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{{#Wiki_filter:October 26, 201 5  UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
{{#Wiki_filter:October 26, 2015 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of                                       )
        )            ) FLORIDA POWER & LIGHT COMPANY
                                                      )
      ) Docket Nos. 50
FLORIDA POWER & LIGHT COMPANY                         )   Docket Nos. 50-250-LA
-250-LA           )           50-251-LA (Turkey Point Nuclear Generating,       ) Units 3 and 4)
                                                      )                   50-251-LA (Turkey Point Nuclear Generating,                     )
          )  NRC STAFF'S ANSWER TO FLORIDA POWER & LIGHT COMPANY'S MOTION TO STRIKE PORTIONS OF CASE'S "INITIAL STATEMENT OF POSITION, TESTIMONY, AFFIDAVITS AND EXHIBITS" OR, IN THE ALTERNATIVE, MOTION IN LIMINE TO EXCLUDE IT AND ITS CITED DOCUMENTS FROM EVIDENCE INTRODUCTION Pursuant to 10 C.F.R. §§ 2.319, 2.323, 2.337, and the Atomic Safety and Licensing Board's (Board) Initial Scheduling Order of May 8, 201 5, and Order dated October 19, 2015 1 , the staff of the Nuclear Regulatory Commission (Staff) files its answer in support of Florida Power & Light Company's (FPL) motion to strike, or in the alternative, motion in limine (FPL's Motion)2 regarding "Citizens Allied for Safe Energy
Units 3 and 4)                                        )
[CASE] Initial Statement of Position, Testimony, Affidavits and Exhibits (For January, 2015 Evidentiary Hearing)
NRC STAFFS ANSWER TO FLORIDA POWER & LIGHT COMPANYS MOTION TO STRIKE PORTIONS OF CASES INITIAL STATEMENT OF POSITION, TESTIMONY, AFFIDAVITS AND EXHIBITS OR, IN THE ALTERNATIVE, MOTION IN LIMINE TO EXCLUDE IT AND ITS CITED DOCUMENTS FROM EVIDENCE INTRODUCTION Pursuant to 10 C.F.R. §§ 2.319, 2.323, 2.337, and the Atomic Safety and Licensing Boards (Board) Initial Scheduling Order of May 8, 2015, and Order dated October 19, 20151, the staff of the Nuclear Regulatory Commission (Staff) files its answer in support of Florida Power & Light Companys (FPL) motion to strike, or in the alternative, motion in limine (FPLs Motion)2 regarding Citizens Allied for Safe Energy [CASE] Initial Statement of Position, Testimony, Affidavits and Exhibits (For January, 2015 Evidentiary Hearing). (CASEs SOP).3 As discussed below, the material FPL seeks to exclude from the hearing is opinions and exhibits not properly sponsored by an expert and material that exceeds the limited scope of the 1 See Licensing Board Order (Initial Scheduling Order) (May 8, 2015) (unpublished) (Agencywide Documents Access and Management System (ADAMS) Accession No. ML15128A369); Licensing Board Order (Granting Request for Extension of Time) (Oct. 19, 2015) (unpublished) (ADAMS Accession No. ML15292A408).
." (CASE's SOP)
2 [FPLs] Motion to Strike Portions of CASEs Initial Statement of Position, Testimony, Affidavits and Exhibits, or, in the Alternative, Motion In Limine to Exclude it and its Cited Documents from Evidence (Oct. 19, 2015) (FPLs Motion).
.3   As discussed below, the material FPL seek s to exclude from the hearing is opinions and exhibits not properly sponsored by an expert and material that exceeds the limited scope of the  
3 CASEs SOP was filed on October 9, 2015 and is available at ADAMS Accession No. ML15286A348. CASEs SOP referenced several attachments, some of which were served on October 9, 2015. Pursuant to the Boards October 19, 2015 Order, CASE served Attachment 2 on October 20, 2015.


1 See Licensing Board Order (Initial Scheduling Order) (May 8, 2015) (unpublished) (Agencywide Documents Access and Management System (ADAMS) Accession No. ML15128A369); Licensing Board Order (Granting Request for Extension of Time) (Oct. 19, 2015) (unpublished) (ADAMS Accession No.
admitted contention.4 Although the Staff recognizes that the Board is capable of sorting through CASEs SOP and exhibits for scope and weight, allowing portions of CASEs SOP and exhibits into evidence will result in the unnecessary expenditure of resources by all parties on issues that are not properly before the Board and create a confusing record on the issues to be decided. Thus, the Staff supports FPLs Motion to exclude portions of CASEs SOP and exhibits.5 The Staff submits that the Board should exclude the documents referenced in Table 1 of FPLs Motion,6 the arguments and exhibits referenced in Table 2 of FPLs Motion,7 and CASEs Attachments 1, 2, and 3.8 DISCUSSION I.       Legal Standards Governing Motions In Limine In an evidentiary hearing, [o]nly relevant, material, and reliable evidence which is not unduly repetitious will be admitted. Immaterial or irrelevant parts of an admissible document will be segregated and excluded so far as is practicable.9 While the strict rules of evidence do not apply to written submissions, the Board may, on motion or on the presiding officers own 4 See Citizens Allied for Safe Energy, Inc. Petition to Intervene and Request for a Hearing (Oct.
ML15292A408
14, 2014) (ADAMS Accession No. ML14290A510); Memorandum and Order (Granting CASEs Petition to Intervene) (unpublished) (Mar. 23, 2015) (slip op. at 24) (ADAMS Accession No. ML15082A197)
). 2 [FPL's] Motion to Strike Portions of CASE's "Initial Statement of Position, Testimony, Affidavits and Exhibits, or, in the Alternative, Motion In Limine to Exclude it and its Cited Documents from Evidence (Oct. 19, 201 5) (FPL's Motion)
(admitting a narrowed and reformulated version of CASEs Contention 1).
. 3 CASE's SOP was filed on October 9, 2015 and is available at ADAMS Accession No. ML15286A348. CASE's SOP referenced several attachments, some of which were served on October 9, 2015. Pursuant to the Board's October 19, 2015 Order, CASE served Attachment 2 on October 20, 2015.
5 FPLs Motion. See id. at 1, 4 (stating that CASEs SOP does not contain any sworn testimony);
admitted contention
id. at 1 (noting that significant portions of the CASE [SOP] and its cited documents raise issues beyond the limited scope of Contention 1 as admitted by the Board in this proceeding.).
.4 Although the Staff recognizes that the Board is capable of sorting through CASE's SOP and exhibits for scope and weight, allowing portions of CASE's SOP and exhibits into evidence will result in th e unnecessary expenditure of resources by all parties on issues that are not properly before the Board and create a confusing record on the issues to be decided. Thus, the Staff supports FPL's Motion to exclude portions of CASE's SOP and exhibits.5 T he Staff submits that the Board should exclud e the documents referenced in Table 1 of FPL's Motion, 6 the arguments and exhibits referenced in Table 2 of FPL's Motion
6 FPLs Motion at 5-8.
, 7 and CASE's Attachments 1, 2, and 3.
7 Id. at 11-12.
8 DISCUSSION I. Legal Standards Governing Motions In Limine In an evidentiary hearing, "[o]nly relevant, material, and reliable evidence which is not unduly repetitious will be admitted. Immaterial or irrelevant parts of an admissible document will be segregated and excluded so far as is practicable."
8 See FPLs Motion at 4 (requesting that Attachments 1, 2, and 3 not be included as evidence).
9 While the "strict rules of evidence do not apply to written submissions," the Board "may, on motion or on the presiding officer's own  
The Staff does not object to CASE Attachments 4, 5, and 6, as they are public records documenting matters potentially relevant to the admitted contention.
9 10 C.F.R. § 2.337(a).


4 See Citizens Allied for Safe Energy, Inc. Petition to Intervene and Request for a Hearing (Oct. 14, 2014) (ADAMS Accession No. ML14290A510); Memorandum and Order (Granting CASE's Petition to Intervene) (unpublished) (Mar. 23, 2015) (slip op. at 24) (ADAMS Accession No. ML15082A197) (admitting a narrowed and reformulated version of CASE's Contention 1).
initiative, strike any portion of a written presentation or a response to a written question that is irrelevant, immaterial, unreliable, duplicative or cumulative.10 NRC hearings are limited to the scope of the admitted contentions. It is well established that if an intervenor proffers testimony or evidence outside the scope of the admitted contentions, it will be excluded.11 As the Commission explained:
5 FPL's Motion. See id. at 1 , 4 (stating that CASE's SOP does not contain any sworn testimony)
The scope of a contention is limited to issues of law and fact pled with particularity in the intervention petition, including its stated bases, unless the contention is satisfactorily amended in accordance with our rules. Otherwise, NRC adjudications quickly would lose order. Parties and licensing boards must be on notice of the issues being litigated, so that parties and boards may prepare for summary disposition or for hearing. Our procedural rules on contentions are designed to ensure focused and fair proceedings.12 The Commission has stressed that its proceedings would prove unmanageableand unfair to the other partiesif an intervenor could freely change an admitted contention at will as litigation progresses, stretching the scope of admitted contentions beyond their reasonably inferred bounds.13 Therefore, petitioners must raise and reasonably specify at the outset their objections to a license application.14 II.     CASEs SOP and Exhibits are Not Supported By an Expert and Should be Excluded The Staff agrees with FPL that CASEs SOP and Attachments 1, 2, and 3 should not be considered pre-filed testimony or evidence because they are not appropriately sponsored by a 10 10 C.F.R. § 2.319(d). See also 10 C.F.R. § 2.319(e).
; id. at 1 (noting that "significant portions of the CASE [SOP] and its cited documents raise issues beyond the limited scope of Contention 1 as admitted by the Board in this proceeding.").
11 See, e.g., Southern Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), CLI-10-05, 71 NRC 90, 100 (2010) (agreeing with the Staff that the licensing board had properly excluded the intervenors testimony and exhibits that were outside the scope of the admitted contention).
6 FPL's Motion at 5
12 Id. at 100-01 (internal footnotes omitted).
-8. 7 Id. at 11-12. 8 See FPL's Motion at 4 (requesting that Attachments 1, 2, and 3 not be included as evidence). The Staff does not object to CASE Attachments 4, 5, and 6, as they are public records documenting matters potentially relevant to the admitted contention.
13 Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-01, 75 NRC 39, 56 (2012) (internal citations omitted).
9 10 C.F.R. § 2.337(a). initiative, strike any portion of a written presentation or a response to a written question that is irrelevant, immaterial, unreliable, duplicative or cumulative."10   NRC hearings are limited to the scope of the admitted contentions. It is well established that if an intervenor proffers testimony or evidence outside the scope of the admitted contentions, it will be excluded.11 As the Commission explained:
The scope of a contention is limited to issues of law and fact pled with particularity in the intervention petition, including its stated bases, unless the contention is satisfactorily amended in accordance with our rules. Otherwise, NRC adjudications quickly would lose order. Parties and licensing boards must be on notice of the issues being litigated, so that parties and boards may prepare for summary disposition or for hearing. Our procedural rules on contentions are designed to ensure focused and fair proceedings.12 The Commission has stressed that it s "proceedings would prove unmanageable
-and unfair to the other parties
-if an intervenor could freely change an admitted contention  
'at will as litigation progresses,' 'stretching the scope of admitted contentions beyond their reasonably inferred bounds.'"13 Therefore, petitioners "must raise and reasonably specify at the outset their objections to a license application."14 II. CASE's SOP and Exhibits are Not Supported By an Expert and Should be Excluded The Staff agrees with FPL that CASE's SOP and Attachments 1, 2, and 3 should not be considered pre
-filed testimony or evidence because they are not appropriately sponsored by a  
 
