ML18239A458
| ML18239A458 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 08/27/2018 |
| From: | Esther Houseman, Sherwin Turk, Jeremy Wachutka NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-250-SLR, 50-251-SLR, License Renewal, RAS 54424 | |
| Download: ML18239A458 (73) | |
Text
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-SLR
) 50-251-SLR (Turkey Point Nuclear Generating, )
Unit Nos. 3 and 4 )
NRC STAFFS CORRECTED RESPONSE TO PETITIONS TO INTERVENE AND REQUESTS FOR HEARING FILED BY (1) FRIENDS OF THE EARTH, NATURAL RESOURCES DEFENSE COUNCIL AND MIAMI WATERKEEPER, AND (2) SOUTHERN ALLIANCE FOR CLEAN ENERGY Sherwin E. Turk Jeremy L. Wachutka Esther Houseman August 27, 2018
- ii -
TABLE OF CONTENTS INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 2 DISCUSSION ............................................................................................................................... 4 I. Standing to Intervene ............................................................................................................. 4 A. Applicable Legal Requirements .......................................................................................... 4 B. The Petitioners Standing to Intervene ................................................................................ 7 II. Admissibility of the Petitioners Proffered Contentions ......................................................... 11 A. Legal Requirements for Contentions ................................................................................ 11
- 1. General Requirements for Admissibility ........................................................................ 11
- 2. Scope of License Renewal Proceedings ....................................................................... 16
- 3. Subsequent License Renewal Proceedings .................................................................. 18
- 4. Environmental Review of License Renewal and SLR Applications ................................ 24 B. Analysis of the Petitioners Proposed Contentions............................................................ 28
- 1. Joint Petitioners......................................................................................................... 28
- 2. Southern Alliance for Clean Energy .............................................................................. 57 CONCLUSION ............................................................................................................................ 70
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-SLR
) 50-251-SLR (Turkey Point Nuclear Generating, )
Unit Nos. 3 and 4 )
NRC STAFFS CORRECTED RESPONSE TO PETITIONS TO INTERVENE AND REQUESTS FOR HEARING FILED BY (1) FRIENDS OF THE EARTH, NATURAL RESOURCES DEFENSE COUNCIL AND MIAMI WATERKEEPER, AND (2) SOUTHERN ALLIANCE FOR CLEAN ENERGY INTRODUCTION Pursuant to 10 C.F.R. § 2.309(i), the Staff of the U.S. Nuclear Regulatory Commission (NRC Staff) hereby files its response to the petitions for leave to intervene and requests for hearing filed by (1) Friends of the Earth, Natural Resources Defense Council and Miami Waterkeeper (collectively, Joint Petitioners), and (2) Southern Alliance for Clean Energy (SACE), 1 concerning the subsequent license renewal application (SLRA) submitted by Florida Power & Light Company (FPL or Applicant) for Turkey Point Nuclear Generating Unit Nos. 3 and 4 (Turkey Point Units 3 and 4). In their petitions, the Joint Petitioners and SACE present a total of seven contentions raising environmental issues which they seek to litigate in this proceeding.
1 See (1) Request for Hearing and Petition to Intervene Submitted by Friends of the Earth, Natural Resources Defense Council, and Miami Waterkeeper (Joint Petition) (Aug. 1, 2018), and (2) Southern Alliance for Clean Energys Request for Hearing and Petition to Intervene (SACE Petition) (Aug. 1, 2018). A petition to intervene was also submitted by Mr. Albert Gomez, to which the Staff will respond separately, on or before September 4, 2018, in accordance with the Boards Order of August 15, 2018. See Florida Power & Light Co. (Turkey Point Units 3 and 4), Order (Clarifying Briefing Schedule Regarding Gomez Petition) (Aug. 15, 2018) (unpublished).
For the reasons set forth herein, the Staff submits that the Joint Petitioners and SACE have demonstrated representational standing to intervene in this proceeding and have proffered at least one admissible contention. Accordingly, the Staff does not oppose their petitions for leave to intervene. For the reasons discussed below, however, the Staff submits that certain of their contentions (or portions thereof) are inadmissible and should be excluded from litigation in this proceeding.
In the following discussion, the Staff provides, first, a brief description of the background of this proceeding; second, a discussion of the legal principles governing standing to intervene and an analysis of each petitioners standing to intervene; third, a discussion of the legal principles governing contention admissibility, license renewal, and subsequent license renewal; and fourth, a discussion of the admissibility of each of the petitioners proposed contentions.
BACKGROUND This proceeding concerns the application submitted by FPL on January 30, 2018, as later supplemented and revised, 2 for subsequent license renewal of Facility Operating Licenses DPR-31 and DPR-41 to permit an additional 20 years of operation for Turkey Point Nuclear Plant Units 3 and 4 (Turkey Point). 3 Turkey Point Units 3 and 4 consist of two Westinghouse pressurized water reactors, each of which is licensed to operate at a power level of 2,644 megawatts-thermal (MWt), with a net maximum output of approximately 811 megawatts electric 2 See (1) Letter from Mano K. Nazar (FPL) to NRC Document Control Desk (Jan. 30, 2018)
(ML18037A812); (2) Letter from William D. Maher (FPL) to NRC Document Control Desk (Feb. 9, 2018)
(ML18044A653); (3) Letter from William D. Maher (FPL) to NRC Document Control Desk (Feb. 16, 2018)
(ML18053A123); (4) Letter from William D. Maher (FPL) to NRC Document Control Desk (Mar. 1, 2018)
(ML18072A224); and (5) Letter from William D. Maher (FPL) to NRC Document Control Desk (Apr. 10, 2018) (ML18102A521 and ML18113A132) (transmitting a revised SLRA).
3 Turkey Point is owned and operated by FPL, which is a subsidiary of NextEra Energy Inc.
(formerly FPL Group, Inc.), and the third largest electric utility in the United States. SLRA Appendix E, Environmental Report, Subsequent Operating License Renewal Stage (ER) (ML18113A145), at 1-7.
(MWe) and 821 MWe, respectively. 4 The current renewed operating licenses for Unit 3 and Unit 4 expire at midnight on July 19, 2032, and April 10, 2033, respectively. 5 FPLs subsequent license renewal application seeks to extend the Turkey Point Units 3 and 4 operating licenses for an additional 20 years, until July 19, 2052, and April 10, 2053, respectively. 6 Turkey Point is located on a 3,300-acre site adjacent to Biscayne Bay in Miami-Dade County, approximately two miles east of Homestead, Florida (the closest community to the site),
and approximately 20 miles south of Miami, Florida (the largest population center in the region). 7 Turkey Point Units 3 and 4 utilize a closed-cycle circulating water system (the cooling canal system or CCS), with a circulating water flow of 1,872 million gallons per day (MGD). 8 The NRC published a notice of receipt of the Turkey Point SLRA on April 18, 2018. 9 On May 2, 2018, the NRC issued a determination of acceptability and sufficiency for docketing of the SLRA, along with a notice of opportunity for hearing on the application. 10 The Notice 4 ER at 2-2.
5 The construction permits for Turkey Point Units 3 and 4 were issued on April 27, 1967; the initial operating licenses for Units 3 and 4 were issued on July 19, 1972 and April 10, 1973, respectively; and the licenses for both Units were renewed for an additional 20 years on June 6, 2002. ER at 1-1 and 2-1.
6 Id. at 1-1 and 2-1. Turkey Point Units 3 and 4 are the only nuclear plants at the site. The site is also occupied by two retired natural gas/oil steam-generating units (Units 1 and 2), which have been repurposed to support transmission reliability but which do not generate power or process water; and one 1,150 MW combined-cycle natural gas-fired steam-generating unit. (Unit 5). Id. at 2-1. Recently, the Commission issued combined licenses (COLs) for two Westinghouse AP1000 (1,117 MWe) nuclear plants (Turkey Point Units 6 and 7) to be built at the site. Florida Power & Light Co.; Turkey Point Units 6 and 7; Combined licenses and record of decision; issuance, 83 Fed. Reg. 18,091 (Apr. 25, 2018).
7 ER at 3-1.
8 Id. at 2-5. The CCS is licensed by the State of Florida as an industrial wastewater (IWW) facility. Id. at 2-4, 3-82, 3 3-88.
9 Florida Power & Light Co.; Turkey Point Nuclear Generating Unit Nos. 3 and 4; License renewal application; receipt, 83 Fed. Reg. 17,196 (Apr. 18, 2018).
10 Florida Power & Light Co.; Turkey Point Nuclear Generating, Unit Nos. 3 and 4; License renewal application; opportunity to request a hearing and to petition to intervene, 83 Fed. Reg. 19,304 (May 2, 2018) (Notice).
required that petitions for leave to intervene and requests for hearing be filed within 60 days of publication of the Notice (i.e., by July 2, 2018). 11 The Commission subsequently extended the deadline for filing petitions to intervene by thirty days, until August 1, 2018, in response to requests for extension of time filed by NRDC, FOE and SACE. 12 On August 1, 2018, the Joint Petitioners and SACE timely filed their petitions for leave to intervene. An Atomic Safety and Licensing Board (Licensing Board or Board) was established on August 8, 2018, to preside over any adjudicatory proceeding that may be held. 13 DISCUSSION II. Standing to Intervene A. Applicable Legal Requirements In accordance with the Commissions Rules of Practice, [a]ny person whose interest may be affected by a proceeding and who desires to participate as a party must file a written request for hearing [or petition for leave to intervene] and a specification of the contentions which the person seeks to have litigated in the hearing. 10 C.F.R. § 2.309(a). 14 The regulations further provide that the Licensing Board will grant the request/petition if it determines that the requestor/petitioner has standing under the provisions of [10 C.F.R.
§ 2.309(d)] and has proposed at least one admissible contention that meets the requirements of
[10 C.F.R. § 2.309(f)]. Id.
11 Id., 82 Fed. Reg. at 19,305.
12 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), Order of the Secretary (Granting a Partial Extension) (June 29, 2018) (ML18180A185).
13 Establishment of Atomic Safety and Licensing Board; Florida Power & Light Co., 83 Fed. Reg.
40,360 (Aug. 14, 2018).
14 Person means (1) any individual, corporation, partnership, firm, association, trust, estate, public or private institution, group, government agency other than the Commission . . . , any State or any political subdivision of, or any political entity within a State, any foreign government or nation, or other entity; and (2) any legal successor, representative, agent, or agency of the foregoing. 10 C.F.R. § 2.4.
Under the general standing requirements set forth in 10 C.F.R. § 2.309(d)(1), a request for hearing or petition for leave to intervene must state:
(i) The name, address and telephone number of the requestor or petitioner; (ii) The nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (iii) The nature and extent of the requestor's/petitioner's property, financial or other interest in the proceeding; and (iv) The possible effect of any decision or order that may be issued in the proceeding on the requestor's/petitioner's interest.
10 C.F.R. § 2.309(d)(1). The regulations state that in ruling on a request for hearing or petition to intervene, the Commission, presiding officer or Licensing Board must determine, among other things, whether the petitioner has an interest affected by the proceeding considering the factors enumerated in [§ 2.309(d)(1)]. 15 As the Commission has observed, the NRC has long applied contemporaneous judicial concepts of standing which requires a concrete and particularized injury that is fairly traceable to the challenged action and is likely to be redressed by a favorable decision. 16 As the Commission has stated, [a]t the heart of the standing inquiry is whether the petitioner has alleged such a personal stake in the outcome of the controversy as to demonstrate that a concrete adverseness exists which will sharpen the presentation of issues. 17 15 10 C.F.R. § 2.309(d)(2). The presiding officer may also consider a request for discretionary intervention in the event that a petitioner is determined to lack standing to intervene as a matter of right, where a sufficient showing is made with respect to the factors enumerated in 10 C.F.R. § 2.309(e).
16 Calvert Cliffs 3 Nuclear Project, LLC and Unistar Nuclear Operating Servs., LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-09-20, 70 NRC 911, 915 (2009) (quoting Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Unit 1), CLI-93-21, 38 NRC 87, 92 (1993))
17 Sequoyah Fuels Corp. and Gen. Atomics (Gore, Oklahoma Site), CLI-94-12, 40 NRC 64, 71 (1994), (citing Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72 (1978) and quoting Baker v. Carr, 369 U.S. 186, 204 (1962))
In construction permit and operating license proceedings, standing to intervene has been found to exist based upon a proximity presumption, for persons who reside or frequent an area within approximately 50 miles of the facility. 18 As the Commission has noted, the Atomic Safety and Licensing Boards have also found the proximity presumption to establish standing to intervene in license renewal proceedings. 19 An organization may establish its standing to intervene based on organizational standing (showing that its own organizational interests could be adversely affected by the proceeding), or representational standing (based on the standing of its members). Where an organization seeks to establish "representational standing," it must show that at least one of its members may be affected by the proceeding, it must identify that members name and address, and it must show that the member has authorized the organization to request a hearing on their behalf. 20 Further, for the organization to establish representational standing, the member seeking representation must qualify for standing in his or her own right; the interests that the organization seeks to protect must be germane to its own purpose; and neither the asserted claim nor the requested relief must require an individual member to participate in the organization's legal action. 21 18 See, e.g., Calvert Cliffs, CLI-09-20, 70 NRC at 915-16. The proximity presumption establishes standing to intervene without the need to establish the elements of injury, causation, or redressability.
19 Calvert Cliffs, CLI-09-20, 70 NRC at 915 n.15 (noting that the Board in Florida Power and Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-01-06, 53 NRC 138, 150, aff'd on other grounds, CLI-01-17, 54 NRC 3 (2001), was applying [the] proximity presumption in [a] reactor operating license renewal proceeding).
20 Consumers Energy Co. (Palisades Nuclear Power Plant), CLI-07-18, 65 NRC 399, 409-10 (2007).
21 Id.; Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 323 (1999).
B. The Petitioners Standing to Intervene
- 1. The Joint Petitioners Friends of the Earth (FOE) identifies itself as a national non-profit environmental advocacy organization with a nationwide membership of over 100,000, including approximately 4,800 members in Florida. 22 FOE states, inter alia, that it seeks to protect the environment, to improve the environmental, health and safety conditions of nuclear facilities, and to minimize the risks posed by nuclear facilities. 23 FOE seeks to establish representational standing to intervene, based on the individual standing of five of its members: Anne Hemingway Feuer, Laura Bauman, Vicki McGee-Absten, Patricia J. Wynn, and Jonathan Lester Fried. 24 Each of these individuals filed a Declaration in support of the Petition, in which they, inter alia, stated their home addresses, the distance of their homes from the Turkey Point site (5, 41, 35, 20, and 12 miles, respectively), and the nature of their activities in the area; that they are concerned over the continued operation of Turkey Point Units 3 and 4, the consequences of an accident at Turkey Point on their own and their families health and property, and on their recreational interests and interest in protecting the environment around Turkey Point; that they are members of FOE; and that they authorize FOE to represent their interests in this proceeding. 25 Similarly, the Natural Resources Defense Council states, in part, that it is a national non-profit environmental organization with a focus on environmental protection and the risks 22 Joint Petition at 1-2; Declaration of Peter Stocker (July 31, 2018) (Joint Petition, Att. A), at 1-2.
23 Joint Petition at 2; Stocker Declaration (Joint Petition, Att. A), at 1.
24 Joint Petition at 2-5.
25 Declaration of Anne Hemingway Feuer (June 29, 2018) (Joint Petition, Att. B), at 1-4; Declaration of Laura Bauman (July 30, 2018) (Joint Petition, Att. C), at 1-3; Declaration of Vicki McGee-Absten (July 30, 2018) (Joint Petition, Att. D), at 1-3; Declaration of Patricia J. Wynn (July 31, 2018) (Joint Petition, Att. E), at 1-3; and Declaration of Jonathan Lester Fried (July 31, 2018) (Joint Petition, Att. F),
at 1-3.
posed by nuclear facility operation. 26 NRDC states that it has a nationwide membership of over 384,000, including 15,324 members in Florida, with at least 1,746 members living within 50 miles (and at least 103 members within 10 miles) of Turkey Point. 27 NRDC seeks to establish representational standing to intervene, based on the individual standing of one of its members, Dr. Philip Stoddard, Ph.D. 28 Dr. Stoddard filed a Declaration in support of the Petition, in which he, inter alia, stated his home address; that he lives approximately 18 miles from Turkey Point; that he is concerned over the safety and risk of an accident at Turkey Point Units 3 and 4, and the environmental impacts of the cooling canal system; that he is a member of NRDC; and that he authorizes NRDC to represent his interests in this proceeding. 29 Finally, Miami Waterkeeper states, inter alia, that it is a non-profit organization with a mission to protect and preserve the aquatic integrity of South Floridas watershed and wildlife. 30 MWK indicates that it has approximately 100 members in Florida. 31 MWK seeks to establish representational standing to intervene, based on the individual standing of two of its members:
Dr. Rachel Silverstein (who is also MWKs Executive Director) and Daniel Parobok. 32 Dr. Silverstein and Mr. Parobok each filed a Declaration in support of the Petition, in which they, 26 Joint Petition at 5; Declaration of Gina Trujillo (Aug. 1, 2018) (Joint Petition, Att. G), at 1-2.
