ML16336A726
| ML16336A726 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 12/01/2016 |
| From: | Bessette P, Sutton K Entergy Nuclear Operations, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | Kennedy M, Lawrence Mcdade, Richard Wardwell Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS 51469 | |
| Download: ML16336A726 (11) | |
Text
Kathryn M. Sutton Partner
+1.202.739.5738 kathryn.sutton@morganlewis.com Paul M. Bessette Partner
+1.202.739.5796 pbessette@morganlewis.com December 1, 2016 Lawrence G. McDade, Chairman Dr. Michael F. Kennedy Dr. Richard E. Wardwell Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Docket: Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3),
Docket Nos. 50-247-LR and 50-286-LR Re: Coastal Zone Management Act Status Following the November 21, 2016 New York State Court of Appeals Decision
Dear Administrative Judges:
As noted in New York States (NYS) letter to this Atomic Safety and Licensing Board (Board), on November 21, 2016, the New York State Court of Appeals issued a decision (the Grandfathering Decision) sustaining the New York State Department of States (NYSDOS) conclusion that Entergys license renewal application for Indian Point Nuclear Generating Units 2 and 3 (IPEC) is subject to consistency review under the Coastal Zone Management Act (CZMA).1 In accordance with its obligation to inform the Board of relevant developments in a timely fashion,2 Entergy Nuclear Operations, Inc. (Entergy) is providing this notification regarding the status of other ongoing proceedings related to IPEC and the CZMA.
Various Status Reports submitted to the Board by the U.S. Nuclear Regulatory Commission (NRC)
Staff have noted that Entergys December 17, 2012, CZMA consistency certification and NYSDOSs November 6, 2015, objection remain in dispute.3 Specifically, on November 10, 2015, Entergy submitted a letter to the National Oceanic and Atmospheric Administration (NOAA) division of the U.S.
1 See Letter from John Sipos, NYS, to the Board at 1 (Nov. 21, 2016). The Grandfathering Decision addressed NYSDOS's authority to conduct a CZMA review, but did not consider NYSDOSs review or determination. See id., Attach. 1 at 9 n.7 (noting the determination is not before us).
2 See Duke Power Co. (William B. McGuire Nuclear Station, Units 1 & 2), ALAB-143, 6 AEC 623, 625 (1973); Metro.
Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-774, 19 NRC 1350, 1359 (1984).
3 See, e.g., NRC Staffs 49th Status Report in Response to the Atomic Safety and Licensing Boards Order of February 16, 2012 at 4-6 (Mar. 1, 2016); NRC Staffs 48th Status Report in Response to the Atomic Safety and Licensing Boards Order of February 16, 2012 at 5-6 (Feb. 1, 2016).
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW Washington, DC 20004 +1.202.739.3000 United States +1.202.739.3001
Lawrence G. McDade, Chairman December 1, 2016 Page 2 Department of Commerce: (1) requesting that NOAA declare the purported objection of NYSDOS to Entergys CZMA consistency certification as invalid because no consistency certification was pending when the purported objection was issued; and (2) reserving its right to file an appeal of the purported objection if the first request was not promptly granted by NOAA and seeking an extension of time to file a notice of appeal and consolidated record with respect to the objection.4 On November 25, 2015, NOAA deferred action on Entergys first request, pending a final order as to the Grandfathering Decision, and also extended the time for Entergy to appeal NYSDOSs determination until 60 days after issuance of that decision.5 Thus, Entergys challenges to NYSDOSs objection remain pending before NOAA.
Additionally, on January 14, 2016, Entergy filed an action against the New York State Secretary of State in the U.S. District Court for the Northern District of New York (Case 1:16-cv-00051-LEK-DJS),
asserting that the NYSDOS objection is preempted by the Atomic Energy Act. This matter also remains pending before the court.
Finally, the Board has left open the possibility that the parties could seek declaratory orders regarding Entergys claim that New York had previously conducted a review of IPECs consistency such that no further review is required under the CZMA.6 Thus, previous review remains a viable path to satisfying requirements for the issuance of a renewed IPEC operating license.
In summary, the validity of Entergys withdrawal of the consistency certification and NYSDOSs objection of same remains pending before NOAA; Entergy has until 60 days after issuance of the Grandfathering Decision to appeal the NYSDOS determination; Entergys preemption challenge remains pending in Federal court; and Entergy still could seek a declaratory order regarding previous review of IPECs consistency with the New York State Coastal Management Plan.
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, NW Washington, D.C. 20004 Phone: (202) 739-3000 Fax: (202) 739-3001 E-mail: kathryn.sutton@morganlewis.com E-mail: paul.bessette@morganlewis.com Counsel for Entergy Nuclear Operations, Inc.
