ML13105A435
| ML13105A435 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 04/15/2013 |
| From: | Brancato D, Musegaas P Riverkeeper |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 24392, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01 | |
| Download: ML13105A435 (10) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD In the Matter of Entergy Nuclear Operations, Inc.
(Indian Point Nuclear Generating Units 2 and 3)
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_________________________________ )
Docket Nos.
50-247-LR and 50-286-LR April 15,2013 RIVERKEEPER ANSWER IN SUPPORT OF STATE OF NEW YORK CROSS-MOTION FOR DECLARATORY ORDER CONCERNING COASTAL ZONE MANAGEMENT ACT ISSUES In accordance with 10 C.P.R.§ 2.323(c) and the Atomic Safety and Licensing Board's
("ASLB") July 1, 2010 Scheduling Order, 1 Riverkeeper, Inc. ("Riverkeeper"), hereby submits this answer in support of the State ofNew York's (State") Cross-Motion for a Declaratory Order dated April5, 2013 ("State's Cross-Motion"). To the extent the ASLB decides to exercise jurisdiction over the Coastal Zone Management Act issues raised in Entergy' s initial motion for declaratory order dated July 30, 2012, and the State's cross-motion for declaratory order, for the reasons discussed below, Riverkeeper respectfully submits that the ASLB should grant the State's cross-motion and issue a declaratory order stating that the proposed license renewal of Indian Point is subject to Federal coastal consistency review by the New York State Department of State and that Entergy has yet to satisfy this mandatory obligation.
BACKGROUND On July 30, 2012, Entergy filed a "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 1 In the Matter ofEntergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Docket Nos.
50-0247-LR and 50-286-LR, ASLBP No. 07-858-03-LR-BD01, Scheduling Order (July 1, 2010), at, G.
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Renewal of the Operating Licenses" (hereinafter "Entergy's Motion for Declaratory Order").
Entergy's motion asserts that the operation of Indian Point has been subject to coastal consistency reviews in the past and that no "further" review by the New York State Department of State ("NYSDOS") is necessary since, in Entergy's view, the proposed relicensing oflndian Point will not result in any coastal effects that are substantially different than those "previously reviewed. "2 In accordance with several scheduling orders issued in the above-referenced Indian Point license renewal proceeding, on AprilS, 2013, the State and Riverkeeper filed answers to Entergy's Motion for Declaratory Order opposing Entergy's misguided and unfounded positions regarding Entergy's coastal consistency obligations.3 The State simultaneously filed a Cross-Motion for Declaratory Order seeking "a declaration that Indian Point's LRA [license renewal application] is subject to federal consistency review by the NYSDOS as the U.S. Secretary of Commerce's approved delegate under the CZMA [Coastal Zone Management Act]."4 For the reasons stated below, Riverkeeper supports the State's request.
ARGUMENT As an initial matter, the State's Response and Cross-Motion to Entergy's Motion for Declaratory Order explained the ASLB's lack of jurisdiction to decide the legal questions raised by Entergy pertaining to whether State consistency determinations on unrelated matters can 2 Entergy's Motion for Declaratory Order at 1, 14-21.
3 State ofNew York Response to Entergy's Request to the Atomic Safety and Licensing Board for a Declaratory Order Concerning Coastal Zone Management Act Issues and Cross-Motion for Declaratory Order (April5, 2013)
(hereinafter "State's Response and Cross-Motion"); Riverkeeper Answer in Opposition to "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 the Operating Licenses" (April 5, 2013) (hereinafter "Riverkeeper's Answer in Opposition to Entergy Motion for Declaratory Order").
4 State's Response and Cross-Motion at 1-2.
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satisfy Federal coastal consistency certification requirements.5 Thus, the State's Cross-Motion pertains to circumstances in which, notwithstanding its lack of authority, the ASLB does not deny Entergy's Motion for Declaratory Order based on jurisdictional grounds. Riverkeeper's Answer in Opposition to Entergy Motion for Declaratory Order also took the position that the ASLB is without jurisdiction to rule upon the issues raised in Entergy's motion.6 Riverkeeper maintains this position for the reasons already put forth7, and, as such, Riverkeeper's support of the State's Cross-Motion is, likewise, premised upon circumstances in which the ASLB decides to rule upon the substantive issues raised in Entergy's Motion for Declaratory Order.
