ML18263A285

Applicant'S Motion to Strike Portions of the September 10, 2018 Reply Filed by Southern Alliance for Clean Energy or, in the Alternative, for Leave to File a Surreply

ML18263A285
Person / Time
Site:	Turkey Point
Issue date:	09/20/2018
From:	Bessette P, Burdick S, Hamrick S, O'Neill M Florida Power & Light Co, Morgan, Morgan, Lewis & Bockius, LLP
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-250-SLR, 50-251-SLR, ASLBP18-957-01-SLR-BD01, License Renewal, RAS 54486
Download: ML18263A285 (18)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

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In the Matter of ) Docket Nos. 50-250-SLR and 50-251-SLR

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FLORIDA POWER & LIGHT COMPANY ) ASLBP No. 18-957-01-SLR-BD01

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(Turkey Point Nuclear Generating Units 3 and 4) ) September 20, 2018

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APPLICANTS MOTION TO STRIKE A PORTION OF THE SEPTEMBER 10, 2018 REPLY FILED BY SOUTHERN ALLIANCE FOR CLEAN ENERGY OR, IN THE ALTERNATIVE, FOR LEAVE TO FILE A SURREPLY I. INTRODUCTION In accordance with 10 C.F.R. §§ 2.319 and 2.323(a), Florida Power & Light Company (FPL) files this motion to strike a portion of the Southern Alliance for Clean Energys (SACE) Reply to Oppositions by Florida Power & Light and NRC Staff to SACEs Hearing Requests (Reply) filed on September 10, 2018. In its Reply, SACE presents a new argument that plainly could have been raised in its August 1, 2018 Petition to Intervene (Petition) in this proceeding.1 That argument, set forth in Section II.A of the Reply, concerns the purported inapplicability of the Nuclear Regulatory Commissions (NRC) license renewal environmental framework (LREF) to FPLs subsequent license renewal application (SLRA) for Turkey Point Units 3 and 4 (Turkey Point).2 The LREF is the process codified in 10 C.F.R.

§ 51.53(c)(3) and Table B-1 of Appendix B to Subpart A of 10 C.F.R. Part 51 (Table B-1). It pairs the generic resolution of Category 1 issues in the NRCs 2013 Generic Environmental 1

See Southern Alliance for Clean Energys Request for Hearing and Petition to Intervene (Aug. 1, 2018)

(ML18213A529) (Petition).

2 See generally Reply at 3-9.

Impact Statement for License Renewal of Nuclear Plants, NUREG-1437, Rev. 1 (the GEIS),

with a plant-specific supplemental EIS (SEIS) discussing Category 2 environmental issues, to satisfy the requirements of the National Environmental Policy Act (NEPA).

In its Petition, SACE never once mentioned Table B-1, including its Category 1 and Category 2 impact findings, despite having prominently raised the issue of Table B-1s applicability to the SLRA in an extension request filed nearly six weeks before the Petition.3 It now argues that because 10 C.F.R. § 51.53(c)(3) makes reference to applicants seeking an initial renewed license, FPL cannot rely on the LREF and must fully address . . . all environmental impacts designated by Table B-1 as Category 1.4 SACEs decision to omit any reference to Table B-1 in its Petition is curious and perplexing.

Although SACE briefly discussed 10 C.F.R. 51.52(c)(2) and (c)(3) in the Legal Framework section of its Petition,5 it never directly addressed, much less challenged, the applicability of Table B-1s Category 1 exemptions to the SLRA, as it now does in its Reply.

Further, the NRCs background discussion of SLR proceedings on pages 18-23 of its Answer to SACEs Petition does not justify SACEs belated introduction of a new substantive legal argument in support of Contention 1. SACEs decision to do so in its Reply directly contravenes 10 C.F.R. § 2.309(f)(1), which requires petitioners to plead their proposed contentions with 3

See Southern Alliance for Clean Energys Motion to Extend Deadline for All Hearing Requests Regarding Turkey Point Subsequent License Renewal Application, at 2-3 (June 20, 2018) (ML18171A406) (SACE Extension Request) (The applicability of Table B-1 is a significant and relevant legal issue in this proceeding.

. . . In order to file an admissible contention on the subject, SACE must either file a waiver petition or demonstrate that Table B-1 is inapplicable.)

4 Reply at 3, 9. Notably, the portion of SACEs Reply at issue (Section II.A.) appears under SACEs discussion of proposed Contention 1. See Reply at 2 (Section II of the Reply is titled Discussion: Contention 1). As proffered by SACE, Contention 1 contains a single reference to 10 C.F.R. § 51.53(c) of the Petition. It never cites that regulation again. It also does not cite Table B-1, or mention Category 1 or Category 2 issues.

