ML18274A411

Petitioners Response to Applicants Surreply

ML18274A411
Person / Time
Site:	Turkey Point
Issue date:	10/01/2018
From:	Ayres R, Curran D, Fettus G, Rotenberg E, Rumelt K Friends of the Earth, Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP, Natural Resources Defense Council, Super Law Group, Vermont Law School
To:	Atomic Safety and Licensing Board Panel
SECY RAS
Shared Package
ML18274A408	List: ML18274A409 ML18274A410 ML18274A411
References
50-250-SLR, 50-251-SLR, License Renewal, RAS 54528
Download: ML18274A411 (28)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of: )

)

FLORIDA POWER & LIGHT COMPANY ) Docket No. 50-250

) Docket No. 50-251 (Turkey Point Nuclear Generating Station, Unit Nos. 3 )

and 4) ) October 1, 2018

)

(Subsequent License Renewal Application) )

PETITIONERS RESPONSE TO APPLICANTS SURREPLY Diane Curran Ken Rumelt HARMON, CURRAN, SPIELBERG, & Vermont Law School EISENBERG, L.L.P. ENVIRONMENTAL & NATURAL 1725 DeSales Street N.W., Suite 500 RESOURCES LAW CLINIC Washington, D.C. 20036 164 Chelsea Street, PO Box 96 240-393-9285 South Royalton, VT 05068 dcurran@harmoncurran.com Phone: 802-831-1000 krumelt@vermontlaw.edu Counsel for Friends of the Earth Geoffrey Fettus Richard E. Ayres NATURAL RESOURCES DEFENSE FRIENDS OF THE EARTH COUNCIL COUNCIL 2923 Foxhall Road, N.W.

1152 15th Street, NW, Suite 300 Washington, D.C. 20016 Washington, DC 20005 202-744-6930 202-289-2371 E-mail: ayresr@ayreslawgroup.com Email: gfettus@nrdc.org Counsel for Natural Resources Defense Edan Rotenberg Council SUPER LAW GROUP, LLC 180 Maiden Lane, Suite 603 New York, New York 10038 212-242-2355, Ext. 2 edan@superlawgroup.com Counsel for Miami Waterkeeper October 1, 2018

TABLE OF CONTENTS INTRODUCTION..1 ARGUMENT..1 I. FPLS INTERPRETATION OF 10 C.F.R. § 51.53(c)(3) VIOLATES BASIC PRINCIPLES OF STATUTORY INTERPRETATION1 II. FPL FAILS TO JUSTIFY ANY EXCEPTION TO THE PLAIN MEANING RULE...3 A. There Is Nothing Absurd, Let Alone Truly Absurd, About Giving § 51.53(C)(3) Its Plain and Ordinary Meaning4

1. The temporal scope of the 1996 GEIS is clearly limited to the 40-year initial license term plus one renewal term...5

2. The NRC did not expand the temporal scope of the License Renewal GEIS in the 2013 Revised GEIS..6 B. The Limitation Of § 51.53(C)(3) To Applicants Seeking an Initial Renewed License Is Not Inconsistent with NRCs Entire Regulatory Scheme for Implementation of NEPA in License Renewal Proceedings..9

1. The History of the NRCs License Renewal Regulations Contains No Evidence of any Intent by the Commission to Alter or Disregard the Plain Meaning of 10 C.F.R. § 51.53(c)(3)...11

a. The regulatory history of NRCs NEPA rules and GEIS for license renewal contain no reference to the concept of subsequent license renewal.12

b. The history of § 51.53(c)(3) contradicts FPLs argument.13

i. The 1996 Final Rule and 1996 GEIS specifically state that the NRCs generic environmental analysis for license renewal, including Category 1 designations, covers only the initial license renewal term13 ii. The NRC did not expand the temporal scope of the 1996 GEIS when it prepared the 2013 Revised GEIS.........................................................14 C. FPLs Proposed Interpretation of § 51.53(c)(3) is Inconsistent with NRCs Regulatory Scheme for Preparation of EISs, Including the Scoping Process..15 III. INTERNAL NRC MEMORANDA AND POLICY STATEMENTS CANNOT SUBSTITUTE FOR NOTICE-AND-COMMENT RULEMAKING, SCOPING PROCESS, AND A NEW DRAFT GEIS FOR LICENSE RENEWALS..17

A. NRC Internal Memoranda Do Not Substitute for NEPA Compliance or Notice-and-Comment Rulemaking18 B. Absent a New Rulemaking and NEPA Proceeding, FPLs Subsequent License Renewal Application is Governed by 10 C.F.R. §§ 51.53(c)(2) and 51.45(a).19 CONCLUSION..20

TABLE OF AUTHORITIES Judicial Decisions Artis v. District of Columbia, 138 S. Ct. 594 (2018)...2 Gardebring v. Jenkins, 485 U.S. 415, 430 (1988)...3

..

Griffin v. Oceanic Contractors, Inc., 458 U.S. 564 (1982).2 Honeycutt v. United States, 137 S. Ct. 1626 (2017)3 Int'l Bhd. of Teamsters v. Interstate Commerce Com., 801 F.2d 1423 (D.C. Cir. 1986), on reh'g, 818 F.2d 87 (D.C. Cir. 1987)...4, 11 Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158 (2007)..2 Merritt v. Dillard Paper Co., 120 F.3d 1181 (11th Cir. 1997)4 Natl Assn of Home Builders v. Defs. of Wildlife, 551 U.S. 644 (2007).2, 3 New York v. N.R.C., 681 F.3d 471 (D.C. Cir. 2012)

