ML13163A233
| ML13163A233 | |
| Person / Time | |
|---|---|
| Site: | Indian Point  |
| Issue date: | 06/12/2013 |
| From: | Lawrence Mcdade Atomic Safety and Licensing Board Panel |
| To: | Clearwater Environmental, State of NY |
| SECY RAS | |
| References | |
| RAS 24672, 50-247-LR, 50-286-LR, ASLBP 07-858-03-LR-BD01 | |
| Download: ML13163A233 (8) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Lawrence G. McDade, Chairman Dr. Michael F. Kennedy Dr. Richard E. Wardwell In the Matter of Docket Nos. 50-247-LR and 50-286-LR ENTERGY NUCLEAR OPERATIONS, INC. ASLBP No. 07-858-03-LR-BD01 (Indian Point Nuclear Generating Units 2 and 3) June 12, 2013 ORDER (Granting New Yorks Motions, Denying Clearwaters Motion, and Denying CZMA Motions)
Before the Board are various motions relating to Contentions NYS-16B, CW-EC-3A, NYS-5, and Coastal Zone Management Act (CZMA) issues. Each motion is addressed in turn.
On May 17, 2013, the State of New York (New York) filed a motion seeking leave to file an additional exhibit and supplemental proposed findings of fact and conclusions of law on Contention NYS-16B.1 The NRC Staff and Entergy opposed New Yorks motion.2 Additionally, Entergy sought to reply to New Yorks supplemental proposed findings of fact and conclusions of law and requested that, if New Yorks motion is granted, NL-13-075 be admitted in its entirety.3 Entergys requests were opposed by New York.4 1
See State of New York Motion Seeking Leave to File an Additional Exhibit and Supplemental Proposed Findings of Fact and Conclusions of Law on Contention NYS-16B (May 17, 2013).
2 See NRC Staffs Opposition to State of New York Motion Seeking Leave to File an Additional Exhibit and Supplemental Proposed Findings of Fact and Conclusions of Law on Contention NYS-16B (May 23, 2013); Entergys Answer Opposing State of New York Motion Seeking Leave to File an Additional Exhibit and Supplemental Findings of Fact and Conclusions of Law on Contention NYS-16B (May 28, 2013).
3 See Entergys Answer Opposing State of New York Motion Seeking Leave to File an Additional Exhibit and Supplemental Findings of Fact and Conclusions of Law on Contention NYS-16B (May 28, 2013) at 5 n.21, Attach. 1.
Good cause having been shown,5 the Board GRANTS New Yorks motion and admits exhibit NYS000476. Additionally, if Entergy submits NL-13-075 in its entirety as ENT000608 it will be admitted upon receipt. New Yorks supplemental proposed findings of fact and conclusions of law and Entergys reply to New Yorks supplemental proposed findings of fact and conclusions of law for contention NYS-16B are accepted and incorporated into the record.
On May 17, 2013, Hudson River Sloop Clearwater, Inc. (Clearwater) filed a motion seeking leave to file an additional exhibit and supplemental proposed findings of fact and conclusions of law on Contention CW-EC-3A.6 Entergy and the NRC Staff opposed the motion.7 The Board DENIES Clearwaters motion. In applying the standard of 10 C.F.R. § 2.337(a), the Board finds that the submitted Statement of Interest by the United States of America is not relevant to the reasonableness of the NRC Staffs environmental justice review of Indian Point, Units 2 and 3.
4 See State of New Yorks Answer to Entergys Request for Leave to File an Additional Exhibit and Supplemental Proposed Findings of Fact and Conclusions of Law In Response to New Yorks Supplemental Proposed Findings of Fact and Conclusions of Law on Contention NYS-16B (June 6, 2013).
5 State of New York Motion Seeking Leave to File an Additional Exhibit and Supplemental Proposed Findings of Fact and Conclusions of Law on Contention NYS-16B (May 17, 2013) at 5-8.
6 See Hudson River Sloop Clearwater, Inc.s Motion for Leave to File One Additional Exhibit Related to Contention EC-3A (Environmental Justice) (May 17, 2013).