4 See Letter from Sanford I. Weisburst, Esq., to David Kaiser, NOAA, Purported Objection of New York State Department of State Dated November 6, 2015 (Nov. 10, 2015) (Attachment 1).
5 See Letter from Lois Schiffer, General Counsel, U.S. Dept of Commerce, to Sanford I. Weisburst, Esq. and Linda Baldwin, Esq., Response to Letter-Requests under the Coastal Zone Management Act in the Matter of Entergy Nuclear Operation, Inc. at 2 (Nov. 25, 2015) (Attachment 2).
6 Licensing Board Order (Granting New Yorks Motions, Denying Clearwaters Motion, and Denying CZMA Motions) at 4 (June 12, 2013) (unpublished) (ML13163A233).
ATTACHMENT 1
Background
In 2007, Entergy applied to NRC for a 20-year renewal of the operating licenses for Indian Point 2 and 3. See 42 U.S.C. § 2133(c); 10 C.F.R. § 54.31(b); Letter from NRC to Entergy (July 25, 2007), http://pbadupws.nrc.gov/docs/ML0719/ML071900365.pdf (deeming license renewal application (LRA) complete). Because New York has obtained the Secretary of Commerces (Secretary) approval of its Coastal Management Program (CMP), see Approval of the N.Y. Coastal Zone Mgmt. Program, 47 Fed. Reg. 47,056 (Oct. 22, 1982), the Coastal Zone Management Act (CZMA) allows the relevant New York agency (NYSDOS) to object to Entergys consistency certification, unless the plants are exempted from review by New Yorks CMP or by New Yorks previous review of the plants.1 As part of the LRA, Entergy included a form of CZMA consistency certification stating that renewal of the operating licenses was consistent with New Yorks CMP. On December 17, 2012, Entergy transmitted to NRC and NYSDOS an actual consistency certification. Letter from Entergy to NRC and NYSDOS (Dec. 17, 2012),
http://pbadupws.nrc.gov/docs/ML1235/ML12352A340.html. After several mutually agreed stays of the CZMA objection deadline, on November 5, 2014, Entergy sent a notice (enclosed herewith) to NRC and NYSDOS that Entergy was withdrawing its December 17, 2012 consistency certification with the intentabsent a full and final resolution in Entergys favor on one or both of its arguments that Indian Point 2 and 3 are exempt from CMP/CZMA review, see n.1, suprato file a new certification upon NRCs issuance of a pending environmental impact statement supplement concerning, inter alia, the impacts of Indian Point 2 and 3 on aquatic life in the Hudson River.2 NYSDOS and Entergy subsequently exchanged correspondence, with NYSDOS contesting Entergys ability to withdraw the consistency certification, and Entergy defending its 1
On July 24, 2012, Entergy invoked both of these exemption means of CZMA compliance in a submission to NRC. Entergy asserted, first, that New York agencies had previously conducted reviews of Indian Point 2 and 3 for consistency with the CMP, and therefore another review was not required. See 15 C.F.R. § 930.51(b)(3). This previous-review issue was briefed by both parties to NRC Staff, and a decision by NRC Staff is pending. See Letter from Entergy to NRC (July 24, 2012), http://pbadupws.nrc.gov/docs/ML1220/ML12207A122.pdf. Entergy argued, second, that Indian Point 2 and 3 are exempted from review by the CMP through its exemption provision (sometimes called grandfathering clause). An intermediate New York state appellate court agreed with Entergy, see Entergy Nuclear Operation, Inc. v. N.Y. State Dept of State, 125 A.D.3d 21, 25 (App. Div., 3d Dept 2014), leave to appeal granted, No.
2015-438, 2015 WL 3497138, at *1 (N.Y. June 4, 2015), and the case is currently pending before New Yorks highest court and likely to be argued in early 2016.
2 On November 3, 2014, NRC Staff indicated that it intended to issue the supplement in March 2016. Letter from NRC to Entergy (Nov. 3, 2014),
http://pbadupws.nrc.gov/docs/ML1425/ML14254A207.pdf. On June 11, 2015, NRC Staff revised the issuance date to September 2016. Letter from NRC to Entergy (June 11, 2015),
http://pbadupws.nrc.gov/docs/ML1514/ML15147A199.pdf.
2
right to do so. Pending a resolution of that dispute, the parties entered into several standstill extension agreements such that, assuming arguendo NYSDOS were correct that a consistency certification remained pending, the CZMA objection deadline would be extended. The last such standstill agreement expired on October 30, 2015, and NYSDOS had seven days remaining under the CZMA objection deadline to the extent a certification was even pending (it was not, as it had been withdrawn). On November 6, 2015, NYSDOS issued a purported objection to Entergys withdrawn consistency certification.
