ML11305A021

Letter to Brian Holian (NRC) from John L. Parker, NYS Dept of Environmental Conservation, Dated 8/11/11, Indian Point License Renewal

ML11305A021
Person / Time
Site:	Indian Point
Issue date:	08/11/2011
From:	Parker J State of NY, Dept of Environmental Conservation
To:	Brian Holian Office of Nuclear Reactor Regulation
References
TAC MD5411, TAC MD5412
Download: ML11305A021 (1)

Text

New York State Department of Environmental Conservation Office of General Counsel, Region 3 21 South Putt Corners Road New Paltz, New York 12561 - 1620 Phone: (845) 256-3000

• FAX: (845) 255-3042 Website: w.ww.dec..ny.gov W**

Joe.Martens Commissioner August 11, 2011 Brian E. Holian Director, License Renewal U.S. Nuclear.Regulatory Commission 11555 Rockville Pike Mailstop 011F1 Rockville, MD 20852 Re: Indian Point License Renewal, Docket Nos. 50-247, 50-286 State of New York Denial, Clean Water Act Section 401 Water Quality Certification

Dear Mr. Holian:

I am wri ting on behalf of Commissioner Joe Martens in response to the July 29, 2011 letter to you from Fred Dacimo, Vice President, Entergy Nuclear Northeast. As you know, the July 29*t1 letter is the third that Mr. Dacimo ha's written to you in tle past five weeks. For the reasons stated below, and for those stated in the previous responsive correspondence of the New York State Department of Environmental'Conservation, New York State timely denied Entergy's application for a Clean Water Act Section 401 Water Quality Certification on April 2, 2010 relating to the license renewal of Indian Point Units 2 and 3, located in Buchanan, New York.

The Dacimo / Entergy correspondence does not change this fact...

Mr. Dacimo's most recent, letter again argues Entergy's new-found theory that the Department has somehow "waived" its right to review the application for the Section 401 Water Quality Certification; As Cominissioner Martens stated in his.June 23, 2011 letter to the Commission, the law and the facts do not support Entergy's newly proffered theory of a "waiver." For the following reasons, the State of New York has not "waived"its Section 401.review obligation -

the State has denied Entergy's application for the Water Quality Certification within the one-year time period required by the Clean Water .Act.

New York's Action on Entergy's Application for a Section 401 Water Quality Certification Was Timely Because New York Acted -on the Application within One Year.

As, the Department has previously communicated to you, Clean Water Act Section 401 requires Entergy to obtain a Water Quality Certification from the State as part of its license renewal application for Indian Point Units 2 and 3. Entergy applied to this Department for the Water Quality Certification on April 6,2009. The Department denied that application on April 2,2010, which was within one year of Entergy's submission of the application. See Letter from Commissioner Martens to B. Holian, dated June 23, 2011; see also Letter from J. Parker to B.

Holian, dated July 15, 2011, with attached Letter from M. Sanza to M. Villa and D. O'Connell, dated July 1, 2011.

Letter to Brian E. Holian Page 2 of 4 August 11,2011 Entergy's selective argument does not dispute that New York State's act of denial of the certification application was timely. Similarly, Entergy does not address judicial precedent that also runs counter to its new found theory.. Though the Department's denial was within one year of Entergy's submission of its application, federal precedent suggests that the one-year period did not begin to run until February 26, 2010, which was the date that the Department deemed the application complete and was more than 10 months after Entergy submitted the application) Thus, the Department's denial on April.2, 2010 arguably would have been timely if made as late as February 26, 2011, the one year period after Entergy cured the deficiencies in its application documents it submitted to the Department.

As illustrated in the enclosed Timeline, the milestone events related to the Department's denial of Entergy's application for the Section 401 Water Quality Certification included the Department's requests for additional information; Entergy's submission of.additional informati6n; the Department's determination of completeness; and theDepartment's issuance of the denial. Despite Entergy's delay in providing sufficient and necessary information for the application to be deemed complete, the Department offered a reasoned and detailed basis for the denial of the Water Quality Certification application as required by federal law. In sum, the Department's review and denial, and all of these events, occurred well within the requisite one-year period under the Clean Water Act.

