ML19175A307
ML19175A307 | |
Person / Time | |
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Site: | Turkey Point ![]() |
Issue date: | 06/24/2019 |
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, Vermont Law School |
To: | Atomic Safety and Licensing Board Panel |
SECY RAS | |
Shared Package | |
ML19175A306 | List: |
References | |
50-250-SLR, 50-251-SLR, ASLBP 18-957-01-SLR-BD01, RAS 55051 | |
Download: ML19175A307 (54) | |
Text
1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
FLORIDA POWER & LIGHT COMPANY (Turkey Point Nuclear Generating Station, Unit Nos. 3 and 4)
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Docket No. 50-250-SLR Docket No. 50-251-SLR June 24, 2019 NATURAL RESOURCES DEFENSE COUNCILS, FRIENDS OF THE EARTHS, AND MIAMI WATERKEEPERS MOTION TO MIGRATE CONTENTIONS & ADMIT NEW CONTENTIONS IN RESPONSE TO NRC STAFFS SUPPLEMENTAL DRAFT ENVIRONMENTAL IMPACT STATEMENT I.
INTRODUCTION Pursuant to 10 C.F.R. § 2.309(c) and the Atomic Safety and Licensing Boards (Board)
Revised Scheduling Order,1 Natural Resources Defense Council, Friends of the Earth, and Miami Waterkeeper (together Intervenors) hereby move for the migration and admission of amended and new contentions regarding the Draft Supplemental Environmental Impact Statement2 (DSEIS) for Florida Power and Light Companys (Applicant) proposed subsequent license renewal issued by the Nuclear Regulatory Commission (NRC or Commission) Staff in March 2019.
Intervenors respectfully submit the migration or amendment of previously admitted 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 Scheduling Order).
2 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) (hereinafter DSEIS).
2 contentions (Contentions 1-E and 5-E) and respectfully request admission of four new contentions (Contentions 6-E, 7-E, 8-E, and 9-E). The migrated or amended contentions simply assert that the DSEIS fails either to address or to address adequately previously-identified omissions contained in the Applicants Environmental Report.
The new contentions concern the NRC Staffs analysis of new and significant information for one existing Category 1 issue3 - groundwater quality degradation (plants with cooling ponds in salt marshes), and one new issue - water quality impacts on adjacent water bodies (plants with cooling ponds in salt marshes).4 Intervenors also move to admit new contentions based on information that was previously unavailable and which remain unaddressed in the DSEIS.5 This new information demonstrates that several conclusions about environmental impacts in the DSEIS are unsupported by the evidence; particularly those conclusions that rely on Applicants compliance with the 2015 Consent Agreement between Applicant and Miami-Dade County6 and the 2016 Consent Order between Applicant and the Florida Department of Environmental Protection (FDEP)7 that govern freshening in the cooling canal system and 3 Generally, Category 1 issues are beyond the scope of a license renewal hearing, unless a waiver is granted.
Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 15 (July 19, 2001); 10 C.F.R. § 2.335(b). Intervenors do not believe a waiver is necessary here, but submit a waiver for the new contentions out of an abundance of caution. NRDCs, FOEs, and Miami Waterkeepers Petition for Waiver of 10 C.F.R. §§ 51.53(C)(3) and 51.71(D) and 10 C.F.R. Part 51, Subpart A, Appendix B.
4 DSEIS at 4-2.
5 10 C.F.R. § 2.309(c)(1).
6 Miami-Dade County, Consent Agreement Concerning Water Quality Impacts Associated with the Cooling Canal System at Turkey Point Power Plant (Oct. 6, 2015) (ML16335A219) (referenced in DSEIS as MDC 2015a).
7 Florida Department of Environmental Protection, Consent Order, OGC File 13 Number 16-0241, between the State of Florida Department of Environmental Protection and 14 Florida Power & Light Company regarding settlement of Matters at Issue [Westward Migration of 15 Hypersaline Water from the Turkey Point Facility and Potential Releases to Deep Channels on 16 the Eastern and Southern Side of the Facility] (June 20, 2016)
(ML16216A12) (referenced in DSEIS as FDEP 2016e).
3 remediation of Applicants hypersaline plume.8 II.
BACKGROUND A. Procedural Background On August 1, 2018 and pursuant to 10 C.F.R. § 2.309 and the NRCs Federal Register notice published at 83 Fed. Reg. 19,304 (May 2, 2018), Intervenors submitted a Request for Hearing and Petition to Intervene9 in the above-captioned matter. To safeguard our and our members environmental, aesthetic, health-based and economic interests, Intervenors articulated five contentions in the Petition. These contentions addressed various deficiencies in Applicants Environmental Report,10 submitted as part of the subsequent renewal license application for Turkey Point Nuclear Generating Station, Units 3 and 4, in Miami-Dade County, Florida.
Following full briefing and a hearing on the admissibility of each contention, the Board on March 7, 2019 issued Memorandum and Order LBP-19-3 granting Intervenors hearing request.11 In that Order, the Board also found that Intervenors had established standing and admitted in part two of the five contentions. On March 19, 2019, Intervenors, Applicant, and the 8 See, e.g., DSEIS at 4-23 ([U]pon consideration of the FDEPs and DERMs existing requirements and their continuing oversight of FPLs site remediation efforts, the NRC staff concludes that the impacts on adjacent surface water bodies via the groundwater pathway from the [cooling canal system] during the subsequent license renewal term would be SMALL and, therefore, the new information that has been identified is not significant.); DSEIS at 4-27 ([T]he NRC staff concludes that as a result of FPLs operation of its recovery well system and continued regulatory oversight and enforcement of the terms of the consent order and consent agreement by the FDEP and DERM, the impacts on groundwater quality from operations during the subsequent license renewal term would be SMALL.). DSEIS at 4-117 (The NRC Staff expects that continued operation of the freshening system, combined with proper operation and maintenance of the [cooling canal system], will result in no substantial contribution to cumulative impacts on groundwater quality or associated impacts on surface water quality in Biscayne Bay during the subsequent license renewal period.).
9 Request for Hearing and Petition to Intervene Submitted by Friends of the Earth, Natural Resources Defense Council, and Miami Waterkeeper (Aug. 1, 2018) (ML18212A418) (Petition).
10 Turkey Point Nuclear Plant, Units 3 and 4, Appendix E, Applicants Environmental Report Subsequent Operating License Renewal Stage (Jan. 2018) (ML1813A145) (hereinafter Environmental Report).
11 Fla. Power & Light Co. (Turkey Point Nuclear Generating Station Units 3 & 4), LBP-19-3, 89 N.R.C. __ (slip op.) (Mar. 7, 2019) (Order).
4 NRC Staff filed a joint motion regarding the hearing schedule, mandatory disclosures, and hearing file obligations in this proceeding.12 The Board issued an Initial Scheduling Order that provided Intervenors the opportunity to review initial disclosures provided by the parties and then rely on them to file new and amended contentions.13 Thereafter, at Intervenors request the Board made modest changes to the Initial Scheduling Order that continued to allow Intervenors to rely on initial disclosures in the new and amended contentions, but also allowed Intervenors to rely on the same in opposing any dispositive motions.14 On April 1, 2019, Applicant filed an appeal of the Order,15 and on April 26, 2019, Intervenors opposed the appeal.16 The NRC Staff agreed with Intervenors that the Board had correctly admitted the contentions.17 This appeal is pending before the Commission. In March 2019, NRC Staff issued the DSEIS. Based on the DSEIS, on May 20, 2019, Applicant filed two motions to dismiss Intervenors contentions as moot.18 On June 10, 2019, Intervenors opposed these motions,19 and the NRC Staff supported them.20 These motions are currently pending 12 Joint Motion Regarding Hearing Schedule, Mandatory Disclosures, and Hearing File Obligations (Mar. 19, 2019).
13 Initial Scheduling Order at 3 (establishing the deadline to file new and amended contentions as 45 days following the later of the issuance of the DSEIS or the Initial Disclosures) (Mar. 21, 2019).
14 Order (Granting in Part Intervenors Joint Motion for Partial Reconsideration of Initial Scheduling Order) (Apr. 2, 2019).
15 Florida Power & Light Companys Appeal of LBP-19-3 (Apr. 1, 2019) (ML19091A302) (Appeal). FPL did not challenge Petitioners standing before the Commission.
16 Opposition of Natural Resources Defense Council, Friends of the Earth, and Miami Waterkeeper to Florid Power
& Light Companys Appeal of the Atomic Safety and Licensing Boards Ruling in LBP-19-3 (Apr. 26, 2019)
(ML19116A229).
17 NRC Staffs Brief in Response to Florida Power & Light Companys Appeal of LBO-19-3 (Apr. 26, 2019)
(ML19116A272).
18 FPLs Motion to Dismiss Joint Petitioners Contention 1-E as Moot (May 20, 2019) (ML19140A355); FPLs Motion to Dismiss Joint Petitioners Contention 5-E as Moot (May 20, 2019) (ML19140A356).
19 Joint Petitioners Answer Opposing FPLs Motion to Dismiss Joint Petitioners Contention 1-E as Moot (June 10, 2019); Joint Petitioners Answer Opposing FPLs Motion to Dismiss Joint Petitioners Contention 5-E as Moot (June 10, 2019).
20 NRC Staffs Answer to FPLs Motions to Dismiss (June 10, 2019).
5 before the Board.21 Intervenors timely filed comments on the DSEIS on May 20, 201922 and today timely file amended and new contentions based on the DSEIS.
B. Legal Standards A license renewal application review typically implicates issues that fall into one of two broad areas: safety/aging management issues, and public health/environmental impacts.
Petitioners contentions are focused on environmental and public health impacts. The scope of the environmental review is defined by 10 C.F.R. Part 51, the NRCs Generic Environmental Impact Statement for License Renewal of Nuclear Plants, NUREG-1437 (May 1996) (the GEIS), and the initial hearing notice and order.23 Some environmental issues that might otherwise be germane in a license renewal proceeding have been resolved generically for all plants and are normally, therefore, beyond the scope of a license renewal hearing.24 These Category 1 issues are classified in 10 C.F.R. Part 51, Subpart A, Appendix B. Category 1 issues may be raised when a petitioner (1) demonstrates that there is new and significant information subsequent to the preparation of the GEIS regarding the environmental impacts of license renewal; (2) files a petition for a rulemaking with the NRC; or (3) seeks a waiver pursuant to 10 C.F.R. § 2.335.25 21 If the Board finds that a contention is not moot, that contention should migrate. On the other hand, if the Board finds a contention is moot, then the contention should be amended.
22 NRDC, FOE, and Miami Waterkeeper Comments on Draft Supplemental Environmental Impact Statement for Turkey Point Nuclear Generating Units Nos. 3 and 4 (May 20, 2019).
23 See, e.g., Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee Nuclear Power Station), LBP-06-20, 64 NRC 131, 148-49 (2006).
24 Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 15 (July 19, 2001); see 10 C.F.R. § 51.53(c)(3)(i).
25 Turkey Point, 54 NRC at 10-12; see also 10 C.F.R. § 51.53(c)(3)(iv) (new and significant information).
6 NRC regulations dictate that contentions arising pursuant to NEPA must initially be based on the applicants environmental report.26 Once the NRC Staff has published its DSEIS, the Commission has explained that contentions originally challenging an environmental report automatically migrate to challenge the NRC Staffs DSEIS.27 This so-called migration tenet obviates the requirement to file the same contention (and litigate its admissibility) three times once against the [Environmental Report], once against the DEIS, and once against the final environmental impact statement.28 However, a contention may only migrate if the information in the subsequent DSEIS is sufficiently similar to the information in the [Environmental Report].29 If the information in the DSEIS is not sufficiently similar to what the contention challenged in the Environmental Report, an intervenor must file a motion to amend the admitted contention and/or to admit a new contention.30 For example, a contention challenging an omission in the environmental report may not migrate to challenge the adequacy of new information or analysis provided in the DSEIS; the contention would need to be amended.31 New and amended contentions are admissible as long as the intervenor demonstrates good cause by showing that the contention is supported by new information that (1) was not previously available; (2) is materially different from information that was previously available, and (3) is 26 10 C.F.R. § 2.309(f)(2).
