ML19232A174
| ML19232A174 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 08/20/2019 |
| From: | Hawkens E Atomic Safety and Licensing Board Panel |
| To: | Florida Power & Light Co |
| SECY RAS | |
| References | |
| 50-250-SLR, 50-251-SLR, ASLBP 18-957-01-SLR-BD01, RAS 55182 | |
| Download: ML19232A174 (6) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
E. Roy Hawkens, Chairman Dr. Michael F. Kennedy Dr. Sue H. Abreu 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 20, 2019 ORDER (Granting FPLs Motion to Strike)
I. BACKGROUND On June 24, 2019, Natural Resources Defense Council, Friends of the Earth, and Miami Waterkeeper (collectively, Joint Intervenors) filed a petition for waiver of 10 C.F.R.
§§ 51.53(c)(3), 51.71(d), and 10 C.F.R. Part 51, Subpart A, Appendix B 1 in connection with their motion for new and amended contentions 2 based on the NRC Staffs Draft Supplemental Environmental Impact Statement (DSEIS) in the above-captioned proceeding. 3 On July 19, 2019, Florida Power and Light Company (FPL) and the NRC Staff filed answers opposing Joint 1
See [Joint Intervenors] 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).
2 See [Joint Intervenors] Motion to Migrate Contentions & Admit New Contentions in Response to NRC Staffs Supplemental Draft Environmental Impact Statement (June 24, 2019)
(amended on June 28, 2019).
3 See Office of Nuclear Reactor Regulation, NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supp. 5, Second Renewal, Regarding Subsequent License Renewal for Turkey Point Nuclear Generating Unit Nos. 3 & 4, Draft Report for Comment (Mar. 2019) (ADAMS Accession No. ML19078A330) [hereinafter DSEIS].
Intervenors waiver petition. 4 Joint Intervenors filed a combined reply to FPL and the NRC Staff on July 26, 2019. 5 FPL has moved to strike Joint Intervenors reply as contrary to 10 C.F.R. § 2.335. 6 Joint Intervenors filed a response opposing FPLs motion to strike. 7 II. ANALYSIS There is no dispute that Joint Intervenors petition for waiver is explicitly permitted under 10 C.F.R. § 2.335(b). Nor is there a dispute that FPLs and the NRC Staffs responses to Joint Intervenors petition for waiver are explicitly permitted under 10 C.F.R. § 2.335(b). The dispute arises over Joint Intervenors reply to the responses filed by FPL and the NRC Staff. FPL argues that section 2.335 does not permit a party who petitions for waiver to file a reply. See FPLs Motion to Strike at 2-3. Joint Intervenors assert that section 2.335 is silent as to replies and therefore should not be construed as prohibiting a reply. See Joint Intervenors Answer at 2.
We conclude that FPL is correct in its interpretation of 10 C.F.R. § 2.335. Based on the phrasing and structure of section 2.335, that section is reasonably construed as precluding the petitioning party from filing a reply.
4 See [FPLs] Answer to Intervenors Petition for Waiver of Certain 10 C.F.R. Part 51 Regulations (July 19, 2019); 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).
5 See Reply of [Joint Intervenors] 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 Application for Renewal of Licenses for Turkey Point Units 3 and 4 (July 26, 2019).
6 See [FPLs] Motion to Strike Intervenors Reply to FPLs and NRC Staffs Answers to Their Waiver Petition (Aug. 2, 2019) at 2 [hereinafter FPLs Motion to Strike]. FPL represents that the NRC Staff does not oppose the motion to strike. See id. at 3.
7 See [Joint Intervenors] Opposition to [FPLs] Motion to Strike Intervenors Reply to FPLs and NRC Staffs Answer to Intervenors Waiver Petition (Aug. 9, 2019) (corrected version filed on August 14, 2019) [hereinafter Joint Intervenors Answer].
In describing the process for seeking the waiver of a Commission rule or regulation, section 2.335(b) states that a litigant seeking such a waiver shall file a petition with an accompanying affidavit, and it authorizes other participants to file a response by counter-affidavit or otherwise. 10 C.F.R. § 2.335(b). Section 2.335(b) does not mention, much less authorize, the filing of a reply by the petitioning party. Moreover, sections 2.335(c) and 2.335(d) describe with particularity the basis on which the Licensing Board will issue a ruling on the waiver petition; namely, the Licensing Board will consider the petition, affidavit [accompanying the petition], and any response permitted under [section 2.335(b)]. Id. § 2.335(c), (d). Given the specificity of section 2.335(b) regarding what the parties may file, combined with the specificity of section 2.335(c) and (d) regarding what the Licensing Board will consider when issuing a ruling, we conclude that this regulation, by clear structural implication, precludes a party who petitions for waiver from filing a reply.