Entergy Availing Itself of New York's Administrative Process Subsequent to the State's Timely Denial Does Not Convert New York's Timely Denial into a "Waiver."

Entergy is attempting to conflate the Clean Water Act one-year action period with the subsequent New York State administrative hearing process - a hearing process expressly

• requested by Entergy - to magically-wipe away New York's timely denial of its application for a Section 401 Water Quality Certification. Not only does this effort fail on the facts and the law, Entergy's current novel theory is belied by the fact that it has not withdrawnits hearing request to the Department despite its "waiver" claim.

After the Department denied Entergy's application for the Section 401 Water Quality Certification, Entergy requested 'an administrative hearing to challenge that denial. This administrative process subsequent to the Department's denial is provided for by the .State Uniform Procedures Act and does not alter the legal consequences of New York's April 2, 2010 denial. Indeed, Entergy offers no controlling legal authority for such a proposition. Instead, Entergy's sleight of hand suggests that because NewYork has an otherwise robust administrative process for review of agency decisions subsequent to when the administrativeagency takes the action-on the Section 401 application, the Department's decision on the application cannot be the agency action required by the Clean Water Act. Entergy's new theory has no merit. State and Federal law and existing legal precedent establish clearly that Entergy's subsequent request for. additional review to challenge New York's denial cannot alter the fact that the State. met the Clean Water Act requirement for that denial.

1 The Fourth Circuit recently held that the one-year period does~not even commence until an application is deemed valid. AES Sparrows Point LNG, LLC v. Wilson, 589 F.3d 721 (401 Cir 2009) (holding that the Army Corps of Engineers properly determined that the State of Maryland had not waived its right to review a Section 401 application for a water quality certification when the State issued its decision within one year of a valid application).

Letter to Brian E. Holian Page 3 of 4 August 11, 2011 The State-administrative hearing process that reviews the agency's action to deny the certification application often occurs over a much lengthier timeframe - well beyond one year.

The State's §ubseqident*d'A stra+/-ti-ve process -cotraststo-the Water Quality Certification' application determination, which is a pio6duct of federal law. In fact, as illustrated in the enclosed Timeline, the numerous milestone events attendant to the administrative hearing process here demonstrate that this process could. not be concluded within one year.

Under New York's administrative process that follows a decision on a Section 401 Water Quality Certification application, numerous milestone events occur in a typical Uniform Procedures Act proceeding. Here, they include the applicant's submission of a Request for Adjudicatory Hearing; the'Department's"publication of Notice of Public Comment Period, Legislative Public Hearing and Issues Conference; the Department's convening of a Legislative Public Hearing and Issues Conference; the parties' submission of closing and reply briefs; the ALJ's Ruling on proposed Issues for Adjudication and Petitions for Party Status and Scheduling Order; the parties' submission of Pre-filed Direct and' RebuttalTestimony; and the holding of the adjudicatory hearing. See Attached Timeline. As demonstrafed by the Timeline, the subsequent administrative process cannot occur within one year, let alone in conjunction with the Department's review of the Section401 application and its action to grant or deny the application. New York State law does not contemplate that result, nor does the Clean Water Act require it.

In previous correspondence, the Department has made clear that .Courts have. acknowledged that a state's action on a Section 401 Water-Quality Certification application is distinct from an agency's subsequent review process, and that the subsequent review process is not subject to the one-year period. See City of Klamath Falls v. Environmental Quality.Commission, et al.,119 Or.

App. 375, 377-378, 851 P.2d 602, 604 (1993); affirmed City of Klamath Falls v. Environmental Quality Commission, et al., 318 Ore. 532, 870 P.2d 825 (1994) (stating that "[a]lthough the [applicant] had every right to pursue a review, we do not construe Section 401 as.contemplating that an applicant may benefit from the running of the one year period while review is taking place, at.

the applicant's instance, of the denial of certification by the entity that is statutorily designated to make that derision"); see also FPL Energy Main Hydro LLC v. Dept. of Envtl. Protection,2007 Me.

97, 926 A.2d 1197, 1203 (Supreme Judicial Court of Maine, 2007), cert denied 128 S. Ct. 911 (2008)

(stating that "[t]here is no indication . that Congress intended for all in-state appeals tobe completed within the same one-year deadline. If Congress. intended to impose such extreme time pressure, it would have used specific language to that effect.")..

