ML19140A356
| ML19140A356 | |
| 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 54994 | |
| Download: ML19140A356 (9) | |
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 5-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 Petitioners Contention 5-E. Contention 5-E is a contention of omission challenging FPLs Environmental Report (ER) for its failure to recognize Turkey Point Nuclear Generating Units 3 and 4 (Turkey Point) as a source of ammonia, and to analyze the impacts of ammonia on endangered species and their habitat.3 However, the information allegedly omitted from FPLs ER is now included in the U.S. Nuclear Regulatory Commission (NRC) Staffs recently-issued Draft Supplemental Environmental Impact Statement 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in Part Intervenors Joint Motion for Partial Reconsideration of Initial Scheduling Order) at 3 (Apr. 2, 2019) (unpublished) (ML19092A386).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 Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 & 4), LBP-19-3, 89 NRC __, __ (Mar. 7, 2019) (slip op. at 63 n.82).
(DSEIS).4 Accordingly, because the allegedly-omitted information is presented in the DSEIS, Joint Petitioners Contention 5-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.5 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.6 On August 1, 2018, Joint Petitioners filed their Petition seeking to intervene in this SLR proceeding, proposing five contentions challenging various aspects of the ER included as part of the SLRA.7 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 5-E, as narrowed and admitted by the Board, asserts as follows:
The 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.8 4
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).
5 See Letter from M. Nazar, FPL, to NRC, Turkey Point Units 3 and 4 Subsequent License Renewal Application (Jan. 30, 2018) (ML18037A824).
6 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).
7 Request for Hearing and Petition to Intervene Submitted by Friends of the Earth, Natural Resources Defense Council, and Miami Waterkeeper (Aug. 1, 2018) (ML18213A418).
8 Turkey Point, LBP-19-3, 89 NRC at __ (slip op. at 63 n.82) (emphasis added).
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The Board did not explicitly refer to Contention 5-E as a contention of omission, but boards regularly view contentions alleging a failure to do something as contentions of omission.9 As explained further below, on April 3, 2019, the NRC Staff issued its DSEIS, which recognizes the view of the Miami-Dade County Division of Environmental Resource Management (DERM) that the CCS is a possible contributor of ammonia to the canals adjacent to Turkey Point, and analyzes the potential impacts of ammonia and other nutrients during the renewal period on threatened and endangered species and their critical habitat.
III. THE DSEIS MOOTS CONTENTION 5-E, WHICH MUST BE DISMISSED FROM THE PROCEEDING Per the NRCs contention-migration tenet,10 Contention 5-E, which originally challenged FPLs ER, is now a challenge to the NRC Staffs DSEIS. And Staffs DSEIS resolves the issues raised in Contention 5-E because it includes the information and analyses allegedly omitted from the ER. Thus, Contention 5-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.11 Contentions of 9
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) (Jan. 26, 2012)
(ML12026A438) (holding a contention alleging that an ER fails to analyze a particular alleged impact is properly viewed as a contention of omission).
10 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).
11 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)).
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omission rendered moot through this process are subject to dismissal.12 Moreover, the 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.13 So too here.
As to the first part of Contention 5-E, alleging the failure to recognize Turkey Point as a possible source of ammonia in groundwater and surface waters surrounding the site, the DSEIS now provides such information. In LBP-19-3, the Board admitted this aspect of Joint Petitioners challenge based on a July 10, 2018 letter from DERM (Mayorga Letter).14 That letter expressed DERMs conclusion that the CCS is a contributing source to the ammonia concentrations observed in areas which exceed the applicable standard.15 The ER predates the Mayorga Letter by several months; thus, it did not include a discussion of DERMs July 10, 2018 conclusion. However, DSEIS Section 3.5.1.4 now explicitly discusses the Mayorga Letter. The DSEIS notes that average ammonia concentrations within the CCS are an order of magnitude below applicable standards.16 Furthermore, it evaluates DERMs concern that the CCS is a contributing source to the ammonia concentrations, outside of the CCS, in certain offsite water bodies that have ammonia levels in 12 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).
13 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).
14 Turkey Point, LBP-19-3, 89 NRC at __ (slip op. at 51-52) (citing Letter from W. Mayorga, DERM, to M.
Raffenberg, FPL (July 10, 2018) (included as Attach. P to Joint Petitioners Petition).
