ML14336A123
| ML14336A123 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 12/01/2014 |
| From: | Healy M Goodwin Procter, LLP |
| To: | Baldwin L License Renewal Projects Branch 2, State of NY, Dept of State |
| References | |
| Download: ML14336A123 (8) | |
Text
GOODWIN PROCTER Martin R. Healy Goodwin Procter LLP 617.570.1371 Counselors at Law mhealy@goodwinprocter.com Exchange Place Boston, MA 02109 T: 617.570.1000 F: 617.523.1231 December 1, 2014 BY HAND AND BY E-MAIL Linda Baldwin General Counsel New York State Department of State Counsel's Office One Commerce Plaza 99 Washington Avenue Albany, NY 12231 Re: WITHDRAWAL OF DECEMBER 17, 2012 COASTAL ZONE MANAGEMENT ACT CONSISTENCY CERTIFICATION Indian Point Nuclear Generating Unit Nos. 2 & 3 NRC License Nos. DPR-26 and DPR-64 NRC Docket Nos. 50-247 and 50-286 New York State Department of State File# F-2012-1028 Dear Ms. Baldwin I write on behalf of Entergy Nuclear Operations, Inc., Entergy Nuclear Indian Point Unit 2, LLC, and Entergy Nuclear Indian Point Unit 3, LLC (collectively, "Entergy") in response to your letter on behalf of the New York State Department of State (the "Department") dated November 21, 2014 ("Nov.
21 Letter"). In that letter, you state that the Department "has determined that [Entergy's November 5, 2014] letter is insufficient to withdraw the consistency certification or to terminate the federal consistency review in the above referenced matter." The Department's position appears to be premised in large part upon the concern that, "if the Department does not decide whether the Indian Point license renewal is consistent with the New York State Coastal Management Program before December 31, 2014
[the deadline that would have applied for the Department to object to, or concur with, Entergy's December 17, 2012 certification had Entergy not withdrawn that certification on November 5, 2014], the Department will be deemed to have concurred that the renewed operating licenses are consistent with the State's coastal policies." Nov. 21 Letter at 3.
We begin by assuaging that concern. Entergy respectfully refers the Department to Entergy's representation that "Entergy intends to file a new consistency certification that takes into account the FSEIS Supplement [i.e., the federal supplemental environmental impact statement] promptly after the FSEIS Supplement has been issued by NRC. Upon submittal of such a new consistency certification, the CZMA review process will begin afresh, such that [the Department} will be able to review the
GOODWIN PROCTER Linda Baldwin December 1, 2014 Page 2 certification within the full timeframe allowed by law." Letter from Entergy to U.S. Nuclear Regulatory Commission and New York State Department of State dated Nov. 5, 2014 ("Nov. 5 Letter") at 4 (emphasis added). Entergy thereby relinquished any ability to contend that the Department's failure to act upon the December 17, 2012 certification would result in a "presumed" concurrence. If Entergy' s representation in the Nov. 5 Letter does not provide sufficient assurance to the Department, Entergy is prepared to discuss with the Department how to negotiate and execute a stipulation that would formalize this representation. Entergy notes and appreciates the Department's amenability to scheduling a meeting 1
with Entergy, and Entergy hopes that such a meeting can take place soon.
Even aside from the above-described stipulation that Entergy is willing to provide, Entergy respectfully suggests that the Department can take comfort in precedent of the Secretary of Commerce
("SOC") that, absent an actively pending consistency certification, 2 a state agency cannot issue an objection under 16 U.S.C. § 1456(c)(3)(A). In a 2002 case, SOC explained:
Given the language and structure of the statute and NOAA's [National Oceanic and Atmospheric Administration] implementing regulations, it is clear that an applicant's consistency certification is essential to a state's Federal consistency review. Therefore, I conclude that a state may not 'object' within the meaning of the CZMA, to an application for a federal license or permit when no consistency certification has been submitted.
Letter of Dismissal, Collier Resources Company Consistency Appeal to the Secretary of Commerce at 9-10 (Apr. 17, 2002); see also id. at 3-5, 10 (dismissing applicant's appeal of state's objection on this threshold ground). It follows that a state agency's failure to object to a previously-withdrawn consistency certification before the deadline that would have applied had the certification not been withdrawn cannot be presumed a concurrence by the state agency to the withdrawn certification.
