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{{#Wiki_filter:UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
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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.          October 1, 2012
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-----------x
STATE OF NEW YORK COMBINED OPPOSITION TO ENTERGY'S REQUESTS FOR EMERGENCY STAY AND INTERLOCUTORY REVIEW OF THE BOARD ORDER GRANTING LIMITED CROSS-EXAMINATION
Office of the Attorney
General for the State of New York
The Capitol
State Street
Albany, New York 12224 iTABLE OF CONTENTS PRELIMINARY STATEMENT
-------------------.--.1
The Board's September 21, 2012 Order
--------------.----.2
The Board's September 24, 2012 Teleconference
----------.----..2
ARGUMENT-----------------------------..3 POINT I ENTERGY HAS NOT MET THE STANDARD FOR  INTERLOCUTORY REVIEW
------------------...3 POINT II
THE BOARD HAS GRANTED RELIEF THAT IS AUTHORIZED  BY THE COMMISSION'S SUBPART L REGULATIONS, AND  WHICH IS SQUARELY WITHIN THE BOARD'S DISCRETION AND  AUTHORITY
--------------------------6 POINT III
A STAY OF THE PROCEEDING IS NOT WARRANTED AND WOULD BE HIGHLY PREJUDICIAL TO ALL PARTIES AND  THE BOARD
--------------------------7 CONCLUSION
----------------------------10 iiTABLE OF AUTHORITIES FEDERAL CASES Citizens Awareness Network v. United States , 391 F.3d 338 (1st Cir. 2004)-----..5 FEDERAL STATUTES 10 C.F.R.
§ 2.319----------------------------.6 10 C.F.R.
§ 2.342(e)---------------------------.7 10 C.F.R. § 2.1204---------------.-----------..2, 6 NUCLEAR REGULATORY COMMISSION DECISIONS Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Station),  2011 WL 6854157 (Dec. 22, 2011))----------------...-.4 Pacific Gas And Electric Company (Diablo Canyon Nuclear Power Plant),  Units 1 and 2, CLI-12-13, 75 N.R.C. __  (June 7, 2012)----------.8
S. Nuclear Operating Co. (Vogtle Electric Generating Plant Units 3 and 4),  CLI-12-11, 75 N.R.C. __ (Apr. 16, 2012)------------...--7, 8 1PRELIMINARY STATEMENT On Friday, September 28, 2012, Entergy file d two requests for relief from the Commission:  (1) a petition seeking expedited inte rlocutory review of th e Board's Order granting the State of New York limited cross-examination rights 1 at the relicensing hearing currently scheduled to begin in two weeks; and (2) an application for a stay of the hearing pending resolution of its petition for review.
2  Entergy argues that cross-examination is not necessary, that it should have the right to conduct cross-examina tion - which opportunity has already been given by the Board in the teleconference that followed issuance of the Order, as Entergy acknowledges
- and that the Board's authorization of cross-examination allowed by 10 C.F.R.
§ 2.1204 is pervasive and unusual, warranti ng Commission intervention. Entergy's arguments lack merit. Entergy has raised no issues warranting emer gency review. Rather, these requests are Entergy's belated attempt to obtain relief it could have sought from th e Board, but did not. Entergy's failure to seek relief from the Board at the appropriate time does not warrant Commission review now.
3  Entergy has not shown that it is adversely affected by the Board's  1 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Ge nerating Station), Docket Nos. 50-247-LR and 50-286-LR, Atomic Safety and Licensing Board Order (Granting, in part, New York's Motion for Cross Examinati on) (Sept. 21, 2012)(unpublished) ("Order").See Entergy's Application to Stay Board Order Granting Cross- Examination to New York State Or, In The Alternative, to Grant a Partial Stay of the Hearing Pending the Commission's Decision on Entergy's Emergency Petition for Interlocutory Review, (Sept. 28, 2012) ("Entergy Application for Stay") and Entergy's Emergency Petition for Interlocutory Review of Board Order Granting Cross-Examin ation to New York State And Request For Expedited Briefing (Sept. 28, 2012)("Entergy Petiti on"). Had Entergy called this a "motion," it would have been obligated to consult with parties pursuant to 10 C.F.R.
§ 2.323. It is not clear to the State that an "application" can properly escape these provisions; in any event, Entergy conducted no consultation and provided no notice to the Board or part ies during pre-hearing discussions that it woul d be requesting a stay. 3 Entergy, in opposing the State's motion for cross-examination, indica ted in a footnote that should the Board grant the State's motion, it wanted the same relief. The Board did not 2Order; in fact, Entergy has benefitted from the Board's Order and subsequent statements because Entergy and the other parties gained the right to cross-examin e experts, upon a proper showing, despite not having moved for such relief at the appropriate time. Official Transcript of Proceedings, Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Station), Teleconference (Sept. 24, 2012) ("Tr.") at 1236-
: 43. A stay of the evidentiary hearing -
scheduled to begin in two weeks - would prejudice all parties and the Board. In sum, Entergy's Petition and Application should both be denied.
The Board's September 21, 2012 Order  On September 21, 2012, the Board granted the State of New York's motion seeking the right to cross-examination at the evidentiary hearing. Orde r at 6-7 (citing 10 C.F.R. § 2.1204(b)(3)).
4  The Board explained that "New York may examine witnesses after the Board's examination, so long as New York's questions are relevant, reasonable, and nonrepetitive."
Order at 7. Noting that "the pre-filed testimony and exhibits in this proceeding are voluminous and technical," the Board found cross-examination "necessary to ensure development of an adequate record for this proceeding."
Id. at 6. The Board's September 24, 2012 Teleconference The Board's Order granted only the State of New York the right to cross-examine consider this the equivalent of a motion. As the Chair stated during the te leconference, "at this point the only party that submitted a request to do examination is New York, nobody else has.
Entergy hasn't, the NRC Staff hasn
