ML23356A162

NRC Staff Answer Opposing Miami Waterkeeper Hearing Request

ML23356A162
Person / Time
Site:	Turkey Point
Issue date:	12/22/2023
From:	Roth D, Vaisey B, Jeremy Wachutka NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
ASLBP 24-981-01-SLR-BD01, RAS 56897, 50-250-SLR-2, 50-251-SLR-2
Download: ML23356A162 (0)

Text

December 22, 2023 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of FLORIDA POWER & LIGHT COMPANY (Turkey Point Nuclear Generating Units 3 and 4)

Docket Nos. 50-250-SLR-2 50-251-SLR-2 NRC STAFF ANSWER OPPOSING MIAMI WATERKEEPER HEARING REQUEST INTRODUCTION Pursuant to 10 C.F.R. § 2.309(i), the U.S. Nuclear Regulatory Commission Staff files this answer opposing the Hearing Request filed by Biscayne Bay Waterkeeper, Inc. d/b/a Miami Waterkeeper (Petitioner) because it does not propose at least one admissible contention. The Hearing Request was submitted in response to a notice of opportunity to request a hearing that the NRC provided with respect to new information in NUREG-1437, Supplement 5a, Second Renewal (draft Site-Specific Environmental Impact Statement (EIS)). This 2023 draft Site-Specific EIS is a supplement to the Staffs 2019 environmental review of the proposed action of the continued operations of Turkey Point Nuclear Generating (Turkey Point), Units 3 and 4 for an additional 20 years. As discussed more fully below, the Atomic Safety and Licensing Board should deny Petitioners Hearing Request because to the extent Petitioner alleges omissions or inadequacies in the draft Site-Specific EIS, Petitioner does not show that a genuine dispute exits with the draft Site-Specific EIS. Additionally, Petitioner does not identify material issues of law or fact, refer to the specific portions of the draft Site-Specific EIS that are being disputed, or provide supporting reasons. Petitioner also does not provide the necessary factual support for its arguments. Moreover, Petitioner often disputes pre-existing information in documents that pre-date the draft Site-Specific EIS and does not tie its arguments to information contained in the draft Site-Specific EIS. Such arguments are outside the scope of this proceeding. Finally, even if these arguments were within the scope of this proceeding, Petitioner largely repeats without morearguments that it previously made to a prior Board that rejected them for failing to satisfy the contention admissibility requirements. For these reasons, the Board should deny the Hearing Request.

BACKGROUND By letter dated January 30, 2018, as supplemented, Florida Power & Light Company (FPL) submitted a subsequent license renewal application (SLRA) seeking to extend for an additional 20 years (i.e., from July 19, 2032 and April 10, 2033 to July 19, 2052 and April 10, 2053, respectively) Facility Operating License Nos. DPR-31 and DPR-41 for Turkey Point, Units 3 and 4.1 The NRC regulations that implement the National Environmental Policy Act of 1969, as amended (NEPA), are in 10 C.F.R. Part 51. Consistent with the requirements therein at 10 C.F.R.

§ 51.53(c), the SLRA included, as an appendix, an environmental report (ER), which FPL subsequently supplemented with ER Supplement 1.2 The ER followed the approach set out in 10 C.F.R. Part 51, Subpart A, Appendix B, which divides the NEPA issues relevant to license renewal into Category 1 generic issues and Category 2 site-specific issues, with Table B-1 listing each issue and its category designation, based on the NRCs license renewal generic environmental impact statement, NUREG-1437 (LR GEIS).3 Accordingly, the ER, citing 10 C.F.R. 1 See Letter from Mano K. Nazar, FPL, to NRC Document Control Desk (Jan. 30, 2018) (ML18037A812)

(SLRA); Letter from William D. Maher, FPL, to NRC Document Control Desk (Feb. 9, 2018)

(ML18044A653) (SLRA Supplement 1); Letter from William D. Maher, FPL, to NRC Document Control Desk (Feb. 16, 2018) (ML18053A123) (SLRA Supplement 2); Letter from William D. Maher, FPL, to NRC Document Control Desk (Mar. 1, 2018) (ML18072A224) (SLRA Supplement 3); and Letter from William D.

Maher, FPL, to NRC Document Control Desk (Apr. 10, 2018) (ML18113A132) (SLRA Revision 1).

2 SLRA, Appendix E, Applicants Environmental Report, Subsequent Operating License Renewal Stage, Turkey Point Nuclear Plant Units 3 and 4 (Jan. 30, 2018) (ML18113A145) (ER); Letter from William D.

Maher, FPL, to NRC Document Control Desk (Apr. 10, 2018) (ML18102A521) (ER Supplement 1).

3 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Rev. 1 (June 2013), Vols. 1-3 (ML13106A241, ML13106A242, and ML13106A244) (LR GEIS).

§ 51.53(c)(3), contained analyses of the environmental impacts of the applicable Category 2 issues and consideration of alternatives for reducing their adverse impacts. The ER did not contain analyses of the environmental impacts of the applicable Category 1 issues; instead, it referenced and adopted the generic findings set forth in 10 C.F.R. Part 51 and the LR GEIS and addressed any new and significant information regarding the environmental impacts of license renewal that might render the relevant Category 1 determinations inapplicable to the Turkey Point subsequent license renewal.

On May 2, 2018, the NRC published a notice of opportunity to request a hearing on the SLRA.4 On August 1, 2018, Petitioner, along with Friends of the Earth and Natural Resources Defense Council (collectively, Joint Petitioners), filed a timely hearing request regarding the SLRA.5 The Staff and FPL filed answers in opposition,6 to which Joint Petitioners replied.7 In LBP-19-3, the Board, among other things, granted Joint Petitioners hearing request and admitted, as revised, two contentions.8 The first admitted contention, Contention 1-E, was that the ER was deficient for failing to consider mechanical draft cooling towers as a reasonable alternative, given the adverse impact of the continued operations of the Turkey Point cooling canal system (CCS) on the threatened American crocodile and its critical seagrass habitat.9 The second admitted contention, Contention 5-E, was that the ER was deficient in its failure to 4 Florida Power & Light Co.; Turkey Point Nuclear Generating, Unit Nos. 3 and 4; License renewal application; opportunity to request a hearing and to petition for leave to intervene, 83 Fed. Reg. 19,304 (May 2, 2018).

5 Request for Hearing and Petition to Intervene Submitted by Friends of the Earth, Natural Resources Defense Council, and Miami Waterkeeper (Aug. 1, 2018) (ML18213A418) (Joint Petition).

6 NRC Staffs Corrected Response to Petitions to Intervene and Requests for Hearing filed by (1) Friends of the Earth, Natural Resources Defense Council and Miami Waterkeeper, and (2) Southern Alliance for Clean Energy (Aug. 27, 2018) (ML18239A458); Applicants Answer Opposing Request for Hearing and Petition to Intervene Submitted by Friends of the Earth, Natural Resources Defense Council, and Miami Waterkeeper (Aug. 27, 2018) (ML18239A445).

7 Reply in Support of Request for Hearing and Petition to Intervene Submitted by Friends of the Earth, Natural Resources Defense Council, and Miami Waterkeeper (Sep. 10, 2018) (ML18253A280).

8 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), LBP-19-3, 89 NRC 245, 301-2 (2019) (ML19067A003) (LBP-19-3).

9 LBP-19-3, 89 NRC at 287.

recognize Turkey Point as a source of ammonia in freshwater wetlands surrounding the site, and in its failure to analyze the potential impacts of ammonia releases during the renewal period on threatened and endangered species and their critical habitat.10 As part of their other contentions, Joint Petitioners had argued that because 10 C.F.R. § 51.53(c)(3) specifies initial renewed license with respect to the applicability of the regulatory framework for the use of the Category 1 and Category 2 designations, the FPL ER, which supports a subsequent, as opposed to an initial, license renewal, cannot rely on the Category 1 findings in 10 C.F.R. Part 51, Subpart A, Appendix B and the LR GEIS and, instead, was required to evaluate those issues on a site-specific basis.11 The Board determined that based on a holistic review of 10 C.F.R.

§ 51.53(c)(3), the Commission did not intend to restrict 10 C.F.R. § 51.53(c)(3) to only initial license renewals.12 Therefore, the Board did not admit contentions that relied on the argument that 10 C.F.R. Part 51, Subpart A, Appendix B and the LR GEIS do not apply to subsequent license renewal applications.13 However, given the significance of this legal issue of first impression, the Board referred this ruling to the Commission pursuant to 10 C.F.R.

§ 2.323(f)(1).14 In March 2019, consistent with 10 C.F.R. § 51.95(c), the Staff issued its draft environmental impact statement regarding the Turkey Point SLRA, as a supplement to the LR GEIS.15 Per 10 C.F.R. § 51.95(c)(4), this draft supplemental environmental impact statement (SEIS) integrated the generic conclusions in the LR GEIS for issues designated as Category 1 with site-specific information developed for those Category 2 issues applicable to Turkey Point 10 Id. at 293-94.

11 Id. at 264-65.

12 Id. at 272.

13 Id. at 290-95.

14 Id. at 273 n.46.

15 NUREG-1437, Supplement 5, Second Renewal, Generic Environmental Impact Statement for License Renewal of Nuclear Plants Regarding Subsequent License Renewal for Turkey Point Nuclear Generating Unit Nos. 3 and 4, Draft Report for Comment (Mar. 2019) (ML19078A330) (Draft SEIS).

subsequent license renewal and any new and significant information. Among other things, the draft SEIS considered the use of mechanical draft cooling towers as an alternative to the CCS16 and analyzed ammonia releases within and around the Turkey Point site.17 Therefore, in LBP-19-6, the Board determined that the omissions that were the bases for Contentions 1-E and 5-E had been cured and thus that the admitted contentions were rendered moot.18 In response to the issuance of the draft SEIS, Joint Petitioners sought the admission of two amended and four new contentions.19 The Staff and FPL filed answers in opposition,20 to which Joint Petitioners replied.21 Thereafter, in LBP-19-8, the Board rejected Joint Petitioners contentions and terminated the proceeding.22 Joint Petitioners appealed LBP-19-3, LBP-19-6, and LBP-19-8.23 16 Draft SEIS at 2-12-2-13, 2-22-2-23, 4-11, 4-18-4-19, 4-21, 4-41-4-42, 4-48-4-49, 4-59-4-60, 4-76, 4 4-84, 4-88, 4-94-4-95, 4-97.

17 Id. at 3-41-3-44.

18 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), LBP-19-6, 90 NRC 17, 26 (2019) (ML19189A252) (LBP-19-6).

19 Natural Resources Defense Councils, Friends of the Earths, and Miami Waterkeepers Amended Motion to Migrate Contentions & Admit New Contentions in Response to NRC Staffs Supplemental Draft Environmental Impact Statement (June 28, 2019) (ML19179A316) (Motion to Admit New and Amended Contentions).

20 NRC Staffs Answer to Joint Intervenors (1) Amended Motion to Migrate or Amend Contentions 1-E and 5-E and to Admit Four New Contentions, and (2) Petition for Waiver (Jul. 19, 2019) (ML19200A300);

Florida Power & Light Companys Answer Opposing Intervenors Motion to Migrate or Amend Contentions 1-E and 5-E and to Admit New Contentions 6-E, 7-E, 8-E, and 9-E (Jul. 19, 2019) (ML19200A297).

21 Reply in Support of Motion to Migrate Contentions & Admit New Contentions in Response to NRC Staffs Supplemental Draft Environmental Impact Statement (Jul. 26, 2019) (ML19207C092).

22 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), LBP-19-8, 90 NRC 139, 178 (2019) (ML19297F366) (LBP-19-8).

23 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)

(ML19221B677); Friends of the Earths, Natural Resources Defense Councils, and Miami Waterkeepers Petition for Review of the Atomic Safety and Licensing Boards Ruling in LBP-19-08 (Nov. 18, 2019)

(ML19322D623).

In October 2019, the Staff issued the final SEIS.24 Thereafter, since the Staff had previously completed its safety review of the SLRA,25 it approved the SLRA and issued subsequent renewed licenses for Turkey Point, Units 3 and 4.26 In April 2020, in response to the referral to it by the Board, the Commission issued CLI-20-3, in which it upheld the Boards ruling, holding that the environmental impacts of subsequent license renewal were addressed by the LR GEIS and 10 C.F.R. Part 51, Subpart A, Appendix B.27 Therefore, the Commission concluded that subsequent license renewal applicants may rely on the LR GEIS and 10 C.F.R. Part 51, Subpart A, Appendix B and thereby exclude consideration of Category 1 issues from their environmental reports, absent applicable new and significant information.28 In 2022, the Commission took up the pending appeals of LBP-19-3, LBP-19-6, and LBP-19-8 and, in CLI-22-2, reversed CLI-20-3, holding, instead, that 10 C.F.R. § 51.53(c)(3) only applies to an initial license renewal applicants environmental reports and that the LR GEIS does not address subsequent license renewal.29 As a result, since the Staff had incorporated the generic Category 1 findings of the LR GEIS in the final SEIS for the Turkey Point SLRA, the Commission found that the Staffs environmental review of the Turkey Point SLRA was incomplete.30 However, because the Staff had already issued the Turkey Point subsequent 24 NUREG-1437, Supplement 5, Second Renewal, 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 (Oct. 2019) (ML19290H346) (Final SEIS).

25 Safety Evaluation Report Related to the Subsequent License Renewal of Turkey Point Generating Units 3 and 4, Docket Nos. 50-250 and 50-251, Florida Power & Light Company (Jul. 2019)

(ML19191A057).

