ML19214A087
| ML19214A087 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 08/02/2019 |
| From: | Bessette P, Hamrick S, Lighty R, 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 55131 | |
| Download: ML19214A087 (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 and 50-251-SLR
)
FLORIDA POWER & LIGHT COMPANY ) ASLBP No. 18-957-01-SLR-BD01
)
(Turkey Point Nuclear Generating Units 3 and 4) ) August 2, 2019
)
FLORIDA POWER & LIGHT COMPANYS MOTION TO STRIKE INTERVENORS REPLY TO FPLS AND NRC STAFFS ANSWERS TO THEIR WAIVER PETITION Pursuant to 10 C.F.R. § 2.323, Florida Power & Light Company (FPL) hereby files this Motion to Strike (Motion) the Reply filed by Natural Resources Defense Council, Friends of the Earth, and Miami Waterkeeper (Intervenors) on July 26, 2019,1 in support of their June 24, 2019 Petition for Waiver (Waiver Petition).2 The Reply seeks to respond to arguments advanced by FPL and the Nuclear Regulatory Commission (NRC) Staff in their respective Answers to the Waiver Petition.3 For the reasons set forth below, FPL respectfully requests that Atomic Safety and Licensing Board (Board) strike the Reply in its entirety as an unauthorized pleading for which Intervenors did not seek leave to file. In support of this Motion, FPL states as follows:
- 1. Intervenors filed their Waiver Petition on June 24, 2019 pursuant to 10 C.F.R.
§ 2.335(b). Therein, they sought a limited waiver of NRC regulations at 10 C.F.R. 1 Reply of Natural Resources Defense Councils, Friends of the Earths, and Miami Waterkeepers in Support of Petition for Waiver of 10 C.F.R. §§ 51.53(c)(3) and 51.71(d) and 10 C.F.R. Part 51, Subpart A, Appendix B As Applied to Applications for Renewal of Licenses for Turkey Point Units 3 and 4 (July 26, 2019) (ML19207C095).
2 Natural Resources Defense Councils, Friends of the Earths, and Miami Waterkeepers Petition for Waiver of 10 C.F.R. §§ 51.53(c)(3) and 51.71(d) and 10 C.F.R. Part 51, Subpart A, Appendix B (June 24, 2019).
3 See Florida Power & Light Companys Answer to Intervenors Petition for Waiver of Certain 10 C.F.R. Part 51 Regulations (July 19, 2019) (ML19200A298); NRC Staffs Answer to Joint Intervenors (1) Amended Motion to Migrate or Amend Contentions 1-E and 5-E and to Admit Four New Contentions, and (2) Petition for Waiver (July 19, 2019) (ML19200A300). Intervenors Reply is a single, consolidated reply to FPLs and NRC Staffs Answers to the Waiver Petition.
§§ 51.53(c)(3), 51.71(d), and 10 C.F.R. Part 51, Subpart A, Appendix B.4 Intervenors requested the waiver in connection with two proposed new contentions, 6-E and 7-E, which Intervenors filed on the same date.5 Those contentions challenge aspects of the NRC Staffs Draft Supplemental Environmental Impact Statement (DSEIS) for FPLs subsequent license renewal (SLR) application for Turkey Point Nuclear Generating Units 3 and 4 (Turkey Point).6
- 2. On July 19, 2019, FPL and the NRC Staff, in addition to responding to Intervenors Motion to admit amended and new contentions, filed the above-referenced Answers opposing the Waiver Petition, as expressly permitted by 10 C.F.R. § 2.335(b).
- 3. On July 26, 2019, Intervenors, citing 10 C.F.R. § 2.335(b), filed the instant 9-page Reply, in which they substantively respond to FPLs and NRC Staffs Answers and assert that their Waiver Petition is admissible.7
- 4. In accordance with 10 C.F.R. §§ 2.319 and 2.323, the Board should strike the Reply en bloc. Waiver petitions are governed by 10 C.F.R. § 2.335. When a waiver petition is filed, the only responsive pleading authorized by that regulation is that [a]ny other party may file a response by counter affidavit or otherwise.8 Section 2.335 does not permit replies to those responses. In 4
Waiver Petition at 1.
