ML20317A296

Applicants' Answer Opposing Riverkeeper'S Motion to Supplement the Basis of Its Contention

ML20317A296
Person / Time
Site:	Indian Point
Issue date:	11/12/2020
From:	Bessette P, Clausen S, Gill W, Glew W, Lejeune P, Lighty R, Lovett A, Raimo S Balch & Bingham, LLP, Entergy Nuclear Indian Point 2, Entergy Nuclear Indian Point 3, Entergy Nuclear Operations, Entergy Services, Holtec Decommissioning International, Holtec, Morgan, Morgan, Lewis & Bockius, LLP
To:	NRC/OCM
SECY RAS
References
50- 247-LT, 50-003-LT, 50-286-LT-3, 72-51-LT-2, License Transfer, RAS 55861
Download: ML20317A296 (34)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of: )

) Docket Nos. 50-003-LT, ENTERGY NUCLEAR OPERATIONS, INC., ) 50-247-LT, ENTERGY NUCLEAR INDIAN POINT 2, LLC, ) 50-286-LT, and ENTERGY NUCLEAR INDIAN POINT 3, LLC, ) 72-051-LT-2 HOLTEC INTERNATIONAL, and HOLTEC )

DECOMMISSIONING INTERNATIONAL, LLC )

) November 12, 2020 (Indian Point Nuclear Generating Unit Nos. 1, 2, and 3) )

)

APPLICANTS ANSWER OPPOSING RIVERKEEPER, INC.S MOTION TO SUPPLEMENT THE BASIS OF ITS CONTENTION Peter D. LeJeune, Esq. Paul M. Bessette, Esq.

Alan D. Lovett, Esq. Ryan K. Lighty, Esq.

BALCH & BINGHAM LLP Scott D. Clausen, Esq.

MORGAN, LEWIS & BOCKIUS LLP William F. Gill IV, Esq.

HOLTEC INTERNATIONAL William B. Glew, Jr., Esq.

Susan H. Raimo, Esq.

ENTERGY SERVICES, LLC Counsel for Holtec International and Counsel for Entergy Nuclear Operations, Inc.,

Holtec Decommissioning International, LLC Entergy Nuclear Indian Point 2, LLC, and Entergy Nuclear Indian Point 3, LLC

TABLE OF CONTENTS I. Introduction ............................................................................................................................... 2 II. Legal Standard .......................................................................................................................... 4 III. Riverkeepers First New Basis is Untimely and Inadmissible.................................................. 5 A. Riverkeepers First New Basis Fails All Three 2.309(c)(1) Criteria .................................. 5 B. Riverkeepers First New Basis Remains Beyond the Scope of this Proceeding and Unsupported ...................................................................................................................... 12 IV. Riverkeepers Second New Basis Is Untimely and Inadmissible ........................................... 14 A. Riverkeepers Second New Basis Was Not Submitted in a Timely Fashion ................... 14 B. Riverkeepers Second New Basis is Unsupported and Not Material to this Proceeding.. 16 V. Conclusion .............................................................................................................................. 20 i

TABLE OF AUTHORITIES Cases Holtec Intl et al. vs. Township of Lacey et al., U.S. Dist. Ct. for the Dist. of N.J., Docket No. 3:20-cv-12773 (Sep. 16, 2020) .......................................................................................... 15 Holtec Intl vs. N.J. EDA, N.J. Sup. Ct. Docket No. MER-L-696-20 (Mar. 23, 2020) ................ 14 Hutchinson Tech., Inc. Sec. Litig., 536 F.3d 952, 962 (8th Cir. 2008) ......................................... 13 Township of Lacey et al. vs. Holtec Intl et al., N.J. Sup. Ct., Docket No. OCN-C-76-20 (May 27, 2020) ............................................................................................................. 15, 17, 18 United States v. Morrison, 98 F.3d 619 (D.C. Cir. 1996) ............................................................. 17 United States v. Wilson, 605 F.3d 985 (D.C. Cir. 2010)............................................................... 17 Other Authorities N.J. R. Civ. Pro. 4:52-1................................................................................................................. 17 Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18 (1998) ........................................................................................................................................ 11 Regulations 10 C.F.R. § 2.309 ................................................................................................................... passim 10 C.F.R. § 2.323 ............................................................................................................................ 8 Federal Register Amendments to Adjudicatory Process Rules and Related Requirements, 77 Fed. Reg. 46,562 (Aug. 3, 2012) ........................................................................................................................... 10 Indian Point Nuclear Generating Unit Nos. 1, 2, and 3; Consideration of Approval of Transfer of Control of Licenses and Conforming Amendments, 85 Fed. Reg. 3,947 (Jan.

23, 2020) ..................................................................................................................................... 2 Streamlined Hearing Process for NRC Approval of License Transfers, Final Rule, 63 Fed.

Reg. 66,721 (Dec. 3, 1998) ....................................................................................................... 11 Administrative Proceedings AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235 (2009) ............................................................................................................................. 8, 10 Arizona Public Service Co. (Palo Verde Nuclear Generating Station), CLI-91-12, 34 NRC 149 (1991) ................................................................................................................................. 13 Dominion Nuclear Conn. Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-05-24, 62 NRC 551 (2005)................................................................................................................... 10 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349 (2001) ....................................................................................................... 12 DTE Electric Co. (Fermi Nuclear Power Plant, Unit 2), LBP-17-1, 85 NRC 3 (2017) ................. 8 DTE Electric Co. (Fermi Nuclear Power Plant, Unit 3), CLI-15-1, 81 NRC 1 (2015) ................ 10 Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility),

LBP-01-35, 54 NRC 403 (2001)............................................................................................... 13 Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee Nuclear Power Station), CLI 2, 73 NRC 333 (2011)................................................................................................... 7, 8, 9, 10 Georgia Power Company (Vogtle Electric Generating Plant, Units 1 and 2), CLI-93-16, 38 NRC 25 (1993).......................................................................................................................... 12 GPU Nuclear Inc. (Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193 (2000) ........................................................................................................................................ 13 i

Holtec Intl (HI-STORE Consolidated Interim Storage Facility), LBP-19-4, 89 NRC 353 (2019) .......................................................................................................................................... 7 N. States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), CLI-10-27, 72 NRC 481 (2010).............................................................................................................. 6, 10, 19 Tennessee Valley Authority (Bellefonte Nuclear Plant, Units 1 & 2), CLI-10-26, 72 NRC 474 (2010) ................................................................................................................................. 10 Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-919, 30 NRC 29 (1989), vacated in part on other grounds and remanded, CLI-90-4, 31 NRC 333 (1990)........................................................................................................................ 19 Yankee Atomic Electric Co. (Yankee Nuclear Power Station), LBP-96-2, 43 NRC 61 (1996),

revd in part on other grounds, CLI-96-7, 43 NRC 235 (1996) ............................................... 19 ii

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of: )

) Docket Nos. 50-003-LT, ENTERGY NUCLEAR OPERATIONS, INC., ) 50-247-LT, ENTERGY NUCLEAR INDIAN POINT 2, LLC, ) 50-286-LT, and ENTERGY NUCLEAR INDIAN POINT 3, LLC, ) 72-051-LT-2 HOLTEC INTERNATIONAL, and HOLTEC )

DECOMMISSIONING INTERNATIONAL, LLC )

