ML23349A201

Motion for Extension of Time to File Reply Submitted by Miami Waterkeeper

ML23349A201
Person / Time
Site:	Turkey Point
Issue date:	12/15/2023
From:	Bills C Miami Waterkeeper
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
ASLBP 24-981-01-SLR-BD01, RAS 56880, Turkey Point 50-250 and 50-251 SLR-2
Download: ML23349A201 (0)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of: )

)

FLORIDA POWER & LIGHT COMPANY ) Docket No. 50-250

) Docket No. 50-251 (Turkey Point Nuclear Generating Station, Unit Nos. 3 )

and 4) ) December 15, 2023

)

(Subsequent License Renewal Application)

MOTION FOR EXTENSION OF TIME TO FILE REPLY SUBMITTED BY MIAMI WATERKEEPER Petitioner, Biscayne Bay Waterkeeper, Inc. d/b/a Miami Waterkeeper (Miami Waterkeeper), hereby files this Motion to allow the Defendant a 10-day extension of time to respond to the forthcoming Answer filed in this matter, per 10 C.F.R. § 2.307. In support, the parties state as follows:

1. Pursuant to the Atomic Safety and Licensing Boards December 6, 2023 Memorandum and Order, FPLs and the NRC Staffs answers to Petitioner Miami Waterkeepers petition are due by Friday, December 22, 2023. Miami Waterkeepers reply to those answers is due by Friday, December 29, 2023.

2. The scheduled reply period falls over the winter holidays. Petitioners office will be closed from December 22-25, 2023, and again on January 1, 2024. The majority of project staff will be out of the office on annual leave visiting family until January 5, 2024 during the 1

standard winter break for offices and schools. 1 Therefore, as a practical matter, Petitioner will be unable to prepare a reply by December 29.

3. Due to the complexity of the subject matter, Miami Waterkeepers petition was lengthy and technical. And therefore, we expect responses will be lengthy. As a result, it is reasonable to expect that preparing a reply will take a significant amount of time.

4. Additionally, Miami Waterkeeper expects to need to consult experts in crafting its reply and is concerned that these experts will be unavailable over the holidays.

5. In accordance with 10 C.F.R. § 2.323, and the Atomic Safety and Licensing Boards December 6, 2023 Memorandum and Order, undersigned counsel for Petitioner certifies that she has consulted with counsel for FPL and NRC Staff. NRC Staff stated that it does not oppose a 10-day extension. FPL stated that it opposes the motion.

MEMORANDUM OF LAW NRC regulations allow extensions of adjudicatory deadlines upon demonstration of good cause.2 An Atomic Safety and Licensing Board has the power to [r]egulate the course of the hearing and the conduct of participants and [s]et reasonable schedules for the conduct of the proceeding.3 The Board has discretion in setting a schedule. 4 1 Miami-Dade Public Schools are closed from December 23, 2023 until January 8, 2024.

2 10 C.F.R. § 2.307(a).

3 10 C.F.R. §§ 2.319, 2.321(c).

4 In the Matter of Baltimore Gas & Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), 48 N.R.C. 45 (1998) (Although we expect the Board to adhere to our scheduling guidance to the maximum extent possible, we recognize that particular circumstances may justify deviations from our guidance, and we therefore have refrained from mandating a schedule.); In the Matter of Baltimore Gas & Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), 48 N.R.C.

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Nonbinding NRC guidance recommends that extensions should be granted upon a showing of unavoidable and extreme circumstances.5 A previous Board found that it is clear from the immediate context of the Policy Statement announcing the standard as well as the referral order in this proceeding that the standard is not an absolute one, but rather one that depends upon the totality of the facts and circumstances of each case. 6 The Commission has not rigidly applied this standardas recently as 2012, the Commission found that the unavoidable and extreme circumstances standard applies to the 10-day deadline for filing appeals, while the good cause is the standard for assessing other filing delays.7 Even where the Board has applied the unavoidable and extreme circumstances standard, it has regularly granted extension requests, particularly in the initial stages of a proceeding.8 Circumstances like the unavailability of experts and prior commitments of 39, 42 (1998) (We also provide the Licensing Board with guidance . . . and a suggested schedule with the goal of issuing a decision . . . in about 2 1/2 years.) (emphases added).

5 Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 N.R.C. 18, 21 (1998). Some previous referral orders from the Commission to the Board have specified that

[t]o avoid unnecessary delays, the presiding officer should not grant requests for extensions of time absent unavoidable and extreme circumstances. See, e.g., In the Matter of Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), CLI-01-13, 2001 WL 760021 (July 3, 2001). The referral memorandum in this case does not include such language.

See Memorandum from NRC Secretary Carrie M. Safford to Chief Administrative Judge E. Roy Hawkens (Nov. 28, 2023).

