ML18296A673

Order (Denying Fpl'S Motions to Strike Portions of Replies, Granting Fpl'S Request to File Surreply, Granting Sace and Joint Petitioners' Motion to File Response to Surreply, and Authorizing NRC Staff to File Response)

ML18296A673
Person / Time
Site:	Turkey Point
Issue date:	10/23/2018
From:	Hawkens E Atomic Safety and Licensing Board Panel
To:	Miami Waterkeeper, Atomic Safety and Licensing Board Panel, NRC/OGC, Natural Resources Defense Council, Southern Alliance for Clean Energy
SECY RAS
References
50-250-SLR, 50-251-SLR, ASLBP 18-957-01-SLR-BD01, RAS 54574
Download: ML18296A673 (7)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:

E. Roy Hawkens, Chairman Dr. Michael F. Kennedy Dr. Sue H. Abreu In the Matter of Docket Nos. 50-250-SLR & 50-251-SLR FLORIDA POWER & LIGHT COMPANY ASLBP No. 18-957-01-SLR-BD01 (Turkey Point Units 3 and 4) October 23, 2018 ORDER (Denying FPLs Motions to Strike Portions of Replies, Granting FPLs Request to File Surreply, Granting SACE and Joint Petitioners Motion to File Response to Surreply, and Authorizing NRC Staff to File Response)

I. BACKGROUND As relevant here, on August 1, 2018, this Board received petitions to intervene from (1) Southern Alliance for Clean Energy (SACE),1 and (2) Friends of the Earth, Inc., Natural Resources Defense Council, Inc., and Miami Waterkeeper, Inc. (collectively, Joint Petitioners).2 1 See Southern Alliance for Clean Energys [SACE] Request for Hearing and Petition to Intervene (Aug. 1, 2018) [hereinafter SACE Pet.].

2 See Request for Hearing and Petition to Intervene Submitted by Friends of the Earth, Natural Resources Defense Council, and Miami Waterkeeper [Joint Petitioners] (Aug. 1, 2018)

[hereinafter Joint Pet.].

On August 27, 2018, Florida Power & Light (FPL) and the NRC Staff filed answers to the petitions,3 and on September 10, 2018, SACE and Joint Petitioners filed replies to the answers.4 On September 20, 2018, FPL filed motions to strike portions of SACEs and Joint Petitioners replies or, in the alternative, to file a surreply.5 On October 1, 2018, SACE and Joint Petitioners filed separate answers opposing FPLs motions to strike; however, although they did not oppose FPLs motion to file a surreply, they requested permission to file a joint response.6 3 See Applicants Answer Opposing Request for Hearing and Petition to Intervene Submitted by Joint Petitioners (Aug. 27, 2018); Applicants Answer Opposing SACEs Request for Hearing and Petition to Intervene (Aug. 27, 2018); NRC Staffs Corrected Response to Petitions to Intervene and Requests for Hearing Filed by (1) Joint Petitioners and (2) SACE (Aug. 27 2018)

[hereinafter NRC Staffs Answer].

4 See Reply in Support of Request for Hearing and Petition to Intervene Submitted by Joint Petitioners (Sept. 10, 2018); SACEs Reply to Oppositions by Florida Power & Light [FPL] and NRC Staff to SACEs Hearing Request (Sept. 10, 2018).

5 See Applicants Motion to Strike Portions of the Sept. 10, 2018 Reply Filed by Joint Petitioners or, in the Alternative, for Leave to File a Surreply (Sept. 20, 2018) [hereinafter FPLs Mot. to Strike Joint Petitioners Reply]; Applicants Motion to Strike a Portion of the Sept. 10, 2018 Reply Filed by SACE or, in the Alternative, for Leave to File a Surreply (Sept. 20, 2018)

[hereinafter FPLs Mot. to Strike SACEs Reply]. FPL filed its surreply concurrently with its motion. See Applicants Surreply to New Arguments Raised in Reply Pleadings (Sept. 20, 2018).

In its motions, FPL represented that the NRC Staff did not oppose FPLs motions to strike or its motion to file a surreply; however, the NRC Staff informed FPL that if the Board granted FPL permission to file a surreply and subsequently allowed petitioners to respond to the surreply, the NRC Staff would request an opportunity to file a brief response. See FPLs Mot. to Strike SACEs Reply at unnumbered p. 17 (Certificate of Consultation); FPLs Mot. to Strike Joint Petitioners Reply at unnumbered p. 17 (Certificate of Consultation).