't, Clearwater hasn't, Riverkeep er hasn't. At this point, the only one who has made the request and filed the motion is New York." Tr. 1237:13-19. 4 In its August 8, 2012 motion, the State sough t to invoke its statut orily-granted cross-examination rights under Section 274(l) of the Atomic Energy Act. State of New York Motion to Implement Statutorily-Granted Cross-Examination Rights Under Atomic Energy Act § 274(l) (Aug. 8, 2012). In granting the State's moti on, the Board found it unnecessary to address "whether and if so to what extent, in some theoretical sense, the right to cross-examination granted to host states by the AEA may be different from those provided to parties under 10 C.F.R. Part 2."  Order at 5-6.
3witnesses for the simple reason that the Stat e was the only party who sought such relief. However, during a September 24, 2012 teleconference, the Board made clear that any party may seek a similar right upon oral motion at the hearing. Tr. at 1241-42. The Board also made clear that the State's right to cross-examination is not unfettered, is limited to matters that are not redundant of matters the Board has already covered, and that the Board will terminate any cross-examination it believes does not serve the purpos e of advancing the record. Tr. at 1237-43.
Accordingly, Entergy is not prejudiced by the Board's exerci se of discretion regarding the conduct of the impending hear ing. Moreover, Entergy's instant motion asserts that cross-examination is not necessary; as such it is welcom e to disregard the Board's offer to consider a request for cross at the hearing. However, Entergy should not be heard to deny the State or other parties that right granted by the Board under the Board's authority. ARGUMENT POINT I ENTERGY HAS NOT MET THE STANDARD FOR INTERLOCUTORY REVIEW A party seeking interlocutor y review must show that the issue to be reviewed:
(i) Threatens the party adve rsely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated through a petition for review of the presiding officer's final decision; or (ii) Affects the basic structure of the proceeding in a pervasive or unusual manner. Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Station0, 2011 WL 6854157 (Dec. 22, 2011)) at 5. The limited relief affo rded the State - and all other parties - by the Board's Order and subsequent telephone conference is by no means "pervasive" or "unusual."  Rather, the Board has granted relief contemplated and authorized by the Commission under Subpart L, and limited cross-examination to only those questions th at are not relevant, 4 reasonable and repetitive of questions the Bo ard itself has already asked. Tr. 1236-38. The Order by no means "subject[s] Entergy's witnesses to wide-ranging cross-examination by New York with no reciprocal equal opportunity for Entergy to cross-examine the State's witnesses" as Entergy has argued. Entergy Petition at 4. In fact, in response to similar concerns from NRC Staff - a party that was also given the right to seek cross-examination at the hearing - Chairman McDade said if the questions that are being asked by counsel for New York are repetitive, we are going to cut it off. If th ey are not relevant to the issues as we understand them, we are going to cut it off. On the othe r hand, if the Board feels that we are learning something, then we will go ahead and allow, again, a reasonable interrogation of the witness. But that is not an open-ended, that isn't ask anything you want if you're curious. 
Tr. at 1238:12-20. Entergy makes much of the Board's Order granting cross-examination to the State. But it is hardly unusual for a Board to grant relief only to the party seeki ng such relief; Entergy cites no authority for the proposition that when one party moves for relief, the Board should formally grant all non-moving parties identical relief. Entergy makes what amounts to an equitable argument that "New York has demonstrated no great er ability to assist the Board in developing an adequate record than Entergy or the NRC Staff" and requests identical relief, while simultaneously taking the position that cross examination is not necessary. Entergy Petition at 16, n.68. While Entergy did not move for cross-examination, it nevert heless asserts that "[c]ommon sense and fairness dictate that each side in an adjudicatory proceeding should have an equal opportunity to be heard."
Id. at 15. As plainly demonstrated by the Transcript, the Board acknowledged the need for fairness at the hearing, and stated that it will allow even non-moving parties like Entergy the right to propose to ask cross-examination questions at the hearing. Tr. 1241-43. Contrary to Entergy's characterizations, the Board has not acted in a 5"one-sided" or "unilateral"  manner.
Id. Moreover, it is unlikely that the limited cross-examination granted here will "threaten[] to undermine the Commission's longstanding efforts to develop more efficient hearing processes" (Entergy Petition at 15-16). If anything, the Board was clear that it intended to require all cross-examination to be focused and non-repetitive.
As the only Circuit court to have addressed the procedural rule changes NRC made to streamline license renewal proceedings, the First Circuit took great pains to emphasize the importance of cross-examination.
Citizens Awareness Network, Inc. v. United States , 391 F.3d 338, 354 (1st Cir. 2004).
The First Circuit held that, "[i]mportantly, however, the new rules do not completely do away with cross-examination. Rather, they leave its availability to th e discretion of the hearing officer."
Id. Noting that "[t]he [Administrative Procedure Act] does require that cross-examination be available when 'required for a full and true disclosure of the facts,'" the First Circuit found that "[h]ad the new rules abolished cross-examination entirely, we might well find the Commission's action insupportable."
Id. Finding cross-examination necessary to develop a full record, the Board's Order here is directly in line with Citizens Awareness and NRC regulations.
Entergy's procedural omissions do not form the basis for a proper motion for interlocutory review. Nor has Entergy been prejudiced by the Board' s granting the State's motion for cross-examination. Moreover, since Entergy does not believe cross-examination is necessary, it is hard to understand how the Bo ard's willingness to a llow it to conduct cross-examination upon a proper showing at the he aring is critical enough to warrant the Commission's intervention.
