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

1 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 -----------------------------------------------------------

x UNOPPOSED MOTION FOR EXTENSION OF TIME TO RESPOND TO ENTERGY'S MOTION FOR DECLARATORY ORDER Intervenor the State of New York respectfully reque s t s that the Atomic Safety and Licensing Board grant this unopposed extension of time for the State to file a response to Entergy's 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 reques t, 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 2 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, t he State previously filed a motion for extension of tim e based on the numerous existing pre

-hearing deadlines and ongoing pre

-hearing preparation work scheduled during that period of time, and because Entergy's motion was (and is) based on critical documents it has not identified or provided. The Board granted the State's motion and extended the State's response deadline until January 14, 2013.

Entergy Nuclear Operations, Inc.

(Indian Point Nuclear Generating Units 2 and 3), Order (Granting, in Part, the NRC Staff's and New York's 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 State's 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 Rule s ("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 General's Office represents both State agencies in this action and recently submitted opposition to this petition; oral argument is scheduled for January 25.

3 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 Riverkeeper's responsive submission s 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 4 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 Entergy's request for declaratory ruling until March 22 , 2013. Respectfully submitted, Signed (electronically) by Janice A. Dean Assistant Attorney General

Office of the Attorney General for the State of New York 120 Broadway, 26th Floor New York, New Yor k 1 0271 (212) 416-8459 John Sipos Assistant Attorney General

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.

5 10 C.F.R. § 2.323 Certification Pursuant to 10 C.F.R. § 2.323(b) and the Board's 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 oppose s 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 6 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 , 201 3 -----------------------------------------------------------

x CERTIFICATE OF SERVICE I hereby certify that on January 4 , 201 3 , copies of the Unopposed Motion for Extension of Time were served upon the following persons via the NRC's Electronic Information Exchange system at the following addresses:

Lawrence G. McDade, Chair Richard E. Wardwell, Administrative Judge 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 Lawrence.McDade@nrc.gov Richard.Wardwell@nrc.gov 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 Carter Thurman, 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 208 52-2738 Shelbie.Lewman@nrc.gov Carter.Thurman@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

7 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

8 Sean Murray, Mayor Kevin Hay, Village Administrator Village of Buchanan Municipal Building 236 Tate Avenue Buchanan, NY 10511

-1298 Administer

@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 (718) 595-3982 mdelaney@dep.nyc.gov Karla Raimund i, Environmental Justice Associate Hudson River Sloop Clearwater, Inc. 724 Wolcott Avenue Beacon, NY 12508 karla@clearwater.org

Richard Webster, Esq.

Public Justice, P.C.

Suite 200 1825 K Street, NW Washington, DC 20006

rwebster@publicjustice.net

Phillip Musegaas, Esq.

Deborah Brancato, Esq.

Riverkeeper, Inc.

20 Secor Road Ossining, NY 10562 phillip@riverkeeper.org

dbrancato@riverkeeper.org

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