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