ML12220A612
| ML12220A612 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 08/07/2012 |
| From: | Bessette P, Carpenter C, Glew W, Meserve R, Sutton K, Burchfield B, Dennis W, Leland M Entergy Nuclear Operations, Covington & Burling, Entergy Services, McDermott Will & Emery LLP, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 23255, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01 | |
| Download: ML12220A612 (11) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
Docket Nos. 50-247-LR and
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50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )
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(Indian Point Nuclear Generating Units 2 and 3)
)
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August 7, 2012 ENTERGYS OPPOSITION TO NEW YORK STATES MOTION FOR EXTENSION OF TIME New York States Motion for Extension of Time filed on August 6, 2012 fails to demonstrate appropriate cause1 for an unprecedented 91-day extension of its time to answer Entergys Motion for Declaratory Order. Entergys motion concerns the federal Coastal Zone Management Act (CZMA) and federal regulations implementing it, and, to a lesser extent, New Yorks own Coastal Management Program (CMP). The State makes minimal effort to show cause for this extraordinary extension, arguing in essence that it is too busy with other deadlines in this proceeding to address Entergys motion.2 Yet, the NRC Staff, which confronts the same deadlines with far fewer resources, has requestedand Entergy has agreed toan extension of 53 days, and Staff Counsel opposes New Yorks request for nearly twice as much time.3 1 Scheduling Order, at 7 (July 1, 2010).
2 See New York States Motion for Extension of Time, at 4-6 (Aug. 6, 2012).
3 See NRC Staffs Motion for Extension of Time, at 1 & n.1 (Aug. 6, 2012).
Much of New Yorks motion addresses its collateral and erroneous assertion that the consultation process pursuant to 10 C.F.R. § 2.323(b) on Entergys motion ended prematurely.
Yet New Yorks motion and attached declaration disclose its vigorous disagreement with Entergy on the law and facts governing Entergys Motion for Declaratory Order. Staff Counsel observed during the last of three consultation conference calls that, at the least, Entergy and New York plainly disagree about the meaning of certain CZMA regulations. In any event, whether Entergys Motion has merit (which New York obviously disputes) and whether Entergy complied with the consultation requirement of 10 C.F.R. § 2.323(b) are issues having no bearing on the States request for a 91-day extension.
BACKGROUND On July 24, 2012, Entergy supplemented the Environmental Report appended to the License Renewal Application (LRA) to state that the application is not subject to further CMP consistency review by New York State because renewal will not result in coastal effects that are substantially different than the effects previously reviewed by the State.4 See 15 C.F.R.
§ 930.51(b)(3). Entergy convened conference calls on July 25th, 26th, and 30th among the parties to this proceeding, during which Entergy explained in detail the basis for its LRA supplement and the issues that would be presented in its then-forthcoming Motion for Declaratory Order.5 In addition, counsel for Entergy responded to several email inquiries from New Yorks counsel and other parties, and provided numerous supporting documents.6 In the 4 See Letter from F. Dacimo, Entergy, to NRC Document Control Desk, Supplement to License Renewal Application
- Compliance with Coastal Zone Management Act (July 24, 2012) (NL-12-107) (Att. 1).
5 See Motion Certification appended to Entergys Motion for Declaratory Order (July 30, 2012) (hereafter Certification).
6 See id.
third and final conference call on July 30, New Yorks counsel requested additional time to consult with State agencies, but throughout insisted, contrary to Entergys position, that:
(a) 15 C.F.R § 930.6(c) is inapplicable to New York;7 (b) only the New York State Department of State (NYSDOS), and no other State agency, is authorized to issue federal consistency certifications; and (c) any filing by Entergy inconsistent with these two assertions would be frivolous.
Counsel for both Entergy and the Staff stated that further consultation was not likely to produce agreement on the issues presented.
On July 30, 2012, Entergy filed its Motion for Declaratory Order seeking a determination by the Board on the position asserted in Entergys LRA supplement. New York stated its intention to seek a 91-day extension of time (in addition to the 10 days set forth in the Scheduling Order) to respond to Entergys motion on August 2 and convened a conference call among the parties to discuss the issue on August 3. Entergy and NRC Staff both oppose the States requested 91-day extension as excessive and unnecessary.8 Entergy has agreed, however, to the NRC Staffs request for a 53-day extension.9 7 15 C.F.R. § 930.6(c) states:
If described in a States management program, the issuance or denial of relevant State permits can constitute the State agencys consistency concurrence or objection if the State agency ensures that the State permitting agencies or the State agency review individual projects to ensure consistency with all applicable State management program policies and that applicable public participation requirements are met.
