Request for Adjudicatory Hearing On Notice of Denial - Indian Point ...

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(6) State statutes, regulations and criteria otherwise applicable to such activities. (underlining in original; italics supplied). Thus, the language of §608.9(a)(6), read in its entirety, is consistent with the language of §401, in that it requires a demonstration of compliance with those New York statutes, regulations and criteria that implement §§301-303, 306 and 307 of the CWA. The Notice does not assert, nor can it, that ECL §11-0535 implements any of the referenced provisions of the CWA, because the taking of endangered or threatened species is regulated under an entirely separate federal statute – the Endangered Species Act. Thus, alleged non-compliance with ECL §11-0535 is not a legal basis for denial of the Application, and Staff’s denial of the Application on this basis is contrary to law. Moreover, Staff’s reference to 6 NYCRR §701.11 in relation to the impingement and entrainment of sturgeon is equally contrary to law. As discussed above, Part 701 is strictly limited to impacts associated with the discharge of sewage, industrial waste or other wastes on the best usages of New York waters and there is no basis to deny the Application under Part 701 due to alleged impacts of impingement and entrainment. Thus, Staff’s resort to this provision in the context of the impingement and entrainment of sturgeon does not cure its legal invalidity. Based upon the above, the proposed issue for resolution as a matter of law is: Whether NYSDEC improperly denied Indian Point’s WQC, because NYSDEC cannot deny the Application on the basis of alleged taking of endangered or threatened species in violation of ECL Article 11 or 6 NYCRR §701.11? 6. NYSDEC Staff has not satisfied SEQRA. In its Notice, NYSDEC Staff does not address the role of the State Environmental Quality Review Act, ECL §08-0101 et seq. (“SEQRA”), in the processing of the Application. However, in its Notice of Complete Application, Staff indicated that the Application was a Type II Action and, on that basis according to Staff, not subject to review under SEQRA. In contrast, Staff expressly concluded that the application of §704.5 to the Stations in the SPDES Permit proceeding (among other proposed conditions) is subject to review under SEQRA, a conclusion with which the ALJs in that proceeding and the Assistant Commissioner agreed. See, e.g., SPDES Proceeding, Issues Ruling, pp. 37-39; SPDES Proceeding, Interim Decision of the Assistant Commissioner, pp. 36-41. Indeed, the parties to that SPDES Proceeding are in the process of preparing and submitting SEQRA reports, as directed by the Interim Decision and pursuant to a schedule established by the ALJs at this very time. For example, Attachment A, prepared by NERA Economic Consulting and incorporated herein by reference, discusses the potential impacts of decisions under §704.5 on electric system reliability, electricity prices, and the ability of New York to achieve its ambitious air pollution and climate change goals. NYSDEC Staff has offered no basis, nor explanation, of their position that the application of §704.5 in the SPDES Permit proceeding is subject to SEQRA, while application of the very same provision at the very same Stations is SEQRA-exempt as a so-called “Type II” action, and we have identified no reasonable basis for concluding that Staff’s characterization is proper on LIBB/1689589.8 12
its face or in light of prior Assistant Commissioner and ALJ rulings in the related SPDES matter. See also Draft BTA Policy, pp. 7 (concluding that draft BTA Policy will not have a significant adverse impact on the environment). Staff also has not expressly deferred to, nor incorporated, the SEQRA outcome of the SPDES Proceeding into this proceeding in a manner that reasonably could eliminate the need for a secondary SEQRA proceeding. Finally, Staff has not indicated that they will adopt the future federal Supplemental Environmental Impact Statement (“FSEIS”) being prepared by the NRC pursuant to ECL §08-0111 and expected to be issued in August 2010. As such, Entergy must raise Staff’s compliance with SEQRA as a legal issue for resolution in the adjudicatory hearing, mirroring a request made – and confirmed – by the Assistant Commissioner in the SPDES permit proceeding under the same law and facts. See 6 NYCRR §624.4(c)(6)(i)(a) (authorizing ALJ review of determination by Staff not to require the preparation of an environmental impact statement). Based upon the above, the proposed issue for resolution as a matter of law is: Whether, absent express deferral to the pending SEQRA analysis in the SPDES Proceeding or the NRC’s FSEIS, Staff properly has established their compliance with SEQRA? Section II – Factual Issues for Adjudication Consistent with 6 NYCRR §624.4(c)(2), the following represent contested or disputed issues of fact relating to matters cited by NYSDEC staff as a basis to deny the Application, and, therefore, should be advanced for resolution in an adjudicatory hearing. 1. NYSDEC Staff’s denial of the Application on the grounds that Entergy has not demonstrated compliance with thermal discharge law is arbitrary, capricious, and not in accordance with applicable law. The Notice states that “the Department has determined to deny Entergy’s application for a WQC because the supporting materials do not currently demonstrate compliance with the referenced thermal standards and criteria. The Department could reconsider its position on this issue should Entergy provide a verified thermal model that demonstrates compliance with the applicable thermal criteria.” See Notice, p.13 (emphasis supplied). In its Notice, Staff also indicates that “noncompliant ‘thermal discharges’ … into a class SB water also impair the water for its best usage particularly where, as here, primary and secondary contact recreation is concerned.” See Notice of Denial, p.11. It is not clear whether NYSDEC Staff is implying that thermal discharges from the Stations during the License Renewal Period would in fact not comply with the applicable thermal criteria of Part 704. To that end, we request that this Tribunal obtain clarification from NYSDEC staff on their position with respect to thermal discharges. To the extent NYSDEC Staff indicates that it actually denied the Application on this basis, Entergy contests that basis for denial as arbitrary, capricious and not in accordance with law. The materials provided in the Application and supplemental information submitted by Entergy provide reasonable assurances that the Stations will comply with applicable thermal discharge criteria during the License Renewal Period. Moreover, Staff’s Notice provides no rationale whatsoever that thermal discharges from the Stations impair the water for its best LIBB/1689589.8 13
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