ML12356A315
| ML12356A315 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 12/21/2012 |
| From: | Bessette P, Dennis W, Glew W, Sutton K Entergy Nuclear Operations, Entergy Services, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | Kennedy M, Lawrence Mcdade, Richard Wardwell Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 23929, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01 | |
| Download: ML12356A315 (4) | |
Text
Morgan, Lewwis & Bockius LLP 1111 Pennsyylvania Avenue, NWW Washington, DC 20004 Tel. 202.7399.3000 Fax: 202.7399.3001 www.morgannlewis.com Kathryn M.M Sutton Partner 202.739.5738 8 ksutton@MorganLewis.com Paul M. Be essette Partner 202.739.5796 6 pbessette@M MorganLewis.comm Decembeer 21, 2012 Lawrence G. McDad de, Chairmann Dr. Michhael F. Kennedy Dr. Richaard E. Ward dwell Atomic Safety S and Licensing L Booard U.S. Nucclear Regulattory Commiission Washinggton, DC 205 555-0001 D
Docket: Entergy Nucleear Operations, Inc. (Ind dian Point Nuclear N Gen nerating Unnits 2 and 3), Docket Noos. 50-247-L LR and 50-2286-LR R
Re: Cooastal Zone Managemen M nt Act Declaaratory Ord der Briefingg Schedule
Dear Adm ministrative Judges:
At end off the Decem mber hearing, the Atomic Safety and Licensing Board B (Boarrd) and partties discussedd several maatters relatingg to Entergyys July 30, 2012 2 Motionn for Declaraatory Order that t
IP2 and IP3 I have alreeady underggone the requuired consisttency review w under the federal fe Coasttal Zone Maanagement Act A (CZMA A) for renew wal of the IP22 and IP3 opperating licennses (Motioon).
Specificaally, the partties discussedd whether anny party antiicipated movving for a staay of Entergyys Motion pending p resoolution of twoo separate sttate petitionss: (1) Enterggys Petitionn filed with the New Yorrk State Dep partment of State S (NYSD DOS) on November N 7, 2012, seekinng a declaraation that IP2 anda IP3 are exempt e from m consistencyy review purrsuant to New York Coaastal Managem ment Program m (NYCMP P) grandfatthering proviisions; and (2)
( Entergyss Petition filed on Octobber 1, 2012 in n New Yorkk Supreme Court C under Article A 78 off the New Yoork Civil Practice Law L and Ru ules, seeking to vacate New Yorks recent r modiffication of exxisting coastal habitat deesignations to t include poortions of the Hudson Riiver adjacennt to Indian Point.
P In responnse, the Boarrd directed all a parties to notify the Board, B by Friiday, Decemmber 21, whetther Entergys Motion pen nding beforee the Board should s be heeld in abeyannce, or whetther the Motiion and two states petition ns can move forward in parallel.
p Thhe Board indiicated that iff a party beliieves
Administrative Judges December 21, 2012 Page 2 that the Motion in this proceeding should be held in abeyance, it would need to file a motion requesting such action at a later date. In addition, the Board directed New York and the NRC Staff to also report by December 21 whether they would be able to respond to Entergys Motion by the scheduled January 14, 2013 due date, or whether they would be filing for an extension of time, and, if so, to indicate the length of any necessary extension.
As an initial matter, and as Entergy notified the Board on December 17, Entergy submitted a CZMA consistency certification to NYSDOS on December 17.1 As explained in the Board notice, Entergy continues to maintain that it already obtained consistency reviews for purposes of IP2 and IP3 license renewal, and that IP2 and IP3 require no further review in connection with this proceeding. Nonetheless, because of delays in resolving whether license renewal requires any further CZMA review, Entergy determined that it was prudent to file a consistency certification, under full reservation of rights. Entergy expressly reserved all rights to contest the validity and enforceability of the NYCMP, and the authority of NYSDOS to conduct federal consistency review, under both federal and state law. Entergy further noted that, notwithstanding this certification, the Board should rule on Entergys Motion for Declaratory Order to resolve the legal uncertainty of whether Entergy must submit to a redundant consistency review process that is obviated by controlling CZMA regulations.
As Entergy explained during the calls with New York, federal law gives NYSDOS six months to complete its review of Entergys consistency certification from the time NYSDOS determines the certification is complete. That is much too late for the Board to wait to receive answers and then begin considering Entergys Motion without materially disrupting these proceedings.
Moreover, as shown in Entergys pending Motion, the CZMA regulations issued by the National Oceanic and Atmospheric Administration vest jurisdiction in the federal licensing agency (that is, the NRC, acting through this Board) to consider whether prior consistency reviews of IP2 and IP3 obviate the need for a further consistency review. This issue will not be addressed by NYSDOS, nor could it properly be.
Similarly, Entergy believes that the grandfathering petition pending before NYSDOS and the Article 78 petition before the New York Supreme Court are independent legal actions based on state law that do not moot the need for Board resolution of Entergys Motion, which is based on federal law. Accordingly, Entergy does not believe that the Motion pending before the Board since July 2012 should be held in abeyance, and believes that the Motion and the state petitions can and should move forward in parallel.
Nevertheless, in recognition of possible staffing constraints on New York and the NRC Staff, Entergy is not opposed to a modest extension of time for New York and the NRC Staff to file a response to Entergys Motion. Entergy, New York, and NRC Staff have conferred on this matter 1
See Letter from K. Sutton, Counsel for Entergy Nuclear Operations, Inc., to Administrative Judges, Regarding Notification of Entergys Consistency Certification Pursuant to the Coastal Zone Management Act (Dec. 17, 2012), available at ADAMS Accession Package No. ML12352A340.
Administrative Judges December 21, 2012 Page 3 and have agreed on a proposed March 22, 2013 date for responses to Entergys Motion. New York has separately notified the Board of this schedule and the schedule for submission of a motion for extension of time. Entergy reserves its right to respond to that motion in accordance with a deadline established by the Board.
Respectfully submitted, Executed in accord with 10 C.F.R. § 2.304(d)
Kathryn M. Sutton, Esq.
Paul M. Bessette, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: (202) 739-3000 Fax: (202) 739-3001 E-mail: ksutton@morganlewis.com E-mail: pbessette@morganlewis.com William B. Glew, Jr., Esq.
William C. Dennis, Esq.
ENTERGY SERVICES, INC.
440 Hamilton Avenue White Plains, NY 10601 Phone: (914) 272-3202 Fax: (914) 272-3205 E-mail: wglew@entergy.com E-mail: wdennis@entergy.com 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) )
) December 21, 2012 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305 (as revised), I certify that, on this date, a copy of Entergys letter to the Administrative Judges was served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned proceeding.
Signed (electronically) by Jonathan M. Rund Jonathan M. Rund, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Ave. NW Washington, DC 20004 Phone: (202) 739-5061 Fax: (202) 739-3001 E-mail: jrund@morganlewis.com DB1/ 72583930