ML24204A039
| ML24204A039 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 07/22/2024 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| ASLBP 24-981-01-SLR-BD01, RAS 57058, 50-250-SLR-2, 50-251-SLR-2, NRC-2920 | |
| Download: ML24204A039 (0) | |
Text
Official Transcript of Proceedings
NUCLEAR REGULATORY COMMISSION
Title:
Turkey Point Nuclear Generating Units 3&4
Docket Number: 50-250-SLR-2 and 50-251-SLR-2
ASLBP Number: 24-981-01-SLR-BD01
Location: Rockville, Maryland
Date: Wednesday, July 17, 2024
Work Order No.: NRC-2920 Pages57-122
NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1716 14th Street, N.W.
Washington, D.C. 20009 (202) 234-4433 57
1 UNITED STATES OF AMERICA
2 NUCLEAR REGULATORY COMMISSION
3 + + + + +
4 ATOMIC SAFETY AND LICENSING BOARD PANEL
5 + + + + +
6 ORAL ARGUMENT
7 --------------------------x
8 In the Matter of: : Docket No.
9 FLORIDA POWER & LIGHT : 50-250-SLR-2
10 COMPANY : 50-251-SLR-2
11 : ASLBP No.
12 (Turkey Point Nuclear : 24-981-01-SLR-BD01
13 Generating Units 3 and 4) :
14 --------------------------x
15 Wednesday, July 17, 2024
16
17 Hearing Room T3 D50
18 Two White Flint North
19 11555 Rockville Pike
20 Rockville, Maryland
21
22 BEFORE:
23 EMILY I. KRAUSE, Chair
24 DR. SUE H. ABREU, Administrative Judge
25 DR. MICHAEL F. KENNEDY, Administrative Judge
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 58
1 APPEARANCES:
2 On Behalf of Miami Waterkeeper:
3 CAMERON BILLS, ESQ.
4 of: Miami Waterkeeper
5 PO Box 141596
6 Coral Gables, FL 33114-1596
7 (305) 905-0856
8 cameron@miamiwaterkeeper.org
9
10 RICHARD WEBSTER, ESQ.
11 of: Law Office of Richard Webster
12 133 Wildwood Avenue
13 Montclair, NJ 07043
14 (202)-630-5708
15 rwebster463@gmail.com
16
17
18 On Behalf of Florida Power and Light Company:
19 RYAN K. LIGHTY, ESQ.
20 of: Morgan, Lewis & Bockius, LLC
21 1111 Pennsylvania Ave NW
22 Washington, DC 20004
23 ryan.lighty@morganlewis.com
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 59
1 STEVEN HAMRICK, ESQ.
2 of: Florida Power and Light Company
3 801 Pennsylvania Avenue, N.W.
4 Suite 220
5 Washington, D.C. 20004
6 (202) 349-3496
7 steven.hamrick@fpl.com
8
9 On Behalf of the Nuclear Regulatory
10 Commission:
11 JEREMY L. WACHUTKA, ESQ.
12 KEVIN D. BERNSTEIN, ESQ.
13 of: Office of the General Counsel
14 Mail Stop - O-14A44
15 U.S. Nuclear Regulatory Commission
16 Washington, D.C. 20555-0001
17 301-287-9194
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 60
1 P-R-O-C-E-E-D-I-N-G-S
2 8:59 a.m.
3 CHAIR KRAUSE: Good morning. Today we're
4 hearing our second oral argument in the subsequent
5 license renewal proceeding for Turkey Point Nuclear
6 Generating Units 3 and 4, Docket Nos. 50-250-SLR-2 and
7 50-251-SLR-2. My name is Emily Krause. I'm a legal
8 judge and the chair of this board.
9 With me on the bench are Judge Sue Abreu,
10 an engineering and nuclear medicine physician who is
11 also an attorney, and Judge Mike Kennedy who has a PhD
12 in nuclear engineering. I have a few administrative
13 announcements before we begin. We've made a telephone
14 line available for members of the public to access
15 this proceeding.
16 Because this is a listen only line, we ask
17 counsel to please identify yourselves before speaking.
18 We have a court reporter here with us today. This
19 proceeding is being transcribed and a transcript
20 should be available in the NRC's electronic hearing
21 docket sometime next week.
22 Also, we ask that if counsel wish to have
23 an off the record conversation with co-counsel or
24 experts that you please remember to push the mute
25 button on the microphone before speaking. The light
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 61
1 on the base of the microphone if lit indicates that
2 the microphone is on. Lastly, I'll briefly describe
3 the timing system we are using for today's argument.
4 During their arguments, counsel will first
5 see a green slide. When three minutes remain, counsel
6 will see a yellow slide that will count out each
7 minute until the allotted time expires. At that
8 point, the slide will turn red and will display time
9 expired.
10 We will then ask counsel to wrap up their
11 arguments. But we will allow time as needed to answer
12 board questions. With our administrative matters out
13 of the way, I'll move on to a brief summary of the
14 history of this proceeding.
15 This licensing board was established to
16 rule on a hearing request filed by Miami Waterkeeper
17 that proposed five contentions challenging the staff's
18 2023 draft supplemental environmental impact statement
19 which we'll refer to today as the draft SEIS or DSEIS.
20 We admitted a narrowed portion of one contention
21 pertaining to the staff's discussion of groundwater
22 quality impacts. On March 29, 2024, the staff
23 published the final supplemental environmental impact
24 statement which we'll refer to today as the final SEIS
25 or FSEIS.
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 62
1 In the final SEIS, the staff revised its
2 discussion of groundwater quality impacts. And in
3 light of that revised discussion, the parties jointly
4 filed a motion to dismiss the admitted contention as
5 moot. We granted that motion on May 9th.
6 Pending before us today is Miami
7 Waterkeeper's motion to admit new and amended
8 contentions challenging the staff's final SEIS. Miami
9 Waterkeeper has proposed six contentions numbered 1A,
10 1B, 1C, 2, 3A, and 3B. FPL and the staff oppose Miami
11 Waterkeeper's motion and argue that none of the
12 proposed contentions are admissible. The purpose of
13 today's pre-hearing conference is to ensure the board
14 understands the arguments in the parties' written
15 filings.
16 I will note that we received FPL's motion
17 to strike portions of Miami Waterkeeper's reply and
18 Miami Waterkeeper's response to that motion. We will
19 not be ruling on the motion today. But to the extent
20 the parties wish to discuss it during their allotted
21 time, they are free to do so. The board will hear
22 argument first from Miami Waterkeeper, then the NRC
23 staff, and then FPL.
24 Miami Waterkeeper will have 30 minutes and
25 may reserve up to 10 minutes of that time for
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 63
1 rebuttal. The staff and FPL will have 20 minutes
2 each. Counsel for Miami Waterkeeper, would you please
3 introduce yourselves?
4 MS. BILLS: Hi, I'm Cameron Bills.
5 MR. WEBSTER: Hello, Richard Webster.
6 CHAIR KRAUSE: Thank you. Counsel for the
7 staff?
8 MR. WACHUTKA: Good morning, Your Honors.
9 I'm Jeremy Wachutka representing the NRC staff, and
10 I'm joined by co-counsel, Kevin Bernstein.
11 CHAIR KRAUSE: Thank you. FPL?
12 MR. LIGHTY: Good morning, Your Honors.
13 Ryan Lighty with Morgan, Lewis & Bockius appearing on
14 behalf of Florida Power and Light Company. And I am
15 joined today by Steven Hamrick from FPL.
16 CHAIR KRAUSE: Thank you. Counsel for
17 Miami Waterkeeper, would you like to reserve any time
18 for rebuttal?
19 MS. BILLS: Yes, we'd like to reserve 10
20 minutes.
21 CHAIR KRAUSE: Okay, great. Very well.
22 You have 20 minutes for argument with 10 minutes for
23 rebuttal. You may begin.
24 MS. BILLS: Good morning. May it please
25 the board. My name is Cameron, and I'm representing
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 64
1 Miami Waterkeeper. I'm here today on behalf of my
2 South Florida community, not to advocate for a
3 particular energy policy but to ensure that our
4 community has clean water for generations to come,
5 remains safe, and is prepared for climate change.
6 Much is at stake for us in this
7 proceeding. The Turkey Point plant's outdated cooling
8 technology already poses a serious threat to our
9 drinking water. For decades, the cooling system has
10 been leaking polluted water containing both salt and
11 tritium into the Biscayne aquifer where it is spread
12 for miles.
13 If the license extension is granted, FPL
14 will discharge tens of billions of gallons of
15 nonpotable water into the drinking aquifer that four
16 million residents rely on. And that provides habitat
17 for our Miami cave crayfish. Furthermore, the aging
18 Turkey Point plant is uniquely vulnerable to climate
19 change.
20 Members of Congress share our concern.
21 They commissioned a recently released report that
22 identifies Turkey Point as one of the most vulnerable
23 plants in the country to climate change. So before
24 relicensing this plant to operate into the 2050s as
25 climate conditions worsen, NRC staff must thoroughly
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 65
1 consider the impacts on our drinking water in our
2 environment.