) November 12, 2020 (Indian Point Nuclear Generating Unit Nos. 1, 2, and 3) )

)

APPLICANTS ANSWER OPPOSING RIVERKEEPER, INC.S MOTION TO SUPPLEMENT THE BASIS OF ITS CONTENTION Pursuant to 10 C.F.R. § 2.309(i)(1), Entergy Nuclear Operations, Inc. (ENOI), Entergy Nuclear Indian Point 2, LLC (ENIP2), Entergy Nuclear Indian Point 3, LLC (ENIP3),

Holtec International (Holtec), and Holtec Decommissioning International, LLC (HDI)

(collectively, Applicants) submit this answer opposing Riverkeepers late-filed motion (Motion)1 to supplement its petition opposing the transfer of the Indian Point Energy Center (IPEC) licenses. The Commission should deny the Motion because it is untimely, relies on information that was available before the filing deadline, repeats the same claims from Riverkeepers original petition without connecting them to the IPEC license transfer, and is unsupported by the actual documents Riverkeeper attached to the Motion, which did not even include the complete filings from the proceedings upon which Riverkeeper attempts to rely.

1 Motion of Riverkeeper, Inc. to Supplement the Basis of its Contention with New Evidence Not Previously Available (Oct. 20, 2020) (ADAMS Accession No. ML20296A283).

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I. INTRODUCTION Applicants submitted the license transfer application (the Application) that is the subject of these proceedings on November 21, 2019.2 The deadline to file a petition was February 12, 2020.3 Riverkeeper timely filed its Petition, raising the single contention that the transfereesHDI, Holtec Indian Point 2, LLC (Holtec IP2), and Holtec Indian Point 3, LLC (Holtec IP3)lack the requisite character, competence, and integrity to hold the IPEC licenses.4 Applicants opposed the Petition because Riverkeeper did not satisfy the Commissions admissibility standard in 2.309(f)(1) or demonstrate standing under 2.309(d).5 Riverkeeper now seeks to supplement its contention by adding what it characterizes as two new facts: (1) New Jersey is conducting a criminal investigation related to the states award of tax credits to HDIs corporate parent, Holtec International, and (2) HDI was found to have intentionally violated the law during decommissioning at Oyster Creek.6 Neither satisfies the requirements for a late filings under 2.309(c) or the contention-admissibility requirements of 2.309(f)(1).

2 Application for Order Consenting to Transfers of Control of Licenses and Approving Conforming Amendments, Indian Point Nuclear Generating Units 1, 2, and 3, Docket Nos. 50-3, 50-247, 50-286 and 72-051 (Nov. 21, 2019)

(ADAMS Accession No. ML19326B953). On January 17, 2020, HDI submitted a supplement describing an organizational change within HDI. Supplement to Application for Order Consenting to Transfers of Control of Licenses and Approving Conforming License Amendments, Indian Point Nuclear Generating Units 1, 2, and 3, Docket Nos. 50-3, 50-247, 50-286 and 72-051 (Jan. 17, 2020) (ADAMS Accession No. ML20017A290) (First Supplement).

3 See Indian Point Nuclear Generating Unit Nos. 1, 2, and 3; Consideration of Approval of Transfer of Control of Licenses and Conforming Amendments, 85 Fed. Reg. 3,947 (Jan. 23, 2020) (the Notice).

4 Petition of Riverkeeper Inc. to Intervene and for a Hearing, at 9 (Feb. 12, 2020) (ADAMS Accession No. ML20043F530) (Petition).

5 Applicants Answer Opposing Riverkeeper, Inc.s Petition to Intervene and for a Hearing, at 1 (Mar. 9, 2020)

(ADAMS Accession No. ML20069L613) (Answer).

6 Motion at 5. Riverkeepers Motion also contains some claims about Holtec Internationals financial wherewithal.

See id. at 4-5. Riverkeeper did not raise a financial contention though, and the Motion does not seek to add one.

Id. at 1 ([Riverkeeper] merely adds to the basis of the existing contention.).

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As to the first new basis, Riverkeeper repeats the errors in its Petition by continuing to demand that the Commission entertain litigation on accusations related to Holtec Internationals receipt of New Jersey economic development credits for construction of its Camden technology campus. Riverkeeper still has not and cannot explain how Holtec Internationals participation in the New Jersey program, much less the actions taken by state officials in the well-publicized political fight over the program, has anything to do with the IPEC license transfer. In any event, it was widely reported before the original contention filing deadline that the companies benefitting from the program, including Holtec International, were under investigation.

Accordingly, this information is not new or materially different from that which was available in February 2020 and therefore cannot form the basis for a late-filed motion. Even if, as Riverkeeper suggests, the clock started in June 2020 when Politico published its latest article about this matter, Riverkeepers Motion is still fatally late under any application of the timeliness standard.

Riverkeeper likewise fails to meet both the 2.309(c) and 2.309(f)(1) standards for its claims that HDI intentionally violated local permitting rules at Oyster Creek. First, the basis is contradicted by the same judicial records attached to Riverkeepers Motion. Riverkeeper relies on a New Jersey superior court order as the basis for Riverkeepers claim that Holtec was found to have intentionally violated the law in Lacey Township.7 However, the ordera temporary restraining order essentially maintaining the status quo until the court could hear evidence included no judicial findings and was issued solely based on the Townships pleadings filed a few days earlier. The court never determined that HDI violated local permitting requirements or even that HDI conducted the site work alleged by the Township (which it turns out, HDI did 7

Motion at 5.

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not). The disagreement was resolved in a negotiated consent order that specifically disclaimed any determination that the work activities undertaken by HDI at Oyster Creek required a local permitin further contradiction to Riverkeepers Motion. It is axiomatic that petitioners have a legal obligation to identify documents that actually support their claims and not to exclude documents that directly refute their claims. Riverkeepers second basis fails to do so. In addition, Riverkeepers claim is based on a complaint filed by the Township of Lacey in May 2020, yet Riverkeeper again provides no explanation for why it waited so longover four monthsto file the Motion. The Motion is thus inexcusably late, in addition to being unsupported.

The Commission should, accordingly, reject Riverkeepers Motion.

II. LEGAL STANDARD Riverkeepers late-filed bases must satisfy both the timeliness standard in 2.309(c)(1) and the admissibility standard in 2.309(f)(1). Failure to satisfy either requires their rejection.

Motions for leave to amend a contention after the intervention deadline will not be entertained absent a determination by the presiding office that a participant has demonstrated good cause.8 Specifically, petitioners bear the burden of establishing that (i) The information upon which the filing is based was not previously available; (ii) The information upon which the filing is based is materially different from information previously available; and (iii) The filing has been submitted in a timely fashion based on the availability of the subsequent information.9 Riverkeeper does not meet this standard for either of its proffered new bases.

Riverkeepers new bases must also satisfy the requirements of 2.309(f)(1). A detailed recitation of the admissibility standard is in Applicants answer to New York States petition and 8

10 C.F.R. § 2.309(c).

9 10 C.F.R. § 2.309(c)(1).

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is not repeated here.10 Riverkeepers new bases are inadmissible because they are beyond the scope of this proceeding, are not material to the findings the NRC must make on the Application, do not raise a material dispute with the Application, and are not supported by any factual basis.

