ML13100A250
| ML13100A250 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 04/10/2013 |
| From: | Burianek L, Jeremy Dean NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 24369, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01 | |
| Download: ML13100A250 (6) | |
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. April 10, 2013
x STATE OF NEW YORK OPPOSITION TO ENTERGYS MOTION FOR A REPLY TO THE STATES OPPOSITION TO ENTERGYS MOTION REGARDING THE COASTAL ZONE MANAGEMENT ACT On July 30, 2012, Entergy filed a Motion for Declaratory Order pursuant to Section 5(e) of the Administrative Procedure Act, 5 U.S.C. § 554(e) asking the Board to absolve Entergy of its statutory obligation to obtain a federal consistency determination from the New York State Department of State. On December 17, 2012, Entergy submitted federal consistency application materials to the New York State Secretary of State seeking the very consistency determination it asked the Board to excuse it from having to file. On April 5, 2013, the State opposed Entergys motion on grounds that, in light of Entergys submission of materials to the Department of State, its motion to the Board is moot, and that in any case, because the issue concerns interpretation of fundamental coastal management program provisions, jurisdiction lies with the New York State Department of State and the Office of Coastal Resources Management, National Oceanic and Atmospheric Administration (NOAA), and not with the Board. 1 On April 9, 2013, Entergy filed a motion seeking the right to reply to the States opposition on grounds that it could not have 1
The States April 5, 2012 companion Cross-Motion is pleaded in the alternative and becomes relevant only if the Board does not deny and/or dismiss Entergys July 30, 2012 Motion for Declaratory Order.
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foreseen the State making a mootness argument. Because Entergy itself filed the application with the Department of State, Entergys argument is baseless. Replies are not permitted as of right and Entergys motion should be denied because it has not made the requisite showing under the Commissions rules of compelling circumstances to overcome the general prohibition against replies.
The Commissions Rules of Practice do not authorize a reply. In particular, 10 C.F.R. § 2.323(c) provides:
The moving party has no right to reply, except as permitted by the Secretary, the Assistant Secretary, or the presiding officer. Permission may be granted only in compelling circumstances, such as where the moving party demonstrates that it could not reasonably have anticipated the arguments to which it seeks leave to reply.
10 C.F.R. § 2.323(c).
Entergys motion does not meet these standards. It makes no showing of compelling circumstances that would warrant allowing a reply. In choosing to submit federal consistency application materials to the New York State Secretary of State, Entergy should have reasonably anticipated that it ran the risk of rendering its pending motion moot. In addition to its argument concerning mootness, Entergy also argues that it could not reasonably have anticipated that New York would challenge the Boards jurisdiction. However, the State and Entergy engaged in lengthy consultation before Entergys July 30, 2012 motion was filed, during which time counsel for the State went to great lengths to explain New Yorks Coastal Management Program and federal consistency review to Entergys counsel and to correct Entergys misunderstandings about the program. Entergy has been aware of the States position on the issue of jurisdiction for more than a year, and it is disingenuous for Entergy to argue that the States jurisdictional argument could not have been anticipated.
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As such, Entergy has raised no grounds to support its submission of an unauthorized reply. The State respectfully requests that the Board deny Entergys request for a reply.
s/ s/
Janice A. Dean Lisa M. Burianek Assistant Attorney General Assistant Attorney General Office of the Attorney General Office of the Attorney General 120 Broadway The Capitol New York, New York 10271 Albany, New York 12224 (212) 416-8459 (518) 486-7398 janice.dean@ag.ny.gov lisa.burianek@ag.ny.gov April 10, 2013 3
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD
x In re: Docket Nos. 50-247-LR and 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. April 10, 2013
x CERTIFICATE OF SERVICE I hereby certify that on April 10, 2013, copies of the State of New Yorks Opposition to Entergys Motion for a Reply to the States Opposition to Entergys Motion Regarding the Coastal Zone Management Act were served electronically via the Electronic Information Exchange on the following recipients:
Lawrence G. McDade, Chair Shelbie Lewman, Esq., Law Clerk Richard E. Wardwell, Administrative Judge Carter Thurman, Esq., Law Clerk Michael F. Kennedy, Administrative Judge James Maltese, Esq., Law Clerk Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mailstop 3 F23 Mailstop 3 F23 Two White Flint North Two White Flint North 11545 Rockville Pike 11545 Rockville Pike Rockville, MD 20852-2738 Rockville, MD 20852-2738 Lawrence.McDade@nrc.gov Shelbie.Lewman@nrc.gov Richard.Wardwell@nrc.gov Carter.Thurman@nrc.gov Michael.Kennedy@nrc.gov James.Maltese@nrc.gov Atomic Safety and Licensing Board Panel Office of Commission Appellate U.S. Nuclear Regulatory Commission Adjudication Mailstop 3 F23 U.S. Nuclear Regulatory Commission Two White Flint North Mailstop 16 G4 11545 Rockville Pike One White Flint North Rockville, MD 20852-2738 11555 Rockville Pike Rockville, MD 20852-2738 ocaamail@nrc.gov 1
Office of the Secretary Bobby R. Burchfield, Esq.
