ML19091A302

FPL Notice of Appeal and Brief in Support of Appeal of LBP-19-3

ML19091A302
Person / Time
Site:	Turkey Point
Issue date:	04/01/2019
From:	Bessette P, Hamrick S, Lighty R Florida Power & Light Co, Morgan, Morgan, Lewis & Bockius, LLP
To:	NRC/OCM
SECY RAS
References
50-250-SLR, 50-251-SLR, ASLBP 18-957-01-SLR-BD01, RAS 54904
Download: ML19091A302 (31)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of ) Docket Nos. 50-250-SLR & 50-251-SLR

)

FLORIDA POWER & LIGHT COMPANY ) ASLBP No. 18-957-01-SLR-BD01

)

(Turkey Point Nuclear Generating Units 3 and 4) ) April 1, 2019

)

FLORIDA POWER & LIGHT COMPANYS NOTICE OF APPEAL OF LBP-19-3 Pursuant to 10 C.F.R. § 2.311, Florida Power & Light Company (FPL) hereby files this Notice of Appeal of the Atomic Safety and Licensing Boards (Board) March 7, 2019 Memorandum and Order LBP-19-3.1 In that decision, the Board granted petitions to intervene and requests for hearing (Petitions) filed by Southern Alliance for Clean Energy,2 and Friends of the Earth, Inc., Natural Resources Defense Council, Inc., and Miami Waterkeeper, Inc.,3 and admitted, in part, four contentions for litigation. As demonstrated in the accompanying Brief in Support of Florida Power & Light Companys Appeal of LBP-19-3, the Board clearly erred and abused its discretion in admitting each of the four contentions. Therefore, pursuant to 10 C.F.R.

§ 2.311(d)(1), FPL appeals the granting of the Petitions.

1 Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 & 4), LBP-19-3, 89 NRC __ (slip op.)

(Mar. 7, 2019). Pursuant to 10 C.F.R. § 2.311(b), appeals of Board orders on hearing requests and petitions to intervene are due within 25 days after the service of the order; therefore, this appeal is timely.

2 Southern Alliance for Clean Energys Request for Hearing and Petition to Intervene (Aug. 1, 2018)

(ML18213A529).

3 Request for Hearing and Petition to Intervene Submitted by Friends of the Earth, Natural Resources Defense Council, and Miami Waterkeeper (Aug. 1, 2018) (ML18213A418).

Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d) Executed in Accord with 10 C.F.R. § 2.304(d)

Steven Hamrick, Esq. Paul M. Bessette, Esq.

Florida Power & Light Company Morgan, Lewis & Bockius LLP 801 Pennsylvania Ave., NW Suite 220 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Washington, D.C. 20004 Phone: (202) 349-3496 Phone: (202) 739-5796 Fax: (202) 347-7076 Fax: (202) 739-3001 E-mail: steven.hamrick@fpl.com E-mail: paul.bessette@morganlewis.com Signed (electronically) by Ryan K. Lighty Ryan K. Lighty, Esq.

Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Phone: (202) 739-5274 Fax: (202) 739-3001 E-mail: ryan.lighty@morganlewis.com Counsel for Florida Power & Light Company Dated in Washington, DC this 1st day of April 2019 2

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of ) Docket Nos. 50-250-SLR & 50-251-SLR

)

FLORIDA POWER & LIGHT COMPANY ) ASLBP No. 18-957-01-SLR-BD01

)

(Turkey Point Nuclear Generating Units 3 and 4) ) April 1, 2019

)

BRIEF IN SUPPORT OF FLORIDA POWER & LIGHT COMPANYS APPEAL OF LBP-19-3 Steven Hamrick, Esq. Paul M. Bessette, Esq.

Florida Power & Light Company Morgan, Lewis & Bockius LLP 801 Pennsylvania Ave., NW Suite 220 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Washington, D.C. 20004 Phone: (202) 349-3496 Phone: (202) 739-5796 Fax: (202) 347-7076 Fax: (202) 739-3001 E-mail: steven.hamrick@fpl.com E-mail: paul.bessette@morganlewis.com Ryan K. Lighty, Esq.

Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Phone: (202) 739-5274 Fax: (202) 739-3001 E-mail: ryan.lighty@morganlewis.com Counsel for Florida Power & Light Company

TABLE OF CONTENTS I. INTRODUCTION ................................................................................................................... 1 II. LEGAL STANDARDS ........................................................................................................... 3 A. Standard of Review .............................................................................................................. 3 B. Contention Admissibility Standards .................................................................................... 4 III. THE COMMISSION SHOULD REVERSE THE BOARDS DECISION TO GRANT SACES PETITION................................................................................................................. 4 A. The Boards Decision to Admit Part of SACE Contention 1-A Is Clearly Erroneous and Should Be Reversed ............................................................................................................. 5

1. The Boards Determination That SACE Provided Adequate Support Is Clearly Erroneous Because It Relies on a Misreading of the Fourqurean Report, Which Contains No Mention of Crocodiles. .................................................................................................................................... 5

2. The Boards Determination That SACE Demonstrated a Genuine Dispute with the Application Is Clearly Erroneous Because It Disregards the Applicable Legal Standard Requiring Petitioners to Dispute All Relevant Portions of the Application .................................................................... 7 B. The Boards Decision to Admit Part of SACE Contention 2 Is Clearly Erroneous and Should Be Reversed ............................................................................................................. 8 IV. THE COMMISSION SHOULD REVERSE THE BOARDS DECISION TO GRANT THE JOINT PETITION ................................................................................................................. 13 A. The Boards Decision to Admit Part of Joint Petitioners Contention 1-E Is Clearly Erroneous and Should Be Reversed ................................................................................... 14 B. The Boards Decision to Admit Part of Joint Petitioners Contention 5-E Is Clearly Erroneous and Should Be Reversed ................................................................................... 14

1. The Boards Determination That Joint Petitioners Provided Adequate Support Is Clearly Erroneous Because It Relies on a Misreading of the Mayorga Letter ........................................ 15

2. The Boards Decision to Admit Joint Petitioners Ammonia Challenge Is Clearly Erroneous Because It Relies on a Misapplication of Controlling Law or a Misreading of the MDC Consent Agreement ................................................................................................................................... 17

3. The Boards Decision to Admit Joint Petitioners Ammonia Challenge Is Clearly Erroneous Because It Relies on a Misapplication of Controlling Law or a Misreading of the GEIS .......... 20 V. CONCLUSION...................................................................................................................... 23 ii

