ML13329A928

State of New York Motion for Leave to Submit Recently-Issued Ruling by New York State Public Service Commission as an Additional Exhibit Concerning Contention NYS-37

ML13329A928
Person / Time
Site:	Indian Point
Issue date:	11/25/2013
From:	Sipos J State of NY, Office of the Attorney General
To:	Atomic Safety and Licensing Board Panel
SECY RAS
Shared Package
ML13329A927	List: ML13329A928 ML13329A930
References
50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01, RAS 25352
Download: ML13329A928 (9)

Text

UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

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x In re: Docket Nos. 50-247-LR; 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. November 25, 2013

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x STATE OF NEW YORK MOTION FOR LEAVE TO SUBMIT RECENTLY-ISSUED RULING BY NEW YORK STATE PUBLIC SERVICE COMMISSION AS AN ADDITIONAL EXHIBIT CONCERNING CONTENTION NYS-37 Office of the Attorney General for the State of New York The Capitol State Street Albany, New York 12224

The State of New York respectfully requests leave from the Atomic Safety and Licensing Board to submit the November 4, 2013 decision by the New York State Public Service Commission in Case 12-E-0503 as an exhibit in connection with Contention NYS-37.

Riverkeeper and Clearwater do not oppose this motion, while Entergy and NRC Staff oppose the admission of the proposed exhibit.

Factual and Procedural Background In the December 2010 Final Supplemental Environmental Impact Statement (NYS00133A/J) prepared for the proposed renewal of the operating licenses of the Indian Point Unit 2 and Indian Point Unit 3 facilities, NRC Staff discussed the no-action alternative (§8.2) and alternative energy sources (§8.3). In Section 8, the EIS also discussed purchased power and transmission issues (§8.3.2), energy efficiency (§8.3.3), and combinations of alternatives (§8.3.5) and cited previous PSC orders (§8.5). Among other things, the EIS discusses constraints or bottlenecks in the distribution system (§8.3.2).

In October 2012, the State presented the then-recently-issued New York State Energy Highway Blueprint (NYS00448A/B). 1 That report recommended, among other things, the upgrade/construction of transmission capabilities (e.g., 12, 37-41, 110) and the development of reliability contingency plans (e.g., 37, 48-49) for the potential retirement of Indian Point Unit 2 and Indian Point Unit 3.

Thereafter, on November 27, 2012 Public Service Commission announced certain initiatives to address various energy matters, including the commencement of a PSC proceeding examining the retirement of the Indian Point facilities (which subsequently was identified as Case 12-E-0503). PSC Press Release (NYS000466). During the evidentiary hearing before the NRC Atomic Safety and Licensing Board, evidence was presented concerning the Energy 1

This report was initially identified as Exhibit BRD000007. See Tr. 3168:7 (Oct. 24, 2012).

Highway Blueprint and the initiation of PSC proceeding 12-E-0503. See, e.g., Tr. 3264-3269 (Nov. 28, 2013); NYS00448A/B, NYS000466. The State presented this evidence in support of its argument that the EIS failed to adequately examine the no-action alternative and energy alternatives.

On November 4, 2013, the New York State Public Service Commission issued the underlying order. Order Accepting Indian Point Energy Center Reliability Contingency Plans, PSC Case 12-E-0503 (Nov. 4, 2013). Among other things, the PSC Order approved three transmission projects as well as energy efficiency, demand reduction, and combined heat and power programs. See, e.g., PSC Order, at 8-12, 24, 47. The ruling identified three Transmission Owner Transmission Solution (or TOTS) projects which are expected to contribute at least 600MW in the Lower Hudson Valley energy zones. PSC Order, at 8, 22. The identified energy efficiency, demand reduction, and combined heat and power programs are expected to contribute 125MW of electrical demand reduction. PSC Order, at 5. 2 The order and its appendix reflect that Entergy and others participated in PSC proceeding 12-E-0503. See, e.g., PSC Order, at 42, 44, id., at Appendix A, 7-10.

Given the nature of the PSC ruling and its apparent relevance to Staffs EIS, the State brought it to the attention of the Board and the parties in this proceeding. 3 In a subsequent filing, Entergy questioned the States notice of the PSC ruling and Entergys opportunity to respond. 4 Following Entergys submission, counsel for the State spoke with Entergys counsel regarding these questions. After further consideration and to resolve the questions Entergy raised, the State 2

The PSC recognized that an additional 60MW of energy efficiency, demand reduction, and combined heat and power projects were also underway, bringing the total to 185MW. PSC Order, at 5, 6, n.11.

3 State of New York, Response to NRC Staff Status Report, ML13317A862 (Nov. 13, 2013) (which also discussed the revised Waste Confidence schedule).

4 Entergys Reply to New York States Response to NRC Staff Status Report, ML13318A237 (Nov. 14, 2013).

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proposed to present the PSC ruling as an exhibit in connection with Contention NYS-37. The State consulted with all parties.

Good Cause Exists to Admit the Recent PSC Order Parties may proffer newly created, relevant documents identified as new exhibits. See Teleconference Tr. at 1220, 1245-46 (Sept. 24, 2012); accord Entergy Nuclear Operations, Inc.

(Indian Point Nuclear Generating Units 2 and 3), Order Denying Clearwaters Motion to Supplement the Record, at 3 (Dec. 5, 2012) (10 C.F.R. § 2.337(a) is the applicable standard for the admission of new exhibits).