27 See Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), LBP-01-23, 54 NRC 163, 172 n.3 (2001); see also La. Energy Servs., LP (Claiborne Enrichment Center), CLI-98-3, 47 NRC 77, 84 (1998).
28 Progress Energy Fla., Inc. (Levy County Nuclear Power Plant, Units 1 and 2), LBP-11-01, 73 NRC 19, 26 (2011).
29 Id.
30 Id.
31 Private Fuel Storage, LLC, LBP-01-23, 54 NRC at 172 n.3.
7 timely filed.32 In addition, an amended or new contention must also satisfy the general contention admissibility requirements of 10 C.F.R. § 2.309(f)(1), including providing: (i) a specific statement of the issue of law or fact to be raised or controverted, (ii) a brief explanation of the basis for the contention, (iii) a demonstration that the issue raised in the contention is within the scope of the proceeding, (iv) a demonstration that the issue raised in the contention is material to the findings the NRC must make,33 (v) a concise statement of the alleged facts or expert opinions which support the [intervenors] position on the issue, and (vi) sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact.
III.
AMENDED OR MIGRATED CONTENTIONS In its April 2, 2019 Scheduling Order, the Board ruled that new or amended contentions based on the DSEIS will be considered timely if filed on or before June 24, 2019.34 Here, we timely update our two existing, admitted contentions to apply to the NRC Staffs DSEIS. While recognizing NRC regulations do not explicitly require Intervenors to migrate our already-admitted contentions by motion, we nevertheless refile these contentions now out of an abundance of caution, in order to preclude any subsequent assertion by the NRC Staff, the Applicant, or a reviewing tribunal that Intervenors have not pursued their rights as secured by the U.S. Constitution, the National Environmental Policy Act (NEPA), 42 U.S.C. § 4323 et seq.,
or regulations promulgated by the Council on Environmental Quality or the NRC. Thus, we 32 10 C.F.R. § 2.309(f)(2) and 2.309(c)(1).
33 A material issue is one that would make a difference in the outcome of the proceeding. Rules for Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,172 (Aug.
11, 1989). Entergy Nuclear Vermont Yankee, LLC & Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-4-28, 60 NRC 548, 557 (Nov. 22, 2004).
34 Scheduling Order at 3 (the revised scheduling order set the deadline for new or amended contentions based on the DSEIS at 45 days after initial disclosures due on May 10, 2019).
8 submit that all our objections that applied to the Applicants Environmental Report now apply to the DSEIS. Further, boards have previously explained that if there is any question about whether an admitted contention merits a new/amended contention motion relative to the Staffs environmental document, the best approach seemingly would be to make a filing that treats the contention as if it were new/amended or, perhaps most prudently, argues in the alternative.35 Below, we therefore argue in the alternative to either migrate Contentions 1-E and 5-E or amend the contentions.
A. Contention 1-E In its March 7, 2019 Order, the Board admitted Intervenors Contention 1-E as a contention of omission as follows:
In light of the adverse impact of continued cooling canal system operations on the threatened American crocodile and its critical seagrass habitat, the [Environmental Report] is deficient for failing to consider mechanical draft cooling towers as a reasonable alternative to the [cooling canal system] in connection with the license renewal of Turkey Point Units 3 and 4.36 Intervenors move to amend this Contention based on new and materially different information in the DSEIS. However, if the Board finds that the Contention is not admissible as amended, Intervenors alternatively move to migrate Contention 1-E as originally admitted.
AMENDMENDED CONTENTION 1-Eb: The DSEIS fails to analyze adequately mechanical draft cooling towers as a reasonable alternative that could mitigate adverse impacts of the cooling canal system in connection with the license renewal of Turkey Point Units 3 and 4.
The Board should amend and admit Contention 1-E as Contention 1-Eb because good cause exists to amend the contention and Contention 1-Eb meets the admissibility requirements 35 Strata Energy, Inc. (Ross In Situ Recovery Uranium Project), LBP-13-10, 78 NRC 117 (July 26, 2013).
36 Order at 44.
9 in 10 C.F.R. § 2.309(f).
First, good causedefined as timely and based on previously unavailable and materially different information37exists to amend Contention 1-E as Contention 1-Eb. Per the Boards Scheduling Order, this motion to amend is timely.38 The DSEIS also includes new information that was previously unavailable in the Environmental Report; whereas the Environmental Report omitted cooling towers as an alternative to the cooling canal system, the DSEIS now includes a shallow, inadequate evaluation of cooling towers as a cooling water system alternative.39 It is this inadequate evaluation that the amended Contention 1-Eb now challenges. Because the basic form of a contention cannot change through migrationi.e. challeng[ing] the soundness of the information provided [rather than] claim[ing] that necessary information has been omitted Intervenors respectfully move to amend Contention 1-E from claiming an omission in the Environmental Report to challenging the adequacy of analysis newly included in the DSEIS.40 Thus, there is good cause to amend Contention 1-E.
And, second, as we explain below, Contention 1-Eb meets the requirements in 10 C.F.R.
§ 2.309(f)(1) regarding contention admissibility. The Board should therefore admit Contention 1-Eb as amended.
- 1. Statement of the issue of law or fact to be raised or controverted (10 C.F.R. § 2.309(f)(1)(i))
The DSEIS fails to comply with 10 C.F.R. § 51.71(d) because it fails to include an adequate analysis of alternatives available for reducing or avoiding adverse environmental 37 10 C.F.R. § 2.309(f)(2) and 2.309(c)(1).
38 Scheduling Order at 3.
39 See e.g., DSEIS at 2 2-13.
40 Private Fuel Storage, LLC, LBP-01-23, 54 NRC at 172 n.3.
10 effects.41 While the DSEIS considers a cooling water system alternative to the cooling canal system,42 the DSEIS at best only analyzes the adverse impacts of constructing and operating the alternative;43 the DSEIS unlawfully fails, however, to provide any analysis of the benefits to endangered species and the environment (described below) that would follow from replacing the cooling canal system with the cooling water system alternative. Intervenors have already shown in the Petition that cooling towers are a reasonable and feasible alternative to the cooling canal system,44 and the NRC Staff seem to agree as they included cooling towers as the cooling water system alternative in the DSEIS.45 However, the NRC Staff failed to complete an adequate alternatives analysis by failing to discuss how replacing the existing cooling canal system with cooling towers would reduce adverse impacts to Category 2 issues, as required by NRC regulations.
- 2. Brief explanation of basis for the contention (10 C.F.R. § 2.309(f)(1)(ii)); concise statement of the alleged facts or expert opinions supporting the contention (10 C.F.R. § 2.309(f)(1)(v)); and statement that a genuine dispute exists with the licensee on a material issue of law or fact (10 C.F.R. § 2.309(f)(1)(vi))
NEPA and NRC regulations require that a DSEIS [r]igorously explore and objectively evaluate all reasonable alternatives.46 An agencys consideration of reasonable alternatives is the heart of NEPA.47 Specifically, NRC regulations require that a DSEIS include a mitigation 41 10 C.F.R. § 51.71(d).
42 DSEIS at 2 2-13.
43 See e.g., DSEIS at 4-11, 4 4-19, 4 4-42, 4-48, 4 4-60, and 4-70.
44 Petition at 19-22.
45 DSEIS at 2 2-13.
46 40 C.F.R. § 1502.14. The Council on Environmental Qualitys regulations implementing NEPA apply to all federal agencies, including the NRC. Union Neighbors United, Inc. v. Jewell, 831 F.3d 564, 569 n.1 (D.C. Cir.
2016) (citing 40 C.F.R. § 1500.3).
47 Union Neighbors United, 831 F.3d at 575 (citing 40 C.F.R. § 1502.14).
11 discussion analyzing alternatives available for reducing or avoiding adverse environmental effects of the proposed project.48 This mitigation discussion must include an analysis of benefits and costs of the proposed action and alternatives.49 It is a vital part of the action forcing function of NEPA because [w]ithout such a discussion, neither the agency nor other interested groups and individuals can properly evaluate the severity of the adverse effects.50 The DSEIS fails to satisfy the NEPA and NRC requirements to rigorously explore benefits and costs of a reasonable alternative available for reducing or avoiding adverse environmental effects of the relicensing. The DSEIS purports to satisfy NEPAs obligation to consider alternatives available for reducing adverse impacts of the cooling canal system by including the cooling water system alternative. Unlike for all the other alternatives examined, however, the DSEIS fails to analyze how the cooling water system alternative compares to the proposed action.51 The DSEIS plays lip service to this requirement by claiming that it evaluates an alternative cooling water system technology for Turkey Point Units 3 and 4 that might be used to mitigate the potential impacts associated with continued use of the existing cooling canal system.52 But the DSEIS at best analyzes the adverse impacts of cooling towers; it is devoid of any substance on the environmental benefits of the alternative, for example the adverse impacts of the proposed action that the alternative could reduce or avoid, as required by 10 C.F.R. § 48 10 C.F.R. § 51.71(d).
49 Id. (emphasis added).
50 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 352 (1989). See also Hydro Res., Inc. (P.O. Box 777, Crownpoint, New Mexico 87313), LBP-06-19, 64 NRC 53, 93 (Aug. 21, 2006) (Mitigation must be discussed in sufficient detail to ensure that environmental consequences have been fairly evaluated).
51 DESIS at 2 2-21 (In section 2.4 Comparison of Alternatives, the DESIS explains why the proposed action is preferable to the four other alternativesno action, new nuclear, natural gas combined-cycle, and natural gas combined-cycle and solar photovoltaic combinationbut makes no mention of the cooling water system alternative).
52 DSEIS at 2-12.
12 51.71(d). Specifically, the DSEIS fails to consider how the cooling water system alternative could reduce acknowledged adverse impacts to (1) threatened, endangered, and protected species and essential fish habitat and (2) groundwater use conflicts.
- a. Replacing the existing cooling canal system with cooling towers would reduce adverse impacts related to threatened, endangered, and protected species and essential fish habitat.
The DSEIS concludes that operating the cooling canal system another 20 years is likely to adversely affect the American crocodile and eastern indigo snake, two special status species, and may affect other species.53 Further, the DSEIS states that there would be SMALL to MODERATE impingement and entrainment impacts and thermal impacts on aquatic organisms.54 The DSEIS acknowledges that the cooling canal system contributes to these adverse impacts.55 Thus replacing the cooling canal system with cooling towers could reduce the adverse impacts to species and their habitat.
Both temperature and salinity in the cooling canals have increased. This has resulted in decreased nesting and fewer American crocodiles observed in the cooling canals.56 In 2017, the FWS explained that:
[T]here has been a reduction in the number of crocodile nests produced within the
[cooling canal system]. A total of 9 nests were observed in 2015 and 8 in 2016.
The decrease in nesting in the [cooling canal system] has occurred with a concomitant decrease in the number of crocodiles observed within the [cooling canal system]. In addition, the body condition of many of the crocodiles 53 DSEIS at xviii.
54 Id.
55 See e.g. DSEIS at 4-50, 4-54 (The NRC staff acknowledges EAIs conclusion regarding seagrass and recognizes that thermal discharges associated with Turkey Point have contributed not only to the disappearance of seagrass within the [cooling canal system], but also to the decline of fish and other aquatic biota and the observed shift towards more heat-tolerant species in recent years.), 4-56; see also Biological Assessment for the Turkey Point Nuclear Generating Unit Nos. 3 and 4 Proposed Subsequent License Renewal, at 33 (Dec. 2018) (hereinafter Biological Assessment) (the NRC staff concludes that the current conditions within the [cooling canal system]
are having an adverse impact on American crocodile nesting and hatchling success.).
