ML24292A199

NRC Staff Answer Opposing Petition for Commission Review of LBP-24-8

ML24292A199
Person / Time
Site:	Turkey Point
Issue date:	10/18/2024
From:	Bernstein K, Jeremy Wachutka NRC/OGC
To:	NRC/OCM
SECY RAS
References
ASLBP 24-981-01-SLR-BD01, RAS 57160, 50-251-SLR-2, 50-250-SLR-2, LBP-24-8
Download: ML24292A199 (0)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of FLORIDA POWER & LIGHT COMPANY (Turkey Point Nuclear Generating Units 3 and 4)

Docket Nos. 50-250-SLR-2 50-251-SLR-2 NRC STAFF ANSWER OPPOSING PETITION FOR COMMISSION REVIEW OF LBP-24-8 Jeremy L. Wachutka Kevin D. Bernstein Counsel for NRC Staff October 18, 2024

TABLE OF CONTENTS TABLE OF CONTENTS................................................................................................................. i TABLE OF AUTHORITIES............................................................................................................ ii INTRODUCTION.......................................................................................................................... 1 BACKGROUND............................................................................................................................ 1 DISCUSSION................................................................................................................................ 3 I.

Petitioner Does Not Identify a Board Error of Law or Abuse of Discretion............................. 3 A.

Requirements for Appeal of a Board Order Finding New and Amended Contentions Not Admissible............................................................................................... 3 B.

Requirements for Entertaining New or Amended Contentions........................................... 4 C. Requirements for Contention Admissibility......................................................................... 5 D. Petitioner Does Not Identify an Error of Law or Abuse of Discretion in the Boards Denial of Amended Contention 1-A....................................................................... 6 E.

Petitioner Does Not Identify an Error of Law or Abuse of Discretion in the Boards Denial of Amended Contention 1-B....................................................................... 9 F.

Petitioner Does Not Identify an Error of Law or Abuse of Discretion in the Boards Denial of Amended Contention 1-C..................................................................... 12 G. Petitioner Does Not Identify an Error of Law or Abuse of Discretion in the Boards Denial of New Contention 2................................................................................ 16 H. Petitioner Does Not Identify an Error of Law or Abuse of Discretion in the Boards Denial of New Contention 3-A............................................................................. 19 I.

Petitioner Does Not Identify an Error of Law or Abuse of Discretion in the Boards Denial of New Contention 3-B............................................................................. 23 CONCLUSION............................................................................................................................ 25

- ii -

TABLE OF AUTHORITIES Judicial Decisions Massachusetts v. U.S. Nuclear Reg. Comm., 708 F.3d 63 (1st Cir. 2013)................................... 22 Administrative Decisions Commission Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3),

CLI-01-24, 54 NRC 349 (2001).................................................................................................. 6 DTE Electric Co. (Fermi Nuclear Power Plant, Unit 3), CLI-15-1, 81 NRC 1 (2015)....................... 11 Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, and 3), CLI-22-3, 95 NRC 40 (2022)................................................................................................................... 22 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC 704 (2012).................................................... 18, 24 Entergy Nuclear Operations, Inc. (Indian Point, Unit 2), CLI-16-5, 83 NRC 131 (2016)................. 6 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), CLI-16-10, 83 NRC 494 (2016).................................................................................................................................. 9 Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc.

(Vermont Yankee Nuclear Power Station), CLI-15-20, 82 NRC 211 (2015)................................ 6 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4),

CLI-22-2, 95 NRC 26 (2022)................................................................................................... 22 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 6 and 7),

CLI-17-12, 86 NRC 215 (2017)............................................................................... 4, 5, 17, 20, 24 Holtec International (HI-STORE Consolidated Interim Storage Facility), CLI-21-7, 93 NRC 215 (2021)......................................................................................................................... 5 Interim Storage Partners LLC (WCS Consolidated Interim Storage Facility), CLI-21-9, 93 NRC 244 (2021)...................................................................................................... 3, 4, 5, 25 International Uranium (USA) Corp. (White Mesa Uranium Mill), CLI-01-21, 54 NRC 247 (2001).................................................................................................................................. 4 Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-25, 60 NRC 223 (2004)............................................................................................................................... 12 Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 and 4), CLI-12-7, 75 NRC 379 (2012)...................................................................................... 3, 4, 25 Nuclear Management Co., LLC (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727 (2006)........................................................................................................................................ 9 Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),

CLI-15-21, 82 NRC 295 (2015)............................................................................................. 6, 21 Progress Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plant, Units 2 and 3), CLI-10-9, 71 NRC 245 (2010).......................................................................................... 4, 19

- iii -

Shieldalloy Metallurgical Corp. (License Amendment Request for Decommissioning of the Newfield, New Jersey Facility), CLI-07-20, 65 NRC 499 (2007)................................ 4, 12 Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18 (1998)......................................................................................................................................... 8 USEC Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451 (2006)....................... 4, 8, 12, 19 Atomic Safety and Licensing Appeal Board Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-942, 32 NRC 395 (1990).................................................................................................................... 4 Atomic Safety and Licensing Board Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4),

LBP-24-8, 100 NRC __ (Aug. 27, 2024) (slip op.)............................................................ passim Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4),

LBP-24-3, 99 NRC 39 (2024).............................................................................. 3, 9, 15, 20, 24 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4),

LBP-19-8, 90 NRC 139 (2019)................................................................................................ 4, 9 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4),

LBP-19-3, 89 NRC 245 (2019)................................................................................................. 20 Florida Power & Light Co. (Turkey Point Units 6 and 7), LBP-17-6, 86 NRC 37 (2017)................. 5 Holtec International (HI-STORE Consolidated Interim Storage Facility), LBP-20-10, 92 NRC 235 (2020)................................................................................................................... 5 NextEra Energy Point Beach, LLC (Point Beach Nuclear Plant, Units 1 and 2),

LBP-21-5, 94 NRC 1 (2021)........................................................................................................ 5 Regulations 10 C.F.R. § 2.309(a)...................................................................................................................... 5 10 C.F.R. § 2.309(c)............................................................................................................ passim 10 C.F.R. § 2.309(f)............................................................................................................. passim 10 C.F.R. § 2.311............................................................................................................................ 3 10 C.F.R. § 2.341................................................................................................................... 1, 3, 4 10 C.F.R. Part 51, Subpart A, Appendix B, Table B-1................................................................... 21 Miscellaneous Amendments to Adjudicatory Process Rules and Related Requirements; Final Rule, 77 Fed. Reg. 46,562 (Aug. 3, 2012)..................................................................................... 5, 14 Amendments to Adjudicatory Process Rules and Related Requirements; Proposed Rule, 76 Fed. Reg. 10,781 (Feb. 28, 2011)........................................................................... 5, 15

- iv -

Turkey Point Nuclear Generating Unit Nos. 3 and 4; Draft environmental impact statement; request for comment; public comment meetings; opportunity to request a hearing and to petition for leave to intervene, 88 Fed. Reg. 62,110 (Sep. 8, 2023)................ 7

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of FLORIDA POWER & LIGHT COMPANY (Turkey Point Nuclear Generating Units 3 and 4)

Docket Nos. 50-250-SLR-2 50-251-SLR-2 NRC STAFF ANSWER OPPOSING PETITION FOR COMMISSION REVIEW OF LBP-24-8 INTRODUCTION In accordance with 10 C.F.R. § 2.341(b)(3), the U.S. Nuclear Regulatory Commission Staff files this answer opposing the Miami Waterkeeper (Petitioner) petition for Commission review of Atomic Safety and Licensing Board Memorandum and Order LBP-24-8. The Commission should deny the petition for review because the Commission disturbs a licensing boards contention admissibility rulings only if there has been an error of law or an abuse of discretion, and Petitioner does not demonstrate that the Board made an error of law or abused its discretion in LBP-24-8.