7 See Entergys Answer Opposing Hudson River Sloop Clearwaters Motion for Leave to File One Additional Exhibit Related to Contention EC-3A (Environmental Justice) (May 28, 2013);
NRC Staffs Answer in Opposition to Hudson River Sloop Clearwater, Inc.s Motion for Leave to File One Additional Exhibit Related to Contention EC-3A (Environmental Justice) (May 28, 2013).
On June 10, 2013, New York filed a motion for leave to submit four additional exhibits labeled as NYS000477, NYS000478, NYS000479, and NYS000480.8 Good cause having been shown,9 the Board GRANTS New Yorks motion and exhibits NYS000477, NYS000478, NYS000479, and NYS000480 are admitted.
On July 30, 2012, Entergy filed a motion for a 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.10 In its motion, Entergy sought to have this Board enter a declaratory order that the NRC may renew the IP2 and IP3 licenses without requiring a further consistency certification or the States concurrence therewith because renewal will not cause coastal effects that are substantially different than those that New York has previously reviewed.11 New York, Riverkeeper, Inc. (Riverkeeper), and the NRC Staff opposed Entergys motion.12 Additionally, New York cross-moved for a declaratory order under 8
See State of New York Motion for Leave to Submit Recently Disclosed Entergy Documents as Additional Exhibits Concerning Contention NYS-5 (June 10, 2013).
9 Id. at 1-3.
10 See Motion and Memorandum by Applicant Entergy Nuclear Operations, Inc. 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 (July 30, 2012). Entergy later filed a motion to supplement its July 30, 2012 motion for declaratory order. See Entergys 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 (May 20, 2013).
11 Motion and Memorandum by Applicant Entergy Nuclear Operations, Inc. 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 (July 30, 2012) at 25.
12 See State of New York Response to Entergys Request to the Atomic Safety and Licensing Board for a Declaratory Order Concerning Coastal Zone Management Act Issues and Cross-Motion for Declaratory Order (Apr. 5, 2013); Riverkeeper Answer in Opposition to Motion and Memorandum by Applicant Entergy Nuclear Operations, Inc. 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 (Apr. 5, 2013);
NRC Staff's Answer to Applicant's Motion and Memorandum for Declaratory Order that it Has
Section 5(e) of the Administrative Procedure Act, 5 U.S.C. § 554(e), for a declaration that Entergys license renewal application is subject to federal consistency review under 15 C.F.R.
Section 930.51, Subpart D.13 The NRC Staff opposed14 and Riverkeeper supported15 New Yorks cross-motion.
Given that no consultation has occurred between the NRC Staff, the New York State Department of State, and Entergy pursuant to 15 C.F.R. § 930.51(e), we conclude that Entergys and New Yorks motions are premature. Accordingly, Entergys and New Yorks motions are DENIED without prejudice.16 If these motions are refiled after said consultation, the moving party should state whether compliance with the CZMA is within the scope of any admitted contention and, if so, which contention and how it is within the scope thereof. Further, if compliance with the CZMA is not viewed by a party as within the scope of an admitted contention, they should address whether, and if so how, the Board has the authority to consider the issue.
Additionally, the parties should address the following hypothetical: New York State Department of State concludes that a consistency review is needed and, upon completion of Already Obtained the Required New York State Coastal Management Program Consistency Review of Indian Point 2 and 3 For Renewal of the Operating Licenses (Apr. 15, 2013). The NRC Staff argued, among other things, that there is inadequate support for issuance of a declaratory order given that there has been no consultation between the NRC, the New York State Department of State, and Entergy pursuant to 15 C.F.R. § 930.51(e). See id. at 11.
13 See State of New York Response to Entergys Request to the Atomic Safety and Licensing Board for a Declaratory Order Concerning Coastal Zone Management Act Issues and Cross-Motion for Declaratory Order (Apr. 5, 2013).
14 See NRC Staffs Answer to State of New Yorks Cross-Motion for Declaratory Order on Coastal Zone Management Act Issues (Apr. 15, 2013).
15 See Riverkeeper Answer in Support of State of New York Cross-Motion for Declaratory Order Concerning Coastal Zone Management Act Issues (Apr. 15, 2013).
