ML13266A184

New York State Department of State File #F-2012-1028, Consistency Certification for Entergy Nuclear Indian Point 2 and Entergy Nuclear Indian Point 3 License Renewal Application

ML13266A184
Person / Time
Site:	Indian Point
Issue date:	09/19/2013
From:	Healy M Goodwin Procter, LLP
To:	Baldwin L Office of Nuclear Reactor Regulation, State of NY, Dept of State
References
F-2012-1028
Download: ML13266A184 (11)

Text

GOODW IN I PROCTER Martin R.Healy Goodwin Procter LLP 617.570.1371 Counselors at Law mhealy@ Exchange Place goodwinprocter.com Boston, MA 02109 T: 617.570.1000 F: 617.523.1231 BY HAND AND E-MAIL September 19, 2013 Linda M. Baldwin General Counsel New York State Department of State Counsel's Office One Commerce Plaza, 99 Washington Avenue Albany, New York 1223 1-0001 Re: New York State Department of State File #F-2012-1028 Consistency Certification for Entergy Nuclear Indian Point 2 and Entergy Nuclear Indian Point 3 License Renewal Application

Dear Ms. Baldwin:

Thank you for your September 13, 2013 letter responding to my letter to Mr. Anders of July 31, 2013, submitted on behalf of Entergy Nuclear Indian Point 2, LLC, Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. ("Entergy"). While Entergy respectfully disagrees with the view of the New York State Department of State (the "Department") that Entergy lacks a right to an adjudicatory hearing if the Department objects to Entergy's consistency certification (the "Consistency Certification"),' Entergy welcomes the Department's openness to an infonnal consultation process.2 The fact that the rules of the National Oceanic and Atmospheric Administration ("NOAA") at 15 C.F.R Part 930 do not compel states to provide adjudicatory, hearing rights does not answer the question of whether the Department has an obligation under other applicable state and federal law to do so. The legislative history of the Federal Coastal Zone Management Act makes clear that states are responsible for providing public hearings in connection with federal consistency review "when appropriate." S. Rep. No.92-753 (1972), as reprinted in 1972 U.S.C.C.A.N. 4776, 4793-94. Among other things, the Department is a creature of state law, and must comply with applicable state law requirements, such as the State Administrative Procedure Act ("SAPA") and its own regulations implementing SAPA.

2 As you know, the Atomic Safety and Licensing Board has pointed to the need for a consultation process under 15 C.F.R. § 930.51 among the Nuclear Regulatory Commission ("NRC"), the Department, and Entergy to determine whether further review of Indian Point Energy Center ("Indian Point") for consistency with the New York Coastal Management Program ("CMP") is required in connection with NRC license renewal ("License Renewal"). We note that the consultation process between Entergy and the

GOODWIN I PROCTER Linda M. Baldwin, General Counsel New York State Department of State September 19, 2013 Page 2 Entergy believes, in light of the circumstances described below, that a three-month stay of the Department's review period would be appropriate to assist the Department with completion of its review responsibilities:

1. The Volume of the Consistency Certification. Entergy's ten volume Consistency Certification contains an unusually large volume of information that warrants the Department's careful review and consideration.

2. The Additional Public Comments That Are Expected. Based on the importance of Indian Point License Renewal, as reflected in the Department's decision to extend the deadline for public comments, and to issue a news release, 3 rather than to rely solely on the publication in the New York State Register of August 28, 2013, Entergy expects that the Department will receive a large volume of additional information during the public comment period recently extended until October 30, 2013. This outcome is even more likely because opponents of Indian Point are engaged in a campaign to encourage submission of negative comments on Entergy's Consistency Certification.4 In all events, the Department will require adequate time to evaluate any probative information that is submitted.

3. Entergy's Supplemental Submittal. In response to the invitation made by your letter, Entergy expects to make a supplemental filing with the Department containing additional documentation that will assist the Department with its consistency review. Entergy will provide that supplemental filing within the extended comment period. The Department will require adequate time to evaluate that additional information.

4. Public Hearings. In a case as important as this one, it is typical agency practice to provide at least one public hearing to allow members of the public who are potentially affected by the Department's decision to submit oral testimony. Such a public hearing was held in connection with the Department's consistency review of NRC license renewal for the James A.

FitzPatrick nuclear generation facility. We therefore request the Department to reconsider its decision not to provide a public hearing in this case. If the Department does reconsider its position on this question, additional time will Department suggested by your letter, to address the Department's federal consistency review responsibilities, is separate and distinct from the consultation process under 15 C.F.R. § 930.51.

