Subsidiaries of Entergy Corp. (NYSE: ETR) and also the U.S. Nuclear Regulatory Commission on June 21 filed separate arguments with a federal appeals court about why Entergy should be allowed to operate Indian Point Unt 2 while it fixes a bolt problem discovered this past spring during a maintenance outage.
On June 16, environmental groups including Friends of the Earth filed with the U.S. Court of Appeals for an emergency writ that would prevent the nuclear unit from being restarted while the bolt problem is fixed. Entergy restarted Indian Point Unit 2 on the same day the court filing was made, which means the question now facing the court is whether it should order that unit to be shut while the bolt issue is evaluated.
Filing June 21 arguments with the court were Entergy Nuclear Indian Point 2 LLC and Entergy Nuclear Operations Inc. They refer to the plaintiffs collectively as “FOE.”
The companies wrote: “In most of its Petition, FOE concedes (correctly) that this Court lacks jurisdiction to review NRC’s June 3, 2016 order—which denied FOE’s request that NRC issue an interim directive preventing Indian Point 2 from restarting—because it is a non-final order. Instead, FOE looks forward to NRC’s not-yet-issued final order on whether an enforcement action under [federal regulations] will be initiated, and FOE predicates its Petition on ‘D.C. Circuit precedent providing that the Court should exercise its extraordinary writ authority to protect its future jurisdiction to review not-yet-final agency actions.’
“But FOE fails to apprehend that, where the agency’s to-be-issued final order will ‘not [be] reviewable in this Court,’ there is no ‘jurisdiction under a TRAC theory.’ And this Court has held that an NRC order denying a Section 2.206 petition is a decision committed to agency discretion by law and hence is presumptively not reviewable.
“Even if this Court were to consider the merits, it should deny the petition. NRC’s processing of FOE’s petition, which FOE filed less than a month ago on May 24, 2016, does not even begin to approach the ‘egregious’ delay that might warrant mandamus relief under TRAC. To the contrary, in the June 3, 2016 non-final order, NRC promptly considered and rejected FOE’s request for an interim directive preventing Indian Point 2 from restarting. The denial was well-reasoned.”
Located in Buchanan, New York. Indian Point 2 and its sister unit, Indian Point 3, generate approximately 2,000 MW and supply approximately 25% of the electricity used in New York City and Westchester County.
Entergy says it replaced a number of damaged bolts
On March 7, Indian Point 2 was shut down for its most recent outage. During the outage, Entergy undertook numerous inspections in accordance with its Aging Management Program. One such inspection concerned reactor vessel internals. Indian Point 2 has a cylindrical reactor vessel that holds the fuel assemblies and other critical components, including the core barrel. The core barrel forms a boundary for the flow of reactor coolant to keep the heat-producing nuclear reaction at appropriate temperature levels. The plates on the inner cylinder of the core barrel (i.e., the side that faces the fuel assemblies) are bolted together by “baffle-former bolts” and “baffle-edge bolts.” These bolts assure structural integrity during normal operating and upset/emergency conditions such that the plant can be shut down safely and the reactor can be cooled.
During the inspection, Entergy told the court that it detected that, of the 832 baffle-former bolts in the entire structure, 227 had visual anomalies or ultrasonic indications of such anomalies, or could not be examined by ultrasonic testing. Entergy conservatively assumed that bolts that could not be examined were abnormal. There was, however, no sign of damage to the baffle-edge bolts and no evidence of separation of the baffle plates from their appropriate positions. Additionally, many of the baffle-former bolts that indicated degradation retained sufficient strength that they would still limit baffle plates from being displaced or flexed.
On March 29, Entergy reported the preliminary results of its inspection to the NRC and advised that it was taking corrective actions. Entergy immediately developed a comprehensive plan to replace all of the degraded bolts. Over the next two months, Entergy used highly specialized equipment to replace the 227 bolts identified in the inspections as well as two additional baffle-former bolts determined to require replacement. Entergy also elected to replace 49 additional bolts not identified as degraded. These additional bolts were replaced in strategic locations to avoid clustering in the event of potential future failures of the original (un-replaced) bolts. After replacement, all bolts were again visually inspected to ensure proper replacement and orientation.