Accordingly, in addition to being untimely, the new bases must be rejected under 2.309(f)(1).

III. RIVERKEEPERS FIRST NEW BASIS IS UNTIMELY AND INADMISSIBLE A. Riverkeepers First New Basis Fails All Three 2.309(c)(1) Criteria Riverkeeper relies on statements from a pleading filed by the New Jersey Economic Development Authority (EDA) in June 2020 to claim that Holtec is under criminal investigation, Riverkeeper believes . . . for perjury . . . and fraud.11 Riverkeeper provides no basis for its belief regarding the details of or basis for any investigation. The pleading simply states that there is an ongoing criminal investigation related to Holtecs receipt of tax credits under the New Jersey tax program.12 And the June 2020 Politico article attached to Riverkeepers Motion merely summarized the EDA brief and quoted Holtecs statement that it is cooperating with the state attorney generals investigation of the tax program. As discussed further below, none of this information is new or materially different from information that was available before the February 2020 intervention deadline. Moreover, as noted above, the EDA brief was filed in June 2020, four months before the Motion. Even if the brief revealed some new and materially different information, which it did not, the Motion is fatally late and Riverkeeper offers no convincing rationale otherwise.

10 See Applicants Answer Opposing Petition for Leave to Intervene and Hearing Request Filed by the State of New York, at 14-17 (Mar. 9, 2020) (ADAMS Accession No. ML20069K756).

11 Motion at 2 (emphasis added).

12 See Memorandum of Law in Support of Defendants Motion to Dismiss the Complaint, at 2, 4, 13 (attached as Exhibit A to Riverkeepers Motion).

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1. The Statements in the New Jersey EDA Brief Are Not New or Materially Different from Previously Available Information Riverkeeper asserts that the first prong of 2.309(c)(1) is satisfied because the New Jersey EDA pleading and Politico article were published after the intervention deadline. Of course, 2.309(c)(1)(i) is concerned with when the information was available, not when someone repeated the information in a court pleading or news article.13 That understood, the existence of an investigation was publicly available well before the intervention deadline. Indeed, the New Jersey program may be one of the most investigated activities in recent state history.14 The New Jersey Office of Attorney General issued a press release in January 2019, more than a year before Riverkeeper filed its Petition, that it was investigating the award of tax credits under the program to determine whether any laws were broken.15 One of the ProPublica articles attached to Riverkeepers Petition reported the AGs investigation and that Holtecs tax credits had been suspended.16 Because this information was publicly available before the original filing deadline, it cannot form the basis for a late filed motion.

Riverkeepers attempt to amplify statements in the June 2020 brief to highlight the significance of a supposed active investigation into Holtecs tax credits, does not provide any materially different information in the context of 2.309(c)(1)(ii). It was obvious before the 13 See N. States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), CLI-10-27, 72 NRC 481, 496 (2010) (rejecting application of 2.309(c) to allow a petitioner or intervenor to delay filing a contention until a document becomes available that collects, summarizes and places into context the facts supporting that contention).

14 The program has been the subject of investigations by the state attorney general, state comptrollers office, and a governor-appointed task force.

15 Statement of Attorney General Gurbir Grewal Regarding the State Comptrollers Audit of EDA Incentive Programs (Jan. 14, 2019) (available at https://www.nj.gov/oag/newsreleases19/pr20190114a.html).

16 Petition, Ex. J, at 2.

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intervention deadline that companies benefitting from the program, including Holtec, were being investigated by a number of authorities.17 An article attached to Riverkeepers Petition states, officials put Holtecs tax break on hold and announced an investigation into the firm.18 A report issued by the governors task force in January 2020 stated that the task force had taken back $11 million in tax awards and was pursuing an additional $540 million by referring certain matters to the state treasurer and law enforcement.19 The EDAs statements that Holtecs receipt of tax credits is the subject of an ongoing investigation is not new information and most certainly is not materially different. Previously available information that is newly interpreted or characterized by a petitioner does not provide the good cause required by 2.309(c)(1).20 The headline from Riverkeepers newly submitted basis is an underwhelming investigations that were ongoing as of the intervention deadline, continue. This is not the kind of unexpected revelation that entitles Riverkeeper to raise these issues now.21

2. The Motion Was Not Submitted in a Timely Fashion Even if the EDAs June 2020 pleading had included new and materially different information, which it did not, Riverkeepers Motion would still be inexcusably late. Section 17 In addition to the state AGs announcement, two of the Governors task force reports, and the comptrollers audit reportall of which were available before the February 2020 intervention deadlineseveral news sources reported before the intervention deadline that a state grand jury had issued a subpoena seeking documents on the companies awarded tax credits. See, e.g., Politico, Sources: EDA Hit with Grand Jury Subpoena Over Tax Credit Program (June 2, 2019) (available at https://www.politico.com/states/new-jersey/story/2019/06/02/eda-hit-with-grand-jury-subpoenas-over-tax-credit-program-1036710); The Philadelphia Inquirer, EDA Received Grand Jury Subpoena Amid New Jersey Tax-Credit Probe (June 3, 2019) (available at https://www.inquirer.com/business/nj-economic-development-authority-grand-jury-subpoena-tax-credit-investigation-20190603.html).

18 See Petition, Ex. J, at 2.

19 Governors Task Force on EDA Tax Incentives, Second Published Report, at 2 (Jan. 16, 2020) (available at https://www.politico.com/states/f/?id=0000016b-67c1-df00-a9fb-6fe1d7840001).

20 Holtec Intl (HI-STORE Consolidated Interim Storage Facility), LBP-19-4, 89 NRC 353, 374 (2019) (citations and quotations omitted).

21 See Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee Nuclear Power Station), CLI-11-2, 73 NRC 333, 340 (2011) (quoting LBP-10-19, 72 NRC 529, 547 (2010)).

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2.309(c)(1)(iii) requires late-filed motions to be submitted in a timely fashion based on the availability of the subsequent information. As the Commission has explained, [t]here simply would be no end to NRC licensing proceedings if petitioners could disregard our timeliness requirements and add new contentions at their convenience.22 While NRC regulations do not define timely, the deadline is generally understood and applied to require petitioners to come forward with new information within 30 daysat most 60.23 For license transfer applications, the period from publication of the Federal Register notice to the intervention deadline is 20 days.24 And the ordinary deadline for motions (other than late-filed motions like the immediate one) is 10 days.25 Riverkeeper waited 120 days.26 It offers no explanation for the delay, but instead asserts several theories for why the Commission should nevertheless allow the significantly delayed Motion: (1) the matters it involves are ongoing, (2) the Commission has not ruled on its Petition yet, (3) preparing the Motion took time, and (4) the issues Riverkeeper raises are serious. None of these arguments have any basis in Commission regulation or precedent, nor do they provide a convincing excuse to disregard the requirement for prompt filing.

First, the fact that New Jerseys investigations (or the parallel litigation initiated by Holtec) have not concluded has nothing to do with the timeliness of Riverkeepers Motion.

Section 2.309(c)(1)(iii) requires prompt filing based on the availability of the subsequent 22 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 272 (2009)

(footnotes and internal quotation marks omitted).

23 Vermont Yankee, CLI-11-2, 73 NRC at 342 n.43; DTE Electric Co. (Fermi Nuclear Power Plant, Unit 2), LBP-17-1, 85 NRC 3, 8 (2017).

