ML18283B006

Applicant'S Answer Opposing Petitioners' Motion for Leave to File Response to Applicant'S September 20, 2018 Surreply

ML18283B006
Person / Time
Site:	Turkey Point
Issue date:	10/10/2018
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, ASLBP 18-957-01-SLR-BD01, RAS 54553
Download: ML18283B006 (11)

Text

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

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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) ) October 10, 2018

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APPLICANTS ANSWER OPPOSING PETITIONERS MOTION FOR LEAVE TO FILE RESPONSE TO APPLICANTS SEPTEMBER 20, 2018 SURREPLY In accordance with 10 C.F.R. § 2.323(c), Florida Power & Light Company (FPL or Applicant) files this Answer opposing the Motion for Leave to Respond to Applicants Surreply (Motion for Leave) filed by (1) Southern Alliance for Clean Energy (SACE) and (2) Friends of the Earth, Natural Resources Defense Council, and Miami Waterkeeper (Joint Petitioners) (collectively, Petitioners) on October 1, 2018.1 As explained below, the Board should deny the Motion for Leave, and exclude Petitioners Response to Applicants Surreply (Proposed Response) from the adjudicatory record.2 In support, Applicant states as follows:

1. FPL filed a subsequent license renewal (SLR) application (SLRA) with the NRC on January 30, 2018, to renew the Turkey Point Unit 3 and Unit 4 operating licenses for an additional 20-year period.3 As part of the SLRA and as required by 10 C.F.R. Part 51, FPL submitted an Environmental Report (ER) that considers the potential environmental impacts of 1

Motion for Leave to Respond to Applicants Surreply (Oct. 1, 2018) (ML18274A410).

2 Petitioners Response to Applicants Surreply (Oct. 1, 2018) (ML18274A411). Petitioners submitted errata and a corrected version of the Proposed Response on October 4, 2018.

3 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). See also 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).

the requested subsequent license renewal.4 ER Table 1.0-1 lists the 10 C.F.R. Part 51 regulations that are applicable to the SLRAincluding §§ 51.45(b)-(e), 51.53(c)(2), and 51.53(c)(3)and the specific ER sections in which those regulatory requirements are addressed.5 Section 4.0 of the SLRA states 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.6 Thus, the ER explicitly references and relies on the NRCs generic impact evaluations for Category 1 issues, as analyzed in the GEIS and codified in Table B-1.

2. On June 20, 2018, SACE filed a motion seeking to extend the deadline for filing intervention petitions.7 In that motion, SACE noted that: (1) FPL relies on Table B-1 throughout its Environmental Report; (2) [t]he applicability of Table B-1 is a significant and relevant legal issue in this proceeding; and (3) to file an admissible contention on the subject, SACE must either file a waiver petition or demonstrate that Table B-1 is inapplicable.8

3. SACE filed its hearing request and intervention petition on August 1, 2018.9 That petition included two proposed contentions challenging the adequacy of certain discussions in the ER. Although SACE very briefly mentioned 10 C.F.R. § 51.53(c)(2) and (c)(3) in the Legal 4

See SLRA Appendix E, Applicants Environmental Report - Subsequent Operating License Renewal Stage (Jan. 30, 2018) (ML18113A145). 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.

5 See ER at 1-3 to 1-7 (Table 1.0-1, Environmental Report Responses to License Renewal Environmental Regulatory Requirements).

6 Id. at 4-1 to 4-2.

7 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).

8 Id. at 2-3 (emphasis added).

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

(ML18213A529) (SACE Petition).

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Framework section of its petition,10 it never once mentioned the NRCs 2013 Generic Environmental Impact Statement for License Renewal of Nuclear Plants (GEIS) or Table B-1, including its Category 1 and Category 2 issue designations and impact findings. It certainly never demonstrate[d] that Table B-1 is inapplicable.11

4. Joint Petitioners also filed a hearing request and intervention petition on August 1, 2018.12 In stark contrast to SACEs petition, that petition directly discussed and challenged the GEIS, Table B-1, and specific NRC Category 1 and Category 2 impact findings vis--vis the ER.

Specifically, Joint Petitioners framed each of their five proposed contentions as challenges to FPLs compliance with requirements in Section 51.53(c)(3), and asserted that the existence of new and significant information allows them to challenge Category 1 determinations without filing a waiver request.13 Joint Petitioners only suggested in a brief footnote that the applicability of Section 51.53(c)(3) to this SLR proceeding is unclear given the regulations reference to an initial renewed license.14

5. On August 27, 2018, FPL and the NRC Staff timely filed their respective answers to SACEs and Joint Petitioners intervention petitions.15 As germane here, those answers 10 See id. at 5.

