ML24023A207
| ML24023A207 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 01/23/2024 |
| From: | Bills C Miami Waterkeeper |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| ASLBP 24-981-01-SLR-BD01, RAS 56912, 50-250-SLR-2, 50-251-SLR-2 | |
| Download: ML24023A207 (0) | |
Text
1 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 Station, Unit Nos. 3 and 4)
(Subsequent License Renewal Application)
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Docket No. 50-250 Docket No. 50-251 January 23, 2024 MIAMI WATERKEEPERS RESPONSE IN OPPOSITION TO FLORIDA POWER &
LIGHT COMPANYS MOTION TO STRIKE PORTIONS OF MIAMI WATERKEEPERS REPLY INTRODUCTION Six days before the prehearing conference on Miami Waterkeepers Petition to Intervene, and for the second time in this proceeding,1 FPL moved to strike in line-item fashion specific sentences from the Miami Waterkeepers reply.2 FPLs first motion was denied because petitioners reply did not raise new arguments and simply responded to FPLs answer.3 The present reply does the same, and FPLs latest arguments should fair no better.
As for FPLs suggestion that Petitioners Reply is not narrowly focused, Miami Waterkeeper notes that FPL and NRC Staffs Answers spanned a combined 105 pages.4 Given that 1 FPLs First Motion to Strike (Sep. 20, 2018) 2 FPLs Second Motion to Strike (the Motion) (Jan. 18, 2024).
3 Order Denying FPLs First Motion to Strike (Oct. 23, 2018).
4 Florida Power & Light Companys Answer Opposing Miami Waterkeepers Hearing Request and Petition for Leave to Intervene (Dec. 22, 2023) (FPL Answer); NRC Staff Answer Opposing
2 volume of briefing, the Reply of 76 pages is far from extraordinary, particularly considering the significance of the issue at stake. In any event, FPLs accusations are irrelevant to the merits of its Motion. Miami Waterkeepers Reply satisfies the governing standard, and the Motion should be denied.
DISCUSSION I.
LEGAL STANDARDS GOVERNING THE SCOPE OF A REPLY Substantively, as shown below, every section of Miami Waterkeepers Reply that FPL asks the Board to strike merely amplifies and elaborates on prior arguments presented in the Petitioners original contentions, or responds to arguments and facts raised in the Answers.
None present untimely new arguments or theories of the case. Miami Waterkeepers Reply rebuts FPLs and NRC Staffs claims that certain pleading defects render its proposed contentions inadmissible. The Reply does not proffer untimely supplemental information or arguments intended to cure any defects in its original contentions.
The contentions in Miami Waterkeepers Petition demonstrate the discipline and preparedness on the part of petitioners, required by the Commissions rules; they fully set forth their claims.5 Each contention meets the test of telling FPL and NRC Staff at the outset, with clarity and precision, what arguments are being advanced.6 Miami Waterkeepers contentions are categorically superior to those in the Kansas Gas & Electric Company (Wolf Creek Generating Miami Waterkeeper Hearing Request (Dec. 22, 2023) (NRC Staff Answer) (collectively, Answers).
5 La. Energy Servs. L.P. (Natl Enrichment Facility), CLI-04-25, 60 N.R.C. 223, 225 (2004),
reconsideration denied, CLI-04-35, 60 N.R.C. 619 (2004) (citation omitted).
6 Kan. Gas & Elec. Co. (Wolf Creek Generating Station, Unit 1), ALAB-279, 1 N.R.C. 559, 576 (1975).
3 Station, Unit 1), ALAB-279, 1 N.R.C. 559, 576 (1975) decision cited by FPL, which the Commission rejected because:
the cooperatives pleading tells us only that the license should be conditioned to have the applicant provide petitioner with satisfactory terms and conditions relating to wheeling in, reserves, and other aspects of the project which will allow petitioner an effective, meaningful opportunity to participate in the project. []. What terms would be meaningful in that context? [T]erms and conditions substantially better than and additional to those proposed by the Department [of Justice] is the only clue we find in the petition.... That casts scant (if any) light on the details of the relief sought.
