ML20296A283
| ML20296A283 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 10/20/2020 |
| From: | Solano R Friedman, Kaplan, Seiler & Adelman, LLP, State of NJ, Economic Development Authority |
| To: | NRC/OCM, NRC/SECY |
| SECY RAS | |
| References | |
| 50-003-LT-2, 50-247-LT-2, 50-286-LT-3, 72-51-LT-2, License Transfer, RAS 55839 | |
| Download: ML20296A283 (260) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE SECRETARY AND THE COMMISSION
)
In the Matter of )
)
ENTERGY NUCLEAR OPERATIONS, )
INC.; ENTERGY NUCLEAR INDIAN )
POINT 2, LLC; ENTERGY NUCLEAR ) Docket Nos.
INDIAN POINT 3, LLC; HOLTEC ) 50-3 INTERNATIONAL; and HOLTEC ) 50-247 DECOMMISSIONING ) 50-348 INTERNATIONAL, LLC; APPLICATION )72-051 FOR ORDER CONSENTING TO ) October 20, 2020 TRANSFERS OF CONTROL OF )
LICENSES AND APPROVING )
CONFORMING LICENSE )
AMENDMENTS )
___________________________________ )
MOTION OF RIVERKEEPER, INC. TO SUPPLEMENT THE BASIS OF ITS CONTENTION WITH NEW EVIDENCE NOT PREVIOUSLY AVAILABLE
TABLE OF CONTENTS I. Introduction .. 1 II. Factual Background . 2 A. Holtec Is Under Criminal Investigation in New Jersey . 3 B. Holtec Violated the Law in Lacey Township 5 III. Riverkeeper Satisfies NRCs Standards for Amending Contentions .. 8 A. The Information Relied on by Riverkeeper Was Not Previously Available . 9 B. The Information Relied on by Riverkeeper is Materially Different 11 C. The Information Relied on by Riverkeeper is Timely Submitted 11 IV. Conclusion . 11 Certificate of Counsel 12 Certificate of Service . 13 i
I. INTRODUCTION Pursuant to 10 C.F.R. § 2.309(c), Riverkeeper, Inc. (Riverkeeper) respectfully moves to supplement the basis of its previously-filed contention regarding an application by Entergy Nuclear Operations, Inc. (Entergy), Holtec International (Holtec), and Holtec Decommissioning International, LLC (HDI) to the U.S. Nuclear Regulatory Commission (NRC or Commission) for approval of the direct and indirect transfers of control of Provisional Operating License No. DPR-5 and Renewed Facility Operating License Nos. DPR-26 and DPR-64 for IP1, IP2, and IP3, respectively, as well as the general license for the IPEC ISFSI. See Petition of Riverkeeper, Inc. to Intervene and for a Hearing (Feb. 12, 2020). The new evidence consists of documentation showing that there is an ongoing criminal investigation into Holtec, a new admission by Holtec that it is suffering significant financial harm and documented unlawful behavior by Holtec in Lacey Township. These documents provide further evidence of Holtecs inability to satisfy the requirements of 10 C.F.R. § 50.80 for a demonstration of character, competence, and integrity. They also show that Holtec is and will be financially strapped, to the point that its ability to meet any decommissioning funding demand beyond the Decommissioning Trust Fund is in serious doubt. Indeed, Holtec will be strongly incentivized to extract as much from the Fund as possible for itself without adequate regard for future funding needs.
Riverkeeper respectfully submits that Riverkeeper satisfies the NRCs standard for amendment of contentions in 10 C.F.R. § 2.309(c), because it merely adds to the basis of the existing contention, the information was not previously available and is materially different from previously available information, and is being submitted in a timely fashion.
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II. FACTUAL BACKGROUND On February 12, 2020, Riverkeeper submitted a petition to intervene and for a hearing to the Commission. Riverkeepers contention remains that the license transfer application fails to satisfy 10 C.F.R. § 50.80(c) because it fails to demonstrate that the licensee transferees - HDI, Holtec IP2, and Holtec IP3 - have the requisite character, competence, and integrity, as well as the necessary candor, truthfulness and willingness to abide by NRC regulatory requirements. In its initial petition, Riverkeeper outlined other evidence bearing on 10 C.F.R. § 50.80(c),
including, that 1) Holtec failed to disclose a safety significant design change to the NRC and failed to disclose a safety issue at the San Onofre Nuclear Generating Station, 2) Holtec bribed a Tennessee Valley Authority official, 3) Holtec overcharged TVA for Spent Fuel Management, 4)
Holtec misled government officials in New Jersey to attain a $260M tax credit. See Petition of Riverkeeper, Inc. to Intervene and for a Hearing (Feb. 12, 2020). At the time of its petition, public information was limited concerning these events and Riverkeeper relied primarily on certain media publications from The Orange County Register, KPBS, POLITICO, and ProPublica. Since February, there has been active litigation concerning some of the events (namely 2 and 4, as described above) outlined in the initial petition. In this motion, Riverkeeper is now able to rely on court filings that post-date its original petition. Through new court filings Riverkeeper has learned that Holtec is currently under criminal investigation in New Jersey, is financially unsound, and has deliberately violated local laws during the decommissioning of Oyster Creek.
Riverkeeper believes the current criminal investigation into Holtec is for perjury, i.e.
lying on a form to obtain tax credits from New Jersey, and fraud. Riverkeeper has also learned that Holtec is unable to pay back some of its debts due to cancellation of the tax credit due to the 2
fraud. In addition, a lawsuit filed by Lacey Township makes it plain that Holtec willfully violated local laws and did not stop certain work at Oyster Creek until the municipality obtained an injunction from a court. The evidence described below includes briefs filed by Holtec, New Jersey Economic Development Authority (NJEDA), an injunction from the Superior Court of New Jersey, Chancery Division Ocean County, and recently reported statements by Holtecs CEO. These new documents contain new facts that are material to the resolution of the matter currently before NRC.
A. Holtec Is Under Criminal Investigation in New Jersey As described in Riverkeepers Contention, Holtec made false statements in seeking tax benefits from the State of New Jersey in 2014 as part of the states Grow New Jersey program.1 Unknown to NJEDA at the time, Holtec misled the agency concerning a required disclosure as to whether the company had been subject to [d]ebarment by any department, agency, or instrumentality of the State or Federal government.2 In 2017, Holtecs application was approved by NJEDA.3 In 2019, after becoming aware of Holtecs prior debarment with the Tennessee Valley Authority (TVA), NJEDA determined that the tax credits must be suspended pending a review for eligibility, after which Holtec sued NJEDA.4 Specifically, in March of 2020 (after submission of Riverkeepers Contention), Holtec filed a complaint against NJEDA, for breach of contract under the incentive agreement. The $260 million credit was to be paid annually over the course of ten years.5 In the course of this litigation, NJEDA moved to dismiss 1
N.J. Stat. Ann. § 34:1B-242 et. seq. (the Grow Act or Grow NJ).
2 Ex. A. (Defs Mot. to Dismiss. at 6, Holtec Int. v. New Jersey Economic Development Authority, N.J. Super. Ct. Law Div. (2020) (No. MER-L-696-20)).
3 Ex. A. at 8.
4 See generally Holtec Int. v. New Jersey Economic Development Authority, N.J. Super. Ct. Law Div. (2020) (No. MER-L-696-20).
5 Ex. A. at 2.
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Holtecs suit, and in so doing revealed that Holtec is currently the subject of an ongoing criminal investigation.6 This investigation was seemingly confirmed by recent statements by Holtecs CEO Dr. Krishna Singh.7 New Jerseys criminal investigation into Holtec concerns the false statements that the company made to NJEDA as discussed above.8 In a recently reported statement, Dr. Singh disputed the allegations of an ongoing criminal investigation into Holtecs false statements while concurrently indicating that the company is cooperating with the New Jersey Attorney Generals office.9 Moreover, the two court filings by the State of New Jersey and Holtec show that Holtec is in financial distress because a significant source of its present and future funding are now in jeopardy. First, in response to Holtecs false representation to NJEDA about the prior bribery and debarment (see Riverkeepers Contention at 16), NJEDA has halted the release of Holtecs tax credit for 2018. NJEDA is currently reviewing Holtecs eligibility to receive the 2018 installment and future installments in light of Holtecs false statements.10 Second, the civil complaint filed by Holtec against NJEDA states that Holtec relied on the expected $260 million tax credit when it entered into contracts to transfer the tax credit to other entities. In return, purchasers of the transferred credit lent Holtec money with similar value to the 6
Id.
7 Ex. B. (Friedman et al., Holtec under criminal investigation, EDA says in since-redacted court filing, Politico (Oct. 14, 2020) available at https://www.politico.com/states/new-jersey/story/2020/06/24/holtec-under-criminal-investigation-eda-says-in-since-redacted-court-filing-1294345 )
8 N.J. Stat. Ann. § 34:1B-242 et seq (the Grow Act or Grow NJ) 9 Friedman Supra note 6 10 Ex. A. (Defs Mot. to Dismiss. at 2 Supra note 2.) (In the June 2020 filing, NJEDA states that its review into Holtecs continued eligibility is still ongoing. Riverkeeper is unaware of any final agency decision by NJEDA on Holtecs 2018 tax credit or continued eligibility.)
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$260 million credit.11 Currently, while its eligibility for the tax credit is under review by NJEDA, Holtec is unable to pay back the purchasers.12 If the tax credit is not restored, Holtecs future financial position may be significantly damaged. Holtec itself states that it will be significantly harmed on an annual basis if NJEDA reverses its tax credit approval.13 NJEDA states in its motion to dismiss the case, that the TVA debarment itself, and, more significantly, the misrepresentation about the debarment, may constitute an event of default under Section 14 of the Incentive Agreement that would entitle NJEDA, in its sole discretion, to withhold the 2018 tax credit, and any future tax credits, and seek rescission of credits previously issued.14 The ongoing criminal investigation into Holtecs blatant misrepresentation to NJEDA and Holtecs previously undisclosed financial stress are only further indication of Holtecs lack of trustworthiness, reliability and ability to carry out the decommissioning in a safe manner. This evidence is further confirmation that Riverkeepers contention should be admitted and the license transfer application denied.
B. Holtec Violated the Law in Lacey Township Based on court filings that post-date the February 12th contention, Riverkeeper is now aware that Holtec was found to have intentionally violated the law in Lacey Township and continues to demonstrate an unwillingness to abide by local laws. In Fall of 2019, Holtec submitted a proposal and application for site plan approval to the Lacey Township Planning Board.15 The proposal was to build a large concrete pad to transfer spent fuel and storage 11 Ex. C. (Pls. Compl. at 17-18, Holtec Int. v. New Jersey Economic Development Authority, N.J. Super. Ct. Law Div. (No. MER-L-696-20))
12 Id.
13 Ex. C. at 18.
14 Ex. A. (Defs Mot. to Dismiss. at 3 Supra note 2) 15 Ex. D. (Pls Compl. at 4, Township of Lacey v. Holtec International, N.J. Super. Ct. Ch. Div.
Ocean County (2020) (No. OCN-C-76-20)).
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operations to another part of the Oyster Creek Facility's decommissioning operation.16 In early 2020, Holtec withdrew its application to the Lacey Township Planning Board; however, the company went forward anyway with construction work at the site. Only now Holtec was not constructing the pad expansion, but instead a cask transfer pit (CTP).17 On or around March 27, 2020, Lacey Township became aware of Holtecs unlawful work and issued a Stop Work Order because Holtec proceeded to construct the CTP without the necessary planning board approval according to sections 285-1 or 297-17 of the Lacey Township Development Code.18 Holtec ignored Lacey Townships lawful order and proceeded to construct the CTP for the purpose of storing more fuel rods. Holtec continued the work until Lacey Township, in order to protect its residents, sought and obtained injunctive relief restraining Holtec from continuing its illegal work until it obtained the necessary development permits. On June 2, 2020, the Superior Court of New Jersey, Chancery Division Ocean County, issued an order enjoining Holtec from "continuing all work at the facility until permits and approvals are granted."19 In June 2020, Holtec was found to have violated the law in Lacey Township by failing to obtain planning permission to construct the new CTP at the former Oyster Creek Nuclear Generated Facility.20 Only after it began the work in blatant disregard of a Stop Work Order and received an injunction from the courts, did Holtec file an application to the Lacey Township Planning Board 16 Ex. E. (Def. Opp. To Plaintiffs Comp. at 3.. Holtec International et al. v. Township of Lacey, et al., United States District Court for the District of New Jersey Vicinage (2020) (No. 3:20-cv-12773)).
17 Ex. at 3.
18 Ex. at 6.
19 Ex. F. (Ord. Imposing Temporary Restraints, Township of Lacey v. Holtec International, N.J.
Super. Ct. Ch. Div. Ocean County (2020) (No. OCN-C-76-20 (the order stated that the only work that could continue on the site was "work which has been permitted by the Nuclear Regulatory Commission)).
20 Id.
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for the proposed CTP.21 Based on outstanding concerns regarding spent fuel storage, the Lacey Township Planning Board denied Holtecs application as submitted.22 On September 16, 2020, rather than work to resolve the dispute with Lacey Township, Holtec filed a lawsuit in federal court against Lacey Township seeking to enjoin the township from any action . . . to stop or interfere with the companys efforts to build out its dry cask storage operation.23 Pursuant to a September 17, 2020 order to show cause for the preliminary injunction and temporary restraining order, this matter is currently being briefed by the parties.24 In summary, Holtec proceeded illegally and in complete disregard of a notice from a municipality that it was in violation of the law. The fact that Holtec would intentionally break the law despite knowing that the trustworthiness and reliability of the company was at issue in this proceeding further confirms that it cannot be trusted to abide by NRC regulatory requirements.
Furthermore, the latest suit against Lacey Township demonstrates Holtecs pattern of disregard for local law and that Holtec is unfit to hold an operating license for the Indian Point Nuclear Generating Facility.
III. RIVERKEEPER SATISFIES NRCS STANDARD FOR AMENDING CONTENTIONS Under § 2.309(f)(2), participants may file new or amended environmental contentions after the deadline in paragraph (b) of this section . . . if the contention complies with the requirements in paragraph (c) of this section. Therefore, § 2.309(f)(2) operates to allow for 21 Ex. G. (Pls Comp. at 4. Holtec International et al. v. Township of Lacey, et al., United States District Court for the District of New Jersey Vicinage (2020) (No. 3:20-cv-12773)).
22 Ex. G. at 5.
23 Ex. G. at 18.
24 Ex. H. (Order to show cause. Holtec International et al. v. Township of Lacey, et al., United States District Court for the District of New Jersey Vicinage (2020) (No. 3:20-cv-12773)).
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amended contentions in proceedings for the direct or indirect transfer of control of an NRC license, beyond the deadline, if a partys amendment satisfies § 2.309(c).
The Commissions regulations allow for a new contention to be filed upon a showing that:
(i) The information upon which the amended or new contention is based was not previously available; (ii) The information upon which the amended or new contention is based is materially different than information previously available; and (iii) The amended or new contention has been submitted in a timely fashion based on the availability of the subsequent information.
10 C.F.R. § 2.309(c)(i)-(iii).
Riverkeeper satisfies 10 C.F.R. § 2.309(c)(i)-(iii). These elements are satisfied because the material upon which Riverkeepers amended contention is based on was not previously available, is materially different than the information used in Riverkeepers initial petition, and is submitted in a timely fashion.
A. The Information Relied on by Riverkeeper Was Not Previously Available The information outlined in section III of this motion was not available to Riverkeeper until late June of 2020 when: 1) NJEDA filed its motion to dismiss in the ongoing civil suit against Holtec and disclosed the ongoing criminal investigation, and 2) the Superior Court of New Jersey granted Lacey Township injunctive relief finding that Holtec had violated the law.
The evidence of an ongoing criminal investigation into Holtecs misrepresentation with NJEDA and a Court order finding that Holtec violated the law, is based on court filings that post-date any information available to Riverkeeper prior to its February 12, 2020 petition to intervene and request for a hearing.
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B. The Information Relied on by Riverkeeper is Materially Different The evidence proffered in this motion also represent materially different information than what is currently before the Commission in this proceeding insofar as it shows both an active criminal investigation and a blatant disregard for a legal notice, which is directly relevant to whether Holtec can be trusted to abide by NRC regulatory requirements.
C. The Information Relied on by Riverkeeper is Timely Submitted NRC regulation 10 C.F.R. § 2.309(c)(iii) requires petitioners to demonstrated that amended or new contention has been submitted in a timely fashion based on the availability of the subsequent information. The term timely is not defined in the regulation, other than to say it must be based on the availability of the information. Riverkeeper respectfully submits that the information cited in its contention is timely submitted, because it presents a set of developments, related to Holtecs business conduct in the State of New Jersey, that were not publicly known at the time that Riverkeeper filed its hearing request, and that are currently pending and unresolved. Holtec disclosed in June of 2020 that it was under criminal investigation. No report has been made regarding the investigation, and thus it is presumably ongoing. Holtec also revealed in June that its eligibility for a significant state tax credit is in jeopardy. Litigation regarding Holtecs suspended tax credit is ongoing, and thus Riverkeeper has timely raised the issue. Finally, litigation between Holtec and Lacey Township, New Jersey, is also pending and remains unresolved.
Riverkeeper also respectfully submits that the timeliness of its submission should be judged in relation to the overall scheduling framework of this proceeding. Riverkeeper submitted its hearing request on February 12, 2020; and the last pleading was submitted on March 23, 2020. Under NRC regulations, a decision on admissibility of contentions should have been 9
rendered by the Commission within 45 days of the last pleading, or by mid-May. 10 C.F.R. § 2.309(j). The fact that the Commission has not ruled on Riverkeepers hearing request, or even granted itself an extension to do so as contemplated by 10 C.F.R. (j), suggests that the Commission considers this to be a complex proceeding requiring more extensive deliberation than the usual type of license transfer application.
As the Commission has previously stated, it expected that most license transfer applications could be expedited and decided within six to eight months of the notice of receipt of an application. Proposed Rule, Streamlined Hearing Process for NRC Approval of License Transfers, 63 Fed. Reg. 48,644, 46,646 (Sept. 11, 1998). But the Commission also recognized that some license transfer proceedings may raise complex issues, and therefore require additional procedures. Id. at 46,645. Here, Riverkeeper has raised extremely serious concerns regarding allegations of criminal conduct against Holtec. Criminal conduct bears on Holtecs qualifications to take responsibility for decommissioning of the Indian Point site. Thus, by bringing the new information to the Commissions attention during its pendency before state agencies and federal courts, Riverkeeper has timely acted.
Riverkeepers supplement to its contention is being submitted in a timely fashion based on the availability of the subsequent information. The new evidence establishing an ongoing criminal investigation into Holtec, Holtecs significant financial harms, and its intentional violation of the law in Lacey Township was not made available to Riverkeeper or the public until late June of 2020. NRC regulations do not set a specific number of days whereby one can measure or determine whether a contention or new evidence is timely. However, when considering the significant effort involved in (a) identifying new information, (b) assembling the required documents, and then (c) drafting a motion that satisfies the requirements set forth in 10 10
C.F.R. § 2.309, NRC should apply an appropriate standard that allows the Commission to have full information before it when taking difficult and highly consequential decisions. This is especially true here considering the serious safety and public health concerns raised by the evidence outlined above.25 Here, the applicants ability to follow federal law and NRC safety regulations is doubtful based its demonstrated record of bribery, misrepresentations, and failure to operate in accordance with local laws and regulations.
IV. CONCLUSION For the foregoing reasons, the Commission should admit the foregoing evidence in considering Riverkeepers Contention and the license transfer.
Respectfully submitted,
___/signed electronically by/__
Todd D. Ommen Pace Environmental Litigation Clinic, Inc.
Elisabeth Haub School of Law 78 N. Broadway White Plains, NY 10603 tommen@law.pace.edu 25 Criteria for Reopening Records in Formal Licensing Proceedings, 51 Fed. Reg. 19, 535, 19, 536 (May 30, 1986) (Final Rule) 11
CERTIFICATE OF COUNSEL PURSUANT TO 10 C.F.R. § 2.323(b)
I certify that on October 19, 2020, I contacted counsel for all parties to this proceeding and the NRC in a sincere effort to resolve the issues raised in this motion. Counsel for applicant stated that it does not consent and will decide whether to oppose the motion upon viewing the contents.
Counsel for the State of New York stated that it would decide how to respond upon seeing the motion.
___/signed electronically by/__
Todd D. Ommen Pace Environmental Litigation Clinic, Inc.
Elisabeth Haub School of Law 78 N. Broadway White Plains, NY 10603 tommen@law.pace.edu 12
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
)
In the Matter of )
)
ENTERGY NUCLEAR OPERATIONS, )
INC.; ENTERGY NUCLEAR INDIAN )
POINT 2, LLC; ENTERGY NUCLEAR ) Docket Nos.
INDIAN POINT 3, LLC; HOLTEC ) 50-3 INTERNATIONAL; and HOLTEC ) 50-247 DECOMMISSIONING ) 50-348 INTERNATIONAL, LLC; APPLICATION )72-051 FOR ORDER CONSENTING TO )
TRANSFERS OF CONTROL OF )
LICENSES AND APPROVING )
CONFORMING LICENSE )
AMENDMENTS )
___________________________________ )
CERTIFICATE OF SERVICE I certify that on October 20, 2020, I posted copies of the foregoing RIVERKEEPERS MOTION TO SUPPLEMENT THE BASIS OF ITS CONTETION WITH NEW EVIDENCE NOT PREVIOUSLY AVAILABLE on the NRCs Electronic Information Exchange System.
___/signed electronically by/__
Todd D. Ommen Pace Environmental Litigation Clinic, Inc.
Elisabeth Haub School of Law 78 N. Broadway White Plains, NY 10603 tommen@law.pace.edu 13
Exhibit A MER-L-000696-20 06/22/2020 6:07:17 PM Pg 1 of 35 Trans ID: LCV20201098291 Ricardo Solano Jr., ID # 041121999 Eric Corngold (pro hac vice admission pending)
Nora Bojar (pro hac vice admission pending)
Blair R. Albom (pro hac vice admission pending)
FRIEDMAN KAPLAN SEILER &
ADELMAN LLP One Gateway Center Newark, NJ 07102-5311 (973) 877-6400 Attorneys for Defendant New Jersey Economic Development Authority HOLTEC INTERNATIONAL, SUPERIOR COURT OF NEW
- JERSEY Plaintiff, LAW DIVISION
- MERCER COUNTY
- against -
- DOCKET NO.: MER-L-696-20 NEW JERSEY ECONOMIC DEVELOPMENT AUTHORITY, : Civil Action Defendant. :
MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS MOTION TO DISMISS THE COMPLAINT On the Brief:
Ricardo Solano, Jr., ID # 041121999 Eric Corngold (pro hac vice admission pending)
Nora Bojar (pro hac vice admission pending)
Blair R. Albom (pro hac vice admission pending) 3524956.1
MER-L-000696-20 06/22/2020 6:07:17 PM Pg 2 of 35 Trans ID: LCV20201098291 TABLE OF CONTENTS Page PRELIMINARY STATEMENT...........................................1
SUMMARY
OF ALLEGED FACTS........................................5 ARGUMENT.......................................................13 I. THE CLAIM FOR BREACH OF CONTRACT (COUNT ONE) FAILS AS A MATTER OF LAW.............................................15 A. NJEDA Has Not Failed to Fulfill Its Obligation Under the Incentive Agreement........................16 B. The TVA Debarment, and Holtecs Misrepresentations about the Debarment, Could Disqualify Holtec From Receiving Its 2018, And Future, Tax Credits..................................18 II. THE CLAIM FOR BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING (COUNT TWO) IS PRECLUDED BY STATUTE AND FAILS AS A MATTER OF LAW......................20 III. THE CLAIM FOR PROMISSORY ESTOPPEL (COUNT THREE) IS ALSO PRECLUDED BY STATUTE AND FAILS AS A MATTER OF LAW....23 A. The Claim for Promissory Estoppel Is Barred by the New Jersey Contractual Liability Act as It Is Predicated Upon an Alleged Contract Implied in Law..................................................24 B. The Claim for Promissory Estoppel is Barred by the Integration Clause of Holtecs Incentive Agreement............................................26 C. The Complaint Failed to Plead a Clear and Definite Promise, so the Claim for Promissory Estoppel Fails.......................................28 CONCLUSION.....................................................30 i
3524956.1
MER-L-000696-20 06/22/2020 6:07:17 PM Pg 3 of 35 Trans ID: LCV20201098291 TABLE OF AUTHORITIES Page(s)
Cases A.D. v. Franco, 297 N.J. Super. 1 (App. Div. 1993) ..........................14 Delbridge v. Office of Pub. Defender, 238 N.J. Super. 288 (Law Div. 1989) .........................14 Donato v. Moldow, 374 N.J. Super. 475 (App. Div. 2005) ........................14 Durant v. United States, 16 Cl. Ct. 447 (1988) .......................................25 Edwards v. Prudential Prop. & Cas. Co.,
357 N.J. Super. 196 (App. Div. 2003) ........................14 Ellis v. United States, No. 19-1489C, 2020 WL 831855 (Fed. Cl. Feb. 19, 2020) .....................24 EnviroFinance Grp., LLC v. Envtl. Barrier Co., LLC, 440 N.J. Super. 325 (App. Div. 2015) ........................15 Hosp. Ctr. at Orange v. Guhl, 331 N.J. Super. 322 (App. Div. 2000) ........................17 Jablon v. United States, 657 F.2d 1064 (9th Cir. 1981) ............................24-25 JPMorgan Chase Bank, N.A. v. Gaspar, No. A-4652-12T4, 2014 WL 6991728, (N.J. Super. Ct. App. Div. Dec. 12, 2014) ..................22 Magnet Res., Inc. v. Summit MRI, Inc.,
318 N.J. Super. 275 (App. Div. 1998) ........................19 Malaker Corp. Stockholders Protective Comm. v. First Jersey Natl Bank, 163 N.J. Super. 463 (App.Div.1978) ..........................26 Martens v. Minnesota Min. & Mfg. Co.,
616 N.W.2d 732 (Minn. 2000) .................................25 ii 3524956.1
MER-L-000696-20 06/22/2020 6:07:17 PM Pg 4 of 35 Trans ID: LCV20201098291 Miller & Sons Bakery Co. v. Selikowitz, 8 N.J. Super. 118 (App. Div. 1950) ..........................17 MLCFC 2007-9 ACR Master SPE, LLC v. Echo Farms, RV Resort LLC, No. A-1692-13T1, 2014 WL 5506807 N.J. Super. Ct. App. Div. Nov. 3, 2014) .....................27 Murphy v. Implicito, 392 N.J. Super. 245 (App. Div. 2007) ........................15 Namerow v. PediatriCare Assocs., LLC, 461 N.J. Super. 133 (Ch. Div. 2018) .....................16, 27 New Jersey Citizen Action, Inc. v County of Bergen, 391 N.J. Super. 596 (App. Div. 2007) ........................14 Sickles v. Cabot Corp.,
379 N.J. Super. 100 (App. Div. 2005) ........................13 SilverWing at Sandpoint, LLC v. Bonner Cty.,
164 Idaho 786 (2019) ........................................25 Smith v. SBC Commcns Inc.,
178 N.J. 265 (2004) .........................................13 Stankovits v. Schrager, No. A-0128-06T2, 2007 WL 4410247 (N.J. Super. Ct. App. Div. Dec. 19, 2007) ..................22 Teamsters Local 97 v. State, 434 N.J. Super. 393 (App. Div. 2014) ........................14 Tiberi v. Cigna Corp.,
89 F.3d 1423 (10th Cir. 1996) ...............................25 Tp. of Saddle Brook v. United States, 104 Fed. Cl. 101 (2012) .....................................24 Wilson v. Amerada Hess Corp.,
168 N.J. 236 (2001) .................................21, 22, 23 XP Vehicles, Inc. v. United States, 121 Fed. Cl. 770 (2015) .....................................24 XTL-NH, Inc. v. New Hampshire State Liquor Commn, 170 N.H. 653 (N.H. 2018) ....................................25 iii 3524956.1
MER-L-000696-20 06/22/2020 6:07:17 PM Pg 5 of 35 Trans ID: LCV20201098291 Statutes Grow New Jersey Assistance Act, N.J. Stat. Ann. § 34:1B-242 et seq .............................................1 N.J. Stat. Ann. § 34:1B-244.....................................7 N.J. Stat. Ann. § 34:1B-245.....................................8 N.J. Stat. Ann. § 34:1B-247(c).................................18 N.J. Stat. Ann. § 59:13-3..................................21, 24 New Jersey Contractual Liability Act, N.J. Stat. Ann.
59:13-1 et seq ..........................................passim Other Authorities N.J. Admin. Code § 19:30-2.2(a)................................18 N.J. Admin. Code § 19:31-4.4(b).................................7 N.J. Admin. Code § 19:31-18.10(c)..............................10 N.J. Admin. Code § 19:31-18.11(d)..............................16 N.J. Admin. Code § EX. ORD. No. 52 (2019)......................10 N.J. Ct. R. 4:6-2(e)........................................1, 13 iv 3524956.1
MER-L-000696-20 06/22/2020 6:07:17 PM Pg 6 of 35 Trans ID: LCV20201098291 Defendant New Jersey Economic Development Authority (NJEDA) respectfully submits this memorandum of law in support of its motion to dismiss the Complaint filed by Plaintiff Holtec International (Holtec or Plaintiff). For the reasons that follow, Holtec has failed to plead valid claims with respect to each of the counts alleged in its Complaint. Accordingly, the Complaint should be dismissed in its entirety pursuant to N.J.
Ct. R. 4:6-2(e).
PRELIMINARY STATEMENT Through its Complaint, Holtec seeks to compel NJEDA to approve a tax credit for the 2018 tax year pursuant to an incentive agreement awarded to it under the Grow New Jersey Assistance Act, N.J. Stat. Ann. § 34:1B-242 et seq (the Grow Act or Grow NJ). NJEDA, however, has not denied Holtec the tax credit at issue.
Rather, as Holtec concedes in its Complaint, the approval of Holtecs 2018 tax credit is pending while NJEDA evaluates Holtecs continued eligibility for a Grow NJ award, because of the companys recent admission that it made false statements to NJEDA when the company applied for the award.
Holtecs misrepresentations - which include its failure to disclose a prior government debarment by the Tennessee Valley Authority (the TVA) for bribing an official of that agency -
3524956.1
MER-L-000696-20 06/22/2020 6:07:17 PM Pg 7 of 35 Trans ID: LCV20201098291 first came to light during an investigation conducted by the Governors Task Force on the Economic Development Authoritys Tax Incentive Program, and they are now the subject of an ongoing criminal investigation.
Holtec alleges that NJEDA does not have the authority to conduct a review of the facts and circumstances surrounding the companys misrepresentations, and that by withholding the 2018 tax credit pending such review, NJEDA is in breach of its obligations under the incentive agreement between the parties, dated February 2, 2017 (together with amendments thereto, the Incentive Agreement). Yet under the clear and unambiguous terms of the parties contract and the Grow program regulations, NJEDA has not only the authority to perform this review, but the obligation to do so.
In Count One, Holtec alleges a breach of Section 11 of the Incentive Agreement, which requires NJEDA to authorize the issuance of a tax credit for the relevant tax year upon satisfactory review of information submitted annually by Holtec attesting to the companys compliance with the Incentive Agreement and Grow program regulations. On the facts as pled, there has been no breach of this provision. NJEDAs review is still ongoing, and NJEDA is not required to authorize the issuance of a credit absent a determination by NJEDA that Holtec 2
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Holtec contends that NJEDAs continued review is without basis in law or fact (Compl. ¶ 114) because the companys report was satisfactory (Compl. ¶ 111). But this is belied by the facts as pled. Holtec admits that it represented in its application that it had not been debarred by any department, agency, or instrumentality of the State or Federal government (Compl. ¶¶ 67-68). And Holtec admits that this representation was false (Compl. ¶ 64). These admissions are fatal to Holtecs Complaint. The TVA debarment itself, and, more significantly, the misrepresentation about the debarment, may constitute an event of default under Section 14 of the Incentive Agreement that would entitle NJEDA, in its sole discretion, to withhold the 2018 tax credit, and any future tax credits, and seek rescission of credits previously issued.
Specifically, the Incentive Agreement - the contract that is the subject of Holtecs Complaint - expressly states that if [a]ny representation or warranty made by the Company
[i.e., Holtec] in its Application is false, misleading, or inaccurate in any material respect, then it shall constitute an Event of Default, authorizing NJEDA, in its sole discretion, to, among other things, require the surrender by the Company to 3
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[NJEDA] of the Tax Credit Certificate for suspension or cancellation. Incentive Agreement § 14(b); § (15)(a)(1).
Furthermore, as an express condition of the tax credits it received under the Incentive Agreement, Holtec covenant[ed]
that the representations, statements and warranties of the Company set forth in the Company Application . . . (1) are true, correct and complete in all materials respects, [and] (2) do not contain any untrue statement of a material fact. Incentive Agreement § 5(b).
Holtec asks this Court to disregard these clear and unambiguous provisions of the Incentive Agreement. Instead, Holtec seeks to halt NJEDAs review and force NJEDA to approve the issuance of a tax credit to the company before NJEDA can determine whether the TVA debarment and Holtecs misrepresentation about the debarment constitute an Event of Default that warrants rescission of tax credits awarded to date, and without knowing the outcome of the ongoing criminal investigation examining the same conduct. This attempt to circumvent the clear terms of the contract between the parties should not be permitted.
Count Two of the Complaint alleges a breach of the implied covenant of good faith and fair dealing based on the same conduct. That count must be dismissed because it is 4
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which bars the assertion of any claim based upon an implied warranty, such as Holtecs claim based on an implied covenant of good faith and fair dealing. Count Two should also be dismissed because Holtec has failed to allege facts sufficient to state a claim for breach of the implied warranty.
Count Three, which alleges a claim for promissory estoppel must be dismissed because it, too, is precluded by the NJCLA, which bars assertions based on contracts implied in law, such as promissory estoppel. It also should be dismissed because it is precluded by the clear and unambiguous terms of the parties contract and because Holtec has otherwise failed to allege facts sufficient to state a claim.
SUMMARY
OF ALLEGED FACTS
- 1. The Grow NJ Tax Incentive Program NJEDA serves as the States principal agency for driving economic growth. . . . Through partnerships with a diverse range of stakeholders, the NJEDA creates and implements initiatives to enhance the economic vitality and quality of life in the State and strengthen New Jerseys long-term economic 5
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MER-L-000696-20 06/22/2020 6:07:17 PM Pg 11 of 35 Trans ID: LCV20201098291 competitiveness. 1 As part of its mandate, NJEDA administers, inter alia, the Grow NJ tax incentive program. Grow NJ promotes economic development in New Jersey by awarding tax credits to qualifying businesses that create or retain jobs in the State.
As such, it is a powerful job creation and retention incentive program that strengthens New Jersey's competitive edge against tax incentive programs in surrounding states. 2
- 2. Holtecs Application for a Grow NJ Award On January 20, 2014, Holtec submitted an application for a Grow NJ tax incentive award. (Compl. ¶ 41.) As part of the application, Holtec was required to fill out a Legal Questionnaire, which included a question asking whether Holtec had been subject to [d]ebarment by any department, agency, or instrumentality of the State or Federal government. (Compl.
¶ 67.) Holtec responded NO to this question. (Compl. ¶ 68.)
To ensure the integrity of the Grow NJ program, applicants are required to submit certifications from no less than their chief executive or equivalent officer indicating that 1 https://www.njeda.com/about/mission [last accessed on June 2, 2020]
2 https://www.njeda.com/financing_incentives/programs/grow_nj
[last accessed on June 2, 2020]
6 3524956.1
MER-L-000696-20 06/22/2020 6:07:17 PM Pg 12 of 35 Trans ID: LCV20201098291 he or she had reviewed the information submitted to [NJEDA] and that the representations contained therein are accurate. N.J.
Stat. Ann. § 34:1B-244; N.J. Admin. Code § 19:31-4.4(b)(13).
Holtecs application was accompanied by such a certification, signed under penalty of perjury by Holtecs then-President and CEO Dr. Kris Singh, stating that the contents of the application were true and accurate:
I, the undersigned, certify under penalty of law that the representations contained herein are accurate; that I am familiar with the information submitted in this document, including all attachments, and have personally exercised an appropriate degree of due diligence to reasonably ensure that the information contained in this document, and all attachments are true, accurate, and complete.
Solano Cert. 3 at Ex. 2 (emphasis added).
Dr. Singh further certified that he understood that the submission of false or materially inaccurate information could result in the denial of the companys application, or the revocation or termination of tax credits if Holtecs application ultimately was granted:
I am aware that there are significant penalties for submitting false information, including the possibility of fine and 3 References to Solano Cert. are to the Certification of Ricardo Solano Jr. In Support of Defendants Motion to Dismiss the Complaint, dated June 22, 2019, submitted herewith.
7 3524956.1
MER-L-000696-20 06/22/2020 6:07:17 PM Pg 13 of 35 Trans ID: LCV20201098291 imprisonment. I understand that, in addition to criminal penalties, I may be liable for civil administrative penalties and that submitting false information or submitting materially inaccurate information may be grounds for denial, revocation or termination of any award of tax credits for which I may be seeking approval or now hold.
Solano Cert. at Ex. 2 (emphasis added).
On July 10, 2014, NJEDA approved Holtec's application (Compl. ¶ 46), relying, among other things, upon the accuracy and truthfulness of the information provided by Holtec.
- 3. The Incentive Agreement Following approval of an application, the Grow Act states that NJEDA shall require an eligible business to enter into an incentive agreement prior to the issuance of tax credits. N.J. Stat. Ann. § 34:1B-245. On February 2, 2017, NJEDA and Holtec thus entered into the Incentive Agreement, which governs the terms and conditions of the award. (Compl. ¶ 49.) The importance of the accuracy and truthfulness of the statements made in Holtecs application is reflected in several of the Incentive Agreements provisions.
In Section 5, Holtec expressly covenanted that the representations, statements and warranties of the Company set forth in the Company Application . . . (1) are true, correct and complete in all material respects, (2) do not contain any untrue statement of a material fact, and (3) do not omit to state a 8
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therein not misleading or incomplete. (Incentive Agreement
§ 5(b).)
Section 11 of the Incentive Agreement requires Holtec annually to certify its ongoing compliance with Section 5 and all of the other provisions of the Incentive Agreement. The annual report must contain a certification acceptable to
[NJEDA] by [Holtec] indicating whether or not [Holtec] is aware of any condition, event or act which would cause [Holtec] not to be in compliance with the approval, the 2013 Act, this Agreement or the Regulations promulgated thereunder. (Incentive Agreement § 11.) Section 11 entitles Holtec to receive a letter of compliance - which the company presents to the States Tax Department in order to receive its tax credit - only upon satisfactory review by NJEDA of the compliance information submitted by Holtec. (Id.)
Section 14, which enumerates grounds for default of the Incentive Agreement, provides that an Event of Default occurs if [a]ny representation or warranty made by the Company in its Application, the approval letter or in [the Incentive]
Agreement is false, misleading, or inaccurate in any material respect. (Incentive Agreement § 14(b).) Pursuant to Section 15, the occurrence of an Event of Default entitles NJEDA in its sole discretion to suspend or cancel Holtecs tax credits (Id.
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§ 15(a)(1)), and to seek repayment of some or all previously issued credits. (Id. § 15(a)(2).) 4
- 4. Holtecs Misrepresentations Come to Light Holtec submitted annual compliance reports for fiscal years 2017 and 2018, the latter of which was submitted on or about January 15, 2019. (Compl. ¶¶ 55-56.) In neither of its submissions did Holtec seek to amend the debarment question on its application, despite the fact it has since conceded that its answer to the debarment question was not accurate. (Compl.
¶¶ 64, 69-70.)
On January 24, 2019, a few days after Holtecs January 2019 submission, Governor Murphy established a Task Force on the Economic Development Authority's Tax Incentive Programs, N.J.
Admin. Code § EX. ORD. No. 52 (2019) (the Task Force). While NJEDAs review of Holtecs 2018 annual certification was pending, the Task Force reviewed Holtecs application and award, and identified the fact that Holtec had been debarred by the TVA. Task Force First Published Report, dated June 17, 2019 4
Consistent with Grow program regulations, the Incentive Agreement also contains a limitation of liability clause, which provides that NJEDA is not liable in damages for the issuance or use of the Grant of Tax Credits. (Incentive Agreement § 8; see also N.J. Admin. Code § 19:31-18.10(c).)
10 3524956.1
MER-L-000696-20 06/22/2020 6:07:17 PM Pg 16 of 35 Trans ID: LCV20201098291 (the Report) 5 at 4. At a subsequent public hearing, the Task Forces counsel elaborated on what it had learned: basically Holtec, according to the US attorneys office and the OIG, paid
. . . $54,000 to a TVA employee for, for maintaining or continuing to have its contract. Solano Cert. Ex. 4 at 22. At the public hearing the Task Forces counsel also noted, this information suggests that Mr. Singh may have played a role in or at least at a minimum may have been aware of the underlying activity, according to his statements to the OIG. Id. at 30.
Ahead of the Reports public release, but after learning that the issue already had been discovered and was about to be reported in the media, 6 Holtec sent a letter to NJEDA, dated May 20, 2019, that attempted to amend its application and change the NO answer to the debarment question to YES. (Compl. ¶ 70.) In a one-paragraph letter from the 5 Available at https://www.politico.com/states/f/?id=0000016b-67c1-df00-a9fb-6fe1d7840001 (accessed June 4, 2020).
6 See A False Answer, a Big Political Connection and $260 Million in Tax Breaks, available at https://www.propublica.org/article/holtec-international-george-norcross-tax-breaks (accessed June 13, 2020) (Five days after WNYC and ProPublica contacted Holtec seeking comment about its incorrect answer on the application, an attorney representing the firm sent a letter asking the EDA to correct Singhs answer in the 2014 application. Kevin Sheehan, an attorney with the Parker McCay law firm, which represented Holtec in its application for tax breaks, wrote to the agency that the mistake was inadvertent.).
11 3524956.1
MER-L-000696-20 06/22/2020 6:07:17 PM Pg 17 of 35 Trans ID: LCV20201098291 companys lawyer - and not someone with firsthand knowledge of the underlying facts - Holtec claimed that its original answer was an inadvertent mistake; it did not, however, provide any explanation for that mistake or how it came to occur. (Id.)
This was the first time that Holtec informed NJEDA of the TVA debarment.
On or about June 26, 2019, NJEDA requested that Holtec submit a written explanation for its failure to disclose the TVA debarment. (Compl. ¶¶ 74-76.) 7 In response, Holtec in a letter dated August 8, 2019 simply referred NJEDA back to its May 20, 2019 letter. (Compl. ¶ 78.) As noted above, Holtecs May 20, 2019 letter did not explain why the company answered the debarment question in the way it did. Indeed, to date, Holtec has never explained why its CEO, despite having knowledge of, and perhaps involvement in, events leading to the TVA debarment, executed a certification that falsely stated that all of the information contained in Holtecs application - including the denial of any debarment - was truthful, accurate, and complete, and that he personally exercised an appropriate degree of due 7 NJEDA also requested information about Holtecs receipt of certain Ohio tax credits. During the course of its review of Holtecs annual certification, NJEDA also discovered that one of Holtec's affiliates had received tax credits under the Ohio Job Creation Tax Credit Program, but had lost those credits when the affiliate was unable to maintain the requisite jobs at that Ohio facility. (Compl. ¶ 76.)
12 3524956.1
MER-L-000696-20 06/22/2020 6:07:17 PM Pg 18 of 35 Trans ID: LCV20201098291 diligence to reasonably ensure himself of that fact. Solano Cert. at Ex 2.
Following this exchange of letters, the parties legal representatives discussed the issue, including the existence of the related criminal investigation into Holtecs conduct, but did not reach any agreement on how to proceed. (Compl. ¶¶ 84-88.) NJEDA expected Holtec to provide a substantive explanation addressing (1) why its CEO submitted a certification under penalty of perjury that contained a material misrepresentation, and (2) the events and circumstances leading to the TVA debarment as described at the Task Forces public hearing.
Instead, Holtec elected to commence this litigation. NJEDA cannot make a decision about the status of Holtecs 2018 annual tax credit, or, indeed, Holtecs continued eligibility under Grow NJ, until Holtec either provides NJEDA the requested information or confirms that it will not provide anything more.
ARGUMENT On a motion to dismiss a complaint under R. 4:6-2(e),
the court must dismiss the plaintiff's complaint if it has failed to articulate a legal basis entitling plaintiff to relief. Sickles v. Cabot Corp., 379 N.J. Super. 100, 106 (App.
Div. 2005). Although the Court must accept well-pleaded allegations as true and afford every reasonable inference to the plaintiff, Smith v. SBC Commcns Inc., 178 N.J. 265, 282 13 3524956.1
MER-L-000696-20 06/22/2020 6:07:17 PM Pg 19 of 35 Trans ID: LCV20201098291 (2004), it should not give deference to conclusory or vague allegations. Donato v. Moldow, 374 N.J. Super. 475, 501 (App.
Div. 2005); see also Delbridge v. Office of Pub. Defender, 238 N.J. Super. 288, 314 (Law Div. 1989) (Complaints cannot survive a motion to dismiss where the claims are conclusory or vague and unsupported by particular overt acts.), aff'd o.b. sub nom.,
A.D. v. Franco, 297 N.J. Super. 1 (App. Div. 1993).
A motion to dismiss should be granted if even a generous reading of the allegations [of the Complaint] does not reveal a legal basis for recovery. Edwards v. Prudential Prop.
& Cas. Co., 357 N.J. Super. 196, 202 (App. Div. 2003).
Moreover, [t]he motion may not be denied based on the possibility that discovery may establish the requisite claim; rather, the legal requisites for plaintiff[s] claim must be apparent from the complaint itself. Id.; accord Teamsters Local 97 v. State, 434 N.J. Super. 393, 413 (App. Div. 2014).
In considering a motion to dismiss, the Court may consider documents referred to in the Complaint without converting a motion to dismiss into a motion for summary judgment. New Jersey Citizen Action, Inc. v County of Bergen, 391 N.J. Super. 596, 605 (App. Div. 2007); see also Teamsters Local, 434 N.J. Super. at 412 (In evaluating motions to dismiss, courts consider allegations in the complaint, exhibits attached to the complaint, matters of public record, and 14 3524956.1
MER-L-000696-20 06/22/2020 6:07:17 PM Pg 20 of 35 Trans ID: LCV20201098291 documents that form the basis of a claim.) (internal quotation marks and citation omitted).
Here, as discussed in detail below, even a generous reading of Holtecs Complaint fails to allege facts sufficient to substantiate any of its claims. Moreover, Holtecs claims for breach of the implied covenant of good faith and fair dealing and for promissory estoppel are also barred by the New Jersey Contractual Liability Act.
I. THE CLAIM FOR BREACH OF CONTRACT (COUNT ONE) FAILS AS A MATTER OF LAW To establish a breach of contract claim, a plaintiff has the burden to show that the parties entered into a valid contract, that the defendant failed to perform his obligations under the contract and that the plaintiff sustained damages as a result. Murphy v. Implicito, 392 N.J. Super. 245, 265 (App.
Div. 2007). As a matter of law, there cannot be a breach of contract unless the defendant has failed to perform an obligation it has under the contract. See, e.g., EnviroFinance Grp., LLC v. Envtl. Barrier Co., LLC, 440 N.J. Super. 325, 345 (App. Div. 2015) (To prevail on a breach of contract claim, a party must prove . . . the opposing party's failure to perform a defined obligation under the contract).
Here, Holtec claims that NJEDA has breached the Incentive Agreement but fails to allege facts sufficient to 15 3524956.1
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A. NJEDA Has Not Failed to Fulfill Its Obligation Under the Incentive Agreement Section 11 of the Incentive Agreement obligates NJEDA to issue a letter of compliance authorizing the issuance of a tax credit only [u]pon satisfactory review of all information submitted in the Annual Compliance Report.
(Incentive Agreement § 11) (emphasis added). The relevant regulations similarly provide that [a]nnually, upon satisfactory review of all information submitted, [NJEDA] will issue a letter of compliance. N.J. Admin. Code § 19:31-18.11(d) (emphasis added). According to the plain language of Section 11 and the regulations, if NJEDA has not completed this review and deemed the information submitted by Holtec satisfactory, NJEDA is under no obligation to issue a letter of compliance.
On the facts as pled, NJEDA has not completed the review to its satisfaction (see Compl. ¶¶ 12, 13, 56, 74-84, 88), and thus has not - as a matter of fact or law - breached the Incentive Agreement by not yet issuing a Certificate of Compliance. See Namerow v. PediatriCare Assocs., LLC, 461 N.J.
Super. 133, 140 (Ch. Div. 2018) (Under New Jersey law, where the terms of a contract are clear and unambiguous, there is no 16 3524956.1
MER-L-000696-20 06/22/2020 6:07:17 PM Pg 22 of 35 Trans ID: LCV20201098291 room for interpretation or construction and the courts must enforce those terms as written.).
In responding to NJEDAs inquiry, Holtec failed satisfactorily to explain the misrepresentation in its application and subsequent annual certification. Instead, Holtec has merely asserted in a one-paragraph letter that its omission was an inadvertent mistake. (Compl. ¶ 70.) NJEDA has sought, and still awaits, a full and detailed explanation from Holtec for its misrepresentation in the application and every annual certification submitted since then. Until NJEDAs review is complete, and unless at that time NJEDA denies Holtec its 2018 tax credit, no claim for breach of the Incentive Agreement can be sustained. See, e.g., Miller & Sons Bakery Co.
