ML19161A361
| ML19161A361 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 06/10/2019 |
| From: | Ayres R, Cox K, Fettus G, Reiser C, Rumelt K Ayres Law Group, Environmental & Natural Resources Law Clinic, Friends of the Earth, Miami Waterkeeper, Natural Resources Defense Council |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-250-SLR, 50-251-SLR, ASLBP 18-957-01-SLR-BD01, RAS 55030 | |
| Download: ML19161A361 (9) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of )
)
FLORIDA POWER & LIGHT COMPANY ) Docket Nos. 50-250-SLR
) 50-241-SLR (Turkey Point Nuclear Generating Station, )
Unit Nos. 3 and 4) ) June 10, 2019
)
JOINT PETITIONERS ANSWER OPPOSING 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 Natural Resources Defense Council, Friends of the Earth, and Miami Waterkeeper (together, Joint Petitioners) hereby file this timely Answer Opposing Florida Power & Light Companys (Applicant) Motion to Dismiss Joint Petitioners Contention 5-E as Moot. The Board admitted Contention 5-E as a contention of omission.2 As the information omitted from Applicants Environmental Report (ER) continues to be omitted from the U.S. Nuclear Regulatory Commission (NRC) Staffs Draft Supplemental 1
Order (Granting in Part Intervenors Joint Motion for Partial Reconsideration of Initial Scheduling Order) (Apr.
2, 2019) (ML19092A386) (providing that the deadline for answer opposing a dispositive motion is 30 days after May 10, 2019) (hereinafter Order).
2 Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 & 4), LBP-19-3, 89 NRC __, __ (Mar. 7, 2019) (slip op. at 52, 53).
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Environmental Impact Statement (DSEIS),3 Joint Petitioners Contention 5-E is not moot, and the Board should not dismiss the Contention.
II. LEGAL STANDARD As the moving party, Applicant bears the burden of persuasion on whether an admitted contention has been rendered moot.4 A contention of omission becomes moot if a superseding environmental impact statement actually address[es] in some way all of the issues encompassed within the admitted contention.5 If, on the other hand, not all matters at issue in such a contention are addressed in information available in the DSEIS, then Intervenors retain a legal interest in having any unaddressed matter(s) appropriately resolved, and the contention is not moot.6 Mere [p]assing references to omitted information are not sufficient to cure a defective environmental report.7 To cure the error, the omitted information must be specifically considered or evaluated.8 To determine the scope of issues encompassed within the admitted contention, the Board first analyzes the language of the contention, and, if the scope is not clear on the face, the Board considers the statement of basis accompanying the contention.9 Here, the scope of the admitted contention encompasses the impact of ammonia from continued operation of Turkey Point Units 3 & 4 on six threatened endangered species and their habitat. The Board should reject 3
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).
4 Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 & 4), LBP-10-10, 71 NRC. 529, 541 (Jun. 25, 2010) 5 Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 & 4), LBP-11-4, 73 NRC 91, 127 (Feb. 24, 2011) (emphasis in original).
6 Id.
7 Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), LBP-01-23, 54 NRC 163, 171 (Aug. 1, 2001).
8 Comanche Peak, LBP-10-10, 71 NRC at 545.
7 Private Fuel Storage, LBP-01-23, 54 NRC at 171.
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Applicants Motion to Dismiss because the DSEIS never specifically considered or evaluated the impact of continued operation on these six species and their habitats. These matters remain unaddressed in the DSEIS.
III. ARGUMENT Contention 5-E is not moot because the DSEIS fails to analyze the impacts of ammonia from the continued operation of Turkey Point Units 3 & 4 on the threatened and endangered species encompassed in Contention 5-E and their critical habitat. The Board admitted Contention 5-E 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.10 The scope of the Contention encompasses the following threatened or endangered species and their habitat: the Florida panther, American crocodile, indigo snake, snail kite, red knot and wood stork.11 Because the DSEIS fails to address the potential impacts of ammonia releases on any of these species specifically, Contention 5-E is not moot.
Applicant tries to stitch together a specific analysis of ammonias impacts on the six threatened or endangered species from various, often unrelated, sections of the DSEIS. But as the NRCs Biological Assessment for the subsequent relicensing of Turkey Point Units 3 & 4 notes, a specific evaluation of ammonias impacts must consider [s]everal water quality parameters, including pH, temperature, and salinity; the rate and duration of exposure; and a species specific physiobiology. . . .12 While the DSEIS at least contemplates these issues for 10 Turkey Point, LBP-19-3, 89 NRC at __ (slip op. at 63 n.82) (emphasis added).
11 Request for Hearing and Petition to Intervene Submitted by [Joint Intervenors] at 60 (Aug. 1, 2018).
12 Biological Assessment for the Turkey Point Nuclear Generating Unit Nos. 3 and 4 Proposed Subsequent License Renewal, at 60 (Dec. 2018) (emphasis added) (hereinafter Biological Assessment).
