ML24267A298

Miami Waterkeepers Petition for Review of the Atomic Safety and Licensing Boards Ruling in LBP-24-08

ML24267A298
Person / Time
Site:	Turkey Point
Issue date:	09/23/2024
From:	Curran R, Joseph Lopez, Webster R Miami Waterkeeper, Stetson University, College of Law
To:	NRC/OCM
SECY RAS
References
ASLBP 24-981-01-SLR-BD01, RAS 57118, 50-250-SLR-2, 50-251-SLR-2
Download: ML24267A298 (0)

Text

1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of Docket Nos. 50-250-SLR-2 &

50-251-SLR-2 FLORIDA POWER & LIGHT COMPANY Turkey Point Nuclear Generating Station, Unit Nos. 3 and 4 September 23, 2024 Subsequent License Renewal Application MIAMI WATERKEEPERS PETITION FOR REVIEW OF THE ATOMIC SAFETY AND LICENSING BOARDS RULING IN LBP-24-08 Jaclyn Lopez Jacobs Public Interest Law Clinic for Democracy and the Environment Stetson University College of Law 1401 61st Ave. S.,

Gulfport, FL 33707 727-490-9190 jmlopez@law.stetson.edu Rachael Curran Jacobs Public Interest Law Clinic for Democracy and the Environment Stetson University College of Law 1401 61st Ave. S.,

Gulfport, FL 33707 727-537-0802 rcurran1@law.stetson.edu Richard Webster Law Office of Richard Webster 133 Wildwood Avenue Montclair, NJ 07043 (202)-630-5708 rwebster463@gmail.com Counsel for Miami Waterkeeper

i TABLE OF CONTENTS INTRODUCTION.............................................................................................................. 1 I.

PROCEDURAL BACKGROUND............................................................................... 1 II. LEGAL STANDARDS & STANDARD OF REVIEW.................................................. 3 III. ARGUMENT.............................................................................................................. 5 A. The Board erred in dismissing amended contentions 1-A, 1-B, and 1-C because it ignored the 2024 FSEISs failure to take the requisite hard look at environmental impacts regarding groundwater...................................................... 6

1. The Board erred in dismissing Contention 1-A by applying an unlawful standard of specificity for its good cause and admissibility determinations.... 7

2. The Board erred when it dismissed Miami Waterkeepers Contention 1-B because Miami Waterkeepers good cause filing shows that the Staff applied the wrong standard in assessing the impact of the Proposed Action on groundwater quality......................................................................................... 11

3........ The Board erred in dismissing Contention 1-C that Staff underestimated drinking water impacts when the Board wrongly concluded that the contention extended beyond the challenge to the information the Staff added to address the contention admitted in LBP-24-3............................................ 13 B. The Board erred when it dismissed Contention 2 because Miami Waterkeepers good cause filing shows Staff erroneously considered only the direction of the hypersaline plume, rather than the increase in overall salinity, when assessing impacts to the Miamicave crayfish........................................................................ 16 C. The Board erred in dismissing Contentions 3-A and 3-B concerning failure to analyze reasonably foreseeable climate change impacts during the subsequent license renewal period............................................................................................ 19

1. The Board erred in dismissing Miami Waterkeepers contention that Staff has not adequately addressed climate change in its cumulative effects analysis because it is within the scope of the NEPA review............................................ 19

2. The Board erred when it dismissed Miami Waterkeepers contention that FPL has not updated its SAMA analysis to reflect the effects of climate change on accident risk because that is what NEPA demands........................................... 23 CONCLUSION................................................................................................................ 24

ii TABLE OF AUTHORITIES Cases W. Deptford Energy, LLC v. FERC, 766 F.3d 10, 22 (D.C. Cir. 2014)........................................ 18 N.J. Conservation Found. v. FERC, 111 F.4th 42, 47 (D.C. Cir. 2024)......................................... 4 Nuclear Regulatory Commission Rulings Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97-98 (1983).................................................. 4 Florida Power & Light (Turkey Point Nuclear Generating Station, Unit Nos. 3 and 4), CLI-22-02 (2022).................................................................................................................................. 21, 22 Florida Power & Light (Turkey Point Nuclear Generating Station, Unit Nos. 3 and 4), CLI-22-03 (2022)........................................................................................................................................ 22 Crow Butte Res., Inc. (License Renewal for In Situ Leach Facility, Crawford, Nebraska), CLI 9, 69 NRC 331, 336 (2009)......................................................................................................... 4 Duke Energy Co. (Oconee Nuclear Station, Units 1, 2 & 3), CLI-99-11, 49 NRC 328, 334, 337 (1999).......................................................................................................................................... 4 Duke Energy Corporation (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 1999 NRC LEXIS 52 (Apr. 15, 1999)......................................................................................................... 24 Gulf States Utilities Co. (River Bend Station, Unit 1), CLI-94-10, 40 NRC 43, 47-48 (1994)...... 3 Florida Power & Light (Turkey Point Nuclear Generating Station, Unit Nos. 3 and 4), LBP 08, (2024)........................................................................................................................... passim Florida Power & Light (Turkey Point Nuclear Generating Station, Unit Nos. 3 and 4), LBP-24-3 (2024)...i, 1, 11, 13, 20 Paina Hawaii, LLC (Material License Application), LBP-06-04, 63 N.R.C. 99 (2006)................ 3 Paina Hawaii, LLC (Materials License Application), CLI-10-18, 72 NRC 56, 73 (2010)............ 4 Powertech (USA), Inc. (Deqey-Burdock In Situ Uranium Recovery Facility), CLI-16-20, 84 NRC 219, 228 (2016)........................................................................................................................... 4 Private Fuel Storage, L.L.C., LBP-99-3, 49 NRC 40, 49 (1999).................................................... 3 Tennessee Valley Authority (Clinch River Nuclear Site Early Site Permit Application), ASLBP No. 17-954-01-ESP-BD01, 2017 WL 9478622 at *150 (2017);................................................ 4 Tennessee Valley Authority (Clinch River Nuclear Site), 88 NRC 55 (2018).............................. 12 Statutes 5 U.S.C. § 706.................................................................................................................................. 4 42 U.S.C. §§ 4321 et seq....passim

iii Rules Amendments to Adjudicatory Process Rules and Related Requirements, 77 Fed. Reg. 46562, 46566 (Aug. 3, 2012)................................................................................................................ 15 Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process, 1986 WL 328108 at *3 (June 30, 1986)................................................................. 4, 16 Regulations 10 C.F.R. § 2.309 (f).................................................................................................................. 9, 10 10 C.F.R. § 2.309(c).................................................................................................................... 3, 8 10 C.F.R. § 2.309(d)(1)................................................................................................................... 3 10 C.F.R. § 2.318(a)........................................................................................................................ 1 10 C.F.R. § 2.341............................................................................................................................. 1 10 C.F.R. § 2.341(b)(4)................................................................................................................... 3 10 C.F.R. § 51.71(b)........................................................................................................................ 8 10 C.F.R. Part 51, Appendix B...................................................................................................... 23 Other Authorities U.S. Government Accountability Office report GAO-24-106326, Nuclear Power Plants: NRC Should Take Actions to Fully Consider the Potential Effects of Climate Change (Apr. 2, 2024)...................................................................................................................... 20, 24

1 INTRODUCTION Pursuant to 10 C.F.R. § 2.341, Miami Waterkeeper seeks review of the Atomic Safety and Licensing Boards (Board) decision in LBP-24-08 concerning the twenty-year subsequent renewal of the operating licenses for Turkey Point Nuclear Generating Units 3 and 4.1 Miami Waterkeeper respectfully requests that the Nuclear Regulatory Commission (NRC or Commission) reverse this decision and grant Miami Waterkeeper a hearing on the merits.

I.

