ML19322D623
| ML19322D623 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 11/18/2019 |
| From: | Ayres R, Cox K, Fettus G, Reiser C, Rumelt K Ayres Law Group, Friends of the Earth, Miami Waterkeeper, Natural Resources Defense Council, Vermont Law School |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| 50-250-SLR, 50-251-SLR, ASLBP 18-957-01-SLR-BD01, LBP-19-08, RAS 55418 | |
| Download: ML19322D623 (28) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
)
In the Matter of ) Docket Nos. 50-250 & 50-251
)
FLORIDA POWER & LIGHT COMPANY ) ASLBP No. 18-957-01-SLR-DB01
)
(Turkey Point Nuclear Generating Station, ) November 18, 2019 Unit Nos. 3 and 4) )
)
(Subsequent License Renewal Application) )
FRIENDS OF THE EARTHS, NATURAL RESOURCES DEFENSE COUNCILS, AND MIAMI WATERKEEPERS PETITION FOR REVIEW OF THE ATOMIC SAFETY AND LICENSING BOARDS RULING IN LBP-19-08 Richard E. Ayres Geoffrey Fettus Ayres Law Group Caroline Reiser 2923 Foxhall Road, N.W. Natural Resources Defense Council Washington, D.C. 20016 1152 15th Street, NW, Suite 300 202-722-6930 Washington, DC 20005 ayresr@ayreslawgroup.com 202-289-2371 Counsel for Friends of the Earth gfettus@nrdc.org creiser@nrdc.org Counsel for Natural Resources Defense Council Kenneth J. Rumelt Kelly Cox Environmental Advocacy Clinic Miami Waterkeeper Vermont Law School 2103 Coral Way 2nd Floor 164 Chelsea Street, PO Box 96 Miami, FL 33145 South Royalton, VT 05068 305-905-0856 802-831-1031 kelly@miamiwaterkeeper.org krumelt@vermontlaw.edu Counsel for Miami Waterkeeper Counsel for Friends of the Earth November 18, 2019
TABLE OF CONTENTS I. PROCEDURAL BACKGROUND ......................................................................................... 1 II. STANDARD OF REVIEW .................................................................................................... 2 III. ARGUMENT .......................................................................................................................... 2 A. The Board Erred in Denying Contention 5-Eb. .................................................................... 3 B. The Board Erred in Denying Contentions 6-E through 9-E. ................................................ 6
- 1. The Board ignored Applicants admission at oral argument that the 2014 model was based on particularly wet weather data and produced skewed results. ...................... 7
- 2. The Board arbitrarily disregarded Petitioners expert reports and evidence of Applicants failure to lower salinity in the CCS to 34 PSU.............................................. 9
- 3. The Board ignored Petitioners evidence of significant flaws in NRC Staffs analysis of Applicants groundwater remediation efforts. ................................................................ 14
- 4. The Board committed reversible error to the extent it relied on the existence of state and county enforcement and oversight. ................................................................................. 16 C. The Board Erred in its Ruling Regarding Contention 7-Es Waiver. ................................. 19 IV. THE COMMISSION SHOULD GRANT THIS PETITION FOR REVIEW ...................... 22 V. CONCLUSION ..................................................................................................................... 23 i
TABLE OF AUTHORITIES Judicial Decisions Sierra Club v. Fed. Energy Regulatory Comm'n, 867 F.3d 1357 (D.C. Cir. 2017) 17, 19 NRC Decisions Crow Butte Res., Inc. (License Renewal for In Situ Leach Facility, Crawford, Nebraska),
CLI-09-9, 69 NRC 331 (2009) 2 Powertech (USA), Inc. (Deqey-Burdock In Situ Uranium Recovery Facility),
CLI-16-20, 84 NRC 219, 228 (2016). 2 Paina Hawaii, LLC (Materials License Application), CLI-10-18, 72 NRC 56 (2010) 2 Gulf States Util. Co. (River Bend Station, Unit 1), CLI-94-10, 40 NRC 43 (1994) 7 La. Energy Servs., L.P. (National Enrichment Facility), CLI-04-35, 60 NRC 619 (2004) 7 USEC, Inc. (American Centrifuge Plant), LBP-05-28, 62 NRC 585 (2005) 7 Luminant Generation Co. (Comanche Peak Nuclear Power Plant, Units 3 & 4), LBP-09-17, 70 NRC 311 (2009) 7 Entergy Nuclear Vt. Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc.
(Pilgrim Nuclear Power Station), CLI-07-3, 65 NRC 13, slip op. (2007) (Vermont Yankee/Pilgrim) 20 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3),
CLI-05-24, 62 NRC 551 (2005) 20 Regulations 10 C.F.R. Pt. 51, Subpt. A, App. B 22 10 C.F.R. § 2.341 22, 23 ii
ARGUMENT Pursuant to 10 C.F.R. § 2.341, Friends of the Earth, Natural Resources Defense Council, and Miami Waterkeeper (together Petitioners) seek review of the Atomic Safety and Licensing Boards (Board) decision in LBP-19-08. 1 Respectfully, the Nuclear Regulatory Commission (NRC or Commission) should reverse this decision and grant Petitioners a hearing on the merits.
