ML21257A240

NextEra Energy Point Beach, Llc'S Brief in Opposition to Physicians for Social Responsibility Wisconsin'S Appeal of LBP-21-05

ML21257A240
Person / Time
Site:	Point Beach
Issue date:	09/14/2021
From:	Hamrick S, Leidich A, Doris Lewis Point Beach, Pillsbury, Winthrop, Shaw, Pittman, LLP
To:	NRC/OCM
SECY RAS
References
50-266-SLR, 50-301-SLR, LBP-21-05, RAS 56240, Subsequent License Renewal
Download: ML21257A240 (30)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of )

)

NextEra Energy Point Beach, LLC ) Docket Nos. 50-266-SLR

) 50-301-SLR (Point Beach Nuclear Plant, Units 1 and 2) )

NextEra Energy Point Beach, LLCs Brief in Opposition to Physicians for Social Responsibility Wisconsins Appeal of LBP-21-05 Steven Hamrick, Esq. David R. Lewis Counsel for NextEra Energy Point Beach, Anne R. Leidich LLC Pillsbury Winthrop Shaw Pittman, LLP 801 Pennsylvania Ave., N.W. Suite 220 Seventeenth Street, NW Washington, D.C. 20004 Washington, DC 20036 Tel. 202-349-3496 Telephone: 202-663-8474 E-mail: steven.hamrick@fpl.com Facsimile: 202-663-8007 Email: david.lewis@pillsburylaw.com Email: anne.leidich@pillsburylaw.com Counsel for NextEra Energy Point Beach, LLC Dated: September 14, 2021 4849-1584-1530.v2

Table of Contents Page I. Introduction ............................................................................................................................... 1 II. Standard of Review ................................................................................................................... 1 III. Statement of the Case................................................................................................................ 3 IV. Argument .................................................................................................................................. 5 A. The Board Correctly Rejected Contention 1 ....................................................................... 5

1. Petitioners New Attempt to Reconcile Clean Water Act Section 511(c)(2) and NEPA Should Be Rejected as Incorrect and Untimely ................................................. 7

2. Petitioners Contention 1 Should Be Rejected for Additional Reasons ..................... 12 B. The Board Correctly Rejected Contention 2 ..................................................................... 13

1. The Board Correctly Rejected Contention 2 as an Impermissible Attack on NRC Rules and on Point Beachs Current Licensing Basis ................................................. 14

2. The Board Correctly Rejected Contention 2 for Lacking Adequate Support and Failing to Demonstrate a Genuine Dispute with the Application ............................... 16 C. The Board Correctly Rejected Contention 3 ..................................................................... 19 V. Conclusion .............................................................................................................................. 24 i

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TABLE OF AUTHORITIES Page(s)

Cases Advanced Medical Systems, Inc. (One Factory Row, Geneva, Ohio 44041),

CLI-94-6, 39 N.R.C. 285, 297 (1994)........................................................................................2 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-06-24, 64 N.R.C. 111, 121 (2006)......................................................................................2 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-07-08, 65 N.R.C. 124, 132-33 & n.38 (2007), affd, New Jersey Dept of Envtl. Prot. v. NRC, 561 F.3d 132, 137 n.5 (3d Cir. 2009) .....................................................11 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-09-7, 69 N.R.C. 235, 260 (2006)........................................................................................2 Calvert Cliffs 3 Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3),

LBP-10-24, 72 N.R.C. 720, 750 (2010)...................................................................................21 Calvert Cliffs Coordinating Comm. v. U.S. Atomic Energy Comm.,

449 F.2d 1109 (D.C. Cir. 1971) .................................................................................................8 Carolina Power and Light Co. (H.B. Robinson, Unit 2),

ALAB-569, 10 N.R.C. 557, 561 (1979) ....................................................................................9 Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2),

ALAB-793, 20 N.R.C. 1591, 1597 n.3 (1984) ..........................................................................2 Consumers Power Co. (Midland Plant, Units 1 and 2),

ALAB-691, 16 N.R.C. 897, 908 n.8 (1982) ..............................................................................2 Detroit Edison Co. (Fermi Power Plant Independent Spent Fuel Storage Installation),

CLI-10-03, 71 N.R.C. 49, 51 n.7 (2010)..................................................................................11 Entergy Nuclear Vt. Yankee, LLC, and Entergy Nuclear Operations, Inc.

(Vt. Yankee Nuclear Power Station),

CLI-07-16, 65 N.R.C. 371 (2007)........................................................................................6, 10 Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2),

CLI-12-19, 76 N.R.C. 377, 379-80 (2012) ................................................................................2 Exelon Generation Co. (Peach Bottom Atomic Power Station, Units 2 and 3),

CLI-20-11, 92 N.R.C. __, slip op. at 8-9 (2020)........................................................................2 ii 4849-1584-1530.v2

Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),

ALAB-832, 23 N.R.C. 135, 141 (1986), revd in part on other grounds, CLI-87-12, 26 N.R.C. 383 (1987) ...............................................................................................2, 12 New England Coalition v. US Nuclear Regulatory Commission, 582 F.2d 87 (1st Cir. 1978) ........................................................................................................9 NextEra Energy Point Beach, LLC (Point Beach Nuclear Plant, Units 1 and 2),

LBP-21-05, __ N.R.C. __, slip op. (July 26, 2021) (LBP-21-05) ................................ passim NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1),

CLI-12-5, 75 N.R.C. 301, 307 (2012)..................................................................................2, 23 Niagara Mohawk Power Corp. (Nine Mile Point Nuclear Station, Unit 2),

ALAB-264, 1 N.R.C. 347, 357 (1975) ......................................................................................2 Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation),

CLI-01-9, 53 N.R.C. 232, 235 (2001)......................................................................................18 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-04-22, 60 N.R.C. 125, 140 (2004)....................................................................................11 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-05-1, 61 N.R.C. 160, 166 (2005)........................................................................................2 Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2),

ALAB-573, 10 N.R.C. 775, 789 (1979) ....................................................................................2 Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2),

CLI-77-8, 5 N.R.C. 503, 543 (1977)..........................................................................................9 Shieldalloy Metallurgical Corp. (License Amendment Request for Decommissioning of the Newfield, New Jersey Facility),

CLI-07-20, 65 N.R.C. 499, 503 (2007)......................................................................................2 Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4),

CLI-11-8, 74 N.R.C. 214, 220 (2011)........................................................................................2 Tennessee Valley Authority (Yellow Creek Nuclear Plant, Units 1 and 2),

ALAB-515, 8 N.R.C. 702, 709 (1978) ..................................................................................8, 9 Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 2),

CLI-93-10, 37 N.R.C. 192, 198 (1993)......................................................................................6 USEC, Inc. (American Centrifuge Plant),

CLI-06-10, 63 N.R.C. 451, 458 (2006)................................................................................2, 11 iii 4849-1584-1530.v2

