ML16204A330
| ML16204A330 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 07/22/2016 |
| 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, LBP-16-08, RAS 51231 | |
| Download: ML16204A330 (30) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of )
) Docket No. 50-250-LA Florida Power & Light Company ) 50-251-LA
)
(Turkey Point Units 3 and 4) ) ASLBP No. 15-935-02-LA-BD01 FLORIDA POWER & LIGHT COMPANYS ANSWER OPPOSING CASES PETITION FOR REVIEW OF LBP-16-08 William S. Blair Steven C. Hamrick Florida Power & Light Company Florida Power & Light Company 700 Universe Blvd. 801 Pennsylvania Avenue, N.W. Suite 220 Juno Beach, Florida 33408 Washington, DC 20004 william.blair@fpl.com steven.hamrick@fpl.com 561-304-5238 202-349-3496 Counsel for Florida Power & Light Company
TABLE OF CONTENTS I. INTRODUCTION 1 II. STATEMENT OF THE CASE 2 A. Factual Background Regarding the Turkey Point Cooling Canal System 2 B. FPLs License Amendment Application and the NRCs Environmental Review 6 C. Preliminary Matters and the Hearing 7 D. The Boards Initial Decision in LBP-16-08 10 III. STANDARD OF REVIEW 13 IV. THE COMMISSION SHOULD DENY CASES PETITION FOR REVIEW 14 A. CASE Identifies No Legal Error in the Boards Decision 15 B. The Boards Factual Determinations Regarding Environmental Impacts are Fully Supported by Record Evidence 20 V. CONCLUSION 25 i
TABLE OF AUTHORITIES Court Cases Friends of the River v. Fed. Energy Regulatory Commn, 720 F.2d 93 (D.C. Cir.
1983) ............................................................................................................................. 16 Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719 (3rd Cir.) (1989) ........................... 17 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989))........................ 18, 19 Commission Cases AmerGen Energy Co. (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235 (2009). .................................................................................................................... 14 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), CLI-11-14, 74 NRC 801 (2011) ..................................................................................................................... 18 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), CLI-15-6, 81 NRC 388 (2015) ............................................................................................................... 16, 17 Florida Power & Light Company (Turkey Point Units 3 and 4), LBP-16-08, 83 NRC
__, (May 31, 2015). .............................................................................................. passsim Florida Power & Light Company (Turkey Point Units 3 and 4), CLI-15-25, 82 NRC
___, (Dec. 17, 2015). ................................................................................................ 7, 18 Florida Power & Light Company (Turkey Point Units 3 and 4), LBP-15-13, 81 NRC 456 (2015). ...................................................................................................... 1, 7, 15, 18 Honeywell International, Inc. (Metropolis Works Uranium Conversion Facility),
CLI-13-1, 77 NRC 1 (2013)). ....................................................................................... 14 Hydro Res., Inc. (P.O. Box 777, Crownpoint, NM 87313), CLI-06-1, 63 NRC 1 (2006). ........................................................................................................................... 14 Louisiana Energy Servs. (National Enrichment Facility), LBP-05-13, 61 NRC 385 (2005) ............................................................................................................................ 17 Pacific Gas and Electric Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation), CLI-08-26, 68 NRC 509 (2008) ................................................. 17 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
CLI-03-2, 57 NRC 19, 29 (2003) ................................................................................ 20 Paina Hawaii, L.L.C., CLI-10-18, 72 NRC 56 (2010). ................................................. 16 ii
Phila. Electric Co. (Limerick Generating Station, Units 1 & 2), ALAB-262, 1 NRC 16 (1975) ....................................................................................................................... 16 Phila. Electric Co. (Limerick Generating Company, Units 1 and 2), ALAB-819, 22 NRC 681 (1985)............................................................................................................ 17 Phila. Electric Co. (Limerick Generating Company, Units 1 and 2) CLI-86-5, 23 NRC 125 (1986)............................................................................................................ 17 Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-03-8, 58 NRC 11 (2003).............................................................................................................. 13 Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), CLI-05-1, 61 NRC 160 (2005)............................................................................................................ 14 Progress Energy Florida, Inc. (Levy County Nuclear Power Plant, Units 1 and 2),
LBP-13-14, 77 NRC 107 (2013) .................................................................................. 19 Shaw Areva MOX Services, LLC (Mixed Oxide Fuel Fabrication Facility Possession and Use License) CLI-15-09, 81 NRC 512 (2015) ................................................. 14, 20 Shaw Areva MOX Services, LLC (Mixed Oxide Fuel Fabrication Facility), CLI-09-2, 69 NRC 55 (2009 .......................................................................................................... 18 Shieldalloy Metallurgical Corp. (License Amendment Request for Decommissioning of the Newfield, New Jersey Facility), CLI-07-20, 65 NRC 499 (2007). .................... 13 Strata Energy, Inc. (Ross In Situ Recovery Project), CLI-16-13, 83 NRC __, (Jun.
29, 2016). ...................................................................................................................... 16 Strata Energy, Inc. (Ross In Situ Recovery Project), LBP-15-3, 81 NRC 65 (2015) ...... 17 USEC, Inc., (American Centrifuge Plant), CLI-06-9, 63 NRC 433 (2006 ......................... 2 Unpublished Orders Order (Denying CASEs Application for Subpoenas) (Nov. 12, 2015). ............................ 8 Order (Denying Application for Subpoenas, Denying Motion for Summary Disposition, and Granting in Part and Denying in Part Motions to Strike) (Dec. 22, 2015) ................................................................................................................. 10, 15, 24 Regulations 10 C.F.R. § 2.341 .................................................................................................... 1, 13, 16 40 C.F.R. § 1508.9. ........................................................................................................... 16 iii
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of )
) Docket No. 50-250-LA Florida Power & Light Company ) 50-251-LA
)
(Turkey Point Units 3 and 4) ) ASLBP No. 15-935-02-LA-BD01 FLORIDA POWER & LIGHT COMPANYS ANSWER OPPOSING CASES PETITION FOR REVIEW OF LBP-16-08 I. INTRODUCTION Pursuant to 10 C.F.R. § 2.341(b)(3), Florida Power & Light Company (FPL) responds in opposition to the Petition for Review (Petition) filed by Citizens Allied for Safe Energy (CASE) on June 27, 2016. The Petition seeks review of the Atomic Safety and Licensing Boards Initial Decision in LBP-16-08, which ruled on CASE Contention 1, the sole admitted contention in this proceeding.1 The contention challenged the NRC Staffs Environmental Assessment (EA) of FPLs request to amend the licenses for Turkey Point Units 3 and 4 to allow a four-degree-higher ultimate heat sink (UHS) temperature limit. As admitted, Contention 1 alleged:
The NRCs environmental assessment, in support of its finding of no significant impact related to the 2014 Turkey Point Units 3 and 4 license amendments, does not adequately address 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.2 1
Florida Power & Light Company (Turkey Point Units 3 and 4), LBP-16-08, 83 NRC __, (May 31, 2016).
