ML21257A467

NRC Staffs Brief in Opposition to Physicians for Social Responsibility Wisconsins Appeal of LBP-21-5 (Corrected)

ML21257A467
Person / Time
Site:	Point Beach
Issue date:	09/14/2021
From:	Jones T, Jeremy Wachutka, Matt Young NRC/OGC
To:	NRC/OCM
SECY RAS
References
50-266-SLR, 50-301-SLR, LBP-21-5, RAS 56242, Subsequent License Renewal
Download: ML21257A467 (29)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

BEFORE THE COMMISSION

In the Matter of

NEXTERA ENERGY POINT BEACH, LLC Docket Nos. 50-266 & 50-301-SLR

(Point Beach Nuclear Plant, Units 1 and 2)

NRC STAFFS BRIEF IN OPPOSITION TO PHY SICIANS FOR SOCIAL RESPONSIBILITY WISCONSINS APPEAL OF LBP-2 1-5 (CORRECTED)

Jeremy L. Wachutka Mitzi A. Young Travis C. Jones

Counsel for NRC Staff

September 14, 2021

TABLE OF CONTENTS

Table of Contents........................................................................................................................... i Table of Authorities........................................................................................................................ ii NRC Staffs Brief in Opposition t o Physicians f or Social Responsibility Wisconsins Appeal of LBP-21-5 (Corrected)............................................................................................ 1 Introduction................................................................................................................................... 1 Background................................................................................................................................... 2 Discussion..................................................................................................................................... 3 I. Legal Standards.................................................................................................................... 3 II. The Commission Should Affirm the Boards Decision Regarding Contention Admissibility Because Petitioner Does Not Identify a Specific Board Error of Law or Abuse of Discretion............................................................................................................ 4 A. Petitioner Identifies No Specific Error of Law or Abuse of Discretion in the Boards Rejection of Proposed Contention 1...................................................................... 4

1. Petitioner s Arguments Raised for the First Time on Appeal Should Be Rejected and Do Not Show a Board Error of Law or Abuse of Dis cretion...................... 5

2. Recitation of Previous Claims Does Not Show Board Error of Law or Abuse of Discretion in Applying Contention Admissibility Standards....................................... 11 B. Petitioner Identifies No Specific Error of Law or Abuse of Discretion in the Boards Rejection of Proposed Contention 2................................................................... 14

1. The Board Did Not Misread Proposed Contention 2.................................................... 15

2. The Board Did Not Require Petitioner to Litigate Proposed Contention 2 on its Merits....................................................................................................................... 17 C. Petitioner Identifies No Specific Error of Law or Abuse of Discretion in the Boards Rejection of Proposed Contention 3................................................................... 19 D. Petitioner Concedes the Boards Rejection of Proposed Contention 4........................... 211 Conclusion.................................................................................................................................. 22

ii

TABLE OF AUTHORITIES

JUDICIAL DECISIONS

Assoc. of Am. R.R. v. S. Coast Air Quality Mgmt. Dist.,

622 F.3d 1094 (9 th Cir. 2010)..................................................................................................... 7 Epic Sys. Corp v. Lewis, __ U.S. __, 138 S. Ct. 1612 (2018).......................................................... 7 Found. for N. Am. Wild Sheep v. U.S. Dept of Agric.,

681 F.2d 1172 (9th Cir. 1982)...................................................................................................... 8 Natl Whistleblower Ctr. v. NRC, 208 F.3d 256 (D.C. Cir. 2000)................................................... 17 Natl Whistleblower Ctr. v. NRC, 531 U.S. 1070 (2001)................................................................. 17

ADMINISTRATIVE DECISIONS

Commission

AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-06-24, 64 NRC 111 (2006)................................................................................................... 3 Balt. Gas & Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units 1 & 2),

CLI-98 -25, 48 NRC 325 (1998)................................................................................................. 17 Crow Butte Resources, Inc. (Marsland Expansion Area),

CLI-14-2, 79 NRC 11 (2014)........................................................................................................ 4 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3),

CLI-08-17, 68 NRC 231 (2008)................................................................................................... 3 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3),

CLI-15-6, 81 NRC 340 (2015)..................................................................................................... 4 Entergy Nuclear Vt. Yankee, LLC, & Entergy Nuclear Operations, Inc.

