ML18274A396
| ML18274A396 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 10/01/2018 |
| From: | Ayres R, Fettus G, Rotenberg E, Rumelt K Ayres Law Group, LLP, Friends of the Earth, Miami Waterkeeper, Natural Resources Defense Council, Super Law Group, Vermont Law School |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-250-SLR, 50-251-SLR, License Renewal, RAS 54526 | |
| Download: ML18274A396 (9) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of: )
)
FLORIDA POWER & LIGHT COMPANY ) Docket No. 50-250
) Docket No. 50-251 (Turkey Point Nuclear Generating Station, Unit Nos. )
3 and 4) ) October 1, 2018
)
(Subsequent License Renewal Application) )
FRIENDS OF THE EARTH, NATURAL RESOURCES DEFENSE COUNCIL, AND MIAMI WATERKEEPERS ANSWER IN OPPOSITION TO APPLICANTS MOTION TO STRIKE PORTIONS OF THE SEPTEMBER 10, 2018 REPLY FILED BY FRIENDS OF THE EARTH, NATURAL RESOURCES DEFENSE COUNCIL, AND MIAMI WATERKEEPER OR, IN THE ALTERNATIVE, FOR LEAVE TO FILE A SURREPLY Pursuant to 10 C.F.R. § 2.323(c), Friends of the Earth, Inc., Natural Resources Defense Council, Inc., and Miami Waterkeeper, Inc. (collectively, Petitioners) hereby submit this answer in opposition to the motion by Florida Power & Light Company (Applicant or FPL) requesting the Board to strike portions of the Petitioners Reply in Support of Request for Hearing and Petition to Intervene (Reply)1 or, in the alternative, for leave to file a surreply (Motion).2 INTRODUCTION Applicant requests the Board to strike Petitioners argument in the Reply that 10 C.F.R. 1 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) (ML18253A280) (Petitioners Reply).
2 Applicants Motion to Strike Portions of the September 10, 2018 Reply Filed by Friends of the Earth, Natural Resources Defense Council, and Miami Waterkeeper or, in the Alternative, For Leave to File a Surreply (Sep. 20, 2018) (Motion).
§ 51.53(c)(3), which by its terms applies only to initial license renewals, does not apply to this proceeding regarding an application for a subsequent license renewal. Applicant makes this request even though (a) Petitioners raised this very issue in its Petition and (b) NRC Staff saw fit to respond at length to the argument in its Answer. FPL claims that it was not afforded a fair opportunity to respond to Petitioners argument regarding the applicability of § 51.53(c)(3). But in light of the NRC Staffs full response to Petitioners arguments regarding the scope of
§ 51.53(c)(3), FPLs assertions that it had no opportunity to respond to Petitioners argument can only be characterized as disingenuous. Whatever the reason for Applicants failure to respond to the argument in its Answer, it is not due to Petitioners failure to raise the issue in its Petition.
Commission case law is clear that a reply may (1) amplify arguments made in the initial petition and (2) respond to arguments made in the applicants and NRC Staffs responses to the initial petition. The principle undergirding this rule is meant to ensure that parties to the proceeding have a fair opportunity to respond to an opposing partys arguments. Under FPLs misguided interpretation of this rule, however, Petitioners would be denied a fair opportunity to respond to the NRC Staffs arguments that § 51.53(c)(3)and that provisions relaxed requirements regarding environmental reviewapplies to this proceeding. The Board should deny Applicants motion to strike.
ARGUMENT I. Each Issue Addressed in Petitioners Reply is Within the Scope of Issues that a Reply May Permissibly Address.
Commission case law provides that a reply may address any and all legal or factual 2
arguments [1] first presented in the original petition or [2] raised in the answers to it.3 Each argument in Petitioners Reply (1) amplifies an argument that appeared in the Petition or (2) responds to an argument asserted by the Applicants and NRC Staffs Answers to the Petition.
Applicants assertions to the contrary are based on mischaracterizations of the Commissions case law regarding the issues that a reply may permissibly address.
A. The Reply legitimately amplifies arguments presented in the Petition.
Despite Applicants protests that Petitioners did not raise the issue of § 51.53(c)(3)s applicability to this proceeding, the Petition itself makes clear that in fact Petitioners did raise the issue, and then legitimately amplified that argument in the Reply. The Petition directly raised the issue by highlighting that § 51.53(c)(3) applies to applications for an initial renewed license and that, based on this limiting language, it is not established that § 51.53(c)(3) applies to an application for a subsequent license renewal such as this one.4 The Petition then made clear that if the Commission determines that § 51.53(c)(3) does not apply, Petitioners assert in the alternative that the ER fails to comply with § 51.53(c)(1) and (2).5 Petitioners then legitimately amplified this argument in the Reply by marshaling the plain language of the regulation, as well other authorities, to argue that § 51.53(c)(3) does not 3
In the Matter of Nuclear Mgmt. Co., LLC (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727, 732 (2006).
