ML19347D034

Florida Power & Light Company'S Answer Opposing Friends of the Earth'S, Natural Resources Defense Council'S, and Miami Waterkeeper'S Petition for Review of LBP-19-8

ML19347D034
Person / Time
Site:	Turkey Point
Issue date:	12/13/2019
From:	Bessette P, Hamrick S, Lighty R, O'Neill M Florida Power & Light Co, Morgan, Morgan, Lewis & Bockius, LLP
To:	NRC/OCM
SECY RAS
References
50-250-SLR, 50-251-SLR, ASLBP 18-957-01-SLR-BD01, LBP-19-8, RAS 55471
Download: ML19347D034 (30)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of ) Docket Nos. 50-250-SLR & 50-251-SLR

)

FLORIDA POWER & LIGHT COMPANY ) ASLBP No. 18-957-01-SLR-BD01

)

(Turkey Point Nuclear Generating Units 3 and 4) ) December 13, 2019

)

FLORIDA POWER & LIGHT COMPANYS ANSWER OPPOSING FRIENDS OF THE EARTHS, NATURAL RESOURCES DEFENSE COUNCILS, AND MIAMI WATERKEEPERS PETITION FOR REVIEW OF LBP-19-8 Steven Hamrick, Esq. Paul M. Bessette, Esq.

Florida Power & Light Company Ryan K. Lighty, Esq 801 Pennsylvania Ave., NW Suite 220 Morgan, Lewis & Bockius LLP Washington, D.C. 20004 1111 Pennsylvania Avenue, N.W.

Phone: (202) 349-3496 Washington, D.C. 20004 Fax: (202) 347-7076 Phone: (202) 739-5796 E-mail: steven.hamrick@fpl.com Fax: (202) 739-3001 E-mail: paul.bessette@morganlewis.com E-mail: ryan.lighty@morganlewis.com Martin J. ONeill, Esq.

Morgan, Lewis & Bockius LLP 1000 Louisiana St., Suite 4000 Houston, TX 77002 Phone: 713-890-5710 E-mail: martin.oneill@morganlewis.com Counsel for Florida Power & Light Company

TABLE OF CONTENTS I. INTRODUCTION .............................................................................................................. 1 II. STATEMENT OF THE CASE ........................................................................................... 2 III. THE COMMISSION SHOULD DENY THE PETITION FOR REVIEW BECAUSE PETITIONERS HAVE NOT IDENTIFIED ANY ERROR BY THE BOARD............................................................................................................................... 3 A. The Commission Generally Defers to Board Rulings on Contention Admissibility Absent a Clear Error or Abuse of Discretion ................................... 3 B. The Board Correctly Concluded That Contention 5-Eb Is Inadmissible ................ 4

1. The Boards Ruling is Fully Supported by the Record ............................... 5

2. Contrary to Petitioners Claims, the Board Did Not Overlook Relevant Evidence or Rely on Erroneous and Immaterial Evidence .......... 6 C. The Board Correctly Concluded That Contention 6-E Is Inadmissible .................. 9

1. The Boards Ruling is Fully Supported by the Record ............................... 9

2. Contrary to Petitioners Claims, the Board Did Not Overlook, Misunderstand, or Ignore Information Presented by Petitioners .............. 11 D. The Board Correctly Concluded That New Contention 7-E Is Inadmissible Because It Challenges a Category 1 Issue, and That Petitioners Failed to Satisfy the Rule Waiver Criteria in 10 C.F.R. § 2.335 ......................................... 16

1. The Boards Ruling is Fully Supported by the Record ............................. 17

2. Contrary to Petitioners Claims, the Board Did Not Err in Finding That a Waiver Is Required and That Petitioners Failed to Meet the Millstone Test............................................................................................ 18 E. The Board Correctly Concluded That Contention 8-E Is Inadmissible ................ 21

1. The Boards Ruling is Fully Supported by the Record ............................. 21

2. Contrary to Petitioners Claims, the Board Did Not Improperly Ignore or Refuse to Consider Substantial Evidence .............................. 22 F. The Board Correctly Concluded That Contention 9-E Is Inadmissible ................ 23

1. The Boards Ruling is Fully Supported by the Record ............................. 23

2. Contrary to Petitioners Claims, the Board Did Not Ignore the Wexler Declaration in Ruling on the Admissibly of Contention 9-E ....... 24 IV. CONCLUSION ................................................................................................................. 25 ii

TABLE OF AUTHORITIES NRC CASES AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI 24, 64 NRC 111 (2006) ....................................................................................................... 4 Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2), CLI 4, 49 NRC 185 (1999) ....................................................................................................... 16 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3),

CLI-04-36, 60 NRC 631 (2004).......................................................................................... 4 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3),

CLI-05-24, 62 NRC 551 (2005)...................................................................... 17, 18, 20, 21 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-09-11, 69 NRC 529 (2009).......................................................................................................... 16, 23 Exelon Generation Co. (Limerick Generating Station, Units 1 & 2), CLI-12-19, 76 NRC 377 (2012) ............................................................................................... 17, 19, 20 Exelon Generation Co. (Limerick Generating Station, Units 1 & 2), CLI-13-7, 78 NRC 199 (2013).......................................................................................................... 18, 20 Exelon Generation Co., LLC (Oyster Creek Nuclear Generating Station), CLI 6, 89 NRC __ (slip op.) (June 8, 2019) ............................................................................. 16 FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1),

CLI-12-8, 75 NRC 393 (2012).......................................................................................... 16 Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 & 4), CLI 18, 84 NRC 167 (2016) ..................................................................................................... 10 Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), LBP-19-3, 89 NRC ___ (slip op.) (Mar. 7, 2019) ....................................................................... 2 Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), LBP-19-6, 89 NRC ___ (slip op.) (July 15, 2019) ...................................................................... 3 Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), LBP-19-8, 90 NRC __ (slip op.) (Oct. 24, 2019) ............................................................... passim Hydro Res., Inc. (P.O. Box 15910, Rio Rancho, NM 87174), CLI-01-4, 53 NRC 31 (2001) ........................................................................................................................... 23 Hydro Res., Inc. (P.O. Box 777, Crownpoint, NM 87313), CLI-06-1, 63 NRC 1 (2006) .................................................................................................................................. 4 Massachusetts v. NRC, 522 F.3d 115 (1st Cir. 2008) ................................................................... 20 NRDC v. Morton, 458 F.2d 827 (D.C. Cir. 1972) .......................................................................... 6 NRDC v. NRC, 823 F.3d 641 (D.C. Cir. 2016) ............................................................................. 20 Nuclear Mgmt. Co., LLC (Palisades Nuclear Plant), CLI-15-22, 82 NRC 310 (2015) .................................................................................................................................. 4 iii

Pac. Gas & Elec. Co. (Diablo Canyon Power Plant, Units 1 & 2), CLI-03-2, 57 NRC 19 (2003).................................................................................................................. 10 Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-05-1, 61 NRC 160 (2005) ............................................................................................................. 4 Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), CLI-77-8, 5 NRC 503 (1977) ................................................................................................................................ 10 Shieldalloy Metallurgical Corp. (License Amendment Request for Decommissioning of the Newfield, New Jersey Facility), CLI-07-20, 65 NRC 499 (2007).................................................................................................................. 4 Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 22 (1998) ..................................................................................................................... 15 USEC Inc. (Am. Centrifuge Plant), CLI-06-10, 63 NRC 451 (2006) .......................................... 15 REGULATIONS 10 C.F.R. § 2.309(f) ...................................................................................... 2, 4, 15, 16, 18, 21, 23 10 C.F.R. § 2.311(b) ....................................................................................................................... 1 10 C.F.R. § 2.335 .............................................................................................................. 16, 17, 18 10 C.F.R. § 2.341(b) ....................................................................................................................... 1 10 C.F.R. Part 51..................................................................................................... 2, 17, 18, 19, 20 iv

