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| {{#Wiki_filter:Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSIONTitle:Florida Power and Light Co. | | {{#Wiki_filter:}} |
| Turkey Point Units 3 & 4Docket Number:50-250-SLR and 50-251-SLRASLBP Number:18-957-01-SLR-BD01 Location:Homestead, Florida Date:Tuesday, December 4, 2018Work Order No.:NRC-4018Pages 11-259 NEAL R. GROSS AND CO., INC.
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| Court Reporters and Transcribers 1323 Rhode Island Avenue, N.W.
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| Washington, D.C. 20005 (202) 234-4433 11 UNITED STATES OF AMERICA 1 NUCLEAR REGULATORY COMMISSION 2+ + + + +3 ATOMIC SAFETY AND LICENSING BOARD PANEL 4+ + + + +5 HEARING 6---------------------------x 7 In the Matter of: : Docket Nos.
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| 8 FLORIDA POWER & LIGHT CO. : 50-250-SLR, 9 : 50-251-SLR 10 (Turkey Point Units 3 & 4) : ASLBP No.
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| 11---------------------------x 18-957-01-SLR-BD01 12 Tuesday, December 4, 2018 13 14 Homestead City Hall 15 City Council Chambers 16 100 Civic Court 17 Homestead, Florida 18 19 BEFORE: 20 E. ROY HAWKENS, Chair 21 MICHAEL F. KENNEDY, Administrative Judge 22 SUE ABREU, Administrative Judge 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 12 APPEARANCES:
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| 1 On Behalf of Florida Power & Light, Inc.:
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| 2 PAUL BESSETTE, ESQ.
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| 3 MARTIN J. O'NEILL, ESQ.
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| 4 RYAN LIGHTY, ESQ.
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| 5of:Morgan, Lewis & Bockius LLP 6 1111 Pennsylvania Avenue, N.W.
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| 7 Washington, DC 20004 8 202-739-5796 (Bessette) 9 202-739-5274 (Lighty) 10 202-739-5733 (O'Neill) 11 202-739-3001 (FAX) 12 paul.bessette@morganlewis.com 13 AND: 14 STEVEN HAMRICK, ESQ.
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| 15of:Florida Power & Light Company 16 801 Pennsylvania Ave. NW, Suite 220 17 Washington, DC 20004 18 steven.hamrick@fpl.com 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 13 On Behalf of the Nuclear Regulatory Commission:
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| 1 SHERWIN TURK, ESQ.
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| 2 JEREMY WACHUTKA, ESQ.
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| 3 ESTHER HOUSEMAN, ESQ.
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| 4of:Office of the General Counsel 5 Mail Stop - O-14 A44 6 U.S. Nuclear Regulatory Commission 7 Washington, D.C. 20555-0001 8 Shwerwin.turk@nrc.gov 9 10 On Behalf of Petitioners:
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| 11 GEOFFREY FETTUS, ESQ.
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| 12of:Natural Resources Defense Council 13 1152 15th Street, NW, Suite 300 14 Washington, DC 20005 15 gfettus@nrdc.org 16 17 DIANE CURRAN, ESQ.
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| 18of:Southern Alliance for Clean Energy 19 Harmon, Curran, Spielberg & Eisenberg, 20 LLP 21 1725 DeSales Street, NW, Suite 500 22 Washington, DC 20036 23 dcurran@harmoncurran.com 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 14 RICHARD AYRES, ESQ.
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| 1of:Friends of the Earth 2 Ayres Law Group 3 1707 L St., NW, Suite 850 4 Washington, D.C. 20036 5 6 KEN RUMELT, ESQ.
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| 7of:Friends of the Earth 8 University of Vermont Law School 9 164 Chelsea St.
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| 10 South Royalton, VT 05068 11 802-831-1031 12 krumelt@vermontlaw.edu 13 14 15 16 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 15 P R O C E E D I N G S 1 8:34 a.m.2 JUDGE HAWKENS: Today's case is entitled 3 Florida Power and Light Company, Turkey Point Units 3 4 and 4. Docket Number is 50-250-SLR and 50-251-SLR.
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| 5My name is Roy Hawkens. I'm joined by 6 Judge Mike Kennedy, who has his PhD in nuclear 7engineering. And I'm also joined by Judge Sue Abreu, 8 who has her MD and her areas of expertise include 9 nuclear medicine.
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| 10 This case involves challenges to FPL's 11 request for a subsequent renewal of its license to 12 operate Turkey Point Units 3 and 4, and a subsequent 13 license renewal is a request for a second 20-year 14 renewal of its license to operate its power plants.
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| 15 We received hearing requests challenging 16 FPL's application from Southern Alliance for Clean 17 Energy, whom we will refer to as SACE; as 18 collectively, Friends of the Earth, Natural Resources 19 Defense Council, and Miami Waterkeeper, whom we will 20 refer to as Joint Petitioners; and from a third 21 petitioner, Mr. Albert Gomez, who will be submitting 22 his hearing request on the written pleadings that he 23 has filed.
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| 24 Would Counsel for Petitioners please 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 16 introduce themselves, starting with SACE, please?
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| 1MS. CURRAN: Good morning. My name is 2 Diane Curran and I represent Southern Alliance for 3 Clean Energy.
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| 4 JUDGE HAWKENS: Thank you, Ms. Curran.
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| 5 Joint Petitioners?
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| 6 MR. RUMELT: My name is Ken Rumelt and I 7 represent Friends of the Earth.
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| 8 MR. AYRES: My name is Richard Ayres and I 9 represent Friends of the Earth.
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| 10 JUDGE HAWKENS: Good morning.
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| 11 MR. FETTUS: My name is Geoffrey Fettus and 12 I represent the Natural Resources Defense Council and 13 Miami Waterkeeper.
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| 14 JUDGE HAWKENS: Thank you, good morning.
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| 15 FPL?16 MR. BESSETTE: Good morning, your honor.
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| 17My name is Paul Bessette and I represent FPL. I want 18to introduce some of my colleagues: Martin O'Neill, 19 Steve Hamrick from FPL, and my other colleague, Ryan 20 Lighty representing FPL as well.
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| 21 JUDGE HAWKENS: Good morning. NRC staff?
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| 22 MR. TURK: Good morning, your honor.
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| 23 Sherwin Turk, I have the pleasure of appearing before 24you today on behalf of the NRC staff. To my right are 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 17 my co-counsel on the case, and I will let them 1 introduce themselves.
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| 2MR. WACHUTKA: Good morning. I'm Jeremy 3 Wachutka, representing the NRC staff.
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| 4 JUDGE HAWKENS: Good morning.
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| 5MS. HOUSEMAN: Good morning. My name is 6 Esther Houseman and I represent the NRC staff.
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| 7 JUDGE HAWKENS: Good morning.
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| 8MR. RUMELT: If I may, your honor? I'd 9 also like to --
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| 10 JUDGE HAWKENS: One second, make sure your 11-- the red light comes on and that way, your mic is 12 hot and our court reporter will be able to hear you.
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| 13MR. RUMELT: All right. Red means go, 14 right?15 JUDGE HAWKENS: Red means go.
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| 16 MR. RUMELT: All right. I just wanted to 17 also introduce two students that have come with me 18from the law school. And that's Kyron Williams and 19 Benjamin Waldrop, who are behind me.
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| 20 JUDGE HAWKENS: Welcome, glad you're here 21 today. We've provided Counsel with a list of topics 22 that they should include in their presentations today.
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| 23 The parties have submitted extensive briefing and the 24 Board has read and is familiar with all the briefs.
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 18 The principal purpose of the argument 1 today is for the Board to ensure we understand 2 Counsel's arguments and the rationale and the support 3 underlying their arguments.
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| 4 We also issued an order that prescribed 5the format for today's oral argument. We'll first 6 hear from the parties on an issue of regulatory 7 interpretation, whether Section 51.53(c)(3) applies to 8 subsequent license renewals.
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| 9 The Petitioners, that is SACE and Joint 10 Petitioners, will first address this issue and they've 11 been allotted a total of 20 minutes to divide among 12 themselves as they deem appropriate.
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| 13We'll then hear from FPL and the NRC 14 staff, who likewise have been allotted 20 minutes and 15 will divide that time among themselves as appropriate.
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| 16 I contemplate taking a short break after 17 that argument, at which time, we'll hear arguments 18from the parties on the admissibility of their 19 contentions.
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| 20 We will first hear from SACE, who will be 21 allotted one hour and ten minutes, to be followed by 22 FPL and the NRC staff, who likewise will have that 23 amount of time to divide among themselves as they 24 wish.25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 19 I anticipate that we'll take a break for 1lunch following that argument. And after lunch, we'll 2 hear from Joint Petitioners on the admissibility of 3their contention. They will be allotted 50 minutes to 4 be divided among themselves.
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| 5 And then, we will hear from FPL and the 6 NRC staff, who will likewise be allotted that amount 7 of time to be divided among themselves.
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| 8 The building, I'm advised, closes at 4:30, 9 so our goal is to complete arguments no later than 10 4:00, hopefully sooner than that, so that you all and 11 we will have ample time to pack up and depart before 12 the building closes.
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| 13 I'd like to introduce the Board's law 14clerks. They are to my left and to your right, Taylor 15 Mayhall and Joe McManus.
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| 16 Taylor will be assisting us and assisting 17 Counsel in keeping track of the allotted time. When 18 there are five minutes letter, she will hold up an 19amber sign. Two minutes, another amber sign. And 20 when the time is up, the red sign.
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| 21 So, when Counsel see the signs starting to 22 rise, and especially when they see the red sign, if 23they could wrap it up. If we have additional 24 questions, we'll keep you up there, but in order to 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 20 keep things on time, we ask you to respect Taylor's 1 placards.2 Before we begin, do Counsel have any 3 questions or anything they would like to address?
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| 4 MR. TURK: Your honor, Sherwin Turk.
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| 5 JUDGE HAWKENS: Yes, sir?
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| 6 MR. TURK: My green light is --
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| 7JUDGE HAWKENS: One second, okay. Red, 8 ready to go.
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| 9 MR. TURK: Your honor, before I begin, I'd 10like to introduce to you several members of the NRC 11 staff who are here with us today.
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| 12 They are involved either in review of the 13 application itself or in review of the Environmental 14Report. And they will be participating in the 15 development of the draft Supplemental Environmental 16 Impact Statement.
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| 17 And as I call their name, I'd just ask 18them to stand to introduce themselves to you. First, 19we have Mr. Benjamin Beasley. And with him are Dr.
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| 20 William Ford, Kevin Folk, Michelle Moser, and Lois 21 James, who is the Project Manager for the Turkey Point 22 SLR application review.
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| 23 JUDGE HAWKENS: Good morning and welcome.
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| 24 Any other matters to address? All right.
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 21 MS. CURRAN: Judge Hawkens, I'm waiting for 1 the red light.
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| 2JUDGE HAWKENS: Oh, okay. Good, thank you.
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| 3 Please proceed.
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| 4 MS. CURRAN: I would also like to 5 introduce, sitting directly behind me is Jim Porter, 6who is another attorney for SACE. He has not entered 7 an appearance in this case.
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| 8 Jim represents SACE in the Clean Water Act 9 lawsuit that is mentioned in our pleadings and he's 10 going to be sitting with me at Counsel table to help 11me out during the second -- the argument on the 12 admissibility of the contentions. Thank you.
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| 13JUDGE HAWKENS: All right. Thank you. We 14 will now proceed with the argument on 51.53(c)(3).
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| 15 Let me ask Petitioners how they wish to divide their 16 time and if they wish to reserve any time for 17 rebuttal? I'm sorry?
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| 18 MS. CURRAN: Oh, do I have to hit the 19 button? I'm getting the hang of it.
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| 20 JUDGE HAWKENS: So are we.
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| 21 MS. CURRAN: I would like to take ten 22minutes for initial argument and ten minutes for 23rebuttal, please. And I am going to do the argument, 24 but I may ask Mr. Rumelt to help out a little, if I 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 22 need it.1JUDGE HAWKENS: That would be fine. And 2 let me address this question to all Counsel. We are 3 content to have you present argument from your seat, 4 as opposed to coming up to the podium, if you all are 5 content with that as well. I want to --
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| 6 MS. CURRAN: Yes, thank you.
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| 7JUDGE HAWKENS: All right. Thank you. Ms.
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| 8 Curran --9 MS. CURRAN: Okay.
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| 10 JUDGE HAWKENS: -- you may proceed.
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| 11MS. CURRAN: Thank you. The question of 12 whether 10 CFR 51.53(c)(3) applies to FP&L's SLR 13 application is governed by basic principles of the 14 Administrative Procedure Act and the National 15 Environmental Policy Act, or NEPA.
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| 16 An agency may not alter the plain language 17of a regulation through interpretation. It has to go 18 through notice and comment rulemaking, with only very, 19 very limited exceptions.
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| 20 And the content of an Environmental Impact 21 Statement may not be altered through interpretation 22 either. Under NEPA, the subject matter of an EIS --
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| 23 JUDGE HAWKENS: Ms. Curran?
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| 24 MS. CURRAN: Yes.
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 23 JUDGE HAWKENS: 51.53(c)(3) applies to 1 development of the ER.
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| 2 MS. CURRAN: Yes.
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| 3 JUDGE HAWKENS: So, how does this have any 4 impact on the development of the EIS?
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| 5 MS. CURRAN: Because 51.53(c)(3) makes 6 Table B1 of Part A to 10 CFR Part 51 applicable in 7this case to the Environmental Report. 51.53(c)(3) 8 references Table B-1 and tells the applicants that 9 they need not address Category 1 issues --
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| 10 JUDGE HAWKENS: All right.
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| 11 MS. CURRAN: -- in Table B-1.
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| 12JUDGE HAWKENS: Understand. Let me 13rephrase my question, then. 51.53(c)(3) places no --
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| 14 does not impact the NRC staff's development of the 15 draft SEIS, is that correct?
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| 16MS. CURRAN: That is correct. And from 17 SACE's perspective, we must treat the Environmental 18 Report as essentially a draft of the Environmental 19 Impact Statement that ultimately the staff will 20 prepare, because we must base our contentions on the 21 Environmental Report.
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| 22 And only if the Environmental Impact 23 Statement changes what's in the Environmental Report 24 can we submit any new contentions on the issues that 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 24 concern us.
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| 1 JUDGE HAWKENS: It's clear, is it not, that 2 the staff can rely upon the GEIS and Table B-1, the 3 Category 1 issues, in development of its draft EIS, is 4 that correct?
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| 5 MS. CURRAN: No, that is not correct in our 6 view.7 JUDGE HAWKENS: Tell me why, because I --
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| 8 it's something people might argue, that the 9 regulations expressly provide that they may rely upon 10 that.11 MS. CURRAN: Okay. Table B-1 only exists 12 in order to codify findings in the 1996 Environmental 13Impact Statement, as revised in 2013. It can't exist 14in any other way. It must refer -- it codifies the 15 finding of that EIS.
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| 16 So, the regulations, 10 CFR 51.71 and 10 17 CFR 51.95, which tell the staff what to put in an 18 Environmental Impact Statement for license renewals, 19say, you can rely on Table B-1 for license renewal, 20 doesn't it use the word initial, as 51.53(c)(3) does.
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| 21 But there is, in the rulemaking documents 22 that establish 10 CFR 51.53(c)(3) and 51.71 and 51.95, 23 as they refer to Table B-1, those regulations make it 24 clear, the preamble to the 1991 proposed rule, as well 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 25 as language in the 1996 GEIS, especially in Chapter 2, 1 Pages 2-1 and 2-28, I think, they say explicitly, this 2 GEIS applies to initial license renewal, that is, the 3 first 20 years after the 40-year term.
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| 4 When the NRC, at the time that it proposed 5 to revise the 1996 GEIS, that was in 2003, that 6process started. At that time, I'm not even sure that 7 half of the license renewal, initial license renewal 8applications for reactors had been reviewed. So, they 9 were still in the process of reviewing initial license 10 applications.
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| 11 In our view, there is nothing to indicate 12 that the NRC had anything else in mind in promulgating 13 those regulations for its own use, but initial license 14renewal. Never used the term subsequent license 15 renewal.16 The first time you will see the term 17 subsequent license renewal is in the draft Regulatory 18 Analysis for SECY-12-0063, in which the staff said, we 19 expect we may get some SLR applications down the road.
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| 20 There is no rulemaking document, no NEPA 21 document, that says that the NEPA analysis on which 22 Table B-1 and, therefore, 10 CFR 51.71 and 51.95 rely, 23 considered anything other than initial license 24 renewal.25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 26In other words, the NRC had not even 1 contemplated subsequent license renewal at that point.
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| 2 And the NRC did need to notify licensees, having said 3 under Part 54, licenses can be renewed multiple times 4 under the Atomic Energy Act, the NRC made it clear to 5 licensees, license renewal applicants, you don't get 6 to just use the GEIS over and over again for any 7 subsequent license renewal application. We only use 8 this GEIS for the first, the initial license renewal.
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| 9 They did not need to include that language 10 in their own regulations, they had already established 11 that.12 JUDGE KENNEDY: Ms. Curran, what part of 13 the GEIS do you believe subsequent license renewal 14would impact? It sounds like you're making a 15 distinction that the 1996 GEIS is only applicable to 16 an initial license renewal and you --
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| 17 MS. CURRAN: That's correct.
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| 18 JUDGE KENNEDY: -- discussed the timing of 19 the 2003 update, which as I understand it, was 20 suspended for a while and really didn't come out until 21 2013.22 MS. CURRAN: Yes.
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| 23 JUDGE KENNEDY: But at the end of the day, 24 what part of the GEIS is really relevant, it would be 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 27negated by a subsequent license renewal? I presume --
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| 1 MS. CURRAN: I think I --
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| 2 JUDGE KENNEDY: -- it's relevant.
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| 3 MS. CURRAN: -- understand your question.
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| 4 There's no reason for FP&L in its Environmental Report 5 not to refer to the license renewal GEIS.
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| 6 It's a perfectly usable document, just as 7if you'll see in many Environmental Reports, they 8 cross-reference other Environmental Impact Statements, 9as there's rules for how you do that, if you can do 10 that.11 Our concern here is that the regulation, 12 Table B-1, makes the Category 1 findings binding on us 13 in our -- we are precluded from challenging -- for 14 instance, the issues that we raise in our Contention 15 1, ordinarily, if this had been the initial license 16 renewal term, we would be precluded from raising 17 Contention 1, unless it was accompanied by a waiver 18 petition or a petition for rulemaking.
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| 19I have two minutes left. So, we -- that's 20the concern that we have. We want to be able to raise 21 the contention and have you consider its admissibility 22 without having to do a waiver petition or a petition 23 for rulemaking.
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| 24 The basic gravamen of our argument here is 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 28 that the binding determinations of Table B-1 do not 1apply to subsequent license renewal. That doesn't 2 mean that FP&L can't cross-reference the license 3 renewal GEIS, but we could also come in with a 4 contention and say, that GEIS is outdated and it 5 doesn't address this, that, and the other thing.
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| 6 JUDGE HAWKENS: If the -- so, you believe 7the GEIS is outdated? It doesn't take into account 8 more recent occurrences in updating the Category 1 9 items?10 MS. CURRAN: Yes.
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| 11 JUDGE KENNEDY: And that's the 2013 GEIS?
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| 12 MS. CURRAN: Yes, the 2013 revision was, by 13its own terms, an update. And you cannot find 14 anywhere, not in the draft of that GEIS, that revised 15 GEIS, not in the scoping notices, which literally are 16 supposed to tell people if there's a change in the 17 scope, nothing there.
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| 18 You can't find a word saying that the 19 temporal scope of that environmental review was 20changed in any way. They were -- and you can find 21 language, which we cite, in the 2013 revised GEIS, 22 that talks about the 40-year term plus 20 years.
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| 23 JUDGE KENNEDY: So, in your mind, what 24 would the time frame be of the GEIS? If the GEIS is 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 29 for the license renewal period --
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| 1 MS. CURRAN: The GEIS is --
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| 2 JUDGE KENNEDY: -- why would that not be 20 3 years?4 MS. CURRAN: The GEIS is for the first 20 5 years after the initial operating license, it does not 6apply to any subsequent license renewal term. So, in 7 other words, it goes out to 60 years and stops.
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| 8 JUDGE HAWKENS: I'm having a memory, and 9 maybe you can help me out, but I thought the revision 10 in 2013 indicated that it took into account not only 11 a number of initial license renewals, but also a 12 certain discrete number of impending anticipated 13 subsequent license renewals in a cost-benefit 14 analysis.15 MS. CURRAN: That's not correct, your 16honor. There is no reference in the 2013 GEIS to any 17 subsequent license renewal.
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| 18 JUDGE HAWKENS: Well, does it --
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| 19 MS. CURRAN: The only --
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| 20 JUDGE HAWKENS: Does it make any 21 distinction between initial and subsequent? It just 22 talks in terms of license renewals, is that correct?
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| 23 MS. CURRAN: The word subsequent, the words 24 subsequent license renewal --
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 30 JUDGE HAWKENS: Okay, can you just answer 1 that question first? And then --
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| 2 MS. CURRAN: There's no -- I mean, they 3 didn't mention it. There --
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| 4 JUDGE HAWKENS: Not initial or subsequent?
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| 5 MS. CURRAN: Well, they do use the word 6initial, they use the word initial. They make it 7 clear they're talking about the first 20 years after 8 the 40-year term.
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| 9 The first place you will see a reference 10 to subsequent license renewal is that draft Regulatory 11 Analysis from 2012, where they say, we're anticipating 12some of these applications coming in. There's nothing 13 in the rulemaking or NEPA documents that refers to 14 anything other than initial license term.
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| 15JUDGE KENNEDY: If we can get beyond the 16 plain language of the statute, of the regulation, do 17 you see anything within the current 2013 GEIS 18 document, from a technical standpoint, that would 19impede it being used for subsequent license renewal 20 applications?
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| 21 MS. CURRAN: As a general matter, there's 22 nothing that would bar FP&L from cross-referencing the 23 2013 revised GEIS.
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| 24 But the degree to which that GEIS is 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 31 adequate to support the current Environmental Review 1 for the subsequent license renewal application would 2 be a legitimate topic for challenge by the 3 Petitioners.
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| 4 This is our concern here, that we not be 5barred from saying -- if you reference -- the only 6 reference that FP&L makes to the license renewal GEIS 7 is to say, well, these are Category 1 issues.
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| 8 What you would expect to see if it was 9 cross-referenced in the ordinary course would be, I'm 10 going to point you to Page X of the license renewal 11 GEIS, which has a discussion, for example, of such-12 and-such an issue, and we think that that's still 13 good, because things haven't changed since then.
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| 14That would be okay. And then, we would be 15 entitled to come along and say, well, as a matter of 16 fact, they have changed and you didn't look at X, Y, 17and Z, and that would be for you to review as to 18 whether that's an admissible claim.
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| 19 JUDGE KENNEDY: So, is the only argument 20 here whether you're forced to file a waiver to 21 challenge the Category 1?
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| 22 MS. CURRAN: That's correct.
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| 23 JUDGE KENNEDY: Okay, thank you.
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| 24 MS. CURRAN: The only question here is 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 32 whether those Category 1 determinations can be binding 1 on us for purposes of raising contentions.
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| 2 JUDGE HAWKENS: And your principal 3 argument, that it is not that the staff an no longer 4 rely on the GEIS and Category 1 for subsequent is 5 because, in your view, the GEIS has not been -- it was 6 initially promulgated to apply only to initial and it 7 hasn't been sufficiently updated to provide the 8 necessary information that would support a Category 1 9 finding for the NRC staff preparing its Supplemental 10 EIS?11 MS. CURRAN: Judge Hawkens, we're not 12 saying that FP&L cannot rely on the license --
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| 13 JUDGE HAWKENS: No, no, I'm not talking 14 about FPL at this point --
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| 15 MS. CURRAN: Or the NRC.
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| 16 JUDGE HAWKENS: -- I'm talking about the 17 NRC staff.
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| 18 MS. CURRAN: We're not saying they can't 19 rely on it, per se, we're saying, they can't codify 20 it. They can't rely on it as a codified document.
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| 21 JUDGE HAWKENS: And the reason is because 22 you believe it wasn't intended to apply to subsequent 23 and it has not been updated?
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| 24MS. CURRAN: That's right. And neither has 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 33the rulemaking that makes it binding. So, two things 1have to be updated. If these Category 1 findings are 2 going to be binding in the subsequent license renewal 3 term, two things have to happen.
| |
| 4 First of all, the draft GEIS has to be 5 revised with a clearly stated new scope. We are now 6 going to look at 60 years plus 20, not 40 years plus 720. And that has to go out first with the scoping 8 notice and then, a draft EIS, so that the public can 9 comment on it.
| |
| 10 Second, if that GEIS is going to be made 11 binding, through Category 1 findings, there needs to 12 be a new rulemaking that updates Table B-1 and says 13 clearly, this table now applies to a subsequent 14 license renewal term.
| |
| 15 And it would be hard for me to imagine 16 that the NRC could legitimately say that a GEIS would 17 apply to all subsequent license renewal terms, because 18 that's just a long time for a NEPA analysis, because 19 in a NEPA analysis, you have to look at, what's the 20 environment --
| |
| 21 JUDGE HAWKENS: Although, that's --
| |
| 22 MS. CURRAN: -- right now?
| |
| 23 JUDGE HAWKENS: That's why they --
| |
| 24 MS. CURRAN: What are the impacts?
| |
| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 34 JUDGE HAWKENS: -- intended to revise it 1 every ten years or so, right?
| |
| 2 MS. CURRAN: That's right --
| |
| 3 JUDGE HAWKENS: I think --
| |
| 4 MS. CURRAN: -- because they had to take 5another look at, has the environment changed? Have 6the impacts changed? Are these assumptions that we 7 made still good?
| |
| 8 It's interesting that, if you look at 9 SECY-14-0016, the NRC talks about how there's issues 10 that relate to the aging of reactors that they still 11 don't understand. They still don't know how some of 12 these phenomena work.
| |
| 13 So, that would be another thing you'd look 14 at, what have we learned about aging reactors and what 15 do we need to put into this Environmental Impact 16Statement? And those, of course, are the things that 17 the public would want a chance to comment on.
| |
| 18 JUDGE KENNEDY: I guess I asked this 19 question before, but I'm curious to understand, from 20 your perspective, is there no reference to 60-year 21 operating history in the 2013 GEIS?
| |
| 22 MS. CURRAN: That's correct.
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| 23 JUDGE KENNEDY: Not even when it talks 24 about decommissioning?
| |
| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 35MS. CURRAN: No. It goes from -- it takes 140 and adds 20. And so, you get a total of 60, but 2you don't start with 60 as the baseline. They talk 3 about the baseline being 40, not 60.
| |
| 4 JUDGE KENNEDY: I guess I'll have to review 5that. It appeared to me that they were taking 60 6 years as an operating history, when they looked at the 7 impact in the GEIS.
| |
| 8 MS. CURRAN: Judge Kennedy, we went over 9this with a fine-tooth comb. And if you will look at 10 our brief, in the various footnotes, we have page 11 citations to where over and over again, the 2013 GEIS 12refers to 40 plus 20.
| |
| There is no place where you 13 will see 60 plus 20.
| |
| 14 JUDGE KENNEDY: I agree with you, but what 15 it does say, when they're looking at decommissioning 16 costs, they start with an operating history of 60 17years. And the GEIS is intended to cover the renewal 18 period, which is another 20 years. I will check it, 19 I --20 MS. CURRAN: Well --
| |
| 21 JUDGE KENNEDY: -- it's just curious that 22 I --23 MS. CURRAN: And maybe the difference, 24 decommissioning is a little different, isn't it?
| |
| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 36 Because decommissioning comes at the very end.
| |
| 1 So, maybe they're saying, with 2 decommissioning, we're going to take 40 and add 20 and 3 then, we're going to look at what happens right there.
| |
| 4 But for most of these impacts, they look at -- the 5 baseline is the first 40 and then, let's add 20.
| |
| 6 If you look, for instance, at public 7 health impacts or impacts to workers of radiation 8 exposure, in the 2013 GEIS, they talk about 40 plus 9 20. Very clear.
| |
| 10 JUDGE KENNEDY: All right, thank you.
| |
| 11 JUDGE HAWKENS: I think you're approaching 12 your 20-minute. We will give you more --
| |
| 13 MS. CURRAN: Thank you.
| |
| 14 JUDGE HAWKENS: -- time for rebuttal.
| |
| 15 MS. CURRAN: Thank you.
| |
| 16 JUDGE HAWKENS: Thank you for answering our 17questions. Let's go now to NRC staff. How much time 18 will you be taking, sir?
| |
| 19 MR. TURK: Your honor, I believe your 20 honors have allotted 20 minutes to the applicant and 21 the staff to split and we've agreed on a 50/50 split 22 of our time.
| |
| 23 JUDGE HAWKENS: All right.
| |
| 24 MR. TURK: So, I will be taking ten 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 37 minutes. I'm not --
| |
| 1 JUDGE HAWKENS: Please proceed.
| |
| 2 MR. TURK: I'm not sure that you would 3 allow me to stop after ten minutes, but we'll see what 4 happens.5 Your honor, the arguments raised by Ms.
| |
| 6Curran are very tempting, but there are a lot of 7errors in the argument. Let me begin, if I may, with 8 a brief opening statement and then, I'd like to come 9 back to some of the questions that your honors asked 10 Ms. Curran.
| |
| 11 The Commission, back in 1991, instituted 12 a proposed rulemaking and indicated that what was in 13 their mind was the development of an efficient process 14for the consideration of the many license renewal 15 applications that the Commission anticipated 16 receiving.
| |
| 17 If we all look back to 1991, we have to 18 remember that nuclear power plants were first licensed 19 for commercial operation approximately 20 years before 20that. Construction permits were issued in the mid to 21 late 1960s and initial operating licenses were issued 22 pretty much in the early 1970s, at the beginning.
| |
| 23 So, 20 years later, the Commission said, 24 well, we have 40-year terms, we have to start thinking 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 38 about what comes next.
| |
| 1And in my mind, that's why the phrase 2 initial license renewal appeared in the regulation, 3 with respect to what license renewal was envisioned to 4 be at that time.
| |
| 5 They didn't foreclose the possibility that 6 subsequent license renewal applications would be 7 submitted --
| |
| 8 JUDGE HAWKENS: I'm wondering why they 9 haven't clarified the regulation in the interim 10period. There's been ample time, even during the 11 pendency of this proceeding.
| |
| 12 MR. TURK: I'm sure there are many of us in 13the room who ask the question, why? And I don't have 14an answer for that. All we know is what is in the 15 documentation.
| |
| 16 And in the record, we see that the only 17 time that the term initial was used was in that one 18 subsection of the regulation, which says that 19 applicants for initial license renewal should keep in 20mind the considerations that the GEIS renders it 21 unnecessary to look at Category 1 issues in their 22 Environmental Reports.
| |
| 23 JUDGE ABREU: So, in that initial use of 24 the term initial, in 1991, would you agree that it was 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 39intentional? That that was not an accident that that 1 word is in there?
| |
| 2 MR. TURK: I don't know, because if you're 3asking, what was the intent?, I cannot go back and 4 find out the intent.
| |
| 5 JUDGE ABREU: Well, when you look at the 6 1991 proposed rule, it does talk about the difference 7in what was going on with Part 54 and Part 51. There 8 is --9 MR. TURK: Yes.
| |
| 10 JUDGE ABREU: -- in the text, it does say, 11 specifically, that it's for one renewal.
| |
| 12MR. TURK: Yes. And in fact, we've brought 13 that to your attention in our initial response to 14 contentions. I think --
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| 15 JUDGE ABREU: So, with that statement, 16 isn't that some evidence that the use of the term 17initial was done with intent in the proposed rule? It 18 wasn't just an accident?
| |
| 19 MR. TURK: Your honor, I can only tell you 20 how it appears to me, I can't tell you if I'm correct 21--22 JUDGE ABREU: And what do you think --
| |
| 23 MR. TURK: -- in understanding their 24 intent.25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 40 JUDGE ABREU: How does it appear to you?
| |
| 1 MR. TURK: Exactly as you stated it.
| |
| 2 JUDGE ABREU: That it --
| |
| 3 MR. TURK: That the thought was that we're 4 dealing now with initial license renewal.
| |
| 5 JUDGE ABREU: Okay. So --
| |
| 6 MR. TURK: In 1991.
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| 7 JUDGE ABREU: If that is the intent --
| |
| 8 MR. TURK: It appears that way, in 1991.
| |
| 9 JUDGE ABREU: So, then --
| |
| 10 MR. TURK: But --
| |
| 11 JUDGE ABREU: -- from 1991, we had notice 12 and comment, adopted -- we have a final rule adopted, 13 then, 1996, published 1997. Correct?
| |
| 14 MR. TURK: Well, when you get to 1996, 15 you're already in different territory.
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| 16 JUDGE ABREU: But it's still a notice and 17 comment that adopted that regulation.
| |
| 18 MR. TURK: The notice and comment had to 19 deal with the initial idea by the staff, which was, we 20 will issue an Environmental Assessment, we don't need 21 an EIS for license renewal.
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| 22 JUDGE ABREU: But --
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| 23 MR. TURK: The proposal was, license 24 renewal is pretty much going to involve the same 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 41 issues that we had seen before and, therefore, we 1 don't need to --
| |
| 2 JUDGE ABREU: We've got that part.
| |
| 3 MR. TURK: -- go into an expansive 4 document.5 JUDGE ABREU: I think we all have a pretty 6 good understanding from your pleadings about the big 7 picture of the intent to streamline the process for 8subsequent renewal. For initial and then, subsequent 9 renewal.10 But we're still going back to, this was a 11regulation adopted through notice and comment. Why 12 shouldn't it be fixed through notice and comment, if 13 now the intent is that it should refer to both initial 14 and subsequent?