PROCEDURAL BACKGROUND This is the second proceeding concerning the adequacy of the NRCs National Environmental Policy Act (NEPA) analysis of the 20-year subsequent renewal license application for units 3 and 4 of Florida Power & Light Companys (FPL or Applicant)

Turkey Point Nuclear Generating Station, which if issued, would extend operations through 2053. Miami Waterkeeper seeks review of LBP-24-08 which dismissed all of its contentions and terminated the proceeding that commenced September 8, 2023, with the issuance of a Federal Register notice announcing the opportunity to request a hearing on NRC staffs (Staff) 2023 Draft Supplemental Environmental Impact Statement (2023 DSEIS).2 On November 27, 2023, in response to the Federal Register notice, Miami Waterkeeper submitted a Request for Hearing and Petition to Intervene that timely proffered five contentions addressing the deficiencies of the 2023 DSEIS.3 The Board admitted a reformulated version of one of the five contentions, a contention of omission which sufficiently called into question the reasonableness of a Staff analysis that contains no explanation for the Staffs conclusion that the impacts to groundwater quality could be moderate, and granted Miami Waterkeepers request for a hearing.4 The Boards 1 Atomic Safety and Licensing Board Panel Memorandum and Order (Dismissing Proposed New and Amended Contentions and Terminating Proceedings), LPB-24-08, ADAMS Accession No. ML24240A218 (Aug. 27, 2024) [hereinafter Dismissal].

2 See 10 C.F.R. § 2.318(a) (A proceeding commences when a... notice of proposed action under § 2.105 is issued.); Florida Power & Light Company; Turkey Point Nuclear Generating Unit Nos. 3 and 4, 88 Fed. Reg. 62110 (Sept. 8, 2023).

3 Request for Hearing and Petition to Intervene Submitted by Miami Waterkeeper, ADAMS Accession No. ML23331A971 (Nov. 27, 2023) [hereinafter Request for Hearing and Petition to Intervene].

4 Atomic Safety and Licensing Board Panel Memorandum and Order (Granting Request for Hearing) LBP-24-3, ADAMS Accession No. ML24067A280 (Mar. 7, 2024) at 21.

2 reformulated admitted contention was that:5 The 2023 Draft SEIS fails to take a hard look at impacts to groundwater quality because it does not include an explanation for the Staffs conclusion that the uncertainty in retracting the hypersaline groundwater plume could result in moderate impacts.

Before the Board held the hearing, Staff published the 2024 Final SEIS (2024 FSEIS).6 The 2024 FSEIS mooted reformulated Contention 1 by adding the omitted information,7 and Miami Waterkeeper joined Staffs motion to dismiss on the condition that the proceeding remain open and Miami Waterkeeper could file new and amended contentions based on new and materially different information in the 2024 FSEIS within 40 days of publication pursuant to the initial scheduling order.8 On May 8, 2024, Miami Waterkeeper timely filed six contentions to the 2024 FSEIS.9 Amended Contentions 1-A, 1-B, and 1-C amended the moot, reformulated admitted Contention 1 concerning the 2023 DSEIS.10 Miami Waterkeeper also raised Contention 2 which was based on new information in the 2024 FSEIS concerning new information from the U.S. Fish and Wildlife Service on the Miami cave crayfish; and Contentions 3-A and 3-B which used materially different climate change information relevant, respectively, to cumulative impacts and the Applicants severe accident mitigation alternatives (SAMA) analysis, information previously unavailable in the 2023 DSEIS.11 After briefing, the Board convened a prehearing conference on July 17, 2024, to hear oral argument on the admissibility of the proposed amended and new contentions.12 On August 27, 2024, the Board dismissed all contentions and terminated the proceeding 5 Id. at 22.

6 Final Site-Specific Environmental Impact Statement for License Renewal of Nuclear Power Plants Regarding Subsequent License Renewal for Turkey Point Nuclear Generating Units Nos. 3 and 4, ADAMS Accession No. ML24087A061 (Mar. 2024) [hereinafter 2024 FSEIS].

7 2024 FSEIS at 2 2-40.

8 Joint Unopposed Motion to Dismiss Reformulated Contention 1 as Moot and Position of the Staff and Miami Waterkeeper Regarding Opportunity to File New or Amended Contentions, ADAMS Accession No. ML24095A314 (Apr. 4, 2024).

9 Miami Waterkeepers Motion to Admit Amended and New Contentions in Response to Staffs Final Site-Specific Environmental Impact Statements, ADAMS Accession No. ML24129A220 (May 8, 2024)

[hereinafter Motion to Admit].

10 Id. at 7.

11 Motion to Admit at 37-80; Draft Site-Specific Environmental Impact Statement for License Renewal of Nuclear Plants Regarding Subsequent License Renewal for Turkey Point Nuclear Generating Unit Nos. 3 and 4, ADAMS Accession No. ML23242A216 (Sept. 2023) [hereinafter 2023 DSEIS].

12 See Prehearing Conference Transcript, ADAMS Accession No. ML24204A039 (July 17, 2024) at 62.

3 in LBP-24-08.13 Miami Waterkeeper now submits this Petition for Review before the Commission.

II.

LEGAL STANDARDS & STANDARD OF REVIEW Several legal standards are at play in this Petition.

First, and particular only to NRC proceedings, are the regulations regarding the standards to admit contentions, establish standing, and grant petitions for review. New or amended contentions are admissible as long as the intervenor demonstrates good cause by showing the contention is supported by new information that (1) was not previously available, (2) is materially different from information that was previously available, and (3) is timely filed.14 Substantively, each contention must provide a specific statement of the issue of law or fact to be raised, provide a brief explanation of the basis for the contention, demonstrate the issue is within the scope of the proceeding, demonstrate the issue is material to the findings the NRC must make, provide a concise statement of the alleged facts or expert opinions in support of the issue, and provide sufficient information to show a genuine dispute exists on a material issue of law or fact.15 An intervenor must show it has standing by stating the nature of its right to be made a party to the proceeding, the nature and extent of its interest in the proceeding, and the possible effect any decision or order may have on its interest.16 The Commission affords the Boards judgment on standing at the pleading stage substantial deference absent a clear misapplication of the facts or law.17 The Commission considers several factors in determining whether to grant a petition for review, including whether there are findings of fact that are clearly erroneous, whether there are substantial and important questions of law, policy, or discretion, and whether the decision served the public interest.18 The Commission 13 Dismissal, supra note 1.

14 10 C.F.R. § 2.309(c)(1); Private Fuel Storage, L.L.C., LBP-99-3, 49 NRC 40, 49 (1999) ([T]he first late-filing factor -good cause for filing lateis also the most important in the balance.).

15 10 C.F.R. § 2.309(f)(1); See also Paina Hawaii, LLC (Material License Application), LBP-06-04, 63 N.R.C. 99 (2006) ([T]he petitioner is not required to provide an exhaustive discussion in its proffered contention, so long as it meets the Commissions admissibility requirements.).

16 10 C.F.R. § 2.309(d)(1).

17 Gulf States Utilities Co. (River Bend Station, Unit 1), CLI-94-10, 40 NRC 43, 47-48 (1994).

18 10 C.F.R. § 2.341(b)(4)(i), (iii), (v).

4 defers to a Boards rulings on standing and contention admissibility in the absence of clear error or abuse of discretion.19 Notably, a petitioner does not have to prove its contentions at the admissibility stage, nor is the Board to adjudicate disputed facts; rather, the role of the Board is to determine whether the petitioner has presented information that would prompt a reasonable mind to inquire further about the contention.20 While the Commissions review of factual findings is deferential, it will correct findings when there is strong reason to believe that a board has overlooked or misunderstood important evidence.21 The Commission has also emphasized that when a petitioner has provided at least some minimal factual and legal foundation and isolated specific issues they dispute and wish to litigate, the Board should admit the contentions.22 The Commission reviews legal questions de novo.23 Courts review NRC decisions and NEPA analyses under the Administrative Procedure Acts (APA) arbitrary and capricious standard of review.24 Under NEPA, this Courts role is simply to ensure that the agency has adequately considered and disclosed the environmental impact of its actions and that its decision is not arbitrary or capricious.25 Under NEPA, Courts review an EISs selection of alternatives and statement of purpose under the rule of reason,26 meaning that NRC must take a hard look at the environmental consequences before taking a major action.27 An agency has taken a hard look at environmental consequences if the EIS contains sufficient discussion of the relevant issues and opposing viewpoints, and... the agencys decision is fully informed and well-considered.28 19 Crow Butte Res., Inc. (License Renewal for In Situ Leach Facility, Crawford, Nebraska), CLI-09-9, 69 NRC 331, 336 (2009).

