ML19357A263

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Reply of Friends of the Earth, Natural Resources Defense Council, and Miami Waterkeeper in Support of Petition for Review of the Atomic Safety and Licensing Boards Rulings in LBP-19-08
ML19357A263
Person / Time
Site: Turkey Point  NextEra Energy icon.png
Issue date: 12/23/2019
From: Ayres R, Cox K, Fettus G, Reiser C, Rumelt K
- No Known Affiliation, 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 55499
Download: ML19357A263 (7)


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,

)

December 23, 2019 Unit Nos. 3 and 4)

)

)

(Subsequent License Renewal Application)

)

REPLY OF FRIENDS OF THE EARTH, NATURAL RESOURCES DEFENSE COUNCIL, AND MIAMI WATERKEEPER IN SUPPORT OF PETITION FOR REVIEW OF THE ATOMIC SAFETY AND LICENSING BOARDS RULINGS IN LBP-19-08 Richard E. Ayres 2923 Foxhall Road, N.W.

Washington, D.C. 20016 202-722-6930 ayresr@ayreslawgroup.com Counsel for Friends of the Earth 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 Geoffrey Fettus, Caroline Reiser Natural Resources Defense Council 1152 15th Street, NW, Suite 300 Washington, DC 20005 202-289-2371 gfettus@nrdc.org creiser@nrdc.org Counsel for NRDC Kelly Cox Miami Waterkeeper 2103 Coral Way 2nd Floor Miami, FL 33145 305-905-0856 kelly@miamiwaterkeeper.org Counsel for Miami Waterkeeper

1

1.

Regarding Contention 5-Eb, Staff and Florida Power & Light Company (FPL) erroneously deny that Petitioners offered evidence that Turkey Point contributes to elevated ammonia levels and that crocodiles inhabit those areas, both of which are established in the record.1 Petitioners cited a letter from Miami-Dade County explaining that the data supports that the CCS2 is a contributing source to the ammonia concentrations, and that the statistically significant increasing trend has a concentration gradient emanating from the CCS.3 Petitioners also showed that crocodiles conceivably might be exposed to elevated ammonia levels4 through evidence in the Draft Supplemental Environmental Impact Statement (DSEIS) that crocodiles nest on berms next to canals with elevated ammonia.5 The Board did not properly exclude6 the data from DSEIS reference documents showing where elevated ammonia has been documented and where crocodiles nest;7 Chairman Hawkens allowed the evidence at the hearing8 and neither Staff nor FPL moved to strike it. The Board should have sent this factual matter to a full hearing.

2.

Regarding necessity for a waiver, the Board and FPL mistakenly assert that a waiver is 1 [FPL] Ans. Opposing [Petitioners] Pet. for Review of LBP-19-8 at 6 (Dec. 13, 2019) (FPL Br.); NRC Staffs Br. in Response to Intervenors Petition for Review of LBP-19-8 at 16 (Dec. 13, 2019) (NRC Br.). While both Staff and FPL uphold the Order for carefully and thoroughly review[ing] the DSEISs evaluation, NRC Br. 15, see also FPL Br. 5, at the admissibility stage the Board need only consider if Petitioners showed a genuine dispute. 10 C.F.R. § 2.309(f)(1).

2 Cooling canal system.

3 Letter from Wilbur Mayorga (Miami-Dade Cnty., Division of Envr. Resources Management) to Matthew J.

Raffenberg (Applicant) (July 10, 2018) (DSEIS cites as MDC 2018a) (emphasis added). Compare with FPL Br. 7, 8 n.39. While FPL now discounts this letter, FPL previously relied on it to assert the DSEIS recogniz[es] Turkey Point as a possible source of ammonia. FPLs Motion to Dismiss [] Petitioners Contention 5-E as Moot, at 4 (May 20, 2019) (ML19140A356).

4 This is the standard the DSEIS claims to have used to determine which species to analyze ammonia impacts for.

LBP-19-08, 90 NRC __ (slip op. at 14) (citing DSEIS at 4-62 to 4-67).

5 The confusion FPL portrays regarding which canals are within the CCS originates from the DSEISs inconsistent depiction of the CCS boundaries. Compare FPL Br. 8 with Biological Assessment at 28, Figure 12.

6 FPL Br. 8.

7 See [Petitioners] Petition for Review of the [Boards] Ruling in LBP-19-08 at 4 n.16&17 (Nov. 18, 2019)

(Petition).

8 Official Transcript of Proceedings, [FPL] Turkey Point Nuclear Generating Units 3 and 4 at 353-354 (Sept. 9, 2019) (Tr.).

