ML13004A158

Unopposed Motion for Extension of Time to Respond to Entergy'S Motion for Declaratory Order

ML13004A158
Person / Time
Site:	Indian Point
Issue date:	01/04/2013
From:	Jeremy Dean, Sipos J State of NY, Office of the Attorney General
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 23973, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01
Download: ML13004A158 (8)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

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x In re: Docket Nos. 50-247-LR and 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BD01 Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. January 4, 2013

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x UNOPPOSED MOTION FOR EXTENSION OF TIME TO RESPOND TO ENTERGYS MOTION FOR DECLARATORY ORDER Intervenor the State of New York respectfully requests that the Atomic Safety and Licensing Board grant this unopposed extension of time for the State to file a response to Entergys Motion for Declaratory Order That It Has Already Obtained the Required New York State Coastal Management Program Consistency Review of Indian Point Units 2 and 3 for Renewal of the Operating Licenses. The State requests that the State, NRC Staff, and Riverkeeper be given until March 22, 2013 to file a response. NRC Staff and Riverkeeper join in the request; Entergy and Clearwater do not oppose it.

Background

On Monday, July 30, 2012, Entergy Nuclear Operations, Inc. (Entergy) filed what it styled a Motion for Declaratory Order That It Has Already Obtained the Required New York State Coastal Management Program Consistency Review of Indian Point Units 2 and 3 for Renewal of the Operating Licenses. As the basis for its request, Entergy alleges primarily that (1) two New York State agencies and a New York State public authority were involved with 2000 and 2001 proceedings involving a Clean Water Act permit and license transfer of Indian 1

Point facilities to Entergy and, therefore, the State of New York Department of State (or NYSDOS) must have issued coastal zone consistency determinations affiliate with those projects, and (2) those alleged determinations obviate the need for further Coastal Zone Management Act (CZMA) review by the Department of State during relicensing.

On August 6, 2012, the State previously filed a motion for extension of time based on the numerous existing pre-hearing deadlines and ongoing pre-hearing preparation work scheduled during that period of time, and because Entergys motion was (and is) based on critical documents it has not identified or provided. The Board granted the States motion and extended the States response deadline until January 14, 2013. Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), Order (Granting, in Part, the NRC Staffs and New Yorks Motions for Extension of Time) (Aug. 8, 2012) (unpublished) ML12221A401.

The present request for extension of time is appropriate in light of, inter alia, the additional pleadings which have been filed in various fora since the States first motion for extension of time. Specifically, on October 1, 2012, Entergy filed a petition pursuant to Article 78 of New York Civil Practice Law and Rules (C.P.L.R.) against NYSDOS and the New York State Department of Environmental Conservation in Albany County Supreme Court seeking a declaratory judgment that both agencies violated the State Administrative Procedure Act, the New York State Constitution, the Waterfront Act, and the State Environmental Quality Act (SEQRA) when promulgating a change to the definition of coastal habitats (particularly significant coastal fish and wildlife habitats). The Attorney Generals Office represents both State agencies in this action and recently submitted opposition to this petition; oral argument is scheduled for January 25.

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On November 5, 2012, Entergy filed an administrative petition for declaratory ruling with the Department of State seeking a declaratory ruling that Indian Point Unit 2 and Indian Point Unit 3 are not subject to a review for consistency with the Coastal Management Plan because they were grandfathered in under SEQRA when SEQRA was enacted and because a final environmental impact statement was performed prior to the effective date of relevant DOS regulations. DOS itself is handling this petition.

Finally, on December 17, 2012, Entergy filed a multi-volume application with DOS requesting a CZMA consistency determination. At present, there are considerable demands placed on the NYSDOS Coastal Zone Program and Staff in the wake of Sandy, which caused extensive damage to New York coastal communities, and on the Staff resources devoted to reviewing and addressing various requests, applications, and challenges concerning the coastal zone management program presented by Entergy with respect to the Indian Point facilities. In addition, counsel for the State is reviewing hearing transcripts and preparing findings of fact and conclusions of law on Contentions NYS-5, 6, 7, 8, 12C, 16B, 17B, and 37 for submission on March 8, 2013.