27 Joint Petition at 5; Trujillo Declaration (Joint Petition, Att. G), at 1-2.
28 Joint Petition at 2-5. The Joint Petition identifies Dr. Stoddard as the Mayor of the City of South Miami, Florida. Id. at 6. While Dr. Stoddard does not identify himself as such, the City of South Miamis website states that Mayor Philip Stoddard was first elected to office in 2010 and is currently serving his fourth term as Mayor.... https://www.southmiamifl.gov/directory.aspx?EID=2 (last accessed Aug. 9, 2018).
29 Declaration of Philip Stoddard, Ph.D. (July 24, 2018) (Joint Petition, Att. H), at 1-6.
30 Joint Petition at 6; Declaration of Rachel Silverstein, Ph.D. (July 31, 2018) (Joint Petition, Att. I),
at 1.
31 Joint Petition at 6-7; Silverstein Declaration (Joint Petition, Att. I), at 1.
32 Joint Petition at 7-9; Silverstein Declaration (Joint Petition, Att. I); Declaration of Daniel Parobok (July 30, 2018) (Joint Petition, Att. J).
inter alia, stated the distance of their homes from the Turkey Point site (30 and 28 miles, respectively) and the nature of their recreational and other activities in the area; 33 that they are concerned over the consequences of a radiation release at Turkey Point, the impacts of the plants cooling water system on the environment and their drinking water, and/or the emission of pollutants from the plants; 34 that they are members of MWK, and that they authorize MWK to represent their interests in this proceeding. 35 The Staff is satisfied that FOE, NRDC and MWK have established their representational standing to intervene in this proceeding. Each organization provided the name and address of at least one of its members, who stated that he or she is concerned about the environmental impacts of plant operation and/or the risk of an accident at Turkey Point. While the Joint Petitioners have not shown that their members would suffer any concrete or particularized injury caused by the challenged action that would be redressed by a favorable decision in this proceeding, the Declarations submitted by their members demonstrate that they reside and work within 50 miles of the plant, and that they authorize their respective organizations to represent their interests in this proceeding. As such, each of the Joint Petitioners has shown that at least one of its members would have standing to intervene in his or her own right, based on the proximity presumption, and that those members have authorized their organizations to 33 Silverstein Declaration (Joint Petition, Att. I), at 2-3; Declaration of Daniel Parobok (July 30, 2018) (Joint Petition, Att. J), at 1-3. Mr. Parobok provided his home address in Tavernier, FL (in the Florida Keys), and stated that he lives 28 miles from Turkey Point. Parobok Declaration (Joint Petition, Att. J), at 2-3. Dr. Silverstein stated that she is a resident of Miami-Dade County, and gave her address as 2103 Coral Way, 2nd Floor, Miami, FL 33145 - which appears to be an office building on Google maps and is the business address of Miami Waterkeeper. See https://www.miamiwaterkeeper.org/4768 (last accessed Aug. 9, 2018). The Staff is satisfied that Dr. Silverstein resides, works and recreates within 50 miles of Turkey Point, based upon the statements contained in her Declaration.
34 Silverstein Declaration (Joint Petition, Att. I), at 1; Parobok Declaration (Joint Petition, Att. J),
at 2.
35 Silverstein Declaration (Joint Petition, Att. I), at 1, 3; Parobok Declaration (Joint Petition, Att. J),
at 1, 2.
represent those members interests here. Accordingly, each of the Joint Petitioners has satisfactorily established its representational standing to intervene in this proceeding under the proximity presumption. 36
- 2. Southern Alliance for Clean Energy Southern Alliance for Clean Energy similarly seeks to establish representational standing to intervene in this proceeding. SACE identifies itself as a non-profit nonpartisan membership organization that promotes responsible energy choices that solve global warming problems and ensure clean, safe and healthy communities throughout the Southeast. 37 SACE further states that it has members in Florida and throughout the Southeast, and it provides the Declarations of three of its members (Dan Kipnis, Mark Oncavage and Richard Reynolds) 38 who live within 50 miles of Turkey Point and who, SACE states, would be adversely affected by an accident if the Turkey Point Units 3 and 4 operating licenses are renewed. 39 In their Declarations, Messrs.
Kipnis, Oncavage and Reynolds state their home addresses and the distance of their homes from Turkey Point (29, 15, and 16 miles, respectively); that they are concerned about the risk of a severe accident at Turkey Point if the operating licenses are renewed; that they are members of SACE; and that they authorize SACE to represent their interests in this proceeding. 40 SACEs Petition and its members Declarations demonstrate that SACE has established representational standing to intervene in this proceeding. SACE has identified the name and 36 Calvert Cliffs, CLI-09-20, 70 NRC at 915 n.15; Turkey Point, LBP-01-06, 53 NRC at 150.
37 SACE Petition at 3.
38 See (1) Declaration of Dan Kipnis (June 19, 2018) (SACE Petition, Att. 1); (2) Declaration of Mark P. Oncavage (June 25, 2018) (SACE Petition, Att. 2); and (3) Declaration of Richard Reynolds (SACE Petition, Att. 3).
39 SACE Petition, at 3.
40 Kipnis Declaration (SACE Petition, Att. 1), at 1; Oncavage Declaration (SACE Petition, Att. 2),
at 1; Reynolds Declaration (SACE Petition, Att. 3), at 1.
address of at least one of its members who resides within 50 miles of the plant, and who has authorized SACE to represent his interests in the proceeding. While SACE has not shown that its members would suffer any concrete or particularized injury caused by the challenged action that would be redressed by a favorable decision in this proceeding, it has shown that each of its identified members would have standing to intervene in his own right, based on the proximity presumption, and that SACE has been authorized to represent each of those persons interests here. Accordingly, SACE has satisfactorily established its representational standing to intervene in this proceeding under the proximity presumption. 41 III. Admissibility of the Petitioners Proffered Contentions A. Legal Requirements for Contentions
- 1. General Requirements for Admissibility The legal requirements governing the admissibility of contentions are set forth in 10 C.F.R. § 2.309(f) of the Commissions Rules of Practice (formerly 10 C.F.R. § 2.714(b)). 42 Specifically, in order to be admitted, a contention must satisfy the following requirements:
(f) Contentions. (1) A request for hearing or petition for leave to intervene must set forth with particularity the contentions sought to be raised. For each contention, the request or petition must:
(i) Provide a specific statement of the issue of law or fact to be raised or controverted; 41 Calvert Cliffs, CLI-09-20, 70 NRC at 915 n.15; Turkey Point, LBP-01-06, 53 NRC at 150.
42 These requirements substantially reiterate the requirements stated in former § 2.714, published in revised form in 1989. See Statement of Consideration, "Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process," 54 Fed. Reg. 33,168 (Aug. 11, 1989), as corrected, 54 Fed. Reg. 39,728 (Sept. 28, 1989). While former § 2.714 was revised in 1989, those revisions did not constitute "a substantial departure" from then existing practice in licensing cases. 54 Fed. Reg. at 33,170-71. Thus, the prior standards governing the admissibility of contentions remain in effect to the extent they do not conflict with the 1989 amendments. Arizona Public Serv. Co. (Palo Verde Nuclear Generating Station, Units 1, 2 and 3), LBP-91-19, 33 NRC 397, 400 (1991).
(ii) Provide a brief explanation of the basis for the contention; 43 (iii) Demonstrate that the issue raised in the contention is within the scope of the proceeding; 44 (iv) Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; 45 (v) Provide a concise statement of the alleged facts or expert opinions which support the requestor's/
petitioner's position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the requestor/petitioner intends to rely to support its position on the issue; 46 [and]
(vi) . . . [P]rovide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact. This information must include references to specific portions of the 43 The requirement that a petitioner provide an explanation of the basis for its contention helps to define the scope of a contention - [t]he reach of a contention necessarily hinges upon its terms coupled with its stated bases. Public Serv. Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-899, 28 NRC 93, 97 (1988), affd sub nom Massachusetts v. NRC, 924 F.2d 311 (D.C. Cir.), cert. denied, 502 U.S. 899 (1991); accord Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-28, 56 NRC 373, 379 (2002).
44 The scope of any particular proceeding is defined by the Commission in its initial hearing notice and Order referring the proceeding to the Board. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-825, 22 NRC 785, 790-91 (1985). Contentions may only be admitted if they fall within the scope of issues set forth in the Federal Register Notice and comply with the requirements of former
§ 2.714(b) (restated in § 2.309(f)), and applicable case law. Public Serv. Co. of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 NRC 167, 170-71 (1976); Philadelphia Elec. Co.
(Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20 (1974).
45 Materiality requires that the petitioner show why the alleged error or omission is of possible significance to the result of the proceeding, demonstrating a significant link between the claimed deficiency and the agencys ultimate determination. Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), LBP-15-20, 81 NRC 829, 850 (2015).
46 It is the petitioners obligation to present the factual information and expert opinions necessary to support its contention. See USEC Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 457 (2006) (moreover, it is the Proponents responsibility to satisfy the basic contention admissibility requirements; Boards should not have to search through a petition to uncover arguments and support for a contention, and may not simply infer unarticulated bases of contentions). See also Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2 and 3), CLI-91-12, 34 NRC 149, 155 (1991).
application (including the applicant's environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioner's belief. . . . 47 (2) Contentions must be based on documents or other information available at the time the petition is to be filed, such as the application, supporting safety analysis report, environmental report or other supporting document filed by an applicant or licensee, or otherwise available to a petitioner. On issues arising under the National Environmental Policy Act, the petitioner shall file contentions based on the applicant's environmental report. . . .
10 C.F.R. § 2.309(f)(1)-(2) (emphasis added).
As has often been observed, the contention admissibility rules exist to "focus litigation on concrete issues, and result in a clearer and more focused record for decision." 48 In this regard, the Commission has explained that the rules governing the admissibility of contention are "strict by design." 49 Failure to comply with any of the requirements set forth in the regulations is 47 All contentions must show that a genuine dispute exists with regard to the license application in question, challenge and identify either specific portions of, or alleged omissions from, the application, and provide the supporting reasons for each dispute. This requires the Petitioner to read the entire application, state both the applicant and petitioners views, and explain the disagreement, and if Petitioner believes an issue is not addressed, to explain the deficiency. Basic assertions that an application is insufficient or inadequate is insufficient to meet this standard. Nuclear Mgmt. Co., LLC (Palisades Nuclear Power Plant), LBP-06-10, 63 NRC 314, 340-42 (2006).
48 See e.g., Crow Butte Resources, Inc. (In Situ Leach Facility, Crawford, NE), LBP-15-15, 81 NRC 598, 601 (2015) (citing Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2202 (Jan. 14, 2004)).
49 Entergy Nuclear Operations, Inc. (Indian Point, Unit 2) CLI-16-5, 83 NRC 131, 136 (2016)
(citing Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349, 358 (2001) and South Carolina Elec. & Gas Co. (Virgil C. Summer Nuclear Station, Units 2 and 3), CLI-10-1, 71 NRC 1, 7 (2010). The Commission further stated that it should not have to expend resources to support the hearing process unless there is an issue that is appropriate for, and susceptible to, resolution in an NRC hearing. Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2202 (Jan. 14, 2004).
grounds for the dismissal of a contention. 50 As further stated by the Commission, the rules require "a clear statement as to the basis for the contentions and the submission of . . .
supporting information and references to specific documents and sources that establish the validity of the contention." "Mere 'notice pleading' does not suffice." 51 A petitioners issue will be ruled inadmissible if the petitioner has offered no tangible information, no experts, no substantive affidavits, but instead only bare assertions and speculation. 52 It is well established that the purpose for the basis requirements is (1) to assure that the contention raises a matter appropriate for adjudication in a particular proceeding; (2) to establish a sufficient foundation for the contention to warrant further inquiry into the assertion; and (3) to put other parties sufficiently on notice of the issues so that they will know generally what they will have to defend against or oppose. 53 Determining whether the contention is adequately supported by a concise allegation of the facts or expert opinion is not a hearing on the merits; a petitioner does not have to prove its contention at the admissibility stage, 54 or 50 Indian Point, CLI-16-5, 83 NRC at 136. See also Oconee Nuclear Station, CLI-99-11, 49 NRC at 334-35 (the heightened contention admissibility rules are designed to preclude contentions based on little more than speculation). The requirements are intended, inter alia, to ensure that a petitioner reviews the application and supporting documents prior to filing contentions; that contentions are supported by at least some facts or expert opinion known to the petitioner at the time of filing; and that there exists a genuine dispute before a contention is admitted for litigation, to avoid the practice of filing contentions which lack any factual support and seeking to flesh them out later through discovery. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-91-35, 34 NRC 163, 167-68 (1991).
51 Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 118-119 (2006) (footnotes omitted).
52 Fansteel, Inc. (Muskogee, Oklahoma, Site), CLI-03-13, 58 NRC 195, 203 (2003) (citing GPU Nuclear Inc. (Oyster Creek Nuclear Generating Station), CLI-00-6, 51 NRC 192, 208 (2000)).
53 Peach Bottom, ALAB-216, 8 AEC at 20-21.
54 Private Fuel Storage L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-22, 60 NRC 125, 139 (2004).
provide all the evidence required to withstand a summary disposition motion. 55 Nonetheless, the Petitioner must provide some support for its contention, either in the form of facts or expert testimony, and [f]ailure to do so requires that the contention be rejected. 56 If a petitioner neglects to provide the requisite support for its contentions, the Board should not make assumptions of fact that favor the petitioner, or search for or supply information that is lacking. 57 Moreover, any supporting material provided by a petitioner, including those portions of the material that are not relied upon, is subject to Board scrutiny. 58 Likewise, providing any material or document as a basis for a contention, without setting forth an explanation of its significance, is inadequate to support the admission of the contention. 59 In short, the information, facts, and expert opinions provided by the petitioner are to be examined by the Board to confirm that they do indeed supply adequate support for the contention. 60 Finally, the Peach Bottom decision requires that a contention be rejected if it constitutes an attack on applicable statutory requirements; challenges the basic structure of the 55 Compare with 10 C.F.R. § 2.710(c). [A]t the contention filing stage the factual support necessary to show that a genuine dispute exists need not be in affidavit or formal evidentiary form and need not be of the quality necessary to withstand a summary disposition motion. 54 Fed. Reg. at 33,171.
56 Palo Verde, CLI-91-12, 34 NRC at 155; accord, Indian Point, CLI-16-5, 83 NRC at 136. See "Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process,"
54 Fed. Reg. at 33,170 (This requirement does not call upon the intervener to make its case at this stage of the proceeding, but rather to indicate what facts or expert opinions, be it one fact or opinion or many, of which it is aware at that point in time which provide the basis for its contention.).
57 See American Centrifuge Plant, CLI-06-10, 63 NRC at 457 (2006).
58 Tennessee Valley Authority (Bellefonte Nuclear Plant, Units 1 and 2), LBP-10-7, 71 NRC 391, 421 (2010); Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), LBP-96-2, 43 NRC 61, 90 (1996).
59 See Fansteel, CLI-03-13, 58 NRC at 205.
60 Bellefonte Nuclear Plant, LBP-10-7, 71 NRC at 421.
Commissions regulatory process or is an attack on the regulations; 61 is nothing more than a generalization regarding the petitioners view of what applicable policies ought to be; seeks to raise an issue which is not proper for adjudication in the proceeding or does not apply to the facility in question; or seeks to raise an issue which is not concrete or litigable. 62
- 2. Scope of License Renewal Proceedings As stated in 10 C.F.R. § 2.309(f)(1)(iii), supra, a petitioner must demonstrate that the issue raised in the contention is within the scope of the proceeding; any contention that falls outside the scope of the proceeding must be rejected. 63 The scope of a license renewal proceeding is limited, under the Commissions regulations in 10 C.F.R. Part 54, to the specific matters that must be considered for the license renewal application to be granted. 64 Pursuant to 10 C.F.R. § 54.29, the following standards are considered in determining whether to grant a license renewal application:
10 C.F.R. § 54.29 Standards for issuance of a renewed license:
A renewed license may be issued by the Commission up to the full term authorized by § 54.31 if the Commission finds that:
(a) Actions have been identified and have been or will be taken with respect to the matters identified in Paragraphs (a)(1) and (a)(2) of this section, such that there is reasonable assurance that the activities authorized by the renewed license will continue to be conducted in accordance with the CLB [current licensing basis], and that any changes made to the plant's CLB in order to 61 As set forth in 10 C.F.R. § 2.335(a), no rule or regulation of the Commission . . . is subject to attack . . . in any adjudicatory proceeding, in the absence of a waiver petition granted by the Commission. See also Millstone, CLI-03-14, 58 NRC at 218. Further, any contention that amounts to an attack on applicable statutory requirements or represents a challenge to the basic structure of the Commissions regulatory process must be rejected. Public Serv. Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-82-76, 16 NRC 1029, 1035 (1982) (citing Peach Bottom, ALAB-216, 8 AEC at 20-21).
62 Peach Bottom, ALAB-216, 8 AEC at 20-21.
63 Portland Gen. Elec. Co. (Trojan Nuclear Plant), ALAB-534, 9 NRC 287, 289-90 n.6 (1979);
Calvert Cliffs 3 Nuclear Project, LLC & Unistar Nuclear Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), LBP-12-18, 76 NRC 127, 157 (2012).
