ML13142A499

State of New York Answer to Entergy'S Motion for Leave to Supplement Its Motion for Declaratory Order

ML13142A499
Person / Time
Site:	Indian Point
Issue date:	05/22/2013
From:	Dean J A State of NY, Office of the Attorney General
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 24563, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01
Download: ML13142A499 (10)

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. May 22, 2013

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x STATE OF NEW YORK ANSWER TO ENTERGY'S MOTION FOR LEAVE TO SUPPLEMENT ITS MOTION FOR DECLARATORY ORDER On May 21, 2013, Entergy filed a Motion for Leave to Supplement its Motion for Declaratory Order that it Has Already Obtained the Required New York State Coastal Management Program Consistency Review of I ndian Point Unit 2 and 3 for Renewal of the Operating Licenses. Entergy requests leave to supplement its Motion for Declaratory Order with four additional exhibits that it says shed additional light on previous state consistency reviews performed by different agencies in different contexts at Indian Point over the years. Entergy makes its motion pursuant to 10 C.F.R. § 2.323. Entergy Motion at 1. ENTERGY'S MOTION IS UNTIMELY Pursuant to 10 C.F.R. § 2.323(a) motions are required to be filed "no later than ten (10) days after the occurrence or circumstance from which the motion arises." Entergy's motion fails to meet this requirement, and indeed Entergy offers no justification at all for its untimeliness. Entergy submits here four documents in s upport of its Motion fo r Declaratory Order, which is already fully briefed: a declaration by a former Department of Public Service employee 2 testifying to his reco llection of events in 2001, and Ne w York Power Authority (NYPA) documents culled from a NYPA Freedom of Information Law (FOIL) response, including an email chain from 1999, testimony from a hearing in 1999, and a letter dated February 2, 2000. Entergy's motion acknowledges that it obtained these documents from NYPA on February 27, 2013 - 83 days before it filed this motion, 40 days be fore Entergy requested leave to file a reply to the State and Riverkeeper's responses to Entergy's motion (which notably did not make any reference to Entergy having received FOIL responses that it might seek to use in this proceeding), and 67 days before Entergy submitted its reply. Entergy also did not make reference to reviewing these documents while requesting - on more than one occasion - more time to submit its reply.

See Entergy's Unopposed Motion For Extension of Time to Answer New York's Cross-Motion for Declaratory Order and Motions for Leave to File Limited Replies in Support of Entergy's Motion for Declarat ory Order (Apr. 9, 2013);

Entergy's Motion For Extension Of Time To File Combined Answer And Replies (Apr. 17, 2013). At no time while requesting the right to submit a reply or at any other time did Entergy represent to the Board or parties that it was parsing through Freedom of Information Law responses, and that it could require additional time to complete briefing on th is issue. Indeed, Entergy waited until August 27, 2012 - nearly a month after Entergy submitted its Motion for Declaratory Order to the Board - to even submit a Freedom of Information Law request to NYPA.

See Letter, Matthew Leland, Counsel for Entergy, to New York Power Au thority FOIL Officer (Aug. 27, 2012), attached hereto as Attachment 1. Entergy's statement that "[n]one of the documents Entergy proposes as exhibits were available when Entergy filed its Motion with th e Board on July 30, 2012" (Entergy Motion at 2) is inaccurate and disingenuous - the documents were always available pursuant to the Freedom of Information Law, but Entergy did not submit a request for them until after it filed 3its motion. That Entergy chose to file an inadequately researched motion in 2012, before even reviewing all available documentation, does not countenance violation of the NRC's motion practice regulations and the expe nditure of additional resources by the Board and parties now. During consultation, Entergy's counsel had no response to the State's concerns about timeliness other than to assert that the 10-day rule somehow did not a pply. Surprisingly, Staff counsel also stated it was not aware of a 10-day requirement, i nquiring of State counsel whether this requirement was found in a scheduling order, and if so, where it could be found. As the Board is aware, Staff counsel itself opposed a State submission in this proceeding on timeliness grounds only last year.

See NRC Staff's Answer to "State of New York's and Riverkeeper's Response and Cross-Motion To NRC Staff's Motion for Partial Reconsideration of The Board's March 16, 2012 Order" (Apr. 12, 2012) at 9 ("Pursuant to 10 C.F.R. § 2.323(a) motions are required to be filed 'no later th an ten (10) days after the occurrence or circumstance from which the motion arises.'"). Even assuming the Board forgives Entergy's belated decision to ascertain the basis for its motion by seeking information from State agencies upon whose actions it relies to absolve it of a legal obligation under federal law, the latest possible "occurrence or circumstance from which the motion arises" would be February 27, 2013, the date on which Entergy took possession of the documents it now seeks to introduce. At no tim e during the last 83 days did Entergy ask for additional time to consider information from its belated FOIL request to NYPA 1, even while seeking leave to file, and pr eparing, its May 6, 2013 reply.

1 Entergy and its counsel are very familiar with New York's Freedom of Information Law, Public Officers Law Article 87. Since 2011, on Entergy's behalf, various counsel have submitted at least 9 FOIL requests regarding Indian Point to executive agencies, including the New York Departments of State and Environmental Conservation.

See, e.g. Entergy Nuclear

4 CONCLUSION For the foregoing reasons, Entergy's Motion for Leave should be denied as untimely. However, should Entergy's motion be granted an d its Motion for Declaratory Order modified, the State respectfully requests thirty days to respond to Entergy's supplemental declaration and exhibits.

Respectfully submitted, s/ Janice A. Dean Assistant Attorney General Office of the Attorney General

120 Broadway

New York, New York 10271

(212) 416-8459

janice.dean@ag.ny.gov May 22, 2013

Indian Point 2, LLC, et al v. New York State Department of State, et al, 2013 N.Y. Misc.1885, 2013 N.Y. Slip Op. 50701(U).

Attachment 1 Letter, Matthew Leland, Counsel for Entergy, to New York Power Authority FOIL Officer (Aug. 27, 2012)

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.

May 22 , 20 1 3 -----------------------------------------------------------

x CERTIFICATE OF SERVICE I hereby certify that on May 22 , 20 1 3 , copies of the State of New York's Answer to Entergy's motion for leave to supplement its motion for declaratory order with attachment were served electronically via the Electronic Information Exchange on the following recipients

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, Esq., Law Clerk James Maltese, 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 Carter.Thurman@nrc.gov James.Maltese@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 2 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.comBobby 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.

Matthew W. Swinehart, Esq.

Covington & Burling LLP 1201 Pennsylvania Avenue, NW Washington, DC 20004

-2401 rmeserve@cov.com mswinegart@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

3 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

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 mdelaney@dep.nyc.govKarla Raimund i, Environmental Justi ce 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

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Janice A. Dean Assistant Attorney General State of New York (212) 416-8459 Dated at New York, New York this 22nd day of May 20 1 3