ML15356A297

Order (Denying Application for Subpoenas, Denying Motion for Summary Disposition, and Granting in Part and Denying in Part Motions to Strike)

ML15356A297
Person / Time
Site:	Turkey Point
Issue date:	12/22/2015
From:	Michael Gibson Atomic Safety and Licensing Board Panel
To:
SECY RAS
References
50-250-LA, 50-251-LA, ASLBP 15-935-02-LA-BD01, RAS 28691
Download: ML15356A297 (21)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Michael M. Gibson, Chairman Dr. Michael F. Kennedy Dr. William W. Sager In the Matter of Docket Nos. 50-250-LA and 50-251-LA FLORIDA POWER & LIGHT COMPANY ASLBP No. 15-935-02-LA-BD01 (Turkey Point Nuclear Generating, Units 3 and 4) December 22, 2015 ORDER (Denying Application for Subpoenas, Denying Motion for Summary Disposition, and Granting in Part and Denying in Part Motions to Strike)

Before the Board are four motions concerning the evidentiary record and the merits of this license amendment proceeding. The intervenor, Citizens Allied for Safe Energy, Inc.

(CASE), requests subpoenas for four expert witnesses who are unwilling to testify voluntarily.1 The applicant, Florida Power & Light Company (FPL), moves for summary disposition2 and has also sought to strike significant portions of CASEs initial statement of position and exhibits.3 The NRC Staff seeks to strike large portions of CASEs rebuttal statement of position.4 For the reasons given below, the Board denies CASEs application for subpoenas, denies FPLs motion 1 CASE Second Motion Requesting Subpoenas for Expert Witnesses for January, 2016 (Dec. 9, 2015) [hereinafter Second Application for Subpoenas].

2 Florida Power & Light Companys Motion to Dismiss CASE Contention 1 or, in the Alternative, for Summary Disposition (Dec. 3, 2015) [hereinafter Motion for Summary Disposition].

3 Florida Power & Light Companys Motion to Strike Portions of CASEs Initial Statement of Position, Testimony, Affidavits and Exhibits or, in the Alternative, Motion In Limine to Exclude it and its Cited Documents from Evidence (Oct. 19, 2015) [hereinafter FPLs Motion to Strike].

4 NRC Staffs Motion in Limine to Exclude Portions of the Prefiled Rebuttal Testimony or in the Alternative Strike Portions of the Prefiled Rebuttal Testimony and Rebuttal Statement of Position (Dec. 14, 2015) [hereinafter NRC Staffs Motion to Strike].

for summary disposition, and grants in part and denies in part FPLs and the NRC Staffs motions to strike CASEs initial and rebuttal evidence.

I. CASES APPLICATION FOR SUBPOENAS CASE previously submitted a request for subpoenas for five witnesses on November 3, 2015,5 which the Board denied because, among other reasons, CASE had not shown that it had sought voluntary testimony from any of the five witnesses.6 After trying and failing to obtain voluntary testimony from four of the five potential witnesses, CASE renewed its request for subpoenas on December 9, 2015.7 CASE seeks expert testimony from two employees of Biscayne National Park, two employees of Miami-Dade Countys Department of Environmental Resources Management, and an employee of the South Florida Water Management District.8 FPL and the NRC Staff oppose CASEs request.9 As an initial matter, both FPL and the NRC Staff argue that CASEs application should be denied for failure to include the required certification that CASE consulted with the other parties.10 The Board reminds CASE that consultation and the certificate of consultation are required even when a party has already consulted with the other parties concerning an earlier, substantially similar motion.11 5 CASE Motion Requesting Subpoenas for Expert Witnesses for January, 2016 Evidentiary Hearing (Nov. 3, 2015) (unpublished).

6 Licensing Board Order (Denying CASEs Application for Subpoenas) (Nov. 12, 2015) at 2.

7 Second Application for Subpoenas.

8 Id. at 2-4.

9 NRC Staffs Answer Opposing CASE Motion Requesting Subpoenas for Expert Witnesses for January 2016 Evidentiary Hearing (Dec. 15, 2015) [hereinafter NRC Staff Response to Subpoenas]; Florida Power & Light Companys Answer to CASEs Second Motion Requesting Subpoenas for Expert Testimony for Evidentiary Hearing (Dec. 15, 2015) [hereinafter FPL Response to Subpoenas].

10 NRC Staff Response to Subpoenas at 2; FPL Response to Subpoenas at 2.

11 10 C.F.R. § 2.323(b); Licensing Board Order (Initial Scheduling Order) (May 8, 2015) at 13

As the Board explained in its decision denying the original subpoena request, a subpoena in a Subchapter L proceeding represents an extraordinary remedy, and expert testimony in particular may be compelled only in very limited circumstances.12 CASE has not shown that those special circumstances are present here. Although the witnesses identified by CASE are certainly well-qualified, CASE has not demonstrated that they are unique experts or that comparable experts are unavailable. Because this proceeding concerns groundwater migration and saltwater intrusion, any qualified hydrogeologist could provide an expert opinion on the matter in controversy. CASE does allege that two of the experts drafted a key piece of evidence in this proceeding.13 However, because the timeline and authenticity of this document is not in dispute, it is not clear what factual testimony these two witnesses would add to the proceeding. As CASE acknowledges in requesting subpoenas for expert testimony, the experts primary value lies in their opinion testimony about whether it is reasonably foreseeable that the license amendment will contribute to water migration out of the cooling canal system and saltwater intrusion.

Accordingly, the Board denies CASEs second application for subpoenas because these circumstances do not merit the extraordinary remedy of forcing expert witnesses to appear and provide their opinion testimony against their will and without compensation.

(unpublished).

12 Licensing Board Order (Denying CASEs Application for Subpoenas) (Nov. 12, 2015) at 2 (unpublished). The Board noted that subpoenas for expert testimony are assessed based on the degree to which the expert is being called because of his [or her] knowledge of facts relevant to the case rather than in order to give opinion testimony; the difference between testifying to a previously formed or expressed opinion and forming a new one; the possibility that, for other reasons, the witness is a unique expert; the extent to which the calling party is able to show the unlikelihood that any comparable witness will willingly testify; the degree to which the witness is able to show that he [or she] has been oppressed by having continually to testify . . . . Id. at 3 n.11 (quoting Kaufman v. Edelstein, 539 F.2d 811, 822 (2d Cir. 1976)).

13 Second Application for Subpoenas at 9.

II. FPLS MOTION FOR

SUMMARY

DISPOSITION On December 3, 2015, FPL moved for dismissal of Contention 1, or in the alternative, summary disposition.14 Based on CASEs lack of expert testimony, FPL argues that CASE has not demonstrated standing and has not provided enough evidence to satisfy CASEs burden of going forward.15 CASE responds that the proceeding should go forward because a hearing is necessary to resolve the dispute over the impacts of FPLs freshwater withdrawals from the L-31E Canal and FPLs nearly freshwater withdrawals from the Upper Floridan Aquifer.16 In a Subpart L proceeding, such as this one, the Board applies the summary disposition standard set forth in Subpart G.17 Under this standard, summary disposition is proper:

if the filings in the proceeding, depositions, answers to interrogatories, and admissions on file, together with the statements of the parties and the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a decision as a matter of law.18 Because the burden is on the party requesting summary disposition, the Board must examine the record in the light most favorable to the non-moving party and give the non-moving party the benefit of all favorable inferences that can be drawn from the evidence.19 The Board may also 14 Motion for Summary Disposition at 1. On December 21, 2015, the NRC Staff filed an answer in support of FPLs motion for summary disposition. NRC Staff Answer to Motion to Dismiss or in the Alternative Summary Disposition (Dec. 21, 2015).

15 Id. at 6, 8.

16 Citizens Allied For Safe Energy, Inc.s Answer to FPLs Motion to Dismiss Case Contention 1 or, in the Alternative, for Summary Disposition, and FPLs Statement of Material Facts on Which No Genuine Dispute Exists (Dec. 13, 2015) at 8.

17 10 C.F.R. § 2.1205(c).

18 10 C.F.R. § 2.710(d)(2).

19 Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 297 (2010).

consider whether responding to a motion for summary disposition would divert substantial resources from the hearing.20 In reviewing the filings submitted in this proceeding, the Board concludes that CASE has submitted sufficient evidence to satisfy its burden of going forward and that, at this stage of the proceeding, the Boards resources would be best served by reviewing the evidence more thoroughly at a hearing. A motion for summary disposition requires significant and often duplicative time and effort from all parties (and the Board), whereas Subpart L evidentiary hearings have proven to be short, usually requiring a day or less to hear a contention.21 Based on a short review of the evidence, the Board determines that the questions raised by CASEs evidentiary submissions would best be resolved at a hearing.

First, with respect to standing, the Board found that CASE had met its burden at the initial contention stage based on allegations of a sufficient injury related to the use of freshwater aquifer resources and any resulting potential for increased saltwater intrusion.22 CASE has now offered probative evidence of this injury in the form of an administrative order from the Florida Department of Environmental Protection.23 In its finding of facts, that administrative order explains the rationale for the States conclusion that saline water from the cooling canal system (CCS) has migrated inland and contributed to saltwater intrusion.24 As a 20 10 C.F.R. § 2.710(d)(1).