6 POINT II  THE BOARD HAS GRANTED RELIEF THAT IS AUTHORIZED  BY THE COMMISSION'S SUBPART L REGULATIONS, AND WHICH IS  SQUARELY WITHIN THE BOARD'S DISCRETION AND AUTHORITY Contrary to Entergy's characterizations, th e Board did not grant the State wide-ranging relief, but granted only limited re lief pursuant to Subpart L regulations. This action was squarely within the Board's discretion and authority and should be upheld by the Commission. Under 10 C.F.R. § 2.319, "A presiding officer has the duty to conduct a fair and impartial hearing according to law, to take appropriate action to control the prehearing and hearing process, to avoid delay and to maintain order.
The presiding officer has all the powers necessary to those ends[.]"  10 C.F.R. § 2.319. The Board, in granting limited reli ef authorized under the Commission's regulations, and upon the State's motion, acted well within its authority under 10 C.F.R. § 2.319. The Board decided that allowing the State - and upon oral motion, other parties - to conduct limited, non-repetitive cross-examinati on would further the goals of creating a full administrative record. This determination is expressly included in the Board's authority.
See 10 C.F.R. § 2.1204 ("The presiding officer shall allow cross-examination by the parties only if the presiding officer determines that cross-examination by the parties is necessary to ensure the development of an adequate record for decision."
). Entergy's assertion that no adjudicatory proceeding to date has included a grant of cross-examination rights is irrelevant; the Commission's regulations provide for such relief and contemplate proceedings employing this provision. Moreover, the breadth and complexity of this proceeding makes it likely  that the Board has already received and prepared extensive cross-examination plans. Thus, it is possible that neither the State nor other parties will see fit to ask additional questions at the conclusion of the Board's examination of the parties' experts. The Board has made clear that should any party go 7beyond the focused cross-examination it has authorized, it will limit such questioning. Tr. 1238, 1243. Finally, there is no "inequity" here. Entergy did not move for cross-examination rights, and yet it has been afforded the opportunity -
upon a proper showing at the hearing - to cross-examine witnesses. Entergy cannot claim to have been aggrieved when it has gained procedural rights that it had neglected to seek for itself.
As noted above, if Entergy does not believe cross-examination will be necessary, then presumably it will seek to ask no questions at the hearing.
That is Entergy's choice.
POINT III  A STAY OF THE PROCEEDING IS NOT WARRANTED AND  WOULD BE HIGHLY PREJUDICIAL TO ALL PARTIES AND THE BOARD
Entergy correctly recites the four factors the Commi ssion considers upon receiving a request for a stay under 10 C.F.R. § 2.342(e): (1) whether the moving party has made a strong showing that it is likely to prevail on the merits; (2) whether that party will be irreparably injured unless a stay is granted; (3) whet her the granting of a stay would harm the other parties; and (4) where the public interest lies. Entergy Application for Stay at 4. Under this test, Entergy has not only failed to demonstrate that a stay of the Oct ober 15, 2012 hearing is warra nted, it is clear that a stay at this late date would prejudice the Board and other parties to the proceeding and is contrary to the public interest.
Where a party seeks a stay of proceedings, the Commission has stated that "irreparable injury is the most important. Specifically, '[a] party seeking a stay must show it faces imminent, irreparable harm that is both 'certain and great.'"
S. Nuclear Operating Co. (Vogtle Electric Generating Plant Units 3 and 4), CLI-12-11, 75 N.R.C. __, slip op. at 3 (Apr. 16, 2012).
8"Proponents of a stay who fail to demonstrate irreparable injury will not prevail unless they demonstrate that their success on the merits is a "virtual certainty," a burden the Commission deems a "high standard."
Vogtle, CLI-12-11, at 5. Entergy has not shown that it will suffer irreparable harm, and indeed has not met any of the four factors articulated in 10 C.F.R.
§ 2.342(e). As the Commission has ruled, interlocutory review is reserved for "extraordinary circumstances."
Pacific Gas And Electric Company (Diablo Canyon Nuclear Power Plant,  Units 1 and 2, CLI-12-13, 75 N.R.C. __  (June 7, 2012). Entergy has not articulated how it will be harmed by the State conducting limited cross-examination following the Board's examination of expert witnesses; it states only that additional hearing time may be devoted to the State's questions, and that "[i]t is difficult to imagine a more 'pervasive' and 'unusual' effect on the basic structure of a proceeding."
Entergy Petition at 9. Certainly the Board's provision of relief allowed under Commission regulations is far from "pervasive and unusual."  As the September 24, 2012 teleconference demonstrated, the Board is fully cognizant of the need to conducting a fair and efficient hearing, and intends to do s
: o. Tr. 1236-43. Entergy has not shown it will prevail on the merits. Entergy has not shown that it will be irreparably injured if the Board's Order remains in effect. In fact, Entergy has ga ined, not lost, procedural rights, without having made a formal motion. The cross-examination right granted to th e State and upon oral app lication, other parties, is narrow and limited. Similarly, Entergy therefore has not met the second factor for a stay. Having failed to make a showing regarding the first two factors, Vogtle , CLI-12-11 at 3, the Commission need not look any further. That said, it is the third factor that Entergy has most greatly mischaracterized. Contrary 9to Entergy's claim that "A Stay Would Not Harm New York or Any Other Party" (Entergy Application for Stay at 7), the other parties and the Board will be significantly prejudiced if the hearing does not go forward on its scheduled ti metable. Entergy states without support or discussion that a stay would not prejudice any pa rty. Entergy Application for Stay at 7. But Entergy did not indicate to the Board or parties, though it had multiple opportunities to do so (including during the September 24, 2012 Board tele conference dedicated exclusively to hearing logistics) that it intended to seek review of the Board's Order or request a stay of the proceeding. Nor did Entergy conduct consultation with parties. As such, the Board has issued multiple orders relating to the structure of the hearing, in reliance upon which the State alone has arranged travel