ML22080A233
| ML22080A233 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 03/21/2022 |
| From: | Bessette P, Hamrick S, Lighty R Florida Power & Light Co, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| 50-250-SLR, 50-251-SLR, ASLBP 18-957-01-SLR-BD01, RAS 56365 | |
| Download: ML22080A233 (18) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
BEFORE THE COMMISSION
)
In the Matter of: ) Docket Nos. 50-250-SLR &
) 50-251-SLR FLORIDA POWER & LIGHT COMPANY )
)
(Turkey Point Nuclear Generating Units 3 and 4) ) March 21, 2022
)
FLORIDA POWER & LIGHT COMPANYS VIEWS ON LICENSE STATUS AS REQUESTED IN COMMISSION ORDER CLI-22-02
On February 24, 2022, the Commission issued two orders on the adjudicatory docket of
the above-captioned proceeding: CLI-22-02 and CLI-22-03.1 Collectively, those orders hold that
the environmental reviews in subsequent license renewal (SLR) proceedings, including this
one, may be incomplete and therefore require fu rther analysis, which the Commission directed
the U.S. Nuclear Regulatory Commission (NRC) Staff to perform.2 In light of those decisions,
the Commission left in place the previously-issu ed subsequent renewed operating licenses
(SROLs) for Turkey Point Nuclear Generating Units 3 and 4 (Turkey Point),3 but directed
the Staff to amend those licenses to modify the expiration dates to July 19, 2032, and April 10,
2033, respectively (i.e., to match the expiration dates of the former initial renewed operating
1 Fla. Power & Light Co. (Turkey Point Nuclear Generating, Units 3 & 4), CLI-22-02, 95 NRC __ (Feb. 24, 2022) (slip op.); Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, & 3) et al., CLI-22-03, 95 NRC __ (Feb. 24, 2022) (slip op.).
2 See generally CLI-22-02; CLI-22-03; SRM-SECY-21-0066, Rulemaking Plan for Renewing Nuclear Power Plant Operating Licenses - Environmental Review (RIN 3150-AK32; NRC-2018-0296) (Feb. 24, 2022)
(ML22053A308).
3 Turkey Point Nuclear Generating Unit No. 3, Subsequent Renewed Facility Operating License No. DPR-31 (Issued Dec. 4, 2019) (ML052790649); Turkey Point Nuclear Generating Unit No. 4, Subsequent Renewed Facility Operating License No. DPR-41 (Issued Dec. 4, 2019) (ML052790652).
licenses (ROLs)).4 The Commission further directed the parties, by March 21, 2022, to submit
their views on the practical effects of (1) the SROLs continuing in place with the amended
expiration dates, and (2) the previous ROLs being reinstated, i.e., vacating the SROLs. FPL
hereby provides its views on these issues.
In sum, and as detailed below, vacating the SROLs and reinstating the ROLs would
create substantial practical and potential financial difficulties with no corresponding safety,
environmental, or regulatory benefit. Moreover, given that the subsequent periods of extended
operation (SPEO) under the SROLs do not commence for more than a decade, and the Staff is
expected to complete the actions directed by the Commission well before that time, vacating the
SROLs is not necessary to maintain the environmental status quo during the curative period.5
Accordingly, the prudent option is for the Commission to allow the SROLs to continue in place.
I. RELEVANT BACKGROUND
To evaluate a potential license vacatur, it is first necessary to understand the background
and context in which the vacatur question arises. This discussion does not attempt to catalog the
procedural history of this proceeding. Rath er, it highlights the extensive, fulsome, and
transparent environmental review process associated with this proceeding; the limited nature of
the Commissions conclusions in CLI-22-02; and the absence of any finding that there exists a
4 See also Exelon Generation Co. (Peach Bottom Atomic Power Station, Units 2 & 3), CLI-22-04, 95 NRC __
(Feb. 24, 2022) (slip op.) (applying the reasoning in CLI-22-02 to the Peach Bottom SLR proceeding and directing the NRC Staff to amend the associated licenses to reduce the expiration dates by 20 years);
Constellation Energy Generation, LLC f/k/a Exelon Generation Company, LLC, Petition for Partial Reconsideration of CLI-22-04 (Mar. 7, 2022) (seeking reconsideration of the decision to modify the expiration dates).
