ML13099A458
| ML13099A458 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 04/09/2013 |
| From: | Bessette P, Burchfield B, Carpenter C, Dennis W, Glew W, Leland M, Meserve R, Sutton K Covington & Burling, Entergy Nuclear Operations, Entergy Services, McDermott Will & Emery LLP, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 24368, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01 | |
| Download: ML13099A458 (10) | |
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
)
50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. )
)
(Indian Point Nuclear Generating Units 2 and 3)
)
)
April 9, 2013 ENTERGYS UNOPPOSED MOTION FOR EXTENSION OF TIME TO ANSWER NEW YORKS CROSS-MOTION FOR DECLARATORY ORDER AND MOTIONS FOR LEAVE TO FILE LIMITED REPLIES IN SUPPORT OF ENTERGYS MOTION FOR DECLARATORY ORDER As set forth below, Applicant Entergy Nuclear Operations, Inc. (Entergy) seeks a small extension of time to file its answer to New Yorks cross-motion, which is currently due on April 15, 2013. Entergy also respectfully requests leave to file limited replies to New York State and Riverkeepers responses in opposition to Entergys Motion for Declaratory Order regarding the Coastal Zone Management Act (CZMA).
Unopposed Motion for Extension of Time to File Answer to New York States Cross-Motion for Declaratory Order Pursuant to 10 C.F.R. § 2.323(a) and Section G.4 of the Boards Scheduling Order of July 1, 2010, Entergy requests a seven-day extension of time, until April 22, 2013, to file its answer to New Yorks Cross-Motion for Declaratory Order.1 New Yorks motion raises new and potentially complex fact issues regarding the States claim that license renewal requires a duplicative CZMA 1 See State of New York Response to Entergys Request to the Atomic Safety and Licensing Board for a Declaratory Order Concerning Coastal Zone Management Act Issues and Cross-Motion for Declaratory Order 22-30 (Apr. 5, 2013).
consistency review of Indian Points operations. The motion also attaches numerous documents requiring careful review and consideration. Moreover, Entergys request for only seven additional days is de minimus in comparison to the three extensions of time totaling nearly eight months that the Board granted New York to answer Entergys Motion for Declaratory Order. For all these reasons, appropriate cause exists to grant Entergy an additional seven days to file its answer to New Yorks Cross-Motion.2 In accordance with 10 C.F.R. § 2.323(b), counsel for Entergy has consulted with counsel for New York, Riverkeeper, Clearwater, and the NRC Staff. Staff counsel and counsel for New York do not oppose this motion. Counsel for Riverkeeper and Clearwater take no position.
Motion for Leave to File a Reply to New York States Mootness and Jurisdiction Arguments Pursuant to 10 C.F.R. § 2.323(c) and Section G.3 of the Boards Scheduling Order of July 1, 2010, Entergy requests leave to file a brief Reply to the State of New Yorks mootness and jurisdiction arguments in its Response to Entergys Motion for Declaratory Order.3 Entergy further requests that its Reply be due on April 19, 2013.4 There is good cause for permitting the Reply to be filed because New Yorks mootness argument is based on Entergys submission of a CZMA consistency certification to the New York 2 Scheduling Order 7 (July 1, 2010).
3 See State of New York Response to Entergys Request to the Atomic Safety and Licensing Board for a Declaratory Order Concerning Coastal Zone Management Act Issues and Cross-Motion for Declaratory Order 16-21 (Apr. 5, 2013).
4 For purposes of determining the deadline for filing a motion for leave to file a reply, the Boards Scheduling Order presume[s] that for a reply to be timely it would have to be filed within seven (7) days of the date of service of the answer it is intended to address. Scheduling Order 7 n.22 (July 1, 2010) (citing 10 C.F.R. § 2.309(h)(2)). To the extent that Entergys requested deadline of April 19th would constitute an extension of an otherwise-applicable deadline for filing its reply, Entergy hereby incorporates by reference the arguments set forth above showing appropriate cause for its motion for extension of time to answer New York States cross-motion.
State Department of State (NYSDOS) nearly five months after Entergy filed its pending Motion for Declaratory Order. Given that 10 C.F.R. § 2.323(c) provides only ten days for filing a response to a motion, Entergy expected that its motion would have been briefed and possibly even decided within five months. Entergy submitted a consistency certificationunder a full reservation of rightsonly after New Yorks response deadline had been extended by many months.5 Moreover, Entergys submission of a consistency certification does not moot its motion. Rather, Entergys motion will be mooted only if New York either agrees that license renewal requires no further consistency review or concurs with Entergys certification, neither of which has occurred. Accordingly, Entergy could not reasonably have anticipated New Yorks mootness argument and, therefore, requests leave to file a reply on that issue.
Entergy also could not reasonably have anticipated that New York would challenge the Boards jurisdiction based on an inaccurate contention that Entergys Motion for a Declaratory Order asks the Board to address[ ] a fundamental issue of interpretation of OCRM/NOAA regulations.6 The applicable regulation expressly commits the substantially different coastal effects determination to the Federal licensing agencyhere, the NRC.7 An interpretation of the CZMA and its regulations is not required to decide Entergys motion.