10 10 C.F.R. § 2.319(d). See also 10 C.F.R. § 2.319(e).
11 See, e.g., Southern Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), CLI 05, 71 NRC 90, 100 (2010) (agreeing with the Staff that the licensing board had properly excluded the intervenors' testimony and exhibits that were outside the scope of the admitted contention). 12 Id. at 100-01 (internal footnotes omitted).
13 Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI 01, 75 NRC 39, 56 (2012) (internal citations omitted).
14 Id. (internal citations omitted).
14 Id. (internal citations omitted).
qualified expert.15  The Board's Initial Scheduling Order provided the parties clear instructions for submitting initial SOPs, testimony, and affidavits.16  However, CASE's SOP did not meet the NRC's filing requirements.
I n particular, CASE did not provide any testimony or affidavits
.17  As FPL's Motion points out, a non
-expert, like Mr. White, cannot sponsor technical analyses for admission as evidence.18  Moreover, despite being given a chance to cure any defects in its filing s, CASE did not file any written testimony, affidavits, or supported exhibits or attachments by October 20, 2015.19  While pro se intervenors are afforded some latitude,20 the regulations and Board's orders apply with equal force to them to ensure a fair and orderly adjudication.21 15 FPL's Motion at 4 (citing Catawba, CLI 21, 60 NRC at 27).
Id. at n. 18 (noting no objection to Attachments 4, 5, and 6).
16 See Board's Initial Scheduling Order at 7-16 and Attachments A and B. While the Board's October 21, 2015 order directed CASE to correct its filing errors, those corrections regarding numbering and submission of supporting documents will not cure the issues that preclude the exhibits and portions of the SOP from being admitted into evidence.
17 See CASE's SOP at 5 ("CASE has no testimony or affidavits to submit at this time.").
As FPL's Motion points out, CASE also failed to follow the Board's instructions and the Commission's rules regarding the presentation of exhibits). FPL's Motion at 1, 4-5. 18 FPL's Motion at 2 (citing Souther n California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB
-717, 17 NRC 346, 367 (1983)). See also id. (noting that non
-expert testimony on a technical issue is accorded no weight).
19 See Board's October 19, 2015 Order at 1 (ADAMS Accession No. ML15292A408) (providing CASE additional time to timely file any initial statements of position and written testimony (including exhibits and attachments)
). The Staff notes that in light of this, there is no "battle of the experts" requiring the Board to weigh opposing expert testimony at an evidentiary hearing.
20 See, e.g., Pub. Serv. Elec. & Gas Co. (Salem Nuclear Generating Station, Units 1 and 2), ALAB-136, 6 AEC 487, 489 (1973). 21 See, e.g., Entergy Nuclear Generation Co.
& Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI 11, 71 NRC 287, 307 n.97 (2010). Notably, this Board has indicated that CASE must adhere to the filing requirements. See, e.g., Board's October 21, 2015 Order at 1 (ADAMS Accession No. ML15294A316) (requiring CASE to properly number its exhibits).
III. CASE's SOP and Exhibits Exceed the Limited Scope of the Admitted Contention The Staff agrees with FPL that significant portions of CASE
's SOP and exhibits are beyond the limited scope of Contention 1 and are therefore irrelevant and immaterial.22  Contention 1 as admitted was narrowly focused on whether the NRC Staff's Environmental Assessment "adequately address[ed] the impact of increased temperature and salinity in the [cooling canal system (CCS)] on saltwater intrusion arising from: (1) migration out of the CCS; and (2) the withdrawal of fresh water from surrounding aquifers to mitigate conditions within the CCS."23  Thus, the Board did not contemplate argument on how CCS water may impact the water of Biscayne Bay, the alleged failure of the Staff's Environmental Assessment to address monitoring, or the alleged failure of the Staff's Environmental Assessment to consider the impacts of copper sulfate on crocodiles.24  Thus, the Staff agrees with FPL that the out of scope portions of CASE's SOP and exhibits should be excluded from the hearing record
.25 CONCLUSION The Staff supports FPL's Motion to exclude the portions of CASE's SOP and exhibits that are unsupported by an expert or outside the scope of the admitted contention.


22 FPL's Motion at 8.
qualified expert.15 The Boards Initial Scheduling Order provided the parties clear instructions for submitting initial SOPs, testimony, and affidavits.16 However, CASEs SOP did not meet the NRCs filing requirements. In particular, CASE did not provide any testimony or affidavits.17 As FPLs Motion points out, a non-expert, like Mr. White, cannot sponsor technical analyses for admission as evidence.18 Moreover, despite being given a chance to cure any defects in its filings, CASE did not file any written testimony, affidavits, or supported exhibits or attachments by October 20, 2015.19 While pro se intervenors are afforded some latitude,20 the regulations and Boards orders apply with equal force to them to ensure a fair and orderly adjudication.21 15 FPLs Motion at 4 (citing Catawba, CLI-04-21, 60 NRC at 27). Id. at n. 18 (noting no objection to Attachments 4, 5, and 6).
23 LBP-15-13 (slip op. at 24) (emphasis added). See also FPL's Motion at 8 (citing same).
16 See Boards Initial Scheduling Order at 7-16 and Attachments A and B. While the Boards October 21, 2015 order directed CASE to correct its filing errors, those corrections regarding numbering and submission of supporting documents will not cure the issues that preclude the exhibits and portions of the SOP from being admitted into evidence.
24 FPL's Motion at 9 (summarizing out-of-scope arguments made in CASE's SOP).
17 See CASEs SOP at 5 (CASE has no testimony or affidavits to submit at this time.). As FPLs Motion points out, CASE also failed to follow the Boards instructions and the Commissions rules regarding the presentation of exhibits). FPLs Motion at 1, 4-5.
Likewise, the parties did not contemplate such argument. As discussed in the Staff's Unopposed Motion for an Extension of Time for the Filing of Testimony, Exhibits, and Statement of Position (ADAMS Accession No. ML15288A348), given the difficulties in understanding CASE's SOP, among other things, the Staff asked for additional time to file its SOP. The Staff will endeavor to indicate issues that it considers out
18 FPLs Motion at 2 (citing Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-717, 17 NRC 346, 367 (1983)). See also id. (noting that non-expert testimony on a technical issue is accorded no weight).
-of-scope in its testimony and exhibits to the extent that FPL's Motion may not be resolved prior to the Staff's November 10, 2015 filing deadline.
19 See Boards October 19, 2015 Order at 1 (ADAMS Accession No. ML15292A408) (providing CASE additional time to timely file any initial statements of position and written testimony (including exhibits and attachments)). The Staff notes that in light of this, there is no battle of the experts requiring the Board to weigh opposing expert testimony at an evidentiary hearing.
25 FPL's Motion at 8 (citing 10 C.F.R. § 2.319(e) for the proposition that the Board is empowered to restrict such material).
20 See, e.g., Pub. Serv. Elec. & Gas Co. (Salem Nuclear Generating Station, Units 1 and 2),
Respectfully submitted,         /Signed (electronically) by/
ALAB-136, 6 AEC 487, 489 (1973).
Catherine E. Kanatas Counsel for NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O
21 See, e.g., Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 307 n.97 (2010). Notably, this Board has indicated that CASE must adhere to the filing requirements. See, e.g., Boards October 21, 2015 Order at 1 (ADAMS Accession No. ML15294A316) (requiring CASE to properly number its exhibits).
-15 D21  Washington, DC 20555
-0001  (301) 415-2321  E-mail:  catherine.kanatas@nrc.gov Dated at Rockville, MD this 26 th day of October 20 1 5 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
    )        ) FLORIDA POWER & LIGHT COMPANY  ) Docket No. 50
-250-LA        )         50-251-LA (Turkey Point Nuclear Generating
  ) Unit Nos. 3 and 4)
    )  CERTIFICATE OF SERVICE