Good cause exists to admit the PSC Order as an exhibit in this proceeding. The document is relevant to Contention NYS-37, Staffs EIS Chapter 8, and the examination of the no-action alternative and alternative energy sources - including energy efficiency, conservation, purchased power, and the combination of alternatives. The PSC Order identifies concrete steps that will reduce the transmission constraints discussed in NRC Staffs EIS. Such transmission upgrades will increase the ability for electricity to move into and within the Lower Hudson Valley energy zones. The order also confirms the availability of energy efficiency, demand response, and combined heat and power measures.

NRC Staff and Entergy object to the introduction of the November 4, 2013 NYS PSC Order as an exhibit in this proceeding. The State understands those objections to be based on a position that the order concerns the need for power and is therefore irrelevant in this proceeding. As set forth in this motion and contrary to Staffs and Entergys position, the PSC ruling is directly relevant to the issues discussed in the Staffs EIS.

The PSC Order was issued on November 4, 2013, and, as such, it was not available to the parties in this proceeding before then. Counsel for the State in this proceeding reviewed the 3

order during the weekend of November 9 to 11 and promptly provided it to the parties and the Board. Thereafter, after discussions and consultations with the parties, the State promptly moved for the admission of the document.

Accordingly, the State respectfully requests that the Board admit the November 4, 2013 Order by the Public Service Commission as Exhibit NYS000481. A copy of the document -

with an exhibit marker - accompanies this filing.

Respectfully submitted, Signed (electronically) by John J. Sipos Assistant Attorney General Office of the Attorney General of the State of New York The Capitol Albany, New York 12224 (518) 402-2251 Dated: November 25, 2013 4

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, Entergy, Riverkeeper, and Clearwater in this proceeding, to explain to them the factual and legal issues raised in this motion, and to resolve those issues, and I certify that my efforts have been unsuccessful with respect to NRC Staff and Entergy. Riverkeeper and Clearwater do not oppose the motion.

Signed (electronically) by John J. Sipos Assistant Attorney General State of New York dated: November 25, 2013

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. November 25, 2013

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x CERTIFICATE OF SERVICE I hereby certify that on November 25, 2013, copies of the State of New York Motion for Leave to Submit Recently-Issued Ruling by NYS Public Service Commission as an Additional Exhibit concerning Contention NYS-37 were served electronically via the Electronic Information Exchange on the following recipients:

Lawrence G. McDade, Chair Carter Thurman, Esq., Law Clerk Richard E. Wardwell, Administrative Judge James Maltese, Esq., 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 Carter.Thurman@nrc.gov Lawrence.McDade@nrc.gov James.Maltese@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 1

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. Matthew W. Swinehart, Esq.

Brian G. Harris, Esq. Covington & Burling LLP Anita Ghosh, Esq. 1201 Pennsylvania Avenue, NW Office of the General Counsel Washington, DC 20004-2401 U.S. Nuclear Regulatory Commission rmeserve@cov.com Mailstop 15 D21 mswinehart@cov.com One White Flint North 11555 Rockville Pike Elise N. Zoli, Esq.

Rockville, MD 20852-2738 Goodwin Procter, LLP sherwin.turk@nrc.gov Exchange Place david.roth@nrc.gov 53 State Street beth.mizuno@nrc.gov Boston, MA 02109 brian.harris@nrc.gov ezoli@goodwinprocter.com anita.ghosh@nrc.gov William C. Dennis, Esq.

Kathryn M. Sutton, Esq. Assistant General Counsel Paul M. Bessette, Esq. Entergy Nuclear Operations, Inc.

Raphael Kuyler, Esq. 440 Hamilton Avenue Lance A. Escher, Esq. White Plains, NY 10601 Morgan, Lewis & Bockius LLP wdennis@entergy.com 1111 Pennsylvania Avenue, NW Washington, DC 20004 Robert D. Snook, Esq.

ksutton@morganlewis.com Assistant Attorney General pbessette@morganlewis.com Office of the Attorney General rkuyler@morganlewis.com State of Connecticut leascher@morganlewis.com 55 Elm Street P.O. Box 120 Martin J. ONeill, Esq. Hartford, CT 06141-0120 Morgan, Lewis & Bockius LLP robert.snook@ct.gov Suite 4000 1000 Louisiana Street Houston, TX 77002 martin.oneill@morganlewis.com 2

Melissa-Jean Rotini, Esq. Richard Webster, Esq.

Assistant County Attorney Public Justice, P.C.

Office of the Westchester County Attorney Suite 200 Michaelian Office Building 1825 K Street, NW 148 Martine Avenue, 6th Floor Washington, DC 20006 White Plains, NY 10601 rwebster@publicjustice.net MJR1@westchestergov.com Phillip Musegaas, Esq.

Sean Murray, Mayor Deborah Brancato, Esq.

Kevin Hay, Village Administrator Riverkeeper, Inc.

Village of Buchanan 20 Secor Road Municipal Building Ossining, NY 10562 236 Tate Avenue phillip@riverkeeper.org Buchanan, NY 10511-1298 dbrancato@riverkeeper.org Administrator@villageofbuchanan.com smurray@villageofbuchanan.com 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 mdelaney@dep.nyc.gov Signed (electronically) by John J. Sipos Assistant Attorney General State of New York (518) 402-2251 Dated at Albany, New York this 25th day of November 2013 3