BACKGROUND On May 8, 2024, Petitioner filed a motion to admit Amended Contentions 1-A, 1-B, and 1-C and New Contentions 2, 3-A, and 3-B (2024 Motion) related to the Staffs second environmental review of the Florida Power & Light Company (FPL) subsequent license renewal (SLR) application for Turkey Point Nuclear Generating Units 3 and 4.1 Petitioner asserted that this motion was based on new information in the Staffs 2024 final supplemental environmental 1 Miami Waterkeepers Motion to Admit Amended and New Contentions in Response to NRC Staffs Final Site-Specific Environmental Impact Statement (May 8, 2024) (ML24129A220) (2024 Motion).

impact statement (2024 FSEIS)2 as compared to the Staffs 2023 draft supplemental environmental impact statement (2023 DSEIS)3 and in Government Accountability Office Report 24-106326 (GAO Report).4 On June 3, 2024, the Staff and FPL filed answers opposing Petitioners 2024 Motion.5 In its answer, among other things, the Staff discusses the 2015 Miami-Dade County consent agreement (2015 Consent Agreement) and the 2016 State of Florida Department of Environmental Protection consent order (2016 Consent Order), which directed FPL to (1) construct and operate a recovery well system to retract hypersaline groundwater in the Biscayne Aquifer and (2) freshen the water in the Turkey Point cooling canal system (CCS).6 Recovery well system operations commenced in 2018.7 The Staff also discusses the submission of the Turkey Point SLR application in 2018 and the filings by Petitioner from 2018 to the present.8 Additionally, the Staff discusses the two environmental reviews of the SLR application(1) a 2019 DSEIS and a 2019 FSEIS and (2) the 2023 DSEIS and the 2024 FSEIS.9 Finally, the Staff discusses the Boards dismissal of all of Petitioners contentions filed 2 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, NUREG-1437, Supplement 5a, Second Renewal (Mar. 2024) (ML24087A061) (2024 FSEIS).

3 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, NUREG-1437, Supplement 5a, Second Renewal (Aug. 2023) (ML23242A216) (2023 DSEIS).

4 Government Accountability Office, GAO-24-106326, Nuclear Power Plants: NRC Should Take Actions to Fully Consider the Potential Effects of Climate Change (Apr. 2, 2024), available at https://www.gao.gov/products/gao-24-106326 (GAO Report).

5 NRC Staff Answer Opposing Miami Waterkeeper Motion to Admit Amended and New Contentions and Petition for Waiver (Jun. 3, 2024) (ML24155A110) (Staff Answer); Florida Power & Light Companys Answer to Miami Waterkeepers Motion to Admit Amended and New Contentions in Response to the NRC Staffs Final Site-Specific Environmental Impact Statement (Jun. 3, 2024) (ML24155A267).

6 Staff Answer at 2-3.

7 See 2024 FSEIS at 2-19.

8 Staff Answer at 3-10.

9 Id. at 4-9; Generic 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, NUREG-1437, Supplement 5, Second Renewal (Mar. 2019) (ML19078A330) (2019 DSEIS);

Generic Environmental Impact Statement for License Renewal of Nuclear Plants Regarding Subsequent with respect to the 2023 DSEIS, including a contention of omission that was initially admitted and then dismissed as moot based on new language in the 2024 FSEIS.10 In LBP-24-8, the Board denied Petitioners 2024 Motion because its contentions did not satisfy all of the requirements of 10 C.F.R. § 2.309(c) and 10 C.F.R. § 2.309(f).11 Additionally, because no contentions remained before it, the Board terminated the proceeding.12 On September 23, 2024, Petitioner filed the instant petition for review of LBP-24-8.13 DISCUSSION Petitioner does not demonstrate that the Board made an error of law or abused its discretion in determining in LBP-24-8 that none of Amended Contentions 1-A, 1-B, and 1-C and New Contentions 2, 3-A, and 3-B satisfy all of the requirements of 10 C.F.R. § 2.309(c) and 10 C.F.R. § 2.309(f). Therefore, the Commission should not review LBP-24-8.

I.

Petitioner Does Not Identify a Board Error of Law or Abuse of Discretion A. Requirements for Appeal of a Board Order Finding New and Amended Contentions Not Admissible An appeal not associated with an initial hearing request, including an appeal related to new and amended contentions filed after an initial hearing request, is treated as a petition for discretionary review under 10 C.F.R. § 2.341 and not as an appeal as of right under 10 C.F.R.

§ 2.311.14 However, with respect to contention admissibility rulings, the standard for review of License Renewal for Turkey Point Nuclear Generating Unit Nos. 3 and 4 (Final Report), NUREG-1437, Supplement 5, Second Renewal (Oct. 2019) (ML19290H346) (2019 FSEIS).

10 Staff Answer at 9-10; Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), LBP-24-3, 99 NRC 39 (2024); Memorandum and Order (Granting Unopposed Motion to Dismiss Contention 1)

(May 9, 2024) (ML24130A205).

11 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), LBP-24-8, 100 NRC __, __

(Aug. 27, 2024) (slip op. at 43).

12 Id.

13 Miami Waterkeepers Petition for Review of the Atomic Safety and Licensing Boards Ruling in LBP 08 (Sept. 23, 2024) (ML24267A298) (Petition for Review).

14 Interim Storage Partners LLC (WCS Consolidated Interim Storage Facility), CLI-21-9, 93 NRC 244, 246 (2021) (citing Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 and 4), CLI-12-7, 75 NRC 379, 385 (2012)).

both types of appeal is the same: the Commission will disturb a licensing boards ruling on contention admissibility only if the board had committed an error of law or abused its discretion.15 Accordingly, an appeal of a contention admissibility ruling that consists of just a

[r]ecitation of an appellants prior positions in a proceeding or statement of general disagreement with a decisions result is not sufficient.16 In addition, a petitioner may not, for the first time on appeal, present[] arguments and evidence never provided to the Board.17 And an argument previously made before the presiding officer but not discussed on appeal is considered abandoned.18 B. Requirements for Entertaining New or Amended Contentions Pursuant to 10 C.F.R. § 2.309(c), new and amended contentions will not be entertained absent a determination by the presiding officer that a participant has demonstrated good cause.19 Good cause is demonstrated by showing 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;[20] and 15 WCS, CLI-21-9, 93 NRC at 246 ([Appellant] has not shown that the Board erred or abused its discretion and therefore has not raised a substantial question warranting review and [Appellants claim]

shows no error in the Boards application of our hearing standards. We therefore find it without merit.);

Comanche Peak, CLI-12-7, 75 NRC at 386.

16 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 6 and 7), CLI-17-12, 86 NRC 215, 219 (2017). See 10 C.F.R. § 2.341(b)(2).

17 Shieldalloy Metallurgical Corp. (License Amendment Request for Decommissioning of the Newfield, New Jersey Facility), CLI-07-20, 65 NRC 499, 503-05 (2007) (quoting USEC Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 458 (2006)). See 10 C.F.R. § 2.341(b)(2), (5).

18 Progress Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plant, Units 2 and 3), CLI-10-9, 71 NRC 245, 257 (2010) (citing International Uranium (USA) Corp. (White Mesa Uranium Mill), CLI-01-21, 54 NRC 247, 253 (2001); Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-942, 32 NRC 395, 414 (1990)).