I. PROCEDURAL BACKGROUND On March 2019, the Nuclear Regulatory Commission Staff (NRC Staff or Staff) published the Draft Environmental Impact Statement (DSEIS) for Florida Power & Light Companys (Applicant) Subsequent License Renewal Application (SLRA). 2 On June 24, 2019, Petitioners timely proffered new Contentions based on the DSEIS 3 and petitioned for a rule waiver. 4 After the parties briefed the merits of the Contentions, the Board scheduled oral argument on the matter for September 9, 2019. 5 Following oral argument, 6 the Board denied 1
Memorandum and Order (Denying Requests for Rule Waiver and Admission of Newly Proffered Contentions, and Terminating Proceedings), LPB-19-08, __ NRC __ (Oct. 24, 2019) (slip op.) (hereinafter Dismissal).
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).
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[Petitioners] Motion to Migrate Contentions & Admit New Contentions in Response to NRC Staffs [DSEIS]
(June 24, 2019) and [Petitioners] Amended Motion to Migrate Contentions & Admit New Contentions in Response to NRC Staffs [DSEIS] (June 28, 2019) (ML19179A316) (hereinafter Motion).
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[Petitioners] 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) at 6 (unnumbered) (ML19175A311).
5 Order Scheduling Oral Argument (Aug. 9, 2019) (ML19221B552) (hereinafter Scheduling Order).
6 Official Transcript of Proceedings, [Applicant] Turkey Point Nuclear Generating Units 3 and 4 (Sept. 9, 2019)
(ML19254E569) (hereinafter Tr.).
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Petitioners request for a rule waiver and ruled inadmissible each Contention, thereby terminating the proceeding. 7 II. STANDARD OF REVIEW The Commission defers to a Boards rulings on standing and contention admissibility in the absence of clear error or abuse of discretion. 8 While the Commissions review of factual findings is deferential, it will correct findings when there is strong reason to believe that a board has overlooked or misunderstood important evidence. 9 The Commission reviews legal questions de novo. 10 III. ARGUMENT The Board arbitrarily overlooked, misunderstood, or refused to consider important information and applied incorrect legal standards in denying Petitioners Contentions. Petitioners satisfied each of the NRCs requirements with respect to the six Contentions presented. Thus, the Board erroneously denied admission to the Contentions, and the Commission should reverse. 11 7
Dismissal at 41.
8 Crow Butte Res., Inc. (License Renewal for In Situ Leach Facility, Crawford, Nebraska), CLI-09-9, 69 NRC 331, 336 (2009).
9 Powertech (USA), Inc. (Deqey-Burdock In Situ Uranium Recovery Facility), CLI-16-20, 84 NRC 219, 228 (2016).
10 Paina Hawaii, LLC (Materials License Application), CLI-10-18, 72 NRC 56, 73 (2010).
11 Petitioners are not appealing the Boards decision as to Contention 1-E(b). While Petitioners believe the Board made clear errors in denying admission to this Contention, the Final Supplemental Environmental Impact Statement (FSEIS) addresses Petitioners concerns such that the FSEIS likely would moot this Contention regardless.
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A. The Board Erred in Denying Contention 5-Eb.
Contention 5-Eb states that the DSEIS deficiently analyzed potential impacts of ammonia on threatened and endangered species and their critical habitat. 12 The Boards denial of Contention 5-Eb is in clear error and an abuse of discretion because it overlooked relevant evidence and instead relied on erroneous and immaterial evidence.
The Board rationalized that the DSEIS analyzed ammonia impacts based on which threatened and endangered species might conceivably be exposed 13 to ammonia but ignored Petitioners evidence that the American crocodile might be exposed. 14 Petitioners provided evidence that (1) Turkey Points cooling canal system (CCS) is a contributing factor to levels of ammonia above regulatory limits in multiple locations and (2) the American crocodile nests in the same location as those high levels of ammonia. Petitioners provided that the DSEIS acknowledged that there are levels of ammonia around Turkey Point above water quality standards and that there has been the suggestion of a statistically increasing trend of ammonia in the CCS.15 Petitioners next pointed to a document cited by the DSEIS that included specific test 12 Motion at 21-25 and Reply Reply in Support of Motion to Migrate Contentions & Admit New Contentions in Response to NRC Staffs [DSEIS] (July 26, 2019) at 7-9 (ML19207C092) (hereinafter Reply).
13 Dismissal at 14.
14 See e.g., id. at 15 n.25 (because the ammonia concentration in the analyzed environments is less than the Miami-Dade water quality standard, the NRC Staff assumes that there would be no lethal effects or impairments to growth, survival, or reproduction of endangered or threatened species. [Petitioners] offer no facts or expert opinions that impugn the NRC Staffs assumption.).
15 Reply at 7 n.31 citing DSEIS at 3-52 (citing Letter from W. Mayorga, DERM, to M. Raffenberg, FPL (July 10, 2018)) and Tr. at 339.
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results of water quality showing high ammonia levels in specific locations. 16 Petitioners then showed how these specific locations of high ammonia are also documented nesting sites for the American crocodile. 17 Thus, Petitioners provided ample evidence that the American crocodile might conceivably be exposed to ammonia and that the DSEIS needed to consider it.