2 Florida Power & Light Company (Turkey Point Units 3 and 4), LBP-15-13, 81 NRC 456, 476 (2015).
1
CASEs Petition demonstrates its fundamental misunderstanding of the NRCs hearing process and its regulations implementing the National Environmental Policy Act (NEPA). The Boards decision followed a full evidentiary hearing during which CASE had ample opportunity to provide testimony or other reliable evidence relevant to its contention. It did not. Nevertheless, CASE now asks the Commission to overturn the Boards decision but fails to identify any factual, legal, or prejudicial procedural errors in it. The Boards decision is consistent with the evidentiary record developed during the hearing and is in keeping with longstanding Commission precedent regarding supplementation of NEPA documents via hearings.3 Because CASE does not present a substantial question for review, the Commission should summarily deny its Petition.
II. STATEMENT OF THE CASE A. Factual Background Regarding the Turkey Point Cooling Canal System The Turkey Point CCS was constructed following a 1971 federal consent order, which instructed FPL to build a system to provide cooling water to Turkey Point Units 1-4 that would be closed to interaction with other surface waters.4 The CCS provides heat removal capacity for Units 1, 3, and 4 and also serves as the ultimate heat sink for nuclear 3
FPL disagrees with the Boards initial determination that the NRCs EA was insufficient. Because the Board ultimately concluded that the license amendment at issue will not exacerbate saltwater intrusion and NEPA documents must address environmental impacts in proportion to their significance, it seems clear that the NRCs EA did not need to address this issue in the detail expected by the Board. See USEC, Inc., (American Centrifuge Plant), CLI-06-9, 63 NRC 433, 440 (2006). Nevertheless, there should be no question that the EA, as supplemented by the hearing record, is sufficient to satisfy NEPA.
4 Initial Written Testimony of Florida Power & Light Company Witnesses Steve Scroggs, Jim Bolleter, and Pete Andersen on Contention 1 (Nov. 10, 2015) (FPL Testimony) (Exh. FPL-001) at 11-12 (A21);
NRC Staff Testimony of Audrey L. Klett, Briana A. Grange, William Ford, and Nicholas P. Hobbs Concerning Contention 1 (Nov. 10, 2015) (NRC Staff Testimony) (Exh. NRC-001) at 19 (A11).
2
Units 3 and 4 in the Design Basis Accident analysis.5 Heat from the plants that is released to the CCS is dissipated to the atmosphere primarily through evaporation.6 The evaporated water leaves behind constituents, primarily sodium and chloride, which account for its salinity.7 The evaporated water is replaced mostly by rainfall, with a smaller portion provided by saline groundwater inflow from beneath Biscayne Bay.8 The process of evaporating salt water makes the cooling canals hypersaline, i.e., more saline than seawater.9 The local groundwater system contains three major components: (1) the surficial aquifer system (Biscayne Aquifer); (2) an intermediate confining bed; and (3) the Floridan aquifer system.10 Because of the confining bed, there is little or no interaction between the water of the Biscayne and Floridan Aquifers.11 Due to the presence of Biscayne Bay and the Atlantic Ocean, the Biscayne Aquifer is saline offshore and near the coast.12 The saltwater extends inland for several miles, with the greatest intrusion proportional to depth (because saltwater is dense and tends to sink).13 The saltwater interface at the base of the aquifer is approximately 6 to 8 miles inland (west) of the Turkey Point area and preceded the construction of Turkey Point.14 Drinking water for 5
FPL Testimony at 12 (A21). Unit 2 has been retired.
6 Id. at 14 (A25).
7 Id.; NRC Staff Testimony at 27 (A29).
8 FPL Testimony at 14 (A25). See also Hearing Transcript (Tr.) at 367-68 (Andersen).
9 FPL Testimony at 13-14 (A24, A25); NRC Staff Testimony at 27 (A29); Tr. at 460-461 (Andersen, Scroggs).
10 FPL Testimony at 19 (A32); NRC Staff Testimony at 21 (A13), 24 (A19).
11 NRC Staff Testimony at 24 (A19), 26 (A23); FPL Testimony at 19-21 (A32), 51 (A82); Tr. at 431-33 (Ford); Tr. at 434 (Andersen).
12 FPL Testimony at 19-20 (A32); see also NRC Staff Testimony at 23-24 (A17).
13 FPL Testimony at 20 (A32).
14 Id.; see also id. at 21 (A34); NRC Staff Testimony at 24 (A18).
3
much of southeast Florida is obtained from wells sunk into the Biscayne Aquifer, but these are some distance onshore, where the aquifer contains freshwater.15 Below the Biscayne Aquifer and the underlying confining unit, is the Floridan Aquifer.16 At Turkey Point, the top of this aquifer is approximately 1000 feet beneath land surface.17 In this area, the Upper Floridan Aquifer is brackish.18 An exchange of water exists between the CCS and the Biscayne Aquifer because the canals are unlined.19 In addition to groundwater inflows into the CCS, dense saline water in the CCS sinks down into the underlying portion of the aquifer.20 Once the dense CCS water reaches the confining layer it can no longer continue down and so begins to spread out laterally.21 In this way, some water that originated in the CCS has migrated to the west.22 Because of the potential for CCS water to spread westward, FPL has long worked with the SFWMD and its predecessor agency to limit this movement.23 More recently, state agencies reviewed FPLs 2008 application to uprate Units 3 and 4 and required the establishment of an Uprate Monitoring Program that would provide information to determine the vertical and horizontal effects, and extent, of saline CCS 15 FPL Testimony at 20 (A32); NRC Staff Testimony at 23 (A16).