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| 15 MR. TURK: When you go into the rulemaking 16 that led to the 1996 rule, you'll see no further 17 mention of the word initial.
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| 18 JUDGE ABREU: That's a different topic.
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| 19 I'm just asking --
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| 20 MR. TURK: And you'll see no mention of the 21 word subsequent.
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| 22 JUDGE ABREU: But I wanted --
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| 23 MR. TURK: You'll only see discussion --
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| 24 JUDGE ABREU: Please get back --
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 42 MR. TURK: -- of license renewal.
| |
| 1 JUDGE ABREU: -- to the question I asked, 2which is, why shouldn't it be fixed with notice and 3 comment, since it was adopted with notice and comment?
| |
| 4 MR. TURK: Well, I'm not sure I know 5 specifically what you're referring to, because --
| |
| 6 JUDGE ABREU: Well, we have a statement 7that says, initial renewed license. And the 8 discussion is that, well, this really can apply to 9 initial and subsequent, or just any renewed license, 10 a renewed license.
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| 11 Why shouldn't that terminology change be 12 done through notice and comment, when the initial 13 statement, a renewed license, was part of notice and 14 comment rulemaking?
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| 15 MR. TURK: Well, you did have a notice and 16comment rulemaking. And in that rulemaking, the 17 Commission did not distinguish between initial license 18 renewal applications --
| |
| 19 JUDGE ABREU: But we've got --
| |
| 20MR. TURK: -- and subsequent. They only 21 talk about --
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| 22 JUDGE ABREU: Let's get back --
| |
| 23 MR. TURK: -- license renewal.
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| 24 JUDGE ABREU: -- to the wording of the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 43 regulation. We have a --
| |
| 1 MR. TURK: Well, you're talking about --
| |
| 2 JUDGE ABREU: -- regulation that says, a 3 renewed license, correct?
| |
| 4 MR. TURK: Yes.
| |
| 5 JUDGE ABREU: That was adopted through 6 notice and rulemaking, correct?
| |
| 7 MR. TURK: Yes.
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| 8 JUDGE ABREU: Why wouldn't the fix to that, 9 to make it clear what it applies to, or clear, based 10on the big picture of the intent to simplify the 11 renewal process, why not fix it to be clear through 12 rulemaking with notice and comment?
| |
| 13 MR. TURK: That would have been nice, it 14 didn't happen that way.
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| 15 JUDGE ABREU: Okay. So, is it --
| |
| 16 MR. TURK: But in 2013, we have a revised 17rule. And in the 2013 rulemaking, there is 18 recognition in the Regulatory Analysis that numerous 19 SLR applications were anticipated.
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| 20 JUDGE ABREU: We got that part from --
| |
| 21 MR. TURK: And the rule itself was then 22 revised in its words to delete some references to the 23 term initial -- or, I'm sorry, instead of referring to 24 the first 20 years of a license renewal, they simply 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 44 say, the current license.
| |
| 1 JUDGE ABREU: We got that part from the --
| |
| 2 we got that.
| |
| 3 MR. TURK: Okay.
| |
| 4 JUDGE ABREU: So, we're back to that 5 sentence, where we've all got this sentence here, it's 6 like, we've all written reports for things and you've 7 looked at it 20 times and you just don't see a certain 8 phrase that, when you hand it to somebody else, they 9 notice that you said something that wasn't exactly 10 what you meant.
| |
| 11 And would it be fair to say that's kind of 12like what we're seeing here? Basically, this -- we've 13 seen that this regulation has been revised, multiple 14 times, since it was initially adopted.
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| 15 In fact, that exact sentence was revised 16subsequently. Yet, it didn't get changed to the newer 17concept. The newer concept of, oh, we're thinking 18 beyond initial to subsequent, okay.
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| 19 Is it -- could it be that they just kind 20 of, nobody realiz ed it still said it and we really 21 should have fixed it? Is that kind of --
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| 22 MR. TURK: That's quite possible.
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| 23 JUDGE ABREU: Okay.
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| 24 MR. TURK: I can't tell you definitively --
| |
| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 45 JUDGE ABREU: Right. But it just --
| |
| 1 MR. TURK: -- that's what they were 2 thinking or --
| |
| 3 JUDGE ABREU: -- when you sit back and look 4 at it, it just kind of l ooks like it just got left 5 behind and we just didn't fix it. So, why not start 6-- is there a rulemaking in progress on this?
| |
| 7 MR. TURK: Not that I'm aware of.
| |
| 8 JUDGE ABREU: Why not start one?
| |
| 9 MR. TURK: That's a good question, your 10 honor.11 JUDGE ABREU: Why not start one and ask a 12 stay of this proceeding until you fix it?
| |
| 13 MR. TURK: I'm not sure that that's 14necessary. It may be after the Board rules on 15 contentions that that will become more apparent that 16 it is necessary, or maybe it will become apparent that 17 it's not necessary.
| |
| 18 JUDGE ABREU: If you could waive a magic 19 wand, what would you want that sentence to say?
| |
| 20 MR. TURK: I think the phrase having to do 21 with what a license renewal applicant must submit, it 22 could say initial or subsequent, or simply, the word 23 initial could be deleted.
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| 24 I'd like to come back, if I may, to some 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 46 of the questions that the Board asked Ms. Curran.
| |
| 1 First of all, there is nothing in the 2013 rulemaking 2 that says, this rulemaking applies to initial license 3 renewal.4 I believe Ms. Curran stated that, but it's 5not correct. There is no mention of either initial or 6 subsequent in the rulemaking for the 2013 revisions.
| |
| 7 Your honor, you had asked, does it matter 8 what the license renewal applicant does, because isn't 9 it the staff's EIS that matters and the staff is 10 required to follow 51.95(c), which says that the staff 11 will rely on the GEIS?
| |
| 12That's entirely true. We're sitting here 13in early December. Approximately one to two months 14from now, you're going to see the draft SEIS. And you 15 will see there the staff's analysis that relies upon 16 the GEIS. Now --
| |
| 17 JUDGE HAWKENS: Can you address Ms.
| |
| 18 Curran's argument that the GEIS has not been 19 adequately updated, and even if it were, it needs to 20 be re-codified?
| |
| 21 MR. TURK: The GEIS has been adequately 22updated. We are aware of nothing in there that 23 requires further updating in order to address 24 subsequent license renewal specifically.
| |
| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 47 And that is because the GEIS addresses 20-1 year increments of operation, regardless of when those 220 years begin. Whether it's after the initial 40 or 3 after 60, it's a 20-year increment of license renewal.
| |
| 4 There is nothing that you could see in Ms.
| |
| 5 Curran's brief that tells you the analysis in the GEIS 6 addresses 60 years of operation, it doesn't.
| |
| 7 There are numerous instances where the 8 GEIS talks about dose impacts of 20 years of operation 9 and they compare it to the initial 40 and they say, if 10 the doses for 40 years operation were, for instance, 11 one millirem, then 20 years will get you half of that.
| |
| 12 So, it's simply an incremental analysis, 13 does not tie itself to a combined, cumulative period 14 of 60 years.
| |
| 15 You had asked a question about 16 decommissioning. That is the one time that 60 years 17 is mentioned. And what they do in that analysis is, 18 they say, what is the average life of the fuel that 19 would be put into storage?
| |
| 20And there, they talk about the 40 years 21plus 20 years and you come to a midpoint of 30. That 22 is the one time that a 60-year analysis is discussed.
| |
| 23 But it's very simple to go from that to saying, okay, 24well, what is the 80-year impact? It's a simply 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 48 calculation.
| |
| 1 And one thing that's very important about 2 the use of the GEIS is that the GEIS can be set aside 3 any time there is new and significant information that 4 would cause you to say, the GEIS determinations don't 5 apply in this instance.
| |
| 6 But in order to raise that challenge, they 7 would have to file a petition for waiver and they 8 would have to have the Commission grant the waiver.
| |
| 9 And that's clear in several decisions that 10 have come down, starting with the initial Turkey Point 11 license renewal decision in 2001, going through 12 Pilgrim Vermont Yankee and then, more recently, the 13 Limerick decision.
| |
| 14 They all make it clear that, yes, you can 15 challenge the GEIS, if you first file a petition for 16waiver and make a prima facie showing to the Board 17reasons why the GEIS should be set aside. And that 18 can then be sent up to the Commission for their 19 determination.
| |
| 20And that hasn't happened here. Ms. Curran 21 indicated that they would like to go forward with 22 their contentions without having to file a petition 23 for waiver.
| |
| 24But why? It would be very simple for them 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 49 to take pen to paper and say, here's why specific 1 aspects of the GEIS do not apply or should not be 2 applied in this proceeding and here's why you should 3 find special circumstances --
| |
| 4 JUDGE HAWKENS: Of course, you --
| |
| 5 MR. TURK: -- and allow us to --
| |
| 6 JUDGE HAWKENS: -- understand why they 7 prefer not to go that route?
| |
| 8 MR. TURK: I don't.
| |
| 9 JUDGE HAWKENS: It's a very high hurdle for 10 them to overcome.
| |
| 11 MR. TURK: Well, unfortunately, it's an 12 even higher --
| |
| 13 JUDGE HAWKENS: But that's the purpose of 14 the Category 1 to promote efficiency in the EIS 15 process.16MR. TURK: That's right. And that same 17 efficiency would apply for subsequent license renewal.
| |
| 18 We're sitting here look at the first SLR application 19 to cross the doorstep of the NRC.
| |
| 20 We have another one that's already been 21 received and there will be an oral argument in that 22one. I think it's Peach Bottom. That will be coming 23 up next, and we're expecting several other SLR 24 applications to come in this year.
| |
| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 50So, the same thing will happen on each 1proceeding. Someone will say, I don't need to go with 2 a petition for waiver, I'm just going to challenge all 3 the GEIS findings.
| |
| 4 Well, that would lead to tremendous 5 inefficiency if the staff and the applicants and the 6 Boards would have to study each basis for each of the 7 generic determinations in the GEIS.
| |
| 8 That's already been resolved through 9notice and comment rulemaking. There's no need to 10 subject that to hearing procedures in order to have a 11determination again on the adequacy of the GEIS 12 determination.
| |
| 13 JUDGE HAWKENS: Okay.
| |
| 14 MR. TURK: Essentially, the interveners, 15 the Petitioners are focusing on what the applicant's 16 responsibility should be.
| |
| 17 And they're saying the applicant cannot 18 rely on the GEIS, they have to do a specific analysis 19 of each issue. But the staff will be relying on the 20 GEIS, we are required to do that by regulation, as is 21 the Board and the Commission.
| |
| 22 So, what would be the point of having the 23 applicant come in with its own site-specific analysis 24 of all of these generic determinations if we're not 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 51 even going to consider that beyond looking to see, is 1 there anything new and significant here beyond what's 2 already in the GEIS?
| |
| 3 And that's what the Petitioners are 4 required to do, is to show, is there something new and 5 significant here that would cause us to say the GEIS 6 should not apply, you need to do something more in 7 this case? And they haven't done that.
| |
| 8 JUDGE ABREU: Moving back to the regulation 9 itself, in a situation like this, where we have a 10 regulation that was written and promulgated through 11 notice and comment, and then, the world moved forward 12 around it, so to speak, we went from thinking about 13 initial to now, initial and subsequent, yet the 14 regulation never got updated.
| |
| 15 Can you give me -- can you find any 16examples of case law that deal with that type of 17statute or regulation problem? Many of the cases 18 cited in the applicant's and the staff's briefs dealt 19 with issues of, like, ambiguity, which is a different 20 situation than we have here.
| |
| 21 I haven't heard anyone claim that this is 22an ambiguous statement. It may be -- the situation 23 may become awkward, but -- so, do you have any 24examples of cases where you have seen this type of 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 52 situation?
| |
| 1 MR. TURK: I don't, your honor.
| |
| 2 JUDGE ABREU: Okay.
| |
| 3 MR. TURK: But I would note, Ms. Curran 4spoke a bit about the plain language of the rule. The 5 rule is very clear, it's very explicit that initial 6 license renewal applicants must follow the GEIS and 7 must address certain issues.
| |
| 8 The rule is silent with respect to 9subsequent license renewal. That's where you might 10 say there's some ambiguity, because subsequent license 11 renewal is not explicitly addressed.
| |
| 12I would not throw the rule out, because 13 it's clear what an initial license renewal applicant 14 must do.15 JUDGE ABREU: So, you, but you would still 16 want it to say, rather than an initial -- and sort of, 17 you're saying that it also could say, and subsequent 18--19 MR. TURK: Yes.
| |
| 20 JUDGE ABREU: -- it's just not stated?
| |
| 21MR. TURK: Yes. And we read the rule to 22apply. What would happen if you did not have 23 subsequent license renewal follow the same rule?
| |
| 24 All you would have, and this is suggested 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 53 by SACE's petition, they say, what applies is 1 51.53(c)(2), which is the regulation immediately 2 before (c)(3).
| |
| 3 JUDGE ABREU: Right.
| |
| 4 MR. TURK: (c)(2) is very general, it says 5 a license renewal applicant should submit information 6 concerning the proposed action, any refurbishment, and 7 any impacts.
| |
| 8 It doesn't tell them specifically what 9impacts they need to address. It doesn't tell them 10that they have to submit new and significant 11information to update the ER. It doesn't say that 12 they have to address SAMAs or not address SAMAs.
| |
| 13 JUDGE ABREU: But if we add the words and 14 subsequent, we're, in a sense, negating what was 15written, which says, an initial. It removes --
| |
| 16because you're saying, you would just as well -- we 17 talked earlier, you said you could rewrite it to say, 18 a renewed license.
| |
| 19 MR. TURK: I would negate what it says, I'm 20not suggesting that you do. I'm saying that it's very 21 clear that it addresses initial and because the rules 22 apply in substance, regardless of which period of time 23is being sought for the renewal, there is no reason 24 why it should not also apply to subsequent license 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 54 renewal.1 JUDGE ABREU: Is there any reason it 2 shouldn't have been changed by notice and comment to 3 say that?4 MR. TURK: It could have been, it wasn't.
| |
| 5 JUDGE HAWKENS: And what is the regulatory 6 basis -- I understand we have new regs, there is 7 regulatory history, which could support an argument 8 that it does continue to apply to subsequent.
| |
| 9 But let's assume that 51.53(c)(3) imposed 10 an additional burden on a licensee, rather than 11 facilitating his ability to prepare the ER, and let's 12 say that it says, current language, it applies to --
| |
| 13 this process applies to licensees seeking an initial.
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| 14 And then, the NRC told licensees seeking 15 subsequent, well, this also applies to you, even 16 though it's an additional burden.
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| 17 If they came back and said, wait, what's 18 the regulatory basis for making us do that, what would 19 you say is the regulatory basis for you expanding the 20 plain language of 51.53(c)(3) to apply to subsequent 21 licensee reviews?
| |
| 22 MR. TURK: I would point to the regulatory 23history. I would note that the Regulatory Analysis 24 for the 2013 rule specifically talks about subsequent 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 55 license renewal, it mentions how many subsequent 1 license renewal applications are expected.
| |
| 2And that was part of the thinking that 3 underlies the revisions that were made to the rules 4 and to the GEIS in 2013.
| |
| 5JUDGE HAWKENS: Okay. Anything else, other 6 than that?
| |
| 7 MR. TURK: Other regulatory history?
| |
| 8 JUDGE HAWKENS: No. Well, any -- is that 9the best answer to the question? That's the strongest 10 regulatory-based argument in favor of supporting it?
| |
| 11 MR. TURK: As I sit here, your honor, 12 that's the strongest --
| |
| 13 JUDGE HAWKENS: Okay.
| |
| 14 MR. TURK: -- point I can make about the 15 regulatory history.
| |
| 16 JUDGE ABREU: One thing we hadn't talked 17 about, we mentioned in the topics we submitted to you, 18 to all of you, is that, in that SECY memo 14-0016 --
| |
| 19 MR. TURK: Yes?
| |
| 20 JUDGE ABREU: -- there is a statement that 21 basically says, Part 51 is fine.
| |
| 22 MR. TURK: Yes.
| |
| 23 JUDGE ABREU: So, if Part 51 is fine, with 24 the term an initial renewed license, why would that 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 56 not be fine?
| |
| 1 MR. TURK: I think that shows, as the staff 2 was reading the rule, they saw nothing in the rule 3 that would not apply to subsequent license renewal.
| |
| 4 I know that --
| |
| 5 JUDGE ABREU: So, it's back to --
| |
| 6MR. TURK: -- that word was there, but 7 apparently, that didn't trigger any concern that, oh, 8 we would have to do something with the wording.
| |
| 9 JUDGE ABREU: So, it's back to the, oops, 10 I've read it so many times, I'm kind of not really 11 seeing all the -- I'm thinking about other things and 12 that just didn't occur to me, that we needed to fix 13 it?14 MR. TURK: One of your honor's questions 15 had to do with, what you, I believe, stated was an 16 implicit endorsement of the words initial license 17 renewal applicant.
| |
| 18 And I don't see that as an endorsement at 19 all, I think it simply said that we believe the rules 20 for initial license renewal apply to subsequent 21 license renewal.
| |
| 22 JUDGE ABREU: I think it may come from the 23 idea that, in some of the briefs, I believe it was 24 indicated that, well, by the SECY memo 14-0016, the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 57 Commission approved this concept that we're doing this 1 streamlined system for subsequent renewal, just like 2 for initial.
| |
| 3 MR. TURK: Yes.
| |
| 4 JUDGE ABREU: So, that means they're 5blessing the whole thing. But in that memo, the staff 6 said to SECY, 51 is fine.
| |
| 7 So, that in some way implies that the 8 Commission is saying 51 is fine, well, 51 is fine, 9written as initial renewed license. But again, it may 10 be, like we talked about, that it just wasn't 11 conscious that we were talking -- that that one 12 sentence said initial renewed.
| |
| 13 MR. TURK: Perhaps the word initial was not 14 in the forefront of their thinking. But --
| |
| 15 JUDGE ABREU: Well, the Commission never 16 knew it was there, probably, because staff said 17 everything's fine, so one might guess that maybe they 18 never looked at 51, because --
| |
| 19 MR. TURK: That's possible.
| |
| 20JUDGE ABREU: -- why look at the part 21 that's not under argument?
| |
| 22MR. TURK: That's possible. And the 23 reverse of that is, well, if the staff was not 24 thinking that subsequent license renewal should follow 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 58 the same rules as initial, then what were they relying 1on? Just 51.53(c)(2), which is so general and has no 2 specific instructions for license renewal applicants?
| |
| 3 And why would they want a license renewal 4 applicant to come in with a full-blown site-specific 5 analysis, when two or three months after getting the 6 ER, or six months afterwards, the staff would issue 7 something that relies on the GEIS?
| |
| 8 What's the point, then, of having the 9 license renewal applicant go through this whole 10 process of analyzing something that will be tossed 11 into the bin of history, to a wastebasket?
| |
| 12 JUDGE HAWKENS: Thank you, Mr. Turk. I'm 13 afraid you've gone over your ten minutes.
| |
| 14 (Laughter.)
| |
| 15 MR. TURK: Thank you.
| |
| 16 JUDGE HAWKENS: But we will not take away 17 from FPL's ten minutes.
| |
| 18MR. O'NEILL: Thank you, your honor. I 19 think we'd like to reserve a couple minutes for 20 possible rebuttal.
| |
| 21 JUDGE HAWKENS: No, we won't be giving --
| |
| 22 MR. O'NEILL: Okay.
| |
| 23JUDGE HAWKENS: -- you rebuttal. Ms.
| |
| 24 Curran will be getting her rebuttal, but --
| |
| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 59 MR. O'NEILL: Okay, then I'll use my ten 1minutes. I think you know from our briefs, we are 2 fundamentally aligned with the staff's position on 3 this particular issue, that we ultimately believe 4 51.53(c)(3) Table B-1 applies to subsequent license 5 renewal.6 In that regard, I'd just like to kind of 7amplify on a few points. Ultimately, the Petitioner's 8 argument here hinges on the application of the plain 9 meaning rule, or plain language rule.
| |
| 10 And we think, in this case, focusing so 11 myopically on the word initial does in fact trigger 12 that well known exception, that we end up with an 13 unintended, if not absurd, result here, in the sense 14that it's very clear that, from the administrative 15 history and from the case law, that really the 16 overriding purpose of the GEIS is to facilitate 17 efficiency and focus in the NRC staff's reviews, by 18 bifurcating the site-specific and generic issues.
| |
| 19 And by reading the regulation in this way 20 and not applying 51.53(c)(3) to SLRs, you lose that, 21that goal of efficiency. And it has, over the years, 22proven to be a very efficient process. Most plants 23 have obtained their first or initial license renewals 24 and, on the whole, done so in a very efficient way.
| |
| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 60 And this principle is something that was 1 echoed by the First Circuit in Massachusetts versus 2 NRC, which was a license renewal case as well.
| |
| 3 One thing I do want to push back on a 4 little bit is the notion that the 2013 GEIS was only 5a limited update. I think it's very clear, and we've 6 explained this in our brief, that the staff revised 7 the GEIS to update and reevaluate the potential 8 environmental impacts arising from renewal of an 9 operating license for an additional 20 years.
| |
| 10 And of course, that phrase is very key, 11the GEIS consistently refers to an additional 20 12years. Not the initial 20 years, but an additional or 13 an additional 20-year operating period. So, I think 14 that's a key point.
| |
| 15 The staff actually considered the need to 16 modify, add to, consolidate, or delete any of the 17 environmental issues evaluated in the 1996 GEIS, drew 18 from Lessons Learned and knowledge gained from 19 previous license environmental reviews, along with 20 public comments.
| |
| 21 And then, the GEIS also states that new 22 research findings and other information were 23 considered when the significance of impacts associated 24 with license renewal was being evaluated, and that the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 61 staff subjected those issues to detailed consideration 1 in this GEIS.
| |
| 2 So, we think it was, in fact, a very 3 robust review, more than a limited update to the 4 original GEIS.
| |
| 5 The Petitioners, in addition to drawing 6 heavily on the word initial in the regulation, also 7 point to the 1991 proposed rule statement of 8 considerations.
| |
| 9 And that preamble or regulatory history 10 did acknowledge the possibility of multiple renewals.
| |
| 11 And it did say, however, the Part 51 amendments apply 12 to one renewal of an initial license for up to 20 13 years beyond the expiration of the initial license.
| |
| 14 And of course, they seize upon that 15particular statement. But we don't view that 16 particular language as really being even relevant 17 anymore or dispositive, it was issued over 27 years 18 ago, it was a proposed rule.
| |
| 19 And, significantly, that same phrase did 20not appear in the final 1996 SOC. And our view is, 21 there was a fundamental shift in the agency's 22 thinking.23 And I think it was tied largely to the 24 decision to incorporate the ten-year cycle update of 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 62the GEIS. And we think they recognized the 1 possibility that there could be additional renewals or 2subsequent renewals. And of course, there was the 3 need just to keep the GEIS, the technical information 4 fresh.5 But the bottom line there is, that that 6 statement that Petitioners rely on was excluded from 7 the final 1996 SOC.
| |
| 8 And I think as the staff pointed out in 9 its brief on this issue, the NRC has not promulgated 10 any other requirements that specifically apply to the 11 ER submitted for a subsequent license renewal 12 application.
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| 13 And I think the absence of those 14 additional requirements is not unintended and is 15 significant.
| |
| 16 Again, back to the issue of the plain 17 meaning rule, we pointed out in our brief that there 18 is a well-established body of case law saying that 19 there is an exception to that, that the Commission 20 itself has noted in Millstone, CLI-0110, that in 21 construing a regulation's meaning, it is necessary to 22 examine the agency's entire regulatory scheme.
| |
| 23 So, we think that's a very critical point 24 and by doing so, we can resolve this issue in a 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 63 reasonable way.
| |
| 1 JUDGE ABREU: Do you think when they say, 2 construing a meaning, they are referring to something 3 where there is some ambiguity in the word or words?
| |
| 4 MR. O'NEILL: I would agree with that, to 5an extent, yes. And I think I agree with the staff 6 that there is some ambiguity in 51.53(c)(3).
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| 7 JUDGE ABREU: Do you think at the time it 8was written, it was ambiguous? Or is it only 9ambiguous because the world changed around it? In 10 your term, ambiguous?
| |
| 11 MR. O'NEILL: I think it's a combination of 12 both, because in light of what the Commission 13 ultimately did in the 1996 final SOC, in which they 14 omitted that reference to only applying to the initial 15 renewal term, that maybe an oversight did occur then.
| |
| 16 That there is reason to question why that word initial 17 was retained as early as 1996.
| |
| 18 But certainly, I can't disagree with you 19 that subsequent events have definitely amplified that 20 confusion or ambiguity, especially when you look at 21 the very recent administrative histories related to 22 the 2013 Part 51 rulemaking and the 2014 SECY paper, 23 which the Commission -- the staff were talking about 24 preparations for subsequent license renewal.
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 64 We do agree, or FPL agrees with the staff 1 that it would yield an unusual result here to require 2 the applicant to do full-blown site-specific reviews 3 on all the Category 1 issues, when 51.71 and 51.95(c) 4 of the regulations direct the staff to rely on the 5 GEIS analyses and the impact findings as codified in 6 Table B-1.
| |
| 7 JUDGE HAWKENS: Counsel, do you have any 8 idea, if we accepted Petitioner's argument, of cost 9and time that an applicant would have to invest in 10 satisfying the creating an ER?
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| 11 MR. O'NEILL: I think it would greatly 12expand the scope of the ER. If you look at the ER as 13 it is now written, it has tables --
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| 14 JUDGE HAWKENS: Can you just approximately 15quantify it? Would it take twice the time, twice the 16 resources?
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| 17 MR. O'NEILL: That's difficult for me to 18 quantify, as counsel, as opposed to a licensing 19 manager or somebody who's directly involved.
| |
| 20 But I guess one thing we should be mindful 21 of the fact is that SACE has only challenged selected 22Category 1 issues, in our view. They actually haven't 23 alleged more broadly that the ER needs to be rewritten 24 to include site-specific analyses for every Category 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 65 1 issue across the board.
| |
| 1 JUDGE ABREU: And does that --
| |
| 2 MR. O'NEILL: So, that would --
| |
| 3 JUDGE ABREU: And your estimate could also 4 consider, as Ms. Curran said, you can reference the 5 GEIS and just --
| |
| 6 MR. O'NEILL: Yes.
| |
| 7 JUDGE ABREU: -- have your justification 8 say, hey, this part, that fits us, we're good.
| |
| 9 MR. O'NEILL: Yes. That --
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| 10 JUDGE ABREU: That just changes the pathway 11 for challenge, under her scheme.
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| 12 MR. O'NEILL: That's true, but in our view, 13 that does kind of flip-flop the burden, if you will.
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| 14 I mean, we think there were ample procedural 15 mechanisms available to the Petitioners, they were 16 well aware of the availability of the waiver petition.
| |
| 17And again, we recognize that is a high 18 bar, but that's by design. But certainly, if they 19 believe that significant new information has evolved 20 since or emerged since 2013, they could have used that 21 as a justification for their waiver petition, for the 22 argument on special circumstances.
| |
| 23 So, I think the burden should remain on 24 the Petitioners to say why we need to depart from the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 66 conclusions in the GEIS.
| |
| 1 And we did, in the Environmental Report, 2 evaluate all Category 1 issues to determine that the 3 Category 1 findings, as codified in Part 51, would 4still apply. We did evaluate new and significant 5 information and the staff, of course, will do that 6 independently on its own.
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| 7 JUDGE KENNEDY: Did that include 8 considering 60-year operating history in your 9 assessment of the applicability of Table B-1 Category 10 1 issues?11MR. O'NEILL: Yes. My understanding would 12 be, yes, your honor.
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| 13 JUDGE KENNEDY: Okay, thank you.
| |
| 14 MR. O'NEILL: I know I'm low on time here, 15 but again, we've talked about SECY-14-0016, and again, 16 we think that's indicative that the staff and the 17 Commission -- okay. Can I have another minute?
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| 18 JUDGE HAWKENS: One more minute.
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| 19MR. O'NEILL: Okay. And I'm just going to 20jump to another point. I know the Petitioners focused 21 on the 2009 scoping summary report.
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| 22And this is something we have in the 23 brief, but we have reviewed that document and there 24 are numerous statements that indicate that there would 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 67 be no limitations on the number of times a license may 1 be renewed.
| |
| 2 The NRC's current plan is to apply the 3 revised GEIS to all license renewal applications 4 submitted after the date of the record decision for 5 the revised GEIS.
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| 6 And a site-specific Environmental Impact 7 Statement that analyzes the environmental impacts of 8 a license renewal at the particular site is prepared 9 each and every time a licensee submits an application 10 for license renewal.
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| 11 So, we think there are statements actually 12 in that 2009 scoping summary report that support our 13 position.14 JUDGE HAWKENS: All right.
| |
| 15 MR. O'NEILL: Thank you, your honors.
| |
| 16 JUDGE HAWKENS: Thank you, Counsel.
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| 17 MS. CURRAN: Judge Hawkens, I just want to 18-- I want to split my reply time with Mr. Rumelt.
| |
| 19 He's going to take five minutes and I'll take five.
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| 20 JUDGE HAWKENS: All right, thank you.
| |
| 21 MR. RUMELT: Thank you, your honors. The 22 issue I wanted to address up front is this concept of 23 really wanting an efficient process.
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| 24 When we look back to the 1996 rulemaking, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 68 we got a 1991 proposed rule that says very clearly, 1initial means initial. And that is the best 2 indication, other than the plain language, of what the 3 Commission intended.
| |
| 4 In addition, what we haven't addressed, at 5 all, is the fact that there's another category of 6 licensees that will eventually, potentially, seek 7license renewal. And that's the post-1995 licensees.
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| 8 If you look at 51.53(c)(3), it says very 9 specifically, only initial and also, only those 10 licensees who had their license as of 1995.
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| 11 So, to the extent that there's some 12 overall extreme desire to have an efficient process, 13 it's an odd result to have two categories of licensees 14 that --15 JUDGE KENNEDY: Doesn't it also state 16 construction permits?
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| 17 MR. RUMELT: I'm sorry?
| |
| 18 JUDGE KENNEDY: I think I'm dead.
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| 19 (Laughter.)
| |
| 20 JUDGE KENNEDY: Not -- in addition to 21 operating license, doesn't it also say construction 22permit? And I guess I'm wondering which potential 23plants we could be talking about here, if any? I 24 think I struggled with that language too.
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 69MR. RUMELT: Right. My understanding is 1 that there is at least one plant that has received a 2 COL, and that's Watts Bar.
| |
| 3 JUDGE KENNEDY: But didn't they have a 4 construction permit before 1995?
| |
| 5 MR. RUMELT: That, I'm not entirely certain 6 of.7 JUDGE KENNEDY: It may be. It's more my 8 curiosity, because I struggled with that language too.
| |
| 9 MR. RUMELT: Well, one of -- I want to go 10 back to the original point, though, which is that, if 11 there's an overall purpose here of efficiency, there 12 is clearly, again, two categories of license renewal 13 applicants that don't benefit from the Category 1, 14 Category 2 generic treatment, right?
| |
| 15 There's, again, looking at the plain 16 language, initial license applicants get to, or 17renewal applicants get to benefit from it. And then, 18 the pre-1995 initial license applicants.
| |
| 19 Now, I think, if FPL was going to 20 construct their Units 6 and 7, that would be another 21example of a licensee that received their license 22after 1995. And if they operate for 40 years and 23 sought a 20-year extension, they would not be able to 24 take advantage of the generic treatment here.
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 70 JUDGE HAWKENS: That's if we accepted your 1 argument?2 MR. RUMELT: If you accept my argument, 3 yes. And by the plain language of the regulation.
| |
| 4 And of course, as I think we discussed, as 5 black letter law, if you adopt a regulation, through 6 notice and comment rulemaking, the only way to change 7 that regulation is through notice and comment 8 rulemaking, not through after the fact policy 9 statements that we've been talking about here.
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| 10 JUDGE KENNEDY: Since you are speaking, can 11 I address one specific question to you? And this is 12 different than what you were just addressing, but I'm 13 curious.14 If 51.53(c)(3), if the plain language 15 holds, what happens to the requirements that are 16subsequent to that, (ii)(A) through (B)? Are they in 17 play here?
| |
| 18 MR. RUMELT: Well, what is in play is 19 (c)(1) and (2). And if we look at (c)(2), it refers 20 to 51.45. In 51.45 --
| |
| 21 JUDGE KENNEDY: But didn't Friends of the 22 Earth and NRDC table a number of contentions written 23 against requirements that are embedded in (A) through 24 (B)?25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 71MR. RUMELT: Those are, if those apply. If 1 the Board determines that 51.53(c)(3) applies, then we 2 couch the arguments in those terms.
| |
| 3JUDGE KENNEDY: Okay. And if they don't 4 apply, you would go to?
| |
| 5MR. RUMELT: 51.53(c)(1) and (2). And 6 again --7 JUDGE KENNEDY: Which doesn't provide the 8 specificity that you're pointing to in your 9 contentions.
| |
| 10 MR. RUMELT: But it does reference 51.45, 11 which has a number of requirements that apply to 12 Environmental Reports by applicants.
| |
| 13 This is 51.45(b), Environmental Reports 14 shall contain a description of the proposed action, a 15 statement of purpose, a description of the environment 16affected, and discuss the following, and there's a 17 list of five items that are required.
| |
| 18 JUDGE KENNEDY: All right, thank you.
| |
| 19 MS. CURRAN: I have three points I'd like 20 to make. Both Counsel for the staff and FP&L talked 21 about efficiency being the most important value here.
| |
| 22 And it is true that Table B-1 has made license 23 renewal, initial license renewal more efficient from 24 the NRC's point of view.