In attempting to reconcile why the DSEIS considered impacts of ammonia on the West Indian manatee and not the American crocodile, the Board explained that:
[D]ifferent analyses for different species based on different circumstances do not perforce equate to inadequate analyses. Rather, case law supports the conclusion that the NRC Staff acts reasonably . . .
in analyzing the impact of ammonia in proportion to its potential impacts on threatened and endangered species and their habitats. 18 Petitioners do not contest this, and in fact in Contention 5-E(b) asked for impacts of ammonia to be analyzed in proportion to its potential impacts on specific species. 19 It is backwards then for the Board to fault Contention 5-E(b) because the so-called sole basis for the Contention is that the DSEIS includes a more thorough analysis for the West Indian manatee than for other threatened and endangered species. 20 If the rule is that an issue should be analyzed in proportion to its potential impacts, then the DSEIS should include a more thorough analysis for whichever species are most likely to be impacted by ammoniaand there is 16 Tr. at 353 (describing document FPL-2017c, page 67, Table 6 title Ammonia in Surface Waters in which multiple lines between 99 and 110 documenting samples taken at locations TPS-WC7 and TPS-WC8 are high in ammonia and low in dissolved oxygen).
17 Reply at 9 and Tr. at 353 (describing how the map in Figure 12 from the Biological Assessment at page 28 titled Locations of Crocodile Nests in the Turkey Point Cooling Canal System shows American crocodile nests in the same locations as water sample locations TPS-WC7 and TPS-WC8, which had the high ammonia levels).
18 Dismissal at 15 (emphasis added).
19 Reply at 9.
20 Dismissal at 15.
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significant evidence in the record that the American crocodile is more likely to be impacted by ammonia than the West Indian manatee. The Board explained that the stagnant or dead-end canals where the elevated ammonia concentrations are located do not provide preferred habitat for manatees and therefore there is a very low likelihood of manatees being exposed to contaminants associated with the CCS, including ammonia. . . 21 On the other hand, Petitioners offered all of the evidence above that there is a high likelihood of American crocodiles being exposed to ammonia because crocodiles nest in locations with high ammonia concentrations. The NRC Staff therefore did not act reasonably in its analysis of ammonia impacts on species because it failed to analyze the issue in proportion to the potential impacts.
Yet the Board ignored all of this evidence and instead focused on aspects of the DSEIS that are immaterial to the admissibility of Contention 5-Eb. The Board stated how the DSEIS generally discussed the environment at the Turkey Point facility and the role ammonia might play in that environment, 22 yet somehow the Board did not address any of the details Petitioners provided on ammonia levels above water quality standards in crocodile habitat. The Board also cited multiple parts of the DSEIS that do not even mention ammonia to support its conclusion that the NRC Staff also analyzed the impact of the CCS, including its ammonia content. 23 21 Id. at 14-15 (internal citations omitted).
22 Id. at 12-14.
23 See id. at 15.
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The Board abused its discretion by overlooking relevant evidence Petitioners offered and instead basing its decision on erroneous and immaterial evidence. The Commission should reverse the Boards Order and admit Contention 5-Eb.
B. The Board Erred in Denying Contentions 6-E through 9-E.
In Contentions 6-E through 9-E, Petitioners argued that the DSEIS failed to take the hard look required by the National Environmental Policy Act (NEPA) at the environmental impacts of continuing to operate the CCS. The CCS is the source of a hypersaline groundwater plume that violates water quality standards beyond the plants boundary. 24 State and county regulators therefore took enforcement actions to require Applicant to reduce the annual average salinity in the CCS to 34 practical salinity units (PSU) and retract the hypersaline plume within 10 years. 25 Thus, Applicant instituted a freshening plan to dilute the CCS by pumping 15 million gallons per day (mgd) of groundwater into the CCS. It designed this plan using a 2014 model that predicted salinity levels would reach 34 PSU within less than a year of commencing the project. 26 Applicant also instituted a plan to retract the hypersaline plume using a series of wells to extract the hypersaline plume water and inject it deep underground. Applicant 24 DSEIS at 3-67.
25 See Florida Department of Environmental Protection, Consent Order, OGC File Number 16-0241 (June 20, 2016)
(ML16216A216); Miami-Dade County, Consent Agreement Concerning Water Quality Impacts Associated with the Cooling Canal System at Turkey Point Power Plant (Oct. 6, 2015) (ML15286A366).
26 Dismissal at 21 (citing DSEIS at 3-49).
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developed this plan using a 2016 model, which assumed Applicants freshening plan maintains CCS salinity at 34 PSU. 27 Petitioners contended the DSEIS erroneously relied on these unproven efforts to manage CCS salinity and retract the hypersaline plume in concluding that impacts will be small on nearby surface waters via the groundwater pathway (Contention 6-E), groundwater quality (Contention 7-E), groundwater use conflicts (Contention 8-E), and cumulative impacts on groundwater resources (Contention 9-E). 28 The Board rejected Contentions 6-E through 9-E in clear error because the Board overlooked, misunderstood, or ignored important information presented in Petitioners Contentions and confirmed in these proceedings.
- 1. The Board ignored Applicants admission at oral argument that the 2014 model was based on particularly wet weather data and produced skewed results.