56 See Biological Assessment at 32.
13 observed within the [cooling canal system] has decreased (i.e., animals appear emaciated and much thinner than healthy animals of the same total length).
Moreover, anecdotal evidence suggests that a majority of the fish and invertebrate species that used to provide prey for the crocodile in the waters of the [cooling canal system] no longer occur or are greatly diminished in numbers [These issues] are thought to be the result of the recent increase in water temperature and salinity, and decrease in water quality within the waters of [cooling canal system]
observed during the past few years, beginning in 2013 [The cause for the decrease in water quality conditions] include [Applicants] recent increase in power production from nuclear Units 3 and 4, [and] the discharge of vegetative cutting within the [cooling canal system].57 Increased temperature and salinity have also caused seagrass, that once covered 50 percent of the system, to die off.58 This has significantly changed the aquatic resources in the cooling canal system, such that species diversity within the system has declined over time.59 Furthermore, the cooling canal system has driven the westward migration of a hypersaline plume,60 resulting in salination of freshwater wetlands that are habitat for a range threatened and endangered species, including the Florida panther, American crocodile, indigo snake, snail kite, red knot and wood stork.61 Thus, ceasing operation of the cooling canal system as a heat sink and replacing them with cooling towers, while keeping the canals in place, could protect existing species habitat. With an adequate effort to freshen the canals, and without the dangerously high temperatures of the recent past, the canals would continue to provide valuable critical habitat into the future.62 The DSEIS fails, however, to adequately consider these benefits of the cooling tower 57 Biological Opinion for Combined License for Turkey Point Nuclear Plant, Units 6 and 7 (June 23, 2017), at 20 (ML17177A673) (hereinafter 2017 Biological Opinion).
58 Biological Assessment at 19.
59 Id. at 22.
60 See Section IV.B.
61 2017 Biological Opinion, at 44.
62 See Section IV.B.
14 alternative. In analyzing the alternatives impacts on aquatic resources, the DSEIS focuses on the adverse impacts of the alternative, for example stating that [c]onstruction of cooling towers on the Turkey Point site would result in the permanent loss or impairment of sensitive aquatic habitats and could affect ecosystem function and connectivity.63 The DSEIS analysis of the alternative in regards to species is even less adequate as it fails to even conduct the analysis. The DSEIS makes the excuse that the magnitude and significance of adverse impacts on special status species and habitats would depend on the location and layout of the cooling towers, the design of the cooling towers, operational parameters, and the special status species and habitats present in the area when the alternative is implemented.64 But these location and design parameters would not change the fact that Turkey Point Units 3 and 4 stopped utilizing the cooling canal system as a heat sink.
An analysis on the change to the cooling canal system should cooling towers be built should have been conducted to rigorously and objectively evaluate the alternative. But the DSEIS fails to complete this analysis and therefore fails to adequately analyze an alternative that could reduce or avoid adverse impacts of the project.
- b. Replacing the existing cooling canal system with cooling towers would reduce adverse impacts related to groundwater use conflicts.
Turkey Point Units 3 and 4 currently rely on the cooling canal system as their cooling water systemthe Units discharge heated water into the cooling canal system and, as the water travels through the cooling canal system, it loses heat through evaporation.65 But, as the evaporation removes heat, it of course also removes water. Over the years, this water has been 63 DSEIS at 4-60.
64 DSEIS at 4-70.
65 DSEIS at 3-11.
15 replenished by (1) freshwater from precipitation, (2) saline water from the Biscayne aquifer, and occasionally (3) brackish water from the Florida aquifer.66 However, as discharge from Units 3 and 4 has become hotter (increasing evaporation) and droughts have become more common (decreasing the freshwater precipitation replenishment), the salinity of the cooling canal system has increased. Units 3 and 4 are therefore a main contributing factor to the increased salinity of the cooling canal system.67 And replacing the Units reliance on the cooling canal system with the alternative of cooling towers for their cooling water system would help reduce the salinity of the cooling canal system and the adverse impacts originating from that salinity.
The DSEIS acknowledges that the cooling canal systems increased salinity creates adverse impacts, including: die-off of sea grass, increased algae blooms, and the hypersaline plume.68 But to redress the salinity levels in the cooling canal systemand reduce these adverse impactsthe DSEIS only analyzes adding more brackish water to the cooling canal system from the Florida aquifer and attempting to withdraw the hypersaline plume through wells.69 Rather than reduce adverse impacts, these actions in fact only create new ones; evidence suggests the plan to withdraw the hypersaline plume will not be successful70 and the DSEIS acknowledges that these actions will exacerbate groundwater use conflict by substantially increasing groundwater use and leading to drawdown of offsite production wells.71 Rather than focus on these subpar mitigation plans, the DSEIS should have completed the 66 Id.
67 See Section IV.B.
68 See DSEIS at 3-43, 3-44, 3-54, 3-56, 3-99, 4-120.
69 See id. at 3-80, 3-81, 4-116.
70 See IV.B.
71 Id. at 4-28-4-33, 4-115.
16 analysis it claims it would, by evaluat[ing] an alternative cooling water system technology for Turkey Point Units 3 and 4 that might be used to mitigate the potential impacts associated with continued use of the existing cooling canal system.72 By replacing the heat sink function of the cooling canals with cooling towers, an original substantial factor in the hypersalinity that created a host of adverse impacts could be addressed. The DSEIS should have completed this analysis so that interested groups and individuals can properly evaluate the severity of the adverse effects.73 But while the DSEIS analyzes groundwater demand for freshening the cooling canal system,74 it does not analyze how ending the heat contribution of Turkey Point Units 3 and 4 to the cooling canals could freshen the water and reduce the groundwater impacts faster. The DSEIS only states that the NRC staff expects that groundwater demands for [cooling canal system] freshening would decrease over time commensurate with the reduction in thermal discharge to the [cooling canal system] from Turkey Point Units 3 and 4, some use of groundwater (or other water sources) would likely continue into the future,75 but does not compare how significant this change would be. Thus, an analysis on the change to the cooling canal system and groundwater use conflict should cooling towers be built should have been conducted. But the DSEIS fails to complete this analysis and therefore fails to adequately analyze an alternative that could reduce or avoid adverse impacts of the project.
72 Id. at 2-12.
73 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 352 (1989). See also Hydro Res., Inc. (P.O. Box 777, Crownpoint, New Mexico 87313), LBP-06-19, 64 NRC 53, 93 (Aug. 21, 2006) (Mitigation must be discussed in sufficient detail to ensure that environmental consequences have been fairly evaluated).
74 See DSEIS at 4-42.
75 Id.
17
- 3. The issue raised in the contention is within the scope of the proceeding (10 C.F.R. § 203.9(f)(1)(iii))
NRC regulations broadly divide the scope of a license renewal proceeding into (1) safety/aging management issues, and (2) environmental impacts. This contention concerns environmental impacts. The scope of the required environmental review is established by 10 C.F.R. Part 51 and the GEIS for license renewals.76 This contention is within the scope of the proceeding because it challenges the sufficiency of the environmental analysis in the DSEIS.
- 4. The issue raised in the contention is material to the findings the NRC must make to support the action involved in the proceeding (10 C.F.R. § 2.309(f)(1)(iv))
An issue is material if the resolution of the dispute would make a difference in the outcome of the licensing proceeding.77 This means that there must be some link between the claimed error or omission regarding the proposed licensing action and the NRCs role in protecting public health and safety or the environment.78 The issue raised in this contention the DSEISs failure to comply with NRCs regulations requiring rigorous consideration of alternativesrelates directly to the NRCs role in protecting public health and safety and the environment. NEPA imposes requirements on the NRC to ensure environmental protection. The failure to comply with these requirements is material to the findings NRC must make to support relicensing.
MIGRATED CONTENTION 1-E: In light of the adverse impact of continued cooling canal system operations on the threatened American crocodile and its critical seagrass habitat, the DSEIS is deficient for failing to consider mechanical draft cooling towers as a reasonable alternative to the cooling canal system in connection with the license renewal of Turkey Point Units 3 and 4.
76 Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee), LBP-06-20, 64 NRC 131, 148-49 (2006).
77 Vermont Yankee, LBP-06-20, 64 NRC at 149.
78 Id.
18 In the alternative, if the Board finds that Contention 1-Eb is not admissible, Intervenors request that Contention 1-E migrate as presently admitted, with the term Environmental Report in the contention updated to the DSEIS. Contention 1-E can migrate as admitted because the omission of information in the Environmental Report that the Contention challenges is sufficiently similar to the omission of information in the DSEIS. Thus, Contention 1-E now challenges that the NRC Staffs DSEIS fails to consider mechanical draft cooling towers as a reasonable alternative to the cooling canal system in light of the adverse impacts of continued operation of the cooling canal system on the threatened American crocodile and its critical seagrass.79 A contention migrates if the information it challenges in the Environmental Report is sufficiently similar to information included in the DSEIS. We must therefore first understand what information the contention aimed to challenge in the Environmental Report. As admitted, Contention 1-E on its face is specifically a claim that the Environmental Report omits analysis of cooling towers as an alternative that could mitigate adverse impacts of the cooling canal system specifically on the American crocodile and its critical seagrass habitat. In admitting the Contention, the Boards Order found that Contention 1-E raises a genuine dispute on a material fact to the extent it alleges that [Applicants Environmental Report] improperly fails to consider mechanical draft cooling towers as a reasonable alternative for reducing or avoiding adverse impacts on the threatened American Crocodile and its critical seagrass habitat.80 By including the qualifying phrase regarding impacts to the American crocodile in the admitted Contention 79 This issue has already been briefed by parties in their Motions to Dismiss as Moot. If the Board finds that the DSEIS does not moot Contention 1-E, the Contention should be allowed to migrate.
80 Turkey Point, LBP-19-3, 89 NRC __ (slip op. at 40) (emphasis added). This statement appears in the Boards analysis of another Intervenor Southern Alliance for Clean Energys (SACE) Contention 2, but the Board admitted Joint Petitioners Contention 1-E subject to the same limitations as its admission of SACEs Contention
- 2. See LBP-19-3, 89 NRC __ (slip op. at 44).
19 language, the Board focused the scope of the Contention on the omission of how the cooling towers could reduce adverse impacts of the cooling canal system specifically on this species and its habitat.
Like the Environmental Report, the DSEIS also fails to include a discussion of the reduction of adverse impacts to the American crocodile and its habitat that would be achieved by installing cooling towers. In the DSEIS the NRC staff concludes that the proposed Turkey Point subsequent license renewal is likely to adversely affect the American crocodile and may result in adverse modification to designated critical habitat for the American crocodile.81 However, while the DSEIS claims it evaluates an alternative cooling water system to mitigate the potential impacts associated with the continued use of the existing cooling canal system,82 the DSEIS actually only analyzes certain potential adverse impacts of the cooling towers. It omits any specific analysis of benefits of utilizing cooling towers as an alternative to the cooling canal system to mitigate the acknowledged adverse impact of the canal system on the American crocodile and its habitat.83 Thus, the DSEIS is sufficiently similar to the Environmental Report in its failure to analyze the mechanical draft cooling towers as a reasonable alternative to the cooling canal system in light of the adverse impact of continued operation of the cooling canal system on the threatened American crocodile and its critical seagrass habitat; Contention 1-E should be allowed to migrate.