Nor did Miami Waterkeepers Reply expand the scope of the arguments set forth in the original hearing request, as deemed inappropriate in the decisions cited by FPL (Nuclear Mgmt.
Co. LLC (Palisades Nuclear Plant), CLI-06-17, 63 N.R.C. 727, 732 (2006) (citing LES, CLI 25, 60 N.R.C. 223; USEC Inc. (Am. Centrifuge Plant), CLI-06-09, 63 N.R.C. 433, 439 (2006))).
Miami Waterkeepers contentions are not in the same category as those struck in Palisades Nuclear Plant, where:
No documentary support was provided for the only argument specific to Palisades:
that it is peculiarly vulnerable to embrittlement. As the Board put it, when reading this proposed contention, [i]t cannot be ascertained whether the drafters...
actually even read the Application.7 The Commission found the challenged contention in Palisades deficient, and the Reply to the objections thereto insufficient to defend the contention because [u]nlike their proposed Contention 1, Petitioners Combined Reply included citations to documents and disputed portions of the application.8 The Commission found that the arguments in the petitioners reply were not even suggested by Petitioners proposed Contention 1 as initially pled.9 7 Nuclear Mgmt. Co. LLC (Palisades Nuclear Plant), CLI-06-17, 63 N.R.C. 727, 730 (2006).
8 Id. at 730.
9 Id. at 731 (emphasis added).
4 The decision in Palisades is clear that a petitioner need not introduce at the contention phase every document on which it will rely in a hearing.10 The rule established in Palisades Nuclear Plant is simply that a contention as originally pled must (1) cite adequate documentary support, and (2) not unfairly deprive other participants an opportunity to rebut the new claims.11 Here, the portions of Miami Waterkeepers Reply that FPL asks the Board to strike focus narrowly on the legal or factual arguments first presented in the original petition or raised in the answers to it.12 They do not assert new arguments or new legal theories that opposing parties have not had an opportunity to address.13 They legitimately amplif[y] arguments from the original petitions contentions, as the Commission deemed proper in LES, CLI-04-25, 60 N.R.C. at 224, which were all supported by adequate documentary evidence.
Miami Waterkeepers explanations in its Reply as to why those contentions are admissible were not an impermissible attempt to cure deficient contentions, as precluded by Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-08-19, 68 N.R.C. 251, 262 n.32 (2008)
(citing LES, CLI-04-25, 60 N.R.C. at 224-225). Miami Waterkeepers Reply added no new bases or new issues.14 Each of Miami Waterkeepers contentions meets the requirements of 10 C.F.R.
§ 2.309(f).
FPLs characterization of the Commission rulings governing the substance of contentions portrays an overly-limited view of what the rules require. Contentions need only be sufficiently 10 Id. at 732 (emphasis added).
11 Id.
12 Palisades, CLI-06-17, 63 N.R.C. at 732.
13 USEC, CLI-06-09, 63 N.R.C. at 439.
14 Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-08-19, 68 N.R.C. 251, 262 n.32 (2008).
5 detailed and specific to demonstrate that the issues are admissible and that further inquiry is warranted, and to put the other parties on notice as to what they will have to defend against[.]15 II.
THE REPLY IS PROPER AND THE MOTION SHOULD BE DENIED.
The Motion divides its argument into six sections and, for ease of reference, Miami Waterkeeper will respond in kind.
A.
FPLs First Argument Should Be Denied.