The Board committed clear error because it overlooked, misunderstood, or ignored important information that established Petitioners genuine dispute with the DSEIS conclusions on impacts from the CCS. 29 The DSEIS relied on Applicants freshening plan for the CCS that 27 Decl. of E.J. Wexler in Support of [Petitioners] (Jun. 28, 2019) (ML19179A314) at 4 (hereinafter Wexler Dec.); Reply at 14-15; see also, Tr. at 430:12-18.
28 See, e.g., Motion at 32 n.144 (citing the NRC Staffs conclusions on impacts on adjacent water bodies via the groundwater pathway (DSEIS at 4-23), impacts on groundwater quality (DSEIS at 4-27), and cumulative impacts on groundwater resources (DSEIS at 4-117).
29 Gulf States Util. Co. (River Bend Station, Unit 1), CLI-94-10, 40 NRC 43, 51 (1994) (quoting Final Rule, Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,171 (Aug. 11, 1989)); see also La. Energy Servs., L.P. (National Enrichment Facility), CLI-04-35, 60 NRC 619, 623 (2004); USEC, Inc. (American Centrifuge Plant), LBP-05-28, 62 NRC 585, 596-97 (2005); Luminant Generation Co. (Comanche Peak Nuclear Power Plant, Units 3 & 4), LBP-09-17, 70 NRC 311, 329 (2009).
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is based on the 2014 model that predicted decreasing salinity levels in the CCS. 30 At oral argument, however, counsel for Applicant confirmed the 2014 model that predicted decreasing salinity levels in the CCS was unreliable because it was based on a particularly wet year of weather data that skewed its predictions. 31 Counsel had to dispel any notion that that specific model, the 2014 one, really is still even relevant . . . the model has been subsequently updated and recalibrated. 32 Apparently, the recalibrated model encompasses a much broader range of hydrologic conditions, including drier conditions. 33 These are the same less favorable climatic conditions referenced in the DSEIS that Petitioners pointed to in support of their Contentions. 34 Counsel also referenced Applicants public comments on the DSEIS, 35 which explain:
The updated modeling indicates a wider range of evaporative conditions exist, particularly during the dry seasons, which exceed 14 mgd and suggest that when such drier conditions occur, more freshening water or longer timeframes will be needed to offset the drought related evaporative losses from the CCS. 36 Counsels statements confirm: (1) the 2014 model was unreliable because it failed to account for less favorable climatic conditions in predicting how salinity levels will change in the 30 DSEIS at 3-49.
31 Tr. at 428:8-15.
32 Tr. at 429:4-7. Counsel also testified that Applicant included this information in its publicly available DSEIS comments. These comments, however, did not provide a copy, reference, or weblink to the refined model that would allow the Staff or the public an opportunity to review the model or its results. [Applicants] Comments Regarding the Turkey Point Nuclear Generating Unit Nos. 3 and 4 Subsequent License Renewal Draft Supplement 5 Generic Environmental Impact Statement (May 20, 2019) (ML19141A047) (hereinafter Applicants Comments).
33 Tr. at 428:16-18.
34 Motion at 41.
35 Tr. at 428:16-429:3 (referencing ML19141A047).
36 Applicants Comments (attachment at 9) (emphasis added). None of this information appears in the DSEIS despite its obvious importance. Nor was this refined model otherwise made available or referenced in this proceeding before oral argument.
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CCS; 37 (2) the DSEIS conclusions on impacts from the CCS were based on this unreliable model that produced skewed results; 38 (3) the NRC Staff never took a hard look at the effect of less favorable climatic conditions on Applicants CCS freshening plan; 39 and (4) Applicants current plan will not succeed unless more favorable climatic conditions return for good. 40 Thus, the Board committed clear error in denying Contentions 6E through 9E by overlooking or ignoring Counsels confirmation that DSEIS conclusions about impacts from Applicants CCS were based on a flawed assessment of Applicants freshening effort.
- 2. The Board arbitrarily disregarded Petitioners expert reports and evidence of Applicants failure to lower salinity in the CCS to 34 PSU.
Petitioners supported their Contentions with evidence from the DSEIS and expert reports, yet the Board arbitrarily disregarded this evidence to decide erroneously that Petitioners failed to support their contentions and establish a genuine dispute. As indicated in the DSEIS, instead of the CCS salinity levels reaching 34 PSU as predicted by the 2014 model, Applicants freshening efforts yielded an average salinity concentration of 64.9 PSU. 41 The DSEIS discusses this discrepancy as follows: Comparing CCS data and model results, the [Applicants] modelers concluded that during this period (most of which occurred in the dry season), evaporation rates exceeded precipitations rates. 42 Therefore, [t]he modelers anticipate that under more favorable 37 See Tr. at 428:16-18; 429:4-7.
38 See Tr. at 428:8-15.
39 See DSEIS at 3-49.
40 See Applicants Comments (attachment at 9).
41 Dismissal at 21 (citing DSEIS at 3-49).
42 Id.
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climatic conditions (e.g., less severe dry seasons), the addition of . . . water should help to reduce CCS water salinities to 34 PSU. 43 In their Contentions, Petitioners argued the 2014 model was unreliable since there was no 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. 44 Petitioners also offered the expert opinion of Dr. William Nuttle who, based on a recent study, opined that more favorable climatic conditions are unlikely to occur. 45 Consistent with Dr. Nuttles opinion, the DSEIS states that the average annual temperature in South Florida is projected to increase by up to 3.5 degrees by 2050. 46 Petitioners Contentions showed that in light of the climate disruption already being experienced in Florida, the DSEISs failure to analyze less favorable climate conditions fails NEPAs hard look test.
