ML24031A624
| ML24031A624 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 01/31/2024 |
| From: | Sue Abreu, Kennedy M, Emily Krause Atomic Safety and Licensing Board Panel |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| ASLBP 24-981-01-SLR-BD01, RAS 56920, 50-251-SLR-2, 50-250-SLR-2, LBP-24-01 | |
| Download: ML24031A624 (0) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
ATOMIC SAFETY AND LICENSING BOARD PANEL
Before the Licensing Board:
Emily I. Krause, Chair Dr. Sue H. Abreu Dr. Michael F. Kennedy
In the Matter of: Docket Nos. 50-250-SLR-2 50-251-SLR-2 FLORIDA POWER & LIGHT COMPANY ASLBP No. 24-981-01-SLR-BD01 (Turkey Point Nuclear Generating Units 3 and 4) January 31, 2024
MEMORANDUM (Certifying Question to the Commission Regarding Timing of Notice of Opportunity for Hearing)
This proceeding commenced with the Nuclear Regulatory Commission Staffs issuance
of a notice in the Federal Register announcing an opportunity for members of the public to
request a hearing on the Staffs Draft Supplemental Environmental Impact Statement
(Draft SEIS) for the subsequent license renewal of Turkey Point Nuclear Generating Units 3 and
4.1 In response to that notice, Miami Waterkeeper filed a timely hearing request with five
proposed contentions challenging the Draft SEIS. 2
1 See Florida Power & Light Company; Turkey Point Nuclear Generating Unit Nos. 3 and 4, 88 Fed. Reg. 62,110 (Sept. 8, 2023) (Draft SEIS Notice); 10 C.F.R. § 2.318.
2 Request for Hearing and Petition to Intervene Submitted by Miami Waterkeeper (Nov. 27, 2023) (Hearing Request).
Prior to filing its hearing request, Miami Waterkeeper requested that the Secretary of the
Commission withdraw the Staffs notice of opportunity for hearing. 3 Miami Waterkeeper argued
that the notice was premature because it did not follow the Commissions direction in CLI-22-3,
which instructed the Staff to issue the notice [a]fter each site-specific review is complete. 4
Miami Waterkeeper asserted that the Staff should have waited to provide the hearing notice
until after the Staff had completed its site-specific environmental review for Turkey Pointthat
is, after public comments had been considered and upon the issuance of a Final Supplemental
Environmental Impact Statement (Final SEIS)rather than providing the hearing notice upon
the issuance of a draft.5 In the alternative, Miami Waterkeeper requested a sixty-day extension
of time to file its hearing request. 6 Florida Power & Light Company opposed the extension
request.7
The Secretary granted Miami Waterkeeper a partial extension of an additional twenty
days to file a hearing request. 8 With respect to Miami Waterkeepers request to withdraw the
notice of opportunity for hearing, however, the Secretary denied the request. 9 The Secretary
3 E-mail from Sydnei Cartwright, Environmental Policy Specialist, Miami Waterkeeper, to the Secretary of the Commission (Oct. 30, 2023) at 1, attaching Letter from Sydnei Cartwright, Environmental Policy Specialist, Miami Waterkeeper, to the Secretary of the Commission (Oct.
27, 2023). Because the email and attachment are combined in one portable document format (PDF) file, we refer to the page numbers in the PDF.
4 Id. at 4 (quoting Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, and 3),
CLI-22-3, 95 NRC 40, 42 (2022)).
5 Id. (citing Oconee, CLI-22-3, 95 NRC at 42).
6 Id. at 4-5.
7 Florida Power & Light Company Answer in Opposition to Miami Waterkeeper Extension Request (Nov. 2, 2023).
8 Order of the Secretary (Nov. 6, 2023) at 4.
9 Id. at 3.
determined that withdrawal of the notice was beyond the scope of her delegated authority under
10 C.F.R. § 2.346.10
On November 27, 2023, in accordance with the Secretarys order, Miami Waterkeeper
filed its hearing request. Miami Waterkeeper reserved the right to challenge the premature
timing of the hearing notice on the ground that it is inconsistent with CLI-22-03. 11 The
Secretary referred Miami Waterkeepers hearing request to the Chief Administrative Judge for
appropriate action, and this Licensing Board was established to preside over the proceeding. 12
A presiding officerhere, this Licensing Boardhas the duty to conduct a fair and
impartial hearing according to law, with all the powers necessary to those ends, including the
power to certify questions to the Commission. 13 The Commission may review a certified
question that raises significant and novel legal or policy issues, or [if] resolution of the issues
would materially advance the orderly disposition of the proceeding. 14 In the Boards view, this
proceeding presents an important question involving the Staffs compliance with the
Commissions order in CLI-22-3 with regard to the proper timing of the notice of opportunity for
hearing.15 The Board therefore seeks the Commissi ons direction on the following certified
question:
10 Id.
11 Hearing Request at 10 n.31; see also Tr. at 10.
12 See Memorandum from Carrie M. Safford, Secretary of the Commission, to E. Roy Hawkens, Chief Administrative Judge, Atomic Safety and Licensing Board Panel (Nov. 28, 2023); Florida Power & Light Company; Establishment of Atomic Safety and Licensing Board, 88 Fed. Reg.
