ML18274A410
| ML18274A410 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 10/01/2018 |
| From: | Ayres R, Fettus G Friends of the Earth, Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP, Miami Waterkeeper, Natural Resources Defense Council, Southern Alliance for Clean Energy, Super Law Group, Vermont Law School |
| 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: ML18274A410 (7) | |
Text
1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
FLORIDA POWER & LIGHT COMPANY (Turkey Point Nuclear Generating Station, Unit Nos.
3 and 4)
(Subsequent License Renewal Application)
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Docket No. 50-250-SLR Docket No. 50-251-SLR October 1, 2018 MOTION FOR LEAVE TO RESPOND TO APPLICANTS SURREPPLY INTRODUCTION In accordance with 10 C.F.R. § 2.323(a)(2), the Natural Resources Defense Council, Friends of the Earth, Miami Waterkeepers, and Southern Alliance for Clean Energy (collectively, Petitioners) file this joint motion for leave to respond to Florida Power & Light Companys (Applicants or FPLs) Motion for Leave to file a Surreply, made on September 20th, 2018. 1 Necessity and fairness require an opportunity for Petitioners to respond to Applicants Surreply, as explained below and in the proposed response to the Surreply.
1 See Applicants Motion to Strike Portion of Southern Alliance for Clean Energys Reply or, in the Alternative, for Leave to File a Surreply (Sept. 20, 2011); 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 File a Surreply (Sept. 20, 2018).
[hereinafter Motions for Proposed Surreply]. Petitioners did not oppose FPLs motion for leave to file the proposed surreply, but waived no rights to file the instant Motion for Leave.
2 DISCUSSION The Commission has explained that extra filings such as surreplies, while not explicitly permitted by NRC regulations, may be considered on a case-by-case basis where necessity or fairness dictates.2 Here, necessity and fairness weigh strongly in favor of providing Petitioners an opportunity to respond new arguments in FPLs Surreply because: (1) Petitioners have not had an opportunity to respond to these arguments, and (2) Petitioners response is necessary for a complete record of a significant issue.
In its Surreply, the Applicant makes a new argument that to fully apply all the words of 10 C.F.R. § 51.53(c)(3) would create an absurd or unintended result, and therefore the ASLB should make a particular exception to the plain language doctrine under specific judicial precedents.3 This argument has not been made by any other party. Petitioners seek an opportunity to respond to FPLs argument that the judicial standard for making an exception to the plain language doctrine applies in the particular circumstances of this case.
By any measure, the question of whether 10 C.F.R. § 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 subsequent license renewal applications, and would therefore benefit from a complete record.
The application at issue here is the first subsequent license renewal application submitted to the 2 U.S. Dept of Energy (High-Level Waste Repository), CLI-08-12, 67 N.R.C. 386, 393 (2008).
3 Applicants Surreply To New Arguments Raised in Reply Pleadings (Sep. 20, 2018)
(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)).
3 NRC. Thus, this proceeding is the first time that an NRC adjudicatory body has been directly confronted with the issue of the scope of 10 C.F.R. § 51.53(c)(3)s applicability.
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.4 The Board and Commission would only benefit from Petitioners Response because it will foster more complete record, and is limited to the new arguments found within the Applicants Surreply.5 Fairness demands the provision of such an opportunity, and necessity commands the establishment of a full record.
Accordingly, Joint Petitioners respectfully request the Board grant leave to file Petitioners proposed Response to the Surreply, attached hereto.
Respectfully submitted, 4 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).
5 Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 18-19 (1998) (the Commissions objectives are to provide a fair hearing process, to avoid unnecessary delays in the NRC's review and hearing processes, and to produce an informed adjudicatory record that supports agency decision making on matters related to the NRC's responsibilities for protecting public health and safety, the common defense and security, and the environment.)
(emphasis added); see attached Petitioners Response to Applicants Surreply (Oct. 1, 2018).
/s/ Richard E. Ayres Richard E. Ayres FRIENDS OF THE EARTH COUNCIL 2923 Foxhall Road, N.W.
Washington, D.C. 20016 E-mail: ayresr@ayreslawgroup.com
/s/ Geoffrey Fettus Geoffrey Fettus NATURAL RESOURCES DEFENSE COUNCIL 1152 15th Street, NW, Suite 300 Washington, DC 20005 202-289-2371 gfettus@nrdc.org Counsel for Natural Resources Defense Council
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/s/ Ken Rumelt Ken Rumelt Vermont Law School ENVIRONMENTAL & NATURAL RESOURCES LAW CLINIC 164 Chelsea Street, PO Box 96 South Royalton, VT 05068 802-831-1000 krumelt@vermontlaw.edu Counsel for Friends of the Earth
/s/ Edan Rotenberg Edan Rotenberg SUPER LAW GROUP, LLC 180 Maiden Lane, Suite 603 New York, New York 10038 212-242-2355, Ext. 2 edan@superlawgroup.com Counsel for Miami Waterkeeper
/s/ Diane Curran 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 October 1, 2018
5 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
FLORIDA POWER & LIGHT COMPANY (Turkey Point Nuclear Generating Station, Unit Nos. 3 and 4)
(Subsequent License Renewal Application)
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Docket No. 50-250 Docket No. 50-251 October 1, 2018 CERTIFICATE OF CONSULTATION Counsel for Southern Alliance for Clean Energy, Friends of the Earth, Natural Resources Defense Council, and Miami Waterkeeper (collectively Petitioners) certify that under 10 C.F.R. § 2.323(b), they contacted Florida Power & Light Company (FPL) and the U.S.
Nuclear Regulatory Commission (NRC) Staff in a sincere effort to obtain their consent to Petitioners Response to FPLs Surreply. Counsel for FPL and NRC Staff represented that they oppose Petitioners Motion for Leave to Respond to Applicants Surreply.
Respectfully submitted,
/s/ Richard E. Ayres Richard E. Ayres FRIENDS OF THE EARTH COUNCIL 2923 Foxhall Road, N.W.
Washington, D.C. 20016 E-mail: ayresr@ayreslawgroup.com
/s/ Geoffrey Fettus Geoffrey Fettus NATURAL RESOURCES DEFENSE COUNCIL 1152 15th Street, NW, Suite 300 Washington, DC 20005 202-289-2371 gfettus@nrdc.org Counsel for Natural Resources Defense Council
/s/ Ken Rumelt Ken Rumelt Vermont Law School ENVIRONMENTAL & NATURAL RESOURCES LAW CLINIC 164 Chelsea Street, PO Box 96 South Royalton, VT 05068 802-831-1000 krumelt@vermontlaw.edu Counsel for Friends of the Earth
/s/ Edan Rotenberg Edan Rotenberg SUPER LAW GROUP, LLC 180 Maiden Lane, Suite 603 New York, New York 10038 212-242-2355, Ext. 2 edan@superlawgroup.com Counsel for Miami Waterkeeper
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/s/ Diane Curran 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 for SACE
7 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
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In the Matter of
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Florida Power and Light Company
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Docket Nos. 50-250/251-SLR Turkey Point Units 3 and 4
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CERTIFICATE OF SERVICE I certify that on October 1, 2018, I posted copies of the foregoing Motion for Leave to Respond to Applicants Surreply on the NRCs Electronic Information Exchange System.
___/signed electronically by/__
Diane Curran