ML24292A198
| ML24292A198 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 10/18/2024 |
| From: | Bessette P, Clausen S, Hamrick S, Lighty R Florida Power & Light Co, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| ASLBP 24-981-01-SLR-BD01, RAS 57159, 50-251-SLR-2, 50-250-SLR-2 | |
| Download: ML24292A198 (0) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
BEFORE THE COMMISSION
In the matter of: Docket Nos. 50-250-SLR-2 and 50-251-SLR-2 FLORIDA POWER & LIGHT COMPANY
(Turkey Point Nuclear Generating Station, October 18, 2024 Units 3 and 4)
FLORIDA POWER & LIGHT COMPANYS ANSWER OPPOSING MIAMI WATERKEEPERS PETITION FOR DISCRETIONARY REVIEW OF LBP-24-08
RYAN K. LIGHTY, ESQ.
PAUL M. BESSETTE, ESQ.
SCOTT D. CLAUSEN, ESQ.
STEVEN HAMRICK, Esq.
FLORIDA POWER & LIGHT COMPANY
Counsel for Florida Power & Light Company TABLE OF CONTENTS I. INTRODUCTION............................................................................................................. 1 II. PROCEDURAL BACKGROUND.................................................................................... 1 III. THE COMMISSION SHOULD DENY THE PETITION................................................ 4 A. Legal Standards Applicable to Petitions for Review of Licensing Board Orders..................................................................................................................... 4 B. The Petition Fails to Conform to the NRCs Rules of Practice and Procedure............................................................................................................... 5 C. The Petition Fails to Identify a Substantial Question......................................... 6 IV. IF THE COMMISSION GRANTS THE PETITION, IT SHOULD AFFIRM THE CHALLENGED RULINGS IN LBP-24-08...................................................................... 8 A. Legal Standards Applicable to Review of Licensing Board Decisions................. 8 B. Petitioner Identifies No Error of Law or Abuse of Discretion on Contention 1........................................................................................................... 9
- 1. Petitioner Identifies No Error of Law or Abuse of Discretion on Contention 1-A......................................................................................... 10
- 2. Petitioner Identifies No Error of Law or Abuse of Discretion on Contention 1-B......................................................................................... 12
- 3. Petitioner Identifies No Error of Law or Abuse of Discretion on Contention 1-C......................................................................................... 14 C. Petitioner Identifies No Error of Law or Abuse of Discretion on Contention 2......................................................................................................... 17 D. Petitioner Identifies No Error of Law or Abuse of Discretion on Contention 3......................................................................................................... 19
- 1. Petitioner Identifies No Error of Law or Abuse of Discretion on Contention 3-A......................................................................................... 20
- 2. Petitioner Identifies No Error of Law or Abuse of Discretion on Contention 3-B......................................................................................... 23 V. CONCLUSI ON................................................................................................................ 24
i TABLE OF AUTHORITIES
Federal Court Cases United States v. Chem. Found., Inc.,
272 U.S. 1 (1926)...................................................................................................................... 19 W. Deptford Energy, LLC v. FERC, 766 F.3d 10 (D.C. Cir. 2014).................................................................................................... 19
NRC Cases Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station),
CLI-09-7, 69 NRC 235 (2009)................................................................................................... 8 Crow Butte Res., Inc. (Marsland Expansion Area),
CLI-14-2, 79 NRC 11 (2014)..................................................................................................... 8 Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2),
CLI-02-07, 56 NRC 1 (2002)................................................................................................... 23 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station),
CLI-12-1, 75 NRC 39 (2012)................................................................................................... 23 Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant),
CLI-15-23, 82 NRC 321 (2015)........................................................................................... 3, 11 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4),
ALAB-952, 33 NRC 521 (1991)................................................................................................ 8 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4),
CLI-91-13, 34 NRC 185 (1991)................................................................................................. 8 Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 & 4),
CLI-20-3, 91 NRC 133 (2020)................................................................................................... 2 Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 & 4),
CLI-22-02, 95 NRC 26 (2022)................................................................................................... 2 Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 & 4),
LBP-19-3, 89 NRC 245 (2019)................................................................................................... 2 Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 & 4),
LBP-24-03, 99 NRC __ (Mar. 7, 2024) (slip op.).................................................................. 2, 9 Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 & 4),
LBP-24-08, 100 NRC __ (Aug. 27, 2024) (slip op.)......................................................... passim Interim Storage Partners, LLC (WCS Consol. Interim Storage Facility),
CLI-20-15, 92 NRC 491 (2020)........................................................................................... 8, 17 N. Atl. Energy Serv. Corp. (Seabrook Station, Unit 1),
CLI-99-6, 49 NRC 201 (1999)................................................................................................. 11 N. States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2),
CLI-10-27, 72 NRC 481 (2010)............................................................................................... 16
ii NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1),
CLI-12-5, 75 NRC 301 (2012)................................................................................................. 17 Nuclear Mgmt. Co., LLC (Palisades Nuclear Plant),
CLI-06-17, 63 NRC 727 (2006)............................................................................................... 12 Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation),
CLI-05-16, 62 NRC 1 (2005)..................................................................................................... 5 Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation),
CLI-99-10, 49 NRC 318 (1999)................................................................................................. 3 S. Nuclear Operating. Co. (Early Site Permit for Vogtle ESP Site),
CLI-10-5, 71 NRC 90 (2010)............................................................................................... 7, 11 Shieldalloy Metallurgical Corp. (Newfield, N.J. Facility),
CLI-07-20, 65 NRC 499 (2007)........................................................................................... 8, 18 Tenn. Valley Auth. (Clinch River Nuclear Site Early Site Permit Application),
CLI-18-5, 87 NRC 119 (2018)................................................................................................. 14 USEC Inc. (Am. Centrifuge Plant),
CLI-06-10, 63 NRC 451 (2006)........................................................................................... 8, 22
Regulations 10 C.F.R. § 2.304........................................................................................................................ 4, 5 10 C.F.R. § 2.309................................................................................................................... passim 10 C.F.R. § 2.311........................................................................................................................ 4, 7 10 C.F.R. § 2.340............................................................................................................................ 6 10 C.F.R. § 2.341................................................................................................................... passim 10 C.F.R. § 2.1210.......................................................................................................................... 6 10 C.F.R. Part 54........................................................................................................................... 20
Federal Register Notices Changes to Adjudicatory Process; Final Rule, 69 Fed. Reg. 2,182 (Jan. 14, 2004)............................................................................................. 3 Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for the Miami Cave Crayfish; Proposed Rule, 88 Fed. Reg. 64,856 (Sept. 20, 2023)....................................................................................... 17 Florida Power & Light Company; Turkey Point Nuclear Generating, Unit Nos. 3 and 4, License renewal application; receipt, 83 Fed. Reg. 17,196 (April 18, 2018)......................................................................................... 1
iii Other Authorities Licensing Board Memorandum and Order (Granting Unopposed Motion to Dismiss Contention 1) (May 9, 2024) (unpublished)......... 2, 9 Licensing Board Memorandum and Order (Initial Prehearing Order) (Dec. 6, 2023) (unpublished).......................................................... 18 NUREG-1437, Supplement 5, Second Renewal, Generic Environmental Impact Statement for License Renewal of Nuclear Plants Regarding Subsequent License Renewal for Turkey Point Nuclear Generating Unit Nos. 3 and 4, Final Report (Oct. 2019)....................................................................................................... 2, 10 NUREG-1437, Supplement 5a, Second Renewal, 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, Draft Report for Comment (Aug. 2023)............................................................................... 2, 13 NUREG-1437, Supplement 5a, Second Renewal, 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, Final Report (Mar. 2024)................................................................................................... passim U.S. Government Accountability Office, Nuclear Power Plants, NRC Should Take Actions to Fully Consider the Potential Effects of Climate Change (Apr. 2024)............... 20, 21
iv I. INTRODUCTION
Pursuant to 10 C.F.R. § 2.341(b)(3), Florida Power and Light Company (FPL) submits
this Answer Opposing Miami Waterkeepers (Petitioner) petition (Petition)1 seeking
discretionary Commission review of the Atomic Safety and Licensing Boards (Board) order
LBP-24-08.2 In that order, the Board correctlyand unanimouslydenied Petitioners
May 8, 2024 motion to admit six new or amended contentions in this proceeding (Motion).3
The Boards well-reasoned decision held that three contentions were untimely and that all six
contentions failed to satisfy the requisite admissibility criteria. For the reasons explained below,
the Commission should DENY the Petition because it fails to identify a substantial question
warranting discretionary review by the Commission. Alternatively, if the Commission grants the
Petition, it should AFFIRM every challenged ruling in LBP-24-08 (all of which are entitled to
substantial deference) because Petitioner identified no error of law or abuse of discretion.
