ML23352A328

Florida Power and Light Companys Answer Opposing Miami Waterkeepers Second Extension Request

ML23352A328
Person / Time
Site:	Turkey Point
Issue date:	12/18/2023
From:	Bessette P, Hamrick S, Lighty R Florida Power & Light Co, Morgan, Morgan, Lewis & Bockius, LLP
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
ASLBP 24-981-01-SLR-BD01, RAS 56884, 50-250-SLR-2, 50-251-SLR-2
Download: ML23352A328 (0)

Text

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

FLORIDA POWER & LIGHT COMPANY (Turkey Point Nuclear Generating Station, Units 3 and 4)

Docket Nos. 50-250-SLR-2 and 50-251-SLR-2 December 18, 2023 FLORIDA POWER & LIGHT COMPANYS ANSWER OPPOSING MIAMI WATERKEEPERS SECOND EXTENSION REQUEST Pursuant to 10 C.F.R. § 2.323(c) and the Boards December 6, 2023 Initial Prehearing Order (Prehearing Order), Applicant Florida Power & Light (FPL) opposes the motion filed by Biscayne Bay Waterkeeper, Inc. d/b/a Miami Waterkeeper (Miami Waterkeeper) for a 10-day extension of the deadline to file its replies to FPLs and the NRC staffs answers in the above-captioned proceeding (Motion).1 The Board should deny the Motion because Miami Waterkeeper has not shown good cause to support such an extension.

NRC regulations at 10 C.F.R. § 2.307(a) allow extensions of adjudicatory deadlines only upon demonstration of good cause. As the Commission has explained, good cause for an extension requires a showing of unavoidable and extreme circumstances.2 Miami Waterkeeper incorrectly refers to this standard as nonbinding NRC guidance.3 But that is incorrect. The 1

Motion for Extension of Time to File Reply Submitted by Miami Waterkeeper (Dec. 15, 2023) (Motion).

2 See Balt. Gas & Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units 1 & 2), CLI-98-25, 48 NRC 325, 342 (1998) (holding that construction of good cause to require a showing of unavoidable and extreme circumstances constitutes a reasonable means of avoiding undue delay); see also Hydro Res., Inc. (2929 Coors Road, Suite 101, Albuquerque, NM 87210), CLI-99-1, 49 NRC 1, 3 n.2 (1999) (We caution all parties in this case, however, to pay heed to the guidance in our policy statement that ordinarily only unavoidable and extreme circumstances provide sufficient cause to extend filing deadlines); Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 21 (1998).

3 Petition at 3; see also id. at 4.

2 standard comes from a Commission policy statement, which has long been recognized as binding upon the Commissions adjudicatory Boards.4 Here, Miami Waterkeeper cites two main reasons why its motion for an extension of time should be granted. But neither of these reasons show that Miami Waterkeeper is suffering from unavoidable and extreme circumstances. Moreover, these assertions certainly do not justify more than doubling Miami Waterkeepers reply time from seven to seventeen days. Thus, the Motion should be denied because there is no good cause for an extension.

First, Miami Waterkeeper claims that as a practical matter it will be unable to prepare a reply by December 29, 2023, because of the winter holidays and concurrent office closures, most staff will be out of the office on annual leave until January 5, 2024, and because it is concerned that some of its experts likewise may be unavailable.5 While this may all be true, Miami Waterkeeper fails to explain how a one-day holiday in the reply window constitutes unavoidable and extreme circumstances. Nor could it.

The simple fact is that Miami Waterkeeper has known the pleading schedule and the deadline for its reply since November 6, 2023, when the Secretary granted Miami Waterkeeper a 20-day extension to file its hearing request and petition to intervene.6 Despite knowing the deadline for several weeks, Miami Waterkeeper apparently took no steps to ensure adequate staffing or expert availability to meet this deadline. Miami Waterkeepers failure to plan accordingly is neither unavoidable nor an extreme circumstance. At bottom, denying the Motion here would be consistent with a recent order issued by the NRC Secretary, acting on behalf of the 4

Miss. Power & Light Co. (Grand Gulf Nuclear Station, Units 1 & 2), ALAB-704, 16 NRC 1725, 1732 n.9 (1982) (citations omitted).