2 required for Contention 7-E under Limerick CLI-12-19. In CLI-12-19 the petitioner used new information in the license renewal Environmental Report to dispute the continued viability of analysis in the original license issuance Environmental Statement.9 The Commission explained that, if a petitioner wishes to litigate the adequacy of a previously-conducted [] analysis in a license renewal adjudication, a waiver [] would be required.10 However, a [Petitioner] may challenge the adequacy of the new information provided in the [] Environmental Report without a waiver.11 Here, Petitioners only challenge the adequacy of new information, not any previously conducted analysis.12 Generic rulemakings are meant to remov[e]... generic issues from staff review and adjudicatory resolution in individual license proceedings,13 not to shield the Staffs site-specific analysis in an individual license proceeding. Staff opened the door to this issue by rejecting the vetted generic analysis from the GEIS and instead conducting new site-specific analysis that has yet to be publicly scrutinized as required by NEPA. Petitioners should not be barred or forced to jump through hoops to challenge the inadequacies of this new analysis.

3.

Regarding the first Millstone factor for obtaining a waiver, the requisite showing is that the rules strict application would not serve the purposes for which it was adopted.14 To satisfy this requirement, the Board would demand proof that during the subsequent license renewal 9 Exelon Generation Co. (Limerick Generating Station, Units 1 and 2), CLI-12-19, 76 NRC 377 (2012). While the challenge in CLI-12-19 was about the exemption of site specific severe accident mitigation alternatives (SAMA) analysis from a license renewal Environmental Report because Staff previously considered it in the license issuance Environmental Statement, the Commission liked it to a petitioner claiming new information challenges a Category 1, broadly applicable environmental finding.

10 Exelon Generation Co. (Limerick Generating Station, Units 1 and 2), CLI-13-7, 78 NRC 199 (slip op. at 14)

(relying on CLI-12-19).

11 CLI-12-19, 76 NRC at 386.

12 Contrary to FPLs argument, Petitioners do not challenge the GEIS. The DSEIS says it treats the issue as Category 1, FPL Br. 19 citing DSEIS at 4-2 to 4-3, but functionally treated it as Category 2 by conducting site-specific analysis. DSEIS 4-24 to 4-28. And while the DSEIS concludes the impacts will be small during the subsequent license renewal period, FPL Br. 19, Petitioners establish a genuine dispute with that conclusion as the site-specific measures required to reach the small impact level are unlikely to be successful. Petition 45.

13 Environmental Review for Renewal of Operating Licenses, 58 Fed. Reg. 47016, 47018 (Sep. 17, 1991).

14 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-05-24, 62 NRC 551 (2005).

3 period groundwater quality impacts would be greater than small as determined in the GEIS which is what the Contention itself argued.15 Thus, under the Boards ruling, Petitioners would need a waiver in order to obtain an opportunity to prove the merits of a contention, but they could not get a waiver without first proving the merits of their contention.16 Surely this Catch-22 cannot be the Commissions intent in its Millstone opinion.

When Staff included new, site-specific analysis on this Category 1 issue in the DSEIS it revealed that the NEPA obligations have [not] been satisfied with reference to [] previously conducted environmental analysis in the GEIS,17 the purpose of the rule is undermined, and a second look is needed to satisfy NEPA, despite the Commissions general rule.18

4.

Regarding the Board denying Contentions 6-E, 8-E, and 9-E, it ignored, overlooked, or misunderstood the evidence. The record demonstrates that the DSEIS relied on an abandoned and unreliable model19 to conclude FPLs freshening effort will reduce annual average salinity levels in the CCS to 34 practical salinity units (PSU). FPL abandoned the model because, in its counsels own words, the model relied on wetter than normal weather data that skewed the simulated results of freshening to show salinity would be reduced to the target level in less than a year.20 But there are no other modeling results in the DSEIS showing the target will ever be met.

Thus, the DSEIS lacks a reliable scientific basis to conclude freshening effort will succeed.

15 LBP-19-8 (slip op. at 30). Notably, Staff determined that groundwater quality impacts at Turkey Point are moderate today, but found (erroneously) that it will be small in the future based on site-specific remediation.

16 See id. (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 Joint Intervenors 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.).

17 CLI-13-7, 78 NRC 199 (slip op. at 13, 16-17) (the purpose of [Category 1 designation] then, is to reflect our view that one [] analysis [of the Category 1 issue], as a general matter, satisfies our NEPA obligation).

18 If, contrariwise, the Commission believes the only way to satisfy the first Millstone requirement is to show that the environmental impacts will be greater than stated in the DSEIS during the SLR period, Petitioners have done so.

See [Petitioners] Motion to Migrate Contentions & Admit New Contentions in response to [] Staffs [DSEIS], at 44-47 (June 24, 2019) (Motion).

19 Described as the Tetra Tech 2014a in the DSEIS and the 2014 Model in the Petition.

20 Tr. at 391:20-392:1; 428:4-25.

4 During oral argument, FPLs counsel referred to an updated version of the model21 he contended factors in drier and hotter climatic conditions22 and identified [a] longer period of time would be needed... in the event of extended dry period or drought.23 This alleged updated model and its results were not provided in the DSEIS analysis: nor was any updated version identified in the reference section.24 If the Staff ever actually considered such an updated model or results, the record contains no evidence of it, and neither Petitioners nor the public were provided an opportunity to review them. Public scrutiny is the fundamental mechanism provided by NEPA to improve agency decisionmaking.25 Sheltering model results from public review fundamentally corrodes the purpose and letter of NEPA.