The Board recognized these issues were in dispute and asked the parties to address several questions on these points during oral argument:
In determining that CCS salinity levels should reach the required level of 34 [PSU] within or close to the designated [subsequent relicensing]
period, the NRC Staff relied on continued actions by [Applicant] . . .
and regulatory oversight by Florida. DSEIS at 3-49. How is that determination reconciled with [Applicants] freshening experience in 43 Id.
44 See, e.g., Motion at 41.
45 Reply at 17 (citing Motion at 28 and Expert Report of William Nuttle, Ph.D (Jun. 24, 2019) (ML19179A315) at 8).
46 Scheduling Order at 4 (citing DSEIS at 4-117).
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2017, which only reduce the PSU level to 64.9 rather than to the expected 35? 47 The Board further asked what climatic assumptions were used in the freshening model, what steps the NRC Staff took to ensure assumptions were reasonable, and where one could look for the Staffs confirmation of the models reasonableness in the DSEIS. 48 Yet the Board ignored these issues and evidence to hold that Petitioners based Contentions 6-E through 9-E on an erroneous view of the DSEISs analysis. 49 First, the Board rejected Petitioners characterization of Applicants freshening efforts as unsuccessful, finding instead that the DSEIS showed Applicant achieved a measure of success. 50 But the Boards focus on how to characterize Applicants freshening results does not cure those flaws that Petitioners identified in the DSEIS. Whether couched as unsuccessful, a measure of success, or perhaps as a measure of failure, the facts still demonstrate a significant gap in the DSEIS analysis insofar as it fails to take the requisite hard look at the impact of less favorable climatic conditions. The Boards finding that Applicant was able to reduce salinity values compared to historically higher levels 51 does not address this gap either.
Next, the Board held that Applicants inability to reduce salinity levels in the CCS as predicted does not raise a credible inference that [Applicants] model is fatally flawed or that its 47 Scheduling Order at 4.
48 Id.
49 Dismissal at 23.
50 Id. at 22.
51 Id. at 22 n.30.
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freshening efforts are doomed to failure. 52 This conclusion is clearly erroneous. The Board found support for this conclusion in Applicants Consent Order with Florida, which provides an extended deadline for Applicant to reach the 34 PSU target and that the NRC Staff independent[ly] assess[ed] the reasonableness of the model underlying the freshening plan upon which that deadline is based. 53 However, Applicants freshening model is no more or less reliable simply because Florida granted Applicant additional time to meet the 34 PSU target or because the Staff assessed the 2014 models reasonableness. Neither of these facts reconcile the gap between the anticipated results of freshening the CCS within one year (34 PSU) and Applicants actual experience (64.9 PSU).
The Boards reliance on the Staffs review of the 2014 model is similarly unavailing.
The Board held a single passage from the DSEIS supports the conclusion that the NRC Staff independently assessed the reasonableness of [Applicants] modeling. 54 But according to this passage, the NRC Staff never reconciled the actual effect of less favorable climatic conditions (64.9 PSU) with the model-derived predictions (34 PSU). 55 The DSEIS passage does not mention or even reference the 2017 salinity results or climatic conditions; it only references information from 2012 and 2014, i.e., before Applicant commenced its freshening plan. Thus, the NRC Staff never considered the effect of less favorable climatic conditions on impacts from the CCS. Indeed, statements by Applicants counsel at oral argument dispel any conceivable 52 Id. at 22.
53 Id. at 22 n.31.
54 Id. at 20.
55 See id. at 21 (citing DSEIS at 3-49).
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notion that the Boards findings are correct. The deadline in the Consent Order with Florida reflects the refined model described by Applicants counsel, not the skewed 2014 version that Staff assessed in the DSEIS. 56 Finally, the Board rejected the statement about more favorable climatic conditions as support for Petitioners Contentions, holding that the DSEIS does not indicate that [Applicants 2014] model relies on more favorable climatic conditions as an essential assumption for achieving a CCS salinity of 34 PSU. . . . 57 The 2014 model merely discusses the observed effects of drier conditions, and the anticipated effects of less severe dry seasons, on the model predictions and results. 58 But these statements do not support the Boards conclusion; rather, they drive home Petitioners point by recognizing two important facts: (1) that unfavorable climatic conditions affected the 2014 model predictions and results, and (2) that the DSEIS never reconciled the 2014 model in light of Applicants 2017 salinity results.
In short, Petitioners presented more than sufficient evidence to show that a genuine dispute exists over the effectiveness of Applicants remediation efforts for decreasing salinity in the CCS and associated impacts on the groundwater pathway (Contention 6-E), groundwater quality (Contention 7-E), groundwater use conflicts (Contention 8-E), and cumulative impacts on groundwater resources (Contention 9-E). NRC regulations therefore require that the Board 56 Tr. at 428:21-25.