11 SACE Extension Request at 3 (emphasis added).

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

13 Id. at 16 (citing § 51.53(c)(3)(iii) as a legal basis for Contention 1-E), 30-31 (citing § 51.53(c)(3)(ii) as the sole legal basis for Contention 2-E), 39 (citing § 51.53(c)(3)(iv) as the sole legal basis for Contention 3-E), 47 n.200 (citing § 51.53(c)(3)(iii) as a legal basis for Contention 4-E), and 59 n.259 (citing §§ 51.53(c)(3)(ii)(E) & (O) as the sole legal bases for Contention 5-E).

14 Id. at 16 n.71.

15 See Applicants Answer Opposing Southern Alliance for Clean Energys Request for Hearing and Petition to Intervene (Aug. 27, 2018) (ML18239A449) (FPL Answer to SACE Petition); Applicants Answer Opposing Request for Hearing and Petition to Intervene Submitted by Friends of the Earth, Natural Resources Defense Council, and Miami Waterkeeper (Aug. 27, 2018) (ML18239A445) (FPL Answer to Joint Petitioners Petition); NRC Staffs Corrected Response to Petitions to Intervene and Requests for Hearing by (1) Friends of 3

explained that 10 C.F.R. § 51.53(c)(3) and Table B-1 apply to the instant proceeding.16 They further explained that Category 1 issues are not subject to challenge in license renewal adjudicatory proceedings such as this one absent a waiver.17 The NRC Staff Answer also included a background section acknowledging the applicability of § 51.53(c)(3) to applications for an initial renewed license, and explaining that § 51.53(c)(3) also applies to SLRAs.18 The Staff noted that the Commission has determined that the existing license renewal . . .

environmental regulatory framework applies to subsequent license renewal . . . .19

6. SACE and Joint Petitioners submitted their replies to FPLs and the Staffs answers on September 10, 2018.20 In its reply, SACE arguedfor the first time and over the course of 7 pagesthat 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 Section 51.53(c)(3) and thereby rely on the Category 1 designations of Table B-1.21 It further asserted that the 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.22 In their reply, Joint Petitioners similarly arguedalso for the first timethat the Earth, Natural Resources Defense Council and Miami Waterkeeper, and (2) Southern Alliance for Clean Energy (Aug. 27, 2018) (ML18239A458) (NRC Staff Answer).

16 See, e.g., FPL Answer to SACE Petition at 8-10; FPL Answer to Joint Petitioners Petition at 3-4; NRC Staff Answer at 18-28.

17 See, e.g., FPL Answer to SACE Petition at 12-15; NRC Staff Answer at 26-28; 18 See NRC Staff Answer at 18-23.

19 Id. at 20 n.76; see also id. at 20-23.

20 See Southern Alliance for Clean Energys Reply to Oppositions by Florida Power & Light and NRC Staff to SACEs Hearing Request (Sept. 10, 2018) (ML18253A282) (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) (ML18253A280) (Joint Petitioners Reply).

21 SACE Reply at 3.

22 Id. at 4-5.

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the language of Section 51.53(c)(3) is unambiguous, and that the regulation does not apply to this SLR proceeding.23

7. In view of the new arguments advanced by SACE and Joint Petitioners in their replies, FPL filed Motions to Strike portions of those replies or, alternatively, for leave to file a surreply (which FPL attached to its motions).24 In its Motions to Strike, FPL sought to strike portions of Petitioners reply pleadings that impermissibly introduce new arguments without satisfying the late-filing factors in 10 C.F.R. § 2.309(c). In its Surreply, FPL set forth the bases for its position that Petitioners new reply arguments are inconsistent with Part 51s language, structure, requirements, and regulatory history, as well as more recent NRC Staff and Commission statements made in connection with the SLRA review process.25

8. On October 1, 2018, Petitioners not only opposed FPLs Motions to Strike, they also sought leave to respond to FPLs Surreply in the form of their Proposed Response, which substantially expands and embellishes upon Petitioners previous arguments. Petitioners, now acting in unison and over the course of an additional 20 pages of pleadings, newly assert that

[i]f the NRC wishes to apply the Category 1 exemptions to subsequent license renewal applicants like FPL, it must first revise the 1996 GEIS and rule, and the 2013 Revised GEIS and amended rule, to comply with . . . NEPA and the Administrative Procedure Act.26 According to 23 See Joint Petitioners Reply at 5, 11-12, 14-16.