II. PROCEDURAL BACKGROUND
Nearly seven years ago, FPL submitted its subsequent license renewal (SLR)
application (SLRA) to the U.S. Nuclear Regulatory Commission (NRC) seeking twenty-year
extensions of the operating licenses for Turkey Point Nuclear Generating Units 3 and 4 (Turkey
Point).4 The SLRA has since been the subject of an exhaustive administrative process that
includes multiple public meetings, several comment opportunities, two separate NRC
1 Miami Waterkeepers Petition for Review of the Atomic Safety and Licensing Boards Ruling in LBP-24-08 (Sept. 23, 2024) (ML24267A298) (Petition).
2 Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 & 4), LBP-24-08, 100 NRC __
(Aug. 27, 2024) (slip op.) (ML24240A218).
3 Miami Waterkeepers Motion to Admit Amended and New Contentions in Response to NRC Staffs Final Site-Specific Environmental Impact Statement (May 8, 2024) (ML24129A220) (Motion).
4 See Florida Power & Light Company; Turkey Point Nuclear Generating, Unit Nos. 3 and 4, License renewal application; receipt, 83 Fed. Reg. 17,196, 17,197 (April 18, 2018) (initial SLRA submission on Jan. 30, 2018).
1 adjudicatory proceedings, two NRC environmental reviews, and countless other reviews and
approvals by other local, state, and federal agencies scrutinizing every aspect of the proposed
license renewal. The full, extraordinary procedural history of this matter is thoroughly
summarized in a series of key adjudicatory orders and is not repeated here.5 The following
synopsis below highlights the key procedural events relevant to consideration of the Petition.
In March 2024, the Board granted Petitioners hearing request and petition to intervene,
admitting a single contention of omission regarding the NRC Staffs Draft Supplemental Site-
Specific Environmental Impact Statement (2023 DSEIS)6 for the Turkey Point SLRA.7
Shortly after the Board admitted the contention, the NRC Staff issued its Final Supplemental
Site-Specific Environmental Impact Statement (2024 FSEIS).8 All parties agreed that the 2024
FSEIS supplied the allegedly omitted information.9 Accordingly, the Board dismissed the sole
admitted contention as moot.10 Meanwhile, Petitioner filed its Motion, seeking admission of
three amended contentions (1-A, 1-B, and 1-C) and three new contentions (2, 3-A, and 3-B).11
5 See Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 & 4), LBP-19-3, 89 NRC 245, 254-57 (2019); CLI-20-3, 91 NRC 133, 134-36 (2020); CLI-22-2, 95 NRC 26, 27-30 (2022).
6 NUREG-1437, Supplement 5a, Second Renewal, 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, Draft Report for Comment (Aug. 2023) (ML23242A216) (2023 DSEIS); see also NUREG-1437, Supplement 5, Second Renewal, Generic Environmental Impact Statement for License Renewal of Nuclear Plants Regarding Subsequent License Renewal for Turkey Point Nuclear Generating Unit Nos. 3 and 4, Final Report (Oct. 2019) (ML19290H346) (2019 FSEIS).
7 Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 & 4), LBP-24-03, 99 NRC __
(Mar. 7, 2024) (slip op.) (ML24067A280).
8 NUREG-1437, Supplement 5a, Second Renewal, 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, Final Report (Mar. 2024) (ML24087A061) (2024 FSEIS).
9 Joint Unopposed Motion To Dismiss Reformulated Contention 1 As Moot And Position Of The NRC Staff And Miami Waterkeeper Regarding Opportunity To File New Or Amended Contentions (Apr. 4, 2024)
(ML24095A314) (Motion to Dismiss).
10 Licensing Board Memorandum and Order (Granting Unopposed Motion to Dismiss Contention 1)
(May 9, 2024) (unpublished) (ML24130A205) (Dismissal Order).
11 See Motion.
2 For contentions proffered after the initial hearing request deadline for a proceeding, such
as those proffered by Petitioner in the Motion, the movant must make an affirmative
demonstration of good cause, which places a burden on the movant to show that:
(i) The information upon which the filing is based was not previously available;
(ii) The information upon which the filing is based is materially different from information previously available; and
(iii) The filing has been submitted in a timely fashion based on the availability of the subsequent information.12
If good cause is established for the filing, the proposed contentions are further subject
to the codified admissibility criteria in 10 C.F.R. § 2.309(f)(1). As particularly relevant here,
those criteria place an affirmative burden on the petitioner to: provide a concise statement of the
alleged facts or expert opinions, referring to the specific sources and documents that support the
petitioners position and on which the petitioner intends to rely; and provide sufficient
information to show that a genuine dispute exists on a material issue of law or fact.13 The
petitioner alone bears the affirmative burden to satisfy these criteria. 14 Failure to satisfy any one
of these six admissibility criteria requires that a proposed contention be rejected.15
After briefing and oral argument, the Board issued LBP-24-08 on August 27, 2024, in
which the Board unanimously concluded that the three amended contentions were untimely, and
therefore lacked good cause, and that none of the new or amended contentions were
12 10 C.F.R. § 2.309(c)(1).
13 Id. § 2.309(f)(1)(v)-(vi).
14 See Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-15-23, 82 NRC 321, 325, 329 (2015)
(The proponent of a contention is responsible for formulating the contention and providing the necessary support to satisfy the contention admissibility requirements and it is Petitioners responsibility, not the Boards, to formulate contentions and to provide the necessary information to satisfy the basis requirement for admission) (citation omitted).
15 See Changes to Adjudicatory Process; Final Rule, 69 Fed. Reg. 2,182, 2,221 (Jan. 14, 2004); see also Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999).
3 admissible.16 Petitioner filed its Petition on September 23, 2024, seeking discretionary
Commission review of LBP-24-08.17 FPL timely files this Answer opposing the Petition.