21 See Progress Energy Florida, Inc. (Levy County Nuclear Power Plant, Units 1 & 2), LBP 22, 70 NRC 640, 651-52 (2009).

22 LBP-15-13, 81 NRC 456, 466 (2015).

23 Ex. INT-004, Florida Department of Environmental Protection, Administrative Order, OGC No. 14-0741 (Dec. 23, 2014) [hereinafter Administrative Order]. The hearsay nature of this order does not bar its admission per se, particularly in the absence of any objection to the statement of facts recounted in the order. See Advanced Med. Sys., Inc. (One Factory Row, Geneva, Ohio 44041), CLI-94-6, 39 NRC 285, 306-07 (1994) (construing prior version of summary disposition regulation, 10 C.F.R. § 2.749 (2004), which is substantially similar to the current regulation).

24 Ex. INT-004, Administrative Order ¶ 25.

result, the State determined the western [inland] migration of the saline water must be abated to prevent further harm to the waters of the State.25 The administrative order concludes by describing the States plan to reduce the environmental impact of saltwater intrusion by reducing salinity in the canals:

Reducing the salinity from a higher base salinity condition will require additional measures such as a greater addition of fresh water, removal of salt mass from the CCS, and alteration of CCS inflows and outflows. Higher precipitation amounts, lower temperatures, and higher regional water levels will also assist in reducing CCS salinity levels.26 This administrative order is sufficient evidence to deny the motion for summary disposition with respect to standing because CASEs members use water near the Turkey Point facility and so could suffer harm from freshwater withdrawals and from the CCSs disputed contribution to saltwater intrusion.27 CASEs members rely on the water supply of the Floridan Aquifer;28 although the parties dispute the freshness of this water source, FPLs expert acknowledges that it can be used as drinking water after treatment.29 And CASE members also face potential harm from saltwater intrusion exacerbated by FPLs freshwater withdrawals from the L-31E Canal.

25 Id.

26 Id. ¶ 35 (emphasis added).

27 See Cent. Delta Water Agency v. United States, 306 F.3d 938, 947 (9th Cir. 2002) (finding that farmers had established standing based on a threatened injury from increase in salinity in a river the farmers used to water their crops).

28 See Declaration in Support of Citizens Allied for Safe Energy, Inc./CASE Petition to Intervene In the Issuance of Amendments to Renewed Facility Operating License Nos. DPR-31 and DPR-41 Issued to Florida Power & Light for the Operation of the Turkey Point Nuclear Generating Units 3 and 4 Located in Miami-Dade County, Florida (Oct. 14, 2014).

29 According to FPLs hydrology expert, [t]he salinity of water in the [Upper Floridan Aquifer] is approximately 2.5 [practical salinity units]. The water in the [Upper Floridan Aquifer] is relatively fresh, compared to the water in the CCS, but is still salty enough that it must be treated prior to its use as drinking water. Ex. FPL-001, Initial Written Testimony of Florida Power & Light Company Witnesses Steve Scroggs, Jim Bolleter, and Pete Andersen on Contention 1 (Nov. 10, 2015) at 48 [hereinafter FPL Testimony].

According to the South Florida Water Management District, the freshwater in the canals is used, inter alia, to prevent saltwater intrusion.30 In explaining how to alleviate the problem of hypersalinity in the CCS, the administrative order also provides probative evidence of the other two requirements for standingcausation and redressability. The order ties lower temperatures to lower salinity levels, which it concludes would reduce migration of hypersaline water out of the CCS.31 With the inference drawn in CASEs favor that increased salinity in the CCS leads to greater migration of hypersaline water out of the CCS, this evidence is enough to support CASEs standing argument regarding causation. Finally, with respect to redressability, were the Board to conclude that CASE is correct about saline water migrating out of the canals, the Board could partially redress this salinity issue by finding that a license condition would need to be inserted that prevented FPL from operating the canals at higher temperatures.32 A remedy that makes even a small contribution to resolving a larger, more complex injury can still support a standing claim.33 The Board likewise concludes that the standard for summary disposition has not been met because the filings in this case demonstrate a genuine legal dispute over the adequacy of the NRC Staffs environmental assessment. The evidence submitted by CASE, primarily the States Administrative Order and Miami-Dade Countys Notice of Violation, provide probative evidence of saltwater intrusion and water migrating out of the CCS,34 neither of which was 30 See Ex. FPL-033, South Florida Water Management District, Final Order, SFWMD No. 2015-020-DAO-WU (Apr. 10, 2015).

31 Ex. INT-004, Administrative Order ¶ 35.

32 LBP-15-13, 81 NRC at 466.

33 See Massachusetts v. EPA, 549 U.S. 497, 526 (2007) (The risk of catastrophic harm, though remote, is nevertheless real. That risk would be reduced to some extent if petitioners received the relief they seek.).

34 See Ex. INT-004, Administrative Order ¶¶ 25, 29, 32, 34-35; INT-005, Miami-Dade County Department of Regulatory and Economic Resources, Notice of Violation and Orders for Corrective Action (Oct. 2, 2015) ([The Department of Environmental Resources Management]

discussed in the environmental assessment.35 The probative value of CASEs evidence, or on FPLs testimony to the contrary, is not a matter that the Board may decide at summary disposition.36 The Board must consider the merits of the conflicting evidence and rule on the merits of each sides position at an evidentiary hearing.

III. FPLS MOTION TO STRIKE On October 19, 2015, FPL moved to strike portions of CASEs Initial Statement of Position, Testimony, Affidavits and Exhibits.37 On October 26, 2015, the NRC Staff filed an answer in support of FPLs motion to strike.38 CASE filed an answer in opposition to FPLs motion on October 29, 2015.39 Both FPL and the NRC Staff contend that (1) a number of CASEs attached exhibits should be excluded because they were not sponsored by an expert, and (2) CASE raises arguments that are outside the scope of the Contention 1, as admitted.40 maintains that hypersaline water attributable to FPL exists in the groundwater outside the CCS and outside the property boundaries.).

35 See Environmental Assessment and Final Finding of No Significant Impact, Issuance, 79 Fed.

Reg. 44,464, 44,466 (July 31, 2014).

36 See Pilgrim, CLI-10-11, 71 NRC at 297.

37 FPLs Motion to Strike.

38 NRC Staffs Answer to [FPLs Motion to Strike] (Oct. 26, 2015) [hereinafter Staff Answer].

39 Citizens Allied for Safe Energys Answer to [FPLs Motion to Strike] (Oct. 29, 2015)

[hereinafter CASE Answer].

40 FPLs Motion to Strike at 1; Staff Answer at 3-5. In its motion to strike, FPL also argues that certain exhibits should be excluded because they were not properly disclosed or introduced into the record. FPLs Motion to Strike at 1, 4. Specifically, FPL maintains that CASE ignored the Boards Initial Scheduling Order instructing the parties as to the proper presentation of exhibits.

Id. at 5; see Licensing Board Order (Initial Scheduling Order) (May 8, 2015) at 14 (unpublished).

Initially, CASE submitted multiple exhibits (such as emails, graphs, and excerpts from scientific reports) in one filing and did not number these exhibits. See Citizens Allied for Safe Energy Initial Statement of Position, Testimony, Affidavits and Exhibits (Oct. 9, 2015) [hereinafter CASE Statement]. However, in a October 21, 2015 order, the Board directed CASE to re-submit these exhibits individually and to number each individual exhibit in the order that they appear in CASEs Initial Statement of Position. Licensing Board Order (Requiring Proper Numbering of CASEs Exhibits) (Oct. 21, 2015) (unpublished). CASE then resubmitted its exhibits with proper numbering, although many of the exhibits were still filed as one document. See Ex. INT-001,

Thereafter, FPL and the NRC Staff submitted their initial statements of position and testimony.41 On December 1, 2015, CASE submitted its rebuttal testimony and statement of position, including a declaration by Dr. Phillip K. Stoddard.42 On December 14, 2015, the NRC Staff moved to exclude certain portions of CASEs prefiled rebuttal testimony and rebuttal statement of position.43 FPL also filed an answer supporting the NRC Staffs motion to exclude CASEs rebuttal testimony.44 For the reasons stated below, the NRC Staffs and FPLs motions to strike are granted in part and denied in part.

NRC regulations provide that [o]nly relevant, material, and reliable evidence which is not unduly repetitious will be admitted in an evidentiary hearing.45 A licensing board may strike any portion of a written presentation . . . that is irrelevant, immaterial, unreliable, CASE, The Science of the Turkey Point Wetlands (Oct. 26, 2015). Subsequently, FPL revised its Motion to Strike to address CASEs renumbered exhibits. See Florida Power & Light Companys Revision to Tables in its October 19, 2015 Motion To Strike (Oct. 27, 2015)

[hereinafter FPLs Revised Motion to Strike]. Consequently, FPLs argument concerning the improper presentation of exhibits has been mooted by the Boards October 21st Order and CASEs resubmission of its exhibits.

41 NRC Staffs Initial and Rebuttal Statement of Position Regarding Contention 1 (Nov. 10, 2015) [hereinafter NRC Staff Statement]; Ex. NRC-001, NRC Staff Testimony of Audrey L. Klett, Briana A. Grange, William Ford, and Nicholas P. Hobbs Concerning Contention 1 (Nov. 10, 2015) [hereinafter Staff Testimony]; Florida Power & Light Companys Initial Statement of Position (Nov. 10, 2015) [hereinafter FPL Statement]; FPL Testimony.

42 Citizens Allied for Safe Energys Joint Rebuttal to NRC Staffs and FPLs Initial Statements of Position, Exhibit List and Exhibits (Dec. 1, 2015) [hereinafter CASE Rebuttal].

43 NRC Staffs Motion to Strike.

44 Florida Power & Light Companys Answer Supporting the NRC Staffs Motion in Limine (Dec.

15, 2015).