24 10 C.F.R. § 2.309(b)(1).

25 10 C.F.R. § 2.323(a)(2).

26 Riverkeepers filed its Motion on October 20, 2020. The New Jersey EDA state court pleading (attached as Exhibit A to Riverkeepers Motion) was filed June 22, 2020. The Politico article reporting on it (Exhibit B to the Motion) was published June 24, 2020.

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informationnot, as Riverkeeper would have it, from the ultimate conclusion of whatever process produced the information.27 To accept Riverkeepers logic would afford interveners an endless window to submit late-filed motions as long as the information is gleaned from some ongoing administrative or judicial proceeding, which do not tend to be brief. Riverkeeper provides no basis in Commission precedent or rules of procedure for such an application of its timeliness requirements, because there is none.

Second, Riverkeeper believes the fact that its Petition is still pending before the Commission somehow renders its Motion timely. While the logic of that argument is unclear, that excuse would swallow the rule. All 2.309(c) motions necessarily come before disposition of a petitioners claims, otherwise such a motion would either be moot or subject to the more restrictive standard for motions to reopen under section 2.326. Riverkeeper suggests that the timing of the Commissions decision somehow indicates that the Commission believes the Application require[s] more extensive deliberation than the usual type of license transfer application.28 But that is pure speculation. In any event, Riverkeeper does not explain why the Commissions prerogative to deliberate should expand the deadline for bringing new information to the Commissions attention. Application of Riverkeepers logic would create a self-perpetuating timeline where a longer deliberation automatically afford petitioners the luxury of sitting on late-filed motions, thus further delaying ultimate disposition of their claims. This is contrary to the Commissions admonition that late-filed motions should be filed as soon as 27 10 C.F.R. 2.309(c)(1)(iii); Vermont Yankee, CLI-11-2, 73 NRC at 339 ([T]imeliness turns . . . on the threshold question of when [the petitioner] first had access to information.).

28 Motion at 10.

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possible after the information becomes available,29 and therefore [p]etitioners who choose to wait . . . do so at their peril.30 Third, Riverkeeper claims that its Motion involved significant effort to identify and assemble information and prepare a motion that meets 2.309s standards. Such could be said of every motion that comes before the NRC, including motions that were not as late as Riverkeepers, yet were still rejected for untimeliness.31 Riverkeepers complaints are essentially a challenge to the framework the Commission long ago put in place to strictly govern its adjudicatory docket. As explained more recently, contention admissibility and timeliness rules require a high level of discipline and preparation by petitioners.32 Riverkeeper has offered no reason why the Commission should excuse them from the ordinary diligence required of every other petitioner. Moreover, Riverkeepers complaints are belied by its ability to file its initial Petition within the 20-day notice period and its reply in 14 days, both of which substantially overlap with the matters raised in the present Motion. If extenuating circumstances caused Riverkeeper to need more time for its eleven-page filing that merely adds to the basis of the existing contention,33 it could have filed a 2.307 motion requesting an extension; it has already received one in this proceeding. But Riverkeeper did not request an extension and offers no basis for retroactively receiving one (such retroactive requests are strongly disfavored by the Commission anyway34), so the Motion is fatally late.

29 Amendments to Adjudicatory Process Rules and Related Requirements, 77 Fed. Reg. 46,562, 46,571 (Aug. 3, 2012) (quoting Dominion Nuclear Conn. Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-05-24, 62 NRC 551, 564-65 (2005)).

30 DTE Electric Co. (Fermi Nuclear Power Plant, Unit 3), CLI-15-1, 81 NRC 1, 7 (2015).

31 See, e.g., Prairie Island, CLI-10-27, 72 NRC at 494-95 (rejecting a late-filed contention relying on information available at least 2 months prior to submission); Vermont Yankee, CLI-11-2, 73 NRC at 342 (rejecting a late-filed contention filed more than 100 days after the information became available).

32 Oyster Creek, CLI-09-7, 69 NRC at 271.

33 Motion at 1.

34 Tennessee Valley Authority (Bellefonte Nuclear Plant, Units 1 & 2), CLI-10-26, 72 NRC 474, 477 (2010).

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Finally, Riverkeeper offers the justification that its allegations are serious. Again, the same could be said of nearly every issue raised in an NRC docket. Yet, notwithstanding Riverkeepers self-characterization of its concerns, Riverkeeper sat on the motion for four months instead of promptly bringing the issue to the Commission. Asking the Commission to overlook this unexcused delay without any other justification would render the timeliness requirement meaningless. The Commissions procedural rules, particularly Subpart M, provide a meaningful opportunity for the public to raise genuine issues and real disputes, but [b]y the same token . . . applicants for a license are also entitled to a prompt resolution of disputes concerning their applications.35 Riverkeeper cannot evade the procedural benchmarks established by the Commission simply because Riverkeeper feels strongly that its claims should be heard.

3. Ancillary Claims Regarding Holtec Internationals Financial Wherewithal Fail All Three 2.309(c)(1) Criteria While not relevant to Riverkeepers actual contention (see note 6 above), it bears noting that Riverkeepers editorializing that Holtec is in financial distress because a significant source of its present and future funding are now in jeopardy36 are barred by 2.309(c) as well. As noted above, one of the articles attached to Riverkeepers Petition reported that Holtecs tax credits had been suspended.37 Riverkeepers Motion just cites the same information that has now been repeated in Holtecs complaint seeking payment of the 2018 tax credits and the New Jersey EDAs motion to dismiss (Exhibits C and A to the Motion, respectively). Holtecs statement that 35 Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 19 (1998); see also Streamlined Hearing Process for NRC Approval of License Transfers, Final Rule, 63 Fed. Reg. 66,721, 66,722 (Dec. 3, 1998) (The procedures are designed to provide for public participation . . . while at the same time providing an efficient process that recognizes the time-sensitivity normally present in transfer cases.).

36 Motion at 5.

37 See Petition, Ex. J, at 2.

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the EDAs non-payment of $26 million caused financial harm is so obvious and unsurprising that it cannot credibly be characterized as materially different from the previously available information that the tax credit was suspended. Plus, Holtecs complaint was filed in March 2020seven months before the Motion. So, in addition to having no relation to Riverkeepers contention, Riverkeepers claims related to Holtecs supposed financial stress are not new or materially different and were not timely submitted.

For all of the foregoing reasons, Riverkeeper has not established good cause to justify the late filing of its first new basis.

B. Riverkeepers First New Basis Remains Beyond the Scope of this Proceeding and Unsupported Riverkeepers Petition included all the same claims underlying Riverkeepers first new basis, which have nothing to do with any of the proposed IPEC licensees or the HDI personnel who will be responsible for decommissioning IPEC if the Application is approved. As explained in Applicants Answer, when it comes to character contentions like Riverkeepers, the Commission requires petitioners to directly tie their claims to the applicants in the proceeding and will not entertain abstract allegations of corporate misdeeds.38 Riverkeepers Motion does not change anything about its contention in this regard; Riverkeepers claims remain solely focused on Holtec Internationals receipt of New Jersey tax credits to construct its Camden technology campus. Riverkeeper still has not explained how those allegations have any bearing on HDIs qualifications to decommission IPEC safely and in accordance with NRC regulations.