FPLs lead argument seeks to preclude the Board from considering the following sentences from the Reply in adjudicating the Petition:16 (1) Yet, in its ultimate conclusions, the 2023 DSEIS fails to adequately consider the positive effects on groundwater quality from discontinuing the use of the CCS as a heat sink for Units 3 and 4.17 (2) In its ultimate analysis, the 2023 DSEIS fails to compare these environmental benefits against the negative impacts to groundwater quality resulting from the continued operation of the CCS during the SLR term.18 (3) It failed to compare the positive and remedial impact to groundwater of reasonable alternatives to the proposed action (i.e., discontinuing the use of the CCS as a heat sink for Units 3 and 4 mandating FPL implement a cooling tower) against the perpetuating and exacerbating impact of the proposed action (continuing to operate the CCS as a heat sink for Units 3 and 4).19 15 Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station), LBP-82-4, 15 N.R.C.
199, 206 (1982). See also Philadelphia Electric Co. (Limerick Generating Station, Unit 1), LBP-86-9, 23 N.R.C. 273, 277 (1986); AmergenEnergy Co., LLC (Oyster Creek Nuclear Generating Station), LBP-06-22, 64 N.R.C. 229, 234-35 (2006).
16 Motion to Strike at 4-5.
17 Reply in Support of Request for Hearing and Petition to Intervene Submitted by Miami Waterkeeper (Jan. 8, 2024) (Reply) at 13.
18 Reply at 15.
19 Reply at 16-17.
6 These sentences both amplify the contentions raised in the Petition and respond to the arguments raised in the Answers. As an initial matter, FPL concedes that these points were raised in the Petition; its only issue is the location where these sentences appear in the Reply.20 That argument fails on its own terms. In its Petition, Miami Waterkeeper asserted in Contention 1 that the 2023 DSEIS failed to take a hard look at the impact of the proposed action on groundwater quality.21 In support, the Petition argued at length that the 2023 DSEIS inadequately evaluated the impact on groundwater quality of the freshening activities at the CCSa remedy that will result in a net addition of salt to the Biscayne Aquifer from the CCS, and potentially 30 million gallons of saline water (34 PSU) migrating into the aquifer every day.22 Petitioner also argued that these freshening activities could conflict with and exacerbate contamination of the groundwater.23 The Reply amplifies this point by noting that discontinuing the CCS will obviate the need for these freshening activities and result in a positive impact to groundwater quality.24 Stating that the DSEIS failed to account for that environmental benefit is just another way of saying that the DSEIS did not adequately assess the impact of these freshening activities. It thus amplifies the Petition.
Further, these sentences directly respond to FPLs uncited assertion in its Answer to Contention 1 that [a]ny legacy conditions [related to the hypersaline plume] would be present regardless of whether the NRC approves or denies the SLRA.25 FPL thus put at issue the quality 20 Motion to Strike at 4 (Although the original Petition presented similar arguments in Contention 2).
21 Request for Hearing and Petition to Intervene Submitted by Miami Waterkeeper (Nov. 27, 2023)
(Petition) at 12.
22 Petition at 19.
23 Petition at 22.
24 Reply at 15.
25 FPL Answer at 19.
7 of groundwater without the CCS operational, and Miami Waterkeeper properly responded to that assertion in its Reply by contending that groundwater quality would improve if the CCS no longer operated.26 These three sentences were properly included in the Reply. The Motion should be denied.
B.
FPLs Second Argument Should Be Denied.
FPLs Answer repeatedly and strenuously argues that the NRC has no authority to require it to do anything to address its decades-long pollution of the sole source aquifer for drinking water for millions of South Florida residents and visitors. For example, FPL asserts that this NRC license renewal proceeding is not the appropriate forum to challenge the decisions of state and local agencies with direct regulatory responsibility for groundwater pollution, and that Petitioners arguments are beyond the scope of this proceeding.27 FPLs Answer also argues, with respect to Contention 2, that the NRC lacks the regulatory authority to mandate cooling towers, quoting the following from the 2019 FSEIS: Implementation of the provisions of the Clean Water Act (CWA; 33 U.S.C. § 1251 et seq.), including those regarding cooling system operations and design specification, is the responsibility of the U.S. Environmental Protection Agency (EPA).28 Miami Waterkeepers Reply addresses these arguments by noting that the NRC initially licensed the CCS; that the NRC has exercised regulatory authority over the CCS since the 1970s; that the NRC does, in fact, have authority to order FPL to stop operating the CCS; and that the EPA submitted comments in this proceeding indicating its concerns with the impact of the CCS to groundwater quality and recommending that the NRC require FPL to take steps to address them in 26 See In the Matter of Nuclear Mgmt. Co., LLC (Palisades Nuclear Plant), CLI-06-17, 63 N.R.C.
