ML22080A249
| ML22080A249 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 03/21/2022 |
| From: | Ayres R, Fettus G, Grosso R Friends of the Earth, Miami Waterkeeper, Natural Resources Defense Council |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| 50-250-SLR, 50-251-SLR, ASLBP 18-957-01-SLR-BD01, CLI-22-02, RAS 56366 | |
| Download: ML22080A249 (8) | |
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
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In the Matter of
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Docket Nos. 50-250-SLR
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50-251-SLR FLORIDA POWER & LIGHT COMPANY
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(Turkey Point Nuclear Generating Station,
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March 21, 2022 Unit Nos. 3 and 4)
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VIEWS IN RESPONSE TO CLI-22-02 OF FRIENDS OF THE EARTH, NATURAL RESOURCES COUNCIL, AND MIAMI WATERKEEPER I.
Introduction As directed by the U.S. Nuclear Regulatory Commission (NRC or Commission) in Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), CLI-22-02, __
NRC __, slip op. at 15 (Feb. 24, 2024) (CLI-22-02), Friends of the Earth, Natural Resources Defense Council, and Miami Waterkeeper (together Environmental Organizations) submit their views on the practical effects of the Turkey Point subsequent renewed licenses continuing in place versus the previous licenses being reinstated.
Environmental Organizations concur with Beyond Nuclear.1 The Commission should vacate the subsequent renewed licenses and reinstate the previous licenses but order NRC Staff to impose Florida Power and Light Companys (FPL) revised Aging Management Plan as a condition of continued operation.
1 Beyond Nuclears Response to Constellation Energy Generation, LLCs Petition for Partial Reconsideration of CLI-22-04 and Beyond Nuclears Views in Response to CLI-22-04 (Mar. 17, 2022) (ADAMS Accession No. ML22076A089) (Beyond Nuclear Response).
2 II.
Argument The ordinary practice for violations of the National Environmental Policy Act (NEPA) is vacatur.2 While the Commission ultimately has discretion whether to allow the subsequent renewed licenses to remain in place or reinstate the previous licenses,3 only severe consequences of vacating the [licenses] warrant a deviation from the standard remedy.4 FPL should bear the burden of persuasion that any deviation from vacatur is appropriate here.5 Reinstating the previous renewed licenses will not cause disruptive practical effects, let alone severe consequences.6 FPL should have been aware that the subsequent renewed licenses issued by the NRC Staff were not final and could still be modified or vacated. As the Commission has explained, until a hearing process and any appeals are complete, the Commission has the authority to modify, suspend, or revoke a license.7 Commissioner Barans 2 Standing Rock Sioux Tribe v. U.S. Army Corps. of Engrs, 985 F.3d 1032, 1050-51 (D.C. Cir. 2021) (quoting United Steel v. Mine Safety & Health Admin., 925 F.3d 1279, 1287 (D.C. Cir. 2019) (citing 5 U.S.C. § 706(2))
(citing Humane Society of the United States v. Johanns, 520 F. Supp. 2d 8, 37 (D.D.C. 2007) (observing that vacatur is the standard remedy for an action promulgated in violation of NEPA); Greater Yellowstone Coal. v.
Bosworth, 209 F. Supp. 2d 156, 163 (D.D.C. 2002) (As a general matter, an agency action that violates the APA must be set aside.)). See also, N.Y. v. NRC, 681 F.3d 471 (D.C. Cir. 2012) (finding that the NRC had violated NEPA in issuing its 2010 update to the Waste Confidence Decision and accompanying Temporary Storage Rule, and vacating both).
3 Standing Rock Sioux Tribe, 985 F.3d at 1051.
4 Natl Parks Conservation Assn v. Semonite, 422 F. Supp. 3d 92, 99 (D.D.C. 2019). See also, Standing Rock Sioux Tribe v. U.S. Army Corps of Engineers, 471 F. Supp. 3d 71, 80 (D.D.C. 2020) (In fact, to the Courts and the parties knowledge, only twice has a court (once the Circuit, once the district court here) not vacated agency action that violated NEPA because of a missing or defective EIS.). For example, courts have determined vacating a license would be futile as the agency had already cured the NEPA violation, though through a procedure that was not at all ideal or even desirable. See, Nat. Res. Def. Council v. NRC, 879 F.3d 1202, 1210 (D.C. Cir. 2018);
Friends of the River v. FERC, 720 F.2d 93 (D.C. Cir. 1983).
5 See Oglala Sioux Tribe v. NRC, 896 F.3d 520, 532 (D.C. Cir. 2018) (explaining that the NRCs previous practice of leaving a license in effect, even with an acknowledged deficient NEPA, unless the challenging party can show irreparable harm would result was inappropriate).
6 Natl Parks Conservation Assn, 422 F. Supp. 3d at 99.
7 CLI-22-02, slip op. at 6, 13 (citing Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI 13, 67 NRC 396, 400 (2008) (A license renewal may be set aside (or appropriately conditioned) even after it has been issued, upon subsequent administrative or judicial review.)).