TABLE OF AUTHORITIES CASES AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI 24, 64 NRC 111 (2006) ....................................................................................................... 3 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235 (2009) ............................................................................................................. 3 Crow Butte Res., Inc. (In Situ Leach Facility, Crawford, Nebraska), CLI-09-9, 69 NRC 331 (2009).................................................................................................................. 3 Crow Butte Res., Inc. (North Trend Expansion Project), CLI-09-12, 69 NRC 535 (2009) .......................................................................................................................... 3, 4, 7 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3),

CLI-01-24, 54 NRC 349 (2001).................................................................................... 4, 11 Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, & 3), CLI-99-11, 49 NRC 328 (1999).................................................................................................................. 4 Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), ALAB-687, 16 NRC 460 (1982) ........................................................................................................................... 5 Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-15-23, 82 NRC 321 (2015) ..................................................................................................................... 7, 11 Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 & 4), LBP 3, 89 NRC __ (slip op.) (Mar. 7, 2019)...................................................................... passim Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 &

4), CLI-11-9, 74 NRC 233 (2011) ...................................................................................... 3 Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 &

4), CLI-12-7, 75 NRC 379 (2012) ...................................................................................... 3 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301 (2012) ......................................................................................................................... 11 Progress Energy Fla., Inc. (Levy Cty. Nuclear Power Plant, Units 1 & 2), CLI-10-2, 71 NRC 27 (2010) ..................................................................................................... 3 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989) ................................. 9, 10, 11 Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18 (1998) ............................................................................................................................. 3 Tenn. Valley Auth. (Clinch River Nuclear Site Early Site Permit Application),

CLI-18-5, 87 NRC 119 (May 3, 2018) ......................................................................... 9, 11 USEC Inc. (Am. Centrifuge Plant), CLI-06-10, 63 NRC 451 (2006) .................................. 6, 8, 11 USEC Inc. (Am. Centrifuge Plant), CLI-06-9, 63 NRC 433 (2006) .............................................. 4 iii

OTHER AUTHORITIES Forty Most Asked Questions Concerning CEQs National Environmental Policy Act Regulations, 46 Fed. Reg. 18,026 (Mar. 23, 1981) ...................................................... 9 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Vol. 1, Main Report, Rev. 1 (June 2013) .................................... 15, 21, 22 REGULATIONS 10 C.F.R. § 2.309(a)............................................................................................................ 4, 13, 23 10 C.F.R. § 2.309(f)(1) ............................................................................................................... 2, 4 10 C.F.R. § 2.309(f)(1)(iv)........................................................................................................ 8, 12 10 C.F.R. § 2.309(f)(1)(v)............................................................................................. 7, 15, 17, 18 10 C.F.R. § 2.309(f)(1)(vi)........................................................................................................ 8, 18 10 C.F.R. § 2.311 ............................................................................................................................ 1 10 C.F.R. § 2.323(f)(1) ................................................................................................................... 2 10 C.F.R. § 51.45(c).................................................................................................................. 9, 12 10 C.F.R. § 51.71(d) ....................................................................................................................... 9 40 C.F.R. § 1508.20(d) ................................................................................................................... 9 iv

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of ) Docket Nos. 50-250-SLR & 50-251-SLR

)

FLORIDA POWER & LIGHT COMPANY ) ASLBP No. 18-957-01-SLR-BD01

)

(Turkey Point Nuclear Generating Units 3 and 4) ) April 1, 2019

)

BRIEF IN SUPPORT OF FLORIDA POWER & LIGHT COMPANYS APPEAL OF LBP 19-3 I. INTRODUCTION Pursuant to 10 C.F.R. § 2.311, Florida Power & Light Company (FPL) files this Brief in Support of FPLs Appeal of the Atomic Safety and Licensing Boards (Board) March 7, 2019 Memorandum and Order LBP-19-3.1 In that decision, the Board granted petitions to intervene and requests for hearing (Petitions) filed by Southern Alliance for Clean Energy (SACE),2 and Friends of the Earth, Inc., Natural Resources Defense Council, Inc., and Miami Waterkeeper, Inc. (Joint Petitioners),3 and admitted, in part, four contentions for litigation.

SACEs two proffered contentions, and Joint Petitioners five proffered contentions, each purported to challenge FPLs subsequent license renewal (SLR) application (SLRA) for Turkey Point Nuclear Generating Units 3 and 4 (Turkey Point).4 More specifically, the 1

Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 & 4), LBP-19-3, 89 NRC __ (slip op.)

(Mar. 7, 2019) (LBP-19-3).

2 Southern Alliance for Clean Energys Request for Hearing and Petition to Intervene (Aug. 1, 2018)

(ML18213A529) (SACE Petition) (including attachments 1-18 (package ML18213A528)).

3 Request for Hearing and Petition to Intervene Submitted by Friends of the Earth, Natural Resources Defense Council, and Miami Waterkeeper (Aug. 1, 2018) (ML18213A418) (Joint Petition) (including attachments A-Q (Package ML18213A417)).

4 See Letter from M. Nazar, FPL, to NRC, Turkey Point Units 3 and 4 Subsequent License Renewal Application (Jan. 30, 2018) (ML18037A824) (SLRA).

contentions purport to challenge the environmental report submitted with the SLRA, as required by 10 C.F.R. Part 51, which considers the potential environmental impacts of the requested 20-year license extension.5 All seven of the proposed contentions asserted various deficiencies in the ER related primarily to (1) climate change and (2) the Turkey Point cooling canal system (CCS). In LBP-19-3, the Board rejected the bulk of SACEs and Joint Petitioners arguments, concluding that they failed to satisfy the contention admissibility requirements in 10 C.F.R. § 2.309(f)(1) .6 However, the Board found portions of two of SACEs proffered contentions, and portions of two of Joint Petitioners proffered contentions, admissible. In summary, the Board admitted: (1)

SACEs challenge regarding the ERs analysis of alleged impacts of continued operation of the CCS on the American Crocodile and its critical seagrass habitat; (2) Joint Petitioners challenge regarding the ERs analysis of ammonia in the environment near Turkey Point; and (3) identical challenges from both SACE and Joint Petitioners asserting the ER improperly omitted an analysis of cooling towers as a mitigation measure.7 The Boards decision to admit these four contentions suffers from multiple clear errors requiring reversal. First, as explained below, the Board appears to have misread several key documents upon which it explicitly relied for its admissibility decisions. These imprecise readings, detailed in the discussions below, resulted in admissibility determinations that are 5

See SLRA, App. E (ML18037A836). A supplement to the environmental report was also submitted. See L-2018-086, Letter from W. Maher, FPL, to NRC Document Control Desk, Appendix E Environmental Report Supplemental Information (Apr. 10, 2018) (ML18102A521) (ER Supplement) (collectively, SLRA, App. E and the ER Supplement constitute the ER).