20 Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process, 1986 WL 328108 at *3 (June 30, 1986).

21 Powertech (USA), Inc. (Deqey-Burdock In Situ Uranium Recovery Facility), CLI-16-20, 84 NRC 219, 228 (2016).

22 Tennessee Valley Authority (Clinch River Nuclear Site Early Site Permit Application), ASLBP No. 17-954-01-ESP-BD01, 2017 WL 9478622 at *150 (2017); Duke Energy Co. (Oconee Nuclear Station, Units 1, 2 & 3),

CLI-99-11, 49 NRC 328, 334, 337 (1999).

23 Paina Hawaii, LLC (Materials License Application), CLI-10-18, 72 NRC 56, 73 (2010).

24 5 U.S.C. § 706.

25 Baltimore Gas & Elec. Co. v. NRDC, 462 U.S. 87, 97-98 (1983).

26 N.J. Conservation Found. v. FERC, 111 F.4th 42, 47 (D.C. Cir. 2024) (quoting Theodore Roosevelt Conservation Pship v. Salazar, 661 F.3d 66, 73 (D.C. Cir. 2011).

27 Id. (quoting Balt. Gas & Elec. Co., 462 U.S. 87, 97 (internal quotation marks omitted).

28 Id. at 47-48 (quoting Nevada v. Dept of Energy, 457 F.3d 78, 93 (D.C. Cir. 2006).

5 III.

ARGUMENT The Commission should reverse the Boards decision because it arbitrarily overlooked, misunderstood, or refused to consider important information and applied incorrect legal standards in denying Miami Waterkeepers contentions regarding the Turkey Point Nuclear Generating Station. More specifically, the Board misunderstood the groundwater contention, took an overly narrow view of when new information has been presented, and adjudicated the facts rather than allowing them to be presented at a hearing.

Turkey Point relies on a unique cooling system discharging hot water into unlined canals carved directly into the porous limestone substrate overlying the Biscayne Aquifer.

Over time the canals have concentrated vast quantities of dissolved salts which have then leached into groundwater and migrated westward through the Biscayne Aquifer toward drinking water resources. Despite ongoing remediation measures these resources remain under threat. The spread of salt pollution also harms the imperiled Miami Cave crayfish because it is intolerant to salt water and the growing saline plume is likely to adversely affect the Miami Cave crayfishs habitat, the aquifer.

Furthermore, the Government Accountability Office (GAO) has identified Turkey Point as uniquely vulnerable to the threats of climate change due to its low-lying position and lack of local topography and the threat of ever more intense hurricanes. Climate impacts, namely, sea level rise, increased storm impacts, higher temperatures and drought will worsen during the subsequent license renewal (SLR), threatening Turkey Point and the surrounding community. Because these impacts are not adequately addressed in the 2024 FSEIS, Miami Waterkeeper filed six contentions:29 1-A:

THE 2024 FSEIS FAILS TO ADEQUATELY ANALYZE GROUNDWATER CONDITIONS FOR THE NO ACTION ALTERNATIVE, WHICH SHOULD BE THE CONDITIONS PRESENT WHEN THE PLANT IS NOT OPERATIONAL.

1-B:

THE 2024 FSEIS EMPLOYS THE WRONG STANDARD TO DETERMINE THE IMPACT OF THE CCS ON POTABLE WATER.

1-C:

THE 2024 FSEISS ASSESSMENT OF THE IMPACT OF THE PROPOSED ACTION TO GROUNDWATER QUALITY IS INADEQUATE BECAUSE IT UNDERESTIMATES THE IMPACTS ON DRINKING WATER RESOURCES.

29 Motion to Admit at 7, 36, 51.

6 CONTENTION 2:

THE 2024 FSEISS ANALYSIS OF THE POTENTIAL IMPACTS OF TURKEY POINTS CONTINUED OPERATION DURING THE RENEWAL PERIOD ON MIAMI CAVE CRAYFISH IS INADEQUATE AND ITS DETERMINATION THAT CONTINUED OPERATION IS UNLIKELY TO ADVERSELY AFFECT OR JEOPARDIZE THE MIAMI CAVE CRAYFISH IS UNSUPPORTED.

CONTENTION 3-A: THE 2024 FSEIS FAILS TO ADEQUATELY ANALYZE CLIMATE CHANGE-RELATED ENVIRONMENTAL IMPACTS THAT ARE REASONABLY FORESEEABLE TO OCCUR DURING THE SUBSEQUENT LICENSE RENEWAL PERIOD.

CONTENTION 3-B: THE 2024 FSEIS FAILS TO ADEQUATELY UPDATE ITS EVALUATION OF FPLS SAMA ANALYSIS TO REFLECT THE EFFECTS OF CLIMATE CHANGE ON ACCIDENT RISK These contentions are not insignificant. At their base, Miami Waterkeepers contentions seek to alert Staff that its 2024 FSEIS fails to meet the requirements for a NEPA analysis on the agencys decision to extend the operating license of a nuclear power plant perched at the end of Hurricane Alley for another 30 years. This is not for the purpose of mere flyspecking, but because Miami Waterkeeper and its members live near the power plant, are concerned about the impact of the growing plume of saline water caused by the plants operations, and are worried that existing plant plans and agency oversight do not adequately contemplate the site-specific climate change impacts of rising sea, increased storm impact, higher temperatures, and drought on plant operations and safety. Miami Waterkeeper satisfied each of the NRCs requirements with respect to its six Contentions. Thus, the Board erroneously denied admission of the contentions, and deprived Miami Waterkeeper its hearing to prove its factual claims. The Commission should reverse the Boards decision and admit the contentions.

A. The Board erred in dismissing amended contentions 1-A, 1-B, and 1-C because it ignored the 2024 FSEISs failure to take the requisite hard look at environmental impacts regarding groundwater.

The Commission should reverse the Boards dismissal because the Board erred in dismissing Miami Waterkeepers groundwater contentions despite Miami Waterkeepers meeting NRC regulatory standards for contention admissions on NEPA analysis adequacy.

Miami Waterkeeper submitted three groundwater-related contentions concerning Staffs failure to take the hard look required by NEPA at the environmental impacts of continuing to operate the cooling canal system (CCS). Miami Waterkeeper explained that

7 the 2024 FSEIS fails to adequately analyze groundwater conditions for the no action alternative, arbitrarily uses the wrong standard to determine the impact of the CCS on potable water and underestimates the impacts of the subsequent license renewal and plume remediation on drinking water resources.

Each of these contentions point to a deficiency in the agencys NEPA analysis.30 Miami Waterkeeper sufficiently demonstrated that the analysis lacks information the agency was obligated to include or was otherwise unreasonable.31 Yet, the Board dismissed the groundwater contentions by arbitrarily applying a novel, heightened requirement of specificity for its good cause and admissibility determinations; and by capriciously determining that the contentions responding to the Staffs new information did not present new or materially different information.32 The Commission should reverse the Boards order and admit Contentions 1-A, 1-B, and 1-C.

1. The Board erred in dismissing Contention 1-A by applying an unlawful standard of specificity for its good cause and admissibility determinations.

The NRC should reverse the Boards decision on Contention 1-A because the Board relied upon an unlawful standard for specificity regarding both good cause and admissibility in dismissing Miami Waterkeepers contention that the FSEIS fails to adequately analyze groundwater conditions in the no action alternative. The Board determined that without references to the specific information that Miami Waterkeeper claims is enough to warrant a revised analysis or is inadequate, the Board was unable to conclude that the information upon which Contention 1-A is based is new and materially different from previously available information.33 Miami Waterkeeper explained in its Motion to Admit New and Amended Contentions and Reply that based on its review of the license renewal generic environmental impact statement (LR GEIS) and the 2023 DSEIS, Miami Waterkeeper submitted new information to Staff on groundwater impacts due to FPLs remediation 30 Dismissal at 6 (quoting NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 323 (2012)).