- v. Selikowitz, 8 N.J. Super. 118, 122, (App. Div. 1950)
(Ordinarily no action for damages or for restitution can be maintained until the time for performance has come and there has been an actual failure to perform.). 8 8 Given Holtecs lack of response to NJEDAs inquiries and the seriousness of the possible consequences of Holtecs misrepresentations, the time NJEDA has taken to conduct its review is entirely reasonable. See, e.g., Hosp. Ctr. at Orange
- v. Guhl, 331 N.J. Super. 322, 336 (App. Div. 2000) (holding that in the absence of any federal mandate or state legislative directive that a state agency issue its decision within a specific time, courts should review whether the agency made its decision within a reasonable period of time). Moreover, Holtec has suffered no prejudice, as it can use the 2018 tax 17 3524956.1
MER-L-000696-20 06/22/2020 6:07:17 PM Pg 23 of 35 Trans ID: LCV20201098291 B. The TVA Debarment, and Holtecs Misrepresentations about the Debarment, Could Disqualify Holtec From Receiving Its 2018, And Future, Tax Credits Holtec contends that further review is not warranted, and that NJEDA cannot withhold the tax credit, because a brief debarment by an agency that has since signed a ~$300 million contract with the company does not qualify as a basis to reject the companys Grow award. (Compl. ¶ 72.) In essence, Holtec argues that NJEDA must perform under Section 11 of the Incentive Agreement because even if Holtec had answered the debarment question truthfully, it would not have affected the companys eligibility for an award.
Holtec is wrong that the TVA debarment could not have been a cause for disqualification under the Grow Act, particularly in light of the egregious circumstances leading to the debarment described by the Task Force. (See Solano Cert. Ex.
4 at 19-31.) NJEDAs regulations expressly contemplate as cause for disqualification debarment by a federal or state agency, N.J. Admin. Code § 19:30-2.2(a)(10), or [a]ny other cause of such serious and compelling nature as may be determined by the Authority to warrant disqualification. N.J. Admin. Code § 19:30-2.2(a)(9).
credit for up to three years past the closing of the tax period, should it ultimately receive the credit. See N.J. Stat. Ann. § 34:1B-247(c)(1).
18 3524956.1
MER-L-000696-20 06/22/2020 6:07:17 PM Pg 24 of 35 Trans ID: LCV20201098291 But Holtecs argument misses the point. The relevant question in assessing Holtecs qualification for a Grow NJ award is not simply whether Holtec would have been disqualified from the Grow program had it disclosed the TVA debarment in its application, but also whether any representation or warranty made by [Holtec] in its application, the approval letter, or in
[the Incentive Agreement] is false, misleading, or inaccurate in any material respect. (Incentive Agreement § 14(b).)
If NJEDA determines that Holtecs debarment or the facts surrounding the debarment would disqualify Holtec, or that Holtecs misrepresentations constitute an Event of Default under Section 14(b) of the Incentive Agreement, it may (though it is not required to) withhold the 2018 tax credit certification, and/or pursue other remedies available to it under the Incentive Agreement. (Incentive Agreement § 15(a).) An Event of Default undoubtedly would be a material breach that would excuse performance by NJEDA of the provisions of Section 11 of the Incentive Agreement. See Magnet Res., Inc. v. Summit MRI, Inc.,
318 N.J. Super. 275, 285, (App. Div. 1998) (It is black letter contract law that a material breach by either party to a bilateral contract excuses the other party from rendering any further contractual performance).
In any event, NJEDA has not completed its review under Section 11 of the Incentive Agreement, has not made a 19 3524956.1
MER-L-000696-20 06/22/2020 6:07:17 PM Pg 25 of 35 Trans ID: LCV20201098291 determination about Holtecs debarment, has not declared an Event of Default under Section 14 of the Incentive Agreement, and has not suspended or canceled Holtecs 2018 tax credit or otherwise sought any of the remedies available to it under Section 15 of the agreement. Indeed, as stated, supra, NJEDA cannot make a final determination about the status of Holtecs 2018 annual tax credit, or Holtecs continued eligibility under Grow NJ, until Holtec either provides NJEDA the information NJEDA has requested or, in the alternative, confirms that it will not provide anything more. If, after completing its review, NJEDA declares an Event of Default and withholds the 2018 tax credit or otherwise seeks to enforce any of its Section 15 remedies, that will be the appropriate time for Holtec to assert any breach of contract claim. 9 II.THE CLAIM FOR BREACH OF THE IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING (COUNT TWO) IS PRECLUDED BY STATUTE AND FAILS AS A MATTER OF LAW Count Two of Plaintiffs Complaint fails as a matter of law because it is precluded by the New Jersey Contractual Liability Act (NJCLA), which the Incentive Agreement 9 And even in that case, such a claim could be upheld only if Holtec could show that NJEDA exercised the discretionary authority accorded it by the Incentive Agreement and the Grow Act arbitrarily or unreasonably.
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MER-L-000696-20 06/22/2020 6:07:17 PM Pg 26 of 35 Trans ID: LCV20201098291 incorporates by reference, and which Holtec invoked as a basis for this Courts jurisdiction (Compl. ¶ 15.) Specifically, Section 17(n) of the Incentive Agreement states:
The rights and remedies of [Holtec] under this Agreement, including, but not limited to, any right with regard to the failure of
[NJEDA] to observe or perform under this Agreement, shall be subject to the New Jersey Contractual Liability Act, N.J.S.A.
59:13-1 et seq., the provisions of which are hereby incorporated herein by reference.
(Incentive Agreement § 17(n).)
The NJCLA prohibits recovery for claims based upon implied warranties or upon contracts implied in law, N.J. Stat.
Ann. § 59:13-3, such as a breach of the implied warranty of good faith and fair dealing. For this reason alone, Count Two must be dismissed.
But even if the claim was not barred as a matter of law, Holtec still has failed properly to plead a breach of the implied warranty. The Supreme Court in Wilson v. Amerada Hess Corp., 168 N.J. 236, 244 (2001), articulated the test for a violation of the implied covenant as follows: a party exercising its right to use discretion . . . under a contract breaches the duty of good faith and fair dealing if that party exercises its discretionary authority arbitrarily, unreasonably, or capriciously, with the objective of preventing the other party from receiving its reasonably expected fruits under the 21 3524956.1
MER-L-000696-20 06/22/2020 6:07:17 PM Pg 27 of 35 Trans ID: LCV20201098291 contract. Id. at 251. See also, JPMorgan Chase Bank, N.A. v.
Gaspar, No. A-4652-12T4, 2014 WL 6991728, at *4 (N.J. Super. Ct.
App. Div. Dec. 12, 2014) (citing Wilson, and holding that a bank did not violate the implied covenant by withholding consent to sale of condominium and allegedly causing defendant to default on mortgage where defendant had defaulted on the mortgage, and where terms of mortgage stated that the bank would not unreasonably withhold its consent to a sale, transfer, or other conveyance of the Property provided no default had occurred)
(emphasis added); Stankovits v. Schrager, No. A-0128-06T2, 2007 WL 4410247, at *7 (N.J. Super. Ct. App. Div. Dec. 19, 2007)
(defendants motion to dismiss should have been granted on issue of implied covenant of good faith and fair dealing, noting that
[a]bsent sufficient proof of bad motive or intention, discretionary decisions that happen to result in an economic disadvantage to plaintiff are not actionable.).
In its complaint, Holtec has not alleged that NJEDA exercised its discretionary authority arbitrarily, unreasonably, or capriciously, or with an objective of depriving Holtec of receiving the reasonably anticipated benefits of the Incentive Agreement. Nor do the facts as alleged, even if true, support such a claim. To the contrary, NJEDA has exercised its contractually permitted discretion 22 3524956.1
MER-L-000696-20 06/22/2020 6:07:17 PM Pg 28 of 35 Trans ID: LCV20201098291 reasonably and with proper motive. Wilson, 168 N.J. at 247.
Rather than deny Holtec its 2018 credit or terminate the Incentive Agreement altogether, NJEDA informed Holtec of the companys apparent breach of the Incentive Agreement and requested further information so that NJEDA could make an informed assessment of the impact of Holtecs misrepresentations on the companys continued eligibility under the Grow program.
Accordingly, no reading of the facts as alleged can support a claim for breach of the implied warranty, and for that reason, too, Count Two should be dismissed.
III. THE CLAIM FOR PROMISSORY ESTOPPEL (COUNT THREE) IS ALSO PRECLUDED BY STATUTE AND FAILS AS A MATTER OF LAW Count Three of Plaintiffs Complaint fails for three independent reasons: (1) the promissory estoppel claim is predicated upon an alleged contract implied in law, and is therefore barred under the NJCLA; (2) the promissory estoppel claim is barred by the integration clause of the Incentive Agreement; and (3) the Complaint fails to plead a clear and definite promise by NJEDA to Holtec. Consequently, Holtecs claim for promissory estoppel fails as a matter of law and should be dismissed.
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MER-L-000696-20 06/22/2020 6:07:17 PM Pg 29 of 35 Trans ID: LCV20201098291 A. The Claim for Promissory Estoppel Is Barred by the New Jersey Contractual Liability Act as It Is Predicated Upon an Alleged Contract Implied in Law Count Three of Plaintiffs Complaint fails as a matter of law because the NJCLA bars claims based upon . . . contracts implied in law. N.J. Stat. Ann. § 59:13-3.
Promissory estoppel, which is the allegation in Count Three, is another name for an implied-in-law contract claim.
XP Vehicles, Inc. v. United States, 121 Fed. Cl. 770, 782 (2015)
(barring promissory estoppel claim pursuant to the Tucker Act, which does not allow suits against the government based on contracts implied in law) (internal quotations omitted).
Although NJEDA is not aware of any case in New Jersey that addresses the issue, claims based on promissory estoppel regularly are barred under identical sovereign immunity waiver statutes in other jurisdictions. See, e.g., Tp. of Saddle Brook
- v. United States, 104 Fed. Cl. 101, 111 (2012) (Promissory estoppel theory does not fall within the jurisdiction granted to the court by the Tucker Act, and . . . the government has not waived its sovereign immunity with regard to a promissory estoppel cause of action. (citation and internal quotations omitted)); Ellis v. United States, No. 19-1489C, 2020 WL 831855, at *3 (Fed. Cl. Feb. 19, 2020) (Claims based on promissory estoppel rely upon the existence of a contract that is implied in law); Jablon v. United States, 657 F.2d 1064, 1070 (9th Cir.
24 3524956.1
MER-L-000696-20 06/22/2020 6:07:17 PM Pg 30 of 35 Trans ID: LCV20201098291 1981) (promissory estoppel claim barred because it cannot be characterized merely as an express or implied-in-fact contract); Durant v. United States, 16 Cl. Ct. 447, 450 (1988)
(Because the Tucker Act is interpreted to allow causes of action founded only on express or implied-in-fact contracts, the doctrine of promissory estoppel is not within the parameters of the Claims Court's jurisdiction.); SilverWing at Sandpoint, LLC
- v. Bonner Cty., 164 Idaho 786, 800 (2019) (Promissory estoppel is another name for an implied-in-law contract claim. (internal quotations omitted)); Tiberi v. Cigna Corp., 89 F.3d 1423, 1432 (10th Cir. 1996) (Promissory estoppel is a contract implied in law where no contract exists in fact and, therefore, is applied in lieu of a formal contract. (internal quotations omitted)); Martens v. Minnesota Min. & Mfg. Co., 616 N.W.2d 732, 746 (Minn. 2000) (Promissory estoppel is an equitable doctrine that impl[ies] a contract in law where none exists in fact.
(internal quotations omitted)); XTL-NH, Inc. v. New Hampshire State Liquor Comm'n, 170 N.H. 653, 659 (N.H. 2018) (reviewing opinions of several jurisdictions and holding that claims for promissory estoppel did not come within limited waiver of sovereign immunity for contract claims).
This Court therefore need not reach the merits or sufficiency of the pleading in Count Three, and should dismiss it as outside of its jurisdiction.
25 3524956.1
MER-L-000696-20 06/22/2020 6:07:17 PM Pg 31 of 35 Trans ID: LCV20201098291 B. The Claim for Promissory Estoppel is Barred by the Integration Clause of Holtecs Incentive Agreement Even if Count Three were not barred by the NJCLA, it would still fail as a matter of law because it is premised upon a supposed promise that is not an express term of Holtecs Incentive Agreement.
A promissory estoppel claim requires four elements:
- 1) a clear and definite promise, 2) made with the expectation that the promisee will rely upon it, 3) reasonable reliance upon the promise, 4) which results in definite and substantial detriment. Malaker Corp. Stockholders Protective Comm. v. First Jersey Nat'l Bank, 163 N.J. Super. 463, 479 (App. Div. 1978)
(holding, inter alia, that an alleged oral promise by a bank to provide additional loans to a creditor was unenforceable under principles of promissory estoppel). Here, the integration clause of the Incentive Agreement prevents Holtec from being able to claim reasonable reliance upon any promise to modify or expand the meaning of the terms of that agreement.
The Incentive Agreement states that, together with the Approval Letter 10, [the Incentive Agreement] constitutes the 10 The Approval Letter, dated September 2, 2014, contains near-identical language to the Incentive Agreement with respect to NJEDAs obligations to review the annual certifications, and 26 3524956.1
MER-L-000696-20 06/22/2020 6:07:17 PM Pg 32 of 35 Trans ID: LCV20201098291 entire agreement between the Parties and supersedes all prior agreements and understandings, if any, both written and oral, between the Parties with respect to the subject matter hereto.
(Incentive Agreement § 17(b).) This clause necessarily precludes Holtecs promissory estoppel claim. See MLCFC 2007-9 ACR Master SPE, LLC v. Echo Farms, RV Resort LLC, No. A-1692-13T1, 2014 WL 5506807, at *7 (N.J. Super. Ct. App. Div. Nov. 3, 2014) (A promissory estoppel claim is deficient [if] the contract included a clause stating that it represented the entire understanding between the parties.) (internal quotations omitted).
The terms of the Incentive Agreement are clear and unambiguous and require no extrinsic evidence for interpretation. See Namerow v. PediatriCare Assocs., LLC, 461 N.J. Super. 133, 140 (Ch. Div. 2018) (Under New Jersey law, where the terms of a contract are clear and unambiguous, there is no room for interpretation or construction and the courts must enforce those terms as written.). Under these circumstances, the promissory estoppel claim must be dismissed.
similarly is devoid of any promise of review by March 1 or any other specific time frame.
27 3524956.1
MER-L-000696-20 06/22/2020 6:07:17 PM Pg 33 of 35 Trans ID: LCV20201098291 C. The Complaint Failed to Plead a Clear and Definite Promise, so the Claim for Promissory Estoppel Fails Finally, the promissory estoppel claim should be dismissed - even if not barred for the reasons set forth above -
simply because the Complaint fails to plead a clear and definite promise.
Holtec asserts that NJEDA promised that if Holtec constructed its state-of-the-art facility in Camden, delivered the promised jobs, and otherwise met its obligations under the Grow Program, [NJEDA] would issue Holtec its annual Letter of Compliance. (Compl. ¶ 127) (emphasis added). First, no such clear and definite promise was made, nor has Holtec properly alleged one in its Complaint. The Incentive Agreement unambiguously states that NJEDA will issue annual letters of compliance upon its satisfactory review of Holtecs submissions which, as stated supra, it has not yet completed. Second, any such promise, if it existed, is, by Holtecs own admission, predicated upon Holtec having met its obligations under the Grow Program. Id. Those obligations included a certification by Holtecs CEO that everything in Holtecs application was truthful and accurate. Given that Holtec admittedly failed to disclose the TVA debarment in response to a question asking about debarments, the CEO certification submitted alongside Holtecs application was false. Holtec further failed to meet 28 3524956.1
MER-L-000696-20 06/22/2020 6:07:17 PM Pg 34 of 35 Trans ID: LCV20201098291 its obligations under Grow NJ when it failed to disclose this falsehood in either of its two annual certifications.
Holtecs assertion that NJEDA further made a clear and definite promise to Holtec concerning the timing in which
[NJEDA] would process the company's Annual Compliance Report so that Holtec would have its tax credits in hand prior to March 1 each year similarly fails. NJEDA made no such promise in either the Incentive Agreement or otherwise, and Holtec has not pleaded anywhere else in the Complaint, beyond simple conclusory assertions, that such a promise ever existed. Count Three of the Complaint should therefore also be dismissed because it fails to state an actionable claim.
29 3524956.1
MER-L-000696-20 06/22/2020 6:07:17 PM Pg 35 of 35 Trans ID: LCV20201098291 CONCLUSION For the foregoing reasons, this Court should dismiss the Complaint in its entirety. 11 Dated: June 22, 2020 Respectfully submitted, FRIEDMAN KAPLAN SEILER &
ADELMAN LLP
/s/ Ricardo Solano Jr.___________
Ricardo Solano Jr., ID # 041121999 Eric Corngold (pro hac vice admission pending)
Nora Bojar (pro hac vice admission pending)
Blair R. Albom (pro hac vice admission pending)
FRIEDMAN KAPLAN SEILER &
ADELMAN LLP One Gateway Center Newark, NJ 07102-5311 (973) 877-6400 Attorneys for Defendant New Jersey Economic Development Authority 11 Even if the Court does not dismiss the Complaint in its entirety, the Court should strike Holtecs demand for damages.
(Compl. Prayer for Relief ¶ b.) Section 8 of the Incentive Agreement expressly provides that NJEDA is not liable for damages for the issuance or use of the Grant of Tax Credits.
(Incentive Agreement § 8.) Holtecs purported damages claim relating to its sale of the tax credits (Compl. ¶ 93) is specifically precluded by this clause.
30 3524956.1
Exhibit B Holtec under criminal investigation, EDA says in since-redacted co... https://www.politico.com/states/new-jersey/story/2020/06/24/holtec...
Stacked files l Carl Court/Getty Images Holtec under criminal investigation, EDA says in since-redacted court filing By MATT FRIEDMAN and KATHERINE LANDERGAN l 06/24/2020 12:40 PM EDT Holtec International, which received one of the biggest tax credits in New Jersey history, is under criminal investigation, according to a legal brief filed Monday by the New Jersey 1 of 5 10/19/20, 6:48 PM
Holtec under criminal investigation, EDA says in since-redacted co... https://www.politico.com/states/new-jersey/story/2020/06/24/holtec...
Economic Development Authority.
The brief was in response to a lawsuit Holtec an energy technology company filed against the EDA in March for holding up a $26 million payment on its $260 million tax incentive to build a facility in Camden. The delay was because of an allegedly false answer Holtec gave on its 2014 tax credit application.
Holtecs misrepresentations which include its failure to disclose a prior government debarment by the Tennessee Valley Authority (the 'TVA') for bribing an official of that agency first came to light during an investigation conducted by the Governors Task Force on the Economic Development Authoritys Tax Incentive Program, and they are now the subject of an ongoing criminal investigation, reads the June 22 brief by attorney Ricardo Solano.
The June 22 brief, filed in Superior Court in Mercer County, includes two additional references to a criminal investigation, but an otherwise identical brief Solano filed with the court on June 23 redacts all references to the investigation. The June 22 brief does not state which authorities are allegedly investigating the company, which received the tax credit to build a $300 million 47-acre factory and office complex in Camden.
It is not known why the references were redacted and both briefs remain available online.
Solano declined to comment on the brief.
Holtec President & CEO Kris Singh said in a statement that the allegation is blatantly untruthful and the company is currently cooperating with the attorney generals office.
Singh said he is confident their work will reveal no wrongdoing on the part of Holtec.
It is Holtecs understanding that the New Jersey Attorney Generals Office is reviewing certain matters raised by the Governors Task Force in their public reports which were a potpourri of irresponsible and inflammatory allegations hurled at Holtec through the media, he said in a statement. We have maintained a dignified silence in the face of the falsehoods spewed by the Task Force which should not be taken as a sign of weakness. We will expose the farce that the Task Forces shenanigans are in the right forum at the right time.
New Jerseys tax incentive program has been under intense scrutiny for the last year and a half. An investigative commission appointed by Gov. Phil Murphy exposed how the program was allegedly designed in part by a law firm to benefit clients it represented.
The existence of state and federal investigations into other aspects of the tax incentive 2 of 5 10/19/20, 6:48 PM
Holtec under criminal investigation, EDA says in since-redacted co... https://www.politico.com/states/new-jersey/story/2020/06/24/holtec...
program have already been disclosed, and POLITICO reported that a state grand jury issued subpoenas to the EDA related to Holtec, among other companies.
It has not previously been disclosed that Holtec was the subject of any criminal investigation.
The Murphy-backed investigation of the tax incentive program intensified a long-simmering political feud with South Jersey Democratic power broker George Norcross, whose brother, Phil Norcross, leads the firm that helped write the tax credit law and whose other brother, Donald Norcross, was at the time a state senator who helped sponsor it.
George Norcross, whose company built a gleaming Camden tower with the help of millions in tax credits, sits on Holtecs board.
Holtec sued the EDA for breach of contract in March after the agency withheld the second of 10 $26 million installments of its tax credit payment. Holtec claimed to have fallen victim to a political fight.
The media have widely reported on the bitter infighting between the states politicians that seems to have degenerated to the point where personal feuds outweigh sensible public policy, the company said in a March statement to The Philadelphia Inquirer. By failing to honor its uncontestable obligation to deliver the required tax certificate, New Jersey is broadcasting to the world that it is an untrustworthy partner. By politicizing its business commitments, the state appears bent on discouraging future investors in its economy while scaring away those who are already here.
Holtec claimed the EDAs delay of its tax credit cost the company tens of millions of dollars in damages because it had borrowed money from other companies in advance of receiving the tax credits under an agreement that it would later transfer the credits to those companies to repay what it had borrowed.
Holtec answered no on its application when asked if it had been barred from work with a government agency, even though in 2010 it was briefly prohibited from working with the federal Tennessee Valley Authority over a bribery scandal from 2002.
While Holtec characterized its answer as an oversight and said the application never specified whether the debarment had to be active, Solano in his June 22 and June 23 briefs for the EDA suggested the omission wasnt so innocent.
Solano wrote in the briefs that Holtec only corrected its answer to the EDA in 2019, when it was aware the commission investigating the tax incentives knew of it and that 3 of 5 10/19/20, 6:48 PM
Holtec under criminal investigation, EDA says in since-redacted co... https://www.politico.com/states/new-jersey/story/2020/06/24/holtec...
ProPublica/WNYC was about to publish an article about it.
Indeed, to date, Holtec has never explained why its CEO, despite having knowledge of, and perhaps involvement in, events leading to the TVA debarment, executed a certification that falsely stated that all of the information contained in Holtecs application including the denial of any debarment was truthful, accurate, and complete, and that he personally exercised an appropriate degree of due diligence to reasonably ensure himself of that fact, Solano wrote.
In reviewing Holtecs tax incentive application, the EDA asked for more information, Solano wrote, but Holtec did not provide it.
NJEDA has sought, and still awaits, a full and detailed explanation from Holtec for its misrepresentation in the application and every annual certification submitted since then, Solano wrote. Until NJEDAs review is complete, and unless at that time NJEDA denies Holtec its 2018 tax credit, no claim for breach of the Incentive Agreement can be sustained."
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Exhibit C MER L 000696-20 03/23/2020 Pg 1 of 29 Trans ID: LCV2020657886 RIKER Michael P. O'Mullan DANZIG Partner SCHERER Direct; HYLAND t: 973.45 I .84n
- PERRETTILlP f: 973.45 1.8702 momullan@rlker.com ATTORNEYS AT LAW Headquarters Plaza One Speedwell Avenue Morristown, NJ. 07962-1981 March 23, 2020 Via Mail Clerk of Court Chancery Division, General Equity Superior Court of New Jersey, Mercer County PO Box 8068 Trenton, New Jersey 08650-0068 Re: Hgltec International v. New lersey Economic Development Authority
Dear SI r/Madam:
We represent Plaintiff Holtec International in this matter. Enclosed for filing please find the original and two copies of a Complaint and Case Information Statement Please file the original of each document and return one copy stamped "flied" In the postage paid return envelope provided. Kindly charge any fees associated with this filing to our.Superior Court of New Jersey account #0083800.
MOM/np Enclosure 5121327vl MORRISTOWN TRENTON NEW YORK OTY WHITE PLAINS STAMFORD www.rlker.com
MERL 000696-20 03/23/2020 Pg 2 of 29 Trans ID: LCV2020657886 Civil Case Information Statement (CIS)*
Use for' 1mtlal p!eadmgs (not motions) unoer Rule 4:5-1 CASE TYPES (Choose one and enter number of case type In appropriate space on the reverse side.)
Track I - 150 days discovery 151 Name Change 606 PIP Coverage 176 Forfeiture 510 UM or UIM Clalm (coverage 1&sues only) 302 Tenancy 511 Action on Negotiable Instrument 399 Real Property (other than Tenancy, Contract, Condemnation, Complex 512 Lemon Law Commarclal or Construction) 801 Summary Action 502 Book Account (debt colled1on matters only) 802 Open Pt.bllc Records Act ( sLmlTlary action) 505 Other Insurance Claim (mdudlng declaratory Judgment actions} 999 Other (briefly descri:le nature of acbon)
Track II - 300 days discovery 306 Construction 603Y Auto Neg~nce - Personal lflury (verbal threshold}
609 Employment (other than Conscientious Employees Protection Act (CEPA) 605 Peraonal lnjlll)'
or Law Against Dlscnmlnatlon (LAD}) 610 Auto NegDgence - Property Damage 599 Contract/Commercial Transactlo n 621 UM or UIM Claim (nctudas bodily Injury) 603 N Auto NegRgence - Personal lfl\J1Y (non-verbal threshold) 600 Tart - other Track Ill - 450 days discovery 005 Ch11I Rlghte 608 Toxlc Tart 301 Condemnation 609 Defamatlon 602 A.esault and Battery 616
- Whlstleblower / Conscientious Employee Protecbon Act 604 Med1cal Mal practice (CEPA) Casas 600 Produd Uablily 617 Inverse Coodemna1lon 607 Profes81onal Malpractice 618 Law Against Dlaalmlnatlon (LAD) Cases Track IV - Active Case Management by Individual Judge/ 450 days discovery 166 Envlronmerrtal/Envlrorrnental Coverage Utfgetlon ~14 Insurance Fraud 303 Ml Laurel 820 False Claims Ad 508 Complex Commerclel 701 Actions m Lieu of Preroge11ve WOOi 513 Complex Construc!Jon Multicounty Litigation (Track IV) 271 Accutane/lso1rntlnoln 601 Asbestos 274 Rlsperdal/SeroqueVZyprexa 823 Propecla 281 Brlstol-MyeB Squibb Em11ronmental 624 Stry!<er LFrr CoCr V40 Femoral Heads 282 Fosarnax 625 Flre~ter Hearing Loss Lltlgahon 285 Stryker Trident Hip lmplsnts 626 Ablllfy 286 Levaquin 627 Physlomesh FlllXibltl Composite Mesh 289 Raglan 628 Taxotere/Docetaxel 291 Pelvic Mesh/Gynecare 629 Zostavax 292 PalVIC Mesh/Bard 630 Proceed Mesh/Patch 293 DePuy ASR Hip Implant Ulgaflon 631 Proton-Pump lnhlbilorB 295 Alla Derrn Reg eneratJve Tie sue Matrtx 632 Heallhf'tus Surgery Ceoter 296 Stryker Re_JIJV8nale/ABG II Modular Hp Stem Components 633 Prolene Hernia System Mesh 297 Mlrena Contraceptive Device 299 Olmesartan Medoxomn Medk:atlons/Benlcar 300 Talc-Based Body Powders If you believe this case ruqulras a track other than that proVided abow, pleaaa Indicate the reason on Side 1, in the space under "case Characterl9tlca.
Please check off each appllcable category D Putative Class Action D Title 59 D Consumer Fraud Revised Form Promulgated by 01/31/2020 Nollce to the Bar, CN 10517 (Appendix Xll-81) page 2 of2
MER L 000696-20 03/23/2020 Pg 3 of 29 Trans ID: LCV2020657886 RIKER, DANZIG, SCHERER, HYLAND & PERRETTI LLP Headquarters Plaza One Speedwell Avenue Morristown, NJ 07962-1981 (973) 538-0800 MichaelP. O'Mullan, Esq. (NJ AttomeyID 029681996)
Kenneth Dzikowski, Esq. (NJ Attorney ID 022752011)
Attorneys for PlaintiffHoltec International SUPERIOR COURT OF NEW JERSEY HOLTEC INTERNATIONAL, CHANCERY DIVISION, GENERAL EQUITY MERCER COUNIY DOCKET NO. :MER-L-Plaintiff, CNILACTION vs.
NEW JERSEY ECONOMIC DEVELOPMENT COMPLAINT AU1HORITY, Defendants.
- 1. Plaintiff Holtec International (Holtec") brings this action against defendant New Jersey Economic Development Authority ("EDA") for breach of contract and promissory estoppel, seeking specific performance and other relief.
- 2. , Holtec is a diversified energy technology company, recognized as the foremost technology innovator in the field of carbon-free power generation, specifically commercial nuclear and solar energy. Holtec has operations in Florida, New Jersey, Ohio, Pennsylvania, and abroad.
~
- 3. The EDA is an independent authority formed by the State of New Jersey that, among other things, administers the Grow New Jersey Assistance Program (the "Grow Program"),
1
MERL 000696-20 03/23/2020 Pg 4 of,29 Trans lo: LCV2020657886 a program which was designed to incentivize companies through the issuance of tax credits to make capital investments and create or retain jobs in New Jersey rather than bring those opportunities to other states,
,r
- 4. In the years leading up to 2014, Holtec, based upon growth expectations, was desirous of a new state-of-the-art research and manufacturing facility and w~ exploring* whether to build the facility in a variety oflocations, including New Jersey. The EDA and the New Jersey Department of State's Business Action Center ("BAC) 1 actively and aggressively courted Holtec and encouraged it to commit to build its new manufacturing anq research facility-with its attendant high-paying jobs-in Camden, New Jersey.
"5. Camden routinely ranks among New Jersey's poorest and most' economically disadvantaged cities, and has historically experienced unique challenges attracting business development like that being contemplated by Holtec. Accordingly, in keeping with its legislative mandate, the EDA and the BAC aggressively sought to induce Holtec to commit to invest in I
Camden by building its multimillion-dollar, state--of-the-art facility there.
- 6. After extensive communications with the EDA and the BAC, in 2014 Holtec applied for and received an award of Grow Program tax incentives. Holtec would invest more than $300 million to construct the Krishna P. Singh Technology Campus in Camden and bring with it hundreds of high*paying jobs. Under the terms of an incentive agreement with the EDA, Holtec was to receive $260 million in tax credits over ten years following completion of the project and delivery of the promised jobs.
1 The BAC is an arm of the state government of New Jersey that works with EDA and operates as a resource to assist businesses by, among other things, obtaining answers from government agencies, directing companies to appropriate officials or contacts, and facilitating meetings with regulatory agencies to attract and retain businesses in the State.
2
MER L 000696-20 03/23/2020 Pg 5 of 29 Trans ID: LCV2020657886
- 7. The Incentive Agreement between Holtec and the EDA was signed after six months of extensive vetting by the EDA, which concluded that Holtec was eligible for the award of tax credits.
- 8. Induced by the Incentive Agreement, Holtec spent more than $300 million to construct a state-of-the-art manufacturing and design facility in Camden, with associated office and support buildings. This provided an immediate infusion of construction-related revenue into Camden's economy-the single largest private investment in the history of the municipality-and has substantially contributed to Camden's revitalization efforts.
- 9. State officials publically praised H<?ltec at the time, stating, "your pledge to choose New Jersey to build the state-of-the-art 600,000 square foot manufacturing and design center is more than just an investment in your business, it is an investment in New Jersey and the renewal of manufacturing here in Camden."
- 10. Under the terms of the Incentive Agreement, the EDA is required to issue Holtec a Letter of Compliance each year for ten years if Holtec satisfies its contractual obligations. The annual Letter of Compliance enables Holtec to obtain the benefit of the annual portion of its tax credit under the Grow Program.
- 11. 2017 was the first tax year that Holtec was eligible to receive a tax credit under the Incentive Agreement. Holtec timely submitted its annual paperwork in January 2018, and the EDA thoroughly reviewed it, asking multiple follow-up questions to which Holtec responded.
Fewer than three months later, the EDA issued Holtec its 2017 Letter of Compliance, which enabled Holtec to receive its 2017 tax credit
- 12. In early 2019, Holtec timely submitted all of the required paperwork for its 2018 tax credit More than a year has since gone by, and the EDA has not issued Holt.e?'s required 3
- - * - .. _ _ ...,..,.., -'-' V'-'IC...'...IIL...Vt-V I ~VVlt:..17 llt;i,11011.J,&..VVLVt:.VUJIVUU Letter of Compliance, even though Holtec remains in full compliance with the Incentive Agreement. The apparent reason for this refusal is public criticism of the Grow Program and the EDA following the creation of the new administration's gubernatorial task force.
- 13. Over the past year, Holtec has tried repeatedly to engage with the EDA to see if a 1awsoit could be avoided.
- 14. In disregard ofits contractua1 obligations, the EDA bas stalled and failed to approve Holtec's 2018 submission for its tax credits, which has caused Holtec tens ofrnillfons of dollirrs fo damages. Holtec was thus left with no choice but to file this Complaint and seek an order requiring the EDA to comply with its duties under the Incen:ti~e Agreement.
JURISDICTION AND VENUE
- 15. This action is brought by Holtec pursuant to the New Jersey Contractual Liability A.ct, NJ.SA 59:13--1 to -10, and the c.ommon law.
- 16. The court bas jurisdiction over Defendant EDA because the EDA is a New Jersey government entity.
- 17. Verrue for this action properly lies in Mere<< County, pursuant to Rule 4:3-2, beeause the causes of action arose in Macer County where the EDA maintains its offices.
- 18. The matter is properly instituted in the Chancery Division pursuant to Rule 4:3-1 beeause the primary relief sought, specific penormance, is equitable in nature.
PARTIES J9. Plaintiff Holtec is an S Corporation formed in the State of Delaware, with offices in 1 Holtec Bou1evard, Camden, New Jersey (formerly known as 2500 Broadway, Camden, Ne,-w Jerge,j).
4
MERL 000696-20 03/23/2020 Pg 7 of 29 Trans ID: LCV2020657886
- 20. Defendant EDA is an independent state agency created by the New Jersey Economic Development Authority Act, with offices at 36 West State Street, Trenton, New Jersey.
FACTUAL ALLEGATIONS
- 21. Holtec is a diversified energy technology company, recognized as the foremost tecbnolo gy innovator in the field of carbon-free power generation, specifically commercial nuclear and solar energy. Among other things, Holtec designs, manufactures, and supplies equipment and systems for the nuclear-, solar-, geothermal-, and wind-power generation sectors of the energy industry. The company is globally recognized for its innovation and design of equipment and services to commercial power plants.
- 22. Since 2009, Holtec has been at the forefront of developing a new generation nuclear reactor, called the Si\,fR-160. The SMR-160 is designed to be a safer, more environmentally friendly, and economical small modular reactor that has the flexibility to be used in remote locations, in areas with limited water supplies or land, and in unique industrial applications where traditional large reactors are not practical.
- 23. In or around 2013, Holtec had global operation centers in Marlton, New Jersey; Pittsburgh, Pennsylvania; Orrville, Ohio; Lakeland, Florida; Jupiter, Florida; San Diego, California; and abroad.
- 24. Holtec wanted to open a new state-of-the-art research and manufacturing facility where its engineers working on the SMR-160 project would be on the same campus as the company's manufacturing operations in order to take advantage of productive synergies between various skilled workers that would be perfecting this cutting-edge technology. This would facilitate communication between engineers and manufacturing operations and improve company production.
5
MERL 000696-20 03/23/2020 Pg 8 of 29 Trans ID. LCV2020657886
- 25. The SMR-160 project would also require significantly advanced and modernized manufacturing capabilities, which would necessitate a new facility with state-of-the-art equipment.
That new facility would also enable Holtec to expand its current line of nuclear products, heat-exchange equipment, and other weldments for delivery to the company's worldwide customers.
- 26. Wherever Holtec decided to build its new facility, it would provide well-paid, technical jobs with career opportunities in the growing energy field, making it an attractive entity for states to court as an employer.
- 27. In considering where to construct this new facility, Holtec evaluated various options, including Camden, New Jersey.
- 28. The EDA's promise to award tax credits under the Grow Program was a ~aterial factor in Holtec' s ultimate decision to choose Camden.
The Grow New Jersey Assistance Program
- 29. The Grow Program was originally signed into law on January 5, 2012. It was designed "to encomage economic development and job creation and to preserve jobs that currently exist in New Jersey but which are in danger of being relocated outside of the State." L. 2011, c.
149, § 3 (N.J.S.A. 34:IB-244).
- 30. As initially enacted, program applicants needed to demonstrate that "the capital investment resultant from the award of tax credits and the resultant retention and creation of eligible positions will yield a net positive benefit to the State," and that "the award of tax credits will be a* material factor in the business's decision to create or retain the minimum number of full-time jobs for eligibility under the program." Ibid.
- 31. To assist the EDA in making eligibility determinations under the law, applicants needed to certify that (i) "existing full-time jobs are at risk of leaving the State or being 6
MERL 000696-20 03/23/2020 Pg 9 of 29 Trans ID: LCV2020657886 eliminated," (ii) "any projected creation or retention, as applicable, of new full-time jobs would not occur but for the provision of the tax credits under the program," and (iii) the representations in the Grow Program application were accurate.
- 32. On January 14, 2013, the New Jersey Legislature introduced a bill that would eventually be signed into law known as the Economic Opportunity Act of 2013, L. 2013, c. 161
(2013 Act"). The 2013 Act was signed into law on September 18, 2013.
3 3. The 2013 Act amended the earlier version of the Grow Program statute in mnnerous respects, most notably as it related to companies that proposed to construct facilities in Camden.
- 34. Camden routinely ranks among New Jersey's poorest and most economically disadvantaged cities. According to the New Jersey Municipal Revitalization Index (which serves as the Sta~e's official measure of municipal distress by ranking New Jersey's municipalities according to' eight separate indicators of social, economic, physical, and fiscal conditions in each locality), in 2007 Camden ranked 566 out of 566 municipaliti~ in the state.
- 35. Moreover, Camden has historically experienced unique challenges to attracting business development, stemming from a diverse array of problems such as record-high crime to deficiencies in public education.
- 36. Camden was (and still is) an economically distressed municipality that the Legislature detennined needed heightened incentives to encourage companies to locate there.
Accordingly, in addition to increasing certain of the award amounts that companies willing to relocate to Camden could receive under the Grow Program, the 2013 Act changed the eligibility requirements for companies seeking to locate there.
- 37. If an applicant was proposing to make a capital investment and locate in Camden, there was no need for it to demonstrate that any jobs were "at risk ofleaving New Jersey or that 7
MERL 000696-20 03/23/2020 Pg 10 of 29 Trans ID LCV2020657886 a retention of jobs would not occur "but for" the provision of tax credits. Instead, Camden applicants were simply required to "indicate that the provision of tax credits under the program is a material factor in the business decision to make a capital investment and locate in [Camden.]"
N.J.S.A. 34:1B-244(d) (emphasis added).
- 38. The award of tax credits was unquestionably a material factor in Holtec's decision to invest in Camden, as the EDA itself determined during its review of Holtec' s application for tax incentives.
Holtec Decides to Apply for Tax Incentives
- 39. In the months leading up to the enactment of the 2013 Act, the EDA and BAC were in regular communication with Holtec concerning possible tax incentives available to it should Holtec decide to construct its then-contemplated new facility in Camden. The EDA and BAC were actively courting Holtec to convince the company to move to Camden.
- 40. As part of these extensive conversations, the BAC encouraged Holtec to apply for tax credits in excess of $350 million. Holtec decided, however, to apply for credits totaling only
$260 million because Holtec was unwilling to accept tax credits above the amount Holtec felt it needed to construct its advanced manufacturing campus in Camden.
- 41. On January 20, 2014, Holtec submitted an application for financial assistance under the Grow Program. The extensive application described Holtec's future plans for the company and the S:rv.fR-160, and how the company's decision to construct a facility in Camden would be beneficial to the State of New Jersey and Camden.
- 42. Because Holtec was proposing to make a substantial capital investment and locate in Camden, it was not legally required that Holtec demonstrate that any jobs were "at risk," or that any retention of jobs would not occur "but for the provision of tax credits.
8
MER L 000696-20 03/23/2020 Pg 11 of 29 Trans ID. LCV2020657886
- 43. Holtec's application nevertheless described for the EDA various alternatives that Holtec had considered outside of New Jersey as part of its search for a new facility, and informed the EDA that the provision of tax credits was a material factor in Holtec' s decision to move forward with the Camden project.
- 44. For over six 'months following the submission of the January 2014 application, Holtec and the EDA engaged in discussions concerning the proposal. Based on those extensive communications and a thorough vetting of Holtec's submissions, the EDA was satisfied that
/
Holtec was eligible to receive an award of tax credits under the Grow Program.
- 45. The tax credits awarded to Holtec could be used by the company itself to reduce its own tax liability, or they could be sold to other entities. It was common for companies that were unable to utilize the full amount of the tax credits to sell such credits for an immediate benefit.
- 46. On July 10, 2014, the EDA approved Holtec's application under the Capital Investment Alternative of the 2013 Act. The EDA notified the company of this approval, and Holtec executed an approval letter dated September 2, 2014.
- 47. , In reliance on the award of tax credits, Holtec thereafter undertook construction of the Krishna P. Singh Technology Campus in Camden, expending in excess of $300 million. The new campus occupies approximately 47 acres in the southern end of Camden along the Delaware waterfront, and has transformed a series of abandoned buildings and vacant lots into a thriving business center with state-of-the-art facilities for hundreds {and in the future, anticipated thousands) of employees.
- 48. Although Holtec spent in excess of $300 million, Holtec decided to have its independent auditor begin the certification cost report as soon as its capital spend crossed the $260 million required amount 9
MER L 000696-20 03/23/2020 Pg 12 of 29 Trans ID: LCV2020657886
- 49. On or about August 10, 2016 and February 1, 2017, respectively, Holtec and the EDA executed an Incentive Agreement under the Grow Program ("Incentive Agreement). The Incentive Agreement was later amended on December 28, 2017 and March 4, 2019, respectively.
- 50. The Incentive Agreement recites that the EDA, after fully vetting Holtec's application, determined that the company satisfied the eligibility criteria under the Grow Program statutes and that the EDA approved Holtec to receive tax credits of up to $260 million.
I
- 51. The Incentive Agreement required that Holtec submit to the EDA certain Tax Credit Certificate Documents, as defined in Section 10 to the Incentive Agreement, on or before July 10, 2018, demonstrating that Holtec had lived up to its obligations to complete the project.
Holtec submitted those documents on or about September 15, 2017. The EDA reviewed that
\
submission and issued a Grow New Jersey Assistance Act Tax Credit Certificate to Holtec on or about January 18, 2018, in the amount of $260 million.
- 52. Section 11 of the Incentive Agreern,ent states, After receipt of the Tax Credit Certificate, [Holtec] shall submit to the [EDA], no later than 120 days after the end of each Tax Period during the Commitment Period, the Annual Compliance Report ...
Upon satisfactory review of all information submitted in the Annual Compliance Report, the [EDA] will issue a Letter of Compliance indicating the amount of the tax credits that may be used for the relevant Tax Period. No Tax Credit Certificate will be valid without the Letter of Compliance issued for the relevant Tax Period.
- 53. Th'ese contractual obligations are mirrored in the New Jersey Administrative Code, which states, "Annually, upon satisfactory review of all information submitted [in the Annual C01µpliance Report], the Authority will issue a letter of compliance." N.J A.C. 19:31-18.11 (d).
- 54. The Incentive Agreement and Administrative Code thus establish a clear mechanism for Holtec to receive its tax credits over the contract's term. Each year Holtec must submit compliance paperwork to the EDA, which must then review the paperwork and timely 10
MERL 000696-20 03/23/2020 Pg 13 of 29 Trans ID: LCV2020657886 detennine if it is satisfactory. If so, the EDA must issue to Holtec a Letter of Compliance that entitles Holtec to receive its annual tax credit The Incentive Agreement contemplates ten annual
\
credits, worth up to $26 million each.
- 55. The Incentive Agreement worked as intended by the parties for the first year. After Holtec completed the project, Holtec submitted to the EDA its first Annual Compliance Report for 2017 on January 15, 2018. The EDA reviewed that information and submitted its first Letter of Compliance to HolteconApril 11, 2018, alongwith a Grow New Jersey Assistance Act Tax Credit Certificate signed April 5, 2018, in the am01mt of $26 million for the 2017 tax period representing the Incremental Tax Credit Amount.
- 56. Although Holtec has undoubtedly lived up to its obligations by completing the project, delivering the promised jobs, and following the same process for the next tax year, the EDA has failed to deliver its promised tax certificate. On January 15, 2019, Holtec submitted its second Annual Compliance Report for 2018. Fourteen months have since gone by, and the EDA has continued to change the required documentation and thus far refused and failed to issue the Letter of Compliance as required by Section 11 of the Incentive Agreement The apparent reason for the EDA's failure stems from public criticism of the Grow Program generally.
The EDA Fails to Honor the Incentive Agreement
- 57. After Holtec entered into the Incentive Agreement and delivered on its promise to invest in Camden as set forth above, State government experienced a change of administration.
)
On January 16, 2018, Governor Murphy assumed office as New Jersey's 56th Governor after c.ampaigning for, among other things; reform of the EDA's tax incentive process. On January 19, 2018, Governor Murphy signed Executive Order No. 3, which instructed the New Jersey State 11
MER L 000696-20 03/23/2020 Pg 14 of 29 Trans ID: LCV2020657886 Comptroller to conduct an audit of certain aspects of New Jersey's tax-incentive _programs, including the Grow Program.
58, OnJanuary9*, 2019, the Comptroller issued areportentitled "New Jersey Economic Development Authority. A Performance Audit of Selected State Tax Incentive Programs." Tiris report offered certain criticisms of New Jersey's tax-incentive programs and how they were administered, but did not mention or address anything aoout Holtec or its tax-incentive award.
- 59. On January 24, 2019, Governor Murphy signed Executive Order No. 52, in which he created the Task Force on EDA's Task Incentives ("Task Force"). The Task Force was instructed to perform an examination of the design, implementation, and oversight of the Grow Program.
- 60. On June 17, 2019, the Task Force issued its First Published Report ("First Report").
The First Report was critical of the EDA, and made allegations against numerous companies (with a clear focus on companies that had invested :in Camden) that had received Grow Program awards.
- 61. With respect to Holtec, the First Report stated, "A simple internet search revealed that one company, Holtec International, had been debarred by the Tennessee Valley Authority, even though Holtec said it had never been debarred in its Grow NJ Application. t> The First Report criticized the EDA for allegedly not discovering this issue during its extensive due diligence and vetting ofHoltec's January 2014 application.
- 62. The matter referenced by the Task Force in the First Report concerns the Tennessee Valley Authority ("TVA"), a corporation owned by the federal government for whom Holtec has done hundreds of millions of dollars of work since 2001.
- 63. On October 12, 2010, the Office of Inspector General for the TVA sent to Holtec a Notice of Proposed Debarment. The notice stemmed from an incident in 2002--nearly 18 years 12
MERL 000696-20 03/23/2020 Pg 15 of 29 Trans ID. LCV2020657886 ago--involving a former employee of the TVA who filed a false statement on a financial disclosure form related to a payment to that employee's company from a then-subcontractor ofHoltec. Holtec acquired that subcontractor several years after the 2002 payments.
- 64. The TVA had conducted a full investigation into these 2002 transactions by the subcontractor, and thereafter temporarily placed Holtec on the General Services Administration Excluded Party List on December 3, 2010. Nine days later, on December 12, 2010, the TVA lifted the debarment, and removed Holtec from the Excluded Party List.
- 65. In 2012, the TVA board unanimously voted to awatd Holtec a ten-year contract valued at approximately $300 million. During the public-contracting process at that time, the TVA Vice President of Supply Chain publicly told the TVA board: "I stand before this board to tell you that Holtec today is in good standing with the federal government, in good standing with TVA, and in good standing with the market. Holtec is a market, leader in dry cask storage." Holtec continues to be a vendor of the TVA to this day.
- 66. The fact ofHoltec's brief debarment by the TVA, and its subsequent contract with that agency, was a matter of public record discoverable by simple internet searches.
- 67. At the time ofHoltec's EDA application in 2014, the company was not subject to debarment In Holtec' s January 20, 2014 application, there was a question that stated: "Debarment by any department, agency, or instrumentality of the State or Federal government" In response to that question, Holtec was to check either YES" or NO" on the online application form.
- 68. The question did not specify whether the debarment needed to be active to be responsive, or whether any past debarment would also be responsive. In other public-contracting forms, a debarment must be active to be responsive to those forms. The Grow Program application submitted by Holtec stated NO" in response to the EDA's question on its form.
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MER L 000696-20 03/23/2020 Pg 16 of 29 Trans ID: LCV2020657886
- 69. In the early part of 2019, the Task Force was holding public hearings, criticizing various entities that had received tax credits during the prior administration, and inviting public scrutiny of all aspects of the Grow Program. AB part of that invited scrutiny, members of the media reported in May 2019 that Holtec had been subject to a brief debarment by the TVA, but had checked "NO" in response to the debarment question on its application.
- 70. Upon learning of the issue, on May 20, 2019, Holtec proactivelyreached out to the EDA to clarify the situation surrounding the brief TVA debarment. To the extent that the previous debannent was responsive to the question ori the application, Holtec amended its answer and explained that the failure to identify the issue was inadvertent.