3 The Department's news release of Friday, September 13, 2013, is Attachment A to this letter.

4 Riverkeeper Inc.'s press release seeking comments on Entergy's Consistency Certification is Attachment B to this letter.

GOODWIN I PROCTER Linda M. Baldwin, General Counsel New York State Department of State September 19, 2013 Page 3 be required for the Department to schedule such a public hearing, and to evaluate the testimony received at the hearing.

5. The Pending Judicial Decision Concerning the Nature of the CMP. As you know, the issue of whether the CMP constitutes a rule or regulation, or is comprised of rules or regulations, under state law is currently pending before The Honorable Michael C. Lynch of the Supreme Court of the State of New York, Albany County. 5 Oral argument has been scheduled for September 27, 2013. In addressing the issue of whether the CMP is a rule, or is comprised of rules, Judge Lynch also will be considering whether the Indian Point facilities are subject to the CMP. Having the benefit of Judge Lynch's decision in advance of completion of federal consistency review would guide the Department in fulfilling its review responsibilities.

6. The Consultation Process Contemplated by NOAA's Regulations. Entergy requests to engage in the consultation process proposed by the Department at the Department's earliest convenience. However, even an informal consultation process, properly conducted, will require additional time for completion. Among other things, we anticipate that, in order to comply with the spirit and intent of the NOAA regulations at 15 C.F.R. Part 930, such an informal process would need to address and clarify several procedural questions and threshold issues that to date remain unaddressed:

a. Which Members of State Government Will Be Providing Substantive Input to, or Recommendations Concerning, the Department's Decision? Clarity should be provided concerning the identity of any state government officials or Department personnel who will be providing information or recommendations that will be considered by, or be determinative of, the Department's decision. If the Department expects to defer to, or rely upon, expertise from state officials in making its decision, those state officials should be invited to participate in the Department's informal consultation process.

b. Who Will Be the Department Decision-Maker? The identity of the individual responsible for making the decision of the Department should be revealed, and that person should participate in the consultation with Entergy.

See Entergy Nuclear Operations,Inc. v. New York State Department of State, Supreme Court of the State of New York, County of Albany, Index No. 1535-13.

GOODWIN PROCTER Linda M. Baldwin, General Counsel New York State Department of State September 19, 2013 Page 4

c. What Are the Enforceable Policies of the New York Coastal Management Program Applicable to the Proposed Activity? 15 C.F.R.

§ 930.56 provides that: "Upon request by the applicant, the State agency shall identify any enforceable policies applicable to the proposed activity, based upon the information submitted to the State agency." Pursuant to 15 C.F.R. § 930.56, Entergy respectfully requests the Department to identify "any enforceable policies applicable to the proposed activity."

i. Among other things, by letter dated January 25, 2013, Susan L.

Watson, then-General Counsel of the Department, declined to inform Entergy about whether the recently-adopted modification of the Hudson Highlands Significant Coastal Fish and Wildlife Habitat ("SCFWH") regulations are applicable to this consistency review. Ms. Watson indicated that the Department would make the determination when it commenced consistency review. To date, the Department has not informed Entergy of its determination. Entergy hereby renews its request that the Department clarify whether it intends to apply the modified Hudson Highlands SCFWH regulation to Indian Point License Renewal, notwithstanding the instruction of NOAA not to do so.

it. Within the "network" of state and local laws that comprise the CMP, there is a subset of "enforceable" and "legally binding" requirements that may be applicable to Indian Point License Renewal as part of federal consistency review. 6 Please identify the state or local law requirements, incorporated within the CMP network, if any, with which the Department contends Entergy is not in compliance. Please also explain why the Department considers such requirements, if any, to be "enforceable" and "legally binding."

d. Will the Department Provide An Opportunity to Respond to Any Evidence That the Department Considers Sufficient to Warrant a Department Objection? To allow Entergy and members of the public meaningfully to participate in the Department's review process, after the Department has identified the evidence that it finds probative and 6 See 16 U.S.C. § 1456(C)(3)(A); 15 C.F.R. § 930.11(h).