717, 732 (2006) (replies may address any and all legal and factual arguments [1] first presented in the original petition or [2] raised in the answers to it).
27 FPL Answer at 20.
28 FPL Answer at 35.
8 any license or EIS. Those arguments, excerpted below, are what FPL now wishes the Board to strike:29 (1) Next, the NRC must fully consider this issue because it is the regulatory agency with the authority to holistically address the harm caused by the CCS. Beginning in the 1970s, the federal government licensedindeed, requiredFPL to operate the CCS to cool its nuclear power facility at Turkey Point. Under basic preemption principles, federal action requiring the construction and operation of the CCS binds all state and local regulatory agencies, which may not order FPL to operate differently (for example, by ordering FPL to cease operating the CCS).30 (2) Moreover, the Environmental Protection Agency (EPA), the agency with legal authority concerning the discharge of the cooling water for these facilities, submitted scoping comments to NRC in November 2022 concerning Turkey Points Reactor 3 and 4 operating license extension. In its letter, the EPA commented on [t]he existing unlined Industrial Waste Facility/Cooling Canal System (CCS) for [Turkey Point] Units 3 and 4 and clarified that it has issues regarding radionuclides and hypersalinity that represent the EPAs primary concerns. EPA explained that past consent agreements with state and local regulatory agencies have outlined various corrective actions to address issues related to the CCS, and recommended:
that NRC consider incorporating language into the SEIS or license stating that FPL develop and submit an alternative mitigation plan to address water quality if FPLs monitoring results demonstrate that corrective measures identified in the consent agreements were not effective. As part of this condition, we recommend that the NRC and the licensee provide a detailed discussion on the re-evaluation process that would reassess alternative corrective measures with respect to the CCS.
In short, the State and local authorities recognize the severe impact of the CCS on the groundwater of South Florida, but their hands are tied in addressing that issue due to the NRCs primacy in the field of nuclear safety and its licensure of the CCS. Whatever patchwork of remedial steps those agencies have undertaken, they are nothing more than a band-aid on an open wound. The NRC is the regulatory agency with authority to holistically address the hypersaline plume by ordering FPL to cease operating the CCS, and the Board should reject the attempt by NRC Staff and FPL to defer to the necessarily limited efforts of State and local authorities on that issue.31 (3) Finally, the most direct evidence that the NRC has authority to require the facility to make use of cooling towers comes from the 1972 operating license that also authorizes the construction of the cooling canal system for hot water discharges from Turkey Point Reactors 3 and 4. The 1972 EIS indicates that FPL has been under obligation since 1971 to look for ways of improving 29 Motion to Strike at 5-6.
30 Reply at 19 (footnotes omitted).
31 Reply at 21-22 (emphases original from Reply; footnotes omitted).
9 the proposed cooling channel system. This EIS references a 1971 federal consent decree, signed by FPL, stating:
The consent decree which settled the Federal suit against the Applicant requires FPL to arrange joint studies immediately with appropriate Government officials to seek ways of improving on the proposed cooling channel system. Alternative sources of groundwater and surface water are to be sought. Mechanical cooling methods to replace or supplement the system are to be examined. These methods will include both powered spray modules and mechanical draft cooling towers. The Applicant has agreed to utilize such improvements as these research programs develop, with resolution of uncertainties in favor of the environment.
- Moreover, Results developed in the study programs are to be utilized in improving and modifying the operation of the plant and its cooling system so as to achieve a minimal environmental impact.