- 71. Nothing about the publicly available TVA incident, which related to events dating back to 2002, undercut the undeniable fact that Holtec had invested more than $300 million and created hundreds of high-paying jobs in Camden, just as the EDA had bargained for.
- 72. Moreover, N.J.A.C. 19:30-2.2 and 2.3 justify disqualification from EDA programs only under certain circumstances, and a brief debannent by an agency that has since signed a ~$300 million contract with the company does not qualify.
- 73. Further, an EDA. staff member testified at an October 2019 hearing that, even where there were instances where companies checked "NO" to a disqualification question that technically should have been YES," the EDA staffer has never recommended disqualifying that company from receiving a grant from the EDA.- Indeed, as the Task Force itself noted, sometimes EDA staff would observe such an issue as part of its due diligence, but deem it too insignificant even to follow up -with the applicant. The application would instead be processed for approval.
- 74. After the Task Force issued its First Report criticizing Holtec, on June 26, 2019, the EDA sent to Holtec a letter that attached relevant excerpts of the First Report. Even though 14
MER L 000696-20 03/23/2020 Pg 17 of 29 Trans ID. LCV2020657886 Holtec had already explained the TVA issue to the EDA in May, the EDA asked Holtec to "submit a written explanation for failing to inform the Authority of that matter, and to explain the "impact" that the issue would have on Holtec's application.
- 75. In the same letter, the EDA enclosed a Pro Publica article dated June 26, 2019, which stated that one of Holtec's affiliates had received tax credits under the Ohio Job Creation Tax Credit Program, but had lost those credits when the affiliate was unable to maintain the requisite jobs at that Ohio facility.
- 76. The EDA's June 26, 2019 letter stated that the EDA would review Holtec's written response and then would "invite the Company to the Authority's office for a meeting to discuss the information and explanation provided." ,.
- 77. On August 8, 2019, Holtec 'responded to the EDA's correspondence. Holtec explained that the Ohio matter concerned a different company, Orrvilon, Inc. ("Orrvilon), which does not have a physical presence in New Jersey and whose operations did not inform Holtec's application under the Grow Program. Holtec also pointed out that, per the plain lan~age of the application, information about Orrvilon's tax credits in Ohio were not responsive to any question posed by the EDA.
- 78. With regard to the TVA debarment, Holtec reminded the EDA that this matter was already explained in the May 20, 2019 correspondence. Holtec also explained why, under the EDA' sown regulations, the brief debannent would not have affected Holtec' s eligibility to receive a Grow Program award.
- 79. Holtec concluded the August 2019 letter by accepting the EDA's invitation for an in-person meeting so that Holtec could address any remaining concerns that the EDA might have.
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MERL 000696-20 03/23/2020 Pg 18 of 29 Trans ID* LCV2020657886
- 80. In the months that followed Holtec's August 2019 letter, the EDA took no action to set up the meeting that it itself had requested. Nor did it othenvise engage with Holtec to ask any legitimate follow-up questions concerning the matters addressed in Holtec's correspondence.
The EDA instead chose to play a waiting game to ignore its contractual obligations.
- 81. Frustrated by the EDA's breach of the Incentive Agreement, but nevertheless hopeful that the EDA might eventually turn the "squ,irre comers" it is required to by law, on October 9, 2019 Holtec submitted to the EDA a Notice of Claim under the Contractual Liability Act, N.J.S.A. 59:13-1 to -10.
- 82. The Notice of Claim detailed the applicable history of interactions between the EDA and Holtec, reminded the EDA of its contractual obligations to review Holtec's Annual Compliance Report, and informed the EDA that its failure to issue the Letter of Compliance constituted a material breach of the Incentive Agreement. Holtec further informed the EDA that its actions were causing Holtec significant business disruption and damages in light of Holtec's own contractual obligations to transfer the 2018 tax credit to qualified purchasers.
- 83. The Notice of Claim reminded the EDA, again,, that the EDA had requested a meeting with Holtec but had failed to schedule that meeting.
- 84. After the EDA received the Notice of Claim, the EDA advised Holtec through counsel that it wanted to conduct a further "review" of Holtec that would involve document demands, witness interviews, and the like. The EDA did not specify what issues it sought to "review," why those issues were relevant to the EDA' s contractual obligations to issue the required Letter of Compliance, or what the legal basis was for the EDA conduct such an open-ended inquiry.
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MER L 000696-20 03/23/2020 Pg 19 of 29 Trans ID: LCV2020657886
- 85. Holtec is aware of no legal authority for the EDA to conduct the sort of amorphous "review that it proposed. Indeed, Holtec submits that there is no such legal authority and that the EDA proposed this :framework as a delay tactic to avoid having to release Holtec' s 2018 tax credits.
- 86. The EDA promised to share with Holtec a specific list of issues that the EDA believed were relevant and appropriate as part of this "review." The EDA never provided that list
- 87. Near the end of 2019, Holtec reached out to the EDA to schedule the meeting that the EDA had itself originally requested in June 2019.
- 88. On January 6, 2020, the EDA's counsel replied that the meeting-i.e., the one that the EDA itself had requested and that Holtec had been trying for months to schedule-was "premature." The EDA repeated that it might want to perform some sort of amorphous "review,"
and proposed to discuss the matter further.
- 89. To date, Holtec still has not received any details about the proposed re~ew," the legal basis for the,!eview, or how such issues could inform the EDA's obligations to issue the 2018 Letter of Compliance under the Incentive Agreement.
The EDA 's Breach Is Costing Ho/tee Tens o(Millions ofDollars In Damages
- 90. Pursuant to the statute that initiated the Grow Program, incentive recipients are entitled to securitize and transfer their tax-awards to other entities. This mechanism enables, for example, companies to obtain necessary :financing to construct their Grow Program facilities in exchange for transferring future tax credits. It also permits companies to obtain the full benefit of their tax awards if their annual tax liability might be less than the yearly tax credit (such as in the case of nonprofits or startup companies).
- 91. Consistent with the Grow Program statute, Holtec entered into contracts of its own for the transfer of its yearly tax credits. Qualified purchasers lent to Holtec money that correlated
MER L 000696-20 03/23/2020 Pg 20 of 29 Trans ID: LCV2020657886 to the value of Holtec's Grow Program award. In exchange, Holtec agreed to reimburse the purchasers by transferring its annual tax credit each year.
- 92. The EDA was aware that Holtec entered into such contractual arrangements.
- 93. Because the EDA has not timely issued to Holtec the required Letter of Compliance for 2018, Holtec was unable to transfer those tax credits to the qualified purchasers in accordance with the timetables set forth in the applicable agreements. To avoid being in breach of its own contractual obligations, Holtec was thus forced to make cash payments of approximately $26 million to these purchasers. Unless the EDA is forced to comply or reverses its position, Holtec will be continue to be significantly hanned on an annual basis.
- 94. The EDA previously advised award recipients like Holtec that the EDA would work to process their annual filings expeditiously according to a certain timetable. Holtec relied on the EDA's representations when negotiating the terms of its own contracts with qualified purchasers.
- 95. The EDA understood that many purchasers of tax credits under the Grow Program are insurance companies, which have tax-filing deadlines of March I *each year. For that reason, the EDA encouraged companies to submit their annual compliance reports no later than January 15 each year, which would normally allow the EDA sufficient time to complete its review and for the New Jersey Division of Taxation to prepare the annual tax credit certificate prior to March 1.
- 96. The EDA represented to companies that the "EDA will make every effort to assist all companies through this accelerated reporting period" so that companies would have then- tax credits in hand prior to March 1 each year.
- 97. .The EDA disregarded these promises, along with their contractual obligations, when it chose to delay and withhold the credits in breach of the Incentive Agreement.
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MER L 000696-20 03/23/2020 Pg 21 of 29 Trans ID: LCV2020657886
- 98. The EDA also requires that each Company submit payment of the non-refimdable annual servicing fee, which represents two percent (2%) of the annual tax credit amount. This fee is due at the time of Holtec's submission of its annual filings. Additionally, the EDA requires a non-refimdable fee of $500,000 which is due prior to the receipt of the tax credit certificate and which was paid by Holtec.
- 99. Holtec has complied with the payment of all servicing fees to the EDA, but the EDA has nevertheless refused to conduct and complete the review of the 2018 Annual Compliance Report as mandated by the Incentive Agreement.
Holtec Is Entitled to Specific Performance and Direct Damages 100. The EDA, as a governmental entity, has a duty to "turn square comers" in its dealings with private parties and other governments. It is held to a high standard of integrity in the marketplace, and is not at liberty to engage in sharp tactics to disadvantage its business partners.
Thus, in dealing with the public, a government agency must comport itself with compunction and integrity, and not conduct itself so as to achieve or preserve any kind of bargaining or litigation advantage.
101. While certain groups have criticized the Grow Program generally, and the EDA specifically, over the past year, such criticism does not relieve the EDA of its contractual obligations.
102. Holtec is proud of the investments it made in Camden, and its role in the revitalization ofthat city. Holtec is also proud ofits (until recently) collaborative relationship with the EDA, in which the agency in years past acted as a true economic partner that encouraged business development using the grant programs created by the Legislature.
19
MER L 000696-20 03/23/2020 Pg 22 of 29 Trans ID. LCV2020657886 103. Holtec has satisfactorily performed each of its contractual obligations under the Incentive Agreement.
104. In reliance on the EDA's promise to provide $260 million tax credits, Holtec constructed its new facility, invested more than $300 million into Camden (far in excess of the obligated amount), and created hundreds of high-paying quality jobs in New Jersey's most distressed municipality.
105. Holtec timely submitted its 2018 Annual Compliance Report and promptly answered all legitimate questions from the EDA about the contents of that submission. Under the plain language of the Incentive Agreement, the EDA is required to issue Holtec the 2018 Letter of Compliance.
COUNT ONE BREACH OF CONTRACT 106. Holtec incorporates each of the foregoing paragraphs as if fully set forth herein.
107. Holtec and the EDA entered into the Incentive Agreement, which is a valid and binding contract.
108. Section 11 of the Incentive Agreement states that, no later than 120 days after the end of each Tax Period during the Commitment Period, Holtec shall submit to the EDA its Annual Compliance Report.
109. Holtec completed its obligations regarding the Camden project and timely submitted its Annual Compliance Report for 2018 on January 15, 2019.
110. Section 11 of the Incentive Agreement requires the EDA to timely review the Annual Compliance Report and, if satisfactory, issue a Letter of Compliance indicating the amount of that tax credits that may be used for the relevant Tax Period.
20
MER L 000696-20 03/23/2020 Pg 23 of 29 Trans ID: LCV2020657886 111. Holtec submitted the required Annual Compliance Report for 2018, and that annual report was satisfactory, yet the EDA has refused timely to issue the Letter of Compliance for 2018.
112. The EDA 's refusal to issue the Letter of Compliance for 2018 is a material breach of the Incentive Agreement.
113. The EDA's _refusal to issue the Letter of Compliance for 2018 is not excused for any reason under the Incentive Agreement or otherwise by law.
114. The requests by the EDA to conduct an amorphous "review prior to issuing the required Letter of Compliance is without basis in law or fact, and is instead an improper and
'unlawful delay tactic.
115. Holtec has been damaged by virtue of the EDA' s breach of the Incentive Agreement and will continue to be damaged in future years if EDA continues to refuse to issue the mandated Letters of Compliance.
116. Under the circumstances and equities of this case, Holtec is entitled to specific perfoimance of the Incentive Agreement and an order directing the EDA to issue the required Letter of Compliance for 2018.
117. Holtec is additionally entitled to direct damages flowing from the EDA's refusal to issue the Letter of Compliance. These damages include, but are not limited to, interest on the $26 million payment Holtec made to the qualified purchasers, any practical diminution of the 2018 tax credit's value given the EDA's delay, and any other such damages flowing from the EDA's actions.
21
MER L 000696-20 03/23/2020 Pg 24 of 29 Trans ID: LCV2020657886 COUNTTWO BREACH OF IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING 118. Holtec incorporates each of the foregoing paragraphs as if fully set forth herein.
119. Like all contracts governed by New Jersey law, the Incentive Agreement contains an implied covenant of good faith and fair dealing that requires, among other tirings, neither party to do anything that will have the effect of depriving the other party of the benefit of the bargain.
Parties to a contract must adhere to community standards of decency, fairness, and reasonableness, and must refrain from exercising any contractual discretion in a manner that is arbitrary, unreasonable, or capricious.
120. The provision of tax credits under the Grow Program statute :was a material factor in Holtec' s decision to make an investment and locate in Camden.
121. Holtec has satisfactorily performed all of its obligations under the Incentive Agreement.
122. By indefinitely delaying the award ofHoltec' s 2018 Letter of Compliance, the EDA is breaching the implied covenant of good faith and fair dealing by, among other things, depriving Holtec of the benefit of the parties' bargain.
123. Holtec has been significantly damaged by virtue of the EDA' s breach of the implied covenant of good faith and fair dealing, and will continue to be damaged in future years.
124. Under the circumstances and equities of this case, Holtec is entitled to specific performance of the Incentive Agreement and an order directing the EDA to issue the required Letter of Compliance for 2018.
125. Holtec is additionally entitled_to direct damages flowing from the ED.A's refusal to issue the Letter of Compliance. These damages include, but are not limited to, interest on the $26 22
MER L 000696-20 03/23/2020 Pg 25 of 29 Trans ID: LCV2020657886 million payment Holtec made to the qualified purchasers, any practical diminution of the 2018 tax credit's value given the EDA's delay, and any other such damages flowing from the EDA's actions.
COUNT THREE PROMISSORY ESTOPPEL 126. Holtec incorporates each of the foregoing paragraphs as if fully set forth herein.
127. The EDA made a clear and definite promise to Holtec that ifHoltec constructed its state-of-the-art facility in Camden, delivered the promised jobs, and otherwise met its obligations under the Grow Program, the EDA would issue Holtec its annual Letter of Compliance.
128. The EDA further made a clear and definite promise to Holtec concerning the timing in which the EDA would process the company's Annual Compliance Report so that Holtec would have its tax credits in hand prior to March 1 each year.
129. The EDA made these promises with the expectation that Holtec would rely on them.
The EDA wanted to convince Holtec to make a capital investment and locate in Camden, and as part of that process, knew that Holtec needed predictability regarding the timing of its annual tax credits so Holtec could securitize them accordingly.
130. Holtec relied on the ED A's promises by making over $300 million in investments into the Camden facility, delivering the promised jobs, and by structuring its own agreements with
\
qualified purchasers on the assumption that Holtec would receive its annual tax credit by March 1 each year.
131. Holtec's reliance on the EDA's promises was reasonable and foreseeable, and*
Holtec had no reasori. to suspect that the EDA would disregard its promises as it is currently doing.
23
MERL 000q96-20 03/23/2020 Pg 26 of 29 Trans ID. LCV2020657886 132. Based on its reliance, Holtec has been damaged in a definite and substantial way.
Holtec invested hundreds of millions of dollars into the Camden facility in the expectation of receiving its lawfully issued tax credits. Holtec entered into its own contracts with qualified purchasers for the transfer of those annual tax credits. And Holtec was required to make payments of approximately $26 million to those purchascr-s because of the EDA's refusal to issue the required Letter of Compliance.
133. Under the circumstances and equities of this case, Holtec is entitled to an order directing the EDA to issue the required Letter of Compliance for 2018.
134. Holtec is additionally entitled to direct damages flowing from the EDA's refusal to issue the Letter of Compliance. These damages include, but are not limited to, interest on the $26 million payment Holtec made to the qualified purchasers, any practical diminution of the 2018 tax credit's value given the EDA's delay, and any other such damages flowing from the EDA's actions.
24
MER L 000696-20 03/23/2020 Pg 27 of 29 Trans ID: LCV2020657886 PRAYER FOR RELIBF WHEREFORE, based on the preceding allegations, Holtec respectfully requests that the Court enter judgment against the EDA and award the following relief:
- a. Ordering the EDA to issue the Letter of Compliance for the 2018 tax year;
- b. Awarding Holtec direct damages incurred because of the EDA's actions; and
- c. Granting such other relief as the interests of justice may require.
RIKER DANZIG SCHERER
&PERRETTILLP Michael P. O'Mullan Dated: March 23, 2020 25
MER L 000696-20 03/23/2020 Pg 28 of 29 Trans ID: LCV2020657886 RULE 4:5-1 CERTIFICATION I certify, to the best of my infonnation and belief, that there are no related pending matters.
I further certify that the matter in controversy in this action is not the subject of a pending arbitration proceeding in this State, nor is any other action or arbitration proceeding contemplated.
I certify that there is no other party who should be joined in this action at this time.
RIKER DANZIG SCHERER
& PERRETTI LLP c:~e1~ for PlaintiffHoltec International Michael P. O'Mullan Dated: March 23, 2020 26
MERL 000696-20 03/23/2020 Pg 29 of 29 Trans ID: LCV2020657886 DESIGNATION OF TRIAL COUNSEL Pursuant to Rule 4:254, Michael O'Mullan is hereby designated as trial counsel for the 1.
. . ff.m tbi s action.
Pl amti RIKER DANZIG SCHERER
& PERRETI'I LLP
- G!m~*~~ for Plaintiff Holtec International Michael P. O'Mullan Dated: March 23, 2020 CERTIFICATION PURSUANT TO R.1:38-7{c)
I hereby certify that confidential personal identifiers have been redacted from documents now submitted to the Court and will be redacted from all documents in the future in accordance with Rule 1:38-8(b).
RIKER DANZIG SCHERER HYLAND & PERREID LLP Michael P. O'Mullan Dated: March 23, 2020 512l312Vl 27 r
ExhibitD DASrl'l, MURPHY, McGUClON, ULAKY, l{OUTSOURIS & CONNORS Jerry J, Daeti t A Professional Corporation G1'0gory P. lloGucktu Of Co1.msel Christopher K. Kouleouris A Tax ID 22-3450668 Charles E. Schlager, Jr.+
Robnrt E. ffiaky co:j: www.dmmlawfhm.com Goorgo F, Murphy, Jr, re il Chri8top her J. Connors Elizahoth Alaokolin Daati:):
Timothy J, MoNiohols t MutinJ. Buckley Reply to: Forked Riva* Office Forked River Offieei Kalsey A. MoGuoldn-Anthony 620 West Lacey Hoad Thomae E. Monahan 1t 620 West Lacoy Road Forked River, NJ 08731 Patriok F. Varga P 609-971-1010 Forked River, NJ 08731 F 609-971-7098
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l>c.rtifi.d AlllnMpal C<>urt L,u*Attorn,:, P 609-9'71-1010
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<Oil.Ieutbtr, i\'mfuool ,1.n,,1,..l of Elder La,.. Toms Rivor OffiClll All~ Email Address: jdasti@dmmla.wfnm.com 506 Hooper Avenue tNJTLG,t M*nirip,rl IAw Dipl-o Toms River, NJ 08754 Qdf.,,,1-ofNJ "nd FLA Bar tU,mim-ofNJ m,J PA Bar May 27, 2020 P 732-349-2446 Wcwrb.raf NJ ffl NY Dar F 732-349-1590 Honorable Francis R. Hodgson, Jr., P.J.Ch.
Ocean County Court House 206 Courthouse Lane Courtroom No. 18, l st Floor Toms River, New Jersey 08753 RE: Lacey Township v. Holtec International and Holtec Decommissioning International Docket No.: TBD
Dear Judge Hodgson:
Please be advised that this office represents the Plaintiffs, Township of Lacey and Lacey Township Committee with regard to the captioned matter. Pursuant thereto we enclose the following documents:
- 1. Verified Complaint
- 2. Memorandum of Law
- 3. Proposed Order to Show Cause Seeking Temporary Restraints; and
- 4. Proposed Form of Order.
By copy of this letter one (1) copy of the enclosed has been forwarded to Richard Hunt, attorney for the Defendants.
Please review and if acceptable advise as to the return date of the Order to Show Cause. Please retum one (1) copy of that Order to our office and we will promptly forward a copy to Mr. Hunt.
In the event that Your Honor has any questions or we could be of additional assistance, please do not hesitate to contact our office.
~11 JERRY~ASTI JJD/nc Enclosures Cc: Richard Hunt. Esquire (w/enc.) via email Vel'Dnica Laureigh, Clerk/Administrator (w/enc.) via email Honorable Steven Kennis, Mayor (w/enc.) via email Christopher Reid, Director of Community Development (w/enc.) via email
DASTI, MURPHY, McGUCKIN, ULAKY, KOUTSOURIS & CONNORS, P.C.
I JERRY J. DASTI [I.D. 005441973]
620 West Lacey Road Post Office Box 1057 Forked River, New Jersey 08731 (609) 971-1010 FAX (609) 971-7093 Attorneys for Plaintiffs, Township of Lacey, a body politic, And the Township Committee of the Township ~fLacey TOWNSHIP OF LACEY, a body politic, and i SUPERIOR COURT OF NEW JERSEY THE TOWNSHIP COMMITTEE OF THE i CHANCERY DMSION TOWNSHIP OF LACEY i OCEAN COUNTY I
I Plaintiff(s) i DOCKETNO.:
I I
I I
I Civil Action vs. I I
I I
I I
I VERIFIED COMPLAINT HOLTEC INTERNATIONAL and HOLTEC : I DECOMMISSIONING INTERNATIONAL : I I
I Defendant(s) I I
I I
The Plaintiffs, Township of Lacey, a body politic and the Township Committee of the Township of Lacey (hereinafter collectively referred to as the "Township") by way of Complaint against each and both of the Defendants states as follows:
FACTUAL BACKGROUND
- l. Upon infonnation and belief, Holtec International is the ctment owner of DA81'1 1 MURPHT M<IOUCKJR' llLAKY, property known and designated as 800-804 South Main Street, Lacey Township, New Jersey.
KOllTSOORIB a, COKII0118 C01JH!IIUORI AT I.AW
- 2. The site is the location of the former Oyster Creek Nuclear Generated Facility 620 WIS!' I.ACEY 110AD P.O. llOX IO!ff (hereinafter referred to as the "facility',). ,
PORKf:D RM:R, N.J. 0&131
- 3. Upon information and belief, the Defendants have acquired the property from I
the p1ior owner w~th the intent of decommissioning the facility and as a result storing spent nuclear fuel rods on the property.
1
- 4. Plaintiffs are the duly authoriz.ed and elected representatives of the Township of Lacey.
- 5. The predecessors of title were Jersey Central Power and Light Company and thereafter Exelon Generating Company, LLC (hereinafter refer.red to as "JCP&L,, and "Exelon" respectively).
- 6. When the property vvas owned by, and the facility was generating electricity as a result of the nuclear power plant, JCP &L applied to the Lacey Township Board of Adjustment for an approval for an independent spent fuel storage installation at the facility (see Resolution of the Lacey Township Board of Adjustment Appeal No. 93-40 attached hereto as "Exhibit Dtl).
- 7. Pursuant to the aforementioned Resolution, approvals were granted to JCP&L as requested.
- 8. Thereafter, the successol' in interest to the property and the facility, Exelon, applied to the Lacey Township Planning Board for approval to expand "the independent spent fuel storage area by removing existing pavement and construction of two 26' wide x 159' long and 3' deep concrete bases to supp01t 28 additional prefabricated horizontal storage modules to house spent fuel rods", (See "Exhibit E" attached hereto).
- 9. As a result of the application to the Lacey Township Planning Board, approvals were granted by the Planning Board in accordance with Resolution No. lO"SP--05 (See "Exhibit I>Am,llfOJU'HY lfoQU()HIR, ULAKY, KOOTSOVRIII a. COIOIORB E" attached hereto).
COUIIIJllLI.ORIIXfLAW
- 10. In January of2018 Exelon entered into an Administrative Consent Order (ACO) 620 Wl!lST l.AetY llOt,D P.O.l!OX 1037
~RIYA,ll.J.08r.,I with the New Jersey Department of Environmental Protection (See "Exhibit p* attached hereto), The ACO, in general terms, provided for the closure of the facility in accordance with appropriate regulations, and the eventual disposing of the spent nuclear fuel rods.
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- 11. By letter dated April 13, 2020 a representative of the Defendant, Holtec Decommissioning International ("Exhibit O) authored the letter to Mayor, Steven Kennis indicating that Holtec would be looking for an "expansion to the IFSCI Pad". Mr. Jeffery P.
Dostal, Vice President of Holtec indicated that "a permit application has been filed for with Lacey Township".
- 12. A "Controlled Decommissioning Equipment Change Package" (See "Exhibit H" attached hereto) (hereinafter 11 CDECP") at Page 1 of 19, stated that the "Problem Statement
was:
For the remaining spent fuel in the fuel pool, Oyster Creek Nuclear Generating Station (OCNGS) will be shifting dry fuel storage activities from NUHOMS Horizontal Storage Modules (HSMs) over to Holtec's HI-STORM FW XL System. The existing Independent Spent Fuel Storage Installation (ISFSI) Facility at OCNGS is not able to adequately store the number of casks needed to support dry fuel storage operations during plant decommissioning. In addition, due to Holtec HI-1RAC transfer cask height and building clearance restrictions, transfer of the spent fuel loaded Multi-Purpose Canister (MPC) to the HI-STORM FW XL storage overpack cannot be perfom1ed inside the reactor building.
- 13. The "Solution Statement0
- on the same page of CDECP states:
In order to transition spent fuel transfer and storage operations to Ho1tec*s lll-STORM FW XL system, a new but' separate ISFSI Pad will need to be constructed near the existing ISFSI facility. This new pad will be in accordance with applicable 10 CFR 72 requirements, site-specific design considerations and the Holtec lll-STORM FW XL Cask System and Pinal Safety Analysis Report (FSAR). The new pad will be designed DA8TJ, M'OIU'HT Jlo<ltll:IIWf, 11LAKY, to accommodate a maximum of 20 HI"STORM FW XL casks and 5 HI-
"91"J'II001lI a, OOIUIOJUI SAFE casks, A Canister Transfer Pit (CTP) will be constructed adjacent
<lOOll8EWlell ,a tJ,il to the ISFSI Pad for the purpose of transferring the MPC between the HI-TRAC transfer cask and HI-STORM overpack.. ln addition, a 6ll0Wlll!ll' Ll,Ci,"V RG'I>
concrete Access Road/Approach Slab will also be designed and installed to accommodate the transport processes of the loaded transfer cask to the CTP,-and of the storage overpack to the designated storage location on the new ISFSI Pad.
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- 14. As a result of the aforementioned, the Defendants applied to the Lacey Township Planning Board for site plan approval in order to obtain permission and approval to undertake the necessary work in order to comply with the requirements of the ACO and CDECP, as well as other Federal and State regulatory requirements.
- 15. The application for approval was submitted to the Lacey Township Planning Board in the Fall of2019.
- 16. In the approximate 19 pages attached to the CDECP was Attachment 9.
Attachment 9 listed the outside agency approvals which Holtec anticipated would be necessary in order to obtain approval for the new large concrete pad. Those permits which Holtec confirmed it would need, as of November of 2019, included Planning or Zoning Board approvals from the County of Ocean, Ocean County Soil approval, and CAFRA approval from NJDEP.
- 17. Attached as "Exhibit J>> is the "Interface Department Comment/ Impact Review Form.'\ In paragrap~ 1, Holtec admits "Yes. The new pads can potentially impact the existing ISFSI facility". (
- 18. Lacey Township has incorporated by reference the Uniform Construction Code into and therefore the UCC is part of the Lacey Township Building Code. The Uniform Construction Code, set forth in NJ.A,C. 5:23-l.4(a) provides in part:
DMTI, *oRPHY lf.oGtJCKiff, Oi:.Ak'r' KOOT801JJWI II COll'lfORII Construction Permits - When Required cot1!181!1.l.OM IJ l.wl "It shall be unlawful to construct, enlarge, repair, renovate, alt~r, l'.O.D0Xlll!i7 reconstruct of demolish a structure, or change the use of a building or structure, or portion thereof... 't.
The Administrative Code at N.J.A.C. 5:23-1.4 defines a structure as 4
"A combination of materials to fonn a construction for occupancy, use or ornamentation, whether installed o~ above, or below the surface of a parcel of land; provided the word "structure" shall be construed when used herein as though follovved by the words "part of parts thereof and equipment therein unless context clearly requfres a different meaning."
Therefore, permits are required before a "structure., as defined herein, can be permitted.
19, In 2020 the Defendants withdrew the application for site plan approval which had been submitted to the Lacey Township Planning Board. No further applications to the Lacey Township Planning Board or, upon information and belief, to the Ocean County Planning Board or the Ocean County Soil Conservation Commission have been submitted.
- 20. It became clear to the Plaintiffs, notwithstanding the refusal to obtain any necessary permits or approvals, that the Defendants were undertaking construction work to house the spent nuclear fuel rods on the site.
- 21. As a result thereof the Plaintiffs attorney authored a letter to the attorney for the Defendants, Richard W. Hunt, dated May 15, 2020 (Exhibit J) that letter provided in part on page 2:
It is abundantly clear that a pennit is 11eeded to constl'Uct what we understand to be a large slab of concrete which will house the spent nuclear fuel rods. We are infonned that your client is building structures into the ground, by excavating a substantial area which presumably will thereafter house the spent fuel rods. In addition, the application submitted on behalf of your client to the Lacey Township Planning Board for site plan approval in December of 2019 (see DM'tf,MURPHY lll!oOOOllllf, UI.AltY.
attached Exhibit A) included a permit issued by NJDEP on November 15, 2019 KOUT&OUJWI II> COlffiOR8 which described the authorized activities as:
~ /Cf I.AW "Construction of a new pad for independent spent fuel storage 020 'l,'&lll' lACSY lllMD P.Q. IK>>C 1061' installation expansion, diiveway alignment, and a new 40 ft. by
~ RIYEll. tt.J. cent 55 ft. security building. This project is entirely within the existing developed portions of the site. There will be no net increase in impervious coverage.,.
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- 22. Site plan approval and permit approvals are requh-ed for the Defendants to undertake the work which is currently being performed on the property, in accordance with the provisions of285-l of the Lacey Township Code (Exhibit B).
- 23. In addition, Section 297-17 of the Township Code requires permits for lot grading (Exhibit* C), Notwithstanding the clear requirement to obtain approvals and permits from various regulatory agencies, Defendants continue to perf01m this illegal work on the site.
- 24. As a result thereof, Plaintiff was compelled to issue a Stop Work Order on March 27, 2020. The issuance of the Stop Work Order caused the Defendants to file an Appeal to the Ocean County Construction Board of Appeals on or about April 17, 2020.
- 25.
- A Hearing before the Ocean County Board of Appeals has not been scheduled.
- 26. Upon infonnation and belief, as of May 20, 2020 Defendants continue to improperly perfonn work at the site which includes burying of spent nuclear fuel rods and expansion of the site to which the fuel rods are to be buried. Upon inf01mation and belief, Defendants have filled in the remainder of the transfer pit with concrete. It is a hole about 25' by 25' and 15' deep. It is intended to house 24 new casks with 6-8 nuclear rods in each cask.
COUNTI
- 1. Plaintiffs repeat and reiterate all of the allegations set forth hereinabove:
- 2. Defendants are clearly in violation of the Lacey Township Code and various DASTI, MUllPHT Mo0110Kllf 1 ULAKT, KOUTIIOU1ll8 & COlfflORS regulations of and agreements with other regulatory agencies including but not limited to the COUl!S!LLORll ltr LAW County of Ocean and the New Jersey Department of Environmental Protection, 6l!O Wl!llT LMl6\' ROIID P.O. BOX 1061' l'OliDD RIVEll. N.J, Cl8f31 3. Defendants clearly are required to obtain appropriate approvals from various boards and agencies before undertaking the work which is now ongoing.
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- 4. Upon infonnation and belief, notwithstanding the aforementioned Stop Work Order, Defendants continue to construct structures meant to house the spent nuclear fuel rods on the site.
- 5. The activities of the Defendants on the site are clearly a violation oflaw, and an Order must be entered compelling the Defendants to Show Cause why a Temporary and thereafter Pel'manent Injunction should not be issued until Defendants obtain all required regulatory approvals.
COUNTil
- 1. Plaintiffs repeat and reiterate all of the allegations set forth hereinabove.
- 2. The actions of the Defendants as set forth hereinabove are egregious and could cause substantial harm to the citizens of Lacey Township and adjoining Ocean Township, not to mention the citizens and residents of Ocean County, 3, Defendants must be compelled to stop any and all work on the site as set forth hereinabove until all regulatory agency approvals have been applied for and approved.
COUNT ID
- 1. Plaintiffs repeat and reiterate all of the allegations set forth hereinabove.
- 2. As a result of the illegal and improper actions of the Defendants, the Township has been substantially damaged.
I>A.8Tl 1 ?4UJlPHY HoOIWI', ULAKY 1 KOU'l'liOlllU9 Ill COJl'IIOJUJ 3, The Township has been required to expend substantial attorney's fees and COOli!IIILI.Oltll Kr LAW costs of suit to restrain'the Defendants from continuing illegal activities.
620 Wl!ff LAC1N ROl\O P.O. 80l( lo&f
~RICID RIVl:II, II J, OIT31 4. In addition the employees of the Township, including but not limited to the Building and Construction Department, Township Administrative Department, and other 7
employees of the Township have been required to expend substantial amol;Jnts of time with regard to this issue.
- 5. All of the efforts expended have been at a substantial cost to the Lacey Township taxpayers.
- 6. AB a result thereof the Township has been and continues ta be damaged.
WHEREFORE. Plaintiff demands judgment against each and both of the Defel'\dants as follows:
- 8. A TemfX>!'ary and thereafter Permanent Restraining Order prohibiting the Defendants from continuing to undertake any work on the site unless and until all necessary approvals and pennits have been obtained; b Assessment of Counsel fees and costs of suit; and
- c. Any other relief which this Court deems equitable and just DASTI, MURPHY, McGUCKIN, ULAKY,.
KOUTSOURIS & CONNORS I Attorneys for Plaintiffs, Township of Lacey, a body politic, and the Township Committee of the Township of Lacey DA&Tf,flJllKPlff llloOVOJtm, 'D'LAXY, rr Dated:- _ __, 2020
~*J7 By:_~ - - - - - - - ~ - - - - - - -
KOUT80tnlhl * (lomrmta JERRYJ.DASTI,ESQUIRE
~-lrrl.AW IIQl!ftll'l'J.Aca'll(WJ P.0.ll<ll)! I06T l'OliXl!D RIVSR,11..1. 03731 B .
CERTIFICATION PURSUANT TO RULE 4:5-1 I hereby certify that to the best of my personal knowledge the within claims of Plaintiff are not the subject of any other action pending in any court or arbitration proceeding and no other action is contemplated. Plaintiff further certify that no parties are known who should be joined in the within action. Defendants are hereby requested to disclose, as required by Court Rule, whether said Defendants are aware of any pending actions involving the subject matter of Plaintiff's Complaint.
DASTI, MURPHY, McGUCKIN, ULA.KY, KOUTSOURIS & CONNORS Attomeys for Plaintiffs, Township of Lacey, a body politic, and the Township Committee of the Township of Lacey
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Dated:~O CZl/1 JERRY 1DAS$?ESQUIRE ""
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VERIFICATION BY CERTIFICATION
- 1. I am the Lacey Township Administrator and the Lacey Township Clerk. I am familiar with the facts concerning this matter. I have reviewed the Complaint herein.
DUTl1 MORPHY MoOIJCKDf, ULAKY1
- 2. I certify that the foregoing statements made by me and the statements set forth KOUTIOVRIII
- OOIUl'OR8
~/I.Tl.AW in the Complaint are true to the best of my knowledge, information and belief. I am aware that 6~0 WEST LACllY ROAD P.O. OOX 10$7 if any of the foregoing statements made by me are willfully false, I am subject to punishment.
l'Oi!ICB1) l!!YIR, 11.J. 08731 Dated: _ _, 2020 VERONICA LAUR.EIOH, Township Administrator/Clerk 9
required by Court Rule, whether said Defendants are awaro of any pending actions involving the subject matter of Plaintiff's Complaint.
DASTI, MURPHY, McGUCKIN, ULAKY, KOUTSOURIS & CONNORS Attorneys for Plaintiffs. Township of Lacey. a .
body p<Jlltio, and the Township Committee of the Township ofLacey Dated:_. 20~0 By: _ _ _ _ _ _ _ _ _ _ _ _ _ __
JERRY J. DASTI, ESQUIRE VERIFICATION BY CERTlFICATION
- 1. I am the Lacey Township Administrator and the Lacey Township Clerk I am familiar with the faots concerning this matter. I have reviewed the Complaint herein.
2, I certify that the foregoing statements made by me and the statements set forth in the Complaint are true to the best ofmy .knowledge, information and belief. I am aware that if any of the foregoing statements made by me are willfully false, I am sub eot to punfshm.ent.
Dated: ~i1. 2020 DAl!ll, r.llA<PIIY Mo8UOKIN, WKY, KOUTDOURIS &OONNOIUI
~UOIW>;(Vlfl MOv.wTI.N:M!ffl01ID PAIKll(ln!l' FURm! IIMlR. IU087S1 9
EXHIBIT 'A'
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STATE OF NEW JERSEY DEPARTMENT OF ENVIllONMRNTAL PROTRCTION DIVISION OF LAND USE lmGULATION Mall Code 501~02A. P,O, Box 420, Trenton, New Jersey 08625--0420 Tclephooo: (609) 717;-0454 or Pax: (609) 771-3656
- WWW,ttj ,gov/dep/la:nduse PERMIT Penuit Nnmher(s): Typ~ of Approval(s): EJU:1bllng statute(s)1 NJ.S.A. 12:3-1 et~.
1512--07-0032.1 LuP190001 CAFRA Individual Pernrlt-Commeroial/.fndustcy!Public NJ.S.A. 12:5--3 N.J.S.A, h:19-1 et seq.
N.J.S..A. 13:lD-(etseq.
NJ.B.A. 13:lD-29 etooq.
NJ.S.A. 13 :lD-9 et seq, N,J.S.A. l3:9A-1 et seq.
Received and/or Recorded
,by County Cle.l'k:
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EXHIBIT 'B'
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5/13/'l020 Township of Lacey, NJ Sita Plan R9Vlew Questions about eCode360? Municipal users Join us dally between 12pm and 1pm EDT to get
[HISTORY: Adopted by the Township Committee of the Township of Lacey 5-17-1974 as 01. 90 of the 1974 Code; amended In Its entirety 12-17-1976, Subsequent amendments noted where applicable.]
INERAL REFERENCES Munldpal Utllltles Authority - See Ch. 73, Planning Board - See Ch, 89.
Land use procedures -See Ch. 215.
Subdivision of land - See Ch. 297.
Zoning - See Cl). 335.
§ 285-1 Site plan required; review.
[Amended 12-18-1980 by Ord. No. 30-80; 6-24-1993 by Ord. No. 93-58; 12-8-1994 by Ord. No. 94-52; 12-22-1998 by Ord. No, 98-48; 2-9-2012 by Ord. No. 2012-05]
A, Approval required.
(1) Except as hereinafter provided, there shall be no bulkllng permit or certificate of occupancy Issued for any new construction or for any enlargement, alteration or addition to any existing structure for any commercial or Industrial use, office building. garden apartment, apartment or structure designed for multlfamlly use where such use or uses are permitted by the Chapter 335, Zoning, of the Code of the Township of Lacey, unless the developer submits a site plan to and final approval Is granted pursuant to a resolution of the Planning Board; provided, however, that a resolution granting final site plan approval by the Zoning Board of Adjustment shall substitute for that of the Planning Board whenever the Zoning Board of Adjustment has Jurisdiction over site plans pursuant to NJ.S.A. 40:55D~76(b) and Chapter 335, Zoning, of this Code. No certificate of occupancy shall be given unless all construction conforms with the approved site plan.
(2) Any change of use of an existing site requires site plan approval by the approving authority, The site must confonn to the off-street parking requirement for the proposed new use as set forth elsewhere In this Code. Any addition>
expansion or alteration to an off-street parkJng are~ access drive or buffer shall require site plan approval. Any construct/on of a new off~street parking area, loading or storage area or drive which may or may not Include the construction or alteration of a structure requiring Issuance of a building permit shall also require site plan approval.
B, Site plan approval shall not llmlt the requirements for subml!!slon of an appllcatlon to the appropriate Board for subdivision, conditional use approvals and/or any and all variances that may be required either by ordinance or pursuant to state statute.
- c. Any change of an existing use to a use described above shall also require final site plan approval regardless of whether such change of use requires any new construction.
D. The provisions herein shall not apply to detached one- or two-famlly dwelflng unit buildings.
E, Each application for site plan approval, when required pursuant to Section 8 of P,L 1968, c. 285 (NJ.S.A. 40:27-6.6), shall be submitted by the appllcant to the Ocean County Planning Board Jar review or approval as required by the aforesaid sections, and the Planning Board shall condition any approval that it grants upon dmely receipt of a favorable report on the appllcatlon by the Ocean County Planning Board or approval by the Ocean County Planning Board by lts failure to report thereon within the required time period, F. The Planning Board, when acting upon applications for prellmlnary site plan approval, shall have the power to grant such exceptions for the requirements for site plan approval as may be reasonable and wlthln the general purpose and Intent of the provisions herein and within the provisions of NJ.S.A. 40:550"1 et seq.1 If the literal enforcement of one or more provisions of this chapter Is Impracticable or wlll exact undue hardship because of peculiar conditions pertaining to the land In question.
The Planning Board shall have the power to review and approve or deny condltlonal uses or subdivisions simultaneously wlth the review for site plan approval without the developer being required to make further appllcatlon to the Planning Board or the Planning Board being required to hold further hearings. The longest time period for action by. the Planning Board, whether It be for subdlvls.lon1 conditional use or site plan approval, shall apply. Whenever approval of a conditional use Is htlps://ecods3B0.com/5081682 1/20
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EXHIBIT 'C'
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5113/2020 Township of Lacey, NJ AppDoaUon and Approval Procedure Questions about eCode360? Municipal users Join us dally between 12pm and 1pm EDT to get t.
q 297-3 County approval; exceptions to requirements; simultaneous review and approval.
A, Each appllcatlon for subdMslon approval, when required pursuant to Sections of P.L. 1968, c. 285 (NJ.S.A, 40:27-6,3), shall be submitted by the appllcant to the Ocean County Planning Board for review or ~pproval as required by the aforesald section, and the Planning Board shall condition any approval that It grants upon timely receipt of a favorable report on the application by the Ocean County Planning Board or approval by the Ocean County Planning Board by Its fallure to report thereon within the required time period.
B, The Planning Board, when acting upon an application for preliminary or minor 11ubdMslon approval, shall have the power to grant such exceptions from the requirements for subdivision approval as may be reasonable and within the general purpose and Intent of the provisions for subdivision review and approval, If the llteral enforcement of one (1) or more of the provisions of this chapter Is lmpractlcable or wlll exact undue hardship because of pecullar conditions pertaining to the land In question.
- C. The Planning Board shall have the power to review and approve or deny conditional uses or site plans simultaneously with review for subdivision approval, without the developer being required to make further appllcatlon to the Planning Board or the Planning Board being required to hold further hearings. The longest time period for action by the Planning Board, whether It be for subdivision, conditional use or site plan approval, shall apply. Whenever approval of a conditional use is requested by the developer pursuant to the Munlclpal Land Use Act,C1J notice of the hearing on the plat shall Include reference to the request for such conditional use.
[ 1] Editor's Note: See NJ.s.A 4o:s5D-1 et seq.
§ 297-4 Standards for consideration of subdivision applications.
The Planning Board shall consider applications for subdivision approval If the detailed drawings, specifications and estimates of i application for subdivision approval conform to the standards establlshed herein:
A. The details of the subdivision appllcatlon are In accordance with the standards of Chapter 335, Zoning, and any and all other ordinances of the Township of Lacey which may be In existence at the time of the application, and In harmony with the offlciallyaaopteaEompreheiislve Masterl>faii ol the towrislifp of Lacey which may hereafter be-aaopted.
- B. The application complies with the requirements of NJ.SA 40:550-gB.
C. There are provisions, If required, for off.tract water, sewer, drainage and street Improvements which are necessitated by the subdMslon application, with any contributions for the cost of the same to be computed In accordance with N.J.S.A. 40:550-42 and Chapter 215, Land Use Procedures, of this Code.
D. Provisions for standards to encourage and promote flexlblllty and economy In layout and design to the use of planned unit development, planned unit residential development and residential cluster, provided that such standards wlll be appropriate to the type of development permitted and provided further that an ordinance shall be adopted by the Township of Lacey setting forth the llmlts and extent of any special provisions appllcable to such planned developments,
- E. In the event there is a development which proposes construction over a pertod of years, provisions ensuring the protection of the Interest of the public and the residents, occupants and owners of the proposed development In the total completfon of the development.C1J
[1] Editor's Note: Former§ 93-s, Costs and fees, as amended, which Immediately followed this section, was repealed 7-23-1987 by Ord.
No. 33-87, For current provisions, see Ch 211, Land D_evelopment Fees. *
§ 297~5 Minor subdivision applications.
1 In the event an application Is made for a minor subdivision as heretofore defined, the Planning Board or Its Subdivision Committee may waive notice and publlc hearing for an appllcatlon for such development upon a finding that the application for development conforms to the definition of "minor subdivision' as defined In N.J.S.A 40:550-5 and§ 297-2 of this chapter.
Minor subdivision approval shall be deemed to be final approval of the subdivision by the Board, provided that the Board or https://acode360.com/6063190 1/12
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EXHIBIT 'D'
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llBSOLUfXOH OF 'l'HI LACEI lfOHRSHIP BOARD or ADJUM'MEN!!
Appeal #93-10 HHER.tA8 1 Jersey Central Power & Light Co,, whose mAiling address le 300. Madison Avenue, Worrlatown, New Jersey has applied for a use variance pursuant to N,J,S,A, 401550-?0(d) and amended preliminary and ~inal alts plan approval for premises located at Block 1001 1 -Lot 4 as shown on ~ax ijap 53 of the To'Wnship of Laoey1 and waerums, eucb' proof of servioes as ffl4Y ba required by the New J~rsey statutory Law and ToWnsh!p o~dinance requireiaents upon appropriate, property owners and governmental bodies has been duly furnished1 and 0
WHBRBAS, the ~ppl loa.tion was declared oomplete on Hov&mb&r 3, U931 and the. applioant consented t*o .extend the eta*tutory tinle li*ita to ipril 1, 19941 and
- NHERE~, Public Bearings were held on said application on Februa.ry 28 1 ,1994, H~rch 7,. 1994 and Marob 21 1 1994, in the I
Municipal Building of the Township of Laoey and teetl1110ny and exhibits were presented on behalf of the applica~t and all
- interested parties have been heard, and lllUUUilAS, said Board having considered said application, testimony and exhibits submitt~d*and inspection ot the site, if any, 11akee *the_ following findings r I\PPLICA!ff WBSZINOKI
- 1. ~e applicant, Jersey central Power, Light Co. (JCPL)
!a the owner of Bloo'k: 1001, Lot 4 in th~ 'l'Ownship o:f Lacey. '!'he atreet addre11s*is knOW!?, as 800 South.Main Street, lloUtG 9, Jorked River, Hew Jersey. 'l'h~ present site consists of appronmately .
758 ao:rea on*whioh is located the Oyster Creek Nualear Generating Pl.ant, operate<;\ by GPU NUolear Co:r:pora~ion (GPU). The property is looated in the K-ti ~ne. 'l'he*K-15 zone no longer allows fo1:
nuolear faoilities or nuoleu operAting f~oilities as rm approved 1
I
'".\'
'r
~*
~
{f I> '
use, is presently A non-confoming use in the MM6 zone, 2, The applicant seeks a use variance, pursuant to N.J,B,A, 40t55D-70(d) 1 as well aa amended preli~inary and final site plan approval tor an independent spent fuel atorage installatio n at the oyster creek facility, The applicant aeeks to oo~etruot twenty (20) pre-fabric ated concrete storage modules.
~heae lllOdules ahal1 be placed on a base raat and approach slab.
Bach of the oonorete storage iaodulee oan accollll\Odate fifty-two (52) used spent fuel asaelllhliee.
The Bmlrd'a engineer prepared a report on the application and site plan dated November 30 1 1993 wbioh addressed the request for waivers and found that the site is comprised of 758 aoree and significan tly exce9da -all ~he bulk requiremen ts of tbe M-6 zone.
All lll.inimu:m requir&d ~etbacks to the proposed facility are also exceeded 1n the proposal, 'l'he .report alBo fo11nd the site plan appiicatio n requirements were met with the exception of those wherein a waiver was requested.
3, The applicant presented the following teethlony and 0
evidence on.its behAlfs A, connencing in 1969, the oyster Creek Plant's storage capacity tor sp&nt fuel rods in a wet pool was 840 assembl~es, Initially it was anticipate d that spent fuel would be etored on _site for a short period of ti.Jne and it would be ehl~ to a reprooessi n9 facility. 'I!ha initial oapacity of the wet pool storage was determined based orl the abil1~ to reprocess eo1ne of tbe spent fuel, Because reprocesei ng was abandoned by the federal,gov ertllltent and the
~uoI!14r oommunity ,'additiona l storage at the site was needed
.and the ve~ pool wu redesigned to_ aoOODllOdate additional fuel. By 1986 the ~ density raoks were ~natalled whioh provided tor storage of 2,600 aseeinbl!ea .