Thus, only to the extent that the ASLB takes on the issues Entergy calls into question, for the following reasons, Riverkeeper supports the State's request for a declaratory order that Entergy's LRA pertaining to Indian Point "is subject to federal consistency review by First, Riverkeeper agrees with the State that Federal coastal consistency review is required because the only state agency designated to conduct such reviews, NYSDOS, has never previously conducted this necessary review in relation to the operation oflndian PointY For the reasons more fully explained in Riverkeeper's Answer in Opposition to Entergy Motion for Declaratory Order, Riverkeeper agrees that the Federal relicensing activity at issue has never been "previously reviewed" for purposes of a Federal coastal consistency determination. 10 5 State's Response and Cross-Motion at I, 17-22.
6 Riverkeeper's Answer in Opposition to Entergy Motion for Declaratory Order at 8-10.
7 State's Response and Cross-Motion at 17-21; Riverkeeper's Answer in Opposition to Entergy Motion for Declaratory Order at 8-10.
8 State's Response and Cross-Motion at 22.
9 Id at 23-27.
10 Riverkeeper's Answer in Opposition to Entergy Motion for Declaratory Order at 10-15.
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Entergy's varied references to alleged prior reviews simply fail to satisfy Entergy's Federal coastal consistency obligations stemming from the CZMA. II Second, Riverkeeper also agrees with the State, that, "[ e ]ven if Indian Point had been previously subject to consistency review by the NYSDOS -which it has not-the regulatory landscape... has changed dramatically since the facilities were originally licensed... as have aspects of the facility and its environmental circumstances" and that such changes "compel" a Federal consistency review ofEntergy's Indian Point LRA by NYSDOS.I2 Indeed, Riverkeeper's Answer in Opposition to Entergy Motion for Declaratory Order likewise takes the position that the operation of Indian Point will result in substantially different coastal effects that have never been subject to a coastal consistency review. 13 Riverkeeper discussed various changed circumstances present or foreseeable at Indian Point, including increased power output, forthcoming changes to Indian Point's cooling water intake structures, the presence of extensive radiological contamination plumes that leach into the Hudson River, and the new regulatory reality of long-term and likely indefinite storage of high-level nuclear waste on the banks of the Hudson River. I4 Riverkeeper explained how such changes that have occurred or will occur at Indian Point do or will result in substantial coastal effect and, thus, warrant Federal consistency reviewY Riverkeeper agrees with the State that additional changes to environmental circumstances around Indian Point also warrant Federal consistency review, including changes to significant habitat designations in the area surrounding 11 Id. at 12-15.
12 State's Response and Cross-Motion at 27-30.
13 Riverkeeper's Answer in Opposition to Entergy Motion for Declaratory Order at 17-25.
14 Id.
1s Id.
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the plant, as well as the recent listing of Atlantic sturgeon, which is known to be present in the vicinity of Indian Point, as endangered. 16 In addition, to the extent that the ASLB decides to make a determination about the existence of"substantially different coastal effects" under 15 C.F.R. § 930.5l(e),17 the ASLB "shall give considerable weight to the opinion of the State agency" and construe the term "substantially different" "broadly to ensure that the State agency has the opportunity to review activities and coastal effects not previously reviewed."18 The State's Response and Cross-Motion unequivocally set forth the position articulated by NYSDOS that there has been no adequate "prior review" of the operation of Indian Point and that, in any event, substantially different circumstances exist which warrant a Federal consistency review. 19 The ASLB must afford the State's opinions substantial weight, and, accordingly, find that substantially different circumstances exist and are, alone, enough to warrant Federal consistency review.
CONCLUSION For the foregoing reasons, and for the reasons stated in Riverkeeper's Answer in Opposition to Entergy Motion for Declaratory Order, Riverkeeper supports the State's Cross-Motion for Declaratory Order, and respectfully submits that, to the extent the ASLB does not 16 State's Response and Cross-Motion at 28.