15 Id. at 1-2.
16 DSEIS at 3-42.
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excess of Miami-Dade surface water standards.17 Thus, the DSEIS has mooted the alleged omission.18 As to the second part of Contention 5-E, alleging the omission of any analysis of the potential impacts of ammonia releases on endangered species and their habitat, the DSEIS now provides that analysis. The DSEIS describes the potential effects of elevated ammonia on aquatic organisms.19 It also provides specific analyses of the potential impacts of ammonia on species and habitats under National Marine Fisheries Service jurisdiction, including the endangered smalltooth sawfish and four species of threatened or endangered sea turtles.20 Furthermore, the NRC Staffs Biological Assessment (BA)21 (which is incorporated by reference into the DSEIS)22 analyzes the impacts of subsequent license renewal (including potential impacts from ammonia and other nutrients) on the remaining 15 threatened or 17 Id. at 3-52. The DSEIS also notes that DERM required FPL to submit a plan to address CCS nutrient impacts to groundwater and surface water resources beyond the boundaries of the CCS, and required FPL to implement the proposed plan to fill the barge basin and the Turtle Point remnant canal. DSEIS at 3-52.
18 The contention asserts that the ER fails to acknowledge the CCS as a source of ammonia in wetlands. As noted in its appeal, FPL continues to believe that wetlands are distinct from surface water and groundwater, and that Contention 5-E is inadmissible because Joint Petitioners presented no support for their assertion that ammonia is present in wetlands. See Brief in Support of Florida Power & Light Companys Appeal of LBP-19-3 at 15-17 (Apr. 1, 2019). However, LBP-19-3 concludes that Joint Petitioners presented adequate support for Contention 5-E based on the Mayorga Letter, which only points to ammonia in surface water and groundwater. See LBP-19-3 at 51-52. Accordingly, assuming the Board agrees with Staffs view that the Mayorga Letter is sufficiently broad as to encompass wetlands (NRC Staffs Brief in Response to Florida Power & Light Companys Appeal of LBP-19-3 at 11 (Apr. 26, 2019)), then the DSEIS discussion of the Mayorga Letter (and its conclusion regarding ammonia in surface water and groundwater) also is sufficiently broad to moot the contention.
19 DSEIS at 4-65 (Elevated ammonia levels are of concern in aquatic environments because when ammonia is present at high enough levels in the environment, aquatic organisms have difficulty completely excreting excess ammonia from their bodies. This can lead to toxic build-up, health and fitness effects, and potentially death.
Several water quality parameters, including pH, temperature, and salinity; the rate or duration of exposure; and a species specific physiobiology affect the extent to which an organism experiences toxicity from a given level of ammonia).
20 Id. at 4-62 to 4-67.
21 See generally Biological Assessment for the Turkey Point Nuclear Generating Unit Nos. 3 and 4 Proposed Subsequent License Renewal (Dec. 2018) (ML18353A835).
22 DSEIS at 4-60.
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endangered species and habitats under U.S. Fish and Wildlife Service jurisdiction.23 For example, Section 4.3.2 of the BA describes the recent CCS ecosystem shift from a seagrass-dominated system to an algal-dominated system, and the attendant increase in ammonia and other nutrients; and Section 6.1.2.3 considers possible impacts from Loss of Prey in the CCS caused by that shift (and associated increase in ammonia and nutrients) on threatened or endangered bird species that may occur near Turkey Point. Likewise, Section 5.1.2 describes Impacts to the American Crocodile and Designated Critical Habitat, including impacts from elevated nutrients. As noted in the DSEIS, [a]mmonia is a nutrient.24 Thus, the DSEIS provides an analysis of the potential impacts of ammonia releases during the renewal period on threatened and endangered species and their critical habitat.
Accordingly, the information and analyses alleged to be missing from the ER now are included in the DSEIS, and Contention 5-E is now moot and should be dismissed.
IV. CONCLUSION As demonstrated above, the alleged deficiency in the SLRA raised by Joint Petitioners Contention 5-E, as admitted by the Board in LBP-19-3, has been rendered moot by the Staffs DSEIS. Contention 5-E should be dismissed.
23 Id. See also generally BA.
24 DSEIS at 3-43.
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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 7
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 5-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/ 104035595