III. THE COMMISSION SHOULD DENY THE PETITION
The Board directed that any petition for review of LBP-24-08 must be filed in
accordance with 10 C.F.R. § 2.341(b).18 Under Section 2.341(b), the Commission may review
the Petition giving due weight to the existence of a substantial question regarding the five
considerations listed in Section 2.341(b)(4). As shown below, Petitioner has not raised a
substantial question. Therefore, the Commission should DENY the Petition.
A. Legal Standards Applicable to Petitions for Review of Licensing Board Orders
Unlike adjudicatory appeals as of right under 10 C.F.R. § 2.311, the Commission is not
obligated to review licensing board decisions under 10 C.F.R. § 2.341; the decision to do so is
in the discretion of the Commission. 19 Section 2.341 petitions are limited to 25 pages, must
comply with formatting provisions in Section 2.304, and must satisfy two other requirements.
First, the Petition must cont ain the following four things:
(i) A concise summary of the decision or action of which review is sought;
(ii) A statement (including record citation) where the matters of fact or law raised in the petition for review were previously raised before the presiding officer and, if they were not, why they could not have been raised;
(iii) A concise statement why in the petitioners view the decision or action is erroneous; and
(iv) A concise statement why Commission review should be exercised. 20
16 See Turkey Point, LBP-24-08, 100 NRC at __ (slip op. at 12, 18, 21, 24, 31, 36, 39). Because no contested matters remained pending, the Board also terminated the adjudicatory proceeding. Id. at __ (slip op. at 43).
17 See generally Petition.
18 Turkey Point, LBP-24-08, 100 NRC at __ (slip op. at 43).
19 10 C.F.R. § 2.341(b)(4).
20 Id. § 2.341(b)(2).
4 Second, Petitioner bears the burden to demonstrate the existence of a substantial
question21 with respect to one or more of the five considerations below:
(i) A finding of material fact is clearly erroneous or in conflict with a finding as to the same fact in a different proceeding;
(ii) A necessary legal conclusion is without governing precedent or is a departure from or contrary to established law;
(iii) A substantial and important question of law, policy, or discretion has been raised;
(iv) The conduct of the proceeding involved a prejudicial procedural error; or
(v) Any other consideration which the Commission may deem to be in the public interest.22
B. The Petition Fails to Conform to the NRCs Rules of Practice and Procedure
The NRCs Rules of Practice and Procedure specify that pleadings must begin not less
than one inch from the top, with side and bottom margins of not less than one inch, and, with
certain exceptions, [t]ext must be double-spaced.23 Contrary to those requirements, the
Petition has margins of less than one inch and its body text is less than double-spaced. Under
some circumstances, such procedural nonconformities might be dismissed as harmless error. But
here, the Petition is 25 pages in length. Had Petitioner complied with the formatting
requirements, its pleading would exceed the page limit in 10 C.F.R. § 2.341(b)(2). That is
fundamentally unfair to the responding parties. And the Commission should reject the Petition
on its face for failing to comply with simple procedural requirements.
21 Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-05-16, 62 NRC 1, 3 (2005).
22 10 C.F.R. § 2.341(b)(4).
23 Id. § 2.304(c).
5 C. The Petition Fails to Identify a Substantial Question
Although the Petition acknowledges some of the standards applicable to petitions for
review, it fails to meaningfully engage with any of them. The legal standards section of the
Petition briefly mentions elements (i), (iii), and (v).24 And the final sentence of the Petition
provides a conclusory assertion that some of those considerations weigh in favor of discretionary
review here.25 The conclusion section of the Petition does invoke the words public interest or
publics interest a few times.26 But, as explained below, Petitioner entirely misapprehends that
consideration. Ultimately, Petitioners cursory treatment of the applicable legal standards is
insufficient to carry its affirmative burden to demonstrate the existence of a substantial
question warranting discretionary review.
The first consideration is whet her a finding of material fact is clearly erroneous or in
conflict with a finding as to the same fact in a different proceeding.27 That consideration is
inapplicable here because the challenged ruling does not involve any findings of material fact.
Such findings are rendered in initial merits decisions after an adjudicatory hearing.28 In contrast,
LBP-24-08 is a ruling on a motion for new and amended contentions, not a merits decision.
Thus consideration (i) does not weigh in favor of granting the Petition.
The second consideration is whether a necessary legal conclusion is without governing
precedent or is a departure from or contrary to established law.29 As discussed in Section IV,
24 Petition at 3.
25 Id. at 25.
26 Id. at 24-25.
27 10 C.F.R. § 2.341(b)(4)(i).
28 See id. § 2.1210 (the presiding officer shall render an initial decision after completion of an informal hearing under [10 C.F.R. Part 2, Subpart L]) (emphasis added); id. § 2.340(a)(1) (In any initial decision in a contested [license renewal proceeding], the presiding officer shall make findings of fact....) (emphasis added).
29 Id. § 2.341(b)(4)(ii) and (iii).
6 below, the Petition does not identify any such circumstance in LBP-24-08. In fact, each
necessary legal conclusion in the Boards decision follows well-established Commission
precedent. Accordingly, consideration (ii) does not weigh in favor of granting the Petition.
The third consideration is whether a substantial and important question of law, policy, or
discretion has been raised. Here, Petitioner identifies no novel questions. The Petition merely
discusses case-specific contentions limited to the specific facts of this proceeding and pleads for
a different outcome. But the Commission has held that routine disputes about case-specific
contentions cannot satisfy the important question standard.30 Thus, consideration (iii) does not
weigh in favor of granting the Petition.
The fourth consideration is whether the conduct of the proceeding involved a prejudicial
procedural error.31 Petitioner does not claim any procedural errorand none occurred here. As
such, consideration (iv) does not weigh in favor of granting the Petition.
The fifth and final element is any other consideration which the Commission may deem
to be in the public interest. 32 Petitioner argues that the Petition should be granted because it is
in the publics interest to ensure the NRC makes an informed decision.33 But that is a general
assertion that arguably applies to every licensing board ruling. If vague references to informed
decision-making were cognizable under the fifth element, such a circumstance would effectively
transform the Commissions discretionary review under Section 2.341 into a mandatory review
under Section 2.311, eliminating the Commissions purposeful, codified distinction.
30 See S. Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), CLI-10-5, 71 NRC 90, 105 (2010)
(rejecting argument that case-specific contention raises an important question).
31 10 C.F.R. § 2.341(b)(4)(iv).
32 Id. § 2.341(b)(4)(v).
33 Petition at 25.
7 Consequently, Petitioner has not identified any unique public interest consideration under
Section 2.341(b)(4)(v) that weighs in favor of granting the Petition.
In sum, the Petition should be DENIED for failing to identify a substantial question.
IV. IF THE COMMISSION GRANTS THE PETITION, IT SHOULD AFFIRM THE CHALLENGED RULINGS IN LBP-24-08
Petitioner argues that the Board erred by finding all six contentions inadmissible and that
the Board erred by finding the amended contentions to be untimely. As explained below, those
rulings are entitled to substantial deference. Whereas, to prevail on review, Petitioner has an
affirmative burden to identify an error of law or abuse of discretion therein. Petitioner has not
done so here. Thus, if the Commission grants the Petition and opts to engage in a discretionary
review of LBP-24-08, it should AFFIRM each challenged ruling therein.