5 FPL respectfully disagrees with the Commissions d ecision in CLI-22-02 to partially vacate the SROLs by amending their expiration dates without the benefit any briefing on that issue. Nothing in this response should be interpreted as indicating agreement with that decision and FPL reserves all rights to seek further review thereof.
2 material deficiency in the Turkey Point environmental review. This background is highly
relevant to the vacatur analysis below.
On June 6, 2002, the NRC granted initial ROLs to FPL for Turkey Point, permitting
operation of the units through July 19, 2032, for Unit 3, and April 10, 2033, for Unit 4. On
January 30, 2018, FPL filed an SLR application (SLRA) seeking authorization to operate each
unit for an additional 20-year period. 6 The SLRA included an Environmental Report (ER) as
required by 10 C.F.R. Part 51 to assist the NRC Staff in complying with the agencys obligations
under the National Environmental Policy Act of 1969, as amended (NEPA).
In developing its ER, FPL reasonably relied on multiple statements and guidance from
the NRC across several years indicating that the ge neric analyses of certain issues (known as
Category 1 issues) in the agencys 2013 Generic Environmental Impact Statement for License
Renewal of Nuclear Plants (2013 GEIS)7 were relevant and applicable to SLR.8 Accordingly,
FPLs ER incorporated those analyses by reference.9 However, consistent with 10 C.F.R.
Part 51, FPLs ER also presented extensive site-specific analyses of other issues (known as
Category 2 issues) and undertook an extensive analysis of potential new and significant
information (NSI) as to the generic Category 1 analyses. In other words, FPL evaluated
information above and beyond what is presented in the 2013 GEIS to determine whether any
6 See Letter from M. Nazar, FPL, to NRC Document Control Desk (Jan. 30, 2018) (ML18037A812), as supplemented by letters dated February 9, 2018 (ML18044A653); February 16, 2018 (ML18053A123); March 1, 2018 (ML18072A224); and April 10, 2018 (ML18102A521 and ML18113A132). The ER is Appendix E to the SLRA.
7 Generic Environmental Impact Statement for License Renewal of Nuclear PlantsFinal Report (NUREG-1437, Revision 1) (June 2013) (Vol. 1, Main Report, ML13106A241; Vol. 2, Public Comments, ML13106A242; Vol. 3, Appendices, ML13106A244).
8 Turkey Point, CLI-22-02, 95 NRC at __ (slip op. at 14) (Commission recognizing that FPL and other SLR applicants relied on prior agency statements).
9 ER at 4-2 (FPL adopts by reference the NRC findings for these Category 1 issues.). See also 10 C.F.R. § 51.53(a) (allowing incorporation by reference).
3 such information would alter the Category 1 conclusions in the 2013 GEIS as applied to
Turkey Points proposed SPEO.10
The NRC Staff then conducted its own independent environmental review, reasonably
relying on the Commissions prevailing view11 that the 2013 GEIS applied to SLR. Accordingly,
the Staff expended significant resources developing a site-specific Supplemental Environmental
Impact Statement (SEIS) based on that framework.12 Like FPLs ER, the SEIS did not rely
solely on the 2013 GEIS analyses of Category 1 issues. The Staff performed its own
independent hard look at those analyses to identify any NSI that potentially could alter the
2013 GEIS conclusions as applied to Turkey Points SPEO. On December 4, 2019, the NRC
Staff granted FPLs application and issued SROLs for Turkey Point with expiration dates of
2052 and 2053, respectively, pending final resolution of certain adjudicatory appeals.