31 Motion to Admit at 6-80.

32 Dismissal at 9-10.

33 Dismissal at 10-11.

8 activities, such as inland movement of the saltwater interface, upward diffusion of hypersaline plume from lower layers, absolute plume volume magnitude of uncertainty, and other peer review of FPL data called for by NRCs NEPA implementing regulations.34 Miami Waterkeeper explained that Staff then revised its description of groundwater-quality impacts in the 2024 FSEIS,35 but did not appear to actually use this new information to analyze the impacts of the no action alternative analysis in its FSEIS Section 3.2, which remains unchanged from the 2023 DSEIS.36 The Board correctly summarized Miami Waterkeepers contention on this point: Miami Waterkeeper appears to rely on the assumption that because the Staffs groundwater-quality impacts discussion has changed, the analysis of the no-action alternative should likewise change.37 But rather than grapple with this inconsistency, the Board erroneously claimed Miami Waterkeepers contention lacked the specificity required and dismissed Amended Contention 1-A for failure to satisfy the good cause requirement of section 2.309(c)(1) and alternatively, for failure to satisfy the contention admissibility requirement of section 2.309(f)(1).38 Section 2.309(c)(1) states that motions for leave to file amended contentions after the deadline will not be entertained absent a determination that the participant has demonstrated good cause by showing that (i) the information was not previously available, (ii) the information is materially different from information previously available, and (iii) the filing has been submitted on time based on the availability of the subsequent information.39 Section 2.309(f)(1) requires Miami Waterkeeper to set forth with particularity the contentions sought to be raised and reference specific sources and 34 Motion to Admit at 13-14; Miami Waterkeepers Reply in Support of Motion to Admit Amended and New Contentions, ADAMS Accession No. ML24164A318 (June 12, 2024) at 9-10 [hereinafter Reply]; See also Miami Waterkeeper, Comments on LR GEIS at 2 (However, the CCS-driven hypersaline plume in the area of Turkey Point presents an additional concern, because is influencing the movement of the saline water interface within the Biscayne Aquifer more than 4 miles inland.) (May 2, 2023); Miami Waterkeeper, Comments on DEIS at 4-10 (Nov. 26, 2023); See 10 C.F.R. § 51.71(b).

35 2024 SFEIS 2 2-40; Dismissal at 8; FSEIS Sec. 2.8.3, A-46 (Section 2.8.3 of this site-specific EIS has been revised to reflect the status of FPLs remedial action based on the information provided in FPLs Year 5 Remedial Action Annual Status Report. Additionally, Section 2.8.3 describes the changes to the remedial action that FPL has proposed to state and local regulators for their approval. The Staff notes that the approval of any changes to this remedial action, or its inclusion as a license condition, is outside the NRCs jurisdiction. Section 2.8.3 also now includes a summary of comments from independent peer reviews of FPLs Remedial Action Annual Status Reports, as well as the actions FPL took in response to those comments.)

36 Motion to Admit at 13-14.

37 Dismissal at 9 (citing Petitioners New and Amended Contentions at 13).

38 Dismissal at 9.

39 10 C.F.R. § 2.309(c)(1).

9 documents it intends to rely on to support its position in a hearing.40 The crux of the Boards holding appears to be that the Board is unable to make a good cause finding because Miami Waterkeeper has not provided information with the level of specificity required to support Miami Waterkeepers contention.41 Because the term specificity is not defined or even mentioned anywhere in the regulations, and because Miami Waterkeeper did indeed reference specific sources and documents as required by the regulations that should have enabled the Board to determine whether the information was new or materially different, the Commission should reverse the Boards decision.

The Board acknowledges that Miami Waterkeeper referenced specific sources and documents in its briefing,42 but nevertheless concluded that these references lacked the specificity required to support either a showing of good cause or to support an admissible contention.43 There is no support for this heightened specificity standard in the regulations at issue. Even the Board concedes this point in a footnote.44 That should be the end of the matter; the Board grounded its decision on a standard with no basis in law and must be reversed.

The Boards justification for imposing the specificity standard does not withstand scrutiny. In attempting to will that standard into existence, the Board acknowledges that the regulation makes no mention of specificity, but notes that it does require Miami Waterkeeper to demonstrate and show that the information is truly new, thereby (in the Boards view) suggesting that specificity is implied or synonymous with these other regulatory terms.45 While specificity does not appear in the regulations, the word specific does and undermines the Boards conclusion that Miami Waterkeepers references fall short.46 The relevant provision of the regulation explains that Miami Waterkeeper must [p]rovide a 40 10 C.F.R. § 2.309 (f)(1)(v).

41 Dismissal at 10.

42 Dismissal at 9-10 (Miami Waterkeeper points generally to the Staffs seventeen-page discussion and quotes a portion of the Staffs analysis).

43 Dismissal at 9.

44 Dismissal at 10, note 46 (Although the agencys timeliness requirements in 10 C.F.R. § 2.309(c) do not mention specificity, they require a participant, like Miami Waterkeeper, to demonstrate and show that the information upon which a new or amended contention is based is truly new.).

45 Id.

46 The term specific appears eight times, but the relevant reference is at 10 C.F.R. § 2.309(f)(1)(v).

10 concise statement of the alleged factstogether with references to the specific sources and documents on which Miami Waterkeeper intends to rely upon at the hearing.47 The regulations do not require that Miami Waterkeeper reference specific information within the specified sources and documents, but rather that it merely reference the specific sources and documents. Miami Waterkeeper has more than met that burden.

Miami Waterkeeper referenced specific sources and documents when it pointed the Board to the sections of the FSEIS that should have, but did not, contain the requisite NEPA analyses. Not only did Miami Waterkeeper reference specific sources and documents, it also specified page numbers and sections upon which it based its contentions. Miami Waterkeepers motion to admit amended and new contentions explained that:48 The 2024 FSEIS at pages 2-24 to 2-40 discusses the impacts on groundwater quality, incorporating new information that the Petitioner provided regarding groundwater contamination. However, the 2024 FSEIS does not compare groundwater impacts to a no action alternative where the CCS is no longer used as a heat sink. Section 3.2 of the 2024 FSEIS (Comparison of Alternatives) states that Staff evaluated a no action alternative in the 2019 FSEIS but has not identified any significant new information that would change its evaluation of these discussions. (Pages 2-24 to 2-40 of the FSEIS equate to Sections 2.8.3 and 2.8.3.2 of the FSEIS.)

(parenthetical added).

Miami Waterkeepers references to the specific sources and documents in Miami Waterkeepers motion were specific enough to elicit responsive answers from Staff and FPL.49 Yet when Miami Waterkeeper sought to respond to Staff and FPLs defenses in its reply brief, the Board granted FPLs motion to strike those portions of the reply claiming that Miami Waterkeeper improperly made a late attempt to provide specific references.50 This unreasonably narrow restriction of the reply was erroneous. There is little point granting petitioners a chance to reply if they cannot use that reply to respond and refute arguments in the Applicants and Staffs response briefs.

Moreover, it is unclear what more Miami Waterkeeper could have done in 47 10 C.F.R. § 2.309(f)(1)(v) (emphasis added).

48 Motion to Admit at 13.

49 See Applicants Answer to Petitioners Motion to Admit New and Amended Contentions on the Final Site-Specific Environmental Impact Statement, ADAMS Accession No. ML24155A267 (June 3, 2024); Staff Answer to Amended and New Contentions and Petition for Waiver, ADAMS Accession No. ML24155A110 (June 3, 2024).

50 Dismissal at 12.

11 referencing these specific documents to support its contention that Staff failed to perform and omitted the required NEPA analysis. The Board applied an incorrect legal standard for specificity. The Commission should reverse the Boards decision and admit the contention.

2. The Board erred when it dismissed Miami Waterkeepers Contention 1-B because Miami Waterkeepers good cause filing shows that the Staff applied the wrong standard in assessing the impact of the proposed action on groundwater quality.

