ML18274A410
| ML18274A410 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 10/01/2018 |
| From: | Ayres R, Fettus G Friends of the Earth, Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP, Miami Waterkeeper, Natural Resources Defense Council, Southern Alliance for Clean Energy, Super Law Group, Vermont Law School |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| Shared Package | |
| ML18274A408 | List: |
| References | |
| 50-250-SLR, 50-251-SLR, License Renewal, RAS 54528 | |
| Download: ML18274A410 (7) | |
Text
1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
FLORIDA POWER & LIGHT COMPANY
(Turkey Point Nuclear Generating Station, Unit Nos.
3 and 4)
(Subsequent License Renewal Application)
) )
)
)
)
)
)
)
Docket No. 50-250-SLR
Docket No. 50-251-SLR
October 1, 2018 MOTION FOR LEAVE TO RESPOND TO APPLICANT'S SURREPPLY INTRODUCTION In accordance with 10 C.F.R. § 2.323(a)(2), the Natural Resources Defense Council, Friends of the Earth, Miami Waterkeepers, and S outhern Alliance for Clean Energy (collectively, "Petitioners") file this joint motion for leave to respond to Florida Power & Light Company's
("Applicant's" or "FPL's") Motion for Leave to file a Surreply, made on September 20th, 2018.
1 Necessity and fairness require an opportunity for Petitioners to respond to Applicant's Surreply, as explained below and in the pr oposed response to the Surreply.
1 See Applicant's Motion to Strike Po rtion of Southern Alliance fo r Clean Energy's Reply or, in the Alternative, for Leave to File a Surrepl y (Sept. 20, 2011); Applicant's 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 th e Alternative File a Su rreply (Sept. 20, 2018).
[hereinafter Motions for Proposed Surreply]. Petitioners did not oppose FPL's motion for leave to file the proposed surreply, but waived no righ ts to file the instant Motion for Leave.
2 DISCUSSION The Commission has explained that "extra filings" such as surreplies, while not explicitly permitted by NRC regulations, may be considered on a case-by-case basis "where necessity or
fairness dictates."
2 Here, necessity and fairness weigh strongly in favor of providing Petitioners an opportunity to respond new arguments in FPL's Surreply because: (1) Petitioners have not had an opportunity to respond to these arguments, and (2) Petitioners' response is necessary for a complete record of a significant issue. In its Surreply, the Applicant makes a new argument that to fully a pply all the words of 10 C.F.R. § 51.53(c)(3) would crea te an "absurd" or "unintende d" result, and therefore the ASLB should make a particular exception to th e plain language doctrine under specific judicial precedents.
3 This argument has not been made by any other party. Petitioners seek an opportunity to respond to FPL's argument that the judicial standard for making an exception to the plain language doctrine applies in the particular circumstances of this case. By any measure, the question of whether 10 C.F.R. § 51.53(c)(3) applies to applications for initial renewed licenses only (as the regulati on's plain language provides) or whether it applies to all renewed licenses (as Applicant asse rts) is integral to the NRC's adjudication of subsequent license renewal appli cations, and would therefore benefit from a complete record. The application at issue here is the first subsequent license renewal application submitted to the 2 U.S. Dep't of Energy (High-Level Waste Repository), CLI-08-12, 67 N.R.C. 386, 393 (2008).
3 Applicant's Surreply To New Arguments Raised in Reply Pleadings (Sep. 20, 2018)
("Surreply"), at 4 (citing United States v. Granderson , 511 U.S. 39, 47 n.5 (1994); Pub. Citizen
- v. Dep't of Justice , 491 U.S. 440, 454 (1989); United States v. Mendoza , 565 F.2d 1285, 1288 (5th Cir. 1978)).
3 NRC. Thus, this proceeding is the first time that an NRC adjudicatory body has been directly confronted with the issue of the scope of 10 C.F.R.
§ 51.53(c)(3)'s applicability. The Commission's Statement of Policy on the Conduct of Adjudicatory Proceedings emphasizes the importance of ensuring a fair and thorough hearing process and establishing a full, fair, and adequate record.
4 The Board and Commission would only benefit from Petitioners' Response because it will foster more complete record, and is limited to the new arguments found within the Applicant's Surreply.
5 Fairness demands the provision of such an opportunity, and necessity commands the establishment of a full record. Accordingly, Joint Petitioners respectfully request the Board grant leave to file Petitioners' proposed Response to the Surreply, att ached hereto.