On February 24, 2022, the Commission issued CLI-22-03 dismissing those appeals based
on its holding in CLI-22-02, which was issued on the same date. In CLI-22-02, the Commission
discussed certain conflicting information and historical ambiguity regarding the intended scope
of the 2013 GEIS. Therefore, the Commission concludedas a legal matter,13 not a substantive
onethat the 2013 GEIS cannot be viewed as providing a stand-alone NEPA-compliant analysis
of all Category 1 issues during an SPEO. The Commission did not, however, identify any
material gaps related to the difference between initial renewal and SLR in the issue-specific
2013 GEIS analyses. Nor did it consider whether the environmental analyses in the 2013 GEIS
10 That evaluation process is described in Section 5.0 of the ER.
11 See, e.g., Fla. Power & Light Co. (Turkey Point Nuclear Generating, Units 3 & 4), CLI-20-3, 91 NRC 133 (2020).
12 Generic Environmental Impact Statement for License Renewal of Nuclear Plants: Regarding Subsequent License Renewal for Turkey Point Nuclear Generating Unit Nos. 3 and 4 - Final Report (NUREG-1437, Supplement 5, Second Renewal) (Oct. 2019) (ML19290H346).
13 See also VR-SECY-21-0066, Voting Record of Chairman Hanson, Attached Comments at 1 (ML22054A054)
(noting that the decision turns on a legal conclusion).
4 as supplemented by FPLs and Staffs site-specific Category 2 analyses and hard look at
potential NSI on Category 1 issues collectively satisfyin the Turkey Point SEISthe
environmental review required by NEPA. Notwithstanding the absence of any finding that the
Turkey Point SEIS contains a material defect, the Commission ordered the NRC Staff to amend
the Turkey Point SROLs to claw back the SPEOs, leaving the SROLs in place for now, and
directed the parties to submit briefs regarding the possibility of vacating the SROLs altogether.
II. PRACTICAL EFFECTS OF THE SROLs CONTINUING IN PLACE VERSUS THE PREVIOUS ROLs BEING REINSTATED
The practical effects of vacating the SROLs and reinstating the previous ROLs are
summarized in thisSection II. These effects ar e further analyzed against the applicable legal
standards for license vacatur in Section III below.
A. If the SROLs Are Vacated, FPL Would No Longer Be Required to Implement or Complete, and the NRC Would No Longer Be Able to Inspect and Enforce, Multiple Enhanced Safety-Based Aging Management Programs and Activities
License Condition 3.J. in the SROLs requires FPL to implement certain aging
management programs and complete certain activities prior to (and in some cases, well in
advance of) the SPEOs. Those programs and activities57 items in totaland their
corresponding implementation schedules are specified in Appendix A, Table A-1, of the NRCs
Turkey Point SLR Safety Evaluation Report (SER).14
Although the Commission expects that the Staff will be able to issue a new SEIS before
Turkey Point enters the respective SPEOs,15 certain of these safety pr ograms and activities have
14 NRC, Safety Evaluation Report Related to the Subsequent License Renewal of Turkey Point Generating Units 3 and 4, App. A, Tbl. A-1 (July 22, 2019) (ML19191A057). Additionally, License Condition 3.J.3.
requires FPL to replace a portion of the existing containment spray system carbon steel piping with stainless steel piping by December 1, 2024. That project is now complete at Unit 3 and will be completed at Unit 4 after the current refueling outage; thus, completion likely would not be impacted by SROL vacatur.
15 Turkey Point, CLI-22-02, 95 NRC at __ (slip op. at 14).
5 imminent implementation deadlines or already have been implemented. Such is the case with
the following aging management programs (AMPs) that, additionally, involve imminent
inspection activities that may begin as soon as 7/19/2022, as noted in the SER:
- Item 20: Fire Water System (XI.M27);
- Item 21: Outdoor and Large Atmospheric Metallic Storage Tanks (XI.M29);
- Item 22: Fuel Oil Chemistry (XI.M30);
- Item 24: One Time Inspection (XI.M32);
- Item 25: Selective Leaching (XI.M33);
- Item 32: Buried and Underground Piping and Tanks (XI.M41); and
- Item 33: Internal Coatings/Linings for In-Scope Piping, Piping Components, Heat Exchangers, and Tanks (XI.M42).
Certain of these safety commitments also involve installation of new systems to support SLR.
For example, with respect to buried and underground piping and tanks (Item 32), the SROLs
require FPL to [i]nstall cathodic protection systems and perform soil testing no later than nine
years prior to the [S]PEO.