3 NEPA and the ESA require it to do so. At
4 the admissibility stage, Miami Waterkeeper is not
5 required to prove its contentions. We need only
6 provide enough information to prompt a reasonable mind
7 to inquire further about its validity.
8 And we have certainly met that burden.
9 We've demonstrated good cause and met the
10 admissibility criteria for each of our contentions.
11 With that being said, I will address the substance of
12 our contentions and turn and answer your questions as
13 best I can.
14 Contentions 1A, 1B, and 1C all satisfy the
15 good cause standard, that the motion to amend is
16 timely is not disputed and the 2024 FSEIS contains new
17 and materially different information. So it includes
18 a new explanation about the predictions regarding the
19 hypersaline plume that was not available to us in the
20 2023 DSEIS. And so this analysis is open to
21 challenge.
22 If the groundwater analysis was sufficient
23 to moot out our prior contention of omission, then it
24 certainly is materially different, the prior analysis.
25 And there's precedent. Boards have consistently found
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 66
1 good cause under these procedural circumstances.
2 So earlier in this case, Turkey Point 90
3 NRC at 146 and in Tennessee Valley Authority at 88 NRC
4 55, good cause is clearly demonstrated here. We'll
5 also note the Contention 1C is based in part on
6 critical tritium data that was not publicly available
7 until April 29, 2024 when we received it from the
8 country. And this data --
9 CHAIR KRAUSE: Counsel, could I ask you
10 actually a question about Contention 1A before you get
11 into Contention 1C? I just want to make sure that I
12 fully understand your position in Contention 1A. And
13 I guess as I understand it, your contending in that
14 issue that the staff has updated its -- because it has
15 updated its groundwater quality impacts analysis that
16 that constituted new and significant information that
17 should've been incorporated into their discussion of
18 the no action alternative. Is that correct?
19 MS. BILLS: That is correct. That's part
20 of our position. But we also argue that new
21 information has come to light that's rendered the
22 previous no action alternative analysis even more
23 inadequate that it previously was.
24 CHAIR KRAUSE: So there is still
25 information that wasn't considered in the groundwater
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 67
1 quality impact analysis that also should be considered
2 in the no action alternative?
3 MS. BILLS: That is correct.
4 CHAIR KRAUSE: And then could you explain
5 your use of the word, baseline, in that contention to
6 make sure I understand how that relates to the no
7 action alternative?
8 MS. BILLS: Yes, Judge Krause. So in our
9 briefs, we use the terms no action alternative in
10 baseline as synonyms. But just to clarify, baseline
11 is not clearly defined in the regulations, but no
12 action alternative is.
13 It means what would happen if the license
14 renewal was not granted and FPL ceased to use the CCS
15 as a heat sink. So that's what we mean as well when
16 we say baseline. And the distinction between the
17 works, we believe that's actually not material to our
18 contention.
19 CHAIR KRAUSE: Thank you.
20 MS. BILLS: So moving on to some of the
21 substance of Contention 1A, so the EIS fails to
22 adequately analyze the groundwater conditions for the
23 no action alternative. And this requirement to
24 analyze this which is key to understanding the full
25 scope and the full extent of the impacts that will
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 68
1 occur as a firm NRC precedent. Turkey Point at 82 NRC
2 389 and the D.C. Circuit has specifically recognized
3 that NRC is required to analyze baseline data,
4 including hydrological data.
5 That's Oglala Sioux Tribe 45 F.4th 291.
6 And so NRC staff's reliance the incorrect baseline
7 resulted in the erroneous determination of the impacts
8 on groundwater quality will be small to moderate.
9 Relatedly, Contention 1B, we demonstrate that the EIS
10 inappropriately used the standard for hypersalinity
11 rather than potability in reaching its conclusion that
12 is renewable, not destabilize important attributes of
13 the drinking aquifer.
14 But as we know also water, whether it's
15 hypersaline or saline, pollutes the fresh aquifer that
16 we rely on. So staff is ignoring the much larger
17 volume of saltwater that's migrating from the CCS into
18 groundwater. And to be clear, that is anywhere
19 between 4 to 9 million gallons of saltwater per day
20 into the groundwater which equates to 29.2 to 65.7
21 billion gallons of nonpotable saltwater entering our
22 aquifer during the license renewal term.
23 And this volume has not been accounted for
24 in the EIS' groundwater impact determination. And the
25 staff is effectively using the hypersaline standard
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 69
1 which is 19,000 milligrams per liter of chloride which
2 is nearly four times greater than the most lenient
3 state potability metric which is 5,500 and over 38
4 times the county metric which is 250. So this
5 methodological flaw is key and has led NRC staff to
6 severely underestimate the impacts to groundwater.
7 And instead, they need to look to whether
8 the license renewal will render potable portions of
9 our aquifer nonpotable. And this would mean that
10 they're destabilizing an important attribute. So
11 Contention 1C effectively explains that if NRC staff
12 were to conduct a full analysis, including looking at
13 the impacts of freshening efforts, it might find that
14 the impacts were large, that they were destabilizing
15 our aquifer.
16 So as we explained in our brief, in order
17 to counteract the hypersalinity caused by using the
18 CCS as a heat sink and pouring constantly very hot
19 water into the CCS and meeting the 34 psu salinity
20 threshold that it's required to meet by the consent
21 decree, FPL undertakes freshening efforts. So it adds
22 up to 30 million gallons per day of brackish water
23 from the upper Floridian aquifer to try to flush out
24 the salt. But that water, that salty water enters the
25 groundwater which effectively increases the rate at
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 70
1 which this saltwater is heading towards drinking water
2 while it's in the area.
3 So even if the recovery well system works
4 as designed which we raise serious questions about,
5 there will still be a net addition of salt to the
6 Biscayne aquifer from the CCS. So effectively to
7 solve one problem, FPL is exacerbating another.
8 They're trying to address the hypersaline plume, but
9 they're pushing that saltwater further westward.
10 And so CCS water has spread beyond the
11 hypersaline plume. And while staff acknowledges that
12 the CCS operation is contributing to inland movement
13 of saltwater, it does not adequately address the
14 severity of this problem. And so this affects not
15 only the drinking water of residents but also whether
16 our endemic Miami cave crayfish found only in the
17 region can survive in the future.
18 And so NRC staff concedes that Contention
19 2 satisfies the good cause standard. And we also need
20 the other admissibility criteria. Effectively, the
21 EIS is now --
22 JUDGE KENNEDY: Sorry. Are you moving on
23 to Contention 2?
24 MS. BILLS: That's correct.
25 JUDGE KENNEDY: Can we drop back to --
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 71
1 I'll say 1B and 1C?
2 MS. BILLS: Absolutely.
3 JUDGE KENNEDY: I am a bit confused. The
4 discussion on hypersaline as a standard versus a
5 drinking water standard and how that relates to the
6 amount of water that's leaving the CCS, why the
7 standard -- I'm really trying to figure out why the
8 definition of the standard has an impact on how much
9 water leaves the CCS.
10 MS. BILLS: So I wouldn't say the -- I
11 would say that because NRC staff is only considering
12 this hypersaline water, they're not looking at water
13 that's under the hypersaline limit but it's still
14 quite salty. So they're not looking -- they're
15 looking at a much smaller volume of hypersaline water
16 but ignoring all this water that is still not potable
17 and it's spreading and affecting the potability of our
18 drinking aquifer. Does that answer your question?
19 JUDGE KENNEDY: That's helpful. I guess
20 what I'm curious about is your filings. Do you have
21 any support for the assertion that this lower saline
22 water is leaving the CCS?
23 I mean, the standard that FPL and the
24 staff has been relying on is this 34 psu limit within
25 the CCS. And you're implying that there is a
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 72
1 different level of salt in the saltwater in the CCS
2 that's not being accounted for by either the FPL or
3 the staff. Let's say the staff. Is that what you're
4 saying? And if that's what you're saying, do you have
5 any support that this different level of saltwater
6 exists within the CCS?
7 MS. BILLS: Yes, Your Honor. So not only
8 does it exist within the CCS but it's spreading beyond
9 the boundaries of the hypersaline plume. Effectively,
10 it's getting pushed westward.
11 And our key evidence for that is tritium
12 data that we received from the county on April 29th of
13 this year. That shows tritium at a level over the
14 baseline, so a level that all parties agree is a solid
15 tracer, an effective tracer for CCS water. And we're
16 seeing it close to the Newton wellfield, far beyond
17 the boundary of Turkey Point and the hypersaline
18 plume.
19 JUDGE KENNEDY: I guess that's where I get
20 confused. So you're using the tritium marker as an
21 indicator that there is a higher magnitude of -- or
22 higher volume of water leaving the CCS than is being
23 accounted for?
24 MS. BILLS: Yes. So saltwater could come
25 either from the CCS or from the bay. And so in order
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 73
1 to know whether that water is bay water or CCS water,
2 tritium is a great trace because the CCS was the only
3 source of that higher level of tritium. So if we see
4 water with a certain level of tritium, we know that it
5 originated from the CCS.
6 JUDGE KENNEDY: I think I'm hyper fixated
7 on this -- the discussion of the standard as opposed
8 to the magnitude of the volume of water leaving the
9 CCS because the tritium will come out with the
10 hypersaline water as well as any other lower saline
11 solution of water. I guess that's a question.
