ML12233A652
| ML12233A652 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 08/20/2012 |
| From: | Jeremy Dean State of NY, Office of the Attorney General |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 23326, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01 | |
| Download: ML12233A652 (8) | |
Text
UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD
x In re:
Docket Nos. 50-247-LR; 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BD01 Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc.
August 20, 2012
x STATE OF NEW YORK MOTION FOR EXTENSION OF TIME TO FILE NEW CONTENTIONS, IF ANY, ON ENTERGYS ENVIRONMENTAL REPORT SUPPLEMENT REGARDING THE COASTAL ZONE MANAGEMENT ACT Office of the Attorney General for the State of New York The Capitol State Street Albany, New York 12224
TABLE OF CONTENTS Page i
INTRODUCTION AND PROCEDURAL BACKGROUND.........................................................1 ARGUMENT GOOD CAUSE SUPPORTS THE STATES REQUEST A.
The Same Reasons That Supported the States Motion to Extend the Response to the Motion for Declaratory Order Apply Here....................................3 B.
Uncertainty Regarding the Facts Underlying Entergys Environmental Report....4 CONCLUSION................................................................................................................................5
1 INTRODUCTION AND PROCEDURAL BACKGROUND The State of New York respectfully requests that the Atomic Safety and Licensing Board extend the time by which the State may file a timely contention concerning Entergys Coastal Zone Management (CZMA) supplement to its Environmental Report (ER) to 30 days after the Board rules on Entergys application for declaratory ruling on CZMA issues. Riverkeeper and Clearwater support this request, while NRC Staff and Entergy oppose it.
On July 24, 2012, Entergy Nuclear Operations, Inc. (Entergy), submitted a letter to the NRC Document Control Desk purporting to supplement its ER, five years after the document was originally submitted in April of 2007. That letter updates Entergys status of compliance with the Coastal Zone Management Act and, to that extent, supplements the LRA. Entergy reassessed the Acts requirements and has determined that IP2 and IP3 already have obtained the necessary consistency reviews from the State of New York and that license renewal will not result in coastal effects that are substantially different than the effects previously reviewed by NYSDOS and other state agencies with jurisdiction under state law to make those determinations. 15 CFR 930.51 (b)(3).
From this determination flows the conclusion that IP2 and IP3 require no further consistency review in connection with this proceeding.
Letter, NL-12-107, Fred Dacimo to Nuclear Regulatory Commission, Re: Supplement to License Renewal Application - Compliance with Coastal Zone Management Act, Indian Point Nuclear Generating Unit Nos. 2 & 3, Docket Nos. 50-247 and 50-286, License Nos. DPR-26 and DPR-64 (July 24, 2012) ML12207A122. Subsequently, on July 30, 2012, Entergy filed what it styled as a Motion for Declaratory Order, seeking an order from the Board declaring that Entergy is no longer required to obtain a CZMA certification from the New York State Department of State.
As the basis for this ER supplement and subsequent motion, Entergy alleges that (1) two New York State agencies and a New York State public authority were involved with 2000 and 2001
2 proceedings involving a transfer of ownership of Indian Point facilities and applicable licenses to Entergy and, therefore, the New York State Department of State must have issued coastal zone consistency determinations for those actions, notwithstanding that Entergy has not located or provided such determinations, and (2) those alleged determinations obviate the need for CZMA federal consistency review by the Department of State during relicensing.
The State requested, and the Board granted, an extension of time to respond to Entergys motion. Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3),
Board Order (Granting in Part, the NRC Staffs and New Yorks Motions for Extension of Time)(Aug. 8, 2012) (August 8 Order).
On August 13, 2012, NRC Staff issued a Request for Additional Information seeking information from Entergy about CZMA issues.
While the deadline for responses to Entergys application for a declaratory ruling has been extended, the deadline for parties to file new contentions, if any, based on Entergys ER supplement concerning CZMA issues is this Thursday, August 23, 2012.
Because the validity of Entergys ER supplement is currently the subject of pending Requests for Additional Information, because the matter may be resolved via the Motion for Declaratory Order, and because the Board has expressed its preference to hear CZMA-related issues after the upcoming evidentiary hearings, the State respectfully requests that this contention-filing deadline be aligned with the motion timetable. In order to prevent potentially superfluous and duplicative filings on the same issue, the State respectfully requests that the Boards order on the Motion for Declaratory Order serve as the trigger date for new contentions on the CZMA ER supplement, and that the Board issue an order that provides that a contention
3 on Entergy CZMA ER supplement would be timely if filed within 30 days following the Boards decision on Entergys Motion for Declaratory Order.
ARGUMENT GOOD CAUSE SUPPORTS THE STATES REQUEST In its August 8 Order, the Board consider[ed] the impending deadlines and the hearing dates in October and December and extend[ed] the responsive deadline to January 14, 2013, to avoid any potential conflicts with hearing-related matters. August 8 Order at 2. The State submits that the same rationale supports its request for an extension of time to file new contentions, if any, on Entergys ER supplement.
A.