The Board committed clear error when it dismissed Miami Waterkeepers contention that the 2024 FSEIS employs the wrong standard to determine the impact of the CCS on potable water because it concluded that Staffs use of the hypersaline standard is not new and that Miami Waterkeeper had not provided sufficient information to demonstrate a genuine dispute with Staffs groundwater-quality analysis.51 The Board admitted reformulated contention that [t]he 2023 Draft SEIS fails to take a hard look at impacts to groundwater quality because it does not include an explanation for the Staffs conclusion that the uncertainty in retracting the hypersaline groundwater plume could result in moderate impacts.52 Staff addressed that omission with an explanation in the 2024 FSEIS that Staff was using a hypersalinity standard to reach its conclusion that groundwater impacts would be moderate.53 However, Staffs analysis on groundwater quality arbitrarily focused entirely on hypersalinity, rather than potability, in determining that impacts to a drinking water source would be small to moderate.54 Having shown its work for the first time in the 2024 FSEIS, Miami Waterkeeper was only then in a position to know of the flaw in Staffs methodology.

The Board fixated on the fact that Staff focused on the hypersaline plume in its groundwater-quality impacts analysis in the 2023 DSEIS in dismissing Miami Waterkeepers contention, stating that Miami Waterkeeper could have raised the potability contention as a challenge to the 2023 DSEIS.55 But this misconstrues Miami Waterkeepers contention which is that Staff should have considered potability in its 51 Dismissal at 16.

52 Atomic Safety and Licensing Board Panel Memorandum and Order (Granting Request for Hearing) LBP-24-3, ADAMS Accession No. ML24067A280 (Mar. 7, 2024) at 22.

53 2024 FSEIS at 2-24-2-40.

54 2024 FSEIS at 2-40.

55 Dismissal at 16.

12 determination of whether the impact of the subsequent license renewal on groundwater-quality would be small, moderate, or large, not merely that Staff was considering the hypersaline plumes effect on groundwater.

In essence, the Staff assumed, erroneously, that if the hypersaline plume retracted, the saline plume would do the same. Miami Waterkeeper presented the Nuttle report and new data showing tritium56 in wells far outside the hypersaline plume to demonstrate the Staffs error. Therefore, merely demonstrating retraction of the hypersaline plume does not demonstrate a lack of impact in the far field where the drinking water wells are. The Board totally misconstrued this point.

The fact that Staff did not use a potable water metric to determine whether the CCS would destabilize a potable drinking water aquifer is both material and new. It is material because the difference between moderate and large is that large impacts are sufficient to destabilize important attributes of the resource and the Biscayne Aquifer is the resource that provides drinking water for millions of people.57 It is new because Staff only finally explained how it determined the low-to-moderate impact level after the Board admitted Miami Waterkeepers reformulated contention and Staff included these details in the 2024 FSEIS. The Commission should reverse the Boards decision and admit the contention because Miami Waterkeeper has shown good cause that this is the first opportunity it has had to challenge Staffs rationale.58 As an independent, alternative basis for dismissing this contention, the Board also concluded that Miami Waterkeeper had not provided sufficient information to demonstrate a genuine dispute with Staffs groundwater analysis.59 The Board determined that Staff acknowledged that the CCS has contributed to the degradation of groundwater quality through the formation and movement of a hypersaline plume as 56 As explained in Miami Waterkeepers Request for Hearing and Petition to Intervene, the radionuclide tritium, present in high levels in the CCS, is an excellent tracer for CCS water and can indicate where CCS water is discharged through groundwater into Biscayne Bay. Request for Hearing and Petition to Intervene at 27.

57 2024 FSEIS at 1-4.

58 Tennessee Valley Authority (Clinch River Nuclear Site), 88 NRC 55 (2018) (upholding the Boards decision to admit a contention when it had previously admitted a contention of omission and Staff later added responsive information).

59 Dismissal at 16, 18.

13 well as FPLs efforts to address it and chided Miami Waterkeeper for not engaging with that analysis.60 But this also misses the point. Miami Waterkeepers dispute is not with the analysis of the hypersaline plume, it is with the omission of analysis of the saline plume, which cannot be presumed to behave like the hypersaline plume. That Miami Waterkeeper did or did not engage with the Staffs analysis of the impact of hypersaline water to groundwater quality is irrelevant to whether the Board should admit the contention because Miami Waterkeepers contention is that Staff failed to consider the impact of non-potable saltwater that falls below the arbitrarily high hypersaline target.

This substantial body of non-potable saltwater, currently estimated to be discharging into the Biscayne Aquifer from the CCS at a rate of four to nine million gallons per day, is stunningly absent from the Staffs impact analysis. NRC regulations therefore require that the Board authorize a hearing on these issues. The Board committed clear, reversible error when it overlooked or misunderstood the important evidence provided in Miami Waterkeepers contentions. The Commission should reverse the Boards decision and admit the contention.

3. The Board erred in dismissing Contention 1-C that Staff underestimated drinking water impacts when the Board wrongly concluded that the contention extended beyond the challenge to the information the Staff added to address the contention admitted in LBP-24-3.

The Board erred in dismissing Miami Waterkeepers contention that Staff underestimated impacts to drinking water because the contention was responsive to new information Staff added in the 2024 FSEIS. The Board dismissed the contention finding that it extended beyond a challenge to the information Staff added to address admitted contention LBP-24-3 and was not based on new and materially different information and therefore did not satisfy the good cause or admissibility standards. First, the Board claims that Miami Waterkeeper seeks to challenge the support underpinning the Staffs analysis which the Board claims has not materially changed since the 2023 DSEIS,61 and since the Board previously dismissed a similar contention, Miami Waterkeeper cannot 60 Dismissal at 16-17.

61 Dismissal at 20.

14 raise the contention again without new information.62 As Miami Waterkeeper explains in its reply briefing, Staff materially changed its groundwater analysis in Section 2.8.3.2 of the 2024 FSEIS.63 Specifically, Section 2.8.3.2 discusses a number of new and material issues including: (1) county-contracted peer reviews of FPLs remediation found the westward migration of the hypersaline plume might not have been entirely halted; (2)

FPLs modeling of multiple remedial alternatives to the current recovery well system approach, none of which fully retract the hypersaline plume by 2033; (3) the increase in recovery well system pumping capacity in FPLs preferred alternative and the capacity limits of the existing deep well injection system; and (4) that there is uncertainty regarding the groundwater modeling to the start of the SLR term and that there is no groundwater modeling to the end of the SLR term, which precludes the staff from reaching a definitive conclusion about the likely extent of the hypersaline plume during the SLR term. Miami Waterkeeper engaged with Section 2.8 of the 2024 FSEIS by attaching to its Motion to Admit Amended and New Contentions an expert report by Dr. William K. Nuttle showing that CCS-origin water persists at the saltwater interface in wells miles away from Turkey Point-despite five years of FPLs groundwater plume remediation activities.64 The Nuttle Report challenged Staffs findings in Section 2.8 regarding CCS operations, including that the impact of the operation of the Turkey Point Units 3 and 4 during the SLR term on groundwater quality will be SMALL to MODERATE.

Next, the Board complains that some of the information Miami Waterkeeper relies upon predates the 2023 DSEIS by decades. But it is arbitrary to dismiss a contention on the basis that it incorporates resources that predate the 2023 DSEIS instead of allowing a hearing to debate the merits of the contention. The Nuttle Report provided information and data from a range of dates, from the 1978 Dames and Moore study that outlined a mechanism by which water from the CCS could migrate far-westward by way of differences in hydraulic head gradients, to recent (November 2023) county tritium data confirming CCS-origin water far west of the plant and encroaching on wellfields for 62 Dismissal at 20-21.

63 Reply at 22-23.

64 2023 FSEIS at 2 2-40.

15 potable water.65 In fact, Miami-Dade County tritium data from November 2023 shows a trend of increasing tritium at one well in particular near the Newton wellfield, despite five years of FPLs hypersaline plume remediation activities.66 Taken together, this is strong evidence that the findings of the 1978 Dames and Moore study have come true.

Every meaningful scientific analysis contains new and old facts that an expert uses to draw conclusions about what is the likely effect of certain operations. Here the Board erroneously required that all the data in an analysis had to be new to pass the new and significant information test. Under this approach, no analysis would pass muster. Instead, the Board should have focused on whether the new information Miami Waterkeeper presented along with old facts is significant. Here, because the new information validated a theory that the Staff had rejected, it was indeed significant.