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of ) Docket Nos. 50-250-SLR & 50-251-SLR

)

FLORIDA POWER & LIGHT COMPANY ) ASLBP No. 18-957-01-SLR-BD01

)

(Turkey Point Nuclear Generating Units 3 and 4) ) December 13, 2019

)

FLORIDA POWER & LIGHT COMPANYS ANSWER OPPOSING FRIENDS OF THE EARTHS, NATURAL RESOURCES DEFENSE COUNCILS, AND MIAMI WATERKEEPERS PETITION FOR REVIEW OF LBP-19-8 I. INTRODUCTION Pursuant to 10 C.F.R. §§ 2.311(b) and 2.341(b)(3), Florida Power & Light Company (FPL) files this Answer opposing the November 18, 2019, Petition for Review filed by Natural Resources Defense Council, Friends of the Earth, and Miami Waterkeeper (Petitioners).1 Petitioners seek review of the Atomic Safety and Licensing Boards (Board) decision in LBP 8.2 In that decision, the Board denied Petitioners June 24, 2019 Motion to admit six newly-proffered contentions challenging the adequacy of the Nuclear Regulatory Commission (NRC)

Staffs Draft Supplemental Environmental Impact Statement (DSEIS)3 for Turkey Point Units 3 and 4 subsequent license renewal (SLR).4 The Board also denied Petitioners related Petition for 1

See [Petitioners] Petition for Review of the Atomic Safety and Licensing Boards Ruling in LBP-19-8 (Nov. 18, 2019)

(Petition for Review).

2 See Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), LBP-19-8, 90 NRC __ (slip op.) (Oct. 24, 2019).

3 NUREG-1437, suppl. 5 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).

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[Petitioners] Amended Motion to Migrate Contentions & Admit New Contentions in Response to NRC Staffs Supplemental Draft Environmental Impact Statement (June 24, 2019) (ML19179A316) (Motion). The six rejected contentions include two amended contentions, 1-Eb and 5-Eb, and four new contentions, 6-E, 7-E, 8-E, and 9-E.

Petitioners do not seek review of the Boards denial of Contention 1-Eb, which alleged that the DSEIS fails to adequately analyze mechanical draft cooling towers as a reasonable mitigation alternative.

Waiver of certain NRC regulations in 10 C.F.R. Part 51.5 In doing so, the Board disposed of all pending contentions and terminated the proceeding at the Board level.

For the reasons set forth below, the Commission should deny the Petition for Review and affirm LBP-19-8. The Commission ordinarily affirms Board rulings on contention admissibility absent an abuse of discretion or error of law. Petitioners have provided no reason for the Commission to depart from that practice here. In short, the Board correctly determined that all of Petitioners proposed contentions are inadmissible because they lack adequate support and fail to establish a genuine dispute of material law or fact with the DSEIS, as required by 10 C.F.R.

§ 2.309(f)(1)(v) and (vi), respectively. The Board also properly concluded that Petitioners failed to satisfy the requirements for a rule waiver, and that Contention 7-E therefore is outside the scope of this proceeding because it impermissibly challenges NRC regulations.

II. STATEMENT OF THE CASE This proceeding involves the SLR Application submitted by FPL on January 30, 2018, as later supplemented and revised, to authorize an additional 20 years of Turkey Point operation.6 Petitioners originally filed a Petition to Intervene, proffering five contentions that alleged deficiencies in the Environmental Report (ER) related primarily to climate change and the Turkey Point cooling canal system (CCS).7 On March 7, 2019, the Board issued LBP-19-3, granting, in part, the Petition to Intervene, and admitting Contentions 1-E and 5-E as contentions of omission.8 5

[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) (Petition for Waiver).

6 See Letter from Mano K. Nazar, FPL, to NRC Document Control Desk (Jan. 30, 2018) (ML18037A812), as supplemented by letters dated February 9, 2018 (ML18044A653); February 16, 2018 (ML18053A123); March 1, 2018 (ML18072A224); and April 10, 2018 (ML18102A521 and ML18113A132).

7 See Request for Hearing and Petition to Intervene Submitted by Friends of the Earth, Natural Resources Defense Council, and Miami Waterkeeper (Aug. 1, 2018) (ML18213A417) (Petition to Intervene).

8 See Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), LBP-19-3, 89 NRC __, __ (slip op. at 63)

(Mar. 7, 2019). The Board also admitted Southern Alliance for Clean Energy (SACE) as an intervenor and two of its contentions (see id. at __ (slip op. at 63 n.81)), but SACE later withdrew from this proceeding as part of a settlement reached with FPL in a separate proceeding. See [SACEs] Notice of Withdrawal (Apr. 9, 2019).

2

Based on the NRCs April 1, 2019 DSEIS, FPL filed motions to dismiss Intervenors Contentions 1-E and 5-E as moot on May 20, 2019.9 On July 8, 2019, the Board granted FPLs motions, concluding that the new information in the DSEIS had cured the omissions identified in the two contentions and thus rendered them moot.10 On June 24, 2019, Intervenors filed their Motion seeking to amend Contentions 1-E and 5-E and to admit four new contentions (6-E through 9-E) based on the DSEIS, along with the Petition for Waiver. Both FPL and the Staff opposed the Motion and Petition for Waiver.11 The Board held oral argument on the proposed new contentions and waiver request on September 9, 2019.12 The Board issued LBP-19-8 on October 24, 2019, denying admission of all six proposed contentions and terminating the adjudication. On October 28, 2019, the NRC Staff announced the public availability of the Final SEIS (FSEIS) for Turkey Point SLR. On November 18, 2019, Petitioners filed the instant Petition for Review, to which FPL timely files this Answer.

III. THE COMMISSION SHOULD DENY THE PETITION FOR REVIEW BECAUSE PETITIONERS HAVE NOT IDENTIFIED ANY ERROR BY THE BOARD A. The Commission Generally Defers to Board Rulings on Contention Admissibility Absent a Clear Error or Abuse of Discretion The standard for review of contention admissibility determinations is as follows: the Commission will defer to the Boards rulings on contention admissibility absent an error of law or 9

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).

10 Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), LBP-19-6, 89 NRC __, __ (slip op. at 1) (July 15, 2019) (dismissing Contentions 1-E and 5-E as moot, but not terminating the proceeding in light of Intervenors having proffered new contentions based on the DSEIS).

11

[FPLs] Answer Opposing Intervenors Motion to Migrate or Amend Contentions 1-E and 5-E and to Admit New Contentions 6-E, 7-E, 8-E, and 9-E (July 19, 2019) (FPL Answer to Motion); [FPLs] Answer to Intervenors Petition for Waiver of Certain 10 C.F.R. Part 51 Regulations (July 19, 2019) (FPL Answer to Waiver Petition); NRC Staffs Answer to Joint Intervenors (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) (NRC Staff Answer).

12 See Official Transcript of Proceedings, [FPL] Turkey Point Nuclear Generating Units 3 and 4 at 260-466 (Sept. 9, 2019)

(Sept. 9, 2019 Tr.).

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abuse of discretion.13 Thus, when a licensing board has reviewed the record in detail, the Commission generally is disinclined to upset its findings, particularly on matters involving fact-specific issues or consideration of expert affidavits or submissions.14 An appeal that does not point to an error of law or an abuse of discretion, but simply restates the petitioners arguments, does not constitute a valid appeal.15 When a licensing board holds that a contention is inadmissible for failing to meet more than one of the requirements specified in 10 C.F.R. § 2.309(f)(1)(i)-(vi), a petitioners failure to acknowledge and rebut each ground for the Boards ruling is sufficient justification for the Commission to reject the petitioners appeal.16 Furthermore, when considering an appeal, the Commission is free to affirm a board decision on any ground supported in the adjudicatory record, whether or not relied on by the Board.17 B. The Board Correctly Concluded That Contention 5-Eb Is Inadmissible In Contention 5-Eb, Petitioners asserted that the DSEIS does not adequately analyze the potential impacts of ammonia from the CCS on threatened and endangered species and their critical habitat during the SLR period 18 As the Board noted, Petitioners focused on the alleged failure of the DSEIS to consider the impacts of ammonia discharges on all but one threatened and endangered species [i.e., the West Indian manatee] and important habitat.19 13 Nuclear Mgmt. Co., LLC (Palisades Nuclear Plant), CLI-15-22, 82 NRC 310, 315 (2015) (citing AmerGen Energy Co.,

LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 121 (2006)).

