ML18274A409
| ML18274A409 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 10/01/2018 |
| From: | Curran D Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP, Southern Alliance for Clean Energy |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| Shared Package | |
| ML18274A408 | List: |
| References | |
| 50-250-SLR, 50-251-SLR, License Renewal, RAS 54528 | |
| Download: ML18274A409 (6) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of
)
Florida Power and Light Company
)
Docket Nos. 50-250/251-SLR Turkey Point Units 3 and 4
)
_____________________________________)
SOUTHERN ALLIANCE FOR CLEAN ENERGYS RESPONSE TO FLORIDA POWER & LIGHTS MOTION TO STRIKE A PORTION OF SACES SEPTEMBER 10, 2018, REPLY OR, IN THE ALTERNATIVE FOR MOTION FOR LEAVE TO FILE A SURREPLY I. INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c), Southern Alliance for Clean Energy (SACE) hereby responds to 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 (Sept. 20, 2018) (Motion). The Applicant, Florida Power & Light Co. (FPL), seeks to strike a portion of Southern Alliance for Clean Energys Reply to Oppositions by Florida Power & Light and NRC Staff to SACEs Hearing Request (Sept. 10, 2018) (Reply). In the alternative, FPL requests the Atomic Safety and Licensing Board (ASLB) to consider Applicants Surreply to New Arguments Raised in Reply Pleadings (Sept. 20, 2018) (Surreply).
SACE opposes FPLs request to strike any portion of its Reply, but does not oppose consideration of the Applicants Surreply. In order to ensure a full and fair airing of the legal and factual issues raised in the Surreply, however, SACE requests the ASLB to consider Petitioners Response to Applicants Surreply, also filed today (Oct. 1, 2018).
2
II.
FACTUAL BACKGROUND On August 1, 2018, SACE submitted a hearing request on FPLs subsequent license renewal application. Southern Alliance for Clean Energys Hearing Request and Petition to Intervene (Hearing Request). In its hearing request, SACE asserted that as a subsequent license renewal applicant, FPL must comply with the general requirements of 10 C.F.R. § 51.53(c)(2);
and that it may not rely on 10 C.F.R. § 51.53(c)(3) because that provision applies only to applicants seeking an initial renewed license. Hearing Request at 5.
The NRC Staff responded to SACEs assertion that 10 C.F.R. § 51.53(c)(3) does not apply to FPLs subsequent license renewal application at length. NRC Staffs Corrected Response to Petitions to Intervene and Requests for Hearing Filed by (1) Friends of the Earth, Natural Resources Defense Council and Miami Waterkeeper, and (2) Southern Alliance for Clean Energy at 18-23 and n.76 (Aug. 27, 2017) (NRC Staff Answer). The Staff argued that despite the plain language of 10 C.F.R. § 51.53(c)(3), the NRC did not intend to exclude subsequent license renewal applicants from the scope of the provisions of the regulation that make binding the Category 1 findings of 10 C.F.R. Part 51, Subpart A, Appendix B, Table B-1 (Table B-1).
Id. at 20 and n.76.
Unlike the Staff, FPL did not address the applicability of 10 C.F.R. § 51.53(c)(3) or the meaning of the phrase seeking an initial renewed license in its response to SACEs Hearing Request. Instead, FPL assumed that § 51.53(c)(3) applied and argued that Category 1 issues are not subject to challenge in this adjudicatory proceeding because they are codified in Table B-
- 1. Applicants Answer Opposing Southern Alliance for Clean Energys Request for Hearing and Petition to Intervene at 2 (Aug. 27, 2018) (FPL Answer).
FPL now seeks to strike the portion of SACEs Reply that responds to the NRC Staffs
3
arguments about the applicability of 10 C.F.R. § 51.53(c)(3). In the alternative, FPL seeks a belated opportunity to make the response that it missed the first time around, in a surreply.
III.
DISCUSSION A.
FPLs Motion to Strike is Not Justified and Should Therefore be Denied.
FPL argues that SACEs Reply makes a new argument, not included in SACEs Hearing request, that the Category 1 exemptions in Table B-1 do not apply to FPLs subsequent license renewal application. Motion at 7. Accordingly, FPL contends that SACEs argument in its Reply amounts to an untimely new proposed contention. Id. This argument lacks merit, failing on multiple grounds.
First, FPLs characterizes the language of SACEs Hearing Request as a generalized reference that fails to comply with NRCs admissibility requirement for reasonably specific factual and legal allegations. Motion at 9. It is hard to see how SACE could get more specific than by quoting the language of 10 C.F.R. § 51.53(c)(3) that makes it inapplicable to FPLs subsequent license renewal application. Nor is there any merit to FPLs complaint that SACE should have alerted FPL that the inapplicability of 10 C.F.R. § 51.53(c)(3) also renders Table B-1 inapplicable, as the text of the regulation is clear.