In its 2012 rulemaking simplifying the contention admissibility rule to require a good cause showing, the NRC recognized that petitioners may include previously available information as a basis for a contention, and that a new NEPA analysis, such as the one at issue in Section 2.8.3 of the 2024 FSEIS, could serve as basis:

This...does not mean that all contentions based on previously available information are inadmissible... Where previously available information provides the basis for a new conclusion or analysis, such as in an NRC NEPA document, a participant might be able to construct a legitimate contention challenging the new conclusion or analysis without explicitly basing the contention on the previously available information. For example, an NRC NEPA document with a new conclusion based on previously available information not contained in the applicants environmental report, such as information from a previously available, but unreferenced, study, might be a proper subject for a contention. Under final § 2.309(c)(1), a contention that challenges a new Staff conclusion must, in addition to meeting the other § 2.309(c)(1) factors, still demonstrate that new information encompassed in the new conclusion is materially different from information that was previously available.67 In essence, Miami Waterkeeper raised the fact that FPLs remediation system, including the CCS freshening, adds more salt to the drinking water aquifer,68 yet Staff 65 Expert Report of William Nuttle, Ph.D, PEng (Ontario), Attachment A to Motion to Admit, Figure 7, at 28.

66 Id.

67 Amendments to Adjudicatory Process Rules and Related Requirements, 77 Fed. Reg. 46562, 46566 (Aug.

3, 2012).

68 Audrey Siu, Comment Letter on behalf of Miami Waterkeeper RE: Notice of Intent for Public Comment on Draft Environmental Impact Statement NUREG-1437, Supplement 5a, Second Renewal, Site-Specific Environmental Impact Statement for License Renewal of Nuclear Plants Regarding Subsequent License Renewal for Turkey Point Generating Unit Nos. 3 and 4, Draft Report for Comment, Docket Nos. 50-250 and 50-251; NRC-2022-0172 (Nov. 26, 2023) at 5 [hereinafter Miami Waterkeeper Comment Letter on

16 itself failed to address this information in its 2024 FSEIS and instead rehashed that the remediation system is a local and state requirement.69 In doing so, Staff failed to grasp the difference between saline and hypersaline, and failed to grasp the significance of billions of gallons of saltwater entering the aquifer over the SLR term, as driven by CCS operations. The Board dismissed Miami Waterkeepers contention as different data and effectively adjudicated the contention without a hearing.70 In dismissing the contention, the Board abused its discretion as this information would prompt a reasonable mind to inquire further about the contention.71 The Commission should reverse the Boards decision and admit the contention so there can be a hearing.

B. The Board erred when it dismissed Contention 2 because Miami Waterkeepers good cause filing shows Staff erroneously considered only the direction of the hypersaline plume, rather than the increase in overall salinity, when assessing impacts to the Miami cave crayfish.

The Board erred when it determined that Contention 2 did not raise a genuine dispute with Staffs analysis of impacts to the imperiled Miami cave crayfish.72 Contention 2 argues the 2024 FSEISs analysis of the potential impacts of Turkey Points continued operation during the SLR period on Miami cave crayfish is inadequate and its determination that continued operation is unlikely to adversely affect or jeopardize the Miami cave crayfish is unsupported.73 The Boards denial of Contention 2 is in clear error and an abuse of discretion because it overlooked relevant evidence in finding Miami Waterkeeper did not raise a genuine dispute with the reasonableness of Staffs analysis.74 In making this finding, the Board cited data that Staff references to support its conclusion that the hypersaline plume is moving east, in the direction of the Turkey Point site boundary and no longer advancing west, in the direction of the Biscayne Aquifer.75 But 2023 DSEIS].

69 2024 FSEIS at 2-25.

70 See, e.g., Dismissal at 22 (We therefore conclude, without going to the merits of its claims) 71 Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process, 1986 WL 328108 at *3 (June 30, 1986).

72 Dismissal at 26.

73 Motion to Admit at 36.

74 Dismissal at 26-28.

75 Dismissal at 26 (Miami Waterkeeper principally relies on data predating FPLs efforts to remediate the hypersaline plume... Those [remediation] efforts have generated peer-reviewed data that the Staff references to support its conclusion that the [hypersaline] plume is moving east, in the direction of the Turkey Point site boundary and no longer advancing west, in the direction of the Biscayne Aquifer.).

17 this reliance is misplaced. First, the discussion about the plume is only about the hypersaline plume,76 and fails to discuss data or analyses addressing the existence and spread of increases in salinity levels that are significantly lower than hypersaline, but which are understood to be harmful to the Miami cave crayfish.77 Instead, the 2024 FSEIS simply notes that the hypersaline plume does not currently overlap with the endemic range of the Miami cave crayfish and concludes the crayfish therefore are unlikely to experience measurable effects from saltwater intrusion.78 To similar effect, without clear factual support, the 2024 FSEIS arbitrarily expands its conclusion that based on the results obtained to date, it is likely that, with continued freshening of the CCS to achieve an average annual CCS salinity of 34 practical salinity units (psu) or less... the operation of Turkey Point Units 3 and 4 during the SLR term would not worsen the hypersaline groundwater plume outside the plant boundary to the much broader conclusion that continued CCS freshening would ensure that water originating from the CCS does not influence the Biscayne Aquifers saltwater/freshwater interface within the species range.79 These statements, coupled with Staffs unsubstantiated assumptions that the hypersaline plume will retract, comprise the extent of the 2024 FSEISs brief, conclusory statements on the effects of salinity on the Miami cave crayfish.

Importantly, however, as Miami Waterkeeper explained in its Motion to Admit Amended and New Contentions, the crayfish is susceptible to the effects of water salinity at any level above natural freshwater conditions.80 Although the species precise salinity tolerance is unknown, the United States Fish and Wildlife Service has concluded that it is highly unlikely the crayfish could sustain reproductively successful populations at salinity measures above those evidenced in the natural freshwater aquifer environments from which they have been collected (i.e., 0.45 ppt).81 Neither the Boards 76 Id.

77 Reply at 28.

78 2024 FSEIS at 2-67.

79 Id.

80 Motion to Admit at 46; See also U.S. Fish & Wildlife Serv., Miami Cave Crayfish Species Status Assessment Version 1.2 (Sept. 20, 2023) at 69 [hereinafter Status Assessment].

81 Motion to Admit at 42; Status Assessment at 69. According to FWS, even if the crayfish in fact have a much higher salinity tolerance of 18 ppt, the species still would be unable to survive in the salinity levels

18 Memorandum and Order nor the 2024 FSEIS addresses the existence or expansion of salinity at these levels as a result of the CCS; in short, they fail to address the salinity levels that matter to the Miami cave crayfish.82 The Boards dismissal order responds to this portion of Miami Waterkeepers claim with one sentence: Similarly, to the extent Miami Waterkeeper challenges the Staffs focus on the hypersaline plume, as opposed to water at a lower salinity that purportedly would still be unsuitable for crayfish habitability, Miami Waterkeeper does not explain how that lower salinity is unaccounted for in the Staffs analysis. Given the extensive discussion in Miami Waterkeepers Motion to Admit of the logical leaps in the 2024 FSEIS and the needs of the Miami cave crayfish as described in its recent Status Assessment, this cursory dismissal is ill-founded.83 Moreover, Miami Waterkeeper submitted the best available data showing retraction of the hypersaline plume is not proceeding as planned or predicted.84 Nonetheless, the Board relied upon FPLs compliance with state and local requirements as evidence of the reasonableness of Staffs conclusion that conditions are not likely to worsen and that continued operation is not likely to adversely affect the Miami cave crayfish.85 The Board presumed Staffs reliance on state and local enforcement and oversight of FPLs hypersaline plume remediation is reasonable given the presumption of regularity the Board accords the actions of government entities.86 This puts fiction before fact. As discussed above, recent data show saline water is continuing to flow out away from the CCS toward potable water sources and Miami cave crayfish habitat.87 To adopt a presumption that conditions will not continue to worsen in the face of data showing that conditions are indeed continuing to worsen in some areas, simply because the state and local governments will continue to oversee failing remediation activities, squarely matches the definition of arbitrary decisionmaking.88 The Boards created by saltwater intrusion into the Biscayne Aquifer. Id.