These provisions of the federal consent decree were included as special conditions of the 1972 operating license:
The Applicant shall pursue evaluations of alternatives to the proposed cooling channel system during construction, interim operation, and evaluation of the channel system. These evaluations shall include at least the following:
(1) Study of availability of groundwater or other alternative sources of surface water to use in the cooling system.
(2) Study of applicability of mechanical cooling devices, including powered spray modules and cooling towers.
(3) Study of marine environmental impacts of the once-through cooling alternatives described in Section X of this statement.
The subsequent special condition of the operating license reads:
The Applicant shall take appropriate corrective action on any adverse effects determined as a result of monitoring and study programs. To the fullest extent practicable, the Applicant shall utilize results of study programs in improving and modifying the operation of the Plant and its cooling system so as to achieve a minimal adverse environmental impact.
The Commission attached these conditions to the operating license for these facilities over 50 years ago. These conditions support Petitioners assertion that, prior to granting an unprecedented extension of that license to a total term of 80 years, NRC must perform a rigorous analysis of alternative cooling systems as has been required by condition of the operating license for decades.32 32 Reply at 42-44 (emphasis original in Reply; footnotes omitted).
10 These arguments directly respond to FPLs assertion in its Answer that the NRC lacks authority to require it to address groundwater pollution from the CCS. Accordingly, they were properly included in the Reply and the Motion should be denied.33 C.
FPLs Third Argument Should Be Denied.
Next, FPL seeks to strike arguments pertaining to the 2023 DSEISs failure to employ data or science in its assessment of the impact of the Proposed Action on groundwater.34 FPL takes issue with the following excerpts from the Reply:
(1) To begin, NEPA requires agencies to provide some quantified or detailed information supporting their conclusions. The 2023 DSEIS, however, admits that FPL provided no data to support its conclusion that current remedial efforts will retract the hypersaline plume during the SLR term, much less the extent of any such retraction. Despite this deficiency, the NRC Staff conducted no independent analysis to fill that informational gap. As a result, the 2023 DSEIS relies on no quantified or detailed information to form its conclusion on the impact of the CCS operations on groundwater quality during the SLR term. The Staffs resort to guesswork and speculation fails to satisfy NEPAs hard look standard, as well as NEPAs explicit mandate that to the fullest extent possible... all agencies of the Federal Government shall... make use of reliable data and resources in carrying out NEPA assessments.
Not only did the Staff fail to base their conclusion on data and science.... 35 (2) The 2023 DSEIS failed to do any meaningful analysis or attempt to quantify the benefits of the use of cooling towers, even as new information on the groundwater plume remediation became available in the NRCs scoping process.36 (3) But despite these compelling statements, NRC Staff fails to further explore and quantify the substantial reduction in thermal discharges that drive evaporation losses that concentrate salt in the CCS.37 (4) Despite acknowledging the potential benefits of the no-action alternative, NRC Staff declined to fulfill their NEPA obligations and objectively analyze, using best available science, how, 33 In the Matter of Nuclear Mgmt. Co., LLC (Palisades Nuclear Plant), CLI-06-17, 63 N.R.C. 717, 732 (2006) (replies may address any and all legal and factual arguments [1] first presented in the original petition or [2] raised in the answers to it).
34 Motion to Strike at 6.
35 Reply at 23-24 (footnotes omitted).
36 Reply at 33-34 (underline signifies the words FPL requests stricken).
37 Reply at 36 (underline signifies the words FPL requests stricken).
11 exactly, environmental conditions would benefit from the no-action alternative.38 (5) b. The analysis of the cooling tower alternative does not comply with NEPA, which requires quantified or detailed information.
This superficial analysis is inadequate. A NEPA-compliant analysis is required to analyze the full scope and effect of benefits to the environmentparticularly groundwater pollution, groundwater use conflicts, and impacts to aquatic organisms, as discussed in Petitioners Contention 1.