84,835 (Dec. 6, 2023).
13 10 C.F.R. § 2.319(l).
14 Id. § 2.341(f)(1).
15 See Oconee, CLI-22-3, 95 NRC at 42 (After each site-specific review is complete, a new notice of opportunity for hearinglimited to contentions based on new information in the site-specific environmental impact statementwill be issued.).
Should the NRC Staff have waited to issue the notice of opportunity for hearing until it completed the Final SEIS, and if so, how does that impact the conduct of this proceeding?
The Board respectfully submits that this question meets the Commissions standard for
interlocutory review of certified questions. 16
First, this question is significant. The notice of opportunity for hearing served as the
initiating event for this adjudicatory proceeding. 17 If it turns out that the Staff has issued the
notice prematurely, Miami Waterkeeper will not receive the full benefit of a fresh opportunity to
challenge the adequacy of the Staffs environmental review. With the Commissions decision,
and the new notice, petitioners were relieved of the requirement to meet the heightened
pleading standards for new and amended contentions. 18 Starting the proceeding at the Draft
SEIS stage, however, means that petitioners will have to meet the heightened, good cause
standard for any new or amended contentions filed after the Staff completes its review and
issues the Final SEIS.19 In other words, a premature notice of hearing arguably frustrates the
16 See 10 C.F.R. § 2.341(f)(1).
17 See id. § 2.318(a).
18 See Oconee, CLI-22-3, 95 NRC at 42 (This approach will not require [petitioners] to meet heightened pleading standards in 10 C.F.R. § 2.309(c) for newly filed or refiled contentions.).
19 See 10 C.F.R. § 2.309(c). In this memorandum, we make no determination on the viability of Miami Waterkeepers hearing request. In the event a licensing board were to deny a hearing request and terminate a proceeding at the Draft SEIS stage and before the issuance of a Final SEIS, a petitioner would face the additional burden of meeting the Commissions reopening standards if it wished to raise contentions challenging the Final SEIS. See id. § 2.326; Interim Storage Partners LLC (WCS Consolidated Interim Storage Facility), CLI-21-9, 93 NRC 244, 246-47 (2021) (explaining that, together, the reopening requirements, the showing of good cause for new and amended contentions, and the c ontention admissibility requirements impose a higher standard for admitting a new contention after the Board has terminated a proceeding than would otherwise apply). Moreover, a petitioners appellate rights may differ. The Commissions rules grant a petitioner an appeal as-of-right on the issue whether a hearing request should have been granted. 10 C.F.R. § 2.311(c). A petitioner seeking review of other contention admissibility-related decisions, however, must persuade the Commission to exercise its discretionary authority. See id. § 2.341(a)-(b); Interim Storage Partners, CLI-21-9, 93 NRC at 246 (citing Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 and 4), CLI-12-7, 75 NRC 379, 385 (2012)).
remedy the Commission fashioned when it f ound the Staffs original environmental analysis
incomplete and, in the interests of fairness and efficiency, ordered the Staff to issue a new
notice of hearing when it had completed its review. 20
Second, this question is novel. This case presents the first test of the Staffs
implementation of the Commissions direction in CLI-22-3 regarding the Staffs site-specific
environmental reviews of subsequent license renewal applications. As the Staff acknowledged
at oral argument, the posture of this proceeding is out of the ordinary; 21 in other licensing cases,
hearing notices generally are timed closely with the Staffs docketing of a license application, 22
and contentions must be filed at the earliest opportunity, which for environmental contentions
means that petitioners must challenge an applicants environmental report. 23 But the
Commission has issued an order governing this proceeding and four other subsequent license
renewal proceedings that addresses the timing for issuing hearing opportunity notices. 24 Thus,
the Staffs usual practice arguably does not apply here. 25
20 See Oconee, CLI-22-3, 95 NRC at 41-42; cf. Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), CLI-22-2, 95 NRC 26, 33, 36 (2022) (describing and giving significant weight to the interest of meaningful public participation in agency decision-making, including the Staffs subsequent license renewal environmental reviews).