19 See also 10 C.F.R. § 2.309(f)(2) (Participants may file new or amended environmental contentions after the deadline in paragraph (b) of this section (e.g., based on a draft or final NRC environmental impact statement, environmental assessment, or any supplements to these documents) if the contention complies with the requirements in paragraph (c) of this section.).

20 See Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), LBP-19-8, 90 NRC 139, 149 n.13 (2019) (The term materially describes the type or degree of difference between the new information and previously available information, and it is synonymous with, for example, significantly, (iii) The filing has been submitted in a timely fashion based on the availability of the subsequent information.[21]

As defined by 10 C.F.R. § 2.309(c), good cause is the sole factor to be considered when evaluating whether to review the admissibility of a new or amended contention.22 Thus, the regulation requires that the contentions proponent establish good cause for why the contention was not raised at the outset of the proceeding and when determining whether a new or amended contention is timely, the Commission look[s] to whether the contention could have been raised earlier.23 A failure to satisfy the good cause requirement necessarily requires the rejection of the new or amended contention, regardless of whether the new or amended contention meets the contention admissibility requirements.24 C. Requirements for Contention Admissibility In addition to 10 C.F.R. § 2.309(c), new and amended contentions must also meet the Commissions contention admissibility requirements at 10 C.F.R. § 2.309(f).25 This means that a petitioner must file a specification of the contentions that the petitioner seeks to have litigated.26 Each contention must be set forth with particularity and must satisfy six criteria.27 These criteria include providing a specific statement of the issue of law or fact to be raised or considerably, or importantly.) (quoting Florida Power & Light Co. (Turkey Point Units 6 and 7), LBP-17-6, 86 NRC 37, 48 (2017), affd on other grounds, CLI-17-12, 86 NRC 215 (2017)).

21 10 C.F.R. § 2.309(c).

22 Amendments to Adjudicatory Process Rules and Related Requirements; Proposed Rule, 76 Fed. Reg.

10,781, 10,783 (Feb. 28, 2011). See also Amendments to Adjudicatory Process Rules and Related Requirements; Final Rule, 77 Fed. Reg. 46,562, 46,572 (Aug. 3, 2012).

23 Holtec International (HI-STORE Consolidated Interim Storage Facility), CLI-21-7, 93 NRC 215, 221 (2021). See also WCS, CLI-21-9, 93 NRC at 247-49 (affirming the Board ruling that because the petitioner could have raised these challenges in its [timely] hearing request, the petitioners new contention was untimely).

24 See, e.g., Holtec International (HI-STORE Consolidated Interim Storage Facility), LBP-20-10, 92 NRC 235, 249 (2020).

25 See, e.g., NextEra Energy Point Beach, LLC (Point Beach Nuclear Plant, Units 1 and 2), LBP-21-5, 94 NRC 1, 38 (2021) (Once a movant satisfies the motion to amend requirements, a new or amended contention must still satisfy the contention admissibility standards in 10 C.F.R. § 2.309(f) to be admitted.).

26 10 C.F.R. § 2.309(a).

27 10 C.F.R. § 2.309(f)(1).

controverted;28 a concise statement of the alleged facts or expert opinions that support the petitioners position on the issue, together with references to the specific sources and documents;29 and sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact, which must include references to specific portions of the application and the supporting reasons for each dispute.30 Thus, contentions must have some reasonably specific factual or legal basis.31 The contention admissibility requirements are strict by design and the failure to satisfy any one renders a contention inadmissible.32 D. Petitioner Does Not Identify an Error of Law or Abuse of Discretion in the Boards Denial of Amended Contention 1-A In Amended Contention 1-A, Petitioner argued that the Staffs discussion in the 2019 FSEIS of the groundwater-quality impacts from the no-action alternative of Turkey Point ceasing to operate was rendered inadequate by new language in the 2024 FSEIS.33 The Board appropriately rejected this contention for failing to meet both the good cause requirement and the contention admissibility requirements.34 Specifically, the Board considered Amended Contention 1-A to determine whether it (1) is based on information that is new and materially different from information available as of the November 7, 2023 deadline for filing hearing 28 10 C.F.R. § 2.309(f)(1)(i).

29 10 C.F.R. § 2.309(f)(1)(v).

30 10 C.F.R. § 2.309(f)(1)(vi).

31 Entergy Nuclear Vermont Yankee, LLC, and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-15-20, 82 NRC 211, 221 (2015). See also Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-15-21, 82 NRC 295, 306 (2015) (We agree that [the]

intervention petition does not identify any specific portion of the application that it seeks to challenge and therefore lacks the specificity that our contention admissibility rules require.); Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349, 359-60 (2001) (An admissible contention must explain, with specificity, particular safety or legal reasons requiring rejection of the contested licens[ing action].).

32 Entergy Nuclear Operations, Inc. (Indian Point, Unit 2), CLI-16-5, 83 NRC 131, 136 (2016).

33 2024 Motion at 13-14.

34 LBP-24-8, 100 NRC at __ (slip op. at 12).

requests on the 2023 DSEIS35and (2) provides sufficient information to show that a genuine dispute exists with the Staffs environmental review.36 In doing so, the Board identified two deficiencies with Amended Contention 1-A. First, Petitioner only generally cited a seventeen-page range in the 2024 FSEIS as the basis for the contention instead of specifically explaining how it was based on new and materially different information.37 Second, in support of its argument, but without further explanation, Petitioner pointed to language in the 2019 FSEIS having to do with the impact of the no-action alternative on terrestrial resources and not on groundwater quality.38 Therefore, the Board reasoned that not only had Petitioner not demonstrated that Amended Contention 1-A was based on new and materially different information and genuinely disputed the Staffs environmental review, but that it hadnt even provided sufficiently specific information for the Board to make such a determination.39 Therefore, consistent with 10 C.F.R. § 2.309(c)(1)(i)-(ii) and 10 C.F.R. § 2.309(f)(1)(vi), the Board denied Amended Contention 1-A.40 On appeal, Petitioner reiterates its argument that because the Staffs groundwater-quality impacts discussion has changed, the analysis of the no-action alternative should likewise change41 but does not explain specifically what changes in the 2024 FSEIS render what portion of the 2019 FSEIS no-action alternative discussions inadequate. Petitioner blames the Board for not grappl[ing] with this inconsistency,42 but the Commission has consistently held that it is the 35 See 10 C.F.R. § 2.309(c)(1)(i)-(ii); Turkey Point Nuclear Generating Unit Nos. 3 and 4; Draft environmental impact statement; request for comment; public comment meetings; opportunity to request a hearing and to petition for leave to intervene, 88 Fed. Reg. 62,110, 62,110 (Sep. 8, 2023).

36 See 10 C.F.R. § 2.309(f)(1)(vi).

37 LBP-24-8, 100 NRC at __ (slip op. at 9) 38 Id at __ (slip op. at 9-10).

39 Id. at __ (slip op. at 10-11).

40 Id. at __ (slip op. at 12).

41 Petition for Review at 8 (quoting LBP-24-8, 100 NRC at __ (slip op. at 9)).

42 Id. at 8.

responsibility of petitioners, not licensing boards, to provide the information necessary to satisfy the NRCs contention admissibility requirements.43 Licensing boards may not search through pleadings or other materials to uncover arguments and support never advanced by petitioners and may not simply infer unarticulated bases of contentions.44 Petitioner also argues that the Board applied a heightened specificity standard,45 but Commission regulations and precedent recognize that the contention admissibility requirements necessitate such specificity.46 Moreover, Petitioners assertion that its pleading was sufficient because, consistent with 10 C.F.R. § 2.309(f)(1)(v), it reference[d] specific sources and documents is unavailing because the Board denied Amended Contention 1-A for not satisfying the separate contention admissibility criterion of 10 C.F.R. § 2.309(f)(1)(vi).47 That criterion required Petitioner to show that a genuine dispute exists by refer[ring] to specific portions of the Staffs environmental review that the Petitioner disputes and providing the supporting reasons for each dispute.48 And the Board correctly determined that Petitioners general references to a seventeen-page range of the 2024 FSEIS and the discussion of the impacts of the no-action alternative on terrestrial resources in the 2019 FSEIS, without further explanation, did not do this.