14 Hydro Res., Inc. (P.O. Box 777, Crownpoint, NM 87313), CLI-06-1, 63 NRC 1, 2 (2006).

15 Shieldalloy Metallurgical Corp. (License Amendment Request for Decommissioning of the Newfield, New Jersey Facility), CLI-07-20, 65 NRC 499, 503-05 (2007).

16 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-04-36, 60 NRC 631, 638 (2004).

17 Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-05-1, 61 NRC 160, 166 (2005) (redacted public version of decision) (citing federal court precedent).

18 Motion at 21.

19 LBP-19-8, 90 NRC at __ (slip op. at 11-12) (quoting Motion at 23-24); see also id. at 15 (The sole basis for

[Petitioners] claim of inadequate analysis is their assertion that the DSEIS includes a more thorough analysis for the West Indian manatee than for other threatened and endangered species.).

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1. The Boards Ruling is Fully Supported by the Record Based on its manifestly thorough review of the record, including pertinent sections of the NRC Staffs DSEIS and supporting Biological Assessment (BA),20 the Board found that the NRC Staff adequately analyzed the impact of ammonia on Endangered Species Act (ESA)-listed species and their habitats, specifically including those species that (1) inhabit the CCS, (2) may feed in the CCS, and (3) are present in the nearby wetlands.21 As the Board noted, the DSEIS and BA document the following key findings and conclusions of the NRC Staff:

FPL monitors the CCS, Biscayne Bay, Card Sound, marshland, mangrove areas, and canals adjacent to the CCS for numerous water quality parameters, including ammonia and other nutrients to evaluate the effects, if any, of CCS operations on the environment.22 There is no evidence of an ecological impact from ammonia on the areas surrounding the CCS and no discernible influence from the CCS on Biscayne Bay.23 Ammonia concentrations in the CCS, as measured between June 2010 and May 2016, ranged from below-detectable levels to 0.3 milligrams per liter (mg/L), and averaged 0.04 mg/L. The average concentration is more than an order of magnitude below the Miami-Dade County surface water quality standard for ammonia of 0.5 mg/L.24 Relevant water quality criteria can be assumed to be reasonably protective of threatened or endangered species, such that there would be no lethal effects or impairments to growth, survival, or reproduction of such species when ammonia concentrations in the analyzed environments are less than the County water quality standard.25 Ammonia levels exceeding the County standard have been detected at the bottom of the Barge Turning Basin, Turtle Point remnant canal, S-20 canal, and Sea-Dade remnant canal, which are excavations outside of, but near, the CCS. However, these elevated ammonia levels appear to be limited to the locations of deep stagnant anoxic [i.e., low oxygen] water bodies, and are attributable to the degradation of plant and animal material.26 20 See NRR, Biological Assessment for the Turkey Point Nuclear Generating Unit Nos. 3 and 4 Proposed Subsequent License Renewal (Dec. 2018) (ML18353A835) (incorporated by reference in the DSEIS at 4-60).

21 See LBP-19-8, 90 NRC at __ (slip op. at 14-15) (citing DSEIS at 2-23 (Table 2-2, Note (a)); id. at 4-6 (Table 4-2, Note (c)); BA at 32-37, 41-42, 44-47, 49-55, 57-58, 64).

22 Id. at 12 (citing DSEIS at 3-41) .

23 Id. at 13 (quoting BA at 60 and DSEIS at 4-22).

24 Id. (citing DSEIS at 3-42).

25 Id. at 13 & 15 n.25 (citing DSEIS at 4-66, BA at 61).

26 Id. at 13-14 (quoting DSEIS at 3-51).

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The ESA-listed species that conceivably might be exposed to elevated ammonia levels in the deep basin and remnant canals include four types of sea turtles, the smalltooth sawfish, and the West Indian manatee. Each of these species is unlikely to be measurably affected by elevated ammonia levels in the canals for the reasons explained by the NRC Staff in the DSEIS and BA and noted by the Board in LBP-19-8.27 The Board concluded that the NRC Staff had acted consistent with NEPAs reasonableness standard in analyzing the impact of ammonia, including the limited locations of elevated levels outside of the CCS, in proportion to its potential impacts on individual ESA-listed species and their habitats.28 As the Board succinctly put it, Petitioners fail to explain why a species that is not exposed to an elevated level of ammonia should be expected to experience ammonia toxicity.29 The Boards rejection of Contention 5-Eb as lacking support and failing to raise a genuine material dispute with the DSEIS is thus based soundly on the record and settled NEPA principles.

2. Contrary to Petitioners Claims, the Board Did Not Overlook Relevant Evidence or Rely on Erroneous and Immaterial Evidence Petitioners misrepresent the record of this proceeding in accusing the Board of having ignored purportedly ample and significant evidence of CCS ammonia-related impacts on the threatened American crocodile.30 Their argument presupposes that such evidence exists in the record. As it does not, the Board clearly could not have ignored it.

Petitioners claim to have proffered evidence that: (1) the CCS is a contributing factor to levels of ammonia above regulatory limits in multiple locations, and (2) the American crocodile nests in the same locations as those high levels of ammonia.31 With regard to their first claim, Petitioners suggest that the DSEIS acknowledges exceedances of the County ammonia water quality 27 See id. at 14-15 (citing DSEIS at 4-62 to 4-67; BA at 59-62).

28 See id. at 15-16 (citing NRDC v. Morton, 458 F.2d 827, 834 (D.C. Cir. 1972)).

29 Id. at 16 n.26.

30 See generally Petition for Review at 2-5.

31 Id. at 3.

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standard around Turkey Point and a statistically increasing trend of ammonia in the CCS.32 As to their second claim, Petitioners contend that they pointed to a document cited by the DSEIS that included specific test results of water quality and showed how these specific locations of high ammonia are also documented nesting sites for the American crocodile.33 Neither of Petitioners claims finds support in the record. As noted above, the DSEIS indicates that measured ammonia levels in the CCS are very low and, on average, well below the County water quality standard. FPLs extensive environmental monitoring has not detected evidence of CCS-related ammonia impacts on the surrounding marsh areas and mangroves, and no changes in Biscayne Bay water quality trends that are related to the CCS.34 As the Board expressly noted, the DSEIS explains that the detection of elevated ammonia levels has been limited to bottom samples in localized areas such as stagnant or dead-end canals, and are consistent with the anoxic conditions that exist at the bottom of remnant canals and the accumulation of organic matter falling into the remnant canals from surrounding areas of the bay.35 The DSEIS acknowledges a letter from the County that assumes that the CCS is a contributing factor to the ammonia concentrations in specific canal bottom samples, along with acknowledging the elevated ammonia concentrations may be attributable to several contributing sources not related to the operations of the CCS in those areas.36 However, the DSEIS also notes that ammonia levels in the CCS are below the regulatory standard, undercutting the notion that the ammonia derives from the CCS.37 Regardless, as the 32 Id.

33 Id. at 3-4 (citing FPL, Site Assessment Report - Ammonia in Surface Waters. Turkey Point Facility (Mar. 17, 2017),

available at http://ecmrer.miamidade.gov:8080/hpi/search (search Case Number: CLI-2016-0428, Date: 3/17/2017))

(referred to in the DSEIS as FPL 2017c).