Yankee Atomic Elec. Co. (Yankee Nuclear Power Station),

LBP-96-2, 43 N.R.C. 61, 90 (1996).........................................................................................21 Rules and Regulations Code of Federal Regulations Title 7, Section 1410.63 ...........................................................................................................21 Title 10, Part 50......................................................................................................14, 15, 16, 18 Title 10, Section 2.309(c).........................................................................................................14 Title 10, Section 2.311(b) ..........................................................................................................1 Title 10, Section 50.61 .............................................................................................................18 Title 10, Section 51.45(c)...........................................................................................................5 Title 10, Section 51.53(c)(3)(ii)(B) ............................................................................5, 6, 10, 11 Title 10, Section 54.3 ...............................................................................................................15 Title 10, Section 54.19 ...............................................................................................................3 Title 10, Section 54.21 ...............................................................................................................3 Title 10, Section 54.21(c)(1) ....................................................................................................14 Title 40, Part 125........................................................................................................................5 Federal Register 86 Fed. Reg. 6,684 (Jan. 22, 2021) ............................................................................................3 United States Code Title 33, Section 1371(c)(2) .......................................................................................................7 iv 4849-1584-1530.v2

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of )

)

NextEra Energy Point Beach, LLC ) Docket Nos. 50-266-SLR

) 50-301-SLR (Point Beach Nuclear Plant, Units 1 and 2) )

NextEra Energy Point Beach, LLCs Brief in Opposition to Physicians for Social Responsibility Wisconsins Appeal of LBP-21-05 I. INTRODUCTION Pursuant to 10 C.F.R. § 2.311(b), NextEra Energy Point Beach, LLC (NextEra or NEPB) submits this brief in opposition to the appeal by Physicians for Social Responsibility Wisconsin (Petitioner) 1 of the Atomic Safety and Licensing Boards (the Board) July 26, 2021 Memorandum and Order, LBP-21-05. 2 In LBP-21-05, the Board properly denied Petitioners petition to intervene and request for hearing in this subsequent license renewal proceeding for the Point Beach Nuclear Plant, Units 1 and 2, because Petitioner failed to proffer an admissible contention. On appeal, Petitioner challenges the Boards ruling on the admissibility of Contentions 1, 2, and 3. The Commission should deny Petitioners Appeal because Petitioner fails to identify any error or abuse of discretion in the Boards ruling on Contentions 1, 2, and 3.

II. STANDARD OF REVIEW The Commission gives substantial deference to Board rulings regarding the admissibility 1

Notice of Appeal of LBP-21-05 by Petitioner Physicians for Social Responsibility Wisconsin and Brief in Support of Appeal (August 20, 2021) (Appeal) (NRC ADAMS Accession No. ML21232A700).

2 NextEra Energy Point Beach, LLC (Point Beach Nuclear Plant, Units 1 and 2), LBP-21-05, __ N.R.C. __, slip op.

(July 26, 2021) (LBP-21-05).

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of contentions, 3 and the Commission will not sustain an appeal of such decisions in the absence of a clear error of law or an abuse of discretion. 4 As such, [p]ointing out errors in the Boards decision is a basic requirement for an appeal. 5 [A]n appellant must do more than recite its prior positions in a proceeding or state its general disagreement with a decisions result. 6 The Commission has held that [t]he appellant bears the responsibility of clearly identifying the errors in the decision below and ensuring that its brief contains sufficient information and cogent argument to alert the other parties and the Commission to the precise nature of and support for the appellants claims. 7 The purpose of an appeal to the Commission is to point out errors made in the Boards decision, not to attempt to cure deficient contentions by presenting arguments and evidence never provided to the Board. 8 However, the Commission is free to affirm a board decision on any ground finding support in the record, whether previously relied on or not. 9 3

AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 N.R.C. 111, 121 (2006);

AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 N.R.C. 235, 260 (2006).

4 See, e.g., Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4), CLI-11-8, 74 N.R.C.

214, 220 (2011); Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), CLI-12-19, 76 N.R.C. 377, 379-80 (2012); NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 N.R.C.

301, 307 (2012).

5 Shieldalloy Metallurgical Corp. (License Amendment Request for Decommissioning of the Newfield, New Jersey Facility), CLI-07-20, 65 N.R.C. 499, 503 (2007).

6 Exelon Generation Co. (Peach Bottom Atomic Power Station, Units 2 and 3), CLI-20-11, 92 N.R.C. __, slip op.

at 8-9 (2020) (emphasis added).

7 Advanced Medical Systems, Inc. (One Factory Row, Geneva, Ohio 44041), CLI-94-6, 39 N.R.C. 285, 297 (1994).

8 USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 N.R.C. 451, 458 (2006). See also Peach Bottom, CLI-20-11, 92 N.R.C. __, slip op. at 9.

9 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-05-1, 61 N.R.C. 160, 166 (2005).

A decision may be defended on any ground advanced below. See Niagara Mohawk Power Corp. (Nine Mile Point Nuclear Station, Unit 2), ALAB-264, 1 N.R.C. 347, 357 (1975); Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-793, 20 N.R.C. 1591, 1597 n.3 (1984); Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), ALAB-832, 23 N.R.C. 135, 141 (1986), revd in part on other grounds, CLI-87-12, 26 N.R.C. 383 (1987); Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2),

ALAB-573, 10 N.R.C. 775, 789 (1979); Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-691, 16 N.R.C. 897, 908 n.8 (1982) (citing Black Fox, ALAB-573, 10 N.R.C. at 789).

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III. STATEMENT OF THE CASE This appeal involves an application dated November 16, 2020, wherein NextEra requested the subsequent (i.e., second) license renewal (SLR) of Renewed Facility Operating Licenses Nos. DPR-24 and DPR-27 for the Point Beach Nuclear Plant, Units 1 and 2. 10 On January 22, 2021, the Nuclear Regulatory Commission (NRC or Commission) published a notice of opportunity to request a hearing and to petition for leave to intervene (Notice). 11 The Notice permitted any person whose interest may be affected to file a request for hearing and petition for leave to intervene within 60 days of the Notice. 12 On March 23, 2021, Petitioner filed its Petition seeking to intervene in this SLR proceeding and requesting a hearing. 13 The Petition was accompanied by a Declaration of Arnold Gundersen (Gundersen Decl.), a Declaration of Alvin Compaan (Compaan Decl.),

and a Declaration of Mark Cooper (Cooper Decl.), as well as additional declarations addressing standing. On April 19, 2021, NextEra 14 and the NRC Staff 15 both answered the Petition and disputed the admissibility of all four of Petitioners proposed contentions.

10 The Point Beach application for SLR is available in the NRCs Agency-wide Documents Access and Management System (ADAMS) at Accession No. ML20329A292, available at https://www.nrc.gov/reactors/operating/licensing/renewal/applications/point-beach-subsequent.html#info. It includes several documents referred to collectively herein as the Application. The portion of the Application providing the general and technical information required by 10 C.F.R. §§ 54.19 and 54.21, including the description of the aging management programs, is available at ADAMS Accession No. ML20329A247 and hereinafter cited as the SLRA. The technical reference documents included in the Application and supporting the SLRA are available at ADAMS Accession No. ML20329A264 and hereinafter cited as the Reference Documents. The environmental report is available at ADAMS Accession No. ML20329A248 and hereinafter cited as the ER.