2
mandated tna-c l.n~ ""II'""'
..,....,.v The fed era l gavern11ent hae I *
- B.
for spe nt manent dis po sal fa cil ity of Ine rgy est ab lis h a per pe ars ver y fue l, _According to the Ap pli can t'e ex pe rt, it ap wi th the ent of Energy wi ll comply un lik ely tha t the Departm int eri m, d.b y Co ng res s, In the 1998 de ad lin e est ab lis he po nsi ble tea tha t ut ili tie s are res fed era l leg isl ati on !lmnda the spe nt fue l on the sit e of far pro vid ing eto r~g e of t
Nuclear wa ste Po lic y Ao ex ist ing rea cto rs. The op tio n, ifi oa lly ide nti fie s dty sto rag e aa an av ail ab le ep eo the yea r the pre sen t tim e un til It is est ilf tat ed tha t from 3 600 have ge ne rat ed a to tal of 1 2009, Oy ste r cre ek wi ll lic en se from Oyst&r cra ek ' 11 ex ist ing ape nt fue l asseJObliea, the y~ ar
' Nuole~r Re gu lat ory COll!IRieaion (NRC) ex pir es in the . ion al ,on -si te sto rag e for 2009. Aocordfnqly, ad dit req uir ed at xim ate ly 1,0 00 spe nt fue l ass em bli es ia now ap pro l po ol Must be ma int ain ed to of f-Oy ste r Cr eek , The we t fue son s, cto r co re fo r saf ety rea loa d al l fue l from the rea de tem ne d ion of -new rac ks , it wae Af ter the las t ins tal lat ld no t an en gin eer ing pe rsp ect ive tha t the wat po ol cou from e,
be expandGd tur th~ r to pro vid e ad dit ion al sto rag bo th wet
- The ap pli can t tea tit fed tha t the y ev alu ate d c.
e ad dit ion al ve s av ail ab le to pro vid and dr y sto rag e alt ern ati ile bo th we t oit y, They found th at wh spe nt fue l sto rag e oa pa dry vid e sa fe sto rag e, the and dry sto rag e systems pro d de dg n, sim ple r, lee s co mp lic ate stora_ge eyet8llUI off or a
~ do no t eta .ra ge teo bn olo gie e are pa stl ive de sig ns tha
'l'he dry rs, and fan s nts, such as pwnpa, 1110to req uir e ao tiv e c0111p0n~
ing to the en sur e pro pe r op era tio n, In ad dit ion , aao ord to s
sto rag e ayateJ11s are les ap pl i~ t, the pa ssi ve dry ep en t' fue l pe nsi ve to ins tal ~ and lllAintaln tha n a new we t ex po ol, gh t The ap pli oa nt thr o~ gh its pa ren t company GJ?U sou D,
3
bide on the dry etorac;ie teonnology, Toe:r- onose i::.ne ttuut111u1 dry storage technology design by Paoifio Nuclear Fuel ServiQea Company, Ina, The applicant believes that the Nuho~s system is a simple, reliable and passive ayatem which stores spent fuel roda a~ve 9round in concrete modules, The Nuhoma.system ls subject to approval by the Nuclear Regulatory Colllltliesion.
R, ~he Nuhome system is presently being utilized at three other nuclear generating plants, two in south Carolina and one in Maryland, According to the applicant these faoilitiea have revealed no problems and they are confident that the Nuhoms system is the moat technically advanced and I
safe available at present,
- r. The applicant offered teohnioal Worination that the dxy storage technol09Y is simple with relatively no maintenanae, ~he concrete modules are bapaot resistant structures whioh oan withstand normal and abnortMl conditions, including earthquake,, tornadoe, flooding and other natural phenolMl~a. '.l'heeo module* would be monitored in aooordanoe with NRC regulations, a, .In addition, the appliC4nt ohoae the Nuhome design in the hopes that it ?eY faoilltate off-site ehipment of the spent fuel to a pe~nent federal depoaitoxy,.
H, The appl~oant _presented furtbe~ testilllOnf that the Nuhoms module ooinplies with on-site and off-site radiation dose lWta required by the appropriate regulations. Under pre~ent f&deral retJUlations, pet'Jlliselble radiation limits at the owner oontrolled boundary of oyeter Creek are 25 mremf;ye~r and 100 tnrem/yea.r. Presently, the total radiation dose from the Oyster Creek.facilit y is lees than 1\ of these limits. Even with the addition of the dcy storage facility,
- oyster Creek will oontlnu& to be bel0w 1, of these limits, 4
I, JCP&L 1a p.llrnn1.ny vu .. ~_.. .. .., - .. - .* -.
- modules providing a-total of 11 040 fuel assembliee storage.
Eaoh oanisf.er/module holds fitty-two (52) fuel assemblies, The NRC'a policy, according to the applicant, is that dry storage faollitieo will only be licensed for a maxim\ll11 of t~enty (20) years. Representativ es of the designer-of the facility, Pacific Nuclear, indicated.th at the design lifetime was determined to be fifty (50) years. The seleotion of dee~gn JMteriale and techniques allowed no degradation of any component in the system during a span of fifty (50) years under the most adverse environmental
~onditions, *Moreover, as part of the design of the eP,ent fuel facility, there will be radiation and temperat~r, r .. monitoring of the fao}lity1 including verifioation that the storage .module vent screens are clear of debris, J, The applioan~ next presented testimony concerning criteria used tp evaluata the site as follows, 1, current federAl policy IQandatee that fuel storage facilities are to be located at the reactor's site. Other -
f~erally mandated ~e~irements are that the facility he locat*ed ~re thM 100 meters inside the owner controlled boundary, federal radiation dose limits ~ust be malntainedJ the ~ite *ust be in close proximity to the reactor building to f~ollitate transfer of spent fuel; the site must be ac::oessible by heavy haul transporter, the soil 1nuat have suitahl~.~oa~ ~ring oharaoteristl aa and finally the site must*be auitabl~ froM a security perapeo~ive.
- The applicant
~resented ~e~timony that the site is appropr!~ts becau~a it satisfies th~ federal criteria and oontains existing paving with no 'trees.
It is not 1ooated in a flood plain nor is it close to wetlands or other enviromnenta lly sensitive areas and no threatened or endangered plants or anilllalll inhabit*
s
the area. 'l'he .Lmpatit to t.Jle env J.J.uuniauw, ................... 1:t ap~licant, would be inaignlfioant.
K, The applicant presented testimony that the facility
~ill satisfy all appropriate federal requirements respecting security at the ea11e level of protection preaentlt prov~ded
}
!or the oyster creek Kuole~r Plan~, The applicant intends to provide lighting, surveillance o~ras, physical
..barrie~s~ a Manned twenty-four . . hour alo.im etation, perimeter intrusion detection syat81l\, and a vehicle intrusion barrier.
In response to questions, the representative* of th&
applicant revealed th~t the present corporate policy was not
- to,take any spent fuel roda from any other nuclear plant shall oontinue, notwithstanding current federal regulations which prohJ.bil:. same. *.
L, In further teathtony, the applicant stated that if the spent fuel facility ia not constructed, the operations at-oyst.er Creek would be seriously jeopardized. The nuclear .
plant may have to aloee in a<tvanoe of its 11oenee i:,xpiration sohedul~d fo~ the year 2009, In that event,* the non-produ~on of eleotrioity at toe site would hpoee a hard.ship upon the ~naUHrs of eleotrioity in general, upon Lacey 'l'Ownship, and the environs aa a whole. Moreover, there would be an eoonomio itapaot inasmuch as Oyster Creek employs approxilllately 1,000 tull-time*people, of wholQ 250 reside in Lacey !l'ownsbip.
N, The applicant presented testimony through its '.expert engineers oopcerning tha site plan as follow, 'the ston11 water wmagement plan"meota all requi:rem.onta . ot the !l'oWnsb1p and the stora flow ~ d be, within tho existing. mapaaity of the present. stom sewer syste1:11. 'l'he envb:oruaental perfol:'Jl'ltlnoe eiulndard waiver ,:-equeet. process is a~Uu to that neoeesaey for a fortMl envirorunem;:al impaot statement.
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e no conce.t11t1 .L'-40 ...... ..... u_
- i:n the ir opi nio n, the re wer the env iro nm ent al imp act .du ~ to would res ult in an adv ers e ait e of the fac ili ty, The act ual con str uct ion and ope rat ion an exi sti ng sto rag e are a and a
ot .the fac ilit y con sis ts of no nts are wit hin 100 fee t and paved par kin g lot , No res ide fee t on the sit e are wit hin 500 his tor ic pro per tie e'lo cat ed
'l'he sit e is not loc ate d of the cdn etr uct ion loc afi on, n
in and the re is ~o soi l ero sio wit hi~ t~e 100 yea r flo od pla ped est ria n acceeB is n~w ooo urr ing on the sit e, No e~
cur ren tly needed, Vehicula r tra ffi c wo uld .no t be e!f eot l
fac ili ty and no tre e re~ ova by the con str uct ion of thi s s
ered anima.l or pla nt ape oie wi li be nec ese ary , No endang the ing a ~et lan d eva lua tio n of were ~re sen t ot con firn ed dur are a, not add to exi sti ng rur.bient The proposed fac ilit y wi ll uld not els dur ing con str uct ion wo noi se lev els *and .no ise lev be det ect ed off -ai te, ioa ted no we tlan d per mit s or N, *ru rth er eva lua tio n ind E.
req uir ed from the N,J , DBP tra nsi tio n a~ea pem ite 'itElre from eff lue nts would be rel eas ed No 'ga seo us, liq uid or sol id acc ord ing ly, no eff lue nt*
the pro pos ed fao ilit y*a nd ,
permittd.ng waa neoeaea.ry.
sto red in .the fac ili ty in O, *sp ent nt? ole ar fue l wil l be by le req uir em ent s as reg ula ted ao~ rda noe wit h all .ap pli cab tes the rec;iuler dis pos al of the NRC~ The NJ PBPE reg ula din g to
- 13pent nu cle ar. fue l, Ac cor hazardous*. wa~te other_ tha n ste be no haz ard ous or tox ic wa DlllP reg ula tio ns, the re ~u ld al~ y, reg ula ted by the_NRC. Fin oth er tba n*t he ~uo lea r waste no wa ter fro nt development, aoo ord ing to the N,J , DEPZ, thi s mit a would be rec iuir ed for
. coa ~ta l wetla,nd_ or CA.l'RA pet f~o illt y, er tes tim ony thr oug h P, ~he app lio ant pre sen ted 'fu rth 7
4,,* **
management officials that additional storave 0apao1ty m~s~
be installed ,t Oyster creek until the fuel can be permanently re1n0ved fro~ the eite, Moreover, if the dry spent fuel, storage i's not ioatallect by 1996, the plcmt would not have the oapabifity of. totally off-loading fuel fro* the reactor to the in-plant ~pent fuel pools,* In order to operate safely, fuel must be able to be re~ved from the x-eaotor and stored in the spent f,uel st;.orage pool inside the plAnt, After 1998, th~ spent fuel storage P.OOl would be filled to oapaci~y and aaoordingly the fuel would not be able to be reiaoved from tho ope.rating reactor, An additional safety concern would then be raieed ~cause the spent fuel would be iooate<l both in the reactor and storage pools simultaneousl y.
. In response to questions to mariag8.lllent, wltn~sses testified that they view this faoility as.a tqporary facility until the operation of A federal repository 1a in plaoe, Aocordin',J to the fede,;al legislation, the target date for that federal repository was 1998. According to recent Deputment of Energy inforaation,
' however, it appaara that it vi11 be the year 2013 before the federal repo~i~ry VO?ld be available *
.
- Q, 'l'be applicant presented thJ;ough a profeBBional planner, teati1110ny related to the apeolal reasons neoeesary for a uae
.va;-!auce to be granted, u folilowe 1 1, In the planner's opinion, t.hia is a*publia utility that* J.a inhe'rently beneficial because it is an energy provider. that tervaa .not only the 1-ediate comuru.ty but the region as well, Moreover, the planner testified .that two other apeoJ.al reasons are promoted .
by the proposai, Jl'iret its the promotion of the health, safety~ welfare 'of the connnunlty inMmUoh as the dry storage.b by far the 110st teobnioaUy preferred type 8
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of storage for ~he spent fuel rods. In addition, it la clear that the oyster creek taolllty needs the dry storage in order to continue to operate aa a public utility and in order,to continue this inherently banefi~ial use, the dry storage Method 'is preferred.
The general health and safety of the community would be 110st effectively pr01110ted by the seleotion of this better method for the stonge of the inat~ria:l.,
- 2. - Finally, under tba Municipal Land Use Lav, this particular alt~ on che muob larger site of the Oyster creek faoility ia uniquely suited for the oonstruotion 1 of this unique dry aMrage faoility which is virtually I
l!Wldated by federal r89l,llat1ons. The planner concluded that the applicant moats the burden of proof for spacial reasons even'if it was not an inherently beneficial use, R, Thi~ application, aooording to the planner, also
- satisfied the negative ciriteria lnasmuah as it ~es not pose
_substAntial detriment: to the publio gooQ, Safety measures tak~n. at the eite are reflective of the lateet teohnology and ~ust be approved.by the federal nuclear regulatory oonniedon, He alt?o concluded that t.here would be no !Jnpaot from a site standpoint with regard to storm water syetGlll8 1 traffic, QODgeetion, or other alto.plan considerations.
rurther, ~ expert concluded that thi~ is an extraordinarily minor expansion of a pre-existing non-confonrun11 use. * 'l'het1e cont~inera will be eituated in an
.B4'Xl08' CQnorete slab within the 7!)0 odd *ao:i:e facility, Pindly, this venerating facility ia noted in t~e Master
~lan as 'important existing utilities to service both the inimediate *area, ..the irown$hip and the regiqn. In hil opinion this applioation, if approved; would not a\tbstantia.lly 1 9 I,
.)
impair the intent Md purpoae of the ~one plan and zoning ordinance of the Township of Lacey.
UBTJl<<>NX QP MEMBERS QP !fflB PUBLIO The.Board reoeived the following testimony from members of the publl.01 A. "'Berson* objeated to the application on the basis that there was no reasonable aaaurance that the nuolelU' fuel here
\>IOUld be stored on .a temporary >>aais on the site. The United States GoverntAent has failed in its mlsalon to fi~d a permanent etorage place for this nuolear fuel.*
- a. Other oonoerna expressed were that the zoning Board did not requi~e the applicant to submit an environmental_ il:r,paot I
atiltement (BIB) in aooordance with the appl!oation requirel118nts of the 'l'Ownship'e ~rdinanoe.
c.
Qther*~nce rns expresaed were tbe proxilnity of the atorage site to Route 9 and the security problell\B that mat be posed by this relatio~sh ip, D. other oitizena oonoerned with the applicatio n believed
. t.he Bo4rd required the serYices of an expert in order to render.. a decision partloular ly as it effeota technical details,
- 1. ,Further, regarding safety, there was testi110ny that airoraft in . t!he*area; partloular ly
. of a military variety 111ay be flying olose to tbe plant an~ may present a threat to the integrity of the f~el s~ora.ge faoility.
P. one ~Iaber of .t~e pul>Iia submitted ,in ~ i t whioh showed a :reconfiguration of the siting o:f the aonot'et.e modul~a complete with bet11µ,ng ~nd greater spacing between
.
- the aonorete modules,
- There was testJ..ony that by
. inoo~Qr~ting"tlµ,s wall, th~ &ail &rO~na tbe. si~ea of the
.module wiU.$lillin at.e th~ poaaibilit ia~ o~ ~ ~eot hit or ramming.of all the l!Ddules~
- 10 I
J.
rf!'
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- o. Other testimony ooncerned the conu.in:enoy ot 1.11\t aulnleas *teel Jlletal being used on the ce.nleters and the quality ot that mate~ial, H, There wae testimony from a repreaen tative of an adjoining municip.!llity who expressed concerns about a ~aiver ot an envlrol'tlll6nta~ impact st.ateiaent and inoonais tenoiea on the* waiver applicati on, I. Finally there were reque~ta that the Board attach condition s of approval suoh aa*radJ.o aotive and thel:lllal IIIOnltodng, security improve111anta1 and that the J.nnlediate
.~rea be J11ade a *no fly* zone by request to the PAA.
J., Xt was &leo requested that a conditio n~ illlpoeed I
requiring phyeioal, inepeotio n of the vents be lllOre than every four .(4)*days as had been testified to before the Board by the appli~nt . , __
- FlHP~HOOS &}JP CQMCLUBIOHI The Board after reviewing and weighing all the evidence ,
test.uaony end exhibits presented before it, ukea the follo~ing
- findings and conclusio ns t 1, *fhe appli04Ilt has ~et the burden of proof for uae or apeoial reasons variance pursuant to N,J,8,A. *4015SD-70(d) based on the .following findingst
- A, The applican t is a.utility regulated by the State of Rew Jel:sey vh~ch provides electric ity and power for its cus~rs and 1* an*inher ently benefici al use which*
satisfiea the promoti~n of the general welfare and.posi tive criteria in aCCQrdanoe with the requirelll ents of the Municipal Land. Use Law, ,
B. . Notwithatanding that t.hE! Board finds that the use inherent ly serves the public good; the Board further finds that the proposed site is*part:io ularly suitable for the proposed use. there is a pre-exis ting non-conf oraing 11
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on -si te, A0COrQl.ny ~v
~v ~v ~--
nu cle ar ge ne rat ing pla nt porary ba sis NUBt be sto red on a tem reg ula tio ns , spe nt fue l sen ted sit e wh ere it ie ge ne rat ed , The testilTlony pre at the dit tha t n weighed and is giv en cre by the ap pli can t has bee reg ard to ets all req uir em en te wi th 0
thi s pa rti cu lar eit e me Board tfn ds im pac t, Moreover, t~e sa fet y and env iro nm ent al
~f the non-conforming use inasmuch th at thi s is an exp ans ion on -si te and eto rin g spe nt fue l rods as tbe pla nt is alr ead y rag e bu t ee to Ma int ain tha t sto th is ap pli ca tio n propo~
gy ,
te fa cil ity and teo hn olo ut ili ze a dif fer en t on -si th at wi tho ut the ab ili ty C, The Soard fur the r fin ds op era tio n rod s on -si te, the fut ure t0, sto re the spe nt fue l ioh would I
of the -nu cle ar rea cto r is pla ced in' jeo pa rdy wh reover, the the owner ut ili ty and JI\O cau se undue ha rds hip *.to g use cah no t rea eon abl y be develo~ed as a confoXlllin pro pe rty oth er.
ord ina nc e, Th ere is no un der the pre sen t zo~ing cle ar rea son ab le use for the pro pe rty oth er tha n a nu ge ne rat ing fac ili ty.
lic a*t ~o n would fur the r promote the
- D, . Gr ant ing t_he app for a ~e ans of tna int ain lng
- pu bli c saf ety by pto vid ing sec ure cre ek pla nt in a ea fe and op era tio n of the oy ste r ol lllllintenanoe of the ve t po manner by all ow ing for the O
era tio ns shut-dO'!'Jns and oth er op I I sto rag e sy st~ to han dle otr ioi ty, l co urs e of ge ne rat ing ele req uir ed du rin g the n~rna e p~ r*s to be ide al for .bh m; The proposed 11lte ap ca nt' s fa cil ity wi th. ln the ap pli loa atl on of the st? rag e prop?:i:ty, 1, Tbe Board fur the r fin ds th at the app rov al of the I
aent to the I
!e any su bs tan tia l detri.J us~ va ria na e wi ll n~ t caW .
- .* is is a pre -e; >ti sti ng nu ole ar pow er pla n~ and pu bli c goo d, Th pli ca nt oan wi ll *ensure* th at the ap thi a,d :i:y sto rag e fa cil ity up tio n and otr ioi ty ~it ~o ut int err CQntinue to ge ne rat e ele 12
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,'t
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oontinue to provide aoonomic benefits to the Township 4nd the State.
G. The Soard is satisfied that with speoiflc conditions to be *.!.Jllpo$ed herein,* the dry storage facility will he operatact in a safe and environmenta lly aoun~ manner, The Board recognizes that thie facility Muat be licensed bi the NRC and its continued use will be ~onitorQd by the state Department of ~nvironmental Protaotion and Rnergy, A continuous radi~tion sensing network around the plant coupled with the sampling of air and water from the plant and the storage faoility will be required and continued by State agency, The Board further finds that based on the I
testimony presented, the use of the dry spent fuel storage facility will not result in a sighifioant additional radia.tion dose e1mnating from the nuolear .plant.
H, '!'he Board finda that the approval of tbia use variance would not aube~ntiaily impair the intent and purpose of the.zone plan and zoning ordinanoee of the
!l'oWnship of Lacey, '!'he dry storage facility appears, based on the evidence brought before this Board, to be a neoesaary acoesa~ry struoture and uae to the existing nuclear generating plant. Adjoining and adjaoent property owners will not be a~veraely .impacted by this projeot inae~uoh as there already is on site an ?perating non-conforming use and the storage facility proposes an ~ansion of this non-oonfonulng us~ £or a temporary, interim period, 'i'he Board
.further finds that failure of the,federal government to build and operate a final spent fuel storage faoili~y has militated the request of the applicant to bull~ thla t~porary facility.
t, The LAoey 'l'ownship Master Plan as updated addressee inoludes within the plan for the Township, the 13
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er pla nt, I\Ut.: U,l,U J..Jl'. :l""J oontinued \1B8 ~£ the nuole1l)," pow flio t wit h the land use appeare to be no sub ata ntia l oon Pla n, elelll8nt of the Township's Master nded pre lim ina ry and 2, The app l1o ant 'a req ues t for ame ing APPROVED based upon the foll ow fin al ait e pla n approval may be find ing at
&ngine~r'e A, In acoordanoe wit h the Township s wit h all app 1io abl a fin din gs, the oite pla n oonform ip sit e pla n ord ina nce exc ept
- etan dar de of the Lacey TO'tlnsh where the waivers are req ues ted B, . The Board find s tha t the eit e pla n wai ver s can be the pro per ty and what is gra nte d becauoe the con diti on of I ts the req uire me nts of tha propo~ed is sa~ iefa cto ry and mee Townehip'a site pla n 9rd ina nce ,
the env iron men tal c, The Board gra nts a waiver from ado pts the find ing s of the lmpaot stat eme nt inaeauch as it the app lica nt tha t the Board Engineer and tes t~n y of rd for a wai ver of the BlB app lica nt's eubmisaion to the Boa unental concerns whioh MY add ress ed in det ail tho ae enviror ilit y. Those par ticu lar be pre sen ted by the proposed fao tal iln:paot wai ver item s req uire d by the env iron men app lioa t!o n pre sen ted the Board with suf fic ien t info rma tion the enviroruuental 1.mpaot to make a jud ~n t
- for*.'ilaiver of ds t.hf tt wae sub sta nti al st~ tem ent , The BO ~ fur the r fin Boord olo eel y examined wit h teo hnl cal teat imo ny, which the
' posed dry eto rag e fac ilit y rega~d to the saf ety of the pro environment dur ing the and its pot ent ial irnpaot on the eta ntia l evi den ce would not cou rse of the hea ring s. Thie eub unental ilnpaot stat em ent if have bee n requ!rffli in the env iror Township's sit e pla n sub mit ted in accordAnoe wit h the ordin&noe req uire men ts, gra nte d her ein or D, 'i'hoee waivers not spe cif ica lly 14
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wnoee 1n the Board Bngineer s*re view lett ers, 1
here by deemed to be reoonunendatione are adop ted here in, are deni ed.
said Board that on NOW 1 tH~REFORB 1 BB I~ RESOLVED, by the the find ings here in above this 21st day of Maroh 1 1994, baae d on n.a vari ance and stat ed, the appl ioat ion tor spao ial reaso appr oval with waiv ers is prel imin ary and fina l amended site plan g oon ditio ns and berE!by GRAN'l'BD subj eot to the follo win stip ulat ions of the applioa.nts in the prop osed 1, There shal l be no dev iatio n or chan ge ieee as set fort h in the use of the faci lity on the subj eot prem Boa rd, In the even t plan e eupm~~ted by the app lica nt to this the plan e as subm itted or ther e is 'any euoh devi atio n from any of appt ica.n t sha ll re-s ubm it documents or teet.unony pree ~nte d, the the enti re app lioatJ.on; all othe r 2, The appl ican t sha ll also secu re any and oval s as may be requ ired nece ssar y appl icat ione , perm its or appr agen cy incl udin g but not.
by any othe r appr opri ate gove rnm enta l llliesion and the New Jers ey liln. ited to the Nuolear Reg ulato ry Coltl and Ener gy, Dep artm ent of snvi ronm enta l Prot ecti on suit able and 3, The appl ican t shal l inst all pe:rll!anent, itors on the or neax the reli able temp eratu re and radi atio n mon eof for insp ecti on by modules and main tain writ ten reco rd ther y,
repr esen tativ es of the Township of Laoe noy or qua lity sha ll 4,' Spen t nuol ear fuel of any oon siste and ope rate d by the not be stor ed on any othe r site owned othe r than the site which app lica nt with in the Township of Lacey
.h the subj ect of this p:ro oeed inq, rete modules-
- 5. All airfl ow vent s situ ated on the conc ris ever y thre e days .
sha li be inap ~ote d for bloc kage by deb isal on a ti, All spen t fuel rods sha ll be out of com may bei stor ed in the dry rdnimum of ten ( 10) year s befo re they 15 1.: *"" a I *
- I ***
- I
... . :. . ... . _::* .. ::, a:*:
- storage modules, 7, The applioant ehali inatnll *suffioient landscaping to oompletely block view of the inodulee and transport pad froM State Highway /9, Vehicle intrusion obst~olea shall be installed in aocordanca with Nuclear Regulatory Coll!ln!seion requirements,.
- 8. 'l'he wet pool storage system muet ba kept in Ol)eration, in the nuolear faoility, while fuel rods ara located on the site, 9, All spent dry fuel"storage rode must be relflOVed frotn the concrete lllOdulee once a peX'J!\anent federal storage repository is available in aooordance with regulations provided by law, 10, The applicant shall provide to the Township on a yearly baaie, written records revealing all temperature and radiation I
measureinents, The applicant shall further advise of any an~ all repairs ~ade to the concrete modules.
11.* The applicant shall provide to the Township on a yearly basis, the speolfio nwnber of spent fuel rod assemblies whioh have been IIOved into the dry.storage facility.
- 12. No radioaotive material from off-site shall be atored at the Oyat.er Cr~k site.
13, Any environmental illlpaot statement or environmental assessment prepared by the applicant and/or the Nuclear Regulatory Commission ,in conjunction with the application betore the Nuclear Ragulat~ry Commission shall be subndtted in a timely faabion to the Township of Lacey.
MOVBD SY:
SECONDRD BYt Mollona14 f.01,LCALL Those in ravors rtinton, ~Do,1111a~ Gudgaon, IIIJ.ok, Jl!ouk0118 1 Moore, ste.wu 16
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M/A Those Opposedt Thoae Absent I Btn eet , Bra dle y Ern est , Bra dle y Th ose Not Vo tin g:
op ted by sa id 9 is a tru e ,ril copy of a Re so lut ion ad, 199 4 as The for eg oin ng of A1; 4th Boal:d at its me eti mi ~u tes of sa id nie eti ng ,
co pie d fro m the Da'tedc 11.pt~l 11 1 1994 I
I I
17
EXHIBIT 'E' I l
MINOR SITE PLAN EXELON GENERATION COMPANY, LLC (OYSTER CREEK NUCLEAR GENERATING STATION)
EXPANSION OF SPENT FUEL STORAGE ROUTE 9, FORKED RNER Block 1001, LOT 4.02 Zone: M-100 - INDUSTRIAL 1-\ppncatton No, 1O::SP:AA RESOLUTION *oF APPROVAL 1D*SP-06 PLANNING BOARD, TOWNSHIP OF LACEY WHEREAS, an appllcatlon has been made by EXELON GENERATION COMPANY, LLC for approval of a Minor Site Plan appUcatlon for Block 1001, Lot 4.02, as set forth on the Tax Maps of the Township of Lacey WHEREAS, the Planning Board, alter carefully considering the evidence presented by the appficant, and the report from Its profeS8lonal staff, hereby makes the foffowlng findings of fact
- 1. The applicant has a proprietary Interest In the property.
- 2. The applicant has requested approval In aocordance with the Ordinances of the Township of Lacey.
- 3. The site In question Is located In the M-100, Industrial Zone, on Route 9 In Forked River.
- 4. The applicant is requesting approval of a minor site plan application from the Lacey Township Land Use and Development Ragulatfons for the purpose of expanding the Independent spent fuel storage area by removing existing pavement and constru-Otlon of two 26' wide x 159' long x 3' deep concrete bases to support 28 addltlonal prefabricated horizontal storage modules to house spent fUel rods.
Concrete trench drains are proposed bef:ween the existing and the proposed bank of storage modules to channel ~urface runoff from the 18" thick concrete aprons to an exlsUng drainage basin. The applicant also proposes to relocate the existing securtty fence along the westerly side of the storage area.
- 5. The board engineer, Bruce A Jacobs, P.E., P.P., C.M.E. of Gravatt Consulting Group, prepared a report to the Board dated August 12, 2010. The Board hereby adopts the findings In that report and incorporates the report In this Resolution by reference.
- 6. The applloant vvas represented by Richard Hluchan, Esq. The applicant presented the testimony of the *project manager, Adam Sparks and Its profess!onal engineer, Bruce Connell, P.E., who testified as to the need for the added storage area. Mr. Connell testified that the proposed expansion of the Independent spent fuel storage area Is In keeping with the area and neighborhood. The testimony also reflected that, In the opinion of the applloant's professlonals, the granting of the appncat!on would !n no way be detrimental to the publlc good and, In fact, would be a dltect benefit to the area.
The Lacey Township Planning Board concurs with these representations and so finds.
WHEREAS, the Planning Board has detennlned that the applicant should be granted the requested renef for the following reasons:
1
- 1. The proposed minor site plan wHI pose no danger to the surrounding area.
- 2. The granting of the appllcaHon will not have any variances from Zoning Ordlnances of the Township of Lacey.
- 3. The neighboring munldpallty, Ocean Township's *requested a postponement of the hearing, however, the applicant did not consent to the postponement and the Board voted to deny that request.
- 4. Interested neighboring property owners attended *the heartng and commented on the record.
Those comments have been taken into consideration by this board In rendering this decision.
- 5. The safety and well being of the Immediate area will not be adversely affected by the proposed minor site plan.
- 6. Toe appllcation Is In substantial compliance with the Zone Plan, and wHI not unduly Impact upon the neighborhood scheme.
NOW, THEREFORE, BE IT RESOLVED, by the Lacey Township Planning Board that the application Is hereby approved sub:lect to the following conditions:
- 1. The applicant must submit 'proof of payment of all currently due taxes to the Lacey Township Planning Board.
- 2. The applloant must post an bonds and guaranties as required and recommended by this Board and said Planning Board Engineer. Moreover, the appllcant must post an required engineering Inspection fees.
- 3. All representations ar19 statements mada by the appficant, as well as appllcanfs representatives and witnesses, shall be considered and deerne9 to be relied upon by the Board In renderfng this decision and to be an expressed condition of th1s Board's actions In approving the subject application. Any misstatement or misrepresentation, whether *by mistake or change in olroumstance, shall be deemed a breach of this condiUon of approvaJ and shall subject this appllcatlon to further ravieW of this Board's cmn motion.
- 4. In the event the Planning Board determines that It reasonably relied upon any mlsstatement or misrepresentation, then and In that event, any approvals previously gNan may be rescinded and any Improvements at the time In place on the premises In question shall not be In compllanca with the Ofdlnanoes of the Township of Lacey.
- 5. The appllcant must comply with all conditions as contained In the Board Engineer's Report dated August 12, 2010.
- 6. No bulldlng permit shaR ba Issued unUI the Board Secretary confirms that the Planning Board professional fees have been paid In full. In the event a building pennlt ls Issued and (!"lere are outstanding Planning Board professional fees, a stop YAJrk order wll be ffled against the appllcanUoontractor unm all professional feaa have been paid.
- 7. In the event thefE! Is an existing violation, the applicant shaU have thirty (30) days from the date the Notice of Decision was published to correct the violation. Failure to correct the existing violation within the tlme proscribed will result In the Issuance of a summons.
2
NOW, THEREFORE, BE IT RESOLVED, the application, Hmlted to the terms and condltJons as set forth more fully In the preamble of this Resolution, be and hereby Is approved.
BE IT FURTHER RESOLVED that notification of this favorable Resolution shall be publlooed In an offlclal newspaper of Lacey Townshlp by the applicant within l'eo (10) days of Its passage.
QERTIEICATJON I, SUSAN CONNOR, Secretary to the Planning Board of the Township of Lacey, County of Ocean, State of New Jersey, do hereby certify *that I am duly authorized to certify Resolutions. I certify !hat tt,e foregoing Resolution was adopted by the Planning Board of the Township of Lacey at a meeting held on the 12 day of Ootober 201 0.
SUSAN CONNOR, SECRETARY LACEY TOWNSHIP PLANNING BOARD
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EXHIBIT 'F' I I
~tttte of ~e£tt 3}u~iu DBPARTMBNT OP BN\IJRONMBNTALPROTBCTJON l l omrn OFTHB COMMlSSIONER emus CHru81tB Mail Code 401...07 Boa MARTIN P.O.B0:X:402 Conwdsslo,i,r Trentonj NJ 08625-0420 KIM 0UADACJNO 'IBL:(609)292-2885 Lt.~mor Fax: (609) 292-7695 IN THE MATIER OF:
EXELON GENERATION COMPANY, LLC.
OYSTER CREEK GENERATING STATION ADMINISTRATIVE 741 ROUTE9 CONSENT ORDER FORKED RIVER, NEW JERSEY 08731 NBA# 170001-757910 This Administrative Consent Order (hereinafter OAC011) is entered into pursuant to the authority vested in the Commissioner of the New Jersey Department of Environmental Protection (hereinafter "NJDEP11 or 0 Dopartmentu) by N.J.S.A. 13:ID*l et seq., the Radiation Protection Act. N.J.S.A. 26:2D-1 et seq., and the Radiation Accident Response Act (the "Act11), N.J.S.A.
26:2D-37 et seq.
FJNDINGS.
- 1. Bxol.on Generation Company, U..C Cc:Bxelon") owns and operates the Oyster Creek Nuclear Oonerating Station ("Station" or npacllity1'), a nuclear fueled electric generating station (SIC Code 4911) that is a "nuclear facility" within the meaning of the Act, N.J.S.A. 26:2D-39(c). The Facility is located at 741 Route 9, Forked River, New Jersey 08731 on the west side of Route 9, between the South Branch of the Forked River and Oyster Creek, two tributaries of Barnegat Bay. The Facility consists of a single boiling water reactor rated to produce 670 megawatts, and was constructed between_ December 1964 and September 1969 and operation commenced in December 1969. The Facility l l
ADMINISTRATIVE CONSENT ORDER BXBLON GBNBRATION COMPANY, lLC OYSTBR CREEK OBNBRATING STATION Page2of20 operates under a lioonse issued by the United States Nuclear Regulatory Commission (1'NRC 11), which most .recently renewed the licen~ on April 1, 2009 for a 2Q..year timo period, to 2029.
- 2. Exelon has agreed that it will permanently cease power generation operations at tho
'Facility no later than December 31, 2019 under the terms p1'0vided in an Administrative Consent Order executed on December 9, 2010 by Exelon and the Department ("the 2010 ACO," Attachment 1 hereto). For purposes of this ACO, the terms "Termination" and "Terminate Operations 11 shall be used to ~efer .to the permanent cessation of power generation operations at the Facility. Notwithstanding the precedi~g sentence or any other provisions of this ACO, the parties agree that other ongoing and necessary operations and activities at tho Station, such as decommissioning activi~es including tho activities contained in the Facility's Post--Shutdown Decommissioning Activities Report
("PSDAR"), shall continue after Termination and may require the use af spent fuel pools and Independent Spent Fuel Storage Installations ("ISFSr'), also known as "dry cask storage".
3, Upon Termination, Exelon will 1nitlate' actions in accordance with NRC regulations, incloding 10 C.F.R. § 50.82(a), to certify the permanent cessation of power operations at the Facility. Such actions include the removal of all reactor fuels from the reactor core and placing tho fuels into the spent fuel pool and/or dry cask storage for contlnu*ed cooling and secured storage purposes.
- 4. Upon certification of permanent defueling, Exelon will initiate decommissioning activities at the Facility in accordance*with tho Facilitis PSDAR filed with the NRC 2
ADMINISTRATIVE CONSBNT ORDER BXBLON OBNBRATION COMPANY, LLC OYSTER CRRBK OBNBRATINO STATION Page3 of20
' J under 10 CFR 50.82(a)(4)(i). The PSDAR is to be filed no later than December 31 1 2018, as specified in the 2010 ACO.
- 5. n i8 anticipated that Exelon will file exemption request.s with the NRC seeking an exemption from ce:rtaln radiological ru:nergency planning requirements of 10 CFR 50.47 and 10 CFR Part SO, Appendix E. It is further anticipated that the NRC will grant Exelon' s exemption requests, as it has done with regard to exemption requests filed by other recently shut down nuclear power plants.
- 6. Regardless of any request by Exelon for an exemption from the Emergency Planning
("BP,,) roqul:rements of 10 CFR 50.47 et seq. and Appendix E and regardless of any relief NRC may provide. in order to ensure that the Department and NJ State Police Office ofEm.orgency Management ("SPOEM") continue to meet their collective statutory mandate to provide the maximum protection to the citizens of New Jersey from threats to
/ I their health and welfare wbioh may result from a radiation accident at the Oyster Creek nuclear Facility or ISFSL Exelon and the Department have agreed to entry of this ACO and to be bound by its tenns and conditions.
ORDEI!
NOW, THEREFORE, IT IB HEREBY ORDERED AS FOlLOWS:
I. TERMmATION REOUIREMENIS
- 7. Exelon shall continue to meet its obligations as sot forth in the 2010 ACO, including its obligation to tormlnate power generation operations on or before December 31, 2019.
Except with respect to the obligations set forth hi para~ph 2, second sub"pru.-agraph, and paragraph 35 of the 2010 ACO, which obligations aro modified by Section VI of this 3
ADMINISTRATIVE CONSBNT ORDER BXBLON OENBRATION COMPANY, LLC OYSTER CREBK GBN.BRATINO STATION Pngc4 of20 ACO, nothing herein shall alter the obligations set forth in the 2010 ACO or the Department's authority to enforce those obligations.
- 8. Exelon agrees that:
A. After Torminati.on, Exelon will retain spent fuel, high-level waste, and bther materlals in the reactor vessel, spent fuel pool and/or its ISFSI as authorized by the Facility* s NRC license, for a period of time that is consistent withNRCregalations andlicenserequirements.
B. Exelon will transfer all fuel to the ISFSI as soon as technically and financially feasible and in accordance with the Facilltyts PSDAR.
C. Once the U.S. Department of Energy (4'DOE") begins acceptanco of waste for interim storage, long-teen disposal or other purpose1 Exelon will invoke, exercise, pursue, and/or demand all available legal priorities and avenues for expedited removal of the spent fuel rods and other high level radioactive waste from the site, to the extent consistent with the existing terms of the DOE Standard Contract (see 10 CPR Part 961) and any settlement between DOE and Exelon.
- n. J>OST-SHOT DOWN EMERGENCY PLANNING :REQl.JIREMENIS
- 9. Following Termination and until all spent fuel is secured into the ISFSI, Exelon shall comply with the following obligations, subject to and in accordance with the regulatory requirements of the NRC:
A. Continue to provide unescorted access for auth9rized Bureau of Nuclear Engineering (BNB) personnel to all Facility protected areas 4
i l
ADMlNISTRATIVB CONSENT ORDBR BXBLON OBNER.A.TlON COMPANY, U.C OYSTER CRBBK GBNBRATING STATION PageSof20 and owner controlled areas; B. Continue to provide an on-site office for BNE staff; C. Continue to provide onsite and remote access to BNB staff ofExelon's computer network in order to access work plans, daily update reportst and decommissioning progress reportsi D. Initi.ally and annually, provide BNB staff with a point of contact person
- that has direct knowledgo of the Facility's* radiological safety systems and equipment Exelon shall notify .BNE in writing within ten calendar days of any changes in point of contact personnel; E. Copy BNE on all of Exelon' a fo1*mal submittals to the NRC related to decommissioning and on deeommissloning reports to outside agencies; F. Continue to monitor and provide remote access to BN!=! staff to Oyster Creek's Effluent and Safety Data including but not limited to:
ventilation exhaust monitoring, area radiation monitoring, spent fuel pool level and temperature, and water discharge monitoring; G. Continue to maintain on-site meteorological equipment and provide BNE remote access to eolleoted real-time and meteorological data in accordance with site Emergency Plan procedures. Meteorological data shall include wind speed, direction and temperature at the 380 and 33 foot elevations. In the event data from onsll:e equipment is not available, the equipment shall be returned to service as soon as 5
ADMINISTRATIVE CONSENT ORDER EXELON GENERATION COMPANY, LLC OYSTBR CRBBK. GENERATING STATION Page6of20
' )' technically feaBible; H. Provide BNE staff with a roster of emergency personnel including their positlon within the site emergency plan. Identify Oyster Creek Sito staff members who will meet quarterly with BNE staff to coordinate schedules for drills and exercises, review and discuss any ohanges to Exelon' s onsite security plan or the staf:e' s offsite response plan, and ensµre lines of communication are functioning through training and exercises as needed; L Provide notification within one hour of initiation of any emergency event to both the BNB and to the SPOElv.1 through the cu1Tently established means of communication with the Regional Operations and t ' Intelligence Center Duty Officer; J. Maintain operability of notification sirens for state or county office of emergency management ase as specified in tho RERP to alert the publio of any emergency conditions at the site and maintain siren operability until all spent fuel is in dry cask storage; K. Identify qualified personnel responsible for making offsite dose projections and coordinating the development of dose projections with the BNB asseMment town and notify BNE in writing within ten calondar days of any changes in such qualified :personnel:
L. Continue to maintain full participation in state, county or local (onsito and 6
ADMINISTRATIVE CONSENT ORDER BXELON GENERATION COMPANY, LLC OYSTER CRBBK GENERATING STATION Page7 of:20
! ) offsite) 6X61.'Clses annually and testing of communications capabilities quarterly; M. Continue to maintain availability of eloctrlcal power and other physical requirements in support of the operation of the on-site Continuous
/
Radiological Environmental Surveillance Telemetry (CREST) monitors; N. Provide access to BNE to, and permit the installation of, additional CREST monltor(s) should the ISFSI need to be expanded; 0, Support state efforts in performing routim~ testing of a public alert and notification system; P. Annually, provide C'.nmmnnication on the Facility's emergency plan to the public located within-a 10-mile radius of the Facility via brochures through the S1lllll'llOC of 2020 and the Site's external website after that time; and, Q. Conduct annual Stakeholder Information Fonuns to inform the public of Emergency Management Plans and Facility . operating and decommissioning status and to solicit public comments. Establish and maintain a website that ls accessible to tho public as another venue to disseminate this information.
10 Fl'om the point when all spent fuel is secured into the ISFSI and until all spent fuel is
- removed from the site, Exelon shall comply with the following obligations, subject to and in accordance with the regulatory requirements of the NRC:
7
! }
ADMINISTRAT1VE CONSENT ORDBR EXELON OENBRA.TION COMPANY, U.C OYSTER CRBBK OBNBRATINO STATION Page 8 of20 I j A. Continue to maintain and provide unescorted access for BNE personne.l to the ISFSI. For all other areas of the Facility. upon request, provide access to BNE personnel for the purposes of observing progress towards decommissioning and dew.mining compliance with this ACO; B. Provide BNB, at its request, reasonable access to Facility work plans related to deoommissionlng activities and planned work; C. Copy BNE on all of Bxelon's formal submlttals to the NRC related to decommissioning and on decommissioning reports to outside agencies; D. Provide BNE staff with a point of contact who has direct knowledge of the Faclllty' s radiological safety systems and equipment Exelon shall notify I ,
BNE in writing within ten calendar days of any changes in polnt of contact personnel; B. Continue to maintain availability of electrical power and other physical requirements to support ope.ration of the ISFSI CREST monitors; and, F. Conduct annual Stakeholder Information Fororos to infonn the public of Bmel:gency Management Plans and Facility decommissioning stattm and to solicit public comments. Establish and maintain a website that is accessible to the public es another venue to disseminate this information.
- 11. Bx.elon*will establish an environmental monitoring program in accordance with all state and federal requirements.
f l 8
ADMINISTRATIVE CONSENT ORDER BXBLON OENBRATION COMPANY, LLC OYSTBR CREEK OENERATINO STATION Page9 of20
- m. ASSlffiSMENTS
- 12. In order to defray the expenses of State agencies in discharging their responsibilities under the Act after Exelon Terminates Operations, Exelon shall pay the assessments set forth in paragraphs 13-15 below.
- 13. Exelon shall pay $2,500,000.00 the first fiscal year after it Terminates Operations.
Exelon shall make payment no ~r than July 31 of the first fiscal year after it Terminates Operations. For purposes of this ACO, a fiscal year begins July 1 and ends Jnne 30 of the following year.
- 14. Bach subsequent July 1st in which spent fuel remains within the reacto~ vessel or spent fuel pool, Exelon shall pay $1,500,000.00, which shall cover tho fiscal year beginning that July 1 and ending the following June 30. Payment shall be made no later than July
! I 31 of erum fiscal year. The Department may adjust this amount periodically based on the Bureau of Labor Statistlcs's Consumer Price Index or other generally recognized method of measuring lnflation. If, at any time after July 1 and before the next fiscal year, all of I
the spent fuel has been moved to the ISFSI, the Department agrees to pro-rate, on a monthly basis, the assessment paid for that fiscal year and to givo Exelon a credit equal to the prorated amountB for each full month in the applicable fiscal year in which all of the spent fuel is located at the ISFSL The Department will issue a reimbursement to Exelon in the full amount of the credit or apply the full amount of the credit to future assessments due pursuant to para.graph 15 below.
- 15. Exelon shall pay $75,000.00 each fiscal year following movement of all spent fuel to tho ISFSI and until the Facility is decommissioned. Payment shall be made no later than July I l 9
ADMINISTRATIVE CONSBNr ORDER EXELON OBNBBATION COMPANY, LLC OYSTER CRBBK GBNBRATINO STATION Page 10of20 31 of each fiscal year, unless a credit is owed to Exelon pursuant to Paragraph 14 above, l
' J Ir in which case tho amount due by Exelon will be reduced by the amounts to be credited
! I until such time as the credit is reduced to zero. The Department may adjust this II assessment amount perlodically based on the Bureau of Labor Statisti.cs's Consµmer I
Prlce Index or other generally recognized method of measuring inflation. t
- 16. Payment of assessments listed in paragraphs 13, 14 or 15 above shall be made by I I
cashiers or certified check. payable to "Treasurer, State of New Jersey" and shall be I l
submitted with the appropriate assessmentlnvoice to the following address:
Division of Revenue New Jersey Department of Treasury P.O. Box417 Trenton, Now Jersey 08625M0417 I I IV. STIPULATED PENALTIES
- 17. Except as provided in Section V (Forco Majeure) of this ACO, Exelon may be subject to stipulated pen~es for failure to comply with Paragraphs 9 through 16 and/or Section VI of the ACO in accordance with the following:
Calendar Days Not in StJ.pula.ted Penalties Per Compliance Calendar Day 1et through 7111 day $250 8th through 141h day $1000 lsth day and beyond $2500
- 18. All stipulated penalties shall be due and payable twenty-one (21) calendar days following Exelon's receipt of a written demand for stipulated penalties from tho Department.
ADMINISTRATIVE CONSENT ORDER EXELON GENBRATXON COMPANY, U.C OYSTER CRBBK GENERATING STATION Pag~:t.1 of20 11 I l Payment of stipulated penalties shall ho made by check payable to Treasurer, State of New Jersey'1 and shall be submitted to the following address with tho approprlate penalty invoice:
Division of Revenue New Jersey Department of Treasury P.O. Box417 .
Trenton, New Jersey 08625-0417
- 19. If Exelon disputes its obligation to pay part or all of a demandod stipulated penalty, it may avoid the imposition of a separato stipulated penalty for failure to pay the disputed penalty by depositing the disputed amount in a commercial escrow account pending resolution of the matter. If the dispute is .thereafter resolved in Exelon's favor, the escrowed amount, plus any accrued interest. shall be returned to Exelon. If the dispute is resolved in NJDBP's favor, NJDBP shall be entitled to the escrowed amount determined I '
to be due by the Court, plus any accrued interest.
i 20~ If Exelon fails to pay stipulated penalties, NJDEP may institute civil proceedings to collect such penalties pursuant to N.J. Court Rules B.,, 4:67-6 and R.. 4:70, access civil administrative penalties for the violations of this ACO, or take any other appropriate enforoemont action authorized by law. Exelon reserves the right to appeal or otherwise challenge any assessment of or demand for stipulated penalties and any aasociated enforcement action under this ACO,
- 21. The payment of stipulated penalties dooo not alter Ex.elon's responsibility to complete all requirements of this ACO.
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ADMINIS1'RATIVB CONSENT ORDER BXBLON GENERATION COMPANY, LLC OYSTER CREEK GBNBRATINO STATION Page 12 of20 V. EQRCE MA.lEDRE
- 22. For the purposo of this ACO, a "Force Majenre Bve1nt means an event which causes a delay in perfonning or an inability to perform any requirement or obligation of thia ACO which has or will be caused by circumstances beyond the control of Bx.elon, and which Exelon could not have prevented oy the exercise of due diligence.
- 23. Jf a Force Majeure Event OCCU1'8, Exelon shall notify NJDEP in writing as soon as pmoticable, but in no event later than seven (J) business days following the date Exelon first knew, or within ten (10) business days following the date Exelon should have k:qown by the exercise of due diligence - whatever comes eB.tlier - that the Force Majeure Event caused or may cause such delay or inability to perform. In this notice Exelon shall reference this Paragraph and describe the anticipated length of time that the delay or inability to perform may persist, the cause or causes of the delay or inability to perfor~
l I the measures taken or to b~ takon by Exelon to prevent or minimize the dala.y. or inability to perfonn, and the schedule by which those measures will ho implemented. Exelon shall adopt all roasonable measures to avoid or minimize such delays or inability to perform.