FPLs argument that SACE provided insufficient notice of its claims is also contradicted by the fact that the NRC plainly discerned from SACEs Hearing Request that SACE was challenging the applicability of 10 C.F.R. § 51.53(c)(3) and Table B-1 to its subsequent license renewal application, and devoted a significant portion of its Response to the issue. NRC Response at 19-23. Moreover, as FPL itself acknowledges, SACE had previously notified the NRC that it had questions regarding the applicability of 10 C.F.R. § 51.53(c)(3) and Table B-1 to this proceeding. Motion at 13. Thus, SACE had already put FPL on notice of its concerns.
4
Second, under NRCs procedural regulations, SACE was entitled to reply to the NRC Staffs arguments in opposition to its Hearing Request. 10 C.F.R. § 2.309(i)(2). If the ASLB were to strike SACEs argument from its Reply, the Staffs argument would stand unchallenged despite its legal and factual inaccuracies.
Finally, it would be unfair and inconsistent with the NRCs admissibility standards for the ASLB to reward FPL for its failure to fully read all of SACEs Hearing Request by striking a portion of SACEs Reply. Just as hearing requestors are held to their ironcad obligation to read license applications and provide specific citations to their deficiencies, Duke Power Co.
(Catawba Nuclear Station, Units 1 & 2), ALAB-687, 16 NRC 460, 468 (1982), vacated in part on other grounds, CLI-83-19, 17 NRC 1041 (1983), so FPL should be held to an ironclad obligation to more carefully read SACEs Hearing Request.
B.
SACE Does Not Object to Consideration of FPLs Surreply, But Requests a Full Briefing on the Legal and Factual Issues Raised in the Surreply.
In the alternative, FPL seeks leave to file a Surreply. Motion at 14. Given the novelty of this first subsequent license renewal case, SACE made no objection to the consideration of a surreply by FPL during the consultation process. But SACE could not have anticipated that FPL would attempt to carve out an exception to the well-established plain language doctrine of statutory and regulatory interpretation. Surreply at 4 (citing United States v. Granderson, 511 U.S. 39, 47 n.5 (1994); Pub. Citizen v. Dept of Justice, 491 U.S. 440, 454 (1989); United States
- v. Mendoza, 565 F.2d 1285, 1288 (5th Cir. 1978)). As discussed in the attached Petitioners Response to Applicants Surreply (Oct. 1, 2018), FPL has not justified the application of this rare exception to the clear, unambiguous language in 10 C.F.R. § 51.53(c)(3). And FPLs arguments are based on the mischaracterization or incomplete analysis of the regulatory history of the NRCs regulations for implementation of the National Environmental Policy Act (NEPA) in
5
license renewal proceedings. In order to ensure the fairness of the proceeding, SACE requests the ASLB to allow a full briefing of the issues raised in FPLs Surreply by considering Petitioners Response to Applicants Surreply.1 III.
CONCLUSION For the foregoing reasons, the ASLB should deny FPLs motion to strike a portion of SACEs Reply, but does not object to the consideration of FPLs Surreply. In addition, SACE requests the ASLB to allow a full briefing of the issues raised in FPLs Surreply by considering Petitioners Response to Applicants Surreply.
Respectfully submitted,
___/signed electronically by/__
Diane Curran Harmon, Curran, Spielberg, & Eisenberg, L.L.P.
1725 DeSales Street N.W., Suite 500 Washington, D.C. 20036 240-393-9285 dcurran@harmoncurran.com Counsel to SACE:
October 1, 2018
1 SACE has also joined the other petitioners in this proceeding in a Motion for Leave to Respond to Applicants Surreply, filed today (Oct. 1, 2018).
6
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of
)
Florida Power and Light Company
)
Docket Nos. 50-250/251-subsequent license renewal Turkey Point Units 3 and 4
)
_____________________________________)
CERTIFICATE OF SERVICE I certify that on October 1, 2018, I posted copies of the foregoing SOUTHERN ALLIANCE FOR CLEAN ENERGYS RESPONSE TO FLORIDA POWER & LIGHTS MOTION TO STRIKE A PORTION OF SACES SEPTEMBER 10, 2018, REPLY OR, IN THE ALTERNATIVE FOR MOTION FOR LEAVE TO FILE A SURREPLY on the NRCs Electronic Information Exchange System.
___/signed electronically by/__
Diane Curran