6 Additionally, the Board denied a third hearing request from Mr. Albert Gomez, granted a request by Monroe County, Florida, to participate as an interested governmental participant, and referred a portion of its ruling to the Commission pursuant to 10 C.F.R. § 2.323(f)(1). See generally LBP-19-3. The Boards decision provides a full procedural history. Id. at 2-5.

7 See generally LBP-19-3 at 63 n.81 & 82.

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unsupported and contrary to settled law. Second, the Board overlooked or erroneously disregarded controlling law or precedent in concluding that certain of these contentions are admissible. These instances constitute abuse of discretion or error of law. Such errors should not be left to stand as a matter of law or equity. Accordingly, the Commission should:

(1) reverse the Boards decision in LBP-19-3 to admit portions of SACE Contentions 1-A and 2, and portions of Joint Petitioners Contentions 1-E and 5-E; (2) wholly deny both Petitions for failure to propose an admissible contention; and (3) direct the Board to terminate the proceeding.

II. LEGAL STANDARDS A. Standard of Review Section 2.311 permits an appeal as of right on the question of whether an initial intervention petition should have been wholly denied, or alternatively, was granted improperly.8 The Commission generally defers to Board decisions on contention admissibility, but will reverse a Boards ruling if there has been an error of law or an abuse of discretion.9 The Commission, in fact, has done so multiple times in recent years, because entertain[ing]

contentions grounded on little more than guesswork would waste the scarce adjudicatory resources of all involved.10 8

Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 & 4), CLI-12-7, 75 NRC 379, 385 (2012) (citing Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 23 (1998) (Adjudicatory Policy); AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 125 (2006)).

9 Comanche Peak, CLI-12-7, 75 NRC at 386 (citing Progress Energy Fla., Inc. (Levy Cty. Nuclear Power Plant, Units 1 & 2), CLI-10-2, 71 NRC 27, 29 (2010); AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235 (2009); Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 & 4), CLI-11-9, 74 NRC 233, 237 (2011)).

10 Crow Butte Res., Inc. (North Trend Expansion Project), CLI-09-12, 69 NRC 535, 552 (2009); see also Crow Butte Res., Inc. (In Situ Leach Facility, Crawford, Nebraska), CLI-09-9, 69 NRC 331, 364 (2009)

(arguments that are speculative do not form the basis for a litigable contention).

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B. Contention Admissibility Standards The Commissions rules on contention admissibility are strict by design.11 The rules were toughened . . . in 1989 because in prior years licensing boards had admitted and litigated numerous contentions that appeared to be based on little more than speculation.12 The Commission has emphasized that the contention pleading rules are designed to ensure . . . that only well-defined issues are admitted for hearing.13 Failure to comply with any one of the six admissibility criteria in 10 C.F.R. § 2.309(f)(1) is grounds for rejecting a proposed contention.14 III. THE COMMISSION SHOULD REVERSE THE BOARDS DECISION TO GRANT SACES PETITION The Board concluded that SACE demonstrated standing and submitted two admissible contentions.15 More specifically, the Board admitted portions of SACE Contentions 1-A and 2, and concluded that all other portions of the contentions proffered by SACE were inadmissible.

However, the Boards decisions to admit SACE Contentions 1-A and 2 were both clearly erroneous and should be reversed for the reasons stated below. Accordingly, because SACE failed to propose at least one admissible contention as required by 10 C.F.R. § 2.309(a), its Petition should have been wholly denied. Thus, the Commission should reverse the Boards decision to grant SACEs Petition.

11 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001).

12 Millstone, CLI-01-24, 54 NRC at 358 (citing Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, & 3),

CLI-99-11, 49 NRC 328, 334 (1999)).

13 Crow Butte, CLI-09-12, 69 NRC at 552 (citations omitted).

14 USEC Inc. (Am. Centrifuge Plant), CLI-06-9, 63 NRC 433, 436-37 (2006).

15 LBP-19-3 at 31.

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A. The Boards Decision to Admit Part of SACE Contention 1-A Is Clearly Erroneous and Should Be Reversed As admitted by the Board, SACE Contention 1-A asserts that [t]he ER fails adequately to analyze the impacts (including cumulative) of continued CCS operation on the American Crocodile and its critical seagrass habitat.16 However, the Boards decision to admit the contention is founded on two clear errors, each of which provides an independent basis for reversal. First, the Board relied on a misreading of an expert report proffered by SACE to conclude that the contention is adequately supported. Second, the Board disregarded the applicable legal standard requiring petitioners to dispute all relevant portions of the application.17

1. The Boards Determination That SACE Provided Adequate Support Is Clearly Erroneous Because It Relies on a Misreading of the Fourqurean Report, Which Contains No Mention of Crocodiles.

The Board concludes that two documents cited by SACE provide adequate support for Contention 1-A.18 First, the Board noted that SACE pointed to the ERs observation that the number of successful crocodile nests located at the site in the CCS has decreased in recent years due to a loss of critical seagrass habitat.19 Second, the Board noted SACEs reference to the Expert Report of James Fourqurean, Ph.D. (Fourqurean Report),20 which opines that operation of the CCS is contributing to denser seagrass offshore from the CCS[.]21 Accordingly, while 16 Id. at 33.

17 See generally 10 C.F.R. § 2.309(f)(1)(vi) ; Duke Power Co. (Catawba Nuclear Station, Units 1 & 2),

ALAB-687, 16 NRC 460, 468 (1982) (an intervention petitioner has an ironclad obligation to examine the publicly available documentary material pertaining to the facility in question with sufficient care to enable it to uncover any information that could serve as the foundation for a specific contention. Stated otherwise, neither Section 189a. of the [Atomic Energy Act of 1954, as amended] nor [the NRCs] Rules of Practice permits the filing of a vague, unparticularized contention, followed by an endeavor to flesh it out through discovery against the applicant or staff.).

18 Id.

19 Id. (citing SACE Petition at 19).

20 Id. (citing SACE Petition at 20, in turn citing Attachment 8).

21 SACE Petition at 19; Fourqurean Report at 4 (emphasis added).

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the crux of SACEs contention is not entirely clear from its pleading, it appears to be that the decline in the number of successful crocodile nests at Turkey Point is caused by a loss of seagrass in the CCS and an increase in seagrass offshore in Biscayne Bay, and that the ER is somehow deficient because it does not discuss this purported connection.22 However, neither the ER nor the Fourqurean Report provide any support, whatsoever, for the speculative connection asserted by SACE. Thus, the Boards conclusion that the contention is adequately supported erroneously rests on either (1) a misreading of the Fourqurean Report, or (2) an uncritical acceptance of SACEs assertion that it supports the contention. In either case, the Boards decision to admit the contention is premised on clear factual error and must be reversed.