34 See DSEIS at 4-65; see also id. at 4-22 (noting that discernible effects from CCS-derived temperature, ammonia, nutrients, and salinity on Biscayne Bay or Card Sound water qualities have not been detected).

35 LBP-19-8, 90 NRC at __ (slip op. at 14) (quoting DSEIS at 3-51) (emphasis added).

36 See DSEIS at 3-52.

37 See id. at 3-50 (the ammonia concentrations in the bottom samples were consistently higher than ammonia levels in the CCS); see also id. at 3-42, 4-22.

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Board recognized, the DSEIS evaluated the impacts of elevated ammonia levels as if they were attributable to the CCS.38 Contrary to Petitioners claim, there is no evidence that CCS water is a contributing factor to exceedances of regulatory limits in other surface water locations.39 Petitioners second claim also misrepresents the record in two significant respects. First, Petitioners raised the purported evidence that crocodiles nest in locations with high ammonia concentrations for the first time at oral argument.40 Counsel for FPL and the NRC Staff, who had no opportunity to review the information and address it in their written answers to the amended contention, objected to Petitioners unforeseen presentation of this information as untimely and prejudicial.41 Chairman Hawkens agreed, and advised Petitioners counsel that the new information should have been in your written pleading.42 Thus, the Board committed no error or abuse of discretion by properly excluding Petitioners belatedly-presented evidence from the record and not considering it in its ruling on Contention 5-Eb.

Second, as counsel for FPL noted at oral argument, Petitioners misrepresent or misconstrue the document on which they purport to rely, i.e., FPLs March 17, 2017, Site Assessment Report.43 The water samples cited by Petitioners at oral argument and in their appeal were bottom samples taken from dead-end canal sample stations TPSWC7 and TPSWC8, which are located along the S-20 Canal south of the CCSnot in the CCS, as Petitioners wrongly imply.44 The fact that such 38 See LBP-19-8, 90 NRC at __ (slip op. at 14-15).

39 The DSEISs reference to a statistically significant increasing trend refers to ammonia concentrations in groundwater in deep wells. See DSEIS at 3-68. Thus, it has nothing to do with ammonia levels in surface waters or their potential impacts to ESA-listed species that are potentially exposed to ammonia in such surface waters.

40 See Sept. 9, 2019 Tr. at 340-41, 345. Petitioners references to their Reply and oral argument underscore their tardiness in raising this issue. See Petition for Review at 4 nn. 17 & 19. In fact, even in their Reply, Petitioners claimed only that crocodiles live in the CCS. But there is no dispute that ammonia levels in the CCS are below the applicable standard.

41 See Sept. 9, 2019 Tr. at 353-55.

42 Id. at 354.

43 See id. at 347 (Were unaware of the argument regarding [the] purported location of crocodile nests in surface water areas with elevated ammonia levels. And we believe thats also factually incorrect.).

44 See FPL 2017 Site Assessment Report at 15, 21 (Table C - Dead-end Canal Sample Stations with Ammonia Values Greater than the DERM Surface Water Standard) & Fig. 6 (Ammonia as N in Dead-End Canal Sample).

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canals may contain elevated ammonia levels at depth (for reasons unrelated to the CCS) is fully accounted for in the DSEIS.45 Notably, Petitioners provided no evidence to support the assertion that that the American crocodile nests in the same location as those high levels of ammonia (i.e.,

that the American crocodile is nesting in canal bottoms).46 Thus, Petitioners belated evidence does not support their claim that the American crocodile is more likely to be impacted by ammonia from the CCS than other ESA-listed species, including the West Indian manatee.

In summary, the Boards rejection of Contention 5-Eb as inadmissible is fully supported by the record. Petitioners have identified no clear error or abuse of discretion.

C. The Board Correctly Concluded That Contention 6-E Is Inadmissible Contention 6-E alleged that the DSEIS fails to take the requisite hard look at the impacts of the CCS on surface waters via the groundwater pathway.47 Specifically, Petitioners disputed the Staffs conclusion in DSEIS Section 4.5.1.1 that the CCSs impacts on adjacent surface water bodies via the groundwater pathway would be SMALL during the SLR term.

1. The Boards Ruling is Fully Supported by the Record In finding Contention 6-E to be inadmissible, the Board again carefully considered Petitioners claims and proffered support vis--vis the relevant discussion in the DSEIS. As the Board noted, Contention 6-E includes three major components, which the Board methodically analyzed in turn and found to be insufficiently supported to establish a genuine material dispute.48 Contention 6-Es first component is the assertion that the NRC Staff relied on unreliable modeling of CCS salinity conditions by FPL in the DSEIS.49 The Board reviewed the relevant 45 See DSEIS at 3-51.

46 Petition for Review at 3.

47 Motion at 40.

48 See generally LBP-19-8, 90 NRC at __ (slip op. at 19-26).

49 Id. at 19 (quoting Motion at 40).

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DSEIS discussion, which explains that FPL has numerically modeled CCS operation with a focus on quantifying the volumes of water and the mass of salt entering and exiting the CCS.50 It found that the NRC Staff independently assessed the reasonableness of FPLs modeling.51 The Board also concluded that a fair reading of the DSEIS (as opposed to Petitioners misreading thereof) does not establish that FPLs efforts to reduce CCS salinity have been unsuccessful to date, that FPLs model is fatally flawed, or that FPLs freshening efforts will ultimately fail.52 Finally, as discussed in Section III.C.2 below, the Board found no factual support for Petitioners claim that FPLs CCS freshening model relies on more favorable climatic conditions in the future as an essential assumption for achieving the CCS salinity metric of 34 practical salinity units (PSU).

The contentions second component is the claim that the NRC Staffs improperly substituted the existence of enforcement requirements and oversight imposed by Floridas Consent Order and Miami-Dade Countys Consent Agreement for a proper NEPA analysis.53 The Board properly rejected that argument for several reasons. As a factual matter, it noted that the DSEIS reflects the NRC Staffs independent assessment of FPLs modeling of CCS freshening activities, and its review of FPLs freshening plans and progress in achieving its State and County-approved freshening objectives.54 As a legal matter, the Board concluded that Petitioners argument that NEPA proscribes NRC Staff consideration of enforcement requirements/oversight activities by state and local authorities in the DSEIS is contrary to controlling Commission precedent.55 50 Id. at 20 (citing DSEIS at 3-49).

51 Id.

52 Id. at 22.

53 Id. at 23 (citing Motion at 40, 43).

54 Id. at 23-24 (including note 33).

55 Id. at 24 (citing Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), CLI-77-8, 5 NRC 503, 527 (1977); Pac. Gas &

Elec. Co. (Diablo Canyon Power Plant, Units 1 & 2), CLI-03-2, 57 NRC 19, 29 (2003); Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 & 4), CLI-16-18, 84 NRC 167, 174-75 n.38 (2016)).