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 72But efficiency does not trump NEPA. NEPA 1 is the basis for Table B-1, an Environmental Impact 2 Statement that was written, whose findings are 3 codified in Table B-1.
| |
| 4 If the Environmental Impact Statement 5 doesn't have factual findings that apply to the 6 circumstances at issue, then there's no efficiency 7 that can justify applying that rule, where there is 8 not an underlying EIS that supports it.
| |
| 9 So, the question that Judge Abreu asked, 10 couldn't we just fix the rule by republishing it?, the 11 answer to that is, you do need to republish the rule, 12 but in order to make the Table B-1 findings binding in 13 the context of subsequent license renewal, the NRC 14 would also have to revise and republish the GEIS for 15 comment, making it clear that the temporal scope of 16 the GEIS had changed.
| |
| 17 JUDGE KENNEDY: But isn't the temporal 18 scope 20 years? Isn't that perfectly --
| |
| 19 MS. CURRAN: It's 20 --
| |
| 20 JUDGE KENNEDY: -- clear?
| |
| 21 MS. CURRAN: -- years past the initial 22license renewal term. And, Judge Kennedy, I just 23 wanted to direct you to the pages of our brief, the 24 brief that we filed in response to the sur-reply.
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 73 If you look at Pages 7 to 9 of our brief, 1 it cites specific places in the 2013 revised GEIS 2 where the NRC -- it doesn't use the word initial, but 3 it talks about 40 plus 20 being the basis for that 4 GEIS.5 So, and that's -- those are not the only 6 places where the -- there isn't one place in that GEIS 7-- or there is one place where they talk about 100 8 years, but that has to do with Table S-3 and it's kind 9of an idiosyncratic thing. For everything else, it's 10 40 plus 20. That's what --
| |
| 11 JUDGE KENNEDY: So, you're not --
| |
| 12 MS. CURRAN: -- they were doing.
| |
| 13 JUDGE KENNEDY: -- buying my 14 decommissioning example, which has been my favorite?
| |
| 15 MS. CURRAN: I think the decommissioning 16 example is also idiosyncratic and it's not consistent 17 with the general approach.
| |
| 18 JUDGE KENNEDY: You think it's an accident?
| |
| 19 I mean, is it --
| |
| 20 MS. CURRAN: Well, no, it makes sense for 21 decommissioning that you look -- decommissioning is 22 the very last thing that happens, so of course you're 23going to look at the whole 60 years, because you're 24 waiting until the very end to do it.
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 74 JUDGE KENNEDY: I mean, I believe I took --
| |
| 1 your time frame caught my interest quite a bit and I 2spent a lot of time looking at your pleading and 3 looking at the guidance, looking for the methodology 4 and the completeness.
| |
| 5 And so, I was looking for things like, 6 what would impact the GEIS period, based on operating 7history? Whether it's 40, 60, 80, 100? And in cases 8 where it appeared to me that the technical staff had 9 identified an area of interest, where operating 10 history would be applicable, they addressed it.
| |
| 11 And areas where it did not appear that 12 operating history was applicable, they didn't address 13it. So, I mean, again, I think I'm open to rereading 14 your briefing again, with that in mind and with what 15 you've said here today.
| |
| 16 MS. CURRAN: And I would also ask you to 17 bear in mind that when this GEIS was put out for 18 public comment, they were telling people, we're 19 looking at 40 plus 20.
| |
| 20 They didn't tell members of the public, 21 we're looking at an indefinite period of license 22 renewal, because people would have wanted to comment 23 on that. And --
| |
| 24 JUDGE KENNEDY: But isn't that part of the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 75confusion? I mean, when I read 40 plus 20, I 1 sometimes translate that into the operating history.
| |
| 2In other words, the GEIS period is an 3 extra 20 years on top of something, and in some cases, 4they clearly state 40 plus 20. And then, they look at 5 the GEIS period or the renewal period.
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| 6 So, I mean, I'm going to look at it again, 7 you've got my attention again.
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| 8MS. CURRAN: Okay. And when you look at it 9 again, look and see if you find anything that says 60 10 plus 20, and you're not going to find that.
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| 11 JUDGE KENNEDY: Other than decommissioning?
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| 12 MS. CURRAN: You're not going to find --
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| 13 JUDGE KENNEDY: Well, you're going to find 14--15 MS. CURRAN: -- 60 plus 20.
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| 16 JUDGE KENNEDY: You're going to find 60.
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| 17 And --18 MS. CURRAN: You're going to find --
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| 19 JUDGE KENNEDY: -- the GEIS period --
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| 20 MS. CURRAN: -- 60, but you're not going to 21 find 60 plus 20.
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| 22 JUDGE KENNEDY: No, but isn't -- I thought 23 we just agreed that the GEIS period is an addition 20 24years, on top of something. I thought we agreed on 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 76 that.1 MS. CURRAN: Well, it's -- you got to total 2it out. For an EIS, you've got to look at the total.
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| 3 It's not -- an EIS doesn't sort of go on indefinitely, 4it's got a limit. Okay. Can I -- I would like to --
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| 5 JUDGE KENNEDY: Yes.
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| 6 MS. CURRAN: -- say one more thing.
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| 7 There's something in the NRC staff brief that I 8 thought was a little misleading, where they said the 9 Commissioners agreed with the staff's recommendation 10 that a new rulemaking was not needed to update the 11 GEIS or to update the regulations.
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| 12 I just want to point out that, what the 13 Commissioners agreed to in SRM SECY14-0016 was, they 14 agreed there was no need for a new Part 54 rulemaking 15 on safety issues.
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| 16 If you look at that SRM, the only subject 17of the SRM is the question of whether a new Part 54 18 Atomic Energy Act-based rulemaking is needed.
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| 19And as we know, from the Turkey Point 20 license renewal decision, I'm forgetting the CLI 21 number, but the Commissioners clearly said there, the 22 Atomic Energy Act and NEPA are two different statutes 23 and you cannot get them mixed up.
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| 24 And so, it's really important not to mix 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 77 up the Atomic Energy Act and NEPA in looking at that 1 SRM SECY-14-0016. Thank you.
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| 2 JUDGE ABREU: Mr. Turk, the topic was 3 brought up about the pre-1995 versus post-1995 issue 4 in 51.53(c)(3).
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| 5 Can you shed any light on why that date is 6 in there and why there is that -- so, 51.53(c)(3) says 7 it applies to an initial renewed license for things 8 pre-1995 and then lists, like, construction permits 9 and all these things.
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| 10So, it would not apply to post-1995 new 11construction. Can you shed any light onto why that 12 date was picked and the significance thereof?
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| 13 MR. TURK: Unfortunately, as I sit here, I 14 cannot, your honor. But I --
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| 15 JUDGE ABREU: Well, if --
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| 16 MR. TURK: -- would note a few things.
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| 17 JUDGE ABREU: If it comes up later in the 18 day, you can fill us in.
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| 19MR. TURK: Okay. If I may have a moment to 20 call your attention to two things in response to the 21 rebuttal we just heard?
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| 22 JUDGE HAWKENS: You may, then we'll give 23 Ms. Curran to have the opportunity to have the final 24 word, if she would like it.
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 78MR. TURK: Okay. Thank you, your honor.
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| 1 First, the SECY paper, SECY-14-0016, does not limit 2 itself to the need for rulemaking on Part 54.
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| 3 It indicates in one distinct paragraph 4 that the staff has reviewed the environmental 5regulations and determined that there's no need for 6any revisions. So, it does address the environmental 7 side and says, we find nothing that needs to be done.
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| 8 And second, in the 2013 GEIS, unlike the 9 statement by Ms. Curran, it does not describe 40 years 10 plus 20.11 The 2013 GEIS is different from the 1996 12 GEIS in that it focuses upon a 20-year increment of a 13renewed license. Any 20-year renewal, not 20 years 14following 40. And in that regard, the 2013 GEIS is 15 different from the 1996 GEIS that she was focused on.
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| 16 JUDGE HAWKENS: Ms. Curran, we'll give you 17 one minute of response time, if you'd like to answer.
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| 18 MS. CURRAN: It is correct that SECY 19 0016 did discuss safety and environmental issues, 20although the primary focus was safety. But SRM SECY-21 14-0016 refers only to the safety rulemaking.
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| 22 So, when you have a question, what should 23 we do with this issue?, if we -- when we decide what 24 to do next, and one of the answers is, well the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 79 Commission has not ruled on the question of whether to 1 have a rulemaking on the NEPA issues, they did address 2 it in the safety context, but not in the NEPA context.
| |
| 3 And the other thing is, Mr. Turk says the 4 2013 GEIS is fundamentally different from the 1996 5 GEIS.6 We fundamentally disagree, and this is 7 addressed in detail in our brief and we give you 8 citations to where the GEIS repeatedly talks about 40 9plus 20. And we just went over that. You cannot find 10 any reference to subsequent license renewal and it's 11 not open-ended. Thank you.
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| 12JUDGE HAWKENS: Thank you. Let's take a 13brief recess. My watch says it's about seven minutes 14til, does Counsel need more than 12 minutes? Fifteen 15minutes, would that satisfy you? All right, let's 16 reconvene at ten minutes after 10:00. Thank you.
| |
| 17 (Whereupon, the above-entitled matter went 18 off the record at 9:52 a.m. and resumed at 10:12 a.m.)
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| 19JUDGE HAWKINS: Before launching into a 20 contention of admissibility for SACE's contention, we 21 had a question for Ms. Curran, again on 5153C3.
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| 22 Assuming that we did not accept your argument - no, 23 let me go back on that.
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| 24 Assuming we accepted your argument that 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 80 5153 applies to the creation of the ER, but that it 1 does not apply to the staff's creation of the 2 supplemental EIS, how does that affect the contention 3 if we admit it and then it migrates upon publication 4 of the supplemental EIS?
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| 5 MS. CURRAN: Well -
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| 6 JUDGE HAWKINS: I would - the staff says 7 it has to be rejected as outside the scope, or 8 alternatively, rejected as moved, and I was just 9 wondering what your response to those arguments would 10 be?11MS. CURRAN: Well, then we would file a no 12 contention saying that the draft EIS is - we waived it 13 in a no contention, I think, based on the draft EIS 14 that - and I'm just thinking off the top of my head 15 here.16JUDGE HAWKINS: Right, but I was - if the 17 decision was that your argument did not extend to the 18 staff's creation of the supplemental EIS -
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| 19 MS. CURRAN: Well, we -
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| 20JUDGE HAWKINS: - but it did apply to the 21 applicant's creation of the ER -
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| 22MS. CURRAN: Well, we'd probably file the 23 contention anyway and then we'd preserve it for appeal 24 because we think ultimately this issue is going to end 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 81 up before the Commissioners because as Mr. Turk was 1 saying, there's multiple SOR applications either, 2 there's one, another one filed and there's more on the 3 way, and it's clearly an issue that is, has broad 4 implications.
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| 5So whatever we did, what we would be 6 preserving are claims so that we could bring them to 7 the Commission.
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| 8 JUDGE HAWKINS: All right.
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| 9 MS. CURRAN: Thanks.
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| 10JUDGE HAWKINS: Thank you. Let's now 11proceed to your arguments. You have an hour and 10 12minutes. How much, if any, would you like to preserve 13 for rebuttal?
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| 14MS. CURRAN: I'd like to take 45 for 15 initial and 25 for rebuttal. I'd like to talk about 16four issues. I'll tell you what they are up front.
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| 17 One is the presumption that FP&L and the staff argue 18 that they will comply with their permits, the NPDES 19 permit and the consent order, the consent agreement 20 that these issues aren't admissible because they're 21 covered by presumption.
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| 22 Second, the question that you raised about 23 the baseline for impacts on crocodiles, third, I'd 24 like to just clarify what we are intended by raising 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 82 the issue of tritium contamination, and then finally, 1 the question of whether FP&L legitimately incorporated 2 by reference parts of the EIS for Turkey Point 6 and 3 7.4 And I just want to let you know that Mr.
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| 5 Porter is sitting with me and I may consult him as we 6 go along.7 JUDGE HAWKINS: Very well.
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| 8MS. CURRAN: On this issue of the 9 presumption, there's a couple of points that I would 10like to make. One is that FP&L takes the position 11 that discharges to groundwater under the cooling canal 12 system are covered by state law, and it's kind of 13 complicated because there's an NPDES permit.
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| 14 There's an industrial wastewater permit.
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| 15 My understanding is the NPDES permit was issued by the 16state as a delegate of the EPA. The industrial 17 wastewater permit was issued by the state under state 18law. They have since been combined into a single 19 NPDES permit, but they include state and federal law.
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| 20 And we know that SACE is involved in the 21 Clean Water Act lawsuit in Federal District Court 22 arguing that the NPDES permit covers discharges to 23 groundwater and that FP&L is violating its NPDES 24 permit by discharging to groundwater and impacting the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 83 drinking water supply in Biscayne Bay.
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| 1 In this case, FP&L is saying to the 2 licensing board that the federal permit applies to the 3 discharges to the CCS only, and it's as if the CCS is 4 a closed system and that it's the state, it's under 5 the state purview that discharges into the 6 groundwater, which is, of course, the subject of our 7 contention.
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| 8 We're concerned about westward flow of 9 groundwater to the drinking water supply and also 10 eastward flow towards Biscayne Bay.
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| 11 At any rate, if there is - there is a 12relationship between EPA and the NRC under a 13 Memorandum of Understanding in which only the EPA can 14 impose effluent limits on FP&L, but for purposes of 15 the federal permit, FP&L's position in this case is 16 that the federal permit only relates to discharges to 17the CCS and it's the state permit, the state has 18 purview over discharges to the groundwater, and that's 19 important.
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| 20 So what we're saying is that because these 21 are largely state issues, there's no question that 22 these are appropriate subjects for environmental 23 review.24 There's also an argument that FP&L and the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 84 staff make that FP&L can be presumed to comply with 1 its permits and with its -
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| there's a variety of 2 administrative enforcement orders, consent decrees out 3 relating to the groundwater discharges. There's the 4county's consent agreement. There's the state's 5 consent order.
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| 6 And I just want to make the point here is 7 that it is true there's a presumption that permittees 8 will comply with their permits, and that comes up a 9 lot in NRC cases where it has to do with whether the 10 licensee is going to comply with its operating 11 license.12You know, if it says, "You turn this 13 switch on at such and such a point," you can assume 14 that the licensee will do that, but we would submit to 15 you that these administrative orders which have been 16 worked out between the state and county authorities 17 and FP&L for things like pumping groundwater, moving 18 groundwater around, these are basically mitigation 19 measures that are being attempted in order to address 20 this longstanding problem that the CCS, saline water 21 from the CCS, and contaminated water from the CCS is 22 escaping into the groundwater.
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| 23 Florida is just such an interesting place 24 geologically. There is so much water here. And the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 85 approach so far has been to move water around and 1 everybody keeps trying to move it around in a 2 different way.
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| 3 Our contention is that this is the 4appropriate time for the NRC, and of course in the 5 first instance, FP&L is supposed to do the first 6 draft, to kind of get up high over the whole picture 7 and look at all of the moving parts and look at 8 whether they work.
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| 9 And we have, part of our contention says, 10"Well, these measures are ineffective," and part of it 11 says, "Some of them are usually inconsistent and 12 counterproductive." 13 And instead of each little authority 14 looking at their narrow concerns, the beauty of NEPA 15 is that NEPA doesn't have jurisdictional boundaries 16 and that the NRC can kind of get up high and look at 17 the whole thing.
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| 18 That's what we're seeking in this case is 19 a bird's-eye view of what's going wrong because it's 20clearly not going right in terms of cleaning up the 21 groundwater contamination caused by the CCS.
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| 22 So our first claim is that the impacts of 23 the CCS are inadequately considered, and that includes 24 the incremental impacts and accumulative impacts, and 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 86 then we also say that the mitigation measures that 1 have been proposed, that are being implemented now, in 2 fact, are not adequate and they're also 3 counterproductive.
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| 4 And then finally, we have contention two 5 which seeks consideration of an alternative mechanism 6 for cooling the plant, which would be mechanical draft 7 cooling towers which would effectively eliminate the 8 problems caused by the CCS, and nothing in life is 9 perfect, but this would be a major change and a major 10 improvement in how this nuclear plant is cooled.
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| 11 And as we mentioned on our contention, the 12 alternative of mechanical draft cooling towers was 13 considered as early as the 1970s and rejected, but 14 we're saying it's time to look at it now that it's 15 clear the CCS is not working and is actually causing 16 significant environmental harm, that now is the 17 appropriate time to consider this alternative.
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| 18 We have complied with all of the 19requirements the NRC has. We have cited the 20 particular discussions in the environmental report.
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| 21 We have expert opinion as to why those discussions are 22inadequate. We have replied to the arguments of FP&L 23 and the staff when they disputed whether we've raised 24 a legitimate concern.
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 87 Factually, I think we've covered it, and 1 I'd be glad to answer any questions that you have 2 about the adequacy of the basis for our contentions, 3but we did a really careful job of documenting our 4 concerns and we had the advantage of having these 5 expert reports from the Clean Water Act case where 6 these experts looked at essentially the same issues 7from the standpoint of compliance with the NPDES 8 permit.9 So we have really good factual support for 10 our concerns, almost - like you usually don't get that 11 until you get to the hearing stage, but we happen to 12 have it now.
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| 13JUDGE KENNEDY: You're on a good roll 14here. Just for my benefit, in FP&L's ER in chapter 15 three, I think the paint an improving picture of the 16groundwater impacts. In your petition, could you just 17 cite me the pages in your petition where you have 18 challenged their view of the impacts to the 19 groundwater?
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| 20MS. CURRAN: Sure, if you could give me a 21 minute.22JUDGE KENNEDY: And you could do it at the 23 end.24 MS. CURRAN: Oh.
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 88 JUDGE KENNEDY: That would be fine.
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| 1 MS. CURRAN: Okay, why don't I -
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| 2JUDGE KENNEDY: I'm just curious. I just 3 want to make sure, since my reading of the GEIS 4 differs from yours, I don't want a different reading 5 of this point because this is important.
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| 6MS. CURRAN: I can tell you from memory -
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| 7 JUDGE KENNEDY: That's okay.
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| 8MS. CURRAN: - that in our hearing 9 request, we talked about how there's a place in the 10 environmental report where FP&L talks about the 11 increasing salinity of the water in the CCS, and they 12 attribute it to a variety of factors including changes 13 in the weather.
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| 14 There are all kinds of external factors 15 that don't really have to do with the CCS, and we see 16 this at various points in the environmental report 17 that when there's a problem, it's attributed to some 18external factor. Like the pollution of Biscayne Bay, 19 they say, "Well, that's a little bit to the north.
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| 20 It's not from this plant." 21 And, you know, one of the issues, I'll get 22to this now. I can get to the issue about tritium 23which is I want to make it clear that we are not 24 raising tritium contamination like we did in the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 89 Turkey Point 6 and 7 case where we're saying this goes 1 about regulatory limits.
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| 2 We're saying tritium is a good tracer for 3 contaminants from Turkey Point because the only other 4possible source of tritium would be nuclear test 5 fallout, and so this is a good indicator that the CCS 6 is communicating with Biscayne Bay to the east, and we 7 have expert opinion from qualified experts discussing 8 how or why that could be.
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| 9 So that's an example of direct effects of 10 the CCS that are not acknowledged or not adequately 11acknowledged by FP&L. FP&L doesn't think it's a 12problem to continue to operate the CCS. They want to 13 operate it for another 20 years and our concern is 14 that this is unacceptable from an environmental point 15of view because the impacts are too significant.
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| 16 We're talking about a very limited supply 17of drinking water to the west. We're talking about a 18 very pristine body of water, Biscayne Bay to the east, 19 that has special status under the Clean Water Act it's 20 so clean, that there is - it's not only unacceptable, 21 but there's no need to keep operating the CCS because 22 there is an available cost-effective alternative which 23 is to use mechanical draft cooling towers as are used 24 in the gas plants on the same site.
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 90 I wanted to talk a little bit about the 1 crocodiles because this is kind of an unusual issue 2 where before Turkey Point was licensed, there was no 3 CCS and there were no crocodiles there apparently or 4 very few, and the particular characteristics of the 5 CCS when it was first built attracted crocodiles in 6 apparently significant numbers.
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| 7 And they did so well that this was one of 8 the factors that caused the Fish and Wildlife Service 9 to take crocodiles, American crocodiles off the 10 endangered species, endangered list, and to reduce 11 their status to threatened.
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| 12 But now, as discussed in our contention, 13 in more recent years, the crocodile population seems 14 to be collapsing, and so is the seagrass on which they 15 depend, and we think that this is reasonably 16 attributable to the increase salinity in the CCS.
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| 17 You raised the question, "Well, what 18 should the baseline be?" If you look at the license 19 renewal GEIS which I think is, it's okay to take that 20 as a rule of thumb, you know, it's, "Here's how they 21did it. Here's how they did it for initial license 22renewal. Maybe this is a good rule of thumb for us." 23 They used the 40-year period of initial operation as 24 the baseline for incremental impacts of the first 20 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 91 years. 1 It seems to me that it would be reasonable 2 to use the first 60 years of operation as a baseline, 3 but that applying NEPA's rule of reason, you'd want to 4 take into account the rise in population and then the 5 decline during that period and look at what were the 6 factors that caused that.
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| 7 And then really I think what you have here 8 for license renewal, the subsequent license renewal 9 application is a question of whether the crocodiles 10 can continue to survive at all in the CCS if 11 subsequent license renewal is granted and the CCS is 12 allowed to continue to operate.
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| 13 So you'd want to compare the fact that 14 there was a thriving population at one time in the 15 past with the potential that they will be completely 16 eliminated from that area, so that's what I would 17 propose using as a baseline.
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| 18 There is also a question that was raised 19 about incorporating by reference the Turkey Point 6 20 and 7 GEIS, and this was on the question of cumulative 21 impacts.
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| 22 When I - I have to confess that when I 23 read FP&L's summary in its response to our contentions 24 of what the Turkey Point 6 and 7 GEIS says about 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 92 cumulative impacts, I didn't really think it was worth 1 looking at because they - let me just see if I can 2 find it.3 Okay, it's on page 41 and 42 of FP&L's 4 response to our petition for a hearing and their 5 response is dated August 27, and it says, "It's 6 evident from Table 7-1 that," and this is in the EIS 7 for Turkey Point 6 and 7, which exceeds 40 pages and 8 is incorporated by reference in ER Section 41.2, "that 9 the staff perform a comprehensive assessment of other 10 projects within a large 50-mile radius region, that in 11 combination with Turkey Point SLR, could have 12 cumulative effects.
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| 13"That assessment makes clear that the 14 moderate cumulative impacts to surface water quality 15 and aquatic ecosystems identified by the staff are 16 largely the result of historical land use and 17 development activities within the region of interest 18 that are unrelated to Turkey Point's site operations 19 past, present, or future." 20 So in other words, the Turkey Point 6 and 217 EIS didn't really look at the CCS. Well, why would 22they? Because they were going to use mechanical draft 23 cooling towers.
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| 24 So I just thought, well, that doesn't mean 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 93much. I'm going to focus on what they say in the 1 environmental report which we took issue with, that 2 there - you know, the tendency is to attribute any 3 problems to some external factors that don't have to 4 do with the CCS and to downplay the effects of the 5 CCS.6 So that's -
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| 7 JUDGE KENNEDY: Ms. Curran?
| |
| 8 MS. CURRAN: That's what we dispute.
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| 9JUDGE KENNEDY: I guess I want to go back 10 to Table 7-1 because I have a different sense of that 11table. It's from Turkey Point 6 and 7 and so it 12 incorporated activities at Turkey Point 3 and 4, and 13 I thought it made a point that Turkey Point 6 and 7 14will have these impacts possibly leading to even 15 moderate impacts on land use and other activities, but 16 that the Turkey Point 3 and 4 subsequent license 17 renewal would have an insignificant impact for a 20-18 year extension of the license.
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| 19 I'm trying to reconcile that view, and I 20 think we're going to get back to the FP&L view that, 21you know, it's all about the effected environment.
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| 22 It's all about Chapter 3, which is where the real meat 23 of this discussion, in my mind, occurs.
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| 24 Because they're taking us to the present 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 94 and looking at conditions on the site and its impact 1 on the environment in the present, and then looking at 2 the subsequent license renewal as an incremental 3 activity, and then having different arguments for 4 that.5 So I - it just seemed to me to be a case 6 of it looked like it was holding together, and I'm 7 understanding now that you see it quite differently 8 than I saw it.
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| 9 MS. CURRAN: I don't see that the Turkey 10 Point 6 and 7 EIS says anything specific about the 11 significant problems with the CCIS or really deals 12 with them, and it's - this is what we -
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| 13 JUDGE KENNEDY: I -
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| 14MS. CURRAN: - took some pains to address 15 in our contention, that we took specific statements in 16 the environmental report and said, "Well, we have 17 evidence that you're understating this, or you've 18 ignored that, or" -
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| 19 JUDGE KENNEDY: And I think I'm agreeing 20with you. I think I put a lot of weight on the 21 Chapter 3 writeup which took us to the present -
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| 22 MS. CURRAN: Yeah.
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| 23JUDGE KENNEDY: - and described the 24 conditions on the site as they begin to move forward.
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 95 I mean, it does other stuff as well because they look 1 at reasonable foreseeable, but I'm trying to reconcile 2sort of the view that comes out of Chapter 3 as we 3 enter the period of extended operation subsequent 4 license renewal period and then the sort of activities 5 that go on there and impacts that will bring to the 6 environment, and I see a big distinction there and I 7 put a large measure of importance on the material 8 that's in Chapter 3.
| |
| 9 So that was my original question is, you 10 know, you have some, I think you have some citations 11 in your petition that goes after the material that's 12 in Chapter 3, and I'll give you time at the end to 13 come back to that.
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| 14 MS. CURRAN: Thank you.
| |
| 15JUDGE KENNEDY: But I see this as a big 16 distinction and I think it also bears on Table 7-1 17 because it's the perspective they're starting from.
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| 18 They're starting really from the perspective of what's 19 going on on the site, and they're distinguishing the 20 3 and 4 activity which is either refurbishment or the 21 renewal period, and 6 and 7 which is construction, 22 operation, and ultimately decommissioning.
| |
| 23 So I'm going to listen more keenly, but, 24 I mean, to me, that's where I'm coming from is that 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 96 that all seems to hang together to me, and so it would 1 be important for me to understand the challenges that 2 you would bring to what FP&L has put in the 3 environmental report for the effected environment.
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| 4 MS. CURRAN: Okay, I'm going to -
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| 5JUDGE KENNEDY: That's a long soliloquy of 6 why I keep asking that question.
| |
| 7MS. CURRAN: Okay, thank you. I don't 8 think I have anything more to add to my argument, but 9 I'd be really glad to answer any more questions that 10 you may have.
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| 11JUDGE KENNEDY: I'm just curious, going 12 back to your original point about the groundwater 13contamination and the, I guess the interaction of 14state and federal law. What particular federal law 15 are we referring to in regard to groundwater 16 contamination versus - I guess it's being administered 17 through the state of Florida, but what particular 18 federal statute are we referring to there in regard to 19 groundwater contamination?
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| 20MS. CURRAN: The state law permit, the 21 industrial wastewater permit, imposes limits on 22discharges to groundwater. That was issued 23independent of the federal NPDES permit, but since 24then, has been merged into that federal permit. So in 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 97 the Clean Water Act suit, SACE is arguing that the 1 NPDES permit, the federal permit includes discharges 2 to groundwater.
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| 3 In this case, FP&L, in this case, FP&L is 4 arguing that discharges to groundwater are not 5governed by the federal law. They're governed by the 6 state law, and so that would take, that would take 7 FP&L out of any or disable any argument that this is 8 a federal issue that the NRC has no business getting 9 involved in.
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| 10JUDGE KENNEDY: Right, I guess that was 11really my question. How do we get back? Is it the 12 Clean Water Act that really -
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| 13 MS. CURRAN: Yes.
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| 14 JUDGE KENNEDY: - needs to govern here?
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| 15 MS. CURRAN: Yes, the Clean Water Act -
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| 16 (Simultaneous speaking) 17 JUDGE KENNEDY: - disagree with you.
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| 18 MS. CURRAN: The Clean Water Act governs 19 discharges to surface waters. The CCS is not a 20 surface water of the United States because it's an 21 enclosed basin, but there is an NPDES permit for 22 discharges to the CCS.
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| 23 The initial NPDES permit prohibited 24discharges to groundwater. It just said you can't do 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 98them. The state permit allowed discharges to 1 groundwater, but limited them.
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| 2Oh, okay, I need to clarify. The NPDES 3 permit, the federal permit, regulates discharges to 4surface water. It prohibits discharges to 5groundwater. No, that's - I'm sorry. I got that 6 wrong. 7 The NPDES permit prohibits discharges to 8 surface water and the CCS isn't surface water, so, and 9 it limits discharges to groundwater, but the limits on 10 the discharges to groundwater come from state law, not 11from the Clean Water Act. Is that - I'm sorry that I 12 bungled that.
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| 13JUDGE KENNEDY: No, that's - yeah, no, 14that's more helpful. I guess I'm still trying to look 15for where the problem here is. You seem to be raising 16 an argument that this should be under federal law 17 versus state law?
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| 18 MS. CURRAN: I'm not arguing that.
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| 19 JUDGE KENNEDY: Okay.
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| 20MS. CURRAN: I mean, I am responding to 21 suggestions by FP&L and the staff that, and this comes 22 from NRC cases involving, I think, Indian Point, and 23 I'm trying to remember the other case that they cited 24where the Commissioners said, "Well, we're going to 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 99 accept whatever EPA was doing with this facility and 1 we're not going to second-guess the EPA," and I just 2 want to distinguish this case from a comparison with 3 those.4JUDGE KENNEDY: As we stand today, the 5 state of Florida administers the discharges to the 6 groundwater. Is that true?
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| 7MS. CURRAN: There's two entities, the 8 state and also the county -
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| 9 JUDGE KENNEDY: Okay.
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| 10MS. CURRAN: - Miami-Dade County, so there 11 is - Miami-Dade County has a consent agreement with 12 FP&L that, where they are trying to mitigate some of 13 the discharges to or have some measures for mitigating 14 discharges to groundwater.
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| 15 The state has a consent order with FP&L 16that has different measures in it. So there are these 17 two entities that are regulating FP&L and working with 18 FP&L to mitigate their discharges to groundwater.
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| 19JUDGE KENNEDY: I mean, at this point, the 20 Agency would not really try to override the state of 21 Florida in these issues. I would presume that you 22 would agree with that.
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| 23MS. CURRAN: Well, there's a difference 24 between overriding the state of Florida and looking at 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 100 the issues. We think that NEPA obligates the NRC to 1 look at the effectiveness of these various mitigation 2 measures that have been imposed.
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| 3 Because FP&L is saying in their 4 environmental report, "Everything is fine because 5 we're involved in these efforts under the jurisdiction 6 of the state and the county to mitigate our 7 groundwater impacts, so things are fine."
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| 8 And we're saying they're not fine and this 9 environmental report and ultimately the environmental 10 impact statement has to take a hard look at whether 11 these, the likelihood that these efforts will be 12 successful or possibly even be counterproductive.
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| 13 Okay, I would like to read you a footnote 14 from 51.71, 10 CFR 51.71 which is the requirements for 15 environmental impact statements. "Compliance," this 16 is footnote three, "Compliance with the environmental 17 quality standards and requirements of the federal 18 Water Pollution Control Act imposed by EPA or 19 designated permitting states is not a substitute for 20 and does not negate the requirement for NRC to weigh 21 all environmental effects of the proposed action, 22 including the degradation of any of water quality, and 23 to consider alternatives to the proposed action that 24 are available for reducing adverse effects." 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 101JUDGE KENNEDY: But as we sit today, we're 1 assessing FP&L's environmental report.
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| 2 MS. CURRAN: Right.
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| 3JUDGE KENNEDY: And so this really speaks 4 to a longer term burden on the Agency and the staff.
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| 5MS. CURRAN: Yeah, you know, there is 6 always this question of what does the environmental 7 report have to have in it, that sometim es there is 8 something it doesn't have to address that is later 9 addressed by the staff.
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| 10 From SACE's perspective, we know that we 11 have to raise all of our concerns as early as possible 12in the proceeding. If you tell us we're too early, 13 we're much happier than if you tell us we're too late.
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| 14JUDGE HAWKENS: Understand. Is your 15 concern the lack of an independent analysis of these 16 consent decrees or the lack of an examination of 17 alternatives to the, what the methods that are being 18 used by the consent decree? Or both?
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| 19MS. CURRAN: Both. Both. Some assessment 20 of what is the likelihood that these measures are 21 going to be successful, because, after all, that's 22 what FP&L is relying on to say, you know, it's one of 23 the things they rely on to say that the impacts --
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| 24 If FP&L succeeds in getting across their 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 102 view that the impacts of the CCS are insignificant, 1 then very little will ever be required of FPL or ever 2 be justifiable in the way of an alternative for 3 mitigating the impact.
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| 4JUDGE HAWKENS: Don't you think the state 5 and local governments in concert with FPL though get 6 a hard look to, before they entered the consent 7 decrees?8 I mean, the state and local governments 9 had a real vested interest in ensuring minimal impact 10 on the environment.
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| 11MS. CURRAN: One of the things that we 12 know from Calvert Cliffs is that the NRC can't just 13rely on the judgment of some other agency. And you 14 have to make up your own mind, or the agency has to 15make up its own mind, as to what are the issues and 16 what are the various measures that are being used to 17 address them are adequate.
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| 18 That's the, NEPA is kind of like the trump 19 card that has to, it requires whatever agency that's 20preparing an EIS to make its own judgment. And unless 21 there's some statutory provision, you simply can't 22 rely on someone else's judgment. You can --
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| 23JUDGE HAWKENS: No, I'm just wondering if 24 the reference to these consent decrees is adequate to 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 103 trigger the hard look that --
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| 1 MS. CURRAN: It doesn't substitute --
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| 2JUDGE HAWKENS: -- the staff would have to 3 take.4MS. CURRAN: It doesn't substitute from 5 the hard look.
