ML19015A317

Petitioners' Response to Applicant'S New Arguments on the Admissibility of Petitioners' Cooling Tower Contentions

ML19015A317
Person / Time
Site:	Turkey Point
Issue date:	01/15/2019
From:	Ayres R, Cox K, Curran D, Fettus G, Rumelt K Ayres Law Group, LLP, Friends of the Earth, Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP, Natural Resources Defense Council, Southern Alliance for Clean Energy, Vermont Law School
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-250-SLR, 50-251-SLR, ASLBP 18-957-01-SLR-BD01, RAS 54754
Download: ML19015A317 (8)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of )

Florida Power and Light Company ) Docket Nos. 50-250/251-SLR Turkey Point Units 3 and 4 )

_____________________________________)

PETITIONERS RESPONSE TO APPLICANTS NEW ARGUMENTS ON THE ADMISSIBILITY OF PETITIONERS COOLING TOWER CONTENTIONS Petitioners, Southern Alliance for Clean Energy, Friends of the Earth, Natural Resources Defense Council, and Miami Waterkeeper, hereby respond to new arguments presented by Applicant Florida Power & Light (FPL) in its latest filing regarding the admissibility of Joint Petitioners Contention 1-E and SACE Contention 2 (Alternative Cooling Systems). Petitioners response is narrowly tailored to address only those issues that FPL raised for the first time in its January 7, 2019 filing, including mischaracterizations of the record.

FPL represents throughout its latest filing that the Staff agrees that FPL had no duty under NEPA or Part 51 to evaluate a cooling tower mitigation alternative in the ER . . . .1 But FPLs response mischaracterizes the NRC Staffs Clarification by omitting the Staffs position, which accords with NEPA, that the consideration of such an alternative [cooling towers] is governed by the rule of reason and the principle of proportionality.2 Thus, while the words 1

Applicants Response to the NRC Staffs Clarification Regarding the Admissibility of Proposed Cooling Tower Contentions (Jan. 7, 2019) (hereinafter Applicants Response) at 5.

2 NRC Staffs Clarification of Its Views Regarding the Admissibility of Joint Petitioners Contention 1-E and SACE Contention 2 (Alternative Cooling Systems) (Dec. 18, 2018)

(hereinafter Staff Clarification) at 8.

1

cooling tower mitigation alternative do not appear in the text of NEPA or Part 51 regulations, FPL is not absolved from considering cooling towers as a reasonable alternative under NEPA and Part 51 regulations. Whether a cooling tower alternative is reasonable in this instance is a litigable issue, as the Staff has conceded.

FPL also claims for the first time that a further duty to consider cooling towers arises only if: (1) there is a reasonably likely, otherwise-unmitigated impact not bounded by the existing mitigation discussion, and (2) cooling towers would be a proportional response to that otherwise-unmitigated impact.3 This new FPL-proposed test differs in material respects from those raised in FPLs earlier filings, is found nowhere in the case law, and significantly exceeds the rule of reason standard that governs NEPA.4 Thus, FPLs argument should be rejected. In any event, assuming for the sake of argument this were accepted as the appropriate test, Petitioners have still presented admissible contentions.

The most significant hurdle in FPLs newly-crafted test would be the need to establish a genuine dispute that unmitigated impacts are reasonably likely to occur. But even if such a showing were to be required at this stage, Petitioners would satisfy the requirement with evidence they cite demonstrating FPLs existing mitigation measures for the Cooling Canal System (CCS) are not working as intended.5 Therefore, when viewed in a light most favorable to 3

Applicants Response at 5 (internal footnotes and case citations omitted).

4 WildEarth Guardians v. Jewell, 738 F.3d 298, 310 (D.C. Cir. 2013) (the rule of reason govern[s] both which alternatives the agency must discuss, and the extent to which it must discuss them) (emphasis in original).

5 Request for Hearing and Petition to Intervene Submitted by Friends of the Earth, Natural Resources Defense Council, and Miami Waterkeeper (Aug. 1, 2018) (Joint Petitioners Petition) 2

Petitioners,6 as the evidence must be for purposes of admissibility, the impacts FPL claims are mitigated must be assumed to be otherwise-unmitigated. Since effective preventative measures must be assumed not to be in place, these unmitigated impacts would be reasonably likely to occur. Nothing more is required of Petitioners at this stage in the proceeding other than to demonstrate this genuine dispute.7 Petitioners have also satisfied FPLs next proposed requirement, i.e., that otherwise-unmitigated impacts are not bounded by the existing mitigation discussion. FPLs existing mitigation discussion asserts that CCS impacts will be mitigated; but Petitioners evidence indicates they will not. Again, Petitioners have satisfied FPLs proposed test by demonstrating a genuine dispute.

at 26 n. 113-114; Southern Alliance for Clean Energys Request for Hearing and Petition to Intervene at 29 (Aug. 1, 2018) (SACE Petition) (asserting that mechanical draft cooling towers are a preferred alternative because they would likely eliminate the adverse impacts of continuing to operate the cooling canal system (CCS) that are set forth in Contention 1; SACE Petition at SACE Petition at 30 (citing expert report of Bill Powers for the proposition that mechanical draft cooling towers would avoid the continued concentration of salt in the CCS by evaporation of the brackish water in the CCS and that the CCS could be restored to a thriving seagrass community if use of mechanical draft cooling towers eliminated the need to pump water into the CCS to maintain salinity below 34 psu).

