ML19140A355
| ML19140A355 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 05/20/2019 |
| From: | Bessette P, Hamrick S, Lighty R Florida Power & Light Co, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-250-SLR, 50-251-SLR, ASLBP 18-957-01-SLR-BD01, RAS 54993 | |
| Download: ML19140A355 (7) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of )
) Docket Nos. 50-250-SLR and 50-251-SLR FLORIDA POWER & LIGHT COMPANY )
) May 20, 2019 (Turkey Point Nuclear Generating Units 3 and 4) )
)
FPLS MOTION TO DISMISS JOINT PETITIONERS CONTENTION 1-E AS MOOT I. INTRODUCTION Pursuant to 10 C.F.R. § 2.323 and the Atomic Safety and Licensing Boards (Board)
Revised Scheduling Order,1 Florida Power & Light Company (FPL) hereby files this timely2 Motion to Dismiss Joint Petitioners3 Contention 1-E. The Board previously admitted Contention 1-E as a contention of omission,4 challenging FPLs Environmental Report (ER) for failing to consider mechanical draft cooling towers as a reasonable alternative to the CCS
[FPLs Cooling Canal System].5 However, the information allegedly omitted from FPLs ER is now included in the U.S. Nuclear Regulatory Commission (NRC) Staffs recently-issued Draft 1
ASLB Order (Granting in Part Intervenors Joint Motion for Partial Reconsideration of Initial Scheduling Order) at 3 (Apr. 2, 2019) (unpublished) (ML19092A386).
2 See id. (providing that initial disclosures were due May 10, 2019, and that the deadline for dispositive motions based on the DSEIS is ten days thereafter, i.e., May 20, 2019).
3 Natural Resources Defense Council, Friends of the Earth, and Miami Waterkeeper are collectively Joint Petitioners.
4 Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 & 4), LBP-19-3, 89 NRC __, __ (Mar. 7, 2019) (slip op. at 40) (concluding that Contention 2, proffered by Southern Alliance for Clean Energy, is an admissible contention of omission); id. at __ (slip op. at 44) (admitting Joint Petitioners Contention 1-E for the same reasons and subject to the same limitations).
5 Id. at __ (slip op. at 44).
Supplemental Environmental Impact Statement (DSEIS).6 Accordingly, because the allegedly-omitted information is presented in the DSEIS, Joint Petitioners Contention 1-E is moot and must be dismissed.
II. PROCEDURAL BACKGROUND In January 2018, FPL submitted a Subsequent License Renewal Application (SLRA) to the NRC seeking to renew the operating licenses for Turkey Point Nuclear Generating Units 3 and 4 for an additional twenty-year period.7 On May 2, 2018, the NRC published a notice in the Federal Register docketing the Turkey Point SLRA and providing an opportunity for interested persons to request a hearing.8 On August 1, 2018, Joint Petitioners filed their Petition seeking to intervene in this SLR proceeding, requesting a hearing and proposing five contentions, all challenging various aspects of the Environmental Report included as part of the SLRA.9 In LBP-19-3, the Board found that the Joint Petitioners had standing to participate in this proceeding and admitted for litigation portions of two of their proposed contentions: 1-E and 5-E. The Board rejected the remaining contentions tendered in the Petition. Contention 1-E, as narrowed and admitted by the Board, asserts as follows:
In light of the adverse impact of continued CCS operations on the threatened American crocodile and its critical seagrass habitat, the ER is deficient for failing to consider mechanical draft cooling 6
See generally NUREG-1437, Supp. 5, Second Renewal, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 5, Second Renewal, Regarding Subsequent License Renewal for Turkey Point Nuclear Generating Unit Nos. 3 and 4, Draft Report for Comment (Mar. 2019) (ML19078A330).
7 See Letter from M. Nazar, FPL, to NRC, Turkey Point Units 3 and 4 Subsequent License Renewal Application (Jan. 30, 2018) (ML18037A824).
8 See Florida Power & Light Company; Turkey Point Nuclear Generating, Unit Nos. 3 and 4; License Renewal Application; Opportunity to Request a Hearing and to Petition for Leave to Intervene, 83 Fed. Reg. 19,304 (May 2, 2018).
9 Request for Hearing and Petition to Intervene Submitted by Friends of the Earth, Natural Resources Defense Council, and Miami Waterkeeper (Aug. 1, 2018) (ML18213A418).
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towers as a reasonable alternative to the CCS in connection with the license renewal of Turkey Point Units 3 and 4.10 On April 3, 2019, the NRC Staff issued its DSEIS, which evaluates the environmental impacts of the subsequent license renewal as well as alternatives to subsequent license renewal, and evaluates an alternative cooling water system to mitigate the potential impacts associated with the continued use of the existing cooling canal system.11 III. THE DSEIS MOOTS CONTENTION 1-E, WHICH MUST BE DISMISSED FROM THE PROCEEDING Per the NRCs contention-migration tenet,12 Contention 1-E, which originally challenged FPLs ER, is now a challenge to the NRC Staffs DSEIS. And Staffs DSEIS resolves the issue raised in Contention 1-E because it does consider mechanical draft cooling towers as an alternative to the CCS in connection with the license renewal of Turkey Point Units 3 and 4.13 Thus, Contention 1-E is moot and must be dismissed.