One practical effect of vacating the SROLs is that FPL would no longer be required to
implement or complete any of these 57 programs or activities, and the NRC Staff would no
longer be able to inspect or enforce them because they are unique to the SROLs and are not
included in or required by the ROLs. If deferred until new SROLs are eventually issued, it is
unclear whether or how FPL could schedule and complete such activities prior to the SPEO.
Furthermore, FPLs business operations are subject to complex and comprehensive
federal, state, and local legal and regulatory requirements. This extensive framework regulates,
among other things and to varying degrees, FPLs industry, businesses, rates and cost structures,
operation and licensing of nuclear power facilities, planning, construction and operation of
6 electric generation, transmission and distribution facilities, transportation, processing and storage
facilities, acquisition, disposal, depreciation and amortization of facilities and other assets,
decommissioning costs and funding, service reliability, and commodities trading and derivatives
transactions.16 The full panoply of possible business and financial implications related to a
hypothetical vacatur of the SROLs is complex and somewhat uncertain. But, in broad terms,
SROL vacatur has the potentialwithout any identified safety or environmental benefitto
disrupt long-range energy and business planning decisions and the timely completion of the
above-listed aging management activities and inspections, which are necessary to prepare for an
SLR term.
In the end, if the SROLs are vacated, FPL would be left in regulatory limbo. Its choice
would be between (1) implementing costly subsequent license renewal aging management
activities and inspections now, without the benefit of the SROLs (assuming that is an option,
given the complex business and regulatory matters noted abov e), and (2) deferring those
activities, which creates a risk that safety-based enhancements may not be completed before the
SPEO.
B. If the SROLs Are Vacated, FPL Would No Longer Be Required By an Explicit Provision in the License to Implement the Terms and Conditions of the U.S. Fish & Wildlife Services Incidental Take Statement Pertaining to the American Crocodile and Eastern Indigo Snake and the NRC Would No Longer Be Able to Inspect and Enforce That Provision
With respect to federally listed species and cr itical habitats under the jurisdiction of the
U.S. Fish and Wildlife Service (FWS), the NRC staff consulted with the FWS on the proposed
16 Form 10-K, NextEra Energy, Inc.; Florida Power & Light Company at 21 (Fiscal Year Ended Dec. 31, 2021)
(10-K), available at https://otp.tools.investis.com/clients/us/nextera_energy_inc/SEC/sec-show.aspx?FilingId=15583691&Cik=0000753308&Type=PDF&hasPdf=1.
7 action in 2018 and 2019.17 On July 25, 2019, the FWS issued a biological opinion for Turkey
Point concluding that the continued operation of Turkey Point through the SPEO is not likely to
jeopardize the continued existence of the American crocodile ( Crocodylus acutus) or eastern
indigo snake (Drymarchon corais couperi) and will not adversely modify the critical habitat of
the American crocodile. The biological opinion included incidental take statements (ITSs)
applicable to the American crocodile and eastern indigo snake. The ITSs terms and conditions
are binding conditions of the SROLs. More specifically, these requirements are imposed in
Section 2.1, Endangered Species Act, of the Environmental Protection Plan, which is
Appendix B to the SROLs.
The practical effect of vacating the SROLs is that FPL would no longer be required by an
explicit provision in the license to comply with the terms and conditions of the 2019 ITSs, and
the NRC Staff would no longer be able to inspect or enforce that provision because it is unique to
the SROLs and is not included in the ROLs. Moreover, even assuming, arguendo, that the
previous biological opinion somehow could be reinstated, it does not include an ITS for the
eastern indigo snake.
C. Reinstating the Previous ROLs Would Create Uncertainty Regarding the Current Licensing Basis (CLB), the Resolution of Which May Require Substantial Agency and FPL Resources
FPL is unaware of any past proceeding in which the NRC has invoked the provision of
10 C.F.R. § 54.31(c) allowing a previously-superseded license (either an initial operating license
or an ROL) to be reinstated. Thus, doing so here likely would present a matter of first
impression. Likewise, there exists no agency guidance regarding the process for reconciling a
17 NRC, Record of Decision; Subsequent License Renewal Application for Turkey Point Nuclear Generating Unit Nos. 3 and 4 at 15 (Dec. 4, 2019) (ML19309F859).