A. Legal Standards Applicable to Review of Licensing Board Decisions
The Commission affords licensing board rulings substantial deference,34 absent an
error of law or abuse of discretion.35 The Commission reviews questions of law de novo, and
will reverse a licensing boards legal rulings if they are a departure from or contrary to
established law.36 To prevail on an abuse of discretion claim, the petitioner must persuade the
Commission that a reasonable mind could reach no other result. 37 Simply restating prior
arguments is insufficient to carry the petitioners burden,38 and new arguments are disallowed.39
34 Crow Butte Res., Inc. (Marsland Expansion Area), CLI-14-2, 79 NRC 11, 26 (2014).
35 Interim Storage Partners, LLC (WCS Consol. Interim Storage Facility), CLI-20-15, 92 NRC 491, 494 (2020)
(citing Crow Butte, CLI-14-2, 79 NRC at 26).
36 Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 259 (2009)
(citation omitted).
37 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), ALAB-952, 33 NRC 521, 532 (1991), affd, CLI-91-13, 34 NRC 185 (1991) (internal citation omitted).
38 Shieldalloy Metallurgical Corp. (Newfield, N.J. Facility), CLI-07-20, 65 NRC 499, 503-05 (2007).
39 USEC Inc. (Am. Centrifuge Plant), CLI-06-10, 63 NRC 451, 458 (2006) (quotations and citation omitted).
The purpose of an appeal is to point out errors made in the Boards decision, not to present arguments and evidence never provided to the Board. Id. (quotations and citation omitted).
8 B. Petitioner Identifies No Error of Law or Abuse of Discretion on Contention 1
In its original hearing request, Petitioner attempted to challenge the discussion of
groundwater impacts in the 2023 DSEIS.40 Specifically, Petitioner alleged that the 2023 DSEIS
failed to take the requisite hard look at the environmental impacts caused by the continued
operation of Turkey Points cooling canal system (CCS). The Board found that Petitioner
failed to raise a genuine dispute on the Staffs thorough technical analysis on groundwater
impacts or the Staffs impact conclusion on that issue. However, the Board admitted a narrow
contention alleging the 2023 DSEIS lacked an explanation of the connection between the
technical analysis and the conclu sion. The conclusion stated that impacts could fall in a range
from SMALL to MODERATE due to uncertainty in future conditions. Whereas, the Board
found admissible Petitioners claim that the 2023 DSEIS failed to explain how the uncertainty in
the analysis corresponded to a potential MODERATE impact conclusion.41
Shortly after the Board admitted the contention, the NRC Staff issued the 2024 FSEIS.42
All parties agreed that Section 2.8.3 of the 2024 FSEIS supplied the allegedly missing
explanation of the connection between the technical analysis and the impact conclusion for
groundwater quality.43 Accordingly, the Board dismissed the sole admitted contention as moot.44
40 Request for Hearing and Petition to Intervene Submitted by [Petitioner] (Nov. 27, 2023) (ML23331A971)
(Hearing Request). Background on the CCS, the legacy hypersaline groundwater plume (which is part of the environmental baseline and not an impact from the proposed action), and FPLs use of the Recovery Well System to: (1) retract the legacy hypersaline plume (thereby creating an environmental benefit), and (2) intercept and prevent new CCS-origin water from moving inland in the future (including during the SLR term) is documented elsewhere and not repeated here. See, e.g., [FPLs] Answer Opposing [Petitioners]
Hearing Request and Petition for Leave to Intervene at 9-10, 18-19 (Dec. 22, 2023) (ML23356A156); Oral Argument Transcript at 100-103 (July 17, 2024) (ML24204A039); Hearing Request, Exh. 9 at 5-9 (2023 Remedial Action Annual Status Report noting particle-tracking confirmation that CCS-origin water is now prevented from moving beyond the CCS boundary).
41 Turkey Point, LBP-24-03, 99 NRC at __ (slip op. at 18, 21-22).
42 See generally 2024 FSEIS.
43 See Motion to Dismiss.
44 Dismissal Order at 1.
9 Petitioner then moved to admit three amende d contentions purporting to challenge new
information regarding groundwater impacts in the 2024 FSEIS. After briefing and oral
argument, the Board unanimously determined that none of the amended contentions were timely
and that, even if they were timely, none were admissible.45 Petitioner disagrees with those
determinations. Notwithstanding Petitioners desire for a different outcome, the Petition
identifies no error of law or abuse of discretion in the rulings on Contentions 1-A, 1-B, and 1-C.
- 1. Petitioner Identifies No Error of Law or Abuse of Discretion on Contention 1-A
In Contention 1-A, Petitioner presented a confusing argument purporting to challenge
Section 3.2 of the 2024 FSEIS, titled Comparison of Alternatives, claiming it contained an
inadequate analysis of the No Action alternative, which should be the conditions present when
the plant is not operational because it allegedly did not evaluate the baseline conditions for the
no action alternative.46 However, Section 3.2 of both the 2023 DSEIS and 2024 FSEIS
contained identical cross-references to the no-action alternative analysis in the 2019 FSEIS.
Nevertheless, Petitioner argued that its contention was timely because it related to the updated
groundwater analysis in the [2024 FSEIS].47 Other than a general reference to a 17-page chunk
of the 2024 FSEIS, Petitioner did not otherwise explain what portion of that discussion was
being challenged or advance any argument about what part of it was new or materially different.
Thus, the Board concluded that Contention 1-A lacked the specificity required to support either
a showing of good cause or to support an admissible contention.48
45 See Turkey Point, LBP-24-08, 100 NRC at __ (slip op. at 8-24).
46 Motion at 7-8.
47 Id. at 14. Here, Petitioner faults the 2024 FSEIS because it did not appear to actually use information from a comment letter Petitioner submitted to the NRC. Petition at 8. But that only reinforces the untimely nature of Petitioners claims, based on its November 26, 2023 comment letter, which plainly could have been raised before the November 27, 2023 initial hearing request deadline.
48 Turkey Point, LBP-24-08, 100 NRC at __ (slip op. at 9).
10 Petitioner now argues that the Board committed reversible error by creating and applying
a new and arbitrary specificity requirement to its good cause and admissibility determinations
on Contention 1-A.49 As explained below, Petitioners argument is meritless, misapprehends the
Boards ruling and the applicable pleading burdens, and fails to identify any error of law.
In simple terms, the Board found that Petitioners claims were so vague that it had no
way to determine whether the applicable requirements had been met.50 Far from inventing a
new specificity requirement, the Board rooted its contention admissibility decision in the
codified requirement in criterion (vi) that a petitioner provide specific information with
references to specific portions of the document that the petitioner disputes. 51 Notably, the
Petition does not cite or engage with criterion (vi) or challenge the Boards conclusion thereon.
Instead, Petitioner mistakenly claims the Board rejected Contention 1-A based on criterion (v).52
It did not.53 Likewise, the Boards good cause decision rested on the codified burden placed on
the proponent of an amended contention to demonstrate good cause and show that the
information on which it is based is truly new and materially different.54 Petitioners vague
pleading failed to satisfy those burdens. Whereas, the Boards application of longstanding
regulations and controlling case law was manifestly correct.55
49 Petition at 7-11.
50 See Turkey Point, LBP-24-08, 100 NRC at __ (slip op. at 9-11) (finding Petitioner points generally to a seventeen page discussion of groundwater quality impacts but fails to explain how that discussion supports the contention or which portion thereof allegedly is new or materially different).