11 86 Fed. Reg. 6,684 (Jan. 22, 2021).

12 Id. at 6,685.

13 Petition of Physicians for Social Responsibility Wisconsin for Leave to Intervene in Point Beach Nuclear Plant, Units 1 and 2 Subsequent License Renewal Proceeding, and Requesting an Adjudicatory Hearing (March 23, 2021) (Petition) (NRC ADAMS Accession No. ML21082A530).

14 NextEra Energy Point Beach, LLCs Answer Opposing the Physicians for Social Responsibility Wisconsins Petition for Leave to Intervene and Request for Hearing (April 19, 2021) (NEPB Answer) (NRC ADAMS Accession No. ML21109A133).

15 NRC Staffs Answer Opposing Physicians for Social Responsibility Wisconsins Petition to Intervene (April 19, 2021) (NRC ADAMS Accession No. ML21109A387).

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Petitioners standing was not contested. On April 26, 2021, Petitioner replied to NextEras and the NRC Staffs Answers, 16 and simultaneously filed a Motion to Amend Contention 2 (regarding the reactor pressure vessel at Point Beach, a pressurized water reactor (PWR)) to introduce arguments about an Electric Power Research Institute (EPRI) letter regarding calculations for reactor internals in boiling water reactors (BWRs). 17 On May 21, 2021, the NRC Staff answered the Motion to Amend Contention 2 and conceded the timeliness of the amendment while disputing admissibility of Amended Contention 2. 18 NextEra also answered on that day and disputed both timeliness of certain aspects of the amendment and the admissibility of Amended Contention 2. 19 Petitioner replied to the NRC Staff and NextEra answers on May 28, 2021. 20 On June 22, 2021, the Board held an oral argument on the Petition and the admissibility of all four proposed contentions. 21 On July 26, 2021, the Board issued an Order finding that Petitioner has standing, permitting the late-filed amendment to Contention 2, and rejecting all four contentions as inadmissible.

Petitioner now appeals the Boards ruling on Contentions 1, 2, and 3, making a variety of claims in support. As discussed below, these claims on appeal have no merit.

16 Physicians for Social Responsibility Wisconsin Reply in Support of Petition for Leave to Intervene in Point Beach Plant Subsequent License Renewal Proceeding, and Requesting an Adjudicatory Hearing (April 26, 2021)

(Petitioner Reply) (NRC ADAMS Accession No. ML21116A578).

17 Physicians for Social Responsibility Wisconsin Motion to Amend Contention 2 (Inadequately Tested Reactor Coolant Pressure Boundary) (April 26, 2021) (Motion to Amend) (NRC ADAMS Accession No. ML21116A577).

18 NRC Staffs Answer to Physicians for Social Responsibility Wisconsins Motion for Leave to File Amended Proposed Contention 2 (May 21, 2021) (NRC ADAMS Accession No. ML21141A042).

19 NextEra Energy Point Beach LLCs Answer Opposing the Physicians for Social Responsibility Wisconsins Amendment of Contention 2 (May 21, 2021) (NEPB Answer to Motion to Amend) (NRC ADAMS Accession No. ML21141A097).

20 Physicians for Social Responsibility Wisconsins Combined Reply in Support of Motion to Amend Contention 2 (Inadequately Tested Reactor Coolant Pressure Boundary) (May 28, 2021) (Petitioner Reply on Motion to Amend) (NRC ADAMS Accession No. ML21148A310).

21 Transcript of June 22, 2021 Teleconference of Oral Arguments (NRC ADAMS Accession No. ML21176A136).

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IV. ARGUMENT A. THE BOARD CORRECTLY REJECTED CONTENTION 1 In Contention 1, Petitioner claimed that [t]he ER unlawfully fails to consider replacement of the once-through cooling system with cooling towers as a reasonable alternative that would reduc[e] or avoid[] adverse environmental effects relating to [certain] Category 2 issues, 22 including thermal impacts and the impingement and entrainment of aquatic organisms. 23 The Board properly rejected this contention as a collateral attack on an NRC rule, 10 C.F.R. § 51.53(c)(3)(ii)(B). Under that rule, an applicant with once-through cooling shall provide a copy of current Clean Water Act 316(b) determinations and, if necessary, a 316(a) variance in accordance with 40 CFR part 125, or equivalent State permits and supporting documentation. 24 Only in the absence of such permits must the applicant assess the impact of the proposed action on fish and shellfish resources resulting from thermal changes and impingement and entrainment. 25 As the Board acknowledged, NEPB provided environmental permits issued by the State agency, including both a section 316(b) determination and a section 316(a) variance in its ER. 26 As the State Department of Natural Resources found, [t]he cooling water intake . . .

represents interim [best technology available] for minimizing adverse environmental impact in accordance with the requirements in s. 283.31(6), Wis. Stats., and section 316 (b) of the [Clean Water Act]. 27 In addition, addressing the 316(a) standard, the State Department of Natural 22 Petition at 18 (quoting 10 C.F.R. § 51.45(c)).

23 Petition at 19.

24 10 C.F.R. § 51.53(c)(3)(ii)(B).

25 10 C.F.R. § 51.53(c)(3)(ii)(B).

26 LBP-21-05, slip op. at 20.

27 LBP-21-05, slip op. at 21 (citing ER, attach. B, WPDES Permit No. WI-0000957-08-0 § 1.3 (July 1, 2016)).

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Resources found that the maximum thermal discharge is protective of the balanced, indigenous community of shellfish, fish, and wildlife in and on Lake Michigan and that no temperature limit is needed. 28 As a result, further analysis of entrainment, impingement, or thermal impacts is not required, or even permitted, under 10 C.F.R. § 51.53(c)(3)(ii)(B), and the Federal Water Pollution Control Act of 1972 (the Clean Water Act).

As the Board correctly held, 10 C.F.R. § 51.53(c)(3)(ii)(B) rests on the presumption that [NRC] need not indeed cannot review and judge environmental permits issued under the Clean Water Act by the EPA or an authorized state agency. The NRCs role in evaluating a plants cooling system is limitedthe permitting agency determines what cooling system a nuclear power facility may use[,] and NRC factors the impacts resulting from use of that system into the [National Environmental Policy Act (NEPA)] [] analysis. The NRC may not consider alternative cooling systems as that would improperly second-guess[] the cooling system approved by the permitting agency. 29 In much of the Appeal on Contention 1, Petitioner reiterates its prior arguments made before the Board, for example by alleging (again) that the ER failed to contain a consideration of alternatives for reducing adverse impacts, as required by 51.45(c) for all Category 2 license renewal issues because NEPB found no significant adverse effects requiring the consideration of alternatives. 30 The mere recitation of [Petitioners] prior positions in [this] proceeding and stat[ing] [its] general disagreement with the Boards decision is no substitute for a brief that identifies and explains the errors in the Boards ruling. 31 Thus, these repetitive claims are insufficient to demonstrate an error in the Boards ruling.