Jurisdiction over a New Jersey tax matter belongs to New Jersey, not the NRC. Accordingly, for 38 Answer at 5-6 (citing Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3),

CLI-01-24, 54 NRC 349, 366-67 (2001); Georgia Power Company (Vogtle Electric Generating Plant, Units 1 and 2), CLI-93-16, 38 NRC 25, 32 (1993); and many more).

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all the same reasons set forth in Applicants Answer, Riverkeepers first new basis fails to satisfy the requirements of 2.309(f)(1)(iii), (iv) and (vi).

Riverkeepers first basis also fails to satisfy the requirements of 2.309(f)(1)(v) because it offers no factual support for Riverkeepers attacks even against Holtec International. Section 2.309(f)(1)(v) requires petitioners to ground their contentions in facts and evidence, not speculation and innuendo.39 Riverkeeper has not explained how the mere existence of an investigation by New Jersey officials supports the culpability Riverkeeper projects onto Holtec International.40 Riverkeeper merely offers up the existence of an investigation, along with Riverkeepers own admitted speculation, as supposed evidence of corporate malfeasance. This presumption of guilt is obviously contrary to basic due process principles. More importantly in the immediate context, it is unsupported by fact and therefore barred by 2.309(f)(1)(v), in addition to being immaterial to the decision before the NRC on the Application.

Riverkeepers claims regarding the financial stress caused by the suspension of Holtec Internationals tax credits suffer the same flaws. Of course, they are also unrelated to Riverkeepers actual contention. As is clear from the Application itself and the extensive pleadings on the financial contentions raised by New York State, the source of decommissioning funding relied upon by the Applicants is the IPEC nuclear decommissioning trusts (NDTs).41 Because the new licensees would rely exclusively on the IPEC NDTs, Holtec Internationals finances are not material to the NRCs determination of the adequacy of the funding assurance 39 GPU Nuclear Inc. (Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 193, 208 (2000); Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), LBP-01-35, 54 NRC 403, 422 (2001)

(citing Arizona Public Service Co. (Palo Verde Nuclear Generating Station), CLI-91-12, 34 NRC 149, 155-56 (1991)).

40 See, e.g., Hutchinson Tech., Inc. Sec. Litig., 536 F.3d 952, 962 (8th Cir. 2008) (The mere existence of an SEC investigation does not suggest that any of the allegedly false statements were actually false and it does not render .

. . [the] statements . . . material nor does it add an inference of scienter.).

41 Application, Encl. 1 at 17-19.

13

offered in the Application. Accordingly, Riverkeepers claims of the supposed financial impact caused by the suspension of Holtec Internationals tax credits do not satisfy 2.309(f)(1)(iii), (iv),

and (vi).

Riverkeepers claim regarding the financial impact of the suspended tax credits also lacks factual support because Riverkeepers Motion is directly contradicted by the public records Riverkeeper offers in support. Riverkeeper attached Holtecs complaint seeking recovery of the

$26 million tax credit owed for 2018 (Exhibit C to Riverkeepers Motion). Riverkeeper explains, correctly, that Holtec entered into financing arrangements involving the annualized tax credit.

Riverkeeper then incorrectly cites the complaint as saying that Holtec is unable to pay back the purchasers [of the tax credit] because New Jersey withheld the 2018 tax credit.42 Holtecs complaint actually says, [t]o avoid being in breach of its own contractual obligations, Holtec was thus forced to make cash payments of approximately $26 million to these purchasers.43 Holtec paid its creditors. Riverkeeper misrepresented the record to the Commission. Thus Riverkeepers financial claims fail under 2.309(f)(1)(v) because they are directly contradicted by the documents Riverkeeper offered in support.

Accordingly, in addition to being untimely, Riverkeepers first new basis remains inadmissible.

IV. RIVERKEEPERS SECOND NEW BASIS IS UNTIMELY AND INADMISSIBLE A. Riverkeepers Second New Basis Was Not Submitted in a Timely Fashion Riverkeepers second basisthat Holtec was found to have intentionally violated the law in Lacey Townshipis both incorrect and too late. It is based on claims extracted from a 42 Motion at 5 (citing Complaint, Holtec Intl vs. N.J. EDA, N.J. Sup. Ct. Docket No. MER-L-696-20, at 17-18 (Mar. 23, 2020) (Motion, Ex. C) (Holtec EDA Complaint)).

43 Holtec EDA Complaint (Motion, Ex. C) at 18.

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complaint filed by the Township of Lacey in May 2020 (Exhibit D to the Motion) and Riverkeepers misrepresentation of a temporary restraining order (TRO) issued by a New Jersey judge a few days after the complaint (Exhibit F to the Motion). The violation was claimed by the Township (not found by any court) to have occurred earlier in Spring 2020 when HDI installed the temporary cask transfer pit at the Oyster Creek ISFSI without first obtaining approval from the local permitting board.44 Riverkeepers basis amounts to little more than a recitation of Townships initial arguments raised (and since resolved, as explained below) in the complaint filed back in May 2020. The federal filings attached to the Motion as Exhibits E, G, and H do not add any new or materially different information about the original cask transfer pit permitting disagreement, which remains the only local permitting violation alleged by the Township.45 In short, all of the information on which Riverkeeper bases its (incorrect) claim that Holtec was found to have intentionally violated the law in Lacey Township is contained in the May 2020 Township complaint. Riverkeeper is over 140 days late in bringing this information to the Commission.

Riverkeeper offers the same justifications why this basis should nevertheless be considered, but for all the reasons the first basis is too late, so is the second.

44 Verified Complaint, Township of Lacey et al. vs. Holtec Intl et al., N.J. Sup. Ct., Docket No. OCN-C-76-20, at 5-6 (May 27, 2020) (Motion, Ex. D) (Township State Complaint); Verified Complaint, Holtec Intl et al. vs.

Township of Lacey et al., U.S. Dist. Ct. for the Dist. of N.J., Docket No. 3:20-cv-12773, at 13-15 (Sep. 16, 2020)

(Motion, Ex. G) (Holtec Federal Complaint).

45 Holtec International and HDI filed a federal complaint in September 2020 after the Township denied HDIs permitting application (submitted in accordance with a negotiated consent order, as explained in Section IV.B below) on radiological safety grounds. See Holtec Federal Complaint (Motion, Ex. G), at 4-6. The issue in controversy in the federal proceeding is not whether HDI violated local permitting rules when it installed the cask transfer pit. Holtec and HDI filed the suit to try to prevent the Township from asserting jurisdiction over radiological safety issues through its local permitting rules. The Townships reply brief (Exhibit E to the Motion) repeats by way of background the Townships perspective of the events around the original installation of the cask transfer pit, but the federal pleadings do not add any new information or allegations regarding HDIs compliance with local permitting requirements. See Township of Lacey, Opposition to Plaintiffs Verified Complaint, U.S. Dist. Ct. for Dist. of N.J., Docket No. 3:20-cv-12773, at 3-4 (Sept. 28, 2020) (Motion, Ex. E)

(Township Federal Reply Brief).

15

Accordingly, its second basis should be rejected under 2.309(c).

B. Riverkeepers Second New Basis is Unsupported and Not Material to this Proceeding In addition to being untimely, Riverkeepers second new basis is inadmissible because it is not supported by the documents cited by Riverkeeper and it raises matters that are not material to the decision before the Commission in this proceeding.