51 Id. at __ (slip op. at 10-11 and n.47) (citing 10 C.F.R. § 2.309(f)(1)(vi)) (emphasis added); see also Vogtle, CLI-10-5, 71 NRC at 100-01 (a contentions scope is limited to issues of law or fact pled with particularity in the intervention petition) (emphasis added).
52 Petition at 9 n.40 & 46, 10 n. 47 (citing criterion (v)).
53 See Turkey Point, LBP-24-08, 100 NRC at __ (slip op. at 8-12) (not mentioning criterion (v) at all).
54 Turkey Point, LBP-24-08, 100 NRC at __ (slip op. at 10 & n.46); see also N. Atl. Energy Serv. Corp.
(Seabrook Station, Unit 1), CLI-99-6, 49 NRC 201, 219 (1999) (pleadings must clearly identify the matters on which [proponents] intend to rely with reference to a specific point).
55 See Palisades, CLI-15-23, 82 NRC at 325, 329 (petitioner has the burden to supply the necessary information).
11 Moreover, Petitioner argues that its Motion was adequately specific by stating that it was
specific enough to elicit responsive answers from Staff and FPL.56 But that claim is
misleading. Far from suggesting Contention 1-A was adequately specific, the referenced
answers show the exact opposite.57 Thus, the responsive answers provide no basis to disturb
the Boards reasonable determination (which is en titled to substantial deference) that Petitioner
did not satisfy its pleading burdens.58 Ultimately, the Petition identifies no error in the Boards
rulings on Contention 1-A.
- 2. Petitioner Identifies No Error of Law or Abuse of Discretion on Contention 1-B
In Contention 1-B, Petitioner argued that the groundwater impacts analysis in the 2024
FSEIS improperly focused on hypersalinity rather than potability.59 Among other reasons,
the Board correctly rejected this contention beca use the technical analysis (and its consideration
of hypersalinity) was not new to the 2024 FSEIS. Petitioner could have alleged the need for a
separate potability analysis in the 2023 DSEIS, but did not.60 Therefore, the Board properly
concluded that the challenge was untimely.
56 Motion at 10.
57 See, e.g., [FPLs] Answer to [Petitioners Motion] at 10-11 (June 3, 2024) (ML24155A267) (citations omitted)
(Petitioner alleges that this [purportedly new] information appears somewhere between pages 2-24 and 2-40 of the 2024 FSEIS. However, that conclusory assertion is unaccompanied by any further explanation.
Petitioner does not say, specifically, what that information is. It does not explain why it is new. And it does not allege that such unspecified information is materially different from information that was previously available regarding the no action alternative.); accord NRC Staff Answer Opposing [Petitioners Motion]
at 23 (June 3, 2024) (ML24155A110).
58 Petitioner also contests the Boards decision to grant a portion of FPLs Motion to Strike, claiming Petitioner should be able to respond [to] and refute arguments in the answer pleadings. Petition at 10. But the subject reply did not attempt to refute the defects identified in the answersit sought to cure them. As a matter of settled law, which the Board correctly applied, that is improper. See Nuclear Mgmt. Co., LLC (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727, 732 (2006). Regardless, the Board also concluded that those late arguments would not have changed its ruling on Contention 1-A. Turkey Point, LBP-24-08, 100 NRC at __
(slip op. at 12 n.54). The Petition fails to acknowledge or dispute that conclusion. Having waived its argument thereon, Petitioner has not identified any Board error.
59 Petition at 11; see also Motion at 16; 2024 FSEIS § 2.8.3.
60 Turkey Point, LBP-24-08, 100 NRC at __ (slip op. at 15-16).
12 According to Petitioner, the Board committed clear error in reaching that conclusion
because Petitioner could only challenge the use of the hypersaline standard after the NRC Staff
was required to show[] its work for the first time in the 2024 FSEIS.61 But Petitioners
argument is meritless. Far from revealing the technical analysis methodology for the first time in
the 2024 FSEIS, the NRC staffs technical analysis and consideration of hypersalinity did not
materially change from the 2023 DSEIS to the 2024 FSEIS. The groundwater impacts analysis
in the 2023 DSEIS plainly relied on a technical analysis of the existing hypersaline plume to
conclude that impacts on groundwater quality during the SLR term would be MODERATE if
FPL cannot retract the hypersaline plume to the CCS boundary.62 The 2024 FSEIS reached the
exact same conclusion, using the exact same technical analysis methodology.63
To be sure, the 2024 FSEIS discussion of groundwater impacts does contain some new
informationand the Board recognized as much. Specifically, in response to the limited
contention of omission originally admitted by the Board, the 2024 FSEIS presented a new,
supplemental explanation of the connective tissue linking the (unchanged) technical analysis to
the (unchanged) impact conclusion.64 Here, Petitioner could have challenged that information
i.e., the justification for why the technical analysis equa tes to a potential MODERATE impact
determination. But it did not. Instead, Petitioner attempted to challenge the technical analysis
methodology, which did not change from the 2023 DSEIS to the 2024 FSEIS. As the Board
correctly held, the methodology was not new and materially different from the 2023 DSEIS.
That conclusion is factually correct and entitled to substantial deference.
61 Petition at 11.
62 2023 DSEIS at 2-31.
63 2024 FSEIS at 2-40.
64 Turkey Point, LBP-24-08, 100 NRC at __ (slip op. at 20-21 n.101).
13 In Contention 1-B, Petitioner essentially argued that the existing technical analysis,
focused on the hypersaline plume, improperly omitted a technical analysis of the saline
plume.65 As the Board correctly held, that argument did not demonstrate a genuine dispute
because it failed to engage with the existing technical analysis to explain why some further
analysis was required.66 Petitioner now argues that the Board erred because, by proffering a
contention of omission, Petitioner had no obligation to engage with the existing technical
analysis.67 That is incorrect as a matter of law.
Petitioner appears to be under the mistaken im pression that a bald allegation of omission
is admissible on its face. But, contrary to Petitioners argument, contentions of omission are not
excused from the pleading requirements in 10 C.F.R. § 2.309(f)(1)(vi). The Commission has
long held that contentions of omission still must engage with the existing analysis or otherwise
explain why the allegedly omitted information should have been included.68 In other words, it is
not enough to simply demand more or different information. Simply put, the Board did not err in
applying that controlling law. And its determination that Petitioner failed to satisfy that
requirement is entitled to substantial deference. Ultimately, the Petition identifies no legal error
or abuse of discretion in the Boards rulings on Contention 1-B.
- 3. Petitioner Identifies No Error of Law or Abuse of Discretion on Contention 1-C
As with Contentions 1-A and 1-B, Contention 1-C also sought to challenge the 2024
FSEISs technical analysis of potential impacts to groundwater quality.69 And for the same
65 Petition at 13.
66 Turkey Point, LBP-24-08, 100 NRC at __ (slip op. at 16-17).
67 Petition at 13.
68 Tenn. Valley Auth. (Clinch River Nuclear Site Early Site Permit Application), CLI-18-5, 87 NRC 119, 122 (2018) (beyond alleging an omission, a petitioner also must demonstrate why that information is required).
