ML20323A036

11-13-20 Intervenors Final Brief (DC Cir.)(Case No. 20-1026)

ML20323A036
Person / Time
Site:	Turkey Point
Issue date:	11/13/2020
From:	Hamrick S, Kenneally M, Lighty R Florida Power & Light Co, Morgan, Morgan, Lewis & Bockius, LLP
To:	NRC/OGC, US Federal Judiciary, District Court for the District of Columbia
References
1871053, 20-1026
Download: ML20323A036 (55)

Text

ORAL ARGUMENT NOT YET SCHEDULED No. 20-1026 In the United States Court of Appeals F O R T H E D I S T R I C T O F C O L U M B I A C I R C U I T FRIENDS OF THE EARTH; NATIONAL RESOURCES DEFENSE COUNCIL, INC.;

MIAMI WATERKEEPER, Petitioners

v.

UNITED STATES NUCLEAR REGULATORY COMMISSION; UNITED STATES OF AMERICA, Respondents FLORIDA POWER & LIGHT COMPANY, Intervenor for Respondent On Petition for Review of Orders of the United States Nuclear Regulatory Commission FINAL BRIEF OF INTERVENOR FLORIDA POWER & LIGHT COMPANY STEVEN HAMRICK FLORIDA POWER & LIGHT COMPANY 801 Pennsylvania Avenue, N.W.

Suite 220 Washington, D.C. 20004 (202) 349-3496 steven.hamrick@fpl.com MICHAEL E. KENNEALLY RYAN K. LIGHTY MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 (202) 739-3000 michael.kenneally@morganlewis.com ryan.lighty@morganlewis.com Counsel for Florida Power & Light Company USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 1 of 55

i CERTIFICATE AS TO PARTIES, RULINGS & RELATED CASES In accordance with Circuit Rule 28(a)(1), Intervenor certifies:

(A)

Parties and amici

1.

Petitioners are Friends of the Earth, Natural Resources De-fense Council, Inc., and Miami Waterkeeper.

2.

Respondents are the U.S. Nuclear Regulatory Commission and the United States of America.

3.

Intervenor is Florida Power & Light Company (FPL), a wholly owned subsidiary of NextEra Energy, Inc., a publicly held com-pany. No company owns 10% or more of the stock of NextEra Energy, Inc. FPL is a rate-regulated electric utility engaged primarily in the generation, transmission, distribution and sale of electric energy in Florida. FPL provides service to its electric customers through an integrated transmission and distribution system that links its generation facilities to its customers. Turkey Point Nuclear Generating Units 3 and 4 are FPL electric generation facilities.

4.

Citizens Allied for Safe Energy has submitted an amicus brief in this Court.

USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 2 of 55

ii (B) Rulings under review

1.

NRC Record of Decision, Subsequent License Renewal Appli-cation for Turkey Point Nuclear Generating Unit Nos. 3 and 4 (Dec. 4, 2019) (JA1-18).

2.

Turkey Point Nuclear Generating Unit No. 3, Subsequent Re-newed Facility Operating License DPR-31 (Dec. 4, 2019) (JA19-26).

3.

Turkey Point Nuclear Generating Unit No. 4, Subsequent Re-newed Facility Operating License DPR-41 (Dec. 4, 2019) (JA27-34).

(C) Related cases FPL is unaware of any related cases.

USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 3 of 55

TABLE OF CONTENTS Page iii CERTIFICATE AS TO PARTIES, RULINGS & RELATED CASES........ i TABLE OF AUTHORITIES...................................................................... v GLOSSARY OF ABBREVIATIONS........................................................ ix INTRODUCTION...................................................................................... 1 STATEMENT OF JURISDICTION.......................................................... 3 STATEMENT OF THE ISSUES............................................................... 3 STATUTES & REGULATIONS................................................................ 4 STATEMENT OF THE CASE.................................................................. 4 I.

Statutory and regulatory background.................................... 4 II.

Factual background and procedural history.......................... 6

SUMMARY

OF ARGUMENT................................................................. 11 STANDARD OF REVIEW....................................................................... 13 ARGUMENT........................................................................................... 14 I.

The Court should reject Petitioners challenge to the agencys application of its environmental report regulations............................................................................. 14 A.

The agencys application of Section 51.53(c)(3) provides no basis for setting aside the agencys licensing decision......................................................... 14

1.

Section 51.53(c)(3)s function is limited and confined to the start of the license renewal process................................................................. 15 USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 4 of 55

TABLE OF CONTENTS (continued)

Page iv

2.

Because of its limited function, Section 51.53(c)(3) has no bearing on Petitioners challenge to the license renewals....................... 19 B.

Petitioners Section 51.53(c)(3) objection fails even on its own terms.................................................. 27 II.

The Court should reject Petitioners challenges to the agencys compliance with NEPA........................................... 31 A.

Petitioners cannot overturn the NRCs decision by ignoring the agencys evidence and conclusions..... 31 B.

The agency did not abdicate its NEPA responsibilities by taking state and local oversight into account.................................................. 34 C.

The agency properly analyzed the license renewals impacts on water resources......................... 39 CONCLUSION........................................................................................ 44 CERTIFICATE OF COMPLIANCE........................................................ 45 USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 5 of 55

• Authorities upon which we chiefly rely are marked with asterisks.

v TABLE OF AUTHORITIES Page(s)

CASES Am. Rivers v. FERC, 895 F.3d 32 (D.C. Cir. 2018)............................................................... 39 AquAlliance v. U.S. Bureau of Reclamation, 287 F. Supp. 3d 969 (E.D. Cal. 2018)................................................. 43 Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc.,

462 U.S. 87 (1983)................................................................................. 5 Beyond Nuclear, Inc. v. NRC, 707 F. Appx 8 (D.C. Cir. 2017)........................................................... 27 City of Oberlin v. FERC, 937 F.3d 599 (D.C. Cir. 2019)....................................................... 35, 39 EarthReports, Inc. v. FERC, 828 F.3d 949 (D.C. Cir. 2016)....................................................... 35, 39 Idaho ex rel. Idaho Pub. Utils. Commn v. ICC, 35 F.3d 585 (D.C. Cir. 1994)............................................................... 37 Ill. Com. Commn v. ICC, 848 F.2d 1246 (D.C. Cir. 1988)............................................... 20, 24, 37 Indian River Cnty. v. U.S. Dept of Transp.,

945 F.3d 515 (D.C. Cir. 2019)............................................................. 43 Kisor v. Wilkie, 139 S. Ct. 2400 (2019)................................................................... 27, 30 Little Sisters of the Poor Saints Peter & Paul Home v.

Pennsylvania, 140 S. Ct. 2367 (2020)......................................................................... 21 USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 6 of 55

TABLE OF AUTHORITIES (continued)

Page(s) vi Massachusetts v. United States, 522 F.3d 115 (1st Cir. 2008)................................................. 5, 6, 16, 17 Mayo v. Reynolds, 875 F.3d 11 (D.C. Cir. 2017)............................................................... 32 N.Y. State Dept of Soc. Servs. v. Dublino, 413 U.S. 405 (1973)............................................................................. 31 Natl Mining Assn v. McCarthy, 758 F.3d 243 (D.C. Cir. 2014)............................................................. 22

• Nat. Res. Def. Council v. NRC, 823 F.3d 641 (D.C. Cir. 2016)................................... 5, 7, 13, 16, 17, 23 Nat. Res. Def. Council v. NRC, 879 F.3d 1202 (D.C. Cir. 2018)............................................... 31, 32, 39 New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012)..................................................... 4, 5, 38

• New York v. NRC, 824 F.3d 1012 (D.C. Cir. 2016)......................................... 25, 37, 38, 43 NLRB v. SW Gen., Inc.,

137 S. Ct. 929 (2017)........................................................................... 29 North Carolina v. FAA, 957 F.2d 1125 (4th Cir. 1992)............................................................. 37 Nuclear Info. & Res. Serv. v. NRC, 509 F.3d 562 (D.C. Cir. 2007)....................................................... 31, 32 Perez v. Mortg. Bankers Assn, 575 U.S. 92 (2015)............................................................................... 22 USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 7 of 55