26 Letter from David Drucker, NRC, to Mano Nazar, FPL (Dec. 4, 2019) (ML19305C878).

27 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), CLI-20-3, 91 NRC 133, 134, 152, 155 (2020) (ML20114E147) (CLI-20-3).

28 Id. at 155.

29 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), CLI-22-2, 95 NRC 26, 27 (2022) (ML22055A496) (CLI-22-2).

30 Id.

renewed licenses (which had become immediately effective upon issuance), the Commission directed the Staff to leave those licenses in place with shortened terms to match the end dates of the previous licenses (i.e., July 19, 2032, and April 10, 2033, for Units 3 and 4, respectively) until completion of the NEPA analysis.31 The Staff did this by letter dated March 25, 2022.32 Consistent with CLI-22-2, the Commission issued CLI-22-3 stating that because 10 C.F.R. § 51.53(c)(3) only applies to an initial license renewal environmental report and because the LR GEIS did not address subsequent license renewal, the Commission will not issue any further licenses for a subsequent license renewal period until the Staff has completed an adequate NEPA review for each application.33 The Commission explained that an adequate NEPA review for these applications could be accomplished through either (1) updating the LR GEIS so that it addresses subsequent license renewal and then reviewing the applications using this updated LR GEIS or (2) addressing Category 1 impacts on a site-specific basis in a site-specific EIS.34 The Commission dismissed the environmental contentions and motions pending in the affected subsequent license renewal proceedings, including in the Turkey Point SLRA proceeding.35 The Commission stated that there would be a hearing opportunity on any site-specific EISs developed by the Staff, but that it would be limited to contentions based on new information in the site-specific environmental impact statement.36 31 Id. at 36. The Commission observed that [g]iven the timeframe involved, we fully expect that the Staff will be able to evaluate the environmental impacts prior to FPL entering the subsequent license renewal period. Id. at 36-37.

32 Letter from Andrea D. Veil, NRC, to Bob Coffey, FPL (Mar. 25, 2022) (ML22073A122).

33 Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, and 3), Exelon Generation Co., LLC (Peach Bottom Atomic Power Station, Units 2 and 3), Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), NextEra Energy Point Beach, LLC (Point Beach Nuclear Plant, Units 1 and 2),

Virginia Electric & Power Co. (North Anna Power Station, Units 1 and 2), CLI-22-3, 95 NRC 40, 41 (2022)

(ML22055A554) (CLI-22-3).

34 Id. at 41-42.

35 Id. at 42.

36 Id.

On June 3, 2022, the Commission, in CLI-22-6, affirmed its direction to the Staff in CLI-22-2 to keep the Turkey Point subsequent renewed licenses in place but with shortened terms to match the end dates of the previous licenses until completion of the NEPA analysis.37 The Commission also terminated the Turkey Point SLRA proceeding.38 In response to CLI-22-2, FPL submitted ER Supplement 2, which provided a site-specific analysis of the environmental impacts of the continued operation of Turkey Point during the subsequent license renewal period.39 That analysis supplemented the ER and ER Supplement 1 that were included as part of the Turkey Point SLRA and addressed, on a site-specific basis, each environmental issue that had previously been dispositioned as a Category 1 issue.

In 2023, following its receipt of ER Supplement 2, the Staff issued the draft Site-Specific EIS, which evaluated, on a site-specific basis, the environmental impacts of the operation of Turkey Point during the subsequent license renewal period for each of the environmental issues that had previously been dispositioned as Category 1 issues in the final SEIS, in accordance with CLI-22-2 and CLI-22-3.40 The draft Site-Specific EIS considered information contained in ER Supplement 2; the Staffs consultation with Federal, State, Tribal, and local government agencies; and other information, as appropriate.41 The draft Site-Specific EIS also considered whether there is significant new information that would change the Staffs conclusions concerning Category 2 issues evaluated in the final SEIS.42 Thus, the 2023 draft Site-Specific 37 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), CLI-22-6, 95 NRC 111, 112 (2022) (ML22154A215) (CLI-22-6).

38 Id. at 115.

39 Letter from William D. Maher, FPL, to NRC Document Control Desk (June 9, 2022) (ML22160A301) (ER Supplement 2).

40 NUREG-1437, Supplement 5a, Second Renewal, Site-Specific Environmental Impact Statement for License Renewal of Nuclear Plants Regarding Subsequent License Renewal for Turkey Point Nuclear Generating Unit Nos. 3 and 4, Draft Report for Comment (Aug. 2023) (ML23242A216) (Draft Site-Specific EIS).

41 Id. at 1-4 42 Id.

EIS supplemented the 2019 final SEIS evaluation of Category 1 impacts and updated the final SEIS evaluation of Category 2 impacts so that together, the draft Site-Specific EIS and the final SEIS evaluated, on a site-specific basis, all of the environmental impacts of continued operation during the subsequent license renewal period for Turkey Point, Unit 3 from July 19, 2032 to July 19, 2052, and for Turkey Point, Unit 4 from April 10, 2033, to April 10, 2053.43 On September 8, 2023, the Staff noticed the availability of the draft Site-Specific EIS and provided an opportunity to request a hearing on the draft Site-Specific EIS.44 This opportunity to request a hearing was specifically limited to contentions based on new information in the draft

[Site-Specific] EIS.45 This limitation mirrors the language in CLI-22-3, in which the Commission directed the Staff to provide a new notice of opportunity for hearing after each site-specific review is complete limited to contentions based on new information in the site-specific environmental impact statement.46 In response to the notice of opportunity to request a hearing, Petitioner timely47 filed its Hearing Request.48 The Hearing Request argues that a hearing should be granted regarding the 43 Id. at 1-4-1-5.

44 Florida Power & Light Company; Turkey Point Nuclear Generating Unit Nos. 3 and 4, Draft environmental impact statement; request for comment; public comment meetings; opportunity to request a hearing and to petition for leave to intervene, 88 Fed. Reg. 62,110, 62,110-11 (Sep. 8, 2023).

45 Id.

46 CLI-22-3, 95 NRC at 42.

47 Petitioner requested an extension of the deadline to file a hearing request and that the notice of opportunity to request a hearing be withdrawn. Email and Letter, dated October 27, 2023, from Sydnei Cartwright, Miami Waterkeeper, to Brooke Clark, Secretary, NRC, Request for 60 Day Extension of Request for Hearing and Petition to Intervene for Turkey Point Site-Specific Environmental Impact Statement for License Renewal of Nuclear Plants, Docket ID 50-250 and 50-251; NRC-2022-0172 (Oct.

30, 2023) (ML23305A127).

The Secretary of the Commission granted Petitioner an extension of time until November 27, 2023 to file a hearing request and denied Petitioners request to withdraw the notice of opportunity to request a hearing. Order (Granting a 20-Day Extension Deadline to Request for Hearing) (Nov. 6, 2023)

(ML23310A269).

48 Request for Hearing and Petition to Intervene Submitted by Miami Waterkeeper (Nov. 27, 2023)

(ML23331A971) (Hearing Request).

Petitioner filed the following with the Hearing Request: Exhibit 1, Declaration of Rachel Silverstein, Ph.D.

(ML23331A972); Exhibit 2, Declaration of Philip K. Stoddard, Ph.D. (ML23331A982); Exhibit 3, draft Site-Specific EIS because Petitioner has standing and has proposed five contentions.49 However, as explained below, although Petitioner has demonstrated standing, Petitioner has not demonstrated that any of its proposed contentions satisfy the Commissions strict-by-design contention admissibility requirements by satisfying all of the criteria of 10 C.F.R. § 2.309(f)(1).

Therefore, the Hearing Request should be denied.

DISCUSSION Under the Commissions rules of practice in 10 C.F.R. Part 2, any person whose interest may be affected by a proceeding and who desires to participate as a party must file a written request for a hearing.50 This request must include the contentions that the person seeks to have litigated in the hearing.51 The presiding officer will grant the hearing request if they determine that the requestor has standing under 10 C.F.R. § 2.309(d) and has proposed at least one Declaration of Dr. William K. Nuttle regarding the draft EIS for the Turkey Point Nuclear Generating Unit Nos. 3 and 4 (NUREG-1437 Supplement 5a Second Renewal) (ML23331A983); Exhibit 4, Declaration of James Fourqurean, Ph.D. (ML23331A984); Exhibit 5, Declaration of Bill Powers, P.E. (ML23331A985);

Exhibit 6, Declaration of Robert E. Kopp (ML23331A986); Exhibit 7, Final Environmental Statement Related to the Operation of Turkey Point Plant) (Jul. 1972) (ML23331A987); Exhibit 8 (ML23331A988)

(consisting of only a cover page, but appearing to refer to https://ecmrer.miamidade.gov/OpenContent/rest/content/content/TECHNICAL REPORTS.pdf?id=0902a13494af5af8&contentType%5b%5d=pdf,txt,.*/true (in order to access, need to first accept terms at https://ecmrer.miamidade.gov/)); Exhibit 9, Turkey Point Clean Energy Center Remedial Action Annual Status Report Year 5 (Nov. 15, 2023) (ML23331A989); Exhibit 10, Turkey Point Clean Energy Center Remedial Action Annual Status Report Year 3 (Nov. 15, 2021) (ML23332A191);

Exhibit 11, Miami Waterkeeper, Friends of the Earth, Center for Biological Diversity, and the Natural Resources Defense Council Comments Re: Notice of Intent to Conduct Scoping Process and Prepare Environmental Impact Statement Florida Power & Light Company Turkey Point Nuclear Generating Unit Nos. 3 and 4, Docket Nos. 50-250 and 50-251; NRC-2022-0172 (Nov. 7, 2022) (ML23331A974); Exhibit 12, Groundwater Tek Inc., Review of FPLs Groundwater Flow and Salt Transport Models and Assessment of the First Year Operation of the [Recovery Well System] (Jul. 2020) (ML23331A975);

Exhibit 13, Comments Re: Florida Power and Light Remedial Action Annual Status Report (RAASR) dated November 15, 2022 and submitted on behalf of the Florida Power and Light Turkey Plant Facility and Cooling Canal System (HWR-851) located at, near or in the vicinity of 9700 SW 344 Street, Miami-Dade County, Florida (Aug. 3, 2023) (ML23331A976); Exhibit 14, Memorandum (Jul. 19, 2016)

(ML23331A977); Exhibit 15, Climate change is probably increasing the intensity of tropical cyclones (Mar.

2021) (ML23331A978); Exhibit 16, Miami Cave Crayfish (Procambarus milleri) Species Status Assessment (Jan. 10, 2022) (ML23331A979); Exhibit 17, The Cooling-Canal System at the FPL Turkey Point Power Station (ML23331A980); Exhibit 18, Declaration of Jeffrey T. Mitman (ML23331A981).

49 Hearing Request at 1, 6, 11.

50 10 C.F.R. § 2.309(a).

51 Id.

admissible contention that meets the requirements in 10 C.F.R. § 2.309(f).52 As discussed herein, Petitioner has demonstrated standing to intervene, but has not proposed at least one admissible contention. Therefore, Petitioners Hearing Request should be denied.

I. Petitioner Has Demonstrated Standing under 10 C.F.R. § 2.309(d)

A. Requirements for Standing Under the general standing requirements set forth in 10 C.F.R. § 2.309(d)(1), a petitioner must state:

(i)

The name, address, and telephone number of the petitioner; (ii)

The nature of the petitioners right under the Atomic Energy Act of 1954, as amended (AEA), to be made a party to the proceeding; (iii)

The nature and extent of the petitioners property, financial, or other interest in the proceeding; and (iv)

The possible effect of any decision or order that may be issued in the proceeding on the petitioners interest.53 NRC regulations state that in ruling on a petition, the presiding officer must determine, among other things, whether the petitioner has an interest affected by the proceeding considering the factors enumerated in 10 C.F.R. § 2.309(d)(1).54 As the Commission has observed, the NRC has long applied contemporaneous judicial concepts of standing, which require an actual or threatened injury that is fairly traceable to the challenged action, is likely to be redressed by a favorable decision, and arguably falls within the zone of interests protected by the AEA.55 The injury must be both concrete and 52 Id.

53 10 C.F.R. § 2.309(d)(1).

54 10 C.F.R. § 2.309(d)(2).

55 El Paso Electric Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI-20-7, 92 NRC 225, 230 (2020) (quoting Calvert Cliffs 3 Nuclear Project, LLC and UniStar Nuclear Operating Servs., LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-09-20, 70 NRC 911, 915 (2009)).

particularized, not conjectural, or hypothetical.56 Further, at the heart of the standing inquiry is whether the petitioner has alleged such a personal stake in the outcome of the controversy as to demonstrate that a concrete adverseness exists [that] will sharpen the presentation of issues.57 While the Commission generally requires the elements of standing to be pled with specificity, standing to intervene has been found to exist in construction permit and operating license proceedings based upon a proximity presumption.58 In such proceedings, standing is presumed for persons who reside within, or have frequent contacts with, the zone of possible harm from the nuclear reactor.59 In practice, the Commission has found standing based on the proximity presumption for persons who reside within approximately 50 miles of the facility.60 As noted by the Commission, licensing boards have also employed the proximity presumption to establish standing to intervene in reactor operating license renewal proceedings.61 An organization seeking to intervene must satisfy the same standing requirements as an individual seeking to intervene.62 The organization may establish standing based on organizational standing (showing that its own organizational interests could be adversely affected by the proceeding) or representational standing (based on the standing of its members).63 Where an organization seeks to establish representational standing, the organization must demonstrate that at least one of its members may be affected by the 56 Palo Verde, CLI-20-7, 92 NRC at 230 (quoting Sequoyah Fuels Corp. and General Atomics (Gore, Oklahoma Site), CLI-94-12, 40 NRC 64, 72 (1994).