57 Dismissal at 22.
58 Id. at 22-23.
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authorize a hearing on these issues. The Board committed reversible error when it overlooked or misunderstood the important evidence provided in Petitioners Contentions.
- 3. The Board ignored Petitioners evidence of significant flaws in NRC Staffs analysis of Applicants groundwater remediation efforts.
The Board erroneously rejected Petitioners Contentions related to Applicants effort to retract the hypersaline plume, which stretches beyond Turkey Point and is harming ground and surfacewater resources in south Florida. The Board claimed that Petitioners failed to point to specific evidence and therefore offered no support for the Contentions. 59 In fact, Petitioners presented substantial evidence, which the Board overlooked, ignored, or refused to consider.
While the Board recognized Petitioners Motion included a supposedly lengthy five-page section of expert opinions and reports, it held (incorrectly) that this information failed to satisfy the NRCs admissibility standards. 60 Those standards require a concise statement of the alleged facts or expert opinions that support the contention, along with references to the specific sources and documents. 61 The Board erred because this five-page section of the Motion contained exactly what the rules require. The section includes numbered headings for each of Petitioners proffered experts. Under each experts heading, there is a bulleted list of their opinions. Each bulleted expert opinion in turn cites specific pages of that experts report where 59 Id. at 23.
60 Id. at 32 n.41.
61 Id.
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further support for the opinion can be found. 62The Boards decision to ignore this evidence that Petitioners presented was an abuse of discretion.
This five-page section included the expert opinion of Mr. E.J. Wexler with corresponding references to his report. Mr. Wexler, who reviewed Applicants efforts to retract the hypersaline plume, identified serious flaws in Applicants modeling that were especially critical in light of Applicants failure to reduce salinity levels to 34 PSU as predicted. 63 In particular, Applicants modeling assumed that the CCS would be maintained at 34 PSU for the duration of the recovery period, 64 a fact confirmed at oral argument. 65 Since CCS salinity is the key driver for Applicants remediation of the hypersaline plume, flaws identified in Applicants freshening model carry over to Applicants predictions for retracting the hypersaline plume. Mr.
Wexler then ran the same 2016 plume retraction model assuming a salinity level of 60 PSU (4.9 PSU less than the 2017 observed levels). 66 The results showed that after ten years of pumping, the hypersaline plume would continue to extend more than two miles (12,000 feet) west of the CCS boundary. 67 Mr. Wexler also ran Applicants updated versions of the 2016 model, which 62 Motion at 25-31.
63 Id. at 28.
64 Wexler Decl. at 2.
65 Tr. 421:7-11 (Applicants counsel stating that the 3D solute transport model, thats the groundwater remediation model, essentially does assume a salinity of 34 PSU).
66 Wexler Decl. at 2-3.
67 Id. at 5, Figure 2.
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demonstrated that meeting the 2016 order with [the State] is not achievable with the number of wells and pumping volumes proposed. 68 Mr. Wexlers opinions and underlying report, which the Board improperly ignored, provided the necessary support to show the existence of a genuine issue of material fact for Contentions 6E through 9E. As the Board recognized, the NRC Staff concluded that
[Applicants] groundwater remediation efforts would be successful based on Staffs mere review of (1) [Applicants] groundwater modeling and modeling results; (2) the operation and efficacy of [Applicants] hypersaline groundwater recovery well system; (3) [Applicants]
groundwater monitoring program; and (4) the regulatory enforcement and oversight of Florida and Miami-Dade County. 69 Mr. Wexler demonstrated that the first three aspects of the NRC Staffs review were seriously flawed and that futher inquiry in depth is warranted. The Boards dismissal of this information is an abuse of discretion which the Commission should reverse.
- 4. The Board committed reversible error to the extent it relied on the existence of state and county enforcement and oversight.
The only remaining basis for the DSEISs conclusions on small impacts from the CCS was the fundamental factrelied upon by the Staffs DSEISthat the state and county will ensure Applicants remediation efforts are successful. 70 To rely on a measure of success that is not based on the model predictions or actual observations, but on the existence of agreements 68 Motion at 28-29 (citing Wexler Decl. at 5).
69 Dismissal at 34.
70 NRC Staffs Answer to Joint Petitioners (1) Amended Motion to Migrate or Amend Contentions 1-E and 5-E and to Admit Four New Contentions, and (2) Petition for Waiver (July 19, 2019) (ML19200A300) at 49.
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with the state and county that specify compliance at some point in the future does not satisfy NEPA. 71 The DSEIS only offered rank speculation that a revised strategy would succeed if Applicants current plans fail. Rather than admit a genuine dispute as to the effectiveness of Applicants strategy, the NRC Staff assumed some other unspecified revised strategy would achieve what the current strategy does not. This is magical thinking as shown by the Boards reliance on a lone statement in the DSEIS stating that if [Applicant] fails to reach an annual average salinity of 34 PSU or lower within four years . . . the Consent Order with Florida requires [Applicant] to submit a plan detailing additional mitigation measures, and a revised timeframe for achieving the salinity target. 72 While the Consent Order provides Applicant an opportunity to revise its current salinity-related plans, the future opportunity to correct problems with the existing planlike failing to address less favorable climatic conditionsdoes not fill the void today in the DSEISs analyses.