New York v. N.R.C., 681 F.3d 471 (D.C. Cir. 2012)19-20 Perez v. Mortg. Bankers Assn, 135 S. Ct. 1199 (2015).17, 18 Pickus v. U.S. Board of Parole, 507 F.2d 1107, (D.C. Cir. 1974)20 Puerto Rico v. Franklin Cal. Tax-Free Tr., 136 S. Ct. 1938 (2016)...2 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989)....19 Swain v. Brinegar, 542 F.2d 364, 367 (7th Cir. 1976)16, 20 Union of Concerned Scientists v. N.R.C., 711 F.2d 370 (D.C. Cir. 1983)..20 United States v. Am. Trucking Assns., Inc., 310 U.S. 534 (1940).2 United States v. Menasche, 348 U.S. 528 (1955)..2 NRC Decisions Duke Power Co. (Oconee/McGuire), LBP-80-28, 12 N.R.C. 459 (1980)..16, 17 Hydro Res., Inc., (P.O. Box 777, Crownpoint, New Mexico 87313), CLI-04-11, 63 N.R.C. 483 (2004)..3

Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-900, 28 N.R.C. 275 (1988)3 Northeast Nuclear Energy Co. (Millstone Nuclear Power Station, Unit 3),

CLI-01-10, 53 N.R.C. 353 (2001)..3, 9 Wrangler Laboratories, et. al., ALAB-951, 33 N.R.C. 505 (1991)...2 U.S. Dept of Energy (High-Level Waste Repository), LBP-04-20, 60 N.R.C. 300 (2004)..9 Statutes Administrative Procedure Act....19 National Environmental Policy Act...19 Regulations 10 C.F.R. Part 51...19 Table B-1 of Appendix A to 10 C.F.R. Part 51.1,5, 8, 9, 10, 19 10 C.F.R. § 51.28.17, 19 10 C.F.R. § 51.29.16, 19 10 C.F.R. § 51.45(a)...19 10 C.F.R. § 51.53(c)(2)..19 10 C.F.R. § 51.53(c)(3)..passim 10 C.F.R. § 51.719 10 C.F.R. § 51.959 10 C.F.R. Part 54...10 Federal Register Notices Final Amended Rule, 78 Fed. Reg. 37,312, 37,316 (June 20, 2013)..13, 19 Final Rule, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467 (June 5, 1996)...6, 12, 13, 14, 19

Notice of Intent to Prepare an Environmental Impact Statement for the License Renewal of Nuclear Power Plants and to Conduct Scoping Process, 68 Fed. Reg. 33,209 (June 3, 2003)16 Proposed Amended Rule, 74 Fed. Reg. 38,117, 38,128, 38,132 July 31, 2009).13, 14 Proposed Rule, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 56 Fed. Reg. 47,016, 47,017 (Sept. 17, 1991).11, 12 Miscellaneous SECY-12-0063, Final Rule: Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses (Apr. 20, 2012) (ML110760033)..17, 18 SECY-14-0016, Ongoing Staff Activities to Assess Regulatory Considerations for Power Reactor Subsequent License Renewal (Jan. 31, 2014) (ML14050A306).18 SRM- SECY-14-0016 - Ongoing Staff Activities to Assess Regulatory Considerations for Power Reactor Subsequent License Renewal (Aug. 29, 2014) (ML14241A578)18

INTRODUCTION As may be permitted by the Atomic Safety and Licensing Board (ASLB)1, Southern Alliance for Clean Energy (SACE), Natural Resources Defense Council (NRDC), Friends of the Earth (FoE), and Miami Waterkeeper (MWK) (hereinafter Petitioners) hereby respond to Applicants Surreply to New Arguments Raised in Reply Pleadings (Sept. 20, 2018)

(Surreply). The Applicant, Florida Power & Light (FPL), asks the ASLB to disregard the plain language of 10 C.F.R. § 51.53(c)(3), which restricts the applicability of that regulation to applicants seeking an initial renewed license. But FPLs arguments are without merit.

ARGUMENT I. FPLS INTERPRETATION OF 10 C.F.R. § 51.53(c)(3) VIOLATES BASIC PRINCIPLES OF STATUTORY INTERPRETATION.

FPL does not dispute that the plain language of the phrase applicants seeking an initial renewed license means applicants seeking a renewed license directly following an initial 40-year license term; nor does FPL deny that the phrase, if applied to FPLs subsequent license renewal application, would preclude FPL from relying on § 51.53(c)(3) to avail itself of the binding Category 1 exclusions in Table B-1 of Appendix A to 10 C.F.R. Part 51. Instead, FPL urges the ASLB to disregard the plain language of § 51.53(c)(3) and apply the Category 1 exceptions to FPLs subsequent license renewal application anyway. FPLs various arguments violate the bedrock principles guiding adjudicatory bodies in construing statutes and legislative rules. And FPL has failed to justify any exception to these principles.

1 Petitioners have filed a motion for leave to file this response to FPLs Surreply. See Motion for Leave to Respond to Surreply (Oct. 1, 2018).

The paramount rule of construction is that when construing legislative text,2 we look first to its language, giving the words used their ordinary meaning. Artis v. District of Columbia, 138 S. Ct. 594, 603 (2018). There is, of course, no more persuasive evidence of the purpose of a statute than the words by which the legislature undertook to give expression to its wishes. United States v. Am. Trucking Assns., Inc., 310 U.S. 534, 543 (1940); see also Puerto Rico v. Franklin Cal. Tax-Free Tr., 136 S. Ct. 1938, 1946 (2016) (Where a statutes language is plain, resolution of a disputed issue begins with the language of the statute itself, and that is also where the inquiry should end. (internal quotation marks omitted)). The Supreme Court has repeatedly made clear that the plain meaning of a legislative text is conclusive, except in the rare cases in which such an interpretation would produce a result demonstrably at odds with the intentions of its drafters. Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982)

(emphasis added).