16 FPL Testimony at 19-20 (A32).
17 Id.
18 FPL Testimony at 48 (A80).
19 NRC Staff Testimony at 17 (A10); FPL Testimony at 35 (A57).
20 FPL Testimony at 35 (A58); NRC Staff Testimony at 28 (A30).
21 NRC Staff Testimony at 28 (A30), 24 (A19).
22 FPL Testimony at 36 (A58); see also NRC Staff Testimony at 50 (A74).
23 FPL Testimony at 25 (A40); NRC Staff Testimony at 19 (A11).
4
water on existing and projected surface and groundwater resources, and ecological conditions surrounding the Turkey Point Facility.24 In 2013, based on the results of the Uprate Monitoring Program, the SFWMD indicated in a letter to FPL that water from the CCS had migrated outside the geographic boundaries of the CCS.25 This initiated a nearly two-year consultation period, which concluded with the issuance of an Administrative Order (AO) by the Florida Department of Environmental Protection in December 2014.26 The AO sought to abate the westward movement of hypersaline water from the CCS.27 Modeling performed by FPL and the SFWMD indicated that reducing CCS salinities could moderate westward movement of CCS water.28 Therefore, the AO required FPL to submit a salinity management plan that would enable it to reduce salinity in the CCS to at least 34 PSU within 4 years.29 FPL did not challenge the AO and plans to comply with it by introducing up to 14 MGD of brackish water (significantly less salty than CCS water) from the Upper Floridan Aquifer into the CCS in order to reduce its salinity.30 24 FPL Testimony at 26 (A42).
25 FPL Testimony at 36 (A59); (citing Exh. FPL-026, Letter from SFWMD to FPL dated April 16, 2013 Consultation Pursuant to the October 14, 2009 Fifth Supplemental Agreement between the SFWMD and FPL). The movement of hypersaline CCS water west of the CCS into the already saline Biscayne Aquifer is related to but conceptually distinct from the movement of the interface between saline water and fresh water 6-8 miles inland. Tr. at 547 (Scroggs).
26 FPL Testimony at 36 (A59); CASE Exhibit INT-004, Florida Dept Env. Prot. Administrative Order.
27 FPL Testimony at 37 (A60); AO at 4 ¶25-27, 6 ¶37.
28 FPL Testimony at 41-43 (A69-A71); AO at 5, ¶28-32.
29 FPL Testimony at 37 (A60); AO at 6, ¶37b. This is approximately the salinity of seawater.
30 FPL Testimony at 37-38 (A61, A63). While awaiting final permitting authority to utilize Upper Floridan Aquifer water, FPL temporarily used saline water from the Biscayne Aquifer and excess stormwater from the L-31 E canal for CCS remediation.
5
B. FPLs License Amendment Application and the NRCs Environmental Review In the summer of 2014, environmental conditions, including extraordinary algae growth in the CCS and unseasonably dry weather among other factors, resulted in UHS temperatures approaching the 100°F Technical Specification (TS) limit. Consequently, on July 10, 2014, FPL requested the NRC to increase the UHS temperature limit in TS 3.7.4. Declining to exercise a categorical exclusion from NEPA, the NRC Staff decided to prepare an EA for the license amendment due to a special circumstance, the presence of the American crocodile.31 The NRC published the EA on July 31, 2014.32 It concluded that the UHS license amendment would not have a significant environmental impact and so the NRC also included a formal finding of no significant impact for the NRCs action. Having also determined that the amendment involved no significant hazards considerations and that the criteria for exigent consideration were met, the NRC issued the amendment on August 8, 2014.33 CASE subsequently requested a hearing, submitting four contentions.34 FPL and the NRC Staff opposed CASEs hearing request.35 CASE filed a reply on November 17, 31 NRC Staff Testimony at 38 (A36).
32 Florida Power & Light Company, Turkey Point Units 3 and 4: Environmental Analysis and Finding of No Significant Impact, 79 Fed. Reg. 44,464 (July 31, 2014) (Exh. NRC-009) (UHS EA).
33 Letter from A. Klett, NRC to M. Nazar, FPL, Turkey Point Nuclear Generating Units Nos. 3 and 4 -
Issuance of Amendments under Exigent Circumstances Regarding Ultimate Heat Sink and Component Cooling Water Technical Specifications (TAC Nos. MF4392 and MF4393) dated August 8, 2014 (ADAMS Accession No. ML14199A107). (Exh. NRC-006).
34 Citizens Allied for Safe Energy, Inc. Petition to Intervene and Request for a Hearing (Oct. 14, 2014).
35 FPLs Answer to Citizens Allied for Safe Energy, Inc.s Petition to Intervene and Request for a Hearing (Nov. 10, 2014) (FPL Answer); NRC Staffs Answer to Citizens Allied for Safe Energy, Inc.s Petition for Leave to Intervene and Request for Hearing (Nov. 10, 2014) (NRC Staff Answer).
6
2014.36 On March 23, 2015, the Licensing Board issued LBP-15-13, ruling that CASE had demonstrated standing and admitting CASE Contention 1 for hearing.37 FPL and the NRC Staff appealed the Boards decision to the Commission.38 Finding the decision a close call, the Commission deferred to the Boards decision to admit the contention.39 C. Preliminary Matters and the Hearing On September 19 and 20, 2015, approximately three weeks before its initial testimony was due to be filed, CASEs representative sent ex parte e-mails to members of the Board seeking advice on the proper method to request the issuance of a subpoena for testimony at the hearing.40 The Boards law clerk informed CASEs representative that all requests to the Board must be made in the form of a motion.41 CASE made no further effort to obtain written expert testimony prior to the deadline for its submittal. On October 9, 2015 CASE submitted its Initial Statement Of Position, Testimony, Affidavits and Exhibits (For January, 2015 Evidentiary Hearing). Though captioned as including testimony, it did not.42 Because CASEs submittal addressed issues beyond the scope of the contention, included technical exhibits without expert sponsorship, and included excerpts of 36 CASE Reply to FPL and to NRC Staff Answers to Its Petition to Intervene and Request for a Hearing (Nov. 17, 2014) (CASE Reply).
37 Turkey Point, LBP-15-13, 81 NRC 456.
38 NRC Staffs Notice of Appeal of LBP-15-13 (Apr. 17, 2015); Florida Power & Light Companys Notice of Appeal of LBP-15-13 (Apr. 17, 2015) (FPL Appeal).
39 Florida Power & Light Company (Turkey Point Units 3 and 4), CLI-15-25, 82 NRC ___, slip op. at 11 (Dec. 17, 2015).
40 Email Exchange between Barry White and ASLB regarding Subpoena Request, dated September 21, 2015 (ADAMS Accession No. ML15265A500).
