ML15107A413
| ML15107A413 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 04/17/2015 |
| From: | Blair W, Hamrick S Florida Power & Light Co |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-250-LA, 50-251-LA, ASLBP 15-935-02-LA-BD01, RAS 27530 | |
| Download: ML15107A413 (7) | |
Text
April 17, 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 Units 3 and 4) )
) ASLBP No. 15-935-02-LA-BD01 FLORIDA POWER & LIGHT COMPANYS MOTION TO STAY HEARING PENDING COMMISSION REVIEW OF ITS APPEAL Pursuant to 10 C.F.R. § 2.323, Florida Power & Light Company hereby moves the Atomic Safety and Licensing Board (Board) to stay adjudication of the instant case and Citizens Allied for Safe Energy, Inc. (CASE) Contention 1 pending Commission consideration of appeals of LBP-15-13 filed by FPL and the NRC Staff on April 17, 2015. On April 13, 2015, four days before the timely appeal deadline of the Boards March 23, 2015, Order granting CASEs petition to intervene and admitting a modified contention for hearing,1 the Board issued a tentative scheduling order. This order calls for a hearing to be held as early as this summer, with Initial Statements of Position and Written Testimony to be filed by June 22, 2015. Order (Providing Tentative Schedule and Case Management Information) (April 13, 2015) at 7. In light of this scheduling Order and the appeals filed today by FPL and the NRC Staff, FPL respectfully requests the Board to stay the now rapidly-approaching hearing pending Commission review of the appeals, because, in addition to affording very little time for discovery and general 1
LBP-15-13, 81 NRC __, __ (slip op. at 2) (Mar 23, 2015).
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hearing preparation,2 the Boards expedited schedule would moot any potential relief otherwise available to FPL or the NRC Staff under 10 C.F.R. § 2.311.
Because 10 C.F.R. § 2.323 contains no standards by which to decide stay motions, FPL turns instead for guidance to the general stay standards in subsection (e) of section 2.342 (Stays of decisions), which governs requests for stays of initial decisions.
Sequoyah Fuels Corporation and General Atomics (Gore, Oklahoma Site) CLI-94-9, 40 NRC 1, 6 (1994). Under that standard, a party must make four showings to obtain a stay:
likelihood of success on the merits, irreparable harm, absence of harm to others, and the public interest. 10 C.F.R. § 2.342(e). Irreparable harm is the most important of the four standards the sine qua non of obtaining a stay. Entergy Nuclear Vermont Yankee LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station) CLI 08, 63 NRC 235, 238 (2006) (citing USA Recycling, Inc. v. Town of Babylon, 66 F.3d 1272, 1295 (2d Cir. 1995)).
As is more fully described in the brief accompanying its appeal, FPL does not believe that a hearing is warranted in this case. Contrary to the established requirements of judicial standing, the Board in LBP-15-13 found that CASE demonstrated standing even though it offered no connection between the contested license amendment and the alleged injuries from FPLs water withdrawals or identified any withdrawal that may either reduce freshwater in the surficial aquifer or exacerbate saltwater intrusion. See FPL Appeal at 8-18. Further, the Board impermissibly reformulated CASEs contention from an out-of-scope challenge to FPLs previous extended power uprate into a challenge 2
Discovery in this case may involve a significant number of documents and the Boards proposed schedule provides very little time to produce those documents and even less time for the parties to evaluate and incorporate them prior to submitting their initial positions and testimony.
2
to the NRC Staffs consideration of saltwater intrusion in its Environmental Assessment.
Id. at 20-22. Further, CASE Contention 1 is not supported by either facts or expert opinion, does not demonstrate a genuine dispute with the NRCs Environmental Assessment, and does not show that the issues it raises are material. Id. at 22-27. For all of these reasons, described more fully in our brief before the Commission, FPL is likely to succeed in its appeal of LBP-15-13. And FPL is not alone in concluding that the Boards Order was in error, as the NRC Staff has also filed an appeal.
However, even though FPL is likely to succeed on the merits, its appeal will be fruitless absent some action to stay the hearing. Normally in the case of an appeal under 10 C.F.R. § 2.311, there are many months or even years remaining before the NRC Staffs review documents are complete and a hearing can be scheduled. In such circumstances, there is sufficient time for the Commission to consider an appeal prior to a hearing being scheduled. In this case, however, the NRCs licensing action has already occurred and the Boards expedited schedule calls for a hearing beginning in less than three months. It is likely in this case that an improperly granted hearing could be completed prior to the Commission issuing a decision on FPLs appeal. This outcome would irreparably harm FPL by depriving it of the procedural right to obtain meaningful interlocutory review of the Boards decision granting CASEs hearing request.