Finally, Petitioner complains that the Boards granting of FPLs motion to strike portions of Petitioners reply was an unreasonably narrow restriction of the reply,49 but the Boards ruling is consistent with Commission precedent. That is, the Board correctly recognized that if Petitioner were to be allowed to point to information other participants provided in their answers 43 See, e.g., USEC, CLI-06-10, 63 NRC at 457 (citing Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 22 (1998)).

44 Id. at 457.

45 Petition for Review at 9.

46 See supra § I.C.

47 Petition for Review at 9-10; see LBP-24-8, 100 NRC at __ (slip op. at 11 n.47, 12 n.54).

48 10 C.F.R. § 2.309(f)(1)(vi).

49 Petition for Review at 10 (citing LBP-24-8, 100 NRC at __ (slip op. at 12)); see Miami Waterkeepers Reply in Support of Motion to Admit Amended and New Contentions at 7, 9 (Jun. 12, 2024) (Reply).

opposing its 2024 Motion as the very support the contentions lack, such an approach not only would defeat the contention-filing deadline, but would unfairly deprive other participants of an opportunity to rebut the new claims.50 Nonetheless, the Board determined that, even if it had considered the stricken information, Petitioner would still not have satisfied the contention admissibility requirements51 and Petitioner does not rebut this determination on appeal. For these reasons, Petitioner has not identified an error of law or abuse of discretion in the Boards denial of Amended Contention 1-A and, therefore, the Commission should not review it.52 E. Petitioner Does Not Identify an Error of Law or Abuse of Discretion in the Boards Denial of Amended Contention 1-B In LBP-24-8, the Board correctly recognized that Petitioners identification of new language in the 2024 FSEIS does not open the door to any challenge; rather, Petitioner was required under 10 C.F.R. § 2.309(c) to demonstrate that Amended Contention 1-B is actually based on new and materially different information.53 Accordingly, the Board determined that Petitioners challenge to the Staffs use of hypersalinity as part of its discussion of groundwater-quality impacts was not based on new and materially different information because the Staff had also used hypersalinity as part of its discussion of groundwater-quality impacts in the 2023 DSEIS.54 Therefore, the Board rightly dismissed Amended Contention 1-B for failing to meet the 50 Nuclear Management Co., LLC (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727, 732 (2006).

51 LBP-24-8, 100 NRC at __ (slip op. at 12 n.54).

52 The Boards denial of Amended Contention 1-A is also consistent with previous licensing board decisionsthe same argument was raised in Petitioners 2018 and 2023 hearing requests and was found to not be admissible. See Turkey Point, LBP-19-8, 90 NRC at 154; LBP-24-3, 99 NRC at 57 n.86 (noting that Petitioner raised this argument at oral argument and in its reply brief).

53 LBP-24-8, 100 NRC at __ (slip op. at 14-15) (citing Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), CLI-16-10, 83 NRC 494, 520 (2016)).

54 LBP-24-8, 100 NRC at __ (slip op. at 15-16) (citing 2023 DSEIS at 2-22-2-31; 2024 FSEIS at 2-24 40). Additionally, Petitioners 2018 hearing request, 2019 motion to admit new contentions, and 2023 hearing request each discussed hypersalinity and did not challenge its appropriateness as a standard.

See generally Request for Hearing and Petition to Intervene Submitted by Friends of the Earth, Natural Resources Defense Council, and Miami Waterkeeper (Aug. 1, 2018) (ML18213A418) (2018 Hearing Request); Natural Resources Defense Councils, Friends of the Earths, and Miami Waterkeepers Amended Motion to Migrate Contentions & Admit New Contentions in Response to NRC Staffs Supplemental Draft Environmental Impact Statement (Jun. 28, 2019) (ML19179A316) (2019 Motion);

good cause requirement of 10 C.F.R. § 2.309(c).55 Additionally, the Board appropriately determined that contrary to 10 C.F.R. § 2.309(f)(1)(vi), Petitioner also failed to demonstrate a genuine dispute with the Staffs environmental review by assuming, rather than affirmatively explaining, that some quantity of less-than-hypersaline but still non-potable groundwater is attributable to FPLs operation of the CCS and is not accounted for in the Staffs analysis.56 The Board noted that Amended Contention 1-B appears to rely on Amended Contention 1-C as the basis for this argument and stated that to the extent that this is the case, Amended Contention 1-B is also inadmissible for the same reasons as Amended Contention 1-C.57 Therefore, the Board rightly dismissed Amended Contention 1-B on the alternative ground that it fails to meet the Commissions contention admissibility requirements.58 On appeal, Petitioner argues that it demonstrated good cause for bringing Amended Contention 1-B after the hearing deadline because, according to Petitioner, the 2024 FSEIS was the first time that the Staff explained that it was using a hypersalinity standard rather than a potability standard to reach its conclusion regarding groundwater-quality impacts.59 This, though, is demonstrably incorrect; the 2023 DSEIS, just like the 2024 FSEIS, made a groundwater-quality impact determination of SMALL to MODERATE based on an analysis focusing largely on the extent of the hypersaline groundwater plume.60 Therefore, regardless of Request for Hearing and Petition to Intervene Submitted by Miami Waterkeeper (Nov. 27, 2023)

(ML23331A971) (2023 Hearing Request).

55 LBP-24-8, 100 NRC at __ (slip op. at 18).

56 Id. at __ (slip op. at 16-18). Hypersaline is defined as groundwater with a chloride concentration greater than 19,000 milligrams per liter and the standard for potability in the Biscayne Aquifer is less than 10,000 milligrams per liter of total dissolved solids. See 2024 FSEIS at 2-24, 2-30; 2023 DSEIS at 2-22, 2-24.

57 LBP-24-8, 100 NRC at __ (slip op. at 17 n.80).

58 Id. at __ (slip op. at 18).

59 Petition for Review at 11-12.

60 Compare 2023 DSEIS at 2-31 (Accordingly, the [S]taff concludes that, depending on FPLs success in retracting the hypersaline plume, the impacts on groundwater quality from the CCS operations during the SLR term would be SMALL to MODERATE.) with 2024 FSEIS at 2-38-2-40 ([T]he [S]taffs impact determination with respect to groundwater quality as a result of the proposed action of continued operations of Turkey Point Units 3 and 4 during the SLR term considers two reasonably foreseeable the more fulsome explanation of this determination in the 2024 FSEIS, Petitioner has not explained why it could not have raised its hypersalinity argument with respect to the 2023 DSEIS. Accordingly, the Board was correct to find that Petitioner could have raised Amended Contention 1-B earlier and that its failure to do so warrants denial of the contention.61 Petitioner also faults the Board for dismissing Amended Contention 1-B due to Petitioners failure to demonstrate a genuine dispute with the Staffs environmental review, as required by 10 C.F.R. § 2.309(f)(1)(vi). On appeal, Petitioner asserts that it presented an expert report and new data showing tritium in wells far outside the hypersaline plume and that non-potable saltwater [is] currently estimated to be discharging into the Biscayne Aquifer from the CCS at a rate of four to nine million gallons per day.62 But these things were provided in Amended Contention 1-C and not in Amended Contention 1-B.63 In Amended Contention 1-B, Petitioner only made general references to the expert report and did not discuss tritium or specific less-than-hypersaline discharges from the CCS.64 In fact, all that Petitioner disputed in Amended Contention 1-B was the Staffs alleged use of a hypersalinity standard instead of a potability standard in its environmental review.65 By failing to provide in Amended Contention 1-B supporting reasons for why a potability standard should have been used, Petitioner does scenarios: (1) the [hypersaline groundwater] plume not expanding overall, but still extending outside of the Turkey Point Units 3 and 4 site boundary and (2) the plume being retracted to within the Turkey Point Units 3 and 4 site boundary; therefore, the staff concludes that the impact of CCS operations, including, in part, the continuing operation of Turkey Point Units 3 and 4, during the SLR term on groundwater quality is SMALL to MODERATE.).