The Boards clear error on the CCS salinity issue permeates the rest of its decision. The remaining bases for the DSEIS CCS salinity predictions are pure speculation (e.g., the presumption of compliance, regulatory oversight provide[s] assurance that the CCS should reach the salinity target, FPL can implement a new plan if the current one fails, etc.). There is simply no empirical evidence presented in the DSEIS to support the assertion that FPL will meet its CCS salinity target. As Petitioners explained throughout these proceedings, reliance on these assumptions and speculation do not satisfy NEPAs hard look standard.

The Boards criticism of Petitioners expert Mr. Wexlers opinion and report are baffling.

21 Counsel stated, I think the big problem here stems from the fact that [Petitioners counsel] is focused on a model that has essentially been outdated or superseded. Tr. at 428:5-7. The big problem, which is one source of the Boards error, is that the DSEIS relied on this model to conclude the freshening effort would reduce salinity to the target level.

22 These are the same flaw Petitioners identified in their Motion. See, e.g., Motion at 41.

23 ML19141A047 attach. at 8-9.

24 See DSEIS at 3-49 (discussing Tetra Tech 2014a) and 6-31 (reference for Tetra Tech 2014a). FPLs contrary arguments are demonstrably misleading. FPL rephrased a quote from the DSEIS to suggest recently published modeling results predict CCS salinity beyond 2017. FPL Br. 14 (emphasis added). But this modeling was a backward-looking effort to calibrate the original model to better fit measured salinity data from June 2015 to May 2017, not beyond. FPL 2017a at 5-6; 5-35, Figure 5.2-5.

25 Dept of Transp. v. Pub. Citizen, 541 U.S. 752, 769 n.2 (2004); Delaware Riverkeeper Network v. F.E.R.C., 753 F.3d 1304, 1313 (D.C. Cir. 2014) (an agency must comply with principles of reasoned decisionmaking [and]

NEPAs policy of public scrutiny.) (internal quotations omitted).

5 Petitioners presented evidence in the form of Mr. Wexlers modeling and opinions that established a genuine issue of material fact regarding FPLs plume retraction efforts. Based on this modeling, Mr. Wexler opined that FPLs current plan will not retract the hypersaline plume.26 The Board arbitrarily rejected his opinions for two flawed reasons: (1) he fail[ed] to acknowledge the DSEISs discussion that regulatory oversight exists; and (2) he provide[d]

no reason to conclude that Florida would refrain from modifying current requirements... to achieve the desired water quality goals.27 The first reason is nonsensical since the existence of oversight is not in dispute; the science is. The second is exasperatingthe Board assumes a solution exists and then admonishes Mr. Wexler for not proving the state wouldnt adopt it. The genuine dispute of material fact was not eliminated; the Board should have admitted the Contentions.

5.

Regarding these proceedings, Petitioners are not required to prove their case in initial pleadings; only to make the Board aware that sufficient facts and opinion exist to justify further investigation.28 Here Petitioners met the Commissions pleading requirements.29 These proceedings focus[ed] litigation on concrete issues, and result[ed] in a clearer, more focused record for decision.30 A licensing board may not use the Commissions contention admissibility standards as a justification for ignoring or misconstruing evidence presented by a Petitioner.

/Signed electronically by/

Richard E. Ayres Geoffrey Fettus Kelly Cox December 23, 2019 Kenneth Rumelt Caroline Reiser 26 Decl. of E.J. Wexler in Support of [Petitioners] (Jun. 28, 2019) (ML19179A314); Petition at 15-16.

27 FPL Br. 25 (citing LBP-19-8, 90 NRC at (slip op. at 40)).

28 Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 & 4), LBP-09-17, 70 NRC 311, 329 (2009) (citing Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-98-21, 43 N.R.C. 235, 249 (1996)).

29 For example, FPL admits Petitioners citation to Section IV.B of their Motion describe[s] concerns about groundwater modeling and the NRC Staffs analysis. FPL Br. 23 n.123. Yet the Board ignores this information in its review of Contentions 6E, 8E, and 9E.

30 See, e.g., Crow Butte Resources, Inc. (In Situ Leach Facility, Crawford, NE), LBP-15-15, 81 NRC 598, 601 (2015) (citing Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2202 (Jan. 14, 2004)).

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,

)

December 23, 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, a copy of the foregoing REPLY OF FRIENDS OF THE EARTH, NATURAL RESOURCES DEFENSE COUNCIL, AND MIAMI WATERKEEPER IN SUPPORT OF PETITION FOR REVIEW OF THE ATOMIC SAFETY AND LICENSING BOARDS RULINGS IN LBP-19-08 was served upon the Electronic Information Exchange (EIE, the NRCs E-Filing System), in the above-captioned docket, which to the best of my knowledge resulted in transmittal of same to those on the EIE Service List for the captioned proceeding.

/s/ Caroline Reiser Caroline Reiser Natural Resources Defense Council 1152 15th Street, NW, Suite 300 Washington, DC 20005 202-717-2341 creiser@nrdc.org Counsel for NRDC December 23, 2019