Entergy turns now to respond to the remainder of the arguments set forth in the Department's Nov. 21 Letter in support of the Department's position that Entergy's November 5, 2014 letter is "insufficient to withdraw the consistency certification," Nov. 21 Letter at 4:
First, the Department quotes the Coastal Zone Management Act's ("CZMA") statement that an applicant for a federal license "affecting any land or water use or natural resource of the coastal zone of that state shall provide in the application to the [federal] licensing or permitting agency a certification that the proposed activity complies with the enforceable policies of the state's approved program and that such activity will be conducted in a manner consistent with the program. At the same time, the applicant shall furnish to the state or its designated agency a copy of the certification, with all necessary 1
Entergy is also open to the possibility of mediating this issue before the Secretary of Commerce ("SOC"). See 15 C.F.R. § 930.111.
2 Entergy demonstrates in the remainder of this letter that Entergy's December 17, 2012 certification is no longer actively pending because it was validly withdrawn.
GOODWIN PROCTER Linda Baldwin December 1, 2014 Page 3 information and data." Nov. 21 Letter at 1-2 (quoting 16 U.S.C. § 1456(c)(3)(A)) (emphasis by the Department omitted). According to the Department, this means that Entergy "must submit its consistency certification to the federal agency at the time the license application is submitted to the federal agency." Nov. 21 Letter at 1. Entergy respectfully disagrees.
As an initial matter, a consistency certification is not the sole means for an applicant to comply with the CZMA. As explained in Entergy's Nov. 5 Letter, an applicant may alternatively comply with the CZMA by demonstrating that the activity in question is one that the state has previously reviewed, 15 C.F.R. § 930.51(b)(3), or by demonstrating that the activity is one that the state has omitted to list for review in the state's coastal management plan ("CMP"), 15 C.F.R. § 930.53(a). As Entergy also explained, its license renewal application ("LRA") to NRC currently relies on these two bases, and not on a consistency certification, to satisfy compliance with the CZMA. See Nov. 5 Letter at 2 (discussing Supplement to the IPEC LRA dated July 24, 2012). 3 The Department did not contend, and NRC certainly did not find, that Entergy's LRA was deficient after July 24, 2012 because it does not rely on a consistency certification to assure compliance with the CZMA.
More generally, NOAA, which promulgated the CZMA regulations, has recognized that a consistency certification need not be filed at the time the federal license application is initially submitted, and instead may be filed with the federal agency (with a copy to the state agency) at a later date. 4 Pursuant to this practice, Entergy's original LRA (before it was supplemented on July 24, 2012) included a form of consistency certification but did not include an actual consistency certification. 5 The Department has never suggested that Entergy' s original LRA was deficient for that reason. And NRC affirmatively found that LRA complete. 6 Second, the Department asserts that, "[o]nce a State agency has commenced the six-month review period [of an applicant's consistency certification], the CZMA does not contemplate or otherwise 3
Entergy nonetheless proceeded to file a consistency certification on December 17, 2012. And, notwithstanding Entergy's withdrawal of that certification on November 5, 2014, Entergy has stated its intent to file a new consistency certification promptly after NRC issues the supplement to its Final Supplemental Environmental Impact Statement ("FSEIS Supplement")
unless the previous-review and/or grandfathering issues have been fmally resolved in Entergy's favor by that time. See Nov.
5 Letter at 4. That certification will provide an alternative basis for compliance with the CZMA in the event that the two bases set forth in Entergy's current LRA are finally rejected.
4 See Mem. Of Understanding between Amergen Energy Company LLC and the New Jersey Department of Environmental Protection at 2, 3 (Sept. 19, 2005), available at http://pbadupws.nrc.gov/docs/ML0604/ML060400050.pdf ("Oyster Creek MOU") (statement by NOAA that it "has no objections" to the terms of a memorandum of understanding that included the proposition that "16 U.S.C. § 1456(c)(3)(A) ... does not require the applicant to provide a consistency certification at the time the application is submitted; rather, the applicant ... provides the consistency certification when the applicant has the necessary data and information required by the CZMA and NOAA's regulations and at an appropriate time during the federal licensing agency's process .... ").