Throughout the inspection and repair process, NRC’s three resident inspectors—who work full-time at Indian Point—conducted regular status calls with NRC regional and headquarters experts regarding the status of bolt inspection, repair, and analysis activities. The NRC dispatched a three-person team to conduct an on-site inspection at Indian Point beginning on May 23. And NRC staff closely monitored Entergy’s baffle-former bolt repair efforts.
On May 31, Entergy filed a Licensee Event Report with NRC that described these events and Entergy’s plan going forward. On June 16, having replaced the degraded bolts and the 51 additional bolts, Entergy completed restart of Indian Point 2 and commencement of its current operational cycle. Entergy’s operations group continues to monitor the reactor coolant system, through testing of coolant to check for increased radioactivity. Entergy is also monitoring for loose parts that could be symptomatic of baffle-bolt failure. In the unlikely event that a problem is detected, Entergy told the court it can promptly perform a controlled shutdown of the reactor to perform further inspections. The three NRC Resident Inspectors remain onsite at Indian Point 2 to assess any further issues that may arise.
Entergy noted that the NRC’s highest-ranked official (Chairman Stephen G. Burns), has sent a letter to U.S. Sen. Kirsten Gillibrand, D-N.Y., explaining that NRC found no safety concern that would warrant preventing Indian Point 2 from restarting, given “the licensee’s corrective actions described below and our understanding of the degradation phenomenon and its potential consequences,” including that “[b]affle assemblies are constructed with a significant amount of structural margin and integrity of the baffle plates can be maintained even with the failure of a substantial number of bolts,” and “[d]amage to fuel created by loose baffle-former bolt parts would be detected by routine monitoring of reactor coolant radioactivity.”
On June 16, FOE filed with the court for the writ preventing restart. Later that day, the court denied that interim request because FOE had not demonstrated that the requested relief is warranted. The court has also set an expedited briefing schedule.
NRC says courts have always given it discretion over issues like this
In its own June 21 brief, the NRC wrote: “Petitioners’ characterization of this action as an ’emergency’ petition for mandamus does not relieve them of the obligation to demonstrate entitlement to this most extraordinary form of relief. And they have not met this heavy burden. As an initial matter, there is no final agency action that supports exercise of this Court’s jurisdiction under the Hobbs Act. Petitioners’ request that the agency commence such an enforcement proceeding remains pending before the agency. Under the established law of this circuit, denial of emergency relief is not a reviewable final agency action.
“Beyond this jurisdictional infirmity, petitioners fail to acknowledge, let alone distinguish, longstanding precedent holding that NRC’s decision not to suspend a validly issued license is committed to the discretion and expertise of the agency and is presumptively unreviewable. Thus, they have failed to demonstrate clear entitlement to relief from this Court, as is required to obtain mandamus relief, and their petition should be denied for this reason alone.
“Even if this Court were to consider granting mandamus relief where it is not clearly compelled by statute, there is no reason to do so here. The agency specifically determined that the condition of the baffle-former bolts that are at the center of this dispute did not constitute an imminent safety threat, and it further resolved to address petitioners’ concerns as part of its process under [federal regulations].
“The Court also cannot review the adequacy of the agency’s explanation for refusing to grant emergency relief. But even if it could, the record indicates that the agency’s decision and response were fully reasonable in light of the expedited nature of petitioners’ request, the agency’s commitment to address petitioners’ concerns as part of its citizen petition process and its invitation to petitioners to discuss the matter further, and the information that the agency developed and made publicly available indicating that baffle-former bolt degradation presents no immediate safety hazard at Indian Point.
“Nor have petitioners made any demonstration of the irreparable harm that would be necessary to support mandamus. The agency has inspected the plants at issue and determined that the existence of baffle-former bolt degradation does not present an imminent safety hazard because all degraded bolts have been replaced. Although petitioners may disagree with the agency’s assessment that the plant can safely operate during the pendency of its consideration of petitioners’ 2.206 petition, the agency’s expert determination that there is no imminent safety hazard – and thus no threat of irreparable harm –is entitled to substantial deference.”