64 Oyster Creek, CLI-06-24, 64 NRC at 118-119.
comply with this paragraph are in accord with the Act and the Commission's regulations. These matters are:
(1) managing the effects of aging during the period of extended operation on the functionality of structures and components that have been identified to require review under § 54.21(a)(1); and (2) time-limited aging analyses that have been identified to require review under § 54.21(c).
(b) Any applicable requirements of Subpart A of 10 C.F.R.
Part 51 have been satisfied.
(c) Any matters raised under § 2.335 have been addressed.
These standards, along with other regulations in 10 C.F.R. Part 54, and the environmental regulations related to license renewal set forth in 10 C.F.R. Part 51 and Appendix B thereto (discussed infra at 24-28), establish the scope of issues that may be considered in a license renewal proceeding. 65 The failure of a proposed contention to demonstrate that an issue is within the scope of the proceeding is grounds for its dismissal. 66 The NRC conducts a technical review pursuant to 10 C.F.R. Part 54, to assure that pertinent public health and safety requirements have been satisfied. 67 Regardless of whether or not a license renewal application has been filed for a facility, the Commission has a continuing responsibility to oversee the safety and security of ongoing plant operations, and it routinely oversees a broad range of operating issues under its statutory responsibility to assure the protection of public health and safety for operations under existing operating licenses.
65 See generally, Final rule, Nuclear Power Plant License Renewal, 56 Fed. Reg. 64,943 (Dec. 13, 1991) (1991 Statement of Considerations); Final rule, Nuclear Power Plant License Renewal; Revisions, 60 Fed. Reg. 22,461 (May 8, 1995) (1995 Statement of Considerations).
66 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3),
CLI-05-24, 62 NRC 551, 567 (2005).
67 See Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI 17, 54 NRC 3, 6 (2001).
Therefore, for license renewal, the Commission has found it generally unnecessary to include a review of issues already monitored and reviewed in ongoing regulatory oversight processes. 68 Rather, the NRCs license renewal safety review focuses on plant systems, structures, and components for which current [regulatory] activities and requirements may not be sufficient to manage the effects of aging in the period of extended operation. 69 Adjudicatory proceedings on license renewal applications are bounded by the same rules and scope. 70
- 3. Subsequent License Renewal Proceedings The Atomic Energy Act provides no limit on the number of times that a nuclear power plants operating license may be renewed; rather, Section 103(c) of the Act provides that each license shall be issued for a specified period, as determined by the Commission, depending on the type of activity to be licensed, but not exceeding forty years . . . and may be renewed upon the expiration of such period. 71 Likewise, the Commissions regulations do not limit the number of times that an operating license may be renewed. The NRC has long recognized the potential that nuclear power plant licensees might seek to extend their operating licenses to permit plant operation beyond 60 years, i.e., after the expiration of a renewed license. Prior to 1991, the Commissions regulations provided only that operating licenses may be issued for up to 40 years and may be renewed by the Commission upon the expiration of the period. 72 Upon 68 Id. at 8-10. For example, the Commission has held that [i]ssues like emergency planning -
which already are the focus of ongoing regulatory processes - do not come within the NRC's safety review at the license renewal stage. Turkey Point, CLI-01-17, 54 NRC at 10; accord, Millstone, CLI 24, 62 NRC at 565, 567.
69 Turkey Point, CLI-01-17, 54 NRC at 10 (quoting 60 Fed. Reg. at 22,469).
70 As the Commission stated, [a]djudicatory hearings in individual license renewal proceedings will share the same scope of issues as our NRC Staff review; for our hearing process (like our Staffs review) necessarily examines only the [safety] questions our safety rules make pertinent. Id. at 10.
71 Atomic Energy Act of 1954, as amended, 42 U.S.C. 2133.c.
72 10 C.F.R. § 50.51 (1991).
adopting 10 C.F.R. Part 54 in 1991, the Commission provided, in 10 C.F.R. § 54.31(d), that [a]
renewed license may be subsequently renewed upon expiration of the renewal term, in accordance with all applicable requirements. 73 In determining which requirements are applicable to subsequent license renewal, the Commissions statements in adopting the license renewal rules in 1991 are instructive. Thus, in responding to comments regarding proposed § 54.31(d), the Commission observed as follows:
- m. Subsequent Renewals Section 54.31(d) allows a renewed license to be further renewed upon expiration of the renewal term. . . . [A] subsequent renewal application may be submitted prior to expiration of the previous renewal term . . . . However, § 54.31(d) makes clear that a renewed license may be further renewed in accordance with applicable requirements, which would include the provisions of part 54 (unless the Commission subsequently adopts special provisions applicable only to subsequent renewals). . . .
Another commenter observed that the concept of subsequent renewals is not developed in the supporting documentation for the proposed rule. The Commission does not believe that further exposition of this concept is necessary at this time. If experience with renewals discloses a previously unknown aging or other time-dependent issue, appropriate regulatory action, including modifying the requirements for obtaining subsequent renewals, can be implemented. Further discussions of the concept are not likely to be fruitful at this time. 74 Notably, the license renewal regulations adopted in 1991 contained no specific requirements that are unique to subsequent license renewal, and no such provisions have been adopted at 73 10 C.F.R. § 54.31(d) (1992). This provision has continued in effect, with minor revisions, until the present; § 54.31(d) currently states, [a] renewed license may be subsequently renewed in accordance with all applicable requirements. 10 C.F.R. § 54.31(d) (2018). This formulation of the regulation appeared in the Commissions 1995 revision of the license renewal regulations. See Nuclear Power Plant License Renewal; Revisions, Final Rule, 60 Fed. Reg. 22,461, 22,494 (May 8, 1995).
74 Nuclear Power Plant License Renewal, Final Rule, 56 Fed. Reg. 64,943, 64,964-965 (Dec. 13, 1991) (emphasis added).
any time since the license renewal regulations were enacted. 75 Similarly, the requirements in 10 C.F.R. Part 51, concerning the consideration of license renewal environmental impacts, apply as well to subsequent license renewal; 76 no requirements have been adopted by the Commission for subsequent license renewal beyond those pertaining to license renewal. 77 In early 2014, the Staff submitted SECY-14-0016 to the Commission. 78 Therein, the Staff provided an assessment of the license renewal regulatory process and regulations, and 75 See generally, NUREG-1850, Frequently Asked Questions on License Renewal of Nuclear Power Reactors (March 2006), Question 1.3.10 (There are no specific limitations in the Atomic Energy Act or the NRCs regulations restricting the number of times a license may be renewed. However, an applicant has to meet all of the applicable requirements for each subsequent renewal. Any subsequent renewal would require a review similar to that required for the first renewal.).
76 To be sure, 10 C.F.R. § 51.53(c)(3) states that an applicant for an initial renewed license must submit certain information in its environmental report; the regulation does not state whether similar or different information must be submitted by applicants for subsequent license renewal. No similar language appears in any other provision of 10 C.F.R. Part 51 or Part 54, nor was there any discussion of this word in the Statement of Considerations for the final rule. See Final Rule, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467 (June 5, 1996); but see Proposed Rule, Environmental Review for Renewal of Operating Licenses, 56 Fed. Reg. 47,016, 47,017 (Sept. 17, 1991) (The Part 54 rule could be applied to multiple renewals of an operating license for various increments. However, the part 51 amendments apply to one renewal of the initial license for up to 20 years beyond the expiration of the initial license.). Regardless, as discussed infra at 20-23, the Commission has determined that the existing license renewal safety and environmental regulatory framework applies to subsequent license renewal, and no new rulemaking for SLR is needed.
77 The 1996 GEIS observed that Operating licenses may be renewed for up to 20 years beyond the 40-year term of the initial license. No limit on the number of renewals is specified. NUREG-1437 (May 1996), Vol. 1, at 1-1. Similarly, the 2013 revision of the GEIS observed:
The Atomic Energy Act of 1954 authorizes the [NRC] to issue commercial nuclear power plant operating licenses for up to 40 years.
The 40-year length of the original license period was imposed for economic and antitrust reasons rather than the technical limitations of the nuclear power plant. NRC regulations allow for the renewal of these operating licenses for up to an additional 20 years, depending on the outcome of an assessment determining whether the nuclear power plant can continue to operate safely and protect the environment during the 20-year period of extended operation. There are no specific limitations in the Atomic Energy Act or the NRCs regulations restricting the number of times a license may be renewed.
NUREG-1437, Rev. 1 (June 2013), at 1-1.
78 SECY-14-0016, Ongoing Staff Activities to Assess Regulatory Considerations for Power Reactor Subsequent License Renewal (Jan. 13, 2014) (ML14050A306).
presented four options for consideration by the Commission regarding potential regulatory approaches to subsequent license renewal:
Option 1: No change to the existing 10 C.F.R. Part 54 regulations Option 2: Minor clarifications to existing 10 C.F.R. Part 54 regulations for current and subsequent renewals Option 3: Update 10 C.F.R. Part 54 regulations for current and subsequent renewals and pursue Option 2 clarifications Option 4: Pursue rulemaking for subsequent renewal-specific changes and Option 2 and 3 changes.
Upon evaluating these options, the Staff recommended that the Commission select Option 4:
The staff recommends the Commission direct the staff to begin the rulemaking process to address all of the proposed topics in Option 4. Addressing these topics through rulemaking would provide additional assurance that aging-management activities would be effectively implemented and provide regulatory clarity, transparency, stability, and efficiency by defining requirements at the outset of the subsequent license renewal process rather than on a case-by-case basis during license renewal reviews. 79 On August 29, 2014, the Commission issued its Staff Requirements Memorandum (SRM) in response to SECY-14-0016. 80 Therein, the Commission declined to approve the Staffs recommendation to initiate rulemaking for subsequent license renewal. Rather, the Commission directed the Staff to (a) continue to update license renewal guidance, as needed, to provide additional clarity on the implementation of the license renewal regulatory framework; (b) address emerging technical issues and operating experience through alternative vehicles 79 Id. at 9. Although the Staff recommended in SECY-14-0016 that the Commission initiate rulemaking for subsequent license renewal with respect to aging management issues, the Staff concluded that its license renewal environmental review process is adequate for consideration of the environmental impacts of subsequent license renewal. In this regard, the Staff observed, [t]he GEIS describes the most common environmental impacts to nuclear power facilities and allows applicants and the NRC to focus on important environmental issues specific to each site pursuing license renewal. The staff revised the GEIS in June 2013, and believes that the update is adequate for a future subsequent license renewal application. SECY-14-0016, at 3.
80 Staff Requirements - SECY-14-0016 - Ongoing Staff Activities to Assess Regulatory Considerations for Power Reactor Subsequent License Renewal (Aug. 29, 2014) (ML14241A578).
(e.g., issuance of generic communications, voluntary industry initiatives, or updates to NUREG-1801 [the GALL Report]; 81 (c) implement inspection enhancements identified in the Reactor Oversight Process Enhancement Project related to aging management, and implement the Inspection Procedure (IP) Operating Experience (OpE) Update Process; and (d) keep the Commission informed on various specified matters and emphasize to the industry the need for resolution of these issues. 82 Following the Commissions issuance of its SRM, the Staff met with industry and other interested stakeholders to discuss subsequent license renewal-related issues, acted upon the Commissions instructions, briefed the Commission on its progress in addressing subsequent license renewal-related issues, and updated its regulatory guidance to specifically address subsequent license renewal. In particular, the Staff issued two regulatory guidance documents, updating the GALL Report and SRP-LR, for use in the preparation and review of SLR applications (SLRAs). These guidance documents are:
(1) NUREG-2191, Generic Aging Lessons Learned for Subsequent License Renewal (GALL-SLR) Report, Vols. 1 and 2 (July 2017) (ML17187A031 and ML17187A204); and (2) NUREG-2192, Standard Review Plan for Review of Subsequent License Renewal Applications for Nuclear Power Plants (SRP-SLR) (July 2017)
(ML17188A158). 83 81 Guidance concerning the preparation and review of initial license renewal applications is provided in NUREG-1800, Standard Review Plan for Review of License Renewal Applications for Nuclear Power Plants, Rev. 2 (SRP-LR) (Dec. 2010); and NUREG-1801, Generic Aging Lessons Learned (GALL) Report, Rev. 2 (Dec. 2010).
82 Staff Requirements - SECY-14-0016 - Ongoing Staff Activities to Assess Regulatory Considerations for Power Reactor Subsequent License Renewal (Aug. 29, 2014) (ML14241A578).
83 See Final Guidance Documents for Subsequent License Renewal, 82 Fed. Reg. 32,588 (July 14, 2014). Subsequently, the Staff issued two other documents concerning the GALL-SLR and SRP-SLR: (a) NUREG-2221, Technical Bases for Changes in the Subsequent License Renewal Guidance Documents NUREG-2191 and NUREG-2192 (Dec. 2017) (ML17362A126), and (b) NUREG-2222, Disposition of Public Comments on the Draft Subsequent License Renewal Guidance Documents NUREG-2191 and NUREG-2192 (Dec. 2017). See Supplementary Guidance Documents for Subsequent License Renewal, 83 Fed. Reg. 16,133 (Apr. 13, 2018).
In sum, the Atomic Energy Act and the Commissions regulations provide no limit on the number of times that a nuclear power plants operating license may be renewed. The regulations in 10 C.F.R. Parts 51 and 54 establish the applicable requirements for nuclear power plant license renewals and, as the Commission made clear in 2014, the existing license renewal regulatory framework and regulatory process apply, as well, to subsequent license renewal. That regulatory framework and process are set out in 10 C.F.R. Parts 51 and 54, as supported by guidance in (a) the GALL-SLR Report (NUREG-2191); (b) the SRP-SLR (NUREG-2192), (c) the GEIS-LR, Rev. 1 (NUREG-1437, Rev. 1), and (d) the ESRP-LR (NUREG-1555, Supp. 1, Rev. 1). 84 Indeed, those are the regulatory requirements and guidance documents that will primarily frame the Staffs evaluation of the Turkey Point subsequent license renewal application. 85 84 Additional guidance for the preparation of a subsequent license renewal application is provided in NEI-17-01, Industry Guideline for Implementing the Requirements of 10 CFR Part 54 for Subsequent License Renewal (ML17339A599) and NEI 17-04, Model SLR New and Significant Assessment Approach for SAMA, Revision 0, both of which the Staff approved for interim use on December 20, 2017.
85 The Commission recently summarized these matters as follows:
In August 2014, the Commission affirmed that no revisions to either the safety or environmental regulations are needed to support the assessment of a SLR application. However, the Commission directed the staff to update license renewal guidance, as needed, to provide additional clarity on the implementation of the license renewal regulatory framework. . . .
The staff determined that no revisions were needed to the NRC guidance document entitled, Standard Review Plans for Environmental Reviews for Nuclear Power Plants, to support environmental reviews from 60 to 80 years. However, the staff determined that the GALL Report and the SRP-LR should be updated to facilitate more effective and efficient reviews of SLR applications.
Letter from Kristine L. Svinicki (Chairman, NRC) to Hon. John A. Barrasso (Chairman, U.S. Sen.
Committee on Environment and Public Works) (July 19, 2018) (ML18170A241), Enclosure (ML18170A284), at 45-46 (emphasis added).
- 4. Environmental Review of License Renewal and SLR Applications The National Environmental Policy Act of 1969, as amended (NEPA), 42 U.S.C. § 4321 et seq., requires Federal agencies to include in any recommendation or report on proposals for major Federal actions significantly affecting the quality of the human environment, a detailed statement on:
(i) the environmental impact of the proposed action, (ii) any adverse environmental effects which cannot be avoided should the proposal be implemented, (iii) alternatives to the proposed action, (iv) the relationship between local short-term uses of mans environment and the maintenance and enhancement of long-term productivity, and (v) any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented. 86 In accordance with NEPA, the NRC is required to take a hard look at the environmental impacts of a proposed major Federal action that could significantly affect the environment, as well as reasonable alternatives to that action. 87 This hard look is tempered by a rule of reason that requires agencies to address only impacts that are reasonably foreseeable - not remote and speculative. 88 NEPA does not call for certainty or precision, but an estimate of anticipated (not unduly speculative) impacts. 89 Neither does NEPA call for Federal agencies to 86 NEPA, Section 102(2)(C), 42 U.S.C. § 4332.
87 Louisiana Energy Services, L.P. (Claiborne Enrichment Center), CLI-98-3, 47 NRC 77, 87-88 (1998).
88 See, e.g., Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-156, 6 AEC 831, 836 (1973).
89 Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-05-20, 62 NRC 523, 536 (2005) (emphasis in original).
do the impossible. 90 Further, NEPA gives agencies broad discretion to keep their inquiries within appropriate and manageable boundaries. 91 As the Commission has observed, NEPA requires consideration of reasonable alternatives, not all conceivable ones. 92 Further, the Staffs EISs need only discuss those alternatives that . . . will bring about the ends of the proposed action - a principle equally applicable to Environmental Reports. 93 The NRC has adopted regulations in 10 C.F.R. Part 51, implementing its NEPA responsibilities, pursuant to which the NRC Staff performs an environmental review for license renewal to assess the potential impacts of 20 additional years of operation. 94 In 1996, the Commission amended the environmental review requirements in 10 C.F.R. Part 51 to address the scope of environmental review for license renewal applications; 95 as part of that rulemaking, Appendix B was added to Part 51, delineating the issues that are to be considered in a license renewal environmental review. 96 The regulations in Part 51 and Appendix B were further amended in 2013, updating the Commissions 1996 findings; in particular, the 2013 amendment redefined the number and scope of the environmental impact issues that must be addressed 90 The Supreme Court has observed that where it is not possible for an agency to analyze the environmental consequences of a proposed action or alternatives to it, requiring such analysis would have no factual predicate and under those circumstances an Environmental Impact Statement (EIS) is not required. Kleppe v. Sierra Club, 427 U.S. 390, 401-02 (1976).