Our regulatory interpretation is consistent with prior Licensing Board case law. 8 Moreover, this procedural arrangement comports generally with the regulatory process governing NRC motion practice, which does not accord a moving party an automatic right to reply. 9 8
See, e.g., Licensing Board Order (Denying Motion for Leave to File a Reply to Waiver Petition and Directing the Filing of a Brief), Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 and 2), Nos. 50-275-LR/ 50-323-LR (May 4, 2010) at 1 (unpublished) (relying on the rationale advanced by the NRC Staff and the applicant, who argued that 10 C.F.R. § 2.335, by structural implication, does not permit a petitioner seeking a waiver to file a reply).
9 See 10 C.F.R. § 2.323(c) (establishing that a moving party has no right to reply unless permission is granted in 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).
FPLs motion to strike Joint Intervenors reply to FPLs and the NRC Staffs Answers to Joint Intervenors petition for waiver is therefore granted.
It is so ORDERED.
FOR THE ATOMIC SAFETY AND LICENSING BOARD
/RA/
E. Roy Hawkens, Chairman ADMINISTRATIVE JUDGE Rockville, Maryland August 20, 2019
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )
)
FLORIDA POWER & LIGHT COMPANY ) Docket Nos. 50-250-SLR
) 50-251-SLR (Turkey Point Nuclear Generating )
Units 3 & 4)
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing ORDER (Granting FPLs Motion to Strike) have been served upon the following persons by Electronic Information.
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Office of the General Counsel Mail Stop: O-16B33 Mail Stop - O-14A44 Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ocaamail@nrc.gov Anita Ghosh, Esq.
Brian Harris, Esq.
U.S. Nuclear Regulatory Commission Esther R. Houseman Office of the Secretary of the Commission David E. Roth, Esq.
Mail Stop: O-16B33 Sherwin E. Turk, Esq.
Washington, DC 20555-0001 Jeremy L. Wachutka, Esq.
E-mail: hearingdocket@nrc.gov Mitzi A. Young, Esq.
Krupskaya T. Castellon, Paralegal Atomic Safety and Licensing Board Panel E-mail: Anita.Ghosh@nrc.gov U.S. Nuclear Regulatory Commission Brian.Harris@nrc.gov Washington, DC 20555-0001 Esther.Houseman@nrc.gov E. Roy Hawkens, Chairman David.Roth@nrc.gov Sue Abrue, Administrative Judge Sherwin.Turk@nrc.gov Taylor A. Mayhall, Law Clerk Jeremy.Wachutka@nrc.gov Joseph D. McManus, Law Clerk Mitzi.Young@nrc.gov Molly Mattison, Law Clerk Krupskaya.Castellon@nrc.gov E-mail: Roy.Hawkens@nrc.gov Sue.Abrue@nrc.gov Florida Power & Light Company Taylor.Mayhall@nrc.gov 801 Pennsylvania Ave. NW Suite 220 Joseph.McManus@nrc.gov Washington, DC 20004 Molly.Mattison@nrc.gov Steven C. Hamrick, Esq.
E-mail: steven.hamrick@fpl.com
Turkey Point, Units 3 & 4, Docket Nos. 50-250 and 50-251-SLR ORDER (Granting FPLs Motion to Strike)
Morgan, Lewis & Bockius LLP Monroe County, Florida 1111 Pennsylvania Ave., N.W. Derek Howard, Esq.
Washington, DC 20004 Assistant Monroe County Attorney Paul M. Bessette, Esq. 1111 12th Street, Suite 408 Ryan K. Lighty, Esq. Key West, FL 33040 Martin J. ONeill E-mail: howard-derek@monroecounty-fl.gov E-mail: Paul.Bessette@morganlewis.com Ryan.Lighty@morganlewis.com Martin.Oneill@mrganlewis.com Natural Resources Defense Council 1152 15th Street, NW, Suite 300 Washington, DC 20005 Geoffrey H. Fettus Caroline Reiser E-mail: gfettus@nrdc.org creiser@nrdc.org Counsel for Miami Waterkeeper, Inc.
The Super Law Group 180 Maiden Lane, Suite 601 New York, NY 10038 Edan Rotenberg, Esq.
Email: edan@superlawgroup.com
[Original signed by Herald M. Speiser ]
Office of the Secretary of the Commission Dated at Rockville, Maryland, this 20th day of August, 2019 2