69 Petition at 14-16; Motion at 21-35.
14 reasons noted above, the Board also found that Contention 1-C failed to satisfy the good cause
standard because Petitioner seeks to challenge the technical support underpinning the Staffs
analysis, which has not materially changed from the [2023 DSEIS] to the [2024 FSEIS].70 As
to contention admissibility, Petitioner sought to rely on a report from Dr. William K. Nuttle
presenting certain data and conclusions that were different from those presented in the 2024
FSEIS. However, the Board correctly held that the mere presentation of alternative data and
conclusions, standing alone, was insufficient to demonstrate a genuine dispute with the 2024
FSEIS.71 Petitioner identifies no error of law or abuse of discretion in those rulings.
First, Petitioner points to the Boards fact ually correct observation (unchallenged here)
that the Nuttle report relies, in large part, on information that predated the [2023 DSEIS],72 in
some cases by decades.73 Petitioner then claimswithout supportthat the Board
erroneously required that all the data in an analysis had to be new to pass the new and
significant [sic] information test.74 But, Petitioner grossly misconstrues the Boards ruling.
The Board held that Petitioner had not met its affirmative good cause burden because it
identified no way in which the technical analysis in the 2024 FSEIS materially changed from the
2023 DSEIS.75 For each of the four issues Petitioner claimed were new and materially different,
the Board found (and Petitioner does not confront here ) that they had been considered in both the
2023 DSEIS and the 2024 FSEIS.76 As a corollary observation, the Board noted a few examples
70 Turkey Point, LBP-24-08, 100 NRC at __ (slip op. at 20).
71 Id. at __ (slip op. at 22-23).
72 Id. at __ (slip op at 21 n.105).
73 Id. at __ (slip op. at 21, 22).
74 Petition at 15 (emphasis in original). Petitioner appears to be referencing the new and materially different information requirement in 10 C.F.R. § 2.309(c)(1)(i)-(ii).
75 Turkey Point, LBP-24-08, 100 NRC at __ (slip op. at 20-21).
76 Id. at __ (slip op. at 21-22).
15 of Petitioners reliance on information predating the 2023 DSEIS and stated, simply, that this
provided further support for its finding that Petitioner had not demonstrated good cause.77
But Petitioner points to no place in LBP-24-08 wher e the Board allegedly required all support
for a contention to be new and materially different to satisfy the good cause requirement. Nor
did the Board do so. The Board merely explained that information predating the 2023 DSEIS
was available to Petitioner before the initial hearing request deadline and could have been used
to proffer a contention at that time; whereas, long-available information is not new and cannot,
alone, satisfy Section 2.309(c)(1)(i)-(ii). As a matter of law, the Board was patently correct.78
Second, Petitioner presents a brief argument that the Board abused its discretion by
finding Contention 1-C inadmissible.79 As noted above, the Nuttle report presented certain data
and conclusions that were different from those presented in the 2024 FSEIS; and it relied on
older data, rather than confronting the latest analyses presented in the 2024 FSEIS.80 The Board
correctly held that the mere presentation of alternative data was insufficient to demonstrate a
genuine dispute with the 2024 FSEIS, as required by 10 C.F.R. § 2.309(f)(1)(vi). Here,
Petitioner argues that, by doing so, the Board adjudicated the contention without a hearing.81
Petitioner simply misapprehends the ruli ng and the applicable legal standard.
To be clear, the Board did not adjudicate the contention on the merits. The Board
expressly stated that its admissibility conclusion was reached without going to the merits of
77 Id. at __ (slip op. at 21 & n.105).
78 See N. States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), CLI-10-27, 72 NRC 481, 496 (2010) (To conclude otherwise would turn on its head the regulatory requirement that new contentions be based on information... not previously available.) (citation omitted).
79 Petition at 16.
80 See also FPL Answer at 27 (Notably, the 2023 DSEIS and 2024 FSEIS discuss extensive new information, including five years of updated monitoring well data. Both Petitioners and Dr. Nuttles failure to engage with the 2024 FSEISs discussion of that new information is particularly conspicuous because it directly refutes many of Dr. Nuttles assertions and conclusions.); see id. at 28-30 (providing examples of the same).
81 Petition at 16.
16
[Petitioners] claims.82 Instead, the Board dispositioned the admissibility of Contention 1-C in
accordance with settled law. The Commission squa rely recognizes that there may be multiple
ways to conduct a legally sufficient NEPA analysis and therefore:
the proper question is not whether there ar e plausible alternative choices for use in the analysis, but whether the analysis that was done is reasonable under NEPA.
We have long held that contentions admitted for litigation must point to a deficiency
, and not merely suggestions of other ways an analysis could have been done, or other details that could have been included.83
As the Commission recently explained in straightforward terms, simply presenting an
alternative analysis is not enough to raise an admissible contention.84 To the extent Petitioner
believes otherwise, it is simply wrong; and to the extent it claims the Board abused its discretion
by applying that controlling law, it provides no basis for such a conclusion.
C. Petitioner Identifies No Error of Law or Abuse of Discretion on Contention 2
Contention 2 sought to challenge the 2024 FSEIS discussion of potential impacts related
to the Miami cave crayfish.85 In sum, Petitioner argued that the same deficiencies alleged in
Contention 1 (including a focus on analyzing hypersaline rather than saline water) also
rendered the Staffs consideration of salinity-related impacts on the Miami cave crayfish
inadequate.86 In simplified terms, the Board concluded that Petitioner failed to raise a genuine
dispute with the NRC Staffs analysis because it suffers from the same deficiencies as
82 Turkey Point, LBP-24-08, 100 NRC at __ (slip op. at 22).
83 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 NRC 301, 323 (2012) (citation omitted) (emphasis added).
84 ISP, CLI-20-15, 92 NRC at 501 (emphasis added).
85 The U.S. Fish and Wildlife Service (FWS) recently proposed to list as a threatened species under the Endangered Species Act (ESA). Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for the Miami Cave Crayfish; Proposed Rule, 88 Fed. Reg. 64,856 (Sept. 20, 2023)
(Proposed Listing).
86 Petitioner also argued that the 2024 FSEIS failed to consider cumulative impacts on the crayfish from sea level rise. The Board found that claim failed to raise a genuine dispute. Turkey Point, LBP-24-08, 100 NRC at __
(slip op. at 27). Because Petitioner does not seek review of that conclusion here, it has waived any challenge thereto.
17 Contention 1-C.87 Petitioner now challenges the Boards ruling and argues that the Board
committed clear error and an abuse of discretion because it overlooked relevant evidence. 88
However, Petitioners arguments fail to demonstrate any error of law or abuse of discretion.
As a fundamental matter, the Board did not overlook any evidence, as Petitioner
incorrectly claims. This proceeding is at a preliminary, pre-evidentiary stage.89 No evidence
has been received, much less overlooked. Furthe rmore, if Petitioner meant to claim that the
Board entirely overlooked one or more of its arguments, the Petition identifies none. Instead,
the Petition simply repeats the same arguments that were considered and rejected by the Board,
hoping for a different result here. But that is not a valid basis for review.90
More specifically, Petitioner repeats its th eory that FPLs remediation efforts are
exacerbating rather than retracting the sp read of saline water in the aquifer.91 But the Board did
not overlook these claims; the Board squarely considered and found them insufficient to
support an admissible contention because they were based on outdated information (prior to
FPLs remediation efforts) and failed to engage with Staffs more recent analyses. 92 Petitioner
also repeats its claim that the Staffs analysis did not account for saline (as opposed to
hypersaline) water resulting from operation of the CCS.93 The Board did not overlook that
claim either; after due consideration, the Board reasonably concluded that it was not
accompanied by sufficient support to raise a genuine dispute.94 Next, Petitioner repeats its
87 Id. at __ (slip op. at 26).
88 Petition at 16.
89 See generally Licensing Board Memorandum and Order (Initial Prehearing Order) at 4 n.11 (Dec. 6, 2023)
(unpublished) (admonishing Petitioner not to label documents as exhibits for this same reason).