B. Contention 5-E The Board admitted Contention 5-E as follows:
81 DSEIS at 4-23.
82 DSEIS at iii.
83 See e.g., 2017 Biological Opinion at 68 (discussing select adverse impacts of cooling canal system on American crocodiles without discussing cooling towers as an alternative).
20 The Environmental Report 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.84 Because the DSEIS is sufficiently similar to the Environmental Report in that both omitted any analysis of the potential impacts of ammonia on the threatened and endangered species identified by the Contention or on their critical habitat, Contention 5-E must be migrated with respect to the NRC Staffs DSEIS. In the alternative, if the Board finds that the DSEIS is not sufficiently similar to the Environmental Report on this issue, Intervenors move to amend Contention 5-E.
MIGRATED CONTENTION 5-E: The DSEIS is deficient in its failure to analyze the potential impacts of ammonia releases during the renewal period on threatened and endangered species and their critical habitat.
A contention migrates if the information it challenges in the Environmental Report is sufficiently similar to information included in the DSEIS. We must therefore first understand what information the contention aimed to challenge in the Environmental Report. To determine a contentions scope, the Board first analyzes the language of the contention, and, if the scope is not clear on the contentions face, the Board considers the statement of basis accompanying the contention.85 The scope of Contention 5-E, as admitted and clarified in the basis statement, encompasses the impact of ammonia from continued operation of Turkey Point Units 3 and 4 on the following six threatened or endangered species and their habitat: the Florida panther, American crocodile, indigo snake, snail kite, red knot and wood stork.86 The Environmental Report failed to consider the impact of ammonia discharges on these threatened and endangered species and important habitat. Similarly, the DSEIS also fails to 84 Order at 52-53 (emphasis added).
85 Private Fuel Storage, LBP-01-23, 54 NRC at 171.
86 Petition at 60. See also Joint Petitioners Answer Opposing FPLs Motion to Dismiss Joint Petitioners Contention 5-E as Moot (June 10, 2019).
21 include this specific analysis. 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....87 While the DSEIS at least contemplates the impact of ammonia on one endangered speciesthe West Indian manateeit fails to analyze this issue for the six species identified in Intervenors contention.88 Thus, the DSEIS is sufficiently similar to the Environmental Report in its failure to analyze the impact of ammonia discharges from Turkey Point Units 3 and 4 on the six named threatened or endangered species and their habitat. Contention 5-E should be allowed to migrate.89 AMENDMENDED CONTENTION 5-Eb: The DSEIS is deficient in its analysis of the potential impacts of ammonia releases during the renewal period on threatened and endangered species and their critical habitat.
In the alternative, the Board should amend and admit Contention 5-E as Contention 5-Eb because good cause exists to amend the contention and Contention 5-Eb meets the admissibility requirements in 10 C.F.R. § 2.309(f).
First, good causedefined as timely and based on new and materially different information90exists to amend Contention 5-E as Contention 5-Eb. Per the Boards Scheduling Order, this motion to amend is timely.91 The DSEIS also includes new information that was previously unavailable in the Environmental Report; whereas the Environmental Report did not 87 Biological Assessment at 60.
88 See id at 30-47, 51-55, 57-62.
89 This issue has already been briefed by parties in their Motions to Dismiss as Moot. If the Board finds that the DSEIS does not moot Contention 5-E, the Contention should be allowed to migrate.
90 10 C.F.R. § 2.309(f)(2) and 2.309(c)(1).
91 Scheduling Order at 3.
22 acknowledge that Turkey Point is a source of ammonia,92 the DSEIS now admits to this fact but includes only a spotty, inadequate evaluation of how Turkey Points continued operation as a source of ammonia will impact threatened and endangered species.93 It is this inadequate evaluation that Contention 5-Eb now challenges. Because the basic form of a contention cannot change through migrationi.e. challeng[ing] the soundness of the information provided [rather than] claim[ing] that necessary information has been omittedIntervenors respectfully move to amend Contention 5-E from claiming an omission in the Environmental Report to challenging the adequacy of analysis in the DSEIS.94 Thus, there is good cause to amend Contention 5-E.
And, second, as we explain below, Contention 5-Eb meets the requirements in 10 C.F.R.
§ 2.309(f)(1) regarding contention admissibility. The Board should therefore admit Contention 5-Eb as amended.
- 1. Statement of the issue of law or fact to be raised or controverted (10 C.F.R. § 2.309(f)(1)(i))
NRC regulations require the DSEIS to consider the effects of Turkey Points continued operation on endangered species.95 The DSEIS acknowledges that Turkey Point is a source of ammonia,96 but it gives inadequate consideration to how the ammonia released will impact threatened or endangered species, or otherwise harm important plant and animal habitats, over the next 20 years. This failure violates NEPA.
- 2. Brief explanation of basis for the contention (10 C.F.R. § 2.309(f)(1)(ii)); concise statement of the alleged facts or expert opinions supporting the contention (10 92 ER at 9-13, 3 3-94.
93 DSEIS at 3-52, 2 2-13.
94 Private Fuel Storage, LLC, LBP-01-23, 54 NRC at 172 n.3.
95 10 C.F.R. § 51.71 (requiring a DSEIS analyze Category 2 issues); see also, 10 C.F.R. Part 51, Subpart A, Appendix B (listing threatened, endangered, and protected species and essential fish habitat as a Category 2 issue).
96 DSEIS at 3-52.
23 C.F.R. § 2.309(f)(1)(v)); and statement that a genuine dispute exists with the licensee on a material issue of law or fact (10 C.F.R. § 2.309(f)(1)(vi))
Turkey Point discharges ammonia from the cooling canal system to nearby surface waters via the Biscayne Aquifer. Specifically, violations of surface water ammonia standards have been observed in canals near Turkey Point.97 The DSEIS acknowledges that Miami-Dade County has offered evidence that Turkey Point is a key source of the ammonia and is responsible for the violations of water quality standards.98 Ammonia can have direct and highly toxic effects on the aquatic environment.99 While the DSEIS speaks generally to the effects of elevated ammonia on water quality100 and aquatic organisms, it does not mention any threatened or endangered species in this discussion.101 Individualized analysis by species is vital because, 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....102 Yet the DSEIS fails to consider the impacts of ammonia discharges on all but one threatened and endangered species and important habitat.103 For example, in the Biological Assessments Section 5.1.2 on Impacts to the American Crocodile and Designated Critical 97 Letter from Wilbur Mayorga (Miami-Dade County, Division of Environmental Resources Management) to Matthew J. Raffenberg (Applicant) at 1-2 (July 10, 2018) (Mayorga - Raffenberg Letter).
98 DSEIS at 3-52 (citing Mayorga - Raffenberg Letter).
99 DSEIS at 4-65; Final Aquatic Life Ambient Water Quality Criteria for Ammonia - Freshwater 2013, 78 Fed. Reg.
52,192 (Aug. 22, 2013).
100 DSEIS at 3 3-44.
101 DSEIS at 4-65.
102 Biological Assessment at 60 (Dec. 2018) (emphasis added).
103 See Biological Assessment.
24 Habitat, the word ammonia does not even appear.104 One need only compare the NRCs analysis of ammonia impacts on another speciesthe West Indian manateeto grasp the inadequacy of the remainder of DSEISs analysis.105 There, the NRC attempted to connect the dots by specifically addressing the impacts of ammonianot nutrients generallyon the manatee.106 Further, the DSEIS provides no explanation why this level of analysis was included for the manatee and not any other species. Thus, the DSEISs analysis of how ammonia may impact threatened and endangered species is inadequate.
- 3. The issue raised in the contention is within the scope of the proceeding (10 C.F.R. § 203.9(f)(1)(iii))
NRC regulations plainly require the DSEIS to address the effects of Turkey Points continued operations on endangered species.107 The effects on these resources in Turkey Points cooling canal system are therefore within the scope of this proceeding.
- 4. The issue raised in the contention is material to the findings the NRC must make to support the action involved in the proceeding (10 C.F.R. § 2.309(f)(1)(iv))
A contention is material to the NRCs duty to make environmental findings if the issue of law or fact it raises is of possible significance to the result of the proceeding. This means that there should be some significant link between the claimed deficiency and either the health and safety of the public or the environment.108 There is a significant link between the issue raised in 104 Id. at 30-45.
105 Compare Biological Assessment at 60-62 (analyzing ammonia impacts on the West India manatee) to Biological Assessment at 45-47, 51-55, 57-62 (failing to analyze ammonia impacts to any other threatened or endangered species).
106 See Biological Assessment at 60-62.
107 10 C.F.R. § 51.71 (requiring a DSEIS analyze Category 2 issues); see also, 10 C.F.R. Part 51, Subpart A, Appendix B (listing threatened, endangered, and protected species and essential fish habitat as a Category 2 issue).
108 Entergy Nuclear Vt. Yankee L.L.C. & Entergy Nuclear Operations (Vermont Yankee Nuclear Power Station),
LBP-04-28, 60 NRC 548, 556-57 (Nov. 22, 2004).
25 this contentionApplicants failure to assess the impacts of Turkey Points operations on threatened and endangered speciesand the health and safety of the public or the environment.109 NRC regulations require the DSEIS to include such an analysis. Each aspect of the contention relates directly to an impact on the environment and, thus, is material to the findings the NRC must make to support relicensing.
IV.
NEW CONTENTIONS A. Overview Intervenors offer the following new contentions. Each new contention is based on information that did not appear in the Environmental Report, was unavailable at the time Intervenors filed their initial petition to intervene, is raised in timely fashion pursuant to the Boards Scheduling Order, is materially different, and establishes a genuine dispute on a material issue of law or fact that is within the scope of this proceeding.110 These contentions address what is generally categorized as a Category 1 issue (groundwater quality degradation (plants with cooling ponds in salt marshes)) as well as an issue that is neither Category 1 or Category 2 (water quality impacts on adjacent water bodies (plants with cooling ponds in salt marshes)). While Intervenors believe a waiver under 10 C.F.R. § 2.335(b) is not necessary in order for Intervenors to assert contentions addressing these issues, we also submit a waiver out of an abundance of caution.111 B. New Information 109 Id.
110 10 C.F.R. §§ 2.309(f)(1), 2.309(c)(1).
111 NRDCs, FOEs, and Miami Waterkeepers Petition for Waiver of 10 C.F.R. §§ 51.53(C)(3) and 51.71(D) and 10 C.F.R. Part 51, Subpart A, Appendix B (June 24, 2019).
26 Intervenors rely on the following new information in support of their new contentions.
- 1.
Miami-Dade County Petition for Administrative Hearing (MDC Petition).112 On September 17, 2018, Miami-Dade County filed a petition challenging Everglades Mitigation Bank Phase II Permit Modification No. 0193232-182 (the Permit Modification). The Permit Modification requires Applicant to: (i) change the elevation of water control structures to a lower, fixed elevation, which will drain more water from the L-31E canal and (ii) allow the transfer of more than 7,000 acre-feet of water per year through the L-31E levee to Applicants mitigation lands south of the plant.113 As the following excerpts from the MDC Petition demonstrate, and as confirmed by the Dr. William Nuttle, Applicants compliance with the Permit Modification substantially changes the regions hydrological profile.
- The 2015 Consent Agreement between Applicant and Miami-Dade requires Applicant to rais[e] the control elevations of the FPL Everglades Mitigation Bank culvert weirs to no lower than 0.2 feet below the 2.4 foot trigger of the S-20 structure and maintain[] this elevation.114
- These culvert weirs are water control structures that determine how much freshwater is diverted from the L-31E canal to Applicants southern mitigation bank lands.115
- One goal of the weir elevation requirements in the Countys Consent Agreement was to maintain more water on the surface landscape in the wetland areas to the west of the Cooling Canal System; that additional water creates a hydrologic head that acts as a counterbalance to prevent additional saltwater intrusion in the groundwater area. These areas to the west of the Cooling Canal System are the same areas where FPLs hypersaline 112 Miami-Dade County. Miami-Dade County Petition for Administrative Hearing. (Sept. 17, 2018) (hereinafter MDC Petition).