The fact that Entergy has availed itself of the administrative review opportunity that involves a number of milestones that necessarily occur beyond one year should not be used as a sword by Entergy.. Simply stated, Entergy controlled whether it would opt for the administrative process subsequent to the denial. Now, Entergy wants the Commission to recognize its creative re-.

writing of the requirements of the Clean Water Act that courts have rejected. New York's administrative procedure following a denial, however, does not alter the fact that the State of New York acted on Entergy's application, and that the action was timely.

Letter to Brian E. Holian Page 4 of 4 August 11, 2011 I note, too, that Entergy's newly proffered theory of "waiver" also comes over a year into the Uniform Procedures Act process that Entergy availed itself of under New York State Law (after New York's..timely denial) with Entergy's filing. of a request for an adjudicatory hearing on April 29, 2010.

Entergy seeks to avail itself of every possible avenue in support of its application. in the license renewal process for the nuclear generating facilities at Indian Point Units 2 and 3. Entergy has the option to pursue that path, but having chosen to do so, it must abide by the consequences and not use it as a sword in an unfounded attempt to undo a program that Congress delegated to the State more than 30 years ago. Moreover, and for the reasons stated above, Enitergy cannot ignore the express provisions of the Clean Water.Act, judicial interpretations of those provisions, and the legal determinations, reasonably made, of the New York State Department of Environmental Conservation.

Please let me know if you have any questions about. the State's timely denial' of Entergy's application for a Section 401 Water Quality Certification for the 20-year license renewal of Indian Point Units 2 and 3.

Very truly yours,

/ John L. Parker cc: By U.S. Mail Commissioner Joe Martens, Department. of Environmental Conservation William Dean, Regional Administrator, N C Region 1 John Boska, NRR Senior Project Managerd Paul Eddy, NYS Department of Public Service NRC Resident Inspector's Office Andrew Stuyvenberg, NRC License Renewal Environmental Project Manager Sherwin Turk, NRC Office of General Counsel Fred R. Dacimo, Vice President Operations, Entergy Nuclear Northeast

State of New York Department of Environmental Conservation Federal Clean Water Act Section 401 Water Quality Certification Application for Indian 'Point Units 2 and 3 Timeline Section 401 Water Quality Certification Process - Milestones to DEC's Timely Denial April 6, 2009 Entergy submits Section 401 Water Quality Certification (WQC) Application to NYS Department of Environmental Conservation (NYSDEC)

May 13, 2009 DEC sends Request for Additional.Information to Entergy June 12, 2009 -

March 22, 2010 Entergy submits additional information to NYSDEC February 26, 2010 NYSDEC determines Section, 401 WQC Application "complete" March 4, 2010 NYSDEC publishes Notice of Completeness in NY Environmental Notice Bulletin (ENB)

April 2, 2010 NYSDEC denies Section 401 WQC Application April 6, 2010 One yearfrom date Entergy submitted its Section 401 WQC Application Post-Section 401 Denial Process - Milestones in Subsequent Administrative Process.

April 29, 2010 Entergy requests adjudicatory hearing on NYSDEC's Denial June 9, 2010 NYSDEC publishes Notice of Public Comment Period, Legislative Public Hearing, and Issues Conference in ENB on Entergy's hearing request July 20, 20 10 Legislative Public Hearing held in Cortlandt Manor, NY July 21, 2010 Issues Conference held in New Paltz, NY September 24, 2010 Post-Issues Conference Closing Briefs filed by the parties October 29, 2010 Post-Issues Conference Reply Briefs filed by the parties December 13, 2010 Ruling on Proposed Issues for Adjudication and Petitions for Party Status and Scheduling Order setting initial adjudicatory hearing date February26, 2011 One yearfrom date AYSDEC determined Entergy's Section 401 WQC Application '"complete" July 22, 2011 Pre-filed direct testimony filed by the parties September 28, 20 11 Pre-filed rebuttal testimony to be filed by the parties' October 17, 2011 Adjudicatory hearing begins on NYSDEC Denial of Section 401 WQC Application