NJDEP shall notify Exelon in writing regarding its claim of Faroe Majeure within fifteen (15) business days of receipt of the Force Majeure notice provided under this section. Jf NJDBP detennines that a) a delay or inability to perf01m has been or will be caused. by a Force Majeore Event, and b) Bxolon has taken all necessary actions to prevent or minimize the delay or inability to perform, the Parties shall stipulate to an extension of the required doadline(s) for all requirement(s) affected by tho delay or inability to perform for a period of time equivalent to the delay or inability to perform actually 12
ADMINISTRATIVE CONSENT ORDER EXELON GENERATION COMPANY1 U.C OYSTER CRBBK OBNBRATING STATION Pagc13of20 caused by such circumBtances.
24, Exelon shall not be liable for stipulated penalties for a period where the delay or inability to perform is caused by a Force Majeure Event under thisSection V.
- 25. If NJDBP denies Bxelon,s claim that a Foroo Majeure Event prevented it from performing the requirements set forth in paragraphs 9-16 or Section VI herein, Exelon
- must pay the penalties as stipulated in Section IV of this ACO. For any stipulated penalties that Exelon may be subject to because of NJDBP's denial of Bxelon's claim of Force Majeure, Exelon may refuse NJDBP's demand for payment of such stipulated penalties and may raise whatever defenses it is otherwise entitled to assert in any action brought by NJDBP to enforce any demand for payment.
- 26. Exelon shall bear the burden of proving that any delay in performing or failure to perform any requirement of this ACO was caused or will be caused by a Force Majenre Event Exelon shall also. bear the burden of proving the duration and extent of any delay attrlbntable to a Force Majeure Event. An extension of one compliance date based on a particular Force Majeure Event may, but will not necessarily, result in an extension of a subsequent compliance date.
- 27. Unanticipated or increased costs or expenses associated with Exelon' s performance of its obligations under this ACO shall not constitute a Force Majeure Bvont. A breach of any of Bxelon's contracta may, but shall not automatically, constitute a Force Majeure Event.
- 28. The Parties agree that) depending upon the circumstances related to an event and Exelon,s responses to such circumstances, the following kinds of events could also qualify as a Force Majeure Event within the meaning of this Section: acts of God, acts of 13 I I
ADMINISTRA'11VB CONSENT ORDER.
BX.ELON GENERATION COMPANY, LLC OYSTER. CREEK OBNERATINO STATION Page14 of20 J war, and acts of terror:i.8m.
- VL APfLICABILlTYAND §ALE OR TRANSFER OF FACILITY O~QIP
- 29. Tha provisions of this ACO shall apply to- and be binding upon the Department, upon Exelon and its successors and assigns, and upon Exelon* s officers, employees, and agents solely in their capacities as such. Bxelon,s obligations under this ACO are independent of, and 1n addition to, any applicable requirements under federal and state law.
- 30. , If Exelon sells or transfem all or part of its Operational or Ownership Interest 1n the Facility or JSFSI to an entity or entitles unrelated to Exelon ("Third Party"), at least thirty (30) days prior to the closing date of any such sale or transfer, Exelon shall advise the Third Party in writing of the existence of this ACO and shall provide a oopy of this ACO to the Third Party. Exelon shall provide written notice of such sale or transfer to NJDEP, I I pursuant to Section VII (General Provisions) of this ACO, at least thirty (30) days prior to the closing date of such sale or transfer. For purposes of this ACO, "Ope.rational or Ownership Interest means Exelon's legal or equitable operational or ownership interest.
- 31. This ACO shall not be construed to prohibit a contractual allocation - as between Exelon and any Third Party- of the burdens of compliance with this ACO based on an allocation of Operational or Ownership Interest. This ACO shall not be construed ~o Impede Bxelon,s right to sell or transfer all or any part of its Operational or Ownorsh.ip Interest in the Facility or ISFSI to a Third Pru.ty as long as the requirements of this Article VI are met.
- 32. Provided the NRC approves a transfer of all or a part of Bxelon's Operational. or Ownership Interest in the Facility or ISFSI to a Third Party, Exelon shall require as an 14 r I
ADMINiiTRATIVB CONSENT ORDER EXELON OENBRATION COMPANY, ILC OYSTER CRBBK OBNBRATING STATION
- Pago 15 of20 f J explicit, written condition of sald transfut: that the Third Party assume, for the benefit of NJDEP, all of the rights, obligations and liabilities of the ACO applicable to the purchased or transferred Ownership or Operational Interests in the Facility ~r ISFSL Upon the closing date of any transfer of an Opel.'ational or Ownership Interest in the Facility or ISFSI, Exelon shall provide NJDBP with a copy of the* section or provision of the transfer agreement pursuant to which the Third Party agrees to assume the obligations and liabilities of the ACO for the bonefit of NJDEP.
- 33. Provided the NRC approves a tramfer of all or a part of Bx.elon's Operational or Ownership Interest in the Facility or ISFSI to a Third Party, Exelon and the Third Party may execute an amendment to this ACO, which NIDBP shall agree to and acknowledge, that rellevos Bx.elon of liability under this ACO for, and makes the Third Party liable for, all obligations and liabilities of this ACO applicable to the purchase(i or transfun:ed I ,
Ownership or Operational Interests in the Facility or ISFSL
- 34. In the event that Exelon and a Third Party oxecute an amendment to this ACO as.
provided in paragraph 33, above, Exelon thereafter shall not be responsible for the actions or omissions of the Third Party pertaining to the ACC.
- 35. If Exelon decides to sell or transfer its Operational or Ownership Interest, in whole or in part, in the.Facility or ISFSI to a Third Party, the State of New Jorsey will not intervene in any proceeding as long as Exelon complies with all statutory or regulatory requirements and this Article VI.
VII. GENERAL PROVISIONS
- 36. Obligations or penalties imposed by this ACO are imposed pursuant to the police powe.rs I J 15
ADMINISTRATIVE CONSB.NT ORDER EXELON OBNBRATION COMPANY, LLC OYSTER CREBK GENERATING STATION Page 16 of20 l J of the State of New Jersey for the* enforcement of law and tho protection of public health, safety, welfare and the environment No obligations imposed by this ACO are intended to constitute a debt, claliµ, penalty or other civil action that could be limited or discharged in a bankruptcy proceeding. Obligations imposed by this ACO are not subject to the automatic stay of 11 U.S.c,* § 362(a): but, instead, fall within the exemption from the automatic atay at 11 ~ § 362(b)(4).
- 37. Notwithstanding any exemption requests Exelon files with the NRC or exemption terms granted by the NRC, Exelon agrees to comply with the conditions of this ACO.
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- 38. Nothing contained in this ACO restricts the ability o~ the Depru:tment to raise the above Fmdings in any other proceeding.
- 39. This ACO shall be fully enforceable as a final Administrative Order in the New Jersey Superior Court upon the filing of a summary aotiO[!. for compliance pursuant to N.J.S.A, I I 13:lD-1 et seq. and R,, 4;67-6, and may also be enforced in the same manner as an Administrative Order issued by tho Department pursuant to these same authorities.
- 40. Exelon agrees not to contest the terms or conditions of this ACO except that Exelon may contest the Department's interpretation or application of such terms or conditions in any action brought to enforce this ACO.
- 41. This ACO shall not relieve Exelon from any obligation to obtain and comply with all required federal. state and local pen:nits, or from any obligation to comply with all applicable statutes, codes, rules, regulations and orders. Nothing in this ACO precludes the Department from taking enforcement action against Exelon for any violation of applicable law or precludes Exelon from .raising any and all objections and challenges to 16 I )
ADMl.NISTRATIVB CONSENT 0RDER BXBLON OBNBRATION COMPANY, LLC OYSTER CREEK OBNERATING STATION Page 17 of20 I }
the Department's jurisdiction or authority over any matter at issue or enforcement action which is outside the scope of obligations set forth in this ACO.
- 42. Nothing in this ACO shall relieve Exelon from its obligations to remediate tho Facility site or ISFSI as requi.t:ed by applicable federal and state law.
- 43. No mod1:fication or waiver of this ACO shall be valid except by written amondment executed by Exelon and the Department.
- 44. Unless otherwise specifically provided herein, any communication made by Exelon to the Department pursuant to this ACO shall bo sent by certified mail and email to:
Bureau of Nuclear Engineering PO Box 420, Mall Code 25~01 33 Arctic Parkway Trenton, New Jersey 08625-0420 Attention: Patrick Mulligan B-mall: patrlck.mulligan@dep.nj.gov I l Unless otherwise speclfl.cally proyided herein, any communication by the Department to Exelon pursuant to this ACO shall be sent by certified mail and by email to:
Senior Vice President Regulatory Affairs and General Counsel
,, Exelon Generation Company, LLC 4300 Winfield Road Warrenville, Illinois 60555 Attention: Bradley Fewell E-mail: bradl9y.fewell@exeloncom,corn With a copy to Site Decommissioning Plant Manager Oyster Creek Nuclear Generating Station Exelon Generation Company, LLC 741 Routo9 Forked River, New Jersey 08731 Attention: Jeffrey Dostal E-mail: Jeffrey;dostal@exeloncoi;p.co,n 17 I )
ADMINISTRATIVE CONSENT ORDER HXBLON GENERATION COMPANY, U.C OYSTER CREEK GENERATING STATION Page 18 of20 1 J 45. Exelon shall not construe any unwritten or informal advice, guldanoe, suggestions, or conunents by the Dopartm.ent1 or by persons* acting on behalf of* the Department, as relieving Exelon of its obligations under this ACO.
- 46. In addition to the Department's statutory and regulatory rights to enter and inspect, Exelon shall allow the Department and its authorized representatives access to the site at all times for the purpose of detennining compliance with this ACO.
- 47. The Department reserves all statutory and common law rights to require Exelon to take additional action(s) if the Department determines that such actions are nec688ary to protect public health, safety. welfare and the environment. Nothing in this ACO sha.ll constitute a waiver of any statutory or common law rlght of the Department to require such additional measures should tho Department determine that such .measures are necessary. However, nothing in this ACO creates authority within the Department to I ,
regulate in the field of radiological health and safety to the extent such regulation may be preempted, and Bx.el~n has not, and is not, waiving any right to challenge _Department action that intrudes upon that preempted field.
- 48. This ACO shall be governed and interpl'eted under thelawa of the State of New Jersey.
- 49. If any provision of this ACO is found invalid or unenforceable, the re{Ilalnder of this ACO shall not bo affectod thereby and each provision shall be va.lld and enforced to the fullest extent permitted by law. The Department does, however,. retain the right to terminate this ACO if, after suoh finding, it determines that the remaining ACO does not serve the purpose for which it was intended.
- 50. This ACO, together with the December 9, 2010 ACO, represents the entire integrated 18 f i
ADMINISTRATIVE CONSENT ORDER BXELON OBNBRATION COMPANY, LLC OYSTER CRBRK OENBRATINO STATION Page19 of20 agreement between the Department and Exelon on the matters contained herein. The parties to this ACO acknowledge that the.re are no representations, agreements or understandings relating to this ACO other than those expressly contained herein or in the December 9, 2010 ACO.
- 51. The Department reserves the rlght to unilaterally terminate this ACO in the event Exelon violates its terms and to talce any additional enforcement action it deems, necessary.
- 52. This ACO shall terminate when all spent fuel is removed from tho site.
- 53. This ACO shall become effective upon the execution hereof by both parties) subject to completion of any required public participation process.
- 54. Bach undersigned representative of Exelon and* the Department certifies that he or she is fully authorized to enter into and execute this ACO and legally bind the entity for which he or she signs. This ACO may be executed in one or mo.re comrterparts, oach of which I I shall be deemed an original as to any party having executed it, 'but all of which together shall constitute one and the same document.
[SIGNATURE PAGE ON PAGE 20]
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ADMINISTRATIV.B CONSENT ORDER EXELON GENERATION COMPANY, LLC OYSTER CREEK GBNBRATINO STATION Page:20 of20
' j By this gnature, I certify that I have full authority to execute this document on behalf ofNJDBP.
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EXELON GENERATION COMPANY, LLC 1 1 DATE: 1- e-- i:o L&
By this signature, I certify that I have full authority to execute this document on behalf of EXELON GENERATION COMPANY, LLC 20
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EXHIBIT 'G'
' l
HOLTEC DECOMMISSIONING INTERNATIONAL Krishna P. Singh Technology Campus, 1 Holtao Blvd., Camden, NJ 08104 Telephone (866} 797-0000 Fax(866}787..0909 April 13, 2020 Mayor Steven Kenn{s 818 W. Lacey Road Forked River, NJ 08731 Oyster Creek Nuclear Generating station Renewed Faclllty OperatJng Uoense No. DPR-16 NRC Dookat No.60-219
Subject:
Oyster Creek Independent Spent Fuel Storage lnstallatlon {ISFSI)
Oyster Creek Nuclear Generating Station (OCNGS) wUI move spent fuel from Its Spent Fuel Pool to the ISFSI pad per our Post Shutdown Decommissioning ActMtles Report flied wtth the Nuclear Regulatory Commission (NRG). This Is being done to place the fuel in a passive storage system that ls less vulnerable to external Influences that may chanenge cooing of the fuel. .I I
An expansion to the ISFSl pad Is planned for which a permit applloatton has been flied for with
! I Lacey Township. Preparatory work for the conatructlon of the pad expansion Is In progress.
The Pad Expansion and supportlng systems wfll be constructed In acoordanoe with appftoable 10 CPR 72 requtrementa, sit.e-specfflc design considerations, and the HI..Storm FW XL Caek System Final Safety Analysis. fnspeotlpns and assurance of meeting build requirements WIii be perfonned by the NRC In accordance with NUREG~1536 Rev. 1, uStandard Review Plan for Spent Fuel Dry Storage Systems at a General Ucense FaoDity". .
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Based on the Federal guldellnee and Inspection ctiterla, Holteo Decommissioning agrees to Indemnify and hold the Township of Lacey, its agents, servants and/or employees hermle88 from and against all olalms arising out of or In connection to construction of the ISFSI Pad expansion
- I and supporting systems.
lf any further Information or assistance Is needed, please aontact me or OC Regulatory Assurance Manager, James Frank at (609) 971-4114.
Slnoerely, c4::fftia1 Oyster Creek Site Vioe President Holteo Deoommleslonlng International, LLC (609) 971-4672 HIJl..20-0C--031
I I, I
l I EXHIBIT 'H'
DCwAA-410-F..02
{ : Revision 1 I
Controlled Defx>mmleelonlng Equtpm~nt Change Packaae (ODECP)
Change Number: 628170
- j Revision: o I~aolllty and Unit: oo / 1 IPage 1 o, 19
Title:
ISFSI Expansion for Holteo HJ..STO~M System Permanent Chang~ [XJ iernpoi:arv Change A) Problem statemcmt and Change Paakaga Approval ff Problem statement For 1h& remaining epent fuel In tha fuel pool, o~ Creek Nuolear Generating statlon (OCNGS) wfll be ehJftlng dryft.Mll Jtorage.aotlvltle1;1 from NUHOMS Ho~ontat Ston,ge ModUll#S (HSMa) Qverto Holteo's Hl"STORM FW XL 8;'8tem. The extsttng Independent Spent Fuel Storage lnstanatton (ISFSI)
Faolllfy at OONGS ts not ab~ to adequately store the number of 08.BkB needed to support dry fuel storage operations dl111ng plant deoomm18sJonlng. ln 8'ldlt1on, due to Halteo Hl-mAC tranefar cask hefght and buHdlng oleanmce reetr1cxlons. 1ranafer of the spent fuel loaded Multf..Purpose Cannl8ter I
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, (MPC) to the HI-SiO~M FW XL $forag_e overpaok oannot be performed Inside the reactor buldlng.
Solution Statement In order to transition spent fuel transfer and storage operatJons to Holtao'e-HI-STORM FWXLsystem, a naw but separaf.9 ISFSI Pad wlJI need to be oonstruoted near the existing ISFSI faoflll.y. Thia new pad wlll be In accordanoe with appBoabla 10 .OFR 72 requirements, slt&,speolfla dealgn oonsldaratfons
,and the Holtec HJ..STORM FW XL Cask Syitem 'Final Safety Analysis Report 0::SAR). The nEWJ pad wlll be designed to aooommodata a maximum of 20 Hl,.STORM FW XL oaaks and (> Hl--SAFg o-. A canfat&r Transfer Prt (CTP) wOI ba oonsttuated adJaoent to the ISF8I Pad for the purpooe of tmnsfening the MPO between tha HJ.:mAC transfer cask and HJ-STORM overpaok. fn addition, a oom)rete Atoess Road/Approeoh 81eb wtD also be designed and lnetalled to aooommodat$ the transport prooesses of the load8d transfer oaak to the CTP, and of the storage overpaok to th&
designated storage fooatfoh Qn the new 18F81 P(ld, Note: The Approach Slab.aota as the A00888 Road ae part of the.haul path, With.the de&lgn ae Issued In thJs EC, Rev. 0, they are a alngl8 slab herefnafter deaorlb&d as th* Approaoh 8fab.
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oc ..AA-41 o..F~o2
- I Revision 1 Controlled Decommissioning Squlpmsnt Oh11nge PrtokagG (CDECP)
Change Number: 628170 j Revl~lon: 0 j FaolUty arid Vnlt oc 11. IP~e2 of19 Scope; The scope of this EC Paol<age Is to provide the design, Installation, and testing requirements klr the new oonoreta ISt:81 Pad, Canister Transfer Pit (CTP), and oonneotlng the Approaoh Slab to support future spent fuel transfer and storage operations with Holteo's HI-STORM FW XL Syst.em. This 18F81 expansion wm be o~~sfructed adjacent to tM exl8tlng (SFSI slte, . . .
Not&s:
- 1) The design, Uoenstng ancl operatlonal requirements of the new Holteo Ory Cask storege Systems (on U,e pad) are NOT In the scope of this EC and.~111 be addressed ln a sepa-ate i ..
~okage. . casks to be placed on fhe new* pad.
.This. EC fllone does hOt authorize any ' I I
- 2) The reoonftgutatlon of eJectrfoal and l&C cables, Including llghUng, crest Monitoring System I
and cameras, and fencing In the affected area le not In the soope of this EC but wlll be I addressed within EC 628307. ,.
- 3) The rerouting of domestlo Wl;lter underground piping Is not within the aoope of this EC but wm be addressed In EC 628353.
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- 4) Existing haul path evaluation lS not Included In this SC. I l
I Screened out par DC.AA--300-1011, Atfaohmsnt 1: Yes [X] No ( ]
EC 628170 has no lmpaot on the PSOAR, 8Vttllable deoommreelonlng fllnd, environmental Impact
~~ssment, or the unrestrf cteo use of the site 1;1fter deoommlsslonlng. ,
Category:
SR: [XJ ITS (Augmented): ~} Other Controlled: D I l I
! l Controlled Beoommleslonlng Equipment Chang& Paokage (COECP)
Change'Number: 828170 j Revision: 0 j Facll!Ly tAnd Unit: OC / 1 I Page 3-of 19 Oe.te:
Prapared by: Signature:
1,/.as/11 I Tedd Nll}k,&r80n
~;cJ~ l I Reviewed by:
Michael Hand 81~?4-i Date:
11/,/11 I
I OWner Aooeptanoe Review (ff reqtd): Signature: Oafe:
NIA Approved by (Vendor, ltappUosble}: Signature: Date:
WA*
Approved by (Utility):
Jeff Oostal
(
~t;~v~cY Date:
Date:
//w7w/J 1if~
Other Approval (If appl!ooble):
Herb 1'rltt JI)~ Ji, I r
oc..AA-41 0-F~02 R&vlslon 1 Controlled 0$Commlaalon1ng E-,ulpment Chrmgo Pllckaga (ODECP)
Change Number: 628170 / Revfi,ton: o j Faolllty and Unit oc / 1 [ Page.4 of 19 Table of Cont.ants A) Problem Statement and Change Packl\ge Approval. ................................................. 1 B) Datlgn ............*.,. ... ".,u. ,, ..... ~ ....................... " ***** , .. - .............. 111*********u*****... ,u,...... u ................... ,.** 6 C) Btf1 of M~rfata...........................,....... 1 ...................... ...... , .................... ......... 11: . . . . . . . . . . . . . . . . . ,n. ,u.-,,,, 9
- 0) Work Planning ln*tructtons .........n**** .............. .,. ........... .,_ .................... ..... ., ...... , .* ,rn*H**ou10 E) Teatlng Raqulrements ... ,1 ...................... ...................... ............... -............ , .................... .,,. ......., 18 F) Detign Verlflcatlon/Englnttarfng Revl_ew .................................................................. 17 G} Other Referttncea., .**......**.. _,. ... ,......,.",. ....... ~ ......................................................."....,. . .... ,, .. 17
- H} Atta:chments:......................................... ;............. ,. ..... _.,:............................................................u, 19
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DC--AA-41 O..f..02 I J Rav!slon 1 Controlled Decommlaatontng Equipment Ohange Package (ODECP)
Change Number: 628170 IRevision: 0 j Faolll(y and Unit: OC t 1 A.1 Revision Log:
Revlolon R.evlalon summary No.
0 lnltlal Issue I !
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J.:lC ..AA-41 o..p,-02 I I I Revision 1 ControllAd*OecommltalonJng Equipment Change Package (CD~OP)
Change Number: 628170 / ReVlslon: o *1 Faolllty and Unit oc / 1 j Page e or 19 B) O&slgn B.1 DQScrlptton of the Change:
y)entral Qeorfptlon*mi Change; Thhl EC Is to design and Install a new conqrete ISFSI Pad, CTP 1 end accompanylng Approach Slab Just.west of1he exlstlng ISF6I faomty, See Holtec. General Arrangement Drawing 11570 [1 0] for detalJs.
- The ISFSI Pad Is being designed for 30 storage locations (6 x 6 array) to aooommodate a total of 24 HI-STORM FWXL and 6 HJ..SAfl; storage oasks. The pad wlll be approximately 3' thlbK and 103' x 85' [10J. The design wlll tneet the requirements prescrtbed In the Hl*
STORM Anal Safety Analysis Report (PSAR) [15] anci epplloable 10 OFR 72 regulal:Ol'y requlrem~. I l I The OTP ls a.subterranean cylindrical steel weldmant whloh will be designed to allaw Mu!tl- ..I r '
Holteo HI-STORM overpack and HI~TRAC transfer oask. The CTP's main components oons1st of:bottom and top reinforced oonarete pads and transfer cavtty fotmed by 12*-2*
diameter cyllndrlcal steel shell {12). The CTP wlll be located within, and on the east aide of the Approach Slap and wfll be 26 feet square.
The Approach ~lab located south of the ISFSl Pad and containing the OTP, Is a concrete apron which provides the epace needed for the vertloal cask transporter {VCT) to maneuver and a.ooese various areas of the pad. Toe Approach Slab wlU be 1aInches 1hlok and 70t x 86' [11J. The Approach Slab wlll be designed to handle loads from the modular transporter
{HI-PORT), VCT and loaded Hl..sTORM FW XL.
Note, An overview of the Engineering Analysis, Including a brief desoriptlon of the purpose and result& of the calculations supporting this EC have bean provided In Sedtlon 23 of Attachmept 1 (Design Attribute Review).
To Install these modlfloatlons, the foHowtng general aotMtles are necessary:
- Clear the aree. ebove the ground*
- Excavate the new pad, OTB and apron areas
- Prepare the base mat (englneared flU, mud mat}
- ln9t$1l oonoreta steel reinforcement and forms
- Inatall expansion Joints between pad*
- Pour, level and test naw oonorete I *
- Grade soil to provtde proper drainage
I f I
Controlled Decommlaalonlng Equl~
Change Number. 628110 Revision: O Ffj Notea:
- 1) Government (State and !-(>oeQ pe,rmlts r Attachment 9 for list of appDoable perrr/
- 2) ECs 628307 and 628368 need to be P' lnstallatlon. .
S) See Attachment 4 of EC for forther df S,2 Attaohment 2 Completed: Yes txl No w 13.3 Separate SD.89 / 72A8 Required: Yes r.xl No [ J Numbers: QQ::W.i:R:QQ0.1,(EvaluaUon) & QQ-201~Q11 (Soreenlng)
BaBGd on Question 1 of the Soreenlng Crltsrla for Determination of Oeoomm.1&8 Configuration Change Pl'OOQae (DQ..AA-410 Rev 001, Attachment 2), the ohanG Impact the exlsflng ISFSI faoUlty {See Attachment 8 of the BC). Therefore, a 10CFR72.48 review tor the NUHOMS aystem la required. It Is noted that no pJa 6SCs are modified by this EC, so a 10CFRl50.69 revlew fB not needed.
From the 10CFR72.48 (NUHOMS) Screening, the lnitaBatlon of the new oonor ISFSI Padl err?, accompanying Approach Slab Just west of'the ex!etlng ISFSI .
does require en Evaluatfon but prior NRC r:tpproval Is not required.
Notes:
- 1) The 10OFR72.48 (NUHOMS) Soreenblg (OC-2019-&-0011) and Evaluafio1 2O10..e-0001) are performed separate from the ec.
- 2) ees 62830? ~nd 628353 which naed to be performed prior to or In O<JnJu!l(
thla ea 1natattat1on wHI affeot plant aleotrloal and piping components as we fenolng. lndMdUal 10CFR50.69 reviews wlD be perf'ormed (as appropriate) these f:iCs.
B.4 Des lgn Attrfb¢e Review: .
800 Attaohment 1 of the EC for dlsouaplone otl the pertinent d&81gn attributes Inputs for this sotlvtty.
DC~A*41 0..P-02 J Revision 1 l )
ControUed Oeoommlsslonfng Equipment Change Paokage (CDE:OP)
Change Number: 628170 I j Revision: 0 Faoltlty and Unit: OC / 1 I Page 7 of 19 Notes:
- 1) Government (state and !,.ooaQ pe.rmHa need to be addressed prior to lnatalletlon, See Attachment 9 for list of app!loable pennlts. *
- 2) ECs 628307 and 028358 need to be perfomied prior to or In oor)lunotlon with this EC Installation.
- 8) See Attachment 4 o1 EC for further detalls of the changes-.
e.2 Attachment 2 Completed: Yea [}{J No S.3 Separate ao.69 / 72.48 Required: Yes [XJ No [ ]
Numbers: QQ:2.Q19:g.. QQQ1 JEvaluatfon} & QO:?PtR:£:OQ11 (Soreenlng)
Based on Question 1 of the Soreanlng Criteria for Determination of Deoomm188lonlng Configuration Change Prooeae (DO-AA-410 Rav 001, Attachment 2)1 the ohanga oould lmpaot the existing ISFSI faolllty (See Attaohment 8 of th& EC), Therefore, ti I ,
10CFR7.2.48 review for th6l NUHOMS system Is required. It Is noted that no plant SSCs are modified by this EC. so a 10CFR60.69' review Is n<:>t needed.
From the 10CFR72.48 (NUHOMS) Screening, the lnatallatlon of the new oonoree ISFSJ Pads C'J'P. a0¢ompanylng Approach Slab Juet west of the exlailog ISF$I faolllty does require an EvaJuatlon but prior NRC approval 18 not required.
Notes:
1} The 10OFR72.48 (NUHOMS) Soreenlng (OC-2019~&-0o 11) and Evaluetlon (00-.
2019..f:..0001) are performed separate from the EC. *
- 2) ECs 628307 and 628353 which need to be performed prior to or In txJnJunotlon with this EC fnslanatlon wlll affeat plant eJettrlotd and piping oomponents as well as fenolng. lndMdual 10OFR60,59 revt8W8 w!ll be performed (as appropriate) for theae EiQs.
S.4 Dealgn Attrlb~ta Review:
- See Aftaohment 1 of the EC for dl&ousfilona on the pertinent dElBlgn ~f;tt'lbules and Inputs for this aotlvlty.
DC-AA-41 0-F..02 I l J Revision 1 Controlled ~oo~mlea lonlng Equipment ChangG Package (CDE.CP)
Change Number. 628170 j Revision: o j FaolHty and Unit oc / 1 IPage 8 of 19 B,6 Af\'8Ctod Equipment/ Compommt L.let {AEI.. f AOL):
Component ID I No. *OGaerlptton NIA Not$: Tha Conorete Pads and CTP themeelvaa ar:e not given unique component nt.1mbel'tl.
a.e Affented Dooumoht& Ltat (AOL):
6.8.1 OoctrmQnta to be 1tdderl by thlS EC:
I I Document Oooumant Oocumant Title Number Type Ravtelon 11670, Sh.1 Vendor Drawing Oy$ter Greek ISFSI Expansion General . Rev.4
. *Arrangemeot 11671, Sh.1 1 2, Vendor Drawing Oyster Creek, l8FSI and Approaoh Detal!s Rev.3 3, &4 11573, Sh.1 Vendor Drawing O~r Creek ISFSI Expsn~lon CTP ~ta lie Rev.a f 1669, Sh. 1 .. 17 Vendor Drawing OTP Fabrloatlon Drawing Rev.a t .. ~ ..
H1-2188619 Vendor Oyster Creek Oonatruetlon Speclfloatlon ~ev. 1 Specification Calculation OCNGS 18F81 Access Road and Approaoh Slab Rev.2 Calculatlona .
Hl-2188652 CaloulatlQn lmpaot of Conetructlon an~ Added Ma~s on Rev, 1 Existing TN Modules and *1si=s1 Pai.is Caloulatlon Structural Quallfloatlon of E:xlstlng end New Rav.o ISFSI Storage Pads (unvertfted assumption, ref traoktng ACIT OYS..00077"02)
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DC..AA41 o..p,-02 I I Ravlston 1 Controlled Daaomtnlsstontng Equipment Change Package (OOBOP)
Change Number: 628170 j Revlelon: 0 I Fao!Uty and Unit: 00 / 1 !Page 9 of 19 B,8,2 Documents to be ravlead by this BC:
Document Doo Update MarJ<..up Requfrement8 Tracking Ooaument l)OQType TJtle MoohanlsmfNo, Number No. and Rev. (i1;1mover or
' (If appllosb/9) (If appl/oable)
CJoaeout)
JC 19702, Sh.1 Drawing Sfte Plan See Attach. 6 Turnover ACIT#OYS..
of EC 00077..03 DJP 3E:..915HQ1~ Drawing ISFSI Site Plan - Sae Atteoh, 5 To be posted NIA 1000, Sh.1 - of EC at Closeout 8.7 Department Interfaces:
Performing Stakeholder/ Name or Person Perfonnlng tho Department Design Impacted lnterdlealpllnarynnterdepartmente.l/
lmpaot Revlew r I Activity Department Engineering X Mlohael Hand Operations X Peeter Muet Maintananoo I Planning X Rlch' Lanning/ Mike Bethune Radiation Proteotlon X John Murphy Environmental/ Chemistry ){ Ed O'Brien I Jerry Chrisman Seourlty X Joe Dwyar/Tom Miller Regulatory Assuranoa X James Frank Mote: See Attachmenta 3, a, Emd 7 of the ec 'for lnterfaoe slgn-offli, C) BIii of Materlals See Attaohment 4 arid 10 of the EC for the oonstruotlon and fabrloatlan eketohes that Identity the new parts required as wall aj the Bill of Materials for them.
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lsslonlng l:qulp1 Controllad Deoomm 70 Revls!On:* O Faolh I
Chtmge Number: 6261 tructtons P) Work Planning ln>>
to aid '..\
i& sec tion Jno /ud el$ lm plemenfutJon guldellnes Th are not lntendfKJ to be the Ol
,ge .. Th e ste ps pro vid ed oh,eyr nhers to OOSUl'f> that the app//C6 snh~ f?a ed by the wo rk pla pack\
d po l/o les ere lna orporated Into the wort<
praotloo s an }, A 51 9, 11 0y st9 r Cr ee k Co nstruotlon SfJ6clf/oot1on* [16 .
2188 fon of the oonstruatfon and installat activities required for the and Asphalt RoadWay, are as followa:
0.1 Qoneral rnatructlon8 lfons:
a) Prerequisites/ P1'80aU pennlts, as !lated In ap pro pri ate government (state & l_ocaQ tallation.
- EN SU RE all been ap pro ve d/o bta ine d prior to oommenolng Ins Attaohment 9, have and requirements set by the permits In ap plfoa ble pro vis ion s o Al!
Attachment 9 must be rn et to start of s 62 83 07 an ti 62 83 53 have been approved prior
- ENSURE separate EC work. approved.
ate ex ca va tio n {dig) permit has been
- ENSURE the ap pro pri d ooordfnete an d Ra dia tio n Pr ote ction prtor to start of work an
- CONTACT Security ef f0 $ ahead of tlme.
- tructions b) Excava'tlqn ~eneral Ins r EC 628353.
un de rground piping llnes as pa
- RELO 628307. y-addrassed od ity ls an co un tered that waa not orlglnafl
.
- lE an underground co mm NTACT the project niana ger and/or wo rk an d CO In the dig 'pahnlt1 I!:ffiN
'I ST OP
'I englnaartng for ft.irther lns truotlon.
rat ed Into like piles to the exten t possible o.e.
ial Is to be se pa
- Excf:lvated mater etc). I soil, aaphalt, stone, ooncreta, Is to be at the drscration of seourlty, ao that j on of sp olls
- The height and looatl tsnoo are maintained.
s sight llnea and proper dls Radlaffon I
po rte d off -si te sh all be sampled/surveyed first by
- Any SOIi to be trans n before It Is released .
vir on mental for oontamll'la11o Prote ction an d(o r En countered. Any ground oa va tlo n, ground water may be en
., Due to the de pth of ex to pumping It out.
ted wa ter ma y need to be sa!npled prior water or waa1 he r--r ela removal arxl nta l/C he mi str y for fur ther guidance on water
- Contect Environme I I dlaposltlon, I
I II I
i
oo..AA-41 o-F-02 l j Rav\alon 1 1
_controlled Decommlsalonlng Equipment Change Package (CDECP)
Change Number: 628170 j Revision: 0 IFaolfltyand Unit: OC / 1 IPage 11 of 19 o) New concrete lnstallatton General lnetM.lQtlona
- CONSIDER/ADDRESS the followJng before pouring ooncrete:
o Dletance the concrete needs to be pumpeo o ~aroondmo ns o Curing process o Curing time o Concrete teattng station and cylinder.stol'ftge o concrete oleanout arEta o Concrete pump and truck spoUs looatton/etorage
- iEST the oonorete per Seotlon E of 1he EC.
d) Fire hazard and transient combustible fuel limits within, and In proxtmlty to1 the exl&tlng ISFSI Pads, as desorlbed In Seotton 7 of AU.aohment 1 (Design Attrlblrte Review), must be mafntalned during oonstruotlon aoflvltleys, j
e} Sequence of work:
Construction sequenoe to be performed In aooordanoe with the Project Sohedule.
Work shall be planned and coordinate eo to not Interfere wtth other station aotlvttles.
The oonetruotlon of the following ISFSI expansion components can be perfonned In the raoommended sequence or In perailel:
- 1. CTP
- 2. ISFSI Pad S. Approach Slab
- 4. Asphalt Roadway The Construotlon of the 1:1bove oomponents wll! generally oonsl81 o1the fonowtng genera.I steps:
- Clear the area above ground
- Excavate the new pad. CTB and apron areas
- Prepare the base mat (engineered flll1 mud mat}
- lnstan struotural forms and relntoroement steel
- Install expansion joints betWeen pads
- Pour, level and test new aon0f0te
- Grade the soll and provide proper drainage e) Aooess to the existing loaded HSMs needs to be maintained for~ operator t0Ul'8, 11
( I fernpor1;1ry perlods of obstruction are expaaled, notify OJ?8ratlons.
I
00~1 0-F..02 Revision 1 OontroHed Deoomml99fonlng EqulRm&nt Change Package (CDEOP)
Change Number. 628170
.I I Re~lalon: 0 Faamty-and Unit: 00 / 1 j Paga 12 of 19 f) Task sohedullng1 ooordlnatlon and lnataller'a Walkdown(s) muet be planned w1th the approprlate pre..Job ~rial's. held _t~ ensure personnel safety an~ preclude schedule delays. I1
(
0,2 SpeclNG lnstructtons are ~& followa:
I I
- 1. Clearing .
a) PeRFORM a construot!on and lnterfemnoe walkdown of area to ensure no!hlng has ohanged since EC wae,approve d.
b) CLEAR the area as neoasaary to allow oonetrucUon of the new l8FSI baae;,ad, approach slab an9 CTP,. *
- c) REMOVE asphalt and stone/gravel along the ground surface as required.
d) Temporarily REMOVE the affected light posts, electric pole, end fencing (PA and/or Radiation Proteotlon) In accordance with EO 628307.
e) LOCATE existing underground comrnodltles based onthe'exoavatton (dlg)penntt and previous ground penetrattng radar resulte. *PERFORM new GPR ae neoessary.
' I
- 2. CTP tn*etallatlon (Refer to Altaohmetit 4, Holteo Drawing #11573 for Details}
. a. Excavation .
" REFER to the Excavation Genera( lnsttuctlons ln D.1
- EXOAVATE the ground soil In the area of the CTP In accordance ~ the exoavatlon (dig) permit and prooedure SA"AA:-117.
t EXCAVATE to base alevatlon per Attachment 4 (Holteo Drawing #11573)
[12]
- b. INSTALL Temporary Dewataring Sy$tem
- o. PREPARE SubQrede
- BACKFILL axoavated area with Common Engineered FIii per Atteohment 4 I
- d. INSTALL 4" Mud Mat
- e. INSTALL conorete Framework and Reinforcement for Base Mat
- 1. Conoret@ Pour .of Ba~ Mat
- POUR new concrete slabs (I0\l{er and then. upper When appropriate) for the CTP as per ~ttachm~nt 4 (Holteo Drawing # 11573) of EC.
- Ll:NEL ooncrete with proper slopes shown per Attachment 4 (Hotmo Drawing #11573) of EC, ., .
- CONCRETE Curing" Conflnnatton 1or strength
- TEST the conorate per Seotkm E*of tfla EC.
DO-AA-41 O..P..02 j Revision 1 Controlled DecommlulonJng Squlpment Chalige Package (CDECP)
Change Number. 628170 IRevision: 0 I Faofllty and Unit: 00 / 1 ! P8.Q$1S or 18
- g. Staging of tha OiP Shell
- INSTALL and LEVEL In a0q0rdance with Holteo Project PrOQedure HPJ:-,
2948-,001 (26].
h: OTP Shell Grouting ActMty .
- PERFORM OTP Shall Grouting AotlVltY to be performed In aooordanoe with Holteo ProJeot Prooodura HPP~2948-058 [28J,*
I. FILL Exoavaflon Pit with CSLM
- j. STA058truotural Angle Iron for Top Pad
- INSTALL new structural (angle) steel forms with neleon &tuda as well as straight and U-.ba.rs-for the upper oonorete slab of the OTP per Attaohment 4 (Holteo Drawing# 11673} of E:C.
- k. STAGE Mechanloal Attachments eooordlng to Attachment 4 (Holtec Drawing#
11m).of so.
L POUR oonorete Of Top Pad
! I 3. ISFS( aaee Pad (S@e Attachment 4, Holteo Drawtng #11571 for detatls)
- a. excavation
- REFER to the Excavation General lnatruotlons In 0.1
- EXCAVATE the ground soil ltl the area of the new ISFSI base..pad In aooordanoe with the excavation (dig) permit and procedure SAwAA--117,
- EXCAVATE to base elevation per Attaohment 4 (Holteo Drawing #11671) of EC [11].
- b. INSTALL Temporary Otmaterlng system*
0, PREPARE SUbgrada
- BACKFILL 1he excavated areas for the ISFSI BaS&-pad with englnetlred fffl 1;1nd oompeot per Attaohment4 (Hottec Orawlng#1i571) of EC [111,
- d. PERFORM Statto Plate Load Test I&, JNSTALL411 Mud Mat
- f. INSTALL Conorete l=orm Work and ISFSI Relnforoemstrt
- g. STAGS Structural steel.Angle /J'Qn
- IN8TALL MW etruoturat (angle) .steel fonm with nelson st1J<ls and rabar for the new oonarete base-pad per Attaohmant 4 O-tolteo Drawing#
111571) of EC r11J.
. h, Conorete Pour for ISJ;SI Pad
- POUR new oonorete ftn:o forms for the ISFSI base-pad per Att:Mhment 4
{Holteo Drawing t/i 11571) o1 EC.
- LEVEL conorets VJfth proper 3lopes sht1wn per Attaahment 4 (Hotten
! ; Drawing# 11671) of EC.
- '!'EST the oonorete per Seotlon E of the EC.
I. ISFSI Oonorete Curing and ThtQkneas Survay
\
OC..AA-41 o..f ..02
! i Revfslon 1 Gontroned Dooommlsslonlng Equipment Change Package (CDECP}
Change Number: 628170
- j Revision: 0 IFaoillty and Unlt oc / 1 I Page 14 of 19 l
- Thlo~e Survey wlH be ij part of Holteo 0A
.I
- 4. Approaoh Slab (See Attachment 4, Holteo OraW!n(I #11571 for detana) 1
- a. l:xoavatlon I
- REFER to 1ha Exoav{ltlon General lnstruotlons In 0.1
- EXCAVAit: the ground son In the area of Approaoh Slab In aocordanoe I
I with the exoavatlon (dig) parmlt and prooedure SA-:AA-117. . 'i
- EXCAVATE to base elevatlon per AttaQhment 4 (Holfec Drawing #11571)
. !11] *: .
- b. PREPARE 8ubgrade
- BAOKFri.l' excavatad areas with engineered flll and compact per Attachmel1t 4 (Holtec DraWlng #11611) [11]
- o. INSTALL 4" Mud Mat
- d. INSTALL formwork and expanslonjolnts*between pads
- INST1?,LL 1/4" prefonned expansion Joints between the foUowlng per AttaohmEint 4 (Holtec Drawing 11571) of EC: I
.../* ISFSI Pad and Approach.Slab e, lNSTAl:.l: Steel R~lnforcement
- 'INSTALL new structural {angle) afe~I fonns with nelson studs and rabar per Attachmen14 (Holteo'Drawlng # 11511)'of Ee.
- f. Oonotete pours *
- POUR ne,w ooncrete Into forms for the approach slab as per Attachment 4 (Hottec Drawing # 11671) of EC.
- TEST tha ooncrete per Sedlon E of the EC.
- LEVEL oonc'rete with proper slopes shown per Attachment 4 (Holteo Drawing# 1157.0) bf EC.
g, CURE and FINISH concrete B. Grading and Drainage
. a. PERFORM final grading of the foundations al'l'd site areas around the new conoreta pads. ** *
- b. Any disturbed areas that have *not been covered with oonorete or asphalt ahaD be
. CLEANED UP ~nd RESTORED.
- 6. Asphalt RoadWay
. e. PREPARE and compact sllbgrade
- b. tNs:rALL base ooarse layer
- c. INSTALL. tack ooat layer I ] d. IN8TALL. 2urf8oe ooaraa layer
' ) Revision 1.
Controlled Decommlnlonlng equipment Change Package (CDECP)
Ohan{le Number: 628170 j Revlilon: 0 l Faolllty and Unit: OC / 1 j Paga 16 of 19
- 7. FlNALIZE lighting, oablae, oamel'a8, and 1enolng ohanges In aooordall08 wtth ea 628307.
AWA lsaued1 Yes [l Desorlbe: - - ~ - No rxJ D,3 ANl Required: Yes Oeeorlbe: _ _ __ No [Xl E) Testing Requirements e!1 iesting Overview:
Testing and QA/QC;
- Minimum s~ngth raqulremenw for the !WII ehall be oheoked and oonflrmad prlor to oommenclng oonstructlon. Planner shall provide a work order algn oftfor the Ins* to vertfy these requirements have been met.
l I
- The following Olitfoal aspects at the lnstallatlon are suggested for QA ~urvelllance:
o Final ground exoovatlon depth(e) and layout o Fteld testing of earthWork o Field testing of oonarete lnoludlng oolleotlon ot oonqreta test cylinders o Flatness and finish orlterla o FIil plaoemtmt end compaction NotGs:
- 1) AD of the test.Ing requirements shaU be In aooordanae with Holteo Report Hl..2188619, 11
- Oyster Creek Conetrol'.ltlon Spaalfloatlon [18l,
- 2) Slgnffloant requlrementa are relterated In Section E.2 Testing Requlramenfa below.
- 3) QA/QC requirements wlll be In aooordanoe with Hotteo Quanty Program l
e.2 Testing Requirements:
CrlfJcal Aaceptanoo Teat Method Oharacterlatlc Orlt&rta Soll Te&tln£1 Soll Compaotlon All baokftll shall be Compaotlon Test par ASTM 01667 compacted to 96 % [3J-as required.
(minimum) of the maximum dry densltv 001\Crtfffi Tostlng I
IS!iSI Pad Oonorete ~ 4600 psi S'"/000 Compressive Test per ASTM 039 I
CornpresslV! Strength pal at 28 daye I2]
i oc..AM1 ()..f..02 l
RavleJon 1 I Controlled Decon,mtulontng Equipment Change Package (CDE!OP)
Change Number: 628170 j Revlelon: O IFaolllty and Unit. OC / 1 I Page 17 of 1Q P) Om;tgn VerlflootlonlEnglneerlng Review D(J Independent Dealgn Review I Design Review Method l' I I Design Ri,vlew Quallfloaflon Testtng summary of Review: Design review performed bY vendor (Holteo) per their QA Plan. OWner Aooaptanoe Revfe"W performed IAW OC-OC-410, AU. 15, See oaloe *refarenoed In B.6, 1 (Attsohments 11 and 12).
- G) other Referencea
- 1. IR 04245961 .
2, ASTM C39 - standard Test Method for Compraealve Strength of Cylindrloal Oonomte Speo(mens
- 3. ASTM D1667 .... Standard ieat Methoda fol' Laboratory Oompaotlon Charaoterlstloa of SoO Using Modffled Eft'Ort ({66,000ft,.lbf/fti) or (Z700kN-m/tn~)
- 4. ASTM A616 - Standard Speoffloatlon for Deformed and Plain Carbon- steel Bare for C,onorete Reinforcement 6, Not-used 8, Notused
- 7. ACI 318-14, ,.Bulldlng Oode Requirements for struoturaJ Oonorete. *
- 8. Not used,
- 9. ASTM A706, ~standard Speolfloatlon for Oefonn~ and Plaln Lc,w.,Alloy steel Bars for Conorete Retrnoroament.11 1o. Horteo Drawing 11570, Sh.1, Rev 8, 'Oyster Creek ISFSI ExpanlPlon General Arrangement' 11
- 11. Halteo Drawing 11671, Sh.1, 2, 3 & 4-, Rev 2, 0yster Creek ISF$1 Appl'Qaoh Road Oetalhr'
- 12. Holteo Drawing 11573, Sh, 1, Rev 2, ~Oyster creek ISFSI Expansion CTP Datallaa r I 13. Holteo Drawing 11669, Sh. 1..17, Rev O, neanlater Transfer Pit (O'TPt
- 14. Holtec Repory Hl..2188616. Rev. 21 110y$tel' Creek Nuolear Generating Station ... Olvn O&slgn Crtterla Oooum1:1nr
oc ..M-41 o..f ..02 Revision 1 Controlled OecommleslonJng Equipment Chango Packago (COECP)
Change Number. 628170 j Revision: 0 / Faolllty and Unit 00 / 1 1 Page 18 of 19
- 15. Holtac Report Hl-211~30, Rev Sr nprnal Safety Analysis Report on the HJ,.STORM*FW MPC Storage Sy&tem11,
- 16. Holt~ ~epott H,1~2188519,. Re~ 1, "Oyater creek Conatruotlon Speolffoatlon"
- 17. *l;olteq.E,epo~ Ht"2188ey48, Rey 2, "Oy$ter Creek Nuclear Gane!'Eltlng Stetlon ISF~l Access
- 1 * *
- Road and .Approach 81¢i Calcula11on," .
1a.' Hotteo ~~~ Hl-21.aaptfa, R,e~ 1, ;Impact of Construotlon and Added* Man on Exl~ttng TN Modul.~ and 11
. ISFSI Pade .
- 19. OC Deconimlselonlng Teohnlcal Speolflcatlons (DTS)t Rav. O
- 20. Sile Area Drawing J0 19702 Sh.1, Rev. 38
- 21. ISFSI r;,1an Drawfng OJP .8E-91&-01 ..1000 Sh. 1, Rev. 0
- 22. ECR #09-00716 1 Rev. 1
- 23. Oyster Creek DSAR, Rav. O
\ . 24. OCGS 10 OFR 72.212 Evaluation RepQrt, R10, 16 CFR 72.212 Evaluation Transnuolear NUHOMS 61ST and 61B11-1 Cask System {OYS)
- 25. Trananuciear, !no. "Final Safety Analysis Report for the ~ndardlxed NUHOMS Horizontal Modulet Ston:~90 System for Irradiated Nuclear FueJ'I, Rev 71 8, 10 ,11, and 12.
- 26. Holteo Prooedure HPPw2948-0Q1, 'Rev, 0, *oyster Creek ~olSteri'ransfar Ptt~CTP} .