82 Dismissal at 27.

83 See Motion to Admit at 41-42.

84 See Miami Waterkeeper Comment Letter on 2023 DSEIS, supra note 68.

85 Dismissal at 26-27.

86 Dismissal at 27, note 135.

87 See discussion at Section III.A.3, supra.

88 See, e.g., W. Deptford Energy, LLC v. FERC, 766 F.3d 10, 22 (D.C. Cir. 2014) ([G]loss[ing] over or

19 denial of Contention 2 is in clear error and an abuse of discretion. The Commission should reverse the Boards decision and admit the contention.

C. The Board erred in dismissing Contentions 3-A and 3-B concerning failure to analyze reasonably foreseeable climate change impacts during the subsequent license renewal period.

While the Board concluded Miami Waterkeeper had good cause, the Board erred in dismissing the contentions as substantively similar to prior dismissed contentions or failing to raise a genuine dispute.89 Miami Waterkeepers Contention 3-A argues the 2024 FSEIS failed to analyze the climate change-related environmental impacts that are reasonably foreseeable during the license renewal period. Miami Waterkeepers Contention 3-B argues Staff failed to update the 2024 FSEISs evaluation of FPLs SAMA analysis to reflect the effects of climate change on accident risk. The Board found that each satisfied the good cause standard, but nonetheless dismissed Contention 3-A as substantially similar to a prior dismissed contention and Contention 3-B as inadmissible for failure to raise a genuine dispute. Staff violated NEPA when it short-changed its cumulative effects analysis of how climate change will affect Turkey Point operations during the SLR.90 The Board committed reversible error when it dismissed Miami Waterkeepers contentions. The Commission should reverse the Boards decision and admit the contentions.

1. The Board erred in dismissing Miami Waterkeepers contention that Staff has not adequately addressed climate change in its cumulative effects analysis because it is within the scope of the NEPA review.

The Commission should reverse the Boards decision dismissing Miami Waterkeepers climate change cumulative effects analysis contention because the contention meets the standards for admissibility. Contention 3-A claims the FSEIS fails to adequately analyze climate change-related environmental impacts that are reasonably foreseeable to occur during the subsequent license renewal period. The contention centers swerv[ing] from prior precedents without discussion cross[es] the line from the tolerably terse to the intolerably mute.) (quoting Bush-Quayle '92 Primary Committee, Inc. v. FEC, 104 F.3d 448, 453 (D.C. Cir.

1997).

89 Dismissal at 34.

90 Renewing Nuclear Power Plant Operating Licenses-Environmental Review, 88 Fed. Reg. 13329 (Mar. 3, 2023) (noting climate change impacts on affected resources will be treated on a plant-specific basis).

20 on a new report by the Government Accountability Office (GAO) that identified Turkey Point as one of the most vulnerable plants in the country to flood risk from sea level rise and hurricane storm surges and that these specific threats will worsen during the life of the renewed license.91 The report warns that not only can the cooling canals be inundated, but loss of power could impact the plants ability to shut down or maintain safe conditions, resulting in the potential release of radiological material.92 The GAO report contains site-specific information regarding potential climate change impacts, and the contention points out that Staff has not yet incorporated this information in its NEPA analysis. Miami Waterkeeper argues in its 2024 Motion to the Board that this failure renders Staffs cumulative effects analysis noncompliant with NEPA and NRCs regulations,93 yet the Board dismissed the contention finding that it does not meet the standards for admissibility under 10 C.F.R. § 2.309(f)(1).

The Board does not detail which of the various provisions of admissibility Miami Waterkeeper runs afoul of and happens to agree that the GAO report is new information that is materially different from other information because it was published after Staff published its 2024 FSEIS and because the report does more than merely compile information.94 Despite these findings, the Board concluded that this new information could not sustain the contention. The Board appears to accuse Miami Waterkeeper of attempting to cure a prior submitted contention on the 2023 DSEIS that the Board dismissed,95 but this rationale underscores the Boards misunderstanding of the nature of the contention, which is based on the 2024 FSEIS, not the 2023 DSEIS, and the GAO Report, which the Board agrees post-dates both the 2023 DSEIS and 2024 FSEIS. In any event, it is true that Miami Waterkeeper has been trying to get FPL and the NRC to acknowledge the serious impacts of climate change on the SLR since 2018.96 Miami 91 U.S. Government Accountability Office report GAO-24-106326, Nuclear Power Plants: NRC Should Take Actions to Fully Consider the Potential Effects of Climate Change (Apr. 2, 2024) at 18 [hereinafter GAO report].

92 GAO report at 9, 23.

93 Motion to Admit at 54.

94 Dismissal at 33-34.

95 Dismissal at 34 (citing LBP-24-3, 99 NRC at 64-65 dismissing the contention on the ground that Miami Waterkeeper did not provide sufficient support to challenge the DESISs cumulative impacts analysis as to climate change).

96 Request for Hearing and Petition to Intervene Submitted by Friends of the Earth, Natural Resources

21 Waterkeeper has raised these concerns in its comment letters and prior contentions;97 Staff has still not addressed these issues; the Board continues to dismiss the contentions.

The fact that Staff ignored Miami Waterkeepers prior entreaties does not warrant dismissal of a timely new contention based on new material information. Indeed, the failure of Miami Waterkeepers prior efforts shows why this contention is essential.

The Board also asserts that Miami Waterkeeper failed to point out the necessary link between the report and the purported gaps in the Staffs cumulative impacts analysis.98 However, Miami Waterkeeper described these gaps at-length by citing to the GAO reports site-specific findings as to Turkey Point and to the deficiencies in the FSEIS.99 These documents show that Staff did not do the analysis, thinking it unnecessary because Staff believes that a site-specific analysis of the impacts of climate change on the safe operation of the plant is outside the scope of the license renewal,100 that other provisions of NRC regulations deal with the effects of climate change,101 and that Turkey Points current licensing basis is subject to NRC oversight and all times and is separate from license renewal licensing actions.102 The Commission itself has recognized that NEPA requires the NRC to discuss the environmental impacts of the proposed action, which is the operation of Turkey Point for an additional twenty years beyond the expiration of its renewed licenses.103 But Staff provides no legal support for its arbitrary conclusion, and the Board does not address this in its decision.

Defense Council, and Miami Waterkeeper, ADAMS Accession No. ML18213A418 (August 1, 2018),

at 3-57.

97 Miami Waterkeeper Scoping Comments, ADAMS Accession No. ML23333A022 (Nov. 7, 2022) at 4, 9-11; Miami Waterkeeper Comments on 2023 DSEIS at XX, Request for Hearing and Petition to Intervene Submitted by Friends of the Earth, Natural Resources Defense Council, and Miami Waterkeeper, ADAMS Accession No. ML18213A418 (August 1, 2018), at 3-57; Request for Hearing and Petition to Intervene at 45-60, Motion to Admit at 44-80.

98 Dismissal at 36.

99 Motion 55-68.

100 2024 FSEIS A-34. Staff suggests that 10 C.F.R. 54, Requirements for Renewal of Operating Licenses for Nuclear Power Plants, only require that Staff verify that the applicant identifying aging structures and components and a proposal to manage them. 2024 FSEIS A-34. Staff maintains that Sections 3.5.1.1 and 4.15.3.3 of the 2019 FSEIS address these concerns.

101 2024 FSEIS A-34 citing 10 C.F.R. Part 100 which requires consideration of meteorological and hydrological criteria when siting the plant and 10 CFR Part 50, Appendix A which requires safe design to withstand natural phenomena such as flooding.

102 2024 FSEIS A-35.

