ML24026A239
| ML24026A239 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 01/26/2024 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| ASLBP 24-981-01-SLR-BD01, RAS 56914, 50-251-SLR-2, 50-250-SLR-2, NRC-2682 | |
| Download: ML24026A239 (0) | |
Text
Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Florida Power and Light Docket Number:
50-250-SLR-2 and 50-251-SLR-2 ASLBP Number:
24-981-01-SLR-BD01 Location:
teleconference Date:
Wednesday, January 24, 2024 Work Order No.:
NRC-2682 Pages 1-56 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1716 14th Street, N.W.
Washington, D.C. 20009 (202) 234-4433
1 UNITED STATES OF AMERICA 1
NUCLEAR REGULATORY COMMISSION 2
+ + + + +
3 ATOMIC SAFETY AND LICENSING BOARD PANEL 4
+ + + + +
5 PRE-HEARING CONFERENCE 6
x 7
In the Matter of: : Docket Nos.
8 FLORIDA POWER AND : 50-250-SLR-2 9
LIGHT COMPANY : 50-251-SLR-2 10 (Turkey Point Nuclear : ASLBP No.
11 Generating Units 3 : 24-981-01-SLR-BD01 12 and 4) :
13
x 14 Wednesday, January 24, 2024 15 16 Video Teleconference 17 18 BEFORE:
19 EMILY I. KRAUSE, Chair 20 SUE H. ABREU, Administrative Judge 21 MICHAEL I. KENNEDY, Administrative Judge 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
2 APPEARANCES:
1 2
Counsel for the Applicant 3
Ryan Lighty, Esq.
4 Scott Clausen, Esq.
5 of:
Morgan Lewis & Bockius, LLP 6
1111 Pennsylvania Avenue, NW 7
Washington, DC 20004-2541 8
202-739-5274 (Lighty) 9 ryan.lighty@morganlewis.com 10 scott.clausen@morganlewis.com 11 12 Steven Hamrick, Esq.
13 of:
Florida Power & Light Company 14 801 Pennsylvania Ave., NW, Suite 220 15 Washington, DC 20004 16 202-349-3496 17 steven.hamrick@fpl.com 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
3 APPEARANCES (CONTINUED):
1 2
On Behalf of the Nuclear Regulatory Commission 3
Jeremy Wachutka, Esq.
4 Blake Vaisey, Esq.
5 of:
U.S. Nuclear Regulatory Commission 6
Office of the General Counsel 7
Mail Stop O-14A44 8
Washington, DC 20555-0001 9
301-287-9188 (Wachutka) 10 jeremy.wachutka@nrc.gov 11 blake.vaisey@nrc.gov 12 13 On Behalf of Miami Waterkeeper 14 Cameron Bills, Esq.
15 P.O. Box 141596 16 Coral Gables, FL 17 305-905-0856 18 cameron@miamiwaterkeeper.org 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
4 P-R-O-C-E-E-D-I-N-G-S 1
1:02 p.m.
2 CHAIR KRAUSE: Good afternoon. Today, 3
we're hearing oral argument in the subsequent license 4
renewal proceeding for Turkey Point Nuclear Generating 5
Units 3 and 4, Docket Nos. 50-250-SLR-2 and 50-251-6 SLR-2.
7 My name is Emily Krause. I am a legal 8
judge and the Chair of this Board. With me on the 9
bench are Judge Sue Abreu and Engineer and Nuclear 10 Medicine Physician, who is also an attorney and judge, 11 Mike Kennedy, who has a PhD in nuclear engineering.
12 I have a few administrative announcements 13 before we begin. We've made a telephone line 14 available for members of the public to access this 15 proceeding. Because this is a listen-only line, we 16 ask counsel to please identify yourself before 17 speaking.
18 We have a court reporter connected via 19 Webex. This proceeding is being transcribed and a 20 transcript should be available in the NRC's electronic 21 hearing docket next week.
22 We are also monitoring the participants' 23 connectivity.
If any participant drops off 24 unexpectedly, we will stop the argument and wait to 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
5 resume until we confirm that everyone is able to 1
reconnect.
2 Lastly, I would like to briefly describe 3
the timing system we'll be using for today's argument.
4 Our law clerk Emily Newman will be keeping track of 5
the time allotted to each participant.
6 During their arguments, counsel will first 7
see a slide that says Oral Argument. When five 8
minutes remain, counsel will see a slide that will 9
count down each minute until the allotted time 10 expires. We will, then, ask counsel to wrap up their 11 arguments, but we will allow time, as needed, for the 12 participants to finish their responses to the Board's 13 questions.
14 With our administrative matters out of the 15 way, I would like to move on to a summary of relevant 16 procedural history, since we'll be hearing views from 17 the participants on the scope of the proceeding.
18 In early 2019, a different Licensing Board 19 admitted environmental contentions that challenged 20 Florida Power & Light Company's subsequent license 21 renewal application. That Licensing Board ultimately 22 dismissed the admitted contentions as moot, dismissed 23 proposed new and amended contentions, and terminated 24 the proceeding before it.
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
6 The Intervenors appealed the Board's 1
rulings to the Commission. The staff completed its 2
environmental and safety review of FPL's application 3
and issued the subsequent renewed licenses in December 4
2019.
5 But, in 2022, as it considered the pending 6
appeals, the Commission concluded that the staff's 7
environmental review was incomplete because it relied 8
on analyses and a Generic Environmental Impact 9
Statement, or GEIS, that applied only to initial 10 license renewal reviews.
11 The Commission directed the staff to 12 update the GEIS. That effort is ongoing. The 13 Commission also provided an opportunity for subsequent 14 license renewal applicants to submit revised 15 environmental reports rather than wait for the staff 16 to complete its updates to the GEIS.
17 And in those circumstances, once the staff 18 completed its site-specific reviews, a new Notice of 19 Opportunity for Hearing would be issued, allowing 20 petitioners to submit new or amended contentions.
21 The Commission left in place the 22 subsequent renewed licenses for Turkey Point, but 23 directed the staff to revise them to reflect the end 24 dates of the initial license renewal term.
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
7 That brings us to where we are today. FPL 1
submitted a Supplemental Environmental Report in June 2
2022. The staff issued its Draft Supplemental 3
Environmental Impact Statement in August 2023, which 4
you'll hear us refer to as the Draft SEIS or DSEIS, 5
and provided an opportunity for members of the public 6
to request a hearing.
7 This Licensing Board was established to 8
rule on a hearing request filed by Miami Waterkeeper 9
that proposes five contentions challenging the staff's 10 Draft SEIS. The staff and FPL argue that the hearing 11 request should be denied.
12 The purpose of today's pre-hearing 13 conference is to ensure the Board understands the 14 arguments in the participants' written filings.
15 I will note that we received FPL's Motion 16 to Strike, portions of Miami Waterkeeper's reply, and 17 Miami Waterkeeper's response to that motion. There 18 will not be a ruling on the motion today. But to the 19 extent the participants wish to discuss it during 20 their allotted time, they may do so.
21 The Board will hear argument, first, from 22 Miami Waterkeeper, then the NRC staff, and then, FPL.
23 Miami Waterkeeper will have 30 minutes and may reserve 24 up to 10 minutes of that for rebuttal. The staff and 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
8 FPL will have 15 minutes each.
1 Counsel for Miami Waterkeeper, would you 2
please introduce yourself?
3 MS. BILLS: May it please the Board, my 4
name is Cameron Bills and I'm representing Miami 5
Waterkeeper. And I would like to reserve 10 minutes 6
for rebuttal.