61 See DTE Electric Co. (Fermi Nuclear Power Plant, Unit 3), CLI-15-1, 81 NRC 1, 7 (2015) (Petitioners who choose to wait to raise contentions that could have been raised earlier do so at their peril. They risk the possibility that there will not be a material difference between [the relevant environmental review documents], thus rendering any newly proposed contention on previously available information impermissibly late.).

62 Petition for Review at 12-13.

63 See 2024 Motion at 22-23, 31-34.

64 See LBP-24-8, 100 NRC at __ (slip op. at 14 n.64, 17 n.81) (We also question whether [Petitioners]

general references to the [expert r]eport in its motion are sufficient to support Contention 1-B, which

[Petitioner] appears to have attempted improperly to correct in its reply.).

65 2024 Motion at 16.

not demonstrate a genuine dispute with the Staffs environmental review as required by 10 C.F.R. § 2.309(f)(1)(vi).66 Again, it is Petitioners burden and not the Boards to satisfy this requirement67 and the failure to satisfy this requirement cannot be rectified in a reply68 or on appeal.69 Moreover, Petitioner does not demonstrate that the Board erred or abused its discretion by denying Amended Contention 1-B or, as explained below, by rejecting this same argument in Amended Contention 1-C. For these reasons, the Commission should not review the Boards denial of Amended Contention 1-B.

F. Petitioner Does Not Identify an Error of Law or Abuse of Discretion in the Boards Denial of Amended Contention 1-C In LBP-24-8, the Board addressed Petitioners theory, asserted in Amended Contention 1-C and also referenced in Amended Contention 1-B, that the remediation actions required by the 2015 Consent Agreement and the 2016 Consent Order of (1) withdrawing groundwater from the Biscayne Aquifer using a recovery well system and (2) freshening the CCS, are actually expanding, rather than retracting, salinity in the Biscayne Aquifer by causing less-than-hypersaline water to emanate from the CCS.70 The Board correctly determined that the argument of Amended Contention 1-C that the Staffs environmental review is deficient for not addressing this theory is not admissible for two independent reasons. First, it is not based on information that is new and materially different from information available as of the November 7, 2023 hearing deadline, whether in the 2024 FSEIS or in other documents.71 Second, it does not genuinely dispute the Staffs review because it does not explain why Petitioners theory of 66 See LBP-24-8, 100 NRC at __ (slip op. at 17) (At most, [Petitioner] has shown that different information could be considereda different salinity standardbut it has not shown why that information should have been considered.).

67 USEC, CLI-06-10, 63 NRC at 457.

68 Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-25, 60 NRC 223, 224 (2004).

69 Shieldalloy, CLI-07-20, 65 NRC at 503-05.

70 LBP-24-8, 100 NRC at __ (slip op. at 18-19).

71 Id. at __ (slip op. at 20-21).

expanding less-than-hypersaline groundwater, which is largely based on information predating the 2018 commencement of recovery well system operations, renders unreasonable the Staffs review, which is based on data collected since the commencement of recovery well system operations combined with the presumption that State and local regulators will continue to oversee and enforce existing groundwater-quality requirements.72 On appeal, Petitioner argues that it demonstrated good cause for bringing Amended Contention 1-C after the hearing deadline by repeating from its reply a listing of allegedly new and materially different information in the 2024 FSEIS and asserting that Amended Contention 1-C was responsive to this information.73 But, again, Petitioner does not explain how Amended Contention 1-C is actually based on any of this information and there is no apparent connection between the information that Petitioner lists and the arguments of Amended Contention 1-C. For instance, the information largely has to do with the hypersaline groundwater plume, whereas Amended Contention 1-C has to do with the allegedly separate issue of less-than-hypersaline groundwater. Additionally, although Petitioner points to the fact that it submitted with Amended Contention 1-C the Expert Report of William Nuttle, Ph.D., PEng (Ontario) (2024 Nuttle Report),74 it does not identify that Dr. Nuttle anywhere relied on this information either.75 In fact, the only connection that Petitioner makes between the basis for Amended Contention 1-C and the 2024 FSEIS is Petitioners statement that the 2024 Nuttle Report challenged the Staff finding in the 2024 FSEIS that the impact of the operation of Turkey Point during the SLR term on groundwater quality will be SMALL to MODERATE.76 But that finding is not new and 72 Id. at __ (slip op. at 22-23) (Miami Waterkeeper has provided different data but it has not demonstrated that the Staffs discussion and analysis of data obtained contemporaneously with FPLs remediation efforts is unreasonable.).

73 Compare Petition for Review at 13-14 with Reply at 22-23.

74 Petition for Review at 14; see 2024 Motion at Att. A (2024 Nuttle Report).

75 See, e.g., 2024 Nuttle Report at 17 (discussing the current recovery well system capacity and not any potential increases in capacity, which Petitioner identified in its reply and on appeal as new and materially different information).

76 Petition for Review at 14.

materially different informationit is unchanged from the 2023 DSEIS.77 Finally, since the Staffs conclusion did not change from the 2023 DSEIS to the 2024 FSEIS, Petitioners argument that a new Staff conclusion based on previously available, but unreferenced, information might be a proper subject for an untimely contention is unavailing.78 The Board correctly dismissed Amended Contention 1-C for failing to satisfy the good cause requirement because Petitioner did not demonstrate that it was in any way based on new and materially different information in the 2024 FSEIS.

Petitioner also argues on appeal that the Board erred in rejecting Amended Contention 1-C by asserting that it is based in part on tritium data from November 2023 allegedly showing a trend of increasing tritium at one well despite five years of FPLs hypersaline plume remediation activities.79 However, Petitioner does not explain, as is required by 10 C.F.R.

§ 2.309(c), how this information was not previously available. Petitioner stated that these data were received by request but does not explain why Petitioner was unable to request these data or other support for the alleged tritium trend before the November 7, 2023 deadline for hearings on the 2023 DSEIS.80 Moreover, Petitioner cites to a figure in the 2024 Nuttle Report in support of its timeliness argument, but that figure only lists data up to October 3, 2023.81 Petitioner next states that the Board should have focused on whether the new information regarding tritium and the old facts of the remainder of the Amended Contention 1-C argument is significant.82 This argument, though, is unavailing because whether an argument is significant is not relevant 77 Compare 2023 DSEIS at 2-31 with 2024 FSEIS at 2-38-2-40. The new language in the 2024 FSEIS identified by Petitioner did not change the conclusion of the 2023 DSEIS or its basis; it simply explained the connective tissue between the two. LBP-24-8, 100 NRC at __ (slip op. at 20 n.101).