TABLE OF AUTHORITIES (continued)

Page(s) vii Potomac Alliance v. NRC, 682 F.2d 1030 (D.C. Cir. 1982)........................................................... 26 Robertson v. Methow Valley Citizens Council, 490 U.S. 332 (1989)........................................................... 32, 36, 37, 39 Sierra Club v. FERC, 867 F.3d 1357 (D.C. Cir. 2017)........................................................... 42 Sturgeon v. Frost, 136 S. Ct. 1061 (2016)......................................................................... 30 Tex. Rural Legal Aid, Inc. v. Legal Servs. Corp.,

940 F.2d 685 (D.C. Cir. 1991)............................................................. 28 Theodore Roosevelt Conservation Pship v. Salazar, 616 F.3d 497 (D.C. Cir. 2010)............................................................. 37 Thomas Jefferson Univ. v. Shalala, 512 U.S. 504 (1994)............................................................................. 27 U.S. Telecom Assn v. FCC, 825 F.3d 674 (D.C. Cir. 2016)....................................................... 27, 29 Vt. Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc.,

435 U.S. 519 (1978)............................................................................. 23 STATUTES 5 U.S.C.

§ 500 et seq. (Administrative Procedure Act)..................................... 13

§ 553.................................................................................................... 22

§ 706.............................................................................................. 13, 21 USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 8 of 55

TABLE OF AUTHORITIES (continued)

Page(s) viii 42 U.S.C.

§ 2011 et seq. (Atomic Energy Act)....................................................... 4

§ 2133.................................................................................................... 4

§ 2134.................................................................................................... 4

§ 4321 et seq. (National Environmental Policy Act of 1969)................ 1

§ 4332.................................................................................................... 4 RULES & REGULATIONS 10 C.F.R.

§ 2.309................................................................................................... 7

§ 2.335................................................................................................. 25

§ 2.340................................................................................................. 10 pt. 51........................................................................................... 5, 6, 15

§ 51.1................................................................................................... 15

§ 51.10................................................................................................. 15

§ 51.14................................................................................................. 15

§ 51.53............................................................................. 2, 9, 15, 17, 28

§ 51.71..................................................................................... 17, 18, 21

§ 51.95..................................................................................... 17, 18, 21 pt. 54..................................................................................................... 5 Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg. 28,467 (June 5, 1996)....... 16, 29, 30 Final Rule, Rules of Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, 54 Fed. Reg. 33,168 (Aug. 11, 1989)................................................... 17 Revisions to Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 78 Fed. Reg. 37,282 (June 20, 2013)................................................................................ 6, 16 USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 9 of 55

ix GLOSSARY OF ABBREVIATIONS APA Administrative Procedure Act Board Atomic Safety and Licensing Board Commission Nuclear Regulatory Commission (multimember body)

EIS Environmental Impact Statement FPL Florida Power & Light Company GEIS Generic Environmental Impact Statement JA Joint Appendix NEPA National Environmental Policy Act of 1969 NRC Nuclear Regulatory Commission (agency as a whole)

PSU Practical Salinity Units SEIS Supplemental Environmental Impact Statement USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 10 of 55

1 INTRODUCTION As Respondents explain, several threshold jurisdictional problems stand in the way of Petitioners claims. If the Court nonetheless reaches the substance of those claims, it should reject them in full.

Petitioners challenge the environmental analysis that the Nuclear Regulatory Commission (NRC) conducted before renewing the operat-ing licenses for two reactors at FPLs Turkey Point facility. The core of this challenge is their argument that the NRCs Environmental Impact Statement (EIS) insufficiently considered salinity levels in the facilitys Cooling Canal System and potential impacts on nearby water resources.

That argument is meritless. The NRCs detailed EIS devoted over 100 pages to water-resource impacts alone. Based on the empirical evidence, the agency reasonably concluded that FPLs ongoing monitoring and mit-igation have already helped reduce the canals salinity and that such pro-gress will continue and likely achieve the targets set by state and local regulators in advance of the licenses new renewal terms, which begin in 2032 and 2033. This analysis more than satisfies the NRCs obligation under the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. § 4321 et seq., to take a hard look at environmental impacts.

USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 11 of 55

2 Facing this difficulty, Petitioners lead appellate argument (at 27-

45) centers on a different procedural objection. They argue that the NRC erroneously applied one of its procedural regulations, 10 C.F.R.

§ 51.53(c)(3), because FPL was applying to renew the licenses for a second renewal term. This objection suffers from multiple problems of its own.

To start, this objection is unrelated to the substantive environmen-tal concerns Petitioners have asserted. The NRCs analysis of Petition-ers water-resource concerns was not affected by Section 51.53(c)(3). In-stead, the agency treated the canals salinity levels as relevant site-spe-cific information warranting a departure from the generic environmental analysis that Section 51.53(c)(3) authorizes for specified issues that do not vary from one site to the next.

Petitioners Section 51.53(c)(3) arguments also conflict with the reg-ulations context and overarching purpose. As the NRC explained, other regulations unambiguously required the EIS to use the generic environ-mental analysis. So the NRCs application of Section 51.53(c)(3) caused Petitioners no harm and made sense given the regulatory framework as a whole. For all these reasons, the Petition for Review should be denied if it is not dismissed on jurisdictional grounds.

USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 12 of 55

3 STATEMENT OF JURISDICTION FPL agrees with Respondents that the Court lacks jurisdiction over the Petition for Review because Petitioners seek review of non-final agency action and because Petitioners lack Article III standing to pursue certain claims. In accordance with Circuit Rule 28(d)(2), FPL will not repeat those arguments but will instead address Petitioners claims as-suming, for arguments sake, that jurisdiction exists.

STATEMENT OF THE ISSUES

1.

Whether the NRCs alleged misinterpretation of 10 C.F.R.

§ 51.53(c)(3) provides any basis under the Administrative Procedure Act (APA) or NEPA for granting Petitioners request to set aside the license renewals.

2.

Whether the NRCs interpretation of 10 C.F.R. § 51.53(c)(3) violates the regulations unambiguous terms in light of the regulations context and purpose.

3.

Whether the extensive analysis of potential water-resource impacts in the NRCs EIS failed to satisfy NEPAs hard look require-ment.

USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 13 of 55

4 STATUTES & REGULATIONS All applicable statutes, etc., are contained in the addendum to the Brief for Respondents.

STATEMENT OF THE CASE I.

Statutory and regulatory background Two statutes lie at the center of nuclear power plant licensing.

First, the Atomic Energy Act, 42 U.S.C. § 2011 et seq., authorizes the NRC to issue licenses to operate nuclear power plants. See id. §§ 2133, 2134(b). By statute, those licenses are limited to an initial term of 40 years, but they may be renewed. Id. § 2133(c). Second, NEPA requires agencies, including the NRC, to document the environmental impacts and possible alternatives to proposed major Federal actions significantly affecting the quality of the human environment. 42 U.S.C. § 4332(C).

The NRC has treated reactor license renewals as major federal actions affecting the quality of the human environment, for which the agency prepares an EIS. New York v. NRC (New York I), 681 F.3d 471, 476 (D.C.

Cir. 2012). Although NEPA requires that the agency take a hard look at the environmental consequences before taking a major action, it does not require agencies to elevate environmental concerns over other USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 14 of 55

5 appropriate considerations. Balt. Gas & Elec. Co. v. Nat. Res. Def.

Council, Inc., 462 U.S. 87, 97 (1983). As this Court has explained, NEPA is an essentially procedural statute intended to ensure fully informed and well-considered decisionmaking, but not necessarily the best deci-sion. New York I, 681 F.3d at 476.