17 For the reasons explained previously by Riverkeeper, NRC need not make such a determination since the operation oflndian Point has not been "previously reviewed" for Federal coastal consistency purposes, which is necessary to trigger a determination of substantially different coastal effects. Riverkeeper' s Answer in Opposition to Entergy Motion for Declaratory Order at 16.
18 15 C.F.R. § 930.51(e) (emphasis added).
19 State's Response and Cross-Motion at 23-30. NYSDOS has stated this position clearly numerous times. See to Riverkeeper's Answer in Opposition to Entergy Motion for Declaratory Order (Letter from S.
Watson (General Counsel, NYSDOS) to E. Leeds (Director, Nuclear Reactor Regulation, NRC), Re: DOS File #: 0-2009-0006, NRC Docket#: 50-247 & 50-286, Application to Renew Operating Licenses for Indian Point Nuclear Power Reactors Unit 2 and Unit 3, Hudson River, Village of Buchanan, Westchester County, General Correspondence-NL-12-107 (August 8, 2012)); Attachment 4 to Riverkeeper's Answer in Opposition to Entergy Motion for Declaratory Order (NYSDOS, In the Matter of the Petition of Entergy Nuclear Operations, Inc., Entergy Nuclear Indian Point 2, LLC, and Entergy Nuclear Indian Point 3, LLC, Petitioner, For a Declaratory Ruling, Response to Request for Declaratory Ruling (Jan. 9, 2013), at 12-15).
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dismiss Entergy's Motion for Declaratory Order on jurisdictional grounds, the ASLB issue a declaration that the proposed license renewal oflndian Point is subject to Federal coastal consistency review by NYSDOS and that Entergy has yet to satisfy this mandatory obligation.
Respectfully submitted, Signed (electronically) by Deborah Brancato, Esq.
Phillip Musegaas, Esq.
Riverkeeper, Inc.
20 Secor Road Ossining, NY 10562 (914) 478-4501 dbrancato@riverkeeper.org phillip(a{riverkeeper.org Dated: Aprill5, 2013 6
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD In the Matter of Entergy Nuclear Operations, Inc.
(Indian Point Nuclear Generating Units 2 and 3)
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)
)
)
)
)
Docket Nos.
50-247-LR and 50-286-LR April15, 2013
_______________________________ )
Certification Pursuant to 10 C.F.R. § 2.323(b)
In accordance with 10 C.F.R. § 2.323(b) and the~ G.7 of the ASLB's July 1, 2010 Scheduling Order in the above-reference proceeding, I certify that I have made a sincere effort to make myself available to listen and respond to the moving party, and to resolve the factual and legal issues raised in the motion, and that my efforts to resolve the issues have been successful.
Signed (electronicallv) by Deborah Brancato Deborah Brancato, Esq.
1
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD In the Matter of Entergy Nuclear Operations, Inc.
(Indian Point Nuclear Generating Units 2 and 3)
)
)
)
)
)
)
Docket Nos.
50-247-LR and 50-286-LR April15, 2013
_________________________________ )
CERTIFICATE OF SERVICE I certify that on April15, 2013, copies ofRiverkeeper Answer in Support of State ofNew York Cross-Motion for Declaratory Order Concerning Coastal Zone Management Act Issues, were served on the following by NRC's Electronic Information Exchange:
Lawrence G. McDade, Chair Shelbie Lewman Richard E. Wardwell, Administrative Judge Law Clerk Michael F. Kennedy, Administrative Judge Anne Siamacki Atomic Safety and Licensing Board Panel Law Clerk U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Washington, D.C. 20555 U.S. Nuclear Regulatory Commission Lawrence.McDade@nrc.gov Washington, D.C. 20555 Richard. Wardwell@nrc.gov shelbie.lewman@nrc.gov Michael.Kennedy@nrc.gov anne.siarnacki@nrc.gov John J. Sipos, Esq.
Bobby R. Burchfield, Esq.
Assistant Attorney General Matthew M. Leland, Esq.
Office of the New York Attorney General Clint A. Carpenter, Esq.
for the State ofNew York McDermott Will & Emery LLC The Capitol 600 13th Street, NW Albany, NY 12224 Washington, DC 20005-3096 E-mail: John.Sipos@oag.state.ny.us bburchfield@mwe.com mleland@mwe.com ccarpenter@mwe.com Richard A. Meserve, Esq.