Installation Procedure*
- 27. Ho!teo !=lrocedure HPP-2~8--056, Rev. 1, "Backfill Placement Procedure for ~yster Creek ISFSI Expansion Project"
- 28. Holtec P.rocedure HPP..2Q48-068, Rev. 1, *canister Transfer Pit (OTP) Leveling Grout lnstallatlon' 2@f. Hotteo"Prooedure HPP-2948n101, Rev. 2, "Rebar Placement'and lnspeolfon Prooodure for Oyster Creek ISFSI Expanslonn
DC-AA-410 ..F..02 Revision 1 Controne<f Deoommlaelonlng Equipment Change Packtlge (COSOP)
Change Number: 628170 IRevision: I o Facility and Unit: oc / 1 j Pase 19 of 1g H) AUaohments (to be transmitted to RM wJth EC)
Attachment 1: Design Attribute and Input Ravlew (DAR)1 DO-AA.-410 Rev 001 Attaohment4*(13 pgs)
Attaohmant 2: Screening for Approved Fire Protection Program (AFPP) lmpaot, DC:,.AA"410 Rev 001 Attaohment 6 (1 pg,)
Ath\ohment 3: Environmental Soreenlng Checkllat, E.N-AA ..108~F4J2 Rev 002 (4 pg,)
Attachment -4 (6 pgs):
Drawing 11670, Sh, 1. Rev. 4, oc ISFSI Expansion General Arrangement DraWlflg 111571, Sh. 1--4, Rav. 3, 00 ISFSI and Approach Details Drawing 11673, Sh, 1, Rev, a, OC lSFSI ~panelon OTP Delalla 1 , Attachment 5: Markups to Site DNN!lngs (4 pgs)
Attaohmant 6: At.ARA Review Forms, CC,.M.,212..1001 Rav 002 AtfaohmentB 1 and 2 (2 pgs)
Attaohment 7: Impact Review forms (8 pgs)
Attaohment 8; -Screening Crltet1a for Determination of Deoomrntsslonlng Oonffguratton Ohlnge
~rooess, DOf,A-410 Rev -001 Attachment 2 (1 pg.)
Attaohrnent 9: List of Pennlts {1 pge)
Attachment 10: Drawing 11669, Sh, 1..17, Rev. 0, oc Canfster Trenst'er Pit (CTP) Fabrtoatlon Drawing (17 pga)
Attachment 11: C-Onstnrotton Speolfloatloris (Hl-2188519, Rev. 1) (156 pgs)
Attaohment 12: Oaloulatlon Hl-21.88548, Rw. 2, ISF8I Aooeaa Road and Approaoh Slab caJoulatlon (1 pg)
A1taohment 18: Caloulatlon Hl..2188552, RtW. o, lmpaot otC<me.tl\lcllon "'"d Addtd Mee on Existing TN Modules end ISFSI Pad$ (1 pg)
Attaohment 14: Tracking A~ttona (1 pg) 1 l,
lSC#628170 Attachment# 1 Paga 1 of 12 DW31QN ATl'RJBIJTE AND INPUT RevJE\llf The followfng Deslgn Attributes and Inputs from prooedure OC.M--410 Attachment 4 were deem&d pertinent or affected by 1he sub}eet activity:
Soope of Aotlvliy: I The soope of this EC Is to provide the design, lnstalletlon, and testJng requirements for the conetruotlon .1 I
of a new oonorete ISFSI. Pad, Canister Transfer Pit (OTP), enci oonneotlng Approaoh Slab to support I apent fuel transfer and storage operattons at Oyster Creek wlttl Holteo's HI..STORM FW Syatem. Thia I ISFSI e~slon wm be. oonstruoted adjacent to tha axlsting JSFSl 8lta. I This EC elone will not permit the plaoement or tnstanatlon of Holtao'e HI..STORM FW Systems.
Note:
References In this EC attachment are captuted In.brackets[#] that are t!ed 10 Section 6.
- 1. !?aslo §§0 FynsrtTont The function of ,he !SFSt system (915) Is to store spent nuclear fuel In aooordanoe with 1he general Uoansa provisions of 10CFR72, Subpart K.
The new ISFSI Pad 18 a reinforced canorete storage pad for Holteo's Hl..sTORM FW cask Systems, supported by engineered fill. The primary function of the iSFSI Pad la to provide a foundallon for 24 loaded HI-STORM FW Casks and 6 Hl~AFE Gasks to* be stored on pad In a 5 x 6 array. The pad Witt be 36 fnches thlok With foot prtnt dimensions of 103 feet.x 86 feet.
The CTP Is a subterraneal) oyllndrical steel wel_dment, whloh eltows Multl.,Purpo_~ C~mlster (MPC) transfer operations to be performed at the ISFSI Site b~e~ the Hottec HI..STORM overpack and HIM TRAC transfer oaek. Toe -prtmary function of the OTP Is to s4pport the stack:.up conflgUrallon of the HI--
STORM, Mating Davlae, and HI-TRAC dunng MPC transfer opetatton~. !.h!3 C'fP's meln componEirrts consist of bottom and top reinforced concrete pads and a transfer oavtty formed by a 'oyllndrloal steel shell. ~ntrolled Low-Strength Mater!~ (CLSM] then BUITOUnds.the-CTP ahen.
The 18F81 Approaoh Slab ls a concrete apron that Is d8$1gned to support loads from loaded Mum-Purpose Canister (MPG) during tral)Sport operations and llye loads. The p.ppr~ach Slab allows the Cask Transporter (VG'D with loaded Hf..sTO~M to access an~ allgn With tleslgnated storage looatlon on the ISFSI Paq for long..tenn storage. The Appro~ Sia!;> footpt1nt dh111:msl~ns will be 70 feet x 8S feet and laoat&d adjacent to the sduthe,rn edge of the ISFSI Pad. The Ajlpn:>aoh Slab 1s designed to sustain loads of the HI..PORT with the loaded HI--TRAC, the VCT wfth the loaded HI-TRAO or HI" STORM 1 and HI..STORM p~ced dlraotly pn the concrete alaq. Note: Tne Approach Slab aots as the Access Raad as part of the haul path. With.the design as Issued In this EO, Rev. 0, they are a single slab hereinafter dasortbed as the Approach Slab, The function of the axletlng ISFSI remains unohanger:I.
I t
1:0#6281'10 Attachment'# 1 Page 2 of 12
- 2. 22mlsura,t1on Gb@og@ QlmelfJomJ<>n ihe EC (628170) Is given the oonservattve quality olasslfloatlon of Safety Related as thete are p~n6al Impacts to the existing NUHOMS system.
Also, the overall lSFSI system (915) Is claesffied QB Safety Related (SR). However, the new I8FSI Pad and OTP themselves !:\re to be olasslfled as Important-to Safety (ITS)/ Augmented (AQ}, "'1th further designations-below:
The CTP ts elanltk,d aa hnportant*to..safety Olaes C (li&-C). The approp~e eafely ol*etnoat.lon
!~vets of the OTP components ara 'shown below:
- 'OTP Conarete and Rebar are olaselfled as ITS-0
- All other components that are not essential for transferrfng loads are alasalftad as Not--
lmporlant-io Safety (NffS), lnoludlng Rebar 1Mra Tle&, Rebar Chairs, Mud M~ LeveUng Grout, and Cl.SM The ISF'SI Pad la classified e.s lmportanMo--Sefe'ty Class O(ITS-0), Tht) approprb!lta sufety otassHJoatlon levels of the ISFSI oomponents are shown below:
- ISFSI Pad Concrete and Rebar ara olasslfled u rra,.c o AO other oomponents aesoclated with the oonstruotlon of the ISF'SI Pad are oleaalfled as Not- Important-to,. Safety {NITS), fncludlng Rebar Chairs, Rebar Wire Ties, Engineering Fll!
and Mud Mat
- As for the Apmoach Slab, It Is olasslfled as Not.lmportant..tQ-Safety (NITS).
ITS designations are determined using Holteo standard Prooedure HSP~S415 (whloh ts b~ on tl'\e methods and descriptions of NUREG/CR-8407). . .
Note, the ITS Qlaaetfloat!Qn of the new ISFSI Pa.d and CTP Is dlffer~nt from the exletfng pad for the NUHOMS oasks, The NUHOMS Pad ls not oredlted In an auoldent. $0 It Is not tafety related.
- s. §Jmmtc c1m,moetl2n The aelsmtc olasalffoatlon ~tegol'Jee, as deflrted in the 0006 OSAR, are not applloabltt to the J8FSI Pad, Approach Slab and CTP, *
. However, the 18F8l Psd and. OTP are required to perform their Intended ft.motion during and after~
destgn baafa earthquake. Therefore, they era given ihe ofasslflolitltm$ Of:
W- (Selsmlo Claes 1 .... Operable During and After SSE)
The Approach Slab Is NITS and ere not ava.tua.ted to support dynamic (eels.mlo) loads. Therefore, th~y are olasalfled as non..aelsmkl.
- 4. ,e,r&muu:we B!ffiYU,manm and l2HIAA ca,ndltl<<we
@aoteohaJQal ~r,gn Criteria
, r All gaoteohnloal design paramet&l\l and son aubaurfaoe oondltkms. ueed for thft design of the ISFSI Pad, Approach Slab \~d OTP are, provided In reports generated i,y Holteo whlQh refarana& lnputa given
EC#628170 Attachment# 9 Page 1 of 1 Permit List for EC 828170 Organization Permit Lacey Township Plannlng or ZOnng Board ocean County Planning Board Ooean County Soll ConeervaUon Dfatrlot for Soll Erosion and Sediment Control NJDEP CAFRA Individual Permit Note:
- These Government (State and Local) pennlts need to be add1'888ed prior to lnstallatl on
I ;
I I EXHIBIT 'I' I I I
II I
EO 628170, Attaohment 12, Page 1 of 8 lnter~oe Department Oommcmt / lmptlot Review Form Page *t of 2
~
l l
.. . .. f..ll'MJ!llt.y !Ind JJutti 00 / l
- JJti Nnllllr** ij~70 Revtek11.11 u llottortmAnu o "'d:o ... r l&1N -s Jluvla~ i ~A-I.ft" 1 LJ.l.f-
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anv opmmlns exiwrt~pc-. rtJated to vour progom or departmant (aig,,. furun!onal prohf*t'l'laJ.
malnttrumce l&iUa:tr rallabmty, etc,)
- Bl'I\' 11ddltironel ~tan 1"t:Ul.1S ht n netessalV far Yt11Jr PrOB)'am or dar,ertnnmt (a.a" -
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gc 628170, Attaohment 12. Paga 2 of 8 tnterfal.le Department Comment I Impact Review Form ~Qge 2 of 2
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hldltlonal de~artmtint.riultfa'l'IM fof parforriilhg thd stak"eholder lrflpdet ~YIEt\W ls ~mvlc!~d.,1n tf'Rl!amdarcl I
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Dooum1mt.$ Lln-Ot'the change ~a~e to ens11re th~t4 tfo-eU~rftd°tire ~Mtiartv !slued to sa(;lporl the cnarige/modlfttatl on. * .
- ~tea 1)6(1Ulttcint. 1'.ftlG *Mtln~t Urla UpiLt!o 'l'l'ltclung lloowtfetrt 'fy(fe M<<rk-tlrt ~~fa M~iiliWfilo.
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I have. revlawetl tne proposin:l °'odlfl~tlof) \Htd ldentlflad l!it1V e'ddltlonal doctnnant *ses; d~slgn requlremehts,
-or op~ratlot1al axperlence relatedte frt)f fJ(Clil'am ot dapattm&ht, Any additional df5slgn r(if(JUir~ent~, f.efeteneoo, prorJA!rh chm.get, 1:lhd opetatlornil 11)(1'erten~ hava been ldentfflad and docuMMted cm (or are attached to} thb form, n11nrnt 0)
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EO 628170, Att.e.ohment 121 Page 8 of 8
- 1nterfaoe Department.OommentJ lrnpaof Revl&w Fonn Page 1 of-2 I l
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- maJr,tMmice Issues, reUttW!tty, <rta.}
- Bny eddltronal d!Ufgn fQSUll'l,ll-tnlt Sl'fl n~ary for y&Ul'-prOJram or der,Nt.me11t (e.g.,
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EC 628170, Attaohment 12. Page 4 of 8
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Interface Oepttrtment Comment/ Impact ~evlmw flom, Page 2 of 2 I
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Addltl~ I def>lrtmimt gllkbJt1~ tor perrortlftfrtg th~ etabholddr Impact 1'$\/lfl\W l.!I ,>rrNltf'ed In the 5jlltnfard t>eslgn PrQ- l\9S(1tlftt MariuaL All Clf the d-epaitment doooments lrstari .wf.11 be lntludti:1111 the Alt'Btted Doc\Jm!mts List of-the change p11claip to tmsure- theta dooumsnts lite pl'O#>fll'ly f!IIUerl to support the a1ana.e/mlfll$tkrn. (
Afs)eted ~ 'l'lftd . Ddnlellt 'l>tlb Y)Utu 'J111d(blg llaoJitltl!Jft 'fW~ Mlim.tfp Rl4 idr'ffl4\tt.v ~llldd/.NO.
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I have reviewed tha prnp~ mocllflcatlon und ldentlfted any eddltJonal doaUment ~es, design t\\qulrament,1 or operatlom1l e>¢1Efl'JenOG tel~ted-to my progt:tim "Or dePbrtment M'/ addlt1ofla:I daefgh ~ul1'1!,rnentt,-r&fai'ences, I prt:1BJ11m chttnpi;1 and operational .-1en(i;I have bean ldentme,d and docurnented an (ar are attached to} this
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EC 628170, Attaohment 12, Page 15 of 8
) . lnttliaos Oeparbnent Oommimtl lmpaot Riwtew Form "' Paga 1 of 2 l :rmllllty and Unlit oo / l
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EC 828170, Attaohment 12. Page 6 of B lntbrfao9- OtJpartment Oommtint /. lmpaot Rev1ew Porm J
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.O&bllh)d hhf)II~ Review Meetings.) .
I have revfMll ltl!! praymsed madlfloutll>tl .11~ 1dahtff{6d miv addltlorni I ~~~t then,ge~ de$1ga .ra_qolrements, or operEltlomil-axpertenoo related ta my program or department. Any addltlonal destgn _requrremoo.ts, rofel'fJ'll~
prognrtti ch$tges, 11n(I tJf,ltmrttollill ellpeTJenca hiWe b~ lcklhtlflad and dOQ.trnenttKl an {Qr .ere uttaohed ta) Ibis wrm.
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EO 628170, Attachment 1Z Page 7 of 8 Interface Dopartment Cornmsnt / lmpaot RG,vl,w Form Pag* 1 of 2
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- -.inv operatlngil)Q:lerl,n reJrted to your presremor depal'm1.Cil~ {e.g., fun~loru1! prosletm1 1r1alnter1an~ l~uas, rellabll~, $t1:l.)
- anytdc:.lltlaiwl rJiutgn faa.w.r.iw thflt are "'11'.lQSB&fY for ypur pr~m or de~rtrnant (e,a/J W1vfronmenta~ redtolt:1Sfnsl, o(Jerattonal, st~rel, human fut;.'tors, stt,I C:00C:81ffUlll lmPBot lttlllew ~Cfflllng lreiidoomc t Co~ftt111 I
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/ lnterteo& Department Comment/ Impact Review Form EC 628170, Attaohment 12i Page 8 of 8 Page 2 of 2 I *
- 1l'R .~'UldtrQC/l List the dOCIUn\$11'5 ~1'rT Yb1:fr depert(n(fn1 thaHequD:E? addltfoh,, d~let:)ai,_ 0~ l'e~on \YI 8 !'88llltofthl$
thanueJrriodJflqattnn, 'l'hle JnclUtteS ariy ttia~ m.w;,\'pa_~~l' dti~.~, drawr~,_~WOM, commltl'Mttts; r,tcuraat,rm, ~ e , , Ntntna:; ~e. ~t wlll ~Tturuttsd to supJrt thl9 modlflt.atfon.
Addtttonal aepaftrnt1nt gwJdencn for ~rMtng thti sf:rikel1okkft lrripbttt ~ s l! provtded fn the Standard 0-its.lSCI Process Raaourc& Manual. All of the department dOCl.ll11911ts J!St'&e WIii M 1nclud'!!tf In tM Affected ooeum~11ta UsttJf the Cl'mnte packsg& to ensUNt toe~ ~uma11ta are ptoperty l4tt.nYd to rui,p-orttrnl
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{Requlte'd to~ sfl{ned far the tlna1 ltrfpadt rffit/ffiw Meatlna. This secillon Is nonaqulred f'or tha Ctltla!pt.uul or Otrtella~ lrnlfili:t !Ulldew*Meettng,.) .
J have reviewed the prapossd mDdfftcatlcm 11nd ltlahttftdd'any ad~ltlonal document changes-, de,11! requfremertts, ot QP.Uf'lltfon-afe)(J.\erlence relalifto my pl'OgtUfn or department. ruto,i~do!tfbnal dosfgn requlremmts, t'3fetimca5, program dtangas, Wl~ ~611!1 al(fMitlenca. hacis bti\ln ldtintffied and dof!l.lnnittted on (or sre atle.thad tot thltt fu~ .
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EO 628170 Attachment 8 DOwAA"410
) Page 1 of 1 Revlslol'I 1 I r Paga 25 of35 A'TTAOHMENT 2 Screening Crltarla for Determination of Decommlaatonlng Configuration Chango Prooese Page 1 of 1
- If It Is unolear as to why any question Is answered Yes" or "No,11 then a reason why that answer wae chosen sho~ld be fnoluded Jn the Desorlptlon of Chf.\nge.
If the anawerto ADY: qU8$tfon 1 through 6 ls "Yes," then a 50.69 screening per Ls.AA-.104-i or 72,46 par LS,.AA-114 Is required.
If the answei: to ~ question ts Y"1 11 tt11,n FOLLOW Section 4.8 for Control(ed Deoommlestonfng Equipment
- 11.en answers to d questions art;t 11N0,1' then FOLLOW Beotlon 4,,9 for Oommerolal Changes, NOTE: Questions 1 through 6 define an operating boundary that ensures that th~
Configuration Change doe$ IDB or smon2t adversely Impact a systems structure, or oomponent as desorlbed !n the Defueled Safety Anafysla Report (DSAR) or Independent Fuel storage Safety Analysis Report
{IFSSAR).
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- 1. Could the ohange affect th& design funotlon or me-thod of perfonnlng the funotlon at a SSC desorlbed ln the DSAR/JFSSAR? [esJj!! ~ pad~ ~n: eoten~tii lmpafil ~@stjiig"JSF$1 !i,_cTiijl
- 2. Ooee the change Involve any change to ~ dealgn baels limit for fission produot barrl&rS? ~
- a. Does the change Involve .a ohange to a prooadure that afTt}ots how DSARIIFSSAR de.ectfbed design runcttona 8t'e performed or oontt'otled? ~
- 4. Does too ohange require a change In the Permanently Deflleled 'fechnloal Speolff0Qtfona1 l§:J
- 6. Does the proposed ahange Involve a ohang& tc; the Certltloate o1 Oompltanoe or att&,.spoofflo ISFSI Lloenee?
- 1
~ *
- e. Is the afl'eoted sac olaaslfled u eafety..retmed, lrnpQrtant to Safety, ASME Boller & ProollUfe Vesael Code I, Ill, or XI, or Controlled Deoomml881onlng Equipment? ~ .
7, Ate any atreoted sso1 required to be selsrnloelly mounted, In order to proteot eyetems or components located below (eelamlo 2 over 1; selsmlo antf..fall down} that oould be damaged If the affe-Oted sso were to fall during a eelsmlo _event? ~
- 8. Does the ohEmge have the potential to lmpaot the plant masonry bloat< walls analysle, or ImpE\ot any design taature oredlted In that anelyels with preventing or rnltlQattng damage dua to euoh ftlllures? itE:J
- 9. Does the ohange reduce the effeoflven e Nuofear Emargenoy Plan aa oonoluded by 10 OFR 60.54{q)? . o,
- 10. Does the ohange reduoe th& ~enese of the SIie Security Plan as oorioluded by 10 CFR 60.54(p)?
EXHIBIT 'J' DASTI, MURPHY, McGUCION, ULAKY, KOUTSOURIS & CONNORS Jerry J, Dutt t A Professional Corporation Gngury P, MoGQokfn 0/Counul Chriatophor K. Kouttourla O4 Tax ID 22-3450668 Charlot E, &blogor, Jr,;
Robert E, Ulaky cot www*.dmmlawfirm,oom Georg. F. Jilurpliy, Jr, ,i 0 CJ.irietoplaer J. Connoni Elbabeth KaokoUn Daill ;
Timothy J, ldoNlchol, t Martin J. Buckley Reply to: Forked Rmr Office Forked River OfflOOI Kebey A. MoGuokln*Anlhony 6!0 West Laoo1 Road Thom111 E. Monahan~ 620 We11t Lacey Road Forked lUVOT, NJ 087111 Patrlok F, Vuga P 609-971-1010 Forked River, NJ 08781 P' 609-971-1093
'/tCwdJWCfl'#Trlll~
~ Multl,ol Call!f 1.-AIIIMI'!)' P 609-971-1010
- F 609-971-7098
~ N.,_.,A'"")'cfEWN Tomt Rl,or OMOCII
,lllonlf)'I tNJILO,I illlllll<fr' LIiio OMtMM ,J' NJ w Pl.A &r l){,,,._ Email Address: Jdastl@dmmlawflnn.com 506 Hoopor Avonuo TolUS River, NJ 08'ls, VJ-!rrej'NJ.d PA Bar P 731-849-24%
AJl.m6wt{ NJ 111111 l'ff l1or Ji 7§.849-1590 May 14, 2020 (
OL-29337 Yip Federal Express <mrnlebt Deijvety Riobard W. Hunt, Esquire Parker McCay, PA /
9000 Mldlantlo Drive Suite 300 Mt Laurel, NJ 08054 /
RE: Lacey Township - Holtec International
Dear Mr. Hunt:
As you are aware this office serves as Solicitor for Lacey Towmhip, I would lik~ to address the seriol,lS concerns about the manner in which your client, Holteo International, is undertaking work at the Oyster Creek Generating facility (the "Property"),
As you are WJ'll aware Lacey Township issued a Stop Work Order for the work that was ongoing at the Property. The Stop Work Order was issued on or about March 27, 2020. On behalf of your client your office has filed an appeal with the Ocean County Board of Appeals dated April 17, 2020.
Frankly, we foil to understand how Holtcc cannot accept the fact that a permit is needed for the work that Holteo has now undertaken at the Property. We state this based upon documents which are of record. many of which have boon authored by your client in conjunction with the decommissioning project now being undertaken at the Property.
As you may be aware Lacey Township has incorporated by reference the Uniform Construction Code into and ,
therefore part of its Building Code. The Unifonn Construction Code, set forth at N.J.A.C. 5:23-2.14(a) provides in part:
_Richard W. Hunt, Esquire Re: Lacey Township - Holtec Project May 14, 2020 Page2 Construction Permits - When Required "It shall be unlawful to construct, enlarge, repair, renovate, alter, reconstruct or demolish a structure, or change the use of a building or structure, or portion thereof. ..,,.
The Administrative Code at NJ.A.C. 5:23-1.4 defines a structure as:
"A combination of materials to fonn a construction for occupancy, use or ornamentation, whether installed on, above, or below the surface of a parcel of lend; provided the word "structure" shall be construed when used herein as though followed by the vvords 'part or parts thereof and equipment therein' unless the context clearly requires a different meaning." -
)
Therefore, permits are required before a "structure" as d_efined herein, oan be pennitted.
It is abundantly clear that a pcnnit is needed to construct what we understand to be a large slab of concrete which will house the spent nuclear fuel rods. We are infonned that your client is building structures into the ground, by excavating a substantial area which presumably will thereafter house the spent fuel rocb. In addition, the application submitted on behalf of your client to the Lacey Township Planning Board for site plan approval in December of 2019 (see attached Exhibit* A) included a pennit issued by NJDEP on November 15, 2019 which described the authorized activities as:
"Construction of a new pad for Independent spent fuel storage installation expansion. driveway alignment, and a new 40 ft. by 55 ft. security building, This project is entirely within the existing developed portions of the ~. There will be no net increase in impervious coverage!'
We are uncertain at this time whether or not an enclosure will be constructed over the slab. However, it is abundantly clear that the simple construction of a concrete slab is defined as a "structure" and therefore requires a building permit to be issued by the Township. In addition, we presume there will-be electrical work undertaken on site which will require electrical permits to be submitted to the Township, All of the above requires site plan approval from the Townshlp, in accordance with the provisions of Chapter 285-1 (Exhibit B) of the Lacey Township Code. We also draw your attention to Section 297-17 {Exhibit C) of the Township Code which requires pennits for lot grading, In ~ddition to the above we believe it will be necessary for your client to obtain approvals from the Ooean County Soils Commission. Certainly it cannot be reasonably denied that even simply constructing a concrete slab to house these spent fuel rods, whether or not there is a structure
~ constructed over the slab, requires a building permit. L The history of this Property is such that it is abundantly clear, when necessary and when a permit was required, the owner of the Property obtained appropriate approvals from the Township before undertaking the work.
DASTI, MURPHY, McGUCKIN, ULAKY, KOUTSOURIS & CONNORS COUNSIIU.ORS AT V. W
Riobard W. Hunt, Esquire Re: Lacey Township - Holtoo Project May 14, 2020 Page3 I have attached hereto Resolution #93-40 (Exhibit D) adopted by the Lacey Township Zoning Board of Adjustment on April 4, 1994. The then owner of the Property, Jersey Central Power & Light Company, correctly applied to tho Zoning Board of Adjustment to undertake the constructlon of an "independent spent fuel storage installation at the Oyster Creek facility".
In addition, your client's predecessor owner of the Property, Exelon, applied to the Lacey Township Planning Board for minor site plan approval. That application was approved by the Lacey Township Planning Board on October 12, 2010 (Exhibit E). That application sought approval to expand the "independent spent fuel storage area ... ".
We have reviewed the Administrative Consent Order entered into by Exelon Generation Company, LLC, and the New Jersey Department of Environmental Protection (Exhibit F). That approval involves the decommissioning of the fonner generating facility. The Administrative Consent Order, in paragraph 41, states:
"This ACO shall not relieve Exelon from any obligation to obtain and comply with all required federal, state, and local pennits, or from any obligation to comply with all applicable statutes, codes, rules, regulations and orders."
As you are aware your client thereafter authored a letter to Mayor Steven Kennis dated April 13, 2020 (Exhibit G). The letter was signed by Jeffrey Dostal. The letter provided in part that Holteo intended to construct "an expansion to the ISFSI pad". Mr. Dostal confirmed that in order to undertake the expansion of the pad Holteo had submitted a "pennit application" with Lacey Township. That application was required in accordance with the "Controlled Decommlssioning Equipment Change Package (CDECP)". That document confirmed that Holteo would be constructing a "new pad" which would "be designed to accommodate a maximum of 20 1-llR STORM FW XL casks and 5 HI~SAFE casks". That document was also signed by Jeff Dostal on November 7, 2019. on behalf ofHolteo (Exhibit H). The document included approximately 19 pages of attachments. One of the attachments, Attachment #9, listed the outside agency approvals whiah Holtec anticipated would be necessary in order to obtain approval for the new large concrete pad. Those permits which Holtec confianed it would need included Planning or Zoning Board approval from Lacey Township, Planning Board approval from the County of Ocean, Ocean County Soil approval. and CAFRA approval from NJDEP.
In addition, Attachment 2 of the "Interface Department Comment I Impact Review Fonn" states in part in paragraph 1 that Holtec admits "Yes. The new pads can potentially impact the existing ISFSI facility,,, (Exhibit n
Clearly Holtec is thereby admitting and conceding there could be a potential adverse impact to the existing ISFSI faolllty.
- It is clear that Holtec needs to apply for a zoping and building permit to Lacey Township. The Township Code requires that a site plan application be submitted to the Planning Board. The Lacey Township Code also requires that all applicable outside agency approvals be obtained.
DASTI, MURPHY, McGUCKIN, ULAKY, KOlITSOURIS & CONNORS COUNSl!LLORS AT V.W
Richatd W, Hunt, Esquire Re: Laoey Township - Holteo Project May 14,2020 Page4 Your client cannot continue to oonstruct an enlarged concrete slab to house the spent fuel roda without receiving the aforementioned approvals. *
. When we last spoke by telephone I believe it ls fair to state that you were unsure exactly what activities were or were not being undertaken at the site by Holteo. Unless we have spoken within the last few days I respectfully
~*w~
request thftt you provide a writing confirming what your understanding ls as to the work being undertaken on
\
However, please be advised that if any work ls being *undertaken on the site in accordance with the aforementioned documents which have been submitted to various regulatory agencies, we will continue to demand that appropriate pennits and approvals be applied for and granted by Lacey Township, as well as other outside agencies.
- We aoknowledge the filing of an appeal by your office on behalf of your client to the Ocean County Construction Board of Appeals. We have had preliminary disoussions with the attorney for the Construotion Board of Appeals. At this point he is unable to determine whether or not a hearing could be held in June, or perhaps July. Nevertheless, work cannot continue while the appeal is pending. Unless you oan assure us that no additional work will be ongoing until the appeal is decided, we will have no alternative but to advise our client to consider filing a Complaint in the Superior Court of New Jersey seeking a Temporary Restraining Order from allowing Holteo to continue to perfonn this work on the site.
We respectfully request that you give this matter your Immediate attention. If you have any questions after reviewing the enclosed or I oan be of additional assistance, please do not hesitate to contact our office.
JJD/nc Enclosures cc: Honorable Steven Kennis. Mayor Veronica Laureigh, Administrator/Clerk Douglas Donahue, Construction Code Official DASTI, MURPHY, McGUCKIN, ULA.KY, KOUTSOURIS & CONNORS COtlNS61.LORS AT LAW
DASTI, MURPHY, McGUCiaN, ULAKY., KOUTSOURIS & CONNORS Jc,rry J, Dlllrti t .A Professional Corporation Gregory P. MoGuckin 0/Counnl Chmtophc,r K, KoutllOUrls /J,.
Tax ID 22-3450668 Charles E. Sohlager, Jr, 1:
. Robert E, IDRky a:>* www,dmmlnwfinn.oom George F. Minphy, Jr. ~ 0 Cbrietopher J, Counora Elbaheth llaokolln DMLI
- Tbnotby J. MoNicliols Martin J, Buckley
- Reply to: Forked River Office Forkc,d R1VCll' Offloet Kel6ey A, McGuoldn-Anthony 620 West Litcey Road Tbomaa E . .Monahan 1t 620 W eBt Lacey Road Forked River, NJ 08781 Patrick F. Varga P 609-971-1010 Forked River, N_J 08731 F 609-971-7098 rrC<<dJW CJPil Tr(al Altonuy 0('.t'ltijW llf*"'rlfHd C..n Law Auo,uy P 609-971-1010
- F 609-971-7093 Toms Rlyer OffiCOJ
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A~ r Email Address: jdaatl@dmmlawfinn.com 506 Hooper Avenue, tNJILGA AlurdrlpQ/ 1- Dfrl-1* ToDl8 Rlvu, NJ 08754 D.Altml>n of NJ ,mJ FLA. &r t.lketlo<< ofNJ *nil PA Bar P 732-349-2446 Mlcrwr-fNJurltvY na,- F 7S2-849-1590 May 26, 2020 I
Honorable Francis R Hodgson, Jr., P.J.Ch. GL-29337 Ocean County Court House 206 Courthouse Lane Courtroom No, 18, P 1 Floor Toms River, New Jersey 08753 RE: Lacey Township v. Holtec International and Holtec Decommissioning International Dock.et No.: TBD
Dear Judge Hodgson:
Please be advised that this office represents the Plaintiffs, Township of Lacey and tlie Township Committee of the Township of Lacey (hereinafter collectively referred to as the "Plaintiffs) with regard to the captioned matter. Please accept this Letter Memorandum in support of the Plaintiffs' request for a temporary injunction so as to prohibit the Defendants :fi:om continuing to undertake any "work" at the Oyster Creek Nuclear Generating Facility ~the "Facility) without obtaining appropriate and required approvals and pennits. Upon 1nformation and belief the work being undertaken is the decommissioning of the facility with includes the
~urylng of spent nuclear fuel rods.
The work undertaken clearly requires, as the property owners have obtained in *prior filings and agreements, approvals from the Township of Lacey, Ocean of Ocean, Ocean County Soil Conservation District and NJDEP. Defendants have failed to obtain approvals from Lacey Township, notwithstanding the fact that the befendants have previously filed in or about December of 2019*an application for site plan approval to perform I
Honorable Francis R. Hodgson, Jr., P.J,Ch.
RE: Lacey Township v. Holtec International and Holtec Decommissioning International Docket No.: TBD May 26, 2020 I Page 2 the work which is now ongoing. Upon information and belief the Defendants have not filed any application for approval with the County of Ocean or the Ocean County Soil Conservation District. ',
The need for the permits before undertaking the work is amply demonstrated by reviewing the attachments to the Plaintiff's Verified Complaint. The Defendant's two predecessors in title, Jersey Centrf\l Power and Light and Exelon International both applied to the Township of Lacey for the required permits in I
order to store spent nuclear fuel rods on the site. Both applications were granted. The Resolution of the Lacey township Planning Board (attached hereto as "Exhibit Ej permitted the construction of 28 "additional prefabricated horizontal storage mod;es to house spent fuel rods", Those modules have been constructed with approvals granted by the Lacey Township Planning Board in 2010. No further approvals have been granted in this regard.
The proof that the Defendants are aware of the fact that they require approvals is evident. In fact the Defendants applied to the Lacey Township Planning Board in or about December 2019 so as to obtain approvals lo house additional spent nuclear fuel rods. In fact the letter authored by Jeffrey Dostal to the Township Mayor,
{
)
in April of 2020, confirmed that the Defendants would be applying for approvals to undertake this work.
Notwithstanding the obvious need to obtain approvals from various regulatory agencies, Defendants continued to perform work on the site without the required approvals and permits.
DASTI, MURPHY, McGUCKIN, ULAKY, KOUTSOURIS & CONNORS COUNSELLORS AT LAW
Honorable Francis R. Hodgson, J1*., P.J.Ch.
RE: Lacey Township v. Holtec International and Holtec Decommissioning International Docket No.: TBD May 26, 2020
- Page 3 POINTI A TEMPORARY RESTRAINING ORDER MUST BE ISSUED BY THIS HONORABLE COURT TO PREVENT THE DEFENDANTS FROM UNDERTAKING ANY WORK ON THE SITE TO HOUSE SPENT NUCLEAR FUEL RODS UNTIL APPROPRIATE APPROVALS AND PERMITS HAVE BEEN ISSUED Under New Jersey Court Rule 4:52-2, temporary restraints of an interlocutory injunction may be applied for by motion. R. 4:52. "New Jersey has long recognized, in a wide variety of contexts, the power of the judiciary to 'prevent some threatening, irreparable mischief, which should be adverted until opportunity is afforded for a full and deliberate investigation of the case/' Crowe v. De Gioia, 90 N.J.
126, 132 (1982) (quoting Thompson v. Paterson, 9 N.J. Eq. 624, 625 (E. & A. 1854)). This power is embodied in New Jersey Court Rule 4:52-2, which permits the entry of a preliminary injunction with tempormy restraints through the filing of a motion.
According to the New Jersey Supreme Court, injunctive relief is appropriate where:
(1) There is a showing of immediate and irreparable harm to the ~pplicant; (2) The legal right underlying the applicant's claim rest on settled principles of law; (3) There is a reasonable probability that the applicant will ultimately prevail on the merits; and *
(4) The balance of hardships if the requested relief is granted favors the applicant.
Crowe, supra, 90 N.J. at 132-134.
When considering these factors it is critical to note that the purpose of the iajunctive relief "is to maintain the parties in substantially the same condition 'when the final decree is entered as they were when the litigation began." Id At 134 (quoting Peters v. Pub. Serv. Corp. ofN.J., 132 N.J. Eq. 500 (Ch. 1942)). Thus, the Appellate Division has made it clear that "a court may talce a less rigid view in its consideration of these factors DASTI, MURPHY, McGUCKIN, ULAKY, KOUTSOURIS & CONNORS COUNSELLORS AT LAW
\.
Honorable Francis R. Hodgson, Jr., P.J.Ch.
RE: Lacey Township v. Holtec International and Holtec Decommissioning International Docket No.: TBD May 26, 2020
- Page 4 when the interlocutory injunction sought is designed merely to preserve the status quo." McKerTZie v. Corzine, 396 N.J. Super. 405, 414 (App. Div. 2007). Put differently, when the proposed injunction seeks only to preserve the status quo, these factors 'are not to be looked upon as hard and fast and sharply defined in scope; rather they are but factors, among others, which must be weighted, one with another, all going to the exercise of an exacting judicial discretion as to whether or not to issue a preliminary injunction". Waste Mgmt. ofN.J., Inc.
- v. Union Cnty Util, Auth., 399 N.J. Super. 508, 534-35 (App. Div. 2008) (quoting Gen. Elec. Co. v. Gem Vacuum Stores, Inc., 36 N.J. Super. 234, 237 (App. Div. 1955)).
- a. Issue of Immediate and Irreparable Harm Harm is generally considered irreparable in equity if it cannot be adequately redressed by monetary damages. Crowe, supra, 90 N.J. at 132::-133. However, even where pecuniary damages might provide some relief to the applicant, the Supreme Court has recognlzed that they may be inadequate in some cases because of the nature of the inquiry or the right affected. Id. At 133 (citing Outdoor Sporting Corp. v. A.F. of L. Local 23123, 6 N.J. 217, 229M30 (1951); Scherman v. Stern, 93 N.J. Eq. 626 631 (E. & A. 1922)).
Under the Crowe test, a party seeking injunctive relief must demonstrate that there exists a likelihood of irreparable harm if a prelimina1y injunction is not granted. "Harm is generally considered irreparable in equity if it cannot be redressed by monetary damages. 11 Subcarrier Communications, Inc., v. Day, et. al, 229 N.J.
Super. 634,638 (App. Div. 1997), quoting Crowe, 90 N.J. at 132-133).
The harm that threatens to befall the Plaintiff herein is much more egregious than monetary damages could ever possibly compensate the Plaintiff for. Defendants are, without appropriate oversight and approval, burying spent nuclear fuel rods in a large pit Defendants are well aware of the fact that the history of the ownership and operation of the facility, when it is generating electtical power, was to make application to the DASTI, MURPHY, McGUCKIN, ULAKY, KOUTSOURIS & CONNORS COUNSEU.ORS AT LI, W
Honorable Francis R. Hodgson, Jr., P.J.Ch.
RE: Lacey Township v. Holtec International and Holtec Decommissioning International Docket No.: TBD May 26, 2020 Page 5 Townsh~p to the Zoning Board of Adjustment or the Planning Board as well as outside agency approvals. in order to obtain all necessary approvals. In fact the Defendants made an application to the Lacey Township Planning Board to obtain approval for the current construction wo* Defendant advised the Lacey Township Mayor, in writing, that they will obtain all necessary approvals. Defendant is well aware of the need to obtain appmval8> but has refused to make the appropriate applications.
The last Resolution adopted by the Lacey Township Planning Board was conditioned upon no more than 28 casks being constructed. Defendants are now violating the terms and conditions of that Resolution.
Money damages cannot possibly compensate for the harm being caused by the Defendants. We therefore respectfully suggest and urge this Court to accept t&tt the irreparable harm will be imposed upon the Township and its citiz.ens if the relief requested herein is not granted.
b The Applicable Law In thJs area is well-settled. In fact the history of the ownership and control of the facility is well settled, Without doubt the Defendant is constructing s_tmctures on the property which require building permits.
Building permits are issued for this type of work only after site plan approval is applied for. Defendants are well aware of the fact they need to apply f~r those approvals. In fact they preliminarily began making an application to the Lacey Township Planning Board for site plan approval.
Defendants are well aware of their obligations and responsibilities but have simply refused to abide by them. A building permit is required for the work thar is being undertaken by the Defendants, Before a building pennit could be issued for this commercial activityJ site plan approval must be granted by the applicable Zoning Board and/or Planning Board of the Township.
DASTI, MURPHY, McGUCKIN, ULAKY, KOUTSOURIS & CONNORS COUNSEU..ORS AT LAW
Honorable Francis R. Hodgson, Jr., P.J.Ch..
RE: Lacey Township v. Holtec International and Holtec Decommissioning International DocketNo.: TBD May 26, 2020 Page6
- c. The material facts cannot be disputed and the Plaintiffs @re likely to succeed on the merit,
- We do not believe that the Defendants can or will dispute the facts set forth in the Verified Complaint or in this Memorandum of Law. It is abundantly clear that permits are required and have not been applied for.
'The question remains for this prnng as to whether the Plaintiffs are likely to succeed on the merits.
"Thus, to prevail on an application for temporary relief, a Plaintiff must make a preliminary showing of ultimate success on the merits." Crowe, 90 N.J. at 133, citing Ideal Laundry Co. vs. Gug/iemone, 107 N.J. Eq. 108 l 15~
16 (E. & A. 1930). It is respectfully submitted that the Plaintiffs have already made such a showing. The language in the Uniform Construction Code, Lacey Township Building Code, and the prior Resolutions of approval are clear. The property owner of the facility cannot construct more than 28 spent fuel rod casks (which have already been constructed) without prior approval.
Based upon these facts alone it is clear that the Plaintiff is likely to succeed on the merits.
- d. The equities at Issue weight in favor of the Plaintlff.
It ls abundantly clear that the Plaintiff and its citizens will indeed suffer a greater hardship should the injunction not issue than the Defendants would suffer should be injunction be issued pursuant hereto. The Defendants need only to apply for the appropriate applications and approvals, which they initially indicated they would do, A slight delay in making the applications to the various regulatory agencies, which the Defeajants stated they would do and began making preliminary steps to do so, would not cause any undue hardship to the Defendants.
DASTI, MURPHY, McGUCKIN, ULAKY, KOUTSOURIS & CONNORS COUNSELLORS AT L'I.W
Honorable Francis R. Hodgson, Jr., P.J.Ch.
RE: Lacey Township v. Holtec International and Holtec Decommissioning International Docket No.: TBD May 26, 2020 Page 7 The fact that the Defendants will be required to comply with the law, should not cause any undue hardship to the Defendants. Certainly under these circumstances the equities weigh substantially in favor of the Plaintiff, and the citizens of Ocean and Lacey Township.
For the above-cited reasons we respectfully request that a Temporary Restraining Order be issued prohibiting the Defendants from continuing to undertake any work on the site without making an application to (
and receiving approvals from various regulatory agencies which have jU1isdiction over this facility.
JJD/nc Enc.
Cc: Richard Hunt, Esquire Veronica Laureigh, Township Administrator/Clerk Christopher Reid, Esquire, Director of Community Development DASTI, MURPHY, McGUCKIN, ULA.KY, KOUTSOURIS & CONNORS COUNSlltLORS AT ~ W
DASTI, MURPHY, McGUCKIN, ULAK.Y, KOUTSOURIS & CONNORS, P.C.
JERRY J. DASTI [I.D. 005441973]
620 West Lacey Road Post Office Box 1057 \
Forked Rivet*, New Jersey 08731 (609) 971"1010 FAX (609) 971"7093 Attorneys for Plaintiffs. Township of Lacey, a body politic, And the Townshi Committee of the Townshi of Lacey
.I TOWNSHIP OF LACEY, a body politic, and ! SUPERIOR COURT OF NEW JERSEY THETOWNSHIPCOMMITTEEOFTHE ! CHANCERY DNISION TOWNSHJP OF LACEY ! OCEAN COUNTY I
I Plaintiff(s) l' DOCKET NO.:
I I
I Civil Action vs. 'I I
I I
ORDER TO SHOW CAUSE WITH HOLTEC INTERNATIONAL and HOLTEC : I TEMPORARY RESTRAINTS DECOMMISSIONING INTERNATIONAL I I
I I
I I
I I
Defendant(s) I I
I TIIIS MATTER being opened to the Court by Dasti, Murphy, McGuckin, Ulaky, Koutsouris and Connors, Attorney for Plaintiff, Jerry J. Dasti, Esquire appearing, seeking relief by way of temporary restraints pursuant to R. 4:52, based upon the facts set forth in the Verified Complaint filed herewith; and it appearing that the Defendant has notice of this application and immediate and irreparable damage may result and for other good cause DAIIT:I, l!WltPBY lllofflroJDl'l, ULAJtY, shown; K01l'l'801JRt8 IIJ COKIIOlUi IT IS ON THIS _ _ _ _ _ day of _ _ ___, 2020 .
CotlHS£U.ORS /IT LAlll' tlll()WEST LACRY RO-'>>
P.0,BOl(I06't ORDERED that the Defendants show cause before me at the Ocean County Court FOlU(ED IIIV&R, NJ. 08731 House, Toms River, New Jersey, on the _ _ day of June, 2020, at 9:00 a.m. in the forenoon or as soon thereafter as co~l may be heard, to show this Court cause why an Order should not be issued preliminarily enjoining and res_training Defendants from:
A. Discontinuing all work at the facility until all pemlits and approvals are granted; B. Assessment of Counsel fees and costs of suit; and C. Granting such other relief as the comt deems equitable and just.
BE IT FURTHER ORDERED that pending the retum date herein, the Defenoant is temporarily enjoining and restrained from:
A Continuing any and all work at the facility.
IT FURTHER ORDERED that:
- 1. The Defendant may move to dissolve or modify the temporary restraints herein contained on two (2) days' notice to the Plajntiff's attorney.
- 1. A copy of this Order to Show Cause, Verified Complaint, Legal Memorandum and any supporting Affidavits or Certifications submitted in support of this application be served upon the Defendants attorney, Richard Hunt within __ days of the date hereof, in accordance withR,_ 4:4~3 and R. 4:4-4.
2, Plaintiff must file with the Court its proof of service of the pleadings on Defendants not later than three (3) days before the return date.
- 3. Defendants shall serve a written response to this Order to Show Cause and the request for entry of injunctive relief and proof of service by _ _ _ _ _ _, The original DAS'n, MURPHY l(oGUCKIJI, 'IJLAKY I K011TSOlllUII & COIO<<lRII documents must be filed with the Clerk of the Superior Court in the County listed above.
COUll8EU.Ol!!I Kt u.w
- 4. Plaintiff must file and serve written reply to Defendant, opposition by 6'lO 'WEIIT !ACE\' RON>
P.O. BoX 10!!7 l'ORKCD RIVM, N.J. 08131 _ _ _ _ _ _ _ _ _. The reply papers must be filed with the Cleric of the Superior Court in the County listed above.
- 5. If Defendant does not file and serve opposition to thls Order to Show Cause, 2
the application will be decided on the papers on the return date and relief may be granted by default, provided that Plaintiff files a proof of service and a proposed form of Order at least three (3) days prior to the return date.
- 6. Defendant take notice that Plaintiff has ftled a lawsuit against you in the Superior Court of New Jersey. The Complaint attached to this Order to Show Cause states the basis of the lawsuit. If you dispute the Complaint, you or your attorney must file a written Answer to the Complaint and proof of service before the return date of the order to Show Cause.
- 7. These documents must be filed with the Clerk of the Superior Court in the County listed above. Include a filing fee payable to the "Treasurer, State of New Jersey".
You must also send a copy of your Answer to Plaintiffs attorney whose name and address appear above. A telephone call will not protect your rights; you must :file and serve your Answer, with the fee, or judgment may be entered against you by default Opposition to the Order to Show Cause is not an Answer, you must file both. If you do not file and serve an Answer, judgment may be entered against you by default.
- 8. If you cannot afford an attorney, you may call Legal Services in the County in which you live. If you do not have an attorney and are not eligible for legal assistance you may obtain a referral to an attorney by calling one of the Law Referral Services.
DABfl.MOKPBY MaGUclCUI, ULAKY,
!COO'l'IIOURlll t. OO!fflORS 9. The Court will entertain oral argument, but not testimony on the return date of COUll8EIJ.OIIS I.!' LAW the Order to Show Cause, unless the Court and the parties are advised to the contrary not later 6IIOWDTL.!.C.'ffllOA.D J'.O.BOlC1057
' l'O!llCW IIJ\lill, 11.J, 0173 I than _ _ _ days before the return date.
HON. FRANCIS R HODGSON, JR., P.J.Ch.
3
DASTI, MURPHY, McGUCICTN, ULAKY, KOUTSOURIS & CONNORS, P.C.
JERRY J. DASTI [I.D. 005441973]
620 West Lacey Road Post Office Box 1057 Forked River, New Jersey 08731 (609) 971-1010 FAX (609) 971-7093 Attorneys for Plaintiffs, Township of Lacey, a body politic, And the Townshi Committee of the Townshi of Lacey TOWNSHIP OF LACEY, a body politic, and SUPERIOR COURT OF NEW JERSEY THE TOWNSHIP COMMITTEE OF TIIB CHANCERY DIVISION TOWNSHIP OF LACEY OCEAN COUNTY Plaintiff(s) DOCKET NO.:
Civil Action vs.
ORDER HOLTEC INTERNATIONAL and HOLTEC DECOMMISSIONING INTERNATIONAL Defendant(s)
THIS MATTER being brought before the Court by the law firm of Dasti, Murphy, McGuckin, Ulaky, K6utsouris & Connors, attorneys for Plaintiffs, Jerry J. Dasti, Esquire appearing, in the presence of Parker McCay, P.A., attorney for Defendants, Richard Hunt, Esquire appearing, and the Court having reviewed the pleadings, exhibits and memorandwn of law submitted by the parties, and after providing an opportunity for oral argument, and for good cause shown; DMTI, MURPHY lloOUOKIN, ULAKY, KOUTBOUlllli & COJINCIRB IT IS on this _ _ day of June 2020, O~ERED and ADJUDGED as follows:
COUNM:U.ORS AT LAW
- 1. TJ:ie Defendants are hereby restrained from attempting to perform any additional 62DWfllTLAC&YROAO P.O BOX 1057 l'ORJC&O RIVCI!, HJ. 09731 work at the Ocean County nuclear power plant with regard to the storing of spent nuclear fuel rods until the appropriate and necessary permits and approvals from various regulatory agencies are obtained.