45 10 C.F.R. § 2.337(a).

duplicative or cumulative.46 The Commission has also stated that a licensing board normally has considerable discretion in making evidentiary rulings.47 A. Expert Sponsorship First, FPL moves to exclude a number of CASEs exhibits on the ground that these materials were not properly sponsored by an expert witness.48 The exhibits that FPL seeks to exclude primarily consist of (1) excerpted portions of academic articles,49 and (2) various emails between state and local officials regarding the CCS.50 Unsponsored technical documents are primarily considered less reliable because they are hearsay.51 Since it is well-settled that a Board may consider hearsay evidence,52 [w]hether 46 Id. § 2.319(d).

47 Duke Energy Corp. (Catawba Nuclear Station, Units 1 & 2), CLI-04-21, 60 NRC 21, 27 (2004).

48 FPLs Motion to Strike at 4-5.

49 The challenged exhibits that consist of excerpted academic articles include INT-001, and INT-041 through INT-054. As indicated above, CASE did not file each exhibit as a separate document. Rather, many of the exhibits appear in CASEs Statement of Position and within INT-001. For the sake of clarity, the Board will reference the document at issue using the exhibit number assigned by CASE in its exhibit list. See Ex. INT-007, Citizens Allied for Safe Energy, Inc. Hearing Exhibits (revised Oct. 26, 2015).

50 The challenged exhibits that consist of emails include INT-018 through INT-025, INT-027, INT-036, and INT-037.

51 10 C.F.R. § 2.337(a) (Only relevant, material, and reliable evidence which is not unduly repetitious will be admitted.); see, e.g., Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), ALAB-950, 33 NRC 492, 500-01 (1991) (For evidence on highly technical subjects (such as the response of reactor vessel materials to neutron irradiation and temperature variables) to be considered reliable and thus admissible, the proponent thereof must show her or his qualifications to sponsor and discuss such evidence.); Tenn. Valley Auth.

(Hartsville Nuclear Power Plant Units 1A, 2A, 1B, and 2B), ALAB-367, 5 NRC 92, 121 (1977)

(Expert testimony in hearsay form from someone unknown is most unreliable.); Wis. Electric Power Co. (Point Beach Nuclear Plant, Unit 2), ALAB-78, 5 AEC 332 (1972) (The principal objection to expert testimony which relies on data prepared by others is that such data incorporated by reference in testimony constitutes hearsay.).

52 Phila. Electric Co. (Limerick Generating Station, Units 1 & 2), ALAB-863, 25 NRC 273, 279 (1987).

evidence is or is not hearsay is significant only insofar as it bears on the question of its reliability.53 Although a Board may determine reliability before the hearing, there is no ironclad requirement in administrative proceedings where no jury is involved54 because, unlike juries, Boards include[] technical experts who can evaluate the factual material in the record and reach their own judgment as to its significance.55 As the Commission has stated:

The Board conducting an adversarial evidentiary proceeding is not required to act merely as an umpire calling balls and strikes. Its function as the arbiter of important safety and environmental questions does not permit it to act as an umpire blandly calling balls and strikes for adversaries appearing before it . . . It has the right and duty to develop a full record for decision-making in the public interest.56 Therefore, a determination [of the reliability of the contested exhibits] can be safely left to a later date without prejudicing the interests of any party.57 Moreover, the reliability of such hearsay evidence bears more on the exhibits probative value than their admissibility. Accordingly, the validity and sufficiency of any hearsay information upon which [the allegations] are based generally is a matter to be tested in the context of an evidentiary hearing in which the NRC Staff must provide adequate probative evidence to carry its burden of proof.58 The Board, therefore, exercises its considerable 53 S. Cal. Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3), ALAB-717, 17 NRC 346, 366 (1983).

54 Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), ALAB-520, 9 NRC 48, 50 n.2 (1979).

55 Pac. Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), LBP-94-35, 40 NRC 180, 192 (1994) (internal quotation marks omitted).

56 Tex. Utilities Generating Co. (Comanche Peak Steam Electric Station, Units 1 & 2), LBP 87, 16 NRC 1195, 1199 (1982) (quoting Scenic Hudson Pres. Conference v. Fed. Power Commn, 354 F.2d 608, 620 (2d Cir. 1965)).

57 Seabrook Station, ALAB-520, 9 NRC at 50 n.2.

58 Indiana Regl Cancer Ctr., LBP-94-21, 40 NRC 22, 31 (1994).

discretion59 to defer its ruling on the disputed portions of CASEs unsponsored exhibits. The Board will be better able to resolve the disputes surrounding FPLs motion upon consideration of the full evidentiary record.

B. Arguments Outside the Scope of the Contention Second, in its motion to strike, FPL asserts that CASE has raised a number of arguments that are outside the scope of the admitted contention. Contention 1, as admitted by the Board, reads as follows:

The NRCs environmental assessment, in support of its finding of no significant impact related to the 2014 Turkey Point Units 3 and 4 license amendments, does not adequately address the impact of increased temperature and salinity in the CCS on saltwater intrusion arising from (1) migration out of the CCS; and (2) the withdrawal of fresh water from surrounding aquifers to mitigate conditions within the CCS.60 As a general matter, FPL moves to strike CASEs evidence (including portions of the Environmental Assessment (EA) itself), that FPL claims to be outside the scope of Contention 1, as admitted. While CASE certainly has included quotes from portions of the EA that are outside the scope of the admitted contention, some are clearly within the scope of the admitted contention and the Board is more than capable of considering those portions of CASEs evidence that are properly within the scope of the admitted contention. Certainly, there is no need to throw out the baby with the bathwater by excluding all quoted portions of the EA from the record. Thus, the Board denies FPLs motion to strike the cited portions of the EA.

Next, FPL maintains that CASEs assertions concerning the need for additional monitoring of the CCS are beyond the scope of the admitted contention.61 In its statement of position, CASE argues that the NRC Staffs monitoring requirements are insufficient because 59 Catawba Nuclear Station, CLI-04-21, 60 NRC at 27.

60 LBP-15-13, 81 NRC at 473, 476.

61 FPLs Motion to Strike at 9, 11-12.

the license, as amended, obligates FPL to monitor for temperature, but not for the presence of other chemicals.62 In support of this argument, CASE cites to numerous emails between state officials regarding sampling for trace metals and nutrients in the CCS.63 The Board agrees with FPL that this argument concerning the potential environmental impact of certain chemicals in the CCS is outside the scope of the Contention 1. In the Boards March 23, 2015 decision admitting Contention 1, the Board determined that CASE failed to demonstrate there was a genuine dispute regarding the EAs discussion of the environmental impacts associated with these chemicals in the CCS.64 CASE cannot stretch the limits of Contention 1 to encompass arguments that this Board has already deemed inadmissible. As such, the Board grants FPLs motion to strike those portions of CASEs statement of position and exhibits insofar as they discuss the need for increased monitoring for these chemical constituents in the CCS. The specific sections being stricken are identified in Appendix A.

FPL also takes issue with an email, cited by CASE, which concerns the double-crested cormorant.65 This email simply states that the colony of double-crested cormorants in the CCS has undergone a severe decline; there is no statement linking this decline to increases in the CCSs temperature or salinity.66 As such, this email has no bearing on the contention at issue, and the Board grants FPLs motion to strike this excerpt.67 Similarly, FPL and the NRC Staff contend that CASE improperly relies on excerpts from a paper by Dr. Sydney Bacchus entitled Knowledge of Ground Water Responses - Critical 62 CASE Statement at 35-43.

63 Id. at 41-43.

64 LBP-15-13, 81 NRC at 478.

65 CASE Statement at 38.

66 Id.

67 See 10 C.F.R. § 2.319(d) (stating that a Board may strike any portion of a written presentation . . . that is irrelevant . . . .).

Factor in Saving Floridas Threatened and Endangered Species Part I; Marine Ecological Disturbances and which CASE has labeled exhibit INT-052.68 According to FPL and the NRC Staff, the so called Bacchus Paper69 discusses the various negative impacts on wildlife due to groundwater alterations70 that are well beyond the scope of Contention 1.71 The Bacchus Paper describes these groundwater alterations or groundwater perturbations as including, among other things, (1) aquifer injection of effluent and other ecologically hazardous wastes; (2) aquifer storage and recovery; (3) groundwater mining; and (4) structural mining of the aquifer system . . . .72 Upon review of the quoted excerpts, the Board concludes that the Bacchus Paper concerns a wide range of issues that are wholly outside the narrow scope of Contention 1. Accordingly, the Board grants FPLs motion to strike the Bacchus Paper.

Additionally, FPL moves to exclude those portions of CASEs statement of position that concern various aspects of the NRC Staffs obligations under NEPA.73 As an initial matter, FPL moves to strike portions of CASEs initial statement of positon that simply quote sections of NEPA.74 The Board sees no reason to strike these quoted portions of the statute. Nonetheless, 68 See Ex. INT-007, Citizens Allied for Safe Energy, Inc. Hearing Exhibits (revised Oct. 26, 2015) at 8. Confusingly, CASE quotes the Bacchus Papers Abstract in its Statement of Position, but then quotes the same portion of the Abstract with an additional excerpt from the papers Conclusions in INT-001. CASE labels the quotations located within INT-001 as INT-052. See supra note 40. For the sake of clarity, the Board will refer to this proposed exhibit simply as the Bacchus Paper.

69 FPLs Motion to Strike at 10.

70 CASE Statement at 34.

71 FPLs Motion to Strike at 10; NRC Staff Statement at 23.

72 See Ex. INT-001, The Science of the Turkey Point Wetlands (filed Oct. 26, 2015) at 23-24.

The quoted portions of the Bacchus Paper that appear in the text can be found in INT-001. As explained supra at note 68, CASE quotes sections of the Bacchus Paper in both its Statement of Position and in INT-001. CASE labels the quotations located within INT-001 as INT-052.

