ML15014A004

January 6, 2015 Letter to Linda Baldwin Re Agreement Between Entergy and Nysdos

ML15014A004
Person / Time
Site:	Indian Point
Issue date:	01/06/2015
From:	Burchfield B McDermott Will & Emery LLP
To:	Baldwin L Office of Nuclear Reactor Regulation, State of NY, Dept of State
References
Download: ML15014A004 (3)

Text

McDermott Will &Emery Boston Brussels Chicago Dusseldorf Frankfurt Houston London Los Angeles Miami Bobby R. Burchfield Milan Mun1ch New York Orange County Pans Rome Seoul S1l1con Valley Washington. D.C Attorney at Law bburchfield@mwe .com Strategic alliance w1th MWE Ch1na Law Officas (Shanghai) +1 202 756 8003 January 6, 2015 VIA FIRST CLASS MAIL AND EMAIL Linda M. Baldwin- Linda.Baldwin@dos.ny.gov General Counsel New York State Department of State One Commerce Plaza 99 Washington Avenue Albany, NY 12231-0001 Re: Agreement between Entergy and New York State Department of State dated December 24,2014 (corrected as of December 29, 2014)

Dear Linda:

On behalf of Entergy, I write in response to Bill Sharp's e-mails dated December 26, and 29,2014, on behalfofyou and the New York State Department of State ("Department"), to Lois James of the Nuclear Regulatory Commission ("NRC"). Included with those emails were, respectively, the Agreement between Entergy and the New York State Department of State dated December 24, 2014, and a corrected version of that Agreement (as corrected, the "Agreement").

In both e-mails, you characterize the Agreement as one that "stays the federal consistency review .... " Entergy disagrees with your characterization of the Agreement as presently putting a stay into place.

Entergy recognizes that Entergy and the Department disagree on whether a certification is currently pending. The Agreement was intended to be neutral with respect to that disagreement, stating that "the parties wish to preserve their respective positions on the effectiveness (or, from the Department's standpoint, the ineffectiveness) of [Entergy's November 5, 2014] withdrawal while allowing the Department to pursue the Department Challenge To Grandfathering Decision." Agreement at 2.

Because a stay would presume that there is a pending certification to be stayed (implying that the withdrawal was ineffective), the Agreement, seeking to remain neutral as to whether the withdrawal was effective, does not presently put a stay into place. Instead, the Agreement undertakes two altemati ve assumptions to address the as yet unresolved contingencies that (I) the Department is correct that there is a pending certification that can be stayed; and (2) Entergy is correct that there is not a pending certification that can be stayed.

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Linda M. Bladwin January 6, 2015 Page 2 Thus, the Agreement's Paragraph !- instead of stating, "The parties agree to a stay of the federal consistency review period from December 31,2014, until June 30, 2015"-states, "Assuming that the Department is correct that Entergy's November 5, 2014 withdrawal of the certification was not effective: Entergy and the Department shall be deemed to have agreed to a stay as of December 24, 2014 .... " Agreement at 2 (emphasis added). The Agreement goes on to address the other contingency in Paragraph 2: "Assuming that Entergy is correct that Entergy's November 5, 2014 withdrawal was effective: Entergy will file a new consistency certification for the operating license renewal application within 60 days of the issuance of the final FSEIS Supplement unless the previous review and/or grandfathering issues have been fully and finally resolved in Entergy's favor before that time." Agreement at 2-3 (emphasis added).

Although, as noted, the parties disagree on whether Entergy's November 5, 2014 withdrawal of the certification was effective, Entergy does not interpret your December 24 and 29, 2014 e-mails as requesting NRC to resolve that disagreement now. Nor does Entergy seek a resolution of that disagreement now. Entergy instead is sending this letter now so that the record is clear concerning Entergy's interpretation of the Agreement.

Entergy is disappointed that the Department did not consult with Entergy as to how to phrase the cover e-mail before sending it to NRC, and that the Department instead proceeded unilaterally (and inaccurately, as explained above) to characterize the Agreement. Going forward, Entergy urges the Department to confer in good faith with Entergy before sending to NRC (or to other relevant federal agencies, such as NOAA) a communication that purports to characterize an agreement between Entergy and the Department whose purpose is to preserve neutrality as to a dispute between the parties.

Sincerely,

~~

Bobby R. Burchfield cc (via email): Lois James (lois.james@nrc.gov)

Douglas Pickett (Douglas.Pickett@nrc.gov)

William Dean (william.dean@nrc.gov)

Scott Stewart (Scott.Stewart@nrc.gov)

Ami Patel (Ami.Patel@nrc.gov)

Michael Wentzel (Michael.Wentzel@nrc.gov)

Sherwin Turk (sherwin.turk@nrc.gov)

David Lew (david.lew@nrc.gov)

David Kaiser (david.kaiser@noaa.gov)

Christopher M. Hogan (chris.hogan@dec.ny.gov)

William Sharp (William.Sharp@dos.ny.gov)

Kari Gathen (Kari.Gathen@dos.ny.gov)

Linda M. Bladwin January 6, 2015 Page 3 Jeff Herter (Jeff.Herter@dos.ny. gov)

Gregory L. Capobianco (Gregory.Capobianco@dos.ny.gov)

Jeffrey D. Zappieri (Jeffrey.Zappieri@dos.ny.gov)

Fred R. Dacimo (FDacimo@entergy.com)

William Glew, Jr. (wglew@entergy.com)

Kelli Dowell (kdowell@entergy.com)

Dara F. Gray (DGray@entergy.com)

Martin R. Healy (mhealy@goodwinprocter.com)

Matthew M. Leland (mleland@mwe.com)