7 CHAIR KRAUSE: Okay. Great. Thank you.
8 Counsel for the staff?
9 MR. WACHUTKA: Good afternoon. This is 10 Jeremy Wachutka, representing the NRC staff, and I am 11 joined by Co-Counsel Blake Vaisey today.
12 CHAIR KRAUSE: Thank you. Counsel for 13 FPL?
14 MR. LIGHTY: Good afternoon, Your Honors.
15 Thank you, and may it please the Board, 16 Ryan Lighty, appearing on behalf of the Applicant, 17 Florida Power & Light Company, and I am joined today 18 by my Co-Counsel Scott Clausen, also of Morgan Lewis, 19 and Steven Hamrick of FPL.
20 CHAIR KRAUSE: Thank you. All right.
21 Miami Waterkeeper, you have 20 minutes with the 10 22 minutes reserved for rebuttal. You may begin.
23 STATEMENT ON BEHALF OF MIAMI WATERKEEPER 24 MS. BILLS: Thank you, Your Honor. I'll 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
9 start by addressing the issue that the Board raised in 1
its notice: what is the appropriate scope of the 2
proceeding, as established by the Commission's orders 3
in CLI 22-02 and -03.
4 So, first, those orders stated the 5
Intervenors are not required to meet heightened 6
pleading standards for newly filed or refiled 7
contentions, and specifically state that, I quote, 8
Petitioners will be subject to the general 9
requirements set out in 10 CFR 2.309(a) for 10 intervention. We expect that Petitioners would update 11 references, as appropriate, in any refiled 12 contentions.
13 So, this contemplates that Petitioner 14 would refile our prior contentions updated to reflect 15 differences between the 2019 and 2023 SEIS.
16 The Commission also dismissed all --
17 CHAIR KRAUSE: Can I ask just a brief 18 question before you go a little bit further?
19 Backing up just a little bit, I noticed in 20 your petition, early in the proceeding, Miami 21 Waterkeeper had requested the Commission withdraw the 22 Notice of Opportunity for Hearing because it viewed it 23 as premature, based on the Commission's decision in 24 CLI 22-03, which discussed the staff issuing the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
10 Notice of Opportunity for Hearing after the review was 1
complete.
2 I just want to clarify that your position 3
is that that doesn't need to be raised here before the 4
Board?
5 MS. BILLS: That does not need to be 6
raised here before the Board. I believe that in our 7
petition we reserved the right to raise that at a 8
later date, but we didn't want to hold up the 9
proceedings. And when we first raised it to the 10 Secretary, they stated that they did not have the 11 authority to take any action on that.
12 So, we're happy to proceed with our 13 contentions in this hearing.
14 CHAIR KRAUSE: Really, it seems like this 15 is an important issue. Because if it is the 16 Commission were to view the Notice of Opportunity for 17 Hearing as premature, it sort of seems that this, the 18 step we're taking here looking at the draft, might 19 also be premature. Do you have any thoughts about 20 that?
21 MS. BILLS: Yes. My thoughts are that 22 we're really not looking to hold things up here. And 23 so, we're happy to proceed and have our contentions 24 considered at this phase by the Board.
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
11 CHAIR KRAUSE: All right.
1 MS. BILLS: So, to continue on --
2 JUDGE ABREU: One other question for you.
3 In the CLI 22-03, it said that a new Notice of Hearing 4
will be issued after each site-specific review is 5
complete. So, is it your expectation that the staff 6
would issue another Notice of Hearing, once they have 7
a Final Supplemental Environmental Impact Statement?
8 MS. BILLS: Your Honor, I believe that, 9
while we reserved the opportunity to potentially raise 10 that in the future in our petition, we want to move 11 forward with the contentions for now. And so, our 12 understanding is that that might depend on the 13 difference between the Draft 2023 DSEIS and what 14 happens in the Final SEIS. But we imagine that we 15 would just continue with this litigation in front of 16 this Board, rather than raising that as a separate 17 issue.
18 JUDGE ABREU: Thank you.
19 MS. BILLS: So, thank you for the 20 excellent questions.
21 To continue on, so the Commission in 22 CLI 20-03 dismissed all pending motions, petitions, 23 and appeals without prejudice, noting an efficiency of 24 continuing to litigate pending contentions when the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
12 environmental information could change. And so, had 1
the Commission meant to preclude Miami Waterkeeper 2
from bringing similar contentions on issues not cured 3
by the 2023 DSEIS, it would have dismissed our 4
previous contentions with prejudice, but it did not do 5
so.
6 So, what, then, should we make of the 7
Commission's statement that the new motion, a new 8
Notice of Opportunity for Hearing would be limited to 9
contentions based on new information in the site-10 specific Environmental Impact Statement?
11 The Commission was making the reasonable 12 assumption that NRC staff would comply with its order 13 and add new site-specific information to its SEIS, and 14 that Petitioner could, then, challenge the adequacy of 15 that new information. But NRC staff did not do that, 16 and instead of adding adequate new information, taking 17 a site-specific hard look at the environmental impacts 18 of extended operation, the 2023 DEIS, instead, 19 referred us back to the inadequate analysis from the 20 2019 EIS.
21 And so, NRC can't have it both ways.
22 Either the staff added the new analysis, which we can 23 challenge as inadequate, or it failed to add that 24 further analysis, as the Commission directed it to 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
13 add.
1 And so, therefore, the proper scope of 2
this proceeding is defined by 10 CFR Part 51, which 3
requires NRC to weigh all environmental impacts of a 4
proposed action in the proceeding. So, we can bring 5
contentions challenging that NRC has failed to 6
adequately update its Supplemental EIS and all of our 7
contentions fall directly within the scope of the 8
proceeding. I will also just flag for you that staff 9
and FPL do not contest that Contentions 1, 3, and 5 10 fall within the scope of this proceeding.
11 So, with that being said, I'll move on to 12 other key issues and the substance of our contentions 13 and answer your questions as best I can.
14 So, we're not advocating for a particular 15 energy policy. We're not an energy advocacy 16 organization. We take no position on nuclear reactors 17 that minimize environmental impacts.
18 Our mission, instead, is to advocate for 19 clean water that is safe for our community to drink, 20 fish, and swim in, and to ensure that our community is 21 resilient to climate change. And so, we're here 22 because we want to make sure that NRC does not extend 23 this license for another 20 years without fully 24 understanding and addressing the environmental effects 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
14 of operating the CCS 20 years beyond its design life.
1 And there's a lot at stake for our 2
community here. The environmental impacts are 3
significant. And the CCS is especially poorly suited 4
to South Florida's porous geography.
5 So, we've been experiencing the 6
detrimental effects of the CCS for years now. Our 7
entire county of 2.5 million relies on this one 8
aquifer that's currently being polluted by the CCS.
9 So, our public health is at stake.
10 And the local enforcement actions since 11 2015 have, of course, resulted in a consent decree, 12 but the remediation efforts to halt and retract the 13 plume are not working as planned, by FPL's own 14 admission in its year five report. So, over the next 15 20 years, the continued use of the CCS, as well as the 16 freshening efforts, could lead to millions of gallons 17 of salty water entering the aquifer.
18 CHAIR KRAUSE: On that topic, it sounds 19 like you're referencing several of the arguments that 20 you've raised in Contention 1. And I just want to 21 make sure that I have sort of a good sort of context 22 for the various arguments that are being raised, the 23 structure of your argument.
24 And on page 33 of your petition, you list 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
15 what appear to be four main points in this contention 1
that relates to the CCS and that has the heading of 2
Groundwater Quality. Would you say that those four 3
points on page 33 sort of adequately characterize the 4
scope of Contention 1?