8 See NRC Staffs Motion for Extension of Time (Aug. 6, 2012), at 1 n.1.
9 See id.
ARGUMENT I.
NEW YORKS REQUEST FOR A 91-DAY EXTENSION IS EXCESSIVE.
New York State has failed to demonstrate appropriate cause supporting the unprecedented 91-day extension, as required by the Scheduling Order of July 1, 2010.10 First, New York asserts that it is simply too busy with its other obligations in this proceeding to respond to Entergys motion before November 8. New York is the nations third most populous state, and its gross state product of $1.157 trillion in 2011 exceeded the gross domestic products of all but thirteen of the worlds nations.11 Even without taking account of legal and expert resources in other pertinent State agencies such as NYSDOS or the Department of Environmental Conservation, New Yorks Office of the Attorney General alone claims [o]ver 650 Assistant Attorneys General and over 1,700 employees, including forensic accountants, legal assistants, scientists, investigators and support staff.12 New Yorks complaint of excessive workload is, of course, ironic in view of the 39 contentions it alone has interpled, most recently on July 8, 2012, into this proceeding. New York has never before shown evidence of constrained resources in this proceeding as it pursues its own contentions and agenda; its claimed need for 101 days (10 days in the Scheduling Order plus the requested 91) to respond to Entergys motion strains credulity.
10 Scheduling Order, at 7 (July 1, 2010). Appropriate cause is especially lacking in light of the States apparent expectation that it might not file an answer to Entergys motion on the merits at all. See Decl. of Janice A. Dean ¶ 7 n.1 (stating that [t]he State will explain the significance of [a certain] document should it answer Entergys motion on the merits (emphasis added)).
11 See U.S. Dept of Commerce Bureau of Economic Analysis, Gross Domestic Product by State, http://www.bea.gov/iTable/iTable.cfm?ReqID=70&step=1&isuri=1&acrdn=1 (listing New Yorks gross state product in 2011 as $1.157 trillion); The World Bank, Gross domestic product 2011 (July 9, 2012), available at http://databank.worldbank.org/databank/download/GDP.pdf (ranking the 2011 gross domestic products of 192 nations).
12 New York State Office of the Attorney General, Our Office, http://www.ag.ny.gov/our-office.
Second, the issues raised by Entergys motion are not burdensome to New York.
Entergys motion focuses on whether New York has previously reviewed IP2 and IP3 for consistency with the CMP, and if so, whether license renewal will cause substantially different coastal effects than those previously reviewed. See 15 C.F.R. § 930.51(b)(3). Entergy has provided substantial documentation in support of its motion. An argument by New York that it has conducted no previous consistency review of the Indian Point facilities would fly in the face of this evidence.13 If New York contends that renewal of the licenses will produce substantially different coastal zone effects, it can state what those effects are. Moreover, New York already disputes Entergys legal position that, as a matter of law, consistency reviews by state agencies other than NYSDOS may satisfy CZMA consistency requirements for a federal license.14 See 15 C.F.R. § 930.6(c) (quoted in note 7 above). The State cannot reasonably contend that it needs three extra months to formulate and articulate its legal position.
Third, with an equally full docket, the NRC Staff has determined that it can adequately respond to Entergys motion with only a 53-day extension. New York has failed to show cause why it cannot do likewise.
II.
THE PARTIES FAILED TO REACH AGREEMENT ON ENTERGYS MOTION.
New Yorks motion and supporting declaration set forth New Yorks recollection of the
§ 2.323(b) consultations that preceded Entergys filing of its Motion for Declaratory Order.
Entergy does not agree with New Yorks recitation, but will not engage in a point by point rebuttal because the discussion is so tangential to the request for an extension.