41 Id.
42 This was initially filed via email. CASE later e-filed versions of its statement and various exhibits on October 22 and October 26.
7
documents that were not provided as exhibits, FPL moved to strike much of CASEs submittal.43 The NRC Staff supported the motion.44 On November 3, 2015, nearly a month after its initial written testimony was due and two months after the Board informed CASEs representative that a motion would be necessary in order to obtain a subpoena, CASE filed a motion asking the Board to subpoena four expert witnesses.45 The Board denied this motion.46 On November 10, 2015, FPL submitted its Statement of Position,47 the sworn prefiled testimony of Mr. Steve Scroggs, Mr. Jim Bolleter, and Mr. Pete Andersen, and supporting exhibits.48 That same day, the NRC Staff submitted its Statement of Position,49 the sworn prefiled testimony of Ms. Audrey Klett, Ms. Briana Grange, Mr.
William Ford, and Mr. Nicholas Hobbs, and supporting exhibits.50 CASE filed its rebuttal statement of position on December 1, 2015.51 Embedded within this statement was CASEs first witness testimony, that of Dr. Phillip Stoddard, a biologist. Following the submittal of CASEs Rebuttal Statement, the NRC Staff filed a 43 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, (Oct. 19, 2015).
44 NRC Staffs Answer to [FPLs Motion to Strike] (Oct. 26, 2015).
45 Motion Requesting Subpoenas for Expert Testimony for January, 2016 Evidentiary Hearing , dated November 3, 2015.
46 Order (Denying CASEs Application for Subpoenas) (Nov. 12, 2015) at 2. CASE has not sought review of this decision.
47 Florida Power & Light Companys Initial Statement of Position (Nov. 10, 2015) (FPL Position Statement).
48 See Exhibits FPL-001 through FPL-037, including modified FPL-032R.
49 NRC Staffs Initial and Rebuttal Statement of Position Regarding Contention 1 (Nov. 10, 2015) (NRC Staff Position Statement).
50 See Exh. NRC-001 through NRC-050, excluding NRC-023.
51 Citizens Allied for Safe Energys Joint Rebuttal to NRC Staffs and FPLs Initial Statements of Position, Exhibit List and Exhibits, (Dec. 1, 2015) (CASE Rebuttal) (Exh. CASE-076).
8
Motion to Strike portions of this submittal that raised issues beyond the scope of the contention (including the alleged failure to properly consult with other agencies, issues related to the NRCs considerations of alternatives and the speed of its review), and relied on testimony of an unqualified witness.52 FPL supported the NRC Staff Motion.53 On December 9, 2015, nearly a month after the Board rejected its first motion to subpoena expert witnesses, and eight days after its rebuttal testimony was due, CASE filed yet another motion seeking to subpoena expert witnesses.54 This time, CASE sought subpoenas for a total of five witnesses.55 On December 3, 2015, FPL moved for dismissal of Contention 1, or in the alternative, summary disposition.56 Based on CASEs lack of relevant testimony, FPL argued that CASE had not demonstrated standing and had not provided evidence sufficient to satisfy CASEs burden of going forward.57 The NRC Staff supported FPLs Motion.58 CASE filed a response in opposition, but did not provide an affidavit or testimony of an expert to rebut any of FPLs Material Facts.59 52 NRC Staffs Motion in Limine to Exclude Portions of the Prefiled Rebuttal Testimony or in the Alternative Strike Portions of the Prefiled Rebuttal Testimony and Rebuttal Statement of Position (Dec.
14, 2015).
53 Florida Power & Light Companys Answer Supporting the NRC Staffs Motion in Limine (Dec. 15, 2015).
54 CASEs Second Motion Requesting Subpoenas for Expert Testimony for January, 2016, (Dec. 9, 2015).
55 Id.
56 Florida Power & Light Companys Motion to Dismiss CASE Contention 1 or, in the Alternative, for Summary Disposition (Dec. 3, 2015).
57 Id. at 6, 8.
58 NRC Staff Answer to Motion to Dismiss or in the Alternative Summary Disposition (Dec. 21, 2015).
59 Citizens Allied For Safe Energy, Inc.s Answer to FPLs Motion to Dismiss Case Contention 1 or, in the Alternative, for Summary Disposition, and FPLs Statement of Material Facts on Which No Genuine Dispute Exists (Dec. 13, 2015).
9
On December 22, 2015, the Board issued an Order, in which it addressed several pending matters.60 First, it denied CASEs second motion to subpoena expert witnesses.61 Second, it denied FPLs Motion to Dismiss or for Summary Disposition, finding that CASE had met its burden of going forward and that its resources would be best served by reviewing the evidence more thoroughly at a hearing.62 The Order also ruled on the two pending motions to strike. While the Board deferred judgment on FPLs motion to exclude technical exhibits offered by CASE with no expert sponsorship,63 it excluded certain CASE arguments.64 And in response to the NRC Staffs Motion to Strike portions of the CASE rebuttal, the Board struck discussion related to the NRC Staffs consultation with other agencies, among other topics.65 But it could not conclusively determine that Dr. Stoddards testimony would not be of assistance.66 The Board held an evidentiary hearing in Homestead, Florida on January 11 and 12, 2016. CASE, FPL, and the NRC Staff each put forward their identified witnesses for questioning by the Board.
D. The Boards Initial Decision in LBP-16-08 On May 31, 2016, the Board issued its Initial Decision, in which it ruled on the merits of CASE Contention 1. The Board concluded that NRC Staffs EA was deficient in its discussion of saltwater intrusion and aquifer withdrawals. Nevertheless, the Board 60 Order (Denying Application for Subpoenas, Denying Motion for Summary Disposition, and Granting in Part and Denying in Part Motions to Strike) (Dec. 22, 2015) (December 22 Order).