5 See Petition at 5.

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specificity and basis. It also disregards longstanding Commission precedent that prohibits such filings from expanding the scope of arguments set forth in an original hearing request.6 Accordingly, FPL requests that the Board strike Section II.A of the Reply in its entirety.

Alternatively, if the Board declines to strike Section II.A of the Reply, then FPL respectfully requests leave to file its Surreply (attached hereto) addressing the new arguments contained therein.7 As demonstrated below, necessity and fairness weigh strongly in favor of granting this request, because FPL has not had a fair and full opportunity to respond to SACEs new arguments. Furthermore, permitting FPL to file the surreply will help ensure a complete record on what SACE is now attempting to make a threshold legal issue in this proceeding.

II. PROCEDURAL HISTORY FPL filed its SLRA with the NRC on January 30, 2018, to renew the Turkey Point operating licenses for an additional 20-year period.8 As part of the SLRA (Appendix E) and as required by 10 C.F.R. Part 51, FPL also submitted an Environmental Report (ER) that considers the potential environmental impacts of the requested subsequent license extension.9 ER Section 4.0 describes the LREF applicable to the SLRA.10 As specifically noted therein, 6

See, e.g., DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 2), CLI-15-18, 82 NRC 135, 146 (2015); Nuclear Mgmt. Co., LLC (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727, 732 (2006).

7 Applicants Surreply to New Arguments Raised in Reply Pleadings (Sept. 20, 2018) (Surreply) (attached).

8 See Letter from M. Nazar, FPL, to NRC Document Control Desk, Turkey Point Units 3 and 4 Subsequent License Renewal Application (Jan. 30, 2018) (ML18037A824). On April 10, 2018, FPL submitted Revision 1 of the SLRA. See Letter from W. Maher, FPL, to NRC Document Control Desk, Turkey Point Units 3 and 4 Subsequent License Renewal Application - Revision 1 (Apr. 10, 2018) (ML18113A134) (part of package ML18113A132).

9 See SLRA Appendix E, Applicants Environmental Report - Subsequent Operating License Renewal Stage (Jan. 2018) (ML18113A145) (ER). FPL submitted a supplement to the January 2018 ER on April 10, 2018.

See L-2018-086, Letter from W. Maher, FPL, to NRC Document Control Desk, Appendix E Environmental Report Supplemental Information (Apr. 10, 2018) (ML18102A521). Collectively, the January 2018 ER and the April 2018 supplement constitute the ER.

10 See ER at 4-1 to 4-4.

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NRC rules do not require analyses of Category 1 issues that were resolved using generic findings [10 CFR Part 51, Subpart A, Appendix B, Table B-1] as described in the GEIS.11 On May 2, 2018, the NRC published a notice in the Federal Register docketing the Turkey Point SLRA and providing an opportunity for interested persons to request a hearing on the SLRA by July 2, 2018.12 SACE requested a 91-day extension of time, until October 1, 2018, to file its intervention petition.13 In that request, SACE asserted that [t]he applicability of Table B-1 is a significant and relevant legal issue in this proceeding, and that SACEs counsel must conduct extensive and time-consuming legal research into the regulatory history of 10 C.F.R. Part 51 and the License Renewal GEIS [Generic Environmental Impact Statement].14 SACE specifically noted FPLs reliance on Table B-1 throughout its Environmental Report, and stated that to file an admissible contention on [a Category 1] subject, SACE must either file a waiver petition or demonstrate that Table B-1 is inapplicable.15 It further stated that [i]f Table B-1 is not applicable, then a significant number of issues, considered by FPL to be exempt from consideration under Table B-1, must be addressed in the Environmental Report.16 11 Id. at 4-1 to 4-2. See also 10 C.F.R. § 51.53(c)(3)(i) (The environmental report for the operating license renewal stage is not required to contain analyses of the environmental impacts of the license renewal issues identified as Category 1 issues in Appendix B to subpart A of this part.).Section II of the attached Surreply explains why the LREF applies to SLRAs.

12 See Florida Power & Light Company; Turkey Point Nuclear Generating, Unit Nos. 3 and 4; License Renewal Application; Opportunity to Request a Hearing and to Petition for Leave to Intervene, 83 Fed. Reg. 19,304 (May 2, 2018) (Hearing Notice).

13 See SACE Extension Request. The Natural Resources Defense Council and Friends of the Earth also sought an extension to time for filing their joint intervention petition.

