ML19022A026
| ML19022A026 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 01/22/2019 |
| From: | Bessette P, Hamrick S, Lighty R 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 54764 | |
| Download: ML19022A026 (4) | |
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
)
FLORIDA POWER & LIGHT COMPANY ) ASLBP No. 18-957-01-SLR-BD01
)
(Turkey Point Nuclear Generating Units 3 and 4) ) January 22, 2019
)
APPLICANTS ANSWER TO PETITIONERS JOINT MOTION FOR LEAVE TO RESPOND TO APPLICANTS RESPONSE TO THE NRC STAFFS CLARIFICATION In accordance with 10 C.F.R. § 2.323(c), Florida Power & Light Company (FPL) hereby timely files its Answer to the Motion for Leave to Respond (Motion) to FPLs Response to the NRC Staffs Clarification Regarding the Admissibility of Proposed Cooling Tower Contentions (FPL Response),1 filed by Friends of the Earth, Natural Resources Defense Council, Miami Waterkeeper, and Southern Alliance for Clean Energy (collectively, Petitioners).2 Therein, Petitioners argue that necessity and fairness demand that the Atomic Safety and Licensing Board (Board) grant them yet another opportunity to respond to allegedly new arguments raised by FPL.3 However, the arguments Petitioners seek to address are not new, and have been advanced by FPL throughout this proceeding. The Motion is nothing more than an attempt to get the last wordindeed, a fourth bite at the proverbial appleand should be rejected by the Board because it fails to satisfy the requirements for extra filings, and serves only to further delay the proceeding.
1 Applicants Response to the NRC Staffs Clarification Regarding the Admissibility of Proposed Cooling Tower Contentions (Jan. 7, 2019) (ML19007A311) (FPL Response).
2 Petitioners Motion for Leave to Respond to Applicants Response to the NRC Staffs Clarification Regarding the Admissibility of Proposed Cooling Tower Contentions (Jan. 15, 2019) (ML19015A316) (Motion); see also Petitioners Response to Applicants New Arguments on the Admissibility of Petitioners Proposed Cooling Tower Contentions (Jan. 15, 2019) (ML19015A317) (Proposed Response).
3 Motion at 1.
More specifically, Petitioners assert that FPL claims for the first time that [the National Environmental Policy Act of 1969, as amended] requires consideration of a cooling towers alternative only if: (1) there is a reasonably likely, otherwise-unmitigated impact not bounded by the existing mitigation discussion, and (2) cooling towers would be a proportional response to that otherwise-unmitigated impact.4 However, this is not the first time FPL has discussed these threshold materiality considerations for contention admissibility.
For example, FPLs earlier pleadings explain that:
the mitigation controls and programs cited in the ERwhich are formulated, finalized, and adoptedand which Petitioners disregard rather than disputeexceed the applicable requirements in NEPA and Part 51.
Because Petitioners have neither identified a genuine material dispute with the ER on this topic, nor attempted to explain why cooling towers would be a proportional response to any purported defect, they have not demonstrated the existence of a duty to evaluate cooling towers as a mitigation measure, or otherwise demonstrate an admissible contention. 5 Likewise, at oral argument, FPL further clarified this point in response to the Boards request (in its Order providing topics and questions for oral argument6):
[Mr. Lighty]: . . . based on case law and applicable NRC guidance, there appear to be two primary threshold considerations, which if both are satisfied give rise to such a duty. First, there must be an unmitigated impact identified. And, second, the given measure must be a proportional response thereto. And Petitioners have not satisfied either of these threshold criteria in their pleadings. [Continuing on to further explain the two criteria].7 4
Id. at 2 (quoting FPL Response at 5). Petitioners assert that this is among other purportedly new arguments.
Id. However, they cite no other arguments in the Motion. To the extent this refers to what Petitioners call mischaracterizations of the record in their Proposed Response (at 1), such arguments are not advanced in the Motion and should not be considered by the Board. Moreover, the mere fact that Petitioners may disagree with FPLs characterizations is not a cognizable basis for allowing extra pleadings.
5 Applicants Answer Opposing Request for Hearing and Petition to Intervene Submitted by Friends of the Earth, Natural Resources Defense Council, and Miami Waterkeeper at 26 (Aug. 27, 2018) (ML18239A445)). See also Applicants Answer Opposing Southern Alliance for Clean Energys Request for Hearing and Petition to Intervene at 47-48 (Aug. 27, 2018) (ML18239A450).
6 Order (Providing Oral Argument Topics) at 2 (unpublished) (Nov. 14, 2018) (ML18318A332) (second bullet, item 2).
7 Transcript at 203 (Dec. 4, 2018) (ML18340A077).
2
Indeed, the FPL Response even directed Petitioners to the precise pages of the pleadings and transcript where these earlier arguments are found.8 Thus, contrary to Petitioners assertion in their Motion, this is not a new . . . proposed test.9 FPL has consistently advanced and legitimately amplified this line of argument throughout the proceeding. Petitioners have had ample opportunities to address these arguments, both in the pleadings and at oral argument they simply have chosen not to do so. Accordingly, their untimely attempt to do so now, on the eve of the Boards decision on standing and contention admissibility, should be rejected.
Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d) Executed in Accord with 10 C.F.R. § 2.304(d)
Steven Hamrick, Esq. Paul M. Bessette, Esq.
Florida Power & Light Company Morgan, Lewis & Bockius LLP 801 Pennsylvania Ave., N.W. Suite 220 1111 Pennsylvania Ave, N.W.
Washington, D.C. 20004 Washington, D.C. 20004 Phone: 202-349-3496 Phone: 202-739-5796 E-mail: steven.hamrick@fpl.com E-mail: paul.bessette@morganlewis.com 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 Dated in Washington, D.C.
this 22nd day of January 2019 8
See, e.g., FPL Response at 2 n.7; id. at 5 n.23.
9 Motion at 2.
3
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) ) January 22, 2019
)
CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, a copy of the foregoing Applicants Answer to Petitioners Joint Motion for Leave to Respond to Applicants Response to the NRC Staffs Clarification was 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 Office of the Secretary of the Commission Monroe County, Florida Derek V. Howard, Esq.
U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Miami Waterkeeper, Inc.
E. Roy Hawkens, Chairman Kelly J. Cox, Esq.
Sue Abreu, Administrative Judge Edan Rotenberg, Esq.
Michael F. Kennedy, Administrative Judge Friends of the Earth U.S. Nuclear Regulatory Commission Richard E. Ayres, Esq.*
Office of the General Counsel 2923 Foxhall Road, N.W.
Sherwin E. Turk, Esq. Washington, D.C. 20016 Jeremy L. Wachutka, Esq. Email: ayresr@ayreslawgroup.com Esther R. Houseman, Esq.
Albert Gomez*
Natural Resources Defense Council 3566 Vista Court Geoffrey H. Fettus, Esq. Miami, FL 33133 E-mail: albert@icassemblies.com Southern Alliance for Clean Energy Diane Curran, 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 DB1/ 101641101 Counsel for Florida Power & Light Company