73 FPLs Motion to Strike at 10-12.

74 Id. at 11-12.

the Board agrees with FPL and the NRC Staff that CASE raises two NEPA-related arguments that are outside the scope of Contention 1namely: (1) CASEs claim that the NRC Staff failed to consult with the U.S. Fish and Wildlife Service, and (2) CASEs claim that the NRC Staff failed to adequately consider alternatives to granting the proposed license amendment.

Contention 1 is a narrow contention. Its scope does not encompass any and all arguments concerning the NRC Staffs NEPA obligations. Moreover, in its challenge to the NRC Staffs consideration of alternatives to the proposed action, CASE questions FPLs position that, without the license amendment, the CCS could exceed the current temperature limit necessitating a dual unit shutdown. CASEs arguments in this section are nearly identical to those set forth in support of Contention 2, which the Board previously deemed inadmissible.75 As such, the Board grants FPLs motion to strike those portions of CASEs statement insofar as it discusses these NEPA issues.

IV. STAFFS MOTION TO STRIKE CASES REBUTTAL FPLs motion to strike remained pending before the Board during the period in which the parties were required to submit their initial testimony. Accordingly, both FPLs and the NRC Staffs prefiled expert testimony addressed the purported out of scope topics, while still reserving their argument that such topics should be excluded.76 CASE, in turn, addressed this testimony in its statement of rebuttal.77 Consequently, consistent with FPLs motion to strike, the NRC Staff moved to exclude those portions of CASEs rebuttal that address the NRC Staffs purported failure to comply with various sections of NEPA.78 Specifically, in addition to the 75 LBP-15-13, 81 NRC at 475-77.

76 See NRC Staff Statement at 20-25; FPL Statement at 12, 27-28; Staff Testimony at 63-72; FPL Testimony at 26-30.

77 CASE Rebuttal at 37-43.

78 NRC Staffs Motion to Strike at 8-9. On December 15, 2015, FPL filed an answer in support of the NRC Staffs Motion to Strike. FPLs Answer Supporting the NRC Staffs Motion in Limine (Dec. 15, 2015).

arguments FPL identified as beyond the scope of the admitted contention and discussed abovenamely, (1) CASEs claim that the NRC Staff failed to consult with the U.S. Fish and Wildlife Service, and (2) CASEs claim that the NRC Staff failed to adequately consider alternatives to granting the proposed license amendmentthe NRC Staff also moves to exclude CASEs argument that the EA was developed too quickly.79 Consistent with the Boards resolution of FPLs motion to strike, those positions of CASEs rebuttal statement that relate to the timing of the EA, the NRC Staffs consultation with other agencies, and the NRC Staffs review of alternatives to the proposed action are beyond the scope of the admitted contention and are accordingly stricken.

The Board notes that the NRC Staffs motion primarily argues that the Board should exclude the entirety of Dr. Stoddards testimony by questioning Dr. Stoddards expertise and therefore the reliability of his testimony. However, [w]hether the situation is a proper one for the use of expert testimony is to be determined on the basis of assisting the trier.80 Certainly at this stage, the Board cannot conclusively determine that Dr. Stoddards testimony will not be of assistance to the Board.81 Therefore, to the extent the NRC Staffs motion seeks to exclude Dr. Stoddards testimony, this relief is denied.

79 The Board notes that the NRC Staff took issue with CASEs argument that the EA was developed too quickly in its Initial Statement of Position. See NRC Staff Statement at 21.

However, at that time, the NRC Staff did not separately move to strike any portion of CASEs Initial Statement relating to the timing of the EA. Instead, it only seeks to exclude those portions of CASEs rebuttal that address the timing of the EA.

80 Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-669, 15 NRC 453, 475 (1982) (quoting Notes of Advisory Committee on Proposed Rules, 28 U.S.C.A.,

Federal Rules of Evidence, fol. Rule 702).

81 See Catawba Nuclear Station, CLI-04-21, 60 NRC at 27-28 (stating that the standard for whether a witness is qualified to serve an expert is not rigid or self-defining and gives room to our boards to decide whether the expert witness will be of assistance).

V. CONCLUSION Before the Board is FPLs motion to strike large portions of CASEs statement of position and exhibits, and the NRC Staffs motion to exclude portions of CASEs rebuttal statement of position. For the above reasons, CASEs evidence is excluded insofar as FPL and the NRC Staff have established such evidence is outside of the permissible scope of Contention 1. All other relief requested is hereby denied. Those sections that are to be stricken are identified in Appendix A, which is attached to this ruling.

It is so ORDERED.

FOR THE ATOMIC SAFETY AND LICENSING BOARD

/RA/

Michael M. Gibson, Chairman ADMINISTRATIVE JUDGE Rockville, Maryland December 22, 2015

APPENDIX A The following portions are hereby stricken from the record of this proceeding:

Exhibit Number or Page(s) From To Document Title82 The Bacchus Paper CASE Statement Perhaps the strongest it was a walkover.

at 33-35 statement CASE Statement 35-37 MONITORING could be monitored .

INT-019 CASE Statement From: Alvear been regularly at 38 monitored.

INT-021 CASE Statement From: Otero no longer being at 41 sampled.

INT-022 CASE Statement From: such may have at 41 Grossenbacher already.

INT-024 CASE Statement November 26, 2014 review and at 42-43 evaluate it (emphasis added).

CASE Statement 43 As the citations specifically that it above does.

CASE Statement 46 CROCODILES AND before the 2014 EA WILDLIFE was written.

CASE Statement 62 It appears that the prior to issuing the NRC staff did not 2014 EA.

CASE Statement 63-64 In a July 25, 2014 accepted as fac[t]

Letter CASE Statement 65-66 NEPA requires that solving paradigm here?

CASE Statement 67 Thats it; one short wrong in the CCS.

paragraph INT-036 CASE Statement CASE asked nuclear The grid was reliable at 67-68 engineer Arnie then!

Gunderson 82 As explained above, in response the Boards October 21, 2015 order, CASE resubmitted its exhibits with proper numbering, although many of the exhibits were filed as one document. For the sake of clarity, the exhibit number of the stricken exhibits is provided in the above chart.

See Ex. INT-007, Citizens Allied for Safe Energy, Inc. Hearing Exhibits (revised Oct. 26, 2015).

INT-037 CASE Statement On September 1, for their planned at 68-69 2015 outages.

CASE Statement 69 So, Mr. Gunderson copper sulfate and said fresh water from the aquifer.

The Bacchus Paper Contained in INT- Knowledge of UPDATE 83 (INT-052)83 001 at 23-25 Groundwater Responses 83 CASE quotes the Bacchus Papers Abstract in its Statement of Position, but then quotes the same portion of the Abstract with an additional excerpt from the papers Conclusions in INT-001. CASE labels the quotations located with INT-001 as INT-052. Both references to the Bacchus Paper are therefore included in the above chart.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

FLORIDA POWER & LIGHT COMPANY ) Docket Nos. 50-250 and 50-251-LA

)

)

(Turkey Point Nuclear Generating )

Units 3 & 4)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing ORDER (Denying Application for Subpoenas, Denying Motion for Summary Disposition, and Granting in Part and Denying in Part Motions to Strike) have been served upon the following persons by Electronic Information Exchange.

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Office of the Secretary of the Commission Mail Stop: T-3 F23 Mail Stop: O-16C1 Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: hearingdocket@nrc.gov Michael M. Gibson, Chair Administrative Judge E-mail: michael.gibson@nrc.gov U.S. Nuclear Regulatory Commission Office of the General Counsel Dr. Michael F. Kennedy Mail Stop: O-15 D21 Administrative Judge Washington, DC 20555-0001 E-mail: michael.kennedy@nrc.gov Brian Harris, Esq.

David Roth, Esq.

Dr. William W. Sager Edward Williamson, Esq.

Administrative Judge Catherine Kanatas, Esq.

E-mail: william.sager@nrc.gov Christina England, Esq.

Daniel Straus, Esq.

Nicole Pepperl, Law Clerk Matthew Ring, Esq.

E-mail: nicole.pepperl@nrc.gov John Tibbetts, Paralegal E-mail: brian.harris@nrc.gov Jennifer Scro, Law Clerk david.roth@nrc.gov E-mail: jennifer.scro@nrc.gov edward.williamson@nrc.gov catherine.kanatas@nrc.gov christina.england@nrc.gov U.S. Nuclear Regulatory Commission daniel.straus@nrc.gov Office of Commission Appellate Adjudication matthew.ring@nrc.gov Mail Stop: O-7H4 john.tibbetts@nrc.gov Washington, DC 20555-0001 ocaamail@nrc.gov

Turkey Point, Units 3 & 4, Docket Nos. 50-250 and 50-251-LA ORDER (Denying Application for Subpoenas, Denying Motion for Summary Disposition, and Granting in Part and Denying in Part Motions to Strike)

Florida Power & Light Company Citizens Allied for Safe Energy, Inc. (CASE) 700 Universe Blvd. 10001 SW 129 Terrace Juno Beach, Florida 33408 Miami, FL 33176 Nextera Energy Resources Barry J. White William Blair, Esq. E-mail: bwtamia@bellsouth.net Erin Walkowiak, Esq.

E-mail: william.blair@fpl.com E-mail: erin.walkowiak@fpl.com Florida Power & Light Company 801 Pennsylvania Ave. NW Suite 220 Washington, DC 20004 Steven C. Hamrick, Esq.