14 SACE Extension Request at 3 (emphasis added).

15 Id. at 2, 3.

16 Id. at 3.

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In accordance with a one-month extension of time granted by the Acting Secretary of the Commission,17 SACE and other petitioners filed their hearing requests and intervention petitions on August 1, 2018.18 SACE submitted two proposed contentions challenging the adequacy of certain discussions in the ER.19 Despite being given additional time by the Commission to evaluate such issues and frame its contentions, SACE did not directly and expressly address the issue of Table B-1s applicability to the SLRA in a specific contention. Yet, only six weeks earlier, it had highlighted the issue as a significant and relevant legal issue in this proceeding requiring further research.20 Indeed, SACEs Petition does not contain a single reference to Table B-1 or the Category 1 and Category 2 generic environmental impact findings codified therein.21 Instead, the Legal Framework section of SACEs Petition briefly states:

Specific requirements for license renewal applications are set forth in 10 C.F.R. § 51.53(c). Section 51.53(c)(2) establishes general requirements for reactor license renewal applicants, and § 51.53(c)(3) establishes requirements for applicants seeking an initial renewed license. Because FPL is seeking a subsequent renewed license, § 51.53(c)(2) applies in this proceeding. Section 51.53(c)(2) requires an operating license renewal applicant (other than an applicant for initial license renewal) to describe, inter alia, the affected environment around the plant, the environmental impacts of alternatives, and any other matters described in § 51.45(a).22 17 See Order (June 29, 2018).

18 See SACE Petition; Request for Hearing and Petition to Intervene Submitted by Friends of the Earth, Natural Resources Defense Council, and Miami Waterkeeper (Aug. 1, 2018) (ML18213A418).

19 Contention 1 claims that the ER: (1) incorrectly minimizes the significance of the Turkey Point cooling canal systems (CCS) environmental impacts on certain groundwater and surface water bodies (principally the Biscayne Aquifer and Biscayne Bay and habitat of the threatened American crocodile); (2) overstates the effectiveness of existing and planned mitigation measures to reduce and remove the hypersaline plume in the Biscayne Aquifer and ignores the negative impacts of those mitigation measures; and (3) does not adequately address the cumulative impacts of Turkey Point operations during the 20-year SLR period. See Petition at 17-

29. Contention 2 asserts that the ER improperly excludes consideration of the mitigation alternative of installing mechanical draft cooling towers in place of the CCS at Turkey Point. See id. at 29-32.

20 SACE Extension Request at 3.

21 In contrast, 10 C.F.R. § 51.53(c)(3) is mentioned on 131 separate occasions throughout the ER; the GEIS is mentioned 171 times; Table B-1 is mentioned 103 times; and the terms Category 1 and Category 2 appear 71 times and 33 times, respectively.

22 Petition at 5.

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Thus, SACE never directly addressed the applicability of Table B-1 to the SLRA, or directly controverted the ERs statement that it is not required to contain analyses of the environmental impacts of the license renewal issues identified as Category 1 issues.23 Nor did SACE provide a legal basis, with the requisite specificity, for its conclusion that § 51.53(c)(2) applies in this proceeding, rather than § 51.53(c)(3).

On August 27, 2018, FPL and the NRC Staff timely filed their respective answers to SACEs Petition.24 FPL opposed SACEs proposed Contention 1 as inadmissible because it largely contests, without seeking a waiver under 10 C.F.R. § 2.335(b), certain Category 1 environmental impact findings contained in the NRCs 2013 GEIS for license renewal and codified in Table B-1. To the extent it seeks to litigate any Category 2 issues, FPL also opposed Contention 1 on the grounds that it lacks sufficient support and fails to raise any genuine, litigable dispute with the ER.25 The Staff did not oppose the admission of Contention 1 insofar as it concerns alleged impacts to the American crocodile, but oppose[d] the admission of all other portions of SACE Contention 1.26 23 ER at 4-2.

24 See Applicants Answer Opposing Southern Alliance for Clean Energys Request for Hearing and Petition to Intervene (Aug. 27, 2018) (ML18239A449) (FPL Answer to Petition); NRC Staffs Corrected Response to Petitions to Intervene and Requests for Hearing by (1) Friends of the Earth, Natural Resources Defense Council and Miami Waterkeeper, and (2) Southern Alliance for Clean Energy (Aug. 27, 2018) (ML18239A458) (NRC Answer to Petition).