In violation of this principle, FPL urges the Board to go beyond the plain language of

§ 53(c)(3) and disregard entirely the clear, unambiguous language of the regulation. In essence, FPL contends that initial renewed license means any type of renewed license, including initial or subsequent. But FPLs interpretationin addition to violating the cardinal rule of legislative construction by ignoring the plain language of the regulationwould read the crucial limiting word initial out of the regulation. FPLs argument violates the cardinal rule of statutory construction that effect must be given, if possible, to every word, clause and sentence. United States v. Menasche, 348 U.S. 528, 538-39 (1955); see also Wrangler Laboratories, et. al.,

2 Canons of statutory construction apply with equal force to construction of regulations. Natl Assn of Home Builders v. Defs. of Wildlife, 551 U.S. 644, 668 (2007); Long Island Care at Home, Ltd. v. Coke, 551 U.S. 158, 170 (2007).

2

ALAB-951, 33 N.R.C. 505, 513-14 (1991) (quoting Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-900, 28 N.R.C. 275, 288 (1988)).

FPLs proposed interpretation of § 51.53(c)(3) to apply to all license renewal applicants would also negate the meaning of other language in the regulation. In addition to being limited to initial license renewals, the benefit to applicants from § 51.53(c)(3) is also limited to applicants that did not hold[] an operating license . . . as of June 30, 1995. To adopt FPLs argument that § 51.53(c)(3) must be applied to all subsequent license renewal applicants would require the ASLB to ignore this unambiguous language as well. But the ASLB may not construe the regulation in a way that negates its plain text. Honeycutt v. United States, 137 S. Ct. 1626, 1635 n.2 (2017); see also Natl Assn of Home Builders, 551 U.S. at 668-69 (court cannot interpret a regulation to render part of it surplusage); Gardebring v. Jenkins, 485 U.S. 415, 430 (1988) (court should reject agencys interpretation of its own statute in favor of an alternative if that alternative is compelled by the regulations plain language).

II. FPL FAILS TO JUSTIFY ANY EXCEPTION TO THE PLAIN MEANING RULE.

FPL does not dispute the general applicability to NRC proceedings of the plain meaning rule, i.e., that the starting point in construing a statute (or a regulation) is the language of the statute or regulation itself, and that if that language is plain and unambiguous, then it must be applied according to its terms.3 But FPL claims this case falls under one generally recognized exception, for circumstances where application of the plain meaning of a regulation would 3

FPL Surreply at 4 and n.12 (citing Northeast Nuclear Energy Co. (Millstone Nuclear Power Station, Unit 3), CLI-01-10, 53 N.R.C. 353, 361 (2001); Hydro Res., Inc., (P.O. Box 777, Crownpoint, New Mexico 87313), CLI-04-11, 63 N.R.C. 483, 491 (2004)).

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produce an absurd or unintended result.4 This exception, however, is rarely applied, because the result produced by the plain meaning canon must be truly absurd before this principle trumps it. Otherwise, clearly expressed legislative decisions would be subject to the policy predilections of judges. Merritt v.

Dillard Paper Co., 120 F.3d 1181, 1188 (11th Cir. 1997) (emphasis added). It is not enough to rely on broad [statutory] purposes to justify ignoring specific language whose meaning is unambiguous. Int'l Bhd. of Teamsters v. Interstate Commerce Com., 801 F.2d 1423, 1430 (D.C.

Cir. 1986), on reh'g, 818 F.2d 87 (D.C. Cir. 1987) (rejecting the Interstate Commerce Commissions attempt to ignore unambiguous statutory language). The exception is even less appropriate to apply where, as here, a court is asked to violate another cardinal rule of statutory constructionthat effect must be given, if possible, to every word, clause and sentence.

Menasche, 348 U.S. at 538-39. FPL utterly fails to justify an exception to the plain language rule here.

A. There Is Nothing Absurd, Let Alone Truly Absurd, About Giving § 51.53(C)(3)

Its Plain and Ordinary Meaning.

Application of the plain meaning of § 51.53(c)(3) to exclude subsequent license renewal applicants yields a logical result, not an absurd result. There is nothing absurd or even illogical about requiring a subsequent license renewal applicant to analyze Category 1 environmental issues on a site-specific basis. The 1996 GEIS focused only on the environmental impacts of the first twenty years following the initial license term, and the 2013 Revision to the 4

Id.

4

GEIS did nothing to expand on that temporal scope. Therefore, it would be illogical to apply the Category 1 exemptions to a second license renewal term whose environmental impact had never been analyzed in an EIS.5

1. The temporal scope of the 1996 GEIS is clearly limited to the 40-year initial license term plus one renewal term.

The limited temporal scope of the 1996 GEIS is clear. As a general matter, it states:

This GElS examines how these plants and their interactions with the environment would change if such plants were allowed to operate (under the proposed license renewal regulation 10 CFR Part 54) for a maximum of 20 years past the term of the original plant license of 40 years.6 And the limited temporal scope of the 1996 GEIS findings undergirding Table B-1 is repeated in specific environmental analyses. For instance, the Category 1 designation of radiation exposures to the public in Table B-1 is based on the conclusion that [r]adiation doses to the public from continued operations and refurbishment associated with license renewal are expected to continue at current levels, and would be well below regulatory limits. This finding is based, in turn, on the environmental analysis in Section 2.6 of the 1996 GEIS, which assumes that the license to be renewed is the initial operating license. As stated in Section 2.6.2.2:

The generic license renewal programs utilized in this evaluation were based on similar schedules for carrying out the selected aging management activities. Any major refurbishment work called for by the programs was assumed to start shortly after a renewed license had been granted. In these example programs, this would occur in roughly year 30 of the original 40-year license term. This work was assumed to be completed over several successive outages, including one at the end of the 40th year of plant 5

To be clear, Petitioners do not challenge the content or conclusions of the GEIS.

