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{{#Wiki_filter:UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD  
{{#Wiki_filter:UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD
------------------
-----------------------------------------------------------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
---------------
-----------------------------------------------------------x STATE OF NEW YORK ANSWER TO ENTERGYS 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 Indian 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.
---------------
ENTERGYS 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. Entergys motion fails to meet this requirement, and indeed Entergy offers no justification at all for its untimeliness.
-----------x In re:         Docket Nos. 50-247-LR; 50-286-LR  
Entergy submits here four documents in support of its Motion for Declaratory Order, which is already fully briefed: a declaration by a former Department of Public Service employee


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
testifying to his recollection of events in 2001, and New 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.
Entergys motion acknowledges that it obtained these documents from NYPA on February 27, 2013 - 83 days before it filed this motion, 40 days before Entergy requested leave to file a reply to the State and Riverkeepers responses to Entergys 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 Entergys Unopposed Motion For Extension of Time to Answer New Yorks Cross-Motion for Declaratory Order and Motions for Leave to File Limited Replies in Support of Entergys Motion for Declaratory Order (Apr. 9, 2013); Entergys 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 this 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 Authority FOIL Officer (Aug. 27, 2012), attached hereto as Attachment 1. Entergys statement that [n]one of the documents Entergy proposes as exhibits were available when Entergy filed its Motion with the 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 2


---------------
its motion. That Entergy chose to file an inadequately researched motion in 2012, before even reviewing all available documentation, does not countenance violation of the NRCs motion practice regulations and the expenditure of additional resources by the Board and parties now.
---------------
During consultation, Entergys counsel had no response to the States concerns about timeliness other than to assert that the 10-day rule somehow did not apply. Surprisingly, Staff counsel also stated it was not aware of a 10-day requirement, inquiring 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 Staffs Answer to State of New Yorks and Riverkeepers Response and Cross-Motion To NRC Staffs Motion for Partial Reconsideration of The Boards 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 than ten (10) days after the occurrence or circumstance from which the motion arises.).
---------------
Even assuming the Board forgives Entergys 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 time during the last 83 days did Entergy ask for additional time to consider information from its belated FOIL request to NYPA1, even while seeking leave to file, and preparing, its May 6, 2013 reply.
--------------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.
1 Entergy and its counsel are very familiar with New Yorks Freedom of Information Law, Public Officers Law Article 87. Since 2011, on Entergys 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 3
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.
CONCLUSION For the foregoing reasons, Entergys Motion for Leave should be denied as untimely.
See, e.g. Entergy Nuclear
However, should Entergys motion be granted and its Motion for Declaratory Order modified, the State respectfully requests thirty days to respond to Entergys 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).
4


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


Respectfully submitted, s/  Janice A. Dean Assistant Attorney General Office of the Attorney General
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.                                May 22, 2013
-----------------------------------------------------------x CERTIFICATE OF SERVICE I hereby certify that on May 22, 2013, copies of the State of New Yorks Answer to Entergys 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                                    Shelbie Lewman, Esq., Law Clerk Richard E. Wardwell, Administrative Judge                    Carter Thurman, Esq., Law Clerk Michael F. Kennedy, Administrative Judge                    James Maltese, Esq., Law Clerk 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 Lawrence.McDade@nrc.gov                                      Shelbie.Lewman@nrc.gov Richard.Wardwell@nrc.gov                                    Carter.Thurman@nrc.gov Michael.Kennedy@nrc.gov                                      James.Maltese@nrc.gov Atomic Safety and Licensing Board Panel                      Office of Commission Appellate U.S. Nuclear Regulatory Commission                          Adjudication Mailstop 3 F23                                              U.S. Nuclear Regulatory Commission Two White Flint North                                        Mailstop 16 G4 11545 Rockville Pike                                        One White Flint North Rockville, MD 20852-2738                                    11555 Rockville Pike Rockville, MD 20852-2738 ocaamail@nrc.gov 1