E-mail: steven.hamrick@fpl.com

[Original signed by Herald M. Speiser ]

Office of the Secretary of the Commission Dated at Rockville, Maryland, this 22nd day of December, 2015 2

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

Michael M. Gibson, Chairman Dr. Michael F. Kennedy Dr. William W. Sager In the Matter of Docket Nos. 50-250-LA and 50-251-LA FLORIDA POWER & LIGHT COMPANY ASLBP No. 15-935-02-LA-BD01 (Turkey Point Nuclear Generating, Units 3 and 4) December 22, 2015 ORDER (Denying Application for Subpoenas, Denying Motion for Summary Disposition, and Granting in Part and Denying in Part Motions to Strike)

Before the Board are four motions concerning the evidentiary record and the merits of this license amendment proceeding. The intervenor, Citizens Allied for Safe Energy, Inc.

(CASE), requests subpoenas for four expert witnesses who are unwilling to testify voluntarily.1 The applicant, Florida Power & Light Company (FPL), moves for summary disposition2 and has also sought to strike significant portions of CASEs initial statement of position and exhibits.3 The NRC Staff seeks to strike large portions of CASEs rebuttal statement of position.4 For the reasons given below, the Board denies CASEs application for subpoenas, denies FPLs motion 1 CASE Second Motion Requesting Subpoenas for Expert Witnesses for January, 2016 (Dec. 9, 2015) [hereinafter Second Application for Subpoenas].

2 Florida Power & Light Companys Motion to Dismiss CASE Contention 1 or, in the Alternative, for Summary Disposition (Dec. 3, 2015) [hereinafter Motion for Summary Disposition].

3 Florida Power & Light Companys Motion to Strike Portions of CASEs Initial Statement of Position, Testimony, Affidavits and Exhibits or, in the Alternative, Motion In Limine to Exclude it and its Cited Documents from Evidence (Oct. 19, 2015) [hereinafter FPLs Motion to Strike].

4 NRC Staffs Motion in Limine to Exclude Portions of the Prefiled Rebuttal Testimony or in the Alternative Strike Portions of the Prefiled Rebuttal Testimony and Rebuttal Statement of Position (Dec. 14, 2015) [hereinafter NRC Staffs Motion to Strike].

for summary disposition, and grants in part and denies in part FPLs and the NRC Staffs motions to strike CASEs initial and rebuttal evidence.

I. CASES APPLICATION FOR SUBPOENAS CASE previously submitted a request for subpoenas for five witnesses on November 3, 2015,5 which the Board denied because, among other reasons, CASE had not shown that it had sought voluntary testimony from any of the five witnesses.6 After trying and failing to obtain voluntary testimony from four of the five potential witnesses, CASE renewed its request for subpoenas on December 9, 2015.7 CASE seeks expert testimony from two employees of Biscayne National Park, two employees of Miami-Dade Countys Department of Environmental Resources Management, and an employee of the South Florida Water Management District.8 FPL and the NRC Staff oppose CASEs request.9 As an initial matter, both FPL and the NRC Staff argue that CASEs application should be denied for failure to include the required certification that CASE consulted with the other parties.10 The Board reminds CASE that consultation and the certificate of consultation are required even when a party has already consulted with the other parties concerning an earlier, substantially similar motion.11 5 CASE Motion Requesting Subpoenas for Expert Witnesses for January, 2016 Evidentiary Hearing (Nov. 3, 2015) (unpublished).

6 Licensing Board Order (Denying CASEs Application for Subpoenas) (Nov. 12, 2015) at 2.

7 Second Application for Subpoenas.

8 Id. at 2-4.

9 NRC Staffs Answer Opposing CASE Motion Requesting Subpoenas for Expert Witnesses for January 2016 Evidentiary Hearing (Dec. 15, 2015) [hereinafter NRC Staff Response to Subpoenas]; Florida Power & Light Companys Answer to CASEs Second Motion Requesting Subpoenas for Expert Testimony for Evidentiary Hearing (Dec. 15, 2015) [hereinafter FPL Response to Subpoenas].

10 NRC Staff Response to Subpoenas at 2; FPL Response to Subpoenas at 2.

11 10 C.F.R. § 2.323(b); Licensing Board Order (Initial Scheduling Order) (May 8, 2015) at 13

As the Board explained in its decision denying the original subpoena request, a subpoena in a Subchapter L proceeding represents an extraordinary remedy, and expert testimony in particular may be compelled only in very limited circumstances.12 CASE has not shown that those special circumstances are present here. Although the witnesses identified by CASE are certainly well-qualified, CASE has not demonstrated that they are unique experts or that comparable experts are unavailable. Because this proceeding concerns groundwater migration and saltwater intrusion, any qualified hydrogeologist could provide an expert opinion on the matter in controversy. CASE does allege that two of the experts drafted a key piece of evidence in this proceeding.13 However, because the timeline and authenticity of this document is not in dispute, it is not clear what factual testimony these two witnesses would add to the proceeding. As CASE acknowledges in requesting subpoenas for expert testimony, the experts primary value lies in their opinion testimony about whether it is reasonably foreseeable that the license amendment will contribute to water migration out of the cooling canal system and saltwater intrusion.

Accordingly, the Board denies CASEs second application for subpoenas because these circumstances do not merit the extraordinary remedy of forcing expert witnesses to appear and provide their opinion testimony against their will and without compensation.

(unpublished).

12 Licensing Board Order (Denying CASEs Application for Subpoenas) (Nov. 12, 2015) at 2 (unpublished). The Board noted that subpoenas for expert testimony are assessed based on the degree to which the expert is being called because of his [or her] knowledge of facts relevant to the case rather than in order to give opinion testimony; the difference between testifying to a previously formed or expressed opinion and forming a new one; the possibility that, for other reasons, the witness is a unique expert; the extent to which the calling party is able to show the unlikelihood that any comparable witness will willingly testify; the degree to which the witness is able to show that he [or she] has been oppressed by having continually to testify . . . . Id. at 3 n.11 (quoting Kaufman v. Edelstein, 539 F.2d 811, 822 (2d Cir. 1976)).

13 Second Application for Subpoenas at 9.

II. FPLS MOTION FOR

SUMMARY

DISPOSITION On December 3, 2015, FPL moved for dismissal of Contention 1, or in the alternative, summary disposition.14 Based on CASEs lack of expert testimony, FPL argues that CASE has not demonstrated standing and has not provided enough evidence to satisfy CASEs burden of going forward.15 CASE responds that the proceeding should go forward because a hearing is necessary to resolve the dispute over the impacts of FPLs freshwater withdrawals from the L-31E Canal and FPLs nearly freshwater withdrawals from the Upper Floridan Aquifer.16 In a Subpart L proceeding, such as this one, the Board applies the summary disposition standard set forth in Subpart G.17 Under this standard, summary disposition is proper:

if the filings in the proceeding, depositions, answers to interrogatories, and admissions on file, together with the statements of the parties and the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a decision as a matter of law.18 Because the burden is on the party requesting summary disposition, the Board must examine the record in the light most favorable to the non-moving party and give the non-moving party the benefit of all favorable inferences that can be drawn from the evidence.19 The Board may also 14 Motion for Summary Disposition at 1. On December 21, 2015, the NRC Staff filed an answer in support of FPLs motion for summary disposition. NRC Staff Answer to Motion to Dismiss or in the Alternative Summary Disposition (Dec. 21, 2015).

15 Id. at 6, 8.

16 Citizens Allied For Safe Energy, Inc.s Answer to FPLs Motion to Dismiss Case Contention 1 or, in the Alternative, for Summary Disposition, and FPLs Statement of Material Facts on Which No Genuine Dispute Exists (Dec. 13, 2015) at 8.

17 10 C.F.R. § 2.1205(c).

18 10 C.F.R. § 2.710(d)(2).

19 Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 297 (2010).

consider whether responding to a motion for summary disposition would divert substantial resources from the hearing.20 In reviewing the filings submitted in this proceeding, the Board concludes that CASE has submitted sufficient evidence to satisfy its burden of going forward and that, at this stage of the proceeding, the Boards resources would be best served by reviewing the evidence more thoroughly at a hearing. A motion for summary disposition requires significant and often duplicative time and effort from all parties (and the Board), whereas Subpart L evidentiary hearings have proven to be short, usually requiring a day or less to hear a contention.21 Based on a short review of the evidence, the Board determines that the questions raised by CASEs evidentiary submissions would best be resolved at a hearing.

First, with respect to standing, the Board found that CASE had met its burden at the initial contention stage based on allegations of a sufficient injury related to the use of freshwater aquifer resources and any resulting potential for increased saltwater intrusion.22 CASE has now offered probative evidence of this injury in the form of an administrative order from the Florida Department of Environmental Protection.23 In its finding of facts, that administrative order explains the rationale for the States conclusion that saline water from the cooling canal system (CCS) has migrated inland and contributed to saltwater intrusion.24 As a 20 10 C.F.R. § 2.710(d)(1).

21 See Progress Energy Florida, Inc. (Levy County Nuclear Power Plant, Units 1 & 2), LBP 22, 70 NRC 640, 651-52 (2009).

22 LBP-15-13, 81 NRC 456, 466 (2015).

23 Ex. INT-004, Florida Department of Environmental Protection, Administrative Order, OGC No. 14-0741 (Dec. 23, 2014) [hereinafter Administrative Order]. The hearsay nature of this order does not bar its admission per se, particularly in the absence of any objection to the statement of facts recounted in the order. See Advanced Med. Sys., Inc. (One Factory Row, Geneva, Ohio 44041), CLI-94-6, 39 NRC 285, 306-07 (1994) (construing prior version of summary disposition regulation, 10 C.F.R. § 2.749 (2004), which is substantially similar to the current regulation).