Under NEPA some quantified or detailed information is required. In Great Basin Resource Watch, the Ninth Circuit found that the NEPA analysis conducted by the Bureau of Land Management was flawed because it:
did not provide sufficiently detailed information in its cumulative air impacts analysis. The BLM made no attempt to quantify the cumulative air impacts of the Project.... Nor did the BLM attempt to quantify or discuss in any detail the effects of other activities... that are identified elsewhere in the FEIS as potentially affecting air resources.
NEPA does not permit conclusory analysis. An agency must provide some quantified or detailed information. Where available information allows such an assessment, an agency must explain why more definitive information could not be provided. Without this required analysis, neither the courts nor the public can be assured that the agency provided the hard look that it is required to provide.
Commission Order CLI-22-03 is clear: no further licenses for subsequent renewal terms will be issued until the NRC Staff has completed an adequate NEPA review for each application.
As the 2023 DSEIS only carries forward the prior, inadequate alternatives analysis, the agency must evaluate the economic, technical, and other benefits and costs of the cooling tower alternative. This analysis is crucial in light of new information concerning the CCSs impacts on surface and groundwater resources.
The 2023 DSEIS for Turkey Point Units 3 and 4 fails to assess how, and to what extent, the cooling water system alternative could reduce adverse impacts to groundwater use conflicts, groundwater quality degradation, and the effects of non-radiological contaminants on aquatic organisms.
As Miami Waterkeeper has established in Contention 1, the impacts of operating the CCS as a heat sink have driven evaporative losses in the canals, causing hypersaline water to contaminate groundwater in all directions through the aquifer. Further, tritiuma reliable tracer of the CCS waterindicates that phosphorus-laden water has emerged through conduits in the bay bottom and contributed to the degraded health of adjacent marine ecosystems in Biscayne Bay. The continued operation of the CCS without remediation of the hypersaline plume threatens public water supplies and ecosystems surrounding the plant.
It is a deficiency of the 2023 DSEIS that it did not quantify these positive environmental benefits. A NEPA analysis that underestimates impacts is inadequate.
38 Reply at 36 (underline signifies the words FPL requests stricken).
12 Contention 2 meets the test for determining if a genuine dispute exists set forth in 10 C.F.R.
§ 2.309(f)(1):
Where the intervenor believes the application and supporting material do not address a relevant matter, it will be sufficient for the intervenor to explain why the application is deficient.
Contention 2 shows that a genuine dispute exists as to whether the 2023 DSEIS complies with the requirement in the NEPA and CEQ regulations that an environmental impact statement [r]igorously explore and objectively evaluate all reasonable alternatives. Far from rigorous, NRCs alternatives analysis is categorically thin, devoid of any meaningful detail, and fails to take the hard look required by NEPA.39 These are not new arguments. Miami Waterkeepers Petition argued in Contention 1 that the 2023 DSEIS notes that FPL has not presented predictive modeling results that extend to either the start or expiration of the SLR term, which precludes staff from reaching a definitive conclusion about the likely extent of the hypersaline plume retraction during the SLR term.40 FPLs Answer chalked this critical informational gap up to NRC Staffs lack of clairvoyance and further defended it based on Staffs acknowledgment of the uncertainty of whether FPL will be able to retract the hypersaline plume.41 FPL, thus, was heard on the argument that the 2023 DSEIS reached incorrect conclusions from an inadequate record. That FPL may now wish to revisit its response is not a ground to strike Miami Waterkeepers Reply.
Moreover, the Petition extensively argued in Contention 2 that the 2023 DSEIS only carries forward prior, inadequate alternatives analysis; the agency must evaluate the economic, technical, other benefits and costs of the cooling tower alternative, and this analysis must be done in light of new information concerning the CCS impacts to surface and groundwater resources; and the 2023 DSEIS defaults to the 2019 FSEISs discussion of the cooling tower alternative despite Petitioner having forwarded new and relevant information to the NRC regarding the inability of FPL to 39 Reply at 37-40 (footnotes omitted).