113 MDC Petition at 1.
114 MDC Petition ¶ 13.
115 MDC Petition ¶ 14.
27 groundwater plume has been detected.116 The MDC Petition further indicates that Applicants compliance with the new control elevation requirements will lead to materially significant environmental impacts:
- The Permit Modifications new control elevation requirement may exacerbate the existing water quality violations that FPL is otherwise working to abate and remediate, thus hindering the progress of those efforts and harming wetlands in the Model Lands area.117
- [S]etting the control elevation of the L-31E water control structures [at the new, lower level] is not sustainable from a broader water management perspective.118
- 2.
New Reports - Newly available data indicates that the 2015 Consent Agreement between Applicant and Miami-Dade County (MDC Consent Agreement)119 and the 2016 Consent Order between Applicant and FDEP120 are not achieving the anticipated results regarding mitigation of the hypersaline plume and salinity management in the cooling canal system.121 This data includes information found in the following:
- Turkey Point Cooling Canal System Baseline CSEM Report (Oct. 2018).
- FPL, 2018 Annual Turkey Point Power Plant Remediation/Restoration Report (Dec. 2018).
- FPL Recovery Well System Startup Report (Oct. 5, 2018).
116 MDC Petition ¶ 15.
117 MDC Petition ¶ 23.
118 MDC Petition ¶ 24.
119 Miami-Dade County, Consent Agreement Concerning Water Quality Impacts Associated with the Cooling Canal System at Turkey Point Power Plant (Oct. 6, 2015) (ML16335A219) (referenced in DSEIS as MDC 2015a).
120 FDEP, Consent Order, OGC File 13 Number 16-0241, between the State of Florida Department of Environmental Protection and 14 Florida Power & Light Company regarding settlement of Matters at Issue
[Westward Migration of 15 Hypersaline Water from the Turkey Point Facility and Potential Releases to Deep Channels on 16 the Eastern and Southern Side of the Facility] (June 20, 2016) (ML16216A12) (referenced in DSEIS as FDEP 2016e).
121 See DSEIS at 3-49 (suggesting that more favorable climatic conditions... should help to reduce [cooling canal system] water salinities to 34 PSU).
28
- 3.
Expert Report and Opinions of Dr. William Nuttle, Ph.D, which state:
- New information provided by Miami-Dade County points to material and significant changes to the hydrology of the Turkey Point region as the result of water management decisions since Florida Power & Light (FPL) submitted its Environmental Report.122
- Applicants compliance with this modified permit exacerbates impacts from operating the cooling canal system on groundwater, surface water, and ecological resources in the Model Lands Basin.123
- New information on mechanisms of drought in south Florida provides evidence that more favorable climatic conditions that are being relied on to meet salinity targets in the CCS are unlikely to occur.124
- The ongoing dispute between the County and FDEP over setting the elevation of the weirs along the L-31E canal is evidence that achieving compliance with requirements for remediation established by DERM and FDEP does not reliably predict future compliance with state and local water quality requirements.125
- 4.
Expert Report and Opinions of E.J. Wexler, P.Eng, which states:
- Tetra Tech modeling from 2016 has serious flaws that are especially critical in light of new water quality information showing that Applicant was unable to achieve freshening of the cooling canal system with the addition of 10 to 15 MGD of brackish water from the Floridan aquifer.126
- Mr. Wexlers modeling demonstrates that retraction of the hypersaline plume is not likely to occur without the addition of more wells and increased pumped volumes.127
- Modeling indicates that freshening of the cooling canal system is the key driver to retraction of the hypersaline plume; not pumping.128
- Applicants models (Tetra Tech 2016a, 2016b, and 2017) indicate that 122 Nuttle Decl. at 2.
123 Id. at 4.
124 Id. at 8.
125 Id. at 10.
126 Wexler Decl. at 4.
127 Id. at 5.
128 Id. at 4.
29 meeting the 2016 order with FDEP is not achievable with the number of wells and pumping volumes proposed.129
- More analysis would be required to determine whether additional withdrawals would have harmful environmental effects.130
- 5.
Expert opinion of Dr. James Fourqurean, Ph.D., which states:
- The seagrass beds of Biscayne Bay and the rest of south Florida require very low nutrient loading to survive. In essence, seagrasses are killed and replaced by fast-growing, noxious seaweed or planktonic algae if nutrient delivery is increased. Nutrient delivery can be increased either by increasing the concentration of nutrients in discharges, OR by increasing the volume of water containing nutrients, even at very low nutrient concentrations that would pass drinking water quality standards.131
- The seagrasses along the coastline of the Cooling Canal System (CCS) existed for thousands of years in a nutrient-limited state, which means any addition of new nutrients changes the balance of these ecosystems. Increased nutrients harm the ecosystem by increasing the rates of primary production by marine plants. Increase in growth rates means that faster-growing, noxious marine plants, like macroalgae (seaweeds) and microscopic algae and photosynthetic bacteria, overgrow and outcompete seagrasses and corals for light, leading to the losses of corals and seagrasses.132
- Around the world, there are many nutrients that can limit noxious plant growth, but most often, the nutrients that limit this growth are either nitrogen or phosphorus. In south Biscayne Bay, phosphorus is limiting to phytoplankton and macroalgae. This means that addition of phosphorus will upset the ecological balance of seagrass beds as has been exhibited in Northern Biscayne By and Florida Bay. Upsetting the balance of populations of aquatic flora and fauna by nutrient addition is a violation of Florida surface water quality standards.133
- Current seagrass species composition and abundance data collected by ongoing seagrass monitoring programs show that there are places where Turtle Grass biomass offshore from the CCS is unusually dense compared to other areas in southern Biscayne Bay, likely as a consequence of increased P 129 Id. at 5.
130 Id.
131 Fourqurean Decl. at 2.
132 Id. at 4.
133 Id.
30 availability in the region and concentrated by the operations of the adjacent CCS. The P sources are likely to be the result of Turkey Point operations that includes chemical components added for cleaning, biomass death that occurred within the CCS in 2014, and any nutrient pulled into the system from the surrounding environment that has been concentrated overtime as the freshwater evaporates away over the life of the plant.134
- The nearshore seagrass beds are incredibly efficient at removing P from the water column and storing P at vanishingly small concentrations. In fact, even 30 feet from large point-sources of P in Florida Bay, it is not possible to measure increases in P concentrations in the water column because it has all been captured by the algal and seagrass communities. This P capture causes increased plant growth and ecosystem imbalances. This imbalance first leads to an actual increase in the abundance of seagrass, but rapidly it causes a change in species composition, first to faster-growing seagrasses, then to seaweeds, then to microscopic algae.135
- Groundwater discharges along the coast of southern Biscayne Bay contain elevated concentrations of phosphorus and tritium, so that any process that causes groundwater discharge to the local seagrasses will supply the limiting nutrient (P) that upsets the balance of the ecosystem. Groundwater under the seagrass meadows of this part of Biscayne Bay contain tritium at concentrations that can only be explained by this water coming from the CCS.136
- The geology underlying the CCS and the adjacent seagrass meadows is based on limestone, which is made of calcium carbonate minerals. Calcium carbonate minerals strongly absorb orthophosphate onto their surfaces. But, respiration by plants, animals and bacteria dissolve calcium carbonate minerals, releasing the orthophosphate absorbed to the surfaces. During normal conditions, south Florida ecosystems are incredibly efficient at holding on to captured phosphorus-so much so that the impacts caused by adding P to seagrass beds in south Florida for even short periods can still be measured 30 years after the P additions. On the other hand, bacteria cause added N captured by south Florida ecosystems to be rapidly removed from those ecosystems. These facts result in P additions causing permanent and cumulative imbalances in nearshore marine waters of the Keys while N additions cause imbalances that can be corrected by the cessation of N addition.137 134 Id. at 5.
135 Id. at 6.
136 Id.
137 Id. at 7.
31
- An imbalance of the seagrasses that form the near-shore habitat near the CCS in Biscayne Bay and provide the food at the base of the food chain harms the fish and wildlife that use these habitats and therefore effects fishing, recreational activities such as bird watching and other activities based on that habitat change and eventual loss.138 C. The Information Intervenors Rely On Satisfy the Good Cause Standard in 10 C.F.R. § 2.309(c)(1).
New contentions are properly admissible upon a showing of good cause that (1) [t]he information upon which the filing is based was not previously available, (2) [t]he information upon which the filing is based is materially different from information previously available, and (3) [t]he filing has been submitted in a timely fashion based on the availability of the subsequent information.139 Each of the new sources of information Intervenor relies on for its new contentions meets these requirements. Good cause therefore exists for admitting each new contention.
- 1. The MDC Petition.
- a. Not Previously Available. 10 C.F.R. § 2.309(c)(1)(i).
Intervenors base their new contentions in part on the Miami-Dade Petition, which is dated September 17, 2018. Intervenors filed their Petition to Intervene on August 1, 2018140 and their Reply Brief on September 10, 2018.141 Thus, the MDC Petition was not available at the time of Intervenors Petition or Reply Brief.
138 Id. at 8.
139 10 C.F.R. § 2.309(c)(1). New and amended contentions must also meet the 6-part test governing admissibility in 10 C.F.R. § 2.309(f)(1).
140 Petition at 1.
141 Reply in Support of Request for Hearing and Petition to Intervene Submitted by Friends of the Earth, Natural Resources Defense Council, and Miami Waterkeeper (Sept. 10, 2018) (ML18253A280).
32
- b. Materially different information from what was previously available. 10 C.F.R. § 2.309(c)(1)(ii).
Information is materially different [u]nless it looks genuinely plausible that inclusion of an additional factor or use of other assumptions and models may change the cost-benefit conclusions.142 Materiality in this context relates to the magnitude of the difference between the previously available information and currently available information.143 The MDC Petition satisfies the materially different requirement because it provides information showing that it looks genuinely plausible that Applicant will not be able to comply with the MDC Consent Agreement. The DSEIS relies heavily on Applicants ability to comply with this Agreement in its analysis of environmental impacts from the continued operation of Turkey Point Units 3 and 4.144 This includes the DSEIS conclusion with respect to impacts on adjacent surface water bodies via the groundwater pathway.145 In the MDC Petition, Miami-Dade challenges a new requirement imposed on Applicant by the FDEP through a modified permit. The modified permit requires Applicant to take steps that that would materially change the regions hydrology, exacerbate Applicants water quality 142 See DTE Electric Co. (Fermi Nuclear Power Plant, Unit 2), LBP-17-1, 85 NRC at 4 (Jan. 10, 2017).
143 S. Nuclear Operating Co. (Vogtle Elec. Generating Plant, Units 3 & 4), LBP-10-01, 71 N.R.C. 165, 183 n.9 (2010).
144 See, e.g., DSEIS at 4-23 ([U]pon consideration of the FDEPs and DERMs existing requirements and their continuing oversight of FPLs site remediation efforts, the NRC staff concludes that the impacts on adjacent surface water bodies via the groundwater pathway from the [cooling canal system] during the subsequent license renewal term would be SMALL and, therefore, the new information that has been identified is not significant.);
DSEIS at 4-27 ([T]he NRC staff concludes that as a result of FPLs operation of its recovery well system and continued regulatory oversight and enforcement of the terms of the consent order and consent agreement by the FDEP and DERM, the impacts on groundwater quality from operations during the subsequent license renewal term would be SMALL.);
DSEIS at 4-117 (The NRC Staff expects that continued operation of the freshening system, combined with proper operation and maintenance of the [cooling canal system], will result in no substantial contribution to cumulative impacts on groundwater quality or associated impacts on surface water quality in Biscayne Bay during the subsequent license renewal period.).