As the Commission has explained, where a contention alleges the omission of particular information or an issue from an application, and the information is later . . . considered by the NRC Staff in an environmental impact statement, the contention is moot.14 Contentions of omission rendered moot through this process are subject to dismissal.15 Moreover, the 10 Turkey Point, LBP-19-3, 89 NRC at __ (slip op. at 63 n.82) (emphasis added).
11 DSEIS at iii.
12 Crow Butte Res., Inc. (In Situ Leach Facility, Crawford, Neb.), CLI-15-17, 82 NRC 33, 42 n.58 (2015); see also Turkey Point, LBP-19-3, 89 NRC at __ (slip op. at 24 & n.44) (acknowledging this tenet).
13 See, e.g., DSEIS at 2-12, 2-13, 2-22, 2-23, 4-11, 4-18, 4-19, 4-21, 4-41, 4-42, 4-48, 4-59, 4-60, 4-76, 4-82, 4-83, 4-88, 4-94, 4-95, 4-97, 5-1.
14 See, e.g., USEC, Inc. (American Centrifuge Plant), CLI-06-9, 63 NRC 433, 444 (2006) (quoting Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-02-28, 56 NRC 373, 383 (2002)).
15 See, e.g., Fla. Power & Light Co. (Turkey Point Units 6 & 7), ASLB Memorandum and Order (Granting FPLs Motion to Dismiss Joint Intervenors Contention 2.1 and CASEs Contention 6 as Moot) at 5 (Jan. 26, 2012)
(ML12026A438) (unpublished).
3
possibility of a late-filed contention seeking to shift the dispute to the adequacy of information offered to cure an omission does not alleviate the mootness of the original contention; it still must be dismissed.16 That is precisely the case here. Contention 1-E alleges the omission of particular informationanalysis of a cooling tower alternativefrom the ER. But that information has now been considered by the NRC Staff in the DSEIS. More specifically, DSEIS Section 2.2.3 describes a mechanical draft cooling water system alternative, which the NRC staff evaluated as an alternative to Turkey Points use of the existing cooling canal system (CCS) to provide cooling water for Turkey Point Units 3 and 4.17 Table 2-2 of the DSEIS provides a summary of environmental impacts of the cooling tower alternative for each resource or impact area.18 Additionally, these impacts are further evaluated in various subsections of Chapter 4, each of which analyzes the relevant resources and impact areas in greater detail.19 Unquestionably, the information alleged to be missing from the ER is included in the DSEIS. Thus, Contention 1-E is now moot and should be dismissed.
IV. CONCLUSION As demonstrated above, the alleged deficiency in the SLRA raised by Joint Petitioners Contention 1-E, as admitted by the Board in LBP-19-3, has been rendered moot by the Staffs DSEIS. Accordingly, Contention 1-E should be dismissed.
16 See, e.g., Va. Elec. & Power Co. (North Anna Power Station, Unit 3) Order (Dismissing Contention 1 as Moot)
(slip op. at 3-4) (Aug. 19, 2009) (ML092310462).
17 DSEIS at 2-3; see also id. at 2-12 to 2-13.
18 Id. at 2-22 to 2-23.
19 See, e.g., DSEIS at 4-11, 4-18, 4-19, 4-21, 4-41, 4-42, 4-48, 4-59, 4-60, 4-76, 4-82, 4-83, 4-88, 4-94, 4-95, 4-97.
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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., N.W. Suite 220 1111 Pennsylvania Ave, N.W.
Washington, D.C. 20004 Washington, D.C. 20004 Phone: 202-349-3496 Phone: 202-739-5796 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 Ave, N.W.
Washington, D.C. 20004 Phone: 202-739-5274 E-mail: ryan.lighty@morganlewis.com Counsel for Florida Power & Light Company Dated in Washington, D.C.
this 20th day of May 2019 5
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of )
) Docket Nos. 50-250-SLR and 50-251-SLR FLORIDA POWER & LIGHT COMPANY )
) May 20, 2019 (Turkey Point Nuclear Generating Units 3 and 4) )
)
MOTION CERTIFICATION Pursuant to 10 C.F.R. § 2.323(b), counsel for FPL certifies that a sincere effort was made to contact the other parties in this proceeding, to explain to them the factual and legal issues raised in this Motion, and to resolve those issues, and certifies that such efforts have been unsuccessful. Joint Petitioners oppose the Motion. The NRC Staff takes no position on the Motion.
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 NextEra Energy Seabrook, LLC
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of )
) Docket Nos. 50-250-SLR and 50-251-SLR FLORIDA POWER & LIGHT COMPANY )
) May 20, 2019 (Turkey Point Nuclear Generating Units 3 and 4) )
)
CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, a copy of the foregoing FPLS MOTION TO DISMISS JOINT PETITIONERS CONTENTION 1-E AS MOOT was filed on the Electronic Information Exchange (the NRCs E-Filing System) in the above-captioned proceeding. A copy of the foregoing also was sent by electronic mail to Richard E. Ayres, Esq.
at ayresr@ayreslawgroup.com.
Signed (electronically) by Ryan K. Lighty Ryan K. Lighty, Esq.
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Ave, N.W.
Washington, D.C. 20004 Phone: 202-739-5274 E-mail: ryan.lighty@morganlewis.com Counsel for Florida Power & Light Company DB1/ 103747776