In Contentions 6-E through 9-E, Petitioners also contended that reliance on state and county oversight was misplaced for another reason. As explained by Petitioners expert Dr.
Nuttle, there is an ongoing inter-agency dispute between Florida and Miami Dade County. 73 The dispute centers on Floridas amendment to Applicants Everglades Mitigation Bank Phase II Permit 74 and its resulting material and significant changes to the hydrology of the Turkey Point 71 Sierra Club v. Fed. Energy Regulatory Comm'n, 867 F.3d 1357, 1375 (D.C. Cir. 2017).
72 Dismissal at 21-22.
73 Reply at 18.
74 Motion at 26.
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region. 75 Miami Dade County challenged the permit modification arguing 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 [nearby] wetlands. . . . 76 Dr.
Nuttle opined that an ongoing dispute between the two agencies responsible for overseeing Applicants salinity management is evidence that achieving compliance with requirements for remediation . . . does not reliably predict future compliance with state and local water quality requirements. 77 This evidence and testimony demonstrated that the NRC cannot simply rely on a presumption of compliance when the regulating entities are litigating whether compliance with both of their requirements is even possible. 78 Not only is compliance with the Agreements no guarantee of small impacts, compliance with both Agreements may not be possible.
The Board misconstrued Petitioners argument on this point. The Board faulted Petitioners for claiming NEPA proscribes the NRC Staff from considering enforcement requirements and oversight activities . . . when preparing the DSEIS. 79 Petitioners never argued that NEPA proscribes consideration of regulatory oversight; but it does proscribe speculative reliance on the existence of oversight by another agency as a substitute for a proper NEPA analysis. The D.C. Circuit rejected this kind of blind reliance on other agencies as a substitute for 75 Id. at 28.
76 Id. at 27.
77 Id. at 28.
78 Reply at 25.
79 Dismissal at 24.
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a proper NEPA analysis. 80 In sum, there is no basis to conclude the existence of oversight by state and county regulators will result in small impacts. Any reliance by the Board on such speculation is clearly erroneous.
C. The Board Erred in its Ruling Regarding Contention 7-Es Waiver.
Petitioners ordinarily must obtain a waiver from the Commission to challenge an NRC environmental impact statements review of issues that were analyzed in a generic environmental impact statement (GEIS). But neither the Board nor the Commission has ever held that a waiver is required to challenge the site-specific review of environmental impacts of a Category 1 issue that NRC Staff conducted on its own accord.
Here, the Staff noted that:
These aspects of [CCS] operations and their effects on groundwater quality were not considered in the GEIS as part of the technical basis for the Category 1 issue, Groundwater quality degradation (plants with cooling ponds in salt marshes). The NRC staff has determined that this information is both new and significant. 81 Following its site-specific review of this normally Category 1 issue, Staff found that the groundwater quality impacts at Turkey Point are currently moderate whereas the GEIS found those impacts would be small. 82 The Board overlooked that prior case law only prohibits any contention on a category one issue [that] amounts to a challenge to our regulation that bars 80 Sierra Club, 867 F.3d at 1375.
81 DSEIS at 4-27.
82 Id.
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challenges to generic environmental findings. 83 Because Staff applied site-specific information to an ordinarily Category 1 issue and found a different impact than that in the GEIS, Petitioners are not challenging a generic environmental finding. Instead, they are challenging the Staffs new, site-specific finding. Thus, the Board erred in concluding that Contention 7-E, challenging Staffs new analysis, required a waiver.
In the alternative, the Board erred in concluding Petitioners failed to satisfy the rule waiver criteria. If Petitioners were required to request a waiver for Contention 7-E, Petitioners satisfied the four-factor Millstone test used to resolve waiver petitions. 84 The Board denied Petitioners waiver request based on its conclusion that Petitioners had failed to satisfy the first Millstone factorthat the rules strict application would not serve the purposes for which it was adopted. 85 However, the Board committed clear legal error in its application of the Millstone test.
Petitioners did not argue that any new information will always satisfy factor #1, as the Board stated. 86 Rather, Petitioners argued that new information identified and evaluated for the 83 Entergy Nuclear Vt. Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station),
CLI-07-3, 65 NRC 13, 20 (2007) (emphasis added).
84 The Millstone test says that to obtain a rule waiver, Petitioners must show: (1) the rules strict application would not serve the purposes for which it was adopted; (2) special circumstances exist that were not considered, either explicitly or by necessary implication, in the rulemaking proceeding leading to the rule sought to be waived; (3) those circumstances are unique to the facility rather than common to a large class of facilities; and (4) waiver of the regulation is necessary to reach a significant safety [or environmental] problem. Dominion Nuclear Connecticut, Inc.
(Millstone Nuclear Power Station, Units 2 and 3), CLI-05-24, 62 NRC 551, 559-60 (2005).
85 Dismissal at 28.
86 Id. at 29.
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first time in a DSEIS will satisfy factor #1. 87 The Board explained that the Commissions designation of an issue as a Category 1 issue reflects the Commissions expectations that its NEPA obligations have been satisfied by the environmental analysis in the GEIS. We agree. That means that when the NRC Staff look at new information on a Category 1 issue in a DSEIS, it is an acknowledgement that in this instance the division of issues as Category 1 and 2 will not serve the purpose for which the rule was adopted and thus needs to be waived.