During the week of December 17-21, 2012 representatives of the State, NRC Staff, and Entergy discussed the above matters and the parties came to an agreement for review by the Board that would amend the scheduled filing date for the State, NRC Staff, and Riverkeepers responsive submissions until March 22, 2013. On Friday December 21, 2012, the State, NRC, Entergy, and Riverkeeper each filed status reports with the Board that communicated their agreement with the relief requested in this motion. 1 Likewise, Clearwater does not oppose this proposed schedule change.

1 State of New York Letter Report to Atomic Safety and Licensing Board (Dec. 21, 2012) ML12356A247; NRC Letter Report to Atomic Safety and Licensing Board, p. 2 (Dec. 21, 2012) ML12356A291; Entergy Letter Report to 3

The State submits that the requested extension of time would not prejudice any party, the Board, or this proceeding.

CONCLUSION For the above-stated reasons, the State respectfully requests that the Board grant this unopposed request for an extension to respond to Entergys request for declaratory ruling until March 22, 2013.

Respectfully submitted, Signed (electronically) by Janice A. Dean John Sipos Assistant Attorney General Assistant Attorney General Office of the Attorney General for the State of New York 120 Broadway, 26th Floor New York, New York 10271 (212) 416-8459 January 4, 2013 Atomic Safety and Licensing Board, p.2-3 (Dec. 21, 2012) ML12356A315; Riverkeeper Letter Report to Atomic Safety and Licensing Board (Dec. 21, 2012) ML12356A505. The State incorporates these referenced filings in support of this motion.

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10 C.F.R. § 2.323 Certification Pursuant to 10 C.F.R. § 2.323(b) and the Boards July 1, 2010 Scheduling Order (at 8-9),

I certify that I have made a sincere effort to contact counsel for NRC Staff and Entergy, as well as Riverkeeper and Clearwater, in this proceeding, to explain to them the factual and legal issues raised in this motion, and to resolve those issues. No party opposes this request.

Signed (electronically) by John Sipos Assistant Attorney General Office of the Attorney General for the State of New York The Capitol Albany, New York 12224 (518) 402-2251 January 4, 2013 5

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

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x In re: Docket Nos. 50-247-LR and 50-286-LR License Renewal Application Submitted by ASLBP No. 07-858-03-LR-BD01 Entergy Nuclear Indian Point 2, LLC, DPR-26, DPR-64 Entergy Nuclear Indian Point 3, LLC, and Entergy Nuclear Operations, Inc. January 4, 2013

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x CERTIFICATE OF SERVICE I hereby certify that on January 4, 2013, copies of the Unopposed Motion for Extension of Time were served upon the following persons via the NRCs Electronic Information Exchange system at the following addresses:

Lawrence G. McDade, Chair Shelbie Lewman, Esq. Law Clerk Richard E. Wardwell, Administrative Judge Carter Thurman, Law Clerk Michael F. Kennedy, Administrative Judge Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mailstop 3 F23 Mailstop 3 F23 Two White Flint North Two White Flint North 11545 Rockville Pike 11545 Rockville Pike Rockville, MD 20852-2738 Rockville, MD 20852-2738 Shelbie.Lewman@nrc.gov Lawrence.McDade@nrc.gov Carter.Thurman@nrc.gov Richard.Wardwell@nrc.gov Michael.Kennedy@nrc.gov Office of Commission Appellate Adjudication Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Mailstop 16 G4 Mailstop 3 F23 One White Flint North Two White Flint North 11555 Rockville Pike 11545 Rockville Pike Rockville, MD 20852-2738 Rockville, MD 20852-2738 ocaamail@nrc.gov 6

Office of the Secretary Bobby R. Burchfield, Esq.