61 Id. at 3. CASE has not sought review of this decision.
62 Id. at 5.
63 Id. at 11-12.
64 Id. at 13-15.
65 Id. at 16.
66 Id.
10
found that those deficiencies had been adequately remedied by the record evidence developed during this proceeding and that its Initial Decision would supplement the EA, satisfying the NRCs obligation to take the requisite hard look, and justify the NRCs finding of no significant environmental impact.67 With respect to the impact of increased temperatures, the Board found that, while the license amendment could allow higher temperatures in the CCS, which could increase salinity, these periods would be limited to a few hours per day over the period of a few weeks.68 And while this might lead to a slight increase in CCS salinity, that effect would be far less important than FPLs ongoing program to reduce salinity in the CCS, under the oversight of the Florida Department of Environmental Protection.69 The Board also considered the environmental impacts of FPLs withdrawal of water from various sources for use in the CCS.70 The Board first addressed the Upper Floridan Aquifer, which is FPLs long term solution for CCS salinity management because it is relatively fresh compared to the water in the CCS, but still salty enough that it must be treated prior to use as a drinking water.71 The use of this water, the Board found, would reduce salinity in the CCS to 34 psu, the salinity of seawater, and help to reduce the hypersaline plume in the Biscayne Aquifer.72 These withdrawals would not 67 LBP-16-08, slip op. at 56.
68 Id. at 39.
69 Id.
70 FPLs water withdrawals are unrelated to the license amendment at issue, but the Board found that the increased temperatures allowed by the amendment may increase salinity in the CCS, which may lead FPL to withdraw more water than it otherwise would. LBP-16-08, slip op at 36. For this reason, the Board considered the environmental impacts of these withdrawals.
71 Id. at 46 (citing Ex. FPL-001, FPL Testimony at 48 (A80)).
72 Id. (citing Ex. FPL-027, FDEP Petition at 1, 3-4).
11
have negative impacts on the higher Biscayne Aquifer due to the confining layer between the two aquifers.73 Nor would the withdrawals have a significant impact on the brackish Upper Floridan Aquifer.74 The Board also noted that FPL had withdrawn water from the Biscayne Aquifer for CCS remediation, but had since discontinued the practice.75 While the surficial Biscayne Aquifer is an important source of drinking water further inland, it is salty in coastal areas like Turkey Point. The Board therefore held that FPL was not withdrawing freshwater from the Biscayne Aquifer and would not have a negative impact on the aquifer.76 Therefore, unsurprisingly, the Board concluded that neither FPLs withdrawals from the confined brackish water aquifer nor its withdrawals from the saltwater portion of the surficial aquifer would affect freshwater resources, contrary to CASEs claims.
Finally, the Board noted that, after the EA was published, FPL had sought approval to withdraw excess stormwater from the L-31 E Canal system.77 The Board found that the NRC erred by not addressing this potential outcome in the EA because it was reasonably foreseeable.78 However, the Board concluded that FPLs use of this surface water would not negatively impact saltwater intrusion because the water that is withdrawn would otherwise flow to Biscayne Bay and would not serve to recharge 73 Id. at 47 (citing Tr. at 434).
74 Id. at 48 (citing Ex. FPL-027, Ex. FPL-030).
75 Id. at 49-50.
76 Id. at 50-51.
77 Id. at 52-53.
78 Id. at 53.
12
groundwater.79 Thus, this issue, though not originally addressed in the EA, would not have a significant environmental impact.
Consistent with these findings, the Board concluded that neither the license amendment nor FPLs use of local water resources would impact saltwater intrusion and so FPLs license amendment would not have a significant environmental impact with respect to the issues raised in CASE Contention 1.
III. STANDARD OF REVIEW The granting of a petition for review is at the discretion of the Commission.80 The Commission gives due weight to the existence of a substantial question with respect to the following relevant considerations: (i) a finding of material fact that is clearly erroneous or conflicts with a finding as to the same fact in a different proceeding; (ii) a necessary legal conclusion that is without governing precedent or contrary to established law; (iii) the raising of a substantial and important question of law, policy, or discretion; (iv) the conduct of the proceeding involved a prejudicial procedural error; or (v) the raising of any other consideration which the Commission may deem to be in the public interest.81 Essentially, a petition must point to an error of law or an abuse of discretion by the Board, and cannot simply restate the contention.82 79 Id. at 55.
80 10 C.F.R. § 2.341(b)(4); Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-03-8, 58 NRC 11, 17 (2003).
81 Id.
82 Shieldalloy Metallurgical Corp. (License Amendment Request for Decommissioning of the Newfield, New Jersey Facility), CLI-07-20, 65 NRC 499, 503-05 (2007).
13
The Commission generally will defer to the Board on factual matters absent a showing that its findings were clearly erroneous.83 This standard is a difficult one as the petitioner must demonstrate that the Boards determination is not even plausible in light of the record as a whole.84 For this reason, the Commission is free to affirm a Board decision on any ground supported by the record, whether or not relied on by the Board.85 But where the Board has reviewed an extensive record in detail, the Commission is generally disinclined to upset [its] findings and conclusions, particularly on matters involving fact-specific issues or where the affidavits or submissions of experts must be weighed.86 The Commission reviews legal or policy questions de novo,87 and will reverse a boards legal rulings only if they are a departure from, or contrary to, established law.88 IV. THE COMMISSION SHOULD DENY CASES PETITION FOR REVIEW The Commission should deny CASEs Petition because it does not present any substantial question for Commission consideration. CASE points to no abuse of discretion, no legal conclusion that is a departure from or contrary to established law, and no finding of fact that is even suspect, much less clearly erroneous.
83 Shaw Areva MOX Services, LLC (Mixed Oxide Fuel Fabrication Facility Possession and Use License)
CLI-15-09, 81 NRC 512, 519 (2015) (citing Honeywell International, Inc. (Metropolis Works Uranium Conversion Facility), CLI-13-1, 77 NRC 1, 18-19 (2013)).
84 Id.
85 Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), CLI-05-1, 61 NRC 160, 166 (2005)
(redacted public version of decision).
86 Hydro Res., Inc. (P.O. Box 777, Crownpoint, NM 87313), CLI-06-1, 63 NRC 1, 2 (2006).
87 Shaw Areva MOX Services, CLI-15-09, 81 NRC at 519.
88 AmerGen Energy Co. (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 259 (2009).
14
Though CASE criticizes the Initial Decision, the Board repeatedly went out of its way in resolving both procedural and substantive legal issues to ensure CASE had an opportunity to participate in the adjudicatory process. At the outset, the Board reformulated and admitted CASE Contention 1 even though it was not a model of clarity or organization.89 The Board allowed CASE to demonstrate standing based upon the mischaracterizations and scientifically incorrect statements of its lay representative.90 And the Board denied FPLs motion for summary disposition even though CASE failed to dispute any fact in FPLs Statement of Material Facts on Which No Genuine Dispute Exists with evidence beyond the assertions of its representative.91 The Board afforded CASE every opportunity to make its case and show why the UHS license amendment may have a significant environmental impact. That CASE did not avail itself of its opportunity does not call the Boards decision into question.