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one endangered speciesthe West Indian manateeit fails to analyze these issues for the six species identified in Joint Petitioners contention.13 The section below discusses each of Applicants references and explains why they do not cure the admitted contention of omission.
- DSEIS at 4-65.14 This section of the DSEIS speaks generally to the effects of elevated ammonia on aquatic organisms. It does not specify which species are an aquatic organism, nor mention any of the six species encompassed in the Contention. Nor does it specifically address these species vulnerability to ammonia, whether directly or due to loss of prey or habitat, regarding any of the parameters noted in the Biological Assessment.
- DSEIS at 4-62 to 4-67.15 This section of the DSEIS addresses species and habitats under the jurisdiction of the National Marine Fisheries Service (NMFS). None of the six species addressed in Contention 5-E fall within NMFS jurisdiction; rather, each fall within the jurisdiction of the U.S. Fish and Wildlife Service (FWS).16
- DSEIS at 4-60.17 This section of the DSEIS refers to the Biological Assessment.
However, contrary to Applicants claim, this page makes no mention of ammonia or its impacts from ammonia on the six species and their habitats.
- DSEIS at 3-42.18 This section of the DSEIS discusses ammonia and water quality.
Despite this, there is still no mention of ammonias potential impact on the six species identified by Petitioners nor on their habitats.
- DSEIS at 3-43 to 3-44.19 This section of the DSEIS states that ammonia is a nutrient.
This section also describes ammonia as a nutrient in connection with algae blooms and water clarity and notes that effluent from power plants may be a source of ammonia, among others. These pages do not link algae or habitat to any particular species.
- DSEIS at 3-50.20 This section of the DSEIS discusses ammonia and other nutrients. It states that, if the concentration of nutrients in either Biscayne Bay or Card Sound get 13 See id. at 60-61. We make this statement without waiving the right to challenge the adequacy of the DSEIS analysis.
14 FPLs Motion to Dismiss Joint Petitioners Contention 1-E as Moot, at 5 (May 20, 2019) (hereinafter MTD).
15 Id.
16 See Endangered and Threatened Wildlife and Plants; Reclassification of the American Crocodile Distinct Population Segment in Florida From Endangered to Threatened, 72 Fed. Reg. 13,027 (Mar. 20, 2007) (FWS).
17 MTD at 5.
18 Id.
19 Id.
20 Id.
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too high, they can negatively impact the aquatic ecology. Again, there is no mentioned of potential impacts on any particular species.
- DSEIS at 3-52.21 This section of the DSEIS determined that the cooling canal system is a contributing source to the ammonia concentrations. However, it does not analyze or mention the ammonias effect on the species or their habitats.
- DSEIS at 3-67.22 This section of the DSEIS discusses the expanded groundwater monitoring program. This program is meant to deal with onsite and offsite impacts resulting from operation of the cooling canal system. The page refers to ammonia as one contributing factor for these impacts. However, it does not reference any particular species.
- NRCs Biological Assessment for the Turkey Point Nuclear Generating Unit Nos. 3 and 4 Proposed Subsequent License Renewal.23 Despite Applicants best efforts to imply otherwise, the Biological Assessment does not specifically address the ammonia impacts from the continued operation of Units 3 & 4 on the six listed species. Applicant does not point to any single section of the Biological Assessment to support its mootness argument. Instead, it attempts to piece together an analysis from a number of general statements that fail to make any connection between ammonia and the listed species or their habitat.
- Section 4.3.2 of the Biological Assessment. This section discusses water quality in the cooling canal system, specifically water quality (4.3.2.1) and aquatic resources (4.3.2.2). However, there is no mention of the impacts on threatened or endangered species.
- Section 6.1.2.3 of the Biological Assessment.24 This section describes Loss of Prey in the [cooling canal system]. While the section discusses an ecosystem shift, it only discusses the shift based on elevated temperature and salinity, not ammonia increases. Further, this section only discusses one listed species; even assuming that this analysis constituted analysis of potential ammonia impacts to this species and its habitatwhich it does notthat analysis still fails to cover the five other species within the scope of the admitted Contention.
- Section 5.1.2 of the Biological Assessment.25 This section is titled Impacts to the American Crocodile and Designated Critical Habitat. Despite the title, it does not address all of the relevant impacts. Notably, this section does not address impacts from ammonia on the American crocodile or its habitat. Indeed, the word ammonia does not appear at all in Section 5.1.2.
21 Id.
22 Id.
23 MTD at 5 n.21.
24 MTD at 6.
25 Id.
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- Section 6, Table 3 of the Biological Assessment.26 The section references 13 Federally Listed Threatened or Endangered Species That May Occur at or near the Action Area. This includes the red knot, the wood stork, the Everglade snail kite, and the Florida panther. While this section references these species, it is silent with respect to potential impacts from ammonia.