8 former license with a CLB18 that has evolved over multiple years to reflect and directly address
the SPEO and other supervening licensing basis matters.
The practical complexities of disentanglement (and eventual re-entanglement) here are
further compounded by the significant passage of time since the Turkey Point SROLs were
issued and the many CLB-related actions that have occurred since then. The Commission did
not issue CLI-22-02 until 27 months after the Turkey Point SROLs were issued. During that
period, FPL took required actions to update its licensing basis to reflect an additional 20-years of
licensed life. FPL also continued to take other appropriate CLB-related actions in the normal
course of plant operations (i.e., not specific to SLR). For example, the SROLs themselves have
been amended several times since they were issued in 2019. The Unit 3 SROL has been
amended 8 times (Amendment Nos. 288 to 295) and the Unit 4 SROL has been amended six
times (Amendment Nos. 268 and 283 to 287).19 Furthermore, other license amendment requests
remain pending before the agency and various other CLB-related changes have occurred since
the SROLs were issued.
Similarly, the Turkey Point Final Safety Analysis Report (FSAR) has continued to
evolve since 2019, as required by 10 C.F.R. § 50.71(e). Indeed, the SROLs directed that the
18 Per 10 C.F.R. § 54.3(a), CLB is defined as:
the set of NRC requirements applicable to a specific plant and a licensee's written commitments for ensuring compliance with and operation within applicable NRC requirements and the plant-specific design basis (including all modifications and additions to such commitments over the life of the license) that are docketed and in effect. The CLB includes the NRC regulations contained in 10 CFR parts 2, 19, 20, 21, 26, 30, 40, 50, 51, 52, 54, 55, 70, 72, 73, 100 and appendices thereto; orders; license conditions; exemptions; and technical specifications. It also includes the plant-specific design-basis information defined in 10 CFR 50.2 as documented in the most recent final safety analysis report (FSAR) as required by 10 CFR 50.71 and the licensee's commitments remaining in effect that were made in docketed licensing correspondence such as licensee responses to NRC bulletins, generic letters, and enforcement actions, as well as licensee commitments documented in NRC safety evaluations or licensee event reports.
19 See ML21119A355, ML19266A585, ML19357A195, ML20049A010, ML20104B527, ML20029E948, ML20237F385, ML20198M498, and ML21032A020.
9 FSAR be updated to reflect the information provided during the SLRA review process, including
incorporation of certain provisions related to AMPs.20 The status of these and other post-SROL
CLB changes would be rendered unclear if the SROLs are vacated.
Additionally, the NRCs Reactor Vessel Material Surveillance Program Requirements in
Appendix H to 10 C.F.R. Part 50 require, among other things, that material surveillance
capsules be withdrawn periodically from the reactor vessel. In simplified terms, there are a
fixed number of capsules in the reactor vessel; and a withdrawal schedule apportions their
withdrawal and testing over the licensed life of the facility. Turkey Point has an integrated
surveillance capsule program that applies to both Units 3 and 4. Currently, there is one
remaining surveillance capsule that can provide meaningful data for the SPEO. Following
issuance of the SROLs, an updated Turkey Point withdrawal schedule was approved by the NRC
to account for the SPEOs. If the SROLs are vacated, FPL may be required to revert to the
former withdrawal schedule and immediately withdraw the one remaining capsule. But then, if
the SROLs are subsequently reinstated, there would be no remaining surveillance capsules
capable of providing meaningful data for the SPEOs.