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The contentions third component is Petitioners claim that new reports and an expert opinion submitted by Dr. Fourqurean contradict the analysis in DSEIS Section 4.5.1.1, which concludes that CCS-related impacts on adjacent surface water bodies via the groundwater pathway during the SLR term would be SMALL.56 The Board found that Petitioners and Dr. Fourqurean merely speculated that phosphorus in Biscayne Bay must originate from the CCS (as opposed to other known sources, like agricultural runoff), and that water quality violations are likely.57 Further, the Board cited Petitioners failure to acknowledge the NRC Staffs extensive discussion of nutrientsincluding phosphorusin the DSEIS.58 Among other things, that discussion indicates that the Florida Department of Environmental Protection (FDEP) reviewed FPLs nutrient monitoring results and, as noted in the FDEP Consent Order, determined that no exceedances of surface water quality standards were detected in the Biscayne Bay monitoring.59 It also notes that FPL implemented a nutrient management plan in 2017 pursuant to the Consent Order.60

2. Contrary to Petitioners Claims, the Board Did Not Overlook, Misunderstand, or Ignore Information Presented by Petitioners In appealing the Boards rejection of Contention 6-E, Petitioners rely heavily on discussion of the 2014 Tetra Tech CCS salt and water balance (i.e., freshening) model at oral argument, during which the parties addressed written questions from the Board. Citing to the oral argument transcript, Petitioners claim that statements made by FPL counsel during the argument confirm that:

(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 CCS; (2) the DSEIS conclusions on impacts from the CCS were based on this unreliable model that produced skewed results; (3) the NRC Staff never took a hard look at the effect of less favorable climatic conditions on [FPLs]

56 Id. at 25 (citing Motion at 41-42, 44).

57 Id. at 26.

58 Id. at 26 n.35 (citing DSEIS at 3-42 to 3-44, 3-48 to 3-53).

59 Id. at 26 (quoting DSEIS at 3-51).

60 Id. at 26 n.35 (citing DSEIS at 3-44). The nutrient management plan comprises three primary strategies: (1) active algae and nutrient removal, (2) canal and berm maintenance, and (3) salinity reduction and controlled flow management. Id.

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CCS freshening plan; and (4) [FPLs] current plan will not succeed unless more favorable climatic conditions return for good.61 Petitioners further assert that the deadline in the FDEP Consent Order for FPL to achieve an annual average CCS salinity level of 34 PSU reflects the refined salt and water balance model described by Applicants counsel, not the skewed 2014 version that Staff assessed in the DSEIS.62 Petitioners arguments are groundless. Moreover, it is Petitioners that misunderstand and overlook relevant information. As an initial matter, the Board considered Petitioners arguments, which they simply repeat on appeal, and appropriately rejected them for the reasons set forth in LBP-19-8. The Board concluded that the DSEIS: (1) shows that the NRC Staff independently assessed the reasonableness of the model underlying the freshening plan upon which that deadline is based,63 and (2) does not indicate that FPLs model relies on more favorable climatic conditions in the future as an essential assumption for achieving a CCS salinity of 34 PSU.64 Rather, as the Board also correctly noted, the DSEIS discusses observed effects of drier conditions, and the anticipated effects of less severe dry seasons, on the model predictions and results.65 On appeal, Petitioners again contend the NRC Staff discussed an unreliable version of the CCS salt and water balance model that was based on particularly wet weather conditions and produced skewed results. That argument grossly misrepresents the record, particularly clarifying statements provided by FPL counsel at oral argument in response to the Boards questions. The Board specifically asked about the Staffs statement on page 3-49 of the DSEIS that modelers 61 Petition for Review at 8-9 (citing Sept. 9, 2019 Tr. at 428-29).

62 Id. at 13 (citing Sept. 9, 2019 Tr. at 428).

63 LBP-19-8, 90 NRC at __ (slip op. at 22 n.31) (citing DSEIS at 3-49).

64 Id. at 22 & n.31 (emphasis added).

65 Id. at 22-23; see also id. at 23 n.32 (quoting Sept. 9, 2019 Tr. at 372-74) (noting NRC Staff counsels observation that the reference in the DSEIS about more favorable climatic conditions was a qualitative statement recognizing that weather conditions can affect the outcomes, and that the Board agree[s] that the reference, reasonably read in context, simply indicate[s] that a return to more . . . historically normal weather conditions, would result in more favorable conditions in the CCS).

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anticipate that under more favorable climatic conditions (e.g., less severe dry seasons), the addition of Upper Floridan aquifer water should help to reduce CCS water salinities to 34 PSU.

In discussing this Board question, FPL counsel noted that FPL had submitted a written public comment to the NRC Staff specific to the discussion on page 3-49 of the DSEIS.66 In that comment, FPL described how its modeling efforts have evolved over time relative to those described in the Tetra Tech 2014a technical memorandum referenced in the DSEIS (which Petitioners refer to as the 2014 model in their appeal). FPL stated, in part:

The modeling efforts that are discussed in the Tetra Tech 2014a memo were based on 22 months of data, one year of which had above normal rainfall. As a result of continued monitoring, the model has been updated and further refined using a longer data record that incorporates a more representative range of hydrologic and salinity conditions. The refined model identified a longer period of time would be needed to reduce the average annual CCS salinity in the event of extended dry period or drought. Information from this expanded model was considered by the FDEP in requiring FPL to achieve the average annual salinity of 34 [PSU] in the CCS within four years of initiating freshening activities as described in the Consent Order.67 During oral argument, FPL counsel characterized the initial 22-month data set (for the months of September 2010 through June 2012) used in the 2014 modeling effort as being skewed towards wetter conditions relative to subsequently-available data for later, much drier years that since have been incorporated into the refined model.68 While counsel noted that the 2014 modeling exercise might be viewed as outdated or superseded given the availability of newer data,69 there was no intention to suggest that the underlying model itself is unreliable.

66 See Letter from W. Maher, Senor Licensing Director, FPL, to NRC, Re: Florida Power & Light Company Comments Regarding the Turkey Point Generating Unit Nos. 3 and 4 Subsequent License Renewal Draft Supplement 5 to Generic Environmental Impact Statement (May 20, 2019) (ML19141A047).

67 Id., attach. at 8-9 (emphasis added).

68 Sept. 9, 2019 Tr. at 391-92, 428.

69 Id. at 428.

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Moreover, as noted in the FPL public comment above, the FDEP considered information from the refined model when it established the 4-year period for attaining an average annual salinity of 34 PSU in the CCS.70 The Staff recognized this fact in the DSEIS, noting that the most recently-published modeling results simulate the operation of the CCS from June 2015 and beyond, and that the four-year period was imposed by the Consent Order on June 20, 2016two years after the Tetra Tech 2014a technical memorandum was issued.71 Thus, Petitioners suggestions that the Staff only considered the purportedly unreliable and skewed 2014 model are false and misleading. So, too, are Petitioners claims that the NRC Staff never took a hard look at the effect of potentially less favorable climatic conditions on CCS salinity levels and FPLs freshening plan.

Finally, nothing in the record substantiates Petitioners sweeping and speculative claim that the current plan will not succeed unless more favorable climatic conditions return for good.72 Indeed, the Board appropriately rejected that claim as lacking support, noting that the DSEIS shows that FPLs freshening efforts have achieved a measure of success.73 The Board also observed that the still-ongoing nature of FPLs efforts to achieve an average annual CCS salinity of 34 PSU does not raise a credible inference that FPLs model is fatally flawed or that its freshening efforts are ultimately doomed to failure.74 Importantly, the Board further noted that if FPL fails to reach the 34 PSU metric within four years of implementing freshening activities, then the FDEP Consent Order requires FPL to submit a plan detailing additional mitigation measures, and a revised timeframe for achieving the salinity metric.75 Thus, the very scenario presented here by Petitioners, 70 FPL consistently has referred to a four-year time frame for achieving the 34 PSU metric in the SLR docket, beginning with its Environmental Report. See ER at 3-93, 3-306, 9-12. There is no genuine material dispute on this matter, only a purported discrepancy manufactured by Petitioners in this proceeding.

71 See DSEIS at 3-49.

72 Petition for Review at 9.

73 LBP-19-8, 90 NRC at __ (slip op. at 22) (citing DSEIS at 3-49 (observing that FPLs freshening efforts in the CCS during the 2017 dry season were effective in achieving a salinity level of 64.9 PSU, which is substantially lower than the greater-than-90 PSU level that existed in the 2014 and 2015 dry seasons that were wetter than the 2017 dry season)).

74 Id.

75 Id. at 21-22 & n.29 (citing DSEIS at 3-47 (quoting Consent Order)).

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i.e., that FPLs current freshening activities may not achieve the 34 PSU target in time, already has been considered by the FDEP, the NRC Staff in its DSEIS, and the Board.