Request For Declaration That NYSDOSs Purported Objection Is Invalid Because Entergy properly withdrew its consistency certification on November 5, 2014, no consistency certification was pending when NYSDOS issued its purported objection on November 6, 2015, and the purported objection is therefore invalid.
First, a state agency cannot issue a valid objection where no consistency certification is pending. As the National Oceanic and Atmospheric Administration (NOAA) has explained, its regulations require a pending consistency certification for the state to act. CZMA Fed.
Consistency Regs., 71 Fed. Reg. 788-01, at 796 (Jan. 5, 2006) (the regulations removed a States option of starting the six-month review period when a consistency certification has not been submitted; [t]he statutory language and scheme of the CZMA presumes that the applicant has the first opportunity to demonstrate that its activity is consistent with the enforceable policies of the state CMP; and the regulations require a state objection be made in response to the applicants consistency certification). Moreover, the Secretary has previously held a states objection is invalid when there is no underlying consistency certification. See Letter from Conrad C. Lautenbacher, Jr., Under Secy of Commerce for Oceans and Atmosphere, Dept of Commerce, to Steven M. Seibert, Secy, Dept of Cmty. Affairs, at 9-10 (Apr. 17, 2002)
(dismissal letter regarding Collier Resources Co.s (Collier) consistency appeal to the Secretary). In that case, the applicant had failed to file a consistency certification, the state agency issued an objection to the non-existent certification, and the applicant appealed. The Secretary held that a state may not object within the meaning of the CZMA, to an application for a federal license or permit when no consistency certification has been submitted. Id.
Referencing this decision in its subsequent rulemaking, NOAA commented: a consistency certification is central to the States jurisdiction and authority under the statute to conduct a consistency review. 71 Fed. Reg. 788-01, 797.
Second, because Entergy had validly withdrawn its consistency certification on November 5, 2014, one year before NYSDOS issued its purported objection on November 6, 2015, no certification was pending at the time of the objection and the objection is invalid. The Collier case, discussed above, involved a situation where a certification had never been filed.
Nonetheless, it should be applied to the situation here, where a certification was filed and then withdrawn before the objection was issued. It is well-settled as a matter of general administrative law that federal license applicants may submit, withdraw, and resubmit materials in support of license applications. See, e.g., Jones v. SEC, 298 U.S. 1, 23 (1936) (the right of the registrant to withdraw his application would seem to be as absolute as the right of any person to withdraw an ungranted application for any other form of privilege in respect of which he is at the time alone concerned); Ganley v. Mazda Motor of Am., Inc., 367 F. Appx 616, 623-24 (6th 3
Cir. 2010) (relying on Jones and holding that applicant had the right to withdraw); see also Society Hill Towers Owners Assn v. Rendell, 210 F.3d 168, 179-80 (3d Cir. 2000) (stating that applicant was not prevented from withdrawing and resubmitting application to cure procedural defect).
Indeed, the Secretary explicitly approved an applicants voluntary withdrawal of a consistency certification under the CZMA in the matter of the Oyster Creek Nuclear Generating Station. Specifically, the Secretary, through the general counsels office of NOAA, stated that it had no objections to the terms of a memorandum of understanding pursuant to which the applicant voluntarily withdrew its consistency certification. Mem. of Understanding between AmerGen Energy Company LLC and the New Jersey Dept of Envtl Prot. (NJDEP) at 3 (Sept. 19, 2005), http://pbadupws.nrc.gov/docs/ML0604/ML060400050.pdf; see also id. at 2 (AmerGen hereby withdraws its consistency certification, dated January 21, 2005, from NJDEPs consideration.). In another case, the Secretary acknowledged that California took no action with respect to the onshore portion of Exxon Company U.S.A.s consistency certification because Exxon temporarily withdrew that portion from the Commissions consideration, even though California also concurred with Exxons consistency certification for the offshore portion. Decision and Findings in the Consistency Appeal of Exxon, from an Objection by the Cal. Coastal Commn, at 1 (Secy of Commerce Feb. 18, 1984).3 Third, NOAA should grant Entergys request for a declaration now rather than deferring the issue to a full-blown appeal under 16 U.S.C. § 1456(c)(3)(A). Doing so would spare NRC the substantial burden of assembling the consolidated record and would spare the parties and the Secretary the need to go through a CZMA appeal at this stage. Importantly, by deeming the objection invalid, NOAA would leave NYSDOS with its full rights to review and to respond to any consistency certification that Entergy may submit in the future with respect to the LRA, with the benefit of NRCs soon-to-be-issued environmental impact statement supplement.
