ML12220A617
| ML12220A617 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 08/07/2012 |
| From: | Sherwin Turk NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 23257, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01 | |
| Download: ML12220A617 (8) | |
Text
August 7, 2012 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247-LR/286-LR
)
(Indian Point Nuclear Generating )
Units 2 and 3) )
NRC STAFFS ANSWER TO STATE OF NEW YORK MOTION FOR EXTENSION OF TIME TO RESPOND TO ENTERGYS MOTION FOR DECLARATORY ORDER REGARDING THE COASTAL ZONE MANAGEMENT ACT INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c), the NRC Staff (Staff) hereby responds to the State of New Yorks (New York) request for a 91-day extension of time (until November 8, 2012),1 to respond to Entergy Nuclear Operations, Inc.s (Applicant or Entergy) motion for a declaratory order concerning satisfaction of the consistency review requirements of the Coastal Zone Management Act (CZMA), 16 U.S.C. § 1451, et seq.2 For the reasons set forth below, the Staff opposes New Yorks Motion, but requests that if New Yorks Motion is granted, that an equal amount of time be afforded for the filing of the Staffs answer to the Applicants Motion and Memorandum.3 1
State of New York Motion for Extension of Time to Respond to Entergys Motion for Declaratory Order Regarding the Coastal Zone Management Act (Aug. 6, 2012) (Motion), at 1.
2 Motion and Memorandum by Applicant Entergy Nuclear Operations, Inc. for Declaratory Order that It Has Already Obtained the Required New York State Coastal Management Program Consistency Review of Indian Point Units 2 and 3 for Renewal of Operating Licenses (July 30, 2012) (Applicants Motion and Memorandum).
3 The Staff notes that the Applicant has filed an answer in opposition to New Yorks Motion. See Entergys Opposition to New York States Motion for Extension of Time (Aug. 7, 2012).
DISCUSSION In its Motion, New York states four distinct bases for its request for an extension of time:
(1) Intervenors have numerous existing pre-hearing deadlines and ongoing pre-hearing preparation work, of which Entergy was well aware when it filed this motion, (2) Entergys motion is based on critical documents it has not identified or provided (the supposed consistency determinations it alleges the New York State Department of State issued in 2000 and 2001), and (3) Entergys new counsel inappropriately terminated consultations even though counsel for the State articulated clear reasons why such an action was unwarranted and prejudicial, and (4) Entergy has articulated no reason why this motion should be heard prior to the long-scheduled Track One contentions, given that Entergy could have filed this motion (or its application for a Coastal Zone consistency determination) at any point since it filed its License Renewal Application in 2007.
Motion at 1-2 (footnote omitted). The Staff respectfully submits that New York has not supported these claims with sufficient facts to show that a 91-day extension of time, rather than some shorter extension, is required.
First, like New York, the Staff recognizes that the current hearing schedule in this proceeding requires New York and other intervenors, as well as the Staff and Applicant, to meet numerous existing pre-hearing deadlines and [perform] ongoing pre-hearing preparation work, and that Entergy was well aware of these requirements when it filed its motion. See Motion at 1. That said, there is no reason why the existing hearing schedule should preclude the filing of Entergys motion, any more than it should preclude New York and other intervenors from filing new and amended contentions - as they have repeatedly done in this proceeding; indeed, New York and other intervenors filed two new contentions just one month ago (to which Entergy and the Staff responded on August 2 and 3, 2012), without concern over the litigation tasks facing them or other parties. Further, while New York cites nine specific pending litigation deadlines and other tasks that it must complete (Motion at 4-5), all but one of those items (i.e.,
preparation of its witnesses) are required be complete by the end of August, just three weeks
from now. New York fails to show why these deadlines mandate a 91-day extension of time for filing its response, rather than some shorter (or even longer) period.
Second, New Yorks claim that Entergys motion is based on critical documents it has not identified or provided (Motion at 1) does not support its claimed need for a 91-day extension of time. To the contrary, if New York requires documents to be identified or produced, no reason appears why it cannot request such identification or production from Entergy.
Further, New York has not shown that its need for such documents to be identified or produced supports an extension of 91 days versus some other period of time.