Respectfully submitted, 4 Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 18-19 (1998); Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-81-08, 13 NRC 452, 453 (1981).
5 Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 18-19 (1998) ("the Commission's objectives are to provide a fair hearing process, to avoid unnecessary delays in the NRC's review and hear ing processes, and to produce an informed adjudicatory record that supports agency decision making on matters related to the NRC's responsibilities for protecting public health and safety, the common defense and security, and the environment.") (emphasis added);
see attached Petitioners' Response to Applicant's Surreply (Oct. 1, 2018).
/s/ Richard E. Ayres Richard E. Ayres FRIENDS OF THE EARTH COUNCIL 2923 Foxhall Road, N.W.
Washington, D.C. 20016 E-mail: ayresr@ayreslawgroup.com
/s/ Geoffrey Fettus Geoffrey Fettus NATURAL RESOURCES DEFENSE COUNCIL 1152 15th Street, NW, Suite 300
Washington, DC 20005
202-289-2371
gfettus@nrdc.org Counsel for Natural Resources Defense
Counci l 4
/s/ Ken Rumelt Ken Rumelt Vermont Law School ENVIRONMENTAL & NATURAL
RESOURCES LAW CLINIC
164 Chelsea Street, PO Box 96
South Royalton, VT 05068
802-831-1000 krumelt@vermontlaw.edu
Counsel for Friends of the Earth
/s/ Edan Rotenberg Edan Rotenberg SUPER LAW GROUP, LLC
180 Maiden Lane, Suite 603
212-242-2355, Ext. 2
edan@superlawgroup.com Counsel for Miami Waterkeeper
/s/ Diane Curran Diane Curran HARMON, CURRAN, SPIELBERG, &
EISENBERG, L.L.P.
1725 DeSales Street N.W., Suite 500
Washington, D.C. 20036 240-393-9285 dcurran@harmoncurran.com October 1, 2018 5 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 Gene rating Station, Unit Nos. 3 and 4)
(Subsequent License Renewal Application)
) )
)
)
)
)
)
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Docket No. 50-250
Docket No. 50-251
October 1, 2018 CERTIFICATE OF CONSULTATION Counsel for Southern Alliance for Clean Ener gy, Friends of the Earth, Natural Resources Defense Council, and Miami Waterkeeper (colle ctively "Petitioners")
certify that under 10 C.F.R. § 2.323(b), they contacted Florida Po wer & Light Company ("FPL") and the U.S. Nuclear Regulatory Commission ("NRC") Staff in a sincere effort to obtain their consent to Petitioners' Response to FPL's Surreply. Counsel for FPL and NRC Staff represented that they oppose Petitioners' Motion for Leave to Respond to Applicant's Surreply. Respectfully submitted, /s/ Richard E. Ayres Richard E. Ayres FRIENDS OF THE EARTH COUNCIL
2923 Foxhall Road, N.W.
Washington, D.C. 20016 E-mail: ayresr@ayreslawgroup.com
/s/ Geoffrey Fettus Geoffrey Fettus NATURAL RESOURCES DEFENSE
COUNCIL 1152 15th Street, NW, Suite 300
Washington, DC 20005
202-289-2371
gfettus@nrdc.org Counsel for Natural Resources Defense
Council /s/ Ken Rumelt Ken Rumelt Vermont Law School ENVIRONMENTAL & NATURAL
RESOURCES LAW CLINIC
164 Chelsea Street, PO Box 96
South Royalton, VT 05068
802-831-1000 krumelt@vermontlaw.edu
Counsel f or Friends o f the Earth
/s/ Edan Rotenberg Edan Rotenberg SUPER LAW GROUP, LLC
180 Maiden Lane, Suite 603
212-242-2355, Ext. 2
edan@superlawgroup.com Counsel for Miami Waterkeeper
6
/s/ Diane Curran Diane Curran HARMON, CURRAN, SPIELBERG, &
EISENBERG, L.L.P.
1725 DeSales Street N.W., Suite 500
Washington, D.C. 20036
240-393-9285 dcurran@harmoncurran.com Counsel for SACE
7 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
_____________________________________
)
In the Matter of )
Florida Power and Light Company ) Docket Nos. 50-250/251-SLR Turkey Point Units 3 and 4 )
_____________________________________)
CERTIFICATE OF SERVICE I certify that on October 1, 2018, I posted copies of the foregoing Motion for Leave to Respond to Applicant's Surreply on the NRC's Electronic Information Exchange System.
___/signed electr onically by/__
Diane Curran