and accommodations for 17 counsel and witnesses traveling from locations in New York State, the eastern United States, and Canada, a number which is significantly larger for other parties. Given that only 3 of the 12 contentions being heard during the October "Track One" phase of this hearing belong to parties other than the State, th e State would be considerably prejudiced should the hearing no t go forward as scheduled. In addition to the expense of rescheduling travel and accommodations, counsel and witnesses have other matters that have been rescheduled, postponed, or r eassigned to colleagues, the reversal of which would cause further hardship to all involved. In addition to the impact of a rescheduled or reordered hearing on the State's counsel and witnesses, the same or similar prejudice would likely accrue to the Board, law clerks, Staff counsel and witnesses, Riverkeeper and Clearwater counsel and witnesses, and interested governmental entities. Finally, Entergy states in conclusory fashion that "[t]he public interest is served by a full, fair, efficient, and impartial adjudication of Entergy's license renewa l application." Entergy Application for Stay at 8. While the State agrees with Entergy's statem ent taken alone, plainly 10full and fair adjudication will be accomplished through the application of the limited cross-examination rights provided by the regulations and granted to parties by the Board. CONCLUSION  For the above-stated reasons, Entergy's Pe tition and Application for Stay should be denied. Signed (electronically) by
_______________________
Janice A. Dean Assistant Attorney General
120 Broadway, 26th Floor
New York, New York 12224
(212) 416-8459 Dated: October 1, 2012 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. October 1, 2012
------------------
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-----------x CERTIFICATE OF SERVICE I hereby certify that on October 1, 2012, copies of the State Of New York Combined Opposition To Entergy's Requests For Emergency Stay A nd Interlocutory Review Of The Board Order Granting Limited Cross-Examination, were served upon the following persons via Electronic Information Exchange ("EIE") at the following addresses:
Lawrence G. McDade, Chair Administrative Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North
11545 Rockville Pike
Rockville, MD 20852-2738
Lawrence.McDade@nrc.gov
Richard E. Wardwell Administrative Judge Atomic Safety and Licensing Board Panel
U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North
11545 Rockville Pike
Rockville, MD 20852-2738 Richard.Wardwell@nrc.gov
Michael F. Kennedy Administrative Judge Atomic Safety and Licensing Board Panel
U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North
11545 Rockville Pike
Rockville, MD 20852-2738
Michael.Kennedy@nrc.gov
Atomic Safety and Licensing Board Panel
U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North
11545 Rockville Pike
Rockville, MD 20852-2738
Shelbie Lewman, Esq. Law Clerk Anne Siarnacki, Esq., Law Clerk Atomic Safety and Licensing Board Panel
U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North
11545 Rockville Pike
Rockville, MD 20852-2738 Shelbie.Lewman@nrc.gov
Anne.Siarnacki@nrc.gov
Office of Commission Appellate
Adjudication
U.S. Nuclear Regulatory Commission Mailstop 16 G4 One White Flint North
11555 Rockville Pike
Rockville, MD 20852-2738 ocaamail@nrc.gov
Office of the Secretary Attn: Rulemaking and Adjudications Staff
U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North
11545 Rockville Pike Rockville, MD 20852-2738 hearingdocket@nrc.gov
Sherwin E. Turk, Esq.
David E. Roth, Esq.
Beth N. Mizuno, Esq.
Brian G. Harris, Esq.
Anita Ghosh, Esq.
Joseph A. Lindell, Esq.
Office of the General Counsel
U.S. Nuclear Regulatory Commission Mailstop 15 D21 One White Flint North
11555 Rockville Pike
Rockville, MD 20852-2738
sherwin.turk@nrc.gov
david.roth@nrc.gov beth.mizuno@nrc.gov
brian.harris@nrc.gov
anita.ghosh@nrc.gov Joseph.Lindell@nrc.gov
Kathryn M. Sutton, Esq.
Paul M. Bessette, Esq.
Jonathan Rund, Esq.
Raphael Kuyler, Esq.
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW
Washington, DC 20004 ksutton@morganlewis.com pbessette@morganlewis.com jrund@morganlewis.com rkuyler@morganlewis.com
Martin J. O'Neill, Esq.
Morgan, Lewis & Bockius LLP
Suite 4000
1000 Louisiana Street
Houston, TX 77002 martin.o'neill@morganlewis.com
Bobby R. Burchfield, Esq.
Matthew M. Leland, Esq.
Clint A. Carpenter, Esq.
McDermott Will & Emery LLC 600 13th Street, NW Washington, DC 20005-3096 bburchfield@mwe.com mleland@mwe.com ccarpenter@mwe.com
Richard A. Meserve, Esq.
Covington & Burling LLP 1201 Pennsylvania Avenue, NW
Washington, DC 20004-2401 rmeserve@cov.com
Elise N. Zoli, Esq.
Goodwin Procter, LLP
Exchange Place
53 State Street
Boston, MA 02109 ezoli@goodwinprocter.com
William C. Dennis, Esq.
Assistant General Counsel
Entergy Nuclear Operations, Inc.
440 Hamilton Avenue
White Plains, NY 10601 wdennis@entergy.com
Robert D. Snook, Esq.
Assistant Attorney General Office of the Attorney General
State of Connecticut 55 Elm Street
P.O. Box 120
Hartford, CT 06141-0120
robert.snook@ct.gov
Melissa-Jean Rotini, Esq.
Assistant County Attorney Office of the Westchester County Attorney Michaelian Office Building
148 Martine Avenue, 6th Floor
White Plains, NY 10601 MJR1@westchestergov.com
Daniel E. O'Neill, Mayor James Seirmarco, M.S. Village of Buchanan Municipal Building
236 Tate Avenue
Buchanan, NY 10511-1298
vob@bestweb.net
Daniel Riesel, Esq.
Thomas F. Wood, Esq.
Victoria S. Treanor, Esq.
Sive, Paget & Riesel, P.C.
460 Park Avenue
New York, NY 10022 driesel@sprlaw.com vtreanor@sprlaw.com
Michael J. Delaney, Esq.
Director Energy Regulatory Affairs NYC Department of Environmental
Protection 59-17 Junction Boulevard Flushing, NY 11373
(718) 595-3982
mdelaney@dep.nyc.gov
Manna Jo Greene, Director Karla Raimundi, Environmental Justice
Associate Stephen Filler, Esq., Board Member
Hudson River Sloop Clearwater, Inc.
724 Wolcott Avenue
Beacon, NY 12508 Mannajo@clearwater.org
karla@clearwater.org stephenfiller@gmail.com
Phillip Musegaas, Esq.
Deborah Brancato, Esq.
Riverkeeper, Inc.
20 Secor Road
Ossining, NY 10562
phillip@riverkeeper.org dbrancato@riverkeeper.org
Signed (electronically) by
____________________________________        Janice A. Dean Assistant Attorney General State of New York (212) 416-8459
Dated at New York, New York
this 1st day of October, 2012}}