78 See Petition for Review at 15 (quoting 77 Fed. Reg. at 46,566).

79 Petition for Review at 14-15.

80 Reply at 8 n.34 (stating that the five years of tritium data was received by request on April 29, 2024).

81 Petition for Review at 14-15; 2024 Nuttle Report at Fig. 7.

82 Petition for Review at 14-15.

under 10 C.F.R. § 2.309(c) and does nothing to overcome the fact that Petitioner has not explained why it could not have brought Amended Contention 1-C previously.83 Finally, Petitioner asserts that the Board 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, but this misunderstands the good cause requirement, which mandates the dismissal of a contention regardless of its merits if that contention could have been timely brought.84 And not only could Amended Contention 1-C have been timely brought, but its arguments were already brought by Petitioner and were already ruled upon by the Board.85 Petitioner even acknowledges this in pointing out that it raised the same argument in a comment on the 2023 DSEIS.86 The Board correctly rejected Petitioners desire to relitigate this matter without a new and materially different basis.

Petitioner also challenges the Boards second, independent reason for denying Amended Contention 1-C for failing to demonstrate a genuine dispute with the Staffs environmental review, as is required by 10 C.F.R. § 2.309(f)(1)(vi),87 but does not demonstrate that the Board erred or abused its discretion in doing so. Petitioner only asserts that the Board effectively adjudicated the contention without a hearing and should have admitted the contention because it would prompt a reasonable mind to inquire further.88 These unsupported statements, though, do not demonstrate a Board error of law or abuse of discretion and, as 83 See 76 Fed. Reg. at 10,783 ([G]ood cause [is] the sole factor to be considered when evaluating whether to review the admissibility of a new or amended contention....).

84 Petition for Review at 14; 10 C.F.R. § 2.309(c) (A new or amended contention will not be entertained absent a determination by the presiding officer that a participant has demonstrated good cause.).

85 Compare 2024 Motion at 25 ([T]o solve one problemthe hypersaline plumeFPL is exacerbating another, the movement of salt water towards potable water wells that serve about 4 million people.) with 2023 Hearing Request at 19 (stating that the required remediation pushes contamination from the CCS into the groundwater, reducing the amount of fresh groundwater available to users in South Florida, thereby exacerbating groundwater use conflicts.); LBP-24-3, 99 NRC at 57-61.

86 Petition for Review at 15-16.

87 LBP-24-8, 100 NRC at __ (slip op. at 23-24).

88 Petition for Review at 16.

described below, this Board ruling is also consistent with Commission precedent. Therefore, the Commission should not review the Boards denial of Amended Contention 1-C.

G. Petitioner Does Not Identify an Error of Law or Abuse of Discretion in the Boards Denial of New Contention 2 In LBP-24-8, the Board correctly determined that New Contention 2 does not satisfy the contention admissibility requirement of 10 C.F.R. § 2.309(f)(1)(vi) because it does not provide sufficient information to show that a genuine dispute exists with the Staff, along with the supporting reasons for each dispute.89 The Staff evaluated the impacts of the proposed action of Turkey Point SLR on the Miami cave crayfish for the first time in the 2024 FSEIS because the U.S. Fish and Wildlife Service proposed that the Miami cave crayfish be listed as a federally threatened species only after the publication of the 2023 DSEIS.90 Recognizing that the Miami cave crayfish is susceptible to saltwater intrusion in its Biscayne Aquifer habitat, the Staff relied on its analysis of Biscayne Aquifer groundwater-quality impacts to determine the impacts to the Miami cave crayfish. This included peer-reviewed data that the hypersaline groundwater plume has been reduced since the start of recovery well system operations in 2018 and data that the salinity of the CCS has decreased. The Staff also considered the continuing requirements of the 2015 Consent Agreement and the 2016 Consent Order to reduce the hypersaline groundwater plume and the salinity of the CCS. Taken together, the Staff concluded that the proposed action would not expand the saltwater/freshwater interface within the species range and, therefore, would not be likely to adversely affect the species.91 In New Contention 2, Petitioner challenged this conclusion based on the same theory as presented in Amended Contention 1-Cthat the required remediation actions of withdrawing groundwater from the Biscayne Aquifer and freshening the CCS are actually expanding, rather than retracting, salinity in the Biscayne 89 LBP-24-8, 100 NRC at __ (slip op. at 21-24, 26-27, 31).

90 See 2024 FSEIS at 2-63-2-67.

91 Id. at 2-67. See also 2019 FSEIS at 3-10-3-11, 3-72-3-88, 4-29-4-35; 2023 DSEIS at 2-16-2-20; 2024 FSEIS at 2-17-2-40.

Aquifer by causing less-than-hypersaline water to emanate from the CCS and, therefore, would impact the Miami cave crayfish.92 On appeal, Petitioner repeats its arguments from its 2024 Motion93 but fails to demonstrate that the Board erred or abused its discretion. As a threshold matter, such a recitation of Petitioners prior position and expression of general disagreement with the Boards decision is not sufficient to trigger Commission review.94 Moreover, contrary to Petitioners assertion, the Staff did not make logical leaps in discussing impacts to the Miami cave crayfish,95 but specifically referred to other sections of the 2024 FSEIS as the support for its conclusion.96 Similarly, contrary to Petitioners assertion, the Boad did not respond to Petitioners arguments with one sentence,97 but made clear that it was denying these arguments for the same, fully explained reason for its denial of the same arguments in Amended Contention 1-C.98 That is, the Board did not overlook Petitioners evidence but determined that, contrary to 10 C.F.R. § 2.309(f)(1)(vi), Petitioner did not provide sufficient information to show that this evidence genuinely disputes the Staff position by explaining how the Staff failed to account for less-than-hypersaline groundwater.99 For example, Petitioner did not explain how its theory of expansion would apply to less-than-hypersaline groundwater but somehow not also to hypersaline groundwater, which the data show has overall not expanded since 2018.100 Similarly, Petitioner did not explain how the recovery well system would somehow not also withdraw less-than-hypersaline groundwater to the same extent that the data show that it is 92 2024 Motion at 38-48.

93 Compare Petition for Review at 16-18 with 2024 Motion at 24, 41-44.

94 Turkey Point, CLI-17-12, 86 NRC at 219.

95 Petition for Review at 18.

96 See 2024 FSEIS at 2-67 (citing 2024 FSEIS Sections 3.5.2.2 and 2.8.3.2).

97 Petition for Review at 18.

98 See LBP-24-8, 100 NRC at __ (slip op. at 27) (citing supra notes 108, 115, 117 and accompanying text).

99 LBP-24-8, 100 NRC at __ (slip op. at 27, 31).

100 See 2024 FSEIS at 2-29.

withdrawing hypersaline groundwater.101 In sum, without more, Petitioners theory that less-than-hypersaline groundwater is somehow expanding despite the data that hypersaline groundwater is generally not expanding does not genuinely dispute the Staffs environmental review. And bare assertions and speculation, even by an expert, are insufficient for the admission of a contention.102 Petitioner also asserts that the Boards decision was arbitrary because it 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.103 This, though, is a misstatement of fact; the Board did not make any findings regarding the reasonableness of the Staffs conclusion. On the contrary, the Board simply restated the Staffs conclusion and found that Petitioner had not met its burden to provide the reasons supporting its challenge to that conclusion.104 The remaining arguments that Petitioner repeats on appeal are similarly unavailing.105 First, Petitioner states that it submitted data showing retraction of the hypersaline plume is not proceeding as planned or predicted;106 however, this same information is in the Staffs environmental review.107 Second, Petitioner asserts that saline water is continuing to flow out away from the CCS toward Miami cave crayfish habitat and references a figure in the 2024 Nuttle Report that provides tritium measurements in wells near Turkey Point from the years 2016 through 2023.108 But, as the Board correctly determined, this does not satisfy 10 C.F.R. 101 See id. at 2-28.