24 Ex. INT-004, Administrative Order ¶ 25.

result, the State determined the western [inland] migration of the saline water must be abated to prevent further harm to the waters of the State.25 The administrative order concludes by describing the States plan to reduce the environmental impact of saltwater intrusion by reducing salinity in the canals:

Reducing the salinity from a higher base salinity condition will require additional measures such as a greater addition of fresh water, removal of salt mass from the CCS, and alteration of CCS inflows and outflows. Higher precipitation amounts, lower temperatures, and higher regional water levels will also assist in reducing CCS salinity levels.26 This administrative order is sufficient evidence to deny the motion for summary disposition with respect to standing because CASEs members use water near the Turkey Point facility and so could suffer harm from freshwater withdrawals and from the CCSs disputed contribution to saltwater intrusion.27 CASEs members rely on the water supply of the Floridan Aquifer;28 although the parties dispute the freshness of this water source, FPLs expert acknowledges that it can be used as drinking water after treatment.29 And CASE members also face potential harm from saltwater intrusion exacerbated by FPLs freshwater withdrawals from the L-31E Canal.

25 Id.

26 Id. ¶ 35 (emphasis added).

27 See Cent. Delta Water Agency v. United States, 306 F.3d 938, 947 (9th Cir. 2002) (finding that farmers had established standing based on a threatened injury from increase in salinity in a river the farmers used to water their crops).

28 See Declaration in Support of Citizens Allied for Safe Energy, Inc./CASE Petition to Intervene In the Issuance of Amendments to Renewed Facility Operating License Nos. DPR-31 and DPR-41 Issued to Florida Power & Light for the Operation of the Turkey Point Nuclear Generating Units 3 and 4 Located in Miami-Dade County, Florida (Oct. 14, 2014).

29 According to FPLs hydrology expert, [t]he salinity of water in the [Upper Floridan Aquifer] is approximately 2.5 [practical salinity units]. The water in the [Upper Floridan Aquifer] is relatively fresh, compared to the water in the CCS, but is still salty enough that it must be treated prior to its use as drinking water. Ex. FPL-001, Initial Written Testimony of Florida Power & Light Company Witnesses Steve Scroggs, Jim Bolleter, and Pete Andersen on Contention 1 (Nov. 10, 2015) at 48 [hereinafter FPL Testimony].

According to the South Florida Water Management District, the freshwater in the canals is used, inter alia, to prevent saltwater intrusion.30 In explaining how to alleviate the problem of hypersalinity in the CCS, the administrative order also provides probative evidence of the other two requirements for standingcausation and redressability. The order ties lower temperatures to lower salinity levels, which it concludes would reduce migration of hypersaline water out of the CCS.31 With the inference drawn in CASEs favor that increased salinity in the CCS leads to greater migration of hypersaline water out of the CCS, this evidence is enough to support CASEs standing argument regarding causation. Finally, with respect to redressability, were the Board to conclude that CASE is correct about saline water migrating out of the canals, the Board could partially redress this salinity issue by finding that a license condition would need to be inserted that prevented FPL from operating the canals at higher temperatures.32 A remedy that makes even a small contribution to resolving a larger, more complex injury can still support a standing claim.33 The Board likewise concludes that the standard for summary disposition has not been met because the filings in this case demonstrate a genuine legal dispute over the adequacy of the NRC Staffs environmental assessment. The evidence submitted by CASE, primarily the States Administrative Order and Miami-Dade Countys Notice of Violation, provide probative evidence of saltwater intrusion and water migrating out of the CCS,34 neither of which was 30 See Ex. FPL-033, South Florida Water Management District, Final Order, SFWMD No. 2015-020-DAO-WU (Apr. 10, 2015).

31 Ex. INT-004, Administrative Order ¶ 35.

32 LBP-15-13, 81 NRC at 466.

33 See Massachusetts v. EPA, 549 U.S. 497, 526 (2007) (The risk of catastrophic harm, though remote, is nevertheless real. That risk would be reduced to some extent if petitioners received the relief they seek.).

34 See Ex. INT-004, Administrative Order ¶¶ 25, 29, 32, 34-35; INT-005, Miami-Dade County Department of Regulatory and Economic Resources, Notice of Violation and Orders for Corrective Action (Oct. 2, 2015) ([The Department of Environmental Resources Management]

discussed in the environmental assessment.35 The probative value of CASEs evidence, or on FPLs testimony to the contrary, is not a matter that the Board may decide at summary disposition.36 The Board must consider the merits of the conflicting evidence and rule on the merits of each sides position at an evidentiary hearing.

III. FPLS MOTION TO STRIKE On October 19, 2015, FPL moved to strike portions of CASEs Initial Statement of Position, Testimony, Affidavits and Exhibits.37 On October 26, 2015, the NRC Staff filed an answer in support of FPLs motion to strike.38 CASE filed an answer in opposition to FPLs motion on October 29, 2015.39 Both FPL and the NRC Staff contend that (1) a number of CASEs attached exhibits should be excluded because they were not sponsored by an expert, and (2) CASE raises arguments that are outside the scope of the Contention 1, as admitted.40 maintains that hypersaline water attributable to FPL exists in the groundwater outside the CCS and outside the property boundaries.).

35 See Environmental Assessment and Final Finding of No Significant Impact, Issuance, 79 Fed.

Reg. 44,464, 44,466 (July 31, 2014).

36 See Pilgrim, CLI-10-11, 71 NRC at 297.

37 FPLs Motion to Strike.

38 NRC Staffs Answer to [FPLs Motion to Strike] (Oct. 26, 2015) [hereinafter Staff Answer].

39 Citizens Allied for Safe Energys Answer to [FPLs Motion to Strike] (Oct. 29, 2015)

[hereinafter CASE Answer].

40 FPLs Motion to Strike at 1; Staff Answer at 3-5. In its motion to strike, FPL also argues that certain exhibits should be excluded because they were not properly disclosed or introduced into the record. FPLs Motion to Strike at 1, 4. Specifically, FPL maintains that CASE ignored the Boards Initial Scheduling Order instructing the parties as to the proper presentation of exhibits.

Id. at 5; see Licensing Board Order (Initial Scheduling Order) (May 8, 2015) at 14 (unpublished).

Initially, CASE submitted multiple exhibits (such as emails, graphs, and excerpts from scientific reports) in one filing and did not number these exhibits. See Citizens Allied for Safe Energy Initial Statement of Position, Testimony, Affidavits and Exhibits (Oct. 9, 2015) [hereinafter CASE Statement]. However, in a October 21, 2015 order, the Board directed CASE to re-submit these exhibits individually and to number each individual exhibit in the order that they appear in CASEs Initial Statement of Position. Licensing Board Order (Requiring Proper Numbering of CASEs Exhibits) (Oct. 21, 2015) (unpublished). CASE then resubmitted its exhibits with proper numbering, although many of the exhibits were still filed as one document. See Ex. INT-001,

Thereafter, FPL and the NRC Staff submitted their initial statements of position and testimony.41 On December 1, 2015, CASE submitted its rebuttal testimony and statement of position, including a declaration by Dr. Phillip K. Stoddard.42 On December 14, 2015, the NRC Staff moved to exclude certain portions of CASEs prefiled rebuttal testimony and rebuttal statement of position.43 FPL also filed an answer supporting the NRC Staffs motion to exclude CASEs rebuttal testimony.44 For the reasons stated below, the NRC Staffs and FPLs motions to strike are granted in part and denied in part.

NRC regulations provide that [o]nly relevant, material, and reliable evidence which is not unduly repetitious will be admitted in an evidentiary hearing.45 A licensing board may strike any portion of a written presentation . . . that is irrelevant, immaterial, unreliable, CASE, The Science of the Turkey Point Wetlands (Oct. 26, 2015). Subsequently, FPL revised its Motion to Strike to address CASEs renumbered exhibits. See Florida Power & Light Companys Revision to Tables in its October 19, 2015 Motion To Strike (Oct. 27, 2015)

[hereinafter FPLs Revised Motion to Strike]. Consequently, FPLs argument concerning the improper presentation of exhibits has been mooted by the Boards October 21st Order and CASEs resubmission of its exhibits.

41 NRC Staffs Initial and Rebuttal Statement of Position Regarding Contention 1 (Nov. 10, 2015) [hereinafter NRC Staff Statement]; Ex. NRC-001, NRC Staff Testimony of Audrey L. Klett, Briana A. Grange, William Ford, and Nicholas P. Hobbs Concerning Contention 1 (Nov. 10, 2015) [hereinafter Staff Testimony]; Florida Power & Light Companys Initial Statement of Position (Nov. 10, 2015) [hereinafter FPL Statement]; FPL Testimony.

42 Citizens Allied for Safe Energys Joint Rebuttal to NRC Staffs and FPLs Initial Statements of Position, Exhibit List and Exhibits (Dec. 1, 2015) [hereinafter CASE Rebuttal].

43 NRC Staffs Motion to Strike.

44 Florida Power & Light Companys Answer Supporting the NRC Staffs Motion in Limine (Dec.

15, 2015).

45 10 C.F.R. § 2.337(a).

duplicative or cumulative.46 The Commission has also stated that a licensing board normally has considerable discretion in making evidentiary rulings.47 A. Expert Sponsorship First, FPL moves to exclude a number of CASEs exhibits on the ground that these materials were not properly sponsored by an expert witness.48 The exhibits that FPL seeks to exclude primarily consist of (1) excerpted portions of academic articles,49 and (2) various emails between state and local officials regarding the CCS.50 Unsponsored technical documents are primarily considered less reliable because they are hearsay.51 Since it is well-settled that a Board may consider hearsay evidence,52 [w]hether 46 Id. § 2.319(d).