21 See Tr. at 25, 35.
22 See generally 10 C.F.R. §§ 2.101, 2.104, 2.105; see also Tr. at 32-34.
23 See id. § 2.309(f)(2).
24 See Oconee, CLI-22-3, 95 NRC at 40, 42-43. In CLI-22-3, the Commission does not appear to set Turkey Point apart from the other four cases. The Commission mentions plural site-specific environmental impact statements. Id. at 42. Additionally, the next line in the decision describes each site-specific review. Id. (emphasis added). And throughout the decision, when the Commission provides instructions for specific proceedings, rather than for all five captioned proceedings, it does so expressly. See id. at 42-43.
25 Because a plant may continue to operate during a subsequent license renewal review, having the Staff wait to issue the notice of opportunity for hearing until after the Final SEIS is complete in these five cases would not add the undue delay that might be a concern in a proceeding relating to new plant construction. See 10 C.F.R. § 2.109(b); cf. id. § 2.104(a) (For applications
The Commission directed that the new notice of opportunity for hearing be issued [a]fter
each site-specific review is complete. 26 This direction seems clear on its face: complete
means complete, not substantially complete. 27 Other language in the Commissions order
supports that conclusion. In particular, the sentence immediately preceding the Commissions
direction on the timing of the hearing request contemplates that the public comment period
would occur during the development of the site-specific environmental impact statements. 28
The process of developing an environmental impact st atement is distinct from its completion.
One must precede the other. But here, the Staff issued the notice of opportunity for hearing
simultaneously with the opportunity to comment on the Draft SEISduring the development
processcalling into question whether the site-specific review was complete. 29
Finally, as an alternative ground for Commission review, the Commissions resolution of
the Boards certified question would materially advance the orderly disposition of this
proceeding, as well as other subsequent license renewal proceedings. 30 Briefing on Miami
Waterkeepers hearing request is complete, and the Board will issue its decision on standing
for a limited work authorization, construction permit, early site permit, or combined license, the notice must be issued as soon as practicable after the NRC has docketed the application.).
26 Oconee, CLI-22-3, 95 NRC at 42.
27 See Tr. at 32-33.
28 Oconee, CLI-22-3, 95 NRC at 42.
29 See Draft SEIS Notice, 88 Fed. Reg. at 62,110.
30 A motion similar to Miami Waterkeepers withdrawal request has been filed in response to the notice of opportunity for hearing in the North Anna subsequent license renewal proceeding, which is opposed by the Staff and the applicant in that case. See Motion by Beyond Nuclear and Sierra Club for Withdrawal of Premature Hearing Notice (Jan. 18, 2024; corrected Jan. 22, 2024); NRC Staffs Answer to Beyond Nuclear and Sierra Clubs Motion for Withdrawal of Premature Hearing Notice (Jan. 29, 2024); Applicants Answer Opposing Beyond Nuclears and Sierra Clubs Motion for Withdrawal of Hearing Notice (Jan. 29, 2024).
and contention admissibility in accordance with 10 C.F.R. § 2.309(j)(1). 31 But a decision from
the Commission addressing the Boards certified question would give the Board clear direction
as to (1) whether this proceeding either should be suspended or terminated to await the
issuance of the Final SEIS or a new hearing opportunity notice; or (2) if the proceeding remains
ongoing, whether Miami Waterkeeper must meet heightened standards for new and amended
contentions if it seeks to challenge the Final SEIS. 32
In other cases, the Commission has instructed presiding officers to seek immediate
Commission direction when questions arise regarding the scope of a presiding officers
delegated authority.33 Similarly, we are seeking the Commissions direction on a question that
falls squarely within the bounds of the Commissions inherent supervisory authority over the
conduct of adjudicatory proceedings. 34 Only the Commission can answer it. 35
31 At oral argument, Miami Waterkeeper expressed an interest in the Boards resolution of its contentions, notwithstanding its challenge to the timing of the Staffs notice of opportunity for hearing. See Tr. at 10-11.
32 The Staff stated at oral argument that it plans to issue the Final SEIS at the end of March 2024. Id. at 31. As discussed in note 19 above, the timing of the notice of opportunity for hearing also may impact the application of the standards for motions to reopen and a petitioners appellate rights.