3 dissent in CLI-20-038 was certainly sufficient to provide FPL with notice that the Environmental Organizations then-pending Petition for Review before the Commission challenging the NRC Staffs interpretation of 10 C.F.R. § 51.53 could result in recission of the subsequent renewed licenses issued by the Staff.9 Thus, FPL could not have reasonably assumed that the subsequent renewed licenses were final. Indeed, when the Environmental Organizations appealed the NRC Staffs license decision to the United States Court of Appeals for the District of Columbia, NRC Staff and FPL argued vehemently that the licenses were not a final decision of the Commission.10 There is no pressing need to implement the subsequent renewed licenses. The initial license renewals for Turkey Point are not scheduled to expire until 2032 and 2033 - a decade from now. Moreover, the NRC timely renewal doctrine states that, upon submission of an application for license renewal, an existing license will not be deemed to have expired until the application has been finally determined.11 If FPLs initial renewed licenses are reinstated, FPL and the NRC Staff have plenty of time to do either a site specific or generic environmental analysis, and FPL will also have plenty of time for any construction required, as the Commission acknowledged in its decision.12 In the unlikely event that these actions take longer than ten years, 8 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), CLI-20-03, 91 NRC 133 (Apr. 23, 2020).
9 Friends of the Earths, Natural Resources Defense Councils, and Miami Waterkeepers Petition for Review of the Atomic Safety and Licensing Boards Rulings in LBP-19-3 and LBP-19-06 (Aug. 9, 2019) (ADAMS Accession No. ML19221B677) (challenging the Boards determination that 10 C.F.R. 51.53(c)(3) applies to the preparation of an environmental report in a subsequent renewed license proceeding).
10 See Brief of Federal Respondents at 21-33, Friends of the Earth v. NRC (D.C. Cir 2020) (No. 20-1026); Brief of Intervenor Florida Power & Light Company at 3, Friends of the Earth v. NRC (D.C. Cir 2020) (No. 20-1026).
11 10 C.F.R. 2.109.
12 CLI-22-02, slip op. at 14.
4 the timely renewal doctrine will maintain FPLs right to operate the Turkey Point plant under the renewed licenses until the subsequent renewed license application is fully determined.
If the Commission allows the subsequent renewed licenses to continue in place now it would signal that the NRC has prejudged that the NEPA review will produce no meaningful insights or changes in the license. But the Commissions ruling acknowledge[s] that the environmental review is incomplete13 because the 2013 [Generic Environmental Impact Statement] did not address subsequent license renewal.14 Vacating the license, on the other hand, would give the public, tribal governments, and state and local governments greater confidence in the seriousness of the agencys commitment to NEPAs procedures for considering environmental impacts before taking potentially significant actions.15 Vacatur is the standard remedy for good reason. NEPA is an action-forcing statute, which serves not to generate paperwork or litigation, but to provide for informed decision making and foster excellent action. The goal of informed and excellent decision making can only take place if agencies take the required hard look before taking [the proposed] action.16 As Commissioner Baran explained in a prior dissent, [A] core requirement of NEPA is that an agency decisionmaker must consider an adequate environmental review before making a decision on a licensing action. If the Commission allows a Board to supplement and cure an inadequate NEPA document after the agency has already made a licensing decision, then this fundamental purpose of NEPA is frustrated.17 13 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), CLI-22-03, __ NRC __, slip op. at 4 (Feb. 24, 2024).
14 CLI-22-02, slip op. at 2.
15 Robertson v. Methow Valle Citizens Council, 490 U.S. 332, 350 (1989).
16 Friends of the Earth v. Haaland, No. CV 21-2317 (RC), 2022 WL 254526, at *25 (D.D.C. Jan. 27, 2022) (citing 40 C.F.R. § 1500.1(a); Oglala Sioux Tribe, 896 F.3d at 532) (internal citations omitted) (emphasis added).
17 Oglala Sioux Tribe, 896 F.3d at 526 (D.C. Cir. 2018) (citing Powertech (USA), Inc. (Dewey-Burdock In Situ Uranium Recovery Facility), CLI-16-20, 84 NRC 219 (Dec. 23, 2016)).
5 Leaving the subsequent renewed licenses in place but shortening the terms to match the end dates of the previous licenses fails to meet the requirements of NEPA. The Commissions opinion acknowledged that the NRC Staff approved the subsequent renewed licenses for Turkey Point without considering a proper up-to-date environmental analysis. Without such an analysis, there is no way to tell whether the terms are adequately protective of environmental values. Even assuming, for purposes of argument, that they were, NEPA does not give the NRC authority to forgive harmless violations of NEPA,18 let alone complete failures to consider the vast majority of environmental impacts of the proposed action.
Another fundamental flaw that normally requires vacatur includes failure to provide the required notice and to invite public comment.19 The Commission acknowledges that, [t]o provide a meaningful opportunity for public comment, the agency must adequately describe its intentions to the public.20 As Beyond Nuclear explained, the NRC Staff failed to provide public notice that the 1996 License Renewal Generic Environmental Impact Statement, or its 2013 update, applied to any NRC decisions other than initial license renewal.21 To restore the initial renewed licenses, it would not be necessary or appropriate, however, for the Commission to reinstate now-outdated safety programs that applied to the initial license renewal term. Having completed a safety review and offered an opportunity for a public hearing on FPLs revised Aging Management Plan, the Commission may declare that FPLs initial 18 Id. at 533.