In order to achieve its goals of clarity and reliability,21 the agency would need to
develop and issue prompt guidance regarding the actions needed for disposition of these various
issues and the path forward on reconciliation of the CLB. Given the technical and regulatory
complexities of these first-of-a-kind issues, the practical implication is that developing guidance
and implementing the unwinding process could absorb significant agency and FPL resources
resources that will, at the same time, presumably be focused on updating the GEIS, completing
20 See SROLs (License Condition 3.J.1).
21 See Values, NRC.gov, https://www.nrc.gov/about-nrc/values.html.
10 the rulemaking, and preparing multiple SEISs. Substantial resources also would be required to
re-create the SLR licensing basis once the SROLs are reinstated after issuance of the new Turkey
Point SEIS, and that process again would need to account for CLB evolution that occurred
throughout the curative period.
D. Vacating the SROLs Could Exacerbate Political, Economic, and Energy Planning Uncertainty
This briefing comes at a crucial moment in time when governments and private actors
alike must take action to addre ss the global climate crisis and tackle pressing issues of energy
availability and independence. The U.S. government and certain states have taken and continue
to take actions, such as proposing and finalizing regulations or setting targets or goals, regarding
the regulation and reduction of greenhouse gas emissions.22 Furthermore, state and regional
entities must evaluate forward-looking information (often in the form of ten-year plans) to
inform energy planning decisions related to electric generation.23 The Commissions decision to
amend the SROLs to revise their expiration dates already has created uncertainty and confusion
among the public and other stakeholders. SROL vacatur would only foment further
misunderstanding regarding the realistic outlook of SLR for Turkey Point and for the existing
fleet, more broadly, to continue producing vitally important non-fossil fuel electricity.
III. VACATUR IS NOT LEGALLY WARRANTED
As explained below, the relevant considerations from the applicable legal standards
weigh strongly against vacating the Turkey Point SROLs and clearly support leaving the SROLs
in place.
22 10-K at 19.
23 See generally, e.g., Fla. Stat. § 186 (Floridas state and regional planning requirements).
11 A. Legal Standards
In the D.C. Circuits 2018 Oglala decision, the court acknowledged that the NRC
possesses the authority in certain circumstances to vacate a license if it determines, in subsequent
proceedings, that Staffs environmental review did not comply with NEPA.24 The court repeated
the oft-cited reminder that NEPA does not permit an agency to act first and comply later.25
Vacatur is the ordinary practice in extreme cases, such as those in which an agency failed to
undertake any environmental review whatsoever.26 However, the Oglala court squarely affirmed
that vacatur is an extraordinary remedy not required by law in lesser circumstances, such as
those in which the agency did, in fact, conduct an environmental review, but the review is
subsequently found to be defective (or even significantly defective).27
More specifically, the Oglala court declined to vacate an in situ uranium recovery license
despite the existence of a significant NEPA defect in the environmental review conducted by
the NRC. The court relied on the two-part standard set forth in Allied-Signal,28 which permits
remand-without-vacatur based on equitable considerations, including (1) the seriousness of the
orders deficiencies, and (2) the disruptive consequences of an interim change. The court
then remanded the matter to the NRC, without vacatur, to cure the NEPA defect and invited the
agency to perform its own vacatur analysis. Notably, the court struck down the Commissions
24 Oglala Sioux Tribe v. NRC, 896 F.3d 520 (D.C. Cir. 2018).
25 Id. at 523.
26 Standing Rock Sioux Tribe v. U.S. Army Corps of Engrs, 985 F.3d 1032, 1050 (D.C. Cir. 2021) (quoting United Steel v. Mine Safety & Health Admin., 925 F.3d 1279, 1287 (D.C. Cir. 2019)).
27 Accord Hydro Resources, Inc., (2929 Coors Rd., Ste. 101, Albuquerque, NM 87120), CLI-00-15, 52 NRC 65, 66 (2000) (Some licensing defects [] such as a failure to provide sufficient information, by their nature do not call for revoking a license outright, for a prompt cure may be possible without compromising the public health and safety and without defeating Intervenors hearing rights. (emphasis in original)).
28 Allied-Signal, Inc. v. NRC, 988 F.2d 146 (D.C. Cir. 1993).
12 previous settled practice of using an irreparable injury standard in vacatur analyses, but it did
not prescribe a new standard.