Martin J. O'Neill, Esq.
Covington & Burling LLP Morgan, Lewis & Bockius, LLP 1201 Pennsylvania A venue, NW 1 000 Louisiana Street, Suite 4000 Washington, DC 20004-2401 Houston, TX 77002 Phone: (202) 662-6000 E-mail: mattin.oneilll@,morganlewis.com Fax: (202) 662-6291 E-mail: rmeserve@cov.com 1
Janice A. Dean, Esq.
William C. Dennis, Esq.
Assistant Attorney General Entergy Nuclear Operations, Inc.
Office of the Attorney General 440 Hamilton A venue 120 Broadway, 26th Floor White Plains, NY 10601 New York, NY 10271 E-mail: wdennis@entergy.com E-mail: Janice.dean@oag.state.ny.us Office of the Secretary Office of Commission Appellate Adjudication Rulemakings and Adjudications Staff U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, D.C. 20555 Washington, D.C. 20555 E-mail: OCAAMAIL@nrc.gov E-mail: HEARINGDOCKET@nrc.gov Manna Jo Greene Thomas F. Wood, Esq.
Karla Raimundi Daniel Riesel, Esq.
Stephen C. Filler, Board Member Victoria S. Treanor Hudson River Sloop Clearwater, Inc.
Sive, Paget and Riesel, P.C.
724 Wolcott Ave 460 Park A venue Beacon, New York 12508 New York, NY 10022 E-mail: Mannajo@clearwater.org E-mail: driesel@sprlaw.com karla@ clearwater.org vtreanor@sprlaw.com stephenfiller@gmail.com Melissa-Jean Rotini, of counsel Sean Murray, Mayor Assistant County Attorney Village of Buchanan Office of Robert F. Meehan, Westchester Municipal Building County Attorney 236 Tate A venue 148 Martine A venue, 61h Floor Buchanan, NY 10511-1298 White Plains, NY 1 0601 E-mail: vob@bestweb.net, E-mail: MJRI @westchestergov.com SMurray@villageofbuchanan.com, Administrator@villageofbuchanan.com Elise N. Zoli, Esq.
Richard Webster, Esq.
Goodwin Procter, LLP Public Justice, P.C.
53 State Street Suite 200 Boston, MA 02109 1825 K Street, NW E-mail: ezoli@goodwinprocter.com Washington, DC 20006 rwebster@publicjustice.net Robert D. Snook, Esq.
Michael J. Delaney Assistant Attorney General Department of Environmental Protection 55 Elm Street, P.O. Box 120 59-17 Junction Boulevard Hartford, CT 06141-0120 Flushing NY 113 73 E-mail: Robert.Snook@po.state.ct.us E-mail: mdelaney@dep.nyc.gov 2
Sherwin E. Turk Beth N. Mizuno Brian G. Harris David E. Roth Joseph A. Lindell Anita Ghosh, Esq.
Office of General Counsel Mail Stop: 0-15D21 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 E-mail:
Sherwin. Turk@nrc.gov Beth.Mizuno@nrc.gov brian.harris@nrc.gov David.Roth@nrc.gov J oseJ2h.Lindell@nrc. gov anita.ghosh@nrc.gov Edward F. McTiernan Deputy Counsel Office of General Counsel New York State Department of Environmental Conservation 625 Broadway, 14th floor Albany, NY 12233-150024 (518) 402-9185 phone (518) 402-9018 fax efmctier@gw.dec.state.nv.us Signed (electronically) hv Deborah Brancato Deborah Brancato April15, 2013 Kathryn M. Sutton, Esq.
Paul M. Bessette, Esq.
Jonathan M. Rund, Esq.
Raphael Kuyler, Esq.
Morgan, Lewis & Bockius, LLP 1111 Pennsylvania Ave. N.W.
Washington, D.C. 20004 E-mail:
]2bessette@morganlewis.com ksutton@morganlewis.com jrund(ti),morganlewis.com rkuyler@morganlewis.com 3