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| 6JUDGE HAWKENS: No, it does not. But 7 until the Staff is given the opportunity to give it a 8 hard look, we can't --
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| 9MS. CURRAN: Well, it does beg the 10question as to whether, if you look at the general 11 language in Section 51.53(c)(ii), which is what we say 12 applies here --
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| 13 JUDGE HAWKENS: Okay.
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| 14MS. CURRAN: -- does it encompass this.
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| 15And we should say, yes, it does. Because the language 16 is general.
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| 17 So, there is -- and if the NRC, there has 18 been a lot of talk here about efficiency, if you want 19 to make this process efficient, you have the Applicant 20 do as thorough as possible, an environment analysis.
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| 21 Because that will make the ultimate preparation of the 22 EIS much more efficient than to just, you know, the 23 NRC talks a lot about, we not going to waste time 24 waiting around, we're going to have the Applicant do 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 104 the initial assessment of environmental impacts.
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| 1 So it seems the way the NRC looks at this 2 whole thing is, let's make sure we get these issues 3dealt with as quickly as possible. And the first 4 instance would be the environmental report.
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| 5JUDGE HAWKENS: Okay. Anything else 6 before we turn it over to FPL?
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| 7 MS. CURRAN: No. Thanks.
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| 8JUDGE HAWKENS: Thank you. Well, the time 9 you have not used on your principle presentation will 10 add to your rebuttal time.
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| 11MS. CURRAN: Can you tell me how much that 12 is?13PARTICIPANT: Eleven minutes, 30 seconds.
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| 14 MS. CURRAN: What did you say?
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| 15MR. MCMANUS: Eleven minutes, 30 seconds.
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| 16 MS. CURRAN: Oh, 11 minutes. Okay.
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| 17JUDGE HAWKENS: That would be in addition 18 to the 25 minutes that you reserved. FPL.
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| 19MR. O'NEILL: Thank you, Your Honor. I'm 20ready. This is Mr. O'Neill again. I think again, my 21 understanding is we're splitting our time with the 22 Staff.23 JUDGE HAWKENS: Good. Thank you.
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| 24MR. O'NEILL: So, what is that, roughly 30 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 105minutes. Your Honor, I guess I'd like to maybe first 1 respond to some of the points Ms. Curran made, the 2 four overarching issues that she identified.
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| 3 And I think her remarks kind of play into, 4 fairly reinforce what I had intended to emphasize at 5 the outset is that, I think fundamentally SACE is 6 seeking an opportunity to litigate or re-litigate 7 issues that are already being looked at by the federal 8 district court in the Clean Water Act suit.
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| 9 And I think this is evidence by the fact 10that they're raising many of the same issues. I've 11 reviewed their petition and I've reviewed some of the 12 filings in that proceeding, including the statements 13 of fact, and there is striking parallels in terms of 14 them alleging that there is an unacceptable non-15 radiological impacts on groundwater and surface water 16 and ecological resources.
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| 17 And they, in fact, are relying on it, and 18I believe on the same experts and expert reports. At 19 least for the most part. So, I think that shouldn't 20 be lost on the Board.
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| 21 But my understanding too is that in that 22 proceeding, SACE's position is, is that the Clean 23 Water Act covers not only discharges under the NPDES 24 permit to the cooling canal system, but it also, in 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 106 their view, encompasses water that may be percolating 1 or infiltrating from the CCS into groundwater.
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| 2 And I think that's FPL's point of 3fundamental disagreement. We don't view the Clean 4 Water Act as encompassing, that alleged groundwater 5 contamination.
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| 6 And Ms. Curran, I think, tries to draw the 7 distinction really, in my mind is without a 8difference. She points to the fact that, okay, well, 9 maybe the NPDES portion of this falls under the Clean 10 Water Act or within the state EPA ability.
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| 11 But because the groundwater piece, in your 12 view, is the subject to state regulation or regulation 13 by the county, that it's somehow litigable in this 14 proceeding. And that is not the case.
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| 15 I think the Commission case level is 16 pretty clear that it's not within the NRC's purview to 17 second guess the actions, the regulations and the 18 enforcement actions of state and county regulators, 19 it's really no different in that sense.
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| 20 To be sure, some of the case law we cited 21 for Indian Point and Oyster Creek was specific to the 22Clean Water Act. NPDES permits issued under the Clean 23 Water Act as they relate to impingement and 24 entrainment of aquatic organisms, yes, that's 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 107 different but I think the same principle applies that 1 it is not for the NRC to be kind of re-looking, 2 reexamining, second guessing the terminations of the 3 Florida Department of Environment Protection or the 4 Miami-Dade County.
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| 5JUDGE HAWKENS: Ms. Curran, as I 6 understood her said, there's a distinction between 7 having FPL and the NRC Staff second guessing the state 8 and municipalities versus having them comply with 9 their statutory requirement under NEPA to take a hard 10 look --11 MR. O'NEILL: Yes.
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| 12JUDGE HAWKENS: -- and analyze the 13potential effects. And the effectiveness of the 14 consent decrees that have been entered into.
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| 15 MR. O'NEILL: I would agree that the NRC 16 undoubtedly has an independent obligation, under NEPA, 17 to examine the environment impacts of the projects, as 18 discussed really in Chapters 3 and 4 of the ER, as 19supplemented by the Staff's independent review. So I 20 think it's certainly appropriate for them to look at 21 the current status under the CCS.
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| 22 You know, what's in the water, what's in 23 the groundwater, what actions the state and county 24regulators have acquired of FPL. But we do not think 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 108 it is within the Staff's jurisdiction or purview to 1 recommend new mitigation measures or to really opine 2 on the efficacy or the appropriateness of the 3 mitigation ledgers that have been identified by the 4 state and the county.
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| 5 And there's a lot of interaction between 6 FPL, in the state and local county regulators have 7occurred, heavy expert involvement. You know, 8 groundwater modeling for instance, extensive 9permitting processes. I think in one case, even in 10 administrative hearing.
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| 11 So, we don't think it's appropriate for 12 the NRC to wade into that area and say, well, for 13 example, we don't think the use of the recovery well 14 system is the best alternative available under NEPA.
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| 15JUDGE ABREU: In the GEIS there's 16discussion of impacts of contaminant discharges. And 17 in 4.6.1.2 it talks about, that these are considered 18 to be of small significance if water quality criteria, 19 for example, NPDES permits, are not violated.
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| 20 From your standpoint, would you consider 21 water quality criteria to be what the base, let's say 22 state regulation says, or is it only what's in the 23 confides of the permit that you might have under some 24 consent agreement or other conditional situation, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 109 which criteria does that refer to?
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| 1MR. O'NEILL: Well, I think the permit 2 criteria would be controlling the day, they should be 3 based on the relevant state regulations and the, you 4 know, the mitigation ledgers that are being required 5 of FPL are ultimately aimed at ensuring that the 6 company does comply with the applicable water quality 7 criteria.8JUDGE ABREU: So the water quality 9 criterias would be what's in their base regulation, so 10 to speak?11MR. O'NEILL: Yes, that's my 12 understanding.
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| 13 JUDGE ABREU: And then, so, you could be 14 violating those criteria and yet be allowed to proceed 15 under a permit by a consent agreement?
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| 16MR. O'NEILL: That's not my understanding 17 of how the consent decree or consent order work.
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| 18 JUDGE ABREU: So --
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| 19MR. O'NEILL: I mean, I think. Well, let 20me back up one step. My understanding is there has 21 only been one notice of violation that had been issued 22 several years ago, and that is what triggered the 23 consent agreement and the consent order.
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| 24 And FPL is complying with those document 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 110 requirements and those documents. And that they are 1 in operational compliance with the permits.
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| 2JUDGE ABREU: Right. So you could, I'm 3 trying to distinguish between water quality criteria 4 and permit compliance.
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| 5 MR. O'NEILL: Yes.
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| 6JUDGE ABREU: Theoretically, one could 7 violate a criteria and then they would enter into a 8 consent agreement with the issuing organization.
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| 9MR. O'NEILL: Yes. I think that's 10 correct, yes.
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| 11 JUDGE ABREU: And so --
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| 12 MR. O'NEILL: Prior statement.
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| 13 JUDGE ABREU: -- it could be true that a 14 licensee could be violating water quality criteria yet 15 not be violating the permits that are issued with 16 their various consent agreements, orders, et cetera?
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| 17 MR. O'NEILL: Yes. In that circumstance 18 what they might, in that case would likely need some 19 type of waiver exception, right?
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| 20 JUDGE ABREU: Which, yes, they can do it 21 but you might still be violating criteria.
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| 22 MR. O'NEILL: Yes.
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| 23 JUDGE ABREU: It could happen that way.
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| 24 MR. O'NEILL: Yes.
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 111 JUDGE ABREU: Okay.
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| 1MR. O'NEILL: But, I guess on that point, 2 I do want to emphasize, and I may be getting off on a 3 tangent, but there is no evidence that CCS is 4 contributing to any violations of water, surface water 5quality standards in the Biscayne Bay. That is our 6 position in the Clean Water Act litigation --
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| 7 JUDGE ABREU: Okay.
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| 8MR. O'NEILL: -- and we stand by that very 9 strongly.10 In terms of the groundwater constituents, 11 the hyper-saline plume, at this point it has not 12caused any impact on drinking water sources. I think 13 the nuke well field is more than four miles away from 14 the outer edge of the hyper-saline plume and there is 15 the Florida Keys Aqueduct Authority as a well field.
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| 16 That's, I think, on the order of ten to 12 miles away.
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| 17 And so there has been, I want to be clear 18on that, that has not impacted these municipal 19 drinking water sources.
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| 20JUDGE ABREU: So, at this time, regardless 21 of what happened in the past with notices of violation 22 whatever, can you state that you're sure there are no 23 violations of water quality criteria, as opposed to 24 saying we're not violating our permits, can you state 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 112 that we're sure we have no violations on water quality 1 criteria?2MR. BESSETTE: Your Honor, we're not quite 3 sure of what you mean by water quality criteria.
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| 4 There's many criteria governing surface water 5 nutrients.
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| 6JUDGE ABREU: It's open. What I'm looking 7 at --8MR. BESSETTE: I think it's safe to say 9 there has been no violations, no evidence through 10 extensive testing and reporting of any surface water 11 quality standards.
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| 12JUDGE ABREU: Okay, so that's surface 13 water quality.
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| 14 MR. BESSETTE: Right.
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| 15JUDGE ABREU: Okay. Because what I'm 16 looking at is the GEIS.
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| 17 MR. BESSETTE: Right.
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| 18JUDGE ABREU: And the wording in it. And 19 it's worded specifically to say, impacts of 20 containment discharges are considered to be of small 21 significance if water quality criteria are not 22 violated.23 So, that's the, so then we have to 24 determine, what do we mean by water quality criteria.
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 113MR. BESSETTE: Right. And with regard to 1 groundwater, with regard to tritium, any of the 2 ammonia, they are not violating any of those standards 3--4 JUDGE ABREU: Okay.
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| 5 MR. BESSETTE: -- with regard --
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| 6 JUDGE ABREU: And that's groundwater?
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| 7 MR. BESSETTE: Groundwater.
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| 8 JUDGE ABREU: So, this does not restrict 9it to groundwater. The GEIS statement is not 10 restricted to that groundwater.
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| 11 I'd have to go back and double check to 12 see if in the broader context of that section if it's 13 restricted to groundwater.
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| 14MR. BESSETTE: We do need to clarify with 15 one of our folks of whether, how the state is 16 classifying the saline plume.
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| 17 JUDGE ABREU: Okay.
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| 18MR. BESSETTE: But with regard to other 19 constituents that they've raised, what SACE has 20 raised, we'll talk about a little on the consolidated 21 petitioners with regards to tritium, ammonia, 22nutrients. We believe there's no violation of any 23 quality standards.
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| 24JUDGE ABREU: Okay. And since we're on 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 114 it, how do you, as the Applicant, look at it when we 1 have, the Table B1, is a summary table but the GEIS is 2 the document it's based on, but sometimes in the GEIS 3 there is broader meaning than is in the table, like in 4 this case, the fact that the GEIS says there's this, 5 if water quality criteria are not violated, but that's 6 not in, that's not a footnote or anything in Table B1.
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| 7 When you're doing your CAT 1 8 determination, which do you look to?
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| 9 How did you decide which way to apply the 10 table versus the GEIS?
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| 11MR. O'NEILL: My understanding is that we 12look at the actual GEIS. We consider what the 13 analysis is in the GEIS and what discussion is 14 contained there, what it looked at specifically, what 15 parameters and base our finding on that. Because we 16 do have an obligation to ensure that the Category 1 17 findings there are still bounding from our 18 perspective, still apply.
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| 19JUDGE ABREU: So, if I understand you, 20 basically you're looking to the big document and the 21 table is just a quick reference summary?
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| 22 MR. O'NEILL: Yes.
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| 23 JUDGE ABREU: Okay.
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| 24MR. O'NEILL: I think I'll move on and 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 115talk a little bit about the croc, okay, sorry. Go 1 ahead.2MR. HAMRICK: Your Honor? Your Honor, 3this is Steven Hamrick for FPL. I just wanted to 4 clarify the question earlier with respect to water 5 quality standard violations.
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| 6 With respect to surface water there have 7 been no violations. There has been ammonia that has 8 been identified in areas close to the plant but 9 there's not been tie back to the operations at Turkey 10 Point.11 So that was not a water quality violation, 12 that was caused by the operation of the cooling canal 13 system.14 With respect to groundwater, there was a 15 notice of violation that was issued a couple of years 16by both the state and by the county. And that did not 17 involve a numeric criteria that was violated, it was 18 more of a narrative standard.
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| 19 Something like, you're not supposed to 20 impair the regional beneficial use and so it was the, 21 the notice of violation was based on violating that 22 narrative standard not a numeric criteria.
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| 23MR. O'NEILL: Any further questions on 24 that subject?
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 116I'll proceed. I did want to briefly 1 address some of Ms. Curran's remarks regarding the 2 crocodile impacts.
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| 3 I think as set forth in the environmental 4 report, FPL has identified data for nests, identified 5 nests and hatchlings going back to 2000, and I think 6 that kind of coincides, or I know it coincides with 7 the time frame that the staff looked at in the Unit 6 8 and 7. The Turkey Point Unit 6 and 7 COL EIS.
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| 9 And I think we view that as an appropriate 10data set for purposes of looking at the impacts on 11 crocs. And I think it's actually quite conservative 12 in the sense that we didn't really even see data on 13 our, in terms of number of successful nests and 14 hatchlings on par with today's data until the early 15'90s probably.
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| 16 But in terms of the crocodile impacts, the 17 ER does fully acknowledge that there was a drop off in 18 certain numbers from the, really from the kind of the 192015 to 2017 standpoint. And so that impact was fully 20 acknowledged.
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| 21 And I think it's important for the Board 22 to understand that it was in fact due to a combination 23of a number of circumstances. I think one was related 24 to the implementation of the uprates, which required 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 117 some downtime in both units, which in turn impacted 1 the flow, the discharge into the canal system and the 2 amount of circulation that you had.
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| 3 As well as inordinately dry weather 4conditions over that span. And certainly some amount 5 of human activity associated with the implementation 6 of the recovery well system and other mitigation type 7 measures.8 But I think as we pointed out, by 9 referencing a news article, the most recent data are 10 very encouraging. This past year we saw basically a 11 double, a doubling of the number of successful nests 12 from 2017, from roughly eight to, I think 15 or 13perhaps 14. And the number of hatchlings have 14 increased from 46 to 225.
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| 15 And those numbers are really kind of on 16 par with what was seen in the early 2000s and kind of 17 running up to the pre-uprate time. And from talking 18 to the environmental folks at FPL, I think it's, you 19 know, reflecting in the fact that the mitigation 20 measures they are putting in place are really proving 21 to be effective.
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| 22 They have installed a number of freshening 23 wells that extract low salinity water on the order of 24 two to three practical salinity units, 2 PSU, from the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 118Upper Floridan Aquifer. It's under artesian 1 conditions.
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| 2 And they've already seen, in the past year 3 I think, reductions from kind of your average annual 4PSU from about 61 or two PSU down to 51. And I think 5currently we're looking at about 48 PSU. You know, 6the ultimate goal is 34. But we're seeing very 7 significant benefits there.
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| 8 In terms of the recovery well system, that 9is now fully operational as of May. And of course, 10 that's aimed at extracting the hyper-saline plume, or 11 groundwater, from the shallower Biscayne Aquifer, 12 which is about 90 feet deep roughly.
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| 13 And at this point, they've just conducted 14 the initial baseline surveys using electromagnetic 15 technics where they look at the conductivity of the 16 plume and it's supplemented by groundwater sampling.
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| 17 And they've already extracted over four 18 and a half billion gallons of water using that system.
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| 19 And that is being injected into the bolder formulation 20 several thousand feet below the site.
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| 21 And that's all been appropriately reviewed 22and permitted by the state and local agencies. So, 23 those things are taking effect.
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| 24 With regard to crocs, they've also been 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 119 required to implement a nutrient management plan, 1 which encompasses the freshening activities but also 2 sediment removal, best management practices for the 3 berms, trying to remove debris, shrubs and things of 4 that sort to make the berms more attractive for 5nesting sites for the crocodiles. And it's proving to 6 work very, very effectively so far.
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| 7 Ms. Curran also talked about the tritium 8 contamination, and I think a couple of points were in 9emphasis there. One is, they don't disagree that 10tritium levels are below the applicable limits of 11 20,000 picocurie per liter. I think that's a Safe 12 Drinking Water Act, if I recall.
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| 13 And FPL ensures even at the discharge, or 14 the outflow point, that they're well below that limit, 15 so there is really no potential for tritium levels to 16exceed in the applicable limits. It's enforced by EPA 17 and the NRC.
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| 18 Ms. Curran mentioned that tritium may be 19 significant because it can serve as a tracer. And 20that's true to the extent that if you have tritium 21 present in groundwater or even surface waters above 22 background levels that may be linked to water that 23 originated at the site.
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| 24 But tritium is not a tracer for 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 120phosphorous or nitrogen or other nutrients or non-1radiological constituents. So, the fact that you may 2 see some tritium in a given location does not 3 necessarily mean that any concurrently or commonly 4 occurring phosphorous or nitrogen or chlorophyll is 5necessarily linked to Turkey Point. I think that's an 6 important distinction to understand.
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| 7 And the fourth point Ms. Curran raised, 8related to incorporation by reference. And I think on 9 that issue I want to emphasize that it certainly was 10 not FPL's intent, or our intent as counsel, to 11 downplay the importance of looking at the CCS, the 12 cooling canal system impacts.
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| 13 I think as Judge Kennedy recognized, those 14 are discussed in considerable detail in Chapters 3 and 154 of the ER. And even if you do look at the Unit 6 16 and 7 COL EIS, there is discussion in there of the 17 cooling canal system and related impacts.
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| 18 But, I think fundamentally, FPL is relying 19on the Unit 6 and 7 EIS for its analysis of past, 20 present and reasonably foreseeable future actions 21occurring in the site vicinity or the region. Because 22 that Table 7-1 did take a very thorough look at that 23 and listed all types of actions for other facilities 24 that could have impacts that could act commutatively 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 121 with Turkey Point, subsequent license removal.
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| 1 So, again, I think that the takeaway there 2 is of, certainly was no intention to detract from the 3 review of the impacts of the CCS.
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| 4 As far as the cooling tower system goes, 5I think we strongly disagree. Both in the context of 6 this proceeding and the Clean Water Act litigation 7 that that really is a cost-effective alternative, or 8 even a reasonable alternative under the circumstances.
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| 9 Because, again, you've got impacts that 10have been fully identified by FPL and the state and 11 county regulators and related mitigation ledgers that 12 are required to be implemented by FPL, and are being 13 implemented quite aggressively, and some thoughts too.
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| 14 In our view there is, installing a whole 15 new cooling system is just not necessary under the 16 circumstances. It's just not practicable.
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| 17 Especially when you look at the fact that 18 the cooling canal system has been operating since the 19'70s. And as Ms. Curran recognized, the AEC, the 20 Atomic Energy Commission, looked at the alternative of 21cooling towers and decided it wasn't really the 22 preferred alternative, that the CCS was an appropriate 23 system.24It's functioning well. The thermal 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 122 efficiency, I understand, is now on the order of 85 1 percent.2 They've done berm perimeter inspections, 3 and again, they're implementing all these various 4 litigation ledgers. So we view it as an appropriate 5 system.6 And to the extent that it has had 7 environmental impacts, we view the litigation measures 8 required by the FDEP and the Miami-Dade DERM as being 9the reasonable measures. And they were approved by 10 those regulators.
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| 11 We shouldn't, in this proceeding, be 12questioning their informed judgement. I think the 13 Commission, again, and other boards, I think the we be 14more for instance. So, it's not our position to 15 second guess the measures that are being required by 16 these other regulators.
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| 17 Yes, and another point there is that, no 18 state or county regulator has actually recommended the 19 implementation of cooling towers as an alternative.
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| 20 And again, that's in contrast to the Indian Point and 21 Oyster Creek license renewal proceedings where the 22 state regulators had identified that as kind of a best 23available technical, their preferred alternative. And 24 that's not something we have here.
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 123 I think that's all I want to cover for 1 now, Your Honor.
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| 2JUDGE KENNEDY: Do you have any sense what 3 happens to the crocodile habitat if you switched from 4 the CCS to the mechanical draft cooling towers? Get 5 better, worse? I'm just wondering.
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| 6MR. O'NEILL: Well, I think, the first 7 thing I would say is obviously installing cooling 8 towers is a very substantial undertaking, a major 9 construction project that would actually require 10 amendments to the license as it relates to the 11 ultimate heat sink, as well as low level radioactive 12 waste liquid discharges.
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| 13 Very, very significant undertaking that 14 would undoubtedly have im pacts of its own. But in 15 terms of the impact on the CCS, right now the CCS is, 16 again, as I understand it, does depend on discharges 17 from Units 3 and 4 for the actual kind of circulation, 18 the movement of water.
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| 19 And I think there may be discharge from 20 another unit at the site to, I don't know if it's blow 21 down or waste discharge, but that goes to the CCS.
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| 22 But ultimately, that would lead to more stagnate 23 conditions. That's how I understand it.
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| 24JUDGE KENNEDY: Yes. I guess I was 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 124 thinking, it may put you in a strange position 1 because, before you built CCS there was no habitat 2 there.3 MR. O'NEILL: Well --
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| 4 JUDGE KENNEDY: You operate it, you have 5 a habitat, you turn it off, I don't know what you end 6 up with.7MR. O'NEILL: Yes. I mean, you would, 8 certainly FPL would be required to continue to comply 9 with the consent order and the consent agreement and 10 that, but it does raise very significant questions 11 about, I guess the continued viability of the CCS's 12 habitat for the crocodile.
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| 13 I think Mr. Bessette wants to --
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| 14MR. BESSETTE: Yes, Your Honor. We 15actually had some discussions on that yesterday. And 16 it would be very complex issue of what would happen to 17 the CCS if you built cooling towers, but the consensus 18 is it could essentially become a large stagnant pond.
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| 19 And as you can imagine, with an increased 20salinity, lack of nutrients, it doesn't take much 21 imagination to think it would not become a hospitable 22 location for the crocodiles.
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| 23MR. O'NEILL: I mean, the CCS environment 24 is obviously sensitive to a number of conditions, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 125 including the flow, because that's going to affect 1 tritium levels and how opaque the water is, as well as 2 the salinity itself.
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| 3 And that's why these litigation ledgers 4 that have been put into place are starting to become, 5 or are proving to be effective because they have seen 6 a sizeable reduction that's manifested itself in with 7 the larger crocodile nesting and hatchling numbers.
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| 8 Another thing I didn't mention is, FPL is 9 actually trying to repatriate or reintroduce seagrass.
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| 10 And they've done it on a field scale level. I think 11 about three acres of seagrass that they've put in to 12see how well it's going to take under the new 13conditions. And I think the indications are fairly 14 good so far.
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| 15 Yes, so there's quite a few steps are 16being taken there in terms of trying to improve the 17environment for the crocodiles. And that includes us 18being sensitive as well to their pre-mating, mating 19 habits, nesting.
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| 20 Where they locate the nest and the 21hatching period. So they obviously try to minimize 22 major human activity at the site.
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| 23JUDGE HAWKENS: Thank you. Anything 24 further?25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 126 MR. O'NEILL: No, Your Honor.
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| 1JUDGE HAWKENS: If not, we'll hear from 2 the NRC Staff.
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| 3MS. HOUSEMAN: Thank you, Your Honors. My 4name is Esther Houseman for the NRC Staff. I will be 5 addressing SACE's Contention 1 and my colleague, Mr.
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| 6 Turk, will be addressing SACE's Contention 2.
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| 7 So, as you may raise questions that 8 pertain to SACE's Contention 2, I'll refer to my 9 colleague Mr. Turk.
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| 10 Your Honors, Contention 1 appears to be 11 SACE's effort to inject its Clean Water Act litigation 12into the subsequent license renewal proceeding. What 13 SACE has done is essentially repackage its Clean Water 14 Act claims against FPL into Contention 1 with what the 15 NRC Staff use as little regard for the Commission's 16 rules of practice and procedure and Commission case 17 law.18 SACE raises several issues in Contention 19 1. The impact on which the NRC has addressed in the 20 license renewal GEIS and codified in Table B1.
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| 21 As stated in the Staff's answer, six of 22 these issues are Category 1 issues, four of these 23issues are Category 2 issues. And I'll start with the 24 Category 1 issues because there are two significant 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 127 barriers that preclude admission of these portions of 1 Contention 1.
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| 2 The first is, as my colleague Mr. Turk 3 noted earlier, SACE's failure to request, much less 4 receive, a waiver of the Commissions roles concerning 5these Category 1 issues. SACE would need a waiver of 6 51.53(c)(iii), 51.71(d), 51.95(c) and Table B1 itself, 7 to litigate these issues.
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| 8 And that is true even if SACE's 9 contentions pertain to allegedly new and significant 10 information.
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| 11 The other significant barrier to admission 12 of Contention 1, concerning Category 1 issues and 13 Category 2 issues is that, the NRC presumes two 14things. One is, administrative regulatory with 15 respect to state and local governments enforcement of 16 its programs and the other is the presumption that 17 licenses will comply with requirements in statutes, 18 regulations, licenses and their permits.
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| 19 So, first I'll address the waiver issue.
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| 20 SACE must apply for and receive a waiver under 10 CFR 212.335. SACE has neither requested nor received a 22 waiver.23 JUDGE HAWKENS: You're talking about for 24 Category 1 issues now?
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 128MS. HOUSEMAN: The Category 1 issues, yes.
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| 1JUDGE HAWKENS: I, unless my colleagues 2 want a discussion of that, I think we understand the 3 waiver as it applies. You can move on.
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| 4MS. HOUSEMAN: Certainly, I'll move on.
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| 5 So, I'll move on to the matter of administrative 6regularity and compliance. And importantly, I'll 7 respond to SACEs counsels discussion of its Clean 8 Water Act litigation and alleged violations of the 9 Clean Water Act.
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| 10 For NEPA purposes, of course the NRC is 11 going to take a hard look at the impacts of operation 12 of the CCS, regardless of whether the discharge is via 13 groundwater and regardless of whether an alleged 14 discharge is violation of the Clean Water Act.
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| 15 However, it is not for this board and for 16 the NRC to determine whether there is a Clean Water 17Act violation. That matter is appropriately before 18federal district court. And it is appropriate for the 19 federal district court to determine whether that is a 20 violation of the Clean Water Act.
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| 21 The NRC looks to the several agencies in 22 Florida and in the county, that regulate surface water 23and groundwater quality. And those are the Florida 24 Department of Environmental Protection, or FDEP, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 129 Miami-Dade County Department of Environment Resources 1 Management, or DERM as I'll refer to them, and the 2 South Florida Water Management District.
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| 3 All of these agencies have regulatory 4 authority over the impact of operation, the CCS, on 5 surface water and groundwater.
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| 6 And both FDEP and DERM have a consent 7 order and a consent agreement in place, prospectively.
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| 8And these enforcement orders direct FPL to take 9 certain actions to mitigate the impacts of the hyper-10 saline plume.
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| 11 Notable, the Commission itself in Turkey 12 Point CLI 16-18, I'll direct you to Note 35, Footnote 13 35, in that decision. The Commission noted that the 14 noticed of violation that DERM issued to FPL with 15 respect to the hyper-saline plume, is indicative of 16 the fact that FPL's compliance with these 17 environmental requirements is subject to ongoing 18 oversight by the appropriate authorities.
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| 19 And in that same decision, the Commission 20 also noted that it would decline, it declines, excuse 21 me, to assume that FPL would not comply with the 22applicable requirements imposed by DERM. The 23 Commission noted that --
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| 24 And the Commission here was applying its 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 130 presumption that licensees will comply with the terms 1 of their licenses, and also comply with the terms of 2 other licenses and permits issued by other agencies.
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| 3 Notably, SACE raises several facts with 4 respect to compliance that are not in dispute here.
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| 5 SACE's compliance argument rests on two assertions.
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| 6 One is that FPL is in violation of the 7 Clean Water Act, with respect to its discharges from 8 the CCS via groundwater to surrounding surface water.
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| 9That matter is before the federal district court. And 10 that is the appropriate venue for litigating that 11 matter.12 SACE also raises the fact that FPL was in 13violation of its permit. None of the parties to this 14 proceeding dispute that fact.
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| 15 However, what SACE does not allege that 16 FPL is currently not in compliance with the consent 17 order and with the consent agreement.
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| 18 SACE has also provided no evidence to 19 rebut the presumption that FPL will comply with its 20permit and it will comply with the terms of the 21 consent order and the consent argument in the future.
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| 22And I would also like to note that, 23 several of the mitigation measures that are required 24 under FTP's consent order and DERM's consent agreement 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 131 would, if FDEP and DERM force those requirements, mean 1that the hyper-saline plume is halted and it's 2 retracted within ten years of issuance of those 3 requirements. And that would occur years before the 4 commencement of the subsequent license renewal term.
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| 5JUDGE HAWKENS: Excuse me. When a consent 6 order, a consent agreement, establishes a timeline 7 like that, how hard to look, how hard an independent 8 analysis does the NRC Staff do with that consent 9 order? The analysis in the consent order.
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| 10 MS. HOUSEMAN: Well, the NRC --
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| 11JUDGE HAWKENS: Or does it accept it at 12 face value? Does it defer to it?
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| 13MS. HOUSEMAN: Well, the NRC would presume 14 administrative irregularity with respect to FDEP and 15 DERMs ability to enforce the terms of those order, of 16the order, and the consent agreement. And both the 17 consent agreement and the consent order, have built 18 into them certain reporting requirements and 19 requirements to revise mitigation plans if they prove 20 to be ineffective within certain periods of time.
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| 21 So, absent rebuttal of the presumption 22 that FDEP and DERM will in fact enforce those 23 requirements, the NRC is to assume that they will be 24 effective.
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 132JUDGE HAWKENS: All right. So, you 1 presume compliance absent some evidence to the 2contrary. So, let's assume that in the ER it contains 3 no evidence to the contrary, do you accept that at 4 face value or do you do an independent analysis to see 5 if there is any evidence to the contrary?
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| 6 MS. HOUSEMAN: One moment, Your Honor.
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| 7 JUDGE HAWKENS: Sure.
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| 8MS. HOUSEMAN: The NRC Staff would of 9 course take a hard look at the information that's 10 provided by the Applicant in its environment report, 11 and if any information was absent concerning 12 compliance matters, then the NRC Staff would request 13 that additional information.
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| 14 JUDGE HAWKENS: That would be the extent 15 of your independent analysis, to see if there's 16 anything in the ER that would trigger a question or if 17 it's absent, it should be in there?
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| 18MS. HOUSEMAN: The NRC Staff would of 19 course look at any available information outside of 20 the environmental report itself and would not simply 21 take it at face value but would conduct an independent 22 analysis.23 The NRC Staff, however, would not second 24 guess compliance if FDEP and DERM have issued, as they 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 133 have here, consent order and a consent agreement that 1 imposes certain requirements and all of the 2 information available to the Staff in the case that 3 FPL is in fact in compliance with those requirements, 4 then the presumption of administrative regularity and 5 the presumption of compliance both hold true.
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| 6 JUDGE HAWKENS: Right.
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| 7MS. HOUSEMAN: I'll move on to the 8 Category 2 issues that SACE raises in Contention 1.
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| 9 SACE raises four Category 2 issues, yet it fails to 10 satisfy contention admissibility requirements with 11 respect to three of those issues.
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| 12The first is the matter of tritium and 13groundwater. I won't discuss that particular issue at 14 length here. It's SACE's position that tritium is a 15 tracer that can be used to indicate the migration of 16 other pollutants.
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| 17 But, with respect to the technical basis 18 for whether it is a tracer, I would have to defer to 19 the NRC Staff on that matter.
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| 20 But importantly, with respect to the 21impacts of tritium and groundwater, SACE of course 22raised nearly a general concern that tritium and 23groundwater may adversely affect the environment. And 24 that is merely a generalized grievance that certainly 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 134 does not satisfy the NRC's contention admissibility 1 requirements.
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| 2 Next, I'll turn to SACE's arguments 3concerning cumulative impacts in Contention 1. It 4 appears that SACE is calling for FPL and the NRC Staff 5 to draft a comprehensive treatise on all actions and 6 environmental factors in the entire "massive South 7 Florida landscape, water scape of the Biscayne Bay and 8 the Biscayne aquifer," from the 1960's into infinity.
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| 9 According to SACE, the CCS will have 10 indefinite impacts on the environment.