Two key sets of NRC regulations in turn implement these two stat-utes requirements for license renewals. See Massachusetts v. United States, 522 F.3d 115, 119 (1st Cir. 2008). The first set, 10 C.F.R. pt. 54, focuses on technical issues such as equipment aging and safety sys-tems, while the second set, 10 C.F.R. pt. 51, focuses on fulfilling the NRCs NEPA obligations. Massachusetts, 522 F.3d at 119.

Since 1996, the NRC has sought to streamline its evaluation of en-vironmental issues during license renewal by resolving many issues ge-nerically. Nat. Res. Def. Council v. NRC (NRDC I), 823 F.3d 641, 644 (D.C. Cir. 2016). It classifies issues that can be adequately addressed generically as Category 1 issues and issues that require additional assessment for at least some plants at the time of the license renewal review as Category 2 issues. Id. (citation omitted).

USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 15 of 55

6 Category 1 issues are addressed in a Generic Environmental Im-pact Statement (GEIS). Massachusetts, 522 F.3d at 120. Many of the GEIS conclusions and findings were codified into NRC regulations through notice-and-comment rulemaking. 10 C.F.R. pt. 51, app. B to subpt. A, tbl. B-1. And they are periodically reevaluated, including most recently in 2013. Revisions to Environmental Review for Renewal of Nu-clear Power Plant Operating Licenses, 78 Fed. Reg. 37,282 (June 20, 2013).

In the course of reviewing a license renewal application, NRC staff produces a draft Supplemental EIS (SEIS) and, after an opportunity for public comment, a final SEIS. The agencys plant-specific SEIS ad-dresses Category 2 issues and complements the GEIS, which covers Cat-egory 1 issues. Massachusetts, 522 F.3d at 120. When the GEIS and SEIS are combined, they cover all issues that NEPA requires be ad-dressed in an EIS for a nuclear power plant license renewal proceeding.

Id.

II.

Factual background and procedural history On January 30, 2018, FPL applied to renew its operating licenses for two nuclear power reactors, Turkey Point Units 3 and 4, for a second USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 16 of 55

7 renewal term. JA1178 (89 N.R.C. at 254). As required by NRC regula-tion, FPL submitted an Environmental Report along with its application.

Id. (89 N.R.C. at 255).

Petitioners sought to intervene in the relicensing proceeding and requested a hearing. NRC procedural regulations require intervenors to identify the specific contentions they wish to litigate. NRDC I, 823 F.3d at 643; 10 C.F.R. § 2.309(a), (f)(1). Petitioners advanced five environmen-tal contentions, which were based on asserted deficiencies in FPLs Envi-ronmental Report. JA1179 (89 N.R.C. at 255); see 10 C.F.R. § 2.309(f)(2).

The Atomic Safety and Licensing Board granted Petitioners hear-ing request and concluded in a March 2019 decision that two of their con-tentions were admissible in part under the NRCs contention-admissibil-ity standards. JA1218-30 (89 N.R.C. at 286-95). Specifically, the Board admitted Contention 1-E to the extent it claimed that FPLs Environmen-tal Report failed to consider mechanical draft cooling towers as a reason-able alternative to continuing to use Turkey Points Cooling Canal Sys-tem as a means of cooling the reactors,1 and it admitted Contention 5-E 1 An overview of Turkey Points Cooling Canal System can be found in the NRCs EIS. JA1475-83 (FEIS 3-3 to 3-11).

USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 17 of 55

8 to the extent it claimed that the Environmental Report failed to attribute ammonia in nearby freshwater wetlands to the FPL reactors or consider certain ammonia-related impacts. JA1218-19 (89 N.R.C. at 286). The Board also concluded that the regulation authorizing initial license re-newal applicants to use the GEIS findings regarding Category 1 issues in their environmental reports, 10 C.F.R. § 51.53(c)(3), also applies to subsequent license renewal applicants. JA1185-1206 (89 N.R.C. at 260-76). Because this significant question of NRC procedure was an issue of first impression, the Board referred its ruling to the Commission.

JA1201 (89 N.R.C. at 273 n.46).

After the Boards March 2019 ruling, the NRC staff issued their Draft SEIS, which was over 400 pages long. Draft SEIS (Mar. 2019),

https://www.nrc.gov/docs/ML1907/ML19078A330.pdf. The Board con-cluded that the new information in the [Draft SEIS] cured the omissions identified in the two contentions, and it therefore dismissed those con-tentions as moot in a July 2019 decision. JA1348. In August 2019, Peti-tioners asked the Commission to review the Boards March and July de-cisions.

USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 18 of 55

9 Meanwhile, Petitioners had raised six further contentions based on alleged deficiencies in the Draft SEIS. Two of these contentions (Conten-tions 1-Eb and 5-Eb) sought to revive Petitioners earlier contentions re-garding a cooling tower alternative and ammonia discharge, while the remaining four contentions (Contentions 6-E, 7-E, 8-E, and 9-E) revolved around alleged deficiencies in the Draft SEISs evaluation of environmen-tal impacts on water resources. JA1882-1914. In a lengthy decision re-leased in October 2019, the Board found that none of these contentions was admissible, and it terminated the contested proceeding. JA1915. Af-ter that ruling, the NRC staff issued their Final SEISover 600 pages longreflecting certain revisions in response to public comments.

JA1446-1874 (Final SEIS). Petitioners did not challenge the Final SEIS, but sought Commission review of the Boards October 2019 decision.

The Final SEIS and the October 2019 Board decision carefully and extensively analyzed the license renewals potential environmental im-pacts. That includes extensive discussion of potential water-resource impacts, as well as specific evidence that FPLs monitoring and mitiga-tion efforts have already helped control and reduce salinity levels in the Cooling Canal System. JA1527, JA1531 (Final SEIS 3-55, 3-59); JA1896.

USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 19 of 55

10 The Final SEIS recognized that future environmental conditions would affect the pace of future salinity reductions. But it also recognized that FPLs close attention to salinity levels, combined with continuing state and local regulatory oversight, gave reason to believe that FPLs efforts would be successful before the start of the new renewal terms in 2032 and 2033. JA1529, JA1677 (Final SEIS 3-57, 4-29); see also JA1894-97, JA1913.

In light of the Boards October 2019 decision, and as NRC regula-tions require, see 10 C.F.R. § 2.340(a)(2)(i), the NRC staff proceeded to issue the renewed licenses and published a Record of Decision on Decem-ber 4, 2019.

Petitioners filed their Petition for Review in this Court on January 31, 2020even though their administrative appeals of the Boards March, July, and October 2019 decisions remained pending before the Commission. On April 23, 2020, the Commission agreed with the Boards application of Section 51.53(c)(3) but did not otherwise resolve Petition-ers administrative appeals. JA1971-2012.

USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 20 of 55

11

SUMMARY

OF ARGUMENT

1.

Petitioners arguments concerning 10 C.F.R. § 51.53(c)(3) fail for two independent reasonsboth stemming from Section 51.53(c)(3)s circumscribed function. Specifically, Section 51.53(c)(3) structures the environmental reports that the NRC requires license renewal applicants to submit with their applications. The regulation does not govern the contents of the EIS that the NRC staff ultimately prepares before approv-ing a license renewal. The EISs contents are controlled by separate reg-ulations that for all license renewals require the NRC staff to make use of the same GEIS findings that Section 51.53(c)(3) allows applicants to use in their environmental reports.

As a consequence, the NRCs application of Section 51.53(c)(3) does not prejudice environmental groups, and certainly did not prejudice Pe-titioners here. After all, the NRC staff addressed Petitioners core envi-ronmental concernsabout potential water-resource impactsusing in-formation specifically about Turkey Point rather than generically. Peti-tioners did not pursue any challenges to the GEIS generic findings in accordance with NRC procedural requirements. So, in short, the action Petitioners challengerenewing the licenseswas not affected by the USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 21 of 55

12 agencys interpretation of Section 51.53(c)(3). And in any event the agencys interpretation was sound in light of Section 51.53(c)(3)s lan-guage and place in the broader regulatory framework.

2.