The Board also did not, as Petitioners claim in Sections III.B.2 and III.B.3 of their Petition for Review, erroneously disregard the expert reports of James Fourqurean, William Nuttle, and E.J. Wexler. The Board explained that, with the exception of the Fourqurean Report, Petitioners fail to specify any new report (much less a specific statement in a new report) to support the contentions assertion.76 The Board thus found that, insofar as Petitioners purported to rely on new reports not specifically cited in their proposed contentions, they failed to provide adequate supporting facts, as required by 10 C.F.R. § 2.309(f)(1)(v) and Commission case law.77 In any event, as noted above, the Board found Dr. Fourqureans various assertions to be speculative. Furthermore, as discussed in Section III.F.2, infra, the Board considered Mr. Wexlers assertions in its ruling on Contention 9-E, and found that they lacked adequate factual support, relied on conjecture, and failed to raise a genuine dispute of material fact with the DSEIS. The Board also committed no error in not discussing Dr. Nuttles report and Petitioners related arguments. Petitioners failed to specifically cite the Nuttle Report in support of any of the new contentions, leaving the Board and parties to guess at its relevance, if any, to the contentions.78 Petitioners further argue that Section IV.B of their Motion provided exactly what Section 2.309(f)(1)(iv) requires. That argument, however, overlooks Petitioners nearly exclusive reliance on scant, generalized cross-references to Section IV.B of their Motion in their proposed contentions.

76 Id. at 25.

77 Id. at 25 (quoting USEC Inc. (Am. Centrifuge Plant), CLI-06-10, 63 NRC 451, 457 (2006); Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 22 (1998)).

78 The Nuttle Report focuses on a June 28, 2018, Everglades Mitigation Bank Phase II Permit Modification issued by the FDEP to FPL, and Miami-Dade Countys related September 17, 2018, Petition for Administrative Hearing. Despite devoting nearly seven pages of their Motion to discussing the Miami-Date County Petition, Petitioners failed to attach it to their Motion or the Nuttle Report, or to provide any link to the document. Like the Nuttle Report, they also failed to directly cite the Miami-Date County Petition in any of their new contentions. In view of these deficiencies, the Board committed no error by not entertaining Petitioners or Dr. Nuttles arguments on this issue (which, for reasons explained by FPL in its Answer to the Motion (see page 35, footnote 156), also are irrelevant to this proceeding).

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Significantly, Petitioners cited to a specific expert report or declaration in support of a contention in only three instancesand, even in those limited cases, Petitioners failed to cite any specific statements in the referenced documents in support of their claims.79 They also failed to adequately explain how those documents establish a genuine material dispute with the DSEIS.

Given these obvious shortcomings in the Motion, the Board did not err in finding that Petitioners failed to meet their burden under Section 2.309(f)(1)(v) and (vi). As Commission recently underscored in CLI-19-6, its contention admissibility requirements are strict by design, and serve to screen out ill-defined, speculative, or otherwise unsupported claims.80 Moreover, neither [the Commission] nor the Board are obliged to look through lengthy documents for information on which a litigant relies,81 as [t]he burden of setting forth a clear and coherent argument for . . . intervention is on the petitioner.82 Petitioners did not meet their burden here.

In summary, the Boards rejection of Contention 6-E is fully supported by the record and consistent with governing law. Petitioners have identified no clear error or abuse of discretion.

D. The Board Correctly Concluded That New Contention 7-E Is Inadmissible Because It Challenges a Category 1 Issue, and That Petitioners Failed to Satisfy the Rule Waiver Criteria in 10 C.F.R. § 2.335 Contention 7-E asserted that the DSEIS does not take a hard look at impacts to groundwater quality.83 Intervenors alleged that the NRC Staffs conclusion in the DSEIS, i.e., that impacts to groundwater will be SMALL during the SLR term, is flawed for the same reasons described in 79 Insofar as Petitioners suggest on appeal that the Board ignored information in the Wexler Report, they never explicitly cited that report in support of Contention 8-E. As discussed in Section III.F.2 below, they cited it once in connection with Contention 9-E, and the Board considered Petitioners reliance on the Wexler Report in its ruling on that contention.

80 Exelon Generation Co., LLC (Oyster Creek Nuclear Generating Station), CLI-19-6, 89 NRC __, __ (slip op. at 7) (June 8, 2019) (citations omitted).

81 FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), CLI-12-8, 75 NRC 393, 404 (2012)

(citing Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-09-11, 69 NRC 529, 534 (2009)); see also Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2), CLI-99-4, 49 NRC 185, 194 (1999).

82 Zion, CLI-99-4, 49 NRC at 194.

83 Motion at 44.

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Contention 6-E.84 Thus, they argued that because CCS freshening efforts purportedly are not working, and are not expected to work in the future, the impacts to groundwater will be either moderate or large.85 While Petitioners sought a waiver of certain Part 51 regulations in connection with Contention 7-E, they also argued, in the alternative, that a waiver is unnecessary.

1. The Boards Ruling is Fully Supported by the Record As a threshold matter, the Board correctly concluded that Contention 7-E challenges a Category 1 issue: groundwater quality degradation (plants with cooling ponds in salt marshes).

Moreover, applying binding Commission case law, the Board properly rejected Petitioners argument that a waiver is not required because [n]o NRC regulation prohibits intervenors from challenging new information identified and evaluated by the NRC Staff in a DSEIS with respect to a Category 1 issue.86 The Board cited to the Commissions Limerick holding, in CLI-12-19, that any contention on a Category 1 issue amounts to a challenge to our regulation that bars challenges to generic environmental findings, thereby necessitating a rule waiver request.87 The Board also correctly applied the Commissions waiver standard in Section 2.335 and the associated Millstone test for ruling on waiver petitions. The first Millstone factor requires that the petitioner show that the rules strict application would not serve the purposes for which it was adopted.88 The Board concluded that the purpose of the NRCs designation of groundwater quality degradation (plants with cooling ponds in salt marshes) as a Category 1 issue is satisfied here unless Petitioners show that new information is significant insofar as it would lead to a determination that the environmental impact during the SLR period will be greater than small.89 84 Id. at 44-45.

85 Id. at 45-46.

86 LBP-19-8, 90 NRC at __ (slip op. at 27 n.37) (quoting Petition for Waiver at 6).

87 Id. (quoting Exelon Generation Co. (Limerick Generating Station, Units 1 & 2), CLI-12-19, 76 NRC 377, 384 n.39 (2012)).

88 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-05-24, 62 NRC 551, 559-60 (2005).

89 LBP-19-8, 90 NRC at __ (slip op. at 30) (citing 10 C.F.R. pt. 51, subpt. A, app. B, tbl. B-1) (emphasis in original).

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The Board reached this conclusion based upon its sound reading of another Commission decision (CLI-13-7) in the Limerick license renewal proceeding. Specifically, the Board explained that the Commissions designation of an issue as a Category 1 issue whose environmental impacts would be small during the SLR period reflects the NRCs expectations that [its] NEPA obligations have been satisfied with reference to [its] previously conducted environmental analysis in the GEIS.90 Based on its review of the Petition for Waiver and accompanying affidavit, the Board found that Petitioners failed to satisfy the first Millstone factor and thus denied their waiver request.91 In trying to address the first Millstone factor in their Petition for Waiver, Petitioners asserted only that strictly applying the Part 51 regulations at issue prevents challenges to the analysis of new information in the DSEIS and undermines the broad dissemination of information under NEPA.92 The Board thus correctly found that Petitioners failed to include in their Petition for Waiver a showing that the environmental impact to groundwater quality from operation of the CCS during the SLR period would be greater than small.93 In the absence of a waiver, the Board also correctly ruled that Contention 7-E is outside the scope of this proceeding because it impermissibly challenges NRC regulations, in contravention of Sections 2.309(f)(1)(iii) and 2.335(a).94

2. Contrary to Petitioners Claims, the Board Did Not Err in Finding That a Waiver Is Required and That Petitioners Failed to Meet the Millstone Test In arguing that the Board erred in its ruling on the waiver issue, Petitioners advance two entirely new (and confusing) lines of argument. First, they contend that, [b]ecause the Staff applied site-specific information to an ordinarily Category 1 issue and found a different impact than 90 Id. at 29-30 (discussing and quoting Exelon Generation Co. (Limerick Generating Station, Units 1 & 2), CLI-13-7, 78 NRC 199, 212-13 (2013)).

