ML24116A260
| ML24116A260 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 04/25/2024 |
| From: | Bessette P, Clausen S, 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 56998, 50-250-SLR-2, 50-251-SLR-2 | |
| Download: ML24116A260 (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 April 25, 2024 FLORIDA POWER & LIGHT COMPANYS ANSWER OPPOSING MIAMI WATERKEEPERS THIRD EXTENSION REQUEST Pursuant to 10 C.F.R. § 2.323(c) and the Atomic Safety and Licensing Boards (ASLB)
Initial Prehearing Order,1 Applicant Florida Power & Light (FPL) files this answer opposing the motion filed by Biscayne Bay Waterkeeper, Inc. d/b/a Miami Waterkeeper (Waterkeeper) for yet another extension of an adjudicatory deadlineits third such request in this proceeding, which is now in year six of what is supposed to be an 18-month SLR process (Motion).2 In sum, Waterkeeper seeks more time to file a new or amended contention. But, just a few weeks ago, the parties negotiated and unanimously agreed to the deadlines in this proceeding.3 And the ASLB issued an Initial Scheduling Order adopting those deadlines.4 As explained below, Waterkeeper fails to establish good cause for an extension or to modify the previously established hearing schedule. Accordingly, the Board should DENY the Motion.
1 Initial Prehearing Order at 4 (Dec. 6, 2023).
2 Motion for Extension of Time to File New Contention Based on GAO-24-106326 Submitted by Miami Waterkeeper (Apr. 24, 2024) (Motion). Waterkeeper requested extensions of time to file a hearing request and a reply pleading, and both requests were granted. Secretary Order at 4 (Nov. 6, 2023); Licensing Board Memorandum and Order (Granting Motion for Extension of Time) at 1 (Dec. 19, 2023).
3 See Joint Motion Regarding Hearing Schedule, Mandatory Disclosures, and Hearing File Obligations (Mar. 22, 2024) (Joint Motion).
4 Initial Scheduling Order (Mar. 26, 2024).
2 Legal Standards for Adjudicatory Extensions and Hearing Schedule Modifications 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 explainedin a published policy statement and Commission Legal Issuances (CLI)the general rule is that good cause for an extension under 10 C.F.R. § 2.307(a) requires a showing of unavoidable and extreme circumstances.5 More specifically, that policy statement explains that the parties to a proceeding are expected to adhere to the time frames specified in... the scheduling orders in the proceeding and that licensing boards are expected to take appropriate actions to enforce compliance with these schedules.6 It further states that:
The Commission, of course, recognizes that the boards may grant extensions of time under some circumstances, but this should be done only when warranted by unavoidable and extreme circumstances.7 Commission policy statements are binding on its adjudicatory boards.8 And Licensing Boards are bound to comply with directives of a higher tribunal, including those in Commission CLIs.9 The Commission expects this policy to be followed to the maximum extent feasible, but otherwise permits licensing boards to deviate from the proposed schedule when circumstances require.10 5
See, e.g., Hydro Res., Inc. (2929 Coors Road, Suite 101, Albuquerque, NM 87210), CLI-99-1, 49 NRC 1, 3 n.2 (1999) (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)
(Policy Statement).
6 Policy Statement, CLI-98-12, 48 NRC at 21 (emphasis added).
7 Id. (emphasis added).
8 Miss. Power & Light Co. (Grand Gulf Nuclear Station, Units 1 & 2), ALAB-704, 16 NRC 1725, 1732 n.9 (1982) (citations omitted).
9 S.C. Elec. & Gas Co. (Virgil C. Summer Nuclear Station, Unit 1), ALAB-710, 17 NRC 25, 28 (1983).
10 Balt. Gas & Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units 1 & 2), CLI-98-15, 48 NRC 45, 52 (1998).
3 Perhaps more importantly, the extension requested in the Motion implicates a separate codified procedural requirement that Waterkeeper overlooks entirely. Specifically, 10 C.F.R.
§ 2.334 provides that, once a hearing schedule is established for a proceeding (as is the case here), that schedule may not be modified except upon a determination of good cause.11 That regulation further provides a prescriptive standard for good cause in this context, requiring the presiding officer to consider three enumerated factors:
(1)
Whether the requesting party has exercised due diligence to adhere to the schedule; (2)
Whether the requested change is the result of unavoidable circumstances; and (3)
Whether the other parties have agreed to the change and the overall effect of the change on the schedule of the case.12 As explained below, these factors, which are neither acknowledged nor addressed in the Motion, weigh heavily against a finding of good cause here.
