ML19087A307
| ML19087A307 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 03/28/2019 |
| From: | Bessette P, Hamrick S 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 54892 | |
| Download: ML19087A307 (5) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of ) Docket Nos. 50-250-SLR & 50-251-SLR
)
FLORIDA POWER & LIGHT COMPANY ) ASLBP No. 18-957-01-SLR-BD01
)
(Turkey Point Nuclear Generating Units 3 and 4) ) March 28, 2019
)
ANSWER OPPOSING INTERVENORS JOINT MOTION FOR PARTIAL RECONSIDERATION OF INITIAL SCHEDULING ORDER Pursuant to 10 C.F.R. § 2.323(c), Florida Power & Light Company (FPL) files this answer (Answer) to Intervenors Joint Motion for Partial Reconsideration of Initial Scheduling Order, dated March 26, 2019 (Motion), filed by Southern Alliance for Clean Energy (SACE), Friends of the Earth, Inc., Natural Resources Defense Council, Inc., and Miami Waterkeeper, Inc. (collectively, Intervenors).1 Intervenors ask the Board to amend its Initial Scheduling Order, dated March 21, 2019, to delay the deadline for dispositive motions based on the Draft Supplemental Environmental Impact Statement (DSEIS) to make it consistent with other related provisions of the Initial Scheduling Order.2 In particular, Intervenors want to change the deadline in the Initial Scheduling Order for motions for summary disposition from 30 days after the issuance of the [DSEIS] to 30 days after the issuance 1
Intervenors filed their motion both pursuant to 10 C.F.R. § 2.323 and as an objection to the Initial Scheduling Order pursuant to 10 C.F.R. § 2.329(e). FPL recognizes that replies are not allowed under 10 C.F.R. § 2.329(e). However, because Joint Petitioners also filed their Motion pursuant to 10 C.F.R.
§ 2.323, FPL is authorized to file this Answer pursuant to 10 C.F.R. § 2.323(c).
2 Motion at 1.
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of the [DSEIS] or the Initial Disclosures, whichever date is later.3 FPL opposes the request as it is based on a remote hypothetical injury with no basis in law.
Intervenors argue that the Initial Scheduling Order should be revised for two reasons.
First, Intervenors assert that, absent revision, they will be required to amend their contentions prematurely . . . in order to avoid termination of their participation in the case.4 Second, Intervenors assert that allowing motions for summary disposition prior to the Initial Disclosures would result in prejudice by forcing them to respond to a motion without knowledge of specific information included in the Initial Disclosures.5 Neither argument holds water.
In this proceeding, the Board has admitted four contentions in total, including two proffered by SACE and two by Joint Petitioners.6 Two of the contentions admitted by the Board are identical: SACE Contention 2 and Joint Petitioners Contention 1-E assert that the ER is deficient for failing to consider mechanical draft cooling towers as a reasonable alternative.7 As Intervenors admit in their Motion, SACE Contention 2 and Joint Petitioners Contention 1-E are contentions of omission.8 Regarding their first argument, it is entirely unclear under what circumstances Intervenors would be forced to amend their contentions prematurely . . . in order to avoid termination of their participation in the case.9 The only apparent scenario where this could 3
Motion at 3. Joint Petitioners assert that this date would be consistent with the date to file new or amended contentions based on the DSEIS and Initial Disclosures. Motion at 1. However, the Initial Scheduling Order actually states that the deadline to file new or amended contentions is 45 days from the later of the date of issuance of the DSEIS or Mandatory Disclosures. Initial Scheduling Order at 3.
4 Motion at 2.
5 Id.
6 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), LBP-19-3, 89 NRC at __, __
(Mar. 7, 2019) (slip op. at 63 nn.81 and 82).
7 Id.
8 See Motion at 2 (This is especially true for contentions of omission (such as SACEs Contention 2).).
9 Id.
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possibly occur would be if motions for summary disposition were submitted on all four admitted contentions, the Board grants all four motions prior to the deadline for Intervenors to file new or amended contentions, and the Board denies Intervenors an opportunity to file new or amended contentions, contrary to the explicit provisions of the Initial Scheduling Order. Such a remote and speculative scenario does not provide an adequate basis for the requested relief.
Regarding their second argument, Intervenors claim that having to respond to a motion for summary disposition based on the DSEIS prior to receiving the Initial Disclosures would somehow handicap them by forcing them to respond without the benefit of the Initial Disclosures.10 This argument is specious. Of the four admitted contentions, only the two contentions of omission are likely candidates for a motion for summary disposition based on the DSEIS, assuming it includes information on the cooling tower alternative. Intervenors made the choice to submit contentions of omission, and, under Commission case law, where the omitted information is subsequently provided in the DSEIS, the contentions mayupon the filing of an appropriate motion for summary disposition--be rendered moot and dismissed.11 Intervenors provide no basis for their assertion that they somehow need access to information from 10 C.F.R.
§ 2.336 mandatory disclosures to respond to a motion for summary disposition related to a contention of omission rendered moot solely by the DSEIS. Further, Intervenors remain free to file a new or amended contention addressing the new information contained in the DSEIS and 10 Id.
11 Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-28, 56 NRC 373, 383 (2002).
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with time to review the Initial Disclosures.12 The Board is not required to revise its Initial Scheduling Order based on such vague assertions.
Moreover, Intervenors citation to 10 C.F.R. § 2.710(c) as well as the Seabrook case regarding discovery are not applicable.13 Both of these citations are to the formal hearing procedures pursuant to Subpart G of Part 2. This proceeding is governed by the provisions of Subpart L,14 and there has been no application for Subpart G proceedings. Under Subpart L, no discovery is permitted apart from the parties mandatory disclosures.
For the reasons stated above, FPL respectfully requests that the Board reject Intervenors Joint Motion for Partial Reconsideration of Initial Scheduling Order.
Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d) Signed (electronically) by Paul M. Bessette Steven Hamrick, Esq. Paul M. Bessette, Esq.
Florida Power & Light Company Morgan, Lewis & Bockius LLP 801 Pennsylvania Ave., NW Suite 220 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Washington, D.C. 20004 Phone: (202) 349-3496 Phone: (202) 739-5796 Fax: (202) 347-7076 Fax: (202) 739-3001 E-mail: steven.hamrick@fpl.com E-mail: paul.bessette@morganlewis.com Counsel for Florida Power & Light Company Dated in Washington, DC this 28th day of March 2019 12 Initial Scheduling Order at 3 (establishing the deadline to file new and amended contentions as 45 days following the later of the date of issuance of the DSEIS or the Initial Disclosures); see also Motion at 1-2 (discussing the same provisions of the Initial Scheduling Order).
13 See Motion at 2 (citing to Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI 8, 35 NRC 145 (1992) and 10 C.F.R. § 2.710(c)).
14 Turkey Point Units 3 and 4, LBP-19-3, 89 NRC at __ (slip op. at 63).
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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 & 50-251-SLR
)
FLORIDA POWER & LIGHT COMPANY ) ASLBP No. 18-957-01-SLR-BD01
)
(Turkey Point Nuclear Generating Units 3 and 4) ) March 28, 2019
)
CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, the foregoing Answer Opposing Intervenors Joint Motion for Partial Reconsideration of Initial Scheduling Order was served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned proceeding.
Signed (electronically) by Paul M. Bessette Paul M. Bessette, Esq.
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: (202) 739-5796 Fax: (202) 739-3001 E-mail: paul.bessette@morganlewis.com Counsel for Florida Power & Light Company