25 FPL opposed the admission of proposed Contention 2 for similar a reasons, noting that it improperly challenges, without a request for a waiver, the adequacy of the NRCs generically-applicable consideration of mitigation measures for several Category 1 environmental issues. FPL further argued that Contention 2 seeks analysis of a mitigation alternative that is not required under NEPAs rule of reason and related Commission precedent, and runs counter to the informed technical judgment and requirements of the relevant State permitting agency.

26 NRC Staff Answer to Petition at 67. The Staff did not oppose the admission of proposed Contention 2 as a contention of omission, but did oppose the admission and litigation of the contentions assertions regarding the environmental impacts resulting from operation of the CCS or cooling towers. Id. at 69.

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In accordance with the Boards Order dated August 29, 2018,27 SACE and the other petitioners submitted their replies to FPLs and the Staffs answers on September 10, 2018.28 In its Reply, SACE argues that the plain language of 10 C.F.R. § 51.53(c)(3) is dispositive and allows only applicants seeking an initial renewed license to apply for license renewal under

§ 51.53(c)(3) and thereby rely on the Category 1 designations of Table B-1.29 It further asserts that the regulatory history of the NRCs 1996 Part 51 rulemaking and associated GEIS for license renewal confirms that the Commission did not intend to expand the scope of [the Table B-1] findings beyond initial license renewal applications.30 In making these arguments, SACE describes the NRCs 2013 revised GEIS as providing only a limited update to its 1996 precursor, and disregards more recent Commission-level documents addressing the SLRA review process because they are not formal rulemaking documents that change the substantive terms of an existing regulation.31 III. THE BOARD SHOULD STRIKE SECTION II.A OF SACES REPLY SACEs new argument that the Category 1 exemptions in Table B-1 do not apply to the SLRA amounts to an untimely new proposed contention. SACE had an ample opportunity to proffer a contention in its Petition challenging any one of the hundreds of assertions in the ER that Table B-1s generic environmental impact findings apply to this proceeding. It did not do so. This new argument also amounts to an untimely attempt to amend SACEs original proposed contentions. Because SACE has neither requested nor been granted leave to file new or amended 27 Board Order (Granting Unopposed Joint Motion for Extension of Reply Deadline) (Aug. 29, 2018)

(ML18241A143).

28 See SACE Reply; Reply in Support of Request for Hearing and Petition to Intervene Submitted by Friends of the Earth, Natural Resources Defense Council, and Miami Waterkeeper (Sept. 10, 2018).

29 SACE Reply at 3.

30 Id. at 4-5.

31 Id. at 6-7.

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contentions, and cannot satisfy the late-filing requirements in 10 C.F.R. § 2.309(c), its new arguments must be stricken from Section II.A of the Reply.

A. SACEs Arguments in Section II.A. of Its Reply Constitute an Untimely New ContentionNot a Legitimate Amplification of a Previous Argument

1. Legal Standards Governing the Scope of a Petitioners Reply The Commission will not permit, in a reply, the filing of new arguments or new legal theories that opposing parties have not had an opportunity to address.32 Rather, NRC contention admissibility and timeliness requirements demand a level of discipline and preparedness on the part of petitioners, who must . . . set forth their claims . . . at the outset of the proceeding.33 Otherwise, [t]here simply would be no end to NRC licensing proceedings if petitioners could disregard our timeliness requirements and add new bases or new issues that simply did not occur to [them] at the outset.34 The Commission demands adherence to this requirement to avoid unnecessary delays and increase the efficiency of NRC adjudication,35 because answering parties are entitled to be told at the outset, with clarity and precision, what arguments are being advanced.36 Thus, the permissible scope of a reply includes only information that: (1) legitimately amplifies upon 32 USEC, Inc. (American Centrifuge Plant), CLI-06-9, 63 NRC 433, 439 (2006).

33 La. Energy Servs., LP (Natl Enrichment Facility), CLI-04-25, 60 NRC 223, 225 (2004) (internal quotation marks omitted), reconsideration denied, CLI-04-35, 60 NRC 619 (2004).

34 LES, CLI-04-25, 60 NRC at 225.

35 LES, CLI-04-35, 60 NRC at 622-23.

36 Kan. Gas & Elec. Co. & Kan. City Power & Light Co. (Wolf Creek Generating Station, Unit 1), ALAB-279, 1 NRC 559, 576 (1975) (emphasis added).