In addition to repeating its prior claims, however, the Petitioner also introduces a new 28 Id.

29 LBP-21-05, slip op. at 19-20 (citing Entergy Nuclear Vt. Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vt.

Yankee Nuclear Power Station), CLI-07-16, 65 N.R.C. 371, 377, 387 n.77, 389 (2007)).

30 Appeal at 6. See also Petition at 25-26.

31 Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 2), CLI-93-10, 37 N.R.C. 192, 198 (1993).

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argument on appeal: that Section 511 of the Clean Water Act and NEPA can be read in harmony to require compliance with both. 32 As described below, this argument is both incorrect and untimely.

1. Petitioners New Attempt to Reconcile Clean Water Act Section 511(c)(2) and NEPA Should Be Rejected as Incorrect and Untimely Petitioner now argues that the Commission must discharge its responsibility under NEPA to identify . . . all adverse environmental impacts, reasonable alternatives to the project, and means of mitigation of the identified impacts, 33 and, in doing so, it is possible to comply with both NEPA and the Clean Water Act. 34 Petitioner acknowledges that the Clean Water Act provides that (2) Nothing in [NEPA] shall be deemed to (A) authorize any Federal agency authorized to license or permit the conduct of any activity which may result in the discharge of a pollutant into the navigable waters to review any effluent limitation or other requirement established pursuant to this Act . . . or (B) authorize any such agency to impose, as a condition precedent to the issuance of any license or permit, any effluent limitation other than any such limitation established pursuant to this Act. 35 However, Petitioner argues that this provision can be reconciled with NEPA and does not prevent the disclosure of the present status of thermal pollution, impingement and entrainment at PBNP within the NEPA document. 36 In support of this argument, Petitioner relies on Calvert Cliffs for the assertion that NRC must comply with NEPA to the fullest extent, unless there is a 32 See Appeal at 8-9.

33 Appeal at 9.

34 Appeal at 8.

35 See Appeal at 5 n.20, 10 (quoting Clean Water Act Section 511(c)(2) (33 U.S.C. § 1371(c)(2))).

36 Appeal at 10. It should be noted that the Application addressed the present status of thermal pollution, impingement, and entrainment at PBNP, providing the monitoring data relating to entrainment and impingement and discussion of the thermal impacts. Further, the Application referenced NEPBs application to renew PBNPs NPDES permit, which was provided to the NRC on the docket, Point Beach Nuclear Plant Units 1 and 2, Subsequent Licensing Renewal Application, Environmental Report Supplement 1 at Attachment 4 (May 10, 2021) (NRC ADAMS Accession No. ML21131A105), and included extensive reports addressing the aquatic impacts and potential mitigation measures within the exclusive purview of the Wisconsin Department of Natural Resources.

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clear conflict of statutory authority. 37 This argument should be rejected because it is irreconcilable with both the Clean Water Act and longstanding Commission precedent and because it is untimely as raised for the first time on appeal.

In 1978, the Atomic Safety and Licensing Appeal Board (Appeal Board) examined the statutory history of Section 511(c)(2) of the Clean Water Act in detail, finding that the Congressional intent of the Section was that [t]he requirements of [NEPA] as to water quality considerations shall be deemed to be satisfied by certifications' under other provisions of the pending bill. 38 Indeed, the sponsor of Section 511, Senator Baker, explained that each individual Federal permitting and licensing agency would not be required [under NEPA] to develop its own special expertise with respect to water quality considerations. 39 Instead, Certification pursuant to Section 402 would discharge a licensing or permitting agency from any further consideration as to what specific degree of effluent control was required with respect to water quality considerations for the activity under consideration. 40 Further commentary from Congressman Robert Jones indicated that, Section 511(c)(2) is intended to obviate the need for other Federal agencies to duplicate the determinations of the States and EPA as to water quality considerations. 41 And Congressman Dingell emphasized that Section 511(c)(2) seeks to overcome that part of the Calvert Cliffs decision requiring AEC or any other licensing or permitting agency to independently review water quality matters. 42 In short, there is no doubt that Congress clearly intended for Section 511(c)(2) of the 37 Appeal at 9 (citing Calvert Cliffs Coordinating Comm. v. U.S. Atomic Energy Comm., 449 F.2d 1109, 1115 (D.C.

Cir. 1971)).

38 Tennessee Valley Authority (Yellow Creek Nuclear Plant, Units 1 and 2), ALAB-515, 8 N.R.C. 702, 709 (1978).

39 Id. at 709-710.

40 Id. at 710.

41 Id. at 711.

42 Id.

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Clean Water Act to displace Calvert Cliffs and the AECs (and NRCs) obligation to independently review water quality matters under NEPA when faced with an EPA or State certification. Thus, the Clean Water Act limits the Commissions consideration of alternative designs when the EPA or State has already approved a once-through cooling system. In 1977, the Commission held that it must accept EPAs determination on effluent limitations. As a practical matter, then, the Commission must either license or not license an EPA-approved cooling system but cannot require it to be modified. 43 On appeal, the U.S. Court of Appeals for the First Circuit agreed with the NRC properly limit[ing] its concern to deciding whether permits should be issued given the aquatic impact as determined by EPA and other environmental impacts as determined by the NRC. 44 In doing so, [t]he NRC did not shirk its NEPA duties. 45 Subsequent to that decision, the Appeal Board rejected an NRC attempt to collect effluent information beyond that required by the EPA, as the kind of second-guessing of the EPA that is forbidden under Section 511(c)(2). 46 The NRC may not undercut EPA by undertaking its own analyses and reaching its own conclusions on water quality issues already decided by EPA. 47 Instead, as another Appeal Board found, the NRC is bound to take EPAs considered decisions at face value. 48 Relying on these prior decisions, and Clean Water Acts legislative history, a unanimous Commission applied the same principles to license renewal in the Vermont Yankee case referenced by Petitioner and the Board. In this decision, the Commission again found that the 43 Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-77-8, 5 N.R.C. 503, 543 (1977).

44 New England Coalition v. US Nuclear Regulatory Commission, 582 F.2d 87, 99 (1st Cir. 1978) (emphasis added).

45 Id.

46 Yellow Creek, ALAB-515, 8 N.R.C. at 713.

47 Id. at 715; Carolina Power and Light Co. (H.B. Robinson, Unit 2), ALAB-569, 10 N.R.C. 557, 561 (1979).

48 H.B. Robinson, Unit 2, ALAB-569, 10 N.R.C. at 562.

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permitting agency determines what cooling system a nuclear power facility may use[,] and NRC factors the impacts resulting from use of that system into the NEPA cost-benefit analysis. 49 Moreover, the Commission explained that, 10 C.F.R. Section 51.53(c)(3)(ii)(B) rests on the presumption that we need not indeed cannot review and judge environmental permits issued under the Clean Water Act by the EPA or an authorized state agency. Given this statutory limitation, it is questionable whether we have the authority to consider even the environmental impacts of such permits. 50 The Board adopted this reasoning in this case.