5 Natural Resources Defense Councils, Friends of the Earths, and Miami Waterkeepers Amended Motion to Migrate Contentions & Admit New Contentions in Response to NRC Staffs Supplemental Draft Environmental Impact Statement (June 24, 2019, as amended on June 28, 2019) (ML19179A316).
6 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 5, Second Renewal, Regarding Subsequent License Renewal for Turkey Point Nuclear Generating Unit Nos. 3 and 4, Draft Report for Comment (Mar. 2019) (ML19078A330).
7 Reply at 1, 9. Intervenors also filed a separate reply to FPLs and the NRCs answers opposing their amended and new contentions pursuant to 10 C.F.R. § 2.309(i). See Reply in Support of Motion to Migrate Contentions &
Admit New Contentions in Response to NRC Staffs Supplemental Draft Environmental Impact Statement at 1 (July 26, 2019) (ML19207C092). FPL is not moving to strike any portion of that separate reply.
8 10 C.F.R. § 2.335(b).
2
contrast, 10 C.F.R. § 2.309(i)(2) expressly authorizes replies to answers to petitions to intervene and amended or new contentions, as Intervenors themselves recognized.9
- 5. NRC regulations also establish that a party that files a motion has no right to reply except as permitted by the Board upon a demonstration of compelling circumstances, such as where the moving party demonstrates that it could not reasonably have anticipated the arguments to which it seeks leave to reply.10 Thus, it is clear that when the Commission intends to permit a reply, it explicitly authorizes such filings. The Commission has not done so with respect waiver petitions submitted pursuant to Section 2.335.
- 6. In this instance, Intervenors have filed an unauthorized reply without seeking leave from the Board or attempting to show that compelling circumstances exist so as to warrant a reply, in direct contravention of the NRCs Rules of Practice and Procedure.11
- 7. Pursuant to 10 C.F.R. § 2.323(b), counsel for FPL certifies that on August 1, 2019, the movant made a sincere effort to contact Intervenors and the NRC Staff to resolve the issues raised in this Motion. Counsel for Intervenors represented that Intervenors would object to FPLs Motion to strike their Reply, but would not object to FPL seeking leave to file a sur-reply. Counsel for the NRC Staff indicated that the Staff does not oppose the Motion.
For the reasons set forth above, FPL respectfully requests that the Board strike Intervenors waiver Reply in its entirety and disregard Intervenors arguments therein in ruling on the Waiver Petition.
9 See 10 C.F.R. § 2.309(i)(2).
10 10 C.F.R. § 2.323(c).
11 Intervenors also did not seek to consult with the other parties regarding the filing of their Reply. See 10 C.F.R.
§ 2.323(b).
3
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 Executed in Accord with 10 C.F.R. § 2.304(d) Signed (electronically) by Ryan K. Lighty Martin J. ONeill, Esq. Ryan K. Lighty, Esq.
Morgan, Lewis & Bockius LLP Morgan, Lewis & Bockius LLP 1000 Louisiana St., Suite 4000 1111 Pennsylvania Ave, N.W.
Houston, TX 77002 Washington, D.C. 20004 Phone: 713-890-5710 Phone: 202-739-5274 E-mail: martin.oneill@morganlewis.com E-mail: ryan.lighty@morganlewis.com Counsel for Florida Power & Light Company Dated in Washington, D.C.
this 2nd day of August 2019 4
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) ) August 2, 2019
)
CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, a copy of the foregoing Florida Power & Light Companys Motion to Strike Intervenors Reply to FPLs and NRC Staffs Answers to Their Waiver Petition was filed on the Electronic Information Exchange (the NRCs E-Filing System) in the above-captioned proceeding.
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 DB1/ 105651330