6 See Joint Petitioners Answer in Opposition to Applicants Motion to Strike Portions of the Sept.

10, 2018 Reply Filed by Joint Petitioners or, in the Alternative, for Leave to File a Surreply (Oct.

1, 2018); SACEs Response to FPLs Motion to Strike a Portion of SACEs Sept. 10, 2018, Reply or, in the Alternative for Motion for Leave to File a Surreply (Oct. 1, 2018); Mot. for Leave to Respond to Applicants Surreply (Oct. 1, 2018) [hereinafter Petitioners Mot. to Respond to FPLs Surreply]. SACE and Joint Petitioners filed their response to FPLs surreply concurrently with their joint motion. See Petitioners Response to Applicants Surreply (Oct. 1, 2018). FPL and the NRC Staff stated that they opposed SACE and Joint Petitioners request to respond to FPLs surreply. See Petitioners Mot. to Respond to FPLs Surreply at 5 (Certificate of Consultation).

On October 10, 2018, FPL filed an answer opposing SACE and Joint Petitioners request to respond to FPLs surreply.7 II. ANALYSIS

1. FPL asserts that portions of the replies filed by SACE and Joint Petitioners should be stricken. Regarding SACEs reply, FPL urges this Board to strike section II.A in its entirety.8 This section contains SACEs argument that 10 C.F.R. § 51.53(c)(3) does not apply to subsequent license renewal (SLR) applications and, accordingly, that an environmental report accompanying an SLR application must contain analyses of the environmental impacts of the license renewal issues identified as Category 1 issues in appendix B to subpart A of 10 C.F.R. Part 51 (Table B-1). FPL contends that this portion of the reply should be stricken because (1) it constitutes a new argument that could have been raised earlier, but was not;9 and (2) it amounts to an untimely new contention that was not pleaded in accordance with the Commissions contention admissibility rules and late-filing requirements.10 For similar reasons, FPL urges this Board to strike portions of Joint Petitioners reply.

Specifically, FPL asserts that Joint Petitioners argument regarding the non-applicability of section 51.53(c)(3) to SLR applications should be stricken because (1) it does not amplify arguments advanced in Joint Petitioners petition;11 and (2) it amounts to an untimely new proposed contention.12 7 See Applicants Answer Opposing Petitioners Motion for Leave to File Response to Applicants Sept. 20, 2018 Surreply (Oct. 10, 2018).

8 FPLs Mot. to Strike SACEs Reply at 1, 3.

9 Id. at 1, 7. Relatedly, FPL argues that SACEs reply fails to amplify a previous argument, as required by the Commissions rules for replies. Id. at 11.

10 Id. at 9-14.

11 FPLs Mot. to Strike Joint Petitioners Reply at 9-11.

12 Id. at 7-9.

In NRC proceedings, a reply cannot expand the scope of the arguments set forth in the original hearing request. Replies must focus narrowly on the legal or factual arguments first presented in the original petition or raised in the answers to it.13 Guided by the above principle, we deny FPLs motion to strike for two independent reasons. First, we conclude that SACE and Joint Petitioners raised the challenged argument in their original petitions,14 enough so that the NRC Staffs answer specifically and extensively addressed the interpretation of section 51.53(c)(3) and the applicability of Table B-1 to SLR applications.15 Second, and in any event, we conclude that the argument challenged by FPL is a permissibly focused response to legal . . . arguments . . . raised in the [NRC Staffs] answer[] to the petitions.16

2. The interpretation of section 51.53(c)(3), including the corollary issue regarding the applicability of Table B-1 to SLR applications, appears to be a legal issue of first impression.

As FPL correctly observes, resolution of this issue will have significant implications for the scope and orderly disposition of this proceeding as well as future [SLR application]

proceedings.17 Consistent with our duty to compile a full, fair, and adequate record and to conduct a fair adjudicatory proceeding,18 we grant FPLs unopposed request to file a surreply, and we grant SACE and Joint Petitioners request to respond to FPLs surreply. Further, pursuant to the NRC Staffs request, see supra note 5, we authorize it to file a response to these pleadings on or before Friday, November 2, 2018.

13 Nuclear Mgmt. Co. (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727, 732 (2006) (footnote omitted).

14 See SACE Pet. at 5-6; Joint Pet. at 16 n.71.

15 See NRC Staffs Answer at 18-28.

16 Palisades, CLI-06-17, 63 NRC at 732.

17 FPLs Mot. to Strike SACEs Reply at 15.

18 See Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 18-19 (1998); Statement on Policy on Conduct of Adjudicatory Proceedings, CLI-81-08, 13 NRC 452, 453 (1981); 10 C.F.R. § 2.319.