Despite this extensive history, and the clear intent of Congress, Petitioner now argues that the Clean Water Act should be read in harmony with NEPA to require the NRC to obtain additional data from NEPB to scrutinize environmental impacts already reviewed by the State of Wisconsin, and to review an alternative to the cooling system already approved by the State of Wisconsin. 51 For the NRC to require NEPB to collect and review additional information would be second-guessing the States determination that the existing information is adequate. For the NRC to review that information and determine an impact greater than small would be second-guessing the States determination that the current technology minimizes impacts. For the NRC to review an alternative design and to determine that it is better than the State-approved design would be second-guessing the States determination that the current design is the best technology available. In sum, for the NRC to take these additional steps would be no more than the second-guessing of the State that is forbidden under Section 511(c)(2). The Commission should reject this attempt to expand NRC authority beyond that allowed under Section 511(c)(2) and reject Petitioners attempt to overturn over 40 years of Commission precedent based on the will of 49 Entergy Nuclear Vermont Yankee, CLI-07-16, 65 N.R.C. at 389.

50 Id. at 387, n.77.

51 See Appeal at 8.

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Congress.

The Commission should also reject this argument as improperly raised for the first time on appeal. [A]bsent extreme circumstances, [the Commission] will not consider on appeal either new arguments or new evidence supporting the contentions, which the Board never had the opportunity to consider. 52 Petitioners argument that CWA Section 511(c)(2) and NEPA should somehow be read in harmony is a new argument that Petitioner never raised before the Board. There is not a single reference to CWA Section 511(c)(2) in Petitioners hearing request. 53 In addition, while NEPB and the NRC Staffs Answers to Petitioners hearing request both responded that Section 511(c)(2) of the Clean Water Act (implemented in 10 C.F.R.

§ 51.53(c)(3)(ii)(b)) deprived the NRC of authority to review anew the impacts already considered in the NPDES permits, 54 Petitioners Reply did not dispute these assertions. Instead, Petitioners analysis of Section 511(c)(2) on reply was limited to arguing that the Wisconsin permit would soon expire. 55 In short, Petitioner raised no argument before the Board that NEPA and CWA Section 511(c)(2) could be read in harmony to require independent NRC review of impacts in this case.

To the extent it responded at all, its sole claim was that Point Beachs permits would soon expire and thus would not have preclusive effect under the Clean Water Act. Having failed to raise this 52 USEC, CLI-06-10, 63 N.R.C. at 458 (quoting Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-22, 60 N.R.C. 125, 140 (2004)). See also Detroit Edison Co. (Fermi Power Plant Independent Spent Fuel Storage Installation), CLI-10-03, 71 N.R.C. 49, 51 n.7 (2010) (We do not consider arguments or new facts raised for the first time on appeal unless their proponent can demonstrate that the information was previously unavailable.). See, e.g., AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-07-08, 65 N.R.C. 124, 132-33 & n.38 (2007), aff'd, New Jersey Dept of Envtl. Prot. v.

NRC, 561 F.3d 132, 137 n.5 (3d Cir. 2009).

53 See generally Petition.

54 NEPB Answer at 14-15; Staff Answer at 24-25.

55 See Petitioner Reply at 2-3. At the oral argument, Petitioners counsel argued that he believe[d] the case law strongly shows, that when NEPA and the Atomic Energy Act collide that effectively NEPA wins, NEPA governs, (Tr. at 62:16-19), however, that is not relevant to the supremacy of the Clean Water Act.

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argument below, depriving the Board of any opportunity to consider such an argument, Petitioner may not now raise this argument on appeal.

2. Petitioners Contention 1 Should Be Rejected for Additional Reasons Contention 1 should also be rejected for several additional reasons beyond Petitioners failed arguments about Section 511(c)(2) of the Clean Water Act. First, in Contention 1 Petitioner failed to raise any genuine material dispute with the Application. As NEPB explained previously in its Answer, Petitioner failed to even address the section of the ER explaining why further mitigation of entrainment and impingement impacts is unwarranted. 56 By failing to address this explanation, Petitioner failed to demonstrate any genuine dispute with the Application. 57 Second, Petitioner also failed to provide information supporting the claim that further mitigation should be required by failing to show that its proposed alternative (retrofitting Point Beach with a cooling tower) is a reasonable and feasible (technically and economically practical) alternative to the proposed action. While Petitioner referred to three reactors (Indian Point Units 2 and 3, and Oyster Creek) whose State permitting agencies determined that extended operation would require conversion to closed cycle cooling, all of them chose to shut down instead of making that conversion, belying rather than supporting the commercial viability of such conversion. 58 Finally, Petitioner failed to provide information demonstrating that impacts are sufficiently large to warrant such an expensive retrofit. Contention 1 was not supported by any 56 NEPB Answer at 15.

57 While the Board in this proceeding did not reach a decision on whether Petitioner raised a genuine material dispute with the application, NEPB is entitled to defend the Boards decision on any grounds, including those rejected or not addressed by the Board. Shoreham Nuclear Power Station, ALAB-832, 23 N.R.C. at 141.

58 NEPB Answer at 16.

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opinion by an expert in relevant disciplines supporting the contention. Petitioners sole declarant addressing Contention 1, Mr. Gundersen, has no apparent expertise with the assessment of aquatic impacts, and merely made conclusory assertions that such impacts were staggering, making Point Beach a superpredator. 59 Rather than providing any meaningful analysis or support addressing the significance of any aquatic impacts, Petitioner merely repeated monitoring data presented in the Application without perspective. While Petitioner on appeal repeats a reference to a newspaper article, 60 reports on the docket clearly showed that the article misinterpreted the monitoring data. 61 In short, as NEPB explained previously in its Answer, 62 Petitioner provided nothing more than a combination of generalizations unrelated to Point Beach and recitation of undisputed data from the ER, sprinkled with rhetoric and devoid of meaningful analysis or expert support. For these reasons the Board correctly rejected Contention 1 and Petitioner has provided nothing to question or challenge that decision.

B. THE BOARD CORRECTLY REJECTED CONTENTION 2 In Contention 2, Petitioner claimed that Point Beachs continued operation violates 10 CFR Part 50, Appendix A, Criterion 14 because the reactor coolant pressure boundary has not been tested so as to have an extremely low probability of abnormal leakage, of rapidly 59 Gunderson Declaration at ¶ 9.3.

60 Appeal at 7. See also Petition at 28 & n.73.

61 Based on the article, Petitioners claimed that fish killed by Point Beach were calculated to reduce the yield of Lake Michigan's fisheries by an estimated 10,625 pounds a year, or about 4.5 percent of the annual commercial fishing catch by weight. Appeal at 6-7. However, as NEPB explained in its Answer, the reports available on the docket and misrepresented in the article actually state that the estimated lost yield to the commercial fishery alone is only 241 pounds and fishery harvest in Lake Michigan would have declined by about 0.1% as a result of PBNPs operations during 2006. NEPB Answer at 18-19 (citing Supplement to §283.31(6) Report, WPDES Permit Number WI-0000957-07, Appendix B, Assessment of Alewife Impingement Impact at Point Beach Nuclear Plant (PBNP) on Lake Michigan Fisheries, Prepared by J. Kitchell at 9 (Mar. 2009) (within Point Beach Units 1 and 2, License Amendment Request 261, Extended Power Uprate, Response to Request for Additional Information at pdf page 149 (May 13, 2010) (ADAMS Accession No. ML101340103))).