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| 11 NEPA does not require the kind of tone 12that SACE demands here. It requires, instead, in the 13 cumulative impacts analysis, an analysis of the 14 incremental impacts of continued operation of the 15 plant when added to past, present and reasonably 16 foreseeable future actions.
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| 17 Secondly, the cumulative impacts issues 18 also fail with respect to rebutting the presumption of 19 administrative regularity and compliance. What SACE 20 has done here is they've essentially assumed that FPL 21 will fail to comply with the terms of FDEP's consent 22 order and DERM's consent agreement.
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| 23 The NRC Staff itself makes no such 24assumption. Rather, the NRC presumes compliance. And 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 135would like to point you to NUREG-1555. That's the NRC 1 Staff's environmental standard review plan.
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| 2 It states on Page 4.12-3 that, where 3 contributions and ongoing actions within a region are 4 regulated and monitored for a permitted process, for 5example, the NPDES permitting process, it may be 6 assumed that the cumulative impacts are managed as 7 long as these actions are in compliance with the 8respective permits. And as I have noted earlier, and 9 as the Applicant has noted, in the NRCs Staff's view, 10 FPL is currently in compliance with its permits 11 coupled with the consent order and the consent 12 agreement.
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| 13 As you are aware, the NRC Staff does not 14 oppose the admission of one portion of SACE's 15 contention. Pardon me, but before I move to that, I 16 do have one more Category 2 issue that I would like to 17 address very briefly, and that's the, SACE's 18 allegation that operation of the CCS will result in 19 surface water use complex.
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| 20 SACE's portion, this portion of SACE's 21 contention rests on the assertion that FPL will use 22 water from the L 31 E Canal to freshen the CCS, but in 23 fact, in its environmental report, FPL said that it 24 did not plan to use water from the L 31 E Canal during 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 136 the subsequent license renewal period to freshen the 1CCS. And in fact, it is the NRC Staffs understanding 2 that the use of water from the L 31 E Canal actually 3 stopped sometimes around 2016.
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| 4 So, the assertion that the L 31 E Canal is 5 going to be used to freshen the CCS and that that use 6 will result in service water use conflicts appears to 7 be peer speculation on SACEs part.
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| 8 And I'll turn back now to SACEs concerns 9 about the impacts of the operation on the CCS on the 10American crocodile. The NRC Staff does not oppose the 11 admission of this portion of SACE's Contention 1.
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| 12 SACE appears to have raised a genuine 13 dispute with the environmental report on whether the 14 operation of the CCS is the cause, or significant 15 cause, of the decline in the seagrass meadow habitat 16 in the CCS. And also whether, in turn, operation of 17 the CCS has caused a corresponding decline in 18 crocodile nests and hatchlings.
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| 19 And in the NRC Staff's view, SACE has 20provided the expert, an expert opinion, to support 21 these assertions.
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| 22JUDGE HAWKENS: Both the decline of the 23 seagrass and the impact on the crocodile population?
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| 24MS. HOUSEMAN: Yes, but with respect to 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 137 the decline in the seagrass habitat, the NRC Staff 1 does not contest the admission of that portion of the 2 contention as it effects the threatened American 3 crocodile specifically.
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| 4 In summary, the NRC Staff opposes the 5 admission of Contention 1, with the exception of one 6 portion of the contention concerning the impacts on 7the crocodile. The admission of the remainder of 8 SACE's Contention 1 is barred by, first, SACEs failure 9 to obtain a waiver with respect to the litigation of 10 Category 1 issues.
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| 11Also, even if SACE were not required to 12 obtain a waiver or SACE requested and did obtain a 13 waiver, they would still face the presumption of both 14administrative regularity and compliance. And in the 15 NRC Staff's view, SACE has failed to rebut that 16 presumption.
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| 17 SACE may continue to litigate its Clean 18Water Act claims in federal district court. And SACE 19may continue to litigate whether FPL is in fact in 20violation of the Clean Water Act. But that litigation 21 is not appropriate, appropriately before this board 22 and before the NRC.
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| 23 And I would like to also note that SACE is 24 not foreclosed from other opportunities to public 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 138participation. In this proceeding, SACE of course may 1raise comments and issues. Including Category 1 2 issues and public comments on the NRC Staff's D sites.
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| 3 If you don't have any further questions 4 concerning SACE's Contention 1, I will turn it over to 5 Mr. Turk.6JUDGE ABREU: A couple things to start.
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| 7Do you concur with the Applicant's description of 8 water quality criteria as it relates to permits, that 9 those are different though related things and that you 10 can violate criteria and yet not violate a permit?
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| 11 That situation could occur, whether it's 12 because it's here as a different issue.
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| 13MS. HOUSEMAN: It's the NRC Staff's 14 position that it's within FDEP and DERMs permitting 15 authority to make the determination whether those 16criteria are violated.
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| And currently, with the 17 consent order and the consent agreement in place, it's 18 the NRC Staff's view that they're not in violation.
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| 19JUDGE ABREU: So, you're equating the two 20 in a sense that if you're -- let's say you could be 21 issued a notice of violation and then come into a 22 consent agreement and be within that permit with a 23 consent agreement bounds, even if there were a notice 24of violation. From what I just heard you say, it 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 139 sounds like that would then negate the violation in a 1 sense.2MS. HOUSEMAN: Well, our position is that 3 FDEP and DERM could issue a waiver or could enter, 4yes, into those agreements. And that would bring FPL 5 into compliance pursuant to the terms of those 6 particular agreements or pursuant to the waiver.
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| 7 And so, for NEPA purposes and the NRC 8 Staff's analysis, the NRC Staff would view compliance 9 with a waiver or compliance with a consent order, 10 compliance with a consent agreement as compliance.
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| 11 JUDGE ABREU: I question because, if you 12 look at the GEIS statement that I previously 13 indicated, it talks about that Category 1 criteria 14hinges on that water quality are not violated. Well, 15 under your definition then, if I violate something, I 16 have to violate it enough for them to cancel my 17permit, for it to matter. Which means I get shutdown.
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| 18 Which would mean that condition kind of 19doesn't mean anything. I mean, if they're saying 20 water quality criteria are not violated, that's a 21 little different phrasing then saying that you're in 22compliance with all your permits. But are you saying 23 that's a distinction without a difference?
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| 24MS. HOUSEMAN: We're not saying that 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 140that's a distinction without a difference. I would 1 like to note though that pursuant to the terms of the 2 consent order and the terms of the consent agreement, 3 the mitigation measures in place, if complied with, 4would mean the FPL would be in compliance, not just 5 with the terms of that consent order and the consent 6 agreement and the NEPA's permit, but also water 7 quality criteria by the commencement of the subsequent 8 license renewal period. Because they are to retract 9 the hyper-saline plume within ten years.
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| 10JUDGE ABREU: Well, I'm not talking 11 specifically about this situation, I'm in a broader 12context. Let's say I have a chemical and there is 13criteria published in state regulation that says it 14 won't exceed X and I have X plus something and that's 15 bad, that would be violating the criteria, but they 16 allow me to continue to operate while I fix it.
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| 17 So, you're saying then that situation 18 would not apply to what the GEIS is talking about, is 19 that, because the GEIS talks about the impacts of 20 contaminant discharges are small, considered small, if 21 water quality criteria are not violated.
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| 22 You get to use the magic Category 1, 23 assuming 51.53(c)(iii) is in play, you get to use the 24 magic Category 1 designation and you kind of don't 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 141 have to deal with things as long as you are meeting 1 water quality criteria.
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| 2 And what I'm hearing you say is, well, if 3 your permits are clean, if they're letting you 4operate, then you're okay. And that's, that I 5 couldn't be violating a criteria even though they say 6 I've violated it but they've come up with a plan.
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| 7 And I'm trying to understand what the 8wording in the GEIS says versus how the Staff is 9 interpreting it.
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| 10 MS. HOUSEMAN: And I should note too, in 11 that particular section that you're quoting, it does 12 state that water quality criteria includes, for 13 example, the NEPA permit itself.
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| 14 JUDGE ABREU: It says, for example, that 15 permit. But it doesn't state, it could state it the 16other way, if that's what it meant. I'm trying to 17tease out what's the meaning of that sentence. And it 18 sounds like you're saying permits are good enough.
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| 19JUDGE HAWKENS: Water quality criteria is 20 a flexible term and the state or locality can define 21 it and it could actually go up in value.
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| 22MR. TURK: May we have a moment, Your 23 Honor?24 JUDGE HAWKENS: Sure.
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 142MS. HOUSEMAN: Thank you for moment, Your 1Honors. As I've noted, right now FPL is operating 2 under certain mitigation measures that are required of 3 it.4 And perhaps if you were to look at water 5 quality criteria, which I should note is, I do not see 6 as a defined term here in the GEIS, but if water 7 quality criteria is defined as only particular 8 regulatory criteria, then in a very strict sense, 9 perhaps FPL, hypothetically, may not be strictly in 10 compliance with that particular regulatory criteria.
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| 11 But looking at the matter holistically, 12 taking into consideration not just those criteria but 13 the NPDES permit, the consent order and the consent 14 agreement, which have been issued by competent state 15 and county regulatory authorities, FPL is arguably in 16 compliance with water quality criteria. And that is 17 our reading of the Commission's note in Turkey Point 18 CLI 16-18, that in any event, FPL, if it's in 19 compliance with the applicable requirements in 20 response to a notice of violation, then the Commission 21 decline to assume otherwise.
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| 22JUDGE ABREU: What I am trying to look at 23 is parsing this out because a GEIS is looking at 24 environmental impact, okay, and it could be that what 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 143 they mean is, hey, even if you are in compliance with 1 permits if you've violated some criteria that has been 2 established in some State's rule we would want to know 3 about that and you wouldn't get to use the Category I 4 exclusion and you would need to discuss further 5 because they are concerned about the environmental 6 impact of that exceedance of a criteria.
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| 7 Because, one, the flip side would be, in 8 your view is, hey, if you are in compliance it's all 9 good, but then why would I need this conditional on 10 this GEIS criteria because if I am not in compliance 11 they are shutting me down, I am not operating, why am 12 I dealing with environmental impacts now.
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| 13 I mean you're not going to be renewing a 14license to do nothing if you have been violated and 15 they have stopped you from functioning. So it seems 16 like there could be a difference between criteria and 17 compliance with permits plus or minus some kinds of 18 consent agreements and what I am hearing you say is, 19 nope, we're going to look at them as the same.
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| 20MS. HOUSEMAN: Well, to clarify what I am 21 getting at is that the compliance with water quality 22 criteria is not an isolated view of strictly 23 particular regulatory criteria, but it's a view of the 24 entirety of the requirements imposed by the competent 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 144agencies on FPL and is FPL in compliance with those 1 requirements.
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| 2 And this particular statement in the GEIS 3 appears to build into it the assumption that looking 4 forward to that license renewal term if we presume 5 administrative regularity, if we presume compliance 6 with those administrative requirements, then the 7 impacts will be small and --
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| 8JUDGE ABREU: Right. One of the things 9 that could be saying is that -- One of the things they 10don't make clear is when you say you've got your 11 permit is it a clean permit or is it one with special 12 allowances for you?
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| 13 Those are two different situations that 14 this doesn't make clear.
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| 15 MS. HOUSEMAN: And at this time I cannot 16 provide any further clarification than what is stated 17 in the GEIS itself.
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| 18 JUDGE ABREU: Okay. So it's a bit up in 19the air on some of these nuances. The other question 20 was the applicant when we talked about the GEIS in its 21broad sense versus the Table B.1 when there is a 22 difference between the two, for example, the GEIS has 23 more, like a criteria like this that is not footnoted, 24 which criteria applies as the staff is doing their 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 145 EIS, is it the GEIS criteria or is it Table B.1 where 1 there is a difference?
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| 2 MS. HOUSEMAN: Could you --
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| 3 JUDGE ABREU: There are things where the 4 GEIS has criteria that are not, and just for example 5this exact section, it says you get small if water 6 quality criteria are not violated.
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| 7That statement is not in Table B.1. There 8is no conditional on the Table B.1 criteria. It just 9says you get Category 1. Which do you -- Which 10 applies to the staff analysis.
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| 11MS. HOUSEMAN: Well, of course, both apply 12 to the staff's analysis in terms of the staff's work 13 to develop a D size simulator and F size (phonetic).
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| 14 With respect to the need for a waiver, of course, the 15 need for a waiver is from Table B.1 itself but the 16 GEIS elaborates on those impacts as they are codified 17 in Table B.1.
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| 18 Table B.1 is, of course, a summary of 19those impacts. But in taking a hard look under NEPA, 20 the NRC staff is going to look at the GEIS as a whole 21 and in development of its F size (phonetic).
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| 22JUDGE ABREU: Okay, let me -- So let's say 23 Table B.1 does not have a conditional on making a 24Category I determination. A challenger brings up a 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 146 challenge dealing with the condition that is in the 1 GEIS.2You get Category I unless "x." Table B.1 3doesn't mention "x." A petitioner says, ah, but there 4is a problem with "x." You used Cat I even though you 5have not met condition "x." Is that a valid challenge 6 without a waiver?
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| 7MS. HOUSEMAN: It's not a valid challenge 8 without a waiver because the petitioner would still be 9 challenging the Category I determination itself.
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| 10JUDGE ABREU: But the Category I 11 determination says you get the small significance if 12"x," if the GEIS were to say that. So the GEIS says 13 you only get Cat I if "x" and if the challenge is not 14"x" why would you get to use Category I?
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| 15Why would you need a waiver? Because you 16 are not really challenging the Category I finding, you 17are actually going with what's in Category I. The 18GEIS says it's Cat I if "x." Does that make sense 19 what I am saying?
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| 20MS. HOUSEMAN: It does make sense and 21 Table B.1 itself in the introductory paragraph states 22 that the GEIS is codified here, those impacts are 23 codified here.
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| 24 JUDGE ABREU: It's a summary?
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 147MS. HOUSEMAN: So a challenge to the GEIS 1 is a challenge to the rule with respect to those 2 Category I issues even if the challenge is to a 3 particular nuance or explanation in the GEIS 4 underlining those Category I determinations in Table 5 B.1.6 And that is particularly important with 7 respect to, as I noted earlier, allegedly new and 8 significant information. But to --
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| 9JUDGE HAWKENS: Can I interrupt for a 10second there? And I am not clear on this, the entire 11 GEIS is, in fact, deemed codified?
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| 12MS. HOUSEMAN: It's Category I impact 13 determinations --
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| 14 JUDGE HAWKENS: Right.
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| 15 MS. HOUSEMAN: -- which are a summary of 16 that entire analysis that's in the GEIS itself.
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| 17JUDGE HAWKENS: Right. So all discussion 18 in the GEIS is considered, are considered regulations?
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| 19MS. HOUSEMAN: The discussion of Category 20 I issues. So that analysis of here is the impact on 21 this Category I issue is not challengeable in this 22 proceeding without a waiver.
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| 23 JUDGE HAWKENS: Okay.
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| 24MS. HOUSEMAN: And that's particularly 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 148 important with respect to allegedly new and 1 significant information because, of course, as time 2 goes on a petitioner could come into a proceeding and 3 say, oh, well this particular discussion in the GEIS 4 doesn't address this particular proceeding.
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| 5 But the Commission has stated in Limerick, 6 it is cited Vermont Yankee, Pilgrim, and in other case 7 law that a waiver is still required even with respect 8 to allegedly new and significant information that 9 calls into question the analysis that is contained in 10 this GEIS but isn't itself verbatim codified into Part 11 51, Table B.1.
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| 12JUDGE ABREU: I want to come back to that 13but I want to finish up the other discussion first 14 because I think that -- because we're getting the new 15 and significant piece which is another -- So let me 16 jump back.
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| 17 So if the GEIS says you get small if "x" 18 but your ER never mentions "x," okay, but the criteria 19 for a Category I says if "x" is true then you can have 20 Category I.
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| 21 And if a challenger says you never 22 mentioned "x" or your discussion -- You didn't -- I 23 don't believe -- Well maybe they say, maybe the ER 24 says "x" is true and a challenger says "x" is not 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 149 true.1So you are not challenging how the GEIS 2 determined that something is Category I, you are 3 challenging the fact that they did not fulfill all the 4 criteria when there is a criteria.
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| 5 Not every item that says this is Cat I is 6unconditional. You are saying you would have to have 7a waiver but you are not challenging the Category I 8 determination in the GEIS you're just saying they 9 didn't fill the criteria for Category I.
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| 10 Does that make sense that there is a 11 difference between those two?
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| 12MS. HOUSEMAN: Let me take one moment, 13 please.14JUDGE ABREU: Sure. I'll turn off your 15 mic.16MS. HOUSEMAN: Your Honor, a waiver would 17 still be required in that case and a petitioner would 18 still need to argue that those particular facts 19 present special circumstances with respect to a 20 particular site that call for that particular Category 21 I issue that is codified in the rule to be waived for 22 this proceeding.
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| 23JUDGE ABREU: So in essence you are saying 24 that what's in the summary table is kind of what rules 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 150 when it comes to when a waiver is required even though 1 the GEIS might have a broader criteria?
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| 2 MS. HOUSEMAN: Regardless of whether the 3 particular analysis and conclusion appears in Table 4 B.1 in the summary of the Category I issue or it 5 appears in the GEIS itself in the longer extended 6analysis of that Category I issue a waiver is still 7 required.8 And if that weren't the case then 9 petitioners could come into any site-specific license 10 renewal proceeding and challenge all of the detailed 11 discussion in various sections of the GEIS and that's 12--13JUDGE ABREU: Well, I'm not talking about 14 all the discussion, I'm just talking about this was a 15very specific example of, you know, the -- Where it 16 says "the impacts are small," that's the determination 17 in the GEIS, "if," and there is the "if" part, and so 18what I am hearing you say is that even if that "if" 19 part criteria were not met by an applicant that could 20 not be challenged without a waiver?
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| 21MS. HOUSEMAN: That is correct. That's 22 our position.
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| 23 JUDGE ABREU: Okay.
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| 24MR. TURK: Your Honor? Oh, I have to push 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 151 my button. I don't know if you are ready to turn to 1 Contention 2.
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| 2JUDGE ABREU: Well, we're just talking 3 about whether, the issue of new and significant you 4 brought up and just to clarify some of those points.
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| 5 MR. TURK: If I may add a thought to the 6 questions that you had a moment ago. Table B.1 says 7 here is the finding, here is the generic determination 8 based upon the GEIS.
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| 9 If a petitioner wanted not to have that 10 determination applied in a particular proceeding, for 11 instance because a permit is not being complied with 12 and, therefore, the underlying premise of the GEIS 13 doesn't apply then they would need to file a petition 14 for waiver of the Table B.1 conclusion and their 15 grounds can be the underlying rationale for that 16 conclusion does not apply, we have special 17 circumstances and, therefore, waive the rule, waive 18 Table B.1 in this proceeding on that issue.
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| 19JUDGE ABREU: Okay. So what you are 20 saying is Table B.1 is the bar you have to get passed?
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| 21 MR. TURK: Yes.
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| 22JUDGE ABREU: And you have to file a 23 waiver to do that?
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| 24 MR. TURK: Yes.
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 152JUDGE ABREU: As opposed to saying the 1 GEIS rules when it has a broader statement than the 2 B.1 summary has?
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| 3MR. TURK: I don't see a distinction 4 because the GEIS is the underlying basis for the rule.
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| 5 Table B.1 has a footnote that says this rule codifies 6 the GEIS.7 JUDGE ABREU: Right, it's a summary. It 8 says it's a summary.
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| 9 MR. TURK: A summary.
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| 10 JUDGE ABREU: Mm-hmm.
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| 11MR. TURK: But what is being waived is the 12 precise requirement in Table B.1.
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| 13 JUDGE ABREU: So that clarifies --
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| 14 MR. TURK: That is my understanding.
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| 15JUDGE ABREU: That clarifies that the 16 staff's view is Table 1 is what decides what has to 17 be, where a waiver is needed as opposed to the GEIS 18 instead of Table B.1.
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| 19MR. TURK: Yes, with the understanding 20 that the rules are laid out in Table B.1. There may 21 be wording in the GEIS that a petitioner may feel does 22 not apply, but Table B.1 is what is binding.
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| 23JUDGE ABREU: And that's what the whole 24 discussion was to try and clarify because the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 153 applicant has their view, staff has their view, we 1 just wanted to see where people are coming from in 2 this because this --
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| 3MR. TURK: I've come to a point where I am 4 giving you my view, Your Honor, and I hope that it is 5 consistent with what the staff behind me would agree 6 with.7 JUDGE ABREU: Fair enough. So regarding 8 the new and significant, since you brought it up, one 9 of the questions is what is significant?
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| 10 MS. HOUSEMAN: Well of course the --
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| 11 JUDGE ABREU: Well in --
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| 12 MS. HOUSEMAN: Go ahead.
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| 13JUDGE ABREU: In Reg Guide 4.2 there is 14 criteria laid out for what is new and significant, and 15 just as an informal summary it's, well, things that we 16 didn't think about when we did the GEIS seems to be 17 the gist of it.
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| 18 We would want to know about stuff that we 19didn't think about before. The applicant has taken 20 that and the ER has taken that criteria and added a 21 little bit extra in that they went on to say, well, we 22 have considered, I'd have to go find the quote, but 23 basically said for something to be significant it 24 needs to get to the moderate to large level, but if 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 154 it's small we're not -- and that's how they decided 1 that there is no new and significant information that 2 needed to be declared in the ER.
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| 3 Does staff agree that their added 4 interpretation that it needs to get to that moderate 5 to large level to be considered significant for new 6 and significant, is that how the staff sees it because 7 that is an added criteria that wasn't in the reg 8 guide?9MS. HOUSEMAN: The standard for new and 10 significant information is that it paints a seriously 11 different picture of the environment as compared to 12 what was previously understood and if the new 13 information does not change the impact determination 14 in the GEIS, for example to change that impact 15 determination from a small to a moderate or a moderate 16 to a large, et cetera, then, no, that information 17 would not be significant because it does not paint a 18 seriously different picture of the environment.
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| 19 If the impact is still small that's not a 20 seriously different picture of the impacts on the 21 environment.
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| 22JUDGE ABREU: Okay. And does the reg 23guide use the term "seriously different?" I just 24 don't have it in front of me.
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 155MS. HOUSEMAN: That is from Commission 1 case law.2 JUDGE ABREU: Okay.
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| 3MS. HOUSEMAN: For example, Pilgrim, I 4 believe it's CLI-12-15 contains that particular quote.
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| 5JUDGE ABREU: So you would agree then with 6 the applicant's re-characterization of the new and 7 significant criteria from the reg guide to say it's 8 got to be nuisance to GEIS and significant enough to 9 be essentially destabilizing or beyond, which would be 10 the moderate to large category? Would that be -- So 11 you are in agreement with the applicant's ER --
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| 12 (Simultaneous speaking) 13MS. HOUSEMAN: That does sound like a 14 reasonable summary of the agency's regulatory guide, 15 yes.16 JUDGE ABREU: Okay. All right.
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| 17MS. HOUSEMAN: I would like to add just 18 one point of clarification that the moderate impact is 19not destabilizing. So moderate impact is not 20 necessarily, excuse me, is not a destabilizing impact.
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| 21 JUDGE ABREU: But a destabilizing impact 22 would be, would that be enough? Let me get my --
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| 23MS. HOUSEMAN: Well that would be a large 24 impact.25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 156JUDGE ABREU: Right. But, you know, if 1 you were destabilizing that would be sufficient, it's 2not the lowest bar? You could do less and still be 3 considered moderate, yes, for moderate impact, right?
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| 4 MS. HOUSEMAN: Right.
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| 5 JUDGE ABREU: Mm-hmm.
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| 6JUDGE HAWKENS: Do you have anything else?
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| 7MS. HOUSEMAN: I have nothing else 8concerning Contention 1. Does my colleague, Mr. Turk, 9 have time to address Contention 2 for the Board?
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| 10JUDGE HAWKENS: The reason he has none is 11 principally our fault, so, yes, you do have some time, 12 Mr. Turk.13MR. TURK: Thank you, Your Honor. I will 14be brief. I will be very brief. As you will note in 15 our response to contentions we do not oppose the 16 admission of a portion of this contention, Contention 17 2, insofar as the contention asserts that the ER does 18 not consider a reasonable alternative of cooling 19 towers as a means of cooling the nuclear power plant's 20 cooling water.
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| 21 And we say that not because NEPA requires 22 us to consider alternate cooling mechanisms, but in 23 this case we are aware that there is considerable 24interest in potential impacts of the cooling canal 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 157 system.1 NEPA gives the staff the authority, give 2 the NRC the authority to consider such information as 3 may be of interest to the public and we think because 4 this issue is of interest to members of the public we 5 will consider it under NEPA.
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| 6 JUDGE KENNEDY: Mr. Turk, do I read that 7 to mean that FP&L should have looked at it as well in 8 their ER or just that the staff is interested in 9 looking at?
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| 10MR. TURK: The staff is interested in 11 looking at, Your Honor. There is no requirement --
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| 12 JUDGE KENNEDY: So --
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| 13MR. TURK: First of all there is no 14 requirement to NEPA for the applicants to do anything.
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| 15 NEPA only imposes requirements on federal agencies.
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| 16 It's the NRC itself that developed regulations that 17 require applicants to provide information to us that 18 may help us in our evaluation.
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| 19JUDGE KENNEDY: Right, and those 20 requirements would be in the agency's regulations.
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| 21 And did I hear you to say there is no agency 22regulation that would have provided an impetus for 23 FP&L to look at the cooling towers as a reasonable 24 alternative?
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 158MR. TURK: There is nothing that would 1 tell them that they must go out and look at that 2alternative. What is necessary is that their 3 environmental report describe the impacts of operation 4 for the 20 additional years of subsequent license 5 renewal.6If they find that there are no serious 7 impacts, if for instance the impacts of the cooling 8 canal system are small, then there would be no 9 litigation required, and that's the approach that FP&L 10 took.11 We can't say that they are wrong, but NEPA 12has a two-fold requirement. One is for us to consider 13 impacts of operation and alternatives and the other is 14 to inform the public.
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| 15 So I would say that it is under our second 16 responsibility to inform the public that we thought it 17 would be useful to have this additional information.
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| 18JUDGE KENNEDY: Thank you, that's helpful.
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| 19 MR. TURK: And I would point out as Your 20 Honor knows at Indian Point we looked at alternate 21 cooling mechanisms because there there was 22 considerable interest in what are the impacts of once-23 through cooling.
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| 24We do that very rarely. There are only a 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 159 few cases where we look at alternate cooling system 1 impacts and primarily we do it where there is 2 potential impact or where there is substantial public 3 interest in evaluating what are the alternatives to 4 allowing this cooling system to operate.
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| 5JUDGE KENNEDY: So why at that this stage 6 would we admit a contention against the environmental 7 report for not addressing cooling towers?
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| 8MR. TURK: That's a good question, Your 9 Honor. We don't oppose it because we don't say it's 10 an unreasonable thing to do, but you could find it's 11 not necessary.
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| 12 JUDGE KENNEDY: Right. Thank you.
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| 13JUDGE HAWKENS: And your judgement it 14 satisfies contention admissibility requirements as 15 opposed to just exercising a discretion and saying 16 we're going to commit, allow it to come in due to 17 public interest?
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| 18MR. TURK: Yes, because it's an 19 environmental issue and there is no hard-and-fast rule 20 as to what alternatives must be considered. I would 21 say that it is not unreasonable to consider this 22 alternative.
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| 23 JUDGE HAWKENS: I just want to make sure 24 it's your position it does satisfy contention 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 160 admissibility requirements.
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| 1 MR. TURK: In a nutshell, yes, and I say 2 that because they have been specific enough, they have 3not been vague. They have identified what it is that 4 they want to be considered.
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| 5 Now there is one part of the contention 6 that we oppose and that is the part that describes all 7 of the potential impacts of cooling canal system 8 operation and we don't want to get into the litigation 9 of all of those potential impacts here.
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| 10 We think the impacts are described in the 11 GEIS and in the ER and the petitioners don't challenge 12 what the ER says about the impacts. They have their 13 own characterization of the impacts, but they don't 14 say that the ER is wrong in saying here are the --
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| 15 but, for instance, the temperature, the gradients that 16 exists because of operation of the cooling canal 17system. They don't say that anything the applicant 18 has said is wrong.
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| 19 JUDGE KENNEDY: It appears that this may 20 be an omission and I guess if it is an omission why 21 wouldn't they need a regulatory basis --
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| 22 MR. TURK: I don't --
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| 23JUDGE KENNEDY: -- for what needs to be in 24 the environmental report, the petitioner?
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 161MR. TURK: I'm sorry, I don't understand.
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| 1JUDGE KENNEDY: Well it sounds to me like 2 this is an omission from the environmental report.
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| 3 MR. TURK: Okay.
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| 4JUDGE KENNEDY: So why wouldn't they need 5 a regulatory basis for why it should be in the 6 environmental report? "They" being the petitioner.
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| 7MR. TURK: As I understand the 8 environmental regulations some things are specifically 9 called out that they must be evaluated or things that 10 they must cite the GEIS for or that they can rely on 11 the GEIS for.
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| 12Alternatives are not one of them. The 13 regulation only says that they must consider 14 reasonable alternatives, but identifying cooling 15 towers or alternate cooling systems as one of things 16 that has to be considered.
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| 17 JUDGE KENNEDY: I guess it would seem to 18 me that those were reasonable alternatives to the 19 proposed action and they are also to look at 20 reasonable alternatives to mitigate adverse 21 consequences. Did I misread that?
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| 22MR. TURK: No, but then the question is 23what is a reasonable alternative. An applicant could 24 come to you and say it's not reasonable to have us 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 162 consider a multi-hundred million dollar construction 1 project as an alternative to running our current 2 system when the impacts are small.
| |
| 3 So the applicant here I'm sure would say 4 it's not a reasonable alternative.
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| 5JUDGE KENNEDY: So what you are proposing 6 is a reasonable alternative would be the proposed 7 action with a modification to the plant?
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| 8MR. TURK: You could consider 9 modifications to the plant as an alternative to 10 granting license renewal as requested without those 11 modifications.
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| 12JUDGE KENNEDY: All right. That's what I 13 was asking, okay.
| |
| 14MR. TURK: Yes. But is there a 15 requirement that alternate cooling systems be 16 addressed in an environmental report and the answer is 17 no.18JUDGE HAWKENS: So, Mr. Turk, what 19 regulation would you point to that requires this 20 discussion in the EIS to make it an admissible 21 contention?
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| 22MR. TURK: The general regulation that 23 would have this, I believe it's 5195(c) or 5171(d), 24 which would have the staff consider the environmental 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 163 impacts of the operation plus reasonable alternatives 1 thereto.2 JUDGE HAWKENS: Okay.
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| 3MR. TURK: Nothing more specific than 4 that.5 JUDGE HAWKENS: It's unusual to have the 6 NRC staff defending the admissibility of a contention 7but we thank you for your comments. Do you have 8 anything else?
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| 9 MR. TURK: No, Your Honor.
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| 10MR. BESSETTE: Yes, Your Honor. We would 11 just like one point of clarification. Mr. Turk said 12 that the applicant in the discussion of cooling towers 13 didn't consider mitigation and we would like to 14 clarify, and that's noted in our pleadings, we 15 thoroughly considered mitigation for the cooling 16 system impacts through the whole discussion of the 17 consent order and the consent argument.
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| 18 So our argument is not that mitigation 19 discussion is not required, is that we have thoroughly 20 considered mitigation and those mitigation results 21 have small impacts and, therefore, there is no 22 ancillary or extra requirement to consider another 23completely alternate mitigation of cooling towers. We 24 just wanted to clarify that point.
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 164JUDGE HAWKENS: To the extent we would 1 admit, to the extent the NRC staff argues that this 2 should be admitted as a contention of omission you 3 would disagree with that and say it was, in fact, 4 discussed?
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| 5MR. BESSETTE: Yes, Your Honor, 6 respectfully we disagree.
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| 7MR. TURK: And I would say, Your Honor, if 8 I may, that I don't disagree. Sorry, Your Honor. I 9don't disagree with what Mr. Bessette just said. I do 10 recognize that the environmental report does discuss 11 mitigation other than cooling towers.
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| 12JUDGE HAWKENS: Okay. Ms. Curran, when 13you are ready we will hear rebuttal first. Let me 14 confirm how much time she has.
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| 15 (Off microphone comment) 16JUDGE HAWKENS: Thirty-six minutes, 30 17 seconds.18 MS. CURRAN: Judge --
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| 19JUDGE HAWKENS: Don't take into account 20 either that when you are done we will be breaking for 21 lunch, so don't let that hurry you up.
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| 22MS. CURRAN: I want to make a request. I 23would really appreciate this. I have very little left 24 to say and I would really appreciate the opportunity 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 165to break for lunch now so that I can talk to my 1 colleagues and prepare, or at the very least I need a 2 5-minute break, please.
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| 3JUDGE HAWKENS: If there is no objections 4 from anybody we will, consistent with Ms. Curran's 5 suggestion, take a break for lunch.
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| 6 MS. CURRAN: Thank you very much.
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| 7 JUDGE HAWKENS: And it's 12:15, would an 8 hour and 15 minutes be adequate time?
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| 9 MS. CURRAN: That's great.
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| 10 JUDGE HAWKENS: We're in reasonably good 11 time we could make an hour and a half if people would 12 prefer.13 MS. CURRAN: An hour and 15 is fine.
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| 14 JUDGE HAWKENS: And hour and 15 minutes, 15all right. An hour and 15 minutes, we'll be back here 16 at 12:30, excuse me 1:30.
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| 17 (Whereupon, the above-entitled matter went 18 off the record at 12:15 P.m. and resumed at 1:44 p.m.)
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| 19 JUDGE HAWKENS: When we broke for lunch, 20 I believe Ms. Curran had 36 minutes and 30 seconds for 21rebuttal. You represented you probably would not need 22 nearly all of that time.