40 Petition at 21.
41 FPL Answer at 24.
13 remediate the plume successfully.42 FPL chose to respond to this argument by copying-and-pasting a paragraph from the 2019 FSEIS and concluding that it was sufficient.43 But Miami Waterkeepers argument was that that analysis is insufficient precisely because it lacked support in new and relevant data or science.44 FPL chose not to respond to that argument, but that does not preclude Miami Waterkeeper from amplifying it in its Reply. Miami Waterkeeper appropriately did, and the Motion should be denied.
D.
FPLs Fourth Argument Should Be Denied.
FPL seeks to strike arguments pertaining to the 2023 DSEISs failure to adequately analyze cumulative effects relating to air temperature.45 FPL takes issue with the following section of the Reply:
The discussion of rising temperatures and CCS evaporation in the 2023 DSEIS was cursory and general. First, the 2023 DSEIS states generally that a variety of factors, including air temperature, affect the CCS temperature. Second, FPL briefly describes its efforts to improve water quality and thermal conditions, although it does not mention salinity levels or evaporation here. Third, the 2023 DSEIS briefly discusses salinity and temperature in the context of eutrophication and fish disease. This discussion fails to analyze evaporation or the link between rising temperatures and evaporation, or any effects that this may have on groundwater quality. Furthermore, NRC failed to include new information it was required to consider, including the extremely high temperatures experienced in the CCS this past summer.46 Contrary to FPLs argument, these criticisms of the 2023 DSEIS are not new.47 They respond to the argument raised by the NRC Staff Answer that Miami Waterkeeper had failed to 42 Petition at 37-44.
43 FPL Answer at 36.
44 Petition at 44.
45 FPL Motion to Strike at 7.
46 Reply at 61-62 (footnotes omitted).
47 Motion to Strike at 7.
14 show that a genuine dispute exists under 10 C.F.R. § 2.309(f)(1)(vi).48 The excerpt above elaborates on Miami Waterkeepers argument made in its Petition regarding the inadequacy of the 2023 DSEISs cumulative impacts analysis of rising temperatures and its failure to update its cumulative impacts analysis in the site-specific EIS to evaluate the cumulative significance of these reasonably foreseeable hotter air temperatures.49 This section of Miami Waterkeepers petition was sufficiently detailed and specific to... put the other parties on notice as to what they will have to defend against[.]50 The Motion should be denied.
E.
FPLs Fifth Argument Should Be Denied.
Miami Waterkeepers Reply noted that FPLs Answer misstated the requirements of 10 C.F.R. § 51.43(c)(3)(ii)(E).51 FPL now seeks to strike that portion of the Reply, excerpted here:52 NEPA regulations do not require an assessment of the environmental impacts of a proposed action only on endangered, threatened, or otherwise protected species. FPL, for example, cites the NRC regulation governing environmental reports for license extensions, claiming [f]or license renewal, NRC regulations require only consideration of threatened or endangered species. But FPL misstates that requirement. The rule specifies that:
All license renewal applicants shall assess the impact of refurbishment, continued operations, and other license-renewal-related construction activities on important plant and animal habitats. Additionally, the applicant shall assess the impact of the proposed action on threatened or endangered species in accordance with Federal laws protecting wildlife, including but not limited to, the Endangered Species Act, and essential fish habitat in accordance with the Magnuson-Stevens Fishery Conservation and Management Act.
48 NRC Staff Answer at 45.
49 Petition at 57-60.
50 Maine Yankee Atomic Power Co. (Maine Yankee Atomic Power Station), LBP-82-4, 15 N.R.C.
199, 206 (1982). See also Philadelphia Electric Co. (Limerick Generating Station, Unit 1), LBP-86-9, 23 N.R.C. 273, 277 (1986); AmergenEnergy Co., LLC (Oyster Creek Nuclear Generating Station), LBP-06-22, 64 N.R.C. 229, 234-35 (2006).