6 1996 GEIS at 2-1 (emphasis added).

5

operation.7 NRC carried this temporal limit throughout the 1996 GEIS for a range of environmental impacts.8 Thus, the 1996 GEIS analyzes the effects of adding a 20-year term to an original 40-year license term, and no more.9

2. The NRC did not expand the temporal scope of the License Renewal GEIS in the 2013 Revised GEIS.

The 2013 Revised License Renewal GEIS did not change this temporal scope. Instead, it simply re-evaluated and confirmed the previous findings. For instance, the 2013 Revised GEIS asserts that the 1996 GEIS conclusions regarding the environmental impacts of refurbishment activities are valid and conservative.10 And the 2013 Revised GEIS concludes that [d]uring the license renewal term, commercial nuclear power plants would continue to operate in the 7

1996 GEIS at 2-34 (emphasis added). See also Section 2.6.2.7, where the 1996 assumes that a renewed license would be covering the balance of the original 40-year term, as well as the additional 20-year term. Id. at 2-36.

8 See, e.g., id. at 7 7-17 (decommissioning); id. at 3-39 (radiation protection); id. at 4-59 (transmission lines); id. at 4-85 (public radiation doses). A 40-year term of reactor operation is assumed throughout as the base case or baseline. Id. at 7-1, 7-10, 7-14, 4-85.

9 Further confirmation of the NRCs intent to limit the temporal scope of the 1996 GEIS can be found in a clarifying amendment to the 1996 rule, promulgated later that year. Final Rule, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg.

66,537 (Dec. 18, 1996) (making minor non-substantive changes to Table B-1 and other provisions). In responding to comments, the NRC referred to waste currently being generated during the initial license term of power reactors (id. 66,538) and the attribution of transportation impacts between the initial operating license and the renewed license. Id. at 66,539. This language confirms that the only two license terms that were evaluated in the 1996 GEIS or the 1996 rule were the initial license term and the first license renewal term.

10 2013 Revised GEIS at 2-3.

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same manner as they had during the original license term.11 The temporal limitation of the 2013 Revised GEIS to 40 plus 20 years is also evident in the GEIS discussion of specific types of environmental impacts. With respect to occupational radiation exposures, for example, the 2013 Revised GEIS states:

During 2005, with occupational radiation protection programs in place, nuclear power plants maintained an annual average individual dose of 0.12 rem and 0.18 rem for PWRs and BWRs, respectively (Table 3.9-11),

compared with an exposure limit of 5 rem. For all nuclear power plants combined, the occupational doses to individual workers are estimated to average 0.15 rem/yr (Table 3.9-4). At these dose levels, the average increase in fatal individual cancer risk to a worker is approximately 6 x 10-5/yr (using the ICRP risk coefficient of 4 x 10-4/rem from Table 3.9-20). If the reactor operates for 60 years, the cumulative increase in fatal cancer to an individual worker is estimated to be 3.6 x 10-3 (a 50 percent increase over the baseline of 40 years of operations). However, it is very unlikely that the same worker would be employed for all 60 years of plant operations.12 The 2013 Revised GEIS contains a similar analysis for public radiation doses. Once again, 40 years is the baseline for an environmental analysis that predicts environmental impacts over a subsequent 20-year renewal period:

Although dose rates (mrem/yr) are not expected to change during license renewal, the cumulative dose (total mrem) would increase as a result of 20 more years of operations. If the reactor operates for 60 years, it is estimated that the increase in fatal cancer risk to the MEI would range from 6 x 10-7 to 4.6 x 10-4 (a 50 percent increase over the baseline of 40 years of operation). However, it is unlikely that the same person would be exposed to these doses for 60 years of plant operations.13 On the same topic of environmental impacts of radiation exposures to the public, the 2013 11 Id.

12 2013 Revised GEIS at 4-138 139 (emphasis added).

13 Id. at 4-145 (emphasis added).

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Revised GEIS further states:

Regulatory Guide 1.109 (NRC 1977) provides guidance for calculating the dose for significant release pathways. To account for the buildup of radioactive materials, buildup factors are included in the calculations.

Initially, most of the calculations for the construction and operating stage permits used 15 years as the approximate midpoint of a facilitys operating life. This value is now more often taken to be 20 years. The potential license renewal term is an additional 20 years; thus, the effective midlife is 30 years.14 Along the same lines, with respect to decommissioning, the 2013 Revised GEIS states:

As discussed in the 1996 GEIS, the dose to the public from long-lived radionuclides after 40 years of plant operation is expected to be negligible, and the increase in quantities of long-lived radionuclides after an additional 20 years would result in a negligible dose (less than 0.1 person-rem). Accordingly, the NRC concluded that the contribution of license renewal to radiological impacts to the public from decontamination would be of SMALL significance at all nuclear plants.15 Throughout the 2013 Revised GEIS, the NRC refers to a time frame totaling 60 years, and a baseline of 40 years. Nowhere does the 2013 Revised GEIS refer to a time frame totaling 80 years or a baseline of 60 years.

There is nothing surprising, therefore, about a regulatory provision that would preclude a subsequent license renewal applicant from relying on the Category 1 finding in Table B-1. To the contrary, application of the plain meaning of § 51.53(c)(3) would yield a logical result, i.e., to preclude a subsequent license renewal applicant from relying on environmental findings beyond the temporal scope of a second license renewal term. Thus, there is nothing absurd about applying the plain language of § 51.53(c)(3) to FPLs subsequent license renewal application.

14 Id. at 4-144 (emphasis added).

15 Id. at 4-217.

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B. The Limitation Of § 51.53(C)(3) To Applicants Seeking an Initial Renewed License Is Not Inconsistent with NRCs Entire Regulatory Scheme for Implementation of NEPA in License Renewal Proceedings.