5 MS. BILLS: So, I'm looking at page 33 6
right now. Yes, that is correct. And I just want to 7
make sure that page 33 also includes our key point in 8
Contention 1 that the 2023 DEIS has failed to compare 9
the positive and remedial impact of groundwater, of 10 reasonable alternatives to the proposed action. So, 11 the no-action alternative of discontinuing CCS use 12 against the perpetuating impact of the proposed action 13 of continuing to use the CCS. So, if that's included, 14 then, yes, that adequately summarizes our Contention 15 1.
16 CHAIR KRAUSE: And is that adequate? Is 17 that included in the other part of your petition for 18 the contentions?
19 MS. BILLS: That's correct, that is in our 20 petition, yes. I'm trying to find the right page 21 number for you. Yes, I think, on page 12, we 22 summarize the contention.
23 CHAIR KRAUSE: All right. And then, could 24 you explain for me, too, you know, you have the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
16 heading of Groundwater Quality for your contention, 1
but it also goes into a discussion of the effects of 2
non-radiological contaminants on aquatic organisms.
3 Could you explain a little bit more about how that 4
fits within your sort of groundwater structure?
5 MS. BILLS: Yes, Your Honor. So, there 6
are a number of impacts of continued use of the CCS on 7
the groundwater quality.
8 First and foremost, we really do talk 9
about the hypersaline plume leaching into the aquifer, 10 but, additionally, if you look to our expert report by 11 Dr. Nuttle, the hydrologist, he talks at length about 12 effects of phosphorus from the CCS entering the bay 13 and negatively impacting the seagrass on which a 14 number of species rely, and which is currently at a 15 tipping point in terms of its survivability going 16 forward.
17 CHAIR KRAUSE: But was that a surface 18 water argument? Is sort of the contention includes 19 surface water impacts as well, or is it just 20 groundwater?
21 MS. BILLS: Yes, and please excuse me, I 22 misspoke. I should have pointed to our expert report 23 by Dr. Fourqurean.
24 Yes, so we are arguing, you know, the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
17 hydrology in Florida is wonky. Of course, a lot of 1
this water is traveling through the ground, but, 2
ultimately, some of it ends up in the bay. And so, it 3
comes up into the bay and affects that, in addition to 4
leaching down into the aquifer.
5 CHAIR KRAUSE: All right. Thank you.
6 Just another question related to the CCS.
7 Miami Waterkeeper argues that the NRC could order FPL 8
to stop using the CCS and, you know, normally, the 9
understanding of NEPA that it doesn't require 10 implementation of mitigation measures. Is there 11 something special about this proceeding that would 12 require the NRC to do more here?
13 MS. BILLS: So, I completely agree with 14 you that NEPA is a procedure and does not mandate a 15 particular outcome. What we're arguing here is that 16 NEPA does mandate the NRC thoughtfully consider the 17 alternative of using CCS. And I think that some of 18 the issues around whether NRC has the authority to 19 order FPL to discontinue use of the CCS were really a 20 response to FPL and NRC staff's answers, where they 21 argue that they weren't required to consider that 22 alternative because NRC lacks the authority anyway.
23 So, we're contesting that.
24 But I agree with you that, ultimately, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
18 this is about this is really coming to what analysis 1
does NRC staff provide and does it provide adequate 2
analysis per NEPA. We're not, like, seeking a 3
particular action from NRC staff right now beyond the 4
NEPA analysis.
5 CHAIR KRAUSE: Thank you.
6 MS. BILLS: So, having discussed the major 7
environmental impacts and what's at stake for our 8
community, I'll just offer that this is why Congress 9
put NEPA in place, was to just ensure full 10 consideration of all these issues. And so, before 11 relicensing the CCS for 20 years beyond its design 12 life, staff is, at the very least, required to fully 13 examine the environmental impacts of granting the 14 license renewal.
15 So, that includes the no-action 16 alternative; that includes the cooling tower 17 alternative; a cumulative impacts analysis that 18 accounts for the effects of climate change and the 19 effects on important animal habitats, as well as the 20 effects of climate change on safety.
21 And so, that's what our 2019 petition was 22 about as well. That's why the Commission ordered the 23 Supplemental EIS, and unfortunately, NRC staff did not 24 adequately supplement that analysis to address these 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
19 issues.
1 So, it's now up to the Board to exercise 2
its authority to step in and ensure that staff takes 3
a hard look at the environmental issues here, as 4
ordered by the Commission.
5 So, with all that being -- yes, Your 6
Honor?
7 CHAIR KRAUSE: Related to the Commission's 8
order, Miami Waterkeeper states that the Commission 9
vacated the prior Board's rulings. Could you explain 10 the basis for your argument that the Board's rulings 11 were vacated?
12 MS. BILLS: So, there is no final 13 determination made on the merits. And instead, in 14 CLI 22-02 and 22-03, the Commission dismissed all of 15 those pending appeals without prejudice, which we 16 believe means that the Board does not have to look to 17 the prior orders. Those orders are, effectively, 18 vacated.
19 CHAIR KRAUSE: All right. Thanks.
20 MS. BILLS: So, I'd love to turn now to 21 the legal standard for admissibility and just, you 22 know, offer that neither the pertinent regulation, 23 10 CFR 2.309(f), or Commission rulings require Miami 24 Waterkeeper to prove its factual or legal case of the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
20 stage.
1 As the Commission explained in proposing 2
what became 2.309(f), the presiding officer's job is 3
to determine whether the information presented is 4
sufficient to prompt a reasonable mind to inquire 5
further with regard to the validity of the contention, 6
not to rule on the validity of the contention itself.
7 And so, while, of course, a notice 8
pleading would not be sufficient, the Board has said 9
that Petitioner does not need to prove its contentions 10 at this stage, and it does not need to adjudicate 11 disputed facts.
12 So, turning on to, going contention by 13 contention, to Contention 1, as we argue, I mean, as 14 we talked about a moment ago, the 2023 DEIS fails to 15 compare the positive and remedial impacts of 16 groundwater, of reasonable alternatives of the 17 proposed action, like discontinuing on the CCS, 18 against the effects of continuing to use the CCS for 19 another 20 years. And so, it doesn't really consider 20 the positive effects from discontinuing or the 21 negative impacts to groundwater quality resulting from 22 continued operation of the CCS.
23 And NRC staff's conclusion that 24 groundwater impacts of CCS operation during the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
21 subsequent license renewal term will be small or 1
moderate doesn't hold up, in light of the scientific 2
evidence, which is part of why we want a hearing. We 3
really want an opportunity to flesh out all that 4
evidence for you.
5 It's largely based on the assumption that 6
FPL will succeed in retracting the hypersaline plume, 7
which, by FPL's own admission in its year four and 8
five reports, it is not on track to do. And, in fact, 9
the hypersaline plume is expanding in some areas.
10 And so, the freshening activities that are 11 being proposed and are occurring actually exacerbate 12 a lot of these issues. So, FPL has to pump as much as 13 a million gallons of brackish water into the CCS every 14 month 12 months a year to try to achieve it's 34 psu 15 salinity limit. This, of course, increases the volume 16 of water added to the CCS, and therefore, the flow out 17 of the CCS into the aquifer.
18 But the EIS does not consider how the 19 increasing additions up into the Floridan aquifer will 20 cause increased leakage from the CCS, the water that 21 is both salty and laced with tritium. So, it's, yes, 22 this is a reasonably foreseeable major impact of 23 continued use that's not adequately considered here.
24 And as we discuss in our petition, staff 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
22 has failed to take a hard look at the hypersaline 1
plume's impact on groundwater and has provided a 2
speculative assessment without looking closely at some 3
of the peer and other reports that have been provided.