Pursuant to 10 C.F.R. § 2.305 (revised), I hereby certify that copies of the foregoing "NRC STAFF'S ANSWER TO FLORIDA POWER & LIGHT COMPANY'S MOTION TO STRIKE PORTIONS OF CASE'S 'INITIAL STATEMENT OF POSITION, TESTIMONY, AFFIDAVITS AND EXHIBITS
III.     CASEs SOP and Exhibits Exceed the Limited Scope of the Admitted Contention The Staff agrees with FPL that significant portions of CASEs SOP and exhibits are beyond the limited scope of Contention 1 and are therefore irrelevant and immaterial.22 Contention 1 as admitted was narrowly focused on whether the NRC Staffs Environmental Assessment adequately address[ed] the impact of increased temperature and salinity in the
" OR , IN THE ALTERNATIVE, MOTION IN LIMINE TO EXCLUDE IT AND ITS CITED DOCUMENTS FROM EVIDENCE
[cooling canal system (CCS)] on saltwater intrusion arising from: (1) migration out of the CCS; and (2) the withdrawal of fresh water from surrounding aquifers to mitigate conditions within the CCS.23 Thus, the Board did not contemplate argument on how CCS water may impact the water of Biscayne Bay, the alleged failure of the Staffs Environmental Assessment to address monitoring, or the alleged failure of the Staffs Environmental Assessment to consider the impacts of copper sulfate on crocodiles.24 Thus, the Staff agrees with FPL that the out of scope portions of CASEs SOP and exhibits should be excluded from the hearing record.25 CONCLUSION The Staff supports FPLs Motion to exclude the portions of CASEs SOP and exhibits that are unsupported by an expert or outside the scope of the admitted contention.
" dated October 26, 2015, have been served upon the following persons by the Electronic Information Exchange, the NRC's E-Filin g System, in the above-captioned proceeding, or via electronic mail as indicated by an asterisk, this 26 th day of October, 2015. U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Mail Stop: T
22 FPLs Motion at 8.
-3 F23  Washington, DC 20555
23 LBP-15-13 (slip op. at 24) (emphasis added). See also FPLs Motion at 8 (citing same).
-0001  Michael M. Gibson, Chair Administrative Judge E-mail: michael.gibson@nrc.gov Dr. Michael F. Kennedy Administrative Judge E-mail: michael.kennedy@nrc.gov Dr. William W. Sager Administrative Judge E-mail: william.sager@nrc.gov Nicole Pepperl, Law Clerk E-mail: Nicole.pepperl@nrc.gov  U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Mail Stop: O
24 FPLs Motion at 9 (summarizing out-of-scope arguments made in CASEs SOP). Likewise, the parties did not contemplate such argument. As discussed in the Staffs Unopposed Motion for an Extension of Time for the Filing of Testimony, Exhibits, and Statement of Position (ADAMS Accession No. ML15288A348), given the difficulties in understanding CASEs SOP, among other things, the Staff asked for additional time to file its SOP. The Staff will endeavor to indicate issues that it considers out-of-scope in its testimony and exhibits to the extent that FPLs Motion may not be resolved prior to the Staffs November 10, 2015 filing deadline.
-7H4  Washington, DC 20555
25 FPLs Motion at 8 (citing 10 C.F.R. § 2.319(e) for the proposition that the Board is empowered to restrict such material).
-0001  ocaamail@nrc.gov


U.S. Nuclear Regulatory Commission Office of the Secretary of the Commission Mail Stop: O
Respectfully submitted,
-16C1  Washington, DC 20555
                                  /Signed (electronically) by/
-0001  E-mail: hearingdocket@nrc.gov U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop: O
Catherine E. Kanatas Counsel for NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 (301) 415-2321 E-mail: catherine.kanatas@nrc.gov Dated at Rockville, MD this 26th day of October 2015
-15 D21 Washington, DC 20555
-0001 Brian Harris, Esq.
David Roth, Esq.
Edward Williamson, Esq.
Daniel Straus, Esq.
John Tibbetts, Paralegal E-mail: brian.harris@nrc.gov david.roth@nrc.gov edward.williamson@nrc.gov daniel.straus@nrc.gov john.tibbetts@nrc.gov Florida Power & Light Company  700 Universe Blvd.
Juno Beach, Florida 33408


Nextera Energy Resources William Blair, Esq.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of                                    )
E-mail: william.blair@fpl.com Florida Power & Light Company 801 Pennsylvania Ave. NW Suite 220 Washington, DC 20004 Steven C. Hamrick, Esq.
                                                    )
E-mail: steven.hamrick@fpl.com Citizens Allied for Safe Energy, Inc.*
FLORIDA POWER & LIGHT COMPANY                        )      Docket No. 50-250-LA
10001 SW 129 Terrace
                                                    )                    50-251-LA (Turkey Point Nuclear Generating                    )
Unit Nos. 3 and 4)                                  )
CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305 (revised), I hereby certify that copies of the foregoing NRC STAFFS ANSWER TO FLORIDA POWER & LIGHT COMPANYS MOTION TO STRIKE PORTIONS OF CASES INITIAL STATEMENT OF POSITION, TESTIMONY, AFFIDAVITS AND EXHIBITS OR , IN THE ALTERNATIVE, MOTION IN LIMINE TO EXCLUDE IT AND ITS CITED DOCUMENTS FROM EVIDENCE dated October 26, 2015, have been served upon the following persons by the Electronic Information Exchange, the NRCs E-Filing System, in the above-captioned proceeding, or via electronic mail as indicated by an asterisk, this 26th day of October, 2015.
U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Mail Stop: T-3 F23                                  U.S. Nuclear Regulatory Commission Washington, DC 20555-0001                            Office of the Secretary of the Commission Mail Stop: O-16C1 Michael M. Gibson, Chair                            Washington, DC 20555-0001 Administrative Judge                                E-mail: hearingdocket@nrc.gov E-mail: michael.gibson@nrc.gov U.S. Nuclear Regulatory Commission Dr. Michael F. Kennedy                              Office of the General Counsel Administrative Judge                                Mail Stop: O-15 D21 E-mail: michael.kennedy@nrc.gov                      Washington, DC 20555-0001 Brian Harris, Esq.
Dr. William W. Sager                                David Roth, Esq.
Administrative Judge                                Edward Williamson, Esq.
E-mail: william.sager@nrc.gov                        Daniel Straus, Esq.
John Tibbetts, Paralegal Nicole Pepperl, Law Clerk                            E-mail: brian.harris@nrc.gov E-mail: Nicole.pepperl@nrc.gov                      david.roth@nrc.gov edward.williamson@nrc.gov U.S. Nuclear Regulatory Commission                  daniel.straus@nrc.gov Office of Commission Appellate                      john.tibbetts@nrc.gov Adjudication Mail Stop: O-7H4                                    Florida Power & Light Company Washington, DC 20555-0001                            700 Universe Blvd.
ocaamail@nrc.gov                                    Juno Beach, Florida 33408


Miami, FL 33176 Barry J. White E-mail: bwtamia@bellsouth.net
Nextera Energy Resources          E-mail: steven.hamrick@fpl.com William Blair, Esq.
      /Signed (electronically) by/
E-mail: william.blair@fpl.com      Citizens Allied for Safe Energy, Inc.*
Catherine E. Kanatas Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O
10001 SW 129 Terrace Florida Power & Light Company      Miami, FL 33176 801 Pennsylvania Ave. NW Suite 220 Barry J. White Washington, DC 20004              E-mail: bwtamia@bellsouth.net Steven C. Hamrick, Esq.
-15 D21 Washington, DC 20555
                                  /Signed (electronically) by/
-0001 Telephone: (301) 415
Catherine E. Kanatas Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 Telephone: (301) 415-2321 E-mail: Catherine E. Kanatas Date of Signature: October 26, 2015
-2321 E-mail: Catherine E. Kanatas Date of Signature: October 26, 201 5 October 26, 201 5  UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
        )            ) FLORIDA POWER & LIGHT COMPANY
      ) Docket Nos. 50
-250-LA            )          50-251-LA (Turkey Point Nuclear Generating,      ) Units 3 and 4)
          )  NRC STAFF'S ANSWER TO FLORIDA POWER & LIGHT COMPANY'S MOTION TO STRIKE PORTIONS OF CASE'S "INITIAL STATEMENT OF POSITION, TESTIMONY, AFFIDAVITS AND EXHIBITS" OR, IN THE ALTERNATIVE, MOTION IN LIMINE TO EXCLUDE IT AND ITS CITED DOCUMENTS FROM EVIDENCE INTRODUCTION Pursuant to 10 C.F.R. §§ 2.319, 2.323, 2.337, and the Atomic Safety and Licensing Board's (Board) Initial Scheduling Order of May 8, 201 5, and Order dated October 19, 2015 1 , the staff of the Nuclear Regulatory Commission (Staff) files its answer in support of Florida Power & Light Company's (FPL) motion to strike, or in the alternative, motion in limine (FPL's Motion)2 regarding "Citizens Allied for Safe Energy
[CASE] Initial Statement of Position, Testimony, Affidavits and Exhibits (For January, 2015 Evidentiary Hearing)
." (CASE's SOP)
.3  As discussed below, the material FPL seek s to exclude from the hearing is opinions and exhibits not properly sponsored by an expert and material that exceeds the limited scope of the