91 See id. at 30.

92 See Petition for Waiver at 7-8. These arguments are without merit for the reasons explained on pages 11-12 of FPLs Answer to the Petition for Waiver.

93 LBP-19-8, 90 NRC at __ (slip op. at 30).

94 Id.

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that in the GEIS, Petitioners are not challenging a generic environmental finding.95 Rather, Petitioners claim that they are challenging a new, site-specific finding that requires no waiver.96 In making this argument, Petitioners overlook two critical and dispositive facts. The first is that in the DSEIS, the NRC Staff treated the issue of groundwater quality degradation (plants with cooling ponds in salt marshes) as a Category 1 issue.97 The Staffs consideration of new and potentially significant information relative to this issue does not alter this fact. Nor does it allow Petitioners to eschew the Commissions holding in Limerick, as cited by the Board in LBP-19-8, that a waiver [is] required to litigate any new and significant information relating to a Category 1 issue.98 Thus, Petitioners wrongly claim that they did not challeng[e] a generic environmental finding as analyzed in the GEIS and codified in Table B-1 of 10 C.F.R. Part 51.99 The second fact is that the Staff concluded that groundwater quality degradation impacts resulting from [SLR] will be SMALL during the SLR period as a result of ongoing remediation measures and State and County oversight now in place at Turkey Point.100 Therefore, contrary to Petitioners belief, the Staff did not find a different impact than that in the GEIS for this issue as analyzed for the SLR term.101 Petitioners appear to have confused the Staffs finding of MODERATE groundwater quality degradation impacts for current operations with its finding of SMALL impacts during the subsequent license renewal term.102 Thus, their argument fails.

95 Petition for Review at 20.

96 Id.

97 See DSEIS at 4-2 to 4-3 (including Table 4-1).

98 LBP-19-8, 90 NRC at __ (slip op. at 29 n.39) (quoting Limerick, CLI-12-19, 76 NRC at 384) (internal quotation marks omitted).

99 Petition for Review at 20.

100 DSEIS at 4-5, Table 4-1, footnote (b). The SLR period begins in July 2032 for Unit 3 and April 2033 for Unit 4.

101 Petition for Review at 20.

102 DSEIS at 4-27.

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Petitioners argue, in the alternative, that the Board erred in applying the first Millstone factor because it construed the purpose of the NRCs Part 51 license renewal regulations and related GEIS in both too large and too narrow a fashion.103 Petitioners supporting rationales are patently flawed. They first claim that the Staffs consideration of new information on a Category 1 issue in the DSEIS is an acknowledgement that . . . 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.104 Petitioners logic, however, is contrary to the Commissions Limerick holdings (in CLI-12-19 and CLI-13-7) in that potentially new and significant information does not obviate the rule waiver requirement for Category 1 issues. Or, as the Board put it, [t]hat new information has been identified does not, contrary to Joint Intervenors understanding, automatically convert an issue from Category 1 to Category 2.105 And, as the Board further noted, the federal courts have held that the NRCs rule waiver process for Category 1 issues comports with NEPA.106 Petitioners also argue that the Board incorrectly applied the first Millstone factor because it focused on only one of the criteria that makes an issue Category 1the significance leveland dismissed the second criteria regarding site-specific measures.107 Petitioners appear to be referring to the NRCs definition of a Category 1 issue, which states, in part, that [m]itigation of adverse impacts associated with the issue has been considered in the analysis, and it has been determined that additional plant-specific mitigation measures are not likely to be sufficiently beneficial to warrant implementation.108 However, they do not explain how this element of the Category 1 103 Petition for Review at 21.

104 Id.

105 LBP-19-8, 90 NRC at __ (slip op. at 29 n.39).

106 Id. (citing Massachusetts v. NRC, 522 F.3d 115, 120 (1st Cir. 2008); NRDC v. NRC, 823 F.3d 641, 652 (D.C. Cir. 2016)).

107 Petition for Review at 22.

108 10 C.F.R. pt. 51, subpt. A, app. B, table B-1, note 2 (defining Category 1 and Category 2).

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definition relates to the first Millstone factor, much less show that the Board committed clear error in applying that factor.109 Simply put, they never connect the dots.

In summary, the Boards rejection of both Contention 7-E and the Petition for Waiver request are fully supported by the record and consistent with governing law.

E. The Board Correctly Concluded That Contention 8-E Is Inadmissible Contention 8-E alleged that the DSEIS fails to take a hard look at cumulative impacts on water resources.110 In particular, it challenged the NRC Staffs conclusions in Section 4.16.2.1 of the DSEIS regarding cumulative impacts to water resources because they rely on the success of Applicants remediation and freshening efforts.111

1. The Boards Ruling is Fully Supported by the Record In denying Contention 8-E, the Board rejected as unsupported its two core premises, namely that the NRC Staff: (1) improperly relied on FPLs remediation and freshening efforts, which Petitioners claim will not be successful; and (2) unlawfully substituted the existence of state and county requirements and oversight for a proper NEPA analysis.112 With regard to the first premise, the Board properly rejected this contention given Petitioners failure to specify any factual statement, document, or expert opinion to support this aspect of the contention.113 Consistent with Commission precedent, the Board found that Petitioners solitary and non-descript reference to a lengthy section [i.e.,Section IV.B] in their motion fails to satisfy section 2.309(f)(1)(v).114 109 To the extent that Petitioners are arguing that FPLs current State and County-required mitigation measures are inadequate or that additional mitigation measures are necessary, their arguments lack factual and legal support for the reasons noted by the Board in LBP-19-8. Furthermore, the NRC Staff reviewed the mitigation measures already in place at Turkey Point and found that those measures would result in SMALL impacts during the SLR term. Consistent with that finding, the Staff did not conclude that additional mitigation measures would be warranted.

110 Motion at 47.

111 Id. at 49.

112 LBP-19-8, 90 NRC at __ (slip op. at 31) (quoting Motion at 49).

113 Id. at 32.

114 Id. at 32 & n.41 (citing 10 C.F.R. § 2.309(f)(1)(v)).

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Based on the record, the Board also found that Contention 8-E, in which Petitioners only point[ed] to a portion of a single sentence in the DSEIS, failed to specify a deficiency in the NRC Staffs analysis of cumulative impacts, including its assessment of FPLs ongoing groundwater remediation activities.115 The Board therefore correctly concluded that Petitioners also failed to show the existence of a genuine material dispute with the DSEIS, including the Staffs statement that current modeling projections indicate that FPLs recovery well system will be successful in retracting the hypersaline plume back to within the boundaries of the CCS.116 Consistent with its ruling on Contention 6-E, the Board rejected Petitioners second premise for two reasons. First, it found that the NRC Staff did not base its cumulative impacts conclusion in Section 4.16.2.1 of the DSEIS solely on the existence of State and County enforcement requirements and oversight.117 Second, the Board reiterated that NEPA does not foreclose NRC Staff consideration of local enforcement and oversight activities when preparing the DSEIS.118

2. Contrary to Petitioners Claims, the Board Did Not Improperly Ignore or Refuse to Consider Substantial Evidence In Section III.B.3 of their Petition for Review, Petitioners claim that the Board ignored Petitioners substantial evidence of significant flaws in NRC Staffs analysis of Applicants groundwater remediation efforts.119 For reasons discussed in Section III.C.2, supra, Petitioners arguments lack merit. Petitioners, in their appeal, point to Mr. Wexlers opinions and underlying report, but they never specifically cited the Wexler Declaration in support of Contention 8-E itself.