A. CASE Identifies No Legal Error in the Boards Decision CASE first argues that the Board improperly approved the license amendment even though it had found the NRCs EA wanting.92 This is incorrect as a matter of law and so necessarily fails to present a substantial issue worthy of Commission review. An 89 LBP-15-13, 81 NRC at 468 & n.65.
90 Compare LBP-15-13, 81 NRC at 465 (CASE has consistently claimed that the water drawn from these aquifers is fresh) with LBP-16-08, slip op. at 46 (determining that the brackish Upper Floridan Aquifer water is salty enough that it must be treated prior to its use as drinking water) and at 50 (determining that the Biscayne Aquifer withdrawals have a salinity equal to saltwater).
91 December 22 Order, slip op. at 8 (denying FPLs motion for summary disposition based on conflicting evidence though CASE offered no evidence regarding the quality of the water in the aquifers or any evidence assessing the impact of the UHS amendment on CCS salinity and subsequent movement of CCS water into the aquifer). Each of the Boards ultimate findings in LBP-16-08 is consistent with the Statement of Material Facts on Which No Genuine Dispute Exists that accompanied Florida Power &
Light Companys Motion for Summary Disposition. As CASE did not rebut any of these undisputed facts, a full evidentiary hearing was not strictly necessary.
92 Pet. at 5.
15
EA is a concise public document that briefly provides sufficient evidence and analysis for determining whether to prepare an environmental impact statement or instead issue a finding of no significant impact.93 If a Board can determine, based on the evidence developed in a public hearing, that there will be no significant impact, then there is no reason to republish an EA. Accordingly, in LBP-16-08, the Board explained that it may uphold an NRC licensing action despite identified deficiencies in its NEPA documents if sufficient evidence is developed in the adjudicatory proceeding concerning the environmental impacts of the proposed action.94 CASE argues that the Board did not identify precedent for this approach other than previous Board or regulatory rulings.95 Instead, CASE expects the Board to rely upon external citations of jurisprudence . . . to show that such a decision has precedence outside of the ASLB or another governmental entity.96 Of course the Board cited to binding precedents from the Commission, the Commissions former Appeal Board, and a United States Court of Appeals to support its action.97 And these are not hoary outdated precedents. The Board relied upon the Commissions reasoning in its 2015 Indian Point 93 40 C.F.R. § 1508.9. An EA requires less depth of consideration and less detail than an environmental impact statement. Paina Hawaii, L.L.C., CLI-10-18, 72 NRC 56, 75 (2010).
94 LBP-16-08, slip op. at 38.
95 Id. The Commission can reject this argument because CASE has not previously challenged the Boards authority to supplement an EA. 10 C.F.R. § 2.341(b)(5). It certainly could have, as FPL explicitly addressed this process in its position statement. FPL Initial Statement of Position (Nov. 10, 2015) at 6-7.
96 Id.
97 LBP-16-08 at 38 (citing Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), CLI-15-6, 81 NRC 340, 388 (2015); Friends of the River v. Fed. Energy Regulatory Commn, 720 F.2d 93, 106 (D.C.
Cir. 1983); Phila. Electric Co. (Limerick Generating Station, Units 1 & 2), ALAB-262, 1 NRC 163, 197 n.54 (1975).
16
decision, which it reiterated just last month in Strata Energy.98 In Indian Point, the Commission explained that there is good reason to deem a NEPA document supplemented by the hearing record.99 The Commissions hearing procedures [allow]
for additional and a more rigorous public scrutiny of the [FSEIS] than does the usual circulation for comment.100 There is no question that the Boards supplementation of the EA is in keeping with longstanding Commission precedent, as FPL and the NRC Staff argued before the Board.101 CASEs argument that the Board must rely on some precedential authority other than the Commission or the Court of Appeals is wholly without merit and does not warrant Commission review.102 In Indian Point, the Commission explained that the fact that the intervenor had months to marshal its evidence for hearing, had the opportunity to respond to the Staffs and [licensees] evidence, and had the benefit of extensive Board questions to party witnesses demonstrated that the Boards supplementation did not amount to an end run around NEPA.103 That CASE was unable or unwilling to exploit this same opportunity 98 Strata Energy, Inc. (Ross In Situ Recovery Project), CLI-16-13 83 NRC __, (slip. op. at 39) (Jun. 29, 2016).
99 Indian Point, CLI-15-6, 81 NRC at 388.
100 Id. (citing Phila. Electric Co. (Limerick Generating Company, Units 1 and 2), ALAB-819, 22 NRC 681, 707 (1985), affd in part, CLI-86-5, 23 NRC 125 (1986), remanded in part on other grounds sub nom.
Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719 (3rd Cir.) (1989)).
101 FPL Proposed Findings of Fact and Conclusion of Law at 16-17 (citing Indian Point, CLI-15-6, 81 NRC 340; Louisiana Energy Servs. (National Enrichment Facility), LBP-05-13, 61 NRC 385, 404 (2005); and Pacific Gas and Electric Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation),
CLI-08-26, 68 NRC 509, 526 & n.87 (2008)). NRC Staff Proposed Findings of Fact and Conclusions of Law at 24 (citing Strata Energy, Inc. (Ross In Situ Recovery Project), LBP-15-3, 81 NRC 65, 82 (2015)
(citations omitted); and Diablo Canyon, CLI-08-26, 68 NRC at 526).
102 This method is also appropriate in reviewing an EA. Diablo Canyon, CLI-08-26, 68 NRC at 526.
103 Indian Point, CLI-15-6, 81 NRC at 388.
17
explains its dissatisfaction with the result but does not justify reversing the Boards well-reasoned and legally supported decision to supplement the EA with the hearing record.
CASEs misunderstanding of the law runs through several of its additional arguments. For instance, CASE argues that the Boards mere rhetorical review of the EA does not suffice and the NRC must afford a permanent administrative change.104 Of course, the NRCs generally applicable environmental review procedures are not at issue this hearing, which is focused solely on the particular license amendment request identified in the NRCs hearing notice. CASEs generalized concerns about future NRC reviews are not cognizable in an individual licensing proceeding.105 CASE also argues that the NRC must preclude the potential for an injury to CASE.106 But NEPA, as a procedural statute, does not afford CASE substantive relief from any injury.107 Instead, it merely ensures that the agency has reasonably evaluated the potential environmental impacts associated with its action. Of course, as the Board decided here, there will be no significant environmental impacts associated with the UHS license amendment and so no injury to CASE in need of remedying.108 104 Pet. at 7.