91 Louisiana Energy Servs., L.P., CLI-98-3, 47 NRC at 103 (citation omitted).
92 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 338 (2012).
93 Id. at 339 (footnotes omitted).
94 Turkey Point, CLI-01-17, 54 NRC at 6-7.
95 Final Rule, Environmental Review of Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467 (June 5, 1996).
96 The 1996 rule added Appendix B to Subpart A of 10 C.F.R. Part 51, Environmental Effect of Renewing the Operating License of a Nuclear Power Plant; Appendix B included Table B-1, Summary of Findings on NEPA Issues for License Renewal of Nuclear Power Plants, which summarized the findings of the 1996 GEIS.
during license renewal environmental reviews, and incorporated lessons learned and knowledge gained during previous license renewal environmental reviews. 97 The regulations in 10 C.F.R. Part 51, Appendix B divide the license renewal environmental review into (1) generic issues, and (2) plant-specific issues. The generic impacts of operating a plant for an additional 20 years that are common to all plants, or to a specific subgroup of plants, were addressed in the Commissions Generic Environmental Impact Statement for License Renewal of Nuclear Plants (GEIS), NUREG-1437 (May 1996), as later revised in 2013. 98 The findings and analyses contained in the GEIS were used by the Commission as the technical basis for its revisions of 10 C.F.R. Part 51, defining the scope of its review of the environmental impacts of license renewal under NEPA.
Generic impacts analyzed in the GEIS are designated as "Category 1" issues, whereas site-specific issues are designated as Category 2 issues. A license renewal applicant is generally not required to discuss generic Category 1 issues in its Environmental Report, but instead may reference and adopt the Commissions generic findings set forth in 10 C.F.R.
Part 51 and the GEIS. 99 In addition, pursuant to 10 C.F.R. § 51.53(c)(3)(iv), an applicants environmental report must contain any new and significant information regarding the environmental impacts of license renewal of which the applicant is aware. Thus, an applicant must provide a plant-specific review of the non-generic Category 2 issues in its Environmental 97 Final Rule, Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 78 Fed. Reg. 37,281 (June 20, 2013).
98 See NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Rev. 1 (June 2013), Vols. 1-3 (ML13106A241, ML13106A242, and ML13106A244).
99 Turkey Point, CLI-01-17, 54 NRC at 11. The Commission has emphasized that generic analysis is an appropriate method of meeting the agency's statutory obligations under NEPA. Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station),
Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-09-10, 69 NRC 521, 523-25 (2009) (citing Massachusetts v. NRC, 522 F.3d 115 (1st Cir. 2008)).
Report, and must address any new and significant information which might render the Commissions generic Category 1 determinations incorrect in that proceeding. 100 The Staffs license renewal environmental review is guided by the 2013 GEIS-LR (NUREG-1437, Rev. 1 (June 2013), and by the Standard Review Plan for Environmental Review of Nuclear Power Plants - Operating License Renewal (ESRP-LR) (NUREG-1555, Supp. 1, Rev. 1) (June 2013). Like the applicant, the NRC Staff is not required to address generic (Category 1) impacts in its plant-specific environmental impact statement, which it publishes as a supplement to the GEIS (SEIS). 101 The Staff must, however, address any new and significant information of which it becomes aware, which might affect the applicability of the Commissions generic Category 1 determinations in the proceeding. 102 Contentions raising environmental issues in a license renewal proceeding are limited to those issues which are affected by license renewal and have not been addressed by rulemaking or on a generic basis. 103 As the Commission stated, Category 1 issues "are not subject to site-100 See, e.g., Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2),
CLI-13-07, 78 NRC 199, 212-13 (2013); Turkey Point, CLI-01-17, 54 NRC at 11-12; Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-09-10, 69 NRC 521, 527 (2009).
101 The 1996 GEIS identified 92 license renewal environmental issues, of which 69 were determined to be generic (i.e., Category 1), 21 were determined to be plant-specific (i.e., Category 2), and two did not fit into either category (i.e., uncategorized). The 2013 revision to the GEIS modified this list, identifying 78 environmental impact issues for license renewal, of which 59 were determined to be generic for all sites, 2 are uncategorized, and 17 are site-specific Category 2 issues. NUREG-1437, Rev. 1, Vol. 1, at 1-36. The findings of the environmental impact analyses conducted for the GEIS (as revised in 2013) are listed in Table B-1 of Appendix B, which lists each issue and its category level.
102 See, e.g., Limerick, CLI-13-07, 78 NRC at 216-17; Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-16-8, 83 NRC 417, 439 (2016). Following publication of a site-specific supplement to the GEIS, further supplementation is required only if there are significant new circumstances or information . . . [that] paint[s] a dramatically different picture of impacts compared to the description of impacts in the EIS. Massachusetts v. NRC, 708 F.3d at 68-69, quoting Town of Winthrop
103 Turkey Point, CLI-01-17, 54 NRC at 11-12; see 10 C.F.R. § 51.53(c)(3)(i)-(ii).
specific review and thus fall beyond the scope of individual license renewal proceedings." 104 Thus, the Commission has stated:
The license renewal GEIS determined that the environmental effects of storing spent fuel for an additional 20 years at the site of nuclear reactors would be "not significant."
Accordingly, this finding was expressly incorporated into Part 51 of our regulations. Because the generic environmental analysis was incorporated into a regulation, the conclusions of that analysis may not be challenged in litigation unless the rule is waived by the Commission for a particular proceeding or the rule itself is suspended or altered in a rulemaking proceeding. 105 B. Analysis of the Petitioners Proposed Contentions
- 1. Joint Petitioners The Joint Petitioners present five environmental contentions for litigation in this proceeding. As discussed below, the Staff does not oppose the admission of portions of Contentions 1-E and 5-E, but opposes the admission of Contentions 2-E, 3-E and 4-E in their entirety.
Contention 1-E The Environmental Report fails to consider a reasonable range of alternatives to the proposed action, as required by NEPA and NRC implementing regulations.
104 Id. at 12; see 10 C.F.R. § 51.53(c)(3)(i)-(ii). In Turkey Point, the Commission recognized that the rules provide a number of opportunities for individuals to alert the Commission to new and significant information that might render a generic finding invalid, either with respect to all nuclear power plants or for one plant in particular. In the hearing process, for example, petitioners with new information showing that a generic rule would not serve its purpose at a particular plant may seek a waiver of the rule." Turkey Point, CLI-01-17, 54 NRC at 12. No request for waiver has been requested by any of the petitioners here.
105 Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc.
(Pilgrim Nuclear Power Station), CLI-07-03, 65 NRC 13, 17 (footnotes omitted), reconsid. denied, CLI-07-13, 65 NRC 211, 214 (2007). This approach has been found to comply with NEPA. See, e.g.,
Massachusetts v. NRC, 708 F.3d at 68-69.
In this contention, the Joint Petitioners assert that the Applicants Environmental Report considers only the proposed action and the no action alternative, 106 and omits consideration of another reasonable and feasible alternative, whereby the plants cooling canal system (CCS) would be replaced with mechanical draft cooling towers to reduce the adverse environmental effects of the CCS. 107 The Joint Petitioners describe a number of impacts resulting from operation of the CCS, including (a) harm to threatened, endangered, and protected species (specifically, the threatened American crocodile) and essential fish habitat; (b) groundwater use conflicts (involving the generation and offsite migration of a hypersaline plume, and the proposed construction of a recovery well system for withdrawal and disposal of hypersaline groundwater; and (c) the release of radionuclides (tritium) in plant wastewater to groundwater. 108 The Joint Petitioners state that the Environmental Report considers, as part of the no action alternative, the construction of replacement power sources with mechanical draft cooling towers; that the natural gas plant at the site uses mechanical draft cooling towers; that Turkey Point Units 6 and 7 will use closed-cycle wet cooling towers; and that the cost of construction of cooling towers for Units 3 and 4 would be approximately $81 million per unit - all of which, the Joint Petitioners allege, demonstrates the reasonableness and feasibility of this alternative. 109 NRC Staff Response to Contention 1-E The Staff does not oppose the admission of Contention 1-E, insofar as it asserts that the Applicants Environmental Report omits consideration of mechanical draft cooling towers in connection with license renewal of Turkey Point Units 3 and 4, as a reasonable alternative to 106 Id. at 17, citing ER at 7-1.
107 Id. at 16, 19, 26.
108 Id. at 19, 23-29.
109 Id. at 17-18, 19-22.
use of the plants cooling canal system. As noted by the Joint Petitioners, the Applicants ER considers only the proposed action and the no action alternative, 110 and omits consideration of a cooling tower alternative. The Staff recognizes that NEPA requires the NRC to consider reasonable alternatives to the proposed Federal action, 111 and the Staffs SEIS is required to consider the environmental impacts of alternatives to the proposed action; and alternatives available for reducing or avoiding adverse environmental effects. 112 Accordingly, the Staff does not oppose the admission of Contention 1-E, as a contention of omission.
While the Staff does not oppose the admission of Contention 1-E as a contention of omission, the Staff opposes the admission (as part of the contention) of issues concerning the environmental impacts of continued CCS operation. 113 In this regard, the Joint Petitioners describe a number of alleged adverse impacts resulting from operation of the CCS, including (a) harm to threatened, endangered, and protected species and essential fish habitat, (b) groundwater use conflicts, and (c) the release of tritium in plant wastewater to groundwater.
Nowhere, however, do the Joint Petitioners point to any portion of the Applicants ER which they believe contains an inadequate description of those alleged impacts. 114 Rather, the Joint Petitioners contest only the Applicants general statement that the continued operation of 110 Id. at 17, citing ER at 7-1.
111 Seabrook, CLI-12-5, 75 NRC at 338.
112 10 C.F.R. § 51.71(d); see 10 C.F.R § 51.95(c)(1) and (2). The Staff notes that it will consider a cooling tower alternative in its Supplemental Environmental Impact Statement (SEIS) for subsequent license renewal of Turkey Point Units 3 and 4. In undertaking an evaluation of a cooling tower alternative, the Staff expresses no position regarding the environmental impacts of CCS operation or the need for further mitigation of those impacts beyond the measures currently in place or mandated by State and local regulatory authorities.
113 See Joint Petition at 17-29.
114 See, e.g., ER § 3.7.8, at 3-177 213 (endangered, threatened and special status species);
ER § 4.6.6, at 4 4-43 (same); ER §§ 4.5.2 - 4.5.4, at 4 4-24 (groundwater use conflicts); ER
§ 4.5.5, at 4 4.30 (radionuclides released to groundwater).
Units 3 and 4 does not result in significant adverse effects to the environment 115 - and indeed, their petition often cites the ER in support of their description of the alleged impacts. 116 Finally, while the contention broadly asserts that the Applicants ER fails to consider a reasonable range of alternatives to the proposed action, the only alternative that is specifically cited in the contention is license renewal of Turkey Point Units 3 and 4 using a mechanical draft cooling tower alternative. Accordingly, alternatives other than the use of mechanical draft cooling towers should be excluded from this contention.
In sum, insofar as Contention 1-E describes the environmental impacts of CCS operation or the need to consider alternatives other than mechanical draft cooling towers, the contention fails to demonstrate that a genuine dispute exists with the applicant/licensee on a genuine issue of material fact and fails to provide references to specific portions of the application . . . that the petitioner disputes and the supporting reasons for each dispute, as required by 10 C.F.R. § 2.309(f)(1)(vi). 117 Accordingly, the impacts of CCS operation alleged by the Joint Petitioners, pertaining to threatened, endangered, and protected species and essential fish habitat, groundwater use conflicts, the release of tritium in plant wastewater to groundwater, and alternatives other than mechanical draft cooling towers, should be excluded from litigation of this contention. 118 115 Joint Petition at 19 and 28, citing ER at 7-39. The Joint Petition asserts that the Applicants general statement, cited in the text above, is . . . contrary to . . . the plain facts. Id. at 28, n.121.
116 See Joint Petition at 19 nn.85-87, citing ER at 4 4-43 (threatened, endangered, and protected species, and essential fish habitat), ER at 4 4-23 (groundwater use conflicts), and ER at 4 4-29 (radionuclides released to groundwater); Joint Petition at 25 n.110-112, citing ER at 9-11, 9 9-13, and 3-109 (groundwater use conflicts); Joint Petition at 28 n.124, citing ER at 4-26 (radionuclides released to groundwater).
117 Palisades, LBP-06-10, 63 NRC at 340-42.
118 Moreover, a determination of the precise impacts of CCS operation is unnecessary to resolution of the contentions central assertion that a reasonable and feasible alternative was omitted from the Applicants ER.
Contention 2-E The Environmental Report fails to adequately consider the cumulative impacts of continued operation of [Turkey Point] Units 3 and 4. 119 In Contention 2-E, the Joint Petitioners assert that [t]he Environmental Report fails to adequately consider the cumulative impacts of continued operation of [Turkey Point] units 3 and 4 on water resources, in combination with the reasonably foreseeable effects of climate change, including sea level rise and hotter temperatures. 120 The Joint Petitioners state that sea level and air temperature within the vicinity of Turkey Point will be higher during the period of extended operation (i.e., from 2032 to 2053) than they are today. The Joint Petitioners cite the Declaration of Dr. Robert Kopp, 121 who states that, [t]hrough 2060, . . . there is between a 68 percent [chance] and a 95 percent chance that average sea-level rise at Key West [which Dr. Kopp posits as a comparable location to Turkey Point] will exceed 1 foot above the National Tidal Datum Epoch, and [t]hrough 2060, there is a 10-37 [percent] chance that average sea level rise will exceed 2 feet under the High emissions scenario and a 3-8 [percent] chance under the Low emissions scenario . . . . 122 Dr. Kopp concludes that under a low-emissions scenario and with a relatively stable Antarctic ice sheet, it is likely (greater than two chances in three) that sea-level rise will exceed 1 foot in south Florida by 2060 . . . . 123 As a consequence, Dr. Kopp 119 Joint Petition at 30.
120 Id. at 30-31, citing ER at 4 4-74. The issue of cumulative impacts is a Category 2 issue.
See 10 C.F.R. Part 51, Table B-1 (2018), at 66.
121 Declaration of Dr. Robert Kopp (July 26, 2018) (Joint Petition, Att. N) (Kopp Declaration).
122 Id. at 12, ¶ 30.
123 Id. at 16, ¶ 38. Dr. Kopp provides other probability estimates of future sea level rise, using a number of alternative assumptions. For example, he states that [u]nder a high-emissions scenario, it is very likely that south Florida sea-level rise will exceed 1 foot by 2060, and there is between about a 1-in-10 chance (with a relatively stable Antarctic ice sheet) and a 1-in-3 chance (with a pessimistic model of Antarctic instability) that it will exceed 2 feet by 2060 and between about a 1-in-200 and a 1-in-40 chance that [it] will exceed 3 feet by 2060. Id. at 16, ¶ 39.
states that, assuming storm characteristics do not change, the frequency and extent of extreme flooding associated with coastal storms will increase 124 because a tide or storm of a given magnitude will produce a more extreme total water level than it would have with lower average sea level. 125 Consequently, [i]f the sea level rises by one foot, . . . the probability of storms increasing water levels to the height of 2.0 feet becomes 50 [percent] rather than 1 [percent]. 126 With respect to air temperatures, the Joint Petitioners assert that in the Southeast U.S.
for the 2036-2065 time period, air temperature increases are projected to range from 3.4°F to 4.3°F, 127 and changes in temperature extremes are projected to be 5.79°F for the warmest day of the year and 11.09°F for the warmest 5-day, 1-in-10-year event compared to the 1976-2005 period. 128 Finally, the Joint Petitioners assert that reasonably foreseeable impacts from sea level rise will increase the risk of flooding at Turkey Point, including the potential for overtopping or breach of the canal system, leading to direct discharges of polluted canal water into surface water resources including Biscayne Bay. 129 Similarly, they claim that [h]igher air temperatures will increase the rate of evaporation in the [CCS] leading to more saline conditions. Higher salinity in the [CCS] will . . . adversely impact groundwater resources. 130 And, they claim that 124 Id. at 3-4, ¶ 12, citing William V. Sweet, et al., Sea Level Rise, in CLIMATE SCIENCE SPECIAL REPORT: FOURTH NATIONAL CLIMATE ASSESSMENT, VOL. 1 333-363 (D.J. Wuebbles et al. eds., 2017).