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| 23MS. CURRAN: Well I better talk fast, I 24 think and get that last 30 seconds in.
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 166 JUDGE HAWKENS: You may proceed.
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| 1 MS. CURRAN: I wanted to start by giving 2 the information that Judge Kennedy asked for about our 3references to the environmental report and you were 4particularly interested in Chapter 6. What I found 5 was references to Chapter 3 and Chapter 4 and Chapter 6 3 has a lot of it. And I will tell you, if you like 7 the page numbers.
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| 8 The first place Chapter 3 is referred to 9is on page 17 under the heading Underestimated 10 Environmental Impacts on the Biscayne Bay Aquifer.
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| 11 And we refer to the environmental report at D-91, 12 where FP&L asserts that the hyper-saline plume from 13 the CCS extends one and a half miles from the Turkey 14Point site. And we dispute that and say, in reality, 15 it is more than two miles westward and is currently 16 influencing movement of the saline water interface 17 within the Biscayne Aquifer more than four miles 18inland. And that goes to something that I think --
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| 19oh, I'm sorry. I'm tire and all I can think of is 20 Marty -- O'Neill -- Mr. O'Neill said that the hyper-21 saline plume is nowhere near the groundwater supply.
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| 22 This is an issue and well, whether it's 23 physically -- whether the edge of it is physically on 24 top of the groundwater supply, what we're saying is 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 167 that it's pushing westward and is pushing the edge of 1the groundwater drinking supply further westward. It 2 is basically moving things underground so that it's --
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| 3 there's a danger, of course, bleeding of the plume 4 into the fresh water but also kind of pushing on the 5 fresh water so that it no longer is where it was.
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| 6 So this is a factual dispute we've raised 7 and it seemed to us that there was a significant 8 amount of testifying in FP&L's oral argument that this 9 is the way it is but in fact, we present FP&L 10 statements, our expert statements showing a dispute.
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| 11 At this stage of the proceeding, that is our 12obligation. We don't have to prove our case on the 13 merits. That should come later.
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| 14 So -- I'm sorry. Go ahead.
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| 15JUDGE KENNEDY: I was going to say I think 16 FP&L used the word drinking water and you're using the 17 word groundwater.
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| 18MS. CURRAN: I'm sorry. I should have 19 said the drinking water supply, the G2 drinking water 20 supply is being impacted by the hyper-saline plume.
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| 21 JUDGE KENNEDY: Okay.
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| 22 MS. CURRAN: I think I misspoke.
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| 23 JUDGE KENNEDY: Okay.
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| 24MS. CURRAN: The next place that we 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 168 mention the environmental report is on page 18 under 1 the header Underestimated Environmental Impacts on 2Biscayne Bay. We represent -- oh, but actually that's 3not Chapter 3. That's Chapter 4, where the FP&L said 4 that the groundwater pathway is having no discernable 5influence on Biscayne Bay. And we have a number of 6 statements there where we dispute that but that's 7 Chapter 4.
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| 8 On page 19 under header Underestimated 9 Impacts on the American Crocodile Habitat, we refer to 10 page 3-195, where FP&L reported on the decline in the 11 number of successful nests between 2013 to 2014 and 122015. So the year 2013 to 2014 compared with the year 132015 there was a decline from 25 nests. The tagged 14 hatchlings declined from 429 in 2013 to 409 in 2014, 15 to 119 in 2015. And then they say by 2016, FP&L had 16 located only eight successful nests and 127 17 hatchlings.
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| 18 Again, I just want to mention as we're 19 going through these that Mr. O'Neill did quite of bit, 20 I thought, testifying on the issue of the crocodiles.
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| 21Are they okay? Are they not okay? But again, what we 22 need to do here is to create -- to show enough 23evidence that there is a dispute. And I think that's 24 what we've done.
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 169 And a newspaper article, which is the main 1 thing that FP&L relied on to support its assertion 2 that we are complaining about a tempest in a teapot is 3 not the equivalent of an environmental study.
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| 4 The next place where we represent -- where 5 we reference the Chapter 3 of the ER is on page 20 6 under the heading The Environmental Report Violates 7 NEPA by Overstating the Beneficial Effects of Existing 8 and Proposed Mitigating Measures and Ignoring Their 9Negative Effects. I'm sorry, I misspoke. That is --
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| 10 delete that.
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| 11 This actually is on page 20 we mention 12 Figure 3.7-4, which I think represents something about 13 critical seagrass habitat with the American crocodile.
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| 14 And we raised the concern that that habitat would be 15 destroyed.
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| 16 JUDGE KENNEDY: When you say would be as 17opposed to is, I mean this is in the effected 18 environment.
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| 19MS. CURRAN: Yes, well it's really -- it's 20 in very critical condition and we're concerned that it 21 would be pushed over the brink and not be able to be 22 restored --
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| 23 JUDGE KENNEDY: Okay.
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| 24MS. CURRAN: -- unless something 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 170 significant -- some significant change was made to the 1operation of the CCS. It's basically pushing it over 2 the edge to continue operating the CCS.
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| 3JUDGE KENNEDY: I guess where I keep 4 getting caught in this is the applicant appears to set 5the stage in the Affected Environment Section. And 6 then in Chapter 4, it does an assessment moving 7forward. And I'm really struggling with trying to see 8 where the petition is relative to that perspective of 9 we're here and this is our perception of -- our 10 analysis of what the condition is of the affected 11environment. And then they move forward to say okay, 12 given this and what's going on, we think the next 20 13 years will be here.
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| 14And it may be me. I'm getting confused 15 between your petition and how you're pleading the 16 state of the environment either going forward or today 17 and which the petitioner is really challenging.
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| 18MS. CURRAN: Well I think the petition is 19 challenging the characterization of the condition 20which I guess is really the baseline condition. If 21 they represent it to be better than it is, then 22 continuing -- this is a situation where there's not a 23proposed change to the operation. It's the same. So 24 maybe the ultimate result of that is that the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 171 description of the existing conditions becomes more 1 important because they're saying we're not changing 2anything. Things are just going to go on the way they 3 are and this is how they are.
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| 4 JUDGE KENNEDY: But part of what they're 5 not changing is the fact that they're going to 6 continue to implement the mitigation measures that 7 they're talking about.
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| 8 MS. CURRAN: Right.
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| 9JUDGE KENNEDY: So I mean I guess I see a 10 picture being painted in Chapter 3 that things have 11 taken a turn for the better. They're not where 12 they're supposed to be but they've turned a corner and 13 they're going to continue to perform certain actions.
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| 14 And I know you disagree with some of the 15 actions and I'm hearing you may actually disagree with 16 the actual condition of the environment. Maybe it's 17not turning the corner. So they've got some specific 18 analysis within Chapter 3 that sort of paints a 19 picture which, I guess as I reread that, it kind of 20 looked a little more promising than I had expected to 21 find.22MS. CURRAN: Yes, and we are contesting 23that. We are asserting that what FP&L presents as the 24 existing situation, the existing measures that they 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 172 are in the course of implementing are not adequate.
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| 1 And if FP&L continues in the same vein, which as they 2 are proposing, that the adverse environmental effects 3 of the CCS will continue, will not be abated.
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| 4 And while we're talking about that, I also 5 wanted to address what I see as the difference between 6 on this issue of the presumption that permitees will 7comply with their permit. I think it's reasonable to 8 say that if somebody is told to do X, they are going 9to do X. They are not going to be scofflaws. That's 10reasonable. But it begs the question is X adequate 11 and that's what we're challenging.
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| 12 We're not saying FP&L is going to move off 13 and not pump the water or not pump it in, not pump it 14out. We're saying when you look at the volume of the 15 hyper-saline plume and you look at the volume of water 16 they're proposing to pump out of it, it's minuscule in 17 relation to the plume and, therefore, it's not going 18to be effective. And that when you look at the volume 19 of water, that FP&L, under the -- I don't remember if 20 it's the consent order or the consent agreement is 21 going to pump into the CCS that there is a significant 22 risk that that will depress the hyper-saline plume and 23 drive it further into the groundwater.
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| 24 So we're not questioning whether FP&L is 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 173going to do it. We're questioning whether these 1 measures ultimately will be effective.
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| 2 And if you look at the footnote I read 3 earlier in 10 CFR 51.71(d), footnote 3, that talks 4 about the independent obligation of the agency to 5evaluate. What is the situation? What are the 6proposed measures? What's current? What's proposed?
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| 7 Are these things taken together going to address the 8 problem, mitigate the environmental impact?
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| 9JUDGE KENNEDY: So if I revisit -- you've 10 given me at least three references to Chapter 3 and so 11 if I revisit that, I should take away from that -- I 12 could take away from that that you've identified some 13 challenges to the current affected environment 14 condition and now you've raised an additional concern 15 that the consent orders and mitigation plans that have 16 come out of these consent orders are not effective?
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| 17MS. CURRAN: Right. And you know they 18exist in current time but they go into the future. So 19 these are things that -- as a matter of fact, we were 20 looking at one of the orders and it says let's do this 21 for a couple of years and see how it works.
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| 22 So in a way, this is an experiment that 23 everyone is making to see if it's going to work.
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| 24JUDGE KENNEDY: FP&L testified this 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 174 morning that the saline content in the canal has been 1 coming down.
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| 2MS. CURRAN: Well it was pretty recent 3data. And I think, as I recall -- but again, this is 4testimony by Mr. O'Neill. And what we identified was 5 we identified places in the environmental report where 6 it talks about the salt level. We identified expert 7reports that talked about the salt level. And we 8 described the problems that our experts see with this.
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| 9 So at some point, we have to get to a 10 merits hearing and put all this information together.
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| 11JUDGE KENNEDY: I don't want to belabor it 12 too much but are you suggesting what Mr. O'Neill said 13 this morning isn't in the environmental report now?
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| 14 MS. CURRAN: I don't -- I don't --
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| 15 JUDGE KENNEDY: You don't think so?
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| 16MS. CURRAN: I don't know for sure but it 17 seemed to me that he was talking about some very 18 recent -- this is my recollection of what he said.
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| 19JUDGE KENNEDY: Okay. I do -- sure. All 20 right.21MS. CURRAN: And you know they -- so 22 something like this is complicated. And if you --23 supposing we were just outside where it was raining so 24 hard and I'm sure that right now, after this 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 175 rainstorm, the CCS is less salty for the next hour or 1so. I'm just guessing. I'm testifying here but these 2 are complex issues that you can't -- it's not for the 3 Licensing Board to make a merits determination here.
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| 4 And the salinity of the CCS is an ongoing 5issue. We know that the seagrass beds and the CCS are 6 just virtually gone and that is because and our 7 experts say it's too saline. So if it gets a little 8 better for a while, it doesn't address the long-term 9 issue, which is if we allow FP&L to operate the CCS 10 for an additional 20 years after the first 60 years, 11 what will the ultimate result be?
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| 12 I think the NRC staff made a comment about 13the L 31 Canal. And the question is whether in the 14 past FP&L did take water out of the L 31 Canal. And 15 it was a temporary order and I think the staff made 16 the argument you haven't shown that FP&L is going to 17 continue to do this.
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| 18 In our reply, we -- I just wanted to point 19 your attention to -- okay, we say on page 18 and 19 of 20 our reply, the staff argues that SACE has no factual 21basis to claim that FP&L may use surface water from 22 the L 31 Canal to reduce salinity levels in the CCS 23but the staff does not deny that FP&L has used L 31 24 Canal water in the past for this very purpose and the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 176 environmental report does not rule it out in the 1 future but, rather, keeps the option open.
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| 2 Then we quote the environmental report at 3 page 3-195, where they basically say it is anticipated 4that other wells will be sufficient. But that's 5 different from saying we're never going to take water 6 out of the L 31 Canal and we raised that because it 7 creates issues of conflict with other uses of the L 31 8 Canal for restoring the Everglades.
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| 9And then finally, one more issue. In his 10 argument, Mr. Turk said that he doesn't think that 11 consideration of the alternative of mechanical-draft 12towers is required by the regulations. And 13technically, that's true. The regulations don't 14mention mechanical-draft cooling towers. They talk 15 about reasonable alternatives.
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| 16 And you'll see that or at least the word 17 alternatives in 50.53(c)(2) and you will also see it 18 in 51.45, which also has general requirements for 19 environmental reports.
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| 20 So we would submit that there is a 21 requirement to consider alternatives. It appears in 22 these two regulations.
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| 23 JUDGE KENNEDY: I want to go back to the 24 L 31 Canal.
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 177 MS. CURRAN: Okay.
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| 1JUDGE KENNEDY: Can FP&L just start 2 drawing water from the canal without the State of 3 Florida being involved?
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| 4MS. CURRAN: I think the answer is no but 5 it begs the question as to whether that could -- you 6 know it's reasonably foreseeable if that was done in 7 the past, it was done as an emergency measure.
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| 8 So as long as the CCS continues to be 9 used, our observation is that there's these continual 10problems. There is kind of a proliferation of issues 11 that go on and we talk about that in our contention 12and in our reply. It's just over and over again. It 13 varies from time to time but it's always robbing Peter 14 to pay Paul because there's -- because if you are 15 trying to -- if you're trying to deal with these water 16 contamination issues by moving water around, then it 17gets difficult. It gets complicated. It gets kind of 18 messy. And this is one reason why we are urging the 19 admission of a contention that would allow the 20 consideration of whether another alternative could be 21 considered.
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| 22 The CCS could be looked at well, this is 23 one alternative for cooling this plant. And another 24 alternative is mechanical-draft cooling towers. One 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 178 of them happens to be in use a long time. It's 1 probably marginally less expensive because they've 2 already built it but it's really problematic and it 3may cause significant adverse impacts. That's our 4concern. The other one is more expensive but it would 5 virtually or maybe completely eliminate the 6environmental impacts with the first one. That's a 7 reasonable array of alternatives that ought to be 8 looked at.
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| 9 You know originally the impact that FP&L 10 was told to avoid was direct discharges into Biscayne 11Bay. That was the original plan and then they came up 12with the CCS. Well here we are in 2018 and I think 13 this is one of the benefits of periodic license 14 renewal and environmental impact statement is take 15 another look, time to reexamine the effectiveness of 16 this particular alternative and consider other 17 alternatives of which you're aware.
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| 18 And somebody said well, they rejected the 19 mechanical-draft cooling towers in 1971 but it doesn't 20 mean that you shouldn't have another look now that the 21 one you picked didn't work so well, plus it was chosen 22 for Turkey Point 6 and 7. So that's a good sign.
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| 23 We just really -- you know ultimately the 24 reason SACE is here is because we want FP&L to 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 179implement these mechanical-draft cooling towers. SACE 1is not opposing the continued operation of Turkey 2 Point 3 and 4 per se, but we want it to be done in a 3way that protects the fragile ecosystem, and the 4 groundwater, the drinking water, and Biscayne Bay.
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| 5 And the mechanical-draft cooling towers appear to us 6 to be the answer to that problem.
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| 7 And that's all I have.
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| 8JUDGE KENNEDY: So did the CCS ever work?
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| 9 We're almost 35 years out.
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| 10 MS. CURRAN: Right.
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| 11JUDGE KENNEDY: I guess you had made a 12 comment about some folks think that this is a 13 temporary problem caused by environmental -- what's 14 the right word -- climate conditions, you know the dry 15 summers, the lack of -- and the higher temperatures.
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| 16MS. CURRAN: Well why -- I guess -- and 17 I'm not a scientist but I ask myself why do you have 18 a plume of saline water that is that big under the 19 ground that has traveled that far, unless this has 20been a problem for some time. And I think it's 21 getting worse and it's partly because there has been 22at least two power uprates at Turkey Point. That 23makes the cooling canal system hotter. So you know 24 that's part of the cumulative impact.
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 180 Okay and I want to -- do I have any time 1 left that I saved? Do I have 30 seconds?
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| 2MS. MAYHALL: We're at like 13 minutes 3 right now.
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| 4MS. CURRAN: Okay. Well, if something 5 else comes up --
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| 6 JUDGE HAWKENS: You need not take all of 7 them, though.
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| 8MS. CURRAN: Well I promise I won't. No, 9 I just I'll stop now but in case something else comes 10 up, I have a few minutes left. Thank you.
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| 11 JUDGE HAWKENS: All right, thank you.
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| 12 We'll now hear from joint petitioners.
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| 13 They have a total of 50 minutes to make their 14presentation. How much time would you like to save 15 for rebuttal?
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| 16 MR. AYRES: Ten minutes.
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| 17 JUDGE HAWKENS: Okay.
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| 18MR. AYRES: Your Honor, my name is Richard 19 Ayres. I represent Friends of the Earth and next to 20 me is Professor Ken Rumelt of Vermont Law School, who 21 also does.
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| 22 We're prepared to answer your questions 23 that you sent to us, as well as with some things that 24 we would like to talk about.
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 181 We think that the best way to handle this 1 would be for us to function as kind of a panel because 2 we've each prepared on different ones of the 3 contentions.
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| 4 So if it's all right with you --
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| 5JUDGE HAWKENS: That's fine. We have 6 precedent for doing it that way.
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| 7MR. AYRES: Okay, good. Good. Thank you.
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| 8 I think the place that I'd want to start 9 would be on the fundamental question that you face 10 here, which is what are the -- what is the applicable 11 law on the question of admissibility. You know your 12 decision here is which of these contentions to admit.
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| 13 And I think there's been a lot of 14 briefing, some of it, essentially pressing a much 15 higher bar for admissibility than is in your law, in 16your precedents. So I want to come back and start 17 there and point out a couple of things and then we can 18 go from there to other topics.
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| 19 First of all, the Commission has said in 20 the past that the cornerstone of the process is that 21it be open, understandable, and accessible to all. So 22 we think you begin with a fundamental commitment to 23 hearing and letting people describe contentions that 24 they have about proposed changes.
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 182 What we've heard is -- in response is the 1 phrase strict by design and that comes from one 2 decision of the I think it was a Board decision --
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| 3JUDGE HAWKENS: No, it was a Commission 4 decision.5MR. AYRES: It was a Commission decision.
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| 6 Okay.7 But if you look at the cases that address 8this issue, what you find is that strict by design 9doesn't mean we reject 90 percent. Indeed, what it's 10 been used for and I think what the Commission meant 11 for it to be used for is to reject admissibility for 12 really poorly thought out or not thought out attempts 13 to get a process going and see what will happen.
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| 14 And I would submit that this case clearly 15falls on the far end away from that. We have 16 submitted very detailed contentions, significant 17briefing, and a lot of expert affidavits as well. And 18 we've tried, as one of the cases instruct us, to focus 19 on the key issues that we want to raise and discuss 20 and make sure that they are ones that can be handled 21 in this process.
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| 22 So I think underlying all this process 23 that you are undertaking, you need to begin with the 24 idea that you know if the contentions are, quote, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 183 sufficient to prompt a reasonable mind to inquire 1 further, that's from the Commission Rules of Practice, 2 then they should be admitted and hearings should be 3 held to explore them.
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| 4 I particularly emphasize that in light of 5 what Ms. Curran was referring to earlier about quite 6 a bit of testifying that seemed to be going on in the 7morning session. And I think the Board should hear 8that testimony. It should hear from real experts, not 9lawyers quoting experts. But this is not the 10proceeding for that. This is the proceeding to decide 11whether there is enough here to go forward. And we 12 submit that we've met that standard, certainly for all 13 five of our contentions, and that we believe it would 14 be very much worthwhile to go forward to explore them 15 in factual detail because we think there are important 16 issues that should be addressed here.
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| 17 So that's kind of an opening underlying 18factor. And with that, I mean I think the question of 19ours for you is would you like us to go through the 20questions that you've raised? Would you like us to go 21through the contentions as we've outlined them? What 22 would please the Board on that?
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| 23JUDGE HAWKENS: Do you have a preference?
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| 24 I'm content to let him decide or to go --
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 184JUDGE ABREU: Whatever you think would 1 clarify any points that haven't been fully clarified 2 up to now. We are familiar with the brief.
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| 3MR. AYRES: So you can tell us if you have 4 already done that.
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| 5 All right well, let me start with the 6 cooling tower alternatives, since that was one of our 7 major contentions and it's one which the staff 8 apparently doesn't object to, although it was a little 9 hard to tell this morning.
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| 10 You had asked a question about relevance 11to mitigation. You know is this -- are cooling towers 12relevant to mitigation? Do they meet a threshold that 13 would make them meet the legal obligation or the 14 applicant to analyze?
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| 15 I want to respond on the relevant to 16mitigation point first. That appears, that phrase 17appears in 10 CFR 51.45(c). It says that 18 environmental reports prepared at the license renewal 19 stage do not need to discuss the economic or technical 20 benefits and costs of the proposed action or 21alternatives, except if the cost and benefits are 22 relevant to mitigation.
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| 23 So the phrase is applicable to the 24 question whether economic and technical analysis 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 185 should be considered in the ER for a subsequent 1 renewal, not to whether mitigation should be 2 considered.
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| 3 In other words, we think that that phrase 4doesn't really apply here. What is the crucial 5 standard is is the alternative a reasonable 6 alternative that addresses the environmental impacts 7 of the plant and that obligation flows from NEPA and 8 from 51.45 -- and the rest of 51.45, which says that 9 the staff and the ER must consider alternatives.
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| 10 We pointed to two authorities on the 11 authorities point -- I'm sorry -- on the alternatives 12point. One was 10 CFR 51.45(c), which says the ER 13 must contain a consideration of alternatives for 14 reducing or avoiding adverse environmental effects, 15 and 10 CFR 51.53(c)(3), which says the ER must include 16 an analysis that considers and balances alternatives 17 available for reducing or avoiding adverse 18 environmental effects.
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| 19 The applicants' attempt to distinguish 20 between mitigation measures and project alternatives 21 has no basis in NEPA, CEQ regulations, NRC's Part 51 22 regulations, or the case law applying these 23 authorities. 51.45(c) uses the word alternatives in 24both sentences. It uses alternatives to the proposed 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 186 action and it uses alternatives available for reducing 1or avoiding adverse environmental effects. So this 2 attempt to distinguish between alternatives and 3 mitigation is a lot of word chopping and doesn't have 4 any basis in the regulations or in NEPA.
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| 5 Our position is simple and supported by 6NEPA, CEQ regulations, and the NRC's regulations. The 7 ER is required to analyze alternatives that would 8 reduce the environmental impacts of continuing to 9operate the plant for another 20 years. Replacing the 10 canals with cooling towers would reduce a variety of 11 adverse environmental impacts over that period and, 12therefore, they should have been analyzed. It's a 13 very simple syllogism, I think.
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| 14 Petitioners -- this is an omission and 15 petitioners' obligation in the case of an omission is 16 to address the issue and point it out so that the 17applicant can then deal with it. The applicant is the 18 one who bears the burden for actually doing the 19 analysis.20 The applicants' own actions, as well as a 21 number of others, have shown that cooling towers are 22reasonable. So we think that that is essentially 23established at this point. The only serious argument 24 against it is the recovery well system, which is now 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 187 in the experimental stage, and I believe at one point 1 those words were used, that that will eliminate most 2 of the environmental impacts from the CCS.
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| 3 As I look at this, it seems to me what the 4 applicant is saying is buy this pig in the poke. It 5might work. We're trying it. We're experimenting 6with it. And we have this consent decree that says go 7ahead and experiment and if it doesn't work in five 8years, we'll try something else. So one side, you 9 have that alternative.
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| 10 On the other, you have a reasonable known 11 alternative that essentially eliminates 100 percent of 12 the impacts that are there with the canal system.
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| 13 Obviously, we'd like the applicant to choose the 14 cooling tower alternative but at this stage, the point 15 is did they have an obligation to examine that as part 16of their environmental impact analysis. And we think 17 the answer is clearly yes.
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| 18So are there questions that we need to 19answer on that? I'm sure we're getting into 20 repetition here and I'll try to spare you as much of 21 that as possible.
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| 22 Judge Kennedy.
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| 23JUDGE KENNEDY:
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| I was just -- I mean I 24 sound like a -- on one hand, again I'm stuck on 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 188Chapter 3, things are getting better. There's a 1 mitigation plan in place. One could argue why would 2 you need an alternative to something that is working.
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| 3 And I don't disagree with you; it could stop working 4 tomorrow.5 MR. AYRES: Right.
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| 6JUDGE KENNEDY: But we have no -- nothing 7 that says that's a foreseeable outcome.
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| 8MR. AYRES: No, I think -- I think our 9 view and the view of the state and county, for that 10 matter, is that the cooling -- the canal system with 11the wells and all these measures might work. I don't 12 think you would find much of anybody, except maybe 13 FP&L who says it will work.
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| 14 And given that that's the circumstance, 15 and analysis of an alternative that we pretty well 16 know will work, although obviously costs some money, 17 it seems like a reasonable thing to do.
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| 18 JUDGE KENNEDY: Is there anything in the 19 petition that supports the might work, other than an 20 assertion that it might work? I mean do you have an 21 expert, expert opinion, a report to point to?
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| 22 MR. AYRES: Yes, we have.
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| 23MR. RUMELT: Well the way -- I want to go 24 back to the issue of groundwater contamination because 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 189-- and I'm getting into Contention 2 here, where we 1focus on the cumulative impacts on the continued 2 operation of the plant under conditions where the 3 temperature is going to be significantly hotter and 4 the sea levels are going to be significantly higher.
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| 5 In that cumulative impacts analysis, which is Section 6 4.12.4.2, the applicant relies on this presumption of 7 regulatory compliance.
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| 8 And the point that we do rely on is that 9 that presumption presumes more than the consent 10agreement does. It goes farther. You're presuming 11 compliance but the consent agreement isn't assuming 12 compliance. It's presuming that we're going to take 13 a shot at it and if it doesn't work, we'll try 14something new. And this could end up being decades of 15 whack-a-mole, where you're trying to try this 16 solution, try this solution, try this solution.
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| 17 So we think as a matter of law to presume 18 that something is going to work, even when that 19 something doesn't make that same presumption is an 20 error.21 Now the other issue with groundwater --
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| 22 cumulative impacts on groundwater, is that there is no 23 indication that this plant is taking into account 1) 24 the subsequent license renewal time frame; and 2) the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 190 increases in temperature in sea level rise that are 1 impacting both the rate and amount of 2 evapotranspiration. So if more water is leaving the 3 canal system, it will necessarily require additional 4 water inputs.
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| 5 And then in addition, as far as the hyper-6 saline plume goes, the NRC's EIS for Unit 6 and 7 7 recognizes this, as sea levels rise, it is going to 8 shift the groundwater, the groundwater-saline water 9 interface to the west.
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| 10And the problem is, as everybody in the 11 room is far more aware than I am living up north, 12water is a huge issue in Florida. It is an incredibly 13important resource. And as, again, the NRC has 14 recognized, we can have an increase in scarcity of 15 that resource and competition.
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| 16So if we don't account for those things 17 and if the consent agreement doesn't account for those 18 things, and if the consent agreement doesn't presume 19 as much as this NRC gui dance says the staff and 20 applicant can, then that's not going to be sufficient.
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| 21JUDGE KENNEDY: Okay, I still don't 22 understand why this isn't an issue really with the 23 State of Florida, who seems to think this is a plan to 24 go forward and why it should be appropriate to be in 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 191 front of us or the agency.
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| 1MR. AYRES: I think the answer is NEPA.
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| 2 NEPA, as Diane said earlier, is kind of an overriding 3statute. And the regulation here, the actual measures 4 included in the consent agreement are state and local 5 responsibility. But the question under NEPA is what 6 alternatives are there to reduce the environmental 7 impact of the continued operation of the plant. And 8 one, obviously, is the CCS, if the mitigation measures 9 work. The other is the one we've mentioned.
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| 10JUDGE KENNEDY: Yes, and I think that's --
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| 11 I mean I hear you and I don't think the staff is going 12 to disagree with you, when it gets to their 13 environmental statement.
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| 14 The path forward, at this point, is trying 15 to deal with the contents of the environmental report 16 and the obligations on FP&L at this stage and how --
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| 17 I mean I think I'm getting better clarity on how it 18 all works at the NEPA level and maybe the regulations 19 aren't clean enough on how this all works.
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| 20 I mean I just keep going back and I'm kind 21of stuck with you know we're sitting here trying to 22 admit contentions against an environmental report that 23 I don't think too many people disagree may not have to 24 contain, I mean other than voluntarily, some of the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 192issues that you're addressing here in terms of 1 alternatives or some of these more overarching water 2 issues.3MR. AYRES: Well one of the key objectives 4of NEPA, maybe even the most important, is 5information. It was passed to tell the public what 6 was the implication of various kinds of projects and 7 what commitments were being made of the environment in 8 approving those projects.
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| 9 This is an example, I think, where the job 10 of the state and local authorities who run the permits 11 and make the consent agreements is a different job 12 from the job of the NEPA preparer, which is to explain 13 to the public what the options are here.
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| 14 And I guess our argument is the option of 15 the cooling tower seems so much more certain, and we 16 know it can be done because it's been done repeatedly, 17 that it is at least worth a full development and 18 analysis by the applicant and the staff.
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| 19 What happens after that, you know you 20 prepare this kind of information, it goes out into the 21world. And I think one of the other sort of 22fundamental things underlying NEPA is if you inform 23 people, good policy will result from that.
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| 24JUDGE KENNEDY: I mean you know I hear 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 193you. I mean I think at the end of the day, it sounds 1like we all get to the right place. But sitting from 2 where we're sitting, looking at a document that's 3 prepared in accordance with current agency 4 regulations, which doesn't really address where you're 5trying to get to, I keep -- you know we're back to 6 gosh, maybe you should have asked for a waiver and put 7 this in front of everybody. That ship sailed this 8 morning.9It's just we're kind of stuck here. I 10 mean I think if we were -- to me because it sounds 11 like this is an omission and we go back to the 12discussions we had with the staff this morning. I 13 mean I hear it clearly as an omission and the question 14 is why should it be in there, other than it's probably 15 a good idea and will complete the record.
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| 16MR. AYRES: Well, I referred to two 17 regulations.
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| 18 JUDGE KENNEDY: Right.
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| 19 MR. AYRES: And that's most directly why 20 it should be there, because the NRC's regulations say 21alternatives have to be analyzed. And of course 22 behind that is NEPA and the regulations that were 23 written under NEPA that say the same thing.
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| 24So I don't think we're reaching. I think 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 194 this is what the law requires.
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| 1JUDGE KENNEDY: Yes, that's a fair 2comment. To me, it's always been interpreted those 3are alternatives to the proposed action. And we heard 4 from the staff this morning that you could have 5 considered the proposed action in accordance with the 6cooling towers instead of the CCS. And I guess I 7hadn't quite ever thought of it that way. It seems 8 like a --9MR. AYRES: Yes, if you look at 51.45(c), 10what you'll see is both that are there. It says 11 alternatives to the action and alternatives to reduce 12 the environmental impact.
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| 13 MR. RUMELT: If I can make another point 14on the issue you're raising, and that's that if we 15 don't raise the contentions now, we're barred.
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| 16 JUDGE KENNEDY: But you could have asked 17 for a waiver.
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| 18 MR. RUMELT: This is another avenue.
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| 19 JUDGE KENNEDY: I know. I don't want to 20-- yes.21 MR. RUMELT: Right.
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| 22JUDGE KENNEDY: I get that whole problem.
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| 23MR. RUMELT: Well, I can continue speaking 24 to cumulative impacts. I do want to address I think 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 195 an issue that the Board has asked but there is I think 1 a disagreement between petitioners and the applicants, 2 and the NRC staff, and that is what is the applicants' 3 legal requirement to address climate-related issues in 4 the environmental report.
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| 5 And I think there's two ways that it comes 6in. One is, as a cumulative impact. I think even the 7 Board's questions recognize that these are cumulative 8impacts on affected resources. And I'm going to quote 9 from the environmental report at 4-62 and it says, 10looking at cumulative impacts analysis, quote -- or 11 I'm sorry, must address, quote, the cumulative 12 significance of other factors affecting the resource.
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| 13 So here, among the other factors that should be 14 considered, particularly at the FP&L site, is this 15 increase in temperature and increase in sea levels 16 that I don't think anybody disputes is reasonably 17foreseeable. The staff has recognized that. FP&L has 18recognized that in other context. And through 19 cumulative impacts analysis, they can address climate-20 related issues.
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| 21 I think the other area, and this moves 22 over to Contention 4, where there's a legal 23 requirement is that when you're describing the 24 affected environment, here we're talking about an 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 196 environment that is going to exist or that the plant 1 is going to be operating in an environment that 2doesn't exist today.
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| It's going to be related but 3 it's going to be significantly different during the 4subsequent license renewal period. This is many years 5 from now and we are talking about operations at a 6 time, again, where there is no reasonable dispute over 7 there being higher temperatures and higher sea levels.
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| 8And if you don't look at either the 9 cumulative impacts associated with the climate change 10on the affected resources or describe the affected 11 environment, then you're not taking a hard look at 12 what the impacts of this plant are going to be during 13the subsequent license renewal period. You're looking 14 at a fiction and NEPA certainly doesn't allow that.
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| 15 So and again, whether the Board agrees 16 that these requirements address the applicants' legal 17 requirements for the environmental report, we still 18 need to preserve that argument and, again, the waiver 19issue but we want to preserve that argument for the 20 next round, when there's an environmental impact 21 statement, a draft to deal with.
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| 22 And the staff has rung the bell on the 23change issues in its Appendix I for Units 6 and 7. It 24 has said and acknowledged it will be a new environment 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 197during the subsequent relicensing. There will be air 1 surface temperature changes, sea levels will rise and 2push the fresh water interface inland, and further 3stress that resource.
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| There's greater risks of 4 extreme flooding and increased evaporation in the 5cooling tower. And all these things are likely the 6 most significant issues facing the future of this 7 plant from 2030 -- you know from the early 2030s to 8the early 2050s. And to ignore those is really 9 ignoring the call of NEPA and, frankly, the 10 regulations applying NEPA for the NRC.