5 As explained supra, n.3, Entergy did not file an actual consistency certification until December 17, 2012.
6 See Letter from NRC, Division of License Renewal, to Entergy dated July 25, 2007, at 1, available at http://pbadupws.nrc.gov/docs/ML0719/ML071900365.pdf.
GOODWIN PROCTER Linda Baldwin December 1, 2014 Page 4 provide that the applicant or the State agency may unilaterally withdraw the consistency certification or terminate its review while an active federal agency review of the underlying application continues."
Nov. 21 Letter at 2. Entergy respectfully submits that this assertion ignores that the CZMA statute and regulations likewise do not expressly prohibit an applicant from withdrawing its consistency certification. Given this silence, the issue must be resolved under precedent, which plainly supports Entergy's position that it may voluntarily withdraw its consistency certification.
In Jones v. SEC, 298 U.S. 1 (1936), for example, an applicant filed with the Securities and Exchange Commission a registration statement (akin to an application) covering a proposed issuance of securities, id. at 12. The Commission reviewed the registration statement, and on the nineteenth day (the registration would normally become effective by operation of law on the twentieth day), issued a notice requiring the applicant to show cause why a "stop order" should not be issued suspending the effectiveness of the registration statement on the ground that it contained untrue statements and material omissions. !d. The applicant responded by sending "a written communication to the commission [in which he] formally withdrew his application for registration .... " !d. at 13. The Commissioner's examiner "refused to allow the withdrawal." !d. The Supreme Court reversed, holding that the "right of the registrant to withdraw his application would seem to be as absolute as the right of any person to withdraw an ungranted application for any other form of privilege in respect of which he is at the time alone concerned." !d. at 23. Although the statute at issue, like the CZMA, "contain[ed] no provision upon the subject," id. at 19, of an applicant's "right to withdraw," id. at 18, the Supreme Court relied on precedent to recognize that right, id. at 19-20. The Supreme Court explained, moreover, that the right to withdraw "does not depend on the reasons which the plaintiff offers for his action," id. at 20 (internal quotation marks omitted), and is not defeated by the fact that the agency may in the future face "the mere prospect of a second litigation upon the subject matter" if the applicant files a new application, id.
at 19. See also, e.g., Ganley v. Mazda Motor of Am., Inc., 367 F. App'x 616, 623-24 (6th Cir. 2010)
(relying on Jones and holding that applicant had the right to file a self-effectuating notice of withdrawal); Vill. of S. Elgin v. Waste Mgmt. of Ill., Inc., 381 N.E.2d 778, 782-83 (Ill. App. 2d Dist.)
(similar).
In the CZMA context, this principle has been recognized by the Department itself as to the James A. FitzPatrick Nuclear Power Plant ("FitzPatrick"). Entergy submitted a letter on November 20, 2006, withdrawing its certification, and the Department responded on November 27, 2006, by acknowledging that the withdrawal was immediately effective: "The Department of State has received your letter dated November 20th, 2006, withdrawing the consistency certification." 7 Entergy respectfully disagrees with the Department's attempt to distinguish FitzPatrick on the ground that Entergy's withdrawal in that Letter from New York State Department of State to Entergy dated Nov. 27, 2006 available at http://pbadupws.nrc.gov/docs/ML080 l!ML080 10129 .pdf.
GOODWIN PROCTER Linda Baldwin December 1, 2014 Page 5 instance "took place prior to the start of the Department's consistency review." Nov. 21 Letter at 4. 8 That distinction is unpersuasive because Jones' holding that an applicant may withdraw its application applies equally before and after the agency has commenced its review of the application. Indeed, Jones involved the latter situation: before the applicant withdrew the application, the Commission had already reviewed it and found that it "appeared to contain untrue statements of material facts and to omit material facts required and necessary." 298 U.S. at 12. 9 And in the CZMA context, in the situation of the Oyster Creek Nuclear Generating Station, the state agency had not only commenced its review but had issued an objection to the applicant's certification before the applicant withdrew the certification. 10 Third, the Department asserts that, if an applicant such as Entergy were allowed to withdraw its certification, there would be a "tremendous" "waste of government resources." Nov. 21 Letter at 3.
