Entergy Nuclear Indian Point 2 LLC, Entergy Nuclear Indian Point 3 LLC and Entergy Nuclear Operations Inc., saying a New York investigation of the safety of the Indian Point nuclear plant is illegal, nevertheless asked the state Public Service Commission on Jan. 12 to appoint an administrative law judge to handle the safety review.
The Entergy companies said they want the ALJ to serve as presiding officer and to adjudicate discovery-related disputes in the commission’s informal safety investigation. “While designated as an informal proceeding at this stage, political pressures on the Staff of the Department of Public Service (‘DPS Staff’) heighten the need for an impartial agency officer, and prompt rulings by such an impartial officer to resolve already-ripe disputes (and any future disputes) between the parties could potentially avoid the need for litigation in court,” the companies said.
The Indian Point Energy Center, located on the Hudson River, has a generating capacity of more than 2,000 MW within two operating units. The operation of the plant, and its effects on the environment, including cooling water impacts on the Hudson River, have long been a source of controversy in the state. The plant’s two operating units are also subject to protracted re-licensing proceedings at the Nuclear Regulatory Commission. These three companies are units of Entergy Corp. (NYSE: ETR).
On Dec. 16, 2015, New York Gov. Andrew M. Cuomo directed PSC Chairwoman Audrey Zibelman to require Department of Public Service (DPS) staff to launch an investigation into nuclear safety at the Indian Point Energy Center in Buchanan, New York, which the Entergy companies noted is a merchant generator operating exclusively in federally-regulated wholesale markets. Cuomo asserted that “we must ensure that the twenty million people that live within the shadow of Indian Point are truly safe from a nuclear incident,” and that “New York State will not sit idly by while the NRC and Entergy drag out the federal licensing proceedings.”
“Such an attempt by a state to regulate a nuclear plant based on nuclear safety concerns is preempted by federal law,” the Entergy companies said. Congress named the Nuclear Regulatory Commission to oversee plant safety, they added.
The companies continued: “The investigation is equally unprecedented in that it seeks highly detailed financial and operational information regarding Indian Point spanning across five to ten year time periods, even though Indian Point must earn its revenues from the wholesale markets pursuant to tariffs within the exclusive regulatory authority of the Federal Energy Regulatory Commission under the Federal Power Act, and even though Indian Point is unable to pass its costs onto ratepayers, unlike the investor-owned retail utility that previously owned the Indian Point plant and was subject to PSC jurisdiction.
“Notwithstanding these fundamental flaws that affect the investigation, Entergy has chosen to reserve its rights to object to the Investigation as a whole on those grounds, and to cooperate with the investigation in good faith by producing a significant portion of the large number of documents and information that appear responsive to the Interrogatory/Document Requests (‘IRs’) issued by DPS Staff. However, the scope of certain of those IRs is objectionable. The first two sets of IRs, 37 IRs in total, seek documents on a wide range of subjects for time periods of five to ten years, requiring production of tens of thousands of documents. And such requests seeks documents far beyond any matter that the State of New York would be entitled to investigate or to take regulatory action upon.
“For example, DPS Staff IR-5—to which Entergy has objected and declined to produce documents or information—expressly seeks information that is at the core of NRC’s exclusive federal regulatory authority, asking for ‘a list of capital projects required by the [NRC] for Indian Point Units 2 and 3 for the last 5 years,’ as well as further information including ‘all studies and alternative analysis of each project.’ For another example, DPS Staff IR-22—to which Entergy has also objected and declined to produce documents—is extremely burdensome in terms of the volume of documents requested over a five-year time period: ‘Provide supporting documents provided to approving party and minutes of the party that approved capital expenditure budgets for Entergy Nuclear Indian Point 2, LLC and Entergy Nuclear Indian Point 3, LLC for the period January 1, 2011 through December 31, 2015.’
“Entergy timely filed its objections and identified the estimated time frames to produce documents and information responsive to each IR in DPS Staff’s first set of IRs on January 7, 2016. On that same date, Entergy received DPS Staff’s second set of IRs. Entergy nevertheless maintained its schedule and began issuing responses to the first set of IRs on January 8, 2016 and will continue to forward responses as completed per DPS Staff’s request. Entergy will timely file its objections and, where possible, its responses to DPS Staff’s second set of IRs by January 18, 2016.
“This motion respectfully seeks appointment of an ALJ to serve as the presiding officer and to adjudicate Entergy’s objections and any further disputes that may arise. Such an appointment is warranted based on both fairness and efficiency concerns. First, given the political and timing pressures being imposed on DPS Staff, there is a particular need for an impartial ALJ to resolve Entergy’s objections. Second, it would be more efficient to utilize the customary approach of having an ALJ as the presiding officer in place as he or she may be able to resolve certain disputes in this informal investigation quickly and without the need for one or the other party to seek relief in court.”