4 And we would love, again, a hearing where we can 5
really get at this in length, to the extent that FPL's 6
expert reports don't agree with our own.
7 So, moving on to the next point, staff 8
must fully consider this, additionally, because NRC is 9
the only regulatory agency with the authority to 10 holistically address the harm caused by the CCS. It 11 is particularly well-placed to do so.
12 Under basic preemption principles, federal 13 action requiring the operation of the CCS would bind 14 all state and local regulatory agencies, which 15 couldn't order FPL to operate differently by ordering 16 FPL, for example, to cease operation of the CCS. And 17 so, local authorities, while they've acted, and while 18 we've ended up with this local consent decree, that's 19 only provided a band-aid solution.
20 And we've seen that our own county's hands 21 are tied, even though they're deeply concerned about 22 the impacts. In 2016, they passed a resolution urging 23 FPL to discontinue use of the CCS and to install 24 modern technology, like cooling towers. But they note 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
23 that they don't have the authority to enjoin FPL from 1
operating the CCS.
2 And so, EPA itself has also -- yes, Your 3
Honor?
4 CHAIR KRAUSE: I just want to clarify 5
again. It is clear you had mentioned you're not 6
asking for that particular action here, for the staff 7
to take that action. You're looking more at NEPA and 8
the consideration, correct?
9 MS. BILLS: That's correct. So, we are 10 arguing both that NRC has an independent obligation to 11 take a hard look at these issues. Even though there 12 are other state and local agencies involved and 13 consent decree and remediation efforts here, that 14 doesn't affect the fact that NRC has to take a hard 15 look at all the impacts.
16 And we just want to offer, in response to 17 some FPL and NRC staff's arguments to the contrary, 18 saying that we should just rely on these state 19 remediation efforts and assume that they're going to 20 be successful, we want to say, no, you can't just rely 21 on these; you have to both take a hard look and, also, 22 NRC staff is the best positioned to take the hard look 23 here and to consider alternatives.
24 And I'll offer, too, that the Order 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
24 CLI 22-03, while it, of course, is in line with the 1
fact that NEPA is just procedural, it says staff 2
should take a hard look at these issues, and then, you 3
know, consider this in their license renewal. Really, 4
this could affect the way that they rule on whether or 5
not to renew this license. So, that's what we're 6
looking at here.
7 So, just to continue on, in addition to 8
the county having serious concerns with continued CCS 9
operation, EPA itself, in its scoping comments to NRC 10 in November 2022, recommended that the NRC and the 11 Licensee provide a detailed discussion on the 12 reevaluation process that would reassess alternative 13 corrective measures.
14 So, I realize that I'm now probably a bit 15 over 20 minutes, and I do want to reserve the rest of 16 my time.
17 Do you all have any further questions for 18 me before I cede the floor?
19 CHAIR KRAUSE: You answered my questions.
20 But, Judge Abreu? Judge Kennedy?
21 JUDGE KENNEDY: I'm okay. Thank you.
22 This is Judge Kennedy.
23 MS. BILLS: Thank you, Your Honors.
24 CHAIR KRAUSE: All right. Thank you, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
25 Counsel.
1 All right. Counsel for the staff, you 2
have 15 minutes.
3 STATEMENT ON BEHALF OF NUCLEAR REGULATORY COMMISSION 4
MR. WACHUTKA: Thank you, Your Honor.
5 May it please the Board, my name is Jeremy 6
Wachutka, and I will, first, discuss why Contentions 7
1, 2, 3, and 5 are not admissible, and then, my Co-8 Counsel Blake Vaisey will discuss why Contention 4 9
should not be admitted.
10 As an initial matter, Contentions 2, 3, 11 and 5 are not admissible because they are outside of 12 the scope of this proceeding. As I will explain, this 13 proceeding is a unique hearing opportunity that was 14 specifically created by the Commission and, also, 15 specifically limited by the Commission to new or 16 updated contentions that are based on new information 17 that is in the 2023 DEIS.
18 Despite this limited scope, Contentions 2, 19 3, and 5, instead, challenge preexisting information 20 in the 2019 FSEIS and often repeat arguments that were 21 made, first, in 2018 and 2019 and have not been 22 materially updated.
23 CHAIR KRAUSE: Counsel, I'll stop here.
24 So, the Commission's decision CLI 22-03 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
26 contemplated that contentions might be refiled. And 1
although it said it expected that refile contentions 2
would include or have new information accompanying 3
them, it didn't seem to be a requirement. So, could 4
you explain to me how the staff isn't perhaps reading 5
the scope of the Commission's decision too narrowly 6
here because the Commission contemplated refiled 7
contentions?
8 MR. WACHUTKA: Your Honor, the staff is 9
reading the two Commission statements together, which 10 is that a new contention should have new information 11 and refiled contentions should be based on updated or 12 new information.
13 And the reason the staff is doing this is 14 because, when you look at CLI 22-03, it has to do with 15 five different cases with five different procedural 16 postures. So, different cases were in different 17 procedural postures, like I said. And for this case 18 19 CHAIR KRAUSE: But that's not exactly how 20 to say whether a procedural posture matters in the 21 scope of its direction. Because, in that same 22 decision, the Commission specifically called out when 23 it's talking about certain proceedings, and then, in 24 general -- and this statement was a general 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
27 statement -- that contentions could be refiled. And 1
saying that a contention -- that the Commission has an 2
expectation that a contention would have new 3
information is not the same as creating a contention 4
admissibility standard or using that as the scope of 5
the proceeding.
6 So, how would you respond to that?
7 MR. WACHUTKA: Yes, Your Honor. So, as a 8
first matter, the contention should be on the new 9
information of the 2023 DEIS, which is a separate 10 issue that has been satisfied here.
11 With respect to the refiling of 12 contentions, Your Honor, the procedural posture in 13 this case was that the Board had already ruled on a 14 number of these arguments. The Commission, as opposed 15 to what the Petitioner said, the Commission did not 16 vacate those arguments. The Commission never reached 17 the merits of those arguments. So, even if the scope 18 is constrained in that --
19 CHAIR KRAUSE: Are we bound by the prior 20 Board's decisions?
21 MR. WACHUTKA: No, you are not, Your 22 Honor. But since they weren't vacated, if a board is 23 presented with the same facts as a previous board, and 24 the previous board correctly applied the contention 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
28 admissibility requirements, then our position is that, 1
with those same facts and the same requirements, that 2
these same arguments should also be dismissed for the 3
same reasons.
4 So, as you're saying, Your Honor, the 5
scope of the proceeding, our interpretation is that it 6
is on the new information, which is the 2023 DSEIS.
7 It's very easy to tell what's the new information 8
because it's a separate document; and also, that new 9
contentions or refiled contentions should have a new 10 or updated basis.
11 CHAIR KRAUSE:
But couldn't new 12 information also include, as Miami Waterkeeper is 13 arguing here, that it's information that does not 14 appear in the Draft SEIS that they argue should appear 15 in the Draft SEIS? So, it seems to me, if I 16 understand the staff's argument correctly, that if the 17 words don't appear in the Draft SEIS, then it's 18 outside the scope of the proceeding, because those 19 words in the Draft SEIS are what's new.
20 But what I hear from Miami Waterkeeper is 21 that it wasn't included in the Draft SEIS, and 22 therefore, this is a new argument; we're looking at a 23 new document, but it wasn't included. So, do I have 24 that right?
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
29 MR. WACHUTKA: Your Honor, it's important 1
to understand what the Commission did here, and we 2
haven't spoken about what are Category 1 issues or 3
Category 2 issues, but that's really key to 4
understanding the scope of this proceeding.