120 Broadway
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 Joseph A. Lindell, Esq.                    Washington, DC 20004-2401 Office of the General Counsel              rmeserve@cov.com U.S. Nuclear Regulatory Commission        mswinegart@cov.com Mailstop 15 D21 One White Flint North                      Elise N. Zoli, Esq.
11555 Rockville Pike                      Goodwin Procter, LLP Rockville, MD 20852-2738                  Exchange Place sherwin.turk@nrc.gov                      53 State Street david.roth@nrc.gov                        Boston, MA 02109 beth.mizuno@nrc.gov                        ezoli@goodwinprocter.com brian.harris@nrc.gov anita.ghosh@nrc.gov                        William C. Dennis, Esq.
Joseph.Lindell@nrc.gov                    Assistant General Counsel Entergy Nuclear Operations, Inc.
Kathryn M. Sutton, Esq.                    440 Hamilton Avenue Paul M. Bessette, Esq.                    White Plains, NY 10601 Jonathan Rund, Esq.                        wdennis@entergy.com Raphael Kuyler, Esq.
Morgan, Lewis & Bockius LLP                Robert D. Snook, Esq.
1111 Pennsylvania Avenue, NW              Assistant Attorney General Washington, DC 20004                      Office of the Attorney General ksutton@morganlewis.com                    State of Connecticut pbessette@morganlewis.com                  55 Elm Street jrund@morganlewis.com                      P.O. Box 120 rkuyler@morganlewis.com                    Hartford, CT 06141-0120 robert.snook@ct.gov Martin J. ONeill, Esq.
Morgan, Lewis & Bockius LLP Suite 4000 1000 Louisiana Street Houston, TX 77002 martin.oneill@morganlewis.com 2


New York, New York 10271
Melissa-Jean Rotini, Esq.                   Karla Raimundi, Environmental Justice Assistant County Attorney                   Associate Office of the Westchester County Attorney   Hudson River Sloop Clearwater, Inc.
 
Michaelian Office Building                  724 Wolcott Avenue 148 Martine Avenue, 6th Floor              Beacon, NY 12508 White Plains, NY 10601                      karla@clearwater.org MJR1@westchestergov.com Richard Webster, Esq.
(212) 416-8459
Sean Murray, Mayor                          Public Justice, P.C.
 
Kevin Hay, Village Administrator            Suite 200 Village of Buchanan                        1825 K Street, NW Municipal Building                          Washington, DC 20006 236 Tate Avenue                            rwebster@publicjustice.net Buchanan, NY 10511-1298 Administer@villageofbuchanan.com            Phillip Musegaas, Esq.
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
  -----------------------------------------------------------
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.
Deborah Brancato, Esq.
Riverkeeper, Inc.
Daniel Riesel, Esq.                        Riverkeeper, Inc.
20 Secor Road Ossining, NY 10562 phillip@riverkeeper.org
Thomas F. Wood, Esq.                        20 Secor Road Victoria S. Treanor, Esq.                  Ossining, NY 10562 Sive, Paget & Riesel, P.C.                  phillip@riverkeeper.org 460 Park Avenue                            dbrancato@riverkeeper.org 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
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 22nd day of May 20 1 3}}
Janice A. Dean Assistant Attorney General State of New York (212) 416-8459 Dated at New York, New York this 22nd day of May 2013 3}}

Revision as of 17:46, 4 November 2019

State of New York Answer to Entergy'S Motion for Leave to Supplement Its Motion for Declaratory Order
ML13142A499
Person / Time
Site: Indian Point  Entergy icon.png
Issue date: 05/22/2013
From: Jeremy Dean
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)
v • d • e


Text

UNITED STATES NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD

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

x STATE OF NEW YORK ANSWER TO ENTERGYS 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 Indian 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.

ENTERGYS 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. Entergys motion fails to meet this requirement, and indeed Entergy offers no justification at all for its untimeliness.

Entergy submits here four documents in support of its Motion for Declaratory Order, which is already fully briefed: a declaration by a former Department of Public Service employee

testifying to his recollection of events in 2001, and New 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.

Entergys motion acknowledges that it obtained these documents from NYPA on February 27, 2013 - 83 days before it filed this motion, 40 days before Entergy requested leave to file a reply to the State and Riverkeepers responses to Entergys 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 Entergys Unopposed Motion For Extension of Time to Answer New Yorks Cross-Motion for Declaratory Order and Motions for Leave to File Limited Replies in Support of Entergys Motion for Declaratory Order (Apr. 9, 2013); Entergys 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 this 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 Authority FOIL Officer (Aug. 27, 2012), attached hereto as Attachment 1. Entergys statement that [n]one of the documents Entergy proposes as exhibits were available when Entergy filed its Motion with the 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 2

its motion. That Entergy chose to file an inadequately researched motion in 2012, before even reviewing all available documentation, does not countenance violation of the NRCs motion practice regulations and the expenditure of additional resources by the Board and parties now.

During consultation, Entergys counsel had no response to the States concerns about timeliness other than to assert that the 10-day rule somehow did not apply. Surprisingly, Staff counsel also stated it was not aware of a 10-day requirement, inquiring 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 Staffs Answer to State of New Yorks and Riverkeepers Response and Cross-Motion To NRC Staffs Motion for Partial Reconsideration of The Boards 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 than ten (10) days after the occurrence or circumstance from which the motion arises.).