GOODWIN PROCTER Linda M. Baldwin, General Counsel New York State Department of State September 19, 2013 Page 5 upon which it intends to rely, Entergy and members of the public should be provided an opportunity to respond to that evidence.

e. Does the Department Seek Additional Information? If the Department concludes that more information would assist the Department in reaching its conclusions, Entergy stands ready to address the reasonable requests of the Department as promptly as practicable. Are there information gaps that Entergy can help to fill?

f. Does the Department Consider Decisions By New York State Department of Environmental Conservation ("DEC") To Be Necessary for Consistency? It is our understanding, based on recent discussions with Department staff, that the Department is no longer of the opinion that the Water Quality Certification and State Pollutant Discharge Elimination System decisions of DEC are a prerequisite to its concurrence with the Consistency Certification. Please confirm that Entergy correctly understands the Department's position on this issue.

If the Department is of the view that its concurrence with Entergy's Consistency Certification may not occur or is unlikely to occur without final DEC decisions on these matters, Entergy respectfully requests an opportunity to discuss with the Department possible ways to address the Department's concerns.

g. Are There Any Serious Disagreements Between Entergy and the Department? Entergy seeks to engage in a discussion with the Department in order to determine whether Entergy and the Department have a disagreement about any consistency review conclusions tentatively reached by the Department. In the event the Department and Entergy have a serious disagreement concerning the Department's tentative conclusions, Entergy and the Department "are strongly encouraged to make every effort to resolve the disagreement informally." 7 Entergy requests the opportunity to engage in those efforts with the Department.

h. Are There Any Conditions That the Department Considers Necessary for Consistency? Entergy seeks to engage in a discussion with the Department about whether conditions may be necessary to permit the Department to concur with the Entergy's Consistency Certification.

7 15 C.F.R. § 930.1 11

GOODWIN I PROCTER Linda M. Baldwin, General Counsel New York State Department of State September 19, 2013 Page 6 Such a consultation process is encouraged by 15 C.F.R. § 930.62(d).

i. Mediation Assistance. In the event that Entergy and the Department have a serious disagreement concerning the Department's tentative conclusions which cannot be resolved through informal discussions, Entergy respectfully requests the Department to seek the assistance of NOAA's Office of Ocean and Coastal Resource Management

("OCRM") to help resolve the disagreement. NOAA's regulations provide that 8

"OCRM shall be available to assist the parties in these efforts."

For the foregoing reasons, Entergy respectfully requests a stay of the consistency review process pursuant to 15 CFR § 930.60(b) during the period beginning on September 20, 2013, and ending December 20, 2013.9 Based upon the Department's calculation of the review period, such a stay would result in a three-month extension of the Department's review period through March 20, 2014.

We look forward to a productive consultation process with the Department and trust that the Department will agree that a three-month stay will assist the Department to fulfill its remaining consistency review responsibilities.

Thank you for your cooperation in this matter.

Sincerely, Martin R. Healy Attorney for Entergy cc: Cesar A. Perales, Secretary, New York State Department of State, (By [land and E-Mail)

New York State Department of State, Office of Coastal, Local Government and Community Sustainability, Attn: Consistency Review Unit, (By Hand and E-8 Id.

As with all previous filings with the Department, Entergy makes this request under a full reservation of rights, including but not limited to its right to contend that Indian Point is grandfathered from consistency review, that no additional consistency review is required, and that the Department's review period has already expired.

GOODWIN 1 PROCTER Linda M. Baldwin, General Counsel New York State Department of State September 19, 2013 Page 7 Mail)

William Sharp, Principal Attorney, New York State Department of State (By Hand and E-Mail)

Jeffrey Zappieri, Supervisor, Consistency Review, New York State Department of State (By Hand and E-Mail)

Lois M. James, Division of License Renewal, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, (By Federal Express and E-Mail)

Sherwin E. Turk, Esq., Office of General Counsel, U.S. Nuclear Regulatory Commission, (By Federal Express and E-Mail)

Fred Dacimo, Vice President License Renewal, Indian Point Energy Center. (By Federal Express and E-Mail)

Kelli Dowell, Assistant General Counsel, Environmental, Entergy, (By Federal Express and E-mail)

Christopher Hogan, Project Manager, NYSDEC Central Office, Division of Environmental Permits, (By Federal Express and E-Mail)

John Sipos, Assistant Attorney General, State of New York, (By Federal Express and E-Mail)

William B. Glew, Jr., Associate General Counsel, Entergy Services, Inc., (By Federal Express and E-Mail)

ATTACHMENT A From: DOS Press Office [1]

Sent: Friday, September 13, 2013 01:24 PM Eastern Standard Time

Subject:

THE NEW YORK STATE DEPARTMENT OF STATE SEEKS PUBLIC COMMENTS FOR LICENSE RENEWAL OF ENTERGY'S INDIAN POINT NUCLEAR POWER PLANT For Immediate Release:

September 13, 2013 Contact: 518-486-9846 Info@dos.ny.gov Follow us on Twitter @NYSDOS Public and Interested Partieshave until October 30, 2013 to Express Views Albany, NY - Entergy has applied to the U.S. Nuclear Regulatory Commission to renew their license to operate the Indian Point Nuclear Power Facility in Buchannan, NY, for a period of 20 years. The Department of State must review Entergy's application and determine if continued operation of the facility complies with the enforceable policies of NYS's Coastal Management Program. Should the Department of State find that the continued operation of the Indian Point Nuclear Facility does not comply, the U.S. Nuclear Regulatory Commission is prohibited from renewing Entergy's license.

The Department of State is seeking comments from the public regarding the consistency of the license renewal of the Indian Point Nuclear Power Facility with the coastal policies of the NYS Coastal Management Program.

Public Comment Period Deadline Extended: Public comments concerning the consistency of Entergy's proposal to renew its license to operate its Indian Point facility for an additional 20 years must be received by 4:30 PM on Wednesday, October 30, 2013. Comments must be submitted to NYS Department of State Attn: Consistency Review Unit, One Commerce Plaza, 99 Washington Avenue, Suite 1010, Albany, NY 12231 or by email to cr@dos.nv.gov. When submitting comments, please reference file number F-2012-1028.

The coastal policies are available on our website at http://www.dos.ny.gov/

communitieswaterfronts/pdfs/CoastalPolicies.pdf and the official public notice can be found in the August 28, 2013 issue of the NYS Register available online at http://docs.dos. ny.gov/info/register/2013/aug28/pdf/misc.pdf.

ATTACHMENT B A new opportunity to close Indian Point - Take action today!

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We have a new chance to shutter Indian Point-by showing that this destructive, dangerous nuclear power plant is inconsistent with state policies designed to make the best use A:

of the Hudson River and its shoreline. The public has until October 12 to comment on this crucial issue-don't miss your chance!

This "coastal consistent certification" is required under Federal Coastal Zone ManagementAct, and involves a determination about whether relicensing the Indian Point nuclear power plant k4 for an additional 20 years will be consistent with the 44 prh , courles y o f To'ly ,he Misfl on, Flickr enforceable policies outlined in NYS's Coastal Management Plan, or CMP. Entergy claims its continued operation is consistent with coastal zone policies, and now it's up to the state to weigh the facts and approve or deny Entergy's application.

Without this state approval, the U.S. Nuclear Regulatory Commission (NRC) will not be able to grant a license renewal to Entergy for Indian Point. This Federal requirement thus provides the State of New York with a powerful tool to prevent the relicensing of Indian Point.

Riverkeeper is actively fighting both to deny Entergy the state water permit it needs to operate, and to to deny the plant the 20-year license renewal it is seeking from the NRC. The coastal consistency review represents a third way we might succeed in closing Indian Point. And because the NRC rarely allows for meaningful public comment on its decisions, this is a rare opportunity the public to express its concerns about Indian Point-and argue for its closure.

Indian Point is environmentally destructive and runs afoul of various coastal policies, so New York State should object to Entergy's proposed consistency certification. In particular, the State must consider and address:

" The 1.2 billion fish and other aquatic organisms killed annually by Indian Point's once-through-cooling water intake system, and the devastating impacts on the aquatic biota of nearby State and Federally designated Significant Coastal Fish and Wildlife Habitat in Haverstraw Bay;

• the effect of rampant and ongoing radioactive leaks from Indian Point that indisputably release to the Hudson River and will continue to do so for decades; and,

" the safety risks of storing thousands of tons of highly radioactive nuclear waste for decades if not centuries in overly crowded leaking spent fuel pools and temporary dry cask storage structures.

Make sure to let New York State know that Entergy should not get a coastal consistency certification! Submit your comments by October 12, 2013 to:

New York State Department of State, Division of Coastal Resources ATTN: Consistency Review Unit One Commerce Plaza, Suite 1010 99 Washington Avenue Albany, New York 12231 (518) 474-6000 (518) 473-2464 (Fax) email: cr@dos.ny.gov This article was originally published by Riverkeeper and is republished here with permission.