Revision as of 20:49, 1 August 2018

State of New York Combined Opposition to Entergy'S Request for Emergency Stay and Interlocutory Review of the Board Granting Limited Cross Examination
ML12275A327
Person / Time
Site: Indian Point  Entergy icon.png
Issue date: 10/01/2012
From:
State of NY, Office of the Attorney General
To:
Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 23544, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01
Download: ML12275A327 (17)
v • d • e


Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

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. October 1, 2012

x

STATE OF NEW YORK COMBINED OPPOSITION TO ENTERGY'S REQUESTS FOR EMERGENCY STAY AND INTERLOCUTORY REVIEW OF THE BOARD ORDER GRANTING LIMITED CROSS-EXAMINATION

Office of the Attorney

General for the State of New York

The Capitol

State Street

Albany, New York 12224 iTABLE OF CONTENTS PRELIMINARY STATEMENT

.--.1

The Board's September 21, 2012 Order

.----.2

The Board's September 24, 2012 Teleconference

.----..2

ARGUMENT-----------------------------..3 POINT I ENTERGY HAS NOT MET THE STANDARD FOR INTERLOCUTORY REVIEW

...3 POINT II

THE BOARD HAS GRANTED RELIEF THAT IS AUTHORIZED BY THE COMMISSION'S SUBPART L REGULATIONS, AND WHICH IS SQUARELY WITHIN THE BOARD'S DISCRETION AND AUTHORITY

6 POINT III

A STAY OF THE PROCEEDING IS NOT WARRANTED AND WOULD BE HIGHLY PREJUDICIAL TO ALL PARTIES AND THE BOARD

7 CONCLUSION

10 iiTABLE OF AUTHORITIES FEDERAL CASES Citizens Awareness Network v. United States , 391 F.3d 338 (1st Cir. 2004)-----..5 FEDERAL STATUTES 10 C.F.R.

§ 2.319----------------------------.6 10 C.F.R.

§ 2.342(e)---------------------------.7 10 C.F.R. § 2.1204---------------.-----------..2, 6 NUCLEAR REGULATORY COMMISSION DECISIONS Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Station), 2011 WL 6854157 (Dec. 22, 2011))----------------...-.4 Pacific Gas And Electric Company (Diablo Canyon Nuclear Power Plant), Units 1 and 2, CLI-12-13, 75 N.R.C. __ (June 7, 2012)----------.8

S. Nuclear Operating Co. (Vogtle Electric Generating Plant Units 3 and 4), CLI-12-11, 75 N.R.C. __ (Apr. 16, 2012)------------...--7, 8 1PRELIMINARY STATEMENT On Friday, September 28, 2012, Entergy file d two requests for relief from the Commission: (1) a petition seeking expedited inte rlocutory review of th e Board's Order granting the State of New York limited cross-examination rights 1 at the relicensing hearing currently scheduled to begin in two weeks; and (2) an application for a stay of the hearing pending resolution of its petition for review.

2 Entergy argues that cross-examination is not necessary, that it should have the right to conduct cross-examina tion - which opportunity has already been given by the Board in the teleconference that followed issuance of the Order, as Entergy acknowledges

- and that the Board's authorization of cross-examination allowed by 10 C.F.R.

§ 2.1204 is pervasive and unusual, warranti ng Commission intervention. Entergy's arguments lack merit. Entergy has raised no issues warranting emer gency review. Rather, these requests are Entergy's belated attempt to obtain relief it could have sought from th e Board, but did not. Entergy's failure to seek relief from the Board at the appropriate time does not warrant Commission review now.

3 Entergy has not shown that it is adversely affected by the Board's 1 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Ge nerating Station), Docket Nos. 50-247-LR and 50-286-LR, Atomic Safety and Licensing Board Order (Granting, in part, New York's Motion for Cross Examinati on) (Sept. 21, 2012)(unpublished) ("Order").See Entergy's Application to Stay Board Order Granting Cross- Examination to New York State Or, In The Alternative, to Grant a Partial Stay of the Hearing Pending the Commission's Decision on Entergy's Emergency Petition for Interlocutory Review, (Sept. 28, 2012) ("Entergy Application for Stay") and Entergy's Emergency Petition for Interlocutory Review of Board Order Granting Cross-Examin ation to New York State And Request For Expedited Briefing (Sept. 28, 2012)("Entergy Petiti on"). Had Entergy called this a "motion," it would have been obligated to consult with parties pursuant to 10 C.F.R.

§ 2.323. It is not clear to the State that an "application" can properly escape these provisions; in any event, Entergy conducted no consultation and provided no notice to the Board or part ies during pre-hearing discussions that it woul d be requesting a stay. 3 Entergy, in opposing the State's motion for cross-examination, indica ted in a footnote that should the Board grant the State's motion, it wanted the same relief. The Board did not 2Order; in fact, Entergy has benefitted from the Board's Order and subsequent statements because Entergy and the other parties gained the right to cross-examin e experts, upon a proper showing, despite not having moved for such relief at the appropriate time. Official Transcript of Proceedings, Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Station), Teleconference (Sept. 24, 2012) ("Tr.") at 1236-

43. A stay of the evidentiary hearing -

scheduled to begin in two weeks - would prejudice all parties and the Board. In sum, Entergy's Petition and Application should both be denied.

The Board's September 21, 2012 Order On September 21, 2012, the Board granted the State of New York's motion seeking the right to cross-examination at the evidentiary hearing. Orde r at 6-7 (citing 10 C.F.R. § 2.1204(b)(3)).

4 The Board explained that "New York may examine witnesses after the Board's examination, so long as New York's questions are relevant, reasonable, and nonrepetitive."

Order at 7. Noting that "the pre-filed testimony and exhibits in this proceeding are voluminous and technical," the Board found cross-examination "necessary to ensure development of an adequate record for this proceeding."

Id. at 6. The Board's September 24, 2012 Teleconference The Board's Order granted only the State of New York the right to cross-examine consider this the equivalent of a motion. As the Chair stated during the te leconference, "at this point the only party that submitted a request to do examination is New York, nobody else has.

