ML18274A396

Petitioners Answer to FPL Motion to Strike

ML18274A396
Person / Time
Site:	Turkey Point
Issue date:	10/01/2018
From:	Ayres R, Fettus G, Rotenberg E, Rumelt K Ayres Law Group, LLP, Friends of the Earth, Miami Waterkeeper, Natural Resources Defense Council, Super Law Group, Vermont Law School
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-250-SLR, 50-251-SLR, License Renewal, RAS 54526
Download: ML18274A396 (9)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of: FLORIDA POWER & LIGHT COMPANY (Turkey Point Nuclear Generating Station, Unit Nos. 3 and 4) (Subsequent License Renewal Application) ) ) ) ) ) ) ) ) Docket No. 50-250 Docket No. 50-251 October 1, 2018 FRIENDS OF THE EARTH, NATURAL RESOURCES DEFENSE COUNCIL, AND TO STRIKE PORTIONS OF THE SEPTEMBER 10, 2018 REPLY FILED BY FRIENDS OF THE EARTH, NATURAL RESOURCES DEFENSE COUNCIL, AND MIAMI WATERKEEPER OR, IN THE ALTERNATIVE, FOR LEAVE TO FILE A SURREPLY Pursuant to 10 C.F.R. § 2.323(c), Friends of the Earth, Inc., Natural Resources Defense Council, Inc. hereby submit this answer in opposition to the motion by requesting the Board to strike portions of the Reply in Support of Request for Hearing and Petition to Intervene 1 or, in the alternative, for leave to file a surreply 2 INTRODUCTION in the Reply that 10 C.F.R. 1 Reply in Support of Request for Hearing and Petition to Intervene Submitted by Friends of the Earth, Natural Resources Defense Council, and Miami 2 Motion to Strike Portions of the September 10, 2018 Reply Filed by Friends of the Earth, Natural Resources Defense Council, and Miami Waterkeeper or, in the Alternative, For Leave to File a Surreply (Sep. 20, 2018) Motion 2 § 51.53(c)(3), which by its terms , does not apply to this proceeding regarding an application for a subsequent license renewal. Applicant makes this request even though (a) Petitioners raised this very issue in its Petition and (b) NRC Staff saw fit to respond at length to the argument in its Answer. FPL claims that it was not afforded a fair 51.53(c)(3). But i§ only be characterized as disingenuous. Whatever the reason for issue in its Petition. Commission case law is clear that a reply may (1) amplify arguments made in the initial petition and (2) respond to arginitial petition. The principle undergirding this rule is meant to ensure that parties to the proceeding . misguided interpretation of this rule, however, Petitioners would be denied a fair opportunity to 51.53(c)(3)requirements regarding environmental reviewapplies to this proceeding. The Board should ARGUMENT I. Each Issue Addressed in Reply is Within the Scope of Issues that a Reply May Permissibly Address.

3 3 Each case law regarding the issues that a reply may permissibly address. A. The Reply legitimately amplifies arguments presented in the Petition. s that Petitioners did not raise the issue of § 51.53(c)(3)applicability to this proceeding, the Petition itself makes clear that in fact Petitioners did raise the in the Reply. The Petition directly raised the issue by highlighting that § 51.53(c)(3) applies to applications for an it is not established that § 51.53(c)(3) applies to an application for a subsequent license renewal such as this one.4 The Petition then made in the alternative that the ER fails to comply with § 51.53(c)(1) and (2).5 this argument in the Reply by marshaling the plain language of the regulation, as well other authorities, to argue that § 51.53(c)(3) does not 3 In the Matter of Nuclear Mgmt. Co., LLC (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727, 732 (2006). 4 Petition at 16 n.71. 5 Id. codified in 10 C.F.R. § 51.53(c)(3) and Table B--2. ns is far setting forth requirements ).

4 apply to subsequent license renewals.6 The rule governing the scope of issues that can be raised in a reply new 7 The rule does not prohibit a party (as Petitioners have done here) from expanding and amplifying on arguments that appeared in the initial petition.8 B. Even if the Board concludes that the Reply does not legitimately amplify arguments presented in the Petition, the Reply fairly and appropriately responds to a legal In its Answer the NRC Staff argued, over the course of five pages, that § 51.53(c)(3) applies to initial and subsequent license renewals.9 Petitioners from responding to this argument. Commission case law provides that a Reply may permissibly include informa . . . raised in the answers to [the petition]10 practice make clear that replies should address legal or logical arguments presented in the applicant/licensee or NRC staff answer11 Applicant concedes that the NRC Staff asserted this legal argument in its Answer, but nonetheless asserts that Petitioners do not have a right to 6 -13, 53. 7 Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-25, 60 NRC 223, 225 (2004) (arguments may not be raised for the first time in a reply brief 8 Id. 9 NRC Staff Answer at 18-23 & n.76; see also id. at 24-to subsequent license renewals). 10 Palisades, CLI-06-17, 63 NRC at 732 Replies must focus narrowly on the legal or factual arguments first presented in the original petition or raised in the answers to it.see also In the Matter of Nuclear Mgmt. Co., LLC (Palisades Nuclear Plant), ASLBP 05-842-03-LR, 63 NRC 314, 329 (2006), affirmed by CLI-06-17, 63 NRC 727 (noting that under the § 11 Changes to Adjudicatory Process Reg. 2182, 2203 (Jan. 14, 2004).

