ML24292A199
| 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 C O M PA N Y Docket Nos. 50-250-SLR-2 50-251-SLR-2
(Turkey Point Nuclear Generating Units 3 and 4)
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
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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
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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 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
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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 C O M PA N Y Docket Nos. 50-250-SLR -2 50-251-SLR -2
(Turkey Point Nuclear Generating Units 3 and 4)
NRC STAFF ANSWER OPPOSING PETITION FOR COMMISSION REVIEW OF LBP-24 -8
INTRODUCTION
In accordance with 10 C.F.R. § 2.34 1(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 8. The
Commission should deny the petition for review because the Commission disturbs a licensing
board s 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 f inal supplemental environmental
1 Miami Waterkeeper s Motion to Admit Amended and New Contentions in Response to NRC Staff s Final Site-Specific Environmental Impact Statement (May 8, 2024) (ML24129A220) (2024 Motion).
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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, t he Staff and F P L filed answers opposing Petitioner s 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 c onsent 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 Petitioner s 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 Waterkeeper s Motion to Admit Amended and New Contentions in Response to the NRC Staff s 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
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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 Petitioner s 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 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 8.
I. Petitioner Does Not Identify a Board Error of Law o r 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 Waterkeeper s 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)).
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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 An d 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,
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(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 contention s proponent establish good cause for why the
contention was not raised at the outset of the proceeding and w hen 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), aff d 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 petitioner s 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).
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controverted; 28 a concise statement of the alleged facts or expert opinions that support the
petitioner s 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 i s 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).
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requests on the 2023 DSEIS 35and (2) provides sufficient information to show that a genuine
dispute exists with the Staff s 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
change 41 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.
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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, Petitioner s 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 Petitioner s 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 Petitioner s 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 the ir 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 Waterkeeper s Reply in Support of Motion to Admit Amended and New Contentions at 7, 9 (Jun. 12, 2024) (Reply).
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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 requirements 51 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 Petitioner s 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
Petitioner s 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 Petitioner s 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 2-31; 2024 FSEIS at 2 2-
- 40). Additionally, Petitioner s 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 Waterkeeper s Amended Motion to Migrate Contentions & Admit New Contentions in Response to NRC Staff s Supplemental Draft Environmental Impact Statement (Jun. 28, 2019) (ML19179A316) (2019 Motion);
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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 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
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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. A ccordingly, 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
Pe titioner also faults the Board for dismissing Amended Contention 1-B due to
Petitioner s 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 [Petitioner s]
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.
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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 Petitioner s burden and not the Boards to satisfy this
requirement 67 and the failure to satisfy this requirement cannot be rectified in a reply 68 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 Petitioner s 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 Petitioner s 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 standard but 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).
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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 o f 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 Petitioner s 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.
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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, Petitioner s
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 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.
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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 Petitioner s 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 plume FPL 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.
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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 c ave 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-C that 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 2-67.
91 Id. at 2-67. See also 2019 FSEIS at 3 3-11, 3 3-88, 4 4-35; 2023 DSEIS at 2 2-20; 2024 FSEIS at 2 2-40.
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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 Motion 93 but fails to
demonstrate that the Board erred or abused its discretion. As a threshold matter, such a
recitation of Petitioner s prior position and expression of general disagreement with the Boards
decision is not sufficient to trigger Commission review. 94 Moreover, contrary to Petitioner s
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 Petitioner s assertion, the Boad did not respond to
Petitioner s 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 Petitioner s 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.
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withdrawing hypersaline groundwater. 101 In sum, without more, Petitioner s 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 b are 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 re stated 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 2-38.
108 Petition for Review at 15, 18 (citing 2024 Nuttle Report at Figure 7).
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§ 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 Petitioner s
contentions satisfy the requirements of 10 C.F.R. § 2.309(f). 110 The Board correctly rejected
Petitioner s 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 Petitioner s 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).
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on the GAO Report was in sufficient 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.
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Similarly, Petitioner s 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
N E PA. 128 However, the Commission decision s 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 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.
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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 Petitioner s
continued assertion of errors with the Staffs environmental review is unavailing; th e 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, Petitioner s conclusion misses the mark the 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 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).
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demonstrates otherwise; therefore, the Commission should not review the Boards denial of
New Contention 3-A.
I. Petitioner Does Not Identif y 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.
- 24 -
NEPA demands that FPL must update its SAMA analysis. 139 Such a recitation of
Petitioner s 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 contentions whether [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 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 discretion 145 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,
Petitioner s concerns regarding groundwater continue to be the subject of ongoing State and
local oversight. Therefore, t he 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 Docket Nos. 50-250-SLR-2 50-251-SLR-2
(Turkey Point Nuclear Generating Units 3 and 4)
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 ofOctober 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