16 As these cross-motions were denied as premature, this does not constitute a ruling on the merits. Therefore, the Boards denial of Entergys and New Yorks motions does not trigger the time for the filing of new contentions. See Licensing Board Order (Granting State of New York Motion for Extension of Time to File New Contentions) (Aug. 31, 2012) at 2-3 (unpublished).
that review, enters a ruling adverse to Entergy. The New York State Department of State ruling is upheld by the United States Secretary of Commerce. Would the NRC be precluded from issuing a renewed license for IP2 and IP3, and how, if at all, a prior ruling by this Board that a consistency review was not needed would impact this situation.
Finally, the parties have 10 days after the publication of the forthcoming FSEIS to inform the Board whether 30 days17 will be sufficient time to file motions for new and amended contentions.18 It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD
/RA/
Lawrence G. McDade, Chairman ADMINISTRATIVE JUDGE Rockville, Maryland June 12, 2013 17 Tr. at 3289.
18 The Board recognizes that the issuance of the FSEIS related to Contention RK-EC-8 will occur during the summer vacation season, which could affect the ability to file new or amended contentions within 30 days.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
) Docket Nos. 50-247-LR
) and 50-286-LR (Indian Point Nuclear Generating, )
Units 2 and 3) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing ORDER (Granting New Yorks Motions, Denying Clearwaters Motion, and Denying CZMA Motions) have been served upon the following persons by Electronic Information Exchange.
U.S. Nuclear Regulatory Commission Edward L. Williamson, Esq.
Office of Commission Appellate Adjudication Beth N. Mizuno, Esq.
Mail Stop O-7H4M David E. Roth, Esq.
Washington, DC 20555-0001 Sherwin E. Turk, Esq.
ocaamail@nrc.gov Brian Harris, Esq.
Mary B. Spencer, Esq.
U.S. Nuclear Regulatory Commission Anita Ghosh, Esq.
Office of the Secretary of the Commission John Tibbetts, Paralegal Mail Stop O-16C1 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Office of the General Counsel hearingdocket@nrc.gov Mail Stop O-15D21 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission sherwin.turk@nrc.gov; Atomic Safety and Licensing Board Panel edward.williamson@nrc.gov Mail Stop T-3F23 beth.mizuno@nrc.gov; brian.harris.@nrc.gov Washington, DC 20555-0001 david.roth@nrc.gov; mary.spencer@nrc.gov anita.ghosh@nrc.gov; john.tibbetts@nrc.gov Lawrence G. McDade, Chair Administrative Judge OGC Mail Center lawrence.mcdade@nrc.gov OGCMailCenter@nrc.gov Richard E. Wardwell William C. Dennis, Esq.
Administrative Judge Assistant General Counsel richard.wardwell@nrc.gov Entergy Nuclear Operations, Inc.
440 Hamilton Avenue Michael F. Kennedy White Plains, NY 10601 Administrative Judge wdennis@entergy.com michael.kennedy@nrc.gov William B. Glew, Jr.
Shelbie Lewman, Law Clerk Organization: Entergy James Maltese, Law Clerk 440 Hamilton Avenue, White Plains, NY 10601 Carter Thurman, Law Clerk wglew@entergy.com shelbie.lewman@nrc.gov james.maltese@nrc.gov carter.thurman@nrc.gov
Docket Nos. 50-247-LR and 50-286-LR ORDER (Granting New Yorks Motions, Denying Clearwaters Motion, and Denying CZMA Motions)
Elise N. Zoli, Esq. Phillip Musegaas, Esq.
Goodwin Proctor, LLP Deborah Brancato, Esq.
Exchange Place, 53 State Street Ramona Cearley, Secretary Boston, MA 02109 Riverkeeper, Inc.
ezoli@goodwinprocter.com 20 Secor Road Ossining, NY 10562 phillip@riverkeeper.org; dbrancato@riverkeeper.org Thomas F. Wood, Esq. rcearley@riverkeeper.org Daniel Riesel, Esq.
Victoria Shiah Treanor, Esq.