13 See New York States Motion for Extension of Time, at 6-7 (Aug. 6, 2012).
14 See, e.g., Mot. 7, 9; Dean Decl. ¶ 8.
It is worth noting, however, that New Yorks motion confirms the existence of a material legal and factual dispute between Entergy and New York regarding the meaning and applicability of federal CZMA regulations and whether license renewal will cause substantially different coastal effects. 10 C.F.R. § 2.323(b) provides that a motion must be accompanied by a certification by the moving partys counsel that there has been a sincere effort to contact other parties in the proceeding and resolve the issue(s) raised in the motion, and that the movants efforts to resolve the issue(s) have been unsuccessful. Entergys certification recites that, from July 24, 2012 through July 30, 2012, the Parties held three conference calls on Entergys LRA supplement and its potential Motion for a Declaratory Order.15 As New Yorks motion confirms, New York expressed its view that Entergy: (1) failed to address... a critical document;16 (2) raised factual and legal questions/misunderstandings about New Yorks program that caused New York to challenge Entergys position;17 and (3) was fundamentally misunderstanding the way New Yorks Coastal Management Program has been laid out.18 Moreover, New York asserts that all NRC licensing decisions are subject to mandatory CZMA review by the New York Department of State, which is directly contrary to Entergys position in its motion for a declaratory order.19 Although New York contends that consultations were very much still ongoing when Entergy filed its motion,20 New York vigorously disagreedand continues to disagreewith 15 See Certification 1.
16 Mot. 9.
17 Id. 10.
18 Id. 11.
19 Id. 9 n.7.
20 Id. at 11.
Entergys legal position.21 During the consultation on Monday, July 30, 2012, NRC counsel observed that New York and Entergy disagreed about the law governing Entergys LRA supplement and motion. Indeed, Entergys good faith belief that further consultation was highly unlikely to yield agreement is confirmed by the content and tone of New Yorks motion.22 CONCLUSION For all of the foregoing reasons, the Board should deny New York States Motion for Extension of Time to the extent it seeks more than the generous 53-day extension agreed to by Entergy and the NRC Staff.
Dated: August 7, 2012 Richard A. Meserve COVINGTON & BURLING LLP 1201 Pennsylvania Avenue, NW Washington, DC 20004-2401 (202) 662-6000 (202) 662-6291 fax Kathryn M. Sutton Paul M. Bessette MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Ave., NW Washington, DC 20004-2541 (202) 739-3000 (202) 739-3001 fax Respectfully submitted, Executed in accord with 10 C.F.R. § 2.304(d)
Bobby R. Burchfield Matthew M. Leland Clint A. Carpenter MCDERMOTT WILL & EMERY LLP 600 13th Street, NW Washington, DC 20005-3096 (202) 756-8000 (202) 756-8087 fax William B. Glew, Jr.
William Dennis ENTERGY SERVICES, INC.
440 Hamilton Avenue White Plains, NY 10601 (914) 272-3360 Counsel for Entergy Nuclear Operations, Inc.
21 See Certification 1-2.
22 See id.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
Docket Nos. 50-247-LR and
)
50-286-LR ENTERGY NUCLEAR OPERATIONS, INC.
)
)
(Indian Point Nuclear Generating Units 2 and 3)
)
)
August 7, 2012 ANSWER CERTIFICATION I certify that I have made a sincere effort to make myself available to listen and respond to the moving party, and to resolve the factual and legal issues raised in the motion, and that my efforts to resolve the issues have been unsuccessful.
Executed in accord with 10 C.F.R. § 2.304(d)
Bobby R. Burchfield MCDERMOTT WILL & EMERY LLP 600 13th Street, NW Washington, DC 20005-3096 (202) 756-8000 (202) 756-8087 fax Counsel for Entergy Nuclear Operations, Inc.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
)
Docket Nos. 50-247-LR and
)
50-286-LR ENTERGY NUCLEAR OPERATIONS, INC.