145 DSEIS at 4-23.
33 violations, and interfere with Applicants remedial efforts under the MDC Consent Agreement.
As noted in the MDC Petition, FDEP modified Applicants Mitigation Bank Phase II permit by lowering control elevations of the L-31E water control structure to an unchanging level of 1.8 feet NGVD.146 The MDC Petition asserts that this new control elevation requirement may adversely impact water resources upstream of the area, is not sustainable over the long term, and interferes with protecting water quality in the L-31E canal from chloride contamination and addressing the existing inland migration of the salt intrusion front in this area.147 It may exacerbate the existing water quality violations that [Applicant] is otherwise working to abate and remediate, thus hindering the progress of those efforts and harming wetlands in the Model Lands area.148 Further, setting the control elevation of the L-31E water control structures at an unchanging level of 1.8 feet NGVD is not sustainable from a broader water management perspective.149 The MDC Petition establishes facts that are materially different than the information previously available in several ways. First, the MDC Petition is relevant to issues and related conclusions that appear for the first time in the DSEIS.150 These conclusions rely heavily on oversight and compliance with requirements predicated on a different hydrologic regime.
Miami-Dade is now on record stating those predicate conditions have materially changed.
146 MDC Petition ¶ 23.
147 MDC Petition ¶ 23.
148 MDC Petition ¶ 23.
149 MDC Petition ¶ 24.
150 See., e.g., DSEIS at 4-2 (The NRC staff... identified one new issue (i.e., water quality impacts on adjacent water bodies (plants with cooling ponds in salt marshes))); DSEIS at 4-21 (Specifically, the GEIS (NUREG-1437) did not consider how a nuclear power plant with a cooling pond in a salt marsh may indirectly impact the water quality of adjacent surface water bodies via a groundwater pathway. This constitutes a new, site-specific issue with respect to Turkey Point....).
34 Second, the MDC Petition is materially different than previous information because it demonstrates FDEPs and Miami-Dades existing requirements are incompatible.151 Miami-Dade states that FDEPs permit modification may exacerbate the existing water quality violations that [Applicant] is otherwise working to abate and remediate, thus hindering the progress of those efforts and harming wetlands....152 Finally, the very fact that two agencies with oversight over water resources disagree is material to this proceeding. Logically, the NRC cannot conclude that compliance with and oversight by FDEP and Miami-Dades requirements will result in SMALL environmental impacts when Miami-Dade is on record stating FDEPs requirements are incompatible with its own. Nor can the NRC rely on the mere existence of a permit requirement as a substitute for NEPA review.153 Intervenors also offer the expert opinions of Dr. William Nuttle to further explain why the concerns listed in the MDC Petition are justified and material to this proceeding. Dr. Nuttle explains that lowering weirs in the L-31E canal will drain freshwater from the Model Lands Basin, which sits west of the L-31E canal. This has the effect of lowering the water table throughout the Model Lands Basin, which reduces the natural hydraulic barrier against the encroachment of saltwater into the Biscayne aquifer, and it increases the vulnerability of water supply wells adjacent to the Model Lands Basin to degradation by saltwater intrusion, including the risk of degradation by the hypersaline plume emanating from the cooling canal system.
151 See, e.g., DSEIS at 4-23 (relying on FDEPs and DERMs existing requirements and their continuing oversight of FPLs site remediation efforts to conclude impacts via the groundwater pathway would be SMALL); DSEIS at 4117 (The NRC staff finds that it is reasonable to expect that FPLs freshening well system would continue to be operated during the subsequent license renewal term, and for as long as necessary to maintain compliance with the terms of the 2015 consent agreement with Miami-Dade Count DERM [] and the 2016 FDEP consent order [].).
152 MDC Petition ¶ 23.
153 Sierra Club v. Fed. Energy Regulatory Comm'n, 867 F.3d 1357, 1375 (D.C. Cir. 2017) (citing Calvert Cliffs Coordinating Comm. V. Atomic Energy Commn, 449 F.2d 1109, 1122-23 (D.C. Cir. 1971).
35 Lowering the water table in the Model Lands Basin also increases the flow of saline water into the L-31E canal and movement throughout the basin, which further degrades the freshwater wetlands.
These hydrological conditions are materially different than those presented in the Environmental Report according both to Dr. Nuttle and Miami-Dade. The record in this proceeding is devoid of any evidence that addresses environmental impacts complained of by Miami-Dade.
- c. Timely. 10 C.F.R. § 2.309(c)(iii).
Section 2.309(c)(iii) does not define the term timely. Thus, the Board has a degree of latitude in determining compliance with this standard.154 The Board may, as it has done here, define timeliness by specifying a deadline for timely filing a new or amended contention following a triggering event that makes the previously unavailable/materially different information available so as to be the basis for the new or amended contention.155 Further, the Board has previously ruled that while intervenors must respond to new information when it first becomes available, they need not do so until the information is actually used by the NRC Staff to form its conclusions on impacts in the DSEIS.156 The Boards Scheduling Order established a June 24, 2019 deadline for filing of new and amended contentions. Intervenors new contentions are filed in accordance with that deadline and are therefore timely. Additionally, to Intervenors knowledge, there was no record of the MDC Petition in this proceeding until after the Boards April 2, 2019 Scheduling Order. On 154 Crow Butte Res., Inc. (Marsland Expansion Order) LBP-18-3 at 8 (July 20, 2018).
155 Id.
156 Powertech USA, Inc. (Dewey-Burdock In Situ Uranium Recovery Facility), LBP-13-09, 78 NRC 37, 93 (2013).
36 April 3, 2019, Applicant submitted more recent additional information to support the Staffs review of [Applicants Subsequent License Renewal Application] for Turkey Point Units 3 and 4.157 The 2018 Annual Report appears to be the first time the MDC Petition is mentioned by Applicant in connection or referenced in any of the NRC Staffs NEPA-related documents in this proceeding.158 In turn, the NRC Staff listed the 2018 Annual Report in its initial disclosures dated May 10, 2019.159 Thus, any contention based on the MDC Petition is timely.
- 2. New Reports.
- a. Not previously available. 10 C.F.R. § 2.309(c)(1)(i).
The new reports referenced in paragraph 2,Section IV(B), above, were not available when Intervenors filed their petition on August 1, 2018. Applicant released the Turkey Point Cooling Canal System Baseline CSEM Report and Recovery Well System Startup Report in October 2018; and the 2018 Annual Turkey Point Power Plant Remediation/Restoration Report in December 2018. Thus, this information was not previously available.
- b. Materially different information from what was previously available. 10 C.F.R. § 2.309(c)(1)(ii).
These reports are materially different than information previously available in the Environmental Report. The Environmental Report did not state that Applicants efforts to reach 34 PSU in the cooling canals system were ineffective. In contrast, the DSEIS explains that Applicants modelers predicted freshening efforts would require less than a year to reduce 157 See Letter from William Maher, Senior Licensing Direct, Florida Power & Light Co., to NRC, Enclosure 3 (ML19095B380).
158 See 2018 Annual Report at 18 (referencing MDC DERMs challenge to the FDEP Permit modification)
(ML191095B494).
159 NRC Staff Initial Disclosures, Hearing File Index at 19, Doc. ID# NRC-0280 (May 10, 2019) (ML19130A049).
While the NRC Staff index dates this record December 31, 2018, Applicant submitted it to the NRC on April 3, 2019 to provide more recent additional information for the SLRA Environmental Report.
37 salinities in the [cooling canal system] to 35 PSU.160 Yet average salinity concentrations in the cooling canal system only reached 64.9 PSU.161 The DSEIS also explained for the first time that these modelers anticipate that under more favorable climatic conditions (e.g., less severe dry seasons), the addition of Upper Floridan aquifer water should help to reduce [cooling canal system].162 The previous statement indicates that the modeling efforts were not sufficient and that further inquiry is necessary to determine what climatic conditions are needed to meet the salinity target and whether those conditions are likely to occur. These inquiries are absent in the DSEIS. Without any evidence that Applicant will be able to meet its salinity targets, the only thing left supporting the DSEIS conclusions is the mere existence of a requirements and agencies to oversee them. This is not enough to satisfy NEPA, particularly when, as noted above in Section IV.C.1., those agencies are at loggerheads.163
- c. Timely Submitted. 10 C.F.R. § 2.309(c)(iii).
Intervenors today submit new contentions based on the new reports pursuant to the April 2, 2019 Scheduling Order. It is timely for this reason alone. However, additionally, Applicant did not submit the 2018 Annual Turkey Point Power Plant Remediation/Restoration Report or the Recovery Well System Startup Report to the NRC Staff until April 3, 2019 as part of a package of more recent additional information to support the Staffs review of [Applicants Subsequent License Renewal Application].164 This is after the Board issued the April 2, 2019 Scheduling Order and also after the NRC Staff released the DSEIS for public comment in March 160 DSEIS at 3-49.
161 Id.
162 DSEIS at 3-49.
163 Sierra Club v. Fed. Energy Regulatory Comm'n, 867 F.3d 1357, 1375 (D.C. Cir. 2017) (citing Calvert Cliffs Coordinating Comm. V. Atomic Energy Commn, 449 F.2d 1109, 1122-23 (D.C. Cir. 1971).
164 ML19095B380.
38 2019.
Lastly, contentions based on the new reports are timely because the DSEIS is the first environmental document in this proceeding that relies on an unsubstantiated statement by Applicants modelers that more favorable climatic conditions will achieve salinity targets in the cooling canal system. Before that, Intervenors could not have addressed the basis for the Staffs conclusion because the Staff had not made it.165
- 3.
New Expert Opinions.
- a. Not previously available. 10 C.F.R. § 2.309(c)(1)(i).
The new expert opinions that Intervenors supply herein were not previously available.
They rely in part on the new information described in paragraphs 1 and 2 in Section IV.B.,
above. To the extent that an expert opinion addresses information that predates Intervenors August 1, 2018 Petition, that information was no previously available because Applicant failed to reference the information to support its conclusions.166 In addition, the DSEIS references Applicants 2017 Annual Monitoring Report to explain that Applicants efforts to reduce salinities in the cooling canal system were substantially worse than Applicant predicted while the Environmental Report did not.167
- b. Materially different information from what was previously available. 10 C.F.R. § 2.309(c)(1)(ii).
The expert opinions are materially different than what was previously available because they rely on new information and provide evidence that creates a genuine dispute of fact and law 165 See Powertech USA, Inc. (Dewey-Burdock In Situ Uranium Recovery Facility), LBP-13-09, 78 NRC 37, 93 (2013) (while intervenors must respond to new information when it first becomes available, they need not do so until the information is actually used by the NRC Staff to form its conclusions on impacts in the DSEIS.).
166 These include FPL 2017b and Tetra Tech 2016.
167 DSEIS at 3-49.
39 regarding several conclusions in the DSEIS. At the most basic level, unlike conclusions in the Environmental Report and DSEIS, the expert opinions of Dr. Nuttle and Mr. Wexler provide evidence that ongoing efforts to remediate the hypersaline plume and reduce salinity levels in the cooling canals are not working, will not work, and therefore cannot be relied on to conclude that environmental impacts associated with the cooling canal system will be SMALL or insignificant during the subsequent license renewal period.