Third, while New York claims that Entergys new counsel inappropriately terminated consultations even though counsel for the State articulated clear reasons why such an action was unwarranted and prejudicial (Motion at 1-2), that assertion does not support its request for a 91-day extension of time. Even if New York is correct in its claim that consultations had not been completed on the Applicants proposed Motion before that pleading was filed, any continuation of those consultations might have afforded New York, at most, a few more days in which to further develop its views on the Applicants Motion. Thus, New Yorks claim does not show why it requires 91 days to prepare and file its answer. Moreover, whatever may be the merits of New Yorks claims regarding Entergys termination of consultations, those arguments are irrelevant to New Yorks request for a 91-day extension of time and should be disregarded.4 Finally, New Yorks claim that Entergy has articulated no reason why this motion should be heard prior to the long-scheduled Track One contentions given that Entergy could have filed this motion . . . at any point since it filed its License Renewal Application in 2007 (Motion at 2; 4
Entergy has responded to New Yorks claims that consultations were terminated prematurely.
See Entergys Answer at 2-3 and 5-7. As a participant in the consultations that were conducted, the Staff is aware that New York expressed opposition to Entergys proposed motion and sought to continue those consultations. Nonetheless, given the differences of opinion that were expressed by New York and Entergy, the Staff believes it had already become apparent that no agreement was likely to be reached on Entergys proposed motion, even if the consultations were continued; accordingly, the Staff believes that continued consultations were unlikely to achieve resolution on the issues raised in Entergys proposed motion, as contemplated in 10 C.F.R. § 2.323(b).
emphasis added) does not support its request for a 91-day extension of time. Thus, regardless of whether Entergy could have filed its Motion sooner, New York provides no reason to believe that Entergy was required to do so. Moreover, New Yorks claim provides no reason to believe that an extension of time of fully 91-days is appropriate, based on the timing of Entergys filing.
CONCLUSION New York has not demonstrated any reason why it should be afforded a 91-day extension of time in which to respond to Entergys Motion and Memorandum on CZMA issues.
New York seeks an excessive extension of time,5 which would likely cause unnecessary delay in the resolution of this issue. New Yorks request should therefore be denied.6 Respectfully submitted, Signed Electronically by Sherwin E. Turk Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-1533 E-mail: Sherwin.Turk@nrc.gov Dated at Rockville, Maryland this 7th day of August 2012 5
Cf. Order (Denying New Yorks Motion for an Extension of Time) (Oct. 7, 2011), at 3 (denying New Yorks request for at least a 90-day extension of time for the filing of its statement of position and testimony on all contentions, where the intervenors filing of new contentions on a Supplement to the Staffs Safety Evaluation Report automatically afforded them a 51-day extension of time, and any further extension at this time would be excessive).
6 The Staff notes that it has also sought an extension of time, of approximately 53 days (until October 1, 2012), or such later time that may be afforded to New York and other parties, to respond to the Applicants Motion. See NRC Staffs Motion for Extension of Time to Respond to Applicants Motion for Declaratory Order and Memorandum Concerning the Coastal Zone Management Act (Aug. 6, 2012), at 1 and 2-3. In the event that the Board affords a longer period of time for New York and other parties to respond to the Applicants Motion, the Staff requests that it be afforded an equal amount of time in which to file its response, such that a uniform date is established for all answers to the Applicants Motion.
CERTIFICATION OF COUNSEL Counsel for the Staff certifies that he has made a sincere effort to make himself available to listen and respond to the moving party, and to resolve the factual and legal issues raised in the motion, and that his efforts to resolve the issues have been unsuccessful.
Respectfully submitted,
/Signed (electronically) by/
Sherwin E. Turk Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-1533 E-mail: Sherwin.Turk@nrc.gov Dated at Rockville, Maryland this 7th day of August 2012
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
ENTERGY NUCLEAR OPERATIONS, INC. ) Docket Nos. 50-247/286-LR
)
(Indian Point Nuclear Generating )
Units 2 and 3) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing NRC STAFFS ANSWER TO STATE OF NEW YORK MOTION FOR EXTENSION OF TIME TO RESPOND TO ENTERGYS MOTION FOR DECLARATORY ORDER REGARDING THE COASTAL ZONE MANAGEMENT ACT, dated August 7, 2012, in the above-captioned proceeding have been served on the following by Electronic Information Exchange this 7th day of August, 2012.
Lawrence G. McDade, Chair Office of Commission Appellate Atomic Safety and Licensing Board Panel Adjudication Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mail Stop: O-16G4 Washington, D.C. 20555-0001 Washington, DC 20555-0001 E-mail: Lawrence.McDade@nrc.gov E-mail: OCAAMAIL@nrc.gov Dr. Richard E. Wardwell Office of the Secretary Atomic Safety and Licensing Board Panel Attn: Rulemaking and Adjudications Staff Mail Stop - T-3 F23 Mail Stop: O-16G4 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Washington, DC 20555-0001 E-mail: Richard.Wardwell@nrc.gov E-mail: Hearingdocket@nrc.gov Dr. Michael F. Kennedy Anne Siarnacki, Esq.