1 See Licensing Board Order (Initial Scheduling Order) (May 8, 2015) (unpublished) (Agencywide Documents Access and Management System (ADAMS) Accession No. ML15128A369); Licensing Board Order (Granting Request for Extension of Time) (Oct. 19, 2015) (unpublished) (ADAMS Accession No.
October 26, 2015 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of                                      )
ML15292A408
                                                      )
). 2 [FPL's] Motion to Strike Portions of CASE's "Initial Statement of Position, Testimony, Affidavits and Exhibits, or, in the Alternative, Motion In Limine to Exclude it and its Cited Documents from Evidence (Oct. 19, 201 5) (FPL's Motion)
FLORIDA POWER & LIGHT COMPANY                          )    Docket Nos. 50-250-LA
. 3 CASE's SOP was filed on October 9, 2015 and is available at ADAMS Accession No. ML15286A348. CASE's SOP referenced several attachments, some of which were served on October 9, 2015. Pursuant to the Board's October 19, 2015 Order, CASE served Attachment 2 on October 20, 2015.
                                                      )                    50-251-LA (Turkey Point Nuclear Generating,                      )
admitted contention
Units 3 and 4)                                        )
.4  Although the Staff recognizes that the Board is capable of sorting through CASE's SOP and exhibits for scope and weight, allowing portions of CASE's SOP and exhibits into evidence will result in th e unnecessary expenditure of resources by all parties on issues that are not properly before the Board and create a confusing record on the issues to be decided. Thus, the Staff supports FPL's Motion to exclude portions of CASE's SOP and exhibits.5  T he Staff submits that the Board should exclud e the documents referenced in Table 1 of FPL's Motion, 6 the arguments and exhibits referenced in Table 2 of FPL's Motion
NRC STAFFS ANSWER TO FLORIDA POWER & LIGHT COMPANYS MOTION TO STRIKE PORTIONS OF CASES INITIAL STATEMENT OF POSITION, TESTIMONY, AFFIDAVITS AND EXHIBITS OR, IN THE ALTERNATIVE, MOTION IN LIMINE TO EXCLUDE IT AND ITS CITED DOCUMENTS FROM EVIDENCE INTRODUCTION Pursuant to 10 C.F.R. §§ 2.319, 2.323, 2.337, and the Atomic Safety and Licensing Boards (Board) Initial Scheduling Order of May 8, 2015, and Order dated October 19, 20151, the staff of the Nuclear Regulatory Commission (Staff) files its answer in support of Florida Power & Light Companys (FPL) motion to strike, or in the alternative, motion in limine (FPLs Motion)2 regarding Citizens Allied for Safe Energy [CASE] Initial Statement of Position, Testimony, Affidavits and Exhibits (For January, 2015 Evidentiary Hearing). (CASEs SOP).3 As discussed below, the material FPL seeks to exclude from the hearing is opinions and exhibits not properly sponsored by an expert and material that exceeds the limited scope of the 1 See Licensing Board Order (Initial Scheduling Order) (May 8, 2015) (unpublished) (Agencywide Documents Access and Management System (ADAMS) Accession No. ML15128A369); Licensing Board Order (Granting Request for Extension of Time) (Oct. 19, 2015) (unpublished) (ADAMS Accession No. ML15292A408).
, 7 and CASE's Attachments 1, 2, and 3.
2 [FPLs] Motion to Strike Portions of CASEs Initial Statement of Position, Testimony, Affidavits and Exhibits, or, in the Alternative, Motion In Limine to Exclude it and its Cited Documents from Evidence (Oct. 19, 2015) (FPLs Motion).
8 DISCUSSION I. Legal Standards Governing Motions In Limine In an evidentiary hearing, "[o]nly relevant, material, and reliable evidence which is not unduly repetitious will be admitted. Immaterial or irrelevant parts of an admissible document will be segregated and excluded so far as is practicable."
3 CASEs SOP was filed on October 9, 2015 and is available at ADAMS Accession No. ML15286A348. CASEs SOP referenced several attachments, some of which were served on October 9, 2015. Pursuant to the Boards October 19, 2015 Order, CASE served Attachment 2 on October 20, 2015.
9  While the "strict rules of evidence do not apply to written submissions," the Board "may, on motion or on the presiding officer's own


4 See Citizens Allied for Safe Energy, Inc. Petition to Intervene and Request for a Hearing (Oct. 14, 2014) (ADAMS Accession No. ML14290A510); Memorandum and Order (Granting CASE's Petition to Intervene) (unpublished) (Mar. 23, 2015) (slip op. at 24) (ADAMS Accession No. ML15082A197) (admitting a narrowed and reformulated version of CASE's Contention 1).
admitted contention.4 Although the Staff recognizes that the Board is capable of sorting through CASEs SOP and exhibits for scope and weight, allowing portions of CASEs SOP and exhibits into evidence will result in the unnecessary expenditure of resources by all parties on issues that are not properly before the Board and create a confusing record on the issues to be decided. Thus, the Staff supports FPLs Motion to exclude portions of CASEs SOP and exhibits.5 The Staff submits that the Board should exclude the documents referenced in Table 1 of FPLs Motion,6 the arguments and exhibits referenced in Table 2 of FPLs Motion,7 and CASEs Attachments 1, 2, and 3.8 DISCUSSION I.        Legal Standards Governing Motions In Limine In an evidentiary hearing, [o]nly relevant, material, and reliable evidence which is not unduly repetitious will be admitted. Immaterial or irrelevant parts of an admissible document will be segregated and excluded so far as is practicable.9 While the strict rules of evidence do not apply to written submissions, the Board may, on motion or on the presiding officers own 4 See Citizens Allied for Safe Energy, Inc. Petition to Intervene and Request for a Hearing (Oct.
5 FPL's Motion. See id. at 1 , 4 (stating that CASE's SOP does not contain any sworn testimony)
14, 2014) (ADAMS Accession No. ML14290A510); Memorandum and Order (Granting CASEs Petition to Intervene) (unpublished) (Mar. 23, 2015) (slip op. at 24) (ADAMS Accession No. ML15082A197)
; id. at 1 (noting that "significant portions of the CASE [SOP] and its cited documents raise issues beyond the limited scope of Contention 1 as admitted by the Board in this proceeding.").
(admitting a narrowed and reformulated version of CASEs Contention 1).
6 FPL's Motion at 5
5 FPLs Motion. See id. at 1, 4 (stating that CASEs SOP does not contain any sworn testimony);
-8. 7 Id. at 11-12. 8 See FPL's Motion at 4 (requesting that Attachments 1, 2, and 3 not be included as evidence). The Staff does not object to CASE Attachments 4, 5, and 6, as they are public records documenting matters potentially relevant to the admitted contention.
id. at 1 (noting that significant portions of the CASE [SOP] and its cited documents raise issues beyond the limited scope of Contention 1 as admitted by the Board in this proceeding.).
9 10 C.F.R. § 2.337(a). initiative, strike any portion of a written presentation or a response to a written question that is irrelevant, immaterial, unreliable, duplicative or cumulative."10  NRC hearings are limited to the scope of the admitted contentions. It is well established that if an intervenor proffers testimony or evidence outside the scope of the admitted contentions, it will be excluded.11  As the Commission explained:
6 FPLs Motion at 5-8.
The scope of a contention is limited to issues of law and fact pled with particularity in the intervention petition, including its stated bases, unless the contention is satisfactorily amended in accordance with our rules. Otherwise, NRC adjudications quickly would lose order. Parties and licensing boards must be on notice of the issues being litigated, so that parties and boards may prepare for summary disposition or for hearing. Our procedural rules on contentions are designed to ensure focused and fair proceedings.12 The Commission has stressed that it s "proceedings would prove unmanageable
7 Id. at 11-12.
-and unfair to the other parties
8 See FPLs Motion at 4 (requesting that Attachments 1, 2, and 3 not be included as evidence).
-if an intervenor could freely change an admitted contention
The Staff does not object to CASE Attachments 4, 5, and 6, as they are public records documenting matters potentially relevant to the admitted contention.
'at will as litigation progresses,' 'stretching the scope of admitted contentions beyond their reasonably inferred bounds.'"13  Therefore, petitioners "must raise and reasonably specify at the outset their objections to a license application."14 II. CASE's SOP and Exhibits are Not Supported By an Expert and Should be Excluded The Staff agrees with FPL that CASE's SOP and Attachments 1, 2, and 3 should not be considered pre
9 10 C.F.R. § 2.337(a).
-filed testimony or evidence because they are not appropriately sponsored by a


10 10 C.F.R. § 2.319(d). See also 10 C.F.R. § 2.319(e).
initiative, strike any portion of a written presentation or a response to a written question that is irrelevant, immaterial, unreliable, duplicative or cumulative.10 NRC hearings are limited to the scope of the admitted contentions. It is well established that if an intervenor proffers testimony or evidence outside the scope of the admitted contentions, it will be excluded.11 As the Commission explained:
11 See, e.g., Southern Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), CLI 05, 71 NRC 90, 100 (2010) (agreeing with the Staff that the licensing board had properly excluded the intervenors' testimony and exhibits that were outside the scope of the admitted contention). 12 Id. at 100-01 (internal footnotes omitted).
The scope of a contention is limited to issues of law and fact pled with particularity in the intervention petition, including its stated bases, unless the contention is satisfactorily amended in accordance with our rules. Otherwise, NRC adjudications quickly would lose order. Parties and licensing boards must be on notice of the issues being litigated, so that parties and boards may prepare for summary disposition or for hearing. Our procedural rules on contentions are designed to ensure focused and fair proceedings.12 The Commission has stressed that its proceedings would prove unmanageableand unfair to the other partiesif an intervenor could freely change an admitted contention at will as litigation progresses, stretching the scope of admitted contentions beyond their reasonably inferred bounds.13 Therefore, petitioners must raise and reasonably specify at the outset their objections to a license application.14 II.      CASEs SOP and Exhibits are Not Supported By an Expert and Should be Excluded The Staff agrees with FPL that CASEs SOP and Attachments 1, 2, and 3 should not be considered pre-filed testimony or evidence because they are not appropriately sponsored by a 10 10 C.F.R. § 2.319(d). See also 10 C.F.R. § 2.319(e).
13 Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI 01, 75 NRC 39, 56 (2012) (internal citations omitted).
11 See, e.g., Southern Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), CLI-10-05, 71 NRC 90, 100 (2010) (agreeing with the Staff that the licensing board had properly excluded the intervenors testimony and exhibits that were outside the scope of the admitted contention).
12 Id. at 100-01 (internal footnotes omitted).
13 Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-01, 75 NRC 39, 56 (2012) (internal citations omitted).
14 Id. (internal citations omitted).
14 Id. (internal citations omitted).
qualified expert.15  The Board's Initial Scheduling Order provided the parties clear instructions for submitting initial SOPs, testimony, and affidavits.16  However, CASE's SOP did not meet the NRC's filing requirements.
I n particular, CASE did not provide any testimony or affidavits
.17  As FPL's Motion points out, a non
-expert, like Mr. White, cannot sponsor technical analyses for admission as evidence.18  Moreover, despite being given a chance to cure any defects in its filing s, CASE did not file any written testimony, affidavits, or supported exhibits or attachments by October 20, 2015.19  While pro se intervenors are afforded some latitude,20 the regulations and Board's orders apply with equal force to them to ensure a fair and orderly adjudication.21 15 FPL's Motion at 4 (citing Catawba, CLI 21, 60 NRC at 27).
Id. at n. 18 (noting no objection to Attachments 4, 5, and 6).
16 See Board's Initial Scheduling Order at 7-16 and Attachments A and B. While the Board's October 21, 2015 order directed CASE to correct its filing errors, those corrections regarding numbering and submission of supporting documents will not cure the issues that preclude the exhibits and portions of the SOP from being admitted into evidence.
17 See CASE's SOP at 5 ("CASE has no testimony or affidavits to submit at this time.").
As FPL's Motion points out, CASE also failed to follow the Board's instructions and the Commission's rules regarding the presentation of exhibits). FPL's Motion at 1, 4-5. 18 FPL's Motion at 2 (citing Souther n California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB
-717, 17 NRC 346, 367 (1983)). See also id. (noting that non
-expert testimony on a technical issue is accorded no weight).
19 See Board's October 19, 2015 Order at 1 (ADAMS Accession No. ML15292A408) (providing CASE additional time to timely file any initial statements of position and written testimony (including exhibits and attachments)
). The Staff notes that in light of this, there is no "battle of the experts" requiring the Board to weigh opposing expert testimony at an evidentiary hearing.
20 See, e.g., Pub. Serv. Elec. & Gas Co. (Salem Nuclear Generating Station, Units 1 and 2), ALAB-136, 6 AEC 487, 489 (1973). 21 See, e.g., Entergy Nuclear Generation Co.
& Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI 11, 71 NRC 287, 307 n.97 (2010). Notably, this Board has indicated that CASE must adhere to the filing requirements. See, e.g., Board's October 21, 2015 Order at 1 (ADAMS Accession No. ML15294A316) (requiring CASE to properly number its exhibits).
III. CASE's SOP and Exhibits Exceed the Limited Scope of the Admitted Contention The Staff agrees with FPL that significant portions of CASE
's SOP and exhibits are beyond the limited scope of Contention 1 and are therefore irrelevant and immaterial.22  Contention 1 as admitted was narrowly focused on whether the NRC Staff's Environmental Assessment "adequately address[ed] the impact of increased temperature and salinity in the [cooling canal system (CCS)] on saltwater intrusion arising from: (1) migration out of the CCS; and (2) the withdrawal of fresh water from surrounding aquifers to mitigate conditions within the CCS."23  Thus, the Board did not contemplate argument on how CCS water may impact the water of Biscayne Bay, the alleged failure of the Staff's Environmental Assessment to address monitoring, or the alleged failure of the Staff's Environmental Assessment to consider the impacts of copper sulfate on crocodiles.24  Thus, the Staff agrees with FPL that the out of scope portions of CASE's SOP and exhibits should be excluded from the hearing record
.25 CONCLUSION The Staff supports FPL's Motion to exclude the portions of CASE's SOP and exhibits that are unsupported by an expert or outside the scope of the admitted contention.