On remand, notwithstanding the significant NEPA deficiency (which Staff was then
working to resolve), the Commission lik ewise determined that vacating the Powertech license
was imprudent and unnecessary.29 The Commission did not attempt to establish a
comprehensive new vacatur standard and neither endorsed nor prohibited Allied-Signal-style
equitable analyses going forward.30 Instead, the Commission focused on the D.C. Circuits
primary concern: the potential that, if not vacated, the license could be used to the detriment of
resources before the NRC cures the deficiency.31 But for an outstanding state approval, the new
license (not a renewal, as is the case here) w ould have authorized immediate commencement of
in situ recovery operations that tribal intervenors feared might be detrimental to potentially-
unidentified cultural, historical, and religious sites. Because the licensee was not yet in a
position to use its NRC license for its intended operational purpose, the Commission noted that
the environmental status quo would be preserved while the Staff resolved the NEPA deficiency.
Thus, the Commission concluded that it need not vacate the license. Notably, the Commission
announced its expectation that future vacatur analyses would be framed and informed by these
Oglala/Powertech principles.32
29 Powertech (USA), Inc. (Dewey-Burdock In Situ Uranium Recovery Facility), CLI-19-1, 89 NRC 1, 11 (2019)
(emphasis added).
30 Id. at 10-11.
31 Id. at 8.
32 Id. at 11. Notwithstanding this expectation, the Commission did not apply or engage with these principles in its order directing the staff to amend the SROL expiration dates to vacate the 20-year SPEOs. See Turkey Point, CLI-22-02, 95 NRC __ (slip op.).
13 B. The Seriousness of the Orders Deficiencies Do Not Support SROL Vacatur
The Commissions concern with the 2013 GEIS pertains to the possibility of an
incomplete NEPA review associated with an SLR period. Here, the Turkey Point SPEOs are
more than a decade away. Because the potential 2013 GEIS deficiency identified by the
Commission poses no imminent concerns, it cannot rightly be viewed as a serious deficiency
warranting the extreme remedy of SROL vacatur.
Furthermore, as noted in Section I above, after more than four years of extensive
regulatory and adjudicatory review, neither the NRC Staff, the ASLB, nor the Commission has
identified a material deficiency in the Turkey Point SEIS. In light of the Commissions recent
orders, FPL and the Staff will likely have to re-e xamine the material sufficiency of at least some
portion of the Turkey Point environmental review. But at the present time, the administrative
recordincluding the recent Commission decisionsdoes not reflect any finding that the
Turkey Point SEIS in fact contains any material defect (much less a serious one). Thus, the
deficiency identified by the Commission in CLI-22-02 is not so imminent or serious as to
warrant vacating the SROLs during the curative period.
C. The Disruptive Consequences of an Interim Change Support Keeping the SROLs in Place
As detailed in the discussion of practical implications in Section II, above, vacating the
SROLs would be highly disruptive, particularly given the tightly-scheduled conditions imposed
as part of SLR and necessary to prepare for the SPEO. Over the past two years, FPL has
proceeded with integrating various SLR-related programs, activities, and analyses into the
Turkey Point licensing basis, and has taken other appropriate CLB-related actions in the normal
course of plant operations (i.e., not specific to SLR), as required by the SROLs and NRC
regulations. If vacated, the legal status of those changes is uncertain, including whether FPL
14 should or could maintain them in place pending further action as directed by the Commission. If
necessary, unwinding those integrations would be a resource-intensive effort and, ultimately,
would not yield any safety, environmental, or regulatory benefits. Indeed, requiring such an
unnecessary effort would be contrary to the NRCs Principles of Good Regulation. In
particular, the Efficiency principle explains that:
The American taxpayer, the rate-paying consumer, and licensees are all entitled to the best possible management and administration of regulatory activities.... Regulatory activities should be consistent with the degree of risk reduction they achieve. Where several effective alternatives are available, the option which minimizes the use of resources should be adopted.33
Here, the disruptive consequences of an interim change clearly weigh in favor of
maintaining the SROLs in place during the curative period.