For all these reasons, good cause exists for granting Entergy leave to file a Reply to New Yorks mootness and jurisdiction arguments on April 19, 2013.
5 Notification of Entergys Consistency Certification Pursuant to the Coastal Zone Management Act 1 (Dec. 17, 2012); see also id. at 1-2 (The issue of whether license renewal requires any further CZMA review is still pending before, and to be resolved by, the Board.).
6 State of New York Response to Entergys Request to the Atomic Safety and Licensing Board for a Declaratory Order Concerning Coastal Zone Management Act Issues and Cross-Motion for Declaratory Order 18 (Apr. 5, 2013).
7 See Motion and Memorandum by Applicant Entergy Nuclear Operations, Inc. for Declaratory Order 4-5 (July 30, 2012) (citing 15 C.F.R. § 930.51(e)).
In accordance with 10 C.F.R. § 2.323(b), counsel for Entergy has consulted with counsel for New York, Riverkeeper, Clearwater, and the NRC Staff. Staff counsel does not oppose this motion, and counsel for Clearwater takes no position. Counsel for New York and Riverkeeper oppose Entergys request for leave to file a reply on April 19, 2013 on the grounds that, in their view, New Yorks arguments respond to Entergys Motion for Declaratory Order and raise no new issues.
Motion for Leave to File a Reply to Riverkeepers Arguments Regarding Indian Points Increased Power Output and Long-Term Onsite Nuclear Waste Storage Pursuant to 10 C.F.R. § 2.323(c) and Section G.3 of the Boards Scheduling Order of July 1, 2010, Entergy requests leave to file a brief Reply to Riverkeeper, Inc.s arguments regarding increased power output and long-term onsite nuclear waste storage in its Answer in Opposition to Entergys Motion for Declaratory Order.8 Entergy further requests that its Reply be due on April 19, 2013.9 Riverkeeper argues, among other things, that increases in power production at Indian Point since 2001 and the onsite storage of spent nuclear fuel have caused or will cause substantially different coastal effects requiring further consistency review by New York State.
There is good cause for granting leave to reply to these arguments because these circumstances were not raised in Entergys Motion for Declaratory Order. Although Entergys motion discussed whether changes in the operation of Indian Point have caused or will cause 8 See Riverkeeper Answer in Opposition to Motion and Memorandum by Applicant Entergy Nuclear Operations, Inc. for Declaratory Order 19-20, 23-25 (Apr. 5, 2013).
9 To the extent that Entergys requested deadline of April 19th would constitute an extension of an otherwise-applicable deadline for filing a reply, cf. Scheduling Order 7 n.22 (July 1, 2010), Entergy hereby incorporates by reference the arguments set forth above showing appropriate cause for its motion for extension of time to answer New York States cross-motion.
substantially different coastal effects since the time of the previous reviews, Entergy cannot reasonably have anticipated every circumstance that a party opposed to relicensure might argue as causing such coastal effects. Indeed, Entergys initial positionhaving had only two business days to consider Riverkeepers argumentsis that the increased power production and spent-fuel storage issues raised by Riverkeeper will not cause substantially different coastal effects within the meaning of the applicable regulations.10 Entergy requests the opportunity to explain its position on these issues in a brief reply.
In accordance with 10 C.F.R. § 2.323(b), counsel for Entergy has consulted with counsel for New York, Riverkeeper, Clearwater, and the NRC Staff. Staff counsel does not oppose this motion, and counsel for Clearwater takes no position. Counsel for Riverkeeper and New York oppose Entergys request for leave to file a reply on April 19, 2013 on the grounds that, in their view, Riverkeepers arguments respond to Entergys Motion for Declaratory Order and raise no new issues.
10 See 15 C.F.R. § 930.51(b)(3), (e); see also 44 Fed. Reg. 37,142, 37,150 (June 25, 1979) (explaining that the substantially different coastal effects test is intended to limit further review to cases where... the activity will be modified substantially causing new coastal zone effects).
Dated: April 9, 2013 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 500 North Capitol Street, NW Washington, DC 20001 (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.
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)
)
)
April 9, 2013 MOTION CERTIFICATION 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 these motions, and to resolve those issues, and I certify that my efforts have been partially unsuccessful. As set forth above:
- New York opposes both of Entergys Motions for Leave, but does not oppose Entergys Motion for Extension of Time.
- Riverkeeper opposes both of Entergys Motions for Leave, and takes no position on Entergys Motion for Extension of Time.
- The NRC Staff do not oppose any of the foregoing motions.
- Clearwater takes no position on any of the foregoing motions.
Executed in accord with 10 C.F.R. § 2.304(d)
Matthew M. Leland MCDERMOTT WILL & EMERY LLP 500 North Capitol Street, NW Washington, DC 20001 (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)
)
)
April 9, 2013 CERTIFICATE OF SERVICE I certify that on April 9, 2012, copies of the foregoing Motion for Leave to File Reply 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 500 North Capitol Street, NW Washington, DC 20001 (202) 756-8000 (202) 756-8087 fax