Petitioners NEPA challenge fares no better. Contrary to their portrayal, the NRC thoroughly analyzed the renewals potential im-pacts on water resources given salinity levels in the Cooling Canal Sys-tem. The agencys EIS devoted over 100 pages to these issues and em-phasized empirical evidence showing that FPLs efforts to improve Cool-ing Canal System salinity levels help to reduce canal salinity. The Board emphasized this empirical evidence as well.

Instead of engaging with this analysis, Petitioners fault the EIS for also underscoring that state and local regulators are monitoring canal salinity and requiring FPL to achieve further success in reducing salinity levels. But Petitioners objection has no legal supportparticularly where, as here, the agency engaged in its own comprehensive analysis of the environmental issues. And Petitioners final objectionchallenging the accuracy of a particular model discussed by the NRCs EISis a good example of the sort of flyspecking efforts that cannot support a NEPA challenge. The EIS acknowledged that the model Petitioners challenge USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 22 of 55

13 has been refined in light of new evidence and may not perfectly predict future events given uncertainty about future weather conditions. Peti-tioners simply have no valid complaint under NEPA and its underlying case law about the NRCs thorough and careful environmental analysis.

STANDARD OF REVIEW This Courts review of NRC rules and licensing decisions is gov-erned by the Administrative Procedure Act (APA), 5 U.S.C. § 500 et seq.

See NRDC I, 823 F.3d at 648. This court is authorized to set aside the Commissions relicensing decision only if it was arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law. Id. (quot-ing 5 U.S.C. § 706(2)(A)). The Courts general posture of deference to-ward agency decision-making is particularly marked with regards to NRC actions because the [Atomic Energy Act] is hallmarked by the amount of discretion granted the Commission in working to achieve the statutes ends. Id. (citation omitted). And to the extent NRCs tech-nical judgment is before this Court, the Court is generally at [its] most deferential. Id. at 649 (citation omitted).

USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 23 of 55

14 ARGUMENT I.

The Court should reject Petitioners challenge to the agencys application of its environmental report regulations Petitioners devote half of their argument (at 27-45) to claiming that the agency violated 10 C.F.R. § 51.53(c)(3) when it allowed FPL to rely on the GEIS, which addresses environmental issues common to all license renewals. Petitioners interpretation of Section 51.53(c)(3) is not properly before the Court. Because the agency action that Petitioners challenge issuing the renewed licensesdoes not rest on how the agency inter-preted Section 51.53(c)(3), Petitioners cannot claim that the agencys in-terpretation altered the outcome here. In any event, Petitioners reading of Section 51.53(c)(3) is fundamentally flawed and the agencys contrary interpretation deserves deference.

A.

The agencys application of Section 51.53(c)(3) provides no basis for setting aside the agencys licensing decision Petitioners ignore the circumscribed role that Section 51.53(c)(3) plays in license renewal decisions. That limited role dooms Petitioners efforts to challenge the NRCs application of Section 51.53(c)(3) in this Court. Although Petitioners can petition for review to ensure the NRCs compliance with NEPA, see infra Section II, they cannot use Section USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 24 of 55

15 51.53(c)(3) as an independent basis for challenging the license renewals given Section 51.53(c)(3)s function in the NRCs decisionmaking process.

1.

Section 51.53(c)(3)s function is limited and confined to the start of the license renewal process Section 51.53(c)(3) falls within a broader set of regulations (10 C.F.R. pt. 51) designed to help the NRC fulfill its NEPA obligations. See 10 C.F.R. §§ 51.1(a), 51.10(a). Section 51.53(c) is the provision address-ing the environmental reports that the NRC requires license renewal ap-plicants to submit in order to aid the Commission in complying with sec-tion 102(2) of NEPA. Id. § 51.14(a). First, Section 51.53(c)(2) describes the information that must be included in all license renewal applicants environmental reports. Next, Section 51.53(c)(3) articulates certain fur-ther conditions and considerations that apply to environmental reports for those applicants seeking an initial renewed license and holding an operating license, construction permit, or combined license as of June 30, 1995. Id. § 51.53(c)(3). Among other things, [t]he environmental report for the operating license renewal stage is not required to contain analyses of the environmental impacts of the license renewal issues identified as Category 1 issues in appendix B to subpart A of this part. Id.

§ 51.53(c)(3)(i).

USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 25 of 55

16 The distinction between Category 1 and Category 2 issues has been central to the NRCs approach to license renewals for a quarter cen-tury. See Massachusetts, 522 F.3d at 119-20. Category 1 issues are is-sues that can be addressed generically because they apply to all plants or all plants in a particular sub-class, while Category 2 issues are issues that need to be addressed on a plant-by-plant basis. See id. at 120. Ra-ther than analyzing generic Category 1 issues afresh with each individ-ual plant operating license application,... the agency conducted an ex-tensive survey and generated findings, contained within [the GEIS], that answer Category 1 issues as to all nuclear power plants. Id. The find-ings in this GEIS underwent a rulemaking in 1996, were revisited and adjusted during a rulemaking in 2013, and are codified in Table B-1 of Appendix B to Subpart A of 10 C.F.R. Part 51. See Environmental Re-view for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed.

Reg. 28,467 (June 5, 1996); 2013 Final Rule, 78 Fed. Reg. 37,282.

Under this approach, a license-renewal applicant need only submit plant-specific information for Category 2 issues, as the Category 1 GEIS findings can generally be incorporated wholesale. NRDC I, 823 F.3d at 646 (citations omitted). At the same time, however, a license-renewal USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 26 of 55

17 environmental report still must address any new and significant infor-mation regarding the environmental impacts of license renewal of which the applicant is awareeven if that information concerns Category 1 issues. 10 C.F.R. § 51.53(c)(3)(iv); NRDC I, 823 F.3d at 646.

Yet the environmental report remains just a means to an end: the NRCs compliance with NEPA. The environmental report is essentially the applicants proposal for the NRC staffs draft EIS. Final Rule, Rules of Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,172 (Aug. 11, 1989). NRC staff use applicants environmental reports to prepare their own EIS, starting with a draft SEIS, which focuses on Category 2 issues and com-plements the GEISs discussion of Category 1 issues. See NRDC I, 823 F.3d at 646; Massachusetts, 522 F.3d at 120. The public then has an opportunity to comment on the draft SEIS, and NRC staff prepare a final SEIS only after reviewing the comments. NRDC I, 823 F.3d at 646.

The NRC staffs obligations in preparing the draft and final SEIS documents are not governed by Section 51.53(c). They are governed by separate regulations that detail what information the agency is obligated to address. See 10 C.F.R. § 51.71(d) (draft SEIS); id. § 51.95(c) (final USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 27 of 55

18 SEIS). There is no argument that either of these regulations is restricted to initial license renewals; they apply to any license renewal. Id.

§§ 51.71(d), 51.95(c). And they expressly require the NRC to rely on con-clusions as amplified by the supporting information in the GEIS for is-sues designated as Category 1 in appendix B to subpart A of this part.

Id. § 51.71(d); accord id. § 51.95(c)(4) ([T]he NRC staff, adjudicatory of-ficers, and Commission shall integrate the conclusions in the generic en-vironmental impact statement for issues designated as Category 1 with information developed for those Category 2 issues applicable to the plant under § 51.53(c)(3)(ii) and any new and significant information.). These regulations ensure that the agencys NEPA document always uses the GEISs discussion of Category 1 issues, even when the application is for a subsequent (rather than initial) license renewal.

Contrary to Petitioners suggestions, the GEIS contains no restriction limiting its application to initial renewals. On the contrary, it speaks broadly about renewing the license for an additional twenty years beyond the current term, JA380, JA384 (2013 GEIS 1-3, 1-7), and recognizes that there is no legal limitation on the number of times a license may be renewed, JA357 (2013 GEIS S-1). It consistently USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 28 of 55

19 discusses the effects of activities associated with a license renewal term, a phrase that the 2013 version of the GEIS specifically defines to encompass initial and subsequent license renewals as the period of time past the original or current license term for which the renewed license is in force. JA672 (2013 GEIS 7-27) (emphasis added). For this reason, the Board concluded that the 2013 GEIS explicitly purports to assess the environmental impacts associated with a 20-year renewal period, regardless of whether this period follows the original license or a current renewed license. JA1198 (89 N.R.C. at 270).

