ML23283A290

Email from A. Averbach to J. Zabel Notice of Intent to Sue Under ESA St. Lucie

ML23283A290
Person / Time
Site:	Saint Lucie
Issue date:	06/04/2019
From:	Andrew Averbach NRC/OGC
To:	Joseph Zabel Stanford Law School
Shared Package
ML19151A761	List: ML23283A290
References
LTR-19-0214
Download: ML23283A290 (1)

Text

From: Andrew Averbach To: "Joseph Zabel" Cc: "dsivas@stanford.edu"

Subject:

RE: Re: Re: notice of intent to sue under ESA re St. Lucie Date: Tuesday, June 4, 2019 9:03:00 AM Thank you again for your response.

Perhaps I wasnt as clear in my prior email as I could have been. I do not believe that client discussion concerning this matter would be productive at this time. Rather, it appears to me that the agency has reinitiated the consultation process and that this reinitiation undermines the legal basis for the complaint that you say you intend to file. While it is of course possible that, at some future point, you will consider the agencys (and other putative defendants) actions inadequate, there does not appear to be a basis to file a complaint at this time, and I would anticipate our filing and prevailing on a motion to dismiss if you decide to file based on the factual record you have described. I would be happy to discuss this legal issue with you, and I am eager to understand why you believe it would not be appropriate to simply let the process that the NRC has initiated play out. I am generally available for throughout this week and next if you would like to discuss.

Andrew From: Joseph Zabel <joezabel@stanford.edu>

Sent: Monday, June 03, 2019 6:49 PM To: Averbach, Andrew <Andrew.Averbach@nrc.gov>

Cc: dsivas@stanford.edu

Subject:

[External_Sender] Re: Re: notice of intent to sue under ESA re St. Lucie Hi Andrew, We appreciate your willingness to engage deeply in this matter. We would love to schedule a time to discuss jointly with NRC and our clients. Please let us know what the best way to go about that would be.

Thank you again, Joe On Mon, Jun 3, 2019 at 10:25 AM Averbach, Andrew <Andrew.Averbach@nrc.gov> wrote:

Thank you, Joe, for your prompt response. But your letter states and is premised on the theory that consultation has not been reopened or reinitiated, which appears not to be correct. You further state that you welcome the opportunity to discuss the case further if anything set forth

[in your letter] is erroneous or inaccurate.

My preference would be to resolve the matter without the need to file a motion to dismiss, and I am sure that the same is true of my colleagues at the Department of Justice. If a discussion would help you reach this conclusion, or if you think that somehow I am incorrect about the fact or effect or reinitation, I hope that you will contact me promptly.

Andrew Andrew P. Averbach Solicitor U.S. Nuclear Regulatory Commission (301) 415-1956 andrew.averbach@nrc.gov From: Joseph Zabel <joezabel@stanford.edu>

Sent: Monday, June 03, 2019 1:07 PM To: Averbach, Andrew <Andrew.Averbach@nrc.gov>

Subject:

[External_Sender] Re: notice of intent to sue under ESA re St. Lucie

Dear Andrew,

Thank you for your email. We are aware of the recent steps taken, including the biological assessment.

Best, Joe On Fri, May 31, 2019 at 12:46 PM Averbach, Andrew <Andrew.Averbach@nrc.gov> wrote:

Mr. Zabel:

I have reviewed your letter of May 30 to Chairman Svinicki and others concerning alleged ESA violations. I am not personally familiar yet with the issues that you have raised, but I have been made aware of correspondence dated April 17, 2019 (ML19107A156) whereby the NRC requested the initiation of consultation with NMFS regarding St. Lucie, and this request is not mentioned in your letter. Can you advise me if you were aware of this request (or if your analysis somehow takes this now-formally-initiated consultation into account)?

At this point, I am simply attempting to understand the basis for the lawsuit you intend to file, so any clarification on this issue would be most helpful.

Thank you for your cooperation.

Andrew

Andrew P. Averbach Solicitor U.S. Nuclear Regulatory Commission (301) 415-1956 andrew.averbach@nrc.gov Joseph (Joe) Zabel JD Candidate 2020 l Stanford Law School joezabel@stanford.edu l 917-359-9430 l LinkedIn Joseph (Joe) Zabel JD Candidate 2020 l Stanford Law School joezabel@stanford.edu l 917-359-9430 l LinkedIn