As the Commission has explained, [a] contention must make clear why cited references provide a basis for a contention.23 In contrast, SACE did not explain how the Fourqurean Reportwhich was prepared as part of a separate Clean Water Act (CWA) case in federal district court regarding alleged impacts to Biscayne Bay24 and does not include a single mention of crocodilessomehow articulates support for its assertion that the temporary decline in crocodile population at Turkey Point is caused by a loss of critical seagrass bed habitat in the CCS.25 Nor did the Board do so in LBP-19-3, despite FPLs having raised this precise disconnect in the pleadings below.26 The Board simply concluded, without explanation, that the 22 SACE Petition at 19 (speculating that the temporary decline signals a loss of critical seagrass bed habitat.). In fact, SACE never provided any reference, expert opinion, or other support identifying seagrass habitat as critical to crocodiles.

23 USEC Inc. (Am. Centrifuge Plant), CLI-06-10, 63 NRC 451, 457 (2006) (citation omitted).

24 See generally Amended Complaint, SACE et al. v. FPL, No. 1:16-cv-23017-DPG (S.D. Fla. Oct. 11, 2016),

ECF No. 32; Fourqurean Report at 1 (captioned for same).

25 SACE Petition at 19.

26 Applicants Answer Opposing Southern Alliance for Clean Energys Request for Hearing and Petition to Intervene at 36 n.154 (Aug. 27, 2018) (ML18239A450) (FPL Answer to SACE Petition) (The Fourqurean report does not contain a single reference to the American crocodile, much less discuss the effects of the CCS on that species).

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Fourqurean Report provided expert support for SACEs claim.27 Ultimately, SACEs asserted connection erroneously conflates two distinct geographic areas and amounts to nothing more than unsupported guesswork, which simply is incapable of supplying the requisite basis for a contention.28 At bottom, the Boards misreading (or uncritical acceptance of SACEs misreading) of the Fourqurean Report resulted in a clearly erroneous determination that SACE demonstrated adequate support for the contention, as required by 10 C.F.R. § 2.309(f)(1)(v). And because the Board cited no further basis for its finding of adequate support, its erroneous conclusion that the contention is admissible is contrary to law. Accordingly, the Commission should reverse the Boards decision to admit SACE Contention 1-A.

2. The Boards Determination That SACE Demonstrated a Genuine Dispute with the Application Is Clearly Erroneous Because It Disregards the Applicable Legal Standard Requiring Petitioners to Dispute All Relevant Portions of the Application As explained by the Board, SACE contends that the American Crocodile and its seagrass habitat somehow will be harmed by exposure to excessive levels of salt and nutrients from the CCS during the SLR period.29 Noticeably absent from the Boards decision, however, is any finding that SACE identified a defect in the ERs already thorough discussion of impacts related to salt and nutrients. As explained below, such a finding is sine qua non to any determination that the contention identifies a genuine dispute with the application, as required by 10 C.F.R. § 27 LBP-19-3 at 33.

28 Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-15-23, 82 NRC 321, 325-26 (2015)

(citing Crow Butte, CLI-09-12, 69 NRC at 552 (2009)).

29 LBP-19-3 at 33.

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2.309(f)(1)(iv) and (vi). The Boards failure to address this threshold legal consideration amounts to reversible legal error.

As FPL explained in the pleadings below, the ER comprehensively evaluates the full range of impacts of salinity and nutrients, and discusses FPLs extensive efforts to manage nutrients and reduce salinity during the SLR period.30 In order to demonstrate a genuine, material dispute, a petitioner must specifically address or call[] into question the relevant analyses in the ER and explain how they are incorrect.31 There can be no doubt that the ERs analyses of salt and nutrients are relevant to SACEs claim. But the Boards decision, which couches the reformulated contention as one of adequacy, does not articulate any specific alleged inadequacy in these highly-relevant analyses. At bottom, the Boards failure to make this threshold findingindeed, its silence as to SACEs failure to challenge relevant analyses in the ERconstitutes reversible legal error. Accordingly, the Commission should reverse the Boards decision to admit SACE Contention 1-A for this second independent reason.

B. The Boards Decision to Admit Part of SACE Contention 2 Is Clearly Erroneous and Should Be Reversed In Contention 2, SACE argued that FPLs ER improperly failed to consider the reasonable alternative of cooling the Turkey Point Units 3 and 4 reactors with mechanical draft cooling towers.32 This assertion was premised on SACEs erroneous assumption that FPL had a duty to consider an alternative preferred by SACE, so long as SACE could demonstrate that such an alternative merely was reasonable.33 As explained below, this assumption is contrary to law 30 See, e.g., FPL Answer to SACE Petition at 19-24, 32, 38.

31 USEC, CLI-06-10, 63 NRC at 461.

32 SACE Petition at 29.

33 Id. (claiming that a cooling tower alternative must be considered if it is feasible and cost-effective).

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and contrary to extensive NRC precedent in license renewal proceedings. Nevertheless, the Board uncritically accepted SACEs erroneous legal standard and admitted Contention 2 as a contention of omission.34 Accordingly, the Boards decision to admit Contention 2 is founded on legal error and should be reversed.

In Robertson v. Methow Valley Citizens Council, the Supreme Court held that, pursuant to NEPA, an EIS must include a discussion of mitigation measures.35 The Council on Environmental Quality (CEQ) defines mitigation to include alternatives for reducing or eliminating adverse environmental impacts.36 Analogous NRC regulations require NEPA documents to discuss alternatives available for reducing or avoiding adverse environmental effects.37 Importantly, the Court in Methow Valley did not hold that NEPA documents must evaluate every imaginable mitigation measure. Rather, it explained that the mitigation discussion need only be reasonably complete.38 CEQ guidance further explains that, to be reasonably complete, the mitigation discussion must cover the range of impacts of the proposal.39 As the Commission recently explained, a contention of omission must do more than simply identify the information that is claimed to be missingit also must demonstrate why that information is required.40 Thus, as a threshold matter, in order to demonstrate that a 34 LBP-19-3 at 40.

35 490 U.S. 332 (1989).

36 40 C.F.R. § 1508.20(d).

37 10 C.F.R. §§ 51.45(c) (applicant ERs), 51.71(d) (Staff EISs).

38 Methow Valley, 490 U.S. at 333, 352.

39 Forty Most Asked Questions Concerning CEQs National Environmental Policy Act Regulations, 46 Fed.

Reg. 18,026, 18,031 (Mar. 23, 1981) (Forty Questions).