Entergy respectfully disagrees. Any review that the Department has done to date on Entergy's now-withdrawn consistency certification will not be wasted work. Rather, the Department can save that work and need not repeat it ifEntergy files a new consistency certification after NRC's issuance of the FSEIS Supplement in March 2016. At that point, since Entergy's new certification will be supported by the information that had supported the December 17, 2012 certification with the addition of the forthcoming FSEIS Supplement, the Department can simply add to its current file its additional analysis of the FSEIS Supplement, after which the Department will be able to make a final determination on a complete record whether to concur with or object to Entergy's to-be-filed certification. The situation is no different from that discussed in Jones, where the applicant has withdrawn its application and may file another application in the future. In such circumstances, "the mere prospect of a second litigation upon the subject matter" is not cognizable prejudice to the opposing party that can defeat the applicant's ability to withdraw. Jones, 298 U.S. at 19.
On the other hand, the Department would expend effort to prepare and to issue a consistency determination before December 31,2014, on a record that would not include the FSEIS Supplement. If that determination is an objection, Entergy would be forced to take an appeal to SOC, and SOC would first address the threshold issue whether the Department's objection to Entergy's previously-withdrawn consistency certification is a nullity. In the likely event that Entergy prevails on that issue, SOC would deem the Department's objection void and dismiss the appeal as in the Collier case, leaving Entergy to file a new consistency certification following NRC's issuance of the FSEIS Supplement. The 8
Consistent with its approach in FitzPatrick, the Department (through its counsel, the New York Attorney General's Office) in the current instance acknowledged "Entergy's withdrawal of its certification" without suggesting that the withdrawal was ineffective. Letter from New York Attorney General's Office to Supreme Court, Appellate Division, Third Department, in Entergy Nuclear Operations, Inc. v. New York State Department ofState, No. 518510 (3d Dep't).
9 The CZMA and its regulations are equally silent on an applicant's ability to withdraw its certification before the state agency commences review and an applicant's ability to withdraw its application after the state agency commences review.
10 See Oyster Creek MOUat 2 ("1. AmerGen hereby withdraws its consistency certification, dated January 21,2005, from NJDEP's consideration; 2. NJDEP hereby withdraws its consistency objection, dated August 19, 2005.").
GOODWIN PROCTER Linda Baldwin December 1, 2014 Page 6 Department would then have wasted its resources in preparing a void objection, and both parties would have wasted their resources in litigating the threshold issue on appeal. 11 As to the Department's assertion (at 3) that the "ramifications ... are even more pronounced where, as here, an expired license has been extended beyond its term," Entergy respectfully responds that, under the timely-renewal doctrine, a timely application for renewal of a license maintains the original license in effect until the agency makes a final determination on the renewal application; the original license does not "expir[e]." 10 C.P.R. § 2.109. Moreover, there is no concern that Entergy's November 5, 2014 withdrawal of the consistency certification will prolong the overall NRC licensing proceeding beyond the approximate date on which it otherwise would have terminated. Again, unless the previous-review and/or grandfathering issues are finally resolved in Entergy's favor before NRC issues the FSEIS Supplement in 2016, Entergy intends to file a new consistency certification promptly after NRC issues the FSEIS Supplement. The overall NRC licensing proceeding (which of course involves many matters beyond the CZMA) is not expected to conclude for several more years.
Accordingly, the Department will have an adequate opportunity (including the ability to use the entire 6-month review period) to submit its objection or concurrence with the new certification before the expected conclusion of the NRC licensing proceeding, without causing any prolongation of the NRC licensing proceeding or the timely-renewal period of operation of either Indian Point unit.