5 So, normally, to create a site-specific 6
Environmental Impact Statement for license renewal, 7
the Commission, the staff gathers together all the 8
Category 1 issues, reviews those for new and 9
significant information, and if there's no new and 10 significant information, it uses those findings. And 11 then, for the Category 2 issues, the staff takes a 12 site-specific look at those items.
13 In this proceeding, in CLI 22-03, the 14 Commission only said that the staff had to redo its 15 analysis of the Category 1 issues on a site-specific 16 basis. It didn't make any comment or touch the 17 viability of the Category 2 issues.
18 So, what the staff did in this case was 19 exactly that. It reviewed all of the Category 1 20 issues in a site-specific basis, and that is the new 21 information.
22 But, also, for the Category 2 issues, the 23 staff filed its regulations about supplementing 24 Environmental Impact Statements and followed its usual 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
30 practice. And it looked at the Category 2 issues to 1
see if there's any new or significant information --
2 and significant information -- that could affect the 3
findings in the 2019 FSEIS.
4 So, the new information that can be 5
challenged here, under the staff's understanding of 6
CLI 22-03, is the site-specific reviews of the 7
Category 1 information and the new and significant 8
information reviews of the Category 2 information.
9 So, just because the Petitioner challenges 10 one of these Category 2 issues and says oh, the staff 11 found there's no new and significant information, so 12 I can go and challenge the 2019 FSEIS, the staff 13 thinks that's incorrect. The staff thinks that what 14 has to be challenged here is the finding of no new and 15 significant information. So, that could be challenged 16 by saying there was an omission of new and significant 17 information or a challenge by saying that the staff 18 identified new information, but was wrong to find that 19 it was not significant.
20 So, that's what the staff believes the 21 scope of this proceeding is, not that we can just go 22 back and challenge the 2019 FSEIS again.
23 CHAIR KRAUSE: Although the Commission 24 never weighed in on the Category 2 issues in the 2019 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
31 SEIS, correct?
1 MR. WACHUTKA: That's correct, but the 2
Commission only -- the only direction from the 3
Commission to the staff was to evaluate the Category 4
1 issues on a site-specific basis.
5 CHAIR KRAUSE: Okay.
6 MR. WACHUTKA: It never mentioned the 7
Category 2 issues.
8 CHAIR KRAUSE: Okay. But having said that 9
with the other, that that was adequate, and so, 10 they're off the table. Right?
11 MR. WACHUTKA: Yes, Your Honor, that would 12 be the staff's position.
13 CHAIR KRAUSE: All right. I have, 14 actually, a status question for you. On the staff's 15 public website, it lists the staff's Final EIS coming 16 out in March 2024. Does that schedule still hold, as 17 far as you know?
18 MR. WACHUTKA: Yes, Your Honor, that's the 19 staff's current schedule, that the Final Draft of this 20 2023 DEIS that we're discussing will be completed by 21 the end of March, yes.
22 CHAIR KRAUSE: And then, the staff had 23 mentioned that it planned to confer with Fish and 24 Wildlife on the Miami cave crayfish. And is that 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
32 still the staff's plan, and if so, how does that fit 1
into the staff's schedule?
2 MR. WACHUTKA: Yes, Your Honor, the staff 3
is going to, now that the Miami cave crayfish is a 4
proposed species, the staff will meet all the 5
requirements required under the Fish and Wildlife 6
Service's regulations, including conferencing, as 7
necessary. And we'll discuss the species in the Final 8
Draft, and that will not change the schedule.
9 CHAIR KRAUSE: Thank you.
10 JUDGE ABREU: Sorry, one more question.
11 MR. WACHUTKA: Yes?
12 JUDGE ABREU: When the Final Supplemental 13 EIS is completed, will there be another hearing 14 notice?
15 MR. WACHUTKA: No, Your Honor. As you had 16 discussed previously with the Petitioner, the NRC 17 staff's interpretation of the Commission's direction 18 in CLI 22-03 regarding when to notice the complete 19 site-specific review was we thought about this 20 practically and in light of the Commission's 21 regulations and policy.
22 And so, as a practical matter, whenever a 23 Draft EIS is done, it is significantly complete. All 24 that is left to do is to put it out for comment; get 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
33 comments; update the draft as necessary, based on 1
those comments and to respond to those comments. So, 2
as a practical matter, at the draft stage, the EIS is 3
substantially completed, and then, as a policy matter, 4
the staff, in its regulations which were created when 5
the strict-by-design contention-specific standards 6
were created, pushed the hearing opportunity on 7
environmental issues as early in the process as 8
possible.
9 So, typically, normally, it's on the 10 environmental report stage. So, the staff wanted to 11 keep this policy and follow the Commission's direction 12 at the earliest possible time, which was at the Draft 13 EIS, site-specific stage in this instance. So, that's 14 why the staff put out the Notice of Opportunity when 15 it did.
16 JUDGE ABREU: So, what would prevent the 17 staff from putting another hearing opportunity, given 18 that the CLI said completed, not significantly 19 completed?
20 MR. WACHUTKA: Yes, the CLI 22-03, the 21 staff believes it was ambiguous on the exact timing.
22 It didn't specify -- the Commission knows there's a 23 Draft and a Final -- it didn't specify the Draft or 24 the Final. So, the staff's interpretation is, by 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
34 saying the complete, site-specific review, that it was 1
the draft stage, is an adequate interpretation of that 2
statement. So, the staff thinks that its Notice of 3
Opportunity for Hearing on this draft site-specific 4
EIS is the Notice of Opportunity for Hearing and there 5
won't be another.
6 JUDGE ABREU: Thank you.
7 CHAIR KRAUSE: Counsel, this is Judge 8
Krause.
9 What do you make of the juxtaposition of 10 the two sentences in CLI 22-03, where the Commission 11 directs the staff to give an opportunity to comment on 12 the Draft EIS, and then, in a separate sentence says 13 and when the review is complete, issue a new Notice of 14 Opportunity for Hearing, sort of implying that those 15 would be two separate processes, rather than right now 16 where those are ongoing simultaneously?
17 MR. WACHUTKA: Well, Your Honor, the 18 staff's understanding was that, when they would do 19 their new Notice of Hearing opportunity on the Draft 20 EIS, that that would just start the typical process 21 that we would always do on an environmental report.
22 So, if this were a normal hearing under Part 2 --
23 CHAIR KRAUSE: But, in this case, as to 24 typical, the Commission has taken sort of a novel 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
35 approach here. At least compared to most proceedings, 1
the Commission doesn't normally take this approach.
2 And so, we are in sort of a unique space. And the 3
Commission was very clear and said complete. So, I'm 4
not sure that -- I guess explain to me why the staff, 5
then, looked at regulations to get guidance on what it 6
should do, when it had sort of a very clear statement 7
from the Commission on what it expected.
8 MR. WACHUTKA: Yes, Your Honor. This is 9
definitely a unique situation. And so, this is a 10 situation, a first impression on the staff as well.
11 And so, they took the Commission's direction and they 12 tried to understand what it meant, in light of what 13 the Commission's policies are about how to deal with 14 contentions and to deal with them at the earliest 15 possible opportunity.
16 And so, this was the balance the staff 17 reached, was that, typically, we would do it at the 18 earliest possible stage, which in this case would be 19 the draft site-specific EIS. And then, after that, we 20 would follow our typical process, which is that, if 21 there is new information to be challenged in the final 22 draft of the site-specific EIS, then that would follow 23 the normal process of being able to be challenged 24 under the reopening standards, under the new and 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
36 amended contention standards. So, that was how the 1
staff foresaw this proceeding moving forward.