22 FPL's Motion at 8.
qualified expert.15 The Boards Initial Scheduling Order provided the parties clear instructions for submitting initial SOPs, testimony, and affidavits.16 However, CASEs SOP did not meet the NRCs filing requirements. In particular, CASE did not provide any testimony or affidavits.17 As FPLs Motion points out, a non-expert, like Mr. White, cannot sponsor technical analyses for admission as evidence.18 Moreover, despite being given a chance to cure any defects in its filings, CASE did not file any written testimony, affidavits, or supported exhibits or attachments by October 20, 2015.19 While pro se intervenors are afforded some latitude,20 the regulations and Boards orders apply with equal force to them to ensure a fair and orderly adjudication.21 15 FPLs Motion at 4 (citing Catawba, CLI-04-21, 60 NRC at 27). Id. at n. 18 (noting no objection to Attachments 4, 5, and 6).
23 LBP-15-13 (slip op. at 24) (emphasis added). See also FPL's Motion at 8 (citing same).
16 See Boards Initial Scheduling Order at 7-16 and Attachments A and B. While the Boards October 21, 2015 order directed CASE to correct its filing errors, those corrections regarding numbering and submission of supporting documents will not cure the issues that preclude the exhibits and portions of the SOP from being admitted into evidence.
24 FPL's Motion at 9 (summarizing out-of-scope arguments made in CASE's SOP).
17 See CASEs SOP at 5 (CASE has no testimony or affidavits to submit at this time.). As FPLs Motion points out, CASE also failed to follow the Boards instructions and the Commissions rules regarding the presentation of exhibits). FPLs Motion at 1, 4-5.
Likewise, the parties did not contemplate such argument. As discussed in the Staff's Unopposed Motion for an Extension of Time for the Filing of Testimony, Exhibits, and Statement of Position (ADAMS Accession No. ML15288A348), given the difficulties in understanding CASE's SOP, among other things, the Staff asked for additional time to file its SOP. The Staff will endeavor to indicate issues that it considers out
18 FPLs Motion at 2 (citing Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-717, 17 NRC 346, 367 (1983)). See also id. (noting that non-expert testimony on a technical issue is accorded no weight).
-of-scope in its testimony and exhibits to the extent that FPL's Motion may not be resolved prior to the Staff's November 10, 2015 filing deadline.
19 See Boards October 19, 2015 Order at 1 (ADAMS Accession No. ML15292A408) (providing CASE additional time to timely file any initial statements of position and written testimony (including exhibits and attachments)). The Staff notes that in light of this, there is no battle of the experts requiring the Board to weigh opposing expert testimony at an evidentiary hearing.
25 FPL's Motion at 8 (citing 10 C.F.R. § 2.319(e) for the proposition that the Board is empowered to restrict such material).
20 See, e.g., Pub. Serv. Elec. & Gas Co. (Salem Nuclear Generating Station, Units 1 and 2),
Respectfully submitted,         /Signed (electronically) by/
ALAB-136, 6 AEC 487, 489 (1973).
Catherine E. Kanatas Counsel for NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O
21 See, e.g., Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 307 n.97 (2010). Notably, this Board has indicated that CASE must adhere to the filing requirements. See, e.g., Boards October 21, 2015 Order at 1 (ADAMS Accession No. ML15294A316) (requiring CASE to properly number its exhibits).
-15 D21  Washington, DC 20555
-0001  (301) 415-2321  E-mail:  catherine.kanatas@nrc.gov Dated at Rockville, MD this 26 th day of October 20 1 5 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of
    )        ) FLORIDA POWER & LIGHT COMPANY  ) Docket No. 50
-250-LA        )         50-251-LA (Turkey Point Nuclear Generating
  ) Unit Nos. 3 and 4)
    )  CERTIFICATE OF SERVICE


Pursuant to 10 C.F.R. § 2.305 (revised), I hereby certify that copies of the foregoing "NRC STAFF'S ANSWER TO FLORIDA POWER & LIGHT COMPANY'S MOTION TO STRIKE PORTIONS OF CASE'S 'INITIAL STATEMENT OF POSITION, TESTIMONY, AFFIDAVITS AND EXHIBITS
III.     CASEs SOP and Exhibits Exceed the Limited Scope of the Admitted Contention The Staff agrees with FPL that significant portions of CASEs SOP and exhibits are beyond the limited scope of Contention 1 and are therefore irrelevant and immaterial.22 Contention 1 as admitted was narrowly focused on whether the NRC Staffs Environmental Assessment adequately address[ed] the impact of increased temperature and salinity in the
" OR , IN THE ALTERNATIVE, MOTION IN LIMINE TO EXCLUDE IT AND ITS CITED DOCUMENTS FROM EVIDENCE
[cooling canal system (CCS)] on saltwater intrusion arising from: (1) migration out of the CCS; and (2) the withdrawal of fresh water from surrounding aquifers to mitigate conditions within the CCS.23 Thus, the Board did not contemplate argument on how CCS water may impact the water of Biscayne Bay, the alleged failure of the Staffs Environmental Assessment to address monitoring, or the alleged failure of the Staffs Environmental Assessment to consider the impacts of copper sulfate on crocodiles.24 Thus, the Staff agrees with FPL that the out of scope portions of CASEs SOP and exhibits should be excluded from the hearing record.25 CONCLUSION The Staff supports FPLs Motion to exclude the portions of CASEs SOP and exhibits that are unsupported by an expert or outside the scope of the admitted contention.
" dated October 26, 2015, have been served upon the following persons by the Electronic Information Exchange, the NRC's E-Filin g System, in the above-captioned proceeding, or via electronic mail as indicated by an asterisk, this 26 th day of October, 2015. U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Mail Stop: T
22 FPLs Motion at 8.
-3 F23  Washington, DC 20555
23 LBP-15-13 (slip op. at 24) (emphasis added). See also FPLs Motion at 8 (citing same).
-0001  Michael M. Gibson, Chair Administrative Judge E-mail: michael.gibson@nrc.gov Dr. Michael F. Kennedy Administrative Judge E-mail: michael.kennedy@nrc.gov Dr. William W. Sager Administrative Judge E-mail: william.sager@nrc.gov Nicole Pepperl, Law Clerk E-mail: Nicole.pepperl@nrc.gov  U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Mail Stop: O
24 FPLs Motion at 9 (summarizing out-of-scope arguments made in CASEs SOP). Likewise, the parties did not contemplate such argument. As discussed in the Staffs Unopposed Motion for an Extension of Time for the Filing of Testimony, Exhibits, and Statement of Position (ADAMS Accession No. ML15288A348), given the difficulties in understanding CASEs SOP, among other things, the Staff asked for additional time to file its SOP. The Staff will endeavor to indicate issues that it considers out-of-scope in its testimony and exhibits to the extent that FPLs Motion may not be resolved prior to the Staffs November 10, 2015 filing deadline.
-7H4  Washington, DC 20555
25 FPLs Motion at 8 (citing 10 C.F.R. § 2.319(e) for the proposition that the Board is empowered to restrict such material).
-0001  ocaamail@nrc.gov


U.S. Nuclear Regulatory Commission Office of the Secretary of the Commission Mail Stop: O
Respectfully submitted,
-16C1  Washington, DC 20555
                                  /Signed (electronically) by/
-0001  E-mail: hearingdocket@nrc.gov U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop: O
Catherine E. Kanatas Counsel for NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 (301) 415-2321 E-mail: catherine.kanatas@nrc.gov Dated at Rockville, MD this 26th day of October 2015
-15 D21 Washington, DC 20555
-0001 Brian Harris, Esq.
David Roth, Esq.
Edward Williamson, Esq.
Daniel Straus, Esq.
John Tibbetts, Paralegal E-mail: brian.harris@nrc.gov david.roth@nrc.gov edward.williamson@nrc.gov daniel.straus@nrc.gov john.tibbetts@nrc.gov Florida Power & Light Company  700 Universe Blvd.
Juno Beach, Florida 33408