12 MS. BILLS: Yes, Your Honor.
13 JUDGE KENNEDY: Wouldn't that be true?
14 MS. BILLS: Let me see if my colleague
15 who's a hydrologist knows anything about it.
16 MR. WEBSTER: Okay. I'm a recovering
17 hydrologist I should say. So it's been a while. But
18 I think, Your Honor, the important thing is there's an
19 actual change in volume.
20 Obviously, the standard doesn't change the
21 actual physical situation. The standard changes is
22 how you look at the physical situation. I mean, if
23 you only look at extremely saline water, you see a
24 rather myopic view of what's happening in the aquifer.
25 And as a result of that, the staff -- and
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 74
1 if you all haven't looked at the more distant impacts
2 where the water is no longer hypersaline, rather it's
3 merely saline. And so what we're saying is that those
4 further impacts which are probably a combination of
5 less salty water leaves the CCS in the first place and
6 diluted hypersaline water get further than is
7 predicted in the FSEIS. And therefore, the FSEIS
8 analysis is inadequate because it doesn't take account
9 of those impacts.
10 JUDGE KENNEDY: Yeah, I guess that's a
11 better -- that helps. I guess there's a statement
12 within the original petition that sort of stopped me.
13 And so I've been focusing on this -- I'll call it the
14 additional volume of water that in my mind the
15 petition asserts that the staff is not accounting for.
16 It says none of the post freshening CCS
17 water between 5,500 milligrams per liter and 19,000
18 milligrams per liter is accounted for in the staff's
19 analysis. That implies to me that you're asserting
20 that there's additional volume of water leaving the
21 CCS that the staff is not accounting for. And I guess
22 I'm asking is that what you're saying here?
23 MS. BILLS: Yes, that's correct, Judge
24 Kennedy. So NRC staff has not accounted for the
25 effects of its freshening efforts. So in order to
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 75
1 meet this standard of 34 psu, make sure that the water
2 in the CCS doesn't get too salty, they basically put
3 brackish, so kind of salty water into the CCS. And
4 that then pushes this large volume of water that may
5 not all be hypersaline but is still not potable out
6 and westward.
7 JUDGE KENNEDY: Yeah, I guess that's where
8 I get confused because I'm blindly thinking. I know
9 this cooling analysis is very large. And the idea of
10 trying to live to a standard of 34 psu for large
11 volume of water, are you saying that the standard
12 doesn't cover the full extent of saltwater within the
13 CCS?
14 MS. BILLS: So based on the hypersaline
15 standard, it doesn't. And to be clear, this isn't an
16 NRC -- oh, I'm sorry. Am I not answering your
17 question?
18 JUDGE KENNEDY: You are, but we're back to
19 the standard again.
20 MS. BILLS: Okay.
21 JUDGE KENNEDY: I mean, I guess -- and
22 maybe we'll go back to the hydrologist.
23 MR. WEBSTER: Yeah, let me try. So as I
24 said, I think there's two things going on. One is
25 that there is the freshening water is not hypersaline
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 76
1 when it leaves the CCS. So therefore, you have some
2 water that's not accounted for that's actually leaving
3 the CCS that is not looked at by the staff.
4 And then you have dilution of the
5 hypersaline water. And so that means that beyond the
6 threshold where you say, okay, it goes from
7 hypersaline to saline which is what the staff has
8 looked at, there's then another further level of
9 impact where your water is nonetheless contributed to
10 salinity in a freshwater aquifer. And that has
11 impacts which haven't been accounted for in the EIS.
12 JUDGE KENNEDY: I gotcha. Okay. So I
13 think I'm -- it's helpful. But I guess what I'm
14 really trying to get at here is, do you have any
15 support for the fact that there is, I guess, volumes
16 of water that the staff is not accounting for other
17 than -- it sounds like sort of a hypothesis?
18 MR. WEBSTER: Well, I mean, we provide it.
19 I mean, I think we provided an expert report which
20 analyzes how the system works and makes some
21 predictions about what you would find. And one of
22 those predictions is that you would find tritiated
23 water in the far wellfields.
24 And indeed, we do find tritiated water in
25 the far wellfields. So that provides some
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 77
1 confirmatory data to suggest that our expert is
2 getting it right. And so we believe that.
3 We don't try to prove, this stage is the
4 contention admissibility stage, right? So we're not
5 trying to prove that's true. We're just showing
6 there's enough for a material dispute, and I think
7 that provides our basis.
8 MS. BILLS: And I'll just add to that
9 offer that all parties agree that at least four
10 million gallons per day is leaving the CCS. And our
11 expert thinks it's as high as nine. So there's some
12 disagreement about the volume, but everyone agrees
13 it's a high volume of water leaving the CCS.
14 JUDGE KENNEDY: And yet we don't know
15 whether that's hypersaline or a lower saline level.
16 I mean, there's no real data that says that there's
17 this other volume of water that's unaccounted for or
18 is there?
19 MS. BILLS: The tritium data does show
20 that because that water is both salty and has tritium.
21 And so it shows that there's water that's not
22 hypersaline but it's from the CCS. And it's traveling
23 very far.
24 JUDGE KENNEDY: Are you suggesting the
25 staff has not acknowledged the level of tritium in the
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 78
1 monitoring wells?
2 MR. WEBSTER: Well, let me just say that
3 I think whether or not there's additional water
4 leaving which we believe there is, there's nonetheless
5 this impact to the far field which is not accounted
6 for in the FSEIS.
7 JUDGE KENNEDY: So you're pointing to the
8 tritium data and suggesting that the staff is ignoring
9 the tritium data in their analysis?
10 MR. WEBSTER: Correct.
11 JUDGE KENNEDY: Okay. Thank you. That's
12 helpful.
13 MS. BILLS: If there are no further
14 questions regarding Contention 1, I'll move on to
15 Contention 2. So NRC staff concedes that Contention
16 2 satisfies the good cause standard. And there's a
17 similar issue here which is that the EIS is
18 repurposing the analysis of the hypersaline plume to
19 predict the effects on crayfish. But while the
20 hypersalinity standard is 34 psu, crayfish are
21 incredibly sensitive to saltwater at any amount above
22 freshwater conditions. So --
23 CHAIR KRAUSE: Counsel, before your time
24 expires, I do have a question on Contention 2. And so
25 in Contention 2, it seems you challenge the staff's
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 79
1 satisfaction of its NEPA requirements, the National
2 Environmental Policy Act, the satisfaction of the
3 Endangered Species Act. As we know, a rule of reason
4 applies to analysis under the National Environmental
5 Policy Act. Is there a similar standard that we would
6 apply in a contention challenging the compliance with
7 the Endangered Species Act?
8 MS. BILLS: Your Honor, I think I would
9 need to brief that further for you. But our key
10 argument is that the conclusion that NRC staff doesn't
11 need to confer with Fish & Wildlife Service is
12 erroneous because it's based on this faulty analysis
13 that there won't be a serious impact to the crayfish.
14 CHAIR KRAUSE: Thank you. You think you
15 might be able to address it in your rebuttal?
16 MS. BILLS: Yes, Your Honor. Because I'm
17 running short on time, I just want to open it up to
18 any further questions, including on Contentions 3A and
19 3B.
20 JUDGE ABREU: This is Judge Abreu. Back
21 on 2, just in simple terms, why do you believe that
22 the operation of Turkey Point will significantly
23 worsen the conditions from where they are now which
24 based on the information provided shows that there is
25 already salinity in the area that the Miami cave
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 80
1 crayfish is endemic? What leads you to believe that
2 it's uniquely Turkey Point that will make that worse?
3 MS. BILLS: Yeah, so you bring up a great
4 point which is that saltwater intrusion is also
5 occurring due to sea level rise. And we do not
6 dispute that. But under NEPA, NRC staff needs to
7 analyze the cumulative effects of how between sea
8 level rise and this CCS outflow of saltwater which our
9 expert shows is actually pushing the salt westward,
10 how those two things will interact and affect the
11 crayfish.
12 JUDGE ABREU: So you're not saying you are
13 certain that the operation of Turkey Point will do it.
14 But you are concerned that it might. Is that fair?
15 MS. BILLS: Yeah, so we believe that NRC
16 staff hasn't met its NEPA burden of doing a fulsome
17 analysis. We think that -- we don't actually have a
18 good understanding of what the impacts will be because
19 NRC staff has been solely focused on hypersaline plume
20 and not acknowledging the sensitivity of these
21 crayfish. So we're asking them to go back and do an
22 analysis. We think that it's likely that they would
23 find some serious impacts if they did that.
24 JUDGE ABREU: Thank you.
25 CHAIR KRAUSE: I don't have any further
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 81
1 questions. Do you?
2 JUDGE KENNEDY: This is Judge Kennedy. I
3 apologize for not introducing myself before. I have
4 a question for the staff. We just heard discussion
5 from Miami Waterkeeper about the tritium data. And I
6 guess I'd like to give you a chance to state your
7 position on whether the staff considered the tritium
8 data in their analysis of groundwater impacts.