2 CHAIR KRAUSE: Thank you.
3 MR. WACHUTKA: And based on those 4
arguments, Your Honor, taken together, the staff 5
believes that the scope of this unique proceeding 6
means that Contentions 2, 3, and 5 are not within the 7
scope.
8 However, these contentions are, also, not 9
admissible for the same reasons that they were in the 10 Board's previous rulings in 2019. For example, in 11 Contention 2, the Petitioner argues that the benefits 12 of using cooling towers instead of the CCS should be 13 discussed. But the 2023 DSEIS states that the 2019 14 FSEIS already evaluated this issue and the staff had 15 identified no new and significant information that 16 would change that evaluation.
17 The Petitioner does not dispute this 18 finding of no new and significant information, but, 19 instead, challenges the 2019 FSEIS. And so, because 20 the new information in the 2023 DSEIS is not 21 challenged, there is no genuine dispute on which to 22 base an admissible contention.
23 In Contention 3, the Petitioner argues 24 that the effects of sea level rise and air temperature 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
37 increases should be discussed, but the 2023 DSEIS 1
states that the staff determined that the information 2
available since the 2019 FSEIS had not changed the 3
conclusions in the 2019 FSEIS.
4 Here, the Petitioner challenges this 5
determination by asserting that there is new 6
information regarding sea level rise that the staff 7
did not consider and provides this information.
8 However, the Petitioner does not explain how this 9
information also has to do with a material issue of 10 law or fact. That is, that this information could 11 lead to a different conclusion than the conclusion in 12 the 2019 FSEIS, especially given that the 2019 FSEIS 13 explains that its sea level rise estimates were 14 intentionally conservative and bounding.
15 Finally, in Contention 5, the Petitioner 16 specifically disputes a statement in the 2019 FSEIS, 17 explaining that the effects of climate change on 18 Turkey Point structures, systems, and components are 19 outside of the scope of NRC staff's license renewal 20 environmental review. This is not related to new 21 information in the 2023 DSEIS, and therefore, is not 22 within the scope of this proceeding.
23 Your Honor, with respect to Contention 1, 24 as discussed, this has to do with groundwater-related 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
38 impacts. First, as a general matter, both the 2019 1
FSEIS and the 2023 DSEIS extensively discuss the 2
impacts --
3 CHAIR KRAUSE: Your time has expired. If 4
you could just wrap up your argument?
5 MR. WACHUTKA: Yes, Your Honor.
6 So, Contention 1, even if it were within 7
the scope of the proceeding, does not make genuine 8
disputes with the information in the 2023 DSEIS. And 9
therefore, no contentions satisfy all the requirements 10 and the hearing request should be denied.
11 CHAIR KRAUSE: Okay. Thank you.
12 And any further questions, Judge Abreu?
13 JUDGE ABREU: None. Thank you.
14 CHAIR KRAUSE: Judge Kennedy?
15 JUDGE KENNEDY: I do not have any. Thank 16 you.
17 CHAIR KRAUSE: All right. Thank you, 18 Counsel.
19 Now, Counsel for FPL?
20 STATEMENT ON BEHALF OF APPLICANT FLORIDA 21 LIGHT & POWER 22 MR. LIGHTY: Thank you, Your Honors, and 23 may it please the Board.
24 I would like to start with a discussion of 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
39 scope, and then, turn to a few key issues related to 1
each of the contentions.
2 The Board asked the parties to discuss the 3
appropriate scope in light of the Commission's 4
decision in CLI 22-03, but we think the various 5
statements in that order are easily harmonized when 6
they're read in the proper context.
7 And before turning to the specific 8
analysis, I would like to start with an explanation of 9
FPL's view on how the whole process fits together.
10 First, this proceeding is limited to 11 contentions that challenge new information in the 2023 12 DSEIS.
13 Second, for topics that were analyzed on 14 a site-specific basis prior to the 2023 DSEIS, the 15 staff's conclusion that no significant new information 16 exists for those topics is, effectively, the only new 17 information subject to challenge here.
18 Third, to the extent Petitioner is seeking 19 to raise fewer challenges to prior site-specific 20 analyses, but failed to challenge the staff's 21 significance conclusion in the 2023 DSEIS, those 22 claims are out of scope.
23 And fourth, Petitioner previously had an 24 opportunity to challenge the staff's prior 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
40 environmental analyses on site-specific issues, and to 1
the extent Petitioner wants to refile its earlier 2
appeals on those issues, it may do so after the Board 3
rules on this petition, because the Commission 4
dismissed those appeals without prejudice.
5 So, turning first to the Commission-6 imposed limitation, The Federal Register Notice 7
defining the scope repeats the language from CLI 22-03 8
nearly verbatim. Both documents state that there is 9
a limitation and both define that limitation as 10 contentions based on new information.
11 So, Petitioner's claim in its reply at 12 pages 10, 29, and 45 that it had a clean slate to file 13 any contention at all, that's just not a defensible 14 construction of the order. Because, for that to be 15 true, one would need to ignore the plain language of 16 the Commission's order imposing the limitation in the 17 first place.
18 And second, Petitioner's original --
19 CHAIR KRAUSE: Wouldn't there be a fair 20 reading of the Commission's decision, though, that 21 this is a fresh start? The Commission tells the staff 22 to go back to the drawing board. It doesn't make any 23 sort of substantive decisions about what's already 24 presented in the 2019 SEIS as being good or bad. It 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
41 says it's inadequate; go back to the drawing board and 1
issue a new Notice of Opportunity for Hearing, which 2
is really signaling that we're starting fresh here, 3
and then, potentially, that the limitation on 4
discussing environmental issues is really signaling 5
that it's not going to go back into the safety issues 6
of this proceeding. Is that a fair reading?
7 MR. LIGHTY: I don't know why the 8
Commission, then, would use explicit language defining 9
the limitation the way that it did. It said 10 contentions based on new information in the 2023 11 DSEIS. And so, to just ignore any limit at all and 12 say we have a fresh start on any environmental 13 contention, I don't think that's a defensible reading 14 of the order because it doesn't give meaning to that 15 limitation language.
16 And I think it's important to understand 17 that the Petitioner's original contentions were not 18 dismissed without prejudice here, as it claims on page 19 9 of its reply. None of Petitioner's contentions were 20 pending when CLI 22-03 was issued. The admitted 21 contentions had been dismissed as moot; the remaining 22 proposed contentions had been resolved as 23 inadmissible, and the proceeding was terminated.
24 The only thing pending were two appeals.
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
42 Based on the text of the order, the only contentions 1
that were dismissed without prejudice were in the 2
Oconee proceeding. That's on page 43 of the published 3
order. And the Commission's use of the term refiled 4
contentions makes perfect sense in the context of 5
contentions that were dismissed without prejudice to 6
- refile, but that's not the case for Miami 7
Waterkeeper's contentions.
8 Keep in mind that CLI --
9 CHAIR KRAUSE: I have the same question 10 for you that I asked the staff: are we bound by the 11 Board's, the prior Board's contention admissibility 12 rulings?
13 MR. LIGHTY: Well, I think the scope of 14 the two proceedings are very different. And so, I'm 15 not sure where there would be an opportunity for a 16 conflict between the two proceedings.
17 The proceeding on the 2019, or rather, the 18 staff's analyses prior to the issuance of CLI 22-03 19 are part of the prior proceeding. And because this 20 proceeding is limited to new information in the 2023 21 DSEIS, there really isn't overlap between the two 22 scopes. And so, I'm not even sure that question comes 23 up here.
24 But
- again, just to reinforce the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
43 Commission's statement on page 43 of the published 1
decision, the dismissal without prejudice for Turkey 2
Point pertains only to motions, petitions, and 3
appeals, not contentions.