125 Id. at 13, ¶ 31.
126 Joint Petition at 35.
127 Id., citing CLIMATE SCIENCE SPECIAL REPORT at 197, Table 6.4.
128 Id., citing CLIMATE SCIENCE SPECIAL REPORT at 198, Table 6.5.
129 Joint Petition, at 38.
130 Id.
the Applicant erroneously assumes that the alleged impacts of the hypersaline plume resulting from CCS operation will be managed through the plants environmental permits. 131 NRC Staff Response to Contention 2-E The Staff opposes the admission of this contention in that it fails to satisfy the requirements of 10 C.F.R. §§ 2.309(f)(1)(v)-(vi). In this regard, the Joint Petitioners correctly state that an applicants Environmental Report must consider cumulative impacts as a site-specific Category 2 issue 132 and they provide expert opinion regarding the potential for sea level and air temperature increases in the vicinity of Turkey Point. Significantly, however, they fail to (a) provide any basis for their claim that subsequent license renewal of Turkey Point would have a cumulative effect with climate change impacts, (b) show that their concerns over possible overtopping of the CCS and increased salinity in the CCS are reasonably foreseeable impacts of subsequent license renewal, or (c) demonstrate a genuine dispute of material fact regarding the Applicants discussion of climate change in its Environmental Report. Accordingly, this contention should be rejected.
(a) The Contention Lacks Basis To the extent that Contention 2-E asserts that continued operation of the CCS during the subsequent license renewal term will have cumulative surface water impacts, the contention lacks basis. In this regard, the Joint Petitioners cite the opinion of Dr. Kopp in support of their claim that climate change will result in increased sea levels and air temperatures in the vicinity of Turkey Point, but they do not provide any support to show how the continued operation of 131 Id. at 38-39.
132 Cumulative impacts of continued operations and refurbishment associated with license renewal must be considered on a plant-specific basis. Impacts would depend on regional resource characteristics, the resource-specific impacts of license renewal, and the cumulative significance of other factors affecting the resource. 10 C.F.R. Part 51, Table B-1 (2018), at 66.
Turkey Point, in combination with these increased sea levels and air temperatures, will have a cumulative impact on the environment. 133 Thus, even accepting their claims regarding future increases in sea level and air temperature, the Joint Petitioners do not link those changes to the impacts of Turkey Points continued operation. Rather, they assert only that (1) reasonably foreseeable impacts from sea level rise will increase the risk of flooding at Turkey Point, including the potential for overtopping or breach of the canal system, leading to direct discharges of polluted canal water into surface water resources including Biscayne Bay, 134 and (2) a reasonably foreseeable increase in air temperature will increase the rate of evaporation in the cooling canal system leading to more saline conditions. 135 These are conclusory statements, however, with no support provided. For instance, the Joint Petitioners do not discuss such necessary information as the relationship between their projected sea levels and the relevant elevations of the Turkey Point site, its sea barriers, or the CCS, to support their claim that the site will be flooded and the CCS will be overtopped or breached. 136 Similarly, while an increase in air temperature, in theory, may lead to increased evaporation in the CCS, the Joint Petitioners provide no support to demonstrate that a projected air temperature increase of 3.4°F to 4.3°F 137 would increase the evaporation in 133 Cumulative impact is the impact on the environment which results from the incremental impact of the action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or non-Federal) or person undertakes such other actions. 40 C.F.R.
§ 1508.7. Accordingly, climate change impacts are only relevant to the extent that they, in combination with the impacts of the proposed action, significantly affect the environment; they are not relevant separate from the impacts of the proposed action. See also 42 U.S.C. § 4332(C) (requiring a detailed statement . . . on . . . the environmental impact of the proposed action . . .) (emphasis added); 10 C.F.R.
§ 51.45(b) (requiring an environmental report to discuss the impact of the proposed action on the environment) (emphasis added).
134 Joint Petition at 38.
135 Id. at 38. See also id. at 36-37.
136 See, e.g., Joint Petition at 38.
137 Id. at 35, citing CLIMATE SCIENCE SPECIAL REPORT at 197, Table 6.4.
the CCS to any particular extent, or to such an extent that there would be a noticeable increase in CCS salinity. 138 In this regard, neither mere speculation nor bare or conclusory assertions, even by an expert, suffices to allow the admission of a proposed contention. 139 While a Board may view a petitioner's supporting information in a light that is favorable to the petitioner, if a petitioner neglects to provide the requisite support for its contentions, the Board may not make assumptions or draw inferences that favor the petitioner, nor may the Board supply the information that a contention is lacking. 140 Further, it is not the Boards (or the parties) responsibility to sift through the documents attached to a petitioners pleading in a search for support of its assertions. 141 Inasmuch as the Joint Petitioners provide no support for their claim that the ER fails to adequately consider the cumulative impacts of continued operation combined with climate change, other than the bald assertions that there will be overtopping of the CCS and increased salinity in the CCS, their assertions fail to satisfy 10 C.F.R.
§ 2.309(f)(1)(v) and (vi). Therefore, the Joint Petitioners assertions regarding the cumulative impacts of climate change and subsequent license renewal of Turkey Point are not admissible.
138 See, e.g., Joint Petition at 38. This is distinct from the issue addressed by a previous Board regarding a license amendment to increase the ultimate heat sink water temperature limit in the CCS from 100°F to 104°F. Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-15-13, 81 NRC 456 (2015). In that proceeding, the effects of an increase in CCS water temperature and salinity was at issue; in contrast, here, the Joint Petitioners seek to litigate the effects of a 3.4°F to 4.3°F increase in air temperature on CCS water temperature and salinity and, in turn, on the environment.
139 See USEC Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 472 (2006); Fansteel, Inc. (Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195, 203 (2003).
140 See Crow Butte Res., Inc. (North Trend Expansion Project), CLI-09-12, 69 NRC 535, 553-54 (2009); Arizona Pub. Serv. Co. (Palo Verde Nuclear Generating Station, Unit Nos. 1, 2, and 3), CLI 91-12, 34 NRC 149, 155 (1991).
141 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 332 (2012).
(a) Overtopping of the CCS and Increased Salinity in the CCS Are Not Reasonably Foreseeable Impacts While the Joint Petitioners postulate an increase in sea level and air temperature, they do not demonstrate that overtopping of the CCS or increased salinity in the CCS are reasonably foreseeable impacts and that the Applicant, therefore, should have discussed these impacts in the ER. Specifically, the Joint Petitioners do not discuss how these impacts are reasonably foreseeable in light of (a) FPLs plans to manage the CCS during the period of extended operation, and (b) the 2016 consent order between FPL and the State of Florida, Department of Environmental Protection (FDEP), imposing mitigation and monitoring requirements to redress water quality conditions in the CCS.
As discussed in the Turkey Point subsequent license renewal application, FPL intends to use an aging management program consistent with the GALL-SLR Report to manage the loss of material or form of the CCS. 142 The GALL-SLR Report provides that this program will address the effects of natural phenomena that may affect water-control structures, 143 monitor for erosion or degradation that may impose constraints on the function of the cooling system and present a potential hazard to the safety of the plant, 144 provide a projection of degradation until the next scheduled inspection, 145 and require remedial or mitigating measures. 146 The Joint Petitioners, however, do not discuss this program. Additionally, the Joint Petitioners do not 142 Florida Power & Light Co., Turkey Point Nuclear Plant Units 3 and 4, Subsequent License Renewal Application, Rev. 1, at 2.4 2.4-22, 3.5-66, 3.5-125 (Apr. 2018) (ML18113A146) (SLRA)
(providing that Turkey Points AMP will be consistent with the aging management program of GALL-SLR Report at XI.S7, Inspection of Water-Control Structures Associated with Nuclear Power Plants).
143 NUREG-2191, Vol. 2, Generic Aging Lessons Learned for Subsequent License Renewal (GALL-SLR) Report, at XI.S7-1 (Jul. 2017) (ML17187A204).
144 Id. at XI.S7-2.
145 Id. at XI.S7-4.
146 Id.
discuss the requirements of the consent order that FPL is to prevent releases of groundwater from the CCS to surface waters connected to Biscayne Bay that result in exceedances of surface water quality standards in Biscayne Bay, and that FPL must perform a thorough inspection of the CCS periphery and address any material breaches or structural defects. 147 Finally, even if overtopping does occur, the Joint Petitioners do not explain how it would significantly impact the environment given that the consent order requires FPL to maintain an average annual CCS salinity at or below 34 practical salinity units (PSU) and to submit a detailed report outlining the potential sources of the nutrients found in the CCS and to implement a plan to minimize these nutrient levels. 148 Similarly, with respect to the argument that increased air temperature will result in higher CCS salinity, the Joint Petitioners do not explain why it is reasonably foreseeable that an increase in air temperatures will lead to increased salinity in the CCS, in light of the consent orders requirement that FPL achieve an average annual CCS salinity of at or below 34 PSU at the completion of the fourth year of freshening activities, and maintain this salinity thereafter. 149 As discussed supra at 24-25, NEPA is subject to a rule of reason, such that an evaluation of environmental impacts need not address all theoretical possibilities, but only those that have some reasonable possibility of occurring. 150 The Joint Petitioners, however, do not demonstrate that the postulated overtopping of the CCS and the increased salinity in the CCS have a reasonable possibility of occurring despite FPLs aging management program for the 147 Florida Department of Environmental Protection v. FPL, OGC File No. 16-0241 (Consent Order), at 7, 10-11, ¶¶ 19, 21 (Jun. 20, 2016) (ML16216A216) (Consent Order).
148 Id. at 7-10, ¶¶ 19, 20.
149 Id. at 7, ¶ 19.
150 Long Island Lighting Co. (Shoreham Nuclear Power Station), ALAB-156, 6 AEC 831, 836 (1973). See also Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-22, 72 NRC 202, 208 (2010) (explaining that NEPA requirements are tempered by a practical rule of reason).
CCS and FPLs requirement to comply with the consent order. Therefore, these assertions in Contention 2-E are inadmissible.
(c) Groundwater Impacts Insofar as Contention 2-E asserts that subsequent license renewal of Turkey Point Units 3 and 4 will result in cumulative impacts to groundwater that have not been addressed in the ER, the contention lacks basis. In fact, the Applicants ER discusses the cumulative impacts to groundwater resulting from operation of Turkey Point Units 3 and 4 in combination with impacts to groundwater resulting from operation of the other Turkey Point facilities and . . . from other projects and activities in the surrounding area, by incorporating by reference the cumulative impacts discussion in the environmental impact statement (EIS) prepared by the NRC Staff in 2016 for the combined licenses for Turkey Point Units 6 and 7. 151 The Staffs EIS for the Turkey Point Units 6 and 7 COLs discussed the contribution from Turkey Point Units 3 and 4, 152 as well as the effect of the consent order requiring freshening of the CCS and the 2015 consent agreement with Miami-Dade County for remediating the hypersaline plume. 153 The ER concluded that the cumulative impacts to groundwater would be small and are managed because FPL continues to comply with its permits for groundwater withdrawals and injection, the FDEP [consent order] for freshening of the cooling canals, and the [consent agreement] with Miami-Dade County for remediation of the hypersaline plume. 154 Further, the ER cites NRC Regulatory Guide 4.2, stating that (for resource areas regulated through a permitting process),
151 ER at 4-68.
152 See NUREG-2176, Vol. 2, Environmental Impact Statement for Combined Licenses (COLs) for Turkey Point Nuclear Plant Units 6 and 7, at Table 7-1 (Oct. 2016) (ML16300A137) (listing the projects of Turkey Point Units 1-5 and Turkey Point Units 3 and 4).
153 See id. (listing the projects of [f]reshening of the water in the cooling canals of the industrial waste water facility and [r]emediation of hypersalinity plume).
154 ER at 4-69.
it may be assumed that cumulative impacts are managed as long as facility operations are in compliance with their respective permits. 155 The Joint Petitioners dismiss the Applicants conclusion in the ER, that FPLs compliance with State permits ensures that cumulative impacts to groundwater would be managed. 156 Rather, they argue that, as a matter of law, FPL may not rely on Regulatory Guide 4.2, because FPL has previously violated its permits and relevant regulations with respect to groundwater resources. 157 This is not a sound argument, however, in that the Joint Petitioners have shown no reason to believe that FPLs previous permit violations will be repeated in the future - especially where, as here, the permitting agency (FDEP) has taken enforcement action to rectify the non-compliance, and the permitted entity (FPL) has undertaken actions to rectify its past non-compliance and to mitigate the resulting impacts. Specifically, the FDEP consent order requires FPL to rectify its past violation of its National Pollutant Discharge Elimination System/Industrial Wastewater Permit, in accordance with the specific terms of the consent order. 158 Further, the FDEP consent order requires remediation of the hypersaline plume and imposes requirements for monitoring to demonstrate that the remediation has been successful in halting and retracting the extent of the plume. 159 The Joint Petitioners do not dispute that FPL is complying with the consent order at this time. Additionally, it is reasonable for the NRC to expect that the State regulatory authority charged with permitting the CCS will 155 Id., citing NRC Regulatory Guide 4.2, Supp. 1, Rev. 1, Preparation of Environmental Reports for Nuclear Power Plant License Renewal Applications, at 49 (2013) (ML13067A354) (Reg. Guide 4.2).
156 Joint Petition at 38-39.
157 Id. at 39.
158 See id.at 39 n.169, citing Consent Order at ¶ 19.
159 Consent Order at 7-10, ¶ 20.
adequately enforce its own regulations. 160 Therefore, this argument fails to present an admissible issue for litigation.
(d) Other Asserted Impacts Finally, the Joint Petitioners fault the ER (a) for omit[ting] sea level rise from the list of climate change indicators, 161 (b) for not discussing the impacts of sea level rise on Turkey Point itself, 162 and (c) for not addressing their claim that an increase in air temperature at Turkey Point during the subsequent license renewal period, absent mitigating measures, will cause intake water temperatures to exceed the 104°F limit in Applicants operating license. 163 These assertions do not establish an admissible issue. First, as the Joint Petitioners acknowledge, the Applicants ER incorporates by reference the information in the license renewal GEIS 164 - and the license renewal GEIS does in fact discuss sea level rise as a climate change impact. 165 Accordingly, this assertion fails to demonstrate a genuine dispute of material fact with the Applicant, contrary to 10 C.F.R. § 2.309(f)(1)(vi). Second, the Joint Petitioners assertions regarding the effects of increased sea level and intake water temperatures on the plant raise a safety issue that challenges the adequacy of Turkey Points current licensing basis 160 See Florida Power & Light Co. (Turkey Point Units 6 and 7), LBP-17-5, 86 NRC 1, 29 (2017).
161 Joint Petition at 37 (quoting ER at 4-69).
162 Id. at 37-38.
163 Id. at 36.
164 Id. at 40-41, quoting Massachusetts v. United States, 522 F.3d 115, 120 (1st Cir. 2008) (the requirements are intended to ensure that, when the ER and the license renewal GEIS are combined, they cover all issues that NEPA requires be addressed).
165 See, e.g., GEIS at 4-237 243.
and, therefore, are not within the scope of license renewal; 166 this is demonstrated by the Joint Petitioners citations to an FPL document regarding its reevaluated flood hazard information, 167 which FPL submitted to the NRC to address a current operating license issue. 168 Accordingly, these assertions are also inadmissible.
Contention 3-E The Environmental Report fails to consider new and significant information regarding the effect of sea level [rise] on certain Category 1 and 2 issues, in violation of 10 C.F.R.
§ 51.53(C)(3)(iv). 169 In Contention 3-E, the Joint Petitioners assert that the ER at Section 5, Assessment of New and Significant Information, is remiss for stating that FPL is aware of no new and significant information regarding the environmental impacts of license renewal associated with
[Turkey Point]. 170 The Joint Petitioners contend that the effect of sea level rise on the issues of 166 10 C.F.R. § 54.30(b). See, e.g., Tennessee Valley Authority (Sequoyah Nuclear Plant, Units 1 and 2), LBP-13-8, 78 NRC 1, 11-14 (2013) (finding that a proposed contention that a license renewal application fails to adequately address the risk of flooding is inadmissible because it has to do with whether the applicant is in compliance with its current licensing basis - an issue which, consistent with 10 C.F.R. § 54.30, is not within the scope of license renewal).
167 See Joint Petition at 37, 42, 48, and 56, citing Letter from Thomas Summers, FPL, to NRC, NEI 12-06, Revision 2, Appendix G, G.4.2, Mitigating Strategies Assessment (MSA) for FLEX Strategies Report for the New Flood Hazard Information (Dec. 20, 2016) (ML17012A065) (Flood Hazard Information Letter).
168 Flood Hazard Information Letter, Enclosure at 3 (stating that the reevaluated flood hazards for Turkey Point exceed the plant's current design basis but can be addressed by the facilitys existing diverse and flexible (FLEX) coping strategies without additional changes other than those previously identified for enhancing plant barriers).