57 Gore, Oklahoma Site, CLI-94-12, 40 NRC at 71 (quoting Duke Power Co. v. Carolina Environmental Study Group, Inc., 438 U.S. 59, 72 (1978)).

58 See, e.g., Calvert Cliffs, CLI-09-20, 70 NRC at 915-17.

59 Id. at 915-16.

60 Id.

61 Id. at 915 n.15 (citing Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4),

LBP-01-6, 53 NRC 138, 150, affd on other grounds, CLI-01-17, 54 NRC 3 (2001)).

62 See Palo Verde, CLI-20-7, 91 NRC at 231.

63 Id. at 230-31.

proceeding and that these members, who must be identified by name, have authorized the organization to represent them and to request a hearing on their behalf.64 This demonstration is typically accomplished via affidavit.65 Further, the member seeking representation must qualify for standing in [their] own right; the interests that the representative organization seeks to protect must be germane to its purpose; and neither the asserted claim nor the requested relief must require an individual member to participate in the organizations legal action.66 B. Petitioner Has Satisfied its Burden of Demonstrating Standing In the Hearing Request, Petitioner describes itself as a Florida non-profit organization whose mission is to protect and preserve the Biscayne Bay watershed through public education, advocacy for public policies, and participation in legal and administrative forums.67 Petitioner seeks to demonstrate that it has representational standing under 10 C.F.R. § 2.309(d) with respect to the draft Site-Specific EIS based on the individual standing of two of its members Rachel Silverstein and Phillip Stoddard.68 In support of this demonstration, Petitioner filed declarations by these individuals stating that (1) they are members of Miami Waterkeeper, (2) they would be injured by the continued operations of Turkey Point, Units 3 and 4, (3) they live within 50 miles of Turkey Point, and (4) they have authorized Miami Waterkeeper to represent their interests in the Turkey Point SLRA proceeding.69 Because the instant proceeding involves the renewal of the licenses for Turkey Point and because the information provided by Petitioner 64 FirstEnergy Nuclear Operating Co. and FirstEnergy Nuclear Generation, LLC (Beaver Valley Power Station, Units 1 and 2; Davis-Besse Nuclear Power Station, Unit 1; Perry Nuclear Power Plant, Unit 1),

CLI-20-05, 91 NRC 214, 220 (2020).

65 Id. at 220-221.

66 Id. at 220.

67 Hearing Request at 4.

68 Id. at 5.

69 See Exhibit 1, Declaration of Rachel Silverstein, Ph.D. (ML23331A972); Exhibit 2, Declaration of Philip K. Stoddard, Ph.D. (ML23331A982).

is consistent with precedent regarding the proximity presumption and representational standing, Petitioner has satisfied its burden of demonstrating standing.

II. None of the Proposed Contentions Meet the Admissibility Requirements in 10 C.F.R.

§ 2.309(f)

A. Requirements for Contention Admissibility The legal requirements governing the admissibility of contentions are set forth in 10 C.F.R. § 2.309(f)(1)-(2). Specifically, a petitioner must set forth with particularity the contentions that the petitioner seeks to raise and, for each contention, the petitioner must:

(i)

Provide a specific statement of the issue of law or fact to be raised or controverted; (ii)

Provide a brief explanation of the basis for the contention;70 (iii)

Demonstrate that the issue raised in the contention is within the scope of the proceeding;71 (iv)

Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action involved in the proceeding;72 (v)

Provide a concise statement of the alleged facts or expert opinions that support the petitioners position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the petitioner intends to rely;73 and 70 Contentions cannot be based on speculation and must have some reasonably specific factual or legal basis. Entergy Nuclear Vt. Yankee, LLC and Entergy Nuclear Operations, Inc., (Vermont Yankee Nuclear Power Station), CLI-15-20, 82 NRC 211, 221 (2015).

71 The scope of the proceeding is defined by the Commission in its initial hearing notice and order referring the proceeding to the licensing board. See Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-00-23, 52 NRC 327, 329 (2000). As a consequence, any contention that falls outside the specified scope of the proceeding must be rejected. See Pacific Gas and Electric Co.

(Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-11-11, 74 NRC 427, 435-36 (2011).

72 A dispute at issue is material if its resolution would make a difference in the outcome of the licensing proceeding. Holtec International (Hi-STORE Consolidated Interim Storage Facility), CLI-20-4, 91 NRC 167, 190 (2020). There may, of course, be mistakes in an environmental document, but in an NRC adjudication, it is the burden of petitioners to show their significance and materiality because boards do not sit to flyspeck environmental documents or to add details or nuances and [i]f the [document] on its face comes to grips with all important considerations nothing more need be done. Exelon Generation Co., LLC (Early Site Permit for Clinton ESP Site), CLI-05-29, 62 NRC 801, 811 (2005) (quoting Systems Energy Resources, Inc. (Early Site Permit for Grand Gulf ESP Site), CLI-05-4, 61 NRC 10, 13 (2005)).

73 The petitioner is obliged to present the facts and expert opinions necessary to support its contention.

See USEC Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 457 (2006) (it is the petitioners (vi)

Provide sufficient information to show that a genuine dispute exists with the applicant or licensee on a material issue of law or fact. This information must include references to specific portions of the application (including the applicants environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioners belief.

Contentions must be based on documents or other information available at the time the petition is to be filed, such as the application, supporting safety analysis report, environmental report or other supporting document filed by an applicant or licensee, or otherwise available to a petitioner.74 For environmental issues arising under NEPA, a petitioner must file contentions based on the applicants environmental report.75 The Commission has explained that for the admissibility of a contention of omission this means that Petitioner must identify information that was not considered in the environmental review for the application at issue and explain, with asserted facts or expert opinion, how it presents a seriously different picture of the environmental impact of the proposed project from what was previously envisioned.76 responsibility to satisfy the basic contention admissibility requirements; boards should not have to search through a petition to uncover arguments and support for a contention and may not simply infer unarticulated bases of contentions); see also Arizona Public Service Co., et. al. (Palo Verde Nuclear Generating Station, Units 1, 2 and 3), CLI-91-12, 34 NRC 149, 155 (1991). Bare assertions and speculation, even by an expert, are insufficient to trigger a full adjudicatory proceeding. Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC 704, 714 (2012).

74 10 C.F.R. § 2.309(f)(2).

75 Id.

76 Luminant Generation Co. LLC (Comanche Peak Nuclear Power Plant, Units 3 and 4), Energy Northwest (Columbia Generating Station), Southern Nuclear Operating Company (Vogtle Electric Generating Plant, Units 3 and 4), Duke Energy Carolinas, LLC (William States Lee III Nuclear Station, Units 1 and 2), CLI-12-7, 75 NRC 379, 390-91 (2012) (citing Union Electric Co. (Callaway Plant, Unit 2),

CLI-11-5, 74 NRC 141, 167-68 (2011) (citing, in turn, Hydro Resources, Inc. (2929 Coors Road, Suite 101, Albuquerque, NM, 87120), CLI-99-22, 50 NRC 3, 14 (1999) (citing, in turn, Marsh v. Oregon Natural Resources Council, 490 U.S. 360, 373 (1989); Sierra Club v. Froehlke, 816 F.2d 205, 210 (5th Cir. 1987)))).

The NRCs regulations governing contention admissibility are intended to focus litigation on concrete issues and result in a clearer and more focused record for decision.77 The Commission has explained that the contention admissibility rules are strict by design.78 Failure to satisfy any of the six pleading requirements renders a contention inadmissible.79 As noted above, the rules require a clear statement as to the basis for the contentions and the submission of supporting information and references to specific documents and sources that establish the validity of the contention.80 Although a petitioner does not have to prove its contention at the admissibility stage,81 the contention admissibility standards are meant to afford hearings only to those who proffer at least some minimal factual and legal foundation in support of their contentions.82 The petitioner must provide some support for the contention, either in the form of facts or expert testimony, 77 See, e.g., Southern Nuclear Operating Co. Inc. (Vogtle Electric Generating Plant, Unit 3), LBP-20-8, 92 NRC 23,46 (2020) (quoting Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2202 (Jan. 14, 2004)); Crow Butte Resources, Inc. (In Situ Leach Facility, Crawford, NE), LBP-15-15, 81 NRC 598, 601 (2015).

78 Entergy Nuclear Operations, Inc. (Indian Point, Unit 2) CLI-16-5, 83 NRC 131, 136 (2016) (citing Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349, 358 (2001) and South Carolina Electric & Gas Co. and South Carolina Public Service Authority (Virgil C. Summer Nuclear Station, Units 2 and 3), CLI-10-1, 71 NRC 1, 7 (2010). The Commission has stated that it should not have to expend resources to support the hearing process unless there is an issue that is appropriate for, and susceptible to, resolution in an NRC hearing. 69 Fed. Reg. at 2202.

79 Indian Point, CLI-16-5, 83 NRC at 136; see also Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 334-35 (1999) (the heightened contention admissibility rules are designed to preclude contentions based on little more than speculation). The requirements are intended, among other things, to ensure that a petitioner reviews the application and supporting documents prior to filing contentions; that contentions are supported by at least some facts or expert opinion known to the petitioner at the time of filing; and that there exists a genuine dispute before a contention is admitted for litigation, to avoid the practice of filing contentions that lack any factual support and seeking to flesh them out later through discovery. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP 35, 34 NRC 163, 167-68 (1991).

80 AmerGen Energy Co. (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 118-19 (2006).

81 Private Fuel Storage L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-22, 60 NRC 125, 139 (2004).

82 Oconee, CLI-99-11, 49 NRC at 334.

and failure to do so requires that the contention be rejected.83 Any supporting material provided by the petitioner is subject to scrutiny by the presiding officer,84 who must confirm that the proffered material provides adequate support for the contention.85 If a petitioner neglects to provide the requisite support for its contentions, then the presiding officer should not make assumptions of fact that favor the petitioner or search for or supply information that is lacking.86 Moreover, providing any material or document as a basis for a contention without explaining its significance is grounds for the presiding officer to reject the contention.87 In sum, the information, facts, and expert opinions provided by the petitioner are examined by the presiding officer to determine whether they provide adequate support for the proffered contentions.88 The Commission has held that, absent a waiver, a contention must be rejected if it challenges applicable statutory requirements, regulations, or the basic structure of the Commissions regulatory process.89 Further, attempts to advocate for requirements stricter than those imposed by regulation constitute collateral attacks on the NRCs rules and are therefore inadmissible.90 Contentions that are nothing more than a generalization regarding the 83 Palo Verde, CLI-91-12, 34 NRC at 155; accord, Indian Point, CLI-16-5, 83 NRC at 136. See Rules of Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, 54 Fed.

Reg. 33,168, 33,170 (Aug. 11, 1989) (This requirement does not call upon the intervener to make its case at this stage of the proceeding, but rather to indicate what facts or expert opinions, be it one fact or opinion or many, of which it is aware at that point in time [that] provide the basis for its contention.).

84 See Vermont Yankee Nuclear Power Co. (Vermont Yankee Nuclear Power Station), ALAB-919, 30 NRC 29, 48 (1989), vacated in part on other grounds and remanded, CLI-90-4, 31 NRC 333 (1990); see also Tennessee Valley Authority (Bellefonte Nuclear Plant, Units 1 and 2), LBP-10-7, 71 NRC 391, 421 (2010).

85 See Vermont Yankee, ALAB-919, 30 NRC at 48; see also Bellefonte, LBP-10-7, 71 NRC at 421.

86 See USEC Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 457 (2006).

87 See Fansteel, Inc. (Muskogee, Oklahoma Site), CLI-03-13, 58 NRC 195, 205 (2003).

88 American Centrifuge, CLI-06-10, 63 NRC at 457; see Bellefonte, LBP-10-7, 71 NRC at 421.

89 As set forth in 10 C.F.R. § 2.335(a), no rule or regulation of the Commission is subject to attack in any adjudicatory proceeding, in the absence of a waiver petition granted by the Commission. Further, any contention that amounts to an attack on applicable statutory requirements or represents a challenge to the basic structure of the Commissions regulatory process must be rejected. Dominion Nuclear Conn.

(Millstone Nuclear Power Station, Unit 2), CLI-03-14, 58 NRC 207, 218 (2003).

90 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 315 (2012) (citations omitted); see Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1974) (explaining that a contention that seeks to raise an issue that is not proper for petitioners view of what applicable policies ought to be must also be rejected.91 The well-recognized presumption of administrative regularity fully extends to the discharge by the Staff of its responsibilities in connection with licensing, thus, Boards are obligated to proceed in deciding questions before them on the assumption that the Staff would fully and properly carry out its duties.92 B. Requirements for Environmental Review of License Renewal Applications NEPA requires federal agencies to include in any recommendation or report on proposals for major federal actions significantly affecting the quality of the human environment, a detailed statement on:

(i)

The environmental impact of the proposed action; (ii)

Any adverse environmental effects which cannot be avoided should the proposal be implemented; (iii)

Alternatives to the proposed action; (iv)

The relationship between local short-term uses of the environment and the maintenance and enhancement of long-term productivity; and (v)

Any irreversible and irretrievable commitments of resources that would be involved in the proposed action should it be implemented.93 In accordance with its NEPA responsibilities, the Staff is required to take a hard look at the environmental impacts of a proposed major federal action that could significantly affect the environment, as well as reasonable alternatives to that action.94 This hard look is tempered by a rule of reasonconsideration of environmental impacts need not address all theoretical adjudication in the proceeding or that does not apply to the facility in question, or seeks to raise an issue that is not concrete or litigable must also be rejected).