Dr. Fourqureans report, which updates an earlier submission in this proceeding, describes ongoing impacts to seagrass communities adjacent to the cooling canal system. Since his previous submission, he has analyzed seagrass samples for indications of excess phosphorous loadings in surface waters adjacent to the cooling canal system. He only recently presented these results of his seagrass in April 2019. The results show measurable impacts on seagrass that are likely caused by operation of the cooling canal system. The data indicate signs of abnormally high phosphorus levels in areas that hydrological models indicate are impacted by discharges from the cooling canal system via the groundwater pathway. The continued loading of phosphorus leads to an imbalance of nutrients and the eventual death of seagrass, which is a foundation species in essential fish habitat for Biscayne Bay. These new findings contradict conclusions in the DSEIS that impacts on adjacent water bodies have been slight.168 Thus, these opinions, jointly or severally, are materially different than information that was previously available. Each opinion presents information that was not previously available and addresses information in the DSEIS that is materially different from what Applicant presented in the Environmental Report.
168 DSEIS at 4-23.
40
- c. Timely Submitted. 10 C.F.R. § 2.309(c)(iii).
Intervenors are submitting this new information pursuant to the April 2, 2019 Scheduling Order. It is therefore timely for this reason alone. The expert opinions are also timely because they rely on the new data described above, which for reasons explained there, are being brought forward in a timely manner.
D. NEW CONTENTION 6-E: The DSEIS Fails to Take the Requisite Hard Look at the Impacts on Surface Waters via the Groundwater Pathway.
- 1. Statement of the issue of law or fact to be raised or controverted (10 C.F.R.
§ 2.309(f)(1)(i).
The DSEIS violates NEPAs requirement to take a hard look at the environmental impacts of the proposed action because its evaluation of impacts on nearby surface waters via the groundwater pathway is inadequate. The DSEISs conclusion that these impacts will be SMALL is unsupported by and contrary to the evidence and unlawfully substitutes the existence of permit requirements and oversite for a proper NEPA analysis.
- 2. Brief explanation of the basis for the contention. 10 C.F.R. § 2.309(f)(ii).
When conducting a NEPA analysis of a models outputs, an agency must take into consideration the environmental implications and impacts of inaccurate results. If an agency bases its decision on an unreliable model that has shown to provide insufficient or incorrect information, then they have failed to employ the required hard look imposed by NEPA.169 The DSEIS fails to comply with NEPAs hard look requirement for precisely this reason. In section 4.5.1.1 of the DSEIS, the NRC Staff conclude that impacts on adjacent surface water bodies via the groundwater pathway from the cooling canal system during the subsequent license renewal term would be SMALL, and therefore new information identified by 169 Lands Council v. Powell, 395 F.3d 1019, 1035 (9th Cir. 2005).
41 the NRC staff is not significant.170 In reaching this conclusion, however, the NRC staff relied on the FDEPs and DERMs existing requirements and their continuing oversight of FPLs site remediation efforts,171 and this reliance is misplaced.
The DSEIS recognizes that Applicants efforts to reduce salinity in the cooling canal system through the addition of water pumped from the Upper Floridan aquifer have been unsuccessful.172 This effort to freshen the cooling canal system did not achieve the 34 PSU annual average as predicted by Applicants modelers. Those modelers, according to the DSEIS, suggested that more favorable climatic conditions should help to achieve the desired salinity.173 But this statement is not supported by any effort to determine what climatic conditions would be necessary to achieve the salinity target, or whether these necessary climatic conditions will or are likely to exist during the subsequent license renewal period. Without this necessary information, the DSEIS is simply assuming that continued oversight by state and county regulators will produce a solution to address environmental impacts from the cooling canal system. But the mere existence of permit requirements overseen by another... state permitting authority cannot substitute for a proper NEPA analysis.174 The new reports and expert opinions provided by Intervenors in support of Contention 6-E, on the other hand, further demonstrate that Applicants remedial and freshening efforts are not sufficient to address environmental impacts from the cooling canal system now or in the 170 DSEIS at 4-23.
171 Id.
172 Id. at 3-49.
173 Id.
174 Sierra Club v. Fed. Energy Regulatory Comm'n, 867 F.3d 1357, 1375 (D.C. Cir. 2017) (citing Calvert Cliffs Coordinating Comm. V. Atomic Energy Commn, 449 F.2d 1109, 1122-23 (D.C. Cir. 1971).
42 future.175 Further, recent data demonstrates that the cooling canal system has degraded nearby surface waters and placed vital seagrass communities in jeopardy from phosphorus loadings attributable to the cooling canal system.176 This is in contrast to information presented in the DSEIS indicating otherwise.177
- 3. The issue raised in the contention is within the scope of the proceeding. 10 C.F.R. § 2.309(f)(iii).
NRC regulations broadly divide the scope of a license renewal proceeding into (1) safety/aging management issues, and (2) environmental impacts. The scope of the required environmental review is specifically established by 10 C.F.R. Part 51 and the GEIS for license renewals.178 The GSEIS generically resolves certain Category 1 issues, such that they are beyond the scope of a license renewal hearing.179 Contention 6-E is within the scope of the proceeding. It challenges conclusions about environmental impacts that are not supported by the evidence in the DSEIS. Further, it addresses a new site-specific issue that has been identified [by the NRC Staff] for Turkey Point,180 and therefore the Category 1 prohibition does not apply.
- 4. The issue raised in the contention is material to the findings the NRC must make to support the action involved in the proceeding. 10 C.F.R. § 2.309(f)(1)(iv).
A contention is material to the NRCs duty to make environmental findings if the issue of law or fact it raises is of possible significance to the result of the proceeding. This means that 175 See Section IV.B, above.
176 Id.
177 DSEIS at 4-23.
178 Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee), LBP-06-20, 64 NRC 131, 148-49 (2006).
179 Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 15 (July 19, 2001); see 10 C.F.R. § 51.53(c)(3)(i).
180 DSEIS at 4-23 (describing this as a new site-specific issue that has been identified for Turkey Point).
43 there should be some significant link between the claimed deficiency and either the health and safety of the public or the environment.181 The issue raised in this contention relates directly to the NRCs role in protecting public health and safety and the environment. NEPA imposes requirements on the NRC to ensure environmental protection. The failure to comply with these requirements is material to the findings NRC must make to support relicensing.
- 5. Provide a concise statement of the alleged facts or expert opinions which support the petitioners position on the issue and on which the petitioner intends to rely at the hearing, together with references to the specific sources and documents on which the petitioner intends to rely to support its position on the issue. 10 C.F.R.
§ 2.309(f)(1)(v).
See section IV.B, above.
- 6. Provide sufficient information to show that a genuine dispute exists on a material issue of law or fact. This information must include references to specific portions of the application that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioners belief. 10 C.F.R. § 2.309(f)(1)(vi).
Intervenors dispute the NRC Staffs conclusion in section 4.5.1.1 of the DSEIS that impacts on adjacent surface water bodies via the groundwater pathway from the cooling canal system during the subsequent license renewal term would be SMALL.182 The NRC Staffs conclusion presumes that compliance with the FDEP Consent Order and the Miami-Dade Consent Agreement will effectively manage salinity conditions in the cooling canal system and therefore prevent adverse impacts on adjacent surface water bodies. The Staffs conclusion, however, is based on numerical modeling that has proven unreliable and 181 In re Entergy Nuclear Vt. Yankee L.L.C. & Entergy Nuclear Operations, 60 N.R.C. 548, 556, 2004 NRC LEXIS 247, *16-17 (N.R.C. November 22, 2004).
182 DSEIS at 4-23.
44 unsupported assertions by Applicants modelers that more favorable climatic conditions will resolve the problem.183 Intervenors offer evidence and expert opinions that Applicants ongoing efforts to manage salinity issues are not, and will not, reach required target salinity levels or effectively remediate the hypersaline plume.184 The DSEIS also describes the existing impacts on adjacent waterbodies via the groundwater pathway as minimal or undetected.185 Intervenors offer Dr. Fourqureans report, which demonstrates impacts on water quality in Biscayne Bay via the groundwater pathway are impacting seagrass communities and that continued operation of the cooling canal system is likely to violate narrative water quality standards.186 Intervenors have, therefore, provided sufficient information to establish a genuine dispute exists on a material issue of fact or law. The environmental impacts from continued operation of Units 3 and 4 during the subsequent licensing period will not result in SMALL impacts.
E. New Contention 7-E: The DSEIS Fails to Take the Requisite Hard Look at Impacts to Groundwater Quality.
- 1. Statement of the issue of law or fact to be raised or controverted (10 C.F.R.
§ 2.309(f)(1)(i).
The DSEIS violates NEPAs requirement to take a hard look at the environmental impacts of the proposed action because its evaluation of groundwater quality degradation is inadequate. Contention 7-E is limited to those conclusions regarding the new information that the NRC Staff identified and evaluated in the DSEIS.187 The Staff concluded that site-specific 183 DSEIS at 3-49.
184 See Section IV.B, above.
185 DSEIS at 4-23.
186 See Section IV.B.5, above.
187 DSEIS at 4-2.
45 impacts for this issue at the Turkey point site are MODERATE for current operations, but will be SMALL during the subsequent license renewal term.188 These conclusions doo not satisfy the hard look requirement because they are unsupported by the evidence, contrary to the evidence including evidence provided by Intervenors, and unlawfully substitute the existence of state and county requirements and oversite for a proper NEPA analysis.
- 2. Brief explanation of the basis for the contention. 10 C.F.R. § 2.309(f)(ii).
NEPA and NRC regulations require a hard look at the environmental consequences of the proposed action.189 Under the NRCs NEPA regulations, this analysis may rely on conclusions as amplified by the information in the GEIS for issues designated as Category 1.190 There is no NRC regulation, however, that prohibits Intervenors from challenging new information identified and evaluated by the NRC Staff in a DSEIS with respect to a Category 1 issue.
Here, the DSEIS provides in section 4.5.1.2 that the NRC staff has concluded that the site-specific impacts for [groundwater quality impacts] at the Turkey point site are MODERATE for current operations, but will be SMALL during the subsequent license renewal term as a result of ongoing remediation measures and State and county oversight, now in place at Turkey point.191 The NRC Staffs conclusion that impacts to groundwater will be SMALL during the subsequent license renewal term is not supported by the facts and is flawed for the reasons described in Section IV.D.2, above. Because the remediation/freshening efforts are not working, and are not expected to work in the future, the impacts to groundwater will be either 188 DSEIS at 4-27.
189 Sierra Club v. Fed. Energy Regulatory Commn, 867 F.3d 1357, 1367 (D.C. Cir. 2017); 40 C.F.R. § 1502.16; 10 C.F.R. 51.71(d).
190 10 C.F.R. § 51.71(d).
191 DSEIS at 4-27.
46 MODERATE or LARGE.
- 3. The issue raised in the contention is within the scope of the proceeding. 10 C.F.R. § 2.309(f)(iii).
NRC regulations broadly divide the scope of a license renewal proceeding into (1) safety/aging management issues, and (2) environmental impacts. The scope of the required environmental review is specifically established by 10 C.F.R. Part 51 and the GEIS for license renewals.192 The GSEIS generically resolves certain Category 1 issues, such that they are beyond the scope of a license renewal hearing.193 Contention 7E is within the scope of the proceeding. It challenges conclusions about environmental impacts that are not supported by the evidence in the DSEIS. Further, it addresses site-specific new and significant information that NRC Staff identified and analyzed on its own accord.
- 4. The issue raised in the contention is material to the findings the NRC must make to support the action involved in the proceeding. 10 C.F.R. § 2.309(f)(1)(iv).
The issue raised in this contention is within the scope of the proceeding for the same reasons as expressed in IV.D.4, above.
- 5. Provide a concise statement of the alleged facts or expert opinions which support the petitioners position on the issue and on which the petitioner intends to rely at the hearing, together with references to the specific sources and documents on which the petitioner intends to rely to support its position on the issue. 10 C.F.R.
§ 2.309(f)(1)(v).
See section IV(B), above.