Fourth, the Department attempts to distinguish its past decision that Entergy's December 17, 2012 consistency certification was incomplete absent a copy of Volume 4 ofNRC's Final Supplemental Environmental Impact Statement ("FSEIS Volume 4"), which had not yet issued on December 17, 2012 or January 16, 2013, but was issued only later on June 20, 2013. See Nov. 21 Letter at 3-4. As an initial matter, Entergy discussed this past Department decision only as factual background; Entergy did not need to provide it as a reason for Entergy's November 5, 2014 withdrawal. See Jones, 298 U.S. at 20 (An applicant's right to withdraw "does not depend on the reasons which the plaintiff offers for his action. The fact that he may not have disclosed all his reasons, or may not have given the real one, cannot affect his right.") (internal quotation marks omitted). 12 In any event, Entergy respectfully disagrees with the Department's distinction of its past decision. The Department suggests that, unlike in the situation of FSEIS Volume 4, the underlying facts on aquatic impacts have now been developed by the Department's sister agency the New York State Department of Environmental Conservation
("NYSDEC") in the context ofthe Clean Water Act§ 401 hearings. See Nov. 21 Letter at 4. Setting aside that those hearings have not yet concluded in a final decision by NYSDEC (indeed, the NYSDEC Administrative Law Judges have yet to issue any recommended findings), the Department's distinction does not explain why the Department did not seek to develop by itself (or with NYSDEC's assistance) 11 Even if the Department prevailed on the threshold issue and the appeal proceeded to the merits, the appeal would potentially be hampered by the absence of the not-yet-issued FSEIS Supplement from the appellate record.
12 Contrary to the Department's assertion, see Nov. 21 Letter at 4 n.8, because Entergy has a right to withdraw the certification, Entergy's invocation of this right cannot be construed as usurping the Department's ability to decide whether materials supporting a still-active certification are complete.
GOODWIN PROCTER Linda Baldwin December 1, 2014 Page 7 the underlying facts on aquatic impacts that were being studied by NRC in connection with FSEIS Volume 4. 13 Instead, likely because the Department placed weight and value on NRC's conclusions with regard to those underlying facts, the Department expressed a desire to wait for NRC's conclusions before proceeding further with the Department's consistency review.
Even assuming arguendo that only the underlying facts being considered by NRC in connection with the FSEIS Supplement (and not NRC's conclusions with regard to those facts) are relevant to the Department's deliberations, the Department acknowledges that it does not know what facts NRC is considering in the pending FSEIS Supplement: "[N]either the NRC nor Entergy has described the new data that would be included in the supplemental FSEIS." Nov. 21 Letter at 4. Accordingly, the Department lacks a basis to assert that the same facts have been developed in the NYSDEC proceeding. 14 As explained at the outset of this letter, Entergy is willing to discuss and to execute a formal stipulation that assures the Department that it will not be presumed to concur with Entergy's December 17, 2012 consistency certification by failing to issue an objection to that certification before December 31, 2014. As also noted above, Entergy would welcome the opportunity to meet with the Department on this and other issues and appreciates the Department's willingness to schedule such a meeting.
Sincerely, MRH cc: Michael Wentzel, Environmental Project Manager, U.S. Nuclear Regulatory Commission Sherwin E. Turk, NRC Office of General Counsel, Special Counsel David Lew, Acting Regional Administrator, U.S. Nuclear Regulatory Commission, Region I Douglas V. Pickett, U.S. Nuclear Regulatory Commission NRC Resident Inspector's Office, U.S. Nuclear Regulatory Commission 13 Similarly, in the FitzPatrick situation, the Department did not seek by itself to develop or to determine the facts being studied by NRC in preparing an FSEIS. Instead, the Department acknowledged Entergy's withdrawal of its consistency certification with the expectation that Entergy would file a new certification after NRC's issuance of the FSEIS. See supra n.
7.
14 Entergy notes that its February 19, 2014 submission of new data to NRC is publicly available at http://pbadupws.nrc.gov/docs/ML1406/ML14063A528.pdf. A comparison of that data with the record evidence in the NYSDEC proceeding makes clear that they are not the same.
GOODWIN PROCTER Linda Baldwin December 1, 2014 Page 8 William B. Glew, Jr., Associate General Counsel, Entergy Services, Inc.
Kelli Dowell, Assistant General Counsel, Environmental, Entergy Services, Inc.
Dara Gray, Chemistry/Environmental, Indian Point Energy Center Matthew Millea, Deputy Secretary of State, Office of Planning and Development, New York State Department of State William Sharp, Principal Attorney, New York State Department of State Kari Gathen, Associate Attorney, New York State Department of State Gregory Capobianco, Director, Division otDevelopment, New York State Department of State Jeffrey Herter, Assistant Bureau Chief, Div. of Dev., New York State Department of State Jeffrey Zappieri, Supervisor, Consistency Review Unit, New York State Department of State Fred Dacimo, Vice President, Operations License Renewal, Entergy Nuclear Northeast Indian Point Center