40 Tenn. Valley Auth. (Clinch River Nuclear Site Early Site Permit Application), CLI-18-5, 87 NRC 119, 122 (May 3, 2018) (citation omitted).

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cooling tower mitigation alternative is required to be included in an ER, a petitioner necessarily must demonstrate that the ER falls short of the Methow Valley standardi.e., that any existing discussion of mitigation measures is not reasonably complete, or does not cover the range of impacts of the proposal.41 Here, SACE did not even attempt to make this required demonstration. And the Board did not conclude otherwise. In fact, despite FPLs extensive briefing of this issue below,42 LBP-19-3 fails even to acknowledge or consider this relevant threshold legal consideration for contentions of omission.

Notably, the Board directed the parties to identify and address the applicable legal threshold criteria at oral argument and requested further briefing on this very issue following the argument.43 Thus, its failure to acknowledge or confront this issue in LBP-19-3 is particularly conspicuous. Instead, in deciding to admit the contention, the Board appears to rely heavily on the NRC Staffs discretionary decision (i.e., not as a matter of legal obligation,44 but as a general matter of public interest45) to include a cooling tower analysis in its SEIS. But the Board 41 See generally id.; Methow Valley, 490 U.S. at 333, 352; Forty Questions, 46 Fed. Reg. at 18,031.

42 See, e.g., Applicants Response to the NRC Staffs Clarification Regarding the Admissibility of Proposed Cooling Tower Contentions at 5-8 (Jan. 7, 2019) (ML19007A311) (FPL Response to Staff Clarification);

Hearing Transcript at 163, 203-07 (Dec. 4, 2018) (ML18340A077) (Tr.); Applicants Answer Opposing Request for Hearing and Petition to Intervene Submitted by Friends of the Earth, Natural Resources Defense Council, and Miami Waterkeeper at 8-26 (Aug. 27, 2018) (ML18239A445) (FPL Answer to Joint Petition); FPL Answer to SACE Petition at 45-51.

43 See ASLB Order (Providing Oral Argument Topics) at 2 (unpublished) (Nov. 14, 2018) (ML18318A332)

(second bullet, item 2).

44 See LBP-19-3 at 41 n.59 (noting Staffs position at oral argument that neither NEPA nor NRC regulations requires FPL or the NRC Staff to consider mechanical cooling towers).

45 See NRC Staffs Clarification of Its Views Regarding the Admissibility of Joint Petitioners Contention 1-E and SACE Contention 2 (Alternative Cooling Systems) at 1, 3 (Dec. 18, 2018) (ML18352B210) (Staff Clarification) (characterizing its decision to consider cooling towers in the SEIS as being for informational purposes as part of its broader secondary goal of inform[ing] the publicseparate and apart from its obligation under NEPA to consider every significant aspect of the environmental impact of a proposed action.). The NRC Staff maintained that this contention is admissible even though it agreed that FPL had no affirmative obligation to address cooling towers in its ER. This NRC Staff position ignores the clear standards in 10 C.F.R. § 2.309(f)(1) and Commission precedent that a contention must identify a failure of the application to comply with a legal requirement.

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articulates no legal basis for how Staffs noncompulsory decision somehow demonstrate[s] why that information is required.46 Nor is there one.

FPLs ER includes a thorough discussion of mitigation measures currently in place that covers the full range of impacts of the proposal. For example, it discusses the crocodile management plan, the nutrient management plan, and the salinity reduction efforts. The Board fails entirely to credit these mitigation measures, or to explain why they do not constitute a reasonable range of alternatives.

Significantly, SACE did not argue otherwise. It did not argue or demonstrate that the mitigation measures discussed in the ER somehow were deficient; and it did not argue or demonstrate that the ER failed to identify any impact. Instead, SACE argued that, because cooling towers (SACEs preferred approach) purportedly are capable of reducing certain impacts, FPL per se had a duty to consider them in the ER (i.e., regardless of whether the ER already satisfied its obligation to include a reasonably complete discussion of mitigation measures). But this position is contrary to controlling Supreme Court precedent in Methow Valley. Moreover, the Commission has explained that a failure to challenge information in the application that is directly relevant to the issue raised in a contention necessitates rejection of the claim47; and that merely demanding the adoption of a preferred approach is not enough to show a deficiency in, or a genuine dispute with, the application.48 46 Cf. Clinch River, CLI-18-5, 87 NRC at 122.

47 See, e.g., Palisades, CLI-15-23, 82 NRC at 326; Millstone, CLI-01-24, 54 NRC at 358; USEC, CLI-06-10, 63 NRC at 472.

48 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 323 (2012) (noting the Commission has long held that contentions admitted for litigation must point to a deficiency in the application, and not merely suggestions of other ways an analysis could have been done, or other details that could have been included.) (citing USEC, CLI-06-10, 63 NRC at 477).

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The Board (misconstruing 10 C.F.R. §§ 51.45(c)s general requirement to consider mitigation measures) concluded that SACEs contention was admissible, in part, as a contention of omission. However, the Boards uncritical acceptance of SACEs defective legal argument which ignores Supreme Court precedent explaining that the range of mitigation measures considered in environmental documents need only be reasonably completeintroduced legal error into LBP-19-3. For a contention of omission, a demonstration that the missing information is required is indispensable to a finding of materiality under 10 C.F.R. § 2.309(f)(1)(iv). In other words, if the ER already satisfies FPLs obligation to consider a reasonable range of alternatives, then the omission of some extra alternative simply is not material to any finding the Staff must make to grant the renewed license. But the Board disregarded this argument as well as the entirety of the supplemental briefing on this issue and, in a one-sentence analysis, concluded that the contention is admissible because applicants have a general obligation to address reasonable alternatives.49 In essence, SACEs and the Boards reasoning would interpret 10 C.F.R. §§ 51.45(c) as imposing a duty to consider every suggested alternative, so long as it merely is reasonable.

But such an expansive interpretation would be impractical. Moreover, it is contrary to settled NEPA law, which the Board neither acknowledged nor differentiated.

In addition, the Boards decision is contrary to decades of agency license renewal precedent. Out of 91 license renewal proceedings across the history of the agency, it has only evaluated the impacts of alternative cooling systems three times in its (published) SEISs.50 In all three cases, the cognizant CWA regulatory agencies each recommended evaluation of cooling 49 LBP-19-3 at 40.

50 Staff Clarification at 9 n.29.

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towers as a possible mitigation alternative related to CWA performance standards. But that is not the case hereand no one disputed that fact. Again, FPL raised this issue in the proceedings below,51 but LBP-19-3 failed to acknowledge or distinguish this significant and germane regulatory precedent.