9 MR. WACHUTKA: Yes, Your Honor. There's
10 a couple reasons why the NRC staff believes that this
11 does not support an admissible contention. First of
12 all, the new basis of tritium levels in a monitoring
13 well, the petitioner concedes in its pleading that
14 this is, quote, for the period of 2016 through 2023,
15 end quote, and was obtained, quote, on April 29, 2024
16 by request, end quote.
17 And petitioner provides no explanation for
18 why similar data could not have been timely obtained
19 and used during the 2023 hearing opportunity. And for
20 that reason, this argument should've been brought if
21 it would've been timely brought during the 2023
22 hearing opportunity and it wasn't. And there's no
23 good cause now.
24 Otherwise, when we get to the substance of
25 this, the interveners only point to persistent tritium
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 82
1 levels in a monitoring well. However, this actually
2 agrees with the staff's environmental review which
3 explained that although salinity is being retracted
4 overall, there are still areas of slight expansion.
5 Moreover, petitioner's argument does not dispute the
6 relevant question of whether salinity will expand
7 because of Turkey Point operations during the years
8 2032 to 2053.
9 And so the question is here the NRC staff
10 has taken a reasonable look at all the available data.
11 And the available data show overall that salinity is
12 retracting. And also, there's a presumption of
13 administrative regularity that the local and state
14 regulators will continue to enforce their regulations
15 and ensure that salinity retracts.
16 And so taken together, the NRC staff's
17 position is that if anything during the continued
18 operations, salinity will not expand because of
19 operations. And if salinity doesn't expand, then
20 salinity can't affect either of these things that
21 we're talking about here which is potable groundwater
22 users or the Miami cave crayfish. And the petitioners
23 have shown no other contrary factual support other
24 than the theory that doesn't take into account any of
25 this data.
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 83
1 So that's why the NRC staff -- basically,
2 the question is, is salinity going to change because
3 of the continued operations of Turkey Point and
4 presumption of administrative regulatory? And all the
5 data show that it's not. So that's how the staff
6 reached its conclusion.
7 JUDGE KENNEDY: All right. Thank you. I
8 appreciate it.
9 CHAIR KRAUSE: Since Miami Waterkeeper,
10 your time has expired, we'll hear from you again on
11 rebuttal. Staff, you have 20 minutes. Please begin.
12 MR. WACHUTKA: May it please the board.
13 My name is Jeremy Wachutka, and I along with co-
14 counsel, Kevin Bernstein, am representing the NRC
15 staff position that the board should deny petitioner
16 Miami Waterkeeper's motion to admit amended and new
17 contentions and request for waiver. I'm going to skip
18 forward to amended Contention 1C since that seems to
19 be where all the questions are coming from. And at
20 its core, this contention presents the theory
21 supported by the declaration of Dr. Nuttle that the
22 required remediation activities of freshening the CCS
23 and withdrawn groundwater from the Biscayne aquifer
24 will somehow expand rather than retract salinity in
25 the aquifer and therefore impact potable water users.
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 84
1 But this theory repeats arguments made
2 previously. For example, in the 2023 hearing request,
3 petitioner stated that this same remediation, quote,
4 pushes contamination from the CCS into the
5 groundwater, reducing the amount of freshwater
6 available to users in South Florida, thereby
7 exacerbating groundwater use conflicts, end quote.
8 Additionally, petitioners supported its 2023 hearing
9 request with previous declarations of Dr. Nuttle,
10 making similar arguments from 2018 and 2019. The
11 board should not now entertain this theory again
12 because petitioner has not identified any new and
13 significant information to justify bringing it again.
14 CHAIR KRAUSE: Counsel, on that note, in
15 Miami Waterkeeper's reply, they raise what I interpret
16 as sort of a fairness argument that because we had
17 admitted a portion of original Contention 1
18 challenging the staff's discussion of groundwater
19 quality impacts and we dismissed that as moot in view
20 of the revised analysis, shouldn't they be allowed to
21 challenge it now and shouldn't that indicate that
22 their contention is now timely?
23 MR. WACHUTKA: Your Honor, the NRC staff
24 sees these as two separate issues. So what changed
25 between the 2023 DSEIS and the 2024 FSEIS was a
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 85
1 discussion in Section 2.8.3 which has to do with
2 groundwater quality. And then if you look at these
3 new contentions in amended Contention 1, what is being
4 discussed there is the impacts of the potable water
5 users.
6 And that's covered in the NRC staff's 2023
7 DSEIS and 2024 FSEIS in Section 2.8.2. And that
8 section remains substantively unchanged from 2023 to
9 2024. So if petitioner wanted to bring this argument,
10 the 2023 hearing opportunity was the time to bring it.
11 And they have not demonstrated that their argument is
12 based on new and significant different information or
13 materially different information which is the standard
14 under 10 CFR 2.309(c).
15 So that's the primary reason is that
16 petitioner is bringing an argument now they could've
17 brought previously. Otherwise, as I stated before,
18 the tritium levels data that they point to in their
19 reply is new information. That information was also
20 just as equally available in 2023 and could've been b
21 brought previously as well.
22 So as one independent reason, the board
23 should not entertain this. Otherwise, you get to the
24 contention admissibility requirements, the board
25 should also dismiss this contention because it does
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 86
1 not genuinely dispute the staff's review and it is not
2 supported. So basically as I was explaining before,
3 the staff's environmental review determined and the
4 petitioner agrees that the saltwater interface in the
5 Biscayne aquifer is currently located between the CCS
6 and other potable groundwater users. Therefore, the
7 pertinent question with respect to groundwater use
8 conflicts is whether as a result of the continued
9 operations of the CCS that saltwater interface will
10 expand to encompass other potable water users.
11 The staff's environmental review discussed
12 in part the amount of withdrawals from the Biscayne
13 aquifer by the recovered well system, the amount of
14 freshwater additions to the CCS, peer reviewed
15 modeling predicting the withdrawals would indirectly
16 pull the saltwater interface away from other users,
17 peer review data indicating that the hypersaline
18 groundwater plume has been reduced overall since the
19 start of the recovery well system, and data indicating
20 that salinity in the CCS has decreased and is being
21 maintained at 34 psu. The staff also discussed the
22 2015 Miami-Dade County consent agreement, the 2016
23 FDEP consent order, and FPL's NPDES permits that they
24 all require that the CCS be maintained at a salinity
25 that will not influence the hypersaline plume and that
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 87
1 the hypersaline plume be retracted to the site
2 boundary so that the plume also will not influence the
3 saltwater interface because as --
4 CHAIR KRAUSE: Actually, I mean, at the
5 same time and in light of all of that you mentioned
6 that is in the final SEIS, Miami Waterkeeper has
7 presented an expert report that includes citations to
8 various sources. And in Contention 1C, they've sited
9 to specific pages in the expert report. How do we
10 make sure that in looking at sort of these conflicting
11 interpretations of the data that we're not getting to
12 the merits.
13 MR. WACHUTKA: Well, first of all, Your
14 Honor, as I said, this whole argument is not timely.
15 So the expert report is saying similar things that was
16 said in an expert report by the same expert in 2018
17 and 2019. And in 2023, the same argument was raised
18 but it wasn't supported.
19 It was supported by the 2018 and 2019
20 expert reports. So this should've been brought
21 earlier. It's not timely. Otherwise, when you get to
22 the -- we don't need to get to the merits because the
23 expert report is not supported.
24 When you look at it, it's similar to what
25 was argued in 2018. It's based on theories from 2018.
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 88
1 And it doesn't take into account any of the
2 information since 2018.
3 And it's based on a study from 1978. So
4 it's an old theory that has old support and doesn't
5 take into account any of the existing information. So
6 the NRC staff's position is that because of the
7 explanation I just gave, it doesn't challenge that
8 explanation. So it doesn't meet the genuine dispute
9 requirement, and also doesn't provide support. So as
10 the Commission has said, an argument by an expert even
11 without support is still not admissible.
12 CHAIR KRAUSE: Thank you.
13 MR. WACHUTKA: In this reply, petitioner
14 asserts that these data, the modern data about showing
15 withdrawal have to do with hypersaline groundwater and
16 therefore don't need to be accounted for because
17 petitioner is concerned with water that is less than
18 hypersaline but nonpotable. Petitioner, though, does
19 not have any support for why this is a distinction
20 with a difference. For example, petitioner does not
21 explain why its theory of expansion would apply to
22 less than hypersaline groundwater but somehow not also
23 apply to hypersaline groundwater which the data show
24 is generally not expanding.
25 On the contrary, the staff's environmental
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 89
1 review discussed that the initial expansion of
2 salinity resulted from hypersaline groundwater being
3 able to travel under the interceptor ditch. And
4 petitioner does not explain how less saline and
5 therefore less dense groundwater would also be able to
6 travel under the interceptor ditch. So that's one of
7 the things you heard them bring up which is there's
8 this less saline water that's coming out of the CCS.