FPL contends that interpreting § 51.53(c)(3) to exclude subsequent license renewal applicants like FPL is inconsistent with the NRCs entire regulatory scheme.16 According to FPL, Petitioners plain language interpretation of § 51.53(c)(3) contradicts NRCs regulations for preparing environmental impact statements, which contain no comparable prohibition against applying the Category 1 exclusions of Table B-1 to EISs for subsequent license renewal applicants:

Section 51.71 governs the content of the Staffs draft (and ultimately final) supplemental environmental impact statement (SEIS). Section 51.71(d) provides that [t]he draft [SEIS] for license renewal prepared under § 51.95(c) will rely on conclusions as amplified by the supporting information in the GEIS for issues designated as Category 1 in appendix B to subpart A of this part. Section 51.95(c) provides, among other things, that the license renewal SEIS shall address those issues as required by § 51.71, and shall integrate the conclusions in the [GEIS] for issues designated as Category 1 with information developed for those Category 2 issues applicable to the plant under § 51.53(c)(3)(ii) and any new and significant information.17 But the failure of logic lies with FPL. In promulgating Table B-1, § 51.71, and § 51.95 in 1996, the NRC had no reason to state that the Category 1 exception applied only to initial license renewals, because neither the rule nor the underlying 1996 GEIS applied to anything other than 16 FPL Surreply at 27 (citing Northeast Nuclear Energy Co. (Millstone Nuclear Power Station, Unit 3), CLI-01-10, 53 N.R.C. 353, 366 (2001); U.S. Dept of Energy (High-Level Waste Repository), LBP-04-20, 60 N.R.C. 300, 335 (2004)).

17 FPL Surreply at 8 (emphasis in original) (footnotes omitted).

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initial license renewals (i.e., 40 plus 20 years).18 The NRC could not allow licensees to rely upon generic review of Category 1 issues beyond the initial license renewal term, because the agency never conducted a generic environmental analysis of impacts beyond the 60-year time frame to justify it. Thus, the NRC had no reason to state that Table B-1 would apply to subsequent license renewal applications (i.e., 60 plus 20 years).19 The NRC did have a reason to notify license applicants that § 51.53(c)(3) (and hence Table B-1) would only apply to the initial license renewal term, however. Having told licensees that [n]o limit on the number of license renewals is specified in NRCs Part 54 regulations,20 the NRC reasonably clarified that the scope of its license renewal review under NEPA would be more limited in § 51.53(c)(3).

FPL suggests that Petitioners textual argument fails because Table B-1 does not refer to initial renewed licenses, only renewed licenses:

On this point, it bears emphasis that the preamble to Table B-1 refers to the Commissions assessment of the environmental impacts associated with granting a renewed operating license for a nuclear power plant to a licensee who holds either an operating license or construction permit as of June 30, 1995. Unlike Section 51.53(c)(3), on which Petitioners entire plain language argument hinges, Table B-1 does not refer to initial renewed licenses.21 But FPL stumbles over its own argument. The phrase renewed operating license in the 18 See discussion above in Section II(A)(1).

19 As discussed below in Section II(A)(2), these circumstances have not changed. The NRCs update to the 1996 GEIS in the 2013 Revised GEIS did not extend the temporal scope of the 1996 GEIS beyond the initial license renewal period.

20 1996 GEIS at 1-1.

21 FPL Surreply at 8 (emphasis in original).

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Table B-1 preamble cannot be read to govern all operating licenses because it expressly excludes some renewed licenses, i.e., post-1995 licensees. The only reasonable and logical interpretation of this preamble when read in conjunction with § 51.53(c)(3) is that the preamble only applies to a pre-1995 licensees initial license renewal application. No other construction would give effect to every word.22 In any event, even assuming for purposes of argument that there were any inconsistency between § 51.53(c)(3) and the overarching purposes of NRCs regulations for NEPA review, such an inconsistency would not give the ASLB broad authority to effectively re-write the regulation. The felt necessities of the [rulemaking] process inevitably produce more narrowly focused provisions which fail in full rigor to effectuate the overarching goal. See Int'l Bhd. of Teamsters, 801 F.2d at 1430 (And the hard fact remains that it is not the judiciarys assigned task to sit as a modernday Council of Revision . . . and to cy pres statutory provisions that may not be in full keeping with the spirit that has more recently animated Congress.).

1. The History of the NRCs License Renewal Regulations Contains No Evidence of any Intent by the Commission to Alter or Disregard the Plain Meaning of

§ 51.53(c)(3).

FPL acknowledges that in the 1991 proposed rule, where the NRC first proposed to include the phrase applicants seeking an initial renewed license in 10 C.F.R. § 51.53(c)(3), that the NRC explicitly intended to limit the scope of license renewal environmental reviews to the 22 FPL suggests, incorrectly, that Petitioner SACE argues that §§ 51.53(c)(2) and 51.53(c)(3) are mutually exclusive. FPL Surreply at 7. But Petitioners only argue that § 51.53(c)(3) is limited to the initial license renewal application. Thus, while a pre-1995 licensee seeking an initial license renewal may rely on § 51.53(c)(3), a subsequent license renewal applicant may not.

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first twenty-year renewal term after the initial forty-year term.23 According to FPL, however, the NRC abandoned that intention as early as the final 1996 version of the rule, which omits any similar representations, i.e., it does not use the phrase one renewal of the initial license or up to 20 years beyond the expiration of the initial license.24 Thus, according to FPL, the phrase initial license renewal applicants, as used in § 51.53(c)(3), constitutes a residual reference, i.e., a meaningless historical artifact. But FPL does not cite a single word or phrase to show that the inclusion of this phrase in the regulation was a mistake. And in fact, the regulatory history of the NRCs regulations for NEPA review of license renewal applications contradicts FPL.

a. The regulatory history of NRCs NEPA rules and GEIS for license renewal contain no reference to the concept of subsequent license renewal.