Nextera Energy Resources William Blair, Esq.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of                                    )
E-mail: william.blair@fpl.com Florida Power & Light Company 801 Pennsylvania Ave. NW Suite 220 Washington, DC 20004 Steven C. Hamrick, Esq.
                                                    )
E-mail: steven.hamrick@fpl.com Citizens Allied for Safe Energy, Inc.*
FLORIDA POWER & LIGHT COMPANY                        )      Docket No. 50-250-LA
10001 SW 129 Terrace
                                                    )                    50-251-LA (Turkey Point Nuclear Generating                    )
Unit Nos. 3 and 4)                                  )
CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305 (revised), I hereby certify that copies of the foregoing NRC STAFFS ANSWER TO FLORIDA POWER & LIGHT COMPANYS MOTION TO STRIKE PORTIONS OF CASES INITIAL STATEMENT OF POSITION, TESTIMONY, AFFIDAVITS AND EXHIBITS OR , IN THE ALTERNATIVE, MOTION IN LIMINE TO EXCLUDE IT AND ITS CITED DOCUMENTS FROM EVIDENCE dated October 26, 2015, have been served upon the following persons by the Electronic Information Exchange, the NRCs E-Filing System, in the above-captioned proceeding, or via electronic mail as indicated by an asterisk, this 26th day of October, 2015.
U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Mail Stop: T-3 F23                                  U.S. Nuclear Regulatory Commission Washington, DC 20555-0001                            Office of the Secretary of the Commission Mail Stop: O-16C1 Michael M. Gibson, Chair                            Washington, DC 20555-0001 Administrative Judge                                E-mail: hearingdocket@nrc.gov E-mail: michael.gibson@nrc.gov U.S. Nuclear Regulatory Commission Dr. Michael F. Kennedy                              Office of the General Counsel Administrative Judge                                Mail Stop: O-15 D21 E-mail: michael.kennedy@nrc.gov                      Washington, DC 20555-0001 Brian Harris, Esq.
Dr. William W. Sager                                David Roth, Esq.
Administrative Judge                                Edward Williamson, Esq.
E-mail: william.sager@nrc.gov                        Daniel Straus, Esq.
John Tibbetts, Paralegal Nicole Pepperl, Law Clerk                            E-mail: brian.harris@nrc.gov E-mail: Nicole.pepperl@nrc.gov                      david.roth@nrc.gov edward.williamson@nrc.gov U.S. Nuclear Regulatory Commission                  daniel.straus@nrc.gov Office of Commission Appellate                      john.tibbetts@nrc.gov Adjudication Mail Stop: O-7H4                                    Florida Power & Light Company Washington, DC 20555-0001                            700 Universe Blvd.
ocaamail@nrc.gov                                    Juno Beach, Florida 33408


Miami, FL 33176 Barry J. White E-mail: bwtamia@bellsouth.net
Nextera Energy Resources          E-mail: steven.hamrick@fpl.com William Blair, Esq.
      /Signed (electronically) by/
E-mail: william.blair@fpl.com      Citizens Allied for Safe Energy, Inc.*
Catherine E. Kanatas Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O
10001 SW 129 Terrace Florida Power & Light Company      Miami, FL 33176 801 Pennsylvania Ave. NW Suite 220 Barry J. White Washington, DC 20004              E-mail: bwtamia@bellsouth.net Steven C. Hamrick, Esq.
-15 D21 Washington, DC 20555
                                  /Signed (electronically) by/
-0001 Telephone: (301) 415
Catherine E. Kanatas Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 Telephone: (301) 415-2321 E-mail: Catherine E. Kanatas Date of Signature: October 26, 2015}}
-2321 E-mail: Catherine E. Kanatas Date of Signature: October 26, 201 5}}

Latest revision as of 09:13, 5 February 2020

NRC Staff Answer in Support of FPL Motion in Limine
ML15299A026
Person / Time
Site: Turkey Point  NextEra Energy icon.png
Issue date: 10/26/2015
From: Catherine Kanatas
NRC/OGC
To:
Atomic Safety and Licensing Board Panel
SECY RAS
References
50-250-LA, 50-251-LA, ASLBP 15-935-02-LA-BD01, RAS 28432
Download: ML15299A026 (8)
v • d • e


Text

October 26, 2015 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

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

) 50-251-LA (Turkey Point Nuclear Generating, )

Units 3 and 4) )

NRC STAFFS ANSWER TO FLORIDA POWER & LIGHT COMPANYS MOTION TO STRIKE PORTIONS OF CASES INITIAL STATEMENT OF POSITION, TESTIMONY, AFFIDAVITS AND EXHIBITS OR, IN THE ALTERNATIVE, MOTION IN LIMINE TO EXCLUDE IT AND ITS CITED DOCUMENTS FROM EVIDENCE INTRODUCTION Pursuant to 10 C.F.R. §§ 2.319, 2.323, 2.337, and the Atomic Safety and Licensing Boards (Board) Initial Scheduling Order of May 8, 2015, and Order dated October 19, 20151, the staff of the Nuclear Regulatory Commission (Staff) files its answer in support of Florida Power & Light Companys (FPL) motion to strike, or in the alternative, motion in limine (FPLs Motion)2 regarding Citizens Allied for Safe Energy [CASE] Initial Statement of Position, Testimony, Affidavits and Exhibits (For January, 2015 Evidentiary Hearing). (CASEs SOP).3 As discussed below, the material FPL seeks to exclude from the hearing is opinions and exhibits not properly sponsored by an expert and material that exceeds the limited scope of the 1 See Licensing Board Order (Initial Scheduling Order) (May 8, 2015) (unpublished) (Agencywide Documents Access and Management System (ADAMS) Accession No. ML15128A369); Licensing Board Order (Granting Request for Extension of Time) (Oct. 19, 2015) (unpublished) (ADAMS Accession No. ML15292A408).

2 [FPLs] Motion to Strike Portions of CASEs Initial Statement of Position, Testimony, Affidavits and Exhibits, or, in the Alternative, Motion In Limine to Exclude it and its Cited Documents from Evidence (Oct. 19, 2015) (FPLs Motion).

3 CASEs SOP was filed on October 9, 2015 and is available at ADAMS Accession No. ML15286A348. CASEs SOP referenced several attachments, some of which were served on October 9, 2015. Pursuant to the Boards October 19, 2015 Order, CASE served Attachment 2 on October 20, 2015.

admitted contention.4 Although the Staff recognizes that the Board is capable of sorting through CASEs SOP and exhibits for scope and weight, allowing portions of CASEs SOP and exhibits into evidence will result in the unnecessary expenditure of resources by all parties on issues that are not properly before the Board and create a confusing record on the issues to be decided. Thus, the Staff supports FPLs Motion to exclude portions of CASEs SOP and exhibits.5 The Staff submits that the Board should exclude the documents referenced in Table 1 of FPLs Motion,6 the arguments and exhibits referenced in Table 2 of FPLs Motion,7 and CASEs Attachments 1, 2, and 3.8 DISCUSSION I. Legal Standards Governing Motions In Limine In an evidentiary hearing, [o]nly relevant, material, and reliable evidence which is not unduly repetitious will be admitted. Immaterial or irrelevant parts of an admissible document will be segregated and excluded so far as is practicable.9 While the strict rules of evidence do not apply to written submissions, the Board may, on motion or on the presiding officers own 4 See Citizens Allied for Safe Energy, Inc. Petition to Intervene and Request for a Hearing (Oct.

14, 2014) (ADAMS Accession No. ML14290A510); Memorandum and Order (Granting CASEs Petition to Intervene) (unpublished) (Mar. 23, 2015) (slip op. at 24) (ADAMS Accession No. ML15082A197)

(admitting a narrowed and reformulated version of CASEs Contention 1).

5 FPLs Motion. See id. at 1, 4 (stating that CASEs SOP does not contain any sworn testimony);

id. at 1 (noting that significant portions of the CASE [SOP] and its cited documents raise issues beyond the limited scope of Contention 1 as admitted by the Board in this proceeding.).

6 FPLs Motion at 5-8.

7 Id. at 11-12.

8 See FPLs Motion at 4 (requesting that Attachments 1, 2, and 3 not be included as evidence).

The Staff does not object to CASE Attachments 4, 5, and 6, as they are public records documenting matters potentially relevant to the admitted contention.

9 10 C.F.R. § 2.337(a).

initiative, strike any portion of a written presentation or a response to a written question that is irrelevant, immaterial, unreliable, duplicative or cumulative.10 NRC hearings are limited to the scope of the admitted contentions. It is well established that if an intervenor proffers testimony or evidence outside the scope of the admitted contentions, it will be excluded.11 As the Commission explained:

The scope of a contention is limited to issues of law and fact pled with particularity in the intervention petition, including its stated bases, unless the contention is satisfactorily amended in accordance with our rules. Otherwise, NRC adjudications quickly would lose order. Parties and licensing boards must be on notice of the issues being litigated, so that parties and boards may prepare for summary disposition or for hearing. Our procedural rules on contentions are designed to ensure focused and fair proceedings.12 The Commission has stressed that its proceedings would prove unmanageableand unfair to the other partiesif an intervenor could freely change an admitted contention at will as litigation progresses, stretching the scope of admitted contentions beyond their reasonably inferred bounds.13 Therefore, petitioners must raise and reasonably specify at the outset their objections to a license application.14 II. CASEs SOP and Exhibits are Not Supported By an Expert and Should be Excluded The Staff agrees with FPL that CASEs SOP and Attachments 1, 2, and 3 should not be considered pre-filed testimony or evidence because they are not appropriately sponsored by a 10 10 C.F.R. § 2.319(d). See also 10 C.F.R. § 2.319(e).

11 See, e.g., Southern Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), CLI-10-05, 71 NRC 90, 100 (2010) (agreeing with the Staff that the licensing board had properly excluded the intervenors testimony and exhibits that were outside the scope of the admitted contention).

12 Id. at 100-01 (internal footnotes omitted).

13 Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-01, 75 NRC 39, 56 (2012) (internal citations omitted).