D. Potential to Use the License to the Detriment of Resources
Pursuant to 10 C.F.R. § 54.31(c), the SROLs became effective immediately upon their
issuance in 2019. Although the SPEOs for Turkey Point do not begin until 2032, the SROLs
obligate FPL to take certain safety-and environmentally-beneficial preparatory actions (some of
which are described in further detail in Sections II.B. and II.C. above) before the SPEOs begin.
However, leaving the SROLs in place during the curative period would not permit them to be
used to the detriment of resources. Importantly, from an environmental standpoint, the agency
itself made the following statement regarding th e Turkey Point SROLs to the U.S. Court of
Appeals for the District of Columbia Circuit:
This is not a situation where the NRC has issued a license that materially disrupts the status quo (e.g., an order authorizing the construction or operation of a new facility), or where there is practical risk that the die may be cast in such a way that meaningful analysis is precluded. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989). Turkey Point is an
33 Values, NRC.gov, https://www.nrc.gov/about-nrc/values.html.
15 already-existing facility that, even without the subsequent renewed licenses at issue in this case, FPL would be authorized to operate for another twelve [now ten] years.34
Thus, as the agency itself has already publicly acknowledged, leaving the SROLs in place
during the curative period would not disrupt the environmental status quo.
In practical terms, the pote ntial environmental impacts of operating the units until 2032
and 2033, respectively, were fully considered in the previous environmental review for Turkey
Points initial license renewal, which was completed in 2002 and is not subject to challenge in
this proceeding, nor is it the subject of any pending Commission action. 35 Thus, a NEPA-
compliant environmental analysis of operating Turkey Point for another decade already exists.
Because the Commission expects the curative e fforts to be completed well before 2032, the
environmental status quo will be preserved with out the need for any protective measures, much
less the draconian measure of vacating the SROLs.
IV. CONCLUSION
As established above, the law does not require the Commission to vacate the Turkey
Point SROLs and reinstate the previous ROLs; and the relevant considerations under Allied-
Signal, Oglala, and Powertech weigh heavily against doing so here. Accordingly, the
Commission should allow the SROLs to continue in place while the NRC Staff completes the
actions directed by the Commission.
34 Final Brief of Federal Respondents at 33, Friends of the Earth, et al., v. NRC, No. 20-1026 (D.C. Cir. Nov. 13, 2020), ECF No. 1871031 (emphasis added).
35 Generic Environmental Impact Statement for License Renewal of Nuclear Plants: Regarding Turkey Point Plant, Units 3 and 4 - Final Report (NUREG-1437, Supplement 5) (Jan. 2002) (ML020280119, ML020280202, ML020280226).
16 Respectfully submitted,
Executed in Accord with 10 C.F.R. § 2.304(d) Signed (electronically) by Ryan K. Lighty
Steven Hamrick, Esq. Ryan K. Lighty, Esq.
FLORIDA POWER & LIGHT COMPANY MORGAN, LEWIS & BOCKIUS LLP 801 Pennsylvania Ave., NW Suite 220 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Washington, D.C. 20004 Phone: (202) 349-3496 Phone: (202) 739-5274 E-mail: steven.hamrick@fpl.com E-mail: ryan.lighty@morganlewis.com
Executed in Accord with 10 C.F.R. § 2.304(d)
Paul M. Bessette, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: (202) 739-5796 E-mail: paul.bessette@morganlewis.com
Counsel for Florida Power & Light Company Dated in Washington, DC this 21st day of March 2022
17 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
BEFORE THE COMMISSION
)
In the Matter of ) Docket Nos. 50-250-SLR &
) 50-251-SLR FLORIDA POWER & LIGHT COMPANY )
)
(Turkey Point Nuclear Generating Units 3 and 4) ) March 21, 2022
)
CERTIFICATE OF SERVICE
Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, a copy of the foregoing FLORIDA POWER & LIGHT COMPANYS VIEWS ON LICENSE STATUS AS REQUESTED IN COMMISSION ORDER CLI-22-02 was served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned docket.
Signed (electronically) by Ryan K. Lighty Ryan K. Lighty, Esq.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: (202) 739-5274 E-mail: ryan.lighty@morganlewis.com
Counsel for Florida Power & Light Company
DB1/ 128183146