Accordingly, the Boards decision to admit SACE Contention 2, in part (as a contention of omission), is tainted by an error of law and should be reversed.

Because the Board concluded that portions of Contentions 1-A and 2 were the only admissible contentions, and because those conclusions were both clearly erroneous, SACE failed to propose at least one admissible contention, contrary to 10 C.F.R. § 2.309(a). Accordingly, SACEs Petition should have been wholly denied. Thus, the Commission should reverse the Boards decision to grant SACEs Petition.

IV. THE COMMISSION SHOULD REVERSE THE BOARDS DECISION TO GRANT THE JOINT PETITION The Board admitted portions of Joint Petitioners Contentions 1-E and 5-E, and concluded that all other contentions and portions of contentions proffered by Joint Petitioners were inadmissible. However, the Boards decisions to admit Joint Petitioners Contentions 1-E and 5-E were clearly erroneous and should be reversed for the reasons stated below.

Accordingly, because Joint Petitioners failed to propose at least one admissible contention as required by 10 C.F.R. § 2.309(a), their Petition should have been wholly denied. Thus, the Commission should reverse the Boards decision to grant the Joint Petition.

51 See, e.g., FPL Response to Staff Clarification at 9-10; FPL Answer to Joint Petition at 21-22; Tr. at 122, 206-07, 216.

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A. The Boards Decision to Admit Part of Joint Petitioners Contention 1-E Is Clearly Erroneous and Should Be Reversed In Contention 1-E, Joint Petitioners asserted that the ER is deficient because it omitted consideration of the purportedly reasonable and feasible alternative of replacing the CCS with mechanical draft cooling towers to reduce the environmental impacts of the CCS.52 In LBP 3, the Board admitted part of this challenge as a reformulated contention identical to the portion of SACE Contention 2 that it admitted,53 and stated that it did so for essentially the same reasons and subject to the same limitations.54 Accordingly, the Boards decision to admit Joint Petitioners Contention 1-E, in part (as a contention of omission), is affected by the same error of law discussed in Section III.B, above,55 and should be reversed for the same reasons.

B. The Boards Decision to Admit Part of Joint Petitioners Contention 5-E Is Clearly Erroneous and Should Be Reversed As admitted by the Board, Joint Petitioners Contention 5-E asserts that [t]he ER is deficient in its failure to recognize Turkey Point as a source of ammonia in freshwater wetlands surrounding the site, and in its failure to analyze the potential impacts of ammonia releases during the renewal period on threatened and endangered species and their critical habitat.56 However, the Boards decision to admit the contention is affected by multiple errors, each of which provides an independent basis for reversal. Specifically, the Board: (1) admitted a contention that was not pled by Joint Petitioners or supported by their expert documentation; (2) 52 Joint Petition at 19-22.

53 LBP-19-3 at 43 n.62.

54 Id. at 44.

55 FPLs response in Section III.B is incorporated by reference here as if republished in full, substituting Joint Petitioners for all references to SACE.

56 LBP-19-3 at 52-53.

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admitted a contention that challenges a Category 1 issue; and (3) disregarded the ongoing state and local regulatory oversight of the issues involved, contrary to its treatment of related issues in the same contention.57 As explained below, any or all of these errors require reversal of the Boards decision.

1. The Boards Reformulated Contention Admitted an Argument Never Advanced by Joint Petitioners, and the Boards Determination That Joint Petitioners Provided Adequate Support Is Clearly Erroneous Because It Relies on a Misreading of the Mayorga Letter The Board found admissible Joint Petitioners claim that the ER is deficient for purportedly fail[ing] to recognize Turkey Point as a source of ammonia in freshwater wetlands surrounding the site.58 The Board explicitly credited Joint Petitioners reference to a letter from MDC (the Mayorga Letter) as providing the requisite support for this contention.59 As correctly summarized by the Board, the Mayorga Letter notes that ammonia has been observed in canals near Turkey Point.60 It provides no support, however, for the admitted contentions dubious assertion that ammonia has been detected in the wetlands near Turkey Point or that it is having an adverse impact on threatened or endangered species in the wetlands. LBP-19-3 cites no other support for this contention, nor do Joint Petitioners provide any. Ultimately, the Boards misreading of the contention itself and the Mayorga Letter resulted in an erroneous legal determination that Joint Petitioners supplied adequate support for the contention, as required by 10 C.F.R. § 2.309(f)(1)(v).

57 See NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Vol.

1, Main Report, Rev. 1 (June 2013) (ML13106A241) (GEIS).

58 LBP-19-3 at 51-53 (emphasis added).

59 Id. (citing Joint Petition at 62, in turn citing Attach. P, Letter from W. Mayorga, MDC, to M. Raffenberg, FPL (July 10, 2018)).

60 Id. at 51-52 (emphasis added).

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In essence, the Boards decision erroneously conflates the deep man-made canals adjacent to the site (where small pockets of ammonia exceedances have been observed in stagnant waters) and the broader natural wetlands near the site (where petitioners offered no support for the suggestion that ammonia is even present, much less that Turkey Point or the CCS is a source of such speculative ammonia). But canals and wetlands are not the same thing.61 And neither the Board nor Joint Petitioners argue otherwise. FPL flagged this issue for the Board in the pleadings below.62 LBP-19-3 does not consider or reject FPLs arguments regarding this fundamental disconnect; rather, it fails to address this issue at all. But based on a reading of the plain text of the Mayorga Letter, it is clear that the Boards determination that Joint Petitioners adequately supported their dubious assertion that Turkey Point is a source of ammonia in freshwater wetlands surrounding the site is clearly erroneous; and its misreading or uncritical acceptance of the proffered support amounts to clear error.

In fact, Joint Petitioners never even asserted the claim as admitted by LBP-19-3. In Contention 5-E, they argued that salinization affected both fresh surface water and wetlands but, with respect to ammonia, argued only about impacts to surface waters. In the sole substantive paragraph addressing ammonia, the concept of wetlands is not raised.63 To make this even more clear, Joint Petitioners conclude their contention with a summary statement of their alleged genuine dispute with the application:

Petitioners have cited authoritative government documents that establish that Applicants analysis does not comply with NRC 61 See, e.g., ER at 3-160 (Wetlands generally include swamps, marshes, bogs, and similar areas); ER Figure 3.6-1.

62 FPL Answer to Joint Petition at 59-60 (noting Joint Petitioners proffered a document discussing salinity in canals which says nothing about . . . wetlands, and highlighting Petitioners misreading of the document).

63 Joint Petition at 62-63.

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regulations. These analyses plainly evidence saltwater intrusion into historically fresh surface water canals and wetlands.