14 Id. (internal citations omitted).

qualified expert.15 The Boards Initial Scheduling Order provided the parties clear instructions for submitting initial SOPs, testimony, and affidavits.16 However, CASEs SOP did not meet the NRCs filing requirements. In particular, CASE did not provide any testimony or affidavits.17 As FPLs Motion points out, a non-expert, like Mr. White, cannot sponsor technical analyses for admission as evidence.18 Moreover, despite being given a chance to cure any defects in its filings, CASE did not file any written testimony, affidavits, or supported exhibits or attachments by October 20, 2015.19 While pro se intervenors are afforded some latitude,20 the regulations and Boards orders apply with equal force to them to ensure a fair and orderly adjudication.21 15 FPLs Motion at 4 (citing Catawba, CLI-04-21, 60 NRC at 27). Id. at n. 18 (noting no objection to Attachments 4, 5, and 6).

16 See Boards Initial Scheduling Order at 7-16 and Attachments A and B. While the Boards October 21, 2015 order directed CASE to correct its filing errors, those corrections regarding numbering and submission of supporting documents will not cure the issues that preclude the exhibits and portions of the SOP from being admitted into evidence.

17 See CASEs SOP at 5 (CASE has no testimony or affidavits to submit at this time.). As FPLs Motion points out, CASE also failed to follow the Boards instructions and the Commissions rules regarding the presentation of exhibits). FPLs Motion at 1, 4-5.

18 FPLs Motion at 2 (citing Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-717, 17 NRC 346, 367 (1983)). See also id. (noting that non-expert testimony on a technical issue is accorded no weight).

19 See Boards October 19, 2015 Order at 1 (ADAMS Accession No. ML15292A408) (providing CASE additional time to timely file any initial statements of position and written testimony (including exhibits and attachments)). The Staff notes that in light of this, there is no battle of the experts requiring the Board to weigh opposing expert testimony at an evidentiary hearing.

20 See, e.g., Pub. Serv. Elec. & Gas Co. (Salem Nuclear Generating Station, Units 1 and 2),

ALAB-136, 6 AEC 487, 489 (1973).

21 See, e.g., Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 307 n.97 (2010). Notably, this Board has indicated that CASE must adhere to the filing requirements. See, e.g., Boards October 21, 2015 Order at 1 (ADAMS Accession No. ML15294A316) (requiring CASE to properly number its exhibits).

III. CASEs SOP and Exhibits Exceed the Limited Scope of the Admitted Contention The Staff agrees with FPL that significant portions of CASEs SOP and exhibits are beyond the limited scope of Contention 1 and are therefore irrelevant and immaterial.22 Contention 1 as admitted was narrowly focused on whether the NRC Staffs Environmental Assessment adequately address[ed] the impact of increased temperature and salinity in the

[cooling canal system (CCS)] on saltwater intrusion arising from: (1) migration out of the CCS; and (2) the withdrawal of fresh water from surrounding aquifers to mitigate conditions within the CCS.23 Thus, the Board did not contemplate argument on how CCS water may impact the water of Biscayne Bay, the alleged failure of the Staffs Environmental Assessment to address monitoring, or the alleged failure of the Staffs Environmental Assessment to consider the impacts of copper sulfate on crocodiles.24 Thus, the Staff agrees with FPL that the out of scope portions of CASEs SOP and exhibits should be excluded from the hearing record.25 CONCLUSION The Staff supports FPLs Motion to exclude the portions of CASEs SOP and exhibits that are unsupported by an expert or outside the scope of the admitted contention.

22 FPLs Motion at 8.

23 LBP-15-13 (slip op. at 24) (emphasis added). See also FPLs Motion at 8 (citing same).

24 FPLs Motion at 9 (summarizing out-of-scope arguments made in CASEs SOP). Likewise, the parties did not contemplate such argument. As discussed in the Staffs Unopposed Motion for an Extension of Time for the Filing of Testimony, Exhibits, and Statement of Position (ADAMS Accession No. ML15288A348), given the difficulties in understanding CASEs SOP, among other things, the Staff asked for additional time to file its SOP. The Staff will endeavor to indicate issues that it considers out-of-scope in its testimony and exhibits to the extent that FPLs Motion may not be resolved prior to the Staffs November 10, 2015 filing deadline.

25 FPLs Motion at 8 (citing 10 C.F.R. § 2.319(e) for the proposition that the Board is empowered to restrict such material).

Respectfully submitted,

/Signed (electronically) by/

Catherine E. Kanatas Counsel for NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 (301) 415-2321 E-mail: catherine.kanatas@nrc.gov Dated at Rockville, MD this 26th day of October 2015

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

)

FLORIDA POWER & LIGHT COMPANY ) Docket No. 50-250-LA

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

Unit Nos. 3 and 4) )

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305 (revised), I hereby certify that copies of the foregoing NRC STAFFS ANSWER TO FLORIDA POWER & LIGHT COMPANYS MOTION TO STRIKE PORTIONS OF CASES INITIAL STATEMENT OF POSITION, TESTIMONY, AFFIDAVITS AND EXHIBITS OR , IN THE ALTERNATIVE, MOTION IN LIMINE TO EXCLUDE IT AND ITS CITED DOCUMENTS FROM EVIDENCE dated October 26, 2015, have been served upon the following persons by the Electronic Information Exchange, the NRCs E-Filing System, in the above-captioned proceeding, or via electronic mail as indicated by an asterisk, this 26th day of October, 2015.

U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Mail Stop: T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Office of the Secretary of the Commission Mail Stop: O-16C1 Michael M. Gibson, Chair Washington, DC 20555-0001 Administrative Judge E-mail: hearingdocket@nrc.gov E-mail: michael.gibson@nrc.gov U.S. Nuclear Regulatory Commission Dr. Michael F. Kennedy Office of the General Counsel Administrative Judge Mail Stop: O-15 D21 E-mail: michael.kennedy@nrc.gov Washington, DC 20555-0001 Brian Harris, Esq.

Dr. William W. Sager David Roth, Esq.

Administrative Judge Edward Williamson, Esq.

E-mail: william.sager@nrc.gov Daniel Straus, Esq.

John Tibbetts, Paralegal Nicole Pepperl, Law Clerk E-mail: brian.harris@nrc.gov E-mail: Nicole.pepperl@nrc.gov david.roth@nrc.gov edward.williamson@nrc.gov U.S. Nuclear Regulatory Commission daniel.straus@nrc.gov Office of Commission Appellate john.tibbetts@nrc.gov Adjudication Mail Stop: O-7H4 Florida Power & Light Company Washington, DC 20555-0001 700 Universe Blvd.

ocaamail@nrc.gov Juno Beach, Florida 33408

Nextera Energy Resources E-mail: steven.hamrick@fpl.com William Blair, Esq.

E-mail: william.blair@fpl.com Citizens Allied for Safe Energy, Inc.*

10001 SW 129 Terrace Florida Power & Light Company Miami, FL 33176 801 Pennsylvania Ave. NW Suite 220 Barry J. White Washington, DC 20004 E-mail: bwtamia@bellsouth.net Steven C. Hamrick, Esq.

/Signed (electronically) by/

Catherine E. Kanatas Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 Telephone: (301) 415-2321 E-mail: Catherine E. Kanatas Date of Signature: October 26, 2015

October 26, 2015 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

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

) 50-251-LA (Turkey Point Nuclear Generating, )

Units 3 and 4) )

NRC STAFFS ANSWER TO FLORIDA POWER & LIGHT COMPANYS MOTION TO STRIKE PORTIONS OF CASES INITIAL STATEMENT OF POSITION, TESTIMONY, AFFIDAVITS AND EXHIBITS OR, IN THE ALTERNATIVE, MOTION IN LIMINE TO EXCLUDE IT AND ITS CITED DOCUMENTS FROM EVIDENCE INTRODUCTION Pursuant to 10 C.F.R. §§ 2.319, 2.323, 2.337, and the Atomic Safety and Licensing Boards (Board) Initial Scheduling Order of May 8, 2015, and Order dated October 19, 20151, the staff of the Nuclear Regulatory Commission (Staff) files its answer in support of Florida Power & Light Companys (FPL) motion to strike, or in the alternative, motion in limine (FPLs Motion)2 regarding Citizens Allied for Safe Energy [CASE] Initial Statement of Position, Testimony, Affidavits and Exhibits (For January, 2015 Evidentiary Hearing). (CASEs SOP).3 As discussed below, the material FPL seeks to exclude from the hearing is opinions and exhibits not properly sponsored by an expert and material that exceeds the limited scope of the 1 See Licensing Board Order (Initial Scheduling Order) (May 8, 2015) (unpublished) (Agencywide Documents Access and Management System (ADAMS) Accession No. ML15128A369); Licensing Board Order (Granting Request for Extension of Time) (Oct. 19, 2015) (unpublished) (ADAMS Accession No. ML15292A408).

2 [FPLs] Motion to Strike Portions of CASEs Initial Statement of Position, Testimony, Affidavits and Exhibits, or, in the Alternative, Motion In Limine to Exclude it and its Cited Documents from Evidence (Oct. 19, 2015) (FPLs Motion).

3 CASEs SOP was filed on October 9, 2015 and is available at ADAMS Accession No. ML15286A348. CASEs SOP referenced several attachments, some of which were served on October 9, 2015. Pursuant to the Boards October 19, 2015 Order, CASE served Attachment 2 on October 20, 2015.

admitted contention.4 Although the Staff recognizes that the Board is capable of sorting through CASEs SOP and exhibits for scope and weight, allowing portions of CASEs SOP and exhibits into evidence will result in the unnecessary expenditure of resources by all parties on issues that are not properly before the Board and create a confusing record on the issues to be decided. Thus, the Staff supports FPLs Motion to exclude portions of CASEs SOP and exhibits.5 The Staff submits that the Board should exclude the documents referenced in Table 1 of FPLs Motion,6 the arguments and exhibits referenced in Table 2 of FPLs Motion,7 and CASEs Attachments 1, 2, and 3.8 DISCUSSION I. Legal Standards Governing Motions In Limine In an evidentiary hearing, [o]nly relevant, material, and reliable evidence which is not unduly repetitious will be admitted. Immaterial or irrelevant parts of an admissible document will be segregated and excluded so far as is practicable.9 While the strict rules of evidence do not apply to written submissions, the Board may, on motion or on the presiding officers own 4 See Citizens Allied for Safe Energy, Inc. Petition to Intervene and Request for a Hearing (Oct.