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arguments presented in the original petition,37 or (2) focuses narrowly on the legal or factual arguments first raised in the answers thereto.38

2. SACEs Arguments in Section II.A of the Reply Exceed the Proper Scope of a Reply Because They Constitute a New Legal Contention That SACE Did Not Plead with Specificity and Basis in Its Petition SACEs argument that FPL may not rely on the LREF and must fully address all environmental impacts designated by Table B-1 as Category 1 for the SLR period is an untimely new proposed contention. 39 Section 2.309(f)(1)(i) and (ii), respectively, require a petitioner to provide a specific statement of the issue of law or fact to be raised or controverted, and to provide a brief explanation of the basis for the contention. SACE does not provide the requisite bases and specificity in support of such an alternative legal theory of their case as otherwise required by 10 C.F.R. §§ 2.309(f)(1)(i)-(ii). A generalized reference does not satisfy the NRCs contention rules requiring reasonably specific factual and legal allegations at the outset.40 Section 2.309(f)(1)(vi) further requires the petitioner to include references to specific portions of the application (including the applicants environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute. In short, a petitioner has an ironclad obligation to review the Application thoroughly and to base [its] challenges on its contents.41 37 LES, CLI-04-25, 60 NRC at 224-25.

38 Palisades, CLI-06-17, 63 NRC at 732.

39 SACE Reply at 3, 9.

40 Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-02-28, 56 NRC 373, 381 (2002) (citing Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349, 359 (2001)).

41 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 312 (2012) (internal quotation marks and citation omitted).

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In light of the ERs specific contents, SACE failed to plead what amounts to a new legal contention with specificity and basis, as required by Section 2.309(f)(1)(i), (ii), and (vi). For example, ER Section 4.0 states explicitly that:

NRC rules do not require analyses of Category 1 issues that were resolved using generic findings [10 CFR Part 51 Subpart A, Appendix B, Table B-1]

as described in the GEIS. Therefore, an applicant may reference the GEIS findings for Category 1 issues, absent new and significant information.42 Similarly, ER Section 5.0 states:

The NRC has resolved most license renewal environmental issues generically and requires an applicant to analyze only those issues the NRC has not resolved generically. While NRC regulations do not require an applicants ER to contain analyses of the impacts of those Category 1 environmental issues that have been generically resolved [10 CFR 51.53(c)(3)(i)], the regulations do require that an applicant identify any new and significant information of which the applicant is aware. [10 CFR 51.53(c)(3)(iv)]43 SACE had ample opportunity to proffer a contention in its Petition challenging the foregoing ER statements (among numerous other ER references indicating FPLs position that the LREF applies to the Turkey Point SLRA). It did not do so.44 Instead, SACE chose to sweep this self-identified significant legal issue under the rug, and relegated any potentially-relevant discussion to the Legal Framework section of its Petition.45 Whatever its motive, SACE has failed to meet its burden as a petitionerespecially one represented by experienced counsel. It should not be permitted to cure that failure by belatedly submitting six pages of new legal argument in its Reply.

42 ER at 4-1 to 4-2.

43 Id. at 5-1.

44 As FPL noted in its Answer, in addition to ignoring the important dichotomy between Category 1 and Category 2 issues, SACE never expressly claims that it has presented new and significant information.

45 See SACE Petition at 5.

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Even assuming arguendo that SACE did not have an obligation to proffer a separate legal contention, its reply arguments go well beyond legitimate amplification of previous arguments made in support of Contention 1. In that contention, SACE alleged that the ER violates 10 C.F.R. § 51.53(c) by underestimating or ignoring the environmental impacts of continued use of the CCS on surrounding water resources. Significantly, SACE did not attempt to draw any distinction between Sections 51.53(c)(2) and 51.53(c)(3), or explain why the ER may not reference the GEIS and Table B-1 findings for Category 1 issues. In fact, there is no reference to the GEIS or Table B-1 in its entire Petitiona striking omission given the centrality of the GEIS and Appendix B to the NRCs license renewal environmental review regulations in Part 51, and SACEs own references to Table B-1 in its June 20, 2018 Extension Request.46 As a result, SACEs parsing of 10 C.F.R. 51.53(c)(3), probing of the regulatory history of the NRCs 1996 Part 51 rulemaking, and discussion of the scoping notice and report for the 2013 revised GEIS are more than permissible elaborations upon SACEs original arguments.

B. SACE Has Not Satisfied, or Attempted to Address, the Late-Filing Requirements of 10 C.F.R. § 2.309(c)

1. Legal Standards Governing Late-Filed Contentions In a reply pleading, new supporting legal arguments and theories essentially constitute[]

untimely attempts to amend [the] original petition[], or amount to entirely new contentions.47 Accordingly, petitioners wishing to advance such new arguments or theories must seek leave from the presiding officer and address the late-filing factors in 10 C.F.R. § 2.309(c)(1).48 That 46 See, e.g., 10 C.F.R. 51.71(d) (The draft supplemental environmental impact statement for license renewal prepared under § 51.95(c) will rely on conclusions as amplified by the supporting information in the GEIS for issues designated as Category 1 in appendix B to subpart A of this part.).