The Motion Fails to Establish Good Cause First, as relevant to the factors in 10 C.F.R. § 2.334(b)(1) and (2), Waterkeeper identifies no unavoidable circumstance that prevents it from adhering to the existing schedule. And no such circumstance exists. As Waterkeeper explains, its objective is merely to obtain alignment of two deadlines for filing motions for new or amended contentions.13 One motion is due on May 2, 2024, whereas the other is due on May 8, 2024, and Waterkeeper proposes to make both due on the later date.14 Waterkeeper speculates (without basis or explanation) that reducing by 11 10 C.F.R. § 2.334(b).
12 Id.
13 Motion at 1.
14 Id. at 1-2.
4 half the number of briefs would result in judicial and party efficiency.15 As a preliminary matter, it is entirely unclear how the presentation of identical substantive content in one long brief, versus two shorter briefs, would result in any efficiency. Thus, Waterkeepers fundamental proposition is dubious on its face.
Even assuming arguendo that some minimal efficiency could be achieved by aligning the submission dates for the contentions, Waterkeeper fails to explain why an extension is strictly necessary to achieve that end. In fact, the same result could be achieved by filing a single brief on the earlier date, May 2, 2024. That is something Waterkeeper could do quite simply and without licensing board involvement, because no scheduling order or procedural rule prevents a party from filing a motion early. Unsurprisingly, between the two options, Waterkeeper prefers the one that provides it with an advantagenamely, more time to draft its pleading. However, that preference is wholly irrelevant here. It is not an unavoidable circumstance. And it does not prevent Waterkeeper from adhering to the existing schedule. Thus, the factors in 10 C.F.R.
§ 2.334(b)(1) and (2) decidedly weigh against granting the motion.
Second, Waterkeeper identifies neither a reason to deviate from the general rule in the policy statement regarding adjudicatory extensions nor a reason to modify the hearing schedule under the circumstances presented here. The Boards Initial Prehearing Order established a 30-day clock for new or amended contentions.16 Subsequently, the parties engaged in substantial negotiations (involving multiple rounds of emails, video calls, circulated drafts, etc.) and unanimously agreed on a proposed hearing schedule.17 Pursuant to the purposeful agreement of the parties, the 30-day clock for new or amended contentions in the Initial Prehearing Order was 15 Id. at 4.
16 Initial Prehearing Order at 4 n.10.
17 See Joint Motion.
5 left undisturbed, with a single exception: the parties agreed that new or amended contentions based on the FSEIS would be subject to a 40-day clock.18 Under 10 C.F.R. § 2.332(a), the Board issued a hearing schedule reflecting that agreement.19 In its Motion, Waterkeeper now seeks to renege on those negotiated terms. It is effectively asking the Board to provide an additional exception to the 30-day clockone to which the parties did not unanimously agree. That deviation would effectively provide that new or amended contentions based on a specific report from the U.S. Government Accountability Office would be subject to a 36-day clock.20 As relevant to the factor in 10 C.F.R. § 2.334(b)(3),
FPL objects to that change. Simply put, the parties heavily negotiated a hearing schedule; the ASLB issued an order imposing the parties unanimous agreement; NRC regulations disfavor adjustments to hearing schedules absent a substantial justification; no such justification has been provided here; and the requested change would benefit Waterkeeper to the disadvantage of the other parties.21 Accordingly, the third factor also weighs against granting the motion.
Conclusion Because Waterkeepers single-pleading preference and dubious claims of efficiency do not remotely demonstrate good cause, as that term is defined in 10 C.F.R. § 2.334(b), and because the Commission otherwise expects licensing boards to enforce compliance with adjudicatory deadlines,22 the ASLB should DENY the Motion.
18 Id. at 2.
19 See generally Initial Prehearing Order.
20 Motion at 2.
21 Forcing the other parties to review and respond to all contentions in a single 25-day period (as Waterkeeper seeks to do), rather than across two 25-day periods staggered by six days (as prescribed under the current orders), could be viewed as prejudicial.
22 Policy Statement, CLI-98-12, 48 NRC at 21.
6 Executed in Accord with 10 C.F.R. § 2.304(d)
Respectfully submitted, Signed (electronically) by Scott D. Clausen 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 Scott D. Clausen, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: (202) 739-5402 Email: scott.clausen@morganlewis.com Executed in Accord with 10 C.F.R. § 2.304(d)
Ryan K. Lighty, Esq.
Paul M. Bessette, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: (202) 739-5274 Phone: (202) 739-5796 Email: ryan.lighty@morganlewis.com Email: paul.bessette@morganlewis.com Counsel for Florida Power & Light Company Dated in Washington, DC this 25th day of April 2024
DB1/ 146644198.4 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 April 25, 2024 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 Third Extension Request was served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned docket.
Signed (electronically) by Scott D. Clausen Scott D. Clausen, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: (202) 739-5402 Email: scott.clausen@morganlewis.com Counsel for Florida Power & Light Company