169 Joint Petition at 39.
170 Id. at 42 (quoting ER at 5-4). The Joint Petitioners also refer to Section 3 of the ER as part of their argument that the ER fails to analyze new and significant information regarding the effect of sea level rise . . . . Id. at 39. This is duplicative of the Joint Petitioners argument in Contention 4-E that Section 3 of the ER erroneously fails to describe the reasonably foreseeable affected environment during the subsequent license renewal period . . . . Id. at 47. As discussed in the Staffs response to Contention 4-E, the Joint Petitioners argument regarding Section 3 of the ER is inadmissible because (1) there is no requirement that Section 3 discuss the effects of climate change, (2) the ER does discuss relevant effects of climate change during the license renewal period, and (3) the specific omissions identified by the Joint Petitioners are not supported by a showing of facts or expert opinion that the asserted environmental impacts are reasonably foreseeable.
surface water use conflicts, groundwater use conflicts, cumulative impacts, and termination of plant operations and decommissioning, constitutes new and significant information that should be discussed in ER Section 3, Affected Environment. 171 Specifically, the Joint Petitioners state that the ER should account for the effect sea level rise will have on freshwater availability, ground water resources, and release of polluted cooling water into Biscayne Bay. 172 They further state that sea level rise will eliminate[] the closed-loop nature of the cooling canal system and will result in a frequent interchange of water from Biscayne Bay and the cooling canal system. 173 They state that [t]he Environmental Reports cumulative effects analysis
(§ 4.12) fails entirely to discuss the sea level rise-related impacts upon affected resources, 174 and that [s]ea level rise will affect Applicants ability to terminate plant operations and decommission the plant. 175 NRC Staff Response to Contention 3-E The Staff opposes the admission of this contention in that it fails to satisfy the requirements of 10 C.F.R. §§ 2.309(f)(1)(iii)-(vi).
First, Contention 3-E is inadmissible because it misconstrues the requirement of 10 C.F.R. § 51.53(c)(3)(iv). In 10 C.F.R. § 51.53(c)(3)(iv), the Commission requires that an environmental report for license renewal must contain any new and significant information regarding the environmental impacts of license renewal of which the applicant is aware. 176 The Joint Petitioners seek to demonstrate that sea levels will rise, but do not go on to show how this 171 Id. at 39-40.
172 Id. at 44.
173 Joint Petition at 44-45.
174 Id. at 43-44.
175 Id. at 45.
176 10 C.F.R. § 51.53(c)(3)(iv) (emphasis added).
is related to license renewal. Moreover, neither NEPA nor the NRCs regulations require an environmental report to discuss sea level rise separate from the impacts of the proposed action of license renewal. 177 Similarly, the license renewal GEIS provides that each license renewal environmental impact statement will include a plant-specific analysis of the impacts of climate change specifically on those resource areas affected by the proposed action of license renewal. 178 The Joint Petitioners have not shown that the Applicants ER fails to consider this issue in its discussion of the impacts of Turkey Points subsequent license renewal on the resource areas of concern to the Joint Petitioners. Therefore, by not tying their argument regarding new and significant information to the proposed action of license renewal, the Joint Petitioners have not demonstrated that their claims are material to the findings that the NRC must make in this proceeding and, thus, their assertions do not raise an admissible issue pursuant to 10 C.F.R.
§ 2.309(f)(1)(iv).
Second, to the extent that the Joint Petitioners attempt to tie sea level rise to the proposed action of license renewal (i.e., by asserting that sea level rise will result in the release of water from the CCS), 179 their argument is conclusory and without support. As discussed in the Staffs response to Contention 2-E, the Joint Petitioners assertions lack a sufficient factual basis because they do not explain why a rise in sea level would affect Turkey Point. Therefore, this argument is inadmissible pursuant to 10 C.F.R. § 2.309(f)(1)(v). Likewise, the Joint 177 42 U.S.C. § 4332(C) (requiring a detailed statement . . . on . . . the environmental impact of the proposed action . . .) (emphasis added); 10 C.F.R. § 51.45(b) (requiring an environmental report to discuss the impact of the proposed action on the environment) (emphasis added).
178 GEIS at 1-30. See also NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 58, Regarding River Bend Station, Unit 1, Draft Report for Comment, at 4-74 (May 2018) (ML18143B736) ([T]he NRC staff considers the potential cumulative, or overlapping, impacts from climate change on environmental resources that could be impacted by the proposed action.).
179 Joint Petition at 44-45.
Petitioners argument that the ERs analysis of cumulative effects fails to discuss sea level rise-related impacts upon affected resources 180 is inadmissible for this same reason.
Third, the Joint Petitioners do not discuss the CCS aging management program proposed in the subsequent license renewal application, 181 or the applicants obligation to ensure that the intended functions of its cooling canal system are maintained in accordance with the plants CLB. 182 Further, they do not explain why, in light of this aging management program, their assertion that there will be a frequent interchange of water from Biscayne Bay and the cooling canal system has any reasonable possibility of occurring.
Similarly, the Joint Petitioners also do not discuss the FDEPs consent order with which FPL is required to comply, and do not explain how, in light of the consent orders requirements, overtopping of the CCS would result in any significant environmental impacts. For example, the consent order requires FPL to maintain an average annual CCS salinity at or below 34 PSU, to submit a detailed report outlining the potential sources of the nutrients found in the CCS, and to implement a plan to minimize these nutrient levels. 183 Moreover, the consent order would preclude any significant interchanges of water between the CCS and Biscayne Bay, through its requirement that FPL prevent releases of groundwater from the CCS to surface waters connected to Biscayne Bay that result in exceedances of surface water quality standards in Biscayne Bay and that FPL conduct a thorough inspection of the CCS periphery and address any material breaches or structural defects. 184 Therefore, the Joint Petitioners have not shown 180 Id. at 43-44.
181 SLRA, Rev. 1, at 2.4 2.4-22, and 3.5-63 (Apr. 2018) (ML18113A146). See also NUREG-2191, Vol. 2, Generic Aging Lessons Learned for Subsequent License Renewal (GALL-SLR)
Report, at XI.S7 XI.S7-1 (Jul. 2017) (ML17187A204).
182 10 C.F.R. § 54.30(a).
183 Consent Order at 7-10, ¶¶ 19, 20.
184 Id. at 7, 10-12, ¶¶ 19, 21.
that their concerns regarding potential overtopping of the CCS are material to the findings that the NRC must make in this proceeding or that a genuine dispute of material fact exists with the Applicant on a material issue of law or fact. Accordingly, this issue is inadmissible pursuant to 10 C.F.R. § 2.309(f)(1)(iv) and (vi).
Finally, the Joint Petitioners argument regarding sea level rise and its potential impact on FPLs ability to terminate plant operations and decommission Turkey Point Units 3 and 4185 is also inadmissible. The ability to decommission, however, is a safety issue that is not unique to subsequent license renewal; instead, it is an operating licensing issue. 186 Therefore, this concern is beyond the scope of this subsequent license renewal proceeding and, pursuant to 10 C.F.R. § 2.309(f)(1)(iii), is inadmissible. 187 In sum, Contention 3-E fails to satisfy the requirements of 10 C.F.R. §§ 2.309(f)(1)(iii)-
(vi) and is, therefore, inadmissible.
Contention 4-E The Environmental Report fails to describe the foreseeable affected environment during the subsequent license renewal period. 188 In Contention 4-E, the Joint Petitioners argue that Section 3, Affected Environment, of the ER must describe the affected environment as it will exist during the subsequent license renewal period (i.e., from 2032 to 2053). 189 Specifically, they fault (a) Section 3.3, Meteorology and Air Quality, for omit[ting] information about reasonably foreseeable increases in the ambient air temperature during the license renewal period which can affect the cooling canal 185 Joint Petition at 45.
186 See 10 C.F.R. § 54.30(b).
187 See, e.g., Sequoyah, LBP-13-8, 78 NRC at 11-12.
188 Joint Petition at 47.
189 Id. at 47-48.
systems heat exchange capacity; 190 (b) Section 3.6.1.3, Potential for Flooding, for omit[ting]
relevant information about reasonably foreseeable and significant sea level rise which will dramatically increase the rate of flooding; 191 and (c) Section 3.6.2, Groundwater Resources, for omitting the reasonably foreseeable condition of groundwater resources during the relevant time period which will affect whether sufficient groundwater resources will be available during the license renewal period. 192 Without such information in Section 3, the Joint Petitioners argue that the ERs analyses of environmental impacts in Section 4, mitigation actions in Section 6, and alternatives in Section 8 are insufficient. 193 NRC Staff Response to Contention 4-E The Staff opposes the admission of this contention in that it fails to satisfy the requirements of 10 C.F.R. §§ 2.309(f)(1)(iv)-(vi).
First, the Joint Petitioners argument that the future environment must be discussed specifically in Section 3 of the ER is not material to the findings that the NRC must make. In fact, the NRCs longstanding practice has been to discuss future environmental conditions in Section 4 of its environmental impact statements, rather than in Section 3 (which describes existing environmental conditions at the time the application is submitted). As stated in the license renewal GEIS, the currently existing environment should be discussed in Section 3 (i.e.,
the baseline conditions) and then, in Section 4, the incremental potential environmental impacts of license renewal, including the impacts of climate change during the license renewal period, should be evaluated. 194 Thus, the license renewal GEIS describes the environmental impacts of 190 Id. at 55-56.
191 Id. at 56-57.
192 Id. at 57-58.
193 Id. at 47.
194 GEIS at 3-1.
climate change that are common to all alternatives in Section 4.12.3.2, and it describes the cumulative impacts of the proposed action combined with climate change in Section 4.13.12.
The ER describes the effects of climate change when combined with the effects of the proposed action, in Sections 4.12.4.3 and 4.12.5.3. 195 Although the Joint Petitioners would prefer to see the effects of climate change discussed in Section 3 of the ER, that preference is not material to the issue of whether an environmental reports evaluation of the environmental impacts of the proposed action take into account the effects of climate change during the license renewal period. 196 Second, the Joint Petitioners are incorrect in their assertion that the ER omits any description of the effects of climate change during the license renewal period. 197 As the Joint Petitioners acknowledge, the Applicants ER incorporates by reference the information in the license renewal GEIS. 198 The license renewal GEIS, in turn, includes all of the potential effects of climate change that the Joint Petitioners assert are missing from the ER, including sea level rise, increased air temperature, increased water temperature, increased water acidity, increased frequency and intensity of heavy downpours, drought, and more intense hurricanes. 199 In addition, the Applicants ER cites the Staffs EIS for the Turkey Point Units 6 and 7 combined 195 ER at 4-69, 4-71 (discussing climate change with respect to water resources and ecological resources, respectively).
196 See 42 U.S.C. § 4332(C) (requiring a detailed statement . . . on . . . the environmental impact of the proposed action . . .) (emphasis added); 10 C.F.R. § 51.45(b) (requiring an environmental report to discuss the impact of the proposed action on the environment) (emphasis added).
197 Joint Petition at 47-48.
198 Id. at 40-41.
199 Compare GEIS at 4-237 241 with Joint Petition at 48 (arguing that the ER must describe sea level rise, increased air temperature, increased surface water temperature, acidification, annual precipitation, drought, and increased storm intensity).
licenses, as part of the ERs discussion of cumulative impacts to surface and ground water, 200 as acknowledged by the Joint Petitioners, the Staffs EIS for Turkey Point Units 6 and 7 discusses the effects of climate change, such as sea level rise. 201 Therefore, there is no basis for the Joint Petitioners claim that the Applicant failed to discuss future environmental conditions in the ER, and a genuine dispute of material fact has not been shown. Accordingly, this argument is inadmissible pursuant to 10 C.F.R. §§ 2.309(f)(1)(v) and (vi).
Third, Contention 4-E is inadmissible because, although it asserts that there are three specific omissions from the ER, these assertions are not supported by a showing of facts or expert opinion that the asserted environmental impacts are reasonably foreseeable. 202 Thus, the Joint Petitioners provide no support for the proposition that a projected air temperature increase of 3.4°F to 4.3°F 203 would increase CCS water temperature to any extent, much less to such an extent that there would be a noticeable effect to the CCSs heat exchange capacity. 204 Moreover, the Joint Petitioners assertions discount the effect of the FDEP consent order, which requires FPL to develop, submit, and implement a plan for the CCS to achieve a minimum of 70 percent thermal efficiency and to maintain an average annual CCS salinity at or below 34 PSU. 205 Further, while the Joint Petitioners provide support for their view that higher sea water 200 ER at 4-68.
201 Joint Petition at 42-43 (citing NUREG-2176).
202 See Long Island Lighting Co. (Shoreham Nuclear Power Station), ALAB-156, 6 AEC 831, 836 (1973) (providing that consideration of environmental impacts need not address all theoretical possibilities, but only those that have some reasonable possibility of occurring).
203 Joint Petition at 35, citing CLIMATE SCIENCE SPECIAL REPORT at 197, Table 6.4.
204 Id. at 55-56. The Joint Petitioners cite to the Environmental Report for the proposition that air temperatures can impact the CCSs heat exchange capacity, but the cited portion of the ER does not discuss the effect of air temperature on the CCS. See ER at 4 4-34.
205 Consent Order at 7-10, ¶ 20.
levels may occur at Turkey Point during the subsequent license renewal period, 206 they provide no support for their assertion that these higher sea water levels will lead to increased flooding at Turkey Point. 207 Likewise, there is no support for their assertions regarding groundwater; in this regard, the Joint Petitioners merely assert, without support, that it is highly probable that groundwater resources will be inadequate . . . . 208 All of these arguments are supported only by conclusory statements and, therefore, lack basis and are inadmissible pursuant to 10 C.F.R.
§§ 2.309(f)(1)(v) and (vi).
Fourth, the Joint Petitioners concerns that (a) the heat exchange capacity of the CCS will degrade such that Turkey Points technical specification for supply water temperature will be exceeded, and (b) Turkey Point will experience flooding, constitute current operating license safety issues and are not within the scope of license renewal. 209 The Joint Petitioners attempt to reframe these arguments as license renewal environmental issues, by arguing that Turkey Point will be unable to achieve its predicted power output, which must be accounted for in the ERs discussions of purpose and need and analysis of alternatives. 210 However, these arguments are unavailing, for the same reason - i.e., no support has been provided for their assertions that Turkey Points technical specifications for supply water temperature will be exceeded or that Turkey Point will experience flooding to such an extent that a significant reduction in the facilitys output will occur.
Finally, in a footnote, the Joint Petitioners cite and rely upon the Declaration of David Lochbaum (Joint Petition, Att. Q), who asserts that Turkey Point will be unable to cope with 206 See Joint Petition at 50-52, 57.
207 Id. at 56-57.
208 Id. at 58.
209 See, e.g., Sequoyah, LBP-13-8, 78 NRC at 11-14.
210 Joint Petition at 56-57.
flooding during the SLR period of operation. 211 These assertions are inadmissible, in that the ability of the plant to cope with potential flooding at the plant during the SLR period of operation is a safety issue that challenges the adequacy of the plants CLB and is beyond the scope of this proceeding. As discussed supra at 17-18, safety issues in license renewal proceedings are limited to the adequacy of the applicants plans for managing the effects of aging of certain structures and components and its time-limited aging analyses. 212 Accordingly, these assertions do not present an admissible issue for litigation in this proceeding. 213 For the foregoing reasons, Contention 4-E fails to satisfy the requirements of 10 C.F.R.
§§ 2.309(f)(1)(iv)-(vi) and is inadmissible 211 The Joint Petitioners quote Mr. Lochbaums opinion that:
The license renewal rule, specifically 10 CFR 54.29, states that a renewed license may be issued if the Commission finds that there is reasonable assurance that the activities authorized by the renewed license will continue to be conducted in accordance with the CLB
[current licensing basis]. Because the flooding evaluations and assessments only went out to 2033, the expiration of the current operating licenses, and there is no evaluation or assessment concluding that reactor operation beyond 2033 will remain bound by those analyses, reasonable assurances needed to issue subsequent license renewals cannot be found.
Joint Petition at 48, n. 207, quoting Lochbaum Declaration (Joint Petition, Att. Q) at ¶ 41. See also Joint Petition at 56, n.251, citing Lochbaum Declaration at ¶ 22.
212See 10 C.F.R. § 54.29. As set forth in 10 C.F.R. § 54.30(a), licensees are required to ensure that the intended function of those systems, structures or components will be maintained in accordance with the CLB throughout the term of its current license. The licensees compliance with its obligation to take measures under its current license, however, is not within the scope of the license renewal review.
10 C.F.R. § 54.30(b). Further, the Joint Petitioners argument that the standards for license renewal are not satisfied because the plants flooding evaluation extends only to the expiration of the current licenses, challenges the adequacy of the plants current licensing basis for the SLR period of operation, and appears identical to an argument that the Board rejected elsewhere as beyond the scope of a license renewal proceeding. See Sequoyah, LBP-13-8, 78 NRC at 13-14.
213 Additionally, the Joint Petitioners do not provide support for the view that the safety of Turkey Point due to flooding during the SLR period of operation cannot be timely addressed as an operating license issue under 10 C.F.R. Part 50 - which is the proper manner for addressing such issues. See also SRM-SECY-16-0144, Proposed Resolution of Remaining Tier 2 and 3 Recommendations Resulting from the Fukushima Dai-Ichi Accident (May 3, 2017) (ML17123A453) (approving the Staffs plan for ongoing assessment of natural hazard information).