2.

Because of its limited function, Section 51.53(c)(3) has no bearing on Petitioners challenge to the license renewals Given Section 51.53(c)(3)s limited function in the broader regula-tory framework, Petitioners have no basis for raising a standalone chal-lenge to the NRCs interpretation of that provision. Even if Petitioners were correct in their interpretation of Section 51.53(c)(3), the NRCs in-terpretation of Section 51.53(c)(3) had no bearing on the agency decision that Petitioners challenge, granting the renewed licenses.

The Record of Decision confirms this. It does not invoke Section 51.53(c)(3), nor does it rely on FPLs Environmental Report. It relies on USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 29 of 55

20 the agencys own EIS, which renders Section 51.53(c)(3) and the Environ-mental Report moot. Petitioners are free to challenge that EISs compli-ance with NEPA (although their challenge fails for the reasons discussed below in Section II), but they cannot relitigate the soundness of FPLs Environmental Report, as opposed to the agencys EIS, at this juncture.

Indeed, remanding this case to the agency because of a purported impro-priety in the Environmental Report would be a meaningless gesture contrary to this Courts precedent. Ill. Com. Commn v. ICC, 848 F.2d 1246, 1257 (D.C. Cir. 1988) (per curiam).

Petitioners objection is particularly weak given their failure to ar-ticulate how Section 51.53(c)(3)s implications for FPLs Environmental Report affected the result here. They identify no issue that they were precluded from bringing to the NRCs attention because of how the agency construed Section 51.53(c)(3). In conclusory terms, they assert (at

28) that the NRC issued the renewed licenses without reviewing all of the potential environmental impacts. But they do not explain that vague assertion, much less connect the alleged inadequate review to the application of Section 51.53(c)(3). Nor do they explain how Section 51.53(c)(3) could itself have render[ed] the Turkey Point environmental USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 30 of 55

21 analysis inadequate, Petrs Br. 45, when Sections 51.71(d) and 51.95(c) required the agency to consider the same GEIS information. They simply ignore the obligations that Sections 51.71(d) and 51.95(c) place on the NRC staff. But as the Board (and Commission) repeatedly emphasized, those provisions undermine Petitioners whole argument. JA1189, JA1193, JA1203 (89 N.R.C. at 263 n.30, 267 & n.35, 274); JA1980-84.

Petitioners thus fail to show that the interpretation of Section 51.53(c)(3) affected the action they challenge.

Petitioners cannot make up for that failure by insisting that the APA relieves them of having to prove such an effect. On the contrary, the APA underscores their obligation to show prejudicial error. See 5 U.S.C. § 706; Little Sisters of the Poor Saints Peter & Paul Home v. Penn-sylvania, 140 S. Ct. 2367, 2385 (2020). There can be no showing of prej-udice here given the regulations requiring the agency to use the GEISs treatment of Category 1 issues. See 10 C.F.R. §§ 51.71(d), 51.95(c). The agencys NEPA document would have included that information regard-less of whether FPL relied on it in FPLs Environmental Report.

Petitioners nevertheless contend (at 33-36, 43) that the APA re-quired the NRC to conduct notice-and-comment rulemaking before USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 31 of 55

22 issuing its interpretation of Section 51.53(c)(3). But Petitioners do not explain how the NRCs willingness to let subsequent license renewal applicants use the GEIS Category 1 findings promulgates, amends, or repeals a legislative rule so as to trigger notice-and-comment require-ments. See Perez v. Mortg. Bankers Assn, 575 U.S. 92, 101 (2015).

Contrary to Petitioners assertions and as explained more fully in Section I.B. below, the agency did not amend Section 51.53(c)(3) or negate its language.

Besides, authorizing subsequent license renewal applicants to in-voke Section 51.53(c)(3) or rely on GEIS Category 1 findings would at most be an interpretive rule or general statement of policy regarding the existing regulation or a rule of agency organization, procedure, or prac-tice that simply alter[s] the manner in which the parties present them-selves or their viewpoints to the agency. Natl Mining Assn v. McCar-thy, 758 F.3d 243, 250, 252 (D.C. Cir. 2014) (citation omitted); see 5 U.S.C.

§ 553(b)(A). The NRCs interpretation of the regulation affects how li-cense renewal applicants prepare their environmental reports, but it does not alter substantive rights or interests. Petitioners identify no environ-mental concern that could not be brought before the agency through some USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 32 of 55

23 sort of procedural mechanismsuch as by seeking a waiver to challenge the GEISs Category 1 findings or by identifying new and significant in-formation that must be considered on a site-specific basis. And again, Section 51.53(c)(3) does not change the required contents of the agencys draft or final SEIS, alter the agencys obligation to comply with NEPA, or steer the NRCs ultimate decision on the license application.

NEPA does not provide a basis for Petitioners standalone procedural challenge, either. [T]he only procedural requirements im-posed by NEPA are those stated in the plain language of the Act. Vt.

Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 548 (1978). So although NEPA does impose a requirement that the NRC consider any new and significant information regarding environmental impacts before renewing a nuclear power plants operating license, it does not require agencies to adopt any particular internal decision-making structure. NRDC I, 823 F.3d at 652 (citation omitted). In par-ticular, NEPA says nothing about what sort of information the NRC should require from applicants to help the agency comply with its own NEPA obligations. And here too, the separate regulations governing draft and final SEIS documents prevent Petitioners from establishing USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 33 of 55

24 that the agencys interpretation of Section 51.53(c)(3) is in conflict with NEPA, for it does not diminish the Commissions capacity to take envi-ronmental concerns into account in its decisionmaking. Ill. Com.

Commn, 848 F.2d at 1259.

Petitioners make no real effort to show how their procedural chal-lenge has any practical relevance to their substantive concerns. Alt-hough Petitioners include a footnote saying (at 19 n.13) that most im-pacts to surface and groundwater are treated as Category 1 issues under the GEIS, the NRC staff here treated the Cooling Canal Systems poten-tial to indirectly impact the water quality of adjacent surface water bod-ies via a groundwater pathway as a new, site-specific issue for which it prepared a non-generic, site-specific analysis. JA1670 (Final SEIS 4-22). The staff also considered potential groundwater impacts in light of new information about the Cooling Canal System that was unknown at the time of the 2013 update to the GEIS. JA1674 (Final SEIS 4-26).

Accordingly, Petitioners cannot (and do not) contend that Section 51.53(c)(3) led the NRC staff to rely on the GEIS instead of analyzing Petitioners water-resource concerns on a site-specific basis. The NRC staff did perform that site-specific analysis.

USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 34 of 55

25 Instead, Petitioners briefly discuss (at 41-42) two Category 1 sub-jects unrelated to water-resource impactsin an apparent effort to sug-gest that the GEIS does not consider certain environmental impacts dur-ing a subsequent renewal term. The first of these two subjects is the revision to the 1996 GEIS analysis of the environmental impacts from hypothetical severe accidents at a nuclear facility. See JA673-74 (2013 GEIS E-1 to E-2). The second is the GEISs discussion of radiation expo-sure risks during a sixty-year period representing the original license term and initial renewal, as opposed to an eighty-year period encompass-ing two renewals. JA556-57, JA563 (2013 GEIS 4-138 to 4-139, 4-145).

But these issues are unrelated to the arguments Petitioners have advanced for denying FPLs application. Petitioners never raised any challenge to the NRCs evaluation of severe accident impacts, which re-ceived extensive site-specific discussion in the Final SEIS. JA1851-74 (Final SEIS E-1 to E-24). Nor did they properly pursue any challenge to the GEISs Category 1 findings on these issues by seeking the waiver that NRC regulations require. JA1198 (89 N.R.C. at 270 n.40); see 10 C.F.R.