Entergy hasn't, the NRC Staff hasn

't, Clearwater hasn't, Riverkeep er hasn't. At this point, the only one who has made the request and filed the motion is New York." Tr. 1237:13-19. 4 In its August 8, 2012 motion, the State sough t to invoke its statut orily-granted cross-examination rights under Section 274(l) of the Atomic Energy Act. State of New York Motion to Implement Statutorily-Granted Cross-Examination Rights Under Atomic Energy Act § 274(l) (Aug. 8, 2012). In granting the State's moti on, the Board found it unnecessary to address "whether and if so to what extent, in some theoretical sense, the right to cross-examination granted to host states by the AEA may be different from those provided to parties under 10 C.F.R. Part 2." Order at 5-6.

3witnesses for the simple reason that the Stat e was the only party who sought such relief. However, during a September 24, 2012 teleconference, the Board made clear that any party may seek a similar right upon oral motion at the hearing. Tr. at 1241-42. The Board also made clear that the State's right to cross-examination is not unfettered, is limited to matters that are not redundant of matters the Board has already covered, and that the Board will terminate any cross-examination it believes does not serve the purpos e of advancing the record. Tr. at 1237-43.

Accordingly, Entergy is not prejudiced by the Board's exerci se of discretion regarding the conduct of the impending hear ing. Moreover, Entergy's instant motion asserts that cross-examination is not necessary; as such it is welcom e to disregard the Board's offer to consider a request for cross at the hearing. However, Entergy should not be heard to deny the State or other parties that right granted by the Board under the Board's authority. ARGUMENT POINT I ENTERGY HAS NOT MET THE STANDARD FOR INTERLOCUTORY REVIEW A party seeking interlocutor y review must show that the issue to be reviewed:

(i) Threatens the party adve rsely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated through a petition for review of the presiding officer's final decision; or (ii) Affects the basic structure of the proceeding in a pervasive or unusual manner. Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Station0, 2011 WL 6854157 (Dec. 22, 2011)) at 5. The limited relief affo rded the State - and all other parties - by the Board's Order and subsequent telephone conference is by no means "pervasive" or "unusual." Rather, the Board has granted relief contemplated and authorized by the Commission under Subpart L, and limited cross-examination to only those questions th at are not relevant, 4 reasonable and repetitive of questions the Bo ard itself has already asked. Tr. 1236-38. The Order by no means "subject[s] Entergy's witnesses to wide-ranging cross-examination by New York with no reciprocal equal opportunity for Entergy to cross-examine the State's witnesses" as Entergy has argued. Entergy Petition at 4. In fact, in response to similar concerns from NRC Staff - a party that was also given the right to seek cross-examination at the hearing - Chairman McDade said if the questions that are being asked by counsel for New York are repetitive, we are going to cut it off. If th ey are not relevant to the issues as we understand them, we are going to cut it off. On the othe r hand, if the Board feels that we are learning something, then we will go ahead and allow, again, a reasonable interrogation of the witness. But that is not an open-ended, that isn't ask anything you want if you're curious.

Tr. at 1238:12-20. Entergy makes much of the Board's Order granting cross-examination to the State. But it is hardly unusual for a Board to grant relief only to the party seeki ng such relief; Entergy cites no authority for the proposition that when one party moves for relief, the Board should formally grant all non-moving parties identical relief. Entergy makes what amounts to an equitable argument that "New York has demonstrated no great er ability to assist the Board in developing an adequate record than Entergy or the NRC Staff" and requests identical relief, while simultaneously taking the position that cross examination is not necessary. Entergy Petition at 16, n.68. While Entergy did not move for cross-examination, it nevert heless asserts that "[c]ommon sense and fairness dictate that each side in an adjudicatory proceeding should have an equal opportunity to be heard."

Id. at 15. As plainly demonstrated by the Transcript, the Board acknowledged the need for fairness at the hearing, and stated that it will allow even non-moving parties like Entergy the right to propose to ask cross-examination questions at the hearing. Tr. 1241-43. Contrary to Entergy's characterizations, the Board has not acted in a 5"one-sided" or "unilateral" manner.

Id. Moreover, it is unlikely that the limited cross-examination granted here will "threaten[] to undermine the Commission's longstanding efforts to develop more efficient hearing processes" (Entergy Petition at 15-16). If anything, the Board was clear that it intended to require all cross-examination to be focused and non-repetitive.

As the only Circuit court to have addressed the procedural rule changes NRC made to streamline license renewal proceedings, the First Circuit took great pains to emphasize the importance of cross-examination.

Citizens Awareness Network, Inc. v. United States , 391 F.3d 338, 354 (1st Cir. 2004).

The First Circuit held that, "[i]mportantly, however, the new rules do not completely do away with cross-examination. Rather, they leave its availability to th e discretion of the hearing officer."

Id. Noting that "[t]he [Administrative Procedure Act] does require that cross-examination be available when 'required for a full and true disclosure of the facts,'" the First Circuit found that "[h]ad the new rules abolished cross-examination entirely, we might well find the Commission's action insupportable."

Id. Finding cross-examination necessary to develop a full record, the Board's Order here is directly in line with Citizens Awareness and NRC regulations.

Entergy's procedural omissions do not form the basis for a proper motion for interlocutory review. Nor has Entergy been prejudiced by the Board' s granting the State's motion for cross-examination. Moreover, since Entergy does not believe cross-examination is necessary, it is hard to understand how the Bo ard's willingness to a llow it to conduct cross-examination upon a proper showing at the he aring is critical enough to warrant the Commission's intervention.

6 POINT II THE BOARD HAS GRANTED RELIEF THAT IS AUTHORIZED BY THE COMMISSION'S SUBPART L REGULATIONS, AND WHICH IS SQUARELY WITHIN THE BOARD'S DISCRETION AND AUTHORITY Contrary to Entergy's characterizations, th e Board did not grant the State wide-ranging relief, but granted only limited re lief pursuant to Subpart L regulations. This action was squarely within the Board's discretion and authority and should be upheld by the Commission. Under 10 C.F.R. § 2.319, "A presiding officer has the duty to conduct a fair and impartial hearing according to law, to take appropriate action to control the prehearing and hearing process, to avoid delay and to maintain order.