Attn: Rulemaking and Adjudications Staff Matthew M. Leland, Esq.
U.S. Nuclear Regulatory Commission Clint A. Carpenter, Esq.
Mailstop 3 F23 McDermott Will & Emery LLC Two White Flint North 600 13th Street, NW 11545 Rockville Pike Washington, DC 20005-3096 Rockville, MD 20852-2738 bburchfield@mwe.com hearingdocket@nrc.gov mleland@mwe.com ccarpenter@mwe.com Sherwin E. Turk, Esq.
David E. Roth, Esq. Richard A. Meserve, Esq.
Beth N. Mizuno, Esq. Matthew W. Swinehart, Esq.
Brian G. Harris, Esq. Covington & Burling LLP Anita Ghosh, Esq. 1201 Pennsylvania Avenue, NW Joseph A. Lindell, Esq. Washington, DC 20004-2401 Office of the General Counsel rmeserve@cov.com U.S. Nuclear Regulatory Commission mswinegart@cov.com Mailstop 15 D21 One White Flint North Elise N. Zoli, Esq.
11555 Rockville Pike Goodwin Procter, LLP Rockville, MD 20852-2738 Exchange Place sherwin.turk@nrc.gov 53 State Street david.roth@nrc.gov Boston, MA 02109 beth.mizuno@nrc.gov ezoli@goodwinprocter.com brian.harris@nrc.gov anita.ghosh@nrc.gov William C. Dennis, Esq.
Joseph.Lindell@nrc.gov Assistant General Counsel Entergy Nuclear Operations, Inc.
Kathryn M. Sutton, Esq. 440 Hamilton Avenue Paul M. Bessette, Esq. White Plains, NY 10601 Jonathan Rund, Esq. wdennis@entergy.com Raphael Kuyler, Esq.
Morgan, Lewis & Bockius LLP Robert D. Snook, Esq.
1111 Pennsylvania Avenue, NW Assistant Attorney General Washington, DC 20004 Office of the Attorney General ksutton@morganlewis.com State of Connecticut pbessette@morganlewis.com 55 Elm Street jrund@morganlewis.com P.O. Box 120 rkuyler@morganlewis.com Hartford, CT 06141-0120 robert.snook@ct.gov Martin J. ONeill, Esq.
Morgan, Lewis & Bockius LLP Melissa-Jean Rotini, Esq.
Suite 4000 Assistant County Attorney 1000 Louisiana Street Office of the Westchester County Attorney Houston, TX 77002 Michaelian Office Building martin.oneill@morganlewis.com 148 Martine Avenue, 6th Floor 2
White Plains, NY 10601 Karla Raimundi, Environmental Justice MJR1@westchestergov.com Associate Sean Murray, Mayor Hudson River Sloop Clearwater, Inc.
Kevin Hay, Village Administrator 724 Wolcott Avenue Village of Buchanan Beacon, NY 12508 Municipal Building karla@clearwater.org 236 Tate Avenue Buchanan, NY 10511-1298 Richard Webster, Esq.
Administer@villageofbuchanan.com Public Justice, P.C.
Suite 200 Daniel Riesel, Esq. 1825 K Street, NW Thomas F. Wood, Esq. Washington, DC 20006 Victoria S. Treanor, Esq. rwebster@publicjustice.net Sive, Paget & Riesel, P.C.
460 Park Avenue Phillip Musegaas, Esq.
New York, NY 10022 Deborah Brancato, Esq.
driesel@sprlaw.com Riverkeeper, Inc.
vtreanor@sprlaw.com 20 Secor Road Ossining, NY 10562 Michael J. Delaney, Esq. phillip@riverkeeper.org Director dbrancato@riverkeeper.org Energy Regulatory Affairs NYC Department of Environmental Protection 59-17 Junction Boulevard Flushing, NY 11373 mdelaney@dep.nyc.gov Signed (electronically) by Janice A, Dean Assistant Attorney General State of New York (212) 416-8459 Dated at Albany, New York this 10th day of April 2013 3