9 But as the staff's environmental review
10 discusses, that's the purpose of the interceptor ditch
11 is to stop that water. And that's why the staff is
12 tracking the hypersaline groundwater because that's
13 what got past the interceptor ditch. Additionally,
14 petitioner does not explain why the recovery system
15 would somehow not withdraw less than hypersaline
16 groundwater to the same extent that the data show that
17 it was withdrawing hypersaline groundwater. In sum,
18 both petitioner's theory of the expansion of salinity
19 and petitioner's theory of less than hypersaline
20 groundwater somehow expanding despite the fact that
21 hypersaline groundwater is generally not expanding are
22 unsupported. So that's why amended Contention 1C
23 should not be admitted.
24 CHAIR KRAUSE: Can I ask you a couple
25 questions on Contention 2, actually turning to a
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 90
1 related issue concerning the Miami cave crayfish and
2 the staff's compliance with the Endangered Species Act
3 and the National Environmental Policy Act? I'll ask
4 you the same question I asked Miami Waterkeeper. And
5 you know from NEPA, there is a rule of reason applies
6 to the agency analysis. Is there a similar standard
7 for the Endangered Species Act?
8 MR. WACHUTKA: Your Honor, so yes, NEPA
9 and the Endangered Species Act are different laws with
10 different requirements. NEPA requires a hard look and
11 as you said the rule of reason and also to ensure the
12 dual mandates that there's an informed decision maker
13 and an informed public. And the NRC staff has met
14 that requirement because the NRC staff discusses the
15 crayfish with all of the most current information
16 which is from the service itself who's the expert in
17 that field.
18 And it also discusses as the petitioner
19 raised the issue of cumulative impacts of sea level
20 rise. So in our pleading, we point out where
21 cumulative impacts are discussed and where salinity
22 due to those cumulative impacts in the Biscayne Bay is
23 discussed. So that does the hard look.
24 But then as you were saying for Endangered
25 Species Act, when you look at the Endangered Species
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 91
1 Act, the question is, does the proposed federal action
2 affect the endangered species? And so that's what the
3 NRC staff has looked at and how it visualized this was
4 that we know there's salinity in the Biscayne aquifer.
5 And so the question is, is the continued operation
6 which is the proposed action from 2032 to 2055, is
7 that what is affecting salinity.
8 And that is why the hypersaline standard
9 was determined the FDEP which stated that there are a
10 lot of influences on the saltwater interface. But to
11 determine the influence from Turkey Point, that's why
12 we look at this hypersalinity plume. And so the point
13 is to show that based on all the data we have and also
14 based on the presumption of regularity that salinity
15 at the time of 2032 which as we pointed out we're not
16 sure if the hypersalinity plume will be outside of the
17 site boundary or within the site boundary.
18 But wherever it is, at that point in time,
19 the continued operations of the CCS will push it
20 further out. And so that's how we can determine the
21 ESA standard which is how will the Miami cave crayfish
22 be affected. And so we determined it's not likely to
23 be adversely affected because of those things that
24 salinity is not going to expand based on all the data
25 we see.
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 92
1 CHAIR KRAUSE: And going back to your
2 mention of the NEPA standard and the staff's
3 discussion of cumulative impacts of climate change and
4 then its discussion of impacts on the crayfish, Miami
5 Waterkeeper asserts that the staff should've
6 considered the cumulative impacts on the crayfish. Is
7 there such an analysis or are there two separate
8 analyses?
9 MR. WACHUTKA: There's two separate
10 analyses. But read together, they cover everything,
11 Your Honor. So yes, we have a section of climate
12 change and sea level rise to discuss explicitly how
13 salinity is going to move in the Biscayne aquifer
14 because of that.
15 And then in the species section, the staff
16 discusses that Miami cave crayfish is susceptible to
17 salinity and that regardless of where salinity is at
18 the time of renewal, the plant itself will not expand
19 that salinity any further. So there could be sea
20 level rise. But the plant itself which is the
21 proposed federal action won't impact that.
22 CHAIR KRAUSE: Thank you.
23 MR. WACHUTKA: And so new Contention 2
24 should also not be admitted. And we'll move on to new
25 Contention 3 now.
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 93
1 MR. BERNSTEIN: May it please the board.
2 My name is Kevin Bernstein, and I'll present the staff
3 position that Contention 3 is not admissible and that
4 the petition for waiver should be denied. While
5 petitioner asserts that these are new contentions,
6 Contention 3A is a refiled version of Contention 3 and
7 Contention 3B is a reformulated version of Contention
8 5 that this board dismissed in LBP 2403.
9 However, Contention 3 now challenges the
10 SAMA determinations instead of the environmental
11 impacts, the design basis accidents, and severe
12 accidents. Petitioner has not demonstrated good cause
13 that this board should entertain new Contentions 3A
14 and 3B. The GAO report, while itself new, has
15 accomplished in previous available information.
16 And this information is not materially
17 different from the information previously available
18 and relied on by staff and the EIS. The GAO report is
19 a generalized compilation of publicly available
20 information that concludes with recommendations for
21 the commission at the executive level to consider. It
22 does not identify any legal deficiencies in staff
23 review or license renewal.
24 In fact, the GAO report itself notes
25 limitations of the report in that it, quote, does not
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 94
1 account for any protective measures plants may have
2 taken to mitigate the risks of selecting natural
3 hazards, end quote. Petitioner does not explain how
4 the evidence in the GAO report is materially different
5 in the context of license renewal for Turkey Point.
6 Pertinent to both contentions here, nothing in the GAO
7 report forms the genuine -- a basis for a genuine
8 dispute with the FSEIS on a material issue of law or
9 fact.
10 Therefore, both Contentions 3A and 3B do
11 not meet the good cause standard in 10 CFR 2.309(c).
12 Contention 3A is inadmissible because it does not show
13 a genuine dispute exists with FSEIS on a material
14 issue of law or fact. This board previously rejected
15 the prior iteration of this contention.
16 Here, all petitioners claim restate as
17 prior arguments without citing to the GAO report in a
18 substantive manner. The GAO report does not provide
19 petitioners with the necessary support for this
20 contention. Prior boards have considered these
21 arguments and dismiss them because they did not
22 demonstrate a genuine dispute of material issue of law
23 or fact that existing with EIS.
24 Just as the reasoning the board applied in
25 2019 and in 2014, it applies here again. And
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 95
1 therefore, Contention 3A is inadmissible for not
2 showing a genuine dispute exists with FSEIS on a
3 material issue of law or fact. This board previously
4 rejected prior iteration of Contention 3B when it was
5 previously formatted as a challenge to the analysis of
6 the environmental impact of design basis accidents and
7 severe accidents in Contention 5.
8 Now petitioner uses the same underlying
9 arguments and challenges the SAMA determinations. But
10 such a challenge requires a waiver to litigate. This
11 board previously dismissed Contention 5 --
12 CHAIR KRAUSE: Counsel, I'm going to ask
13 you a couple questions about your position that a
14 waiver is required now --
15 MR. BERNSTEIN: Yes, Your Honor.
16 CHAIR KRAUSE: -- for the SAMA analysis.
17 So the staff's position as is I think all of the
18 parties agree that the current rule doesn't apply
19 because the staff provided a site specific analysis.
20 And the Commission's decision in CLI-22-03 gave that
21 option.
22 MR. BERNSTEIN: Yes, Your Honor.
23 CHAIR KRAUSE: So if the current rule
24 doesn't apply, how do we need to require that the rule
25 needs to be waived?
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 96
1 MR. BERNSTEIN: Your Honor, in CLI-13-07,
2 the Commission specifically ruled -- this is at 78 NRC
3 2014.
4 CHAIR KRAUSE: You're referring to the
5 Limerick decision?
6 MR. BERNSTEIN: Yes, I am, Your Honor.
7 CHAIR KRAUSE: And that involved initial
8 license renewal if I'm correct?
9 MR. BERNSTEIN: Yes, Your Honor. But one
10 of the considerations that the Commission had for
11 denying the waiver under the not unique factor, Factor
12 3, was that, quote, similarly for plants with the SAMA
13 analysis was conducted for the first time under
14 Section 5153(c)(3)(i)(L) may face this general
15 criticism upon application for a subsequent renewal
16 term. The Commission explicitly considered that this
17 rule would apply during subsequent license renewal and
18 found that it was not unique and therefore denied the
19 waiver on this factor.
20 CHAIR KRAUSE: I would say in Limerick, it
21 would be fair to say that the Commission didn't have
22 in mind the situation that it was presented with in
23 CLI-22-03. Is that fair?
24 MR. BERNSTEIN: Yes, Your Honor. But the
25 Commission did look prospectively and was looking and
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 97
1 considered the fact that this rule would apply during
2 the subsequent license renewal term.
3 CHAIR KRAUSE: Although there's a part of
4 the Commission's decision, right, that says for plants
5 where this rule applies. Is that right?
6 MR. BERNSTEIN: Yes, Your Honor.
7 CHAIR KRAUSE: Okay. But we've all agreed
8 -- I just want to make clear we've all agreed that the
9 rule doesn't apply because the staff has done a site
10 specific analysis.
11 MR. BERNSTEIN: Yes, Your Honor. That is
12 correct. I would point to the fact that the SAMA
13 analysis is a site specific analysis when it was
14 conducted for the first time.
15 CHAIR KRAUSE: That's correct because it
16 was operating under the structure of the rule that had
17 a Category 1 requirement for severe accident impacts.