Riverkeeper claims that Holtec was found to have intentionally violated the law in Lacey Township by failing to obtain a permit to install the cask transfer pit at the Oyster Creek ISFSI.46 These claims are directly contradicted by the judicial record Riverkeeper cites. Here is what the record clearly shows: The Township issued a stop work order for Oyster Creek construction work because it believed that HDI was expanding the ISFSI without a permit.47 HDI did not expand the ISFSI as it had originally planned; rather, it installed a temporary cask transfer pit to move fuel from the pool into the casks for storage on the ISFSIan activity that HDI did not believe required local approval.48 The Township nevertheless filed a state court complaint in May 2020 on the belief that HDI was engaged in burying of spent nuclear fuel rods and expansion of the site to which the fuel rods are to be buried.49 On the basis of those pleadings, the Township obtained a TRO requiring HDI and the Township to work together to 46 Motion at 5-6.

47 See Township State Complaint (Motion, Ex. D), at Ex. J, May 14, 2020 Letter from Solicitor of Lacey Township, at 2-3 (PDF p.187-88 of Riverkeepers Motion) (It is abundantly clear that a permit is needed to construct what we understand to be a large slab of concrete which will house the spent nuclear fuel rods. We are informed that your client is building structures into the ground, by excavating a substantial area which presumably will thereafter house the spent fuel rods.). HDI had previously submitted an application to the Township for a planned ISFSI expansion; however, it later determined the expansion was not needed and thus withdrew its application. Holtec Federal Complaint (Motion, Ex. G), at 13-14.

48 Holtec Federal Complaint (Motion, Ex. G), at 13-14; Township Federal Reply Brief (Motion, Ex. E), at 3-4. The cask transfer pit is part of the process to transfer fuel assemblies (contained in Holtecs multi-purpose canisters) into the dry cask storage modules that will sit on the ISFSI pad. The transfer pit will be removed once all fuel has been transferred to dry storage. Holtec Federal Complaint (Motion, Ex. G), at 10-11.

49 Township State Complaint (Motion, Ex. D), at 6.

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verify whether the work being undertaken is in accordance with [existing] permits and in the meantime ordering that [n]o other work shall be undertaken . . . other than work which has been permitted by the Nuclear Regulatory Commission.50 Riverkeeper cites the TRO as the factual basis for its claim that Holtec was found to have violated the law in Lacey Township.51 Riverkeeper offers no support for its more extreme claim that Holtec was found to have intentionally violated the law.52 The TRO does not support either. The superior court did not find that HDI violated any planning ordinances or the Townships stop work order; the court did not even make any findings about what work actually took place at the site. As is evident from the TRO itself and a rudimentary understanding of civil procedure, the order was issued based on the Townships pleadings.53 Yet, the mere filing of a complaint is not probative of truthfulness or untruthfulness.54 There was, of course, no judicial fact finding in the four work days between the Townships complaint and issuance of the TRO.

Riverkeeper has simply misstated the record and improperly attempted to convert allegations into evidence.

Riverkeeper also misstates the record on how the Townships complaint was resolved.

The Motion suggests that the state court issued an injunction requiring HDI to file an application 50 Order Imposing Temporary Restraints, N.J. Sup. Ct., Docket No. OCN-C-76-20, at 3-4 (June 2, 2020) (Motion, Ex. F) (TRO).

51 Motion at 6 and n.20.

52 See Motion at 5 (emphasis added).

53 TRO (Motion, Ex. F), at 1 (. . . based upon the facts set forth in the Verified Complaint . . .). See also N.J. R.

Civ. Pro. 4:52-1 (allowing a TRO where it appears from specific facts shown by affidavit or verified complaint that immediate and irreparable damage will probably result to the plaintiff before notice can be served or informally given and a hearing had thereon.) (emphasis added).

54 United States v. Wilson, 605 F.3d 985, 1005 (D.C. Cir. 2010) (quoting United States v. Morrison, 98 F.3d 619, 628 (D.C. Cir. 1996)) (emphasis in original) (alterations omitted). Thus, unlike actual court findings unproven allegations from other complaints are generally inadmissible in litigation. See id.

17

for the cask transfer pit.55 In reality, HDI and the Township negotiated a consent order (Consent Order) under which HDI voluntarily agreed to submit a permit application and the Township agreed to promptly review it and in the meantime not to object to HDIs use of the cask transfer pit in practice demonstrations for its spent fuel campaign.56 Because it was a negotiated settlement, the Consent Order states:

The filing of the Site Plan application by [HDI] is made in furtherance of the settlement of the dispute between that parties and the fact that the Site Plan application has been filed shall not be (i) deemed an admission by [HDI] that Site Plan approval is required in order to use the Cask Transfer Pit or to place any number of storage modules on the existing ISFSI pad, or (ii) be deemed proof by

[the Township] that Site Plan approval was required in order to use the Cask Transfer Pit or to place any number of storage modules on the existing ISFSI pad.57 In other words, the record clearly shows that HDI was never found to have violated the Townships ordinances or forced by a court to comply with those ordinancesmuch less to have intentionally violated the law, as Riverkeeper claims.

Section 2.309(f)(1)(v) requires petitioners to come forward with documents or public records that support their claims. While the merits of petitioners claims are not evaluated at the contention admissibility stage, presiding officers are required to evaluate whether the 55 Motion at 6-7.

56 Consent Order, Sup. Ct. of N.J. Chancery Div., Docket No. OCN-C-76-20, at 3-4 (July 17, 2020) (Consent Order) (attached hereto as Attachment A). The Consent Order is indirectly referenced in Riverkeepers Motion at 5 and 6 (HDI filed an application with the Township pursuant to the negotiated settlement memorialized in the Consent Order), is referenced extensively in and attached as an exhibit to Holtecs Federal Complaint (Ex. G to Riverkeepers Motion, excluding the exhibits), was referenced and quoted throughout the Townships federal reply brief (Ex. E to Riverkeepers Motion), and is publically available on the New Jersey superior court docket.

Because Riverkeeper mischaracterizes the outcome of the New Jersey proceedings by implying that the court found that HDI violated local permitting requirements and ordered HDI to submit an applicationboth of which are directly contradicted by the TRO and Consent OrderApplicants have attached the Consent Order to this answer to illustrate that Riverkeepers basis is unsupported by the very judicial record upon which it relies.

57 Id. at 5; see also id. at 2 ([W]ithout admitting or conceding any fact or argument, that it is in the parties and the publics best interest to make good faith efforts to resolve this matter without further judicial intervention.); id.

at 3 ([N]either party concedes any statement or argument in their respective filings with the Court in this matter, and no action taken or statement made by any party, including payment of attorneys fees, shall constitute an admission of any matter alleged or shall be used to prejudice the other party in this matter.).

18

documentary support offered actually says what the petitioner claims it does.58 The judicial record relied on by Riverkeeper directly contradicts Riverkeepers false claim that HDI was found to have intentionally violated the law. Accordingly, Riverkeepers second basis fails under 2.309(f)(1)(v).