Adam Stolorow, Esq.
Jwala Gandhi, Paralegal Melissa-Jean Rotini, Esq.
Peng Deng, Paralegal Assistant County Attorney Counsel for Town of Cortlandt Office of Robert F. Meehan, Sive, Paget & Riesel, P.C. Westchester County Attorney 460 Park Avenue 148 Martine Avenue, 6th Floor New York, NY 10022 White Plains, NY 10601 driesel@sprlaw.com; vtreanor@sprlaw.com mjr1@westchestergov.com astolorow@sprlaw.com; jgandhi@sprlaw.com pdeng@sprlaw.com Clint Carpenter, Esq.
Bobby Burchfield, Esq.
Kathryn M. Sutton, Esq. Matthew Leland, Esq.
Paul M. Bessette, Esq. McDermott, Will and Emergy LLP Martin J. ONeill, Esq. 600 13th Street, NW Raphael Kuyler, Esq. Washington, DC 20005 Jonathan M. Rund, Esq. ccarpenter@mwe.com; bburchfield@mwe.com Lena Michelle Long, Esq. mleland@mwe.com Laura Swett, Esq.
Lance Escher, Esq. Matthew W. Swinehart, Esq.
Mary Freeze, Legal Secretary Covington & Burling LLP Antoinette Walker, Legal Secretary 1201 Pennsylvania Avenue, NW Doris Calhoun, Legal Secretary Washington, DC 20004 Morgan, Lewis & Bockius, LLP mswinehart@cov.com 1111 Pennsylvania Avenue, NW Washington, DC 20004 Edward F. McTiernan, Esq.
ksutton@morganlewis.com New York State Department martin.oneill@morganlewis.com of Environmental Conservation rkuyler@morganlewis.com; Office of General Counsel jrund@morganlewis.com 625 Broadway llong@morganlewis.com; 14th Floor lswett@morganlewis.com Albany, NY 12233-1500 lescher@morganlewis.com efmctier@gw.dec.state.ny.us mfreeze@morganlewis.com awalker@morganlewis.com dcalhoun@morganlewis.com 2
Docket Nos. 50-247-LR and 50-286-LR ORDER (Granting New Yorks Motions, Denying Clearwaters Motion, and Denying CZMA Motions)
Manna Jo Greene, Environmental Director Robert D. Snook, Esq.
Steven C. Filler Assistant Attorney General Karla Raimundi Office of the Attorney General Hudson River Sloop Clearwater, Inc. State of Connecticut 724 Wolcott Ave. 55 Elm Street Beacon, NY 12508 P.O. Box 120 mannajo@clearwater.org; Hartford, CT 06141-0120 stephenfiller@gmail.com robert.snook@po.state.ct.us karla@clearwater.org Richard Webster, Esq. Janice A. Dean, Esq.
Public Justice, P.C. Kathryn Liberatore, Esq.
For Hudson River Sloop Clearwater, Inc. Assistant Attorney General 1825 K Street, NW, Suite 200 Office of the Attorney General Washington, D.C. 20006 of the State of New York rwebster@publicjustice.net 120 Broadway, 26th Floor New York, New York 10271 janice.dean@ag.ny.gov Michael J. Delaney, Esq. kathryn.liberatore@ag.ny.gov Director, Energy Regulatory Affairs NYC Department of Environmental Protection Sean Murray, Mayor 59-17 Junction Boulevard Kevin Hay, Village Administrator Flushing, NY 11373 Village of Buchanan mdelaney@dep.nyc.gov Municipal Building 236 Tate Avenue John J. Sipos, Esq. Buchanan, NY 10511-1298 Charles Donaldson, Esq. smurray@villageofbuchanan.com Assistant Attorneys General administrator@villageofbuchanan.com Office of the Attorney General of the State of New York Elyse Houle, Legal Support The Capitol, State Street Albany, New York 12224 john.sipos@ag.ny.gov charlie.donaldson@ag.ny.gov elyse.houle@ag.ny.gov
[Original signed by Brian Newell ]
Office of the Secretary of the Commission Dated at Rockville, Maryland this 12th day of June, 2013 3