18 Is that right? And then the mitigation alternatives
19 for severe accidents is Category 2 for plants that
20 have not conducted a SAMA analysis. And then in
21 Limerick, the Commission says if you have conducted --
22 the plant has conducted a SAMA analysis, it is the
23 functional equivalent of Category 1 because they have.
24 But when we're kind of operating in a space now where
25 we don't have categories because the GEIS doesn't
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 98
1 apply now because we're in a site specific space, can
2 you just explain to me how we're in this sort of --
3 how Limerick would apply not?
4 MR. BERNSTEIN: Yes, Your Honor. I can
5 understand your reasoning that the CLI-22-02 may have
6 overruled the decision in CLI-13-07. However the
7 staff's position is that may not have been intentional
8 and that the wording in CLI-22-02 was specifically to
9 the Category 1 determinations in the LR GEIS.
10 When the Commission spoke to the
11 implications of its ruling, it specifically was
12 limited to the Category 1 determinations in the 2013
13 LR GEIS. However, the rule does not apply. And that
14 is a fair reading of the plain language.
15 CHAIR KRAUSE: Could we say that now
16 because the SAMA analysis is already moved on for the
17 plant that it's a Category 1 determination that is now
18 addressed in CLI-22-03?
19 MR. BERNSTEIN: Your Honor, it is still a
20 Category 2 determination. But it is the functional
21 equivalent of a Category 1 determination. That is
22 different from the Commission concluding that it is a
23 Category 1 determination. And in fact, in the 2014 LR
24 GEIS that is about to come out, it will be a Category
25 1 determination going forward.
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 99
1 CHAIR KRAUSE: Thank you.
2 MR. BERNSTEIN: Thank you, Your Honor.
3 This board previously dismissed Contention 5 as
4 inadmissible as it did not demonstrate a genuine
5 dispute existed with material issue of law or fact.
6 Petitioner does not advance any information that
7 should cause this board to reach a different
8 conclusion with respect to Contention 3B here.
9 Petitioner is challenging the underlying
10 external events information that underlies the SAMA
11 determinations which is the same challenge as before
12 to the staff's determination of small for the
13 environmental impacts and postulated accidents.
14 Petitioner has not provided any new information that
15 would remedy the deficiencies previously identified by
16 this board. And therefore, Contention 3B does not
17 demonstrate a genuine dispute exists a material issue
18 of law or facts with the FSEIS. Furthermore, both the
19 district -- my time has expired. Thank you, Your
20 Honor.
21 CHAIR KRAUSE: Thank you. I don't have
22 any further questions for the staff. Judge Abreu?
23 JUDGE ABREU: I do not.
24 CHAIR KRAUSE: Judge Kennedy? Okay. All
25 right. Counsel for FPL, you may begin.
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 100
1 MR. LIGHTY: Thank you, Your Honor. And
2 may it please the board, Ryan Lighty for FPL. Before
3 turning to the specific contentions, I would like to
4 address an important overarching issue that flows
5 through many of Miami Waterkeeper's contentions.
6 Specifically, many of those claims rely on
7 the notion that the presence of saline or hypersaline
8 water in portions of the Biscayne aquifer that lie
9 west of the CCS boundary may result in environmental
10 impacts. And that notion is not in dispute here.
11 However, in evaluating contentions that challenge the
12 discussion of impacts from the proposed action, it's
13 crucial to distinguish between three things: first,
14 saline and hypersaline water that exists prior to the
15 SLR period; second, saline and hypersaline water
16 during the SLR period that is present due to reasons
17 other than SLR; and third, saline and hypersaline
18 water contributions to the area west of the CCS that
19 result from SLR.
20 In other words, the impact of the proposed
21 action is not the impact of any and all saline or
22 hypersaline water. It is the incremental contribution
23 from the CCS during the SLR term. And with that in
24 mind, it's important to acknowledge the dual purpose
25 of the recovery well system or RWS which is a system
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 101
1 of ten pumps that form something of a curtain along
2 the western edge of the CCS.
3 And those pumps not only seek to retract
4 the legacy hypersaline plume that currently exists
5 west of the CCS. But they also intercept the water
6 beneath the CCS itself and prevent it from flowing
7 beyond the CCS boundary to begin with. And that's an
8 entirely different function than the other RWS
9 objective of retracting the legacy salt from the
10 Biscayne aquifer.
11 Now the presence of that salt, the legacy
12 salt obviously is not a condition caused by the
13 proposed action. The proposed action is operation of
14 the plant in the future. So here, the key question
15 for evaluating the potential impacts of the proposed
16 action is how much salt would be added to the Biscayne
17 aquifer west of the CCS as a result of continued
18 operation beyond 2032?
19 And one of the most important factors in
20 considering that question is the ability of the RWS to
21 intercept that CCS outflow. In other words, water
22 that seeps underneath the CCS but does not migrate
23 into the Biscayne aquifer west of the CCS due to the
24 RWS interception function. To be absolutely clear,
25 that is an entirely different function than retracting
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 102
1 the legacy material that already exists in the aquifer
2 west of the CCS.
3 Now as explained in our answer brief, it's
4 petitioner's failure to acknowledge or engage with or
5 dispute the empirical data regarding the efficacy of
6 the interception function. In Footnote 161 of our
7 brief, we explain where that's described in the FSEIS.
8 And that's an overarching reason that its various
9 claims fail to raise a genuine dispute, regardless of
10 how effective the RWS may be in retracting the legacy
11 plume.
12 It is undisputed that the RWS has been
13 proven to effectively isolate the CCS and prevent it
14 from contributing further salt to the Biscayne aquifer
15 west of the CCS. Petitioner has chosen to disregard
16 this highly relevant information and attempts to
17 conjure a dispute by muddling and completing impacts
18 of the proposed action with the already existing
19 impacts from legacy conditions. But that strategy
20 cannot provide the basis for an admissible contention.
21 And I would like to briefly address the
22 discussion earlier regarding the new tritium data that
23 has been presented in the Nuttle report. We certainly
24 agree with the NRC staff that this data, it was from
25 2003 -- sorry, 2023 and prior years and therefore
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 103
1 isn't new now. These arguments certainly could've
2 been raised earlier.
3 But the board should not be persuaded by
4 those arguments. In particular, Dr. Nuttle's
5 observations regarding tritium in monitoring well G-
6 3699 don't support speculation that there is still
7 saline water seeping out of the CCS and then beyond
8 the boundary of the CCS to the west. There's no
9 discussion at all about when that tritium or where
10 that tritium may have originated.
11 If you look at the sources cited in the
12 Nuttle report, including the 2016 USGS report, the
13 saltwater interface only advances about 140 meters a
14 year. Monitoring well G-3699 is four miles away from
15 the CCS boundary. It would take 46 years to advance
16 that far.
17 And so the piece that is missing from the
18 logic chain is even though there is tritium in Well G-
19 3699, when did it leave the CCS? Or did it even come
20 from the CCS? And that is not addressed in that chain
21 of logic.
22 I'd also note that the 2024 FSEIS does, in
23 fact, address tritium data if you look at page 2-66,
24 for example. And it notes that tritium in excess of
25 20 picocuries per liter extends up to four and a half
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 104
1 miles from the CCS boundary. The staff has
2 acknowledged this information.
3 This is not something that has been
4 ignored. Nor has the staff ignored the volume of
5 water that is escaping the CCS. If you look, for
6 example, at 2-25 of the 2024 FSEIS, the staff
7 recognizes the net seepage of four million gallons a
8 day from the CCS.
9 But again, it's this interception function
10 that even though water may be leaving the CCS and
11 going beneath the CCS, the interception function of
12 the RWS is effectively preventing it from moving
13 westward. And if you look at again at 161 of our
14 brief, it talks about tracers being used to show that
15 is actually the case. And petitioners don't
16 acknowledge it.
17 They don't dispute it. They don't offer
18 any expert analysis of that information and say, we
19 reach a different conclusion for this reason. They
20 simply disregard it, and that's not a way to
21 demonstrate a genuine dispute.
22 I would also second the staff's notion
23 that many of these arguments simply are not new that
24 are presented in the Nuttle report. The NPDES
25 proceedings rejected these same theories that
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 105
1 freshening activities are causing expansion. Now
2 whether the board is persuaded by the FDEP's reasoning
3 or not is a separate question. But it certainly
4 demonstrates that these arguments were raised earlier
5 and in a different proceedings and could have been
6 raised earlier in this proceeding. They're not new
7 here.
8 CHAIR KRAUSE: Counsel, I'm just going to
9 ask you the same question I asked the staff. In Miami
10 Waterkeeper's reply, they talk about the fairness of
11 us admitting first a challenge to the staff's
12 groundwater quality impact discussion and then
13 dismissing it as moot in light of a revised analysis.
14 And then they argue that should they now be allowed to
15 challenge that revised discussion.
16 MR. LIGHTY: Yes, Your Honor. And I think
17 as a general matter, the answer is yes, certainly.
18 That there is new information in the 2024 FSEIS that
19 had not been previously presented.