Furthermore, there is a genuine dispute as to the impact of ammonia on nearby surface waters.64 Moreover, neither the Board nor Joint Petitioners specify which particular species are susceptible to ammonia in wetlands or at what levels they may be affected.65 Accordingly, the Boards decision to admit Contention 5-E should be reversed because: (1) it was an abuse of discretion to reformulate the contention into an argument never advanced by Joint Petitioners, and (2) the Board misread the support proffered by Joint Petitioners, as the Mayorga Letter does not support the contention as reformulated, contrary to 10 C.F.R. § 2.309(f)(1)(v).

2. The Boards Decision to Admit Joint Petitioners Ammonia/Endangered Species Challenge Is Clearly Erroneous Because It Relies on a Misapplication of Controlling Law Regarding State and Local Regulatory Oversight or a Misreading of the MDC Consent Agreement Contention 5-E alleged the ER insufficiently analyzed impacts on threatened and endangered species purportedly resulting from two issues: (1) salinization, and (2) ammonia.

The Board noted that groundwater salinity is being addressed in the normal course of regulatory oversight by the Florida Department of Environmental Protection (FDEP); and that FDEPs and FPLs salinity mitigation efforts are entitled to a presumption of compliance and 64 Joint Petition at 64 (footnotes omitted). To the extent this Appeal raises new arguments regarding the impacts of ammonia on wetlands not raised below, it is because that issue was not raised by the Joint Petitioners and was instead independently raised by the NRC Staff. Compare Joint Petition at 62-64 with 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 at 54 (Aug. 27, 2018) (ML18239A458) (Staff Answer) (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). The only explanation for the Staffs position is that Staff confused or erroneously conflated the terms surface waters and wetlands despite the distinction made by Joint Petitioners themselves.

65 In a separate part of Contention 5E, which alleges salinization impacts to wetlands, the Joint Petitioners mention a list of species that are present in nearby wetlands, but do not address ammonia. Joint Petition at 60.

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effectiveness. Accordingly, the Board rejected Joint Petitioners challenge as to salinization.

But the presence of ammonia in the canals adjacent to Turkey Point also is being addressed in the normal course of oversight by Miami-Dade County (MDC).66 Thus, MDCs and FPLs mitigation efforts are entitled to the same presumption of compliance and effectiveness. Yet, without explanation, the Board treated Joint Petitioners ammonia-related arguments disparately and admitted this aspect of their challenge. The Boards failure to apply the law consistently across both issues either: (a) is arbitrary and constitutes error of law, or (b) rests on a clearly erroneous reading of the MDC Consent Agreement. In either case, the Boards decision to admit Contention 5-E should be reversed for this second independent reason.

As noted above, the Board properly rejected the portion of Contention 5-E, as proposed by Joint Petitioners, concerning the impacts of salinization on threatened and endangered species in the wetlands.67 The Board noted that this issuegroundwater salinitywas subject to regulatory oversight by FDEP, and that FPLs groundwater salinity mitigation efforts were governed by a Consent Order with which FPL is obligated to comply. Thus, the Board reasoned that, absent evidence to the contrary (which Joint Petitioners fail to provide), FPL is entitled to a presumption that FDEP will enforce, and FPL will comply with, the legally mandated measures in the Consent Order, and concluded that this aspect of the contention is inadmissible pursuant to 10 C.F.R. §§ 2.309(f)(1)(v) and (vi).68 FPL fully agrees with the Boards assessment of this aspect of the contention.

66 See generally Mayorga Letter (showing that the issue of ammonia in canals adjacent to Turkey Point is being handled per the MDC Consent Agreement).

67 LBP-19-3 at 53-54 (emphasis added).

68 Id. at 54.

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However, LBP-19-3 reaches the exact opposite conclusion, without explanation, regarding the portion of Contention 5-E alleging the ER inadequately considers the potential impacts of ammonia discharges on threatened and endangered species and important habitat.69 But the presence of ammonia also is subject to regulatory oversight; and MDCs and FPLs mitigation efforts regarding ammonia also are governed by a Consent Agreement with which FPL is obligated to comply. The Consent Agreement imposes legally-mandated measures related to ammonia in the canals near Turkey Point. Thus, FPL is entitled to the same presumption (absent evidence to the contrary, which Joint Petitioners fail to provide) that MDC, the cognizant regulatory agency for surface water ammonia, will enforce, and FPL will comply with, the legally mandated measures in the Consent Agreement. Accordingly, the Board should have rejected the portion of Contention 5-E concerning the impacts of ammonia on threatened and endangered species for the exact same reason it rejected Joint Petitioners salinization arguments.

The Board provides no basis for its failure to apply the law consistently across both aspects of the contention. FPL flagged this very issue for the Board in the pleadings below.70 Nevertheless, LBP-19-3 does not consider or reject FPLs arguments; rather, it fails to confront this issue at all. Instead, the Board simply adopts the analysis from Staffs Answer pleading.71 But Staffs Answer suffers from the same defects explained above, and likewise did not consider 69 Id. at 51-52.

70 FPL Answer to Joint Petition at 57 n.228 (noting the Mayorga Letter demonstrates that the issue of ammonia in canals adjacent to Turkey Point is being handled within the process set forth in the DERM CA, a process upon which FPL reasonably relies).

71 LBP-19-3 at 52 (For the reasons stated by the NRC Staff, we conclude that Contention 5-E satisfies the admissibility requirements in 10 C.F.R. § 2.309(f)(1)).

19

or reject FPLs arguments (because it was filed simultaneously with FPLs Answer pleadings).72 Whether the Board (and Staff) misread the Consent Agreement or was unaware of its applicability to ammonia (despite the discussion in FPLs pleadings), the Boards admission of Joint Petitioners challenge as to ammonia amounts to an implied determination that MDCs and FPLs ammonia mitigation efforts are not entitled to a presumption of compliance and effectiveness, which is contrary to settled law and clearly erroneous. Accordingly, the Boards decision to admit Contention 5-E should be reversed for this second independent reason.

3. The Boards Decision to Admit the Ammonia/Wetlands Challenge Never Advanced by Joint Petitioners Also Is Clearly Erroneous Because It Admits a Category 1 Issue for Litigation (Contrary to Law and the Boards Own Ruling Elsewhere in LBP-19-3), or Relies on a Misreading of the GEIS Contention 5-E also alleged the ER insufficiently analyzed impacts on freshwater wetlands and wildlife habitat purportedly resulting from salinization.73 The Board correctly noted that this aspect of the contention impermissibly challenged the Commissions generic determinations on various Category 1 issues, and thus rejected it as outside the scope of the proceeding. But the ammonia challenge identified by the Board in the reformulated contention (but never advanced by Joint Petitioners, as explained in Section IV.B.1 above) also impermissibly challenges a Category 1 issue regarding cooling system impacts on wetlands and other terrestrial wildlife habitat. Yet, without explanation, the Board admitted this challenge for litigation. The Boards failure to apply the law consistently across both issues either: (a) is arbitrary and constitutes error of law, or (b) rests on a clearly erroneous reading of 10 C.F.R. Part 72 See generally Staff Answer; FPL Answer to SACE Petition; FPL Answer to Joint Petition (all filed on August 27, 2018).