5 Motion at 1.

6 See Order (Granting a 20-Day Extension Deadline to Request a Hearing) (Nov. 6, 2023) (ML23310A269).

3 Commission, that denied a similar request seeking an adjudicatory extension due to an intervening holiday.7 Second, Miami Waterkeeper claims that the complexity of this proceeding means that preparing a reply will take significant time.8 The complexity of the pleadings, however, is not unavoidable and extreme circumstances. Nearly all NRC proceedings inherently involve detailed and extremely technical matters. Yet the NRCs rules of procedure require replies to be filed within seven days,9 and Miami Waterkeeper never explains why this proceeding is of such extraordinary complexity that it needs ten more days to draft its reply.

Taken together, Miami Waterkeepers claims fail to meet the high standard the Commission has set for extensions of time. The Commission expects adjudicatory proceedings to move swiftly and without unnecessary delay. This expectation is reflected in the NRCs rules of procedure, which set a tight pleading schedule to assure the prompt adjudication of issues, consistent with the Commissions Policy Statement and the Administrative Procedure Act.10 Thus, the Commission discourages extensions of deadlines absent extreme circumstances, for fear that an accumulation of seemingly benign deadline extensions will in the end substantially delay the outcome of the case.11 Generally speaking, the NRC already has considered the impact of holidays on adjudicatory filings and declined to codify an across-the-board extension where a holiday merely 7

See Va. Elec. & Power Co. (North Anna Power Station, Units 1 & 2), Order at 1 (Dec. 9, 2020) (unpublished).

8 Motion at 2.

9 See 10 C.F.R. § 2.309(i)(2).

10 Calvert Cliffs, CLI-98-25, 48 NRC at 342 (1998) (We continue to believe that our construction of good cause to require a showing of unavoidable and extreme circumstances constitutes a reasonable means of avoiding undue delay in this important license renewal proceeding, and for assuring that the proceeding is adjudicated promptly, consistent with the goals set forth in the Policy Statement and the APA.).

11 Hydro Res., CLI-99-1, 49 NRC at 3 (citing CLI-98-12, 48 NRC at 21).

4 falls near a deadline.12 Likewise, in this proceeding, the Board knew that the deadline for Miami Waterkeepers reply would fall at the end of December between the holidays. Yet, in issuing its scheduling order, the board saw no basis to depart from the default deadline.13 As the Commission has long recognized, postponement of adjudicatory deadlines is disfavored when the only basis for doing so is that moving forward would be inconvenient for litigants or their lawyers.14 Participation in NRC adjudicatory proceedings is voluntary, and places burdens on all parties involved. Yet, the NRC expects litigants to take steps to ensure they are able to meet their adjudicatory obligations. Miami Waterkeepers desire to allow extended holiday vacations in the middle of an adjudicatory proceeding is inconsistent with this expectation, and is neither an unavoidable nor extreme circumstance.

Because the Motion identifies no good cause to extend Miami Waterkeepers time to file a reply from seven to seventeen days, the Board should DENY the Motion.

12 See 10 C.F.R. § 2.306(a) (allowing parties to file pleadings on the next business day when a filing deadline falls on a holiday, but not otherwise tolling the deadline when a holiday falls within a response period).

13 Memorandum and Order (Initial Prehearing Order) at 4 (Dec. 6, 2023).

14 See Consol. Edison Co. of N.Y. (Indian Point, Units 1 and 2), CLI-01-8, 53 NRC 225, 229-30 (2001).

5 Executed in Accord with 10 C.F.R. § 2.304(d)

Respectfully submitted, Signed (electronically) by Ryan K. Lighty Steven Hamrick, Esq.

FLORIDA POWER & LIGHT COMPANY 801 Pennsylvania Ave., N.W. Suite 220 Washington, D.C. 20004 Phone: (202) 349-3496 Email: steven.hamrick@fpl.com Ryan K. Lighty, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Phone: (202) 739-5274 Email: ryan.lighty@morganlewis.com Executed in Accord with 10 C.F.R. § 2.304(d)

Paul M. Bessette, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Phone: (202) 739-5796 Email: paul.bessette@morganlewis.com Counsel for Florida Power & Light Company Dated in Washington, DC this 18th day of December 2023

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

FLORIDA POWER & LIGHT COMPANY (Turkey Point Nuclear Generating Station, Units 3 and 4)

Docket Nos. 50-250-SLR-2 and 50-251-SLR-2 December 18, 2023 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, a copy of Florida Power &

Light Companys Answer Opposing Miami Waterkeepers Second Extension Request was served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned docket.

Signed (electronically) by Ryan K. Lighty Ryan K. Lighty, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Phone: (202) 739-5274 Email: ryan.lighty@morganlewis.com Counsel for Florida Power & Light Company