105 See Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), CLI-11-14, 74 NRC 801, 813, n. 70 (2011) (citing Shaw Areva MOX Services, LLC (Mixed Oxide Fuel Fabrication Facility), CLI-09-2, 69 NRC 55, 63 (2009) ([L]icensing boards lack authority to direct the Staffs nonadjudicatory actions)).
106 Pet. at 7. CASE made no effort to indicate that it ever raised this issue before the Board. To the best of FPLs knowledge, it did not.
107 See Indian Point, CLI-11-14, 74 NRC at 813 (citing Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 353 n.16 (1989)).
108 The Boards ultimate finding of fact, that there will be no significant environmental impact associated with the license amendment, shows why CASE does not have standing. Though CASE need not prove an injury at the contention admissibility stage (see CLI-15-25, slip op. at 10, n.49), at the hearing stage it became clear that CASE will suffer no injury and the Board could have dismissed the case on that basis.
See FPL Proposed Findings at 67-71 (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992)).
18
Further, CASE argues that the NRC has delegated [its] authority to the [Florida Department of Environmental Protection] in a bifurcated system, and that the Staff improperly consulted with Florida officials.109 The Commission has already concluded that the state consultation issue is not within the scope of Contention 1.110 And the rest of CASEs argument is wildly off base. That FPL is subject to state and local environmental regulation has nothing to do with any abrogation of the NRCs responsibilities.111 State and local agencies maintain environmental jurisdiction independent of the NRCs authority over nuclear power. These agencies in Florida have held extensive public hearings on these very issues over the past two years, hearings in which CASE could have participated.112 CASE instead chose to raise a NEPA challenge at the NRC. Its dissatisfaction with the procedural relief afforded under NEPA does not present a substantial question for Commission review.
Finally, CASE argues that because state agencies have issued notices of violation against FPL, it is inappropriate to assume that FPL will comply with any required measures, directives, and planned actions.113 But of course the NRC may properly assume that a licensee will comply with concrete and enforceable conditions and 109 Pet. at 9-10 (citing LBP-15-13, 81 NRC 475, n.115).
110 CLI-15-25, 82 NRC __, slip op. at 23, n. 110.
111 The jurisdictional distinction is similar to that considered by the Supreme Court in Robertson v. Methow Valley, where state and local agencies had direct authority over environmental mitigation measures and the relevant federal agency simply must address issues in sufficient detail to ensure that environmental consequences have been fairly evaluated. 490 U.S. at 353.
112 See, e.g., LBP-16-8, slip op. at 13-14, 45-46, 52-54.
113 Pet. at 12.
19
requirements imposed by competent federal, state, or local governmental entities.114 And while state agencies have identified violations of certain permit requirements, CASE has offered no evidence that FPL willfully violated any environmental standard. CASEs continuing denigration of FPLs corporate character is not only irrelevant, but baseless.
B. The Boards Factual Determinations Regarding Environmental Impacts are Fully Supported by Record Evidence CASE also challenges several of the Boards factual findings regarding the environmental impacts raised in Contention 1. But because the Commission defers to the Board on factual matters unless its findings were clearly erroneous, CASE faces an uphill climb.115 It must demonstrate that the Boards determination is not even plausible in light of the record as a whole.116 Here, the Board ultimately agreed with the opinions of the expert witnesses offered by the NRC Staff and FPL regarding the environmental impact of the license amendment and of FPLs use of local water resources. CASE cannot show that the Boards findings are not even plausible in light of the record as a whole when the Boards findings are based on, and consistent with, the unrebutted testimony of the only experts offered in the case. As each of these contested factual findings is fully supported by the record, Commission review is not warranted.
First, CASE argues that the Board made contradictory statements regarding FPLs withdrawal of freshwater from the Biscayne Aquifer.117 But the Boards statements are 114 Progress Energy Florida, Inc. (Levy County Nuclear Power Plant, Units 1 and 2), LBP-13-14, 77 NRC 107, 217-18 (2013) (citing Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-03-2, 57 NRC 19, 29 (2003)).
115 Shaw Areva MOX Services, LLC, CLI-15-09, 81 NRC at 519.
116 Id.
117 Pet. at 14 (citing LBP-16-08, slip op. at 51, 55).
20
not contradictory at all. CASEs first quote from LBP-16-08 refers to FPLs use of wells to withdraw saline groundwater from the Biscayne Aquifer at Turkey Point. Because that aquifer is saline in that area, the groundwater that FPL utilized from the Biscayne Aquifer was not fresh.118 The second statement refers to FPLs redirection of certain excess storm water from the L-31 E canal to the CCS. Because this was essentially rainwater, it was fresh.119 But because it was on the surface as opposed to underground, it was not groundwater and was not part of the aquifer. CASE has continually conflated these two resources, calling the surface water in the L-31 E canal part of the Biscayne Aquifer, but that does not make it so.120 The Board pointed out that CASE offered no evidence to support its claim that the groundwater FPL withdrew from the Biscayne Aquifer was fresh.121 In its attempt to rebut that statement, CASE quotes from the argument of its representative at the January 14, 2015 prehearing conference as testimony.122 Of course the transcripts of the prehearing conference were not offered as evidence at the hearing, and even if they were, the statements of CASEs lay representative would be afforded little weight, if any. But his statement only addressed the undisputed point that the water in the L-31 E canal was fresh. It does not explain why the surface water in the L-31 E canal would be considered part of the aquifer or how that would materially affect the Boards consideration of the environmental impacts. There can be no dispute that the Boards decision clearly 118 FPL Testimony at 19-20 (A32).
119 FPL Testimony at 51(A83-A84).
120 See, e.g., CASE Reply at 9-10.
121 LBP-16-08, slip op. at 51.
122 Pet at 14.
21
identified the existence of the L-31 E water withdrawals, properly characterized that water as fresh, and accurately assessed the impact of its use on saltwater intrusion.
Second, CASE argues that the Board failed to address the loss of freshwater on wildlife in the area.123 That issue is beyond the scope of Contention 1. Contention 1 alleges a failure to adequately address saltwater intrusion, essentially the impact of the license amendment on the groundwater to the west (inland) of Turkey Point. CASEs concern about wildlife in Biscayne Bay address impacts to surface water to the east.