102 Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC 704, 714 (2012).

103 Petition for Review at 18.

104 LBP-24-8, 100 NRC at __ (slip op. at 26-27).

105 Compare Petition for Review at 18-19 with Reply at 19-20, 29-32.

106 Petition for Review at 18.

107 2024 FSEIS at 2-28-2-38.

108 Petition for Review at 15, 18 (citing 2024 Nuttle Report at Figure 7).

§ 2.309(f)(1)(vi) because Petitioner does not explain how these measurements might result from saltwater excursions from the CCS since the commencement of recovery well system operations in 2018.109 On appeal, as in its arguments before the Board, Petitioner continues to fall short in demonstrating why the Staffs conclusion in the 2024 FSEIS that conditions are not likely to worsen and that continued operation is not likely to adversely affect the Miami cave crayfish is unreasonable. Again, Petitioner, not the Board, must demonstrate that Petitioners contentions satisfy the requirements of 10 C.F.R. § 2.309(f).110 The Board correctly rejected Petitioners reiterated arguments and, therefore, the Commission should not review the Boards denial of New Contention 2.111 H. Petitioner Does Not Identify an Error of Law or Abuse of Discretion in the Boards Denial of New Contention 3-A In LBP-24-8, the Board determined that New Contentions 3-A and 3-B satisfy 10 C.F.R.

§ 2.309(c) to the extent that they are based on the GAO Report because that report was issued after the deadline for filing hearing requests regarding the 2023 DSEIS and because, in part, that report used information gathered from a visit to Turkey Point and interviews conducted there with Turkey Point staff and NRC resident inspectors.112 But new or amended contentions must also meet the 10 C.F.R. § 2.309(f) contention admissibility requirements and Petitioner did not link any of the information in the GAO Report, which primarily concerned the use of climate projections data in safety reviews, to any specifically alleged deficiencies in the Staffs environmental review.113 The Board therefore appropriately determined that Petitioners reliance 109 LBP-24-8, 100 NRC at __ (slip op. at 23 n.115).

110 USEC, CLI-06-10, 63 NRC at 457.

111 Petitioner does not challenge the Boards dismissal of the arguments of New Contention 2 that the Staffs environmental review did not account for cumulative impacts and that the Staff erred in not consulting with the U.S. Fish and Wildlife Service. LBP-24-8, 100 NRC at __ (slip op. at 27-31). Therefore, those arguments have been abandoned. Shearon Harris, CLI-10-9, 71 NRC at 257.

112 LBP-24-8, 100 NRC at __ (slip op. at 33-34).

113 Id. at __ (slip op. at 34-36).

on the GAO Report was insufficient to demonstrate that the Staffs approach to assessing the cumulative impacts from climate change was unreasonable, as alleged by Petitioner.114 On appeal, Petitioner repeats from its 2024 Motion, 2023 Hearing Request, and 2018 Hearing Request the argument that the Staffs cumulative impacts analysis is deficient,115 which was previously denied,116 and repeats its discussion from its 2024 Motion of the GAO Report,117 but does not demonstrate that the Board erred or abused its discretion by denying New Contention 3-A. Petitioner first states that in the most recent denial of this argument, the Board did not detail which of the various provisions of admissibility [Petitioner] runs afoul of;118 however, this is not correctthe Board specifically cites 10 C.F.R. § 2.309(f)(1)(vi).119 Petitioner then asserts that the repeated denials of this argument are not relevant,120 but Petitioner does not explain how any of the previous denials were an error of law or abuse of discretion and, therefore, does not demonstrate that an application of those denials to New Contention 3-A would be an error of law or abuse of discretion either. Nor does Petitioner identify any specific deficiency with the Boards determination that Petitioner did not make the necessary link between the GAO Report and purported gaps in the Staffs cumulative impacts analysis.121 And an expression of general disagreement with the Boards decision is not sufficient to trigger Commission review.122 114 Id. at __ (slip op. at 36).

115 Compare Petition for Review at 19-23 with 2024 Motion at 53-69, 2023 Hearing Request at 45-63, 2018 Hearing Request at 30-39.

116 LBP-24-8, 100 NRC at __ (slip op. at 36); LBP-24-3, 99 NRC at 64-65; Florida Power & Light Co.

(Turkey Point Nuclear Generating Units 3 and 4), LBP-19-3, 89 NRC 245, 287-90 (2019).

117 Compare Petition for Review at 19-20 with 2024 Motion at 56-62.

118 Petition for Review at 20.

119 LBP-24-8, 100 NRC at __ (slip op. at 36 n.187).

120 Petition for Review at 20-21.

121 Id. at 21 122 Turkey Point, CLI-17-12, 86 NRC at 219.

Similarly, Petitioners general references to aspects of the GAO Report that the Board correctly determined have to do with concerns for the safety of the plant under climate-change conditions do not support its petition for review.123 The Board correctly recognized that these issues concern plant safety, not cumulative impacts to the environment from license renewal.124 Therefore, not requiring the Staff to address these issues in its environmental review was not an error of law; as Petitioner acknowledges, the Staffs environmental review is required to discuss the environmental impacts of license renewal, not the impacts of the environment on the safety of Turkey Point.125 Therefore, Petitioner is incorrect in asserting that the position taken in the 2024 FSEIS is that the Staff need not consider climate change in renewing the license;126 on the contrary, the Staff discussed the cumulative impacts of license renewal and climate change on the environment in both the 2024 FSEIS and 2019 FSEIS and Petitioner simply failed to make any specific challenge to that discussion.127 On appeal, instead of identifying a Board error of law or abuse of discretion, Petitioner also faults the 2024 FSEIS for relying on the 2019 FSEIS with respect to the cumulative impacts analysis, asserting that the Commission told [the] Staff that the 2019 FSEIS did not comply with NEPA.128 However, the Commission decisions referenced by Petitioner only provide that the Staff may not rely on the generic findings in 10 C.F.R. Part 51, Subpart A, Appendix B, Table B-1 and do not discuss the appropriateness of site-specific findings, such as that of the cumulative 123 Petition for Review at 21 (citing to Motion at 55-68).

124 LBP-24-8, 100 NRC at __ (slip op. at 34-36).

125 Petition for Review at 21 (NEPA requires the NRC to discuss the environmental impacts of the proposed action.); see, e.g., Diablo Canyon, CLI-15-21, 82 NRC at 304-05.

126 Petition for Review at 23.

127 See LBP-24-8, 100 NRC at __ (slip op. at 36 n.184) (citing 2024 FSEIS at E-9-E-12; 2019 FSEIS at 4-132-4-133).

128 Petition for Review at 22.

impacts analysis.129 Moreover, as correctly recognized by the Board, the 2024 FSEIS does itself include the climate-change information discussed in the GAO Report.130 Petitioner points to comments by the U.S. Environmental Protection Agency on the 2023 DSEIS recommending a more detailed description of climate change, but this does nothing to support the argument that the Board erred in finding that Petitioner did not connect any new and materially different information in the GAO report with any purported deficiencies in the 2024 FSEIS.131 Petitioners continued assertion of errors with the Staffs environmental review is unavailing; the time for such arguments has passed and raising these arguments now does not in any way implicate a particular Board error of law or abuse of discretion.