62 See NEPB Answer at 17-24.

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propagating failure, and of gross rupture, and the aging management plan does not provide the requisite reasonable assurance. 63 On April 26, Petitioner belatedly amended Contention 2 to add that The Electric Power Research Institute has recently admitted that its computer software for predicting embrittlement in boiling water reactors is nonconservative. Physical specimens and coupons at Point Beach may indeed prove that embrittlement calculations made at Point Beach are not conservative.

Without testing the physical specimens and coupons at Point Beach, NextEra is severely risking public safety. 64 The Board found Contention 2 to be inadmissible for a variety of reasons, including as an impermissible attack on NRC rules and on the facilitys current licensing basis and because the contention was inadequately supported and failed to demonstrate a genuine dispute with the application. Much of Petitioners Appeal on Contention 2 is copied verbatim from its underlying briefs before the Board, with Petitioners limited references to the Board decision discussed further below. In these limited references, Petitioner fails to point out any error or abuse of discretion by the Board in rejecting Contention 2 as inadmissible. In light of this failure, the Boards decision should be upheld.

1. The Board Correctly Rejected Contention 2 as an Impermissible Attack on NRC Rules and on Point Beachs Current Licensing Basis The Board found Contention 2 to be an impermissible attack on 10 C.F.R. § 54.21(c)(1) because Petitioner failed to identify any new or revised time-limited aging analyses (TLAAs) that are inadequate or error-prone and instead challenged the existing TLAAs (which are part of the current licensing basis (CLB) under 10 C.F.R. § 54.3). 65 The Board also found Contention 63 Petition at 31.

64 Motion to Amend at 7. NEPB disagrees that this late addition to Contention 2 meets the late-filed standards of 10 C.F.R. § 2.309(c). It is, in fact, untimely because the information specifically related to Point Beach dates back to the 1990s, while the remaining information from the EPRI letter on boiling water reactor internals is immaterial to the initial contention on the reactor pressure vessel and the Point Beach reactor (a pressurized water reactor).

See NEPB Answer to Motion to Amend at 4-6.

65 LBP-21-05, slip op. at 31-32.

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2, on its face, to be an impermissible challenge to the Point Beach CLB. 66 Indeed, Petitioners repeated claims that the reactor coolant pressure boundary has not been tested, 67 there are not enough [capsules] to test, 68 the facilitys continued operation violates 10 CFR Part 50, Appendix A, Criterion 14, 69 the facility has failed to develop an adequate [capsule] program to physically test the integrity of the [reactor pressure vessel], 70 and the facility has been violating GDC-14 by not testing [capsules] 71 openly challenged the CLB and demonstrated why the Contention is inadmissible.

Petitioner appeals this decision by arguing that [t]he ASLB misread the thrust of amended Contention 2. 72 Petitioner argues that it was not challenging the current licensing basis, but instead, the basis for the agencys refusal to resort to physical evidence and data on the status of metallurgical embrittlement of the reactor vessel and its components for the 20 year subsequent licensing period beginning in 2030. 73 Petitioner then repeats its prior claims that the NRC has no scientific basis to justify the continued operations of the Point Beach reactors for the subsequent, and possibly even the current, license term, 74 and that Point Beachs continued operation violates 10 CFR Part 50 Appendix A, Criterion 14. 75 It is clear on the plain language of these claims that the Board is correct that Contention 2 challenged the current licensing basis, not the period of extended operation. Petitioner has 66 Id. at 33.

67 Petition at 31 (emphasis added).

68 Petition at 35 (emphasis added).

69 Petition at 31 (emphasis added).

70 Petition at 38 (emphasis added).

71 Petition at 38 (emphasis added).

72 Appeal at 16.

73 Appeal at 16. In addition to challenging the CLB, this claim on appeal openly challenges the Staffs decisionmaking and is also improper to form the basis for an admissible contention.

74 Appeal at 17 (emphasis added).

75 Appeal at 17 (emphasis added).

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openly stated that it is challenging the continued operation of the plant in the current license term and the use of the existing TLAAs in subsequent license terms. As the Board already correctly found, Petitioners challenge is thus an impermissible attack on NRC rules and the CLB. By repeating these claims, Petitioner does not raise an error or abuse of discretion by the Board and only underscores the inadmissibility of Contention 2, regardless of its baseless assertion that the Board misread the contention.

2. The Board Correctly Rejected Contention 2 for Lacking Adequate Support and Failing to Demonstrate a Genuine Dispute with the Application The Board also found Contention 2 inadmissible for lacking adequate support and failing to raise a genuine dispute with the Application. In particular, while Petitioner claimed there are not enough sample [capsules] to remove from the reactor and test for embrittlement during the 60-year period of operations, let alone for an additional 20 more years out to 80 years, 76 the Board found correctly that Petitioners claim is contrary to information contained in the Application, which Petitioner failed to address or dispute. 77 As the Board explained, there is a Supplemental A surveillance capsule with weld materials representative of both Point Beach units that will receive one to two times the peak reactor vessel neutron fluence at the end of the subsequent period of operation. 78 NEPB also receives additional surveillance information from other B&W-manufactured reactor pressure vessels. 79 Thus, as stated in the Application, NEPB will have surveillance data for embrittlement of the reactor vessel materials through the subsequent period of operation.

Petitioner never addressed this information. On appeal, Petitioner argues that while 76 Petition at 36.

77 LBP-21-05, slip op. at 34.

78 LBP-21-05, slip op. at 34.

79 LBP-21-05, slip op. at 34.

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there apparently is one remaining sample in Unit 2, it will not be tested until 2024, and then there will be no more available samples in either reactor. 80 Petitioner then references the standby capsules in a footnote, stating that [t]he PBN standby capsules (in both Units 1 and 2) do not contain the most limiting material and there are no plans to withdraw these capsules. The current approved withdrawal of capsule is scheduled for Fall of 2024 at a fluence of 1019 n/cm2, for the 60-year license renewal period. 81 This is the same argument that was made before the Board, 82 and the Board correctly found that it ignores the Application. Supplemental Capsule A is not the same as the standby capsules and it will be withdrawn approximately around 2035 83 after receiving one to two times the peak reactor vessel neutron fluence at the end of the subsequent period of operations. 84 In addition, Supplemental Capsule A has materials representative of both units. 85 Petitioners repeated reference to the standby capsules, which are irrelevant to Contention 2, do not demonstrate an error or abuse of discretion in the Boards finding that Petitioner failed to address relevant information as to Supplemental Capsule A.