Riverkeepers second basis is also barred by 2.309(f)(1)(iii), (iv), and (vi). Stripped of embellishment, Riverkeeper has done nothing more than identify a disagreement about the scope of local permitting authority at Oyster Creek. Riverkeeper has not identified any willful violation of NRC regulations (or local ordinances) by HDI personnel, nor does it explain how this dispute implicates HDIs capability or willingness to safely conduct licensed activities at Oyster Creek (or IPEC). The Commission has made clear that it will not entertain litigation of an applicants compliance record in the abstract, and in doing so has rejected contentions that seek to resurrect past violations (that were actually found to be violations) of NRC regulations by the same licensee.59 Riverkeeper has not even done this much.

Riverkeeper also asserts that HDIs subsequent filing of the federal complaint in response to the Townships rejection of the application HDI submitted following the Consent Order (see note 45 above) continues to demonstrate an unwillingness to abide by local laws.60 In fact, it shows the opposite. Because radiological safety falls exclusively within the Commissions regulatory authority, Holtec and HDI filed the lawsuit to avoid delaying HDIs completion of its 58 Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-919, 30 NRC 29, 48 (1989), vacated in part on other grounds and remanded, CLI-90-4, 31 NRC 333 (1990); Yankee Atomic Electric Co. (Yankee Nuclear Power Station), LBP-96-2, 43 NRC 61, 90 (1996), revd in part on other grounds, CLI 7, 43 NRC 235 (1996).

59 See Prairie Island, CLI-10-27, 72 NRC at 491 ([T]o permit [a collection of fundamentally routine inspection findings and regulatory determinations] to form the basis for a safety culture contention could result in a potentially never-ending stream of mini-trials on operational issues, in which the applicant would be required to demonstrate how each issue was satisfactorily resolved.).

60 Motion at 5.

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spent fuel campaign in accordance with its Post-Shutdown Decommissioning Activities Report (PSDAR) and its obligations to the state of New Jersey to remove fuel to the ISFSI as soon as possible.61 In other words, HDI promptly sought judicial redress to address conflicting local, state, and federal authorities asserting control over the same on-site activities. HDI remains fully compliant with the Consent Order in the meantime. Riverkeeper may believe that HDI should not take prudent steps to resolve jurisdictional conflicts in a manner that allows prompt decommissioning of Oyster Creek. But the idea that HDI is unqualified to hold an NRC license because of its attempts to do so is meritless.

For the foregoing reasons, Riverkeepers second new basis should be rejected for failure to satisfy the admissibility criteria in 2.309(f)(1)(iii), (iv), (v), and (vi).

V. CONCLUSION Because Riverkeeper has not shown good cause for its late filing of either new basis, and because both new bases are barred by the Commissions admissibility criteria, the Commission should reject Riverkeepers Motion. Riverkeeper lacks standing and Riverkeepers sole contention remains inadmissible for all the reasons previously discussed in Applicants Answer.

Accordingly, Riverkeepers Petition should be denied.

61 Holtec Federal Complaint (Motion, Ex. G) at 16-18. HDIs predecessor, Exelon, signed an administrative consent order with the New Jersey Department of Environmental Protection requiring, among other things, transfer [of]

all fuel to the ISFSI as soon as technically and financially feasible and in accordance with the Facilitys PSDAR.

Township State Complaint (Motion, Ex. D), at Exhibit F, p.4 (PDF p.133 of Riverkeepers Motion).

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Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d) Executed in Accord with 10 C.F.R. § 2.304(d)

Peter D. LeJeune, Esq. Paul M. Bessette, Esq.

BALCH & BINGHAM LLP Ryan K. Lighty, Esq.

1710 Sixth Avenue North Scott D. Clausen, Esq.

Birmingham, AL 35203-2015 MORGAN, LEWIS & BOCKIUS LLP (205) 226-8774 1111 Pennsylvania Avenue, N.W.

plejeune@balch.com Washington, D.C. 20004 jtompkins@balch.com (202) 739-5524 paul.bessette@morganlewis.com Executed in Accord with 10 C.F.R. § 2.304(d) scott.clausen@morganlewis.com William F. Gill IV, Esq. ryan.lighty@morganlewis.com HOLTEC INTERNATIONAL 1 Holtec Boulevard Executed in Accord with 10 C.F.R. § 2.304(d)

Camden, NJ 08104 Susan H. Raimo, Esq.

(856) 797-0900 ENTERGY SERVICES, LLC w.gill@holtec.com 101 Constitution Avenue, N.W.

Washington, D.C. 20001 Signed (electronically) by Alan D. Lovett (202) 530-7330 Alan D. Lovett, Esq. sraimo@entergy.com BALCH & BINGHAM LLP 1710 Sixth Avenue North Executed in Accord with 10 C.F.R. § 2.304(d)

Birmingham, AL 35203-2015 William B. Glew, Jr., Esq.

(205) 226-8769 ENTERGY SERVICES, LLC alovett@balch.com 639 Loyola Avenue, 22nd Floor New Orleans, LA 70113 Counsel for Holtec International and (504) 576-3958 Holtec Decommissioning International, LLC wglew@entergy.com Counsel for Entergy Nuclear Operations, Inc., Entergy Nuclear Indian Point 2, LLC, and Entergy Nuclear Indian Point 3, LLC November 12, 2020 21

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission

)

In the Matter of: )

) Docket Nos. 50-003-LT, ENTERGY NUCLEAR OPERATIONS, INC., ) 50-247-LT, ENTERGY NUCLEAR INDIAN POINT 2, LLC, ) 50-286-LT, and ENTERGY NUCLEAR INDIAN POINT 3, LLC, ) 72-051-LT-2 HOLTEC INTERNATIONAL, and HOLTEC )

DECOMMISSIONING INTERNATIONAL, LLC )

) November 12, 2020 (Indian Point Nuclear Generating Unit Nos. 1, 2, and 3) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Applicants Answer Opposing Riverkeeper, Inc.s Motion to Supplement the Basis of its Contention has been served through the E-Filing system on the participants in the above-captioned proceeding this 12th day of November, 2020.

/signed electronically by Alan D. Lovett/

Attachment A New Jersey Superior Court Consent Order

OCN C 000076-20 07/17/2020 Pg 1 of 7 Trans ID: CHC2020181387 FILED File No. 15454-13 7ut. 7 2020 CHAMi3ERS OF JR. PJ Law Offices FRANCIS R. HOD SON, orE OC ~~ F PARKER McCAY, P.A. SUPERIOR COURy Richard W. Hunt, Esquire, ID No. 015251985 Parker McCay P.A.

9000 Midlantic Drive, Suite 300 PO Box 5054 Phone: 856-596-8900 Attorneys for Defendants, Holtec International and Rohm Decommissioning International TOWNSHIP OF LACEY, a body politic, SUPERIOR COURT OF NEW JERSEY and THE TOWNSHIP COMMITIEE OF

• CHANCERY DIVISION THE TOWNSHIP OF LACEY, OCEAN COUNTY Plaintiffs, DOCKET NO. OCN-C-76-20 vs.

