ML24185A254
| ML24185A254 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 07/03/2024 |
| From: | Bills C, Webster R Law Office of Richard Webster, Miami Waterkeeper |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| ASLBP 24-981-01-SLR-BD01, RAS 57053, 50-250-SLR-2, 50-251-SLR-2 | |
| Download: ML24185A254 (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 Units 3 and 4)
(Subsequent License Renewal Application)
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Docket No. 50-250-SLR-2 Docket No. 50-251-SLR-2 July 3, 2024 MIAMI WATERKEEPERS ANSWER TO FLORIDA POWER & LIGHT COMPANYS MOTION TO STRIKE PORTIONS OF ITS REPLY INTRODUCTION Pursuant to 10 C.F.R. § 2.309(i)(2), Petitioner Miami Waterkeeper files this Answer in opposition to Florida Power and Light Companys (FPL) Motion to Strike a portion of its Reply.1 Throughout this proceeding, FPL has filed motions to strike at every turn2none of which has been granted.3 1 Applicants Answer to Petitioners Motion to Admit New and Amended Contentions on the Final Site-Specific Environmental Impact Statement, ADAMS Accession No. ML24155A267 (June 3, 2024)
(hereinafter FPL Answer).
2 Applicants Motion to Strike a Portion of the September 10, 2018 Reply Filed by Southern Alliance for Clean Energy, ADAMS Accession No. ML18263A285 (Sept. 20, 2018); Florida Power & Light Companys Motion to Strike Portions of the Reply Filed by Miami Waterkeeper, ADAMS Accession No. ML24018A224 (Jan. 18, 2024); Florida Power & Light Companys Motion to Strike Portions of the Reply Filed by Miami Waterkeeper, ADAMS Accession No. ML24176A271 (June 24, 2024) (hereinafter FPL Motion to Strike).
3 See, e.g., Order Denying FPLs Motions to Strike Portions of Replies, ADAMS Accession No. ML18296A673 (Oct. 23, 2018), at 4 ([W]e conclude that the argument challenged by FPL is a permissibly focused response to legal... arguments... raised in the [NRC Staffs] answer[] to the petition.).
2 DISCUSSION I.
LEGAL STANDARDS GOVERNING THE SCOPE OF A REPLY As FPL correctly states, NRC rules are designed to ensure that applicants understand petitioners arguments with clarity and precision.4 Petitioners only get the same understandingof an applicants counterargumentsafter they receive the answers to their initial petition. In the spirit of fundamental fairness, petitioners have the right to counter in reply the arguments raised against their contentions in an answer. Thus, reply briefs must focus narrowly on the legal or factual arguments first presented in the original petition or raised in the answers to it.5 Even FPL acknowledges that a reply may legitimately amplif[y] arguments from the original petition.6 Generally, Boards grant motions to strike where a reply brief introduces entirely new issues in an impermissible attempt to cure severely deficient contentions, thereby depriving the respondent of a meaningful opportunity to respond.7 FPL cites a series of cases where the disputed arguments made in replies were not even suggested by Petitioners proposed Contention... as initially pled,8 where the reply attempt[ed] to backstop elemental deficiencies in its original petition to intervene,9 or where the original petition did not cite adequate documentary support.10 As discussed below, none of these situations are present here.
4 FPL Motion to Strike at 2-3.
5 FPL Motion to Strike at 3 (emphasis added) (citing Palisades, CLI-06-17, 63 NRC at 732). See also In the Matter of Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-25, 60 NRC 223, 225 (2004).
6 Id. at 3 (citing La. Energy Servs., CLI-04-25, 60 NRC at 224).
7 See Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-08-19, 68 NRC 251, 262 n.32 (2008) (citing In the Matter of Louisiana Energy Services, L.P. (National Enrichment Facility), CLI 25, 60 NRC 223, 224-225 (2004)).
8 Nuclear Mgmt. Co. LLC (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727, 731 (2006).
9 Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-08-19, 68 NRC 251, 262 n.35 (2008).
10 Palisades, CLI-06-17, 63 NRC at 732.
3 Boards have also granted motions to strike where replies present entirely new legal theories that opposing counsel has not had the opportunity to address.11 Yet the Commission acknowledges that petitioners are entitled to make arguments [that] genuinely reply to arguments raised in the other participants briefs.12 This is precisely what Petitioner did here, as explained below.
II. THE REPLY IS PROPER AND THE MOTION SHOULD BE DENIED The portions of Miami Waterkeepers Reply that FPL seeks to strike respond directly to legal arguments FPL made in its Answer, and legitimately amplify arguments made in Miami Waterkeepers Motion to Admit Amended and New Contentions (Petition).13 The ordinary meaning of amplify is to expand (something, such as a statement) by the use of detail or illustration or by closer analysis.14 Miami Waterkeepers Petition alleges that the 2019 FSEIS and 2024 FSEIS both failed to objectively analyze, using best available science, how environmental conditions would benefit from the no action alternative.15 The Petition states that the alternatives analysis in the 2024 FSEIS is inadequate because it used the 2019 FSEIS evaluation of the no action alternative and NRC Staff did not identify any significant new information that could change that evaluation.16 11 See, e.g., In the Matter of USEC, Inc. (American Centrifuge Plant), CLI-06-09, 63 NRC 433, 439 (2006); Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-08-19, 68 NRC 251, 262 n.32 (2008).
12 See American Centrifuge Plant, CLI-06-09, 63 NRC at 439.
13 Miami Waterkeepers Motion to Admit Amended and New Contentions in Response to NRC Staffs Final Site-Specific Environmental Impact Statement, ADAMS Accession No. ML24129A220 (May 8, 2024) (hereinafter Miami Waterkeeper Motion).