The Board also correctly found that Petitioners argument that NEPB will not conduct an analysis of the capsules or will ignore the data from sample coupons, lacks adequate support and fails to demonstrate a genuine dispute with the application. 86 As the Board found, NEPB committed to test Supplemental Capsule A in its Application in accordance with 10 C.F.R. Part 50, Appendix H, and a contention may not be based on an assumption that the licensee will 80 Appeal at 19.

81 Appeal at 19, n.70.

82 Petitioners Reply at 12 n.24.

83 SLRA at A-158.

84 SLRA at A-25.

85 NRR, NRC, NUREG-1839, Safety Evaluation Report Related to the License Renewal of the Point Beach Nuclear Plant, Units 1 and 2, at 3-97 (Dec. 2005) (ADAMS Accession No. ML053420137).

86 LBP-21-05, slip op. at 35.

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violate agency regulations. 87 The Appeal only challenges this finding by making the broad and unsupported claim that NextEra has squandered opportunities to test coupons in the past. 88 But this cursory and unsupported allegation does not address the reasoning behind or provide any basis for overturning the Boards decision.

Finally, the Board determined that Petitioners remaining miscellaneous arguments about operator controls and error-prone analytical calculations were vague, unsupported, and failed to demonstrate any genuine material dispute with the Application. 89 While Petitioner repeats these claims on appeal, 90 its brief fails to explain how the Board erred. For example, it does not dispute the Boards observation that Petitioner provides no detail about which calculation it references or what is error-prone about that calculation. This argument consists of the type of [b]are assertions and speculation that do not support an admissible contention, even if supported by an expert. 91 The Board also determined that Petitioners claims about the EPRI letter (related to BWRs) were not relevant to Point Beach (a PWR). 92 On appeal, Petitioner continues to refer to the EPRI letter, but identifies no error in the Boards ruling. Indeed, as the Board observed, Petitioner admitted the EPRI letter refers only to BWRs. 93 The Board also found no support for the suggestion the non-conservatism identified by EPRI in BWR-software is symptomatic of an industry-wide issue in monitoring neutron embrittlement, and Petitioner does not identify or 87 LBP-21-05, slip op. at 35-36, n.208 (citing Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation),

CLI-01-9, 53 N.R.C. 232, 235 (2001)).

88 Appeal at 19.

89 LBP-21-05, slip op. at 34.

90 Appeal at 12-13.

91 LBP-21-05, slip op. at 36 (citations omitted). As the Board further observed, at oral argument it was made clear that the Point Beach calculations being questioned are those specified by 10 C.F.R. § 50.61, and a challenge to those calculations is an impermissible challenge to that rule. Id. at 36-37. Petitioner does not address or identify any error in this ruling.

92 LBP-21-05, slip op. at 35.

93 Id. at 37. Petitioners brief also admits that the EPRI letter applies to software for BWRs. Appeal at 14.

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explain any error in this ruling.

C. THE BOARD CORRECTLY REJECTED CONTENTION 3 In Contention 3, Petitioner claimed that [t]he . . . [ER] fails to adequately evaluate the full potential for renewable energy sources, such as solar electric power (photovoltaics) to offset the loss of energy production from [Point Beach and, therefore,] the requested license renewal action from 2030 to 2053 [is] unnecessary. 94 In particular, Petitioner claimed that NEPB fail[ed] to adequately assess the solar option, 95 and the SLR Application should be denied because [n]uclear power is far too costly. 96 The Board rejected Contention 3 for lacking adequate support and failing to demonstrate a genuine dispute with the application. 97 As the Board observed, to raise a genuine dispute, contentions regarding reasonable alternatives in license renewal proceedings must provide alleged facts or expert opinion sufficient to raise a genuine dispute as to whether the best information available today suggests that commercially viable alternative technology (or combination of technologies) is available now, or will become so in the near future, to supply baseload power. 98 The Board correctly found that NEPBs ER rejected solar plus storage as a non-commercially viable alternate because of the land use requirements and MODERATE to LARGE impacts on wildlife habitats, vegetation, land use, and aesthetics. 99 Petitioners never challenged this determination by NEPB. 100 The Board found it fatal to Contention 3 that Petitioner (and its experts) thus have proffered no information to dispute the large acreage 94 Petition at 41.

95 Petition at 45.

96 Petition at 49.

97 LBP-21-05, slip op. at 42.

98 LBP-21-05, slip op. at 42 (citing Seabrook, CLI-12-5, 75 N.R.C. at 342).

99 LBP-21-05, slip op. at 43.

100 LBP-21-05, slip op. at 44.

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requirement for the solar plus storage alternative and the significant environmental impacts of such an allotment that were the basis of NEPBs conclusion that solar plus storage was not a reasonable alternative. 101 Instead, the Board found that Petitioners assertions bolster NEPBs conclusion that solar plus storage is not a reasonable alternative due to acreage requirements. 102 Indeed, Petitioners own expert calculated that a solar alternative would require 42,000 acres - 65.7 square miles - to replace Point Beachs baseload capacity, and acknowledged that this land requirement seems prohibitive. 103 Petitioners expert asserted summarily that the solar panels could be placed on rooftops or U.S. Conservation Reserve Land, 104 but these claims neither diminished the areas that would be required for a solar alternative to replace Point Beach, nor demonstrated that such an approach would be commercially viable.

Indeed, as NEPB argued below, neither Petitioner not its expert ever explained why siting the necessary solar facilities on conservation land would lessen the acreage requirement, or reduce the impacts below the MODERATE to LARGE impacts described in the ER. 105 Neither Petitioner nor its expert explained why diverting conservation land from its intended purpose would be desirable, or would avoid impacts on wildlife, vegetation, land use and aesthetics. 106 The Conservation Reserve Program is intended to take environmentally sensitive land and re-101 LBP-21-05, slip op. at 44-45.

102 LBP-21-05, slip op. at 45. The Board mentions that Dr. Compaan states that 42,000 acres (or 65.7 square miles) is needed to replace the baseload 1200 [megawatts] produced by Point Beach. That is six times the amount of land NEPB stated it would require. LBP-21-05, slip op. 45. To be clear, the acreage estimate reported in NEPBs ER is equivalent to that of the solar power peaking facility already located at the Point Beach site. ER at 7-8. As the ER explains, the lower efficiencies of solar power would also result in significant land acreage. Id.

Dr. Compaans acreage estimates are higher because he used a multiplier of 1/0.157 to adjust the acreage needed for a peaking facility into that necessary for a baseload equivalent. See Compaan Decl. at ¶¶ 16-17. Dr.

Compaans estimate forms the predicate for Contention 3.