103 CLI-22-02, ADAMS Accession No. ML22055A496 (Feb. 24, 2022) at 9.

22 Staff argues in the alternative that the 2019 FSEIS already contains all the climate change analysis the NRC needs to consider.104 The 2024 FSEIS states that because none of the new science since the 2019 FSEIS alters Staffs conclusions regarding climate change, these impacts are addressed in the Turkey Point [2019] FSEIS.105 The Environmental Protection Agency (EPA) echoed Miami Waterkeepers concerns about Staffs 2023 SDEIS:

NRC continues to conclude that climate change impacts on environmental resources have been addressed in the 2019 FSEIS and DSEIS. The EPA recommends that the SFEIS provide a more detailed description of climate models used for determining storm surge and flooding, including the rationaleWe recommend that the FSEIS include further evaluation or more details site-specific climate-related impacts, including discussions of the frequency and severity of major storm events, wildfires, or droughts that could lead to power disruptions.106 In response to EPAs exhaustive efforts to compel Staff to actually analyze how recent climate data might provide insight into how sea level rise, hurricanes, heat, and drought might impact plant operationscommon sense, good governance measuresStaff concedes that since the 2019 FSEIS, the Intergovernmental Panel on Climate Change (IPCC) has published a fifth national climate assessment, so it added an update to appendix E, but then argues it did not need to update its actual climate change analysis from 2019. In response to comments on the 2023 DSEIS that point out that the DSEIS lacks the requisite hard look at the cumulative effects of climate change on the plants operations, the 2024 FSEIS claims that analyses and conclusions in the [2019] FSEIS remain valid and therefore no changes have been made to the [2024 FSEIS].107 This rationale is arbitrary particularly given that the Commission told Staff that the 2019 FSEIS did not comply with NEPA.108 104 2024 FSEIS at E-9 (Accordingly, Section 4.15.3.1 of the FSEIS (NRC 2019) discusses the observed changes in climate and the potential future climate change across the Southeast region of the United States during the Turkey Point SLR term, based on climate model simulations under future global GHG emissions scenarios.).

105 2024 FSEIS at E-11.

106 EPA, Comments on the Site-Specific Final Environmental Impact Statement for License Renewal of Nuclear Plants Regarding Subsequent License Renewal for Turkey Point Nuclear Generating Unit Nos. 3 and 4, NUREG 1437, Supplement 5a, Second Renewal Docket 50-250 and 50-251, NRC-2022-0172, CEQ 20240060 (May 6, 2024).

107 2024 FSEIS at A-13.

108 CLI-22-02, ADAMS Accession No. ML22055A496 (Feb. 24, 2022) at 2; CLI-22-03, ADAMS Accession No. ML22055A527 (Feb. 24, 2022) at 4.

23 Neither of Staffs contradictory theoriesthat it need not consider climate change in renewing the license and that any such obligation was satisfied in a 2019 FSEISis supported by law. Therefore, this contention raises purely a legal issue: whether the NRC must analyze the effects of rising seas, increased storm activity and heat, and worsening drought conditions on the relicensing of the Turkey Point nuclear power plant. The Board committed a clear legal error, and the Commission should reverse the decision and admit the contention.

2. The Board erred when it dismissed Miami Waterkeepers contention that FPL has not updated its SAMA analysis to reflect the effects of climate change on accident risk because that is what NEPA demands.

The Commission should admit the contention that FPL must update its SAMA analysis because NEPA demands it. To prepare a NEPA-compliant environmental impact statement during a license renewal application, an applicant must consider the environmental impacts of severe accidents at nuclear power plants, their probability of occurrence, and potential means available to mitigate those accidents in severe accident mitigation alternatives (SAMA) analyses.109 FPL last conducted a SAMA analysis more than two decades ago.110 The Commission classifies a SAMA analysis as a Category 2 issue that must be evaluated on a site-specific basis.111 Thus, in order to comply with NEPA, FPL must disclose, and Staff must review and audit, the risks of a severe accident posed by running a 52-year old plant into the middle of the century where seas will be higher and hurricanes more intense.

Miami Waterkeeper relies on the GAO report again to highlight the shortsighted deficiencies of Staff and FPLs assessment of extending the life of a nuclear power plant at or near sea level at the extreme tip of lower Florida. Again, the Board broadly dismisses the contention finding that it fails to raise a genuine dispute with Staffs SAMA analysis.

The Board found it particularly relevant that the GAO report did not identify gaps in the 109 2024 FSEIS at D-1.

110 2024 FSEIS at E-7 ([An analysis of SAMAs was performed for Turkey Point and evaluated by the Staff at the time of initial LR (NRC 2002).).

111 10 C.F.R. Part 51, Appendix B.

24 NRC environmental review,112 but that was not the purpose of the report, nor did Miami Waterkeeper use the GAO Report as a primary source for claiming the SAMA analysis and FSEIS were inadequate. Congress asked the U.S. Government Accountability Office to review the climate resiliency of energy infrastructure, so the GAO produced the report entitled Nuclear Power Plants: NRC Should Take Actions to Fully Consider the Potential Effects of Climate Change. Beyond its general conclusion that NRC has not done enough to fully consider climate change impacts,113 this report found that Turkey Point is in the highest risk level for flooding and high-intensity hurricanes.114 Miami Waterkeeper uses the fact that the GAO Report has a more site-specific analysis of the cumulative effects of climate change on the continued operation of Turkey Point than Staffs own analysis to illustrate just how deficient the FSEIS and SAMA are.

Miami Waterkeeper raised concerns with the 2023 DSEISs analysis of climate change impacts and severe accident risk. The Board then dismissed the contention claiming Miami Waterkeepers concerns were based on speculation and not specific enough. Here Miami Waterkeeper offers a government agency report that details site-specific climate concerns, but the Board now flippantly claims that Miami Waterkeeper makes no effort to connect the dots between the GAO report and the 2024 FSEISs inadequacies, but that is plainly false.115 CONCLUSION The purpose of the NRCs strict contention rules is not to weed out real disputes susceptible to resolution in an adjudication or to simply put other parties on notice, but rather, to ensure that hearings are triggered only by those able to proffer at least some minimal factual and legal foundation.116 Here, Miami Waterkeeper has more than met this standard by providing substantial facts and legal foundations in presenting its contentions to the Board.

Granting this Petition is in the public interest. The Turkey Point plant is adjacent to 112 Dismissal at 38.

113 GAO Highlights of GAO-24-106326, a report to congressional requesters.

114 GAO report at 55.

115 Motion to Admit at 69-80.

116 Duke Energy Corporation (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 1999 NRC LEXIS 52 (Apr. 15, 1999).

25 Biscayne Bay in Southeast Florida. It is also the only nuclear power plant that uses a 5,900-acre CCS as the ultimate heat sink for its operations. This CCS is indisputably the source of a saline plume that is harming groundwater and surface water resources in a region where water resources are already stressed, and the ongoing migration of this saline plume must be properly assessed.117 It is in the publics interest to ensure the NRC makes an informed decision about extending FPLs license until 2053 when climate conditions will be markedly worse than today. Granting this Petition and giving Miami Waterkeeper an opportunity to present its case at a hearing would only further the publics interest, particularly when the license renewal will not take effect for another 13 years.

The Commission should remedy these clear errors in material facts and departures from governing precedents and established law, which raise substantial and important questions of law and policy warranting review.

Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d)

Jaclyn Lopez Jacobs Public Interest Law Clinic for Democracy and the Environment Stetson University College of Law 1401 61st Ave. S.,

Gulfport, FL 33707 727-490-9190 jmlopez@law.stetson.edu Signed (electronically) by Rachael Curran Jacobs Public Interest Law Clinic for Democracy and the Environment Stetson University College of Law 1401 61st Ave. S.,

Gulfport, FL 33707 727-537-0802 rcurran1@law.stetson.edu Executed in Accord with 10 C.F.R. § 2.304(d)

Richard Webster Law Office of Richard Webster 133 Wildwood Avenue Montclair NJ 07043 (202)-630-5708 rwebster463@gmail.com Counsel for Miami Waterkeeper Dated September 23, 2024 117 See discussion at Section III.A.3, supra.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of Docket Nos. 50-250-SLR-2 &

50-251-SLR-2 FLORIDA POWER & LIGHT COMPANY Turkey Point Nuclear Generating Station, Unit Nos. 3 and 4 September 23, 2024 Subsequent License Renewal Application CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, copies of the foregoing Miami Waterkeepers Petition for Review of the Atomic Safety and Licensing Boards Ruling in LBP-24-08 were served by the Electronic Information Exchange (the NRCs E-Filing System) to all parties of record in the above-captioned docket.

Signed (electronically) by Rachael Curran Jacobs Public Interest Law Clinic for Democracy and the Environment Stetson University College of Law 1401 61st St. S.

Gulfport, FL 33707 727-537-0802 rcurran@law.stetson.edu Counsel for Miami Waterkeeper Dated September 23, 2024