Contention 5-E The Environmental Report fails to address the adverse effect of operating the Cooling Canal System for an additional 20 years on surface waters, freshwater wetlands, and endangered species present in those wetlands. 214 In Contention 5-E, the Joint Petitioners state that, contrary to NRC regulations and NEPA, the Applicants Environmental Report fails to include an analysis of the effects of continued operation of the CCS on surface waters, freshwater wetlands, and endangered species present in those wetlands. 215 Further, the Joint Petitioners assert that the Environmental Report fails to consider how the adverse impacts of salinization of freshwater wetlands caused by the CCS will impact threatened or endangered species, and otherwise harm important plant and animal habitats. 216 The Joint Petitioners assert that the Environmental Report omits or inadequately analyzes the impacts of operation of the CCSspecifically, ammonia contamination and increased salinity and conductivityon threatened or endangered species in freshwater wetlands, in contravention of NEPA. 217 As a basis for this portion of the contention the Joint Petitioners assert that hypersaline water migrates out of the CCS and creates a hypersaline plume that then migrates into freshwater wetlands inhabited by multiple federally listed endangered species. The Joint Petitioners assert that, contrary to the conclusion in the Environmental Report that the cooling canals do not have any ecological impact on the surrounding areas, the CCS has created a hypersaline plume that degrades the wetlands adjacent to the CCS, which is an important habitat for threatened and endangered species. 218 214 Joint Petition at 58-59.
215 Id.
216 Id. at 59.
217 Id.
218 Id. at 60-61, 64 (citing ER at 4-69).
They also state that, contrary to the conclusion in the Environmental Report that Turkey Point is not the source of ammonia in nearby surface waters, the CCS in fact discharges pollutants, including ammonia, into nearby surface waters via the Biscayne Aquifer. 219 The Joint Petitioners assert that the discharge of hypersaline water from the CCS to surrounding freshwater wetlands via the Biscayne Aquifer causes increased salinity and dangerously high conductivity levels in freshwater wetlands. 220 In support of this assertion, the Joint Petitioners cite a July 2018 letter from the Miami-Dade County Division of Environmental Resources Management (DERM) to the Florida Department of Environmental Protection (FDEP). In this letter, DERM describes its concerns to FDEP about the continued westward migration of the hypersaline plume, elevated conductivity and chloride levels in historically fresh surface waters, and increased salinity in the once-freshwater L-31E Canal. 221 The Joint Petitioners also cite a U.S. Environmental Protection Agency website, Conductivity, 222 and a United States Geological Survey report, Flow Velocity, Water Temperature, and Conductivity in Shark River Slough, Everglades National Park, Florida: August 2001-June 2002, 223 in support of their assertion that conductivity has reached dangerously high levels in these freshwater wetlands. 224 NRC Staff Response to Contention 5-E 219 Id. at 62 (citing ER at 9-13, 3-93, 3-94).
220 Id. at 61.
221 Id. at 61-62 (citing Letter from Lee N. Heft, Director, Miami-Dade County Division of Environmental Resources Management, to Lee Crandall and Timothy Rach, Florida Department of Environmental Protection (July 18, 2018), at 2-4, 26-27, 51, 59 (Joint Petition, Att. M) (DERM-FDEP Letter)).
222 Available at https://archive.epa.gov/water/archive/web/html/vms59.html.
223 Available at https://pubs.usgs.gov/of/2003/ofr03348/.
224 Joint Petition at 61-62 nn.268-74.
The NRC Staff does not oppose the admission of one portion of Contention 5-E, concerning the impact of ammonia releases from Turkey Point Units 3 and 4 on endangered and threatened species, but opposes the admission of other portions of the contention, as discussed below.
The Staff recognizes that the impacts of continued operation of the CCS on threatened and endangered species and critical habitat is a Category 2 issue that the Staff must analyze on a site-specific basis in its SEIS. 225 In the Staffs view, the Joint Petitioners raise a genuine dispute with specific portions of the Environmental Report, in asserting that, contrary to the conclusions in the Environmental Report, Turkey Point is a source of ammonia in freshwater wetlands surrounding the site, and that the potential impacts of such ammonia releases during the period of continued operation on threatened and endangered species should be analyzed. 226 Accordingly, the Staff does not oppose the admission of this portion of the contention.
The NRC Staff opposes the admission of all other portions of Contention 5-E, concerning the impacts of continued operation of the CCS on surface water and groundwater quality, and terrestrial resources (in wetlands) in that these assertions constitute an impermissible challenge to the Commissions regulations. Specifically, these portions of the contention challenge the Commissions determination in 10 C.F.R. Part 51, Appendix B, Table B-1, that the impacts of license renewal to altered salinity gradients in surface waters, groundwater quality degradation at plants with cooling ponds in salt marshes (like Turkey 225 10 C.F.R. § 51.71(d); § 51.95(c)(3); Table B-1 of Appendix B to 10 C.F.R. Part 51, Environmental Effect of Renewing the Operating License of a Nuclear Power Plant (identifying
[t]hreatened, endangered, and protected species of essential fish habitat as a Category 2 issue). The NRC is also obliged to initiate consultation under Section 7 of the Endangered Species Act if subsequent license renewal may affect a threatened species or its critical habitat. See 16 U.S.C. § 1536(a)(2).
226 Id. at 62.
Point), 227 and cooling system impacts on terrestrial resources are Category 1 issues that need not be addressed in an applicants environmental report. 228 Inasmuch as the Commission has determined by rule that these are Category 1 issues, the Commissions determination may not be challenged in the absence of a petition for waiver filed in accordance with 10 C.F.R.
§ 2.335; 229 significantly, no such petition for waiver has been filed or granted by the Commission here. Accordingly, these assertions should be rejected. 230 Further, even if the Joint Petitioners had characterized the impacts of subsequent license renewal on surface water, groundwater, and terrestrial resources as new and significant information, they would still be required by 10 C.F.R. § 2.335 to obtain a waiver from the Commissions rule that these impacts are Category 1 issues. 231 Thus, the Commission has held that [t]he new and significant information requirement in 10 C.F.R. § 51.53(c)(3)(iv) [does]
not override, for the purposes of litigating the issues in an adjudicatory proceeding, the exclusion of Category 1 issues in 10 C.F.R. § 51.53(c)(3)(i) from site-specific review. [A]
227 See Generic Environmental Impact Statement for License Renewal of Nuclear Plants (GEIS), NUREG-1437, Rev. 1, Vol. 1, at 4-50 (June 2013) (ML13106A241).
228 See 10 C.F.R. Part 51, Appendix B, Table B-1 (Jan. 1, 2018), at 61-63.
229 The sole ground for a petition for waiver is that special circumstances with respect to the subject matter of the particular proceeding are such that the application of the rule or regulation (or a provision of it) would not serve the purposes for which the rule or regulation was adopted. 10 C.F.R.
§ 2.335(b). The petition must be accompanied by an affidavit that identifies the specific aspect or aspects of the subject matter of the proceeding as to which the application of the rule or regulation . . .
would not serve the purposes for which the rule or regulation was adopted, and must state with particularity the special circumstances alleged to justify the waiver or exception requested. Id. Following the filing of such a petition and affidavit, [a]ny other participant may file a response by counter-affidavit or otherwise. Id.
230 Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 343 (1999).
231 Thus, approval of a waiver could allow a contention on a Category 1 issue to proceed where special circumstances exist. Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-07-3, 65 NRC 13, 20 (2007) (Vermont Yankee/Pilgrim).
waiver [is] required to litigate any new and significant information relating to a Category 1 issue. 232 Here, the Joint Petitioners did not seek a waiver of the Commissions Category 1 determinations. Accordingly, the portions of Contention 5-E that concern the impacts of continued operation of the CCS on the issues of altered salinity gradients in surface water, groundwater quality degradation, and cooling system impacts on terrestrial resources are inadmissible. 233 The NRC Staff also opposes the admission of portions of the contention concerning the impacts of the hypersaline plume on freshwater wetlands and on threatened and endangered species in these wetlands. These portions of the contention assume that FDEPs 2016 Consent Order does not establish adequate mitigation measures to address the hypersaline plume, that the Applicant will not comply with the 2016 Consent Order, 234 and/or that the FDEP will fail to enforce its own regulations and the 2016 Consent Order. The NRC presumes that licensees will comply with their licenses. 235 Additionally, a presumption of administrative regularity applies equally to State regulatory officials; it is therefore reasonable for the NRC to expect that the FDEP will adequately enforce its own regulations and its 2016 Consent Order. 236 232 Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), CLI-12-19, 76 NRC 377, 384 (2012) (citing Vermont Yankee/Pilgrim, 65 NRC at 21).
233 The Commissions generic environmental impact determinations in Table B-1, including the Category 1 determinations, are subject topossible significant new information. Appendix B to Part 51.
The NRC Staff will analyze the environmental impacts of license renewal on Category 1 issues in site-specific SEISs if new and significant information is identified. GEIS at 1-7.
234 The 2016 Consent Order requires the Applicant to submit a plan that will halt the westward migration of the hypersaline plume within 3 years of commencement of the remediation project and retract the hypersaline plume to the L-31E canal within 10 years. Further, the Applicant must report on the effectiveness of the plan, and if it is ineffective, provide an alternate plan for FDEP approval and implement that plan. Florida Department of Environmental Protection v. FPL, OGC File No. 16-0241 (Consent Order) (Jun. 20, 2016) (ML16216A216) (2016 Consent Order), at ¶ 20.
235 See Pacific Gas and Electric Co. (Diablo Canyon Power Plant, Units 1 and 2), CLI-03-2, 57 NRC 19, 29 (2003).
236 Florida Power & Light Co. (Turkey Point Units 6 and 7), LBP-17-5, 86 NRC 1, 29 (2017).
Finally, the Staff opposes the admission of the Joint Petitioners general assertion that operation of the CCS causes unspecified other pollutants to migrate into nearby surface waters and, in turn, adversely impact threatened and endangered species habitats. The Joint Petitioners did not identify any pollutants other than ammonia or provide any specific facts or expert opinion to support the claim that the CCS causes other pollutants to migrate into nearby surface waters. In failing to provide specific claims with supporting facts, the Joint Petitioners failed to plead specific grievances, not simplyprovide general notice pleadings. 237 Accordingly, this portion of Contention 5-E does not satisfy the requirement of 10 C.F.R.
§ 2.309(f)(1)(v) to set forth alleged facts or expert opinions that support the contention, and is inadmissible.
- 2. Southern Alliance for Clean Energy SACE presents two environmental contentions for litigation in this proceeding. The Staff does not oppose the admission of portions of SACE Contentions 1 and 2, to the extent set forth below.
SACE Contention 1 The Environmental Report contains an inadequate discussion of the environmental impacts of the Cooling Canal System (CCS). 238 In Contention 1, SACE states that the Applicants Environmental Report underestimates or ignores the environmental impacts of continued operation of the CCS. 239 Specifically, SACE asserts that the Environmental Report fails to adequately analyze the impacts of the CCS on the chemistry of groundwater, surface water and its aquatic life, and the CCS[s] own 237 Entergy Nuclear Generation Co. and Entergy Nuclear Operations Co. (Pilgrim Nuclear Power Station), CLI-10-15, 71 NRC 479, 482 (2010) (quoting Duke Energy Corp. (McGuire Nuclear Stations, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-03-17, 58 NRC 419, 428 (2003)).
238 SACE Petition at 6.
239 Id.
ecosystem. SACE asserts that these adverse impacts include the migration of a hypersaline plume that has developed in the Biscayne Aquifer beneath the CCS, which it says now extends for miles in all directions. 240 SACE states that this hypersaline plume contains several contaminants - specifically, phosphorous, ammonia, TKN, total nitrogen, tritium, and chlorophyll a - that adversely impact groundwater (Biscayne Aquifer, including its G-II potable groundwater), surface waters (Biscayne Bay, Card Sound, the L-31E Canal, and indirectly, the Everglades), and the CCS itself. 241 The adverse impact of subsequent license renewal on the CCS, according to SACE, is degradation of the seagrass, which provides critical habitat for the American crocodile, a federally listed threatened species. 242 In addition, SACE contends that the Environmental Report overestimates the effectiveness of the Applicants proposed mitigation measures to reduce the salinity in the CCS and reduce the hypersaline plume, and that the Environmental Report fails to acknowledge the adverse impacts of these mitigation measures. 243 Finally, SACE asserts that FPL ignores or underestimates the cumulative impacts of past and future operations of the CCS, and that a cumulative impacts analysis must be performed to evaluate how CCS operation and FPLs mitigation strategies would interact with other environmental programs in the region, such as the Central Everglades Restoration Program (CERP). 244 In conclusion, SACE asserts that as the result of significant defects in the ER, FPLs conclusion that the environmental impacts of continuing to operate the CCS during 240 Id.
241 Id.
242 Id. at 6-7, 20.
243 Id. at 7.
244 Id. at 7-8.
the SLR term will be small must be rejected as arbitrary, unsupported, and inadequate to satisfy NEPA. 245 NRC Staff Response to SACE Contention 1 The NRC Staff does not oppose the admission of one portion of Contention 1, concerning impacts to the American crocodile, but opposes the admission of other portions of the contention.
More specifically, the Staff does not oppose the admission of those portions of the contention in which SACE asserts that the Environmental Report contains an inadequate analysis of the impacts of continued CCS operation on the critical habitat of the American crocodile. SACE specifically states an issue of factwhether and how operation of the CCS adversely affects the American crocodiles critical habitat and provides a brief description of its basis for this portion of the contentionthat the American crocodile population has declined in recent years as critical seagrass habitat has died off in the CCS, in satisfaction of 10 C.F.R.
§ 2.309(f)(1)(i)-(ii).
In its ER, the Applicant provided a lengthy discussion of the American crocodile, including initial observations of the crocodile and its nests at the site; FPLs development of a crocodile management plan (providing for creation and enhancement of habitat and long term population monitoring); the designation of critical habitat at the site; and administrative procedures establishing crocodile surveillances. 246 In addition, the Applicant described the terms and conditions of its crocodile monitoring and protection plan (based on a 2006 Biological Opinion by the U.S. Fish and Wildlife Service) as well as its Threatened and Endangered 245 Id.
246 ER at 3-164, 3-168, 3-174, 3-194 195.
Species Evaluation and Management Plan. 247 Further, the Applicant provided a description of its crocodile monitoring efforts and results for the period of 2000-2016. 248 The Applicant noted that it is required to monitor crocodiles under its crocodile management plan, and concluded that [w]hile the number of successful nests located at the site has decreased in recent years, the American crocodile population continues to remain in a much stronger position than before the Turkey Point CCS was established. 249 In support of Contention 1, SACE alleges that while the Applicant acknowledges that the number of American crocodile nests and tagged hatchlings have declined as the seagrass habitat has died off in the CCS, the Applicant fails to acknowledge that operation of the CCS has caused these losses. SACE challenges the Environmental Reports conclusion that [t]he American crocodile population continues to remain in a much stronger position than before the Turkey Point CCS was established. 250 SACE does not, however, take issue with the ERs description of the results of its crocodile monitoring program, the adequacy of FPLs crocodile monitoring and protection plan, or the provisions in place under the Florida DEPs consent order for protection of the crocodile.
The impacts of subsequent license renewal on threatened and endangered species is an issue that is within the scope of this proceeding. Here, SACE has provided the expert opinion of Dr. Fourqurean that operation of the CCS will continue to degrade the seagrass habitat, and that this impact is not adequately accounted for in the ER. The Staff believes SACE has raised 247 Id. at 3-175 176.
248 Id. at 3-195 196 and 3-253, Table 3.7-13 (American Crocodile Monitoring Results at the Turkey Point Site, 2000-2016).
249 Id. at 4-39.
250 SACE Petition at 19, citing ER at 3-195. SACE also notes that the Applicants January 2018 letter to the U.S. Fish and Wildlife Service, which is attached to the Environmental Report, states that the subsequent license renewal of the plant will not change the effects of the plant on the American crocodile. SACE Petition at 20 (citing Letter from Matthew J. Raffenberg, FPL, to Roxanne Hinzman, U.S. Fish and Wildlife Service (Jan. 30, 2018) (Attachment B to ER)).
a genuine disputewhether operation of the CCS during the subsequent license renewal term will adversely affect the American crocodiles critical habitat. Accordingly, the Staff believes that this portion of Contention 1 satisfies 10 C.F.R. § 2.309(f)(1)(i)-(vi).
In all other respects, the Staff opposes the admission of SACE Contention 1. First, while SACE asserts that the Environmental Report fails to analyze how the CCSs demands for lower-saline water may result in surface water use conflicts with the demands of the CERP, and states that the South Florida Water Management District has allowed the Applicant to remove water from the L-31E Canal on an emergency basis to reduce salinity levels in the CCS, it provides no basis for its claim that the Applicant plans to, among other mitigation measures, use water from the L-31E Canal to lower the CCS salinity levels in the future. 251 Further, SACE fails to recognize that the Applicant states in its ER that it has no plans to use surface water sources for maintenance or operation during the license period, and instead plans to use groundwater from Upper Floridan Aquifer wells to reduce salinity in the CCS. 252 Therefore, SACE has failed to raise a genuine dispute with the Applicant in this portion of Contention 1.
Further, SACEs assertions regarding a potential conflict with the water resource demands of the CERP are conclusory, highly speculative, and lack support. This portion of the contention consists of assertions that alleged use of the L-31E Canal for freshening of the CCS may conflict with or potential[ly] conflict[s] with those of the CERP. 253 SACE cites no support for these speculative assertions and does not explain the alleged conflicting surface water use requirements of the CCS and CERP. A contention for which the petitioner has offered no 251 Id. at 15-16.