6 In the Matter of Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), 2001 WL 760021 (July 3, 2001).

7 In the Matter of Detroit Edison Co. (Fermi Nuclear Power Plant, Unit 3), 75 N.R.C. 742, 748 n.18 (2012) (In this case, we are not required to find unavoidable and extreme circumstances, but only good cause for the 15-day delay in filing the Motion to Amend.). The Secretary has previously applied the good cause standard in the case at hand. See Order (Nov. 6, 2023).

8 See, e.g., In the Matter of Baltimore Gas & Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), 48 N.R.C. 132, 134 (1998) (granting a 19-day extension) (Given the threshold stage of this proceeding, however, this short delay will not compromise the Commission's 3

petitioners representative may constitute unavoidable and extreme circumstances. 9 In one case, the Board found that professional scheduling conflicts of both petitioners expert and petitioner's representative merited an extension. 10 The Board distinguished this situation from a previous case where an extension request was denied because scheduling conflicts were primarily of an adjustable personal nature.11 In another case, the Board granted an 8-day extension request for a petitioner because the petitioner was traveling abroad during the filing deadline.12 The NRC guidance recommending the unavoidable and extreme circumstances standard seeks to provide a fair hearing process, to avoid unnecessary delays in the NRC's review and hearing processes, and to produce an informed adjudicatory record that supports agency decision making on matters related to the NRCs responsibilities for protecting public health and safety, the common defense and security, and the environment. 13 The Commission has previously emphasized that [i]n issuing and implementing a schedule, we do not expect the ultimate goal to resolve all license renewal issues within 30 months of our initial hearing notice.).

9 See, e.g., In the Matter of Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), 2001 WL 760021 (July 3, 2001) (finding that unavailability of petitioners expert and representative, as well as delay in accessing documents rise to the level of unavoidable and extreme circumstances entitling [petitioner] to relief from the original . . .

deadline.).

10 Id.

11 Id. (emphasis added).

12 Id. (discussing previous grant of an 8-day extension for pro se petitioner).

13 Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 N.R.C. 18, 19 (1998).

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presiding officer to sacrifice fairness and sound decisionmaking. Furthermore, we recognize that any schedule will be subject to revision depending upon the number and complexity of the contentions admitted.14 In this case, Miami Waterkeeper has established good cause for an extension of time.

Additionally, the circumstances are unavoidable and extreme, such that granting a 10-day extension is necessary for a fair and meaningful process. First, the scheduling conflicts at issue are unavoidablethe federal holiday schedule, including closure of schools, is by its nature not adjustable, and contributes to the unavailability of Petitioners experts during the current reply period. Second, due to the complexity of the legal and technical issues raised in this proceeding, the circumstances are extreme. Petitioner needs a reasonable opportunity to consult with its attorney and experts. Otherwise, Petitioner is concerned it will lack a fair opportunity to reply to the other parties and provide the Board with a complete record on which to make an informed decision on the important issues of public health and safety and the environment raised by Petitioner.15 Finally, the requested extension will not cause unnecessary delay, as it need not affect the date for which a preliminary hearing is scheduled. 16 14 In the Matter of Duke, Cogema, and Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), 53 N.R.C. 478, 484 (2001).

15 See Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 N.R.C. 18, 19 (1998).

16 See, e.g., In the Matter of Duke Energy Corporation (Catawba Nuclear Station, Units 1 and 2),

2003 WL 22383604 (Oct. 3, 2003) (finding that granting a week-long extension to file amended contentions and a week-long extension of the response deadline prior to the prehearing conference will occasion no delay whatsoever in this proceeding).

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WHEREFORE, Petitioner requests that the Atomic Safety and Licensing Board allow Petitioner a 10-day extension of time to reply to the answers filed in this matter, to Monday, January 8, 2024.

Respectfully submitted,

/s/ Cameron Bills Cameron Bills Miami Waterkeeper PO Box 141596 Coral Gables, FL 33114-1596 Phone: (305) 905-0856 Email: cameron@miamiwaterkeeper.org Counsel for Miami Waterkeeper Filed December 15, 2023 6

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of: )

)

FLORIDA POWER & LIGHT COMPANY ) Docket No. 50-250

) Docket No. 50-251 (Turkey Point Nuclear Generating Station, Unit Nos. 3 )

and 4) ) December 15, 2023

)

(Subsequent License Renewal Application)

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, a copy of the foregoing Motion for Extension of Time to File Reply Submitted by Miami Waterkeeper was served upon the Electronic Information Exchange (EIE, the NRCs E-Filing System), in the above-captioned docket, which to the best of my knowledge resulted in transmittal of same to those on the EIE Service List for the captioned proceeding.

/Signed (electronically) by/ Cameron Bills Cameron Bills Miami Waterkeeper PO Box 141596 Coral Gables, FL 33114-1596 Phone: (305) 905-0856 Email: cameron@miamiwaterkeeper.org Counsel for Miami Waterkeeper 7