Even assuming the Board forgives Entergys 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 time during the last 83 days did Entergy ask for additional time to consider information from its belated FOIL request to NYPA1, even while seeking leave to file, and preparing, its May 6, 2013 reply.

1 Entergy and its counsel are very familiar with New Yorks Freedom of Information Law, Public Officers Law Article 87. Since 2011, on Entergys 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 3

CONCLUSION For the foregoing reasons, Entergys Motion for Leave should be denied as untimely.

However, should Entergys motion be granted and its Motion for Declaratory Order modified, the State respectfully requests thirty days to respond to Entergys 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).

4

Attachment 1 Letter, Matthew Leland, Counsel for Entergy, to New York Power Authority FOIL Officer (Aug. 27, 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. May 22, 2013

x CERTIFICATE OF SERVICE I hereby certify that on May 22, 2013, copies of the State of New Yorks Answer to Entergys 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 Shelbie Lewman, Esq., Law Clerk Richard E. Wardwell, Administrative Judge Carter Thurman, Esq., Law Clerk Michael F. Kennedy, Administrative Judge James Maltese, Esq., Law Clerk 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 Lawrence.McDade@nrc.gov Shelbie.Lewman@nrc.gov Richard.Wardwell@nrc.gov Carter.Thurman@nrc.gov Michael.Kennedy@nrc.gov James.Maltese@nrc.gov Atomic Safety and Licensing Board Panel Office of Commission Appellate U.S. Nuclear Regulatory Commission Adjudication Mailstop 3 F23 U.S. Nuclear Regulatory Commission Two White Flint North Mailstop 16 G4 11545 Rockville Pike One White Flint North Rockville, MD 20852-2738 11555 Rockville Pike 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 Joseph A. Lindell, Esq. Washington, DC 20004-2401 Office of the General Counsel rmeserve@cov.com U.S. Nuclear Regulatory Commission mswinegart@cov.com Mailstop 15 D21 One White Flint North Elise N. Zoli, Esq.

11555 Rockville Pike Goodwin Procter, LLP Rockville, MD 20852-2738 Exchange Place sherwin.turk@nrc.gov 53 State Street david.roth@nrc.gov Boston, MA 02109 beth.mizuno@nrc.gov ezoli@goodwinprocter.com brian.harris@nrc.gov anita.ghosh@nrc.gov William C. Dennis, Esq.

Joseph.Lindell@nrc.gov Assistant General Counsel Entergy Nuclear Operations, Inc.

Kathryn M. Sutton, Esq. 440 Hamilton Avenue Paul M. Bessette, Esq. White Plains, NY 10601 Jonathan Rund, Esq. wdennis@entergy.com Raphael Kuyler, Esq.

Morgan, Lewis & Bockius LLP Robert D. Snook, Esq.

1111 Pennsylvania Avenue, NW Assistant Attorney General Washington, DC 20004 Office of the Attorney General ksutton@morganlewis.com State of Connecticut pbessette@morganlewis.com 55 Elm Street jrund@morganlewis.com P.O. Box 120 rkuyler@morganlewis.com Hartford, CT 06141-0120 robert.snook@ct.gov Martin J. ONeill, Esq.

Morgan, Lewis & Bockius LLP Suite 4000 1000 Louisiana Street Houston, TX 77002 martin.oneill@morganlewis.com 2

Melissa-Jean Rotini, Esq. Karla Raimundi, Environmental Justice Assistant County Attorney Associate Office of the Westchester County Attorney Hudson River Sloop Clearwater, Inc.

Michaelian Office Building 724 Wolcott Avenue 148 Martine Avenue, 6th Floor Beacon, NY 12508 White Plains, NY 10601 karla@clearwater.org MJR1@westchestergov.com Richard Webster, Esq.

Sean Murray, Mayor Public Justice, P.C.

Kevin Hay, Village Administrator Suite 200 Village of Buchanan 1825 K Street, NW Municipal Building Washington, DC 20006 236 Tate Avenue rwebster@publicjustice.net Buchanan, NY 10511-1298 Administer@villageofbuchanan.com Phillip Musegaas, Esq.

Deborah Brancato, Esq.

Daniel Riesel, Esq. Riverkeeper, Inc.

Thomas F. Wood, Esq. 20 Secor Road Victoria S. Treanor, Esq. Ossining, NY 10562 Sive, Paget & Riesel, P.C. phillip@riverkeeper.org 460 Park Avenue dbrancato@riverkeeper.org 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

____________________________________

Janice A. Dean Assistant Attorney General State of New York (212) 416-8459 Dated at New York, New York this 22nd day of May 2013 3

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