19 Standing Rock Sioux Tribe, 985 F.3d at 1052 (quoting Heartland Regional Medical Center v. Sebelius, 566 F.3d 193, 199 (D.C. Cir. 2009) (emphasis added)).
20 CLI-22-02, slip op. at 10.
21 Beyond Nuclear Response at 10, citing CLI-22-02, slip op. at 10 (Even if the Staff had intended to address subsequent license renewal in the [Generic Environmental Impact Statement], the occasional ambiguous phrasing did not put the public on notice of such an intention, particularly given the language in section 51.53(c)(3) confining its applicability to initial license renewal applicants. To provide a meaningful opportunity for public comment, the agency must adequately describe its intentions to the public.).
6 renewed licenses have effectively been amended, with the required procedures for fairness and due process, to incorporate the revised Aging Management Plan. This step would be consistent with Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-8-13, 67 N.R.C.
396, 400 (2008) (cited in CLI-22-04, slip op. at 3) and would also be an appropriate exercise of the Commissions ultimate responsibility to ensure the safe operation of the facilities that it licenses.22 Finally, we note that this is a problem of the NRCs making. NRC regulations require the NRC staff to promptly issue its approval or denial of [a license] application, even
[d]uring the pendency of any hearing.23 This is therefore not the first time that the NRC has issued a license only to later discover that it has violated NEPA by issuing the license without an adequate environmental review. Every time this occurs, the NRC, applicants, local governments, the public, interested parties, and courts must spend precious time and resources debating what the correct remedy is. Often it is already too late - contrary to NEPAs purpose, the federal action commenced without a full consideration of its environmental impacts.24 There is a simple solution - the NRC should update its regulations to better comply with NEPA by not requiring Staff to issue a license until the full NEPA proceeding is complete.25 While there may be some instances when immediate issuance of a license is important - and 22 Yankee Atomic Electric Co. (Yankee Rowe Nuclear Power Station), CLI-91-11, 34 NRC 3, 12 (1991).
23 Nat. Res. Def. Council v. NRC, 879 F.3d at 1207 (citing 10 C.F.R. § 2.1202(a)).
24 Id. at 1210.
25 Commissioner Baran suggested this solution in a prior hearing also addressing the issue of a deficient NEPA analysis after the issuance of a license. Strata Energy, Inc. (Ross in Situ Recovery Uranium Project), CLI-16-13, 83 NRC 566, 604 (June 29, 2016) (Commissioner Baran, Concurring in Part and Dissenting in Part) (For example, the Staff could wait until the end of the hearing process on contested environmental contentions prior to issuing a license. In this circumstance, a Board or Commission decision could revise the NEPA analysis prior to the issuance of the license, which would ensure that the decisionmaker considers the complete NEPA analysis prior to the completion of the federal action.).
7 hence why the regulation was passed in the first place - there is no good reason to issue a renewed license or subsequent renewed license before the full NEPA proceeding is complete.
Such processes begin years if not decades in advance and therefore afford plenty of time before a license is approved for the completion of a NEPA proceeding, avoiding the confusion and claims of harm on all sides. In addition to updating its regulations relating to the Generic Environmental Impact Statement, the Commission should direct NRC Staff to update the regulation requiring immediate issuance of a license.
III.
Conclusion The Commission should vacate FPLs subsequent renewed license but order the Staff to impose FPLs Aging Management Plan as a condition of continued operation.
Respectfully Submitted, Richard E. Ayres 2923 Foxhall Road, N.W.
Washington, D.C. 20016 202-722-6930 ayresr@ayreslawgroup.com Counsel for Friends of the Earth Geoffrey Fettus, Caroline Reiser Natural Resources Defense Council 1152 15th Street, NW, Suite 300 Washington, DC 20005 202-289-2371 gfettus@nrdc.org creiser@nrdc.org Counsel for NRDC Richard Grosso 6919 W. Broward Blvd.
Plantation, FL 33317 Mailbox 142 richardgrosso1979@gmail.com 954-801-5662 Counsel for Miami Waterkeeper March 21, 2022
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
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In the Matter of
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Docket Nos. 50-250-SLR
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50-251-SLR FLORIDA POWER & LIGHT COMPANY
)
)
(Turkey Point Nuclear Generating Station,
)
March 21, 2022 Unit Nos. 3 and 4)
)
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CERTIFICATE OF SERVICE I certify that on March 21, 2022, I posted copies of the foregoing VIEWS IN RESPONSE TO CLI-22-02 OF FRIENDS OF THE EARTH, NATURAL RESOURCES COUNCIL, AND MIAMI WATERKEEPER on the NRCs Electronic Information Exchange System.
/s/ Caroline Reiser Caroline Reiser Natural Resources Defense Council 1152 15th Street, NW, Suite 300 Washington, DC 20005 202-289-2371 creiser@nrdc.org Counsel for NRDC