Tellingly, FPL does not identify even a single reference to the concept of subsequent license renewal in the 1996 Final Rule, the 2009 proposed amendments to the 1996 Final Rule, or the 2013 Final Rule amending the 1996 rule. Nor does FPL point to a single reference to the concept of subsequent license renewal in the 1996 GEIS, the 2013 Revised GEIS, or the draft versions of those documents. And no such references can be found. In fact, the regulatory history of § 51.53(c)(3), the License Renewal GEIS, and the NRCs regulations for the implementation of NEPA in license renewal cases demonstrates unequivocally that the inclusion of the phrase applicants seeking an initial renewed license in past and current versions of 23 Surreply at 6 (citing SACE reply at 4 and quoting Proposed Rule, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 56 Fed. Reg. 47,016, 47,017 (Sept. 17, 1991)).

24 Surreply at 6 (emphasis in original) (citing Final Rule, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses 61 Fed. Reg. 28,467 (June 5, 1996)).

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§ 51.53(c)(3) was indeed intentional; and that NRC never considered applying § 51.53(c)(3) or the generic Category 1 findings of Table B-1 to any license renewal term other than the first twenty-year renewal term following an initial 40-year license term.

b. The history of § 51.53(c)(3) contradicts FPLs argument.

FPL would have the ASLB disregard the inclusion of the phrase applicants seeking an initial renewed license, as used in § 51.53(c)(3) as an oversight that the NRC should have corrected when it changed course after the 1991 proposed rule and decided to include multiple license renewal terms in the final 1996 rule. But the rulemaking history of § 51.53(c)(3) shows that the NRC repeatedly carried over that same phrase from the 1991 proposed rule into the 1996 final rule, the 2009 proposed amendments to the 1996 final rule, and the 2013 final amendments to the 1996 rule. See Final Rule, 61 Fed. Reg. at 28,487; Proposed Amended Rule, 74 Fed. Reg.

38,117, 38,128, 38,132 (July 31, 2009); and Final Amended Rule, 78 Fed. Reg. 37,312, 37,316 (June 20, 2013). It is absurd for FPL to characterize the inclusion of the phrase applicants seeking an initial renewal term in three separate rulemaking notices following the 1991 Proposed Rule as residual.

i. The 1996 Final Rule and 1996 GEIS specifically state that the NRCs generic environmental analysis for license renewal, including Category 1 designations, covers only the initial license renewal term.

FPLs claim that the 1996 final rule contains no reference to a single license renewal term is incorrect.25 The 1996 Final Rule directly references the NRCs assumption that its environmental review for license renewal covered only the first renewal term, with respect to decommissioning impacts:

25 See FPL Surreply at 6.

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The analysis in the GEIS for license renewal examines the physical requirements and attendant effects of decommissioning after a 20-year license renewal compared with decommissioning at the end of 40 years of operation and finds little difference in effects.

Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg.

28,467, 28,482 (June 5, 1996). Equally importantly, the 1996 Final Rule codifies and relies on the findings of the 1996 GEIS. Id. at 28,467 (stating that the rule is based on the analyses conducted for and reported in NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (May 1996)). The GEIS, in turn, explicitly describes the proposed action addressed by its analysis as allowing nuclear power plants to operate for a maximum of 20 years past the terms of their original 40-year operating licenses.26 See also discussion above in Section II(A).

ii. The NRC did not expand the temporal scope of the 1996 GEIS when it prepared the 2013 Revised GEIS.

FPL argues that the 2013 Revised GEIS expands the scope of the environmental analysis 26 1996 GEIS at 2-28-29 (emphasis added). FPL argues that restricting the scope of the GEIS to the first license renewal term is illogical in light of the NRCs stated intention to update the GEIS every ten years after issuance of the 1996 GEIS. FPL Surreply at 6 (citing Table B-1).

But there is nothing illogical or inconsistent about making such a plan for initial license renewal reviews. At the time the 1996 rule was promulgated, none of the licenses for more than 100 operating reactors had been renewed, and indeed all plans for license renewal were awaiting promulgation of regulations that would allow them to go forward. Thirteen years later (in 2009),

about half (51) of reactor licenses had been renewed. Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 74 Fed. Reg. 38,117, 38,119 (Jul. 31, 2009). Had the NRC stayed on schedule and actually revised its GEIS every ten years after 1996 as originally planned, the License Renewal GEIS would have been revised several times before all original operating licenses were renewed for an initial renewal term.

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to include a second license renewal term.27 As discussed above in Section II(A)(2), however, the 2013 Revised GEIS contains no evidence of such an expansion, and indeed is replete with statements showing that the NRC assumed the same time frame as the 1996 GEIS: the original 40-year term plus an additional 20 years. Throughout the 2013 Revised GEIS, the NRC refers to a time frame totaling 60 years, and a baseline of 40 years. Nowhere does the 2013 Revised GEIS refer to a time frame totaling 80 years or a baseline of 60 years.

Thus, the use of the term current in the 2013 Revised GEIS does not signify any change from the use of the same term in the 1996 GEIS to describe the original license term.28 C. FPLs Proposed Interpretation of § 51.53(c)(3) is Inconsistent with NRCs Regulatory Scheme for Preparation of EISs, Including the Scoping Process.

FPL argues that depriving subsequent license renewal applicants of Category 1 exclusions would make no practical sense in light of the Commissions goal of using the Category 1 designations to make the license renewal process more efficient.29 But the NRC could not have subordinated its specific procedural regulations to a general goal of efficiency.

And the record contains no evidence that the NRC used its scoping process to expand the scope of the 1996 GEIS in the 2013 Revised GEIS.

In the process of scoping an EIS, the NRC must, inter alia, [d]efine the proposed action 27 FPL Surreply at 10-11.