5 respond to that argument.12 Applicant bases this assertion on two grounds, neither of which have merit. confirmsPart 51, including § 51.53(c)(3), applies to this proceeding (rather than affirmatively argues that position), Petitioners are barred from responding to that argument.13 That claim is erroneous. The NRC Staff took the unequivocal position that § 51.53(c)(3) applies to this proceeding, and relied on legal authority (albeit legal authority that does not support their position). That is a legal argument, and Petitioners have the right to respond to it.14 first 15 In other words, Applicant argues that because Petitioners first raised the issue of § Answers to the position, does not apply. The logic underlying this argument is head-spinning, and the Board should reject it. As a matter of logic, it is inescapable that either Petitioners first raised the argument in the Petition (in which case Petitioners NRC Staff first raised it (in which case Petitioners have the right to respond). 12 Motion at 11-12. 13 Motion at 11 (emphasis added). 14 Palisades, CLI-06-17, 63 NRC at 732 the legal or factual arguments. . . raised in the answers t 15 Motion at 11 (quoting Palisades, CLI-06-17, 63 NRC at 732) (emphasis added).

6 this issue, it is clear that (1) the Petition raised the issue16; (2) NRC Staff argued in its Answer that, as a legal matter, § 51.53(c)(3) applies to this proceeding17; and (3) Petitioners responded to that argument in its Reply.18 Nothing in C. Applicant was afforded regarding the applicability of 10 C.F.R. § 51.53(c)(3). meant to ensure that the reply does unfairly deprive other participants of an opportunity to rebut . . . new claims.19 Applicant the applicability of § by responding to that argumentfailure to respond to the argument and instead move to strike it does not entitle Applicant to the relief it seeks. position would stand on its head the rule governing which issues can be addressed in a reply. Applicant would have the Board prohibit Petitioners from responding to an argument comprising a sAs Applicant itself asserts, however, an opportunity to respond to an argument.20 According to Applicant, this rule applies to benefit itself, but not Petitioners. That is not the law. The Board should reject this effort as contrary to Commission case law. 16 Petition at 16 n.71. 17 NRC Staff Answer at 20 n.76; see also id. at 18-28. 18 -13, 53. 19 Palisades, CLI-06-17, 63 NRC at 732. 20 Motion at 7 (quoting USEC, Inc. (American Centrifuge Plant), CLI-06-9, 63 NRC 433, 439 (2006)).

7 II. The Board Should Address This Issue. The issue of whether § 51.53(c)(3) applies to applications for initial renewed licenses (as Applicant asserts) is application at issue here is the first subsequent license renewal application submitted to the NRC. Thus, this proceeding is the first time that an NRC adjudicatory body has been directly confronted with the issue of the scope of § FPL would have the Board ignore this issue and simply presume, without addressing the issue with the attention it deserves, that § 51.53(c)(3) applies to subsequent license renewals (despite its plain language limiting its scope to initial license renewals only). The Board should reject that invitation and address this important issue. CONCLUSION For the reasons stated above, the Board should . Respectfully submitted, /s/ Richard Ayres /s/ Geoffrey H. Fettus Richard Ayres Geoffrey H. Fettus AYRES LAW GROUP LLP NATURAL RESOURCES DEFENSE COUNCIL 1401 K Street, NW, Suite 850 1152 15th Street, NW, Suite 300 Washington, DC 20005 Washington, DC 20005 202-744-6930 202-289-2371 ayresr@ayreslawgroup.com gfettus@nrdc.org Counsel for Natural Resources Defense Council /s/ Ken Rumelt /s/ Edan Rotenberg Ken Rumelt Edan Rotenberg Vermont Law School SUPER LAW GROUP, LLC 164 Chelsea Street, PO Box 96 180 Maiden Lane, Suite 603 South Royalton, VT 05068 New York, New York 10038 8 802-831-1000 212-242-2355, Ext. 2 krumelt@vermontlaw.edu edan@superlawgroup.com Counsel for Friends of the Earth Counsel for Miami Waterkeeper Filed this 1st day of October, 2018 9 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of: FLORIDA POWER & LIGHT COMPANY (Turkey Point Nuclear Generating Station, Unit Nos. 3 and 4) (Subsequent License Renewal Application) ) ) ) ) ) ) ) ) Docket No. 50-250 Docket No. 50-251 October 1, 2018 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § Answer Friends of the Earth, Natural Resources Defense Council, and Miami Waterkeeper or, in the Alternative, for Leave to File a Surreply-Filing System), in the above-captioned docket, which to the best of my knowledge resulted in transmittal of same to those on the EIE Service List for the captioned proceeding. /Signed (electronically) by/ Geoffrey H. Fettus Senior Attorney Natural Resources Defense Council 1152 15th Street, N.W., Suite 300 Washington, D.C. 20005 (202) 289-2371 gfettus@nrdc.org Counsel for Natural Resources Defense Council October 1, 2018