this NYSDEC staff proposal in July 2014. In January of this year, Entergy wrote NYSDEC leadership requesting an explanation of the delay in release of the ruling following an ALJ’s on-record statement that the ALJ’s draft ruling was under “executive review.” In February 2015, the ALJs issued a ruling scheduling hearings on the outage proposals and other pending issues in September and October 2015, with post-hearing briefing to follow in December 2015.

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.