1
- 2. An attomey*s fee in the amount of _ _ _ _ _ _ _* shall be assessed in favor of the Plaintiff and against the Defendants, to be paid within _ _ _ days of the date of this Order.
HON. FRANCIS HODGSON, JR., P.J.Ch.
~MJ\Tl'Jla.!J.l:I,,ccj~!--
l)ASTJ, MURPHf MoGUOKJ?i, IILAXY, KOU'TOOURJB a, OO?fflOJm COUN!W.I.OR8 <<r LAW PORK!D IIIYl!R, 11.J. 081'3 l 2
Exhibit E Case 3:20-cv-12773-MAS-DEA Document 15 Filed 09/28/20 Page 1 of 21 PagelD: 940 DASTI, MURPHY, McGUCKIN, ULAKY, KOUTSOURIS & CONNORS Jerry J. Da!lti t A Professional Corporation Gregory P. MoGuokiD O/Com1e/
Christopher K. Kouteouris A Tax JD 22-34-50668 Charloe E. Sohlat;or, Jr, :j:
Robert E. Ulaky co;J: www.tlmmluwfirm.com George F. Murphy, Jr. r.0 Christopher J, ConnoriJ Blizab"th .Mackolin Dwru :j; Timothy J, ?.IoNichols :j:
1'1IarUu J. Buckley Reply to: Forked River Office FOl:'ked River ~
Kelsey A. JlfoGuok.in-Anthouy West Lacey Road ThoID.lls E. Monahan 7t 620 West, Lacey Road Forked River, NJ 08731 Petriok: F. Varga P 609-971-1010 Forked lliver. NJ 08731 F609-97I-7093
~ifi..l Ci..J Trial A11oruy
~ift,,l fifunlrip,,I C,,,,r1 !.all' Allorlll)' P 609-971-1010 ao.M<fflhr, iY..ii<<i,,/ ,l<<J,my ofm.w, Law Tome Rl'!'lll' Officer All<>r""1 F 609-971-7093 506 Hoopei: .Avenue tNJILGA M,11,lt-lp,J I.mt, DlplMMto flilJ,mlruo/NJ natl PU Bnr Tolllil River, NJ 08754 fil/,m,rq/NJ.IMI PA Bar pvarga@d.mm1aw.firm.oom P 732-349-2446 l!,JJ,.J,,,,.e/NJ mu/ NY JJ.r F 732-349-1590 September 28, 2020 Electronically Submitted via Pacer Tue Honorable Michael A. Shipp U.S.M.J.
United States District Court, District ofNew Jersey Clarkson S. Fisher Building & U.S. Court House Courtroom SW 402 East State Street Trenton, New Jersey 08608 Re: Holtec Intemational et al. v. Lacey Township, et al.
Civil Action No.: 3:20-cv-12773 Opposition to Plaintiffs' Vedfied Complaint
Dear Judge Shipp,
Please be advised that this office represents the interests of the Township of Lacey (the Township'J with respect to the above captioned matter. Please accept thls Letter Brief in opposition to Plaintiffs' application for a tempormy restraining order.
In short, Plainti:ffil' request extraordinary relief from this Honorable Court, which requires an extraordinary showing of the four prongs pertinenant to obtaining a temporary restraini11g order. However, as will be detailed herein, the likelihood of Plaintiffs success on the merits fulls short; the alleged irreparable harm is not remotely imminent, and in fact, the harm Plaintiffs allege they will suffer is solely~ result of their own self-created hardships; granting this relief will result in greater hann to the Township of Lacey and its constituents; and fmally the public interest does not favor the requested relief.
Case 3:20-cv-12773-MAS-DEA Document 15 Filed 09/28/20 Page 2 of 21 PagelD: 941 The Honorable Michael A. Shipp U.S.M.J.
Holtec International et al. v. Lacey Township, et al.
Civil Action No.: 3:20--cv-12773 Page2 of21 However, prior to getting into this analysis, it is important to clarify the arguments submitted by Plaintiffs against the Township versus the arguments against the Planning Board. This is necessary because although both are recognized to exist under the charter which is Lacey Township, they are not entities that are one in the same. The Planning Board is an administrative arm of the Township, with its own jurisdiction, and is comprised ofits own Board. Whereas the Township, is its own entity, formed pursuant to N,J.S.A. 40A:63-1, and charged with governing and enforcing the ordinances it promulgated and those penned by the New Jersey State Legislature.
Plaintiffs improperly attempts to lump their actions together, and argue to this Honorable Court that their actions are identical. That simply is not the case. Therefore, by way of background Defendant Lacey Township offers the following:
Prior to the Plaintiffs' ownership of Oyster Creek, the predecessors of title were Jersey Central Power and Light Company and thereafter Exelon Generation Company, LLC (hereinafter refen-ed to as "JCP&L" and Exelon" respectively). When the property was owned by, and the facility was generating electricity as a result of the nuclear power plant, JCP&L applied to the Lacey Township Board of Adjustment for an approval for an independent spent fuel stoi:age installation at the facility. (See Resolution of the Lacey Township Board of Adjustment Appeal No. 93-40 attached hereto as Exhibit A). This approval was granted. Thereafter, the successor in interest to the property and the facility, Exelon, applied to the Lacey Township Planning Board for approval to expand "the independent spent fuel storage area by removing existing pavement and constmction of two 26' wide x 159' long and 3' deep concrete bases to support 28 additional prefablicated horizontal storage modules to house spent fuel rods.,, (See Resolution of Approval 1O-SP-05 Planning Board, Township of Lacey Exhibit B ). These approvals were similarly granted.
In January of 2018, Exelon entered into an Administrative Consent Order C'ACO") with the New Jersey Department of Environmental Protection. In general terms, the consent order provided for the closure
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Civil Action No.: 3:20-cv-12773 Page 3 of21 of the facility in accordance with appropriate regulations and the eventual disposal of the spent nucleru.* fuel rods. (Attached to Plaintiffs' verified complaint as Exhibit D). This ACO, in pertinent part instructs:
"This ACO ~hall not relieve Exelon from any obligation to obtain and comply with all requil'ed federal, state and local permits, or from any obligation to comply with all applicable ~tatute.s, codes, ntles, regulations and orders ... [See page 16, paragraph 41 Exhibit D attached to Plaintiffs' Verified Complaint.] -
Following the precedent set by its predecessors in title, and required by the ACO, Plaintiffs in April 13, 2020, forwarded a letter to the Defendant Township indicating that Plaintiffs submitted a pen11it application with the Township for an "expansion of the ISFSI pad." (see April 13, 2020 letter attached hereto as Exhibit C). However pdorto obtaining the requested approvals, Plaintiffs became aware that they required site plan approval in order to obtain the necessary approvals. To that effect, before even sending this letter to Defendants, Plaintiffs' preemptively applied to the Lacey Township Planning Board in the Fall of 2019 for site plan approval. Then, for unknown reasons at the time, Defendants withdrew their application for site plan approval to construct an additional ISFSI pad and security building. The reason for which was later uncovered to be the result of Plaintiffs' detennination, based off an opinion rendered by a company located within the Holtec umbrella, that the existing ISFSI possessed sufficient space to accommodate the additional Horizontal Storage Casks.
As a result of this intention, it came to the Township's attention that Plaintiffs were undertaking work to excavate a large portion of the ground where the previously proposed ISFSI pad would be located, in addition to which, Plaintiffs' began constructing the cask transfer pit ("CTP"), which before Your Honor, they intended to utilize in their dry storage run. All of this was done without proper permits, and without ever obtaining site plan approval, in not only direct violation to the Township's local ordinances, the Municipal Land Use Law, and the Uniform Construction Code but also the ACO that Plaintiffs are bound by.
Thereafter, the Township's Attorney authored a letter dated May 15, 2020, which in short demanded Plaintiffs obtain the proper approvals before continuing work pursuant to Township Ordinances and the
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Civil Action No.: 3 :20-cv-12773 Page 4 of21 Uniform Construction Code ("UCC"). (See Jerry J. Dasti, Esq.'s May 15, 2020 letter attached hereto as Exhibit D). Plaintiffs, despite having been issued a Stop Work Order by the Township, completed the construction of the Cast Transfer Pit without having ever obtained a pe1mit for same, or site plan approval.
Subsequent to this revelation, the Township filed a Verified Complaint and Order to Show Cause in New Jersey Superior Comi, Chancery Division, seeking inter alta an Order preventing the now Plaintiffs from constructing any additional structures or utilizing the CTP until proper permits and site plan approval were acquired. (See attached hereto as Exhibit E Lacey Township Verified Complaint and Order to Show Cause1).
Briefs were filed on behalf of both parties, and at the eleventh hour a Consent Order was reached.
[
This Consent Order, in paragraph six, located on page five which is significant to the matter before Your Honor, reads:
- 6. In the event the Site Plan application is approved by the Planning Board, Defendants shall apply for construction permits to use the Cask Transfer Pit ("CTP") for its spent fuel transfer campaign. No new construction may take place until a construction pennit is issued, and Defendants have applied for permits and received the proper inspection. The Township will expedite issuance of permits and perfomtlng inspections. It is understood that the CTP will NOT be used to execute the spent fuel program, until Defendants receive site plan approval and construction permits. The Township agrees that the perfonnance of the NRC regulated dry runs may begin as scheduled in September 2020 even if pennits and the Certificate of Approval are not issued at that time, however the spent fuel campaign shall not begin until peimits are issued. The Township agrees to '\'lork with Defendants to not impact this schedule, and to ensure that any I
approval will not be unreasonably withheld or delayed. To that end, the Township may inspect the CTP as soon as this Consent Order is executed. As used herein, the phrase "dry nms" refers to the testing and training exercises required by the NRC pursuant to 10 C.F.R. 72.212 and the Certificate of Compliance issued by NRC for the Hl..STORM FW spent fuel storage cask, and includes the following steps:
- a. Moving the spent fuel canister and transfer cask into the spent fuel pool.
- b. Preparation of the spent fuel canister for fuel loading.
1 Exhibits cited in the Verified Complaint are omitted In an effort to avoid burdening this Court with duplicative documents,
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.I
- c. Selection and verification of fuel assemblies.
- d. Loading test fuel assemblies (replica assemIJµes) in the spent fuel canister.
- e. Remote installation of the spent fuel canister lid and removal of the canister/b.'ansfer cask from the spent fuel pool.
- g. Transfer of the spent fuel canister from the transfer cask to the overpack utilizing theCTP.
- b. Placement of the spent fuel canister in the overpack on to the ISFSI pad.
(The July 15, 2020 Consent Order is attached hereto as Exhfbit F) emphasis added.
Grammatically, based off the thesis/topic sentence of this paragraph, the use of the CTP for the Plaintiff's spent fuel campaign was exp~ly conditioned on obtaining not only Planning Board Approval but simultaneously the appropriate pennits. Plaintiffs' failed to do that. Significantly to the validity of this fac 4 the parties reiterated that seemingly straight fo1ward understanding in the fourth sentence of the paragraph.
Immediately thereafter, in the fifth sentence, the parties do not utilized any compulsory language, that mandates, that the CTP shall be permitted to be utilized with respect to the NRC required dry runs. Rather, the Township agreed that it "may" permit the use of the CTP for the NRC required dry runs. Clearly this paragraph is devoid of any indication that the Township is required to allow Plaintiffs' to utilize the CTP in its dry runs without having first obtained the approval of the Planning Board and in tum the required permits.
The only conduct that this paragraph requires of the Township, is to work with the Defendants to not impact its dry run schedule. Which the Township believes it is doing, by not doing anything. Now that sounds oxymoronic. However, the Township is not submitting the Plaintiffs cannot perform all the aspects of theil' scheduled dry run. The Township's position is simply: (1) Plaintiffs are not permitted to perfom1 the aspects of their scheduled dry nm which would require the use of additional structures which were erected, constructed or otherwise, without having first obtained the appropriate pennits from the Township, or required site plan approval
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Civil Action No.: 3:20-cv-12773 Page 6 of21 from the Planning Board; (2) Plaintiffs are not permitted to utilize the existing ISFSI pad without obtaining site plan approval consistent with the proposed amended use, a requirement that is more extensively discussed in the Planning Board's Brief; and (3) the Plaintiffs are not permitted to utilize the CTP with respect to the scheduled dry runs as a result of their own improper and illegal conduct of constructing the structure without obtaining the appropriate building permit or site plan approval for same.
Moreover, this same Consent Order simultaneously offered the Plaintiffs an avenue of relief in the event a disagreement over its contents had arisen. In the final paragraph, in the penultimate sentence, the parties agreed:
"This matter shall be dismissed without prejudice, but can be immediately reopened upon letter request by either party or both parties, in the event either party feels that the terms or intent of this Consent Order have been violated, and the Order to Show Cause hearing shall take place on an expedited basis on a date to be de.termined by the Comt. [See Exhibit F paragraph 13 page 6].
Following the entering of this Consent Order, the Township's involvement with this matter ended and the site plan application was brought on an expedited basis to the Planning Boards attention. The pertinent facts of which, the Township hereby rely upon and incorporate by reference as if more fully set forth herein, as stated by codefendant Lacey Township Planning Board.
Now before Your Honor, Plaintiffs seek the extraordinary remedy to impose temporary restraints on the Township to permit it to utilize its CTP without having ever obtained proper site plan approval, or the required permits. As will be detailed herein, Plaintiffs are incapable of substantiating the extraordinary relief they are requesting.
LEGAL ARGUMENT A preliminary injunction is an extraordinary remedy that is granted only in limited circumstances. Ferring Pharm., v. Watson Phann., Inc., 765 F.3d 205, 210 (3d Cir. 2014). To obtain a preliminary injunct~on, the moving party must establish: (1) a likelihood of success on the merits; (2) that [it] will suffer irreparable harm if the injunction is denied; (3) that gran~g preliminary relief will not result in even greater harm to the uorunoving
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Holtec International et al. v. Lacey Township, et al 1 Civil Action No.: 3:20-cv-12773 Page 7 of21 party; and (4) that the public interest favors such relief. Kos Phann .* Inc. v. Andrx Corp,. 369 F.3d 700, 708 (3d
- /
Cir. 2004). Also, in Delaware River Port Auth. v. Transamerican Trailer Transp .* Inc,. 501 F.2d 917, 919-20 (3d Cir. 1974) the Court advised: in order to obtain a prelimina1y injunction, the moving party must generally show (1) reasonable probability of eventual success in the litigation, and (2) that it will be irreparably injured pendenle Ute if relief is not granted to prevent a .change in the status quo. M,_ Moreover while the burden rests on upon the moving party to make these two requisite showings, "the district court should take into account, when they are relevant, (3) the possibility of harm to other interested persons from the grant or denial of the injunction, and (4) the public interest Id. at 920 However, "a party seeking a preliminary injunction that will alter the status quo bears a particularly heavy burden in demonstrating its necessity." Acierno v. New Castly County, 40 F.3d 645, 653 (3d Cir. 1994). This burden requires the moving party to demonstrate a sufficient likelihood of prevailing on the merits. Reilly v. City of Harrisburg, 858 F.3d 173, 180 (3d Cir. 2017). Notably, should a party fail to show a likelihocxl of success on the merits or a failure to demonstrate hreparable injury, this failure must necessarily result in the denial of a preliminary injunction. Morton v. Beyer, 822 F.2d 364, 371 (3d Cir. 1987).
For the reasons to follow, Plaintiffs fails to meet its burden and establish a potential success on the merits.
-(1) PLAINTIFF FAILED TO MEET ITS BURDEN AND ESTABLISH A REASONABLE LIKELIBOOD OF SUCCESS ON THE MERITS AGAINST THE TOWNSHIP.
The Plaintiffs belief that Federal field preemption is applicable against the Township is an utter fallacy.
The United States Supreme Court in Pac. Gas & Blee. Co. v. State Energy Res. Conservation & Dey. Comm'n, 461 U.S. 190, 190, (1983) bifurcated and clearly outlined the authority vested in the federal government with respect to the regulation of ~iOtive nuclear power plants, and in tum the authority that remained vested in the inherent police powers of each of the individual states to regulate land use. Specifically, the United States Supreme Court held:
"Congress has preserved the dual regulation of nuclear-powered electdcity generation: the federal government maintains complete control of the safety and "nuclear" aspects of energy generation;
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Civil Action No.: 3:20-cv-12773 Page 8 of21 the states exercise their traditional authority over the need for additional generating capacity, the type of generating facilities to be licensed, land use, ratemaking, and the like. Id. at 210 (emphasis underscored).
At issue is whether the Atomic Energy Act and C.F.R. 72.6 m~. preempt the Uniform Construction Code and municipal authority from requiring in this case, a building perm.it, Planning Board Approval, site plan approval, etc, prior to undertaking construction/demolition related activities. Plaintiffs asserts that the entire field of Nuclear Energy Regulation is 'governed by the Atomic Energy Act and C.F.R. 72.6 e t ~ and therefore, a public entity is preempted from requiring any additional procedures. However, it is clear that this argument falls short.
The United States Constitution provides that the Constitution and the laws of the United States, "shall be the supreme law of the land." U.S. Const., art. VI, cl. 2. The tests for determining whether state laws are preempted by federal law are well-established:
Pre-emption may be either expressed or implied, and "is compelled whether Congress' command is explicitly stated in the statute's language or implicitly contained in its structure and purpose."
Absent explicit pre-emptive language, we have recognized at least two _types of implied pre-emption: field pre-emption, where the scheme of federal regulation is" 'so pervasive as to make reasonable the inference that Congress left no room for the States to supplement it,' " and conflict preemption, where "compliance with both federal and state regulations is a physical impossibility,"
or where state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress[.]"
Gade v. Nat'l Solid Wastes Management Assoc., 505 U.S. 88, 98 (1992). Whether a state law stands as an obstacle to the accomplishment of a federal objective, requires a court to consider "the relationship between state and federal laws as they are interpreted and applied, not merely as they are written,,, Jones y, Rath Packing Co., 430 U.S. 519,526, (1977).
The New Jersey Supreme Court in R.F. v. Abbott Labs, 162 N.J. 596 (2000) weighed in on the application of federal preemption in New Jersey and disclosed: there are three categories of preemption that are ordinruily defined as express preemption, implied preemption, and conflict preemption. Id, citing Laurence H.
Tribe, American Constitutional Law, Vol.I, § 6-28 (3d ed.2000). The Court forther stated:
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Civil Action No.: 3:20-cv-12773 Page 9 of21 these three categories of preemption are anything but analytically air-tight. For example, even when Congress declares its preemptive intent in express language, deciding exactly what it meant to preempt often resembles an exercise in implied preemption analysis. So too, implied preemption analysis is inescapably tied to the presumption that Congress did not intend to allow state obstructions of federal policy, the existence of which is a central inquiry in conflict preemption analysis.
Id. at 618-19 (internal quotations omitted). The test to dete1mine whether federal law preempts state law is fact-sensitive and "is not to be lightly presumed." Id. citing Turner v. First Union Nat'l Bank, 162 N.J. 75 (1999).
Further, the United States Supreme Court held in Hillsborough Cty. Fla. V. Automated Med. Laboratories. Inc.,
471 U.S. 707, 713 (1985) that "state laws can be pre-empted by federal regulations as well as federal statutes."
The New Jersey Supreme Court, relying on Erwin Chemerinsky, Constitutional Law: Principles and Policies,*§ 5.2 (1997) distinguished the three forms of preemption as follows:
There are three types of implied preemption: (1) field preemption, "where the scheme of federal law and regulation is 'so pervasive as to make reasonable the inference that Congress left no room for the states to supplement it;' "(2) conflict preemption, where there is a conflict between federal and state law, rendering " 'compliance with both federal and state regulations ... a physical impossibility;* " and (3) preemption where '"state law impedes the achievement of a federal objective;" in this case, even if federal and state law are "not muhmlly exclusive ... preemption will be found if state law 'stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress.'
R,F. supra, at 620.
kotably, the United States Supreme Court has observed, prior cases on preemption are not precise guidelines [since] ... each case turns on the peculiarities and special features of the federal regulatory scheme in question." City of Burbank v. Lockhead Air Terminal Inc., 411 U.S. 624, 638 (1973). In fact, the United States Supreme Court has expressly recognized, that it is the burden of the party advocating preemption to establish that federal and state law in fact conflict. Silkwood y, Kerr-McGee Corp., 464 U.S. 238, 255 (1984) (holding, the federal preemption of state regulation of the safety aspects of nuclear energy, does not extend to state-authorized award of punitive damages for conduct related to radiatior:i hazards actionable through state law.) Further, state law is preempted only to the extent that it actually conflicts with federal law, and such conflict arises on when
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Holtec International et al, v. Lacey Township, et al, Civil Action No.: 3:20-cv-12773 Page 10 of21 "compliance with both federal and state regulations is a physical impossibility," Florida Lime & Avocado Growers, Inc, v. Paul, 373 U.S. 132, 142-143 (1963), or where state law "stands as obstacle to the accomplishments and execution of the full purposes and objectives of congress," Hines v. Davidowitz, 312 U.S.
52, 67 (1941).
The application of federal preemption principals were applied in the field of nuclear regulation by the United States Supreme Court in Pac, Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm'n, 461 U.S. 190, 190, (1983) ("Pacific Gas"), In Pacific Gas, the United State Supreme Court was presented the opportunity to examine the extent the Atomic Energy Act of 1954 preempted a State Statute that sought to regulate nuclear waste. Id. Leading to its holding, the United States Supreme Court stated the following:
J as we view the issue, Congress, in passing the 1954 Act and in subsequently amending it, intended that the federal government should regulate the radiological safety aspects involved in the construction and operation of a nuclear plant, but that the States retain their traditional responsibility in the field of regulating electrical utilities for determining questions of need, reliability, cost and other related state concerns. Id. at 205 (emphasis underscored).
In fact, the United States Supreme Court reaffnmed the princi12le that: "Congress legislated here in a field which the States have traditionally occupied ... so we start with the assumption that the historic police powers of the States were not to be superseded by the Federal Act unless that was the clear and manifest purpose of Congress." kh at 206 quoting Rice v. Santa Fe Elevator Corp .* 331 U.S. 218, 229 (1947); see also Bates v. Dow Agrosciences LLC, 544 U.S. 431, 449 '(2005Xrecognizing, to the extent Congress's statutory direction is susceptible to more than one reading, [courts] have the duty to accept the reading that disfavors preemption.'l Tue Court in Pacific Gas held: "Congress has preserved the dual regulation of nuclear-powered electricity generation: the federal government maintains complete control of the safety and nuclear" aspects of energy generation; the states exercise their traditional authority over the need for additional generating capacity. the type of generating facilities to be licensed, land use, ratemaking, and the like." ML. at 210 (emphasis underscored).
Notably, within the Atomic Energy Act there is an express provision where it expands state authority with respect to regulating a nuclear power plant. Specifically, 42 U.S.C.A. § 2021 titled Cooperation with States,
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Civil Action No.: 3:20-cv-12773 Page 11 of21 subsection (k) provides: "Stat~ regulation of activities for certain purposes[:] [n]othing in this section shall be construed to affect the authority of any State or local agency to regulate activities for purposes other than protection against radiation hazards." 42 U.S.C.A. §2021 (k). The United States Supreme Court interpreted this subsection to represent Congress's clear intent that the Atomic Energy Act was not intended to cut back on preexisting state authority that is outside the NRC's jurisdiction. Pacific Gas supra at 210.
In fact, the NRC is pennitted to delegate regulatory responsibility to any state agency, however, the Atomic Energy Act limits what may be delegated to four discrete categories. Specifically, 42 U.S.C.A. §2021 (c) provides in relevant part:
No agreement entered into pursuant to subsection (b) shall provide for discontinuance of any authority and the Commission shall retain authority and responsibility with respect to regulation of--
(1) the construction and operation of any production or utilization facility or any uranium enrichment facility; (2) the export from or import into the United States of byproduct, source, or special nuclear material, or of any production or utilization facility; (3) the disposal into the ocean or sea of byproduct, source, or special nuclear waste materials as defined in regulations or orders of the Commission;
( 4) the disposal of such other byproduct, source, or special nuclear material as the Commission determines by regulation or order should, because of the hazards or potential hazards thereof, not be so disposed of without a license from the Commission. [42 U.S.C.A. §202l(c)J. ,
Additionally, 42 U.S.C.A. § 2021(1), created an advisory role for the states respecting activities within the NRC's jurisdiction and directs the commission to cooperate with states even in the formulation of standards for regulation again radiation hazards: See 42 U.S.C.A. § 2021(1), see also Pacific Oas, supra, n. 21.
Some guidance on this issue can also be deduced from Tenth Circuit cases: Cook v. Rockwell Int'l Corp.,
618 F.3d 1127 (10th Cir. 2010) (Cook one) and Cook v. Rockwell Int'l Corp., 790 F.3d 1088 (10th Cir. 2015)
(Cook Two). Where there, the Tenth Cil'cuit was presented an opportunity to weigh in on the principles announced in Pacific Gas to determine whether the principle that the federal government retains total control over "nuclear" aspects of regulation also preempted state t01t claims. At issue in Cook one and Cook two was whether the Price-Anderson Act preempted recovery under state statutes for injuries involving nuclear waste.
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Civil Action No.: 3:20-cv-12773 Page 12 of21 In both matters, the Court extensively reviewed the language in the Price-Anderson Act and to quote their analysis denying express preemption in Cook two, provided the following: "Where does any of this language--
expressly preempt and preclude all state law tort recoveries for plaintiff who plead but do not prove nuclear incidents? We just don't see it. Cook two fil!Q!:!! at 1096. Absent any express language in the federal statute or a federal regulation expressly preempting the field, the question turned on whether the state law conflicts with the federal law, because clearly field preemption was inapplicable, as that applies only when "the federal government
[had] so fully occupied [the] entire field that no room remains for the operation of state law at all." Mt at 1093-94.Therefore, the Court turned to "conflict preemption" and found no indication that compliance with the state statute would make compliance with the Price-Anderson Act impossible. Id.
Drawing a parallel to the matter at bar, there is no provision of the Atomic Energy Act that expressly preempts states or local governing bodies from requiring compliance with their land use law and building code.
In fact, as stated supra, the Atomic Energy Act expressly indicates that states may continue to regulate the functions that were traditionally theirs. A principle that has been reinforced and encouraged time and time again by the United States Supreme Couit in the aforementioned case law. Further, as it is indisputable that Federal field preemption is inapplicable in this matter as a result of the United States Supreme Court's holding in Pacific Gas, therefore the question turns on whether conflict preemption applies.
In order for conflict preemption to apply, the Court must undertake a fact sensitive analysis and the Plaintiffs bears the burden of proving its existence. The Plaintiffs must establish that the application of the state statute makes it physically impossible to comply with the federal statute. Then, following the United States Supreme Comt's holding in Bates supra, if "Congress's statutory direction is susceptible to more than one reading, [courts] have the duty to accept the reading that disfavors preemption." Bates fil!Jm! at 449.
Plaintiffs contend that "under certain circumstances, the NRC can cede rights to states, as noted above, but again, Defendants are local government entities. Thus 42 U.S.C. 2021 does not apply to them. States and local governments also have h*aditional authority over the need for additional generating capacity, the type of
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Civil Action No.: 3:20-cv-12773 Page 13 of21 generating facilities to be licensed, land use, rate making and the like." (See Page 20 of Plaintiffs' moving brief second full paragraph.) Clearly, Plaintiff's own argument contradicts its ability to succeed on the merits.
Lacey Township has in its Buµding Code incorporated by reference the Unifonn Construction Code.
Therefore the UCC is part of the Lacey Township Building Code. As a result, the Township would respectfully direct this Honorable Court's attention to N.J.A.C. 5:23-1.4{a) which provides in part:
Construction Pennits-When required "It shall be unlawful to construct, enlarge, repair, renovate, alter, reconstruct or demolish a sttucture, or change the use of a building or structure, or portion thereof.,." [N.J.A.C. 5:23-1.4(a).
The administrative code defines a "structure" as:
A combination of materials to fonn a construction for occupancy, use or ornamentation, whether installed on, above, or below the surface of a parcel of land; provided the word "structure" shall be consttued when used herein as though followed by the words "parts of parts thereof and equipment therein unless context clearly requires a different meaning. [N.J .A.C. 5 :23-1.4 (emphasis underscored)].
Therefore, rather than needlessly engage in a statute by statute, point by point, analysis of the regulatory provisions governing the decommissioning of a nuclear power plant, one need_ only peal the facts down to the center to uncover the reality of the matter. The Township's conduct in requiring Plaintiffs obtain the proper permits and site plan approval-two requirements inherently related to land use-as they relate to the structures they erected pertinent to the planned dry runs, is not preempted by Federal Law. Significantly, the Administrative Consent Order attached to Plaintiffs' Verified Complaint, as Exhibit D states:
"1bis ACO shall not relieve Exelon from any obligation to obtain and comply with all required federal, state and local permits, or from any obligation to comply with all applicable statutes, codes, rules, regulations and orders .. . [See page 16, paragraph 41 Exhibit D attached to Plaintiffs' Verified Complaint (emphasis added)].
- Despite this rather straight forward instii.i<?tlon, memorialized in the ACO inherited by the Plaintiffs, The Plaintiffs continue to tum a blind eye, and contend the Township's actions in requiring compliance with the
- MLUL, its building code and the UCC usurps Federal Authority.
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Page 14 of21 As illustrated above, the issues between the parties began when the Township learned that the Plaintiffs were constructing structures on their property without any proper pe1mits or having first obtained site plan approval. In rebuttal, Plaintiffs contended the NRC license confe1Ted upon them the authority to construct anything relating to the decommission of the plant without obtaining (1) site plan approval or (2) the requisite building permits. However, nowhere do the facts suggest that the Township was attempting to usurp the federal authority and regulate the radiological and safety aspects of the plant. In fact, the history of the parties dealings reflect that the Township only required the Plaintiffs apply for and obtain the same building permits, and if need be, site plan approval as the Plaintiffs' predecessors in interest had done. There was nothing outrageous that the Township imposed. More importantly, the Township never imposed a single requirement that pertained to regulating the NRC required dry runs, which was not imposed by the NRC, or the ACO. Specifically, the requirement that the Plaintiffs obtain all applicable local and state approvals was a condition of approval.
Applying these principles, a reading of the entire Uniform Construction Code ("UCC") and the Municipal Land Use Law ("MLUL") will establish the Plaintiffs in this matter have an insurmountable obligation to establish a likelihood of success on the merits. Nowhere in either the UCC or the MLUL do they regulate the control of the safety and nuclear aspects of nuclear energy and one would be hard pressed to find otherwise. In fact, the Atomic Energy Act expressly provides that states are pennitted to regulate activities provided they are for purposes other than radiation management or protection against radiation hazards. See 42 U.S.C.A. §2021 (k).
Moreover, the United States Supreme Comt in Pacific Gas and the aforementioned cases, indisputably held that states retain jurisdiction over regulating land use and activities that are traditionally related to the state police
/
power and regulatory activities even when they are related to nuclear power plant regulation.
Before this Honorable Com't are issues that are inherently related to land use, the state's police power and regulatory function. This is not a matter where Lacey Township is attempting to regulate the radiological safety and nuclear aspect of decommissioning Oyster Creek. This is a matter where Lacey Township required Plaintiffs obtain building permits, zoning permits, site plan approval, etc., prior to undertaking work that the Township
Case 3:20-cv-12773-MAS-DEA Document 15 Filed 09/28/20 Page 15 of 21 PagelD: 954 The Honorable Michael A. Shipp U.S.M.J.
Holtec International et al. v. Lacey Township, et al.
Civil Action No.: 3:20-cv-12773 Page 15 of21 requires for all other construction related operations. Requiring this step does not conflict with the Atomic Energy Act Moreover, requiring Plaintiffs to simultaneously adhere to the UCC and MLUL does not make it "physically impossible" for Plaintiffs to follow the Atomic Energy Act and the NRC regulations in fully decommissioning Oyster Creek, the onus is on Plaintiffs prove otherwise.
Moreover, as Codefendant Lacey Township Planning Boru*d submits, the justification for the denial of Plaintiff's Planning Board Application was not due to the Planning Board's attempt to regulate the radiological aspect of the decommissioning of Oyster Creek, but was due to the simple fact that Plaintiffs, while testifying disclosed facts which were not originally appli~ for. Specifically, theh proposed site plan was not accurate, and there was nothing temporary about the proposed use that Plaintiffs were applying for. Therefore, rather than beat a dead horse before Your Honor, Defendant Lacey Township hereby incorporate and -rely upon the argument submitted by Lacey Township Planning Board with respect to the validity of its determination.
As such, Plaintiffs are simply incapable of substantiating that federal preemption is applicable to the matter at bar, and therefore, their application for injunctive relief must fail.
(2) ANY ALLEGED IRREPARABLE HARM IS FINANCIAL IN NATURE AND IS A DIRECT RESULT OF PLAINTIFF,S OWN SELF~CREATED HARDSHIPS, AND AN IMPROPER ATIEMPT TO CUT CORNERS TO AVOID FOLLOWING THE PROCEDURES MANDATED BY ITS OWN NRC OPERATING LICENSE.
Plaintiffs' application with respect to the irreparable harm prong is a far cry from the legal standard which would justify granting Plaintiffs' requested relief.
A plaintiff seeking a preliminary injunction must prove that irreparable injury is "likely" in the absence of relief. Winter v. nat. Res. Def. Council Inc., 555 U.S. 7, 22 (2008). In addition, the party seeking injunctive relief must simultaneously show "that such harm is immediate--i.e. the ~ t must be a presently existing one and not a remote or speculative possibility."N. Jersey Vineyard Church v. Twp. ofS. Hackensack, CV 15-8369 (WJM), 2016 WL 1365997, at *3 (D.N.J. Apr. 6, 2016)> citing Howorth v. Blinder, Robinson & Co., Inc., 903 F.2d 186 (3d Cir. 1990); Acierno y, New Castle County, 40 F. 3d 645-655 (3d Cir. 1994). In general, to show
Case 3:20-cv-12773-MAS-DEA Document 15 Filed 09/28/20 Page 16 of 21 PagelD: 955 The Honorable Michael A. Shipp U.S.M.J.
Holtec International et al. v. Lacey Township, et al.
Civil Action No.: 3:20-cv-12773 Page 16 of21 in-eparable hann a plaintiff must "demonstrate potential harm which cannot be redressed by a legal or an equitable remedy following a trial." Instant Air Freight Co, y. C,F. Air Freight, Inc.,882 F.2d 797, 801 (3d. Cir. 1989).
Moreover Courts have consistently recognized that economic loss does not constitute irreparable hann.
- Specifically, the United States Supreme Court addressed this very issue and instructed:
"The key word in this consideration is irreparable. Mere injuries, however substantial, in tenns of money, time, and energy necessarily expended in the absence of a stay, are not enough. The possibility that adequate compensatory or other corrective i-eliefwill be available at a later date, in the ordinary court oflitigation, weighs heavily against a claim of irreparable harm."
Sampson v. Mun-ay, 415 U.S. 61, 90 (1974). Thus, the word "irreparable" connotes: "that which cannot be repaired, retrieved, put down again, atoned for ... ,, A.O. Smith Corp v, F.T.C., 530 F.2d 515, 525 (3d Cir. 1976).
As a result, in order to warrant a preliminary injunction, the injwy created by a failure to issue the requested injunction must truly be of a "peculiar nature." Acierno v, New Castle Cm.uey, 40 F.3d. 645,653 _(3d Cir. 1994).
Plaintiffs fail to present any evidentiary basis to support their argument that the in-eparable harm" they will be subject to is of such a peculiar nature to warrant the requested relief. Rather, the real reason is financial based, and the fear of suffering an economic loss. The United States Supreme Court in Murray, supra., definitively held that an economic loss is insufficient to constitute "irreparable harm". Specifically, Defendants would respectfully direct this Honorable Court's attention to subsection B, that begins on page 33 of Plaintiff' moving brief. Therein, this Honorable Court will discover in the second paragraph, that the alleged harm Plaintiffs will suffer due to the Township enforcing local land use laws, is that they will be unable to move forward with their scheduled dry runs. In support of this contention, Mr. Dostal, a disqualified member of the Lacey Township Planning Board, discloses:
"the dry run process, coordinated with the NRC and necessary for NRC approval ofHotlec's spent fuel trnnsfer process, is scheduled to commence on September 28, 2020. There are four components to the dry run exercise:
- Section I - Spent Fuel Canister Closure and seal welding, to be perfom1ed at Holtec's Camden facility-September 28 thru September 30, 2020. [See page 3 paragraph 11 of Mr. Dostal's Certification].
Case 3:20-cv-12773-MAS-DEA Document 15 Filed 09/28/20 Page 17 of 21 PagelD: 956 The Honorable Michael A. Shipp U.S.MJ.
Holtec International et al. v. Lacey Township, et al.
Civil Action No.: 3:20-cv-12773 Page 17 of21 To clarify: this time line will not be frustrated by the Township of Lacey as it plays no roll in using the CTP and notably, that work will be undertaken in Camden, not Lacey TownBhip.
However, Mr. Dostal thereafter certifies:
- Section 2-Spent Fuel Canister transport from the Reactor Building to the Cask Transfer Pit (CTP) and transfer to the Hi-Storm System-October 26 thn1 October 29, 2020. (See page 3 paragraph 11 ofMr. Dostal's Certification].
This deadline is the only one that is at issue as a result of the Township's lawful enforcement of its local land use laws. Therefore, the question becomes what is the alleged irreparable harm the Plaintiffs will suffer if they cannot meet this deadline? The Plaintiffs themselves submit: "in addition, because of Defendants' improper conduct, NDI may be exposed to assessments under the ACO that are tied to timely performance. (See page 34 of Plaintiffs' moving brief first full paragraph last sentence). Plaintiffs' own argument concedes that there is only a possibility that they might be subject to an economic loss. This again, is not sufficient to constitute irreparable harm. However, the only reason why Plaintiffs may be subject to this assessment is because they themselves have violated the ACO and have failed to obtain the required local and state approvals. Clearly, based on Plaintiffs*
own argument there is nothing urgent or peculiar with respect to the alleged irreparable harm to warrant the requested relief.
As stated above, the Plaintiffs' without any local approvals, in direct violation of their NRC license and the ACO erected the CfP. Moreover, there is no mandate that these dry runs occur this year, or in long run that the decommissioning be completed within the next five years, other than by the decommissioning plan prepared by Plaintiffs to be used for Plaintiffs own financial benefit. In fact, when Plaintiffs took over the Decommissioning of the plant, it was already determined that the site had to be fully decommissioned by 2Q'.IB.
Therefore, to sum up the facts before this Honorable Court: first, there is no real sense of urgency in decommissioning this plant, as the NRC has previously stated it need only be decommissioned by 2078. The only motivating factor in support of Plaintiffs' application is the fear of suffering a potential economic loss, However, this financial harm that Plaintiffs are potentially facing is not the fault of the Defendants. Moreover, as stated
Case 3:20-cv-12773-MAS-DEA Document 15 Filed 09/28/20 Page 18 of 21 PagelD: 957 The Honorable Michael A. Shipp U.S.MJ.
Holtec Intemational et _al. v. Lacey Township, et al.
Civil Action No.: 3:20-cv-12773 Page 18 of21 supra, economic hrum is not irreparable ham1 for purposes of obtaining injunctive relief. For that reason alone, Plaintiffs' application for injunctive relief must fail because 1hey cannot present any evidence of an actionable irreparable harm under the aforementioned standard.
Second, to establish ineparable harm, the Plaintiffs must demonstrate a ham1 which cannot be redressed by a legal or an equitable remedy following a trial. Here, Plaintiffs are entitled to two fonns of equitable relief.
First, the Plaintiffs can execute on the authority vested in itpursbant to paragraph 13 of the Consent Order entered into with the Township, and wiite a letter to Judge Hodgson to immediately reopen the previous matter. In the alternative, Plaintiffs are entitled to appeal the Planning Board of Adjustmenfs determination to Superior Court, which they have already elected to do. Both actions could result in the very relief that Plaintiffs seeks before this Honorable Court. Therefore, as there are clearly forms of equitable relief available to the Plaintiffs, their application for injunctive relief must be denied.
(3) BALANCING OF HARMS WEIGH IN FAVOR OF DENYING PLAINTFFS' REQUESTED RELIEF.
Balancing the parties relative harms requires the inquiry into the "potential injury to the plaintiff's without this injunction versus the potential injmy to the defendant with it in place." Novartis Conswner Health, Inc. v. Johnson & Johnson~Merck Consumer Pharm Co., 290 F.3d 578, 586 (3d Cir. 2002).
Shockingly, Plaintiffs assert that that the Township has unclean hands, where the b.uth is quite the opposite.
Throughout the Township's and the Plaintiffs entire relationship, the Township has only required one simple thing. The Plaintiffs must follow the precedent of their predecessors in interest, obtain the proper building permits, and if required, either Planning Board, or Zoning Board approval depending on the requested relief.
This simple request was not only authorized by state law, but is also authorized by federal law and specifically
~e United States Supreme Court.
Despite this minor procedural hurdle that Plaintiffs could easily step over, Plaintiffs, on their own, opted to refute the legality of this requirement, and went ahead and constn1cted certain structures without
Case 3:20-cv-12773-MAS-DEA Document 15 Filed 09/28/20 Page 19 of 21 PagelD: 958 The Honorable Michael A. Shipp U.S.MJ.
Holtec International et al. v. Lacey Township, et al.
Civil Action No.: 3:20-cv-12773 Page 19 of21 receiving any local approvals. Had Plaintiffs went forward with their initial site plan application which they originally submitted in 2019, almost a year ago to date, it is conceivable that this matter would not be before Your Honor, as any issues could have been worked out long before Plaintiffs' dry runs were set to commence.
As a result, any harm that Plaintiffs may suffer is not a result of the Defendants but is a result of their ovm.
lethargic attitude in obtaining the appropriate approvals, and quite frankly their lack of candidness with the Planning Board.
Therefore, in order to truly grasp what the comparable harms are, it is worthy to giind this matter down to its core and determine what Lacey Township is prohibiting without obtaining permits and site plan approval. Lacey Township is not regulating the functionality of the CTP or the existing ISFSI. That jurisdiction is vested in the NRC. Rather, Lacey Township is regulating: (1) the legality of the CTP's location without proper permits; (2) the legality of the CTP's location without proper Planning Board approval; and (3) the legality of the expanded. non~conforming use of adding additional casks to the existing ISFSI without proper approvals. As a result of Lacey Township's enforcement of these prohibitions it is simply regulating the use of a structure that is not legally authorized to exist.
Respectfully, should this Comt grant the Plaintiffs' application for injunctive relief, it would be undercutting municipal authority to have any authority to enforce its land use ordinances. Individuals would use this matter as precedent to ignore Township requirements; construct structures wherever and whenever they please; and then in the event the Township prohibited the structure's use, seek injunctive relief enjoining the Township's conduct solely because the individual might suffer a potential economic loss. Clearly, to permit this precedent to go forward would not only be ridiculous but would cause catastrophic consequences for all municipalities within this Courl's jurisdiction for years to come.
Therefore, before Your Honor is not an application to preserve the status quo, rather this is an application to permit the Plaintiffs to continue their blatant disregard to the law, and have two steps up on the
Case 3:20-cv-12773-MAS-DEA Document 15 Filed 09/28/20 Page 20 of 21 PagelD: 959 The Honorable Michael A. Shipp U.S.M.J.
Holtec International et al. v. Lacey Township, et al.
Civil Action No.: 3:20-cv-12773 Page 20 of21 Township to prevent it from ever being pemlitted to require compliance with the Municipal Land Use Law and theUCC.
(4) THE PUBLIC INTEREST WEIGHS IN FAVOR OF DENYING PLAINTIFFS' REQUESTED RELIEF.
It is in-efutable that the primary purpose of a preliminary injunction is to preserve the status quo.
Anderson v. Davila. 125 F.3d 148> 156 (3d Cir. 1997). Before this Honorable Court, the Plaintiffs are asking this Honorable Court to alter the status quo, and award it the extraordinary relief by way of a temporary restraining order thereby enjoining the Defendant Township from exercising its inherent police powers and requh'e compliance with the New Jersey Municipal Land Use Law, and the Uniform Construction Code. This injunctive relief effectively asks this Honorable Court to vacate the Planning Board's determination. Tbis precedent that Plaintiffs are seeking will result in an unrelenting cascade of lawsuits against Planning Boards whenever they deny a site-plan application, based solely on the argument that the applicant will lose money if they are not permitted to proceed according to their own self-imposed time table.
Significantly, Plaintiff's entire argument with respect to this point applies only to the Planning Board.
The.Plaintiffs do not address even peripherally what alleged public interest is advanced in favor, of this Court orde1ing iajunctive relief against the Township. In fact, 1heir only argument relates to the Planning Board's alleged improper determination and alleged usurpation of the Federal Government's authority, Therefore, Plaintiffs fail to advance a single public interest that weighs in favor of granting the requested injunctive relief.
However, even if Plaintiffs' did manage to concoct a reason, the simple fact of the matter is that any interest Plaintiffs submit is rooted in advancing their own financial gain. It has nothing to do with the welfare of the general public.
Therefore, Defendant Lacey Township respectfully submits that any public interest involved in this matter before this Honorable Court weighs heavily against ordering injunctive relief.
Case 3:20-cv-12773-MAS-DEA Document 15 Filed 09/28/20 Page 21 of 21 PagelD: 960 The Honorable Michael A. Shipp U.S.MJ.
Holtec International et al. v. Lacey Township, et al.
Civil Action No.: 3:20-cv-12773 Page 21 of21 CONCLUSION For the aforementioned reasons, Defendant Lacey Township respectfully requests that this Honorable Court deny Plaintiffs' application Respectfully Submitted, Dated: September 28, 2020
Exhibit F DASTI, MURPHY, McGUCION, ULAKY, FILED KOUTSOURIS & CONNORS, P.C.
JERRY J. DASTI [l.D. 005441973] ~.0220)9 620 West Lacey Road Post Office Box 1057 Forked River, New Jersey 08731 (609) 971-1010 FAX (609) 971-7093 Attorneys for Plaintim, Township of Lacey, a body politio, And the Townshi Committee of the Townshi of Lacey TOWNSHIP OF LACEY, a body politic, and SUPERIOR COURT OF NEW JERSEY THE TOWNSHIP COMMITTEE OF THE l CHANCERY DIVISION TOWNSIIlP OF LACEY j OCEAN COUNrY Plaintifl\'.s) j DOCKETNO.: OCN-C-76-20 vs.
Civil Action HOLTBC INTERNATIONAL end HOLTEC DECOMMISSIONING INTERNATIONAL ORDER IMPOSING TEMPORARY RESTRAINTS Defendant(s)
TIIIS MATIER being opened to the Colll1 by Dasti, Murphy, MoOuckin, Ulaky, K.outsouris and Connors, Attorney for Plainillt Jerry J. Desti, Esquire appearing, seeking relief by way of temporary restraints pursuant to R. 4:52, based upon the facts set forth in the Verified Complaint filed herewith; and it appearing that the Defendant has notice of this application and immediate and irreparable damage may result and for other good cause shown; IT IS ON nns ~ day of June, 2020 l>Aftlolllllll'BV
~uratT, lliOU laovaM
- OOlllfORS ORDERED that the Defendants show cause before me at the Ocean County Court c:ouNIIU.OM l!I IMP House, Toms River, New Jersey, on the 2nd clay of July, 2020, at 2:00 p.m. in the forenoon UOl/llflADIYRo,\D p.o,IIOl(IOff l'ODIDR1Y111.1U,om1 or as soon thereafter as counsel may be heard, to show this Court cause why an Order should not be issued prelbninarlly eqjoinlng and renaining Defendants from:
A. Continuing all work at the fiwility until all permits and approvals are granted; l
B. Assessment of Counsel fees and costs of suit; and C. Granting 111oh other relief as tho court deems equitable and jU&t.
I BE IT FURTHER ORDERED that pending the return date herein, the Defendant is temporarily enjoining and restrained from:
A. Continuing any and all work at the faollity unless or until permits are provided to Plaintiff's attorney dooumenting that the work being undertaken ls permitted by the appropriate regulatory authority, IT FURTHER ORDERED that:
- 1. The Defendant may move to dissolve or modify the temporary restraints herein contained on two (2) days' notice to the Plaintiff's attorney.
- 2. A copy of this Order to Show Cause, Verified Complaint, Legal Memorandum and any supporting Affidavits or Certiflcatlona submitted in support of 'this application be served upon the Defendants attomey, Riobard Hunt within 2 days of the date horeof, in accordance with&. 4:4-3 and R,. 4:44.
- 3. Plaintiff must file with the Court its proof of service of the pleadings on Defendants not later than three (3) days bc1brc the return date.
- 4. De&ndants shall serve a written response to this Order to Show Cause and the request for entry of injunctive relief and proof of service by June 24. 2020
COUIIMI.OlllftLAW
- 5. Plaintiff must file and serve written reply to Defendant, opposition by UO\llllin'l,l,Cl'I lllOAD P.o..llOXIOf1 l'OlllllO IIIWII, 11.,f, Cini _ __...Jun e-"29....._,_20_2_0_ _* The reply papers must be filed with _the Clerk of the Superior Court in the County listed above.
- 6. If Dcfcndent does not file and serve opposition to this Order to Show Cause, the 2
application will be decided on the papers on the return date and relief may be granted by default, provided that Plalntiff files a proof,, of service and a proposed fonn of Order at least three (3) days prior to the return date.