Finally, Petitioners conclusion misses the markthe decision before the Board was not whether the Staff must discuss climate change as part of its cumulative impacts analysis,132 but whether New Contention 3-A satisfied the requirements of, among others, providing sufficient information to show that a genuine dispute exists with the Staffs environmental review, including references to specific portions of that review and the supporting reasons for each dispute, which must be based on new and materially different information.133 The Board correctly found that New Contention 3-A did not do this and nothing argued on appeal 129 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), CLI-22-2, 95 NRC 26, 31 (2022); Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, and 3), CLI-22-3, 95 NRC 40, 42 (2022); see Massachusetts v. U.S. Nuclear Reg. Comm., 708 F.3d 63, 68-69 (1st Cir. 2013) (Following publication of an environmental impact statement, further supplementation is required only if there are significant new circumstances or information [that] paint a dramatically different picture of impacts compared to the description of impacts in the EIS.).

130 LBP-24-8, 100 NRC at __ (slip op. at 33) (citing 2024 FSEIS at § E.10).

131 Petition for Review at 22. Although identifying that the EPA comments were on the 2023 DSEIS, Petitioner erroneously provides a citation to EPA comments on the 2024 FSEIS. Those comments, though, did not assert any remaining concerns regarding climate change. See letter from Ntale Kajumba, EPA, to Lance Rakovan, NRC, 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, at 1-2 (May 6, 2024) (ML24127A205).

132 Petition for Review at 23.

133 10 C.F.R. § 2.309(c), 10 C.F.R. § 2.309(f)(1)(vi).

demonstrates otherwise; therefore, the Commission should not review the Boards denial of New Contention 3-A.

I.

Petitioner Does Not Identify an Error of Law or Abuse of Discretion in the Boards Denial of New Contention 3-B In LBP-24-8, the Board appropriately determined that although, as discussed above, New Contention 3-B satisfies 10 C.F.R. § 2.309(c), it does not satisfy the 10 C.F.R. § 2.309(f) contention admissibility requirements because it does not raise a genuine dispute with the severe accident mitigation alternatives (SAMA) analysis.134 In New Contention 3-B, Petitioner argued that the Staff did not adequately update the SAMA analysis for Turkey Point to reflect the effects of climate change on accident risk.135 As with New Contention 3-A, the asserted basis for the Board to entertain this new contention out-of-time was the GAO Report.136 Petitioner argued that if the Staff were to consider the climate-change impacts discussed in the GAO Report as part of its environmental review, the Staff might question its conclusions regarding the SAMA analysis.137 But, as the Board recognized, the GAO Report did not identify safety gaps at operating plants; acknowledged that operating plants, including Turkey Point, have already adopted measures to address external events; and did not identify gaps in NRC environmental reviews.138 Petitioner has not otherwise demonstrated how any aspects of the GAO Report support its claims of deficiencies in the SAMA analysis or any error or abuse of discretion in the Boards conclusion that Petitioner failed to meet this burden.

On appeal, instead of engaging with the Boards reasoned application of the contention admissibility requirements to New Contention 3-B, Petitioner simply repeats its argument that 134 LBP-24-8, 100 NRC at __ (slip op. at 38).

135 2024 Motion at 69-80.

136 Id. at 52-53.

137 Id. at 77-78.

138 LBP-24-8, 100 NRC at __ (slip op. at 38-39) (citing GAO Report at 15, 19, 26, 29, 34, 36 n.54, 38, 39-40). See also GAO Report at 17, 20, 22 (This analysis does not account for any protective measures plants may have taken to mitigate the risk of selected natural hazards.); GAO Report at 24.

NEPA demands that FPL must update its SAMA analysis.139 Such a recitation of Petitioners prior position is not sufficient to trigger Commission review.140 In fact, Petitioner does not make any attempt to explain how the Board could have been in error for understanding the contention admissibility requirements to require that Petitioner connect the dots between its assertion of a deficiency in the SAMA analysis and its alleged basis for that assertion, which is the GAO Report. Neither does Petitioner explain how the Board could have been in error for finding that Petitioner did not connect those dots. Instead, Petitioner continues to generally point to the GAO Report as some sort of basis for a general disagreement with the SAMA analysis.141 But Petitioner confusingly both argues that the GAO Report is not a primary source for claiming that the SAMA analysis is inadequate and also that it is the cure to the Boards previous denial of this argument in 2023 for being speculative and not sufficiently specific.142 In any event, the extent of the substance of the GAO Report cited by Petitioner on appeal is that it concluded that NRC has not done enough to fully consider climate change impacts, found that Turkey Point is in the highest risk level for flooding and high-intensity hurricanes, and has a more site-specific analysis of the cumulative effects of climate change on the continued operation of Turkey Point than Staffs own analysis.143 This, though, does nothing to address the question that is relevant to the admissibility of SAMA-related contentionswhether [the]

contention, with support, raises a credible potential material deficiency in the [SAMA]

analysis.144 Petitioner does not discuss any specifics of the SAMA analysis, let alone how those specifics may be impacted by the GAO Report. Therefore, the Commission should not review the Boards denial of New Contention 3-B.

139 Compare Petition for Review at 23 with 2024 Motion at 70.

140 Turkey Point, CLI-17-12, 86 NRC at 219.

141 Petition for Review at 23-24.

142 Id. at 24; see LBP-24-3, 99 NRC at 67-69.

143 Petition for Review at 24.

144 Pilgrim, CLI-12-15, 75 NRC at 714.

CONCLUSION The standard for review in this instance is whether the Board in LBP-24-8 made an error of law or abused its discretion145 and, as explained above, the Board did not. Alternatively, Petitioner argues on appeal that it would be in the public interest for the Commission to review LBP-24-8 because Turkey Point is unique among nuclear power plants in its use of the CCS, because the CCS is a source of saline groundwater, and because climate conditions will be different by the end of the subsequent license renewal term.146 However, these issues have already been fully considered as part of the Staffs two reviews of the environmental impacts of Turkey Point SLR, with each review including a draft environmental impact statement that was issued for comment and a final environmental impact statement that addressed all comments received, including numerous comments received from Petitioner. These environmental reviews were also both subject to hearing opportunities in which Petitioner participated. Finally, Petitioners concerns regarding groundwater continue to be the subject of ongoing State and local oversight. Therefore, the Commission should deny the petition for review of LBP-24-8.

Respectfully submitted,

/Signed (electronically) by/

Executed in Accord with 10 CFR 2.304(d)

Jeremy L. Wachutka Kevin D. Bernstein Counsel for NRC Staff Counsel for NRC Staff Mail Stop: O-14-A44 Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 Telephone: (301) 287-9188 Telephone: (301) 415-1001 Email: Jeremy.Wachutka@nrc.gov Email: Kevin.Bernstein@nrc.gov Dated October 18, 2024 145 WCS, CLI-21-9, 93 NRC at 246; Comanche Peak, CLI-12-7, 75 NRC at 386.

146 Petition for Review at 24-25.

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of FLORIDA POWER & LIGHT COMPANY (Turkey Point Nuclear Generating Units 3 and

4)

Docket Nos. 50-250-SLR-2 50-251-SLR-2 Certificate of Service Pursuant to 10 C.F.R. § 2.305, I hereby certify that copies of the foregoing NRC STAFF ANSWER OPPOSING PETITION FOR COMMISSION REVIEW OF LBP-24-8, dated October 18, 2024, have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the captioned proceeding, this 18th day of October 2024.

/Signed (electronically) by/

Jeremy L. Wachutka Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9188 Email: Jeremy.Wachutka@nrc.gov