Such impacts to the bay cannot reasonably be called saltwater intrusion. This issue is immaterial to Contention 1. Regardless, the Board did explain that FPLs authorization to utilize excess storm water from the L-31 E canal was conditioned to prevent FPL from taking any water until the flow from the canal had already met the amounts reserved by law for fish and wildlife in Biscayne Bay.124 Though CASE points to evidence that certain fish in the Bay rely upon the influx of freshwater, it never offered any evidence to show that the freshwater reservation levels provided by state law are insufficient to protect wildlife in the Bay. Thus, even if this issue were within the scope of Contention 1, CASE has pointed to no evidence in the record that there would be any environmental impact whatsoever resulting from FPLs approved use of excess stormwater.125 123 Pet. at 15.
124 LBP-16-08, slip op. at 53 (citing Ex. FPL-031, 2014 Emergency Order at 14).
125 FPL maintains that its application to withdraw water from the L-31 E canal, which postdates the EA by over a month need not be addressed, because, as the Board found, it does not have a significant environmental impact and so cannot be new and significant information sufficient to require supplementation of the EA. See FPL Proposed Findings at 79.
22
Third, CASE argues that adding any saline water to the CCS only adds more salt to the CCS.126 Here, CASE confuses the amount of salt in the CCS with its salinity, a ratio of the total amounts of salt and water. The Boards decision, resting on the testimony of FPLs expert water modeler and the regulatory decisions of the Florida Department of Environmental Protection (FDEP), concluded that adding less saline water to the hypersaline CCS in order to dilute or freshen it would reduce the spread of the hypersaline plume in the Biscayne Aquifer.127 CASEs argument is seemingly intuitive, but it ignores the relationship between salinity and density, which governs the interaction between the CCS and surrounding groundwater. As the Board explained in its Order, the higher the salinity in the CCS, the higher its density, and the more its water is driven out into the surrounding aquifer.128 Reducing the salinity in the CCS will reduce that phenomenon.129 CASE has shown that the Boards findings are incompatible with its lay understanding of the local groundwater. But the Boards findings are entirely compatible with the expert opinions that form the evidentiary record in the case and are certainly plausible.
Fourth, CASE argues that FPLs withdrawal of brackish water from the Upper Floridan Aquifer will lead to a cone of depression and increase salinity in that aquifer.130 126 Pet. at 16.
127 LBP-16-08 (slip op. at 42) (citing Ex. FPL-027, FPL Request for Site Certification Modification (FDEP Petition), app. A, at 1, 3-4; Upper Floridan Aquifer Order at 17); see also Ex. FPL -001, FPL Testimony at 42 (A70), 59-60 (A101).
128 See LBP-16-08, slip op. at 10 (citing Tr. at 310; FPL Proposed Findings ¶ 59). See also FPL Testimony at 45 (A76); Tr. at 501 (Scroggs) (the addition of low salinity groundwater to the CCS can reduce the total amount of salt in the CCS because it helps to prevent the inflow of salty seawater).
129 See LBP-16-08, slip op. at 46 (citing Ex. FPL-027, FDEP Petition at 7, app. A., at 1, 3-4).
130 Pet. at 20.
23
But FPLs experts and the Board addressed the impacts of UFA withdrawals on that aquifer.131 FPLs expert water modeler testified that UFA withdrawals would cause only minor, if any, drawdown effects offsite and these would not have a significant impact on other users.132 He also testified that there would be only a minor increase in salinity in the Upper Floridan Aquifer, which will be minimal, localized to the FPL production well field, and not affect the aquifer regionally.133 The Boards finding is consistent with the testimony and is more than plausible.
Fifth, CASE challenges the Boards conclusion that the withdrawals from the Upper Floridan Aquifer will not impact the Biscayne Aquifer.134 Once again, this finding is based on the testimony of FPLs expert witness. CASE argues that the Commission should overturn this finding on the basis of a summary of a report prepared by its lay representative that discusses the potential for injected water to move between different groundwater layers.135 Though this summary is hearsay and of little evidentiary value, it does not support CASEs position. It discusses potential movement between the Lower Floridan Aquifer (where wastewater is often discharged) and the Upper Floridan Aquifer.
The unrebutted testimony in this case is that there is no significant communication between the Upper Floridan Aquifer and the overlying Biscayne Aquifer due to the 131 See LBP-16-08, slip op. at 48.
132 FPL Testimony at 48-50 (A81-82); see also Exh. FPL-030, Nov. 2014 Drawdown Memorandum at 10.
133 FPL Testimony at 50 (A82).
134 Pet. at 21.
135 Pet. at 22 (citing INT-046). INT-046 is a reference to a portion of a page of CASE Exhibit INT-001, in which CASEs representative summarized a report on deep-well injection of wastewater into the Lower Floridan Aquifer at Miami-Dade Countys South District Wastewater Treatment Plant.) While the Board declined FPLs motion to strike unsponsored exhibits, including this one, the Board acknowledged that they are hearsay and valued accordingly. December 22 Order at 11.
24
confining layer between them.136 Regardless, the potential for pathways through the confining layer below the Upper Floridan Aquifer has no bearing on the potential for pathways through the confining layer above the Upper Floridan Aquifer.137 CASEs claim is based on a basic misunderstanding of the geology of the region and so does not call into question the Boards findings.
V. CONCLUSION For the foregoing reasons, CASEs Petition for Review of LBP-16-08 should be denied. CASE has not identified a substantial question warranting Commission review.
Respectfully Submitted, Signed (electronically) by Steven Hamrick Steven C. Hamrick William S. Blair Florida Power & Light Company Florida Power & Light Company 801 Pennsylvania Avenue, N.W. Suite 220 700 Universe Blvd.
Washington, DC 20004 Juno Beach, Florida 33408 steven.hamrick@fpl.com william.blair@fpl.com 202-349-3496 561-304-5238 Counsel for July 22, 2016 Florida Power & Light Company 136 FPL Testimony at 51 (A82); Tr. at 431-34 (Ford, Andersen).
137 See FPL Reply Findings of Fact and Conclusions of Law, dated April 12, 2016, at 8.
25
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of )
) Docket No. 50-250-LA Florida Power & Light Company ) 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 Answer Opposing CASEs Petition for Review of LBP-16-08 were provided to the Electronic Information Exchange for service to those individuals on the service list in this proceeding.
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 Dated at Washington, DC this 22nd day of July, 2016