103 Compaan Decl., ¶¶ 16-17.

104 Compaan Decl., ¶¶ 20-24.

105 NEPB Answer at 37.

106 Id.

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establish valuable land cover to help improve water quality, prevent soil erosion, and reduce loss of wildlife habitat, increasing habitat for endangered and threatened species. 107 As a matter of common sense, installing new solar panels and electrical distribution systems on this Conservation Reserve Program land could impact those protected attributes of the land, in addition to the impacts on wildlife habitats, vegetation, land use, and aesthetics described in the ER. 108 Further, solar generation is not even one of the permissible uses of farmland set aside under the federal Conservation Reserve Program. 109 Consequently, there is no indication that using conservation farmland for solar generation is a reasonable, feasible alternative.

Likewise, using the calculational tool that Petitioners expert referenced and relied upon in claiming that sufficient solar arrays could be installed on rooftops, 110 87% of suitable residential rooftop space in the entire state, or all commercial buildings over 5,000 square feet in the state (numbering over 47,000) would be needed (together with storage) to replace the power output of Point Beach. 111 Petitioner failed to provide any information showing that it is practicable or commercially feasible to obtain such rooftop space, build, and fully implement solar power production on each roof (with energy storage) within 9 years time. 112 Petitioner did not address how one would obtain rights to the space, which would require entering into contracts with the owner of every single individual building in question.113 Petitioners expert 107 Id. at 37-38 (citing U.S. Dept of Agriculture, Farm Service Agency, Conservation Reserve Program, available at https://www.fsa.usda.gov/programs-and-services/conservation-programs/conservation-reserveprogram/).

108 Id. at 38.

109 Id. at 37 (citing 7 C.F.R. § 1410.63).

110 Materials cited as a basis for a contention are subject to scrutiny by a licensing board for statements that both support the petitioners assertions and those that do not. Calvert Cliffs 3 Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), LBP-10-24, 72 N.R.C. 720, 750 (2010); Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), LBP-96-2, 43 N.R.C. 61, 90 (1996).

111 NEPB Answer at 40-41 & n.178.

112 Id. at 42.

113 Id.

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only devoted one paragraph (Para. 21) to arguing for rooftops, but it focuses solely on the mere existence of sufficient rooftops and ignores commercial viability altogether, thus failing entirely to support rooftop solar as a reasonable alternative needing further evaluation. 114 Petitioner shows no error or abuse of discretion in the Boards decision on appeal.

Petitioners argument rests largely on the notion that it was incorrect for the Board to weigh[]

the evidence and adjudicate[] whether photovoltaic solar was worthy of undergoing adjudication on the issue of whether it is a reasonable alternative. 115 According to Petitioner, it should have been enough for Petitioner to vaguely point towards placing solar on commercial rooftops throughout the State, on Conservation Reserve Program land, and on many other places, from conventional solar farms to power line transmission easements, on awnings, parking lot canopies, in landfills and brownfields, and on highway rights-of-way. 116 Petitioner misses the point of the Boards Order. The Board rejected Contention 3 for failing to raise a genuine dispute with the Application. It is not a matter of whether there is some space, somewhere, for solar panels to generate electricity. The Application rejected solar plus storage as a discrete alternative because of its very large acreage requirements which could result in MODERATE to LARGE impacts on wildlife habitats, vegetation, land use, and aesthetics. 117 As the Board found, Petitioner has never disputed those large acreage requirements or the resultant environmental impacts. 118 Indeed, it is obvious that the adoption of Petitioners proposed solution to siting such a significant amount of solar plus storage (widely distributed systems with the need for additional transmissions infrastructure or the use of 114 Id. at 42-43.

115 Appeal at 22.

116 Appeal at 22.

117 ER at 7-8.

118 LBP-21-05, slip op. at 44-45.

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Conservation Reserve Program land) would necessarily have to involve impacts on wildlife habitats, vegetation, land use, and aesthetics. Having never addressed these impacts and having never provided any evidence to dispute NEPBs assessment of those impacts, Petitioner cannot now argue that the Board erred in finding that Petitioner failed to raise a genuine dispute with NEPBs rejection of solar plus storage as a discrete alternative.

In its Order, the Board also found that Petitioner failed to demonstrate that solar plus storage technology is under development for large-scale use, contrary to the standard for demonstrating a reasonable alternative in Seabrook, CLI-12-5, 75 N.R.C. at 342 n.245. 119 While Petitioner focuses on this sentence on appeal, it is not the main reason Contention 3 was rejected as inadmissible. Instead, the Board is simply responding to an argument presented by Petitioner in its Reply that Seabrook supports the admission of Contention 3. 120 Nonetheless, Petitioner points towards the Florida Power & Light Co.s 121 development of a 409MW solar power facility in Manatee County, Florida in an effort to prove that solar plus storage technology is under development for large-scale use, contrary to the Boards Order. 122 As the article upon which Petitioners expert relied states, while the facility being developed in Manatee County Florida is the worlds biggest solar-charged battery storage project, its 409MW capacity is considerably smaller than Point Beachs capacity, and its 900MWh rating reflects its ability to provide its 409MW capacity for just a little over two hours. 123 Indeed, as the article states, this storage 119 LBP-21-05, slip op. at 46.

120 LBP-21-05, slip op. at 46.

121 Florida Power & Light Co. is a subsidiary of NextEra Energy.

122 Appeal at 22-24.

123 NEPB Answer at 42 n.185 (citing Energy Storage News, Work begins on 409MW/900MWh Florida battery project to ease natural gas plants into retirement (Feb. 2, 2021), available at https://www.energy-storage.news/news/work-begins-on-409mw-900mwh-florida-batteryproject-to-ease-natural-gas-pla.).

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facility will allow the utility to rely far less on natural gas peaker plants. 124 Consequently, Petitioner failed to show that a battery storage facility of size and battery duration sufficient to replace Point Beachs total 24/7 baseload capacity exists or is under development today anywhere, and its repetition of statements in its Petition demonstrates no error in the Boards decision.

V. CONCLUSION For all the foregoing reasons, the Commission should deny Petitioners appeal and affirm LBP-21-05.

Respectfully submitted,

/signed electronically by Anne Leidich/

Steven Hamrick, Esq. David R. Lewis Counsel for NextEra Energy Point Beach, Anne R. Leidich LLC Pillsbury Winthrop Shaw Pittman, LLP 801 Pennsylvania Ave., N.W. Suite 220 Seventeenth Street, NW Washington, D.C. 20004 Washington, DC 20036 Tel. 202-349-3496 Telephone: 202-663-8474 E-mail: steven.hamrick@fpl.com Facsimile: 202-663-8007 Email: david.lewis@pillsburylaw.com Email: anne.leidich@pillsburylaw.com Dated: September 14, 2021 Counsel for NextEra Energy Point Beach, LLC 124 Id.

24 4849-1584-1530.v2

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of )

)

NextEra Energy Point Beach, LLC ) Docket Nos. 50-266-SLR

) 50-301-SLR (Point Beach Nuclear Plant, Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing NextEra Energy Point Beach, LLCs Brief in Opposition to Physicians for Social Responsibility Wisconsins Appeal of LBP-21-05 has been served through the E-Filing system on the participants in the above-captioned proceeding this 14th day of September, 2021.

/signed electronically by Anne Leidich/

Anne R. Leidich 4849-1584-1530.v2