§ 2.335(a)-(b); cf. New York v. NRC (New York II), 824 F.3d 1012, 1021 (D.C. Cir. 2016) ([T]he NRCs waiver provision provides an adequate USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 35 of 55

26 mechanism by which the petitioners can challenge the GEIS in site-spe-cific proceedings.).2 It is telling that Petitioners environmental arguments do not con-cern accidents or radiological exposure in this Court, either. Petitioners focus on water-resource impacts, see Petrs Br. 45-58, which again the NRC staff assessed on a site-specific basis. Because those arguments are unrelated to Section 51.53(c) and fail for the reasons described below, see infra Section II, this Courts decision in Potomac Alliance v. NRC, 682 F.2d 1030 (D.C. Cir. 1982), is inapposite and offers Petitioners no sup-port.

2 In addition to Petitioners dispositive failure to seek a waiver to pursue the issue, Petitioners argument concerning radiation exposure is un-founded even on its own terms. The relevant passages in the 2013 GEIS perform a straightforward incremental calculation of how much an individual persons fatal cancer risk increases during years forty to sixty if the risk increases at the same linear rate each year. JA556-57, JA563 (2013 GEIS 4-138 to 4-139, 4-145). A 50% increase in the time of exposure (sixty years rather than forty) leads to a 50% risk increase. Id. Using the same basic arithmetic, one can easily calculate the incremental effect on cancer risk for any length of exposure, in-cluding eighty years (which, being 33% longer than sixty years, would present a 33% risk increase beyond the sixty-year risk). In all events, as the GEIS notes, it is unlikely that a single person would be ex-posed for sixty straight years. Id. It is even more unlikely that a per-son would be exposed for eighty.

USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 36 of 55

27 B.

Petitioners Section 51.53(c)(3) objection fails even on its own terms Although there is no need for the Court to entertain Petitioners interpretive arguments given Section 51.53(c)(3)s lack of direct effect on the licensing decision, if the Court does so it should reject those argu-ments. The Court owes substantial deference to an agencys interpre-tation of its own procedural regulations. Thomas Jefferson Univ. v.

Shalala, 512 U.S. 504, 512 (1994); see also Beyond Nuclear, Inc. v. NRC, 707 F. Appx 8, 8 (D.C. Cir. 2017) (per curiam). The agencys interpreta-tion will prevail unless it is plainly erroneous or inconsistent with the plain terms of the disputed regulation. U.S. Telecom Assn v. FCC, 825 F.3d 674, 727 (D.C. Cir. 2016) (citation omitted); see also Kisor v. Wilkie, 139 S. Ct. 2400, 2411 (2019). Petitioners reading of Section 51.53(c)(3) is unpersuasive on its own terms and certainly cannot overcome this def-erential standard.

Petitioners portray their reading as required by the plain language of Section 51.53(c)(3). But that provision does not unambiguously require applicants for a subsequent license renewal to ignore or replace the GEISs Category 1 findings. At most, Section 51.53(c)(3) simply imposes certain requirements for initial license renewal applicants and allows USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 37 of 55

28 their environmental reports not to include analyses of the environmen-tal impacts of the license renewal issues identified as Category 1 issues in appendix B to subpart A of this part. 10 C.F.R. § 51.53(c)(3)(i). The regulation does not directly address subsequent license renewal appli-cants. Still less does it unambiguously require them to reanalyze Cate-gory 1 environmental impacts. Nor does any other regulation. Petition-ers reading is based entirely on a perceived negative implicationthat by saying that initial license renewal applicants must and may do certain things, the regulation implicitly means that only initial license renewal applicants must and may do those things.

As a result, Petitioners plain language arguments are meritless.

In substance, Petitioners negative-implication argument invokes the canon of interpretation expressio unius est exclusio alterius (the expres-sion of one is the exclusion of others). Tex. Rural Legal Aid, Inc. v. Legal Servs. Corp., 940 F.2d 685, 694 (D.C. Cir. 1991). But this Court has long held that, [w]hatever its usefulness in other circumstances,... this canon has little force in the administrative setting. Id. And in any set-ting, [t]he force of any negative implication... depends on context, with expressio unius applying only when circumstances support[] a sensible USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 38 of 55

29 inference that the term left out must have been meant to be excluded.

NLRB v. SW Gen., Inc., 137 S. Ct. 929, 940 (2017) (citation omitted).

Such an inference is inappropriate when the included item was probably included because lawmakers thought it was quite likely to arise. Id.

Just so here. When the NRC originally promulgated Section 51.53(c)(3) in 1996, it understandably was focused on initial license re-newals, the sort of renewals that were soon to begin (with the first sub-sequent license renewal application decades away). See 1996 Final Rule, 61 Fed. Reg. at 28,487. As the Board concluded, the word initial in section 51.53(c)(3) is properly viewed as a non-restrictive reference to the category of renewals the agency was then contemplating. JA1192 (89 N.R.C. at 266 n.33). At most, Section 51.53(c) is merely silent about the requirements for subsequent license renewals. But [t]o the extent this silence renders the regulations ambiguous..., the Commissions inter-pretation is hardly plainly erroneous. U.S. Telecom Assn, 825 F.3d at 727 (citation omitted).

In fact, Petitioners interpretation would create a conflict between Section 51.53(c) and the broader regulatory framework. Contrary to Pe-titioners claims (at 36-37), it would be improper to analyze the language USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 39 of 55

30 of Section 51.53(c)(3) in a vacuum. Sturgeon v. Frost, 136 S. Ct. 1061, 1070 (2016) (citation omitted). Instead, reviewing courts evaluate whether a regulation is subject to multiple reasonable interpretations based on indicia like text, structure, history, and purpose. Kisor, 139 S. Ct. at 2424 (emphasis added). That is the sort of holistic analysis that the Board and Commission appropriately adopted. JA1191 (89 N.R.C. at 265); JA1979-80.

The broader regulatory framework confirms the implausibility of Petitioners interpretation of Section 51.53(c)(3). As detailed above, the environmental report is merely an applicants proposal for the agencys EIS, which is required to use the GEIS discussion of Category 1 issues.

See supra Section I.A.1. Requiring applicants to ignore the GEIS discussion of Category 1 issues would result in environmental reports that contain an overwhelming amount of information that would be of no assistance to the NRC Staff in its preparation of the draft SEIS and would undermine the regulations stated purpose of improv[ing] the efficiency of the process of environmental review for applicants seeking to renew an operating license. JA1193 (89 N.R.C. at 266 n.34) (quoting 1996 Final Rule, 61 Fed. Reg. at 28,467). For this reason too, the NRCs USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 40 of 55

31 interpretation of 51.53(c) is superior and entitled to deference. Cf. N.Y.

State Dept of Soc. Servs. v. Dublino, 413 U.S. 405, 419-20 (1973) (We cannot interpret federal statutes to negate their own stated purposes.).

II.

The Court should reject Petitioners challenges to the agencys compliance with NEPA Petitioners contend (at 45-58) that the NRC failed to comply with NEPA by renewing the Turkey Point operating licenses without giving sufficient consideration to the renewals effect on water resources. These arguments disregard the NRC staffs comprehensive analysis of potential water-resource impacts in the EIS and the Boards sound reasons for re-jecting Petitioners arguments.

A.

Petitioners cannot overturn the NRCs decision by ignoring the agencys evidence and conclusions Judicial review of an environmental impact statement ensures that the agency has adequately considered and disclosed the environ-mental impact of its actions and that its decision is not arbitrary or ca-pricious. Nuclear Info. & Res. Serv. v. NRC, 509 F.3d 562, 568 (D.C.

Cir. 2007) (citation omitted). The Courts job is to ensure that the agency took a hard look at the environmental consequences of its decision to go forward with the project. Nat. Res. Def. Council v. NRC (NRDC II), 879 USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 41 of 55

32 F.3d 1202, 1208 (D.C. Cir. 2018) (citation omitted). Its role is not to flyspeck an agencys environmental analysis, looking for any deficiency no matter how minor. Id. (emphasis added) (citation omitted). After all, NEPA itself does not mandate particular results, but simply pre-scribes the necessary process. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989). For that reason, NEPA is not a suit-able vehicle for airing grievances about the substantive policies adopted by an agency, as NEPA was not intended to resolve fundamental policy disputes. Mayo v. Reynolds, 875 F.3d 11, 16 (D.C. Cir. 2017) (citation omitted).