47 Duke Energy Corp. (Catawba Nuclear Station, Units 1 & 2), CLI-04-21, 60 NRC 21, 27 (2004).

48 FPLs Motion to Strike at 4-5.

49 The challenged exhibits that consist of excerpted academic articles include INT-001, and INT-041 through INT-054. As indicated above, CASE did not file each exhibit as a separate document. Rather, many of the exhibits appear in CASEs Statement of Position and within INT-001. For the sake of clarity, the Board will reference the document at issue using the exhibit number assigned by CASE in its exhibit list. See Ex. INT-007, Citizens Allied for Safe Energy, Inc. Hearing Exhibits (revised Oct. 26, 2015).

50 The challenged exhibits that consist of emails include INT-018 through INT-025, INT-027, INT-036, and INT-037.

51 10 C.F.R. § 2.337(a) (Only relevant, material, and reliable evidence which is not unduly repetitious will be admitted.); see, e.g., Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), ALAB-950, 33 NRC 492, 500-01 (1991) (For evidence on highly technical subjects (such as the response of reactor vessel materials to neutron irradiation and temperature variables) to be considered reliable and thus admissible, the proponent thereof must show her or his qualifications to sponsor and discuss such evidence.); Tenn. Valley Auth.

(Hartsville Nuclear Power Plant Units 1A, 2A, 1B, and 2B), ALAB-367, 5 NRC 92, 121 (1977)

(Expert testimony in hearsay form from someone unknown is most unreliable.); Wis. Electric Power Co. (Point Beach Nuclear Plant, Unit 2), ALAB-78, 5 AEC 332 (1972) (The principal objection to expert testimony which relies on data prepared by others is that such data incorporated by reference in testimony constitutes hearsay.).

52 Phila. Electric Co. (Limerick Generating Station, Units 1 & 2), ALAB-863, 25 NRC 273, 279 (1987).

evidence is or is not hearsay is significant only insofar as it bears on the question of its reliability.53 Although a Board may determine reliability before the hearing, there is no ironclad requirement in administrative proceedings where no jury is involved54 because, unlike juries, Boards include[] technical experts who can evaluate the factual material in the record and reach their own judgment as to its significance.55 As the Commission has stated:

The Board conducting an adversarial evidentiary proceeding is not required to act merely as an umpire calling balls and strikes. Its function as the arbiter of important safety and environmental questions does not permit it to act as an umpire blandly calling balls and strikes for adversaries appearing before it . . . It has the right and duty to develop a full record for decision-making in the public interest.56 Therefore, a determination [of the reliability of the contested exhibits] can be safely left to a later date without prejudicing the interests of any party.57 Moreover, the reliability of such hearsay evidence bears more on the exhibits probative value than their admissibility. Accordingly, the validity and sufficiency of any hearsay information upon which [the allegations] are based generally is a matter to be tested in the context of an evidentiary hearing in which the NRC Staff must provide adequate probative evidence to carry its burden of proof.58 The Board, therefore, exercises its considerable 53 S. Cal. Edison Co. (San Onofre Nuclear Generating Station, Units 2 & 3), ALAB-717, 17 NRC 346, 366 (1983).

54 Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), ALAB-520, 9 NRC 48, 50 n.2 (1979).

55 Pac. Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), LBP-94-35, 40 NRC 180, 192 (1994) (internal quotation marks omitted).

56 Tex. Utilities Generating Co. (Comanche Peak Steam Electric Station, Units 1 & 2), LBP 87, 16 NRC 1195, 1199 (1982) (quoting Scenic Hudson Pres. Conference v. Fed. Power Commn, 354 F.2d 608, 620 (2d Cir. 1965)).

57 Seabrook Station, ALAB-520, 9 NRC at 50 n.2.

58 Indiana Regl Cancer Ctr., LBP-94-21, 40 NRC 22, 31 (1994).

discretion59 to defer its ruling on the disputed portions of CASEs unsponsored exhibits. The Board will be better able to resolve the disputes surrounding FPLs motion upon consideration of the full evidentiary record.

B. Arguments Outside the Scope of the Contention Second, in its motion to strike, FPL asserts that CASE has raised a number of arguments that are outside the scope of the admitted contention. Contention 1, as admitted by the Board, reads as follows:

The NRCs environmental assessment, in support of its finding of no significant impact related to the 2014 Turkey Point Units 3 and 4 license amendments, does not adequately address the impact of increased temperature and salinity in the CCS on saltwater intrusion arising from (1) migration out of the CCS; and (2) the withdrawal of fresh water from surrounding aquifers to mitigate conditions within the CCS.60 As a general matter, FPL moves to strike CASEs evidence (including portions of the Environmental Assessment (EA) itself), that FPL claims to be outside the scope of Contention 1, as admitted. While CASE certainly has included quotes from portions of the EA that are outside the scope of the admitted contention, some are clearly within the scope of the admitted contention and the Board is more than capable of considering those portions of CASEs evidence that are properly within the scope of the admitted contention. Certainly, there is no need to throw out the baby with the bathwater by excluding all quoted portions of the EA from the record. Thus, the Board denies FPLs motion to strike the cited portions of the EA.

Next, FPL maintains that CASEs assertions concerning the need for additional monitoring of the CCS are beyond the scope of the admitted contention.61 In its statement of position, CASE argues that the NRC Staffs monitoring requirements are insufficient because 59 Catawba Nuclear Station, CLI-04-21, 60 NRC at 27.

60 LBP-15-13, 81 NRC at 473, 476.

61 FPLs Motion to Strike at 9, 11-12.

the license, as amended, obligates FPL to monitor for temperature, but not for the presence of other chemicals.62 In support of this argument, CASE cites to numerous emails between state officials regarding sampling for trace metals and nutrients in the CCS.63 The Board agrees with FPL that this argument concerning the potential environmental impact of certain chemicals in the CCS is outside the scope of the Contention 1. In the Boards March 23, 2015 decision admitting Contention 1, the Board determined that CASE failed to demonstrate there was a genuine dispute regarding the EAs discussion of the environmental impacts associated with these chemicals in the CCS.64 CASE cannot stretch the limits of Contention 1 to encompass arguments that this Board has already deemed inadmissible. As such, the Board grants FPLs motion to strike those portions of CASEs statement of position and exhibits insofar as they discuss the need for increased monitoring for these chemical constituents in the CCS. The specific sections being stricken are identified in Appendix A.

FPL also takes issue with an email, cited by CASE, which concerns the double-crested cormorant.65 This email simply states that the colony of double-crested cormorants in the CCS has undergone a severe decline; there is no statement linking this decline to increases in the CCSs temperature or salinity.66 As such, this email has no bearing on the contention at issue, and the Board grants FPLs motion to strike this excerpt.67 Similarly, FPL and the NRC Staff contend that CASE improperly relies on excerpts from a paper by Dr. Sydney Bacchus entitled Knowledge of Ground Water Responses - Critical 62 CASE Statement at 35-43.

63 Id. at 41-43.

64 LBP-15-13, 81 NRC at 478.

65 CASE Statement at 38.

66 Id.

67 See 10 C.F.R. § 2.319(d) (stating that a Board may strike any portion of a written presentation . . . that is irrelevant . . . .).

Factor in Saving Floridas Threatened and Endangered Species Part I; Marine Ecological Disturbances and which CASE has labeled exhibit INT-052.68 According to FPL and the NRC Staff, the so called Bacchus Paper69 discusses the various negative impacts on wildlife due to groundwater alterations70 that are well beyond the scope of Contention 1.71 The Bacchus Paper describes these groundwater alterations or groundwater perturbations as including, among other things, (1) aquifer injection of effluent and other ecologically hazardous wastes; (2) aquifer storage and recovery; (3) groundwater mining; and (4) structural mining of the aquifer system . . . .72 Upon review of the quoted excerpts, the Board concludes that the Bacchus Paper concerns a wide range of issues that are wholly outside the narrow scope of Contention 1. Accordingly, the Board grants FPLs motion to strike the Bacchus Paper.

Additionally, FPL moves to exclude those portions of CASEs statement of position that concern various aspects of the NRC Staffs obligations under NEPA.73 As an initial matter, FPL moves to strike portions of CASEs initial statement of positon that simply quote sections of NEPA.74 The Board sees no reason to strike these quoted portions of the statute. Nonetheless, 68 See Ex. INT-007, Citizens Allied for Safe Energy, Inc. Hearing Exhibits (revised Oct. 26, 2015) at 8. Confusingly, CASE quotes the Bacchus Papers Abstract in its Statement of Position, but then quotes the same portion of the Abstract with an additional excerpt from the papers Conclusions in INT-001. CASE labels the quotations located within INT-001 as INT-052. See supra note 40. For the sake of clarity, the Board will refer to this proposed exhibit simply as the Bacchus Paper.

69 FPLs Motion to Strike at 10.

70 CASE Statement at 34.

71 FPLs Motion to Strike at 10; NRC Staff Statement at 23.

72 See Ex. INT-001, The Science of the Turkey Point Wetlands (filed Oct. 26, 2015) at 23-24.

The quoted portions of the Bacchus Paper that appear in the text can be found in INT-001. As explained supra at note 68, CASE quotes sections of the Bacchus Paper in both its Statement of Position and in INT-001. CASE labels the quotations located within INT-001 as INT-052.