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| 11 So --12MR. AYRES: I think I'd just like to 13 underline that by strongly recommending, if you 14 haven't already, that you read Dr. Kopp's affidavit 15 that we included with our petition which is the 16 predictions, in a very subtle way, of one of the 17 world's great sea level rise experts. And again, it 18 would seem to us, at least, certainly to have provided 19 enough information. I mean we want to take the next 20step and learn more about it, I think. I think 21 testimony in that respect would be very, very helpful 22 to the Board.
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| 23 JUDGE KENNEDY: The environmental report 24 the applicant has pointed to the work that was done 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 198 for 6 and 7 as, as you would say, answering that bell.
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| 1 MR. AYRES: Yes.
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| 2 JUDGE KENNEDY: Is there something wrong 3with what's there or did it not go far enough? I mean 4 it seems like it's there. So is it an inadequacy or 5 an omission?
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| 6MR. AYRES: I think there are useful 7 things in those analyses, particularly with respect to 8 cooling towers, their costs, their reasonableness, 9 their use of resources but a great deal of those EIS 10 are about a completely different situation with very 11 different factors involved and I will just cite one to 12 make the point.
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| 13 Six and seven don't have to compare 14cooling towers against a canal system. Your review of 15 3 and 4 had to start with a canal system and you can 16compare cooling towers to them. And you might take 17 some of that analysis from 6 and 7, from that EIS, but 18 it's a different analysis when you're doing a 19 comparative than when you're doing a new plant where 20 you made that choice already.
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| 21 JUDGE KENNEDY: Yes, my sense is that --
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| 22 let's take the cumulative effects one -- that what 6 23 and 7 EIS contains is a look at what's going on in the 24site. And relative to this case, the site subsequent 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 199 license renewal for Turkey Point 3 and 4 is identified 1 in there as an action that the EIS in 6 and 7 took a 2 look at. 3 So there's an assessment there of exactly 4 the issue that you're talking about.
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| 5MR. AYRES: Yes, I think what we're saying 6 is there is certainly useful information in that but 7 you can't wholesale take the analysis for 6 and 7 and 8 say that resolves the issues for 3 and 4.
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| 9JUDGE KENNEDY: And see that's where I 10 guess maybe I'm misreading it because what I see in 11 the EIS for 6 and 7 is an assessment of other actions.
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| 12 One of the actions which is not relevant to this 13 proceeding is the Turkey Point 3 and 4 subsequent 14license renewal, where you get into the groundwater 15 impacts of the CCS and then climate change impacts.
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| 16 And so it seemed to me to be directly 17 relevant.18 I've got to stop?
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| 19 (Laughter.)
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| 20 JUDGE HAWKENS: You're supposed to raise 21 that up when you're talking, not when they're talking.
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| 22JUDGE KENNEDY: I don't think I like this 23 new layout.
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| 24 (Laughter.)
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 200JUDGE KENNEDY: I mean that's a little bit 1 of where -- it seems to me that they've answered some 2 of the concerns that you've raised and yet, I haven't 3 heard any discussion of inadequacy of what they've 4 proposed for assessment.
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| 5MR. RUMELT: So I think -- I do want to 6 begin with the issue of whether the environmental 7 report adequately cited to the Unit 6 and 7 EIS. I 8 mean it was -- you're mentioning things here that are 9 not mentioned.
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| 10JUDGE KENNEDY: Yes, I'm not sure I didn't 11 get those citations from the answers. So I'll grant 12 you that one.
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| 13MR. RUMELT: Right. So and to the extent 14 that the response to our petition raised various 15 issues that applicant and the staff felt we 16 overlooked, we addressed those issues and 17 demonstrated, I think, that they were insufficient and 18 they really didn't address the issues that we were 19 raising.20JUDGE HAWKENS: I think the red stop sign 21 was raised prematurely. I believe you asked for ten 22 minutes for rebuttal?
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| 23 MR. AYRES: Yes.
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| 24 MS. MAYHALL: Okay, I'm sorry.
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 201JUDGE HAWKENS: So you have an additional 1ten minutes. Please revise and we'll endeavor to show 2 restraint with our questioning but because we're 3 getting toward the end of the afternoon, we're going 4 to have to more strictly apply the time constraints.
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| 5MR. AYRES: If you have -- if you don't 6 have further questions, we can stop there.
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| 7JUDGE HAWKENS: You can roll the 8 additional time --
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| 9MR. AYRES: For comments at the end, yes.
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| 10JUDGE HAWKENS: We'll leave that 11 additional 20 minutes rebuttal will be available to 12 you.13 And now we'll hear from --
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| 14 MR. O'NEILL: Mr. Lighty has this one.
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| 15 JUDGE HAWKENS: All right.
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| 16MR. LIGHTY: Thank you, Your Honor. Ryan 17 Lighty appearing for Florida Power & Light Company.
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| 18 As noted in our brief, we do not oppose Joint 19 Petitioner standing, but we believe that each of the 20 five proposed contentions suffer from multiple defects 21 that render them inadmissible. But --
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| 22JUDGE HAWKENS: Can I interrupt for one 23 second? Are you going to be taking half of the time 24 and --25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 202 MR. LIGHTY: Yes.
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| 1 JUDGE HAWKENS: -- the rest will be --
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| 2 MR. LIGHTY: Yes. We've agreed to split 3 the time 50/50, Your Honor.
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| 4 JUDGE HAWKENS: All right. Thank you.
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| 5MR. LIGHTY: We would like to focus our 6 limited time today just looking at three overarching 7 issues regarding these contentions.
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| 8 First, as to proposed contention 1E, 9 Petitioners failed to demonstrate that FPL has a duty 10 to consider cooling towers as a separate and 11additional mitigation measure. In fact, the petition 12 ignores the relevant threshold criteria which you 13 asked about in your proposed questions for the oral 14 argument.15 Second, as to proposed contentions 2E 16 through 4E, as a matter of law, Part 51 simply does 17 not require the environmental report to consider the 18 effects of climate change on the proposed actions, and 19 those contentions must fail as a matter of law.
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| 20 And, third, as to proposed contention 5E, 21 even assuming the Category 1 issue of cooling system 22 impact on terrestrial resources can be challenged 23 here, Petitioners ignored the GEIS treatment of this 24 issue, which is dispositive to their purported 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 203challenge. And for these reasons, which I will 1 address in turn, and the many others discussed in our 2 brief, we believe the petition should be rejected.
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| 3 So as to the first contention, proposed 4 contention 1E, Petitioners claim that the 5 environmental report is deficient because it doesn't 6discuss cooling towers. But based on case law and 7 applicable NRC guidance, there appear to be two 8 primary threshold considerations, which if both are 9 satisfied give rise to such a duty.
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| 10 First, there must be an unmitigated impact 11identified. And, second, the given measure must be a 12 proportional response thereto. And Petitioners have 13 not satisfied either of these threshold criteria in 14 their pleadings.
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| 15 So, first, there must be a reasonably 16 likely environmental impact from the proposed action 17 that is not otherwise mitigated by other alternatives 18 or by actions that are part of the proposed action 19 itself, such as actual implemented operational 20 mitigation programs discussed in the ER.
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| 21 NEPA only requires consideration of a 22 reasonable range of alternatives, and we think that is 23important. There is no duty under NEPA to conduct an 24 academic exercise to think about every permutation of 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 204mitigation measures that one could conjure up. There 1 is a rule of reason that limits what must be 2 considered in NEPA documents.
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| 3 And this is a key reason that contention 41E must fail. Petitioners don't even purport to 5identify some unmitigated impact. They identify no 6 gaps in the existing mitigation measures, and as you 7 read their petition, you can see they seem to think 8 the only mitigation discussion is contained in two 9 paragraphs in Section 7.3.
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| 10Obviously, they misread the document. The 11 mitigation discussion is contained throughout Chapter 12 4, which is even titled the impacts of the proposed 13 action and mitigation.
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| 14 But we identified this flaw in our answer 15 pleading, and Petitioners' response and reply at 16 page 17 and 18 was simply to assert that reliance on 17 existing measures cannot satisfy NEPA's requirement to 18 consider alternatives to taking a future action.
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| 19 But here they simply missed the point.
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| 20 The mitigation measures discussed in Chapter 4 are not 21merely past actions.
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| These are ongoing actions.
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| 22 Petitioners point to no requirement to come up with a 23 new mitigation measure to renew a license, and there 24is no such requirement as a matter of law. So now on 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 205 top of misreading the ER, they also misinterpret the 1 law.2 But as to each of the --
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| 3JUDGE HAWKENS: Your arguments you are 4 directing to Joint Petitioners also are being directed 5 to the NRC staff, I take it, many of them.
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| 6 MR. LIGHTY: Certainly. We believe that 7 there has not been a demonstration that the threshold 8 criteria have been satisfied to require a duplicative 9 consideration of mitigation measures, because there is 10 already a reasonable range of mitigation discussed in 11the ER, and there is no deficiency that has been 12 identified as to that.
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| 13 And this morning I did not hear anything 14 from the staff that would -- that would contradict my 15 assertion in that regard, that the mitigation 16 discussion is somehow deficient.
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| 17 So specifically to the three resource 18 areas or three topical issues that they raise in 19 contention proposed 1E, endangered species, 20 groundwater use conflicts, and radionuclides released 21 to groundwater, they just don't discuss the mitigation 22 measures that are provided in the ER, and identify 23 some deficiency that would create a duty to consider 24something else. And we think that's an important 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 206 factual observation.
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| 1 The second component here, assuming that 2 there was -- even assuming that there was some 3 unmitigated impact, the given mitigation measure has 4 to be a proportional response thereto. And here the 5 petition is utterly silent regarding the 6 proportionality consideration.
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| 7 FPL explained this positive oversight in 8 its answer pleading, and Petitioners' reply was, 9again, silent on this point. There simply could be no 10 affirmative duty to consider a given mitigation 11measure unless this element is satisfied. And so 12 their failure to acknowledge this requirement, much 13 less to demonstrate that it's somehow satisfied, is 14 dispositive to the admissibility of proposed 15 contention 1E.
| |
| 16 And, finally, a duty to consider cooling 17 towers in an ER can arise if the cooling towers are 18part of the proposed action itself. That was the case 19 in Indian Point and Oyster Creek, the only two times 20 that the NRC staff has considered cooling towers as 21 part of the license renewal.
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| 22 But in both cases the state regulators 23 there had identified cooling towers as essentially a 24condition to their renewal of the NPDES permits. This 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 207 was going to have to be a part of the proposed action 1going forward with license renewal. Of course it had 2 to be considered in the -- in the EIS.
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| 3 We simply don't have that situation here, 4 and so it's not part of the proposed action, and the 5Indian Point and Oyster Creek precedents are not 6 instructive out there.
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| 7 Moving on to proposed contentions 2E 8 through 4E, these are Petitioners' variants on their 9 overarching argument that the ER was required to 10 evaluate environmental impacts caused by climate 11change. This is sometimes referred to as a reverse 12 EIS because it focuses on the impact of the 13 environment on the proposed project instead of as NEPA 14 normally does, the impact of the proposed project on 15 the environment.
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| 16 Now, CEQ had briefly provided guidance to 17agencies recommending they include a reverse EIS in 18 NEPA documents, and the NRC has done this in the past, 19 Appendix I to the Turkey Point 6 and 7 EIS being the 20 prime example. But that guidance from CEQ reflected 21 an administration policy preference, not an 22 interpretation of the NEPA statute.
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| 23 To our knowledge, no Circuit Court has 24ever held that NEPA requires a reverse EIS. So if the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 208Board were to do so here, it would -- it would be 1creating new law on this point. But NEPA itself is 2not the key issue for this contention. Rather, 3 Part 51 controls what must go into an environmental 4 report.5 The NRC has explicitly declined to impose 6 a corollary requirement on applicants, to include a 7reverse EIS in an ER. Specifically, in 2013, when the 8 NRC amended Part 51, several commenters recommended 9 including a reverse EIS in ER documents.
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| 10 The Commission did not adopt those 11suggestions. So the Commission considered and 12 rejected exactly what petition -- Joint Petitioners 13are requesting here. The Commission decided not to 14 revise Part 51 to align with CEQ's policy guidance.
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| 15 Now, notably, that guidance has been 16 withdrawn by CEQ in 2017 and, therefore, no longer 17 applies to the NRC or any other agency at this point.
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| 18 But the key takeaway here is that these three 19 contentions fail to identify a material issue 20 appropriate for an adjudicatory hearing.
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| 21 The only non-climate change issue raised 22 in these three contentions is a brief assertion that 23 the ER's analysis of cumulative impacts regarding 24 groundwater is inadequate because FPL purportedly 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 209 cannot rely on its FDEP permit to assume cumulative 1impacts will be adequately managed during the SLR 2 term, but that's not what the ER does.
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| 3 FPL does not merely rely on its permit.
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| 4Rather, it reaches the conclusion as to cumulative 5 impacts to gr oundwater in light of the further 6 extensive activities conducted under the CO and the 7 CA.8 Here Petitioners offer no critique of 9 those efforts, which were determined to be reasonable, 10 appropriate, effective, after extensive modeling, 11 administrative proceedings, regulatory findings based 12on the informed technical judgment of the cognizant 13 regulators, none of which Petitioners challenge here.
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| 14 At bottom, they simply fail to demonstrate 15 a genuine material dispute with the ER's conclusion on 16 this issue, and, therefore, that remaining portion of 17 proposed contention 2 should also be rejected.
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| 18 And, finally, as to proposed contention 19 5E, Petitioners claim that the ER is deficient because 20 it purportedly does not consider how the salinization 21 of freshwater wetlands caused by the CCS will impact 22 threatened or endangered species and otherwise harm 23 important plant and animal habitats.
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| 24 As a preliminary matter, Petitioners also 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 210 refer to speculative ammonia releases from the site, 1but they don't explain how that relates to or forms 2 some basis for the contention, which as framed by 3 Petitioners and their counsel, relates only to 4salinization. But, nevertheless, both salinity and 5 ammonia have been generically considered by the NRC 6 and codified in Part 51 as the Category 1 issue of 7 cooling system impacts on terrestrial resources.
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| 8 The GEIS explicitly considered the flow of 9 hypersaline groundwater from Turkey Point to the 10canals towards the Everglades. And I think that bears 11repeating. The GEIS specifically considered not just 12 this issue but this plant, this hypersaline plume 13 moving in this direction, and the staff determined 14 still that for this issue the impacts would be small.
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| 15 The GEIS also acknowledged that CCS 16 contaminants could percolate from ground waters to 17wetland areas, but that impacts would remain small 18"due to the low concentrations of contaminants in 19 cooling system effluents." 20 But Petitioners failed to acknowledge, 21 much less challenge, these conclusions in the GEIS.
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| 22 And so even assuming that the GEIS analysis could be 23-- could be challenged here, the Petitioners do not 24 actually challenge them in the petition, and that's an 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 211 important distinction.
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| 1 I know that the Board raised some portions 2 of the GEIS in their questions, but those were issues 3 identified by the Board and not the Petitioners, and 4 I think that's an important distinction when we're 5 talking about contention admissibility.
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| 6JUDGE HAWKENS: Do you have page cites for 7 the GEIS discussion you just mentioned?
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| 8MR. LIGHTY: Yes. So these are in 9 Sections 4.6.1 of the -- of the GEIS. Specifically, 10 I believe these are at GEIS pages 4-64 to 4-69, with 11 those general discussions.
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| 12 But taking it one step further, even 13 assuming that their vague and general statements on 14 these subject matters could be read as a challenge to 15 the GEIS, they failed to identify a sufficiently 16 supported material dispute.
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| 17 When we look at ammonia concentrations in 18 the CCS, they are orders of magnitude below regulatory 19levels. Orders of magnitude below regulatory levels, 20 and that's entirely consistent with the GEIS 21 conclusion that -- that there is a determination of 22 small impacts based on assumed low concentrations 23 related to ammonia.
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| 24 So, in other words, the GEIS considered 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 212 the possibility of de minimis contributions of 1 contaminants to wetlands from the process of 2 groundwater percolating somewhere else and concluded 3 that if those contaminants are of low concentrations 4 in the canals themselves, then the impact of that 5 de minimis contribution is going to be small.
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| 6JUDGE KENNEDY: And that's in the 7 environmental report where?
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| 8MR. LIGHTY: That's the environmental 9 report adopting the GEIS conclusions on the Category 1 10 issue of cooling system impacts on terrestrial 11 resources.
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| 12JUDGE KENNEDY: What about plants and 13 animal habitats?
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| 14MR. LIGHTY: So that's part of the same 15 Category 1 issue, discussing terrestrial resources.
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| 16 It's wetlands, it's wildlife in wetlands, and that is 17 what that conclusion in the GEIS pertains to.
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| 18 Here Petitioners don't connect their 19 assertions about salinity to any effects in wetlands 20 west of the cooling canals to some adverse impact to 21endangered species. There is simply no support for 22 that assertion.
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| 23 To the extent they assert that there is 24 some deficiency in the ER because it didn't -- it 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 213didn't look at this issue, they are merely 1speculating. They offer no support that there are in 2fact some impacts that should be considered, and 3 that's a pleading defect. That's not -- you know, 4that's not a battle of the experts. It's just a 5 dispositive deficiency in the pleading itself.
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| 6 There must be something more than a 7suggestion that there is a deficiency. You know, 8 Petitioners certainly don't have to prove their case 9 at this point, but they have to provide some support 10 that there is some there, and they just haven't done 11 that here.
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| 12And one final point that I would make 13 regarding the applicability of 51.53(c)(3) here.
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| 14 Assuming that that provision does not apply to the SLR 15 proceeding, contentions 2E and 3E must be rejected 16 outright because Joint Petitioners' backup argument 17that Regulation 10 CFR 51.45 Charlie applies. That 18 regulation doesn't require consideration of new and 19 significant information, and that's the basis for one 20 of their contentions.
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| 21 And the cumulative impacts that are 22 required to be discussed, I think as the Board pointed 23 out in its proposed questions, in 51.45 Charlie, is 24 limited to limited work authorizations, construction 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 214permits, COL proceedings. So there simply would be no 1 basis for contentions 2E or 3E outright.
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| 2 And we think, more broadly, the petition 3 doesn't advance specific arguments regarding alleged 4non-compliance with Section 51.45 Charlie. It is 5 referenced in a footnote as sort of a throwaway 6 argument that, well, if our arguments regarding 7 51.53(c)(3) aren't applicable here, then -- then we 8 rely on this.
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| 9 But they really marshalled no substantive 10 arguments as to how those requirements are somehow not 11met. And their brief reference in a footnote can't be 12-- can't be adequate support for an admissible 13contention here. And so we think as an overarching 14 issue, none of these contentions are admissible for 15 these many reasons.
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| 16 I would like to just respond to a couple 17 of comments from Petitioners earlier regarding the 18 suggestion that the CO or CA activities just might 19stop working somehow. The CO and the CA both have 20 built into them a belt-and-suspenders approach that 21 says if this approach doesn't work, we're going to 22 require some additional effort.
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| 23 So it's not that, well, if these efforts 24don't work we're all just out of luck. The order and 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 215the consent agreement are flexible. They are designed 1 that way, so that if these efforts don't work as 2 expected that there is something else that will impose 3 further requirements to mitigate impact.
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| 4 And the idea that nobody but FPL believes 5that these will work is simply unsupported. Again, 6 these requirements came out of administrative 7proceedings. These were well-reasoned technical 8 judgments by the informed regulators that are 9 responsible for these issues.
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| 10 There was extensive modeling done. This 11 is not guesswork. This is -- this is -- these are 12 actions that have been found to be reasonably likely 13 to be effective through a regulatory process.
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| 14 But, again, the Applicant can rely on 15reasonable assumptions here. NEPA is forward-looking, 16but a crystal ball inquiry is not required. It is 17 reasonable to assume that regulator-approved actions 18 will be effective, but Petitioners apparently read 19 into Part 51 a duty for FPL to disagree with state 20 regulators that the -- that the efforts will be 21 effective, but there is -- there is no such duty for 22 an applicant in Part 51.
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| 23 Of course, the NRC will conduct its 24 independent analysis to verify that the assumptions 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 216 are reasonable, but there is no duty in Part 51 for 1 the applicant to engage in an academic exercise to 2 disagree with a state regulator's conclusion that 3 actions are going to be effective here.
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| 4 The staff will cover that as part of its 5 independent analysis, and there is no further duty on 6 applicants here further to Part 51.
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| 7JUDGE HAWKENS: So just mentioning the 8 existence of the consent agreements and consent orders 9 discussing them briefly is sufficient to satisfy your 10 ER obligation?
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| 11MR. LIGHTY: I wouldn't say just 12mentioning them, but what the ER does here is it 13discusses them extensively. It talks about the 14 process, the administrative process, that FPL engaged 15 in with the regulators to get there. I think the --
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| 16 Chapter 9 of the ER discusses the status of those 17 activities, and it's embedded throughout the 18 discussions in Chapters 3 and 4.
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| 19 It is extensive throughout the --
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| 20 throughout the ER, and I certainly think that that's 21sufficient. It is more than just saying we have an 22 order; we think that's enough. There is -- there is 23 discussion throughout the ER of this issue.
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| 24 JUDGE HAWKENS: That's fine.
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 217 MR. BESSETTE: Your Honors, I would like 1to just add one comment. We were reminded we were 2 talking about the NRC staff review of cooling towers 3 for other license renewal applicants. We understand 4 the NRC also considered cooling towers for Seabrook in 5 response to EPA comments, but EPA is a 316(b) 6 regulator for New Hampshire.
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| 7JUDGE HAWKENS: Do you have anything 8further? You have a little bit more time, I believe.
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| 9 MR. BESSETTE: In the interest of moving 10 things along, we are going to --
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| 11JUDGE HAWKENS: We're grateful. Thank 12 you.13MR. TURK: We might cede some of our time.
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| 14 They can rebut us later, Your Honor.
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| 15 So I will be speaking on behalf of the 16 staff for the first contention from the Joint 17 Petitioners, which deals with the cooling tower issue.
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| 18 Mr. Wachutka will address climate change 19and sea level rise contentions. Those are Joint 20Petitioners' contentions 2, 3, and 4. And Ms.
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| 21 Houseman will address our contention 5 dealing with 22 CCS impacts.
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| 23 And so let me start by apologizing to you 24 if there is any confusion on your part as to whether 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 218 the staff believes that the Applicant should have done 1an analysis of cooling towers. We don't believe that.
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| 2 And let me clarify any con fusion as to what the 3 staff's position is here.
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| 4 To date, 91 licenses have been renewed by 5 the NRC; 59 supplemental environmental impact 6statements were issued. In all of that time, the 7 staff evaluated alternative cooling systems on only 8 three occasions -- Indian Point, Seabrook, and Oyster 9Creek. That's it. We normally do not look at 10alternative cooling systems.
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| In part, that is 11 probably because it is not necessarily a reasonable 12alternative. It is an expensive, substantial 13 modification of the plant, and that is typically not 14 going to be deemed to be proportionate -- of 15 proportionate benefit to the impacts of whatever the 16 cooling tower would be designed to mitigate.
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| 17 In the instances where the staff has 18 looked at cooling tower as an alternative it is 19because of public interest. In the case of Seabrook, 20 because of EPA comments in response to the draft EIS, 21 that's my understanding.
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| 22 For Indian Point, because there was strong 23 opposition by the state and members of the public to 24 the plant on the renewal on the grounds that there is 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 219substantial aquatic impacts. And Oyster Creek, I was 1 not involved, so I couldn't give you the specific 2 reason, but, again, it's because of public interest, 3 not because there was an impact so great that some 4 mitigation alternative was deemed to be necessary to 5 mitigate those impacts.
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| 6 When we begin our reviews, we don't know 7 what the impacts are that would need mitigation. We 8don't know the extent of the impact. So we may 9 commence to do an alternative analysis, and then later 10we say, "Okay. Here is the impact of the alternative.
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| 11Here is the need for it." And we find that, no, it's 12 not really necessary. It doesn't mitigate something 13 that is of great importance.
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| 14 So the fact that we are doing the 15 alternative analysis here to look at an alternative 16 cooling system method does not mean that we have 17 decided that the impacts of Turkey Point Units 3 and 18 4 are so significant that another mitigation measure 19 must be considered beyond what was in the ER. So we 20do not fault the applicant for not looking at this 21 alternative.
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| 22JUDGE HAWKENS: So it's not an improper 23 omission from the ER, but it would be an improper 24 omission from the supplemental EIS?
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 220MR. TURK: No. It would not even be an 1 improper omission from the supplemental EIS. We are 2 doing it because of public interest, not because we 3 have determined that the impacts are so great that 4 another mitigation alternative must be considered.
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| 5Remember what I said earlier. We have two 6purposes in our NEPA review. One is to consider 7 impacts, to make sure that we are taking the hard look 8 that NEPA requires; and, second, the requirement to 9 inform the public, so that they are aware of what the 10 impacts are and what we are considering.
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| 11JUDGE HAWKENS: Okay. Maybe I -- maybe I 12 misstated my inquiry, or maybe I just misunderstood 13you. But it sounds like you're just saying you do 14 have an obligation in the supplemental EIS to include 15 an assessment in the public interest, and that's why 16 it's going to be included in supplemental EIS.
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| 17MR. TURK: We have the discretion, rather 18 than the obligation, to consider cooling towers as an 19 alternative. We are not required to. If the --
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| 20JUDGE HAWKENS: So this will be a 21 discretionarily admitted --
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| 22 MR. TURK: Contention?
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| 23 JUDGE HAWKENS: -- contention.
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| 24MR. TURK: Your Honor, I do not want to be 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 221 in a position, and the staff did not want to be in a 1 position, of telling you to reject a con tention 2 asserting the need to look at cooling towers, and next 3 month give you an EIS that says, "Here is the cooling 4 tower analysis." 5 So we're not opposing the admission of the 6 contention because it is consistent with the fact that 7 the staff itself will be looking at the alternative, 8 but we do not deem the contention to be -- we do not 9 deem it necessary for you to admit the contention to 10 avoid being remiss in your duties.
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| 11 JUDGE HAWKENS: All right. Thank you.
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| 12 MR. TURK: There was some question about 13 the impact of the cooling system operation, and I --
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| 14 as I heard that discussion, I was reminded that in the 15 EIS for the initial operating license renewal for 16 Turkey Point, there was a discussion of the impacts.
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| 17 And in the -- let me come to that one first.
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| 18 This is in -- what I'm reading from now 19 will be the 2002 Supplement 5 to the generic 20 environmental impact statement for license renewal.
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| 21 Turkey Point's license renewal initially came early in 22 the process. This was a 2002 document.
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| 23 At page 4-31 of the supplemental EIS for 24 initial license renewal, the staff reviewed what the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 222 groundwater impacts are, and we said that the GEIS has 1addressed this. For plants using less than 100 2 gallons per minute, they are not expected to cause any 3 groundwater use conflicts.
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| 4 For saltwater intrusion, the GEIS 5 concluded that nuclear power plants do not contribute 6 significantly to saltwater intrusion, and the staff, 7 after reviewing what the GEIS provided, concluded the 8 staff has not identified any significant new 9 information during its independent review of the FPL 10 ER, the staff's site visit, the scoping process, or 11 its evaluation of other available information.
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| 12 Therefore, the staff concludes that there are no 13 groundwater quality degradation impacts associated 14 with groundwater -- with saltwater intrusion during 15 the renewal term beyond those discussed in the GEIS.
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| 16 And the same thing for groundwater quality 17degradation for cooling ponds in salt marshes. We 18 reviewed the GEIS conclusion, the Category 1 19 determination, and we reviewed our own assessment, or 20 we summarized our own assessment and concluded that we 21have not found any significant new information that 22 would alter the GEIS conclusions for initial license 23 renewal of Turkey Point.
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| 24 The same sort of process will be followed 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 223 here in the draft SEIS for subsequent license renewal.
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| 1 We expect to look at what the GEIS concluded and 2 conclude whether we have i dentified any new and 3 significant information that might cause us to vary 4 from the GEIS conclusion. And in a month or two, we 5 hope to see what that EIS states.
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| 6 In the GEIS, in the June 2013 GEIS that 7 Mr. Lighty referred to, at page 4-50, the GEIS reviews 8 the issue of groundwater quality degradation for 9 plants with cooling ponds and salt marshes. And the 10 GEIS there discusses the fact that two nuclear plants, 11 South Texas and Turkey Point, have cooling systems 12 located relatively near or constructed in salt 13 marshes.
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| 14 And the GEIS goes on to evaluate what 15impact those plants, that subset of plants, Turkey 16 Point and South Texas, what is the impact on 17 groundwater quality degradation, and they conclude 18 that because these are brackish or saltwater sites, 19 there is no impact on -- or there is a small impact on 20 groundwater quality.
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| 21 And it notes that t his is the same 22conclusion reached in the 1996 GEIS. No new 23 information has been identified in plant-specific 24 SEISs or associated literature that would alter this 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 224conclusion. And the GEIS then goes on to reach the 1 same conclusion for the 2013 analysis.
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| 2 So, in summary, Your Honor, the staff is 3 not urging you to admit the contention, but we are not 4 going to oppose it because we will be doing the same 5 analysis that the Intervenors allege the Applicant 6 should have conducted.
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| 7 And with that, I would turn to Mr.
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| 8 Wachutka.9 MR. WACHUTKA: Thank you. May it please 10 the Board, my name is Jeremy Wachutka. I am counsel 11 for the NRC staff, and I will be presenting the 12 staff's position that Joint Petitioners' contentions 13 2E, 3E, and 4E are not admissible.
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| 14 I will start with contention 4E.
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| 15 Contention 4E is a contention of omission that 16 generally faults the environmental report for not 17 discussing climate change as part of its discussion of 18the affected environment. This contention is not 19 admissible because, one, climate change is required to 20 be discussed as a cumulative impact rather than as 21part of the affected environment; and, two, the 22 environmental report does discuss climate change as a 23 cumulative impact.
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| 24 First, consistent with NEPA, the NRC 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 225 practice is to discuss climate change as a cumulative 1 impact and not as part of the affected environment.
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| 2 This is stated in the 2013 Part 51 rulemaking and is 3 demonstrated by the organization of the license 4 renewal GEIS.
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| 5 Specifically, Chapter 3 of the license 6 renewal GEIS discusses the affected environment as the 7currently existing environment. Chapter 4 of the 8 license renewal GEIS then discusses the impacts of 9 this currently existing environment from the effects 10 of the proposed action, including the effects of the 11proposed action in combination with the effects of 12 reasonably foreseeable future actions.
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| 13 Climate change is considered one such 14reasonably foreseeable future action. Therefore, the 15 NRC process is to, one, describe the current 16 environment as a baseline in Chapter 3; two, determine 17 which specific resource areas of this environment 18 could be affected by both the proposed action and 19 climate change; and, three, analyze these resource 20 areas for reasonably foreseeable future cumulative 21 impacts.22 This same process is applied to 23 environmental reports by NRC Regulatory Guide 4.2, 24Supplement 1, at pages 48 and 49. This process is 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 226 consistent with NEPA because it ensures that the 1 impacts of the proposed action, including the impacts 2 of the proposed action combined with the effects of 3 reasonably foreseeable future actions, such as climate 4 change, are described.
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| 5 Therefore, contrary to contention 4E, a 6 discussion of climate change does not have to be part 7 of the discussion of the affected environment.
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| 8 Second, contention 4E is not admissible 9 because the environmental report does discuss climate 10 change through its incorporation by reference of the 11 cumulative impacts chapter of the EIS for Turkey Point 12 Units 6 and 7. This chapter states that the effects 13 of climate change are discussed in Appendix I, and 14 Appendix I, in turn, essentially contains all of the 15 information that the -- of the future environment as 16 affected by climate change that the Joint Petitioners 17 argue is missing from the environmental report.
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| 18 It describes the future environment in the 19 vicinity of Turkey Point and during a similar time 20period as a subsequent license renewal period. It 21 incorporates, by reference, the 2014 third national 22 climate assessment report as compared to Joint 23 Petitioners' use of the 2017 version of this report.
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| 24 It discusses an air temperature increase 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 227 of five to six degrees Fahrenheit, as compared to the 1 Joint Petitioners' discussion of an air temperature 2increase of four degrees Fahrenheit. And it discusses 3 a sea level rise of one to four feet as compared to 4 Joint Petitioners' discussion of a sea level rise of 5 one to two feet.
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| 6 So based on this information, contention 7 4E does not show that a genuine dispute exists with 8 the environmental report on the third issue, and, 9 therefore, it is not admissible.
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| 10 Are there any questions on contention 4E?
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| 11 Essentially, as Judge Hawkens was saying, 12 the affected environment, Chapter 3, then we look at 13 climate change as a cumulative impact, and that has 14 been done.
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| 15 Next, I will address contentions 2E and 163E. These contentions generally fault the 17 environmental report for not discussing certain 18cumulative impacts. These contentions, though, are 19 not admissible because they do not provide any support 20 that demonstrates that these cumulative impacts are in 21 fact reasonably foreseeable, which is the NEPA 22 standard.23 For instance, the Joint Petitioners argue 24 that new higher sea levels of approximately one to two 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 228 feet will lead to overtopping or breaching of the 1 Turkey Point cooling canals, and resulting in 2 environmental impact from cooling canal water being 3 discharged to surface waters.
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| 4 The Joint Petitioners, though, do not 5 demonstrate that this occurrence is reasonably 6 foreseeable as they are required to do. They do not 7 discuss the relative heights of the cooling canals and 8future sea levels. They do not discuss FPL's proposed 9 aging management program for the cooling canals or the 10 requirements of the consent order, both of which 11 address the continuing maintenance of the cooling 12 canals.13 Moreover, they do not demonstrate that 14 such a discharge would have a significant impact on 15 surface waters, given that the consent order requires 16 FPL to minimize the salinity and nutrient content of 17the cooling canal water. Therefore, the alleged valor 18 of the environmental report to discuss cooling tower 19 overtopping is not an admissible contention.