Petitioners fail to identify any particular flaws in the agencys deci-sionmaking that could support their NEPA challenge. On the contrary, it is evident that [t]he NRC thoroughly examined the environmental consequences of renewing the licenses in a detailed SEIS that exceeded 650 pages. Nuclear Info. & Res. Serv., 509 F.3d at 569. Petitioners simply ignore much of the agencys discussionincluding well over 100 pages in the EIS that examined potential water-resource impacts. See JA1503-79, JA1669-84, JA1776-81, JA1794-1850 (Final SEIS 3-31 to 3-107, 4-21 to 4-36, 4-128 to 4-133, A-74 to A-130). The SEIS cited specific USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 42 of 55

33 evidence that FPLs efforts to improve Cooling Canal System salinity lev-els through freshening adding low-saline water or freshwaterare already helping control and reduce canal salinity. For instance, the NRC staff observed that [d]uring the first full year of freshening (June 1, 2017, through May 31, 2018), the average [Cooling Canal System] salin-ity was 49.5 PSU [i.e., practical salinity units], which is 10.8 PSU lower than the previous years (June 1, 2016, to May 31, 2017) average salinity of 60.3 PSU. JA1527 (Final SEIS 3-55); see also JA1531 (Final SEIS 3-

59) (Considering that the highest [Cooling Canal System] yearly salinity was 82.5 PSU (June 2014 through May 2015), it appears that a substan-tial reduction in [Cooling Canal System] salinity has occurred over the past several years, in part as a result of FPLs actions.).

Petitioners also ignore the Boards discussion. The Board empha-sized that the evidence and analysis in the SEIS refute Petitioners claim that FPLs efforts to reduce the salinity in the [Cooling Canal System]

have been unsuccessful. JA1896. The SEIS instead shows that FPLs freshening efforts have achieved a measure of success. Id. It did not merely assume[] success, as Petitioners assert (at 45). Petitioners make no effort to explain how the Boards interpretation of or reliance on USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 43 of 55

34 the SEIS is arbitrary and capricious. They merely repeat arguments they advanced to the Board without addressing the Boards reasoning.

B.

The agency did not abdicate its NEPA responsibilities by taking state and local oversight into account Petitioners raise a specific objection (at 46-49) to the NRC staffs observation that state and local regulators continually monitor water quality around Turkey Point. In particular, a consent agreement with Miami-Dade County obligates FPL to maintain freshening efforts; and a consent order with the Florida Department of Environmental Protection requires FPL to maintain the average annual salinity of the [Cooling Canal System] at or below 34 PSU beginning by the end of the fourth year of freshening activities. JA1528 (Final SEIS 3-56). Were FPL to fail to achieve that target, it would be obligated to submit a new plan detailing additional measures, and a timeframe, that FPL will imple-ment to achieve the threshold. JA1528-31 (Final SEIS 3-56 to 3-59).

The NRC staff recognized that it cannot be guaranteed that the FPL will achieve the 34 PSU threshold within the 4-year timeframe. JA1529 (Fi-nal SEIS 3-57). Nevertheless, the staff concluded that these continued actions by FPL and regulatory oversight by the [Florida Department of USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 44 of 55

35 Environmental Protection] provide additional assurance that the [Cool-ing Canal System] should reach the required PSU levels within the 13-year period prior to the beginning of the subsequent license renewal pe-riod. Id.

It was not arbitrary and capricious for the NRC staff to take this regulatory oversight into account as a source of additional assurance, particularly given the staffs independent review of the freshening ef-forts effects to date. In fact, this Court has already rejected the argu-ment Petitioners are advancing. For example, in City of Oberlin v. FERC, 937 F.3d 599, 610 (D.C. Cir. 2019), petitioners argued that the Federal Energy Regulatory Commission impermissibly delegated its obligations under NEPA to independently review... potential adverse impacts by allegedly over-relying on an applicants commitment to comply with safety standards promulgated by... a division of the Department of Transportation. But this Court held that it is reasonable for the Com-mission to reference such standards as a component of its review of a pipelines safety risks and to detail how... compliance with [those]

standards would address the specific safety concerns that commenters raised. Id.; see also EarthReports, Inc. v. FERC, 828 F.3d 949, 957-58 USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 45 of 55

36 (D.C. Cir. 2016) (rejecting objections that considering a state agencys views was an abdication of responsibility and that relying on a federal agencys ability to direct appropriate measures was unreasonable (cita-tion omitted)).

Those cases are consistent with NEPAs reliance on procedural mechanismsas opposed to substantive, result-based standards. Rob-ertson, 490 U.S. at 353. As the Supreme Court has explained, [t]here is a fundamental distinction... between [NEPAs] requirement that miti-gation be discussed in sufficient detail to ensure that environmental con-sequences have been fairly evaluated... and a substantive requirement that a complete mitigation plan be actually formulated and adopted, which NEPA does not impose. Id. at 352.

For this reason, Petitioners miss the mark in complaining (at 47-

48) that state and local regulators would revisit FPLs freshening efforts if those efforts do not achieve existing targets. Where, as here, state and local governmental bodies... have jurisdiction over the area in which the adverse effects need be addressed as well as the authority to mitigate them, it would be incongruous to conclude that the [federal agency] has no power to act until the local agencies have reached a final conclusion USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 46 of 55

37 on what mitigating measures they consider necessary. Robertson, 490 U.S. at 352-53. As this Court has recognized, [a]llowing adaptable mit-igation measures is a responsible decision in light of the inherent uncer-tainty of environmental impacts, not a violation of NEPA. Theodore Roosevelt Conservation Pship v. Salazar, 616 F.3d 497, 517 (D.C. Cir.

2010). Indeed, NEPA does not require agencies to discuss any particular mitigation plans that they might put in place, nor does it require agen-ciesor third partiesto effect any. New York II, 824 F.3d at 1017 (ci-tation omitted).

The cases Petitioners cite on this topic do not support them. Several of the cases upheld the agency actions, and they all addressed materially different circumstancesincluding, mostly notably, that the federal agencies in those cases had declined to prepare an EIS. See Idaho ex rel.

Idaho Pub. Utils. Commn v. ICC, 35 F.3d 585, 595 (D.C. Cir. 1994)

(agency prepared no EIS and merely required applicant to consult with various federal and state agencies); North Carolina v. FAA, 957 F.2d 1125, 1128 (4th Cir. 1992) (denying petition for review even though agency had declined to prepare an EIS because the agency independently reviewed and adopted another federal agencys assessment); Ill. Com.

USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 47 of 55

38 Commn, 848 F.2d at 1248, 1258 (upholding agency procedure because it obligated agency to prepare an environmental assessment reflecting independent staff investigation and evaluation); New York I, 681 F.3d at 481 (ruling that NRC could not avoid preparing an EIS based on the agencys predictions about environmental impacts nearly 100 years into the future).

Here on the other hand, unlike in New York I and the other cases Petitioners cite, the NRC has done exactly what NEPA requires for ma-jor federal actions; it prepared an environmental impact statement.

New York II, 824 F.3d at 1017. So long as that environmental impact statement complies with NEPA,... no more is required. Id.

The Final SEIS complies with NEPA. The Board correctly ex-plained that the NRC staff did not base its analysis solely on the exist-ence of enforcement requirements and continuing oversight of Florida and Miami-Dade County. JA1897. It based its analysis on, among other things, (1) the Staffs independent assessment of FPLs modeling for freshening the [Cooling Canal System]; and (2) the Staffs review of FPLs freshening plans and its progress in achieving freshening goals.