- Section 5.2.2 of the Biological Assessment.27 This section is titled Impacts to the Eastern Indigo Snake. Despite its title, it does not address all of the relevant impacts.
The Eastern indigo snakes main habitat is wetlands, yet this section does not address the impact of ammonia on the snake or its habitat.
- Section 6.1.1.1 of the Biological Assessment.28 This section is titled Rufa Red Knot. Yet again, this section fails to address the potential impact of ammonia on the red knot or its habitat.
- Section 6.1.1.4 of the Biological Assessment.29 This section is titled Everglade Snail Kite. Snail kites have been observed immediately adjacent to the Turkey Point action area within the Everglades Mitigation Bank. Its main source of food, apple snails, also occurs within the area. Despite this, Section 6.1.1.4 fails to address potential impacts from ammonia on the snail kite or its habitat.
- Section 6.1.2.2 of the Biological Assessment.30 This section is titled Impacts to Wetland Habitat. Here, the effects of wetland degradation on the wood stork population is discussed in regard to phosphorus and nitrogen as it affects water quality. Notably, it does not mention ammonia.
- Section 6.2.2.2 of the Biological Assessment.31 This section focuses on significant threats to the Florida Panther, yet the word ammonia does not appear once.
Applicant tries to address the continued omission of ammonia impacts on listed species by connecting unrelated and out-of-context statements about nutrients in the DSEIS and Biological Assessment.32 This does not cure the DSEISs omission, however. A statement that
[a]mmonia is a nutrient in the context of algae blooms33 does not turn statements about 26 Id.
27 Id.
28 Id.
29 Id.
30 Id.
31 Id.
32 Id.
33 DSEIS at 3-43 (Ammonia is a nutrient. Other nutrients include phosphorus, chlorophyll, and total nitrogen.
Within a surface water body, if the concentration of nutrients gets too high, the nutrients can cause algae blooms.
These algae blooms can be toxic, deplete oxygen in the water, and reduce water clarity.).
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nutrients elsewhere into a specific analysis of ammonia impacts on the six listed species or their habitats. One need only compare the NRCs analysis of ammonia impacts on another speciesthe West Indian manateeto grasp the error in Applicants argument. There, the NRC attempted to connect the dots by specifically addressing the impacts of ammonianot nutrients generallyon the manatee.34 IV. CONCLUSION The DSEIS has not rendered Joint Petitioners Contention 5-E (as admitted) moot. The DSEIS does not address the impacts of ammonia on the threatened or endangered species encompassed in the Contention from the continued operation of Turkey Point Units 3 & 4.
Therefore, Contention 5-E (as admitted) should not be dismissed.
34 See Biological Assessment at 60-62. Joint Petitioners do not waive any claim that the NRCs analysis of ammonia impacts on the West Indian Manatee are sufficient; only that there is some, however minimal, analysis of ammonia impacts on the manatee.
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Respectfully submitted,
/s/ Richard Ayres /s/ Geoffrey Fettus Richard E. Ayres Geoffrey Fettus Ayres Law Group /s/ Caroline Reiser 2923 Foxhall Road, N.W. Caroline Reiser Washington, D.C. 20016 Natural Resources Defense Council 202-722-6930 1152 15th Street, NW, Suite 300 ayresr@ayreslawgroup.com Washington, DC 20005 Counsel for Friends of the Earth 202-289-2371 gfettus@nrdc.org creiser@nrdc.org Counsel for Natural Resources Defense Council
/s/ Kelly Cox /s/ Ken Rumelt Kelly Cox Kenneth J. Rumelt Miami Waterkeeper Environmental & Natural Resources Law Clinic 2103 Coral Way 2nd Floor Vermont Law School Miami, FL 33145 164 Chelsea Street, PO Box 96 305-905-0856 South Royalton, VT 05068 kelly@miamiwaterkeeper.org 802-831-1031 Counsel for Miami Waterkeeper krumelt@vermontlaw.edu Counsel for Friends of the Earth June 10, 2019 8
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of )
)
FLORIDA POWER & LIGHT COMPANY ) Docket Nos. 50-250-SLR
) 50-241-SLR (Turkey Point Nuclear Generating Station, )
Unit Nos. 3 and 4) ) June 10, 2019
)
CERTIFICATE OF SERVICE I certify that on June 10, 2019, I posted copies of the foregoing JOINT PETITIONERS ANSWER OPPOSING FPLS MOTION TO DISMISS JOINT PETITIONERS CONTENTION 5-E AS MOOT on NRCs Electronic Information Exchange System.
/signed electronically by/
Kenneth Rumelt