73 FPLs Motion to Strike at 10-12.

74 Id. at 11-12.

the Board agrees with FPL and the NRC Staff that CASE raises two NEPA-related arguments that are outside the scope of Contention 1namely: (1) CASEs claim that the NRC Staff failed to consult with the U.S. Fish and Wildlife Service, and (2) CASEs claim that the NRC Staff failed to adequately consider alternatives to granting the proposed license amendment.

Contention 1 is a narrow contention. Its scope does not encompass any and all arguments concerning the NRC Staffs NEPA obligations. Moreover, in its challenge to the NRC Staffs consideration of alternatives to the proposed action, CASE questions FPLs position that, without the license amendment, the CCS could exceed the current temperature limit necessitating a dual unit shutdown. CASEs arguments in this section are nearly identical to those set forth in support of Contention 2, which the Board previously deemed inadmissible.75 As such, the Board grants FPLs motion to strike those portions of CASEs statement insofar as it discusses these NEPA issues.

IV. STAFFS MOTION TO STRIKE CASES REBUTTAL FPLs motion to strike remained pending before the Board during the period in which the parties were required to submit their initial testimony. Accordingly, both FPLs and the NRC Staffs prefiled expert testimony addressed the purported out of scope topics, while still reserving their argument that such topics should be excluded.76 CASE, in turn, addressed this testimony in its statement of rebuttal.77 Consequently, consistent with FPLs motion to strike, the NRC Staff moved to exclude those portions of CASEs rebuttal that address the NRC Staffs purported failure to comply with various sections of NEPA.78 Specifically, in addition to the 75 LBP-15-13, 81 NRC at 475-77.

76 See NRC Staff Statement at 20-25; FPL Statement at 12, 27-28; Staff Testimony at 63-72; FPL Testimony at 26-30.

77 CASE Rebuttal at 37-43.

78 NRC Staffs Motion to Strike at 8-9. On December 15, 2015, FPL filed an answer in support of the NRC Staffs Motion to Strike. FPLs Answer Supporting the NRC Staffs Motion in Limine (Dec. 15, 2015).

arguments FPL identified as beyond the scope of the admitted contention and discussed abovenamely, (1) CASEs claim that the NRC Staff failed to consult with the U.S. Fish and Wildlife Service, and (2) CASEs claim that the NRC Staff failed to adequately consider alternatives to granting the proposed license amendmentthe NRC Staff also moves to exclude CASEs argument that the EA was developed too quickly.79 Consistent with the Boards resolution of FPLs motion to strike, those positions of CASEs rebuttal statement that relate to the timing of the EA, the NRC Staffs consultation with other agencies, and the NRC Staffs review of alternatives to the proposed action are beyond the scope of the admitted contention and are accordingly stricken.

The Board notes that the NRC Staffs motion primarily argues that the Board should exclude the entirety of Dr. Stoddards testimony by questioning Dr. Stoddards expertise and therefore the reliability of his testimony. However, [w]hether the situation is a proper one for the use of expert testimony is to be determined on the basis of assisting the trier.80 Certainly at this stage, the Board cannot conclusively determine that Dr. Stoddards testimony will not be of assistance to the Board.81 Therefore, to the extent the NRC Staffs motion seeks to exclude Dr. Stoddards testimony, this relief is denied.

79 The Board notes that the NRC Staff took issue with CASEs argument that the EA was developed too quickly in its Initial Statement of Position. See NRC Staff Statement at 21.

However, at that time, the NRC Staff did not separately move to strike any portion of CASEs Initial Statement relating to the timing of the EA. Instead, it only seeks to exclude those portions of CASEs rebuttal that address the timing of the EA.

80 Duke Power Co. (William B. McGuire Nuclear Station, Units 1 and 2), ALAB-669, 15 NRC 453, 475 (1982) (quoting Notes of Advisory Committee on Proposed Rules, 28 U.S.C.A.,

Federal Rules of Evidence, fol. Rule 702).

81 See Catawba Nuclear Station, CLI-04-21, 60 NRC at 27-28 (stating that the standard for whether a witness is qualified to serve an expert is not rigid or self-defining and gives room to our boards to decide whether the expert witness will be of assistance).

V. CONCLUSION Before the Board is FPLs motion to strike large portions of CASEs statement of position and exhibits, and the NRC Staffs motion to exclude portions of CASEs rebuttal statement of position. For the above reasons, CASEs evidence is excluded insofar as FPL and the NRC Staff have established such evidence is outside of the permissible scope of Contention 1. All other relief requested is hereby denied. Those sections that are to be stricken are identified in Appendix A, which is attached to this ruling.

It is so ORDERED.

FOR THE ATOMIC SAFETY AND LICENSING BOARD

/RA/

Michael M. Gibson, Chairman ADMINISTRATIVE JUDGE Rockville, Maryland December 22, 2015

APPENDIX A The following portions are hereby stricken from the record of this proceeding:

Exhibit Number or Page(s) From To Document Title82 The Bacchus Paper CASE Statement Perhaps the strongest it was a walkover.

at 33-35 statement CASE Statement 35-37 MONITORING could be monitored .

INT-019 CASE Statement From: Alvear been regularly at 38 monitored.

INT-021 CASE Statement From: Otero no longer being at 41 sampled.

INT-022 CASE Statement From: such may have at 41 Grossenbacher already.

INT-024 CASE Statement November 26, 2014 review and at 42-43 evaluate it (emphasis added).

CASE Statement 43 As the citations specifically that it above does.

CASE Statement 46 CROCODILES AND before the 2014 EA WILDLIFE was written.

CASE Statement 62 It appears that the prior to issuing the NRC staff did not 2014 EA.

CASE Statement 63-64 In a July 25, 2014 accepted as fac[t]

Letter CASE Statement 65-66 NEPA requires that solving paradigm here?

CASE Statement 67 Thats it; one short wrong in the CCS.

paragraph INT-036 CASE Statement CASE asked nuclear The grid was reliable at 67-68 engineer Arnie then!

Gunderson 82 As explained above, in response the Boards October 21, 2015 order, CASE resubmitted its exhibits with proper numbering, although many of the exhibits were filed as one document. For the sake of clarity, the exhibit number of the stricken exhibits is provided in the above chart.

See Ex. INT-007, Citizens Allied for Safe Energy, Inc. Hearing Exhibits (revised Oct. 26, 2015).

INT-037 CASE Statement On September 1, for their planned at 68-69 2015 outages.

CASE Statement 69 So, Mr. Gunderson copper sulfate and said fresh water from the aquifer.

The Bacchus Paper Contained in INT- Knowledge of UPDATE 83 (INT-052)83 001 at 23-25 Groundwater Responses 83 CASE quotes the Bacchus Papers Abstract in its Statement of Position, but then quotes the same portion of the Abstract with an additional excerpt from the papers Conclusions in INT-001. CASE labels the quotations located with INT-001 as INT-052. Both references to the Bacchus Paper are therefore included in the above chart.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

FLORIDA POWER & LIGHT COMPANY ) Docket Nos. 50-250 and 50-251-LA

)

)

(Turkey Point Nuclear Generating )

Units 3 & 4)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing ORDER (Denying Application for Subpoenas, Denying Motion for Summary Disposition, and Granting in Part and Denying in Part Motions to Strike) have been served upon the following persons by Electronic Information Exchange.

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Office of the Secretary of the Commission Mail Stop: T-3 F23 Mail Stop: O-16C1 Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: hearingdocket@nrc.gov Michael M. Gibson, Chair Administrative Judge E-mail: michael.gibson@nrc.gov U.S. Nuclear Regulatory Commission Office of the General Counsel Dr. Michael F. Kennedy Mail Stop: O-15 D21 Administrative Judge Washington, DC 20555-0001 E-mail: michael.kennedy@nrc.gov Brian Harris, Esq.

David Roth, Esq.

Dr. William W. Sager Edward Williamson, Esq.

Administrative Judge Catherine Kanatas, Esq.

E-mail: william.sager@nrc.gov Christina England, Esq.

Daniel Straus, Esq.

Nicole Pepperl, Law Clerk Matthew Ring, Esq.

E-mail: nicole.pepperl@nrc.gov John Tibbetts, Paralegal E-mail: brian.harris@nrc.gov Jennifer Scro, Law Clerk david.roth@nrc.gov E-mail: jennifer.scro@nrc.gov edward.williamson@nrc.gov catherine.kanatas@nrc.gov christina.england@nrc.gov U.S. Nuclear Regulatory Commission daniel.straus@nrc.gov Office of Commission Appellate Adjudication matthew.ring@nrc.gov Mail Stop: O-7H4 john.tibbetts@nrc.gov Washington, DC 20555-0001 ocaamail@nrc.gov

Turkey Point, Units 3 & 4, Docket Nos. 50-250 and 50-251-LA ORDER (Denying Application for Subpoenas, Denying Motion for Summary Disposition, and Granting in Part and Denying in Part Motions to Strike)

Florida Power & Light Company Citizens Allied for Safe Energy, Inc. (CASE) 700 Universe Blvd. 10001 SW 129 Terrace Juno Beach, Florida 33408 Miami, FL 33176 Nextera Energy Resources Barry J. White William Blair, Esq. E-mail: bwtamia@bellsouth.net Erin Walkowiak, Esq.

E-mail: william.blair@fpl.com E-mail: erin.walkowiak@fpl.com Florida Power & Light Company 801 Pennsylvania Ave. NW Suite 220 Washington, DC 20004 Steven C. Hamrick, Esq.

E-mail: steven.hamrick@fpl.com

[Original signed by Herald M. Speiser ]

Office of the Secretary of the Commission Dated at Rockville, Maryland, this 22nd day of December, 2015 2