The presiding officer has all the powers necessary to those ends[.]" 10 C.F.R. § 2.319. The Board, in granting limited reli ef authorized under the Commission's regulations, and upon the State's motion, acted well within its authority under 10 C.F.R. § 2.319. The Board decided that allowing the State - and upon oral motion, other parties - to conduct limited, non-repetitive cross-examinati on would further the goals of creating a full administrative record. This determination is expressly included in the Board's authority.

See 10 C.F.R. § 2.1204 ("The presiding officer shall allow cross-examination by the parties only if the presiding officer determines that cross-examination by the parties is necessary to ensure the development of an adequate record for decision."

). Entergy's assertion that no adjudicatory proceeding to date has included a grant of cross-examination rights is irrelevant; the Commission's regulations provide for such relief and contemplate proceedings employing this provision. Moreover, the breadth and complexity of this proceeding makes it likely that the Board has already received and prepared extensive cross-examination plans. Thus, it is possible that neither the State nor other parties will see fit to ask additional questions at the conclusion of the Board's examination of the parties' experts. The Board has made clear that should any party go 7beyond the focused cross-examination it has authorized, it will limit such questioning. Tr. 1238, 1243. Finally, there is no "inequity" here. Entergy did not move for cross-examination rights, and yet it has been afforded the opportunity -

upon a proper showing at the hearing - to cross-examine witnesses. Entergy cannot claim to have been aggrieved when it has gained procedural rights that it had neglected to seek for itself.

As noted above, if Entergy does not believe cross-examination will be necessary, then presumably it will seek to ask no questions at the hearing.

That is Entergy's choice.

POINT III A STAY OF THE PROCEEDING IS NOT WARRANTED AND WOULD BE HIGHLY PREJUDICIAL TO ALL PARTIES AND THE BOARD

Entergy correctly recites the four factors the Commi ssion considers upon receiving a request for a stay under 10 C.F.R. § 2.342(e): (1) whether the moving party has made a strong showing that it is likely to prevail on the merits; (2) whether that party will be irreparably injured unless a stay is granted; (3) whet her the granting of a stay would harm the other parties; and (4) where the public interest lies. Entergy Application for Stay at 4. Under this test, Entergy has not only failed to demonstrate that a stay of the Oct ober 15, 2012 hearing is warra nted, it is clear that a stay at this late date would prejudice the Board and other parties to the proceeding and is contrary to the public interest.

Where a party seeks a stay of proceedings, the Commission has stated that "irreparable injury is the most important. Specifically, '[a] party seeking a stay must show it faces imminent, irreparable harm that is both 'certain and great.'"

S. Nuclear Operating Co. (Vogtle Electric Generating Plant Units 3 and 4), CLI-12-11, 75 N.R.C. __, slip op. at 3 (Apr. 16, 2012).

8"Proponents of a stay who fail to demonstrate irreparable injury will not prevail unless they demonstrate that their success on the merits is a "virtual certainty," a burden the Commission deems a "high standard."

Vogtle, CLI-12-11, at 5. Entergy has not shown that it will suffer irreparable harm, and indeed has not met any of the four factors articulated in 10 C.F.R.

§ 2.342(e). As the Commission has ruled, interlocutory review is reserved for "extraordinary circumstances."

Pacific Gas And Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2, CLI-12-13, 75 N.R.C. __ (June 7, 2012). Entergy has not articulated how it will be harmed by the State conducting limited cross-examination following the Board's examination of expert witnesses; it states only that additional hearing time may be devoted to the State's questions, and that "[i]t is difficult to imagine a more 'pervasive' and 'unusual' effect on the basic structure of a proceeding."

Entergy Petition at 9. Certainly the Board's provision of relief allowed under Commission regulations is far from "pervasive and unusual." As the September 24, 2012 teleconference demonstrated, the Board is fully cognizant of the need to conducting a fair and efficient hearing, and intends to do s

o. Tr. 1236-43. Entergy has not shown it will prevail on the merits. Entergy has not shown that it will be irreparably injured if the Board's Order remains in effect. In fact, Entergy has ga ined, not lost, procedural rights, without having made a formal motion. The cross-examination right granted to th e State and upon oral app lication, other parties, is narrow and limited. Similarly, Entergy therefore has not met the second factor for a stay. Having failed to make a showing regarding the first two factors, Vogtle , CLI-12-11 at 3, the Commission need not look any further. That said, it is the third factor that Entergy has most greatly mischaracterized. Contrary 9to Entergy's claim that "A Stay Would Not Harm New York or Any Other Party" (Entergy Application for Stay at 7), the other parties and the Board will be significantly prejudiced if the hearing does not go forward on its scheduled ti metable. Entergy states without support or discussion that a stay would not prejudice any pa rty. Entergy Application for Stay at 7. But Entergy did not indicate to the Board or parties, though it had multiple opportunities to do so (including during the September 24, 2012 Board tele conference dedicated exclusively to hearing logistics) that it intended to seek review of the Board's Order or request a stay of the proceeding. Nor did Entergy conduct consultation with parties. As such, the Board has issued multiple orders relating to the structure of the hearing, in reliance upon which the State alone has arranged travel and accommodations for 17 counsel and witnesses traveling from locations in New York State, the eastern United States, and Canada, a number which is significantly larger for other parties. Given that only 3 of the 12 contentions being heard during the October "Track One" phase of this hearing belong to parties other than the State, th e State would be considerably prejudiced should the hearing no t go forward as scheduled. In addition to the expense of rescheduling travel and accommodations, counsel and witnesses have other matters that have been rescheduled, postponed, or r eassigned to colleagues, the reversal of which would cause further hardship to all involved. In addition to the impact of a rescheduled or reordered hearing on the State's counsel and witnesses, the same or similar prejudice would likely accrue to the Board, law clerks, Staff counsel and witnesses, Riverkeeper and Clearwater counsel and witnesses, and interested governmental entities. Finally, Entergy states in conclusory fashion that "[t]he public interest is served by a full, fair, efficient, and impartial adjudication of Entergy's license renewa l application." Entergy Application for Stay at 8. While the State agrees with Entergy's statem ent taken alone, plainly 10full and fair adjudication will be accomplished through the application of the limited cross-examination rights provided by the regulations and granted to parties by the Board. CONCLUSION For the above-stated reasons, Entergy's Pe tition and Application for Stay should be denied. Signed (electronically) by