III. CONCLUSION For the foregoing reasons, we (1) deny FPLs motions to strike, but grant its request to file a surreply; (2) grant SACE and Joint Petitioners request to respond to FPLs surreply; and (3) authorize the NRC Staff to file a response to these pleadings on or before Friday, November 2, 2018.

It is so ORDERED.

FOR THE ATOMIC SAFETY AND LICENSING BOARD

/RA/

E. Roy Hawkens, Chairman ADMINISTRATIVE JUDGE Rockville, Maryland October 23, 2018

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

FLORIDA POWER & LIGHT COMPANY ) Docket Nos. 50-250-SLR

) 50-251-SLR (Turkey Point Nuclear Generating )

Units 3 & 4)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing ORDER (Denying FPLs Motions to Strike Portions of Replies, Granting FPLs Request to File Surreply, Granting SACE and Joint Petitioners Motion to File Response to Surreply, and Authorizing NRC Staff to File Response) have been served upon the following persons by Electronic Information Exchange and by electronic mail as indicated by an asterisk (*).

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@nrc.gov Anita Ghosh, Esq.

Brian Harris, Esq.

U.S. Nuclear Regulatory Commission Esther R. Houseman Office of the Secretary of the Commission David E. Roth, Esq.

Mail Stop: O-16B33 Sherwin E. Turk, Esq.

Washington, DC 20555-0001 Jeremy L. Wachutka, Esq.

E-mail: hearingdocket@nrc.gov Mitzi A. Young, Esq.

Krupskaya T. Castellon, Paralegal Atomic Safety and Licensing Board Panel E-mail: Anita.Ghosh@nrc.gov U.S. Nuclear Regulatory Commission Brian.Harris@nrc.gov Washington, DC 20555-0001 Esther.Houseman@nrc.gov E. Roy Hawkens, Chairman David.Roth@nrc.gov Sue Abrue, Administrative Judge Sherwin.Turk@nrc.gov Michael F. Kennedy, Administrative Judge Jeremy.Wachutka@nrc.gov Sarah B. Ladin, Law Clerk Mitzi.Young@nrc.gov Joseph D. McManus, Law Clerk Krupskaya.Castellon@nrc.gov E-mail: Roy.Hawkens@nrc.gov Sue.Abrue@nrc.gov Florida Power & Light Company Michael.Kennedy@nrc.gov 801 Pennsylvania Ave. NW Suite 220 Sarah.Ladin@nrc.gov Washington, DC 20004 Joseph.McManus@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 ORDER (Denying FPLs Motions to Strike Portions of Replies, Granting FPLs Request to File Surreply, Granting SACE and Joint Petitioners Motion to File Response to Surreply, and Authorizing NRC Staff to File Response)

Morgan, Lewis & Bockius LLP Albert Gomez*

1111 Pennsylvania Ave., N.W. 3566 Vista Court Washington, DC 20004 Miami, FL 33133 Paul M. Bessette, Esq. E-mail: albert@icassemblies.com Stephen J. Burdick, Esq.

Ryan K. Lighty, Esq. Monroe County, Florida Martin J. ONeill Derek Howard, Esq.

E-mail: Paul.Bessette@morganlewis.com Assistant Monroe County Attorney Stephen.Burdick@morganlewis.com 1111 12th Street, Suite 408 Ryan.Lighty@morganlewis.com Key West, FL 33040 Martin.Oneill@mrganlewis.com E-mail: howard-derek@monroecounty-fl.gov Natural Resources Defense Council 1152 15th Street, NW, Suite 300 Washington, DC 20005 Geoffrey H. Fettus E-mail: gfettus@nrdc.org Southern Alliance for Clean Energy 1725 DeSales Street N,W., Suite 500 Washington, DC 20036 Diane Curran Harmon, Curran, Spielberg, & Eisenberg, LLP E-mail: dcurran@harmoncurran.com Counsel for Miami Waterkeeper, Inc.

The Super Law Group 180 Maiden Lane, Suite 601 New York, NY 10038 Edan Rotenberg, Esq.

Email: edan@superlawgroup.com

[Original signed by Clara Sola ]

Office of the Secretary of the Commission Dated at Rockville, Maryland, this 23rd day of October, 2018 2