28 FPL makes much of the fact that the 2013 Revised GEIS uses the phrase current license term, leaving open to interpretation whether the NRC meant that the agency was considering an addition to the original license term or to an already-renewed license term. FPL Surreply at 10.

But the 1996 GEIS uses the phrases current license term, current license period, and current license throughout to refer to the original license term. See, for example, 2013 Revised GEIS at xxxvii-xliii, 1-2, 1-6, 2-36, 2-37, 2-48, 3-6, 3-50, 4-55, 4-123 127, 5-1, 5-97, 6-37.

29 FPL Surreply at 9.

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(10 C.F.R. § 51.29(a)(1)), [d]etermine the scope of the statement (10 C.F.R. § 51.29(a)(2)),

and identify the significant issues to be analyzed in depth. Id. As discussed above in Section II(A)(1), the record of the 1996 GEIS shows that the temporal scope of that GEIS was limited exclusively to the first license renewal term after the initial operating license term. FPL cannot point to a single word in either the scoping notice for the 2009 proposed amendments to the 1996 final rule or the 2009 draft revised GEIS that (a) re-defined the proposed action as extending reactor operating licenses for multiple 20-year terms, (b) stated that the scope of the 2013 Revised GEIS would cover multiple license renewal terms, or (c) identified or sought public comment on the significant issues that should be analyzed in the course of the expanded environmental review. Instead, the only action proposed by the NRC was to update the 1996 GEIS. Notice of Intent to Prepare an Environmental Impact Statement for the License Renewal of Nuclear Power Plants and to Conduct Scoping Process, 68 Fed. Reg. 33,209 (June 3, 2003).

FPLs inability to point to a scoping process that expanded the scope of the License Renewal GEIS fundamentally undermines any claim to a temporal expansion, because the scope of an EIS determines the scope of the federal action that may be taken under the authority of that EIS. Duke Power Co. (Oconee/McGuire), LBP-80-28, 12 N.R.C. 459, 473 (1980). Here, the scope of the 1996 GEIS, as updated in the 2013 Revised GEIS, is limited to the first license renewal term after the original operating license term. Therefore, the NRC may not take the federal action of applying the Category 1 exclusions in Table B-1 to any license renewal applications other than initial license renewal applications. The NRC may still refer to the environmental findings of the 2013 Revised GEIS in a subsequent license renewal review, but NEPA prohibits the NRC from codifying those findings for purposes of a subsequent license renewal review.

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III. INTERNAL NRC MEMORANDA AND POLICY STATEMENTS CANNOT SUBSTITUTE FOR NOTICE-AND-COMMENT RULEMAKING, SCOPING PROCESS, AND A NEW DRAFT GEIS FOR LICENSE RENEWALS.

As discussed above, a formal notice-and-comment rulemaking led to the original and still-current language in § 51.53(c)(3). That language is plain in limiting the scope of the regulation to initial license renewal applications. If FPL wishes to change that language, it must petition for a rulemaking and ask the NRC to prepare a new or revised License Renewal GEIS.

No intervening memoranda, policy statements, or GEIS can change that. See, e.g., Perez v.

Mortg. Bankers Assn, 135 S. Ct. 1199, 1206 (2015) (agencies [must] use the same procedures when they amend or repeal a rule as they used to issue the rule in the first instance.). The convenience of avoiding notice-and-comment rulemaking comes at a price: Interpretive rules do not have the force and effect of law and are not accorded that weight in the adjudicatory process. Id. at 1204 (internal citations omitted). This is black letter law.30 30 FPLs argument that reference in SECY-12-0063 to the potential filing of subsequent license renewal applications overrides the scoping notice and summary report for the 2013 Revised GEIS -- which contain no reference whatsoever to the concept of subsequent license renewal or any license renewal term beyond the first twenty years -- is inconsistent with NRC regulations and case law interpreting NEPA. Surreply at 11 n.40. Accuracy in the initial scoping of an EIS is critical because a proposed federal action may not exceed the scope of its supporting EIS.

Duke Power Co., 12 N.R.C. at 473. Hence, the NRC must conduct a scoping process as soon as practicable after publication of the notice of intent and use it to [d]efine the proposed action which is to be the subject of the statement or supplement. 10 C.F.R. §§ 51.29(a) and 51.29(a)(1). Public participation is also an important element of the scoping process, and therefore NRC regulations require that a broad range of affected parties, including individuals and organizations, government agencies, and Indian tribes, must be notified and invited to participate. 10 C.F.R. § 51.28. To disregard the content of the scoping notice for the 2013 Revised GEIS or the results of the scoping process would defeat the purpose of these regulations.

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A. NRC Internal Memoranda Do Not Substitute for NEPA Compliance or Notice-and-Comment Rulemaking.

The only NRC documents that FPL can point to which actually mention subsequent license renewal in the context of the NRCs NEPA review are three NRC memoranda: SECY-12-0063, Final Rule: Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses (Apr. 20, 2012) (ML110760033); SECY-14-0016, Ongoing Staff Activities to Assess Regulatory Considerations for Power Reactor Subsequent License Renewal (Jan. 31, 2014) (ML14050A306), and SRM- SECY-14-0016 - Ongoing Staff Activities to Assess Regulatory Considerations for Power Reactor Subsequent License Renewal (Aug. 29, 2014)

(ML14241A578) (SRM-SECY-14-0016).31 None of these internal NRC memoranda could substitute for the notice-and-comment rulemaking, scoping process, and new draft GEIS for license renewal that the NRC must undertake if it wishes to apply the Category 1 exclusions to subsequent license renewal applications. See Perez, 135 S. Ct. at 1206.