24 See 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) (ML18263A285);

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 (Sept.

20, 2018) (ML18263A284).

25 See generally Applicants Surreply to New Arguments Raised in Reply Pleadings (Sept. 20, 2018)

(ML18263A286) (FPLs Surreply or Surreply). During consultations with FPL, Petitioners stated that they would oppose FPLs Motions to Strike portions of their replies, but that they would not oppose FPLs alternative motion for leave to file its Surreply.

26 Proposed Response at 19.

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Petitioners, this would require: (1) a new scoping process; (2) preparation of a draft GEIS for public comment, and (3) publication of revised NEPA regulations (also for public comment) that make the requirements of Table B-1 binding in SLR proceedings.27

9. To summarize, Petitioners references to the legal issue at hand (i.e., the applicability of Section 51.53(c)(3) and Table B-1 to SLRAs) in their intervention petitions was cursory at best, despite Petitioners current description of those regulations as integral to the NRCs adjudication of subsequent license renewal applications.28 In their reply pleadings, Petitioners sought to substantially augment their initial, scant references to this legal issue. Now, in their Proposed Response, Petitioners seek yet another opportunity to present even more arguments on an issue that they could and should have addressed in their intervention petitions.29

10. Contrary to Petitioners claim, necessity and fairness do not justify their submittal of yet another 20 pages of additional briefingin the form of the Proposed Response.

Petitioners accuse FPL of making a new argument in its Surreply,30 but, clearly, it is Petitioners who failed to meet their initial pleading burden. The Commission has emphasized that 10 C.F.R. § 2.309(f)(1) specifically permits petitioners to present contentions that raise issues of law.31 Thus, it was incumbent upon Petitioners to directly contestwithin the context of a proposed contentionFPLs position in the ER that it is not required to contain analyses of the environmental impacts of the license renewal issues identified as Category 1 issues.32 They 27 See id. at 19-20.

28 Motion for Leave at 2.

29 SACE Extension Request at 3.

30 Motion for Leave at 2.

31 Waste Control Specialists, LLC (Consolidated Interim Storage Facility), CLI-17-10, 85 NRC 221, 223 (2017).

32 ER at 4-2. See Susquehanna Nuclear, LLC (Susquehanna Steam Elec. Station, Units 1 & 2), CLI-17-4, 85 NRC 59, 63 (2017) (A request for a hearing and petition to intervene must set forth the specific contentions that the petitioner seeks to have litigated.); Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

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did not do so. Nor did they pursue other possible procedural vehicles available to them.33 Petitioners should not be permitted to cure their threshold, substantive pleading failure through multiple expanded filings and continually-morphing legal arguments. Any perceived prejudice is the result of Petitioners actions in this proceedingnot those of FPL or the NRC Staff.

11. Petitioners argument that they must be given the opportunity to address new arguments by FPL in order to ensure a complete record lacks force.34 Indeed, it was Petitioners belated attempts to raise new arguments in their September 10, 2018 reply pleadings that necessitated and justified FPLs filing of its Motions to Strike or, alternatively, for leave to file its Surreply. Answering parties are entitled to be told at the outset, with clarity and precision, what arguments are being advanced . . . .35 Thus, it was reasonable and necessary for FPL to seek leave from the Board to present appropriate counterarguments, including its own arguments based on principles of regulatory construction. Not doing so would have resulted in an incomplete record and prejudice to FPL.

12. Conversely, it was not reasonable or necessary for Petitioners to seek leave to file another 20-page legal briefin effect giving them a third bite at the apple. In their Proposed Response, Petitioners seek to further bolster arguments made in their replies, and to present new arguments centering on the NRCs alleged failure to comply with NEPA and the Administrative Procedure Act. Specifically, they assert that FPL must petition for a rulemaking and ask the CLI-06-24, 64 NRC 111, 119 (2006) (Mere notice pleading does not suffice.) (internal quotation marks omitted).

33 For example, Petitioners could have submitted waiver requests (see 10 C.F.R. § 2.335(b)), petitioned the Board to certify the legal question at issue to the Commission for early review (see 10 C.F.R. § 2.341(f)(2), and/or filed a petition for rulemaking (see 10 C.F.R. § 2.802).