91 Millstone, CLI-03-14, 58 NRC at 218.

92 Arkansas Power & Light Co. (Arkansas Nuclear One Unit 2), ALAB-94, 6 AEC 25, 28 (1973).

93 NEPA § 102(2)(C).

94 See Louisiana Energy Services, L.P. (Claiborne Enrichment Center), CLI-98-3, 47 NRC 77, 87-88 (1998); Crow Butte Resources, Inc. (Marsland Expansion Area), LBP-19-2, 89 NRC 18, 40 (2019).

possibilities, but rather only those that have some possibility of occurring.95 An agency thus need only address impacts that are reasonably foreseeable; the agency need not perform analyses concerning events that would be considered worst case scenarios or those considered remote and highly speculative.96 Further, NEPA does not call for certainty or precision, but an estimate of anticipated (not unduly speculative) impacts.97 NEPA similarly does not require review when the circumstances render review impossible.98 And NEPA gives agencies broad discretion to keep their inquiries within appropriate and manageable boundaries.99 As the Commission has observed, NEPA requires consideration of reasonable alternatives, not all conceivable ones.100 Further, environmental impact statements need only discuss those alternatives that will bring about the ends of the proposed action.101 Following publication of an environmental impact statement, further supplementation is required only if there are significant new circumstances or information [that] paint a dramatically different picture of impacts compared to the description of impacts in the EIS.102 With respect to the Turkey Point subsequent license renewal environmental review, the Commission specifically 95 Crow Butte Marsland, LBP-19-2, 89 NRC at 40 (quoting Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-156, 6 AEC 831, 836 (1973)).

96 Holtec International (HI-STORE Consolidated Interim Storage Facility), LBP-19-4, 89 NRC 353, 357 (2019) (quoting Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719, 754-55 (3d Cir. 1989)).

97 Crow Butte Marsland, LBP-19-2, 89 NRC at 40 (quoting Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-05-20, 62 NRC 523, 536 (2005)).

98 The Supreme Court has observed that where it is not possible for an agency to analyze the environmental consequences of a proposed action or alternatives to it, requiring such analysis would have no factual predicate and under those circumstances an EIS is not required. Kleppe v. Sierra Club, 427 U.S. 390, 401-02 (1976).

99 Crow Butte Marsland, LBP-19-2, 89 NRC at 40 (quoting Claiborne, CLI-98-3, 47 NRC at 103).

100 Seabrook, CLI-12-5, 75 NRC at 338.

101 Id. at 339 (footnotes and quotation marks omitted).

102 Massachusetts v. U.S. Nuclear Reg. Comm., 708 F.3d 63, 68-69 (1st Cir. 2013) (quoting Town of Winthrop v. FAA, 535 F.3d 1, 7, 12 (1st Cir. 2008)); accord, Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), CLI-13-7, 78 NRC 199, 211, 216-17 (2013).

limited the opportunity to request a hearing on the draft Site-Specific EIS to new information in the site-specific environmental impact statement.103 C. Contention 1 is Not Admissible because it is Not Adequately Supported and Does Not Show that a Genuine Dispute Exists Contention 1 states:

The 2023 draft Site-Specific [EIS] fails to take a hard look at impacts to groundwater quality.[104]

In Contention 1, Petitioner argues that the draft Site-Specific EIS violates NEPAs requirement to take a hard look at the environmental impacts of the proposed action because its evaluation of environmental impacts caused by the continued operation of the CCS serving Turkey Point, Units 3 and 4 is allegedly inadequate.105 Specifically, Petitioner states that it contests the conclusions of three sections of the draft Site-Specific EISSection 2.8.3, Groundwater Quality Degradation (Plants with Cooling Ponds in Salt Marshes), Section 2.8.2.1, Biscayne Aquifer, and Section 2.8.2.2, Upper Floridan Aquifer.106 Petitioner also states, without any citation to the draft Site-Specific EIS, that it contests that the effect of non-radiological contaminants on aquatic organisms will be SMALL.107 As discussed later in this answer, Section 2.10.4, Effects of Nonradiological Contaminants on Aquatic Organisms, of the draft Site-Specific EIS contains the analyses that Petitioner appears to be referring to.

Fundamentally, Contention 1, as clarified by its bases, argues that the draft Site-Specific EIS should have assumed that the efforts to remediate the hypersaline groundwater plume in the Biscayne Aquifer would fail and possibly even make the problem worse (e.g., hypothesizing a worst-case scenario where the states regulatory processes exacerbate contamination of the 103 CLI-22-3, 95 NRC at 42.

104 Hearing Request at 12.

105 Id.

106 Id. at 33.

107 Id.

groundwater108), and that if the draft Site-Specific EIS had made that assumption, then it would have found that the environmental impacts caused by the continued operation of the cooling canal system (CCS) serving Turkey Point, Units 3 and 4 would be large, i.e., clearly noticeable, and destabilizing to important environmental resources.109 However, Petitioner does not grapple with the available information that is contrary to its speculation that remediation efforts will fail, and does not show that the draft Site-Specific EIS was required to discuss this unsupported, worst-case scenario, especially in light of the contrary information. Further, Petitioner does not provide information that would show how any of the errors that it claims exist in the analyses in the draft Site-Specific EIS would result in a seriously different picture of environmental impacts as compared to that provided in the draft Site-Specific EIS. Finally, Petitioners claims of omission are not supported by a showing that the omitted information was required by law.

Therefore, Petitioner does not provide the information required by 10 CFR 2.309(f)(1)(v) and (vi) and Contention 1 should be denied.

In support of Contention 1, Petitioner proposed multiple arguments that it divided among the headings of Interceptor Ditch Failure,110 Hypersalinity Plume,111 and Seagrass Decline.112 Each argument under each heading is discussed in turn below. None of these arguments amount to an admissible contention.

1. Petitioners Arguments Concerning the Interceptor Ditch Are Not Admissible The arguments that Petitioner makes under the heading of Interceptor Ditch Failure are that (1) the draft Site-Specific EIS omitted a discussion of a large demand on the regional freshwater resource provided by the Biscayne Aquifer as a result of the operation of the 108 Hearing Request at 22.

109 See id. at 12.

110 Id. at 15-16.

111 Id. at 16-26.

112 Id. at 26-30.

interceptor ditch;113 (2) the draft Site-Specific EIS omitted discussion of the failure of the interceptor ditch to prevent westward migration of hypersaline water toward public water supplies;114 and (3) the Staff should reassess its confidence that cooperation with local government agencies will bring FPLs remediation measures to a successful result.115 None of these arguments amount to an admissible contention because, contrary to 10 C.F.R.

§ 2.309(f)(1)(v) and (vi), Petitioner does not explain, with sufficient support, how they present a seriously different picture of environmental impacts than that provided in the draft Site-Specific EIS.

In its first claim under the Interceptor Ditch Failure heading, Petitioner discusses its view of how the interceptor ditch should work.116 Petitioner then states that the draft Site-Specific EIS failed to discuss that the operation of the interceptor ditch represents a large, undocumented demand on the regional freshwater resource provided by the Biscayne

[A]quifer.117 To support this asserted omission, Petitioner relies on a 2018 expert report.118 That report includes a calculation that concludes that [interceptor ditch] pumping removes about 3.5

[million gallons per day] of mostly fresh groundwater from the Biscayne [A]quifer west of the CCS.119 It also states that the withdrawal of freshwater as a consequence of [interceptor ditch]

operations is not documented in current[, i.e., as of 2018,] regional water supply plans.120 113 Hearing Request at 15-16.

114 Id. at 16.

115 Id. at 16.

116 Hearing Request at 15.

117 Id. at 15.

118 Id. at 15-16 (citing Exhibit 3, Declaration of Dr. William K. Nuttle regarding the draft EIS for the Turkey Point Nuclear Generating Unit Nos. 3 and 4 (NUREG-1437 Supplement 5a Second Renewal), at Att. A, p.15 (ML23331A983) (Nuttle Declaration)).

119 Nuttle Declaration, at Att. A, p.16.

120 Id.

As an initial matter, Petitioner provides no supporting data or measurements for its argument that there is a large, undocumented demand on the regional freshwater resource provided by the Biscayne Aquifer. Further, Petitioner does not address contrary information such as that in a report provided by Petitioner entitled Turkey Point Clean Energy Center Remedial Action Annual Status Report Year 5 (Year 5 Report), which was issued on November 15, 2023.121 Specifically, Section 2.3, Recovery Well System Drawdown Assessment, of that report states that water table drawdown from Recovery Well System operations continues to be negligible (less than 0.10 feet) after year 5 of these operations, which is consistent with previous observations when Recovery Well System pumping is occurring.122 Section 2.4, Interceptor Ditch Operations, of that report also describes how FPL reviewed interceptor ditch operations in conjunction with Recovery Well System operations on multiple occasions, and that its findings demonstrated a lack of harmful impacts to groundwater levels, wetlands, and other water resources in the area.123 Moreover, as stated in the draft Site-Specific EIS, and undisputed by Petitioner, FPL operates all groundwater withdrawal systems in accordance with required permits issued by the State and the water management district, and the impacts of withdrawals on water use and groundwater quality were evaluated by FPL to comport with State and district water use rules and criteria prior to water permit issuance.124 Section 2.8.2 of the draft Site-Specific EIS, Groundwater Use Conflicts and Groundwater Quality Degradation Resulting from Water Withdrawals, explains, among other things, the classification of aquifers. Table 2-4 of the draft Site-Specific EIS, Turkey Point Groundwater Withdrawal Wells, tabulates wells and withdrawal limits, including a limit of 15 million gallons per day for the Recovery Well System; the table shows that this system withdraws from the Biscayne Aquifer, which is classified as 121 Exhibit 9, Turkey Point Clean Energy Center Remedial Action Annual Status Report Year 5 (Nov. 15, 2023) (ML23331A989) (Year 5 Report).

122 Year 5 Report at 2-8.

123 Id. at 2-11.

124 Draft Site-Specific EIS at 2-15.

hypersaline.125 The demands on the Biscayne Aquifer are further documented in Section 2.8.2.1 of the draft Site-Specific EIS, Biscayne Aquifer, which discusses updated groundwater modeling predictions that include Recovery Well System and Underground Injection Control test extraction well pumping rates of 15 and 3 million gallons per day, respectively.126 Finally, the draft Site-Specific EIS discusses the predicted drawdown contour within the Biscayne Aquifer from the modeling and that it doesnt intersect with any offsite water supply wells completed in the Biscayne Aquifer.127 Petitioner does not consider, let alone dispute, any of the above information relevant to its argument of an alleged undocumented demand on the regional freshwater resource provided by the Biscayne Aquifer due to the operations of the interceptor ditch. Further, Petitioner does not provide information to show that even if such a demand were considered in the draft Site-Specific EIS, it would have resulted in a significantly different impact than that already documented. Therefore, contrary to 10 C.F.R. § 2.309(f)(1)(v) and (vi), this argument does not demonstrate an omission on a relevant matter as required by law along with sufficient supporting reasons and should be denied.

In its second claim under the Interceptor Ditch Failure heading, Petitioner asserts that the draft Site-Specific EIS omitted discussion of the failure of the interceptor ditch to prevent westward migration of hypersaline water toward public water supplies.128 Significantly, both the draft Site-Specific EIS and the previous environmental review that it is supplementing, the 2019 final SEIS, already discuss the issue of the westward migration of hypersaline water. The 2019 final SEIS states that the operation of the interceptor ditch has not completely prevented the hypersaline CCS water that enters the Biscayne [A]quifer from migrating westward in the deeper 125 Id. at 2-16-2-17.

126 Id. at 2-17-2-20.

127 Id. at 2-20.

128 Hearing Request at 16.

part of the aquifer because the interceptor ditch only functions to the depth to which it was constructed thus enabling hypersaline water that has moved to deeper depths in the aquifer to move beyond and west of the interceptor ditch.129 The draft Site-Specific EIS identifies the westward migration of the hypersaline plume at numerous points.130 At Section 2.8.3.2, Recovery of Hypersaline Groundwater from the Biscayne Aquifer and Monitoring, the draft Site-Specific EIS specifically discusses the efforts to address the acknowledged westward migration of the hypersaline plume and discusses a range of possible outcomes.131 Because Petitioner asserts an omission without discussing the information in the Staffs environmental review that appears to address that omission, its argument does not satisfy 10 C.F.R.

§ 2.309(f)(1)(vi) and should be denied.

In its third claim under the Interceptor Ditch Failure heading, Petitioner asserts that the Staff should reassess [its] confidence that cooperation with local agencies will shepherd FPLs remediation measures to a successful result.132 This claim is based on speculation that the remediation efforts will fail, i.e., its a worst-case scenario. But the draft Site-Specific EIS does not have to assume worst-case scenarios and can instead apply a rule of reason. Moreover, speculation is insufficient to support the admissibility of a contention, and in this case, the speculation about the failure of remediation measures is contrary to the information provided in, among other things, the Year 5 Report provided by Petitioner itself.133 Finally, this claim is contrary to the well-recognized presumption of administrative regularity that applies to the Staff and local government agencies.134 Therefore, Petitioners third claim does not satisfy 10 C.F.R.

§ 2.309(f)(1)(v) and (vi) and should be denied.