The Same Reasons That Supported the States Motion to Extend the Response to the Motion for Declaratory Order Apply Here As the Board acknowledged in its August 8 Order, parties are in the final weeks of preparation for the first phase of the Track One hearing. In the interest of brevity, the State does not recount the multitude of pending deadlines here, but refers the Board to its motion dated August 6, 2012 for their recitation. In addition, the State and presumably other parties are engaged in the myriad logistical tasks necessary to bring witnesses and attorneys and staff to the Tarrytown hearing venue. Under the Boards scheduling order, parties have 30 days from a triggering event to file a new contention for it to be deemed timely. See Scheduling Order (July 1, 2010) at 6, ¶ F.2 (A motion and proposed new contention specified in the preceding paragraph shall be deemed timely under 10 C.F.R. § 2.309(f)(2)(iii) if it is filed within thirty (30) days of the date when the new and material information on which it is based first becomes available.). As Entergys ER supplement was submitted July 24, 2012, new contentions, if any,
4 would be due Thursday, August 23, 2012. However, any new contentions filed prior to the Track One hearing would (1) substantively duplicate arguments parties will make in response to Entergys motion, and (2) conflict[] with hearing-related matters. As such, the State submits that no contention should be filed prior to adjudication of the Motion for Declaratory Order.
B.
Uncertainty Regarding the Facts Underlying Entergys ER Supplement Also Necessitate More Time It appears that NRC Staff has not yet accepted or acted upon Entergys ER supplement.
On August 13, 2012, NRC Staff submitted Requests for Additional Information (RAIs) to Entergy and stated that NRC Staff is reviewing the information contained in the supplement and has identified areas where additional information is needed to complete the review. See Letter, Michael Wentzel, NRC Division of License Renewal, Office of Nuclear Reactor Regulation, to Entergy Vice President, Operations, Re: Request for Additional Information for the Review of the Indian Point Nuclear Generating Unit Nos. 2 and 3, License Renewal Application Environmental Review (TAC Nos. MD5411 And MD5412) (Aug. 13, 2012)
ML12221A155. Specifically, Entergys ER supplement is based upon alleged prior federal consistency determinations for Indian Point Units 2 and 3, but Entergy has not provided the determinations themselves. As such, NRC Staff has requested the underlying determinations, as well as, inter alia, the basis for the statement, in Section 9.3 of Entergys Environmental report, as revised (Enclosure 1 to NL-12-107), that Entergy now believes that the New York Coastal Management Plan also exempts both plants from further consistency review. Id. at 2. The State believes that the answers to these RAIs will shed needed light on the basis for Entergys ER supplement and motion, which, along with discussions from the involved State agencies, will inform the States response to the Motion for Declaratory Order. While parties could submit
5 contentions following receipt of Entergys response to the RAIs, the deadline Staff has given Entergy to respond (30 days from August 13) would make new contentions due either just prior to, or during, the Track One hearing. Given the Boards stated preference for hearing CZMA-related issues after the hearing, the State requests that the deadline for new contentions be moved until after the hearing also, but submits that, in the interest of the resources of all parties as well as judicial economy, the Board defer the deadline for filing new contentions, if any, on Entergys ER supplement until after it adjudicates the Motion for Declaratory Order. The State recognizes that that determination may obviate the need for any new contentions and seeks to avoid duplicative filings.
In consultations among the parties, Entergy and NRC Staff proposed that the contention filing date be extended to January 14, 2013 - the same date that the States response is due to the Board on Entergys application for declaratory ruling on the CZMA issues. While the State appreciates that proposal, the State submits that Entergy and Staffs proposal would involve the State (as well as the other parties) in potentially needless and possibly premature litigation efforts (including, without limitation, preparation of contentions, motions for leave, answers, and replies), which could be superseded by the Boards decision on Entergys application for declaratory ruling. Entergy and Staffs proposal would also enmesh the Board in reviewing potentially superfluous or duplicative pleadings at the same time it was considering the parties submissions on the Motion for Declaratory Order. Accordingly, the State submits that its request is preferable to Entergy and NRC Staffs proposal.
6 CONCLUSION For the above-stated reasons and to further judicial economy, the State respectfully requests that the Board grant its request and extend the time by which the State may file a timely contention concerning Entergys CZMA supplement to its Environmental Report to 30 days after the Board rules on Entergys application of declaratory ruling on CZMA issues.
Respectfully submitted, Signed (electronically) by Janice A. Dean Assistant Attorney General Office of the Attorney General for the State of New York 120 Broadway, 26th Floor New York, New York 10271 (212) 416-8459 Dated: August 20, 2012 Certificate Pursuant to 10 C.F.R. § 2.323 Pursuant to 10 C.F.R. § 2.323(b) and the Boards July 1, 2010 scheduling order, I certify that I have made a sincere effort to contact the other parties in this proceeding, to explain to them the factual and legal issues raised in this motion, and to resolve those issues, and I certify that my efforts have been unsuccessful.
Signed (electronically) by John Sipos Assistant Attorney General August 20, 2012