4 Petition at 16 n.71.
5 Id. In the Motion, Applicant characterizes the License Renewal Environmental Framework as 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. Motion at 1-2.
But the universe of regulations governing the applicants environmental review of license renewal applications is far broader than that, and includes 10 C.F.R. § 51.53(c)(1) and (2) (applying to [e]ach applicant for renewal of a license to operate a nuclear power plant under part 54 of this chapter), as well as 10 C.F.R. § 51.45(c) (setting forth requirements applicable to environmental reports prepared at the license renewal stage under § 51.53(c)).
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apply to subsequent license renewals.6 The rule governing the scope of issues that can be raised in a reply is intended to ensure that a petitioner does not raise new arguments.7 The rule does not prohibit a party (as Petitioners have done here) from expanding and amplifying on arguments that appeared in the initial petition.8 B. Even if the Board concludes that the Reply does not legitimately amplify arguments presented in the Petition, the Reply fairly and appropriately responds to a legal argument raised in NRC Staffs Answer.
In its Answer the NRC Staff argued, over the course of five pages, that § 51.53(c)(3) applies to initial and subsequent license renewals.9 NRCs procedural rules do not prohibit Petitioners from responding to this argument. Commission case law provides that a Reply may permissibly include information that focus[es] narrowly on the legal or factual arguments . . .
raised in the answers to [the petition].10 The NRCs 2004 Final Rule amending its rules of practice make clear that replies should address legal or logical arguments presented in the applicant/licensee or NRC staff answer.11 Applicant concedes that the NRC Staff asserted this legal argument in its Answer, but nonetheless asserts that Petitioners do not have a right to 6
Petitioners Reply at 11-13, 53.
7 Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-25, 60 NRC 223, 225 (2004) (new arguments may not be raised for the first time in a reply brief).
8 Id.
9 NRC Staff Answer at 18-23 & n.76; see also id. at 24-28 (asserting that NRCs Part 51 NEPA regulations apply to subsequent license renewals).
10 Palisades, CLI-06-17, 63 NRC at 732 (Replies must focus narrowly on the legal or factual arguments first presented in the original petition or raised in the answers to it. (emphasis added)); see also In the Matter of Nuclear Mgmt. Co., LLC (Palisades Nuclear Plant), ASLBP 05-842-03-LR, 63 NRC 314, 329 (2006), affirmed by CLI 17, 63 NRC 727 (noting that under the § 2.309(c) and (f) standards, the Board would consider only matters in the Reply that [] focus on the matters raised in the answers).
11 Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2203 (Jan. 14, 2004).
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respond to that argument.12 Applicant bases this assertion on two grounds, neither of which have merit.
First, Applicant appears to imply that because the Staffs Answer merely confirms that Part 51, including § 51.53(c)(3), applies to this proceeding (rather than affirmatively argues that position), Petitioners are barred from responding to that argument.13 That claim is erroneous.
The NRC Staff took the unequivocal position that § 51.53(c)(3) applies to this proceeding, and relied on legal authority (albeit legal authority that does not support their position). That is a legal argument, and Petitioners have the right to respond to it.14 Second, Applicant contends that Petitioners may not respond to the NRC Staffs argument because the issue clearly was not first raised by the Staff in its Answer.15 In other words, Applicant argues that because Petitioners first raised the issue of § 51.53(c)(3)s applicability, the rule that a reply may permissibly address arguments first raised in the Answers to the position, does not apply.
The logic underlying this argument is head-spinning, and the Board should reject it. As a matter of logic, it is inescapable that either Petitioners first raised the argument in the Petition (in which case Petitioners are entitled to legitimately amplify it on Reply) or NRC Staff first raised it (in which case Petitioners have the right to respond). Despite Applicants efforts to obfuscate 12 Motion at 11-12.
13 Motion at 11 (emphasis added).
14 Palisades, CLI-06-17, 63 NRC at 732 (a reply may permissibly include information that focus[es] narrowly on the legal or factual arguments. . . raised in the answers to [the petition]).