3 Similarly, NYSDOS itself has explicitly acknowledged that an applicant may voluntarily withdraw its consistency certification. In the matter of the James A. FitzPatrick Nuclear Power Plant, Entergy submitted a letter on November 20, 2006, voluntarily withdrawing its certification, and NYSDOS responded on November 27, 2006, acknowledging that the withdrawal was immediately effective: [NYSDOS] received your letter dated November 20th, 2006, withdrawing the consistency certification . . . . [NYSDOS] has, therefore, terminated its review of your consistency certification for this proposal. Letter from NYSDOS to Entergy (Nov. 27, 2006), http://pbadupws.nrc.gov/docs/ML0801/ML080110129.pdf. And even with respect to Indian Point, NYSDOS (through its counsel, the New York Attorney Generals Office) acknowledged Entergys withdrawal of its certification in a court filing without suggesting that the withdrawal was ineffective. Letter from N.Y. Attorney Generals Office to Supreme Court, Appellate Div., Third Dept (Nov. 6, 2014). Moreover, in a December 1, 2014 report by NRC Staff to the Atomic Safety and Licensing Board (ASLB), NRC Staff stated simply that Entergy recently withdrew its CZMA consistency certification from review by [NYSDOS],
subject to resubmittal following issuance of the Staffs Final FSEIS Supplement in March 2016.
NRC Staffs 34th Status Report in Response to the ASLBs Order of Feb. 16, 2012, at 6 n.27 (Dec. 1, 2014), http://pbadupws.nrc.gov/docs/ML1433/ML14335A590.pdf.
4
Request, In The Alternative, For An Extension Of Time To File Notice Of Appeal And Consolidated Record If the objection is not deemed invalid or if NOAA is not inclined to issue a declaration on that issue within thirty days from November 6, 2015, NOAA should grant an extension of the deadline for Entergy to file the notice of appeal and the consolidated record. The regulations authorize an extension of the deadline in an energy-related case like this one for good cause shown. 15 C.F.R. § 930.127(i)(2). Here, one source of good cause is that a decision from the New York Court of Appeals in a pending case may make the objection moot. Another source of good cause is to allow the federal permitting agency (here, NRC) additional time to assemble the consolidated record. We address these in turn below.
First, an extension should be granted because a pending case in the New York Court of Appeals may decide that Indian Point 2 and Indian Point 3 are exempt from review under New Yorks CMP (and hence from NYSDOSs review for CZMA purposes), which would moot NYSDOSs purported objection. As described in footnote 1, supra, an intermediate New York appellate court held that the plain text of New Yorks CMP exempts Indian Point Units 2 and 3 from review. If the New York Court of Appeals affirms the intermediate appellate courts decision, such affirmance will fully and finally resolve that no basis exists in the CMP for consistency review of continued operation of Indian Point 2 and 3. Thus, NYSDOSs objection to Entergys December 2012 withdrawn consistency certification will be of no effect for that reason. As a matter of administrative economy, the parties, the NRC, and the Secretary should await that decision before expending resources on an appeal that may prove unnecessary.
Accordingly, the Secretary should extend Entergys deadline for filing a notice of appeal and consolidated record until 90 days after the New York Court of Appeals decides the appeal.
Second, if NOAA does not extend the deadline for filing the notice of appeal until 90 days following the decision of the New York Court of Appeals in the pending appeal, Entergy respectfully requests that the Secretary extend the ordinary 30-day deadline to file the notice of appeal and consolidated record, by adding an additional 60 days (for a total of 90 days from Entergys receipt of the objection). The requested extension would allow NRC more time to compile the consolidated record without interfering with competing commitments of NRC Staff that would be charged with that responsibility. Those commitments include preparation of the environmental impact statement supplement described earlier in this letter, and preparation for and participation in an Indian Point-related hearing scheduled to commence before NRCs Atomic Safety and Licensing Board beginning November 16, 2015.4 The consolidated record for the LRA of Indian Point 2 and 3, given the facilities size and complexity, is extremely large and complicated. It contains materials from the past eight years of proceedings on the LRA. It includes comments from a large number of federal, state, and local entities that have expounded on license renewal and numerous studies of the benefits and the impacts of Indian Point 2 and 3.
In advance of a prior CZMA appeal where NRC was also the agency responsible for gathering the consolidated record, NOAA granted several extensions. See Letter from Joel La Bissonniere, 4
NRC, as the federal agency to which the license application was submitted, has the primary responsibility for gathering the consolidated record for a CZMA appeal of a state agencys objection to the Secretary. See 15 C.F.R. § 930.127(i)(1).
5
ATTACHMENT 2
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 1, 2016
_______________________________________ )
CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, 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 Ryan K. Lighty Ryan K. Lighty, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: (202) 739-5274 Fax: (202) 739-3001 E-mail: ryan.lighty@morganlewis.com DB1/ 89873368