In any event, the internal memoranda do not come close to addressing the issue of whether the NRC is entitled to ignore the plain language of § 51.53(c)(3) or the temporal limitations of the 1996 GEIS as revised in 2013. They simply acknowledge that licensees will become eligible for a second license renewal term and that the NRC should establish guidance for the proceedings.

31 FPL Surreply at 11-13.

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B. Absent a New Rulemaking and NEPA Proceeding, FPLs Subsequent License Renewal Application is Governed by 10 C.F.R. §§ 51.53(c)(2) and 51.45(a).

Absent a new rulemaking and NEPA proceeding to expand the scope of the 1996 GEIS and 2013 Revised GEIS, FPLs subsequent license renewal application must be reviewed under

§§ 51.53(c)(2) and 51.45(a), which do not provide for application of Category 1 exclusions.32 If the NRC wishes to apply the Category 1 exemptions to subsequent license renewal applicants like FPL, it must first revise the 1996 GEIS and rule, and the 2013 Revised GEIS and amended rule, to comply with its own procedural requirements for implementation of NEPA and the Administrative Procedure Act. First, the NRC must issue a scoping notice for a new or revised GEIS, which clearly states the scope of the proposed GEIS and seeks public participation in determining the scope of the analysis and the issues that must be addressed in depth. 10 C.F.R. §§ 50.28, 50.29(a)(1), and 50.29(a)(2).

Second, the NRC must prepare a draft GEIS and solicit public comment, as required by 10 C.F.R. Part 51. Compliance with these procedural requirements is essential to fulfill NEPAs twin purposes of ensuring sound environmental decisions and allowing the public to play a role in the decision-making process. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 348-49 (1989).

Finally, the NRC must comply with NEPA and the Administrative Procedure Act by publishing, for public comment, revised NEPA regulations which make the requirements of Table B-1 binding in subsequent license renewal proceedings. New York v. N.R.C., 681 F.3d 32 See SACEs Hearing Request at 5 and 29.

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471, 476 (D.C. Cir. 2012) (holding that regulations codifying NEPA findings constitute major federal action requiring an EIS or environmental assessment); Union of Concerned Scientists v.

N.R.C., 711 F.2d 370, 383 (D.C. Cir. 1983) (citing Pickus v. U.S. Board of Parole, 507 F.2d 1107, 1113 (D.C. Cir. 1974) (requiring notice-and-comment rulemaking for an NRC decision that alters a binding norm.).33 CONCLUSION For the foregoing reasons, Petitioners respectfully request that the ALSB determine that

§ 51.53(c)(3) only applies to pre-1995 applicants for an initial license renewal.

33 FPLs argument that the reference in SECY-12-0063 to the potential filing of subsequent license renewal applications overrides the scoping notice and summary report for the 2013 Revised GEISwhich contain no reference whatsoever to the concept of subsequent license renewal or any license renewal term beyond the first twenty yearsis inconsistent with NRC regulations and case law. Surreply at 11 n.40. Accuracy in the initial scoping of an EIS is critical because a proposed federal action may not exceed the scope of its supporting EIS. Duke Power Co. (Oconee/McGuire), LBP-80-28, 12 N.R.C. 459, 473 (1980) (citing Swain v. Brinegar, 542 F.2d 364, 367 (7th Cir. 1976) (In making an evaluation of the environmental impact of a proposed action under NEPA, the scope of the environmental statement or appraisal must be at least as broad as the scope of the action being taken.)). Hence, the NRC must conduct a scoping process as soon as practicable after publication of the notice of intent and use it to

[d]efine the proposed action which is to be the subject of the statement or supplement. 10 C.F.R. §§ 51.29(a) and 51.29(a)(1). Public participation is also an important element of the scoping process, and therefore NRC regulations require that a broad range of affected parties, including individuals and organizations, government agencies, and Indian tribes, must be notified and invited to participate. 10 C.F.R. § 51.28. To disregard the content of the scoping notice for the 2013 Revised GEIS or the results of the scoping process would defeat the purpose of these regulations.

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Respectfully submitted,

/s/ Diane Curran /s/ Geoffrey Fettus Diane Curran Geoffrey Fettus HARMON, CURRAN, SPIELBERG, & NATURAL RESOURCES DEFENSE EISENBERG, L.L.P. COUNCIL 1725 DeSales Street N.W., Suite 500 1152 15th Street, NW, Suite 300 Washington, D.C. 20036 Washington, DC 20005 240-393-9285 202-289-2371 dcurran@harmoncurran.com gfettus@nrdc.org Counsel for Southern Alliance Counsel for Natural Resources Defense For Clean Energy Council

/s/ Ken Rumelt /s/ Edan Rotenberg Ken Rumelt Edan Rotenberg Vermont Law School SUPER LAW GROUP, LLC ENVIRONMENTAL & NATURAL 180 Maiden Lane, Suite 603 RESOURCES LAW CLINIC New York, New York 10038 164 Chelsea Street, PO Box 96 212-242-2355, Ext. 2 South Royalton, VT 05068 edan@superlawgroup.com 802-831-1000 Counsel for Miami Waterkeeper krumelt@vermontlaw.edu Counsel for Friends of the Earth

/s/ Richard E. Ayres Richard E. Ayres FRIENDS OF THE EARTH COUNCIL 2923 Foxhall Road, N.W.

Washington, D.C. 20016 E-mail: ayresr@ayreslawgroup.com Counsel for Friends of the Earth /

October 1, 2018 21

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

_____________________________________

)

In the Matter of )

Florida Power and Light Company ) Docket Nos. 50-250/251-SLR Turkey Point Units 3 and 4 )

_____________________________________)

CERTIFICATE OF SERVICE I certify that on October 1, 2018, I posted copies of the foregoing PETITIONERS RESPONSE TO APPLICANTS SURREPLY on the NRCs Electronic Information Exchange System.

___/signed electronically by/__

Diane Curran