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| 20 Joint Petitioners also argue that new 21higher sea levels will lead to flooding of the site 22 that will reduce power output and that will affect 23decommissioning. Again, though, the Joint Petitioners 24 do not demonstrate that this occurrence is reasonably 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 229 foreseeable, given that the NRC regulates the 1 potential for site flooding as a current operating 2 issue and has affirmed this position as part of its 3 response to the Fukushima accident.
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| 4 Similarly, the Joint Petitioners argue 5 that a new higher air temperature of approximately 6 four degrees Fahrenheit will increase salinity levels 7 in the cooling canals, which will impact groundwater.
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| 8 The Joint Petitioners' support for this argument is 9 limited to the statement that this is a "basic 10 scientific principle."
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| 11 However, the issue is not whether an 12 increase in air temperature will impact salinity, the 13 issue is whether the asserted four-degree increase in 14 air temperature, when considering other factors, will 15 actually have a noticeable impact on the cooling canal 16 water and groundwater, such that this impact must be 17 discussed in the environmental report.
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| 18 The Joint Petitioners, though, do not 19provide any support that this is the case. They also 20 do not discuss the consent order's requirement that 21 FPL achieve and maintain an average annual salinity in 22 the cooling canals of at or below 34 practical 23 salinity units, regardless of what the air temperature 24may be. Therefore, this, too, is not an admissible 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 230 contention.
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| 1 The Joint Petitioners also claim that 2 higher air temperatures will reduce the heat exchange 3 capacity of the cooling canals, and thus reduce power 4output. This claim, though, is directly contradicted 5 by the consent order, which requires FPL to develop, 6 submit, and implement a plan for cooling canals to 7 achieve a minimum of 70 percent thermal efficiency.
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| 8 The Joint Petitioners argue that the terms 9 of the consent order should not be credited because in 10 the past FPL has violated its permits and relevant 11regulations. This argue, though, is not persuasive 12 because, as we discussed previously, consistent with 13 Commission case law, the NRC staff presumes that the 14 licensee will follow its licenses and that government 15 agencies will enforce their laws and regulations.
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| 16 Additionally, there is no indication that 17 FPL is not complying with the consent order or consent 18 agreement.
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| 19 Another argument raised by the Joint 20 Petitioners is that the environmental report's 21 discussion of groundwater use conflicts is 22 insufficient because during the subsequent license 23 renewal period it is "highly probable" that 24 groundwater resources will be inadequate.
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 231 The Joint Petitioners, though, do not 1 provide any support for this conclusory statement, 2and, therefore, it too is not an admissible 3 contention.
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| 4 So, in summary, Your Honors, for 5 contentions 2E and 3E, they are not admissible because 6 they are not supported by any alleged facts or expert 7opinions. And contention 4E is not admissible because 8it does not show that a genuine dispute exists with 9 the environmental report on a material issue.
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| 10 Are there any outstanding questions on 11 contentions 2E, 3E, or 4E?
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| 12 JUDGE HAWKENS: Not at this point.
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| 13MR. WACHUTKA: Okay. With that, I will 14 turn it over to Ms. Houseman.
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| 15 JUDGE HAWKENS: Thank you.
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| 16MS. HOUSEMAN: Thank you very much. I 17 will address contention 5E, and I would like to first 18 respond to one of the Joint Petitioners' arguments 19 concerning the consent order and consent agreement, 20 which they describe as an experiment, and they 21 describe as a matter of trial and error.
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| 22 That is certainly not the NRC staff's view 23of these enforcement actions. Of course, the NRC 24 staff will apply the presumption of administrative 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 232 regularity that these agencies are going to endorse 1 these requirements.
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| 2 Moreover, these -- this order and this 3 consent agreement represent these agencies' technical 4judgments. After a significant review of the issues, 5 this agency has crafted specific mitigation measures 6 that they have determined in their technical judgment 7 will be effective to halt and retract the migration of 8 the hypersaline plume.
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| 9 And these agencies have built in measures 10 to require FPL to report and provide status updates on 11the effectiveness of these measures. If these 12 measures are not effective, there are requirements in 13 the consent order and in the consent agreement to 14 revisit the plans to reach the targets imposed upon 15 FPL.16 The consent order, the consent agreement 17 provide specific targets that FPL must meet by 18 particular dates; most importantly, that the 19 hypersaline plume must be retracted to within the L31E 20 canal within 10 years.
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| 21 And Commission case law is clear that the 22 NRC does not second-guess other agencies' technical 23and enforcement judgments. For example, in Vermont 24 Yankee, CLI-07-16, at page 377, the Commission 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 233 specifically declined to second-guess the State of 1 Vermont's NPDES permit decisions.
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| 2 Joint Petitioners argue -- just as SEIS 3 argues -- that the NRC staff must analyze both the 4 beneficial and the negative impacts of mitigation 5measures. The NRC staff certainly agrees with this 6position. However, that is not what Joint Petitioners 7 are asking the NRC staff and this Board to do in this 8 proceeding.
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| 9 What Joint Petitioners are asking that we 10 do is to entirely second-guess these administrative --
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| 11 these other agencies and to -- and to apply the 12 presumption that the mitigation measures they have 13imposed will utterly fail. And the NRC staff under 14 Commission case law, is not required to do that.
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| 15 JUDGE HAWKENS: Ms. Houseman, just to be 16 clear, Joint Petitioners have brought to your 17 attention some evidence or factual assertion that some 18 fact underlying the methodology in the consent 19agreement was incorrect. Would that be enough for the 20 NRC staff to look at that methodology?
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| 21MS. HOUSEMAN: The NRC staff will 22 certainly review it, and we'll need to review that 23 information and determine -- I should -- I should note 24 that the NRC still will not second-guess the technical 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 234 judgment of FDEP and DERM. Of course, the NRC staff 1 is going to review all information available to it.
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| 2 And, of course, if the NRC staff has any 3 questions or concerns for these state agencies with 4 respect to these mitigation measures, the NRC staff 5 could reach out to these agencies and raise these 6questions. And if, in the NRC staff's judgment, there 7would be negative impacts, then they could consider 8those. But, otherwise, the NRC staff is not going to 9 second-guess their technical judgments.
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| 10 Next, with respect to the various Category 11 1 issue that Joint Petitioners raise, as we have 12argued previously, a waiver is required to litigate 13those issues. Joint Petitioner has purported to raise 14 certain Category 2 issues, one being thermal 15 impingement and entrainment impacts on applied 16 organisms and applied resources, the other being non-17 cooling system impacts on terrestrial resources.
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| 18 They did this in citing 51.53(c)(3)i, B 19and E. But, in fact, what Petitioners argued in their 20 petition is actually several Category 1 issues for 21 which they would be required to obtain a waiver.
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| 22 And, importantly, they are required to 23 obtain a waiver even if they purport to raise new and 24 significant information. For example, I direct your 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 235 attention to the 2013 GEIS, page 4-68, and this is the 1 discussion of the impacts of cooling systems on 2 terrestrial resources. This is a Category 1 issue.
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| 3 In the middle of that page, the discussion 4 states that mitigation may also be implemented where 5sensitive resources could be effective. At the Turkey 6 Point plant in Florida, for example, the flow of 7 hypersaline groundwater from the cooling canals toward 8 the Everglades to the west is prevented by an 9 interceptor ditch located along the west side of the 10 canal system from which groundwater inflow is 11 expected.12And the citation is NRC 2002B. I don't 13 have the cross-reference on me, but I believe that 14 that is the supplemental EIS with the initial license 15 renewal for Turkey Point.
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| 16 JUDGE HAWKENS: Yes.
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| 17MS. HOUSEMAN: Now, even if the Joint 18 Petitioners have raised new and significant 19 information with respect to analyses like this, they 20 still must seek and obtain a waiver from the 21 Commission to litigate those issues.
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| 22 JUDGE KENNEDY: To litigate what issue?
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| 23 MS. HOUSEMAN: The Category 1 issues.
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| 24JUDGE KENNEDY: Well, I mean, give me a 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 236 specific. I mean, how about the plume, can they not 1-- I mean, clearly, an interceptor ditch does not stop 2the plume. I mean, I think -- hasn't it gone past the 3 ditch?4MS. HOUSEMAN: Well, the impacts that the 5 Joint Petitioners raised with respect to the plume are 6largely Category 1 issues. As we explained in our 7 answer, they raised --
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| 8JUDGE KENNEDY: Yeah. I think we're 9 getting -- I'm getting -- I think I'm getting more 10 confused by how this new and significant information 11in this process works. Certainly, there is a section 12that deals with new and significant information. And 13 the adequacy of that information or the completeness 14of that information could be challenged without a 15 waiver. Is that true?
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| 16 So Chapter 5. Petitioners could raise a 17 challenge to the information in Chapter 5 without a 18 waiver.19MS. HOUSEMAN: Well, specifically, in the 20 Vermont Yankee decision, Vermont Yankee/Pilgrim 21 decision, the Commission stated that even if the 22 contention is with respect to new and significant 23 information, a waiver is still required.
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| 24 And, again, in Limerick, the Commission 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 237revisited that question, and did not reverse its 1 holding in Vermont Yankee/Pilgrim, and in fact 2 reiterated it.
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| 3JUDGE KENNEDY: Right. But didn't, in 4 Limerick, they allow the Petitioner to submit 5 additional new and significant information?
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| 6MS. HOUSEMAN: In Limerick, the Commission 7 allowed the Petitioner to seek a waiver with respect 8 to the same analysis, which was a de facto Category 1 9 issue.10JUDGE KENNEDY: So don't you -- is what 11 you're telling me that this contention -- Category 1 12 need for a waiver extends to the adequacy of the new 13 and significant information as well?
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| 14MS. HOUSEMAN: That is the NRC staff's 15 understanding of Commission case law. Yes.
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| 16 JUDGE KENNEDY: Okay.
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| 17JUDGE ABREU: What about the -- in the 18 topics we mentioned that in the Limerick case in 2012 19 the CLI said, "In our view, NRDC may challenge the 20adequacy of the new information provided in the 21Limerick environmental report." You're saying that's 22 true only if they submit a waiver? Is that your --
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| 23 MS. HOUSEMAN: Yes.
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| 24JUDGE ABREU: Is that what you're saying?
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 238MS. HOUSEMAN: That is our understanding, 1because in that decision, the Commission goes on, 2 after that statement, to say, "However, based on the 3 circumstances present here, and given that our rules 4 expressly provide that a supplemental SAMA analysis 5 need not be performed in this case, the proper 6 procedural avenue for NRDC to raise its concerns is to 7 seek a waiver of the relevant provision in Section 18 8 51.53(c)(3), Roman numeral IIL." 9 So my reading of that statement is that, 10 even in the face of allegedly new and significant 11 information, the Commission's position is a waiver is 12 required to litigate it.
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| 13 JUDGE KENNEDY: Right. The waiver there 14was to performing the SAMA analysis. They would have 15 had to submit a waiver to institute a new SAMA 16 analysis, but the Commission did allow a petitioner to 17 interject new information as an omission from the list 18 of new and significant pieces of information.
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| 19 So they -- they could make an insertion 20 into Chapter 5, for argument's sake, but it stops 21there. So, I mean, new and significant information 22 could be added as an omission, I think under the 23Commission case law. What you couldn't do is take 24 that information without a waiver and institute a new 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 239 SAMA analysis.
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| 1Now, I don't know exactly how that all 2 fits to this whole thing, but this Limerick case just 3 keeps being used as a way to say you really can't 4 challenge anything if it relates to Category 1. And 5 I don't believe that's true.
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| 6 JUDGE HAWKENS: Could I also hear if the 7 staff agrees with Judge Kennedy's assessment of a 8 petitioner's ability to challenge new and significant 9 information?
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| 10 MR. TURK: No, we do not.
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| 11JUDGE HAWKENS: Could we hear from you on 12 that, please?
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| 13 MR. TURK: If Ms. Houseman doesn't mind, 14 let me see if I can add one or two sentences.
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| 15 MS. HOUSEMAN: Please do.
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| 16MR. TURK: What the Commission said in 17 Limerick is consistent with what it said previously in 18 Turkey Point back in 2001, and in Vermont 19 Yankee/Pilgrim in 2005, I believe. I could be wrong 20 on the date. 2009.
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| 21 What it said was if a petitioner wishes to 22 raise new and significant information that would alter 23 the finding of a GEIS, it may do so, but only if it 24 files a petition for waiver.
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 240 JUDGE HAWKENS: Okay.
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| 1MR. TURK: It cannot simply say, "Here is 2 new and significant information, and we want to 3 challenge the adequacy of an ER or an EIS because it 4omits it." They would have to say to the Board, "Here 5 is new and significant information. We believe this 6 is a prima facie showing that the GEIS should not be 7 applied, the GEIS conclusion should not be applied in 8 this proceeding." 9 If you agree, you are then referred up to 10 the Commission, and they would decide whether or not 11 to waive the conclusion in the Table B1 and the GEIS 12as to the impacts for that issue. And then that would 13 allow the litigation of the new information to 14 proceed.15JUDGE ABREU: Let me perhaps ask it a 16different way. The quote you gave referenced sub IIL; 17 is that correct?
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| 18 MS. HOUSEMAN: Uh-huh.
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| 19JUDGE ABREU: Which is one part of 20 51.53(c)(3).
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| 21 MS. HOUSEMAN: Yes.
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| 22 JUDGE ABREU: The requirement to include 23 new and significant information is Part IV, Part 4, 24lower case Roman numeral four. So those are two 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 241 distinctly separate sections of -- and a GEIS 1 determination -- so now they want to step back to the 2GEIS. The GEIS has its logic for determining a 3 generic impact of small based on various criteria and 4 historical references and whatnot.
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| 5 But separate from the GEIS criteria for 6 that initial determination is this letter -- is this 7 Section 4 of 51.53 that says, "But you must add new 8 and significant -- you must let us know about new and 9 significant information." 10 So it seems like those are two separate 11 things, that you can say we agree that the GEIS made 12 its determination based on reasonable discussion, that 13the GEIS Cat. 1 discussion is just fine. But that 14Cat. 1 discussion is based on certain information.
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| 15 The reg says, "But let us know about anything that is 16 new and significant because that is stuff we didn't 17 consider before." 18 So you are not challenging the Cat. 1 --
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| 19 one could say that one is not challenging the Cat. 1 20determination. Instead, they could challenge the fact 21 that there was new and significant information. And 22 what I'm hearing you say is, sorry, all of it requires 23 a waiver, even though those are separate -- could be 24 separate arguments from a Petitioner, they are not 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 242challenging the GEIS determination. They are just 1 saying, "But you didn't tell us about new and 2 significant stuff." 3MS. HOUSEMAN: Well, we are certainly not 4 aware of any Commission case law that has -- that has 5 changed its holding in Vermont Yankee/Pilgrim, and 6 that holding is very clear that if the challenge 7 concerns new and significant information a waiver is 8 required.9 Otherwise, to raise a hypothetical, 10 Petitioners could come in with a host of what they 11purport to be new and significant information that 12 could maybe even satisfy all of the contention and 13 admissibility requirements.
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| 14 And at each site-specific license renewal 15 proceeding, we could be litigating the findings in the 16 GEIS over again with respect to any Category 1 issue 17 for which a petitioner has gathered allegedly new and 18 significant information that has either occurred since 19 the last publication of the GEIS or that --
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| 20 JUDGE ABREU: But is that really --
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| 21MS. HOUSEMAN: -- perhaps wasn't 22 explicitly considered in the GEIS.
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| 23JUDGE ABREU: But is that really 24 relitigating the GEIS, or is it only litigating the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 243 fact that, hey, there was extra info you should have 1 told us about, so that -- with the idea that, so the 2 staff could consider that as they do the EIS, because 3 that's the idea is we want to make sure the staff has 4-- the point of the ER is information for the staff to 5help them do the EIS. Right? Isn't that the basic 6 concept? And so --
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| 7 MS. HOUSEMAN: Yes.
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| 8JUDGE ABREU: -- you've got the 9 determinations in the GEIS, and then staff would 10 probably want to know about anything new and 11 significant which you have agreed is, like FPL says, 12it has got to be at least moderate or large. So it's 13 got to be at least a noticeable impact or further or 14 more. 15 So that could be thought of as a kind of 16 separate icing on the cake of the GEIS. You are not 17-- they are not saying the GEIS was wrong. They are 18 just saying this was the extra info that item little 19 four wants us to tell you about.
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| 20MS. HOUSEMAN: If I could take a step back 21 for a moment and make a note on the bigger picture of 22 the purpose of the GEIS and that's for the NRC or any 23 agency to have the opportunity to conduct a bounding 24 analysis that will apply to an entire program or that 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 244 will apply to a series of very similar credible 1actions. So that is the goal here in developing some 2 of these Category 1 issues.
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| 3 And although they cannot be relitigated in 4 each site-specific proceeding in which a petitioner 5 alleges, "Well, that GEIS didn't cover this particular 6discrete issue at this site," that's not the end of 7 the petitioner's opportunities for public engagement 8 in this process.
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| 9 They are not entitled to a right -- to a 10 hearing on every particular concern that they may 11have. They are, of course, under NEPA afforded the 12opportunity to provide public comment, both on the 13 scoping process and also on the draft supplemental 14 environmental impact statement. They will certainly 15 have that opportunity, and they can raise Category 1 16 issues in those processes.
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| 17 Additionally, even if the applicant does 18 not consider a particular piece of information the 19 staff may believe is potentially new and significant 20 in their environmental report, and even if an 21 applicant considers that information but its 22 conclusion is that the information perhaps is new but 23 is not significant, that does not preclude the NRC 24 staff from reaching a different determination in its 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 245 independent NEPA analysis.
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| 1 So although Petitioners may not get the 2 hearing that they want on this Category 1 issue, that 3 does not mean that the NRC staff will not do its job 4at taking a hard look under NEPA and that the 5 Petitioners cannot continue to engage in this process.
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| 6JUDGE ABREU: But for practical purposes, 7 it means that at the stage where they submit 8 contentions to be considered, you essentially cannot 9challenge anything that is about anything that has 10 been called Cat. 1 without a waiver.
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| 11 MS. HOUSEMAN: That's correct.
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| 12JUDGE ABREU: So everything about that 13 topic is off limits, even though it might be in this 14 little separate new and significant category.
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| 15 MS. HOUSEMAN: That's right.
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| 16 JUDGE ABREU: That's what you're saying.
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| 17 Okay.18 MS. HOUSEMAN: If a Category 1 --
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| 19JUDGE ABREU: Basically, they are left 20 with the Cat. 2 issues.
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| 21MR. TURK: No. Your Honor, they have the 22 Cat. 1 issue, too, if they file for a waiver.
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| 23JUDGE ABREU: Right. But the 24 supposition was --
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 246 MR. TURK: And they can base that on --
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| 1 JUDGE ABREU: -- without the waiver, you 2 could -- you are left with Cat. 2's.
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| 3MR. TURK: If I can add one thought. The 4 Commission addressed the very question that you raise 5in Turkey Point back in CLI-01-17. The Commission 6 said at page 12 of 54 NRC that "The Commission 7 recognizes that even generic findings sometimes need 8revisiting in particular contexts. Our rules provide 9 a number of opportunities for individuals to alert the 10 Commission to new and significant information that 11 might render a generic finding invalid, either with 12 respect to all nuclear power plants or for one plant 13 in particular." 14 In the hearing process, for example, 15 Petitioners with new information showing that a 16 generic rule would not serve its purpose at a 17 particular plant may seek a waiver of the rule. And 18 I'm going to omit citations.
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| 19 It goes on to say, "Such petitioners may 20also use the SEIS notice and comment process to ask 21 the NRC to forego use of the suspect generic finding 22 and to suspend license renew proceedings pending a 23 rulemaking or updating of the GEIS." But they -- if 24 they want to challenge significant new information, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 247 they have to seek a waiver, and that's a paraphrase.
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| 1 The Commission said, "In the hearing 2 process, Petitioners with new information showing a 3generic rule would not serve its purpose. A 4 particular plant may seek a waiver -- a waiver of the 5 rule." 6 The Commission said the same thing in 7 Limerick, issue in CLI-12-19, and this is the decision 8 as 76 NRC page 77.
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| 9 The Licensing Board in that proceeding 10 admitted a contention because the petitioner said this 11 is new and significant information, so we're not 12 challenging the GEIS, but they're saying here is new 13 information that should be litigated, and the Board 14 agreed; the Commission reversed.
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| 15 And the Commission said, and they are 16 quoting from an earlier decision in Vermont 17 Yankee/Pilgrim, they say, "As we explained, 18 adjudicating Category 1 issues site by site based 19 merely on a claim of new and significant information 20 would defeat the purpose of resolving generic issues 21 in the GEIS. Therefore, we determined that a waiver 22was required to litigate any new and significant 23 information relating to a Category 1 issue." 24 Because the Petitioner had not requested 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 248 a waiver, we affirmed the Board's rejection of the 1contention in that proceeding. So that's a clear aim.
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| 2 If a petitioner wants to raise new and significant 3 information that would undercut the GEIS 4 determination, there is a simple process. They file 5 a petition for waiver, and then they can get the 6 Commission to agree, yes, we are going to set aside 7 the GEIS determination and we go forward into 8 litigation.
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| 9JUDGE HAWKENS: Any other questions?
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| 10 Anything else from the NRC staff?
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| 11 MR. AYRES: Nothing. No, Your Honor.
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| 12JUDGE HAWKENS: I believe Joint 13Petitioners have as much as 20 minutes left to them 14 for rebuttal.
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| 15MR. RUMELT: We will do better than that.
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| 16JUDGE HAWKENS: Thank you. You may use 17 the full amount, though, if you wish.
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| 18 MR. RUMELT: Okay.
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| 19 JUDGE HAWKENS: We do have time.
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| 20MR. RUMELT: So I'd like to first address 21 this issue of the CEQ guidance, and the status of the 22 law with respect to what the gentleman down the table 23 from me referenced as a reverse EIS. And, you know, 24 I'll share that we briefed this issue in our September 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 249 10th reply, specifically at page 46 and 47, and it's 1 the Aqualiance case.
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| 2 But I think the takeaway from that case 3 with respect to the CEQ guidance is that, as the 4 government admitted there, that guidance never changed 5any responsibilities under NEPA. It remained the same 6 both before and afterwards.
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| 7 So the issue is, what does NEPA require, 8 not what does the CEQ guidance say, and NEPA says take 9a hard look at environment impacts. You can't look at 10-- you can't take a hard look at environmental impacts 11 without fully understanding the affected environment 12 and cumulative impacts.
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| 13 Another thing we just heard is, well, it 14 seems like it's a bit of a moving target. You know, 15 in one sense, climate change is one reasonably 16foreseeable future action. We heard that from the NRC 17staff's attorneys. But if it's -- and that's for 18 purposes of contention 4E.
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| 19 But then, if I understood correctly, it is 20 not a reasonably foreseeable future action with 21 respect to contention 2E, which is the cumulative 22 impacts. So I think the correct answer here is that 23 it is reasonably foreseeable that there will be an 24 impact on the affected resources at issue in this --
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 250in this relicensing case. Again, Florida Power &
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| 1 Light's plant sits just, you know, basically on the 2 bay, a couple, you know, matter of feet above sea 3level. And as the sea rises, it is going to push the 4 saltwater up, and we have already discussed a lot of 5 those issues.
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| 6 We heard that contention 2E should fail 7 because we didn't provide the height of the barrier 8that protects the cooling canal system. But as we 9 mentioned in our brief, obviously, as Florida Power &
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| 10 Light did in their safety review, they addressed 11 concerns about flooding impacts to areas higher than 12 the cooling canal system, and necessarily higher than 13 the barriers.
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| 14 You wouldn't reach these higher levels if 15you wouldn't overtop the canals. This is pretty 16simple stuff. I don't think our contention should 17 fail for that kind of flyspecking argument.
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| 18 JUDGE HAWKENS: I'm just wondering, were 19 you as specific in your pleadings as you are with us 20 right now, factually?
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| 21 MR. RUMELT: Factually, yes.
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| 22 MR. AYRES: Yeah.
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| 23MR. RUMELT: We cited to their -- their 24 safety analysis report and our expert report as far as 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 251 where -- how high sea levels would go.
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| There was a 1 prediction in the safety analysis that sea levels 2would rise I believe it was .39 feet during the 3 current license term, and that the safety measures to 4 protect against flooding impacts, including from 5natural weather phenomenon, were insufficient. And 6 these are areas that are located above the cooling 7 canal system, and necessarily wouldn't be impacted 8 unless there was overtopping of the barrier that 9 protects the cooling canals.
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| 10 And my colleague here is reminding me to 11 reference Dr. Cobb's report, so Dr. Cobb, again, one 12 of the foremost experts on sea level rise, has 13 provided testimony that sea levels will rise 14 significantly and impact the rate of flooding and the 15 occurrence of flooding at the plain.
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| 16And so these are all things that are, 17 again, reasonably foreseeable and need to be 18 evaluated.
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| 19 Let's see, there was the issue of air 20 temperature and whether or not that is going to impact 21a plant's efficiency. Well, we have had several 22 uprates at the plant that were required because the 23 plant -- the cooling water wasn't cool enough in the 24canals. In order to run at maximum efficiency, the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 252 cooling canals have to be at a certain temperature.
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| 1 And if those -- if the air temperatures rise by X 2 number of degrees, and I believe, if I remember 3 correctly, we are looking at a three to four or higher 4 increase in temperature, that necessarily is going to 5 increase the temperature of the cooling canals.
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| 6 And if -- and when that temperature 7 increases, it is going to reduce the efficiency of the 8 plant, or they are going to have to get some other 9 kind of uprate or draw more resources and freshen the 10canal to cool it off more. So there are impacts that 11 need to be considered that haven't been considered.
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| 12 Let's see. Okay.
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| 13MR. AYRES: I have just two points I 14wanted to -- at this late hour -- mention. The first 15 has to do with the Commission staff's view of how they 16 are supposed to view state and local requirements, and 17 they have offered us today repeatedly the kind of 18 blanket statement that we just defer, we just assume 19 or -- we assume that the consent agreements and 20 permits will be carried out, and whatever they say is 21 going to happen is what is going to happen.
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| 22 On the other hand, they have argued that 23 even a little break in that rule would destroy the 24whole edifice and they would be questioning every 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 253single permit on them. Well, I think that's really 1 not right.
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| 2 The general rule about deferring to 3 situations where the state has required something and 4 the applicant is in compliance with it makes a lot of 5 sense. In this case, however, the applicant did not 6comply. The applicant was, in fact, subject to a 7 consent agreement, which is an enforcement measure, 8 not a permit, and the enforcement measure exists 9 because they were not complying with the permit.
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| 10 So under those circumstances, we are 11 saying the Commission should look with less deference 12 toward the likelihood that the results that are 13 predicted in the consent agreement will actually 14occur. And in this case, the fact that the consent 15 agreement is kind of vague, you know, it says, "Here 16 is the measures that we are going to do; if that 17 doesn't achieve the goal, we will do something else," 18 but it doesn't say what, and this is a very open-ended 19 consent agreement.
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| 20 And under those circumstances, it seems to 21 us the staff ought to look carefully and make its own 22 assessment, when it's considering what alternatives 23 exist, about the probability that the goal of the 24 consent agreement will actually be achieved.
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 254 End of comments on that.
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| 1 A final point. The Commission staff has 2 done quite a dance today about exactly why they 3 endorse the idea of accepting the admissibility of the 4alternatives proposal that we made. And all of you 5 have tried to pin them down with some success, but not 6 entire success.
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| 7 I want to read to you a statement from 8 their brief, their response brief, to our initial 9petition. On page 68 of their brief it says, "As 10 stated in the staff's response to the Joint 11 Petitioners' contention 1E, NEPA requires the NRC to 12 consider reasonable alternatives to the proposed 13 federal action." 14 And the Commission's regulations in 10 CFR 15 Part 51 require the staff's SEIS for license renewal 16 to consider "the environmental impacts of alternatives 17 to the proposed action and alternatives available for 18 reducing or avoiding adverse environment effects." 19 Accordingly, the NRC staff does not oppose 20 the admission of SEIS contention 2 as a contention of 21 omission.
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| 22 Now, even that is --
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| 23 JUDGE HAWKENS: Is that 51.45 there?
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| 24 MR. AYRES: Yes. So even that statement 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 255is slightly unclear. But it seems to us very clear 1 that the Commission has now taken a very different 2 position here from what it took in the briefing that 3 we did. 4 And we believe that the Commission staff 5 should be required to make a statement on this, and we 6 should be allowed the chance to respond to it, because 7 they are now resting their conclusion on an entirely 8 different grounds from the one they cited in their 9 brief.10 So we would request that the Board require 11 the staff to provide such a statement and give us the 12 opportunity to respond to it.
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| 13 MS. CURRAN: I just want to add that the 14 staff said verbatim the same thing in response to our 15 contention, and actually the regulation they cited, 16 there is two, 51.71(d), 51.95(c)(1) and (2). And we 17 just -- we haven't -- the argument that was made today 18 we just haven't seen before, and we're responding off 19 the cuff, and it just seems fair that if the staff is 20 going to take a different position on our contentions 21that we have a chance to respond in writing. This is 22-- this is new to us, that the staff has basically 23 changed its view between writing the response to our 24 contentions and coming up to this.
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 256 JUDGE HAWKENS: Excuse us.
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| 1 (Pause.)2MR. TURK: Your Honor, I don't know if I'm 3 being invited to respond, but I would --
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| 4 JUDGE HAWKENS: Of course we will invite 5 you to respond. We wouldn't take any action without 6 hearing your response.
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| 7 MR. TURK: I don't see an inconsistency.
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| 8 On page 30 of the staff's response to the Petitioners' 9 contentions, there is a footnote in which we cited 1051.71(d) and 51.95(c). The text stated, as the 11 Petitioners' counsel said before me, that the staff is 12required to consider reasonable alternatives. And, 13 accordingly, we don't oppose -- oh, and the staff's 14SAS will do that. Accordingly, we don't oppose the 15 admission of the contention.
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| 16 In footnote 112, we stated, "In 17 undertaking an evaluation of a cooling tower 18 alternative, the staff expresses no position regarding 19 the environmental impacts of CCS operation or the need 20 for further mitigation of those impacts beyond the 21 measures currently in place or mandated by state or 22 local regulatory authorities." 23Perhaps I could have been more clear. My 24 position today is the same as the position that I 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 257 thought we were expressing in the brief, which is 1 consideration of cooling towers as an alternative is 2 not required.
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| 3 We will be doing so, but we're not saying 4 that it's necessary to consider that beyond the 5mitigation measures already considered in the ER. And 6 that has been our position, perhaps not as 7articulately stated as Ms. Curran or other counsel 8 would prefer.
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| 9 JUDGE HAWKENS: All right. Any response 10 to that?11 MR. AYRES: No, Your Honor.
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| 12 JUDGE HAWKENS: All right. Mr. Turk, we 13 would be grateful if you could provide a clarification 14of your position on the issue. And if you could limit 15 it to 10 pages, and tell me what a reasonable time 16 would be to ask you to file it.
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| 17MR. TURK: We certainly can limit it to 10 18pages. Hopefully, it will be far less. I will be 19away from the office until next Monday, but I could 20 turn to it then and perhaps get it to you a week 21afterwards. So if we can say two weeks from today, or 22 sooner, if you'd prefer.
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| 23JUDGE HAWKENS: We'll say no later than 24 two weeks from today.
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 258 MR. TURK: Okay.
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| 1JUDGE HAWKENS: And after that has been 2 filed, we'll give all of the other parties and 3 participants an opportunity to respond, limiting it to 4 10 pages, and tell me when -- assuming we get the 5 filing two weeks from today, how would you like to 6 switch? 7MS. CURRAN: We're trying to figure out if 8 our response time falls over the holiday.
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| 9JUDGE HAWKENS: That's fair. If somebody 10 has a calendar, maybe you can look at it.
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| 11 MR. WACHUTKA: Two weeks is January 1st.
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| 12 JUDGE HAWKENS: Say again?
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| 13MR. WACHUTKA: Two weeks after that is 14 January 1st.
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| 15JUDGE HAWKENS: We probably don't want to 16-- yours will be January 14th; is that --
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| 17 MR. WACHUTKA: December 18th.
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| 18JUDGE HAWKENS: Excuse me. December 18th.
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| 19 MR. WACHUTKA: 18th, 14 days.
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| 20 JUDGE HAWKENS: Okay. I'm with you. So 2114 days will be January 1st. Do you want to do 22 January 7th or -- would that work?
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| 23MS. CURRAN: We could do January 7th.
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| 24 That's -- we appreciate that. Thank you.
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| 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433 259MR. AYRES: We wouldn't ask under any 1 other circumstances.
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| 2 JUDGE HAWKENS: Limit it to 10 pages?
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| 3 MS. CURRAN: Yes.
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| 4JUDGE HAWKENS: And if that's -- you're 5 agreeable with that as well. Good.
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| 6 At this point, do counsel have any other 7 issues they'd like to raise?
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| 8 MR. LIGHTY: None from FPL, Your Honor.
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| 9 MS. CURRAN: No.
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| 10 JUDGE HAWKENS: All right.
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| 11 MR. AYRES: Thank you, Your Honors.
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| 12JUDGE HAWKENS: Thank you for the filings.
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| 13Thank you for the oral presentations. They will be 14 helpful to all of us in considering and resolving the 15issues presented. Thank you for accommodating the 16 unexpected events today of the school's lockdown and 17evacuation. I commend all of you for working through 18 it.19 Thank you to the audience for your 20 indulgence, and we are adjourned.
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| 21 (Whereupon, the above-entitled matter went 22 off the record at 3:58 p.m.)
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| 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W.(202) 234-4433WASHINGTON, D.C. 20005-3701(202) 234-4433}}
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