129 Final SEIS at 3-73.

130 Draft Site-Specific EIS at 2-22-2-23, 2-24, 2-27, 2-31.

131 Id. at 2-24-2-31.

132 Hearing Request at 16.

133 See, e.g., Year 5 Report at 7-1.

134 Arkansas Nuclear One, ALAB-94, 6 AEC at 28.

In total, Petitioner raises three claims regarding the interceptor ditch, but does not provide the requisite support or references to the draft Site-Specific EIS, with supporting reasons, as is required by 10 C.F.R. § 2.309(f)(1)(v) and (vi). Therefore, these claims do not support the admission of Contention 1.

2. Petitioners Arguments Concerning the Hypersalinity Plume Are Not Admissible As discussed extensively in the draft Site-Specific EIS and the 2019 final SEIS, there exists a hypersaline groundwater plume in the Biscayne Aquifer.135 The arguments that Petitioner makes under the heading of Hypersalinity Plume are that (1) the NRC has omitted consideration of how the States regulatory processes could conflict with and exacerbate contamination of groundwater,136 (2) the NRC has omitted information provided during scoping comments,137 (3) hypersalinity volume estimates across the years 2018 through 2022 are inaccurate,138 and (4) the NRC bases its analysis of groundwater impacts solely on information provided by the applicant and excludes from discussion peer reviews challenging FPLs methods and findings and that this is inconsistent with 10 C.F.R. § 51.71(b). Petitioner cites to the Year 5 Report as support for its arguments that the draft Site-Specific EIS omits consideration of how the State of Floridas regulatory processes could conflict with and exacerbate contamination of groundwater. Petitioner further argues that the Year 5 Report predicts that some remediation targets will not be reached and quotes the reports recommendation for modifications to the [Recovery Well System] including increased withdrawal flexibility and hardening of project components for long term operations.139 The Year 5 Report provides 135 See, e.g., Draft Site-Specific EIS at 2-15; Final SEIS at 3-67 (Because of the movement of the hypersaline CCS water into the Biscayne [A]quifer, there is an area of higher salinity water in the aquifer beneath the CCS and adjoining portions of the Turkey Point site, called the hypersaline plume.).

136 Hearing Request at 22-24.

137 Id. at 24.

138 Id. at 25.

139 Id. at 20-21; Year 5 Report at 7-4.

new information concerning, among other things, the remediation of the hypersaline plume.140 None of Petitioners arguments amount to an admissible contention, however, because, contrary to 10 C.F.R. § 2.309(f)(1)(v) and (vi), Petitioner does not explain, with sufficient support, how they present a seriously different picture of environmental impacts than that provided in the draft Site-Specific EIS.

In its first claim under the Hypersalinity Plume heading, Petitioner describes a scenario where the Florida Department of Environmental Protection issued a permit modification that Miami-Dade County challenged, and from that example asserts that the State of Floridas regulatory processes could conflict with and exacerbate contamination of groundwater.141 This observation does not support the admission of Contention 1 because it does not raise a genuine dispute with the draft Site-Specific EIS and is therefore contrary to 10 C.F.R. § 2.309(f)(1)(vi).

Petitioner essentially argues that regulatory processes designed to protect the environment might fail and instead harm the environment and that thus the Staff cannot rely on the regulatory processes of the State and local government agencies. Such an assumption directly conflicts with the well-established presumption of regularity that is accorded to government agencies.142 And more than mere speculation or recitation of a challenged permit modification is required to rebut that presumption. Additionally, per 10 C.F.R. § 51.71(d), a draft environmental impact statement is required to consider compliance with environmental quality standards and requirements that have been imposed by Federal, State, regional, and local agencies having responsibility for environmental protection, including applicable water pollution limitations or requirements issued or imposed under the Federal Water Pollution Control Act. Petitioner 140 Year 5 Report at ES-2 (stating that FPL has eliminated CCS contributions to the existing hypersaline plume, and the [Recovery Well System] has halted expansion of the plume but that despite this remediation progress, the modeling confirms that the full retraction of the hypersaline plume along the base of the Biscayne Aquifer is not anticipated to occur after 10 years of Recovery Well System operation and, therefore, FPL recommends increased withdrawal capacity and hardening).

141 Hearing Request at 22-23.

142 Arkansas Nuclear One, ALAB-94, 6 AEC at 28.

provides no support for the idea that 10 C.F.R. § 2.309(f)(1)(vi) is satisfied where the omission being alleged is an omission of analysis of a scenario where responsible agencies impose quality standards and requirements that exacerbate environmental impacts. Under NEPAs rule of reason, an environmental impact statement need only address impacts that are reasonably foreseeable, and it is not reasonably foreseeable that responsible agencies would set forth conflicting requirements that would exacerbate environmental impacts. Petitioner has not shown that the omission of such analyses is an omission of information required by law and thus this argument does not support the admission of a contention under 10 C.F.R. § 2.309(f)(1)(vi).

Petitioner also states that the Year 5 Report supports its argument that the current plans to remediate the hypersaline plume are inadequate because that report indicates that the Recovery Well System will have to be operated long term.143 Petitioner does not, however, challenge any analyses in the draft Site-Specific EIS regarding the potential for an overlap of the operations of the Recovery Well System and the continued operations of Turkey Point, Units 3 and 4 during the subsequent license renewal period and thusly does not demonstrate a genuine dispute with the draft Site-Specific EIS. Specifically, the draft Site-Specific EIS states that although FPL has not presented predictive modeling results that extend to either the start or the expiration of the [subsequent license renewal] term, the subsequent license renewal period would not commence until 2032 and 2033 for Turkey Point Units 3 and 4, respectively; therefore, a substantial period of time exists to allow the ongoing (or potentially revised) groundwater remediation activities to improve groundwater quality prior to the start of the

[subsequent license renewal] term.144 Petitioner does not demonstrate how its reading of the Year 5 Report (i.e., that remediation will not be completed within 10 years)145 conflicts with this language in the draft Site-Specific EIS. Petitioner also does not demonstrate how long-term 143 Hearing Request at 24 (citing Year 5 Report at 7-4).

144 Draft Site-Specific EIS at 2-31.

145 Hearing Request at 20-21.

operation of the Recovery Well System disputes the Staffs analyses that include, among other things, Table 2-4, which accounts for the operation of the Recovery Well System up to its allowed withdrawal limits.146 The absence of a specific dispute with the draft Site-Specific EIS precludes admission of this issue under 10 C.F.R. § 2.309(f)(1)(vi).

In its second claim under the Hypersalinity Plume heading, Petitioner argues that the draft Site-Specific EIS fails to include information that was sent to the NRC in the Miami Waterkeepers scoping comments.147 The information in the comments urged, for example, the NRC to use updated information and stated that the NRC must consider the impacts of operating Turkey Point and the CCS through 2053 if the hypersaline plume is not fully retracted.148 However, to provide an admissible contention, the Petitioner must do more than state that the draft Site-Specific EIS did not take all the steps urged in scoping comments.

Instead, Petitioner is obliged by 10 C.F.R. § 2.309(f)(1)(vi) to show how the information was on a relevant matter as required by law and thus required to be discussed in the draft Site-Specific EIS. Petitioner has not done this.

In its third claim under the Hypersalinity Plume heading, Petitioner identifies a report entitled Review of FPLs Groundwater Flow and Salt Transport Models and Assessment of the First Year Operation of the [Recovery Well System], prepared by Groundwater Tek Inc.

(Groundwater Tek Report),149 and a memorandum entitled Final Review Memorandum for the Florida Power and Light 2022 Remedial Action Annual Status Report, prepared by Arcadis 146 Draft Site-Specific EIS at 2-17.

147 Hearing Request at 24.

148 Exhibit 11, Miami Waterkeeper, Friends of the Earth, Center for Biological Diversity, and the Natural Resources Defense Council Comments Re: Notice of Intent to Conduct Scoping Process and Prepare Environmental Impact Statement Florida Power & Light Company Turkey Point Nuclear Generating Unit Nos. 3 and 4, Docket Nos. 50-250 and 50-251; NRC-2022-0172, at 8 (Nov. 7, 2022) (ML23331A974).

149 Exhibit 12, Groundwater Tek Inc., Review of FPLs Groundwater Flow and Salt Transport Models and Assessment of the First Year Operation of the [Recovery Well System] (Jul. 2020) (ML23331A975)

(Groundwater Tek Report).

U.S., Inc.150 (Arcadis Report), that it states were provided to the NRC in response to the notice of intent to conduct scoping in support of the draft Site-Specific EIS.151 Citing the Arcadis Report, Petitioner asserts that hypersalinity volume estimates across years 2018 through 2022 are inaccurate and states that the degree to which FPLs remediation plan has been effective is unknown.152 Petitioner states that the Groundwater Tek Report and the Arcadis Report provide objective data that the hypersaline groundwater plume remediation is unlikely to be successful by the deadline specified by state and county regulators.153 Petitioner acknowledges that the Staffs scoping summary report includes a reference to some of this information.154 Review of the Arcadis Report shows that it does say that hypersalinity volume estimates across years between 2018 and 2022 are inaccurate and that the volumes are unknown,155 but that same report also includes a plan to correct this situation and the statement that this plan will be conducted as a component of FPLs Year 5 Report.156 In turn, the Year 5 Report included Section 4.4.3, Statistical Significance of Plume Volume Changes 2018 to 2023.157 The analysis in this section concluded that the changes in the volume of the hypersaline plume are highly significant statistically and that this demonstrates that the [Recovery Well System] is effectively 150 Exhibit 13, Comments Re: Florida Power and Light Remedial Action Annual Status Report (RAASR) dated November 15, 2022 and submitted on behalf of the Florida Power and Light Turkey Plant Facility and Cooling Canal System (HWR-851) located at, near or in the vicinity of 9700 SW 344 Street, Miami-Dade County, Florida (Aug. 3, 2023) (ML23331A976) (Arcadis Report).

151 Hearing Request at 32; id. at 9 (citing Comments of Miami Waterkeeper, Friends of the Earth, Center for Biological Diversity, and the Natural Resources Defense Council Re: Notice of Intent to Conduct Scoping Process and Prepare Environmental Impact Statement, Florida Power & Light Company, Turkey Point Nuclear Generating Unit Nos. 3 and 4, Docket Nos. 50-250 and 50-251; NRC-2022-0172 (Nov. 7, 2022) (ML22312A574)).

152 Hearing Request at 25 (citing Arcadis Report at 2).

153 Hearing Request at 32.

154 Id. at 24 n.96 (citing Site-Specific Environmental Impact Statement Scoping Process Summary Report, Turkey Point Nuclear Generating Unit Nos. 3 and 4, Miami-Dade County, FL, at 64 (Aug. 2023)

(ML23198A271)).

155 Hearing Request at 25.

156 Arcadis Report at 2/9.

157 Year 5 Report at 4-26-4-31.

reducing the volume of the hypersaline plume, and that the results are producing statistically significant estimates of the change in plume volume from year to year.158 Although Petitioner raised the issue of the incorrect volumetric analyses and also provided with its Hearing Request the Year 5 Report that included the corrected calculations, Petitioner has not attempted to use that corrected analysis to show that the draft Site-Specific EIS is somehow materially incorrect.

Because Petitioner has not addressed how any errors in the hypersalinity volume estimates across the years between 2018 and 2022 caused the draft Site-Specific EIS to have materially wrong analyses, Petitioner has not satisfied the requirement of 10 C.F.R. § 2.309(f)(1)(vi) to demonstrate a genuine dispute on a material issue of law or fact. Petitioner states that new and significant information shows that some of FPLs analysis might have been wrong and that these purported errors have been reported.159 But Petitioner has not attempted to show that the information presents a seriously different picture of the environmental impact of the proposed project from what was previously envisioned.160 Therefore, this argument does not support an admissible contention.

Petitioners fourth claim under the Hypersalinity Plume heading is that the NRC has based its analysis of groundwater impacts solely on information provided by the Applicant and has chosen to exclude from discussion a spate of peer reviews challenging FPLs methods and findings[, which] is inconsistent with 10 C.F.R. § 51.71(b).161 Petitioner does not explain how the peer reviews challenging FPLs methods are the same as major points of view concerning the environmental impacts of the proposed action and the alternatives or significant problems and objections as discussed in 10 C.F.R. § 51.71(b) and therefore does not support the admission of 158 Id. at 4-31.

159 Hearing Request at 25, 25 n.8.

160 Comanche Peak, CLI-12-7, 75 NRC at 390-91.

161 Hearing Request at 25.

this issue under 10 C.F.R. § 2.309(f)(1)(vi). Concerning 10 C.F.R. § 51.71(b), the Commission explained the regulation thusly:

Until comments on the draft statement have been received and analyzed, it is not possible to determine whether all major points of view have been considered. In each case, however, the issue is resolved by the time the final environmental impact statement is completed and issued. In order to accommodate this concern, [10 C.F.R.] § 51.71(b) has been revised to make clear that major points of view will be considered in the draft environmental impact statement to the extent sufficient information is available.[162]

Consistent with the above, Petitioner can provide comments on the draft Site-Specific EIS to provide major points of view. The draft Site-Specific EIS states that the NRC received comments during the scoping process, including a comment concerning peer reviews,163 and that those important issues identified were addressed by the Staff in the draft Site-Specific EIS.164 Because Petitioner has not explained how more is required than this, it has not presented a genuine dispute on a material issue of law or fact as is required by 10 C.F.R.

§ 2.309(f)(1)(vi).

3. Petitioners Arguments Concerning Seagrass Decline Are Not Admissible The argument that Petitioner makes under the heading of Seagrass Decline is that the draft Site-Specific EIS fails to adequately consider the effects of non-radiological contaminants on aquatic organisms. For this contention to be admissible, 10 C.F.R. § 2.309(f)(1)(vi) requires 162 Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions and Related Conforming Amendments, 49 Fed. Reg. 9352, 9364 (March 12, 1984) (Available at https://archives.federalregister.gov/issue_slice/1984/3/12/9333-9406.pdf#page=49).