JA1897-98. Petitioners do not acknowledge the Boards reasoning, or USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 48 of 55

39 make any effort to explain why it is arbitrary and capricious. As the Board recognized, and in line with City of Oberlin, EarthReports, Robert-son, and other cases, the Final SEISs discussion of state and local over-sight in no way detracts from the NRC staffs analysis of water-resource impacts. If anything, it would have been unreasonable for the NRC not to take account of that continuing oversight of FPLs ongoing monitoring and freshening efforts.

C.

The agency properly analyzed the license renewals impacts on water resources The remainder of Petitioners NEPA challenge (at 49-58) similarly rests on mischaracterizations of the agencys decisionmaking. Petition-ers assert that the agency was overly optimistic that freshening would help reduce canal saline levels. But Petitioners cannot prevail simply because the Board came to a contrary conclusion, especially when that conclusion is about a technical subject as to which [courts] owe the Com-mission some deference. NRDC II, 879 F.3d at 1214. Petitioners must identify some specific arbitrary and capricious step in the agencys deci-sionmaking. They cannot do so simply by (again) citing cases in which agencies declined to prepare an EIS. See Am. Rivers v. FERC, 895 F.3d USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 49 of 55

40 32, 49 (D.C. Cir. 2018). The agency here thoroughly addressed each of Petitioners concerns and reasonably concluded that they lack merit.

For instance, Petitioners reassert (at 52-54) their argument that one of the models that the NRC staff consideredFPLs Tetra Tech 2014a modelwas based on an unrepresentative 22-month dataset. But Petitioners do not dispute that [t]he NRC staff and its contractors re-viewed the underlying assumptions that formed the basis of [this] model and did not identify any significant issues. JA1530 (Final SEIS 3-58).

Nor do they dispute that FPL specifically raised this issue in its com-ments, explaining that [a]s a result of continued monitoring, the model ha[d] been updated and further refined using a longer data record and that this newer, refined model indicated that a longer period of time would be needed to reduce the average annual [canal] salinity in the event of extended dry period or drought. JA1823 (Final SEIS A-103).

That is the same point that FPLs counsel made at oral argument before the Board, which Petitioners inaccurately portray as a concession that the original model was fatally flawed. JA1437-38. On the contrary, it shows that the model can be calibrated based on new data to refine its accuracy. Petitioners also try to exaggerate this models significance in USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 50 of 55

41 the Final SEIS. In reality, the NRC staff acknowledged that the model might not yield perfect predictions. Specifically, if drier conditions were to prevail, more freshening water or longer timeframes may be needed to mitigate elevated [canal] salinities. JA1823-24 (Final SEIS A-103 to A-104). Thus, contrary to Petitioners claim that the NRC swept the prob-lem under the rug, Petrs Br. 53, the SEIS fully discloses and considers this source of uncertainty in the modeling. NEPA requires nothing more.

Petitioners attempt to turn this caution against the NRC by argu-ing (at 54) that drier conditions will indeed prevail because of climate change. But the NRC staff acknowledged the potential effects of climate change, which do not show that FPLs freshening efforts are doomed to faillet alone that the NRCs contrary conclusion was arbitrary and ca-pricious. The NRC staff admitted that those freshening efforts may take longer than anticipated or may need to be reevaluated based on actual experience. Petitioners suggest (at 54-55) that this acknowledged un-certainty in timing and the ultimate effectiveness of the mitigative ac-tions reflects insufficient efforts by the agency to make reasonable fore-casts. JA1809 (Final SEIS A-89). But Petitioners arguments are inter-nally inconsistent, for Petitioners simultaneously fault the agency (at 55)

USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 51 of 55

42 for projecting that freshening will probably improve salinity levels before the start of the renewed license term. Nor was it arbitrary and capricious for NRC staff to conclude that if FPL does not satisfy its target within a four-year timeframe, FPL is nonetheless likely to meet that target within thirteen years. JA1529 (Final SEIS 3-57); see also JA1677 (Final SEIS 4-29) (The staffs current impacts projection... considers the fact that the subsequent license renewal term does not commence until 2032 and 2033, for Units 3 and 4, respectively, affording a substantial period of time for ongoing groundwater remediation activities to be effective and improvement in groundwater quality to be accomplished prior to and dur-ing the subsequent period of extended operations.). In other words, the agencys analysis contemplated the possibility of a substantial margin of error in the modeling (i.e., 13 years rather than 4 years) but determined that even under this remote and unlikely scenario, its impact conclusion would remain unchanged. Petitioners fail to explain how this conserva-tive forecast violates NEPAs rule of reason.3 3 Petitioners reliance (at 54-55) on Sierra Club v. FERC, 867 F.3d 1357 (D.C. Cir. 2017), is misplaced. In that case, the agency failed to assess an entire category of reasonably foreseeable effects from its proposed action. Id. at 1371-72. Here, although Petitioners may be dissatisfied with the NRCs conclusions or quantitative estimates, they cannot USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 52 of 55

43 Petitioners also err in claiming (at 55-56) that there is some incon-sistency between the NRC staffs expectation that climate change may have adverse cumulative effects on groundwater resources in the various ways that the agency identified, JA1780-81 (Final SEIS 4-132 to 4-133),

and its conclusion that the renewal-term impacts from the Cooling Canal System, specifically, will be small, JA1676 (Final SEIS 4-28). As the SEIS stressed repeatedly, FPL is able (and obligated) to adjust its behav-ior to maintain specific canal salinity levels regardless of future weather conditions.

make a comparable claim. Similarly, in AquAlliance v. U.S. Bureau of Reclamation, 287 F. Supp. 3d 969, 1028-29 (E.D. Cal. 2018), the agency failed to ground its decision in anticipated future conditions caused by climate change. Here, in contrast, the NRC staff directly analyzed the anticipated effects of climate change and found that on a cumulative basis they probably would adversely affect groundwater resources. JA1780-81 (Final SEIS 4-132 to 4-133). Given that conclu-sion, Petitioners cannot establish that the NRC was obligated to per-form more extensive modeling. See, e.g., New York II, 824 F.3d at 1020

([T]he NRC need not provide a perfect analysis, only one that is thor-ough and comprehensive[.] (citation omitted)); Indian River Cnty. v.

U.S. Dept of Transp., 945 F.3d 515, 533 (D.C. Cir. 2019) (NEPA does not demand perfection. Instead, it requires that an agency take a hard look at the reasonably foreseeable impacts of a proposed major federal action. (citation omitted)).

USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 53 of 55

44 Finally, because the NRC staffs assessment of salinity levels did not violate its NEPA obligations, there are no grounds for Petitioners contention (at 58) that the agency needs to reassess alternative actions.

CONCLUSION For all these reasons, the Court should either dismiss or deny the Petition for Review.

Dated: November 13, 2020 Respectfully submitted,

/s/ Michael E. Kenneally STEVEN HAMRICK FLORIDA POWER & LIGHT COMPANY 801 Pennsylvania Avenue, N.W.

Suite 220 Washington, D.C. 20004 (202) 349-3496 steven.hamrick@fpl.com MICHAEL E. KENNEALLY RYAN K. LIGHTY MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 (202) 739-3000 michael.kenneally@morganlewis.com ryan.lighty@morganlewis.com Counsel for Florida Power & Light Company USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 54 of 55

45 CERTIFICATE OF COMPLIANCE This brief complies with the type-volume limitation of Circuit Rule 32(e)(2)(B) because it contains 8,473 words, excluding the parts of the brief exempted by Federal Rule of Appellate Procedure 32(f) and Circuit Rule 32(e)(1).

This brief also complies with the typeface requirements of Federal Rule of Appellate Procedure 32(a)(5) and the type-style requirements of Federal Rule of Appellate Procedure 32(a)(6) because it has been pre-pared using Microsoft Word 2016 in Century Schoolbook 14-point font, a proportionally spaced typeface.

Dated: November 13, 2020

/s/ Michael E. Kenneally MICHAEL E. KENNEALLY USCA Case #20-1026 Document #1871053 Filed: 11/13/2020 Page 55 of 55