20 But that's not the information that
21 they're challenging. It's not enough for petitioner
22 to say there's new information in that section of the
23 FSEIS and therefore I get to raise any challenge I
24 want on that section of the FSEIS. There is still a
25 requirement to demonstrate that the information being
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 106
1 challenged is both new and materially different from
2 something that was available before.
3 The original contention that was admitted
4 was the omission of connective tissue between the
5 technical analyses and the bottom line conclusion that
6 the staff offered for that section. And in the 2024
7 FSEIS, they've now provided that connective tissue.
8 But the technical bases hadn't changed.
9 And the bottom line conclusions haven't
10 changed. The real new information there is the
11 crossover, the connective tissue between those two
12 pieces of information. But again, it's not the
13 technical analyses that have changed here.
14 For example, the consideration of the
15 hypersaline plume as one of the key issues being
16 analyzed for groundwater. That's certainly not new
17 information. Throughout the entire arch of this
18 proceeding, from the 2023 DSEIS to the 2022 ER
19 supplement to the 2019 FSEIS to the 2018 DSEIS, all
20 of these have looked at the hypersaline plume as the
21 key point of the analysis of groundwater.
22 That's certainly not new. And petitioner
23 can't claim surprise that is the technical analysis
24 that's being used here. So I think even though there
25 is new information in the FSEIS and new and material
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 107
1 information can be challenged if it was previously
2 omitted, they're just not challenging that specific
3 information here.
4 CHAIR KRAUSE: Thank you.
5 MR. LIGHTY: So just to briefly discuss
6 some of the issues that are raised in Contention 1C
7 and again going to the good cause standard here, the
8 petitioner is essentially seeking to relitigate the
9 remediation activities that had been ordered before.
10 And as we explained, that's not what's at issue here.
11 FPL cataloged in our answer pleading an itemized list
12 of every reference in Contention 1C to some content in
13 the 2024 FSEIS and demonstrated that none of those
14 references pointed to new information.
15 And I would encourage Your Honors to take
16 a look at that as well. I would also note that even
17 if those arguments were timely, they don't raise an
18 admissible contention for a few reasons. One of those
19 reasons explained in our answer is that this is the
20 wrong forum to challenge those prior actions of state
21 and local regulators.
22 But in its reply, Waterkeeper offers a
23 somewhat passive/aggressive suggestion that those
24 regulators have failed to fulfill their obligations to
25 protect the health and safety of the public. And
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 108
1 therefore, the NRC should step in. But that's not the
2 NRC's role.
3 As a general matter, those regulators are
4 entitled to a presumption of administrative
5 regularity. And Waterkeeper's dissatisfaction with
6 the outcome of those proceedings is wholly
7 insufficient to overcome that presumption of
8 administrative regularity. And its arguments are
9 inappropriate and meritless for those reasons.
10 Turning to Contention 2, I would again
11 echo the NRC staff's arguments that what Waterkeeper
12 is trying to challenge here is something that doesn't
13 meaningfully engage with the staff's analysis. FPL
14 stands by all the arguments presented in our answer
15 briefs. But we would just briefly note that these
16 claims largely fail for the same reasons that
17 Contention 1 fails.
18 First of all, there's nothing new being
19 challenged here in terms of the groundwater analysis.
20 And petitioner identifies no support for its
21 speculation that CCS source water will somehow impair
22 the currently potable portions of the aquifer during
23 the SLR term. And because of that failure to confront
24 the RWS' demonstrated ability to isolate CCS source
25 water going forward, these claims are mere
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 109
1 speculation.
2 And that's the reason that they should be
3 rejected. I'd like to turn to the climate change
4 contentions -- claims in Contention 3 as we haven't
5 had a chance to discuss those in any detail yet. I
6 would note that we still believe that there's nothing
7 in the GAO report that is new and materially different
8 than information that was available before.
9 The GAO report is a compendium of long-
10 existing previous data, although the compilation of
11 that data may be new. What petitioner doesn't offer
12 here is any explanation. They don't even attempt to
13 say here's why it's materially different.
14 They don't say, here is something the NRC
15 used in its analysis and here is something that the
16 GAO report says. And these two things are different.
17 And not only are they different, but they are
18 materially different.
19 And that's important because it also goes
20 to the admissibility of the contention itself in terms
21 of demonstrating a genuine material dispute on an
22 issue of fact or law. Now in its reply, Waterkeeper
23 claims it doesn't need to provide such an explanation
24 because all it needs to do is, quote, identify the
25 possibility, end quote, that something has been
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 110
1 overlooked. But what Waterkeeper is describing is
2 speculation.
3 That's never enough for an admissible
4 contention. The Commission had explained these
5 requirements for these types of challenges in various
6 cases. And importantly in the McGuire Catawba case
7 that petitioner cites, CLI-02-17, that case involved
8 a challenge to a SAMA analysis. And the licensing
9 board admitted a contention where the petition
10 contained a demonstration that the difference between
11 the data used in the applicant's SAMA analysis versus
12 the data provided in an external report was of, quote,
13 some magnitude, possibly a large enough magnitude to
14 justify one or more of the SAMA alternatives, end
15 quote.
16 But that is not what we have here.
17 Waterkeeper has not shown that there is any difference
18 between any data because it doesn't point to any
19 specific data being challenged. It's entirely unclear
20 what meteorological data and some unspecified SAMA
21 analysis is being challenged. And it's also unclear
22 what substitute data Waterkeeper thinks is in the GAO
23 report and should be used instead. And it's doubly
24 unclear what difference may exist in those
25 unidentified data, let alone whether the differences
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 111
1 of a material magnitude or whether it would have a
2 possibility to alter the outcome of a cost benefit
3 analysis.
4 CHAIR KRAUSE: Counsel, I just want to
5 confirm that it's not FPL's position that a waiver is
6 required to challenge the SAMA analysis. Is that
7 correct?
8 MR. LIGHTY: FPL's position is that a
9 waiver is not required to challenge the new and
10 significant information review that was performed for
11 the SAMA analysis. The original SAMA analysis itself
12 was conducted in an EIS many decades ago. And it's
13 not subject to explicit challenge here. And the
14 Supreme Court's ruling in the March case is actually
15 what allows supplementation and reliance on a prior
16 EIS. But the new and significant information review
17 that was performed here by the staff is currently
18 permissible under the regulations without a waiver.
19 CHAIR KRAUSE: Thank you.
20 MR. LIGHTY: I did want to point out one
21 example related to the SAMA analysis. If we wanted to
22 look at meteorological data that were used in analyses
23 by the NRC staff, the NRC's recent reevaluation of
24 flood hazards for Turkey Point is a good place to
25 start. If you look at that analysis, it used highly
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 112
1 conservative parameters.
2 It used 19.4 inches of rainfall in a
3 single hour. That's an extraordinary amount of rain.
4 It assumed one foot of climate change related sea
5 level rise across the next century, and that appears
6 to be well above current projections.
7 Petitioner makes no attempt to explain why
8 those parameters are not bounding or why any of the
9 vague assertions in the GAO report would call into
10 question those parameters. And by failing to provide
11 this information, not to prove their case, but to
12 simply identify the information, to compare and
13 contrast it, to make an express allegation in their
14 pleading that if we go to hearing, we will show that
15 this information changes the outcome of the SAMA
16 analysis. They don't do that.
17 They speculate that maybe if some other
18 analysis of some other information were performed,
19 perhaps a different result would occur. But that's
20 not enough. That's speculation, and that's not enough
21 to support an admissible contention. And for all of
22 those reasons, Your Honor, we believe that the motion
23 should be denied.
24 CHAIR KRAUSE: Thank you. And quickly
25 going back to Contention 2, I'll ask you the same
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 113
1 question I asked the other two parties. For NEPA and
2 the staff's compliance with NEPA with regard to the
3 Miami cave crayfish, there's a gloss of the rule of
4 reason on the staff's analysis. Is there a similar
5 standard for the staff's compliance with the
7 MR. LIGHTY: I'm not certain that there is
8 an identical standard on ESA compliance. But I also
9 am not certain that ESA compliance for the sake of
10 compliance is within the scope of this proceeding.
11 ESA compliance for the sake of NEPA compliance is
12 really what we're looking at here.
13 Has the staff complied with its NEPA
14 obligations in preparing this EIS? Because that's the
15 content that we're looking at. So I think that the
16 NEPA standard would apply here.
17 CHAIR KRAUSE: Although, I mean, isn't the
18 agency choosing to fulfill its Endangered Species Act
19 compliance by including the analysis in its NEPA
20 document? It still has to fulfill both statutory
21 requirements, correct?
22 MR. LIGHTY: It does, Your Honor. I'm not
23 sure there's an obligation to discuss, describe that
24 ESA compliance in the NEPA document that originates in
25 the ESA. In other words, the staff could comply with
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 114
1 its ESA obligations separately from the NEPA process,
2 its obligation to consult or confer or not. And to
3 document that decision I think is something that
4 exists separately. And then whether the content
5 that's in the EIS itself is sufficient I think is, in
6 my view, a purely NEPA kind of question.
7 CHAIR KRAUSE: As I understand it, though,
8 there's an ESA regulation that allows the agency to
9 decide whether they will include their ESA analysis in
10 the NEPA document. It appears the staff has done that
11 here. So I guess I'm confused as to why you're saying
12 we're only looking at NEPA since this is in the EIS.