252 Environmental Report at 3-95, 3-108, 3-195.
253 SACE Petition at 14-15.
tangible information, no experts, no substantive affidavits, but instead only bare assertions and speculation is inadmissible. 254 Therefore, this portion of Contention 1 is inadmissible.
In addition, the Staff opposes the admission of those portions of Contention 1 that concern the environmental impacts of subsequent license renewal on the Category 1 issues of (1) altered salinity gradients in surface waters, (2) groundwater quality degradation, (3) exposure of aquatic organisms to radionuclides, (4) the effects of non-radiological contaminants on aquatic organisms, (5) cooling system impacts on terrestrial resources, and (6) radiation (tritium) exposures to the public. 255 Indeed, the bulk of Contention 1 concerns the alleged adverse environmental impacts of operation of the CCS on altered salinity gradients in surface watersBiscayne Bay, Card Sound, and freshwater wetlands surrounding the CCS and the effects of non-radiological contaminantsphosphorous, ammonia, TKN, total nitrogen, and chlorophyll aon surface waters and aquatic resources. 256 Additionally, SACE asserts that the CCS releases tritium to the Biscayne Aquifer and from there into surrounding surface waters. 257 It further contends that subsequent license renewal of Turkey Point will result in adverse impacts to groundwater, and that the Applicant has overestimated the beneficial effects of current and proposed mitigation measures. 258 However, the issues of altered salinity gradients in surface waters, groundwater quality 254 Fansteel, Inc. (Muskogee, Oklahoma, Site), CLI-03-13, 58 NRC 195, 203 (2013) (quoting GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station), CLI-00-06, 51 NRC 193, 208 (2000)).
255 SACE does not claim that tritium will be released in amounts that exceed permissible levels.
The impacts of tritium releases from continued operation were evaluated in the GEIS and determined to be a Category 1 issue with small impacts, with respect to exposure of aquatic organisms to radionuclides and radiation exposures to the public. See 10 C.F.R. Part 51, Appendix B, Table B-1 (Jan. 1, 2018), at 64, 65.
256 See SACE Petition at 6-7, 17-19, 20-24.
257 Id. at 18 (citing Expert Report of Kirk Martin (May 14, 2018) (SACE Petition, Att. 5), at 4-5.
258 Id. at 7, 20-24.
degradation at plants with cooling ponds in salt marshes (including Turkey Point), 259 exposure of aquatic organisms to radionuclides, the effects of non-radiological contaminants on aquatic organisms, cooling system impacts on terrestrial resources, and radiation exposure to the public are all identified as Category 1 issues in Table B-1 of 10 C.F.R. Part 51, Appendix B. 260 The inclusion of these issues in this contention constitutes an impermissible challenge to the Commissions generic environmental impact determinations on Category 1 issues, as codified in 10 C.F.R. Part 51, Appendix B, Table B-1. 261 Those generic determinations are not subject to challenge in an adjudicatory proceeding absent a waiver from the Commission under 10 C.F.R.
§ 2.335. 262 Moreover, as stated in response to Joint Petitioners Contention 5-E, even if SACE had presented these claims as new and significant information, it would still be required to seek a waiver from the Commission under 10 C.F.R. § 2.335 before it could be permitted to proceed with litigation of these Category 1 issues. 263 Here, SACE did not seek such a waiver.
Therefore, the portions of SACE Contention 1 that concern the impacts of CCS operation on Category 1 issues are inadmissible.
259 GEIS at 4-50.
260 See 10 C.F.R. Part 51, Table B-1 (Jan. 1, 2018), at 61-62 and 64.
261 See discussion supra, at 55-56. SACE asserts that 10 C.F.R. § 51.53(c)(2), not § 51.53(c)(3) applies to this proceeding, because paragraph (c)(3) provides Environmental Report requirements for applicants seeking an initial renewed license. As explained above, the Commissions regulations and the Commissions direction are clear that its regulations on license renewal also apply to subsequent license renewal. See discussion supra, at 18-23.
262 Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 343 (1999).
263 See discussion supra, at 56-57.
Further, the Staff opposes admission of Contention 1 insofar as it concerns groundwater contamination resulting from the release of tritium. 264 While the Commission has identified the issue of radionuclides released to groundwater as a Category 2 issue, 265 SACE does not cite or contest any portion of Section 4.5.5 of the Environmental Report, in which the Applicant analyzed the environmental impacts of radionuclides released to groundwater, including tritium, and does not identify any information that the Applicant failed to consider. Therefore, to the extent that SACE alleges that the Applicant failed to analyze the environmental impacts of tritium on groundwater in its environmental report, it has failed to satisfy the 10 C.F.R.
§ 2.309(f)(1)(vi) requirement that it raise a genuine dispute with the Environmental Report.
Further, the Staff opposes the portion of Contention 1 in which SACE claims that the Applicant overstates the effectiveness and ignores the adverse impacts of its mitigation measures. SACE asserts that the Applicants recovery well mitigation measures will fail to halt migration of the hypersaline plume within three years and retract the plume to the L-31E within 10 years; that the deep excavation backfill mitigation measures are unlikely to reduce groundwater flow into Biscayne Bay; and that adding water to the CCS to freshen it will drive the hypersaline plume further into the Biscayne Aquifer and from there into the G-II groundwater and Biscayne Bay. 266 These assertions concerning the Applicants mitigation measures effectively assume that the FDEP has not established adequate mitigation measures, that the 264 SACE asserts that [c]ontaminants in the plume in the groundwater, generated by the Turkey Point plant, includeradioactive tritium. The areas directly affected by these pollutants include the underlying Biscayne Aquifer and its protected G-II groundwater. SACE Petition at 6. Additionally, SACE notes that groundwater data for tritium from beneath Biscayne Bay indicate that movement of the contaminant plume originating from the CCS is radial and likely extends as far east as the plume migration to the west. Id. at 18 (citing Martin Report at 4).
265 10 C.F.R. Part 51, Appendix B, Table B-1 (Jan. 1, 2018), at 62.
266 SACE Petition at 21-24.
Applicant will not comply with the FDEPs 2016 Consent Order, 267 or that the FDEP will fail to enforce its own regulations and the 2016 Consent Order. As stated in response to Joint Petitioners Contention 5-E, the NRC presumes that licensees will comply with their licenses. 268 Additionally, a presumption of administrative regularity applies equally to State regulatory officials; it is therefore reasonable for the NRC to expect that the FDEP will adequately enforce its own regulations and its 2016 Consent Order. 269 A hearing before this Board in a proceeding concerning the Applicants SLRA, however, is not the proper forum for SACEs challenges to the adequacy of the FDEP Consent Order, or the FDEPs ability and willingness to implement and enforce its regulations and orders. 270 In addition, the Staff opposes the admission of SACEs assertion that the Applicant failed to adequately analyze the cumulative impacts of CCS operation and past, present, and future mitigation measures. In this regard, SACE asserts that the Applicant failed to discuss the effects of historical mitigation measures, such as the L-31E Canal, the CCS itself, and the interceptor ditch along with operation of the CCS, that have caused (or failed to prevent or mitigate) hypersalinity in the CCS and migration of the hypersaline plume in the Biscayne Aquifer. 271 While the Staff recognizes that the cumulative impacts of subsequent license 267 The 2016 Consent Order imposes upon the Applicant certain mitigation measures, including recovery wells and completion of the Barge Basin and Turtle Point Canal deep excavation backfill projects, and certain milestones that the Applicant must reach along with evaluation and reporting requirements to determine whether these mitigation measures are effective. Florida Department of Environmental Protection v. FPL, OGC File No. 16-0241 (Consent Order) (Jun. 20, 2016)
(ML16216A216) (2016 Consent Order), at ¶¶ 19-21.
268 See discussion supra, at 57.
269 Florida Power & Light Co. (Turkey Point Units 6 and 7), LBP-17-5, 86 NRC 1, 29 (2017).
270 SACE may pursue litigation on these matters in other forums and, indeed, it has done so. See SACE Petition at 2 (citing Southern Alliance for Clean Energy, Tropical Audubon Society, Inc., & Friends of the Everglades, Inc. v. Fl. Power & Light Co., No. 1:16-cv-23017-DPG (filed Oct. 11, 2016)).
271 See id. at 14-17, 25-26.
renewal must be evaluated on a site-specific basis, the Applicant addressed the impacts of past mitigation measures, the operation of the CCS, and its compliance history in Section 3.6 of the ER, and SACE does not challenge the sufficiency of that discussion. Accordingly, the Staff opposes the admission of SACEs assertions regarding the cumulative impacts of past mitigation measures.
In addition, the Staff opposes the admission of the portions of Contention 1 in which SACE challenges the adequacy of the cumulative impacts analysis in the Environmental Report, based on its belief that the Applicant is currently not in compliance with its permits, that the Applicant will fail to comply with its permits in the future, and that FDEP will effectively fail to enforce its regulations and the 2016 Consent Order. 272 SACE does not provide any tangible basis for its assertion that the Applicant is not currently in compliance with its permits. 273 SACEs only support for this assertion is a statement that groundwater modeling shows that westward migration of the hypersaline groundwater plume is a significant contributor to water quality violations in the potable G-II groundwater to the west of the CCS. Neither SACE nor Mr. Swakon, whose Expert Report SACE cites in support of this assertion, specify which permits these are or how the Applicant is currently not in compliance with them. Neither mere speculation nor bare or conclusory assertions, even by an expert, suffices to allow the admission of a proposed contention. 274 Finally, the Staff opposes the admission of the cumulative impacts portion of this contention, with respect to its assertion that the Environmental Report fails to address the 272 See id. at 24-25.
273 Id. at 18 (citing Expert Report of Edward A. Swakon, P.E. (May 14, 2018) (SACE Petition, Att. 7), at 1.
274 See USEC Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 472 (2006); Fansteel, Inc. (Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195, 203 (2003).
interaction of environmental factors such as salinity, turbidity, and algal concentrations with operation of the CCS. 275 While these factors may (or may not) be appropriate for consideration in an evaluation of the plants impact on the existing environment, SACE has provided no information suggesting that these factors must be considered in a cumulative effects analysis.
In this regard, an applicants ER must include information about other past, present, and reasonably foreseeable future actions occurring in the vicinity of the nuclear plant that may result in a cumulative effect, 276 the environmental factors that SACE identifies, however, are not actions occurring in the vicinity of Turkey Point, and need not be considered in a cumulative effects analysis.
Accordingly, the Staff does not oppose the admission of SACEs assertions concerning impacts to the American crocodile, but opposes the admission of all other portions of SACE Contention 1 as set forth above.
SACE Contention 2 The Environmental Report affords inadequate consideration of the alternative of mechanical draft cooling towers. 277 In explaining this contention, SACE asserts that the Applicant has failed to consider a reasonable alternative of constructing and using mechanical draft cooling towers for Units 3 and 4, in violation of NEPA and 10 C.F.R. § 51.53(c)(2). 278 SACE further asserts that the cooling tower alternative is feasible and cost-effective, and would likely eliminate the adverse impacts of continuing to operate the CCS, as set forth in SACE Contention 1. 279 In support of 275 SACE Petition at 26.
276 10 C.F.R. § 51.53(c)(3)(ii)(O) (emphasis added).
277 SACE Petition at 29.
278 Id.
279 Id.
this contention, SACE proffers the Expert Report of Bill Powers (SACE Petition, Att. 10), who describes, in part, the expected environmental effects of using reclaimed water from the Miami-Dade Water and Sewer Department (MDWSD) and mechanical draft cooling towers with zero liquid discharge (ZLD) technology, in lieu of the existing CCS. 280 NRC Staff Response to SACE Contention 2 The Staff does not oppose the admission of SACE Contention 2, insofar as it asserts that the Applicants Environmental Report omits consideration of mechanical draft cooling towers in connection with license renewal of Turkey Point Units 3 and 4, as a reasonable alternative to use of the plants existing cooling canal system. Like the Joint Petitioners, SACE points out that the Applicants ER omits consideration of a cooling tower alternative. 281 Further, SACE points out that the Applicants ER considers alternative energy sources that would use cooling towers; that an agreement is in place for the use of MDWSD for other purposes at the Turkey Point site; that mechanical draft cooling towers would be cost-effective and would avoid the adverse impacts resulting from use of the CCS; and that other environmental studies for licensing or relicensing of power plants at Turkey Point have considered the use of mechanical draft cooling towers - all of which is asserted to demonstrate the reasonableness of this alternative.
As stated in the Staffs response to the Joint Petitioners Contention 1-E, 282 NEPA requires the NRC to consider reasonable alternatives to the proposed Federal action, and the Commissions regulations in 10 C.F.R. Part 51 require the Staffs SEIS for license renewal to consider the environmental impacts of alternatives to the proposed action; and alternatives 280 Id. at 29.
281 Id. at 17, citing ER at 7-1.
282 See discussion supra, at 29-31.
available for reducing or avoiding adverse environmental effects. 283 Accordingly, the NRC Staff does not oppose the admission of SACE Contention 2, as a contention of omission.
While the Staff does not oppose the admission of SACE Contention 2 as a contention of omission, the Staff would oppose the admission and litigation of the contentions assertions regarding the environmental impacts resulting from operation of the CCS or cooling towers. 284 In this regard, SACE does not point to any portion of the Applicants ER which it believes contains an inadequate description of the impacts of CCS operation; rather, it cites the ERs discussion of impacts (described in SACE Contention 1) in support of this contention. 285 Nor does SACEs expert, Dr. Bill Powers, point to any deficiencies in the Applicants discussion of the environmental impacts of CCS operation. 286 Accordingly, it does not establish a genuine dispute of material fact with respect to the environmental impacts of CCS operation, contrary to the requirements of 10 C.F.R. 2.309(f)(1)(vi).
Moreover, to the extent that SACE Contention 1 is admitted for litigation, the environmental impacts admitted as part of that contention would be litigated as part of that contention, and no reason exists to warrant a duplicative re-litigation of those issues in this contention regarding a cooling tower alternative. Finally, litigation of the precise impacts of CCS and cooling tower operation is unnecessary for resolution of the contentions central assertion that a reasonable and feasible alternative was omitted from the Applicants ER. Accordingly, the impacts of CCS and cooling tower operation should be excluded from this contention.
283 See 10 C.F.R. § 51.71(d); 10 C.F.R § 51.95(c)(1) and (2).
284 SACE Petition at 30-31.
285 Id. at 29.
286 See Expert Report of Bill Powers, P.E., Powers Engineering (May 14, 2018) (SACE Petition, Att. 10), passim.
CONCLUSION For the reasons set forth above, the NRC Staff respectfully submits that the Joint Petitioners and SACE have each demonstrated their standing to intervene in this proceeding and have proffered at least one admissible contention. Certain of their contentions or portions thereof, however, are inadmissible and should be excluded from litigation. Accordingly, the Staff does not oppose these petitions to intervene, but opposes the admission of certain of the petitioners contentions or portions thereof, to the extent and for the reasons set forth above.
Respectfully submitted,
/Signed (electronically) by/
Sherwin E. Turk Counsel for NRC Staff Office of the General Counsel U.S. Nuclear Regulatory Commission Mail Stop - O-14-A44 Washington, DC 20555 Telephone: (301) 287-9194 E-mail: Sherwin.Turk@nrc.gov Executed in Accord with 10 C.F.R. § 2.304(d):
Jeremy L. Wachutka Counsel for NRC Staff Office of the General Counsel U.S. Nuclear Regulatory Commission Mail Stop - O-14-A44 Washington, DC 20555 Telephone: (301) 287-9188 E-mail: Jeremy.Wachutka@nrc.gov Esther Houseman Counsel for NRC Staff Office of the General Counsel U.S. Nuclear Regulatory Commission Mail Stop - O-14-A44 Washington, DC 20555 Telephone: (301) 287-9197 E-mail: Esther.Houseman@nrc.gov Dated at Rockville, Maryland this 27th day of August 2018
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-SLR
) 50-251-SLR (Turkey Point Nuclear Generating, )
Unit Nos. 3 and 4 )
CERTIFICATE OF SERVICE Pursuant to 10 C.F.R § 2.305 (as revised), I hereby certify that copies of the foregoing NRC STAFFS CORRECTED RESPONSE TO PETITIONS TO INTERVENE AND REQUESTS FOR HEARING FILED BY (1) FRIENDS OF THE EARTH, NATURAL RESOURCES DEFENSE COUNCIL AND MIAMI WATERKEEPER, AND (2) SOUTHERN ALLIANCE FOR CLEAN ENERGY, dated August 27, 2018, have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned proceeding, this 27th day of August, 2018.
Copies of the foregoing have also been sent to (1) Mr. Albert Gomez (3566 Vista Court, Miami, FL 33133), by E-mail to albert@icassemblies.com; and (2) Richard E. Ayres, Esq. (2923 Foxhall Road, N.W., Washington D.C. 20016), by E-mail to ayresr@ayreslawgroup.com, this 27th day of August, 2018.
/Signed (electronically) by/
Sherwin E. Turk Special Counsel for Litigation Counsel for NRC Staff Office of the General Counsel U.S. Nuclear Regulatory Commission Mail Stop - O-14-A44 Washington, DC 20555 Telephone: (301) 287-9194 E-mail: Sherwin.Turk@nrc.gov