34 Motion for Leave at 2-3.

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

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NRC to prepare a new or revised License Renewal GEIS if it wishes Table B-1 to apply to its SLRA, and that the NRC must comply with NEPA and the Administrative Procedure Act by publishing, for public comment, revised NEPA regulations which make the requirements of Table B-1 binding in subsequent license renewal proceedings.36 These new arguments flow from Petitioners (unfounded) belief that the NRC improperly failed to use[] its scoping process to expand the scope of the 1996 GEIS in the 2013 Revised GEIS.37

13. These new arguments clearly are untimely. As noted above, the ER explicitly references and relies upon Table B-1 and the 2013 GEIS. If Petitioners believe that a new Part 51 rulemaking and revised GEIS are necessary to make Table B-1 applicable to SLRAs, then they could have advanced that argument in their intervention petitions (and submitted their own rulemaking petition). Nothing in FPLs Surreply constitutes a necessary trigger or prerequisite to Petitioners proffering of this argument. The mere fact that the argument did not occur to Petitioners at the outset of this proceeding does not justify its belated presentation in their Proposed Response.38

14. Petitioners new argument also is substantively flawed. Petitioners fail to explain why a Part 51 scoping process initiated in 2003, and a related scoping report issued in 2009, necessarily should have included explicit discussion of SLRAs. (Petitioners themselves, moreover, do not appear to have raised the issue during the scoping process.) In any event, for the reasons explained in FPLs Surreply, there is no basis to conclude that the NRC intended the 36 Proposed Response at 17, 19.

37 Id. at 15.

38 La. Energy Servs., LP (Natl Enrichment Facility), CLI-04-25, 60 NRC 223, 225 (2004), reconsideration denied, CLI-04-35, 60 NRC 619 (2004) (There 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.) (citations omitted).

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2013 revised GEIS or associated Part 51 amendments to be limited to initial license renewal applications, or to otherwise foreclose application of current Table B-1 to SLRAs. Indeed, the NRC Staff 2009 scoping summary report mentioned in SACEs September 10, 2018 reply and Petitioners Proposed Response specifically provides that:

The NRC regulations allow owners of nuclear power reactors to seek license renewal for up to an additional 20 years with no limitations on the number of times the license may be renewed. . . . The NRC bases its license renewal decision on whether the facility will continue to meet the requirements for safe operation and whether the protection of the environment can be assured.39 The NRCs current plan is to apply the revised GEIS to all license renewal applications submitted after the date the Record of Decision for the revised GEIS is printed in the Federal Register.40 A site-specific environmental impact statement that analyzes the environmental impacts of license renewal at that particular site is prepared each and every time a licensee submits an application for license renewal. Category 1 issues are not excluded from the site-specific environmental impact statement. The conclusions in the GEIS relative to each Category 1 issue are reviewed for appropriateness to the specific plant being evaluated.41

15. In conclusion, the Board should deny Petitioners Motion for Leave. SACE and Joint Petitioners presented arguments in their reply pleadings that were not raised in their intervention petitionsbut which plainly could have been raised in those petitionsthereby necessitating FPLs filing of its Motions to Strike and alternative request to file its Surreply. No further opportunity to address these issues is warranted or proper under NRCs rules and 39 Environmental Impact Statement Scoping Process, Summary Report: Update of the Generic Environmental Impact Statement for License Renewal of Nuclear Plants, at 64 (May 2009) (ML082960910) (emphasis added).

40 Id. at 67 (emphasis added).

41 Id. at 72 (emphasis added).

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precedent, as Petitioners have not shown that necessity or fairness or other compelling circumstances justify the filing of the Proposed Response.42 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 10th day of October 2018 42 See U.S. Dept of Energy (High-Level Waste Repository), CLI-08-12, 67 NRC 386, 393 (2008) (The Licensing Board and the Commission should permit extra filings only where necessity or fairness dictates.). Cf. 10 C.F.R. § 2.323(c) (stating that replies may only be granted in compelling circumstances).

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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) ) October 10, 2018

)

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, copies of the Applicants Answer Opposing Petitioners Motion for Leave to File Response to Applicants September 20, 2018 Surreply 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 Friends of the Earth Sue Abreu, Administrative Judge Richard E. Ayres, Esq.*

Michael F. Kennedy, Administrative Judge 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. Albert Gomez*

Jeremy L. Wachutka, Esq. 3566 Vista Court Esther R. Houseman, Esq. 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 Avenue, N.W.

Washington, D.C. 20004 Phone: (202) 739-5274 Fax: (202) 739-3001 E-mail: ryan.lighty@morganlewis.com Counsel for Florida Power & Light Company