51 Reply at 66.
52 Motion to Strike at 8.
15 Thus the DSEIS was required to consider the impact of... continued operations..
. on important plant and animal habitatsincluding the Miami cave crayfish and its groundwater habitat in the vicinity of FPLs facilities, regardless of whether FWS had completed and published its proposal to list the species as threatened at the moment the DSEIS was published. It completely fails to do so.
This is in accord with the broad reach of the Council of Environmental Qualitys NEPA regulations.53 Parties are permitted (indeed, encouraged) to identify in a reply where an answer misstated the law or facts. Miami Waterkeeper appropriately did so here. Moreover, Miami Waterkeepers Petition clearly articulates that the ESA requires that federal agencies ensure their actions [are not]
likely to jeopardize the continued existence of any endangered species or result in the destruction or adverse modification of its critical habitat, and discusses in depth the impact of the CCS to the cave crayfishs habitat.54 This excerpt, in short, appropriately amplifies the Petition and responds to misstatements in FPLs Answer.55 The Motion should be denied.
F.
FPLs Sixth Argument Should Be Denied.
FPLs final argument seeks to strike the following from Miami Waterkeepers Reply to Contention 5:
FPL also argues that the 2023 DSEIS does indeed consider the effects of climate change on accident risk. [FN 296] But the only possible reference to climate change in Appendix D of the Draft EIS is a statement that the NRC considered unspecified new meteorological information and found it did not contribute sufficiently to impacts to warrant their inclusion in the severe accident analysis. The statement is too brief and vague to qualify as the hard look required by NEPA.
[FN 296] FPL Answer at 52. FPL also argues that the NRC addressed climate change in the accident analysis for the 2019 EIS. Id. (citing 2019 SEIS at § 4.11.1.3, 53 Reply at 66 (emphasis original from reply; footnotes omitted).
54 Reply at 65-70.
55 In the Matter of Nuclear Mgmt. Co., LLC (Palisades Nuclear Plant), CLI-06-17, 63 N.R.C. 717, 732 (2006) (replies may address any and all legal and factual arguments [1] first presented in the original petition or [2] raised in the answers to it).
16 Appendix E). But Petitioner could not locate any mention or analysis of the climate change issue in those sections. 56 As the excerpt makes clear, this argument directly responds to the following assertion in FPLs Answer: Furthermore, the NRC did consider new meteorological information in the context of the Severe Accidents analysis. [FN 258: 2023 DEIS at D-6. The NRC addressed climate risks as part of its evaluation of FPLs SAMA analysis. See 2019 FSEIS § 4.11.1.3, Appendix E.]57 The Reply, in other words, reviews the materials cited in this passage in FPLs Answer and responds that they do not satisfy the hard look standard. Responding to an opponents arguments is the core purpose of a reply, and that is what Miami Waterkeeper properly did.
CONCLUSION For the foregoing reasons, FPLs Motion to Strike should be denied.
Respectfully submitted,
/s/ Cameron Bills Cameron Bills Miami Waterkeeper PO Box 141596 Coral Gables, FL 33114-1596 Phone: (305) 905-0856 Email: cameron@miamiwaterkeeper.org Counsel for Miami Waterkeeper Filed January 23, 2024 56 Reply at 72 (select footnotes omitted).
57 FPL Answer at 52.
17 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 Station, Unit Nos. 3 and 4)
(Subsequent License Renewal Application)
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Docket No. 50-250 Docket No. 50-251 January 23, 2024 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, a copy of the foregoing Miami Waterkeepers Response in Opposition to Florida Power & Light Companys Motion to Strike Portions of Miami Waterkeepers Reply was served upon the Electronic Information Exchange (EIE, the NRCs E-Filing System), in the above-captioned docket, which to the best of my knowledge resulted in transmittal of same to those on the EIE Service List for the captioned proceeding.
/Signed (electronically) by/ Cameron Bills Cameron Bills Miami Waterkeeper PO Box 141596 Coral Gables, FL 33114-1596 Phone: (305) 905-0856 Email: cameron@miamiwaterkeeper.org Counsel for Miami Waterkeeper