163 Site-Specific Environmental Impact Statement Scoping Process Summary Report (August 2023)

(ML23198A271). Page 16 of that report records comments about peer review.

164 Draft Site-Specific EIS at A-1 (stating that a concise summary of the determinations and conclusions reached as a result of the scoping process is available at Agencywide Documents Access and Management System Accession No. ML23198A271). Page 5 of the scoping summary report documents a comment by Miami Waterkeeper (ML22312A574), and pages 5-8 of ML22312A574 discuss groundwater and start with The NRC must consider the new information regarding FPLs cooling canal system and related hypersaline plume that has come to light since the 2019 [final] SEIS.). The comment is reflected on page 12 of the NRCs scoping summary report (ML23198A271).

Petitioner to show that it read the analyses in the draft Site-Specific EIS165 and to show its specific disputes with those analyses.166 Petitioner did not do this, as explained below, and accordingly the claim under the Seagrass Decline heading does not meet 10 C.F.R.

§ 2.309(f)(1)(vi). Further, the claim is based on speculation, which is insufficient to support admission under 10 C.F.R. § 2.309(f)(1)(v).

First, Petitioner does not identify, let alone dispute, the analyses in Section 2.10.4 of the draft Site-Specific EIS, Effects of Nonradiological Contaminants on Aquatic Organisms.

Because Petitioner has not engaged with these analyses, and because a petitioner is required to actually read, address, and dispute any analysis that it challenges,167 this argument is not a genuine dispute and does not satisfy 10 C.F.R. § 2.309(f)(1)(vi). Therefore, it should be denied.

Additionally, as summarized by Petitioner, the concern underlying its Seagrass Decline argument is that the actions to be taken by FPL to address the existing hypersaline plume will not achieve results consistent with those required by regulations as enforced by State and local government agencies.168 Nonetheless, the draft Site-Specific EIS acknowledges specifically that some uncertainty exists about whether FPL will be able to retract the hypersaline groundwater plume to within the FPL site boundary prior to the subsequent license renewal period, and reflects this uncertainty in its impact assessment.169 Petitioner has not disputed this information with any specificity. Therefore, this argument does not provide an adequate basis to support an admissible contention and should be denied.

165 Section 2.10.4, Effects of Nonradiological Contaminants on Aquatic Organisms, of the draft Site-Specific EIS contains the analyses.

166 Indian Point, CLI-16-5, 83 NRC at 136.

167 54 Fed. Reg. at 33,170-71.

168 Hearing Request at 30.

169 Draft Site-Specific EIS at 2-31.

4. Contention 1 Conclusion As explained above, Petitioners arguments claiming that the draft Site-Specific EIS is inadequate with respect to its discussion of groundwater impacts related to the continued operation of the CCS are not admissible because, contrary to 10 C.F.R. § 2.309(f)(1)(v) and (vi),

they are not sufficiently supported and do not show that a genuine dispute exists on a material issue of law or fact. Therefore, Contention 1 should be denied.

D. Contention 2 is Not Admissible because it is Not within the Scope of this Proceeding and Does Not Show that a Genuine Dispute Exists Contention 2 states:

The draft Site-Specific [EIS] fails to adequately analyze cooling towers as a reasonable alternative that could mitigate adverse impacts of the cooling canal system in connection with the subsequent license renewal of Turkey Point Units 3 and 4.[170]

In Contention 2, Petitioner argues that the draft Site-Specific EIS is deficient because it carries forward the analyses of the final SEIS,171 which the Petitioner asserts did not provide any analysis of the benefits to groundwater and aquatic organisms that would follow from replacing the [CCS] with the cooling water system alternative.172 Therefore, Contention 2 is a contention of omission arguing that the final SEIS failed to include a required discussion regarding the benefits/reduced adverse environmental impacts of replacing the CCS with cooling towers.173 As support for this contention of omission, Petitioner recites the allegedly new information of hypersaline water contaminating groundwater, phosphorus-laden water moving from the CCS to Biscayne Bay, and the inability of the current refreshing operations to retract the existing 170 Hearing Request at 34.

171 Id. at 37.

172 Id. at 35. See also id. at 36 ([The final SEIS] is devoid of any substance on the environmental benefits of the [cooling tower] alternative, for example, the adverse impacts of the proposed action that the alternative could reduce or avoid.).

173 Id. at 35.

hypersaline groundwater plume without long-term remediation.174 Petitioner concludes that all of these factors will have impacts on water supplies and adjacent ecosystems.175 Finally, Petitioner argues that replacing the CCS with cooling towers is a reasonable and cost-effective alternative to continued operation of the CCS during the subsequent license renewal term.176 Contention 2 is not admissible because, first, although it purports to identify an omission regarding the benefits of cooling towers in the draft Site-Specific EIS, Petitioner is effectively challenging the final SEIS and repeating its arguments from 2019 that there is such an omission.177 This challenge to pre-existing information that could have been, and actually was, raised previously is not within the scope of this proceeding. Second, Petitioner has not shown that a genuine dispute with the final SEIS exists on a material issue of law or fact because Petitioner does not contest, with supporting reasons, the portions of the final SEIS that discuss the issue of the benefits of cooling towers that Petitioner claims has been omitted.178 In fact, this was the reason why the Board denied essentially the same argument in 2019.179 Ultimately, the draft Site-Specific EIS does not include any new and significant information regarding the cooling towers alternative and Petitioner has not demonstrated that the consideration of the cooling towers alternative as part of the Staffs environmental review was inadequate.

Therefore, the Board should deny Contention 2.

1. Contention 2 is Not within the Scope of this Proceeding As an initial matter, Contention 2 is not admissible because the scope of this proceeding is specifically limited to new information in the 2023 draft Site-Specific EIS and Contention 2 challenges pre-existing information in the 2019 final SEIS. Petitioner asserts that the scope of an 174 Id. at 37-38.

175 Id.

176 Hearing Request at 39-41.

177 See Motion to Admit New and Amended Contentions at 8-17.

178 See Final SEIS at § 2.2.3.

179 LBP-19-8, 90 NRC at 154.

NRC proceeding with respect to environmental issues is established by 10 C.F.R. Part 51.180 However, that is not necessarily the case; instead, the Commission has provided that the scope of an NRC proceeding is defined by the Commission in its initial hearing notice and order referring the proceeding to the licensing board.181 In the instant proceeding, the Secretary of the Commission, on behalf of the Commission, referred the Hearing Request to the Atomic Safety and Licensing Board Panel and stated that the Hearing Request was in response to the notice of opportunity to request a hearing published in the Federal Register on September 8, 2023.182 That notice, in turn, specified that the opportunity to request a hearing was limited to contentions based on new information in the draft [Site-Specific] EIS.183 This language repeats the same limitation that was specifically included by the Commission in CLI-22-3, in which the Commission stated that a new notice of opportunity for hearing on a site-specific EIS would be limited to contentions based on new information in the site-specific [EIS].184 Therefore, although the scope of a license renewal proceeding is typically dictated by the applicable Commission regulations,185 the Commission has the authority to further limit this scope and, in this instance, did just that.

Petitioner attempts to frame its arguments as within the scope of this proceeding by claiming that the draft Site-Specific EIS relies on,186 defaults to,187 and carries forward188 180 Hearing Request at 42.

181 See Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-825, 22 NRC 785, 790-91 (1985).

182 Memorandum to E. Roy Hawkens, Chief Administrative Judge, Atomic Safety and Licensing Board Panel, from Carrie M. Safford, Secretary, NRC (Nov. 28, 2023) (ML23332A762).

183 88 Fed. Reg. at 62,110, 62,111.

184 CLI-22-3, 95 NRC at 42.

185 See Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), CLI-20-23, 52 NRC 327, 329 (2000).

186 Hearing Request at 34.

187 Id. at 44.

188 Id. at 37.

the information in the final SEIS and that the information in the final SEIS is carried over into189 the draft Site-Specific EIS. The draft Site-Specific EIS supplements the final EIS issued in 2019 with new analyses as required by the Commission in CLI-22-2 and CLI-22-3.190 But the scope of the instant proceeding is limited to issues concerning the draft Site-Specific EIS. Petitioner challenges pre-existing information in the 2019 final SEIS instead of new information in the draft Site-Specific EIS and reiterates arguments it previously raised on information contained in the 2019 final SEIS. Petitioner had its opportunity to dispute and actually did dispute the issue of the cooling towers alternative with its Contention 1-E in 2018191 and its Contention 1-Eb in 2019.192 In fact, Contention 1-Eb involved substantively similar arguments to those now made in Contention 2.193 The language of CLI-22-3 indicates that the intent of the Commissions direction regarding the scope of this proceeding was not to allow the re-litigation of pre-existing information for which a hearing opportunity had already been offered, but to allow for the litigation of new information that could not have been challenged previously. In conclusion, given that the scope of this proceeding is specifically limited to new information in the site-specific [EIS],194 189 Id. at 36.

190 See Draft Site-Specific EIS at 1-4.

191 Joint Petition at 16 (arguing that the ER had failed to consider an alternative under which the existing

[CCS] would be replaced with cooling towers to reduce the well-documented adverse environmental effects related to the [CCS]).

192 Motion to Admit New and Amended Contentions at 8-17.

193 Compare Hearing Request at 35 (NRC staff failed to adequately analyze alternatives by failing to discuss how replacing the existing CCS with cooling towers would reduce adverse environmental impacts, as required by NRC regulations.) with Motion to Admit New and Amended Contentions at 10

([T]he NRC Staff failed to complete an adequate alternatives analysis by failing to discuss how replacing the existing cooling canal system with cooling towers would reduce adverse impacts to Category 2 issues, as required by NRC regulations.); compare Hearing Request at 36 (The 2023 [draft Site-Specific EIS] fails to satisfy the NEPA and NRC requirements to rigorously explore the benefits and costs of a reasonable alternative available for reducing or avoiding adverse environmental effects of FPLs relicensing.) with Motion to Admit New and Amended Contentions at 11 (The [2019 draft SEIS] fails to satisfy the NEPA and NRC requirements to explore vigorously benefits and costs of a reasonable alternative available for reducing or avoiding adverse environmental effects of the relicensing.).

194 CLI-22-3, 95 NRC at 42. See also 88 Fed. Reg. at 62,110, 62,111.

Petitioners repeated arguments concerning omissions in the discussions in the final SEIS are outside of that scope contrary to 10 C.F.R. § 2.309(f)(1)(iii) and, therefore, should be denied.

2. Contention 2 Does Not Show that a Genuine Dispute Exists Petitioner asserts that there is an omission in the 2019 final SEIS regarding the benefits of the cooling towers alternative. Petitioners arguments do not support the admission of Contention 2 because, as discussed above, issues concerning the cooling towers alternative are outside the scope of this proceeding. In addition, Petitioner does not engage with those portions of the final SEIS that address the benefits of the cooling towers alternative or demonstrate that the final SEIS is insufficient, as is required by 10 C.F.R. § 2.309(f)(1)(vi).

Petitioner argues that the final SEIS only analyzes the adverse impacts of constructing and operating cooling towers and not the benefits of replacing the CCS with cooling towers.195 However, as part of that argument, Petitioner cites to the following statement in the final SEIS that does, in fact, discuss the benefits of the cooling towers alternative196:

The benefits of the alternative cooling water system are that the impacts of utilizing the CCS for cooling of Turkey Point Units 3 and 4 would be avoided; those impacts are discussed extensively in this [final] SEIS; the avoidance of those impacts of CCS operation (e.g., on groundwater resources), is discussed in Section 4.5.2 (Water Resources: No-Action Alternative), in that use of the CCS to cool Units 3 and 4 would cease at the end of the current license terms if the Turkey Point subsequent license renewal application is denied.[197]

195 Hearing Request at 34-35.

Additionally, Petitioners repeated assertion that the CCS would be replaced with cooling towers is incorrect; the cooling towers alternative does not involve replacing the CCS with cooling towers because the CCS would continue to operate regardless of subsequent license renewal because it supports retired fossil fuel Units 1 and 2 and operational fossil fuel Unit 5 and efforts to remediate the hypersaline plume.

Final SEIS at 2-13-2-14. See also Final SEIS at A-24-A-25 (responding to comments on the draft SEIS that are substantively similar to Contention 2).

196 Hearing Request at 35 n.136.

197 Final SEIS at 2-13. See also Final SEIS at 4-2 (The environmental impacts of the alternative cooling water system are described in this SEIS within the discussion of each separate resource area (e.g.,

Sections 4.2.7, 4.3.7, 4.4.7, 4.5.7, 4.6.7, 4.7.7, 4.9.4, 4.10.7, 4.11.7, 4.12.4, and 4.13.7). The benefits of the alternative cooling water system are that the impacts of utilizing the [CCS] for cooling of Turkey Point Units 3 and 4 would be avoided; those impacts are discussed extensively in this SEIS; the avoidance of those impacts of CCS operation (e.g., on groundwater resources) is discussed in Subsection 4.5.2, No-Petitioner does not explain why this statement is insufficient in light of the discussions throughout the final SEIS regarding the impacts of discontinuing to use the CCS as a heat sink for Turkey Point, Units 3 and 4, typically included as part of various no-action alternative discussions.198 These impacts are logically benefits of the cooling towers alternative, even if they are not explicitly labeled as such. Petitioner also recites from its Contention 1 alleged impacts from the operation of the CCS,199 but, as explained in the Staffs answer to Contention 1, Petitioner does not demonstrate that these impacts were required to be discussed in the draft Site-Specific EIS at all, let alone as benefits of the cooling towers alternative. Finally, Petitioner discusses that the cooling towers alternative is reasonable,200 which agrees with, rather than disputes, the final SEIS.201 Because Petitioner mistakenly asserts that there is no discussion of the benefits of the cooling towers alternative in the final SEIS, does not reference and provide the reasons for disputing the numerous portions of the final SEIS that provide such a discussion, and does not provide any new and significant information regarding the cooling towers alternative required to be discussed in the draft Site-Specific EIS, Contention 2 fails to satisfy C.F.R. § 2.309(f)(1)(vi). The Board reached the same conclusion when adjudicating the Action Alternative, in Section 4.5, Water Resources, in that use of the CCS to cool Units 3 and 4 would cease at the end of the current license terms if the Turkey Point subsequent license renewal application is denied.).