15 Motion at 11 (quoting Palisades, CLI-06-17, 63 NRC at 732) (emphasis added).
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this issue, it is clear that (1) the Petition raised the issue16; (2) NRC Staff argued in its Answer that, as a legal matter, § 51.53(c)(3) applies to this proceeding17; and (3) Petitioners responded to that argument in its Reply.18 Nothing in the Reply violates the Commissions procedural rules.
C. Applicant was afforded a fair opportunity to respond to Petitioners argument regarding the applicability of 10 C.F.R. § 51.53(c)(3).
The Commissions rule limiting the scope of a reply is meant to ensure that the reply does not unfairly deprive other participants of an opportunity to rebut . . . new claims.19 Applicant was not unfairly deprive[d] of the opportunity to respond to Petitioners argument regarding the applicability of § 51.53(c)(3). As noted above, NRC Staffs Answer demonstrates this by responding to that argument. Applicants failure to respond to the argument and instead move to strike it does not entitle Applicant to the relief it seeks.
Applicants position would stand on its head the rule governing which issues can be addressed in a reply. Applicant would have the Board prohibit Petitioners from responding to an argument comprising a significant portion of the NRC Staffs response. As Applicant itself asserts, however, the Commissions case law ensures that a party will have an opportunity to respond to an argument.20 According to Applicant, this rule applies to benefit itself, but not Petitioners. That is not the law. The Board should reject this effort as contrary to Commission case law.
16 Petition at 16 n.71.
17 NRC Staff Answer at 20 n.76; see also id. at 18-28.
18 Petitioners Reply at 11-13, 53.
19 Palisades, CLI-06-17, 63 NRC at 732.
20 Motion at 7 (quoting USEC, Inc. (American Centrifuge Plant), CLI-06-9, 63 NRC 433, 439 (2006)).
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II. The Board Should Address This Issue.
The issue of whether § 51.53(c)(3) applies to applications for initial renewed licenses only (as the regulations plain language provides) or whether it applies to all renewed licenses (as Applicant asserts) is integral to the NRCs adjudication of license renewal applications. The application at issue here is the first subsequent license renewal application submitted to the NRC.
Thus, this proceeding is the first time that an NRC adjudicatory body has been directly confronted with the issue of the scope of § 51.53(c)(3)s applicability. FPL would have the Board ignore this issue and simply presume, without addressing the issue with the attention it deserves, that § 51.53(c)(3) applies to subsequent license renewals (despite its plain language limiting its scope to initial license renewals only). The Board should reject that invitation and address this important issue.
CONCLUSION For the reasons stated above, the Board should deny Applicants motion to strike.
Respectfully submitted,
/s/ Richard Ayres /s/ Geoffrey H. Fettus Richard Ayres Geoffrey H. Fettus AYRES LAW GROUP LLP NATURAL RESOURCES DEFENSE COUNCIL 1401 K Street, NW, Suite 850 1152 15th Street, NW, Suite 300 Washington, DC 20005 Washington, DC 20005 202-744-6930 202-289-2371 ayresr@ayreslawgroup.com gfettus@nrdc.org Counsel for Natural Resources Defense Council
/s/ Ken Rumelt /s/ Edan Rotenberg Ken Rumelt Edan Rotenberg Vermont Law School SUPER LAW GROUP, LLC 164 Chelsea Street, PO Box 96 180 Maiden Lane, Suite 603 South Royalton, VT 05068 New York, New York 10038 7
802-831-1000 212-242-2355, Ext. 2 krumelt@vermontlaw.edu edan@superlawgroup.com Counsel for Friends of the Earth Counsel for Miami Waterkeeper Filed this 1st day of October, 2018 8
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of: )
)
FLORIDA POWER & LIGHT COMPANY ) Docket No. 50-250
) Docket No. 50-251 (Turkey Point Nuclear Generating Station, Unit Nos. )
3 and 4) ) October 1, 2018
)
(Subsequent License Renewal Application) )
CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, a copy of the foregoing Answer in Opposition to Applicants Motion to Strike Portions of the September 10, 2018 Reply Filed by Friends of the Earth, Natural Resources Defense Council, and Miami Waterkeeper or, in the Alternative, for Leave to File a Surreply was served upon the Electronic Information Exchange (EIE, the NRCs E-Filing System), in the above-captioned docket, which to the best of my knowledge resulted in transmittal of same to those on the EIE Service List for the captioned proceeding.
/Signed (electronically) by/
Geoffrey H. Fettus Senior Attorney Natural Resources Defense Council 1152 15th Street, N.W., Suite 300 Washington, D.C. 20005 (202) 289-2371 gfettus@nrdc.org Counsel for Natural Resources Defense Council October 1, 2018 9