)
)
(Indian Point Nuclear Generating Units 2 and 3)
)
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August 7, 2012 CERTIFICATE OF SERVICE I certify that on August 7, 2012, copies of the foregoing Motion for Declaratory Order were served electronically via the Electronic Information Exchange on the following recipients:
Administrative Judge Lawrence G. McDade, Chair Atomic Safety and Licensing Board Panel Mail Stop: T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: Lawrence.McDade@nrc.gov)
Administrative Judge Dr. Michael F. Kennedy Atomic Safety and Licensing Board Panel Mail Stop: T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: Michael.Kennedy@nrc.gov)
Administrative Judge Dr. Richard E. Wardwell Atomic Safety and Licensing Board Panel Mail Stop: T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: Richard.Wardwell@nrc.gov)
Office of the Secretary Attn: Rulemaking and Adjudications Staff U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 (E-mail: hearingdocket@nrc.gov)
Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Mail Stop: O-7H4M Washington, DC 20555-0001 (E-mail: ocaamail.resource@nrc.gov)
Shelby Lewman, Law Clerk Anne Siarnacki, Law Clerk Atomic Safety and Licensing Board Panel Mail Stop: T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: shelbie.lewman@nrc.gov)
(E-mail: Anne.Siarnacki@nrc.gov)
Sherwin E. Turk, Esq.
Edward L. Williamson, Esq.
Beth N. Mizuno, Esq.
David E. Roth, Esq.
Brian G. Harris, Esq.
Mary B. Spencer, Esq.
Anita Ghosh, Esq.
Brian Newell, Paralegal Office of the General Counsel Mail Stop: O-15D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 (E-mail: Sherwin.Turk@nrc.gov)
(E-mail: Edward.Williamson@nrc.gov)
(E-mail: Beth.Mizuno@nrc.gov)
(E-mail: David.Roth@nrc.gov)
(E-mail: Brian.Harris@nrc.gov)
(E-mail: Mary.Spencer@nrc.gov)
(E-mail: Anita.Ghosh@nrc.gov)
(E-mail: Brian.Newell@nrc.gov)
Melissa-Jean Rotini, Esq.
Assistant County Attorney Office of Robert F. Meehan, Esq.
Westchester County Attorney 148 Martine Avenue, 6th Floor White Plains, NY 10601 (E-mail: MJR1@westchestergov.com)
Manna Jo Greene Karla Raimundi Hudson River Sloop Clearwater, Inc.
724 Wolcott Ave.
Beacon, NY 12508 (E-mail: mannajo@clearwater.org)
(E-mail: karla@clearwater.org)
(E-mail: stephenfiller@gmail.com)
Daniel Riesel, Esq.
Victoria Shiah Treanor, Esq.
Sive, Paget & Riesel, P.C.
460 Park Avenue New York, NY 10022 (E-mail: driesel@sprlaw.com)
(E-mail: vshiah@sprlaw.com)
John Louis Parker, Esq.
Office of General Counsel, Region 3 NYS Dept. of Environmental Conservation 21 S. Putt Corners Road New Paltz, New York 12561-1620 (E-mail: jlparker@gw.dec.state.ny.us)
John J. Sipos, Esq.
Charlie Donaldson Esq.
Assistant Attorneys General Office of the Attorney General of the State of New York The Capitol Albany, NY 12224-0341 (E-mail: John.Sipos@ag.ny.gov)
(E-mail: Charlie.Donaldson@ag.ny.gov)
Michael J. Delaney, Esq.
Vice President -Energy Department New York City Economic Development Corporation (NYCDEC) 110 William Street New York, NY 10038 mdelaney@nycedc.com
Phillip Musegaas, Esq.
Deborah Brancato, Esq.
Riverkeeper, Inc.
20 Secor Road Ossining, NY 10562 (E-mail: phillip@riverkeeper.org)
(E-mail: dbrancato@riverkeeper.org)
Sean Murray, Mayor Kevin Hay, Village Administrator Village of Buchanan Municipal Building 236 Tate Avenue Buchanan, NY 10511-1298 (E-mail: smurray@villageofbuchanan.com)
(E-mail:
Administrator@villageofbuchanan.com)
Robert D. Snook, Esq.
Assistant Attorney General Office of the Attorney General State of Connecticut 55 Elm Street P.O. Box 120 Hartford, CT 06141-0120 (E-mail: Robert.Snook@po.state.ct.us)
Janice A. Dean, Esq.
Teresa Manzi Assistant Attorney General Office of the Attorney General of the State of New York 120 Broadway, 26th Floor New York, New York 10271 (E-mail: Janice.Dean@ag.ny.gov)
(E-mail: Teresa.Manzi@ag.ny.gov)
Signed (electronically) by Clint A. Carpenter Clint A. Carpenter MCDERMOTT WILL & EMERY LLP 600 13th Street, NW Washington, DC 20005-3096 (202) 756-8000 (202) 756-8087 fax