198 See, e.g., Final SEIS at §§ 4.5.2, 4.6.2, 4.7.2, and 4.8.2.

199 Hearing Request at 37-38.

200 Id. at 39-41.

This argument is substantively similar to Petitioners 2018 Contention 1-E. Compare Hearing Request at 39-41 with Joint Petition at 19-22. The Board dismissed that contention because the contention had alleged an omission that was subsequently cured by the information in the draft SEIS. LBP-19-6, 90 NRC at 21-23.

201 See Final SEIS at 2-3 (discussing that NEPA requires the NRC to consider reasonable alternatives and that one of the alternatives considered in the final SEIS is a mechanical draft cooling water system alternative to Turkey Points use of the existing [CCS] to provide cooling water for Turkey Point Units 3 and 4).

substantively similar Contention 1-Eb in 2019.202 Therefore, because Petitioner fails to make the requisite showing here, as for Contention 1-Eb, which was rejected in 2019 on similar grounds, the Board should deny Contention 2.

E. Contention 3 is Not Admissible because it is Not within the Scope of this Proceeding, Does Not Show that a Genuine Dispute Exists, and is Not Adequately Supported Contention 3 states:

The draft Site-Specific [EIS] fails to adequately consider the cumulative impacts of continued operation of [Turkey Point,] Units 3 and 4.[203]

To support its arguments in support of Contention 3, Petitioner refers to: (1) 10 C.F.R. § 51.71(d),

which states that a draft EIS will consider the environmental effects, including any cumulative effects, of a proposed action; (2) the draft Site-Specific EIS, which states that in license renewal environmental reviews, as part of its cumulative impacts analysis, the Staff considers climate change impacts on the resource areas that could also be incrementally affected by the proposed action;204 and (3) the final SEIS, which discusses, specific to the subsequent license renewal of Turkey Point, the potential future climate changes across the Southeast region of the United States during the Turkey Point subsequent license renewal period205 and the overlapping impacts from those changes on the resource areas that would also be impacted by the proposed action.206 The draft Site-Specific EIS also discusses climate change information available since the publication of the final SEIS and the Staff determination that such new 202 LBP-19-8, 90 NRC at 152-54 (finding that the discussions in the draft SEIS regarding the discontinued use of the CCS as a heat sink for Turkey Point, Units 3 and 4 indicate benefits of the cooling towers alternative and were not disputed by Joint Petitioners).

203 Hearing Request at 45.

204 Draft Site-Specific EIS at E-8-E-9. See also Hearing Request at 49 (The NRC is aware that it must evaluate the additive effects of climate change on environmental resources that may also be directly affected by continued operations during the license renewal term.).

205 Final SEIS at § 4.15.3.1.

206 Id. at § 4.16.

information is not significant in that it does not change the conclusions in the final SEIS.207 Petitioner challenges this portion of the draft Site-Specific EIS, stating that it doesnt discuss a technical report by the National Oceanic and Atmospheric Administration (NOAA) dated February 2022 (2022 NOAA report),208 and asserting that a 2023 report directs the NRC to use the 2022 NOAA report when considering the environmental impacts of license renewal.209 Petitioner also claims that the final SEIS is inadequate because it failed to consider the cumulative effects of operating [Turkey Point,] Units 3 and 4, which utilize the CCS, on water resources associated with reasonably foreseeable increases in sea level rise and air temperature.210 As an initial matter, the argument that the draft Site-Specific EIS is inadequate because it does not discuss the 2022 NOAA report does not amount to an admissible contention because, contrary to 10 C.F.R. § 2.309(f)(1)(vi), Petitioner does not demonstrate that this report is required to be discussed in the draft Site-Specific EIS. As correctly summarized by Petitioner211 and as discussed in the draft Site-Specific EIS,212 the purpose of the draft Site-Specific EIS is to cure the deficiencies in the final SEIS by analyzing issues previously 207 Draft Site-Specific EIS at E-9.

208 Hearing Request at 51 (citing NOAA Technical Report NOS 01, Global and Regional Sea Level Rise Scenarios for the United States: Updated Mean Projections and Extreme Water Level Probabilities Along U.S. Coastlines (Feb. 2022), available at https://oceanservice.noaa.gov/hazards/sealevelrise/noaa-nos-techrpt01-global-regional-SLR-scenarios-US.pdf).

209 Hearing Request at 54 (citing Federal Flood Risk Management Standard (FFRMS) Science Subgroup of the Flood Resilience Interagency Working Group of the National Climate Task Force, Federal Flood Risk Management Standard Climate-Informed Science Approach (CISA) State of the Science Report (March 2023), available at https://www.whitehouse.gov/wp-content/uploads/2023/03/Federal-Flood-Risk-Management-Standard-Climate-Informed-Science-Approach-CISA-State-of-the-Science-Report.pdf).

Petitioners assertion that this 2023 report directs the NRC to use the 2022 NOAA report when considering the environmental impacts of license renewal is incorrect; the 2023 report only provides guidance to Federal agencies in applying a Climate-Informed Science Approach to evaluate future flood hazards when implementing the Federal Flood Risk Management Standard under Executive Order 13690 for Federally funded projects.

210 Hearing Request at 51.

211 Id. at 47.

212 Draft Site-Specific EIS 1-4-1-5.

designated as Category 1 on a site-specific basis and by updating the analyses of issues previously designated as Category 2, as needed. With respect to updating previous environmental analyses, the Commissions regulations provide that such updates are required only for information that is both new and significant.213 The Commission has explained that for the admissibility of a contention this means that Petitioner must identify information that was not considered in the environmental review for the application at issue and explain, with asserted facts or expert opinion, how it presents a seriously different picture of the environmental impact of the proposed project from what was previously envisioned.214 Information presents such a seriously different picture if it changes the previously assessed impacts.215 Although Petitioner asserts that the 2022 NOAA report is new since the 2019 publication of the final SEIS, Petitioner does not attempt to explain why the information in that report is also significant in that it would change any related previously assessed impacts.

Instead, Petitioner repeats sea level rise information from the report and does not cite to, let alone engage with, the sea level rise information in the final SEIS and explain how the differences in these two sets of information could lead to any different assessment of environmental impacts.216 Moreover, Petitioner does not dispute the statement in the final SEIS 213 See 10 C.F.R. § 51.72 (stating that the Staff will prepare a supplement to a draft environmental impact statement if there are significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts); 10 C.F.R. § 51.92 (stating that the Staff will prepare a supplement to a final environmental impact statement if there are new and significant circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts); 10 C.F.R. § 51.95(c) (stating that the supplemental environmental impact statement prepared by the Staff in connection with the renewal of an operating license must integrate the conclusions in the generic environmental impact statement for issues designated as Category 1 with information developed for those Category 2 issues applicable to the plant and any new and significant information).

214 Comanche Peak, CLI-12-7, 75 NRC at 390-91 (citing Callaway, CLI-11-5, 74 NRC at 167-68 (citing, in turn, Hydro Resources, CLI-99-22, 50 NRC at 14 (citing, in turn, Marsh v. Oregon Natural Resources Council, 490 U.S. at 373; Sierra Club v. Froehlke, 816 F.2d at 210))).

215 See, e.g., Dominion Virginia Power (North Anna Power Station, Unit 3), CLI-17-18, 85 NRC 157, 184-88 (2017) (approving a Staff environmental review that, among other things, determined that new information was not significant because it did not change the impacts previously assessed).

216 Compare Hearing Request at 52-54 with Final SEIS at 4-122-4-124.

that the sea level rise estimates used therein are conservative and bounding.217 Therefore, contrary to 10 C.F.R. § 2.309(f)(1)(vi), Petitioner does not show that a genuine dispute exists with the draft Site-Specific EIS on a material issue of law or fact and, thus, Contention 3 should be denied.

The rest of Petitioners arguments in Contention 3 do not support the admission of this contention because, contrary to 10 C.F.R. § 2.309(f)(1)(iii), they are not within the scope of this proceeding. As discussed in the Staffs response to Contention 2, the scope of this proceeding was specifically limited by the Commission to contentions based on new information in the site-specific [EIS].218 Petitioner, however, presents arguments that the 2019 final SEIS, as opposed to the draft Site-Specific EIS, failed to consider the cumulative effects of continued operations on water resources in conjunction with increases in sea level rise and air temperature due to climate change.219 Therefore, Contention 3 is a challenge to pre-existing information that could have been timely filed with respect to the ER in 2018 or the draft SEIS in 2019. In fact, Petitioner raised a substantively similar contention, Contention 2-E, with respect to the ER in 2018.220 As such, these arguments do not satisfy 10 C.F.R. § 2.309(f)(1)(iii).

Even if Petitioners arguments regarding the cumulative impacts of climate change in combination with the proposed action on water resources were within the scope of this proceeding, they should be denied for the same reason that they were denied in 2019, i.e., they do not show that a genuine dispute exists, contrary to 10 C.F.R. § 2.309(f)(1)(vi), and they are not adequately supported, contrary to 10 C.F.R. § 2.309(f)(1)(v).221 Petitioner quotes from the 2022 NOAA report regarding sea level rise and provides values for sea level rise in the vicinity 217 Final SEIS at 4-123-4-124.

218 CLI-22-3, 95 NRC at 42.

219 Hearing Request at 51.

220 Compare Joint Petition at 30-39 with Hearing Request at 45-63.

221 See LBP-19-3, 89 NRC at 287-90.

of Turkey Point.222 Petitioner asserts that the Staff did not use these sea level rise values,223 but Petitioner does not dispute the values that the Staff did use224 or provide a basis for why using such values was insufficient, especially given the Staff determination that the sea level rise values that it used in the final SEIS were conservative.225 Petitioner fails to meet 10 C.F.R.

§ 2.309(f)(1)(vi), which provides that a dispute only amounts to an admissible contention if, among other things, it is demonstrated that the dispute has to do with a material issue and there are supporting reasons for the dispute. Similarly, Petitioner provides statements regarding the effects of climate change with respect to storms, rainfall, and storm surge/flooding in combination with sea level rise.226 Again, however, Petitioner does not explain how these statements dispute information in the draft Site-Specific EIS or provide new, significant, and previously unavailable information to challenge statements regarding the same issues in the 2019 final SEIS.227 Petitioner also makes the conclusory argument that because of the effects of climate change, the Staff has not adequately considered the reasonably foreseeable impacts of

[Biscayne] Bay waters increasingly over-topping the banks of the [CCS] and then returning to the Bay carrying with it thermal pollution, and high levels of tritium, phosphorus, and salt-concentrated waters.228 Petitioner unsuccessfully raised the same argument in 2018.229 The Board denied Petitioners previous contention on this issue in 2019 because Petitioner did not provide sufficient support for its arguments, finding, for example, that Petitioner did not discuss 222 Hearing Request at 53-54.

223 Id. at 54.

224 See Final SEIS at 4-120, 4-122-4-124.

225 Id. at 4-123.

226 Hearing Request at 55-57.

227 See Final SEIS at 3-41-3-45, 4-121-4-122.

228 Hearing Request at 57.

229 Compare Hearing Request at 57 with Joint Petition at 38.

such necessary information as the relationship between the projected sea levels and the relevant elevations of the Turkey Point site, its sea level barriers, or the CCS.230 Similarly, Petitioner has provided no additional support for Contention 3 than it provided in 2018.

Moreover, Petitioner does not dispute the in-depth discussion of this issue in the 2019 final SEIS, which explains, among other things, that the CCS is governed by an aging management program subject to NRC oversight and a national pollutant discharge elimination system permit subject to State oversight and that, if any release of CCS waters into adjacent surface waters were to occur, it would likely cause only small changes to their water quality.231 To support Contention 3, Petitioner also repeats from its 2018 pleading arguments regarding increasing air temperatures and CCS waters.232 Again, Petitioner does not cite to, let alone dispute, the discussions of increasing air temperatures and CCS waters in the final SEIS.233 Additionally, as stated by the Board in 2019, Petitioner provides no support to demonstrate that the higher temperatures it postulates would increase evaporation in the CCS to any particular extent, much less to an extent that would be sufficient to increase the CCS salinity such that it would, in turn, affect the environment.234 For these reasons, none of Petitioners arguments amount to genuine disputes with the application, the 2019 final SEIS, or the draft Site-Specific EIS, and none are sufficiently supported. Accordingly, Contention 3 should be rejected for failing to meet 10 C.F.R.

§ 2.309(f)(1)(vi) and (v), respectively.

Petitioner also argues in Contention 3 that the draft Site-Specific EIS should have discussed the impacts of climate change on Turkey Point itself, as opposed to just on the resource areas that would also be impacted by the continued operation of Turkey Point.235 As 230 LBP-19-3, 89 NRC at 288-89.