- 6. Provide sufficient information to show that a genuine dispute exists on a material issue of law or fact. This information must include references to specific portions of the application that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the 192 Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee), LBP-06-20, 64 NRC 131, 148-49 (2006).
193 Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 15 (July 19, 2001); see 10 C.F.R. § 51.53(c)(3)(i).
47 application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioners belief. 10 C.F.R. § 2.309(f)(1)(vi).
Intervenors contest the NRC Staffs conclusion in section 4.5.1.2 of the DSEIS that new and significant information it identified for groundwater quality impacts from the cooling canal system during the subsequent license renewal term would be SMALL.194 The NRC Staff concludes that current impacts are MODERATE, the Staff concluded that impacts will be SMALL during the subsequent license renewal term as result of ongoing remediation measures and State and county oversight, now in place at Turkey Point.195 For the reasons stated in Section IV.D.6 above, including referenced expert opinions, the Staffs conclusion that impacts will be SMALL during the subsequent license renewal period is unsupported by the evidence, is contrary to the evidence including evidence provided by Intervenors, and unlawfully substitutes the existence of state and county requirements and oversite for a proper NEPA analysis.
Intervenors have, therefore, provided sufficient information to establish a genuine dispute exists on a material issue of fact or law. The environmental impacts from continued operation of Units 3 and 4 during the subsequent licensing period will not result in SMALL impacts on groundwater quality.
F. NEW CONTENTION 8-E: The DSEIS Fails to Take the Requisite Hard Look at Cumulative Impacts on Water Resources.
- 1. Statement of the issue of law or fact to be raised or controverted (10 C.F.R.
§ 2.309(f)(1)(i).
The DSEIS violates NEPAs requirement to take a hard look at the cumulative environmental impacts of the proposed subsequent license renewal for water resources. This 194 DSEIS at 4-27.
195 Id.
48 conclusion is unsupported by the evidence, is contrary to the evidence including evidence provided by Intervenors, and unlawfully substitutes the existence of state and county requirements and oversite for a proper NEPA analysis.
- 2. Brief explanation of the basis for the contention. 10 C.F.R. § 2.309(f)(ii).
The DSEIS violates NEPAs requirement to take a hard look at the cumulative environmental impacts with respect to water resources. The evaluation of cumulative impacts is a Category 2 issue that is subject to site-specific analysis. In section 4.16.2.1 of the DSEIS, the NRC Staff concludes that Applicants recovery well system will be successful in retracting the hypersaline plume before the end of the current license period and result in beneficial impacts on groundwater quality within the Biscayne aquifer....196 In addition, the NRC Staff:
expects the continued operation of the freshening system, combined with proper operation and maintenance of the [cooling canal system], will result in no substantial contribution to cumulative impacts on groundwater quality or associated impacts on surface water quality in Biscayne Bay during the subsequent license renewal period.197 The basis for this Contention mirror those in Sections IV.D.2 and IV.E.2, above, which are incorporated here by reference.
- 3. The issue raised in the contention is within the scope of the proceeding. 10 C.F.R. § 2.309(f)(iii).
NRC regulations broadly divide the scope of a license renewal proceeding into (1) safety/aging management issues, and (2) environmental impacts. The scope of the required environmental review is specifically established by 10 C.F.R. Part 51 and the GEIS for license renewals.198 Contention 8-E is within the scope of the proceeding. It challenges conclusions 196 DSEIS at 4-116 - 117.
197 DSEIS at 4-117.
198 Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee), LBP-06-20, 64 NRC 131, 148-49 (2006).
49 about environmental impacts that are not supported by the evidence in the DSEIS. Further, it addresses a Category 2 issuecumulative impacts.
- 4. The issue raised in the contention is material to the findings the NRC must make to support the action involved in the proceeding. 10 C.F.R. § 2.309(f)(1)(iv).
The issue raised in this contention is within the scope of the proceeding for the same reasons as expressed in IV.D.4, above.
- 5. Provide a concise statement of the alleged facts or expert opinions which support the petitioners position on the issue and on which the petitioner intends to rely at the hearing, together with references to the specific sources and documents on which the petitioner intends to rely to support its position on the issue. 10 C.F.R.
§ 2.309(f)(1)(v).
See section IV.B, above.
- 6. Provide sufficient information to show that a genuine dispute exists on a material issue of law or fact. This information must include references to specific portions of the application that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioners belief. 10 C.F.R. § 2.309(f)(1)(vi).
Intervenors contest the NRC Staffs conclusions in section 4.16.2.1 of the DSEIS regarding cumulative impacts to water resources as referenced in Section IV.F.1, above. These conclusions rely on the success of Applicants remediation and freshening efforts. As discussed above in Section IV.D.6 and IV.E.6, Intervenors have provided evidence and expert opinions contesting the NRC Staffs reliance on Applicants remediation and freshening efforts. This evidence, which Intervenors incorporate here by reference, demonstrate a genuine dispute on a material issue of law or fact regarding the cumulative impacts analysis for water resources. The Staffs analysis is unsupported by the evidence, contrary to the evidence including evidence provided by Intervenors, and unlawfully substitutes the existence of state and county requirements and oversite for a proper NEPA analysis.
50 G. New Contention 9-E: The DSEIS Fails to Take the Requisite Hard Look at Impacts to Groundwater Use Conflicts.
- 1. Statement of the issue of law or fact to be raised or controverted (10 C.F.R.
§ 2.309(f)(1)(i).
The DSEIS violates NEPAs requirement to take a hard look at the environmental impacts of the proposed action because its evaluation of impacts of groundwater use conflicts is inadequate. This conclusion is unsupported by the evidence, is contrary to the evidence including evidence provided by Intervenors, and unlawfully substitutes the existence of state and county requirements and oversite for a proper NEPA analysis.
- 2. Brief explanation of the basis for the contention. 10 C.F.R. § 2.309(f)(ii).
The DSEIS violates NEPAs requirement to take a hard look at groundwater use conflicts from the proposed subsequent relicensing application.
The DSEIS concludes that these impacts will be SMALL for the Biscayne aquifer and MODERATE for the Upper Floridan aquifer during the subsequent license renewal term.199 This conclusion does not satisfy the hard look requirement because it is unsupported by the evidence, is contrary to the evidence, including evidence provided by Intervenors, and unlawfully substitutes the existence of state and county requirements and oversite for a proper NEPA analysis.
- 3. The issue raised in the contention is within the scope of the proceeding. 10 C.F.R. § 2.309(f)(iii).
NRC regulations broadly divide the scope of a license renewal proceeding into (1) safety/aging management issues, and (2) environmental impacts. The scope of the required environmental review is specifically established by 10 C.F.R. Part 51 and the GEIS for license 199 DSEIS at 4-33.
51 renewals.200 Contention 8E is within the scope of the proceeding. It challenges conclusions about environmental impacts that are not supported by the evidence in the DSEIS. Further, it addresses a Category 2 issuegroundwater use conflicts.
- 4. The issue raised in the contention is material to the findings the NRC must make to support the action involved in the proceeding. 10 C.F.R. § 2.309(f)(1)(iv).
The issue raised in this contention is within the scope of the proceeding for the same reasons as expressed in IV.D.4, above.
- 5. Provide a concise statement of the alleged facts or expert opinions which support the petitioners position on the issue and on which the petitioner intends to rely at the hearing, together with references to the specific sources and documents on which the petitioner intends to rely to support its position on the issue. 10 C.F.R.
§ 2.309(f)(1)(v).
See section IV.B, above.
- 6. Provide sufficient information to show that a genuine dispute exists on a material issue of law or fact. This information must include references to specific portions of the application that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioners belief. 10 C.F.R. § 2.309(f)(1)(vi).
Intervenors contest the NRC Staffs conclusion in section 4.5.1.2 of the DSEIS that impacts from the proposed subsequent license renewal on groundwater use conflicts will be SMALL with respect to the Biscayne aquifer and MODERATE with respect to the Upper Floridan aquifer.201 These conclusions are based on analyses performed by Applicant suggesting that current and projected groundwater withdrawals associated with [Applicants] operation of its Biscayne aquifer marine well and recovery well systems would be unlikely to have any 200 Entergy Nuclear Vermont Yankee, LLC (Vermont Yankee), LBP-06-20, 64 NRC 131, 148-49 (2006).
201 DSEIS at 4-33.
52 noticeable, adverse impact on any supply wells beyond the confines of the Turkey Point site.202 The Staffs conclusion is based on modeled projections on drawdown impacts and salinity reductions through operation of the recovery well system.203 These, in turn, rely on the presumption that Applicants current groundwater withdrawal rates will remain the same (or lower) and that the ongoing effort to mitigate the hypersaline plume will achieve its objectives.
The DSEIS also relies on an unsubstantiated statement that Applicant does not anticipate the need to withdraw groundwater at a rate exceeding its current permits and/or authorizations during the subsequent license renewal period.204 Intervenors contest this conclusion with evidence demonstrating that current effort to mitigate the hypersaline plume and reduce salinity in the cooling canal system to 34 PSU are not working and are unlikely to work in the future.205 Retraction of the hypersaline plume is not likely to occur without the addition of more wells and increased pumped volumes.206 Existing analyses referenced in the DSEIS are therefore inadequate to support the Staffs conclusions on groundwater use conflicts because the rate of groundwater withdrawal necessary to hit salinity targets and retract the hypersaline plume is substantially higher than evaluated in the DSEIS.207 Thus, Intervenors have provided sufficient information in support of this contention to establish a genuine dispute exists on a material issue of fact or law.
202 DSEIS at 4-32.
203 DSEIS at 4-32.
204 DSEIS at 4-33.
205 See Sections IV.B, above.
206 Wexler Decl. at 2.
207 See Wexler Decl. at 2.
53 CONCLUSION For the foregoing reasons, Intervenors have demonstrated that their updated contentions and new contention are admissible, and they are entitled to a hearing on these contentions.
Respectfully submitted,
/s/ Ken Rumelt Kenneth J. Rumelt Environmental & Natural Resources Law Clinic Vermont Law School 164 Chelsea Street, PO Box 96 South Royalton, VT 05068 802-831-1031 krumelt@vermontlaw.edu Counsel for Friends of the Earth
/s/ Geoffrey Fettus Geoffrey Fettus
/s/ Caroline Reiser Caroline Reiser Natural Resources Defense Council 1152 15th Street, NW, Suite 300 Washington, DC 20005 202-289-2371 gfettus@nrdc.org creiser@nrdc.org Counsel for Natural Resources Defense Council
/s/ Richard Ayres Richard E. Ayres Ayres Law Group 2923 Foxhall Road, N.W.
Washington, D.C. 20016 202-722-6930 ayresr@ayreslawgroup.com Counsel for Friends of the Earth
/s/ Kelly Cox Kelly Cox Miami Waterkeeper 2103 Coral Way 2nd Floor Miami, FL 33145 305-905-0856 kelly@miamiwaterkeeper.org Counsel for Miami Waterkeeper June 24, 2019
54 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of:
FLORIDA POWER & LIGHT COMPANY (Turkey Point Nuclear Generating Station, Unit Nos. 3 and 4)
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Docket No. 50-250-SLR Docket No. 50-251-SLR June 24, 2019 CERTIFICATE OF SERVICE I certify that on June 24, 2019, I posted copies of the foregoing NATURAL RESOURCES DEFENSE COUNCILS, FRIENDS OF THE EARTHS, AND MIAMI WATERKEEPERS MOTION TO MIGRATE CONTENTIONS & ADMIT NEW CONTENTIONS IN RESPONSE TO NRC STAFFS SUPPLEMENTAL DRAFT ENVIRONMENTAL IMPACT STATEMENT on NRCs Electronic Information Exchange System.
/signed electronically by/ Kenneth Rumelt