90 Shieldalloy, CLI-07-20, 65 NRC at 503-05.
91 Petition at 17-18.
92 Turkey Point, LBP-24-08, 100 NRC at __ (slip op. at 31).
93 Petition at 17-18.
94 Turkey Point, LBP-24-08, 100 NRC at __ (slip op. at 31).
18 challenge to the Staffs reliance on state a nd local enforcement and oversight of FPLs
hypersaline plume remediation as part of the basis for its impact conclusion.95 But, once again,
the Board did not overlook that argument; it squarely considered and rejected that argument
because it fails to confront or overcome the presumption of regularity accorded to actions of
other government agencies.96 Quite simply, Petitioners abuse of discretion claim is baseless.
Finally, Petitioner argues that the presumption of regularity is an arbitrary 97 concept
and suggests that the Boards ruling somehow glosses over or swerves from prior precedents
without discussion.98 But those claims are meritless and counterfactual. The presumption of
regularity is not an arbitrary concept; it is a well-developed legal doctrine that has been
acknowledged by the U.S. Supreme Court for nearly a century.99 Furthermore, the Board did not
gloss-over or swerve from that precedent; the Board applied it head-on. Ultimately, none of
these arguments expose any legal error or abuse of discretion in the Boards ruling.100
D. Petitioner Identifies No Error of Law or Abuse of Discretion on Contention 3
Contention 3-A challenged the cumulative impacts discussion, and Contention 3-B
challenged the Severe Accident Mitigation Alternatives (SAMA) discussion, in the
95 Petition at 18-19.
96 Turkey Point, LBP-24-08, 100 NRC at __ (slip op. at 27 n. 135).
97 Petition at 18.
98 Id. at 18-19 n.88 (citing W. Deptford Energy, LLC v. FERC, 766 F.3d 10, 22 (D.C. Cir. 2014)) (citations omitted) (cleaned up).
99 United States v. Chem. Found., Inc., 272 U.S. 1, 14-15 (1926) (discussing the presumption of regularity that applies to the actions of public officers).
100 What is more, Petitioners complaint about the presumption is illogical. Petitioner argues that state and local regulators cannot be relied upon to protect the environment in the future, during the SLR term, because (according to Petitioner) the remediation process is currently failing. Petition at 18. Petitioners mischaracterization aside, that conclusion wholly ignores the iterative process built-in to the remediation methodology that contemplates adjustments to remediation activities to respond to observed conditions. See 2024 FSEIS § 2.8.2. Petitioner does not confront this process, explain why it allegedly is inadequate, or offer the slightest support for its baseless suggestion that state and local regulators will simply decide to abandon their regulatory duties.
19 2024 FSEIS. Both claimed that the NRC failed to analyze the effects of climate change during
the SLR period, relying solely on a recent report from the U.S. Government Accountability
Office (GAO) on actions the NRC should consider regarding potential effects of climate
change (the GAO Report).101 The Board rejected those contentions, among other reasons,
because neither the Motion nor the GAO Report supplied enough information to satisfy the
admissibility requirements. The Petition identifies no grounds for reversal of those rulings.
- 1. Petitioner Identifies No Error of Law or Abuse of Discretion on Contention 3-A
Contention 3-A alleged that the GAO Report demonstrated that the cumulative impacts
discussion in the 2024 FSEIS contains an inadequate discussion of how climate change will
affect Turkey Point during the SLR period.102 However, the GAO Reportwhich was the sole
item of factual support proffered by Petitionerdid not purport to evaluate (much less dispute)
the 2024 FSEIS. And Petitioner otherwise failed to identify any specific information in the GAO
Report that allegedly impugned any specific information in the 2024 FSEIS. For those primary
reasons, the Board correctly concluded that Contention 3-A failed to demonstrate a genuine
dispute as required by 10 C.F.R. § 2.309(f)(1)(vi). Petitioner identifies no error of law or abuse
of discretion in that conclusion.
First, Petitioner conflates and confuses various safety and environmental issues. It has
long been the case that the safety impacts of meteorological phenomena (including those
associated with climate change) on plant operation are outside the scope of license renewal
pursuant to NRC safety regulations.103 Thereunder, operational safety matters are regulated in
101 U.S. Government Accountability Office, Nuclear Power Plants, NRC Should Take Actions to Fully Consider the Potential Effects of Climate Change (Apr. 2024), https://www.gao.gov/products/gao-24-106326 (GAO Report).
102 Motion at 55-56.
103 See generally 10 C.F.R. Part 54.
20 accordance with the plants current licensing basis and ongoing safety oversight, rather than in
the safety portion of the license renewal proceedi ng. But that codified limitation does not mean
(as Petitioner seems to believe) that the environmental impacts of hypothetical accidents caused
by meteorological phenomena are not evaluated.
Indeed, those environmental impacts clearly were evaluated in the 2024 FSEIS. For
example, the Petition highlights a discussion in the GAO Report on the hypothetical possibility
that climate change-related meteorological phenomena could impact plant safety and result in a
radiological accident.104 Petitioner then incorrectly asse rts that Staff did not do any
corresponding environmental analysis (erroneously asserting that Staff deemed it out of scope)
because it was not presented in the cumulative impacts section of the 2024 FSEIS.105 However,
the Staff squarely presented such an evaluation, albeit in a different part of the 2024 FSEIS.
Specifically, Section 2.14, Postulated Accidents, and Appendix D, Severe Accidents,
incorporate detailed technical analyses that contemplate external events (including climate
change-related meteorological phenomena) as potential initiators of hypothetical accidents.106
Contention 3-A did not discuss, acknowledge, or challenge any of that information; it did not
identify any meteorological parameters in those analyses or assert that the GAO report contained
materially different parameters; and it flagged no requirement that such analyses be presented
under the cumulative impacts heading, as opposed to elsewhere in the document. Quite
simply, Petitioner disregardedrather than disputedthe relevant analyses. Petitioners failure
to scrutinize the 2024 FSEIS certainly is not attributable to any Board error.
104 Id. at 20 (citing GAO Report at 9, 23).
105 Petition at 19, 21.
106 See generally 2024 FSEIS, App. D (discussing the postulated accident analyses in the 1996 and 2013 license renewal generic EIS, as well as the Tukey Point SAMA analysis for initial license renewal).
21 As the Board correctly explained, Petitioner failed to connect any specific information in
the GAO Report to any specific alleged gaps in the 2024 FSEIS.107 Petitioner now claims that
it described these gaps at-length merely by cross-referencing the GAO Report.108 But the
GAO Report also did not purport to identify any such gaps. The authors of the GAO Report
did not claim to have reviewed the postulated accident analyses in the 2024 FSEIS, and they
certainly did not articulate any conclusions regarding the sufficiency thereof. As a result, it was
incumbent upon Petitioner to offer some further explanation. It did not. In fact, as noted above,
Petitioner appears unaware that the 2024 FSEIS contains the type of analysis it demands.