The Board also clearly erred in depicting and applying the rule in both too large and too narrow a fashion. The Board too broadly stated the rule that a petitioner must show that new and significant information, unique to a particular plant, exists in order to waive the specific NRC regulations at issue in Petitioners waiver. 88 This is the overarching rule to satisfy the requirements of a waiver petition, not the rule to meet factor #1, as the Board depicted it. The Boards depiction was erroneous and the Board provided no basis for its reading of the requirements that Petitioners must meet under factor #1.
The Board then focused the discussion of the rules purpose too narrowly on why the Commission designated the issue as a Category 1 issue. The Board focused on the fact that the Category 1 impact is small. However, the purpose of the rule is broader than just that a single significance level can be assigned. Rather, an issue is Category 1 if (1) it applies to all plants and (2) site-specific mitigation measures will be warrantless. Issues are Category 2 if they cannot 87 See [Petitioners] 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) (ML19175A311) at 6 (unnumbered).
88 Dismissal at 29.
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meet one or more of the Category 1 criteria, and therefore, additional plant-specific review is required. 89 The Board thus focused on only one of the criteria that makes an issue Category 1 the significance leveland dismissed the second criteria regarding site-specific measures. The Board erroneously applied the Millstone test. The Commission should reverse and grant the waiver.
IV. THE COMMISSION SHOULD GRANT THIS PETITION FOR REVIEW The Commission considers several factors in determining whether to grant a petition for review. 90 Here, the Petition identifies findings of fact that are clearly erroneous, substantial and important questions of law, policy, or discretion, and public interest considerations. 91 First, whether an applicant (and the NRC) can rely on compliance with state and county oversight in the evaluation of cumulative impacts raises a substantial and important questions of law, policy, or discretion. As Applicant observed elsewhere, this legal issue has broad significance in NRC proceedings. 92 Second, several Contentions raise substantial and important questions regarding the need to analyze changing climatic conditions in subsequent license renewal proceedings.
Last, granting this Petition is in the public interest. The Turkey Point plant is located adjacent to Biscayne Bay in Southeast Florida. It is also the only nuclear power plant that uses a 89 10 C.F.R. Pt. 51, Subpt. A, App. B.
90 10 C.F.R. § 2.341(b)(4).
91 Id. § 2.341(b)(4)(i), (iii), (v).
92
[Applicants] Answer to [Petitioners] Petition for Waiver of Certain 10 C.F.R. Part 51 Regulations (July 19, 2019) at 16 (ML19200A298).
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5,900-acre CCS as the ultimate heat sink for its operations, which is the source of a hypersaline plume that is harming groundwater and surface water resources in a region where water resources are already stressed. It is in the publics interest to ensure the NRC makes an informed decision about extending Applicants license until 2053 when climatic conditions will be markedly worse than today. With respect, that analysis is lacking and there appears to be no interest in taking a hard look at the reasonably foreseeable impacts of operating Units 3 and 4 when the affected environment will be more stressed due to increased temperatures and higher sea levels. Granting this Petition and giving Petitioners an opportunity to present their case at a hearing would only further the publics interest, particularly when the license renewal will not take effect for another 13 years.
V. CONCLUSION The Commission should remedy these clear errors in material facts and departures from governing precedents and established law, which raise substantial and important questions of law and policy warranting review. 93 93 See 10 C.F.R. § 2.341(b)(4).
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Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d) /s/ Geoffrey Fettus
/s/ Ken Rumelt Geoffrey Fettus Kenneth J. Rumelt /s/ Caroline Reiser Environmental Advocacy Clinic Caroline Reiser Vermont Law School Natural Resources Defense Council 164 Chelsea Street, PO Box 96 1152 15th Street, NW, Suite 300 South Royalton, VT 05068 Washington, DC 20005 802-831-1031 202-289-2371 krumelt@vermontlaw.edu gfettus@nrdc.org Counsel for Friends of the Earth creiser@nrdc.org Counsel for Natural Resources Defense Council
/s/ Richard Ayres /s/ Kelly Cox Richard E. Ayres Kelly Cox Ayres Law Group Miami Waterkeeper 2923 Foxhall Road, N.W. 2103 Coral Way 2nd Floor Washington, D.C. 20016 Miami, FL 33145 202-722-6930 305-905-0856 ayresr@ayreslawgroup.com kelly@miamiwaterkeeper.org Counsel for Friends of the Earth Counsel for Miami Waterkeeper November 18, 2019 24
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
)
In the Matter of ) Docket Nos. 50-250 & 50-251
)
FLORIDA POWER & LIGHT COMPANY ) ASLBP No. 18-957-01-SLR-DB01
)
(Turkey Point Nuclear Generating Station, ) November 18, 2019 Unit Nos. 3 and 4) )
)
(Subsequent License Renewal Application) )
CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, copies of the foregoing Friends of the Earths, Natural Resources Defense Councils, and Miami Waterkeepers Petition for Review of the Atomic Safety And Licensing Boards Ruling in LBP-19-08 were served by Electronic Information Exchange (the NRCs E-Filing System) to all parties of record in the above-captioned docket.
/s/ Ken Rumelt Kenneth J. Rumelt Environmental Advocacy 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