4 And that does bring us to another key 5
point.
6 CHAIR KRAUSE: So, the Board dismissed the 7
contentions. The Commission didn't, you know, weigh 8
in one way or the other what it thought about those 9
Board contention admissibility requirements. It's 10 because the appeals had been pending and it dismissed 11 them. So, how do you respond to that?
12 MR. LIGHTY: Yes, I think, as we were 13 discussing earlier, the Board's earlier rulings were 14 not vacated. When the Commission vacates Board 15 decisions, it does so expressly. And here, the 16 Commission's orders do not contain the word vacate.
17 So, except for the portions of those 18 orders that relied on application of the GEIS to SLR, 19 those orders remain effective. And because the 20 Commission dismissed the pending appeals without 21 prejudice, the Petitioners can refile those appeals 22 here.
23 So, tying all of that together, imposing 24 the Commission's express limitation doesn't deprive 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
44 the Petitioner of any hearing rights. Petitioner had 1
a full and fair opportunity to raise challenges to 2
environmental documents that existed prior to CLI 22-3 03 and its appeals related to those challenges may be 4
refiled.
5 And Petitioner had a full and fair 6
opportunity to challenge the staff's significant, new 7
information conclusions in the 2023 DSEIS. And 8
ultimately, Petitioner identifies no reason to 9
disregard the express limitation on this proceeding, 10 as specified in the plain text of CLI 22-03.
11 So, turning now to the contentions --
12 CHAIR KRAUSE: Before you return to your 13 argument, do you have any response to the questions 14 that we've posed to Miami Waterkeeper and the staff 15 about the timing of the Commission's Notice of 16 Opportunity for Hearing here, and, you know, the 17 argument that it was premature, because the 18 Commission's decision in CLI 22-03 contemplated it 19 coming after the environmental review was complete?
20 MR. LIGHTY: Well, I think the staff's 21 construction is reasonable. But I think, as a matter 22 of first principles, the scope of this proceeding does 23 not entail and doesn't confer jurisdiction on the 24 Board to examine the scope of the hearing notice. The 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
45 scope of the proceeding is defined by that hearing 1
notice and the Commission's referral memo, and the 2
referral memo did not confer jurisdiction on the Board 3
to consider the adequacy of the scope's Federal 4
Register notice or confer jurisdiction to reconsider 5
the Secretary's order on behalf of the Commission, 6
rejecting a challenge on that very basis. I just 7
don't think those issues are open for debate here in 8
this proceeding.
9 CHAIR KRAUSE: Relate for me, I guess, 10 contention issues being open for debate. I wanted to 11 take you into footnote 7 of FPL's answer, where FPL 12 mentions that it's not taking issue with Miami 13 Waterkeeper's standing based on proximity to the 14 plant, but it reserves the right to challenge the 15 traditional standing concepts in the future or in 16 other proceedings. And so, I just want to clarify, 17 does FPL contemplate raising that issue in this 18 proceeding?
19 MR. LIGHTY: Your Honor, where we think 20 that could come up is if the proceeding ends up in the 21 Federal Circuit Courts of Appeal and there is a claim 22 of standing based on traditional judicial concepts of 23 standing. We think the analysis would be different 24 because administrative standing, pursuant to the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
46 Commission's standing shortcut, is very different than 1
the standing you have to show in federal court.
2 CHAIR KRAUSE: All right. Thank you.
3 MR. LIGHTY: So, just very briefly in the 4
last few minutes that we have here, I would like to 5
talk about a few key issues that are raised in the 6
contentions. And I would note that the admissibility 7
determinations here do not turn on the scope issue, 8
because each contention is inadmissible for various 9
other reasons.
10 Turning to the groundwater contention, 11 Contention No. 1, Petitioner argues that the staff's 12 impact conclusion is wrong on three issues related to 13 groundwater. And its primary argument is that the 14 hypersaline plume causes environmental impacts. That 15 point is not in dispute here, but on those three 16 issues, the impact of the proposed action is not the 17 impact of the entire plume. It is the incremental 18 contribution from the CCS to that plume during the 19 renewal term.
20 And as noted on page 18 of our brief, the 21 2023 DSEIS makes clear that the staff has reviewed 22 actual data and concluded that, based on certain 23 assumptions, CCS operation during the SLR term is 24 unlikely to result in,
- quote, substantial 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
47 contributions to the hypersaline groundwater plume.
1 End quote. Petitioner doesn't acknowledge or 2
challenge that conclusion, and that is the conclusion 3
that exposes the pivotal flaw in Contention 1.
4 Now, it's important to acknowledge the 5
dual purpose of the recovery well system, or RWS, 6
here. That's a system of 10 pumps that form something 7
of a curtain along the CCS. And those pumps not only 8
retract the legacy hypersaline plume that exists west 9
of the CCS, but they also intercept the water beneath 10 the CCS itself and prevent it from entering the plume 11 to begin with.
12 It's crucial to distinguish retraction 13 versus interception. Petitioner's claims and the 14 reports submitted with its scoping comments only 15 purport to challenge the retraction efforts which 16 pertain to the legacy plume. They do not dispute the 17 ability of the RWS to intercept the CCS outflow, which 18 is the function relevant to evaluating impacts of the 19 proposed action.
20 And as noted in the year five report 21 attached to the petition itself, the RWS is highly 22 effective at interception and CCS water no longer 23 migrates into the compliance zone. And Petitioner 24 doesn't dispute that conclusion.
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48 And so, ultimately, Your Honor, nothing 1
about the Petitioner's conflation of legacy baseline 2
versus the impacts of the proposed action provides a 3
basis for an admissible contention.
4 Turning briefly to Contention 2 as well, 5
we did want to address the quantification argument 6
raised for the first time in the reply. In our 7
answer, we had noted that Petitioner's claim regarding 8
the cooling tower alternatives was far too vague for 9
an admissible contention. And in reply, Petitioner 10 doesn't rebut that assertion; it doesn't claim that 11 its petition, in fact, identified a requirement or 12 measured the existing analyses against that 13 requirement.
14
- Instead, Petitioner discloses the 15 allegedly unmet requirement for the first time.
16 Petitioner now claims that the relevant analyses were 17 required to quantify the impacts and benefits of the 18 alternative. But even that argument fails to satisfy 19 the contention admissibility requirements because, 20 although Petitioner cites some cases from the Ninth 21 Circuit -- which, by the way, are not controlling here 22
-- those cases merely suggest that NEPA may require 23 quantification under certain circumstances, but 24 Petitioner doesn't explain what those circumstances 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
49 are, and it doesn't compare those circumstances to 1
this license renewal proceeding.
2 To be clear, those cases do not say that 3
NEPA imposes a blanket requirement for quantified 4
analyses. NEPA merely requires a hard look, governed 5
by a rule of reason, and Petitioner fails to explain 6
why numerical analysis, or anything else, is required 7
to satisfy that rule of reason here. And so, 8
Contention 2 remains inadmissible.
9 Turning to Contention 3, we did want to 10 take just a moment to clarify a misunderstanding that 11 appears in the Petitioner's reply. Most of 12 Petitioner's reply on Contention 3 is aimed at arguing 13 that the NRC is required to consider cumulative 14 impacts of climate change, but that's not a disputed 15 issue here. The NRC clearly analyzed those impacts in 16 the 2019 FSEIS. The term climate change appears 210 17 times in that document, and no one disputes that that 18 analysis was required.
19 Petitioner simply appears to misunderstand 20 FPL's answer as to the additional climate change 21 analysis presented in Appendix E of the 2023 DSEIS.