73 LBP-19-3 at 53.

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51 and the GEIS. In either case, the Boards decision to admit Contention 5-E should be reversed for this third independent reason.

The Board properly rejected the portion of Contention 5-E, as proposed by Joint Petitioners, asserting that the ER improperly fails to consider the impact of salinization on surface waters and freshwater wetlands caused by the CCS.74 The Board explained that the Commission already had generically considered and codified its generic determination of SMALL impacts related to this topic in various Category 1 issues, including: (a) altered salinity gradients in surface waters, (b) groundwater quality degradation at plants with cooling ponds in salt marshes, and (c) cooling system impacts on terrestrial resources in wetlands.75 Accordingly, the Board rejected Joint Petitioners salinization arguments as impermissible challenges to NRC regulations, and thus outside the scope of the proceeding.

However, LBP-19-3 reaches an inconsistent conclusion, without explanation, regarding the impacts of ammonia discharges from the CCS on freshwater wetlands and the critical habitat of certain unspecified species.76 But this issue, involving non-radiological contaminants allegedly migrating through groundwater to adjacent wetlands and wildlife habit, also has been codified as a Category 1 issue. More specifically, such arguments impermissibly challenge the Category 1 issue of Cooling system impacts on terrestrial resources (plants with once-through cooling systems or cooling ponds). In evaluating this issue, the GEIS explained that:

Groundwater quality can be degraded by contaminants present in cooling ponds and cooling canals. . . . In addition, biota could be exposed to contaminants at locations of groundwater discharge, such as wetlands or riparian areas.77 74 LBP-19-3 at 53 (citing Joint Petition at 59).

75 Id. (citing 10 C.F.R. Part 51, App. B, Table B-1).

76 Id. at 51-53.

77 GEIS at 4-68 (emphasis added).

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As relevant here, the Commission generically determined that:

No adverse effects to terrestrial plants or animals have been reported as a result of . . . reduced habitat quality. Due to the low concentrations of contaminants in cooling system effluents, uptake and accumulation of contaminants in the tissues of wildlife exposed to the contaminated water or aquatic food sources are not expected to be significant issues.78 Thus, because the concentration of ammonia in the Turkey Point CCS is well below regulatory thresholds (a fact that was not disputed in the proceedings below),79 this Category 1 issue is squarely applicable to ammonia-related arguments as to wetlands and wildlife habitat.

FPL highlighted this issue for the Board below.80 Nevertheless, LBP-19-3 does not consider or reject FPLs arguments; rather, it ignores these arguments altogether (along with the related text of Table B-1 and the GEIS). Furthermore, neither the Board nor Joint Petitioners conclude, claim, or demonstrate that the Turkey Point CCS contains something other than low concentrations of ammonia, or that any speciesplant or animal, threatened or endangered or otherwisecould be impacted by CCS ammonia concentrations orders of magnitude below regulatory limits.

Ultimately, the Boards decision to admit this aspect of Joint Petitioners challenge is equivalent to a determination that the Category 1 issue of Cooling system impacts on terrestrial resources (plants with once-through cooling systems or cooling ponds) may be challenged in this proceeding; but such a determination is contrary to law, conflicts with the Boards generic ruling that Category 1 issues are not subject to challenge in this proceeding,81 and is clearly 78 GEIS, Table B-1 (emphasis added).

79 Tr. at 211 (Mr. Lighty, explaining that ammonia concentrations in the CCS . . . are orders of magnitude below regulatory levels, which is entirely consistent with the GEIS . . . determination of small impacts

[for this Category 1 issue] based on assumed low concentrations). See also ER at 3-95.

80 FPL Answer to Joint Petition at 56-58.

81 See LBP-19-3 at 9-30.

22

erroneous. Accordingly, the Boards decision to admit Contention 5-E should be reversed for this third independent reason.

Because the Board concluded that portions of Contentions 1-E and 5-E were the only admissible contentions, and because those conclusions were both clearly erroneous, Joint Petitioners failed to propose at least one admissible contention, contrary to 10 C.F.R. § 2.309(a).

Accordingly, the Joint Petition should have been wholly denied. Thus, the Commission should reverse the Boards decision to grant Joint Petitioners Petition.

V. CONCLUSION For all of the reasons explained above, the Commission should: (1) reverse the Boards decision in LBP-19-3 to admit portions of SACE Contentions 1-A and 2, and portions of Joint Petitioners Contentions 1-E and 5-E; (2) deny both Petitions for failure to propose an admissible contention; and (3) direct the Board to terminate the proceeding.

23

Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d) Executed in Accord with 10 C.F.R. § 2.304(d)

Steven Hamrick, Esq. Paul M. Bessette, Esq.

Florida Power & Light Company Morgan, Lewis & Bockius LLP 801 Pennsylvania Ave., NW Suite 220 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Washington, D.C. 20004 Phone: (202) 349-3496 Phone: (202) 739-5796 Fax: (202) 347-7076 Fax: (202) 739-3001 E-mail: steven.hamrick@fpl.com E-mail: paul.bessette@morganlewis.com Signed (electronically) by Ryan K. Lighty Ryan K. Lighty, Esq.

Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Phone: (202) 739-5274 Fax: (202) 739-3001 E-mail: ryan.lighty@morganlewis.com Counsel for Florida Power & Light Company Dated in Washington, DC this 1st day of April 2019 24

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of ) Docket Nos. 50-250-SLR & 50-251-SLR

)

FLORIDA POWER & LIGHT COMPANY ) ASLBP No. 18-957-01-SLR-BD01

)

(Turkey Point Nuclear Generating Units 3 and 4) ) April 1, 2019

)

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, the foregoing Florida Power &

Light Companys Notice of Appeal of LBP-19-3 and Brief in Support of Florida Power &

Light Companys Appeal of LBP-19-3 were served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned proceeding.

Signed (electronically) by Ryan K. Lighty Ryan K. Lighty, Esq.

Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Phone: (202) 739-5274 Fax: (202) 739-3001 E-mail: ryan.lighty@morganlewis.com Counsel for Florida Power & Light Company DB1/ 102954372