14, 2014) (ADAMS Accession No. ML14290A510); Memorandum and Order (Granting CASEs Petition to Intervene) (unpublished) (Mar. 23, 2015) (slip op. at 24) (ADAMS Accession No. ML15082A197)

(admitting a narrowed and reformulated version of CASEs Contention 1).

5 FPLs Motion. See id. at 1, 4 (stating that CASEs SOP does not contain any sworn testimony);

id. at 1 (noting that significant portions of the CASE [SOP] and its cited documents raise issues beyond the limited scope of Contention 1 as admitted by the Board in this proceeding.).

6 FPLs Motion at 5-8.

7 Id. at 11-12.

8 See FPLs Motion at 4 (requesting that Attachments 1, 2, and 3 not be included as evidence).

The Staff does not object to CASE Attachments 4, 5, and 6, as they are public records documenting matters potentially relevant to the admitted contention.

9 10 C.F.R. § 2.337(a).

initiative, strike any portion of a written presentation or a response to a written question that is irrelevant, immaterial, unreliable, duplicative or cumulative.10 NRC hearings are limited to the scope of the admitted contentions. It is well established that if an intervenor proffers testimony or evidence outside the scope of the admitted contentions, it will be excluded.11 As the Commission explained:

The scope of a contention is limited to issues of law and fact pled with particularity in the intervention petition, including its stated bases, unless the contention is satisfactorily amended in accordance with our rules. Otherwise, NRC adjudications quickly would lose order. Parties and licensing boards must be on notice of the issues being litigated, so that parties and boards may prepare for summary disposition or for hearing. Our procedural rules on contentions are designed to ensure focused and fair proceedings.12 The Commission has stressed that its proceedings would prove unmanageableand unfair to the other partiesif an intervenor could freely change an admitted contention at will as litigation progresses, stretching the scope of admitted contentions beyond their reasonably inferred bounds.13 Therefore, petitioners must raise and reasonably specify at the outset their objections to a license application.14 II. CASEs SOP and Exhibits are Not Supported By an Expert and Should be Excluded The Staff agrees with FPL that CASEs SOP and Attachments 1, 2, and 3 should not be considered pre-filed testimony or evidence because they are not appropriately sponsored by a 10 10 C.F.R. § 2.319(d). See also 10 C.F.R. § 2.319(e).

11 See, e.g., Southern Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), CLI-10-05, 71 NRC 90, 100 (2010) (agreeing with the Staff that the licensing board had properly excluded the intervenors testimony and exhibits that were outside the scope of the admitted contention).

12 Id. at 100-01 (internal footnotes omitted).

13 Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-01, 75 NRC 39, 56 (2012) (internal citations omitted).

14 Id. (internal citations omitted).

qualified expert.15 The Boards Initial Scheduling Order provided the parties clear instructions for submitting initial SOPs, testimony, and affidavits.16 However, CASEs SOP did not meet the NRCs filing requirements. In particular, CASE did not provide any testimony or affidavits.17 As FPLs Motion points out, a non-expert, like Mr. White, cannot sponsor technical analyses for admission as evidence.18 Moreover, despite being given a chance to cure any defects in its filings, CASE did not file any written testimony, affidavits, or supported exhibits or attachments by October 20, 2015.19 While pro se intervenors are afforded some latitude,20 the regulations and Boards orders apply with equal force to them to ensure a fair and orderly adjudication.21 15 FPLs Motion at 4 (citing Catawba, CLI-04-21, 60 NRC at 27). Id. at n. 18 (noting no objection to Attachments 4, 5, and 6).

16 See Boards Initial Scheduling Order at 7-16 and Attachments A and B. While the Boards October 21, 2015 order directed CASE to correct its filing errors, those corrections regarding numbering and submission of supporting documents will not cure the issues that preclude the exhibits and portions of the SOP from being admitted into evidence.

17 See CASEs SOP at 5 (CASE has no testimony or affidavits to submit at this time.). As FPLs Motion points out, CASE also failed to follow the Boards instructions and the Commissions rules regarding the presentation of exhibits). FPLs Motion at 1, 4-5.

18 FPLs Motion at 2 (citing Southern California Edison Co. (San Onofre Nuclear Generating Station, Units 2 and 3), ALAB-717, 17 NRC 346, 367 (1983)). See also id. (noting that non-expert testimony on a technical issue is accorded no weight).

19 See Boards October 19, 2015 Order at 1 (ADAMS Accession No. ML15292A408) (providing CASE additional time to timely file any initial statements of position and written testimony (including exhibits and attachments)). The Staff notes that in light of this, there is no battle of the experts requiring the Board to weigh opposing expert testimony at an evidentiary hearing.

20 See, e.g., Pub. Serv. Elec. & Gas Co. (Salem Nuclear Generating Station, Units 1 and 2),

ALAB-136, 6 AEC 487, 489 (1973).

21 See, e.g., Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 307 n.97 (2010). Notably, this Board has indicated that CASE must adhere to the filing requirements. See, e.g., Boards October 21, 2015 Order at 1 (ADAMS Accession No. ML15294A316) (requiring CASE to properly number its exhibits).

III. CASEs SOP and Exhibits Exceed the Limited Scope of the Admitted Contention The Staff agrees with FPL that significant portions of CASEs SOP and exhibits are beyond the limited scope of Contention 1 and are therefore irrelevant and immaterial.22 Contention 1 as admitted was narrowly focused on whether the NRC Staffs Environmental Assessment adequately address[ed] the impact of increased temperature and salinity in the

[cooling canal system (CCS)] on saltwater intrusion arising from: (1) migration out of the CCS; and (2) the withdrawal of fresh water from surrounding aquifers to mitigate conditions within the CCS.23 Thus, the Board did not contemplate argument on how CCS water may impact the water of Biscayne Bay, the alleged failure of the Staffs Environmental Assessment to address monitoring, or the alleged failure of the Staffs Environmental Assessment to consider the impacts of copper sulfate on crocodiles.24 Thus, the Staff agrees with FPL that the out of scope portions of CASEs SOP and exhibits should be excluded from the hearing record.25 CONCLUSION The Staff supports FPLs Motion to exclude the portions of CASEs SOP and exhibits that are unsupported by an expert or outside the scope of the admitted contention.

22 FPLs Motion at 8.

23 LBP-15-13 (slip op. at 24) (emphasis added). See also FPLs Motion at 8 (citing same).

24 FPLs Motion at 9 (summarizing out-of-scope arguments made in CASEs SOP). Likewise, the parties did not contemplate such argument. As discussed in the Staffs Unopposed Motion for an Extension of Time for the Filing of Testimony, Exhibits, and Statement of Position (ADAMS Accession No. ML15288A348), given the difficulties in understanding CASEs SOP, among other things, the Staff asked for additional time to file its SOP. The Staff will endeavor to indicate issues that it considers out-of-scope in its testimony and exhibits to the extent that FPLs Motion may not be resolved prior to the Staffs November 10, 2015 filing deadline.

25 FPLs Motion at 8 (citing 10 C.F.R. § 2.319(e) for the proposition that the Board is empowered to restrict such material).

Respectfully submitted,

/Signed (electronically) by/

Catherine E. Kanatas Counsel for NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 (301) 415-2321 E-mail: catherine.kanatas@nrc.gov Dated at Rockville, MD this 26th day of October 2015

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

)

FLORIDA POWER & LIGHT COMPANY ) Docket No. 50-250-LA

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

Unit Nos. 3 and 4) )

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305 (revised), I hereby certify that copies of the foregoing NRC STAFFS ANSWER TO FLORIDA POWER & LIGHT COMPANYS MOTION TO STRIKE PORTIONS OF CASES INITIAL STATEMENT OF POSITION, TESTIMONY, AFFIDAVITS AND EXHIBITS OR , IN THE ALTERNATIVE, MOTION IN LIMINE TO EXCLUDE IT AND ITS CITED DOCUMENTS FROM EVIDENCE dated October 26, 2015, have been served upon the following persons by the Electronic Information Exchange, the NRCs E-Filing System, in the above-captioned proceeding, or via electronic mail as indicated by an asterisk, this 26th day of October, 2015.

U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Mail Stop: T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Office of the Secretary of the Commission Mail Stop: O-16C1 Michael M. Gibson, Chair Washington, DC 20555-0001 Administrative Judge E-mail: hearingdocket@nrc.gov E-mail: michael.gibson@nrc.gov U.S. Nuclear Regulatory Commission Dr. Michael F. Kennedy Office of the General Counsel Administrative Judge Mail Stop: O-15 D21 E-mail: michael.kennedy@nrc.gov Washington, DC 20555-0001 Brian Harris, Esq.

Dr. William W. Sager David Roth, Esq.

Administrative Judge Edward Williamson, Esq.

E-mail: william.sager@nrc.gov Daniel Straus, Esq.

John Tibbetts, Paralegal Nicole Pepperl, Law Clerk E-mail: brian.harris@nrc.gov E-mail: Nicole.pepperl@nrc.gov david.roth@nrc.gov edward.williamson@nrc.gov U.S. Nuclear Regulatory Commission daniel.straus@nrc.gov Office of Commission Appellate john.tibbetts@nrc.gov Adjudication Mail Stop: O-7H4 Florida Power & Light Company Washington, DC 20555-0001 700 Universe Blvd.

ocaamail@nrc.gov Juno Beach, Florida 33408

Nextera Energy Resources E-mail: steven.hamrick@fpl.com William Blair, Esq.

E-mail: william.blair@fpl.com Citizens Allied for Safe Energy, Inc.*

10001 SW 129 Terrace Florida Power & Light Company Miami, FL 33176 801 Pennsylvania Ave. NW Suite 220 Barry J. White Washington, DC 20004 E-mail: bwtamia@bellsouth.net Steven C. Hamrick, Esq.

/Signed (electronically) by/

Catherine E. Kanatas Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 Telephone: (301) 415-2321 E-mail: Catherine E. Kanatas Date of Signature: October 26, 2015

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