22 And in that appendix, staff proactively addressed a 23 potential future requirement stated in a proposed 24 rule, under which climate change would be addressed as 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
50 a standalone issue, rather than analyzed as part of 1
the cumulative impacts analysis. And so, to the 2
extent Petitioner reads FPL's brief as claiming that 3
the NRC had no obligation to analyze climate change at 4
all, it simply misreads the pleading.
5 So, ultimately, the analysis of climate 6
change under the current framework analyzes this issue 7
to the full extent required by NEPA and Part 51. And 8
because the Petitioner fails to identify any 9
significant new information arose between 2019 and 10 2023, the contention is inadmissible.
11 And for all of those many reasons, Your 12 Honor, we would urge the Board to deny the petition.
13 CHAIR KRAUSE: All right. Thank you.
14 Any additional questions, Judge Abreu?
15 JUDGE ABREU: No.
16 CHAIR KRAUSE: Judge Kennedy?
17 JUDGE KENNEDY: I do not have any 18 additional questions. Thank you.
19 CHAIR KRAUSE: All right. Thank you, 20 Counsel.
21 All right. Counsel for Miami Waterkeeper, 22 you have 10 minutes.
23 REBUTTAL ON BEHALF OF MIAMI WATERKEEPER 24 MS. BILLS: Thank you, Your Honor.
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51 So, I'd like to return to the scoping 1
issue and just emphasize that we are not under the 2
impression that we can still challenge the 2019 EIS.
3 Instead, we're challenging the 2023 Draft EIS's 4
failure to remedy the flaws in the 2019 EIS, as 5
ordered by the Commission.
6 And just to clarify some of the back-and-7 forth about what dismissing all pending motions, 8
petitions, and appeals without prejudice in the 9
previous Commission order meant, we'll offer that, you 10 know, even though our original contentions weren't 11 explicitly dismissed without prejudice, we did appeal 12 them.
13 On August 9th, 2019, we appealed LBP 19-14 03, and then, LBP 19-06, and a couple of months later, 15 LBP 19-08. And so, when the Commission dismissed all 16 appeals without prejudice, it, effectively, decided 17 not to make a final determination on the merit and 18 explicitly contemplated that we would bring refiled 19 contentions.
20 So, you know, of course, the new Notice of 21 Hearing does, in fact, signal that we are starting 22 afresh and are able to bring new contentions, based on 23 differences between the 2023 EIS and the 2019 EIS, 24 which staff puts in question proactively by 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
52 continuously referring back to its inadequate analysis 1
in the 2019 EIS and relying on that, rather than 2
bringing the new analysis that it's mandated to bring.
3 So, there has also been some debate over 4
whether contentions are limited to new information and 5
the site-specific Environmental Impact Statement.
6 I'll just offer again, the Commission was making the 7
reasonable assumption that NRC staff would comply with 8
its order and add that new information, which we 9
could, then, contest. And I'll just reiterate that 10 staff and FPL do not contest that Contentions 1, 3, 11 and 5 fall within the scope of this proceeding.
12 So, as to the question about whether 13 Petitioner is required to provide new, significant, 14 and previously unavailable information, so this is 15 actually not the right standard here. That standard 16 applies as to initial determination of whether NRC 17 staff is required to conduct an SEIS. So, that is 18 10 CFR Section 51.72.
19 The Commission already, effectively, said 20 the standard is met, and in 2022, ordered staff to 21 conduct a new SEIS. So, this is not the standard that 22 we're expected to meet here. Nonetheless, as we 23 explain throughout our petition, we do provide new and 24 significant information on issues like sea level rise, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
53 rising temperatures, and the effectiveness of the 1
remediation effort that NRC staff failed to adequately 2
consider in its 2023 DSEIS.
3 And moving on briefly to Contentions 1 and 4
2, I think counsel for FPL brings up the really 5
important point that there are facts contested here.
6 There are a lot of different expert reports and this 7
is really complex.
8 So, if FPL has an alternative view of the 9
effectiveness of the remediation efforts, that's 10 exactly why we want a public hearing to fully examine 11 these issues, to bring in all of our experts and 12 really hash this out. Clearly, there are genuine 13 issues of material fact at issue.
14 And, you know, as to kind of like the 15 scope of why NRC staff is required to consider in 16 terms of the scope of the impacts, I would argue that 17 FPL can't just write off its legacy pollution as no 18 longer relevant to the impacts. I think it needs to 19 consider how continued use of the CCS, including 20 through its freshening efforts, exacerbates the 21 existing plume and further pushes down that salty 22 water into the aquifer, as compared to what would 23 happen if we simply stopped using the CCS as a heat 24 sink.
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54 And just to reply to something FPL said, 1
we do impact challenge the conclusion about how big 2
the impact will be. We believe that there is a 3
significant and large effect on groundwater. And 4
whether or not NEPA requires specific calculations, 5
which we believe it does, it certainly requires 6
considering key peer-reviewed reports central to the 7
issue at hand and requires taking a hard look at these 8
issues.
9 On to Contention 3, FPL referred in its 10 answer to the some of the analysis that NRC staff 11 included as voluntary, but it's not. The proposed 12 rule from March 2023, although not in effect yet, it 13 was specifically designed to implement the 14 Commission's order. So, it's just kind of fleshing 15 out what the Commission has already ordered for NRC 16 staff to do.
17 You know, FPL also suggests that, because 18 NRC staff has mentioned the term climate change in 19 parts of its 2023 EIS, that it's taken a hard look, 20 but we lay out in detail in our petition and in our 21 reply why this doesn't constitute adequate analysis.
22 A
cursory description of generic 23 environmental impacts of sea level rise, that it might 24 cause on a global or national scale, with no mention 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
55 of the facts specific to Turkey Point during the 1
subsequent license renewal, simply does not constitute 2
the hard site-specific look that the Commission 3
specifically ordered NRC staff to conduct.
4 I will just also offer, I think it's 5
really important to remember that taking a hard look 6
at the cooling tower has been a requirement of the 7
operating license of FPL since 1972, right? This is 8
a condition found both in the 1972 permit and again in 9
the 1992 permit. It was issued conditionally on the 10 term that FPL would study the impacts of the CCS and 11 explore a cooling tower alternative to achieve minimal 12 adverse environmental effects.
13 So, again, while NEPA is a procedural 14 statute, at the very least, FPL and NRC are required 15 to take a hard look at these issues.
16 I'd like to open it up now in case you all 17 have any final questions for me.
18 CHAIR KRAUSE: All right. My questions 19 have been answered. Judge Abreu?
20 JUDGE ABREU: I have no more questions.
21 JUDGE KENNEDY: No, and thank you. I have 22 no other questions.
23 MS. BILLS: I'm so grateful for your time 24 and consideration. Thank you.
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56 CHAIR KRAUSE: Thank you. All right.
1 I'll turn to the closing. Thank you, Counsel, for 2
your oral presentations today. We'll consider them in 3
making our decision on the hearing request.
4 I would like to thank our law clerk, Emily 5
Newman, and thank, also, Noel Johnson for providing 6
additional assistance.
7 Many thanks to Andy Welkie, our IT 8
Specialist, and Twana Ellis, our Program Analyst, for 9
their technical and administrative support. Thanks, 10 also, to Sara Culler for ensuring that the Board could 11 gather here in person today. And finally, thank you 12 to our court reporter, Charles Morrison.
13 Counsel, please stay on the line to answer 14 any clarifying questions from our court reporter.
15 Again, the transcript of today's oral 16 argument should be available in the NRC's electronic 17 hearing docket next week. We are adjourned.
18 (Whereupon, the above-entitled matter went 19 off the record at 2:11 p.m.)
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