CIVIL ACTION CONSENT ORDER HOLTEC IN ERNATIONAL and HOLTEC DECOMMISSIONING INTERNATIONAL, Defendants, THIS MATTER being originally opened to the Court by Dasti, Murphy, McGuckin, Koutsouris and Connors, Attorneys for Plaintiffs, Jerry J, Dasti, Esq., seeking preliminary and permanent restraints pursuant to R. 4:52, based upon facts set forth in Plaintiffs' Verified LAW OPPICE Parker McCny Complaint; and WHEREAS, this Court issued an Order Imposing Restraints on June 2, 2020 (the "Order"), temporarily enjoining Defendants Holtec Decommissioning International ("HDI") and Holtec International from continuing any and all work at the Oyster Creek Nuclear Generating

OCN C 000076-20 07/17/2020 Pg 2 of 7 Trans ID: CHC2020181387 Station ("Oyster Creek"), unless or until permits are provided to Plaintiffs documenting that the work being undertaken is permitted by the appropriate regulatory authority; and WHEREAS, this Court also ordered a preliminary injunction hearing to take place on July 2, 2020; and WHEREAS, in accordance with the Order, Defendants provided Plaintiffs, and the Court, with the license issued by the Nuclear Regulatory Commission ("NRC") for Oyster Creek, and other NRC documents related to decommissioning of the facility by letter dated June 3, 2020; and WHEREAS, upon Plaintiffs' request, Defendants promptly arranged a site visit by Plaintiffs' representatives at the facility on June 8, 2020; WHEREAS, pursuant to the Order, Defendants flied and served their opposition to Plaintiffs' request for injunctive relief on June 24, 2020; and WHEREAS, Plaintiffs and Defendants have agreed, without admitting or conceding to any fact or argument, that it is in the parties' and the public's best interests to make good faith efforts to resolve this matter without further judicial intervention; and WHEREAS, the parties agree that they shall hold quarterly meetings at a workshop meeting hosted by the Township of Lacey, to discuss the status of Oyster Creek; and WHEREAS, the Township of Lacey agrees that it shall be available and will make its staff available to participate, review and make recommendations to facilitate the processes referenced in this Consent Order; and WHEREAS, in the interests of resolving this matter, the parties agreed that: (a) Defendant HDI shall submit a site plan approval application, and (b) Plaintiffs shall consider and render a decision upon such application no later than the Township Planning Board meeting on August 2

OCN C 000076-20 07/17/2020 Pg 3 of 7 Trans ID: CHC2020181387 10, 2020, provided Defendant HDI has complied with the notice requirements of the Municipal Land Use Law ("MLUL") and the hearing is concluded; and WHEREAS, the parties agree that, notwithstanding any submissions made by Defendant HDI to Plaintiffs in the interests of resolving this matter without further judicial intervention, neither party concedes any statement or argument in their respective filings with the Court in this matter, and no action taken or statement made by any party, including payment of attorney's fees, shall constitute an admission of any matter alleged or shall be used to prejudice the other party in this matter; and WHEREAS, pending the parties' attempts to resolve this matter in good faith, the parties jointly requested that the Court adjourn the Order to Show hearing scheduled for July 2, 2020; IT IS on this 7 44 day of 2020, ORDERED AND AGREED as follows:

1. Notwithstanding any ordinance or requirement to the contrary, Defendants shill file a complete application for Site Plan approval that will include any construction performed prior to the issuance of the Stop Work Order, construction work performed after the issuance of the Stop Work Order (if any), placing additional modules on the existing storage pad, and any new construction planned by the Defendant, with the Township Planning Board on or before July 20, 2020. The Township will be reasonable with reviewing the application in the normal course, as well as in considering waivers requests.

2. Assuming site plan application is complete, the Township Planning Board shall conduct a public hearing on the Site Plan application on or before August 10, 2020, 3, The Township Planning Board shall issue a written Resolution memorializing its decision within thirty (30) days after the conclusion of the above hearing.

3

OCN C 000076-20 07/17/2020 Pg 4 of 7 Trans ID: CHC2020181387

4. The Township Planning Board's engineer shall review all plans submitted by Defendant to conform to the Planning Board approval within ten (10) business days of submission.

5. The Township shall issue any construction permits required to develop the Property in accordance with the approved Site Plan, or deny such permit application by stating the specific information that must be provided by Defendants to issue the permit, within ten (10) business days of the filing of the application.

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 permit is issued, and Defendants have applied for permits and received the proper inspection. The Township will expedite issuance of permits and performing 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 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 delayed. To that end, the Township may inspect the CTP as soon as this Consent Order is executed. As used herein, the phrase "dry runs" 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 HI-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.

4

OCN C 000076-20 07/17/2020 Pg 5 of 7 Trans ID: CHC2020181387

b. Preparation of the spent fuel canister for fuel loading.

c. Selection and verification of fuel assemblies.

d. Loading test fuel assembles (replica assemblies) in the spent fuel canister.

e. Remote installation of the spent fuel canister lid and removal of the canister/transfer cask from the spent fuel pool.

f, Spent fuel canister lid welding, Non-Destruction Examination ("NDE")

inspections, pressure testing, draining, moisture removal, and helium backfilling.

g. Transfer of the spent fuel canister from the transfer cask to the overpack utilizing the CTP.

h, Placement of the spent fuel canister in the overpack on to the ISFSI pad.

7. The Township agrees to work with Defendants to ensure that any approvals will not be unreasonably withheld or delayed.

8. In the event the Site Plan application is denied, or the Planning Board imposes conditions that Defendants finds unacceptable, the Defendants shall be permitted to file a Complaint appealing the Planning Board's determination, which shall be reviewed on an expedited basis.

9, The filing of the Site Plan application by Defendants is made in furtherance of the settlement of the dispute between that parties and the fact that the Site Plan application has been filed shall not be (i) deemed an admission by Defendants that Site Plan approval is required in order to use the Cask Transfer Pit or to place any number of storage modules on the existing ISFSI pad, or (ii) be deemed proof by Plaintiffs that Site Plan approval was required in order to use the Cask Transfer Pit or to place any number of storage modules on the existing ISFSI pad.

5

OCN C 000076-20 07/17/2020 Pg 6 of 7 Trans ID: CHC2020181387

10. Defendants may continue to perform such decommissioning work at the Property as is permitted by its NRC License, programs, and processes, provided that it may not use the CTP or the existing ISFSI pad until site plan approval is granted, construction inspections completed and a Certificate of Approval is issued for the CTP, or further Order of this Court.

The Township agrees to work with Defendants to not impact this schedule, and to ensure that any approvals will not be unreasonably withheld or delayed.

11. Plaintiffs agree to withdraw its Stop Work Order, dated March 27, 2020, at which time Defendants shall withdraw their Complaint with the Construction Board of Appeals, but not until Defendants receive site plan approval and construction permits.

12. Upon execution of this Consent Order, Defendants agree to reimburse Plaintiffs

$15,000 representing Plaintiffs' Attorney's fees relating to this matter.

13. The Order to Show Cause hearing shall be adjourned. 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 determined by the Court. Both parties shall have the right to enforce the terms of this Consent Order.

HON. FRA ODGSON, JR., P.J.Ch.

6

OCN C 000076-20 07/17/2020 Pg 7 of 7 Trans ID: CHC2020181387 The parties consent to the form and entry of the within order:

FOR PLAINTIFFS:

DASTI, MURP cGU , UTSOURIS, and CONNORS By: Dated: -1 J. DASTI, ESQ.

FOR DEFENDANTS:

PARKER McC .A.,

ei By: Dated: 1.,r yp RICHARD W. HUNT, ESQ.

48504344-1603, v. 2