33 See Aerotest Operations, Inc. (Aerotest Radiography and Research Reactor), CLI-14-5, 79 NRC 254, 264 (2014); see also Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant and Big Rock Point Site), CLI-22-8, 96 NRC 1, 103 (2022); Carolina Power and Light Company (Shearon Harris Nuclear Power Plant, Units 1, 2, 3, and 4), CLI-80-12, 11 NRC 514, 517 (1980).
34 See Oklo Power LLC (Aurora Reactor), CLI-20-17, 92 NRC 521, 523 (2020); North Atlantic Energy Service Corp. (Seabrook Station, Unit 1), CLI-98-18, 48 NRC 129, 130 (1998); Baltimore Gas & Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-15, 48 NRC 45, 51-53 (1998); Shearon Harris, CLI-80-12, 11 NRC at 516-17.
35 See Shearon Harris, CLI-80-12, 11 NRC at 516 (It is... clear that the Boards do not direct the staff in performance of their administrat ive functions. The Commission does have authority to do so, however, as part of its inherent supervisory authority even over matters in adjudication.); see also Yankee Atomic Electric Co. (Yankee Nuclear Power Station),
CLI-04-28, 60 NRC 412, 414 (2004) (reserving, for the Commissions consideration, a question regarding the adequacy of a notice of opportunity for hearing). Although the Commission has delegated authority to the Secretary to act in agency proceedings, that authority is limited to the powers expressly delineated in 10 C.F.R. § 2.346 and is not applicable here. See Order of the
- 8 -
For the foregoing reasons, we respectfully request direction from the Commission on the
Boards certified question.
THE ATOMIC SAFETY ANDLICENSINGBOARD
/RA/
Emily I. Krause, Chair ADMINISTRATIVEJUDGE
/RA/
Dr. Sue H. Abreu ADMINISTRATIVEJUDGE
_________________________ /RA/
Dr. Michael F. Kennedy ADMINISTRATIVEJUDGE
Rockville, Maryland January 31, 2024
Secretary at 3 (acknowledging that the request to withdraw the hearing notice was not within the authority delegated to the Secretary by the Commission in section 2.346).
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
In the Matter of )
)
FLORIDA POWER & LIGHT COMPANY ) Docket Nos. 50-250-SLR-2
) 50-251-SLR-2 (Turkey Point Nuclear Generating )
Units 3 & 4) )
CERTIFICATE OF SERVICE
I hereby certify that copies of the foregoing MEMORANDUM (Certifying Question to the Commission Regarding Timing of Notice of Opportunity for Hearing) (LBP-24-01) have been served upon the following persons by Electronic Information Exchange.
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.resource@nrc.gov David E. Roth, Esq.
Sherwin E. Turk, Esq.
U.S. Nuclear Regulatory Commission Blake C. Vaisey, Esq.
Office of the Secretary of the Commission Jeremy L. Wachutka, Esq.
Mail Stop: O-16B33 Susan H. Vrahoretis, Esq.
Washington, DC 20555-0001 Brian P. Newell, Paralegal E-mail: hearingdocket@nrc.gov Georgiann E. Hampton, Paralegal Caitlin R. Byrd, Paralegal Atomic Safety and Licensing Board Panel E-mail: David.Roth@nrc.gov U.S. Nuclear Regulatory Commission Sherwin.Turk@nrc.gov Washington, DC 20555-0001 Blake.Vaisey@nrc.gov Emily I. Krause, Chair, Administrative Judge Jeremy.Wachutka@nrc.gov Dr. Sue H. Abreu, Administrative Judge Susan.Vrahoretis@nrc.gov Dr. Michael F. Kennedy, Administrative Judge Brian.Newell@nrc.gov Noel M. Johnson, Law Clerk Georgiann.Hampton@nrc.gov Emily Newman, Law Clerk Caitlin.Byrd@nrc.gov E-mail: Emily.Krause@nrc.gov Sue.Abreu@nrc.gov Florida Power & Light Company Michael.Kennedy@nrc.gov 801 Pennsylvania Ave. NW Suite 220 Noel.Johnson@nrc.gov Washington, DC 20004 Emily.Newman@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-2 MEMORANDUM (Certifying Question to the Commission Regarding Timing of Notice of Opportunity for Hearing) (LBP-24-01)
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Ave., N.W.
Washington, DC 20004 Paul M. Bessette, Esq.
Ryan K. Lighty, Esq.
E-mail: Paul.Bessette@morganlewis.com Ryan.Lighty@morganlewis.com
Miami Waterkeeper P.O. Box 141596 Coral Gables, FL 33115 Cameron Bills, Esq.
Email: cameron@miamiwaterkeeper.org
Office of the Secretary of the Commission
Dated at Rockville, Maryland, this 31st day of January 2024.
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