- 7. Defendant take notice that Plaintiff has filed a lawsuit against you in the Superior Court of New Jersey. The Complaint attached to this Order to Show Cause states the ba8l.a of the lawsuit If you dispute the Complaint, you or your attorney must file a written Atl8Wt1t to the Complaint and proof of service before the return date of the order to Show Cause.
- 8. These dooumenta must be filed with the Clerk of the Superlor Court in tho County listed above. Inolude a fillng fee payable to the "Trensurer, State ofNew Jersey". You must also sand a copy of your Answer to Plaintiff's attorney whose name and address appear above. A telephone call will not protect your rights; you must file and serve your Answer, with the fee. or judgment may be entered against you by default. Opposition to the Order to Show Cause is not an Answer, you must file both. If you do not file and serve an Ans'wer, judgment may be entered against you by default.
- 9. If you cannot afford an attorney, you may call Legal Services in the County in whioh you live. If you do not have an attorney and are not eligible for legal assistance you may obtain a referral to an attorney by calling one of the Law Referral Servioes.
D.tlm,IIUlll'BI' lltlllUOlml, vi.,,icr, Jr.OfflOIIJUI. c::omrma 10. The Court will entertaln oral argument, bot not testimony on the return date of COCl!IIIWllll/l't'I.NII the Order to Show Cause, unless the Court and the parties are advised to the contrary not later l'lllllftGfWlft ROM) l'All(l(l"1 ftlll!ll5DW#ll,ll.l.lml than 2 days before the return date.
- 11. Plaintiffs arc ~ to visit the site upon reasonable notice to and with cooperation from the Defendants in order to verify whether the work being undertaken is in 3
accordance with the permits that Defendants have represented they have previously received.
- 12. No other work shall be undertaken by the Defendants at the site, without further Order of this Court, other than work which has been permitted by the Nuolear Regulatory Commission, which proof will be demonstrated to Plaintiff's attorney. Until the proof is submitted, no additional work whatsoever shall be pennitted on site.
/,/ Franch R. Hodgson, Jr.
HON. FRANCIS R. HODGSON, JR., PJ.Ch.
~~-~~
DMrl, lllllll'S1' lloGVCKDI, tUKT, KOUT801IJIIII
- OOIIKOU COIMBUO>> Kr I.Ml' 6'0 'ftff UIC!I' ROAD P.O.IIOXtcm l'ORICIIO RIYII, N.1. 08131 4
Exhibit G Case 3:20-cv-12773-MAS-DEA Document 1 Filed 09/16/20 Page 1 of 25 PageID: 1 File No. 15454-13/RWH PARKER McCAY P.A.
By: Richard W. Hunt, Esquire 9000 Midlantic Drive, Suite 300 P.O. Box 5054 Mount Laurel, New Jersey 08054 (856) 596-8900 Email: rhunt@parkermccay.com Attorneys for Plaintiffs, Holtec International, Holtec Decommissioning International, LLC and Oyster Creek Environmental Protect, LLC UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY TRENTON VICINAGE HONORABLE HOLTEC INTERNATIONAL, HOLTEC DECOMMISSIONING INTERNATIONAL CIVIL ACTION NO.:
and OYSTER CREEK ENVIRONMENTAL PROTECT, LLC CIVIL ACTION Plaintiffs, v.
VERIFIED COMPLAINT TOWNSHIP OF LACEY, a body politic of the State of New Jersey, and THE TOWNSHIP OF LACEY PLANNING BOARD, Defendants.
NATURE OF ACTION
- 1. Oyster Creek Nuclear Power Station ("Oyster Creek") is located in the Township of Lacey, Ocean County, New Jersey. Oyster Creek was a boiling water nuclear reactor that came on line in December of 1969. Prior to its shutdown in September of 2018, Oyster Creek was the oldest operating commercial nuclear power plant in the United States. Oyster Creek is now undergoing decommissioning, the process by which the plant is retired from service.
1
Case 3:20-cv-12773-MAS-DEA Document 1 Filed 09/16/20 Page 2 of 25 PageID: 2
- 2. Exelon Generating Company, LLC ("Exelon") owned Oyster Creek at the time of its shutdown in September of 2018, and held all licensing issued by the Nuclear Regulatory Commission ("the NRC"), including but not limited to, Renewed Facility Operating License No.
DPR-16 and the general license for Independent Spent Fuel Storage Installation ("ISFSI"), all of which are in the name of Exelon or were transferred by the NRC to Exelon as of September of 2018. Attached as Exhibit A is a true and correct copy of the Facility Operating License No. DPR-16; attached as Exhibit B is a true and correct copy of the Renewed Facility Operating License No. DPR-16; and attached as Exhibit C is a true and correct copy of the NRC Order, dated June 20, 2019 approving the transfer of Renewed Facility Operating License No. DPR-16 and the ISFSI general license.
- 3. The ISFSI is a facility designed and constructed for long-term interim storage of spent nuclear fuel after its removal from the nuclear reactor.
- 4. The ISFSI for Oyster Creek is located on the grounds of the plant, and currently houses spent nuclear fuel from prior operating cycles. As part of Oyster Creek's NRC - regulated decommissioning process, all spent nuclear fuel must be removed from the nuclear reactor and remaining spent fuel in wet storage added to the ISFSI. The spent nuclear fuel remains there until a permanent long-term storage option becomes available. Exelon also entered into an Administrative Consent Order with the New Jersey Department of Environmental Protection in January 2018, which reiterated the procedures it must follow with regard to the ISFSI and decommissioning. Attached hereto as Exhibit D is a true and complete copy of the January 2018 Administrative Consent Order.
- 5. As part of the planned shutdown of Oyster Creek, on or about May 21, 2018, Exelon submitted a Post-Shutdown Decommissioning Activities Report ("PSDAR") to the NRC, which 2
Case 3:20-cv-12773-MAS-DEA Document 1 Filed 09/16/20 Page 3 of 25 PageID: 3 described the decommissioning activities and proffered a schedule for its completion. As set forth in the PSDAR, Exelon selected the SAFSTOR decommissioning method, and estimated the decommissioning process would take approximately 60 years, or be complete by approximately 2078. Attached hereto as Exhibit E is a true and correct copy of the May 21, 2018 PSDAR.
- 6. In August of 2018, Exelon and Oyster Creek Environmental Protection, LLC
("OCEP") and Holtec Decommissioning International, LLC ("HDI"), both wholly-owned subsidiaries of Holtec International ("Holtec"), (and, collectively, "Plaintiffs") requested that the NRC consent to a proposed direct transfer of the Renewed Facility Operating License No. DPR-16 and ISFSI General License from Exelon to OCEP as the licensed owner and to HDI as the licensed operator for decommissioning (the "Exelon Transfer").
- 7. The intent was for OCEP to acquire Oyster Creek, including the ISFSI, from Exelon as an asset purchase, and for HDI to serve as the decommissioning operator of Oyster Creek. Upon approval by the NRC, HDI would be the licensed entity responsible for maintaining and decommissioning the facility. This included but was not limited to handling, storing, controlling and protecting the spent nuclear fuel, decommissioning and decontaminating the facility, and maintaining the ISFSI, each in accordance with NRC licensing, regulations and oversight.
- 8. On September 25, 2018, Exelon certified to the NRC that it had permanently ceased operations at Oyster Creek, and that it had removed all spent nuclear fuel from the nuclear reactor and placed it in the nuclear fuel pool for eventual transition to the ISFSI, which is a timely and complex process.
Case 3:20-cv-12773-MAS-DEA Document 1 Filed 09/16/20 Page 4 of 25 PageID: 4 (DECON) as the decommissioning method, which significantly expedites the decommissioning process, including the transfer of spent nuclear fuel to the ISFSI. HDI estimated that the decommissioning process would be completed by 2025, as opposed to Exelon's estimate of 2078.
Attached hereto as Exhibit F is a true and complete copy of the September 29, 2018 revised PSDAR.
- 10. On June 20, 2019, the NRC approved the Exelon Transfer.
- 11. On July 3, 2019, Exelon, OCEP and HDI completed the Exelon Transfer.
- 12. On July 9, 2020, HDI submitted a minor site plan application to the Township of Lacey Planning Board, Application 20-SP-07. Attached hereto as Exhibit G is a true and complete copy of Application 20-SP-07. HDI sought approval to install additional storage modules to store the remaining spent nuclear fuel on a previously constructed concrete pad and a canister transfer pit. This work was needed as part of the ISFSI. The application also sought approval to move a security fence around the perimeter of the storage modules, construct a driveway to accommodate the independent spent nuclear fuel storage area and to place 20 additional prefabricated temporary vertical storage modules on the existing storage pad. The Plaintiff sought to have a total of 68 spent fuel storage modules located on this site.
- 13. Unlike the existing storage modules at Oyster Creek, which are horizontal, HDI proposed to install vertical storage modules.
- 14. The Township of Lacey Planning Board had previously approved 48 storage modules under applications made in 1994 and 2010. Of those, 34 prefabricated horizontal storage modules are currently in use at Oyster Creek housing spent nuclear fuel. HDI sought to add 34 new vertical storage modules- 14 under previous approvals, but with vertical orientation, and 20 new vertical storage modules.
4
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- 15. HDI's minor site plan application met all of the Township of Lacey's land use and development regulations, and did not require any variances or waivers from the Township of Lacey's land development codes.
- 16. HDI's minor site plan application did not require any approvals or variances from any other State or County entities.
- 17. On August 10, 2020, HDI also gave a presentation regarding its site plan application and answered extensive questions addressing any potential concerns over radiological safety. HDI also provided responses to extensive questions posed by the Township of Lacey Planning Board Engineer. Attached hereto as Exhibit H is a true and complete copy of the August 10, 2020 presentation given by HDI and HDI's responses to questions posed by the Township of Lacey Planning Board Engineer.
- 18. Nonetheless, on August 24, 2020, the Township of Lacey Planning Board denied HDI's minor site plan application. As reflected in the hearing transcript, and Board Resolution
- 20-SP-07, the denial was based entirely on concerns over radiological safety. Attached hereto as Exhibit I is a true and complete copy of the Township of Lacey Planning Board meeting held on August 24, 2020.
- 19. The question presented by this case is whether the Defendants' actions in denying HDI's minor site plan application premised solely on radiological safety concerns were proper.
The clear answer is no.
- 20. Defendants' actions are preempted by federal law, specifically the Atomic Energy Act ("AEA"), 42 U.S.C. § 2011 et seq., the Nuclear Waste Policy Act ("NWPA"), 42 U.S.C. § 10101 et seq., the Supremacy Clause of the United States Constitution, U.S. Const. Art. VI, and because they seek to and have interfered with Plaintiffs' federal rights.
5
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- 21. States and local governments may not interfere with the federal government's exclusive authority over the radiological safety of nuclear power plants, which includes decommissioning. Any state or local government regulation or action impacting a nuclear power plant, including decommissioning, that is grounded in radiological safety concerns falls squarely within the prohibited and preempted field that comes under the exclusive purview of the federal government, in this case the NRC.
- 22. By this action, Plaintiffs seeks a declaratory judgment that Defendants were not authorized to deny HDI's otherwise conforming minor site plan application premised solely on radiological safety concerns.
- 23. By this action, Plaintiffs also seek a preliminary and permanent injunction prohibiting Defendants from incorporating any aspect of radiological safety into their decision as to whether HDI's minor site plan application meets the Township of Lacey's land use and development regulations upon reapplication or direct remand.
- 24. By this action, Plaintiffs also seek an emergent preliminary and permanent injunction permitting Plaintiffs to conduct dry runs (i.e. practice demonstrations) as required as part of their spent fuel campaign, which is part of the ISFSI, required by the NRC pursuant to 10 C.F.R. 72.212 and currently scheduled, with NRC involvement to take place in September of 2020.
- 25. By this action, Plaintiffs also seek an emergent preliminary and permanent injunction permitting Plaintiffs to conduct the spent fuel campaign, consistent with its revised PASDAR submitted on September 28, 2018.
THE PARTIES
- 26. Plaintiff, Holtec, is a corporation formed in the State of Delaware. Holtec's primary place of business is 1 Holtec Blvd., Camden, New Jersey.
6
Case 3:20-cv-12773-MAS-DEA Document 1 Filed 09/16/20 Page 7 of 25 PageID: 7
HDI's primary place of business is 1 Holtec Blvd., Camden, New Jersey. HDI is a wholly owned subsidiary of Holtec.
- 28. Plaintiff, OCEP, is a limited liability company formed in the State of Delaware.
OCEP's primary place of business is 1 Holtec Blvd., Camden, New Jersey. OCEP is a wholly owned subsidiary of Holtec.
- 29. Defendant, Township of Lacey, is a body politic of the State of New Jersey ("Lacey Township") located in Ocean County, New Jersey.
- 30. Defendant, Township of Lacey Planning Board, is the governing body appointed by the Township Committee and tasked with preparing and ensuring compliance with Lacey Township's Master Plan in accordance with the New Jersey Municipal Land Use Law, N.J.S.A.
40:55D-1 et seq. ("Planning Board").
JURISDICTION AND VENUE
- 31. The Court has subject matter jurisdiction over the claims asserted in this action pursuant to 28 U.S.C. § 1331 (federal question), because this action involves interpretation of the Atomic Energy Act ("AEA", 42 U.S.C. § 2011 et seq., the Nuclear Waste Policy Act ("NWPA"),
42 U.S.C. § 10101 et seq., the Supremacy Clause of the United States Constitution, U.S. Const.
Art. VI, and because the action seeks to prevent local officials from interfering with the federal rights of Plaintiffs.
- 32. Venue is properly vested in this Court pursuant to 28 U.S.C. § 1391 because all Defendants reside in the State of New Jersey and/or are located in the State of New Jersey, Ocean County. Venue is also properly vested in this Court because Oyster Creek is located in the State of New Jersey, Ocean County, and all conduct by Defendants at issue in this action took place in 7
Case 3:20-cv-12773-MAS-DEA Document 1 Filed 09/16/20 Page 8 of 25 PageID: 8 the State of New Jersey, Ocean County. Venue is also properly vested in this Court because Plaintiffs' primary places of business are located in New Jersey.
- 33. There is a present and actual controversy between the parties.
- 34. The relief requested is authorized pursuant to 28 U.S.C. §§ 2201 and 2202 (declaratory judgment) and 28 U.S.C. § 1651(a) (injunctive relief).
SUBSTANTIVE ALLEGATIONS I. REGULATORY OVERSIGHT OF PRIVATE NUCLEAR REACTORS IN THE UNITED STATES
- 35. The AEA stemmed from Congress' belief that the national interest would be served if the Government encouraged the private sector to develop atomic energy for peaceful purposes under a program of federal regulation and licensing. The Act implemented this policy decision by opening the door to private construction, ownership, and operation of commercial nuclear-power reactors under the strict supervision of the [NRC]. English v. Gen. Elec. Co., 496 U.S. 72, 81 (1990). The AEA "provid[es] for licensing of private construction, ownership, and operation of commercial nuclear power reactors for energy production under strict supervision by the [NRC]."
Duke Power Co. v. Carolina Envtl. Study Group, Inc., 438 U.S. 59, 63 (1978).
- 36. The NRC in turn has created a comprehensive and rigorous licensing procedure for nuclear facilities including ISFSI. See, 10 CFR §50.33, §50.40 and §72.
- 37. States, on the other hand, have "traditional authority over the need for additional generating capacity, the type of generating facilities to be licensed, land use, ratemaking, and the like". Pacific Gas & Elec. Co. v. State Energy Res. Conserv. & Dev. Comm'n, 461 U.S. 190, 212 (1993).
- 38. Likewise, states have no traditional authority over the licensing and operation of nuclear power plants. Under the AEA, the NRC has "exclusive authority over plant construction 8
Case 3:20-cv-12773-MAS-DEA Document 1 Filed 09/16/20 Page 9 of 25 PageID: 9 and operation," such that any attempt by a state or local government "to regulate the construction or operation of a nuclear power plant would clearly be impermissible ... even if enacted out of non-safety concerns." Id. at 212.
- 39. States and their political subdivisions (counties and municipalities), have no authority to regulate the radiological safety of nuclear power plants. "[T]he federal government has occupied the entire field of nuclear safety concerns, except the limited powers expressly ceded to the states." Id. at 212. Thus, state laws or actions are invalid if they have "some direct and substantial effect on the decisions made by those who build or operate nuclear facilities concerning radiological safety levels." English, 496 U.S. at 85.
- 40. The prohibitions against States regulating radiological safety noted above apply equally to local municipalities. See, Hillsborough County v. Automated Medical Laboratories, 471 U.S. 707 (1985).
- 41. The AEA allows a state to enter into an agreement with the NRC whereby the state agrees to shoulder some of the burden of regulating nuclear facilities. See, 42 U.S.C. § 2021.
Nonetheless, Congress has made clear that issues relating to "construction and operation" of nuclear facilities remain within the exclusive control of the NRC. Id. § 2021(c). Moreover, there is no such ceding applicable here as the Defendants are local not state actors.
- 42. In 1982, Congress enacted the Nuclear Waste Policy Act ("NWPA"), 42 U.S.C. §§ 10101-10270, which "establishe[d] a schedule for developing a permanent federal repository" of spent nuclear fuel and "[a]s an alternative to a permanent facility, ... also establishe[d] a federally-monitored temporary storage program." Skull Valley Band of Goshute Indians v. Nielson, 376 F.3d 1223, 1242 (10th Cir. 2004), cert. denied sub nom. Nielson v. Private Fuel Storage, LLC, 546 U.S. 1060 (2005). Pursuant to the AEA and the NWPA, "the Atomic Energy Commission and the 9
Case 3:20-cv-12773-MAS-DEA Document 1 Filed 09/16/20 Page 10 of 25 PageID: 10 NRC have promulgated detailed regulations regarding the operation of nuclear facilities, including the storage of SNF [i.e., spent nuclear fuel]." Id.; see also id. at 1250 ("Under the federal licensing scheme ..., it is not the states but rather the NRC that is vested with the authority to decide under what conditions to license an SNF storage facility.").
- 43. In light of this extensive field preemption of state regulation of nuclear facilities in the areas of licensing, construction and operation, storage of spent nuclear fuel and radiological health and safety, most states containing nuclear facilities have not sought to regulate in such areas.
In those instances where states have attempted to intrude into areas subject to NRC's exclusive authority, in particular radiological safety, federal and state courts have repeatedly enforced federal preemption to invalidate the state regulations/actions.
II. ISFSI
- 44. The transfer and storage of spent nuclear fuel to long-term interim storage is a crucial component of decommissioning, and critical in this case to ensure that the decommissioning schedule at Oyster Creek complies with the revised PSDAR submitted by HDI, and that radiological safety requirements are met.
- 45. The transfer and storage of spent fuel involves lifting and placing approximately 75 fuel assemblies (each assembly holding approximately 80 metal rods encasing the uranium pellets) into a Multi-Purpose Canister ("MPC") and Holtec's proprietary, patented transfer cask (HI-TRAC) while in the spent fuel pool. The MPC, which encloses the spent fuel, and HI-TRAC cask are then lifted from the pool, drained, dried, decontaminated, sealed and prepared for the next step in the transfer process. Once ready, the HI-TRAC and MPC are loaded onto a special vehicle that transports the MPC to a Cask Transfer Pit ("CTP"). This is all done in accord with NRC regulation.
10
Case 3:20-cv-12773-MAS-DEA Document 1 Filed 09/16/20 Page 11 of 25 PageID: 11
- 46. At the CTP, each MPC will be lowered into the patented HI-STORM FW dry cask storage module (generally described above as a vertical storage module). The HI-STORM FW modules are prefabricated and provide the necessary shielding from radiation as well as structural protection. Once the lid is placed over the module, the HI-STORM FW containing the MPC will be lifted from the CTP and transported to its storage location on a concrete pad at the site- the site is the ISFSI.
- 47. The CTP, the edge of which was filled with flowable fill as a safety measure to protect employees, will be removed and the area restored upon completion of fuel transfer.
- 48. Dry cask storage systems such as that being employed at Oyster Creek by Plaintiffs must be designed and operated in accordance with NRC standards at 10 C.F.R. Part 72, and extensive NRC technical guidance. The NRC's standards and technical guidance exceeds 400 pages. Attached as Exhibit J is a true and correct copy of the cover and table of contents to NRC's Standard Review Plan for Spent Fuel Dry Storage Systems at a General Licensing Facility, NUREG-1536. A full copy can be accessed at https://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr1536/r1/sr1536r1.pdf.
- 49. The NRC reviews and approves dry cask storage systems by issuing a Certificate of Compliance ("CoC"). Holtec's HI-STORM FW storage system been approved by NRC pursuant to CoC No. 1032, as amended. Attached as Exhibit K is a true and correct copy of the original CoC No. 1032 for the HI-STORM FW, issued by NRC on June 13, 2011.
Case 3:20-cv-12773-MAS-DEA Document 1 Filed 09/16/20 Page 12 of 25 PageID: 12 of the cover and table of contents for the Final Safety Analysis Report for the HI-STORM FW. A full copy can be accessed at https://www.nrc.gov/docs/ML1236/ML12363A284.pdf.
- 51. Oyster Creek has a general license for the ISFSI pursuant to NRC requirements, which is subject to the general licensing conditions under 10 C.F.R. 72.212.
- 52. NRC has issued several inspection manuals governing the evaluation of ISFSIs and a licensees' compliance with NRC regulations relating to the ISFSI. Such manuals include NRC Inspection Manual: Review of 10 CFR 721.212(b) Evaluations, Inspection Procedure 60856, a true and correct copy of which is attached as Exhibit M.
- 53. NRC has also issued "NRC Inspection Manual: On-Site Fabrication of Components and Construction of an ISFSI, Inspection Procedure 60853," a true and correct copy of which is attached as Exhibit N.
- 54. NRC's inspection of and oversight over decommissioning is also set forth in "NRC Inspection Manual: Decommissioning Power Reactor Inspection Program, Inspection Manual Chapter 2561," a true and correct copy of which is attached as Exhibit O.
- 55. Since nuclear fuel must be replaced over time, spent fuel has previously been transferred, prior to the decommissioning process, from the reactor building at Oyster Creek to storage on the ISFSI. The first spent fuel campaign to load spent fuel containers into dry cask storage occurred in 2002, utilizing the NUHOMS storage system. Several additional spent fuel transfer campaigns, consistent with NRC regulations, continued through 2018 at Oyster Creek.
- 56. The entire spent fuel loading, transfer, and storage process, along with the use and operation of the dry cask storage system, is inspected and reviewed by NRC.
12
Case 3:20-cv-12773-MAS-DEA Document 1 Filed 09/16/20 Page 13 of 25 PageID: 13 practice) run of the spent fuel loading and transfer onto the ISFSI, including the use of the CTP.
HDI has arranged for a dry run process, which includes an NRC review and site inspection. That dry run is scheduled, with the NRC in attendance, to begin in late September of this year.
- 58. However, as will be addressed in more detail at Paragraphs 72, 73, and 80 of the Complaint, Defendants have indicated they will refuse to allow the dry run, because they denied HDI's minor site plan application. Attached hereto as Exhibit P is a true and complete copy of a letter dated September 1, 2020 from Jerry J. Dasti to Richard W. Hunt describing the Township's position refusing the scheduled September dry run.
- 59. Defendants' expressed intention to block the dry run and the subsequent spent fuel campaign is illegal under federal preemption because, as per Section III of this Complaint, their denial of HDI's minor site plan application was premised entirely on radiological safety.
- 60. Defendants are also delaying and interfering with Plaintiffs' obligation to decommission Oyster Creek by their failure to act in good faith regarding NDI's minor site plan application.
III. MINOR SITE PLAN APPLICATION
- 61. As part of the decommissioning and spent fuel transfer campaign, HDI had first evaluated the existing ISFSI, and decided that an expansion of the ISFSI pad would be required to accommodate the additional vertical storage casks. In addition, HDI planned to construct a new security building. Based on those plans, HDI submitted an application to Lacey Township for Preliminary and Final Major Site Plan approval, on or about December 12, 2019. A true and correct copy of the December 12, 2019 site plan approval request is attached as Exhibit Q.
Case 3:20-cv-12773-MAS-DEA Document 1 Filed 09/16/20 Page 14 of 25 PageID: 14 explaining that the building was no longer part of the application. Attached as Exhibit R is a true and correct copy of the March 11, 2020, cover letter on behalf of HDI to Lacey Township transmitting the revised plans.
- 63. HDI also reevaluated the arrangement of dry storage casks on the ISFSI and determined that an expansion of the existing ISFSI concrete pad would no longer be necessary in order to accommodate the casks. Instead, HDI determined it was able to use the space on the existing ISFSI concrete pad. Since the ISFSI pad expansion and security building were abandoned, HDI withdrew its Preliminary and Final Major Site Plan application.
- 64. On March 27, 2020, Lacey Township issued a Stop Work Order ( SWO ) to Plaintiffs (directed to Holtec Industries as "Owner"). In that SWO, Lacey Township opined that Plaintiffs were required to obtain permits that they did not possess. Attached hereto as Exhibit S is a true and complete copy of the March 27, 2020 SWO.
- 65. On April 17, 2020, Plaintiffs filed an appeal to the Ocean County Construction Board of Appeals.
- 66. On May 27, 2020, Lacey Township and the Township Committee filed a lawsuit against in the Superior Court of New Jersey, Docket OCN-C-76-20 ("State Court Case"). Lacey Township and the Township Committee sought to temporarily and permanently enjoin Holtec and HDI from continuing any and all work at Oyster Creek unless or until permits were provided to counsel for Lacey Township and the Township Committee documenting that the work being undertaken is permitted by the appropriate regulatory authority.
- 67. On June 2, 2020, over the objection of Holtec and HDI, the Honorable Francis R.
Hodgson, Jr., P.J. Ch., entered an Order granting temporarily restraints in favor of and as requested by Lacey Township and the Township Committee, and further ordered the parties to show cause 14
Case 3:20-cv-12773-MAS-DEA Document 1 Filed 09/16/20 Page 15 of 25 PageID: 15 on July 2, 2020, why the restraints should not be permanent. The Order indicated that the only work that could continue on site was "work which has been permitted by the Nuclear Regulatory Commission, which proof shall be demonstrated to Plaintiffs' attorney." Attached hereto as Exhibit T is a true and complete copy of the June 2, 2020, Order to Show Cause.
- 68. On June 3, 2020 Plaintiffs' counsel sent a detailed letter, consistent with the Order to Show Cause, detailing the licensing background for the facility, and explaining the comprehensive NRC jurisdiction over the design, construction, and operation of the ISFSI, demonstrating that the work related to the spent fuel campaign was permitted by the NRC and should be allowed to continue. Attached hereto as Exhibit U is a true and complete copy of the June 3, 2020 letter sent by Plaintiff's counsel.
- 69. On July 17, 2020, after negotiations between counsel for the parties, the Honorable Francis R. Hodgson, Jr., P.J. Ch. entered a Consent Order resolving the State Court Case and dismissing it without prejudice. Amongst other terms, Holtec and HDI agreed to submit a site plan application as described therein. Attached as Exhibit V is a true and correct copy of the July 17, 2020, Consent Order.
- 70. Pursuant to the terms of the Consent Order the Township agreed "to work with Defendant [Holtec] to ensure that any approvals will not be unreasonably withheld or delayed."
(Exhibit V, Paragraph 7).
- 71. Further, the Consent Order provided, at Paragraph 6, that "The Township agrees that the performance of the NRC regulated dry runs may begin as scheduled in September 2020 even if permits and the Certificate of Approval are not issued at that time, however the spent fuel campaign shall not begin until permits are issued. The Township agrees to work with Defendants to not impact this schedule, and to ensure that any approvals will not be unreasonably withheld or 15
Case 3:20-cv-12773-MAS-DEA Document 1 Filed 09/16/20 Page 16 of 25 PageID: 16 delayed. To that end, the Township may inspect the CTP as soon as this Consent Order is executed." (Exhibit V, Paragraph 6, emphasis supplied).
- 72. Paragraph 6 went on to specifically set forth the specific components of the dry run procedure, as provided for pursuant to 10 C.F.R. 72.212.
- 73. Accordingly, on June 9, 2020 HDI submitted a minor site plan application to the Township of Lacey Planning Board, Application 20-SP-07. (See Exhibit G).
- 74. Prior to the final public hearing held on August 24, 2020, Defendants submitted a series of questions to and sought information and documents from Plaintiffs. Virtually every question posed and all information and documents sought by Defendants addressed radiological safety concerns.
- 75. At the final public hearing held on August 24, 2020, Plaintiffs presented written answers to Defendants' questions, and answered all other questions presented and information and documents sought with the highest level of detail possible.
- 76. HDI's minor site plan application met all of Lacey Township's land use and development regulations.
- 77. HDI's minor site plan application did not require any approvals, variances, or waivers from any other state or county entities.
- 78. Nonetheless, on August 24, 2020, Defendants denied HDI's minor site plan application due entirely to concerns over radiological safety.
- 79. Further, the Township Solicitor, contrary to the language and intention of the Consent Order and prior verbal representations to Holtec's counsel, has now taken the position that the Planning Board approval was a prerequisite for the NRC regulated dry run process. (See Exhibit P), which is currently scheduled, through the NRC, to begin in September, 2020.
16
Case 3:20-cv-12773-MAS-DEA Document 1 Filed 09/16/20 Page 17 of 25 PageID: 17
- 80. Accordingly, Defendants, contrary to the New Jersey Municipal Land Use Law
( MLUL ) and the AEA, and in contravention of the NRC regulated ISFSI spent fuel campaign, for which the preliminary dry run process is currently scheduled to begin, with NRC oversight, at the end of September, have indicated their intent to frustrate this urgent nuclear safety procedure.
CAUSES OF ACTION COUNT ONE AEA/NRC PREEMPTION (Declaratory and Injunctive Relief)
- 81. Plaintiff incorporates paragraphs 1-81 above as if alleged herein at length.
- 82. The AEA vests in the NRC exclusive jurisdiction over the licensing and operation of nuclear power facilities, including decommissioning and, specifically, ISFSI. Local government laws, regulations and actions that have or seek to have a direct and substantial impact on nuclear plant operations, including decommissioning and, specifically ISFSI, are preempted under the Supremacy Clause, U.S. Const. Art. VI.
- 83. Likewise, the NRC has exclusive authority over radiological safety. Local government laws, regulations and actions that have or seek to have any impact on radiological safety are preempted under the Supremacy Clause, U.S. Const. Art. VI.
- 84. Defendants' decision to deny HDI's minor site plan application (Application 20-SP-
- 07) premised solely on radiological safety concerns was improper and preempted as radiological safety concerns are within the exclusive province of the NRC.
Case 3:20-cv-12773-MAS-DEA Document 1 Filed 09/16/20 Page 18 of 25 PageID: 18 with its spent fuel campaign, and otherwise materially interfere with Plaintiffs' decommissioning efforts at Oyster Creek, in particular the ISFSI.
- 86. It is essential that HDI be able to proceed with the dry run, scheduled to begin in late September, and with the spent fuel campaign which are of the utmost importance and urgency to ensure the safe and timely storage of spent nuclear fuel from the decommissioned reactor.
- 87. Plaintiffs seek a declaration that Defendants are preempted from stopping or interfering with the federally licensed decommissioning of Oyster Creek, specifically, the ISFSI, by applying radiological safety concerns when deciding municipal land use applications.
- 88. Plaintiffs seek a preliminary and permanent injunction against any action by Defendants to stop or interfere with Plaintiffs' commencement of the dry run at Oyster Creek in light of their improper denial of HDI's minor site plan application (Application 20-SP-07).
PRAYER FOR RELIEF In light of the foregoing, Plaintiffs respectfully request that the Court:
I. Issue a declaratory judgment, pursuant to 28 U.S.C. § 2201 and § 2202, 42 U.S.C. § 1983, and Rule 57 of the Federal Rules of Civil Procedure, that: (1) federal law preempts the Defendants from applying radiological safety concerns as a factor when deciding any application by Plaintiffs submitted pursuant to Lacey Township's land use and development regulations as radiological safety comes under the exclusive purview of the NRC; (2) Defendants shall not reject any future application by Plaintiffs submitted pursuant to Lacey Township's land use and development regulations based on radiological safety concerns as radiological safety comes under the exclusive purview of the NRC; and (3) Defendants improperly denied HDI's minor site plan application, #20-SP-07, because they did so solely because of concern over radiological 18
Case 3:20-cv-12773-MAS-DEA Document 1 Filed 09/16/20 Page 19 of 25 PageID: 19 safety and not based on Lacey Township's land use ordinances that govern minor site plan approval; II. Issue temporary, preliminary and permanent injunctive relief pursuant to 28 U.S.C. § 1651(a), 42 U.S.C. § 1983, and Rule 65 of the Federal Rules of Civil Procedure, that; (1) temporarily, preliminarily, and permanently enjoining Defendants from any and all actions of any kind hich o ld f a e o ob c Plain iff abili o mo e fo ad with the NRC-regulated dry run process that is currently scheduled to begin in late September 2020; (2) he pen f el o age campaign, o Plain iff abili o ope a e and facilitate said campaign; (3) all activities related to transfer and storage of spent f el a ela ed o he Independen Spen F el S o age In alla ion ( ISFSI ); (4) requiring and mandating that Defendants not withhold any permits and/or approvals that are part of the dry run or spent fuel storage campaign administrative process; (5) generally enjoining Defendants from any actions which attempt to control, regulate, or impact radiological safety considerations, which is an area preempted by Federal regulations; (6) enjoining Defendants from applying radiological safety concerns as a factor when deciding any application by Plaintiffs submitted pursuant to Lacey Township's land use and development regulations as radiological safety comes under the exclusive purview of the NRC; (7) enjoining Defendants from rejecting any future application by Plaintiffs submitted pursuant to Lacey Township's land use and development regulations based on radiological safety concerns as radiological safety comes under the exclusive purview of the NRC; and (9) enjoining Defendants from prohibiting the dry run at Oyster Creek; III. Award reasonable attorneys' fees and costs to Plaintiffs; and 19
Case 3:20-cv-12773-MAS-DEA Document 1 Filed 09/16/20 Page 20 of 25 PageID: 20 IV. Award such other relief as the Court deems just and equable.
COUNT TWO CONSTITUTIONAL DEPRIVATION
- 89. The Plaintiffs incorporate all of the foregoing paragraphs by reference as if those paragraphs were fully set forth at length herein.
- 90. J i dic ion o en e ain Plain iff S a e Con i ional legal claim i confe ed upon the Federal District Court pursuant to 42 U.S.C. 1983.
- 91. It is undisputed that the Plaintiff owns a 139.65 acre tract of land within the Lacey Township-Ocean Township Border which is more precisely defined as Block 1001, Lot 4.02, as set forth on the Tax Maps of Lacey Township and which contains the Oyster Creek Nuclear Facility currently being decommissioned.
- 92. As set forth in the Resolution of Denial 20-SP-07 (attached hereto as Exhibit Y)
- 1. The applicant is requesting approval of a minor site plan application in accordance with the Lacey Township Land Use and Development Regulations. The site is currently a nuclear power generating station, consisting of 139.65 acres on the Lacey Township/Ocean Township border. The existing temporary spent nuclear fuel storage area is located east of the existing power plant.
The storage area contains 48 prefabricated horizontal storage modules within a security fence. Twenty of the existing storage modules were approved in 1994 by Lacey Township Zoning Board of Adjustment Resolution 93-40, and 28 additional storage modules were approved in 2010 by Lacey Township Planning Board Resolution 10-SP-05. The applicant now seeks minor site plan approval to expand the independent spent nuclear fuel storage area to construct 28 additional temporary vertical storage modules on a previously constructed concrete/canister transfer pad, plus 6 additional temporary vertical storage modules on another existing concrete pad, for a total of 34 additional temporary storage modules.
20
Case 3:20-cv-12773-MAS-DEA Document 1 Filed 09/16/20 Page 21 of 25 PageID: 21
- 93. It is undisputed that the Plaintiffs have a proprietary interest, which is protected by the Federal and State Constitutions, in the subject property.
- 94. It is undisputed that the Plaintiff HDI requested approval in accordance with the MLUL.
- 95. It is undisputed that subject property is located in the M-100 Industrial Zone, in the Forked River section of the Township.
- 96. It is undisputed that the Lacey Township Zoning Ordinance allows for the zoning regulation of the Plaintiffs property.
- 97. It is undisputed that ongoing maintenance and proposed decommissioning of the facility necessarily includes the storage of spent fuel.
- 98. The Boa d denial of he Plain iff Application was ultra vires.
- 99. The Boa d denial of he Mino Si e Plan a clea l p emedi a ed, a reflected by the questions posed by the Board to the Plaintiffs p io o he hea ing, he Boa d q e ioning during the hearing, and the certified Board Resolution. (Exhibit Y) 100. The Boa d denial of he Plain iff Application was motivated by political bias and coercion, and a done i h eckle di ega d fo Plain iff igh and p ope in e e .
101. The Boa d denial of he Plain iff Application was not only unreasonable, arbitrary, and capricious but the means selected by the Defendant to deny the Plaintiffs Application had no real and substantial relation to the MLUL. Schmidt v. Board of Adjustment of City of Newark, 9 N.J. 405 (1952).
102. Throughout the Plaintiffs Application process, the Plaintiffs were entitled to Due Process, both procedural and substantive, which is designed to prevent fundamental unfairness.
21
Case 3:20-cv-12773-MAS-DEA Document 1 Filed 09/16/20 Page 22 of 25 PageID: 22 103. The purpose of the constitutional limitations in the 14th Amendment of the Bill of Rights and in the Due Process and Equality clauses of the Federal and State Constitutions is to safeguard the fundamental rights of persons and property against arbitrary and oppressive state action.
104. The actions of that Planning Board were ultra vires and premediated and constitute a iola ion of Plain iff con itutional rights.
105. An example of the ultra vires, premediated, unreasonable, coerced and biased conduct of the Board occurred during the August 10, 2020, and August 24, 2020 Hearing, during which various Board Members asked questions of and made comments o he Plain iff E pe that involved issues that were clearly within the purview of the NRC.
106. As reflected in the questions posed prior to the hearing, the questions posed at the hearing and the Resolution of Denial, the Board Members overtly and egregiously exceeded their authority to review the Minor Site Plan with regard to the duties empowered to the Board pursuant to N.J.S.A. 40:55D-1 et seq. and the Township Code regarding Site Plan Review.
107. Acts by a Planning Board that are ultra vires, premediated and or motivated by poli ical bia no onl con i e a iola ion of a p ope o ne con i ional igh including a violation of 42 U.S.C. 1983. The above referenced comments, demands, questions and subsequent denial of the Application without any deliberation on the merits of the testimony or discussion i h he Boa d p ofe ional i prima facie e idence of he Boa d tainted bias and premediated process which violates the Plain iff con i ional igh . Thei ac ion dep i ed he Plaintiff of Due Process, and created a manifest injustice, which must be addressed.
108. Plaintiff HDI was entitled to Due Process, both procedural and substantive, which is designed to prevent fundamental unfairness. However, these constitutional entitlements were 22
Case 3:20-cv-12773-MAS-DEA Document 1 Filed 09/16/20 Page 23 of 25 PageID: 23 indiscriminately violated when the Board Members presented various demands and requirements of the Plain iff , hich clea l e po ed he Boa d p e-disposition and bias against the Plaintiffs.
109. The purpose of the constitutional limitations in the 14th Amendment and in the Due Process and Equality Clauses of the Federal and State Constitution is to safeguard the fundamental rights of persons and property against arbitrary and oppressive state action. Therefore, acts by a Board that are ultra vires, premediated and or motivated by political bias are prohibited and con i e a iola ion of a p ope o ne con i ional igh .
WHEREFORE, Plaintiffs demand the entry of judgment in its favor and against the Board for compensatory damages, attorne fee , and co of i a ell a damage a ho i ed nde 42 U.S.C. 1983, including a civil penalty, and any other equitable relief deemed just.
PARKER McCAY, P.A.
Attorneys for Plaintiffs Holtec International, Holtec Decommissioning International, LLC and Oyster Creek Environmental Protect, LLC s/Richard W. Hunt Dated: September 16, 2020 By: _______________
RICHARD W. HUNT DEMAND TO PRESERVE EVIDENCE Defendants are directed and demanded to preserve all physical and electronic information of, about, relating or pertaining to plaintiffs, defendants, to plaintiffs' cause of action and/or prayers for relief, to any defenses to same, or to any party, including, but not limited to, electronic data storage, closed circuit TV footages, digital images, computer images, cache memory, searchable data, emails, spread sheets, employment files, memos, text messages and any and all online social or work related websites, entries on social networking sites (including, but not limited to, 23
Case 3:20-cv-12773-MAS-DEA Document 1 Filed 09/16/20 Page 24 of 25 PageID: 24 Facebook, Twitter, etc.), and any other information and/or data and/or things and/or documents which may be relevant to any claim or defense in this litigation. Failure to do so will result in separate claims for sanctions, spoliation of evidence and/or appropriate adverse inferences.
PARKER McCAY, P.A.
Attorneys for Plaintiffs Holtec International, Holtec Decommissioning International, LLC and Oyster Creek Environmental Protect, LLC s/Richard W. Hunt Dated: September 16, 2020 By: _______________
RICHARD W. HUNT Pursuant to Rule 28 U.S.C. 1746, this matter is currently not the subject of any other action pending in any court. In the event that becomes no longer the case, I will promptly notify the Court.
PARKER McCAY, P.A.
Attorneys for Plaintiffs Holtec International, Holtec Decommissioning International, LLC and Oyster Creek Environmental Protect, LLC s/Richard W. Hunt Dated: September 16, 2020 By: _______________
RICHARD W. HUNT 24
Case 3:20-cv-12773-MAS-DEA Document 1 Filed 09/16/20 Page 25 of 25 PageID: 25 VERIFICATION I, JEFFREY P. DOSTAL, of full age, say:
- 1. I am the Vice President for Plaintiff, Holtec Decommissioning International, LLC
("Holtec"), and am authorized to make this Verification on behalf of the Holtec Plaintiffs in the above-captioned action in support of the allegations contained and relief sought by this Verified Complaint and the accompanying Order to Show Cause.
- 2. I have read the foregoing Verified Complaint, and hereby verify that all allegations contained therein are true and correct to the best of my knowledge, belief, and information available to me, except those made on information and belief.
I certify that the foregoing statements made by me are true. I am aware that if any of the foregoing statements made by me are willfully false, I am subject to punishment.
Dated: September 16, 2020 By:______________ _____________________
JEFFREY P. DOSTAL 4813-8861-9979, v. 6 25
Exhibit H Case 3:20-cv-12773-MAS-DEA Document 3 Filed 09/17/20 Page 1 of 5 PageID: 798 File No. 15454-13/RWH PARKER McCAY P.A.
By: Richard W. Hunt, Esquire 9000 Midlantic Drive, Suite 300 P.O. Box 5054 Mount Laurel, New Jersey 08054 (856) 596-8900 Email: rhunt@parkermccay.com Attorneys for Plaintiffs, Holtec International, Holtec Decommissioning International, LLC and Oyster Creek Environmental Protect, LLC UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY TRENTON VICINAGE HONORABLE MICHAEL A. SHIPP HOLTEC INTERNATIONAL, HOLTEC DECOMMISSIONING CIVIL ACTION NO.: 3:20-cv-12773-MAS-INTERNATIONAL, LLC and OYSTER DEA CREEK ENVIRONMENTAL PROTECT, LLC, CIVIL ACTION Plaintiffs, v.
ORDER TO SHOW CAUSE SEEKING TOWNSHIP OF LACEY, a body politic of PRELIMINARY INJUNCTION AND the State of New Jersey, and THE TEMPORARY RESTRAINING ORDER TOWNSHIP OF LACEY PLANNING PURSUANT TO FRCP 65 BOARD, Defendants.
THIS MATTER being brought before the Court by Richard W. Hunt, Esquire of Parker McCay, P.A. attorneys for Plaintiffs, Holtec International, Holtec Decommissioning International, LLC and Oyster Creek Environmental Protect, LLC, (collectively Plain iff or H l ec ), eeking elief b a f preliminary, temporary, and permanent restraints pursuant to FRCP 65, based upon the facts set forth in the Affidavit of Jeffrey Dostal, the Verified Complaint and Memorandum of Law filed herewith; and it appearing
Case 3:20-cv-12773-MAS-DEA Document 3 Filed 09/17/20 Page 2 of 5 PageID: 799 that the Defendants, Township of Lacey and the Township of Lacey Planning Board
( Defendan ) have notice of this application, and for good cause shown; IT IS on this _____ day of _______________________________, 2020 hereby ORDERED that Defendants appear and show cause on the ____ day of
_________________________, 2020 at the United States District Court, District of New Jersey, Clarkson S. Fisher Building & U.S. Courthouse, 402 East State Street, Trenton, NJ 08608, a _______ clock in the ___________________, or as soon thereafter as counsel can be heard, why an Order should not be issued as follows:
Temporarily, preliminarily, and permanently enjoining Defendants from any and all actions of any kind which would frustrate or obstruct Plain iff abili m e forward with (1) the NRC-regulated dry run process that is currently scheduled to begin in late September 2020; (2) the spent fuel storage campaign, or Plain iff abili eae and facilitate said campaign; (3) all activities related to transfer and storage of spent fuel as related to the Inde enden S en F el S age In alla i n ( ISFSI ); (4) requiring and mandating that Defendants not withhold any permits and/or approvals that are part of the dry run or spent fuel storage campaign administrative process; and (5) generally enjoining Defendants from any actions which attempt to control, regulate, or impact radiological safety considerations, which is an area preempted by Federal regulations.
IT IS FURTHER ORDERED that sufficient reason having been shown, therefore pending the hearing of Plaintiffs application for a preliminary injunction, pursuant to Rule 65, FRCP, that Defendants are temporarily restrained and enjoined, as per Plain iff requested relief; __________________________________________________________
____________________________________________________________________; and 2
Case 3:20-cv-12773-MAS-DEA Document 3 Filed 09/17/20 Page 3 of 5 PageID: 800 IT IS FURTHER ORDERED that the Defendants may move to dissolve or m dif he em a e ain he ein c n ained n (2) da n ice he Plain iff attorney; and IT IS FURTHER ORDERED that a copy of this Order to Show Cause, Verified Complaint, Brief, and any affidavits submitted in support of this application be served upon Defendants personally within ________ days of the date hereof; and IT IS FURTHER ORDERED that the Plaintiffs must file with the Court its Proof of Service of the pleadings on Defendants no later than three (3) days before the return date; and IT IS FURTHER ORDERED that the Defendants shall file and serve a written response to this Order to Show Cause and request for entry of injunctive relief and Proof of Service by _______________________________________, 2020. The original documents must be filed with the Clerk of the United States District Court, District of New Jersey. You must send a copy of your opposition papers directly to Judge
_______________________________________, whose address is
_____________________________________________________, New Jersey. You must al end a c f ii n a e he Plain iff a ne h e name and address appears above. A telephone call will not protect your rights; you must file your opposition and pay the required fee of $______ and serve your opposition on your adversary, if you want the Court to hear your opposition to the injunctive relief the Plaintiffs are seeking; and IT IS FURTHER ORDERED that the Plaintiffs must file and serve any written reply to the Defendants Order to Show Cause opposition by ______________________,
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Case 3:20-cv-12773-MAS-DEA Document 3 Filed 09/17/20 Page 4 of 5 PageID: 801 2020. The reply papers must be filed with the Clerk of the United States District Court in the District of New Jersey and a copy of the reply papers must be sent directly to the Chambers of Judge ____________________________________________; and IT IS FURTHER ORDERED that if the Defendants do not file and serve opposition to this Order to Show Cause, the application will be decided on the papers on the return date and relief may be granted by default, provided that the Plaintiffs file a Proof of Service and a proposed form of Order at least ______ days prior to the return date; and IT IS FURTHER ORDERED that if the Plaintiffs have not already done so, a proposed form of Order addressing the relief sought on the return date (along with a self-addressed return envelope with return address and postage) must be submitted to the Court no later than three (3) days before the return date; and IT IS FURTHER ORDERED that Defendants shall take notice that the Plaintiffs have filed a lawsuit against you in the United States District Court, District of New Jersey.
The Verified Complaint attached to this Order to Show Cause states the basis of the lawsuit.
If you dispute this Complaint, you, or your attorney, must file a written Answer to the Complaint and Proof of Service within twenty (20) days from the date of service of this Order to Show Cause, not counting the day you received it.
These documents must be filed with the Clerk of the United States District Court, District of New Jersey. Incl de a $_______ filing fee a able he T ea e Sae f Ne Je e . Y m al end a c f r Answer to the Plain iff attorney whose name and address appear above, or to the Plaintiffs, if no attorney is named above. A telephone call will not protect your rights; you must file and serve your Answer (with the fee) or judgment may be entered against you by default. Please note: Opposition to the 4
Case 3:20-cv-12773-MAS-DEA Document 3 Filed 09/17/20 Page 5 of 5 PageID: 802 Order to Show Cause is not an Answer and you must file both. Please note further: if you do not file and serve an Answer within twenty (20) days of this Order, the Court may enter a default against you for the relief Plaintiffs demand.
If you cannot afford an attorney, you may call the Legal Services office in the county in which you live or the Legal Services of New Jersey Statewide Hotline at 1-888-LSNJ-LAW (1-888-576-5529). If you do not have an attorney and are not eligible for free legal assistance you may obtain a referral to an attorney by calling one of the Lawyer Referral Services.
IT IS FURTHER ORDERED that the Court will entertain argument, but not testimony, on the return date of the Order to Show Cause, unless the Court and parties are advised to the contrary no later than _________ days before the return date.
U.S.D.J.
4833-4237-9723, v. 5 5