The Commission and its licensing boards should not be expected to sift unaided through earlier 115 Id. at 32.

116 See id. at 33-34.

117 See id. at 34-35 (noting that the NRC Staff also considered FPLs groundwater modeling and modeling results, the operation and efficacy of FPLs recovery well system, and FPLs groundwater monitoring program).

118 Id. at 35.

119 Petition for Review at 14.

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briefs or other documents filed before the Board to piece together and discern a partys argument and the grounds for its claims . . . . References to such [declarations] and other exhibits should include page citations.120 Furthermore, contrary to Petitioners claims, the Board considered Mr.

Wexlers assertions in its ruling on Contention 9-E, as discussed in Section III.F.2 below.

In summary, the Boards rejection of Contention 8-E is fully supported by the record and consistent with governing law.

F. The Board Correctly Concluded That Contention 9-E Is Inadmissible Contention 9-E alleged that the DSEIS does not take a hard look at impacts to groundwater use conflicts. Petitioners asserted that the rate of groundwater withdrawal necessary to hit salinity targets and retract the hypersaline plume is substantially higher than evaluated in the DSEIS, and consequently will result in greater groundwater use conflicts than assessed in the DSEIS.121

1. The Boards Ruling is Fully Supported by the Record In denying the admission of Contention 9-E, the Board fully considered Petitioners arguments concerning groundwater use conflicts in light of the DSEISs contents, and ultimately concluded that Petitioners ignore[d] the DSEISs extensive consideration of that topic.122 Even though Petitioners cited only a single page of the Wexler Declaration in support of this particular contention, the Board nonetheless gave similar consideration to Mr. Wexlers arguments.123 120 Pilgrim, CLI-09-11, 69 NRC at 534 (quoting Hydro Res., Inc. (P.O. Box 15910, Rio Rancho, NM 87174), CLI-01-4, 53 NRC 31, 46 (2001)).

121 See Motion at 49-52.

122 LBP-19-8, 90 NRC at __ (slip op. at 36) (citing Motion at 49-50).

123 See id. at 37-40. As the Board noted, in Contention 9-E, Petitioners broadly cited to Section IV.B of their motion, and to page 2 of Mr. Wexlers Declaration. Although those references describe concerns about groundwater modeling and the NRC Staffs analysis, the Board found that they fail to provide a credible factual roadmap showing that those concerns will cause the predicted impacts on groundwater use conflicts to be different from those stated in the DSEIS. Id. at 38 n.46. The Board found that this failure, standing alone, renders Contention 9-E inadmissible pursuant to 10 C.F.R.

§ 2.309(f)(1)(vi) for failing to show a genuine dispute of material fact. Id. Nevertheless, as discussed herein, the Board considered Petitioners and Mr. Wexlers core arguments and found them to lack adequate support under Section 2.309(f)(1)(v).

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The Board properly concluded that Petitioners and Mr. Wexler failed to support the two premises underlying the contention: (1) FPLs effort to reduce the CCS salinity to 34 PSU is not working and is unlikely to work in the future; and (2) FPLs effort to mitigate the hypersaline plume is not working and is unlikely to work in the future.124 As to the first premise, the Board found that they failed to show a genuine dispute of material fact with regard to the 4-year timeline for achieving the 34 PSU salinity metric or the reasonableness of the model on which the timeline is based.125 As the Board noted, the DSEIS indicates that the State of Florida reviewed FPLs groundwater modeling, and performed confirmatory analyses that included modeling of drought conditions.126 The DSEIS also reflects the NRC Staffs independent review of that material.127 The Board found that Petitioners and Mr. Wexlers second premise heap[s] conjecture upon conjecture.128 More specifically, it rejected their argument that the second premise (i.e., that FPLs current plan to mitigate the hypersaline plume will not succeed) follows inexorably from the first premise (i.e., that FPLs current plan to reduce CCS salinity will not succeed).129

2. Contrary to Petitioners Claims, the Board Did Not Ignore the Wexler Declaration in Ruling on the Admissibly of Contention 9-E Petitioners contend that the Board improperly ignored Mr. Wexlers opinions. Plainly, that is not the case. Despite Petitioners cursory reference to a single page in the Wexler Declaration, the Board explicitly considered the views expressed by Mr. Wexler, and found them to be insufficiently supported to establish a genuine material dispute with the DSEIS.

124 LBP-19-8, 90 NRC at (slip op. at 37) (citing Motion at 52).

125 Id. at 38.

126 Id. at 36 n.45 (citing DSEIS at 4-29 to 4-30).

127 Id. (citing DSEIS at 4-29).

128 Id. at 39.

129 Id. Consistent with its previous rulings, the Board rejected Petitioners argument that the NRC Staff unlawfully substituted the existence of state and county requirements and oversight for a proper NEPA analysis. Id. at 36 n.43.

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Among other things, the Board cited Petitioners and Mr. Wexlers failure to acknowledge the DSEISs discussion that Florida regulatory authorities actively regulate and oversee FPLs: (1) reduction of CCS salinity; (2) mitigation of the hypersaline plume; (3) withdrawal of groundwater; and (4) contribution to groundwater use conflicts.130 It also found that Mr. Wexler provided no reason to conclude that Florida regulatory authorities would refrain from modifying current requirements affecting the volumes of water currently being used and the locations selected for adding the water, if necessary, to achieve the desired water quality goals in a manner that does not exacerbate groundwater use conflicts.131 Petitioners have provided no reason for the Commission to question or disturb the Boards contention admissibility analysis.

In summary, the Boards rejection of Contention 9-E is fully supported by the record and consistent with governing law. Petitioners have identified no clear error or abuse of discretion.

IV. CONCLUSION The Commission should deny the Petition for Review and affirm LBP-19-8.

Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d) Executed in Accord with 10 C.F.R. § 2.304(d)

Steven Hamrick, Esq. Paul M. Bessette, Esq.

Florida Power & Light Company Morgan, Lewis & Bockius LLP 801 Pennsylvania Ave., NW Suite 220 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Washington, D.C. 20004 Phone: (202) 349-3496 Phone: (202) 739-5796 E-mail: steven.hamrick@fpl.com E-mail: paul.bessette@morganlewis.com Executed in Accord with 10 C.F.R. § 2.304(d) Signed (electronically) by Ryan K. Lighty Martin J. ONeill, Esq. Ryan K. Lighty, Esq.

Morgan, Lewis & Bockius LLP Morgan, Lewis & Bockius LLP 1000 Louisiana St., Suite 4000 1111 Pennsylvania Avenue, N.W.

Houston, TX 77002 Washington, D.C. 20004 Phone: 713-890-5710 Phone: (202) 739-5274 E-mail: martin.oneill@morganlewis.com E-mail: ryan.lighty@morganlewis.com Counsel for Florida Power & Light Company Dated in Washington, DC this 13th day of December 2019 130 Id. at 40.

131 Id.

25

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of ) Docket Nos. 50-250-SLR & 50-251-SLR

)

FLORIDA POWER & LIGHT COMPANY ) ASLBP No. 18-957-01-SLR-BD01

)

(Turkey Point Nuclear Generating Units 3 and 4) ) December 13, 2019

)

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, the foregoing Florida Power &

Light Companys Answer Opposing Natural Resources Defense Councils, Friends of the Earths, and Miami Waterkeepers Petition for Review of LBP-19-8 were served upon the Electronic Information Exchange (the NRCs E-Filing System), in the captioned proceeding.

Signed (electronically) by Ryan K. Lighty Ryan K. Lighty, Esq.

Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Phone: (202) 739-5274 Fax: (202) 739-3001 E-mail: ryan.lighty@morganlewis.com Counsel for Florida Power & Light Company DB1/ 110254888