13 MR. LIGHTY: Without having studied this
14 issue in great depth, I would say that if the
15 regulations allow the staff to place that analysis in
16 the EIS and they have done so, then they have
17 fulfilled that obligation. Whether what they have
18 done as a compliance matter is sufficient to satisfy
19 the ESA, I would still argue is a separate issue.
20 CHAIR KRAUSE: Thank you. I don't have
21 any further questions for Florida Power and Light.
22 Judge Abreu?
23 JUDGE ABREU: I do not.
24 CHAIR KRAUSE: Judge Kennedy?
25 JUDGE KENNEDY: I do not.
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 115
1 CHAIR KRAUSE: Okay. We'll actually take
2 a ten-minute recess to allow Miami Waterkeeper to
3 gather its thoughts on that question that I know I
4 sprung on all of you. And we will return in ten
5 minutes for your rebuttal.
6 (Whereupon, the above-entitled matter went
7 off the record at 10:13 a.m. and resumed at 10:23
8 a.m.)
9 CHAIR KRAUSE: We're back in session.
10 Miami Waterkeeper, please begin your rebuttal.
11 MS. BILLS: Judge Krause, I'd like to
12 start by addressing your questions about the ESA. So
13 the rule of reason is indeed NEPA specific. In
14 Section 7 of the ESA requires Fish and Wildlife
15 Service to make decisions on the best available
16 science. That's the standard.
17 But the big picture here is really about
18 admissibility and whether we've shown a material
19 dispute which we have. We've challenged staff's ESA
20 compliance, raised a material dispute about that
21 compliance based on ESA regulations. And Judge
22 Krause, you're correct that there are both NEPA and
23 ESA regulations and requirements related to protected
24 species.
25 And we're challenging compliance with both
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 116
1 NEPA and ESA. One other point on the crayfish, NRC
2 staff has repeatedly said that the evidence shows that
3 the hypersaline plume is generally retracting. But
4 here, generally is not what matters.
5 Because the crayfish is so sensitive to
6 salinity, even the lower saline levels really do
7 affect it. So onto Contention 1, all of this back and
8 forth about the plume and the retraction well system
9 all demonstrates that we have a material dispute.
10 We're asking you to let us have a hearing so that we
11 can bring in our expert.
12 FPL and NRC staff can bring in their
13 experts, and we can really hash out the factual
14 specifics of these issues. And of course, we don't
15 need to prove our contentions at the admissibility
16 stage. But we have offered ample evidence.
17 A couple other things I want to clarify.
18 The tritium data that we reference may have been
19 available to NRC staff. We don't know. But it was
20 not publicly available.
21 We searched the county database. It
22 wasn't published. We did not receive it from the
23 county until April 29th. Another key issue here is
24 that the recovery well system is not working as
25 planned.
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 117
1 The Year 5 roster acknowledges that it
2 will not be retracted on the consent decree timeline
3 and is expanding some areas. So FPL's claim that
4 their recovery well system is intercepting all water
5 is incorrect. The Year 5 roster demonstrates that the
6 system is not currently capturing enough water and
7 that modeled alternatives also don't have enough
8 capacity to do that.
9 So it can't be true that the recovery well
10 system is capturing all water and that it's failing in
11 its objective as admitted in the Year 5 roster. So
12 this combined with the tritium data shows that there
13 is a significant environmental issue that NRC must
14 evaluate. Another key issue is that FPL and staff are
15 looking at the hypersaline compliance zone which is
16 where FPL is monitoring.
17 But the saltwater front is much further
18 west. And it's expanding much further westward than
19 acknowledged by the EIS, so west of the compliance
20 zone itself. So staff is effectively looking in the
21 wrong place as we articular in our expert report.
22 And again, we refer to the tritium data at
23 the leading edge of the salt front. And I'll just
24 note that our expert shows that tritium is actually
25 increasing in county monitoring wells far outside of
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 118
1 the hypersaline contamination compliance zone. And
2 this has not been accounted for in the EIS.
3 So I'd like to move to Contention 3. As
4 to the fact that petitioner has brought related
5 contentions in the past, we should not be penalized
6 for correctly identifying an issue that was
7 subsequently substantiated by an independent
8 government agency. Had the GAO report been available
9 when we filed our 2023 petition, we would've cited it
10 to substantiate our claims around the reasonably
11 foreseeable climate-related impacts.
12 As for the waiver, we agree with FPL that
13 a waiver is not needed for the board to consider
14 Contention 3B as it challenges the site specific SAMA
15 evaluation in the 2024 FSEIS. And as we discussed, we
16 submitted the waiver out of an abundance of caution.
17 So NRC staff's assertion that a waiver is still
18 required because they previous conducted a SAMA
19 analysis doesn't stand.
20 And Judge Krause, as you alluded to, the
21 reasoning the Limerick does not apply here because FPL
22 elected to do a site-specific analysis of
23 environmental impacts in line with CLI-22-03 rather
24 than relying on generic findings. So since FPL
25 elected to the site-specific process, NRC staff can't
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 119
1 hide behind this generic finding. As for good cause,
2 the information that we rely on from the GAO report is
3 materially different.
4 The standard is materially different if it
5 looks genuinely plausible that it might change cost
6 benefit conclusions. And NRC found information to be
7 materially different where more recent information
8 regarding previously considered issues come to light.
9 So for that, we say In Situ Leach Facility, 81 NRC
10 401, where recent data on seismic activity had not
11 been evaluated.
12 And that was enough to show good cause.
13 The issue here is similar. So NRC staff's new and
14 significant review of the SAMA analysis did not look
15 at climate change. And the GAO report provides this
16 new and significant information the NRC staff ought to
17 have considered, right? And this is a huge
18 difference, right? We have staff saying that external
19 risks are going down and the GAO report saying that
20 they're going way up and that there's serious concern
21 about a serious accident.
22 CHAIR KRAUSE: How do you respond the
23 staff's assertion that in the GAO report, the GAO sort
24 of expressly acknowledged that it didn't address
25 mitigation measures that plants might've already
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 120
1 undertaken. And so it sort of acknowledged that it
2 didn't cover what could be the facts on the ground
3 with the various plants.
4 MS. BILLS: Yes, so that does not affect
5 the significance of the finding. And for that, I'll
6 point to Diablo Canyon, 81 NRC at 320 where the board
7 found that it could not accept at face value the
8 utility's interim conclusions about the bounding of
9 the risk level and that the petitioner is actually
10 seeking a hearing on this very issue, right? So just
11 because the GAO report doesn't account for all the
12 details, it still shows this huge and significant
13 issue and calls into question whether the underlying
14 SAMA analysis here on which the cost benefit analysis
15 is based is correct. The whole thing might be skewed,
16 and that's what we're alleging.
17 So FPL asserts that there's no new data
18 here. However, there is absolutely new data. Not
19 only does the report incorporate information gleaned
20 from interviews and site visits, but it also includes
21 a new data analysis cross analyzing NOAA's storm surge
22 data with site mapping which is something that
23 commenters that actually urged staff to do.
24 So it provides the very analysis that was
25 missing. And where past boards have rejected
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 121
1 contentions based on GAO reports, that's been because
2 the reports contained not a single piece of site
3 specific information. These were super general
4 reports whereas here, this report specifically calls
5 out Turkey Point and provides site-specific risk
6 levels for a number of categories of climate-related
7 risks.
8 So effectively, members of Congress who
9 were presumably concerned about the vulnerability to
10 climate change requested this report, we think it
11 presents new and significantly different information.
12 So boards have found that GAO reports that contain
13 this type of site-specific information do serve as
14 adequate bases for contentions. One example we give
15 is in the matter of Detroit Edison Co., 70 NRC at 227.
16 So with that being said, I will just offer
17 that this issue is off serious significance to our
18 community. It's our drinking water at stake. It's
19 the safety of our community. It's our resilience to
20 climate change.
21 We have absolutely met the threshold for
22 good cause and admissibility for each of our
23 contentions. And we would love to present additional
24 information to you at a hearing. Thank you, Your
25 Honor.
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 122
1 CHAIR KRAUSE: Thank you, counsel. I
2 don't have any further questions for Miami
3 Waterkeeper. Do you have any questions, Judge Abreu?
4 JUDGE ABREU: I do not.
5 CHAIR KRAUSE: Judge Kennedy?
6 JUDGE KENNEDY: I do not.
7 CHAIR KRAUSE: Thank you, counsel, for
8 your presentations today. We will consider them in
9 making our decision on Miami Waterkeeper's motion. I
10 would like to thank Andy Welkie, our IT specialist,
11 and Twana Ellis, our program analyst, for their
12 technical and administrative support.
13 Thanks also to Sara Culler for ensuring
14 that the board could gather here in person today. And
15 finally, thank you to our court report, James Cordes.
16 Counsel, please stay behind a few minutes after we
17 adjourn to answer any clarifying questions from the
18 court reporter. Again, the transcript of today's oral
19 argument should be available in the electronic hearing
20 docket sometime next week. We are adjourned.
21 (Whereupon, the above-entitled matter went
22 off the record at 10:33 a.m.)
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