Ultimately, Petitioner identifies no error in the Boards well-reasoned conclusion.
Next, Petitioner presents an argument related to a May 6, 2024 comment letter from the
U.S. Environmental Protection Agency.109 Petitioner appears to argue that this letter somehow
supports the admissibility of Contention 3-A. Even assuming arguendo that were correct (it is
not), that letter demonstrates no error in LBP-24-08 because it was never presented to the Board
in the proceedings below. As a matter of la w, the Commission will not consider new arguments
raised for the first time on review that the Board never had an opportunity to consider.110 Thus,
it should not consider Petitioners new and untimely arguments here.
Ultimately, Petitioner claims that Contention 3-A raises purely a legal issuethat
being, whether the 2024 FSEIS is required to analyze the impacts of hypothetical accidents
107 See Turkey Point, LBP-24-08, 100 NRC at __ (slip op. at 36) ([G]iven the GAO Reports particular focus, it was up to [Petitioner] to make the necessary link between the report and the purported gaps in the Staffs cumulative impacts analysis. It has not done so here.) (citation omitted).
108 Petition at 21.
109 Id. at 22.
110 USEC, CLI-06-10, 63 NRC at 458 (quotations and citation omitted). The purpose of an appeal is to point out errors made in the Boards decision, not to present arguments and evidence never provided to the Board.
Id. (quotations and citation omitted).
22 initiated by climate change-related meteorological phenomena on Turkey Point.111 If so, then
Contention 3-A plainly did not raise a genuine disputebecause there is no dispute on that point.
The 2024 FSEIS unquestionably does evaluate that issue; Petitioner simply failed to engage with
the relevant information. In sum, Petitioner identifies no Board error as to Contention 3-A.
- 2. Petitioner Identifies No Error of Law or Abuse of Discretion on Contention 3-B
Contention 3-B alleged that the GAO Report demonstrated that the NRC failed to
adequately update its evaluation of FPLs SAMA analysis to reflect the effects of climate
change on accident risk.112 The Board rejected Contention 3-B because it did not raise a
genuine dispute with the Staffs analysis.113 As with Contention 3-A, the GAO Report did not
present any analysis of the SAMA discussion in the 2024 FSEIS, and Petitioner otherwise made
no effort to connect the dots between the recommendations in the GAO Report and the
deficiencies it claims to exist in the staffs environmental review.114 Petitioner disagrees with
that result. But it does not identify any error of la w or abuse of discretion in the Boards ruling.
To start, Petitioner complains that the SAMA discussion in the 2024 FSEIS does not
evaluate the risks of a severe accident.115 But that is not the role of the SAMA analysis. The
purpose of a SAMA analysis is to evaluate and identify potential cost-beneficial mitigation
measures to reduce severe accident risk and consequences.116 In contrast, severe accident risk
and consequences are evaluated separately, in the severe accident impact analysis.117 From the
111 Petition at 23.
112 Id. at 69.
113 Turkey Point, LBP-24-08, 100 NRC at __ (slip op. at 38).
114 Petition at 38.
115 Id. at 23.
116 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-1, 75 NRC 39, 47 (2012) (emphasis added); see also Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2), CLI-02-07, 56 NRC 1, 5 (2002).
117 See 2024 FSEIS § 2.14, App. D. As noted above, Petitioner disregarded, rather than disputed, this information.
23 outset, Contention 3-B was fundamentally incapable of demonstrating a genuine dispute because
it misapprehended the purpose of SAMAs and overlooked the relevant analysis.
Furthermore, the Petition undercuts Petitioners own foundation for Contention 3-B. In
its Motion, Petitioner listed the GAO Report as the sole source of support [for] Contention
3-B.118 But now, Petitioner claims that it did not use the GAO Report as a primary source for
claiming the SAMA analysis and [2024] FSEIS were inadequate.119 If that is true, then
Contention 3-B is entirely unsupported because Petitioner identified no other source of support.
Nonetheless, Petitioner argues that the Board flippantly pointed out Petitioners failure
to make any effort to connect the dots between the GAO Report findings and the deficiencies
Petitioner claims exist in the 2024 FSEIS.120 But the Boards earnest observation was
demonstrably correct. In its Motion, Petitioner noted the materiality threshold for SAMAs as
information that indicates that a mitigation alternative would substantially reduce an impact on
the environment.121 Notwithstanding, the Motion did not acknowledge any of the 167 mitigation
alternatives evaluated for Turkey Point or offer any criticism of the Staffs risk reduction
analyses.122 The Boards recognition of that obvious defect was not flippant; it simply
acknowledged an obviousand dispositivedefect in Contention 3-B. And Petitioner identifies
no error or abuse in the Boards rational and supported conclusion.
V. CONCLUSION
As set forth above, the Commission should DENY the Petition. Alternatively, if the
Commission grants the Petition, it should AFFIRM the challenged rulings in LBP-24-08.
118 See Motion at 78.
119 Petition at 24.
120 Id.
121 Motion at 77 (citing 2024 FSEIS at D-4).
122 See Motion at 77-80; 2019 FSEIS, App. E; 2024 FSEIS, App. D.
24 Respectfully submitted,
Signed (electronically) by Ryan K. Lighty Executed in Accord with 10 C.F.R. § 2.304(d)
RYAN K. LIGHTY, Esq. PAUL M. BESSETTE, Esq.
MORGAN, LEWIS & BOCKIUS LLP SCOTT D. CLAUSEN, Esq.
1111 Pennsylvania Avenue, N.W. MORGAN, LEWIS & BOCKIUS LLP Washington, D.C. 20004 1111 Pennsylvania Avenue, N.W.
(202) 739-5274 Washington, D.C. 20004 Ryan.Lighty@morganlewis.com (202) 739-5796 (202) 739-5402 Paul.Bessette@morganlewis.com Scott.Clausen@morganlewis.com
Executed in Accord with 10 C.F.R. § 2.304(d)
STEVEN HAMRICK, Esq.
FLORIDA POWER & LIGHT COMPANY 801 Pennsylvania Ave., N.W. Suite 220 Washington, D.C. 20004 (202) 349-3496 Steven.Hamrick@fpl.com
Counsel for Florida Power & Light Company
Dated in Washington, DC this 18th day of October 2024
25 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
BEFORE THE COMMISSION
In the matter of: Docket Nos. 50-250-SLR-2 and 50-251-SLR-2 FLORIDA POWER & LIGHT COMPANY
(Turkey Point Nuclear Generating Station, October 18, 2024 Units 3 and 4)
CERTIFICATE OF SERVICE
Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, a copy of Florida Power and
Light Companys Answer Opposing Miami Waterkeepers Petition for Discretionary Review of
LBP-24-08 was served on the Electronic Information Exchange (the NRCs E-Filing System),
in the above-captioned docket.
Signed (electronically) by Ryan K. Lighty RYAN K. LIGHTY, ESQ.
MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 (202) 739-5274 ryan.lighty@morganlewis.com
Counsel for Florida Power and Light Company
DB1/ 151446685