No party will be harmed by a stay of this proceeding. If CASE is ultimately successful in reformulated Contention 1 and the Board determines that the NRCs Environmental Assessment (EA) is inadequate, the relief available to CASE would involve supplementation of the NRCs EA. Nine months have passed since the NRC issued the license amendment. And at least six more will pass before the Board 3
concludes a hearing, even under its proposed expedited schedule. CASE would not be harmed by waiting an additional few months for potential retroactive supplementation of the NRCs EA.
Finally, the public interest counsels in favor of a stay. There is no public interest in holding an unnecessary hearing. Moreover, FPL is participating in numerous hearings on related matters at the Florida Department of Environmental Protection (FDEP) and the South Florida Water Management District (SFWMD) this summer on many of the substantive issues related to CASEs concern. There are obvious resource constraints caused by participating in several hearings on related subject matter at the same time.3 But, more importantly, final adjudication of issues at the state and local level can clarify many issues prior to an NRC hearing. For instance, the FDEP will hold a hearing on a Site Certification modification that would allow construction and operation of new Floridan aquifer wells. Without this modification, these new wells cannot be operated.
The FDEP will also hold a hearing on a third party challenge to the 2014 Administrative Order that requires FPL to mitigate salinity in the Cooling Canals. Similarly, the SFWMD has provided an opportunity for a hearing on FPLs recent request for authorization to permanently utilize excess surface water from the L-31 E canal. All of these challenges are expected to be heard this summer. It makes little sense for the NRC to hold a hearing speculating on FPLs potential water withdrawals and salinity mitigation measures, while, at the very same time the relevant jurisdictional regulators are holding hearings on the authority of FPL to carry out many of those same actions. In the event the Board ultimately rules that the EA requires supplementation, having final 3
For instance, though FPL has not yet identified experts to participate in this proceeding, there will likely be substantial overlap between those called to testify before the Board, and those participating in the three Florida hearings this summer.
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adjudicatory decisions from the state and local regulators delineating FPLs authority for future water withdrawals will greatly simplify any required supplementation.
For the foregoing reasons, FPL requests that the Board stay the hearing on CASE Contention 1 until the Commission has ruled on the appeals.
CERTIFICATION I certify that I have made a sincere effort to contact the other parties in this proceeding, to explain to them the factual and legal issues raised in this motion, and to resolve those issues, and I certify that my efforts have been unsuccessful.
Respectfully Submitted, Signed (electronically) by Steven Hamrick Steven C. Hamrick Florida Power & Light Company 801 Pennsylvania Avenue, N.W. Suite 220 Washington, DC 20004 steven.hamrick@fpl.com 202-349-3496 William S. Blair Florida Power & Light Company 700 Universe Blvd.
Juno Beach, Florida 33408 william.blair@fpl.com 561-304-5238 April 17, 2015 COUNSEL FOR FLORIDA POWER & LIGHT COMPANY 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 Units 3 and 4) )
) ASLBP No. 15-935-02-LA-BD01 CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing Florida Power & Light Companys Motion To Stay Hearing Pending Commission Review of Its Appeal, were provided to the Electronic Information Exchange for service to those individuals listed below and others on the service list in this proceeding, and via e-mail to those marked with an asterisk.
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of the General Counsel Mail Stop: T-3F23 Mail Stop: O-15D21 Washington, DC 20555-0001 Washington, DC 20555-0001 Michael M. Gibson, Chair Brian Harris, Esq.
Dr. William W. Sager David Roth, Esq.
Dr. Michael F. Kennedy Christina England, Esq.
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Office of the Secretary of the Commission Mail Stop: O-16C1 Mail Stop: O-16C1 Washington, DC 20555-0001 Washington, DC 20555-0001 OCAA Mail Center Hearing Docket E-mail: ocaamail@nrc.gov E-mail: hearingdocket@nrc.gov Barry White*
Citizens Allied for Safe Energy, Inc.
1001 SW 129 Terrace Miami, FL 33176
Signed (electronically) by, Steven C. Hamrick Florida Power & Light Company 801 Pennsylvania Avenue, N.W. Suite 220 Washington, DC 20004 steven.hamrick@fpl.com 202-349-3496 Dated at Washington, DC this 17th day of April, 2015 2