47 LES, CLI-04-25, 60 NRC at 224 (emphasis in original).

48 Id.

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regulation explicitly states that such arguments will not be entertained absent a determination by the presiding officer that the petitioner has demonstrated good cause by showing that: (1) the information upon which the filing is based was not previously available; (2) the information upon which the filing is based is materially different from information previously available; and (3) the filing has been submitted in a timely fashion based on the availability of the subsequent information.49 Otherwise, the appropriate remedy is to strike new arguments and legal theories offered in a reply pleading.50

2. SACE Has Not Established Good Cause for Its Late-Filed Legal Contention Challenging the Applicability of Table B-1 to the SLRA SACE makes no attempt to seek leave from the Board to file a new or amended contention, nor does it claim to satisfy the late-filing requirements. Nor could it. Contrary to 10 C.F.R. § 2.309(c)(1), nothing prevented SACE from raising its new arguments in the original Petition.51 The ERwhich describes the LREF in detailfirst became publicly available on February 14, 2018.52 And the Hearing Opportunity Notice for this proceeding, issued on May 2, 2018, explicitly noted the availability of the SLRA, including the ER, approximately three months before SACE filed its Petition on August 1, 2018.53 Accordingly, it would be impossible 49 10 C.F.R. § 2.309(c)(1); Fermi, CLI-15-18, 82 NRC at 147 (For any new arguments or new support for a contention, a petitioner must, among other things, explain why it could not have raised the argument or introduced the factual support earlier.).

50 See, e.g., Entergy Nuclear Vt. Yankee, LLC & Entergy Nuclear Operations, Inc. (Vt. Yankee Nuclear Power Station), LBP-06-20, 64 NRC 131, 198-199 (2006), revd on other grounds, CLI-07-16, 65 NRC 371 (2007);

Tenn. Valley Auth. (Bellefonte Nuclear Power Plant, Units 3 and 4), LBP-08-16, 68 NRC 361, 404, 429 (2008),

revd on other grounds, CLI-09-3, 69 NRC 68 (2009).

51 10 C.F.R. § 2.309(c)(1); Fermi, CLI-15-18, 82 NRC at 147.

52 The NRCs Web-based ADAMS shows that the Date Added property of the ER (ML18037A836) is 02/14/2018 08:36 AM EST.

53 See Florida Power & Light Company; Turkey Point Nuclear Generating, Unit Nos. 3 and 4; License Renewal Application; Opportunity to Request a Hearing and to Petition for Leave to Intervene, 83 Fed. Reg. 19,304 (May 2, 2018).

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for SACE to satisfy the first element of the late-filing requirements (requiring a demonstration that the information upon which the filing is based was not previously available).

As discussed above, SACEs June 20, 2018 Extension Request underscores that SACE could have presented its argument concerning the alleged inapplicability of Table B-1 to the SLRA in its Petition. In the Extension Requestfiled nearly six weeks before its Petition SACE stated as follows:

FPL relies on Table B-1 throughout its Environmental Report, and therefore apparently considers it to be applicable here. . . . The applicability of Table B-1 is a significant and relevant legal issue in this proceeding. If Table B-1 is not applicable, then a significant number of issues, considered by FPL to be exempt from consideration under Table B-1, must be addressed. In order to file an admissible contention on the subject, SACE must either file a waiver petition or demonstrate that Table B-1 is inapplicable.54 Thus, SACE was aware of this threshold legal issue before it filed its Petition, but chose not to address it head-on in the Petition, either as a separate contention or within the context of its two proffered contentions. It instead sought to evade the issue by cursorily discussing Section 51.53(c) in the legal standards section of its Petition, and by omitting any reference to Table B-1.

Moreover, the documents discussed by SACE in its Reply, including the 1996 Part 51 license renewal rulemaking and the 1996 GEIS, were available to SACE when it filed its Petition.

SACE, in fact, mentioned the 1996 rulemaking and GEIS in its Extension Request. SACE thus meets none of the late-filing criteria in Section 2.309(c)(1), because its argument is not based on any previously-unavailable and materially-different information (see § 2.309(c)(1)(i)-(ii)), and therefore it is not timely submitted based on such new information (see § 2.309(c)(1)(iii)).

For these reasons, SACE has not shown that good cause exists for its belatedly-presented arguments concerning the applicability of Table B-1 to the Turkey Point SLRA. Section 54 SACE Extension Request at 2-3 (emphasis added).