6 S. Nuclear Operating Co. (Vogtle Nuclear Generating Station, Units 3 and 4), LBP-10-1, 71 N.R.C. 165, 179 (2010).

7 Staffs unwillingness to express an opinion on environmental impacts from the CCS or whether FPLs ongoing mitigation measures are sufficient does not negate the genuine dispute between Petitioners and FPL. Whats left is FPLs assertion that the mitigation measures are effective and Petitioners evidence that they are not.

3

Though Petitioners reject the notion that the question of proportionality is a threshold question for purposes of admissibility,8 even if it were Petitioners have demonstrated that a discussion of the cooling tower alternative is required under NEPA and Part 51. To begin with, the ER admits that the current impacts are significant enough to require discussion of mitigation alternatives: the ER discusses existing measures to mitigate impacts from continued operation of the CCS. Petitioners show that the cooling tower alternative is reasonable and feasible alternative to address these otherwise-unmitigated impacts. Under these circumstances, Petitioners have met any conceivable proportionality test.

FPL also asserts a new legal argument that NEPA does not impose on agencies a duty to determine the best mitigation measures for a potential environmental harm and that an empirical demonstration of the effectiveness of a mitigation measure is not required to satisfy NEPA.9 But the cases cited by FPL relate to merits decisions on the adequacy of discussions of alternatives in two environmental assessments, and thus are inapplicable to the legal question raised here: whether FPL has violated NEPA and NRC implementing regulations by completely omitting consideration of a reasonable mitigation alternative, mechanical draft cooling towers.

Even FPL acknowledges that NEPA requires consideration of an appropriate range of alternatives.10 Nothing in the case law supports FPLs apparent view that NEPA is satisfied as 8

FPL fails to cite a single case where a contention was found inadmissible for failure to address the so-called proportionality requirement.

9 Applicants Response at 6 (citing Fla. Power & Light Co. (Turkey Point Units 3 and 4), CLI-16-18, 84 NRC 167, 173 (2016) and Crow Butte Res., Inc. (License Renewal for the In Situ Leach Facility, Crawford, Neb.), CLI-18-08, 88 NRC __, __ (Nov. 29, 2018) (slip op. at 9-11).

10 Id. (emphasis in original).

4

long as it discusses a set of mitigation activities of its own choosing.11 To the contrary, the Supreme Court has held that without a reasonably complete discussion of possible mitigation measures . . . neither the agency nor other interested groups and individuals can properly evaluate the severity of the adverse effects.12 As the Court explained, An adverse effect that can be fully remedied by, for example, an inconsequential public expenditure is certainly not as serious as a similar effect that can only be modestly ameliorated through the commitment of vast public and private resources.13 Any perception that the availability of alternatives is inextricably tied to evaluating the seriousness of the adverse impacts is inconsistent with allowing the applicant to arbitrarily limit the alternatives considered in the ER. NEPA requires the Applicant to analyze reasonably complete discussion of possible mitigation measures, not a limited subset of the companys choosing.

For the foregoing reasons, the Board should not credit FPLs additional and new arguments in response to the Staffs Clarification and admit Petitioners cooling tower contentions for further proceedings.

11 Applicants Response at 6-7 (emphasis added).

12 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 352 (1989) (emphasis added).

13 Id.

5

Respectfully submitted,

___/signed electronically by/__

Diane Curran Harmon, Curran, Spielberg, & Eisenberg, L.L.P.

1725 DeSales Street N.W., Suite 500 Washington, D.C. 20036 240-393-9285 dcurran@harmoncurran.com Counsel to SACE

___/signed electronically by/__

Richard Ayres 2923 Foxhall Road, N.W.

Washington, D.C. 20016 202-744-6930 ayresr@ayreslawgroup.com Counsel to Friends of the Earth

___/signed electronically by/__

Geoffrey H. Fettus NATURAL RESOURCES DEFENSE COUNCIL 1152 I Street, N.W., Suite 300 Washington, D.C. 20005 202-289-2371 gfettus@nrdc.org Counsel to Natural Resources Defense Council

___/signed electronically by/__

Professor Ken Rumelt Vermont Law School 164 Chelsea Street, PO Box 96 South Royalton, VT 05068 802-831-1000 krumelt@vermontlaw.edu Counsel to Friends of the Earth 6

___/signed electronically by/__

Kelly J. Cox Miami Waterkeeper 2103 Coral Way, 2nd Floor Miami, FL 33145 (305) 905-0856 kelly@miamiwaterkeeper.org Counsel to Miami Waterkeeper January 15, 2019 7

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of )

Florida Power and Light Company ) Docket Nos. 50-250/251-SLR Turkey Point Units 3 and 4 )

_____________________________________)

CERTIFICATE OF SERVICE I certify that on January 15, 2019, I posted copies of the foregoing PETITIONERS RESPONSE TO APPLICANTS NEW ARGUMENTS ON THE ADMISSIBILITY OF PETITIONERS COOLING TOWER CONTENTIONS on the NRCs Electronic Information Exchange System.

___/signed electronically by/__

Geoffrey H. Fettus 8