231 Final SEIS at 3-41-3-45, 4-125, A-29-A-30, A-38-A-40.

232 Compare Hearing Request at 57-60 with Joint Petition at 35-38.

233 See Final SEIS at 3-49-3-65, 4-21-4-24, 4-118-4-119, 4-132.

234 LBP-19-3, 89 NRC at 288-89.

235 Hearing Request at 45, 51-52, 60.

discussed in the Staffs response to Contention 5, this argument is not within the scope of a license renewal proceeding in general and, specific to the draft Site-Specific EIS, Petitioner does not dispute any of the portions of that document that discuss the environmental consequences of accidents at the facility. Therefore, this argument does not satisfy 10 C.F.R.

§ 2.309(f)(1)(iii) and (vi) and should be denied.

F. Contention 4 is Not Admissible Contention 4 states:

The draft Site-Specific [EIS] fails to take a hard look at impacts to endangered species.[236]

In Contention 4, Petitioner argues that the draft Site-Specific EIS is insufficient because it does not discuss the impacts from the continued operations of Turkey Point, Units 3 and 4 on the Miami cave crayfish (Procambarus milleri).237 Petitioner points out that NEPA requires that lead federal agencies consult with and obtain the comments of any federal agency that has jurisdiction by law or special expertise with respect to any environmental impact involved.238 Petitioner also points out that the Endangered Species Act of 1973, as amended (ESA),

requires that each federal agency, in consultation with and with the assistance of the U.S. Fish and Wildlife Service (FWS) or the National Marine Fisheries Service, as applicable, ensure that any action of that agency is not likely to jeopardize the continued existence of any endangered species or threatened species or result in the destruction or adverse modification of such a species critical habitat.239 In support of Contention 4, Petitioner states that, on September 20, 2023, the FWS proposed a rule to list the Miami cave crayfish as a threatened species.240 If the FWS were to 236 Id. at 63.

237 Id. at 64.

238 Id. at 63-64; NEPA § 102(2)(C).

239 Hearing Request at 64; ESA § 7(a)(2).

240 Hearing Request at 64; Endangered and Threatened Wildlife and Plants; Threatened Species Status with Section 4(d) Rule for the Miami Cave Crayfish, Proposed Rule, 88 Fed. Reg. 64,856 (Sep. 20, 2023).

finalize this proposed rule, it would add this species to the List of Endangered and Threatened Wildlife and extend the ESAs protections to the species.241 Petitioner also recites facts regarding the listing of threatened species, the process for agencies to consult with the FWS, and the FWSs characterization of the biological status of the Miami cave crayfish.242 Finally, Petitioner asserts that Turkey Point is in close proximity to the habitat of the Miami cave crayfish and that its operation could impact Miami cave crayfish through tritium and hypersalinity.243 As a result, Petitioner concludes that by not discussing the Miami cave crayfish in the draft Site-Specific EIS, the Staff is not in compliance with NEPA and the ESA.244 Contention 4 is not admissible because the FWS did not propose a rule to list the Miami cave crayfish until after the draft Site-Specific EIS was issued and the Staff will address potential impacts to the crayfish in the final Site-Specific EIS, as appropriate. As correctly identified by Petitioner,245 the NRC is required to confer with the FWS on any agency action that is likely to jeopardize the continued existence of any proposed species or result in the destruction or adverse modification of proposed critical habitat.246 However, the draft Site-Specific EIS was published on September 8, 2023,247 and is, as are all environmental impact statements, a snapshot in time.248 At the time it was issued, the draft Site-Specific EIS presented an accurate and adequate discussion of the impacts to environmental resource areas from the continued operation of Turkey Point, Units 3 and 4 in consideration of all of the 241 88 Fed. Reg. at 64,856.

242 Hearing Request at 65-67.

243 Id. at 67.

244 Id. at 64-66.

245 Id. at 65-66.

246 50 C.F.R. § 402.10(a).

247 88 Fed. Reg. at 62,110.

248 See, e.g., Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), CLI-15-6, 81 NRC 340, 378 (2015).

information that was available at the time of its issuance. The draft Site-Specific EIS did not omit any information it was required to contain when it was issued.

The proposed rule to list the Miami cave crayfish was published on September 20, 2023249 and can be considered new information for the Staff to consider in developing the final Site-Specific EIS. As long as it remains at least a proposed species before the issuance of the final Site-Specific EIS,250 the Miami cave crayfish is material to the NRCs findings in this proceeding and will be addressed in the final Site-Specific EIS, as appropriate. The Staff will comply with the FWS regulations concerning conferences on proposed species.251 Regarding its development of the final Site-Specific EIS, the well-recognized presumption of administrative regularity applies to the Staff in the execution of its official duties,252 including the presumption that the Staff will comply with all regulations relevant to the Miami cave crayfish. Taken together, there is no basis to admit a contention of omission regarding the Miami cave crayfish with respect to the draft Site-Specific EIS. Admitting such a contention now would amount to admitting a placeholder contention, which is not contemplated by the NRCs regulations and disfavored by the Commission.253 Instead, the appropriate process for advancing any argument regarding the Miami cave crayfish would be via a new or amended contention on the final Site-Specific EIS.254 For these reasons, Contention 4 is not admissible.

G. Contention 5 is Not Admissible because it is Not within the Scope of this Proceeding and Does Not Show that a Genuine Dispute Exists Contention 5 states:

249 88 Fed. Reg. at 64,856.

250 See 88 Fed. Reg. at 64,857 (stating that the final determination may differ from the proposal after consideration of all comments received and any new information that may become available).

251 See 50 C.F.R. § 402.10.

252 Arkansas Nuclear One, ALAB-94, 6 AEC at 28.

253 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3), CLI-09-5, 69 NRC 115, 120 (2009) (noting that the regulations do not contemplate contentions that function as a placeholder for a further motion to be filed later); Union Electric Co. (Callaway Nuclear Power Plant, Unit 1), CLI-15-11, 81 NRC 546, 548-50 (2015) (rejecting the admission of placeholder contentions).

254 See 10 C.F.R. § 2.309(c).

The draft Site-Specific [EIS] fails to consider the effects of climate change on accident risk.[255]

In contention 5, Petitioner argues that the draft Site-Specific EIS is incomplete because it is completely silent256 with respect to climate change impacts on the operation of Turkey Point safety systems257 and the environmental impacts of climate change on radiological accident risks and the safe operation of nuclear reactors.258 Petitioner asserts that climate change can affect accident risk in two ways(1) increasing the likelihood or initiating event frequency of events and (2) increasing the probability of failure of design features or mitigation equipment.259 Petitioner argues that risk analyses must also look carefully at the cliff-edge phenomenon.260 Petitioner then discusses probable maximum precipitation as significant input into the design of critical infrastructure such as dam and reactor safety analysis directly and indirectly through its impact on probable maximum flood and that the probable maximum precipitation and probable maximum flood impact reactor safety directly via their impact on local intense precipitation.261 Further, Petitioner appears to concede that the 2019 final SEIS states that the issue of the effects of climate change on Turkey Point structures, systems, and components is outside the scope of the NRCs license renewal environmental review.262 However, Petitioner argues that this Staff position is contrary to federal guidance263 and NEPA.264 255 Hearing Request at 75.

256 Id. at 78.

257 Id. at 75.

258 Id. at 76.

259 Id. at 76.

260 Id. at 77.

261 Hearing Request at 78.

262 Id. at 78 (citing Final SEIS at 4-124).

263 Hearing Request at 75 (citing Council on Environmental Quality, National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions and Climate Change, 88 Fed. Reg. 1,196, 1,209 (Jan. 9, 2023)).

264 Hearing Request at 79-80.

Contention 5 is not admissible because, as was explained in the Staff response to Contention 2, the scope of this proceeding was specifically limited by the Commission to contentions based on new information in the site-specific [EIS]265 and Contention 5 is not based on new information in the draft Site-Specific EIS. Instead, Contention 5, by its own terms, disputes a determination in the 2019 final SEIS that the subject of Contention 5, i.e., the effects of climate change on the safety of Turkey Point, is not within the scope of the NRCs license renewal environmental review.266 Therefore, Contention 5 is a challenge to pre-existing information that could have been filed previously. In fact, a similar contention arguing that sea level rise due to climate change poses a risk to safe plant operations was raised with respect to the ER in 2018.267 For this reason, Contention 5 does not satisfy 10 C.F.R. § 2.309(f)(1)(iii) and should be denied.

Additionally, even if the scope of this particular pleading had not been specifically limited by the Commission to new information, Contention 5 would still be out of scope and inadmissible as a safety contention or an environmental contention because, by rule, the scope of a license renewal proceeding is limited to the safety requirements of 10 C.F.R. Part 54 and the applicable environmental requirements of 10 C.F.R. Part 51.268 With respect to safety issues, this means that contentions are limited to a review of the plant structures and components that will require an aging management review for the period of extended operation and the plants systems, structures, and components that are subject to an evaluation of time-limited aging analyses.269 With respect to environmental issues, this means that contentions are limited to the environmental effects, including any cumulative effects, of the proposed action.270 The 265 CLI-22-3, 95 NRC at 42.

266 Hearing Request at 78 (citing Final SEIS at 4-124).

267 See LBP-19-3, 89 NRC at 298.

268 See Turkey Point, CLI-20-23, 52 NRC at 329.

269 Turkey Point, CLI-20-23, 52 NRC at 329; 10 C.F.R. § 54.21.

270 Turkey Point, CLI-20-23, 52 NRC at 329; 10 C.F.R. § 51.71(d), 10 C.F.R. § 51.95(c).

Commission has repeatedly explained that these regulations mean that environmental effects on a plant, as opposed to the effects of the plant on the environment, are not within the scope of license renewal proceedings.271 Therefore, Petitioners argument that the Staffs environmental review is inconsistent with federal guidance272 and NEPA273 because it doesnt address climate change impacts on plant safety amounts to a challenge to the NRCs regulations.274 As provided by 10 C.F.R. § 2.335, no rule or regulation of the Commission is subject to attack in any adjudicatory proceeding unless the proponent files a petition for waiver of the rule or regulation.

Because Petitioner has not filed such a petition for waiver, its collateral attacks on the NRCs regulations are not cognizable in this proceeding and should be denied.275 Finally, to the extent that Contention 5 could be interpreted as arguing that the environmental review of the Turkey Point SLRA omits discussion of the environmental impacts of accidents, it does not amount to a genuine dispute with the draft Site-Specific EIS. The draft Site-Specific EIS discusses the environmental impacts of both design-basis accidents and severe accidents.276 Petitioner does not cite to, let alone dispute, those portions of the draft Site-Specific EIS.

In conclusion, by both direction of the Commission and rule, the issue raised in Contention 5 is not within the scope of this proceeding and does not meet 10 C.F.R.

§ 2.309(f)(1)(iii). Additionally, the environmental impacts of accidents have been addressed in the draft Site-Specific EIS and the 2019 final SEIS and Petitioner does not dispute these 271 See, e.g., Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-15-21, 82 NRC 295, 304 (2015).

272 Hearing Request at 75 (citing 88 Fed. Reg. at 1209).

273 Id. at 79-80.

274 Moreover, the cited federal guidance is just thatguidanceand it does not impose legally binding requirements. See 88 Fed. Reg. at 1197 n.4.

275 Millstone, CLI-03-14, 58 NRC at 218.

276 Draft Site-Specific EIS at § 2.13, Appendix D.

discussions, as required by 10 C.F.R. § 2.309(f)(1)(vi). Therefore, Contention 5 should be denied.

CONCLUSION As explained above, Petitioner has demonstrated standing but has not demonstrated that at least one of its proposed contentions satisfy all of the contention admissibility requirements. Specifically, the proposed contentions fail to satisfy one or more of the requirements of 10 C.F.R. § 2.309(f)(1)(iii), (v), and (vi). For example, contrary to 10 C.F.R.

§ 2.309(f)(1)(iii), portions of the contentions dispute pre-existing information in documents that pre-date the draft Site-Specific EIS or collaterally attack NRC rules or regulations; contrary to 10 C.F.R. § 2.309(f)(1)(v), portions of the contentions rely on assertions without sufficient factual basis; and contrary to 10 C.F.R. § 2.309(f)(1)(vi), portions of the contentions assert a dispute or omission without showing that such dispute/omission is on a material issue of law or fact, along with specific references to the Staffs environmental review documents and supporting reasons.

Because none of Petitioners proposed contentions satisfy all of the contention admissibility requirements, the Board should deny the Hearing Request.

Respectfully submitted,

/Signed (electronically) by/

Jeremy L. Wachutka Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9188 Email: Jeremy.Wachutka@nrc.gov Executed in Accord with 10 CFR 2.304(d)

David Roth Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9121 Email: David.Roth@nrc.gov Executed in Accord with 10 CFR 2.304(d)

Blake Vaisey Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 415-0995 Dated December 22, 2023 Email: Blake.Vaisey@nrc.gov

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of FLORIDA POWER & LIGHT COMPANY (Turkey Point Nuclear Generating Units 3 and

4)

Docket Nos. 50-250-SLR-2 50-251-SLR-2 Certificate of Service Pursuant to 10 C.F.R. § 2.305, I hereby certify that copies of the foregoing NRC STAFF ANSWER OPPOSING MIAMI WATERKEEPER HEARING REQUEST, dated December 22, 2023, have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the captioned proceeding, this 22nd day of December 2023.

/Signed (electronically) by/

Jeremy L. Wachutka Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9188 Email: Jeremy.Wachutka@nrc.gov Dated December 22, 2023