_______________________

Janice A. Dean Assistant Attorney General

120 Broadway, 26th Floor

New York, New York 12224

(212) 416-8459 Dated: October 1, 2012 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

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. October 1, 2012

x CERTIFICATE OF SERVICE I hereby certify that on October 1, 2012, copies of the State Of New York Combined Opposition To Entergy's Requests For Emergency Stay A nd Interlocutory Review Of The Board Order Granting Limited Cross-Examination, were served upon the following persons via Electronic Information Exchange ("EIE") at the following addresses:

Lawrence G. McDade, Chair Administrative Judge Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North

11545 Rockville Pike

Rockville, MD 20852-2738

Lawrence.McDade@nrc.gov

Richard E. Wardwell Administrative Judge Atomic Safety and Licensing Board Panel

U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North

11545 Rockville Pike

Rockville, MD 20852-2738 Richard.Wardwell@nrc.gov

Michael F. Kennedy Administrative Judge Atomic Safety and Licensing Board Panel

U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North

11545 Rockville Pike

Rockville, MD 20852-2738

Michael.Kennedy@nrc.gov

Atomic Safety and Licensing Board Panel

U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North

11545 Rockville Pike

Rockville, MD 20852-2738

Shelbie Lewman, Esq. Law Clerk Anne Siarnacki, Esq., Law Clerk Atomic Safety and Licensing Board Panel

U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North

11545 Rockville Pike

Rockville, MD 20852-2738 Shelbie.Lewman@nrc.gov

Anne.Siarnacki@nrc.gov

Office of Commission Appellate

Adjudication

U.S. Nuclear Regulatory Commission Mailstop 16 G4 One White Flint North

11555 Rockville Pike

Rockville, MD 20852-2738 ocaamail@nrc.gov

Office of the Secretary Attn: Rulemaking and Adjudications Staff

U.S. Nuclear Regulatory Commission Mailstop 3 F23 Two White Flint North

11545 Rockville Pike Rockville, MD 20852-2738 hearingdocket@nrc.gov

Sherwin E. Turk, Esq.

David E. Roth, Esq.

Beth N. Mizuno, Esq.

Brian G. Harris, Esq.

Anita Ghosh, Esq.

Joseph A. Lindell, Esq.

Office of the General Counsel

U.S. Nuclear Regulatory Commission Mailstop 15 D21 One White Flint North

11555 Rockville Pike

Rockville, MD 20852-2738

sherwin.turk@nrc.gov

david.roth@nrc.gov beth.mizuno@nrc.gov

brian.harris@nrc.gov

anita.ghosh@nrc.gov Joseph.Lindell@nrc.gov

Kathryn M. Sutton, Esq.

Paul M. Bessette, Esq.

Jonathan Rund, Esq.

Raphael Kuyler, Esq.

Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, NW

Washington, DC 20004 ksutton@morganlewis.com pbessette@morganlewis.com jrund@morganlewis.com rkuyler@morganlewis.com

Martin J. O'Neill, Esq.

Morgan, Lewis & Bockius LLP

Suite 4000

1000 Louisiana Street

Houston, TX 77002 martin.o'neill@morganlewis.com

Bobby R. Burchfield, Esq.

Matthew M. Leland, Esq.

Clint A. Carpenter, Esq.

McDermott Will & Emery LLC 600 13th Street, NW Washington, DC 20005-3096 bburchfield@mwe.com mleland@mwe.com ccarpenter@mwe.com

Richard A. Meserve, Esq.

Covington & Burling LLP 1201 Pennsylvania Avenue, NW

Washington, DC 20004-2401 rmeserve@cov.com

Elise N. Zoli, Esq.

Goodwin Procter, LLP

Exchange Place

53 State Street

Boston, MA 02109 ezoli@goodwinprocter.com

William C. Dennis, Esq.

Assistant General Counsel

Entergy Nuclear Operations, Inc.

440 Hamilton Avenue

White Plains, NY 10601 wdennis@entergy.com

Robert D. Snook, Esq.

Assistant Attorney General Office of the Attorney General

State of Connecticut 55 Elm Street

P.O. Box 120

Hartford, CT 06141-0120

robert.snook@ct.gov

Melissa-Jean Rotini, Esq.

Assistant County Attorney Office of the Westchester County Attorney Michaelian Office Building

148 Martine Avenue, 6th Floor

White Plains, NY 10601 MJR1@westchestergov.com

Daniel E. O'Neill, Mayor James Seirmarco, M.S. Village of Buchanan Municipal Building

236 Tate Avenue

Buchanan, NY 10511-1298

vob@bestweb.net

Daniel Riesel, Esq.

Thomas F. Wood, Esq.

Victoria S. Treanor, Esq.

Sive, Paget & Riesel, P.C.

460 Park Avenue

New York, NY 10022 driesel@sprlaw.com vtreanor@sprlaw.com

Michael J. Delaney, Esq.

Director Energy Regulatory Affairs NYC Department of Environmental

Protection 59-17 Junction Boulevard Flushing, NY 11373

(718) 595-3982

mdelaney@dep.nyc.gov

Manna Jo Greene, Director Karla Raimundi, Environmental Justice

Associate Stephen Filler, Esq., Board Member

Hudson River Sloop Clearwater, Inc.

724 Wolcott Avenue

Beacon, NY 12508 Mannajo@clearwater.org

karla@clearwater.org stephenfiller@gmail.com

Phillip Musegaas, Esq.

Deborah Brancato, Esq.

Riverkeeper, Inc.

20 Secor Road

Ossining, NY 10562

phillip@riverkeeper.org dbrancato@riverkeeper.org

Signed (electronically) by

____________________________________ Janice A. Dean Assistant Attorney General State of New York (212) 416-8459

Dated at New York, New York

this 1st day of October, 2012

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