Attn: Rulemaking and Adjudications Staff Matthew M. Leland, Esq.

U.S. Nuclear Regulatory Commission Clint A. Carpenter, Esq.

Mailstop 3 F23 McDermott Will & Emery LLC Two White Flint North 600 13th Street, NW 11545 Rockville Pike Washington, DC 20005-3096 Rockville, MD 20852-2738 bburchfield@mwe.com hearingdocket@nrc.gov mleland@mwe.com ccarpenter@mwe.com Sherwin E. Turk, Esq.

David E. Roth, Esq. Richard A. Meserve, Esq.

Beth N. Mizuno, Esq. Covington & Burling LLP Brian G. Harris, Esq. 1201 Pennsylvania Avenue, NW Anita Ghosh, Esq. Washington, DC 20004-2401 Joseph A. Lindell, Esq. rmeserve@cov.com Office of the General Counsel U.S. Nuclear Regulatory Commission Elise N. Zoli, Esq.

Mailstop 15 D21 Goodwin Procter, LLP One White Flint North Exchange Place 11555 Rockville Pike 53 State Street Rockville, MD 20852-2738 Boston, MA 02109 sherwin.turk@nrc.gov ezoli@goodwinprocter.com david.roth@nrc.gov beth.mizuno@nrc.gov William C. Dennis, Esq.

brian.harris@nrc.gov Assistant General Counsel anita.ghosh@nrc.gov Entergy Nuclear Operations, Inc.

Joseph.Lindell@nrc.gov 440 Hamilton Avenue White Plains, NY 10601 Kathryn M. Sutton, Esq. wdennis@entergy.com Paul M. Bessette, Esq.

Jonathan Rund, Esq. Robert D. Snook, Esq.

Raphael Kuyler, Esq. Assistant Attorney General Morgan, Lewis & Bockius LLP Office of the Attorney General 1111 Pennsylvania Avenue, NW State of Connecticut Washington, DC 20004 55 Elm Street ksutton@morganlewis.com P.O. Box 120 pbessette@morganlewis.com Hartford, CT 06141-0120 jrund@morganlewis.com robert.snook@ct.gov rkuyler@morganlewis.com Melissa-Jean Rotini, Esq.

Martin J. ONeill, Esq. Assistant County Attorney Morgan, Lewis & Bockius LLP Office of the Westchester County Attorney Suite 4000 Michaelian Office Building 1000 Louisiana Street 148 Martine Avenue, 6th Floor Houston, TX 77002 White Plains, NY 10601 martin.oneill@morganlewis.com MJR1@westchestergov.com 7

Sean Murray, Mayor Karla Raimundi, Environmental Justice Kevin Hay, Village Administrator Associate Village of Buchanan Hudson River Sloop Clearwater, Inc.

Municipal Building 724 Wolcott Avenue 236 Tate Avenue Beacon, NY 12508 Buchanan, NY 10511-1298 karla@clearwater.org Administer@villageofbuchanan.com Richard Webster, Esq.

Daniel Riesel, Esq. Public Justice, P.C.

Thomas F. Wood, Esq. Suite 200 Victoria S. Treanor, Esq. 1825 K Street, NW Sive, Paget & Riesel, P.C. Washington, DC 20006 460 Park Avenue rwebster@publicjustice.net New York, NY 10022 driesel@sprlaw.com Phillip Musegaas, Esq.

vtreanor@sprlaw.com Deborah Brancato, Esq.

Riverkeeper, Inc.

Michael J. Delaney, Esq. 20 Secor Road Director Ossining, NY 10562 Energy Regulatory Affairs phillip@riverkeeper.org NYC Department of Environmental dbrancato@riverkeeper.org Protection 59-17 Junction Boulevard Flushing, NY 11373 (718) 595-3982 mdelaney@dep.nyc.gov Signed (electronically) by Teresa Manzi Office of the Attorney General State of New York Dated at Albany, New York this 4th day of January, 2013 8