Atomic Safety and Licensing Board Panel Shelbie Lewman, Esq.
Mail Stop - T-3 F23 Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop - T-3 F23 Washington, D.C. 20555-0001 U. S, Nuclear Regulatory Commission E-mail: Michael.Kennedy@nrc.gov Washington, D.C. 20555-0001 E-Mail: Anne.Siarnacki@nrc.gov E-Mail: Shelbie.Lewman@nrc.gov
Kathryn M. Sutton, Esq.* John J. Sipos, Esq.*
Paul M. Bessette, Esq. Charlie Donaldson, Esq.
Jonathan Rund, Esq. Assistants Attorney General Raphael Kuyler, Esq. New York State Department of Law Morgan, Lewis & Bockius, LLP Environmental Protection Bureau 1111 Pennsylvania Avenue, NW The Capitol Washington, D.C. 20004 Albany, NY 12224 E-mail: ksutton@morganlewis.com E-mail: John.Sipos@ag.ny.gov E-mail: pbessette@morganlewis.com E-mail: Charlie.Donaldson@ag.ny.gov E-mail: jrund@morganlewis.com E-mail: rkuyler@moganlewis.com Janice A. Dean, Esq.*
Assistant Attorney General, Martin J. ONeill, Esq.* Office of the Attorney General Morgan, Lewis & Bockius, LLP of the State of New York 1000 Louisiana Street, Suite 4000 120 Broadway, 25th Floor Houston, TX 77002 New York, NY 10271 E-mail: martin.o'neill@morganlewis.com E-mail: Janice.Dean@ag.ny.gov Elise N. Zoli, Esq.* John Louis Parker, Esq.*
Goodwin Procter, LLP Office of General Counsel, Region 3 Exchange Place New York State Department of 53 State Street Environmental Conservation Boston, MA 02109 21 South Putt Corners Road E-mail: ezoli@goodwinprocter.com New Paltz, NY 12561-1620 E-mail: jlparker@gw.dec.state.ny.us William C. Dennis, Esq.*
Assistant General Counsel Phillip Musegaas, Esq.*
Entergy Nuclear Operations, Inc. Deborah Brancato, Esq.
440 Hamilton Avenue Riverkeeper, Inc.
White Plains, NY 10601 20 Secor Road E-mail: wdennis@entergy.com Ossining, NY 10562 E-mail: phillip@riverkeeper.org E-mail: dbrancato@riverkeeper.org Manna Jo Greene*
Karla Raimundi, Esq.
Hudson River Sloop Clearwater, Inc. Robert Snook, Esq.*
724 Wolcott Avenue Office of the Attorney General Beacon, NY 12508 State of Connecticut E-mail: mannajo@clearwater.org 55 Elm Street E-mail: karla@clearwater.org P.O. Box 120 Hartford, CT 06141-0120 E-mail: robert.snook@ct.gov
Bobby R. Burchfield, Esq. Dr. Richard A. Meserve, Esq.
Clint A. Carpenter, Esq. Matthew W. Swinehart, Esq.
Matthew M. Leland, Esq. Covington & Burling LLP McDermott Will & Emery LLP 1201 Pennsylvania Avenue, NW 600 Thirteenth Street, N.W. Washington, DC 20004-2401 Washington, D.C. 20005-3096 E-mail: rmeserve@cov.com E-mail: bburchfield@mwe.com E-mail: mswinehart@cov.com E-mail: ccarpenter@mwe.com E-mail: mleland@mwe.com Sean Murray, Mayor Melissa-Jean Rotini, Esq.
Kevin Hay, Village Administrator Assistant County Attorney Village of Buchanan Office of Robert F. Meehan, Esq.
Municipal Building Westchester County Attorney Buchanan, NY 10511-1298 148 Martine Avenue, 6th Floor E-mail: vob@bestweb.net White Plains, NY 10601 E-mail: smurray@villageofbuchanan.com E-Mail: MJR1@westchestergov.com Administrator@villageofbuchanan.com Daniel Riesel, Esq.*
Michael J. Delaney, Esq.* Thomas F. Wood, Esq.
Director, Energy Regulatory Affairs Victoria S. Treanor, Esq.
New York City Department of Environmental Sive, Paget & Riesel, P.C.
Protection 460 Park Avenue 59-17 Junction Boulevard New York, NY 10022 Flushing, NY 11373 E-mail: driesel@sprlaw.com E-mail: mdelaney@dep.nyc.gov E-mail: vtreanor@sprlaw.com
/Signed (electronically) by/
Sherwin E. Turk Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop O-15 D21 Washington, DC 20555-0001 Telephone: (301) 415-1533 E-mail: Sherwin.Turk@nrc.gov