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2.309(c) and controlling Commission precedent require that, [f]or any new arguments or new support for a contention, a petitioner must, among other things, explain why it could not have raised the argument or introduced the factual support earlier.55 SACE has not done so here.

IV. IF THE BOARD DOES NOT STRIKE SECTION II.A OF SACES REPLY, THEN IT SHOULD GRANT FPL LEAVE TO FILE A SURREPLY For the above reasons, the Board should strike Section II.A of the Reply. If the Board declines to do so, then FPL respectfully requests that Board grant it leave to file the attached Surreply. NRC regulations provide that only the participant who filed the hearing request under 10 C.F.R. § 2.309 may file a reply to an answer thereto.56 However, the Commission has explained that extra filings, such as reply briefs that are not explicitly permitted by NRC regulations, may be considered on a case-by-case basis and are permissible where necessity or fairness dictates.57 Moreover, the Commissions Statement of Policy on the Conduct of Adjudicatory Proceedings emphasizes the importance of ensuring a fair and thorough hearing process and establishing a full, fair, and adequate record.58 FPL has not had an opportunity to respond to SACEs assertion that Table B-1, as a matter of law, does not apply to the SLRA. It is not enough that a party be placed on general notice of possible arguments.59 The regulations afford applicants the absolute right to be presented with contentions that are set forth with 55 Fermi, CLI-15-18, 82 NRC at 147; see also 10 C.F.R. § 2.309(c)(1).

56 10 C.F.R. § 2.309(i)(2)-(3).

57 U.S. Dept of Energy (High-Level Waste Repository), CLI-08-12, 67 NRC 386, 393 (2008).

58 Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 18-19 (1998); Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-81-08, 13 NRC 452, 453 (1981).

59 Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 118-19 (2006)

(explaining that notice pleading is not sufficient in NRC adjudicatory proceedings).

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particularity60 and with specific statements of law or fact for which a petitioner seeks a hearing.61 NRC regulations further provide applicants the absolute right to respond thereto.62 In this case, necessity and fairness justify granting FPL the opportunity to file a surreply to SACEs Reply. SACEs new argument concerning Table B-1s applicability to the SLRA goes well beyond any argument made by SACE in support of its two proposed contentions and, in effect, challenges the adequacy of virtually the entire ER. If accepted as valid (which it is not), that argument could have significant implications for the scope and orderly disposition of this proceeding as well as future SLRA proceedings. FPL has not had a full and fair opportunity to respond to SACEs new argument. That argument overlooks key aspects of the LREF as well as recent Staff and Commission statements confirming its applicability to SLRAs. Thus, fairness demands the provision of such an opportunity, and necessity commands the establishment of a full record.63 The attached Surreply will ensure a full record upon which the Board can base its ruling on SACEs Petition.

60 10 C.F.R. § 2.309(f)(1).

61 10 C.F.R. § 2.309(f)(1)(i). See also Wolf Creek, ALAB-279, 1 NRC 557 (The applicant is entitled to a fair chance to defend. It is therefore entitled to be told at the outset, with clarity and precision, what arguments are being advanced). In this regard, FPL could not have anticipated that SACE would devote six pages of its Reply to trying to justify why the word initial in 10 C.F.R. § 51.53(c)(3) should be read to produce an illogical result and upend the NRCs longstanding environmental review framework for license renewal applicationsa framework which, for reasons explained in FPLs Surreply, both the Commission and Staff clearly intend to apply to SLRAs.

62 10 C.F.R. § 2.309(i)(1). See also Fermi, CLI-15-18, 82 NRC at 146 (citing Wolf Creek and explaining litigants should not be taken by surprise and should be accorded an appropriate opportunity to respond to new arguments).

63 See Wolf Creek, ALAB-279, 1 NRC at 557 (The applicant is entitled to a fair chance to defend. It is therefore entitled to be told at the outset, with clarity and precision, what arguments are being advanced); Fermi, CLI-15-18, 82 NRC at 146 (citing Wolf Creek and explaining litigants should not be taken by surprise and should be accorded an appropriate opportunity to respond to new arguments).

15

V. CONCLUSION SACEs new arguments in its Reply neither legitimately amplify arguments presented in the original Petition, nor focus narrowly on legal arguments first raised in an answer, and raise new challenges to assertions in SLRA documents that were available long before the hearing request deadline. Because SACE has neither requested nor obtained leave from the Board to file new or amended contentions, and cannot satisfy the late-filing requirements, the appropriate remedy is to strike the untimely arguments. For these reasons, FPL requests that Section II.A of the Reply be stricken. In the alternative, if the Board decides not to strike Section II.A. of the Reply, then FPL respectfully seeks leave to the file the attached Surreply.

Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d)

Steven Hamrick, Esq. Paul M. Bessette, Esq.

Florida Power & Light Company Stephen J. Burdick, Esq.

801 Pennsylvania Ave., N.W. Suite 220 Morgan, Lewis & Bockius LLP Washington, D.C. 20004 1111 Pennsylvania Ave, N.W.

Phone: 202-349-3496 Washington, D.C. 20004 E-mail: steven.hamrick@fpl.com Phone: 202-739-5796 E-mail: paul.bessette@morganlewis.com E-mail: stephen.burdick@morganlewis.com Martin J. ONeill, Esq.

Morgan, Lewis & Bockius LLP 1000 Louisiana St., Suite 4000 Houston, TX 77002 Phone: 713-890-5710 E-mail: martin.oneill@morganlewis.com Counsel for Florida Power & Light Company Dated in Washington, D.C.

this 20th day of September 2018 16

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of ) Docket Nos. 50-250-SLR and 50-251-SLR

)

FLORIDA POWER & LIGHT COMPANY ) ASLBP No. 18-957-01-SLR-BD01

)

(Turkey Point Nuclear Generating Units 3 and 4) ) September 20, 2018

)

CONSULTATION CERTIFICATION Counsel for Florida Power & Light Company (FPL) certifies, under 10 C.F.R.

§ 2.323(b), that the movant has made a sincere effort to contact Southern Alliance for Clean Energy (SACE), and the U.S. Nuclear Regulatory Commission (NRC) Staff to resolve the issues raised in this Motion. Counsel for SACE represented that SACE plans to oppose FPLs Motion to Strike Section II.A of its Reply, but that SACE does not oppose FPLs alternative Motion for Leave to File a Surreply. Counsel for the NRC Staff indicated that the Staff does not oppose either FPLs Motion to Strike or its Motion for Leave to File a Surreply. Staff counsel further stated that if the Board grants FPL leave to file its Surreply, and subsequently allows surrebuttal to that Surreply, then the Staff requests a brief opportunity to respond.

Executed in Accord with 10 C.F.R. § 2.304(d)

Martin J. ONeill, Esq.

Morgan, Lewis & Bockius LLP 1000 Louisiana St., Suite 4000 Houston, TX 77002 Phone: 713-890-5710 E-mail: martin.oneill@morganlewis.com Counsel for Florida Power & Light Company

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of ) Docket Nos. 50-250-SLR and 50-251-SLR

)

FLORIDA POWER & LIGHT COMPANY ) ASLBP No. 18-957-01-SLR-BD01

)

(Turkey Point Nuclear Generating Units 3 and 4) ) September 20, 2018

)

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, copies of the: (1) Applicants Motion to Strike a Portion of the September 10, 2018 Reply Filed by Southern Alliance for Clean Energy or, in the Alternative, for Leave to File a Surreply and (2) Applicants Surreply to New Arguments Raised in Reply Pleadings were served upon the following persons by Electronic Information Exchange (the NRCs E-Filing System) and by electronic mail as indicated by an asterisk (*), in the above-captioned docket

.

U.S. Nuclear Regulatory Commission Southern Alliance for Clean Energy Office of the Secretary of the Commission Diane Curran, Esq.

U.S. Nuclear Regulatory Commission Miami Waterkeeper, Inc.

Atomic Safety and Licensing Board Panel Edan Rotenberg, Esq.

E. Roy Hawkens, Chairman Sue Abreu, Administrative Judge Friends of the Earth Michael F. Kennedy, Administrative Judge Richard E. Ayres, Esq.*

2923 Foxhall Road, N.W.

U.S. Nuclear Regulatory Commission Washington, D.C. 20016 Office of the General Counsel Email: ayresr@ayreslawgroup.com Sherwin E. Turk, Esq.

Jeremy L. Wachutka, Esq. Albert Gomez*

Esther R. Houseman, Esq. 3566 Vista Court Miami, FL 33133 Natural Resources Defense Council E-mail: albert@icassemblies.com Geoffrey H. Fettus, Esq.

Signed (electronically) by Ryan K. Lighty Ryan K. Lighty, Esq.

Morgan, Lewis & Bockius LLP 1111 Pennsylvania Ave, N.W.

Washington, D.C. 20004 Phone: 202-739-5274 E-mail: ryan.lighty@morganlewis.com Counsel for Florida Power & Light Company