14 Amplify, MERRIAM-WEBSTER, available at https://www.merriam-webster.com/dictionary/amplify (last visited July 1, 2024).
15 FPL Motion to Strike at 4 (citing Miami Waterkeeper Motion at 14).
16 Miami Waterkeeper Motion at 13.
4 FPLs Answer disputed a statement in the Petition that the analysis of the no action condition was inadequate. In its Answer, FPL stated that Petitioners primary claim is that the 2024 FSEIS fails to adequately analyze groundwater conditions for the no-action alternative.17 FPL then misconstrued the initial Petition by stating Petitioner is not alleging that there is any new and significant information.18 In its Reply, Miami Waterkeeper clarified that it was indeed alleging there is new and significant information that made the 2019 evaluation of the no action alternative outdated, and made both the 2019 evaluation and the 2024 FSEIS evaluation of alternatives inadequate.19 These contested arguments are a direct response and genuine[] reply to a legal argument (and mischaracterization of the Petition) that FPL raised in its answer.20 Boards consistently acknowledge that it is proper for a reply to respond to the legal, logical, and factual arguments presented in answers, so long as new issues are not raised.21 No new issues were raised in Miami Waterkeepers Reply. Instead, the Reply amplifies the Petition by providing a detailed and closer analysis of why the 2019 FSEIS and 2024 FSEIS are inadequate. This is precisely the sort of legitimate amplification that NRC procedure permits.22 For example, a Board found arguments made in reply related to the use of freshwater to be a legitimate amplification of [the] original petition, where the original petition raised concerns about the impact that FPL's actions will have on freshwater, including the withdrawal 17 FPL Answer. at 12; Miami Waterkeeper Motion at 7.
18 Id. at 16.
19 Miami Waterkeepers Reply in Support of Motion to Admit Amended and New Contentions, ADAMS Accession No. ML24164A196 (June 12, 2024) at 7, 9.
20 See American Centrifuge Plant, CLI-06-09, 63 NRC at 439.
21 In the Matter of Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2),
ASLBP No. 08-871-01-LR, 68 NRC 905, 919 (2008).
22 See FPL Motion to Strike at 3.
5 of freshwater from Florida's aquifers. 23 The Board in that case denied FPLs motion to strike.24 In another case, a Board found that where a contention was based on the risk that the construction of Fermi Unit 3 will kill snakes, destroy their habitat, and exterminate the species from the area... arguments concerning the adequacy of the NEPA analysis of the impact of construction of Unit 3 upon the snake and of measures to mitigate those impacts fall within the scope of the Contention because they constitute legitimate amplification of previous arguments.25 The Board in this case also concluded that where Petitioners on reply raised the fact that a DEIS had relied on assumptions about the future actions of an agency, this argument
[did] not impermissibly expand the scope of Contention 8 into an attack upon the state agency's process, but instead permissibly elaborated on the sufficiency of the DEIS under NEPA.26 Thus, the contested portions of Miami Waterkeepers Reply constitute a legitimate amplification of the arguments presented in its Petition and a response to arguments in FPLs answernot an entirely new legal theory27 nor an impermissible attempt to cure a severely deficient contention.28 The Board should therefore deny FPLs Motion.
23 In the Matter of Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4),
LBP-15-13, 81 NRC 456, 462 (2015). See also In the Matter of DTE Electric Co. (Fermi Nuclear Power Plant, Unit 2), LBP-15-5, 81 NRC 249 (2015) (reversed on other grounds CLI-15-18, 82 NRC 135 (2015)).
24 Turkey Point, LBP-15-13, 81 NRC at 456.
25 In the Matter of Detroit Edison Co. (Fermi Nuclear Power Plant, Unit 3), LBP-12-23, 76 NRC 445, 464 (2012) (discussing the term legitimately amplify in the context of a response to a summary disposition motion).
26 In the Matter of Detroit Edison Co. (Fermi Nuclear Power Plant, Unit 3), LBP-12-23, 76 NRC. 445, 465 (2012).
27 See, e.g., In the Matter of USEC, Inc. (American Centrifuge Plant), CLI-06-09, 63 NRC 433, 439 (2006); Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-08-19, 68 NRC. 251, 262 n.32 (2008).
28 See Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-08-19, 68 NRC 251, 262 n.32 (2008) (citing Louisiana Energy Services, CLI-04-25, 60 NRC at 224-225).
6 II.
CONCLUSION FPL is seeking to constrain Petitioner in a way that would render the reply brief a mere repetition of the initial brief. But Petitioner has the right to amplify its arguments in reply and respond to those raised in FPLs answer. The present reply brief did just that. As a result, FPLs Motion to Strike should be denied.
Respectfully submitted,
/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 Richard Webster Law Office of Richard Webster 133 Wildwood Avenue Montclair, NJ 07043 Phone: (202) 630-5708 Email: rwebster463@gmail.com Counsel for Miami Waterkeeper
7 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 Units 3 and 4)
(Subsequent License Renewal Application)
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)
)
)
)
)
)
Docket No. 50-250-SLR-2 Docket No. 50-251-SLR-2 July 3, 2024 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, the foregoing Miami Waterkeepers Answer to Florida Power & Light Companys Motion to Strike Portions of Its Reply 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 Richard Webster Law Office of Richard Webster 133 Wildwood Avenue Montclair, NJ 07043 Phone: (202) 630-5708 Email: rwebster463@gmail.com Counsel for Miami Waterkeeper