(Vt. Yankee Nuclear Power Station), CLI-07 -16, 65 NRC 371 (2007)........................................ 7 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 6 and 7),

CLI-17 -12, 86 NRC 215 (2017 )................................................................................................ 4, 5 Holtec International (HI-STORE Consolidated Interim Stor age Facility),

CLI-20-4, 91 NRC 167 (2020)................................................................................................. 3, 4 International Uranium (USA) Corp. (White Mesa Uranium Mill),

CLI-01-21, 54 NRC 247 (2001)............................................................................................. 4, 22 PPL Susquehanna LLC (Susquehanna Steam Electric Station, Units 1 an d 2),

CLI-07 -25, 66 NRC 101 (2007 )................................................................................................... 3 Private Fuel Storage, LLC (Private Fuel Storage Facility),

CLI-00-21, 52 NRC 261 (2000).................................................................................................. 3 Progress Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plant, Units 2 and 3), CLI 9, 71 NRC 245 (2010)....................................................................... 4, 22 Shieldalloy Metallurgical Corp. (License Amendment Request for Decommissioning of the Newfield, New Jersey Facility), CLI-07 -20, 65 NRC 499 (2007)............................. 5, 8, 17 iii

Strata Energy, Inc. (Ross In Situ Recovery Uranium Project),

CLI-16-13, 83 NRC 566 (2016)................................................................................................... 4 Atomic Safety and Licensing Appeal Boar d Carolina Power & Light Co. (H.B. Robinson, Unit 2),

ALAB-569, 10 NRC 557 (1979).................................................................................................. 9 Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2),

ALAB-942, 32 NRC 395 (1990)................................................................................................. 4 Atomic Safety and Licensing Board Panel

NextEra Energy Point Beach, LLC (Point Beach Nuclear Plant, Units 1 and 2),

LBP-21-5, 94 NRC __ (July 26, 2021).............................................................................. passim

STATUTES

33 U.S.C. § 1251 et seq................................................................................................................. 5 33 U.S.C. § 1326(a)....................................................................................................................... 5 33 U.S.C. § 1326(b)....................................................................................................................... 5 33 U.S.C. § 1342(b)....................................................................................................................... 5 33 U.S.C. § 1371(c)(2)................................................................................................................... 9

REGULATIONS

10 C.F.R. § 2.309(f)(1)......................................................................................................... passim 10 C.F.R. § 2.309(f)(2)................................................................................................................... 9 10 C.F.R. § 2.311............................................................................................................................ 3 10 C.F.R. § 2.311(b)....................................................................................................................... 1 10 C.F.R. § 2.335........................................................................................................................... 7 10 C.F.R.§ 2.335(b)..................................................................................................................... 13 10 C.F.R. Part 51, Subpart A, Appendix B............................................................................... 10, 12 10 C.F.R. Part 51, Subpart A, Appendix B, Table B -1................................................................... 21 10 C.F.R. § 51.53(c)(3)(ii)(B)................................................................................................ passim 10 C.F.R. § 51.45(c).................................................................................................................... 13 10 C.F.R. § 51.71(d) n.3............................................................................................................ 9, 10

MISCELLANEOUS

NextEra Energy Point Beach, LLC; Point Beach Nuclear Plant, Units 1 and 2, 86 Fed. Reg. 6684 (Jan. 22, 2021)............................................................................................ 2 iv

National Pollutant Discharge Elimination SystemFinal Regulations to Establish Requirements for Cooling Water Intake Structures at Existing Facilities and Amend Requirements at Phase I Facilities, 79 Fed. Reg. 48,300 (Aug. 15, 2014)................................. 5

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

BEFORE THE COMMISSION

In the Matter of

NEXTERA ENERGY POINT BEACH, LLC Docket Nos. 50-266 & 50-301-SLR

(Point Beach Nuclear Plant, Units 1 and 2)

NRC STAFFS BRIEF IN OPPOSITION TO PHYSICIANS FOR SOCIAL RESPONSIBILITY WISCONSINS APPEAL OF LBP-21 -5 (CORRECTED )

INTRODU CTION

In accordance with 10 C.F.R. § 2.311(b), the U.S. Nuclear Regulatory Com mission Staff

files this brief in opposition to the Physicians for Social Responsibility Wisconsin (PSR WI or

Petitioner) appeal of Atomic Safety and Licensing Board Memorandum and Order LBP-2 1-5. 1

On appeal, Petitioner argues that the Board unlawfully rejected its proposed contentions by

misconstruing the contention admissibility requirements and that the Board should have

admitted Petitioner s proposed Contentions 1, 2, and 3. 2 But Petitioner fails to identify any

specific Board error of law or abuse of discretion. Instead, Petitioner simply restates and

impermissibly supplements arguments it previously made to the Boar d or expresses general

disagreement with LBP-21-5. Because Petitioner has not identified a specific Board error of law

or abuse of discretion, the Commission should affirm LBP-2 1-5.

1 Notice of Appeal of LBP-21-05 by Petitioner Physicians for Social Responsibility Wisconsin and Brief in Support of Appeal (Refiled) (Aug. 20, 2021) (ML21232A700) (Appeal); NextEra Energy Point Beach, LLC (Point Beach Nuclear Plant, Units 1 and 2), LBP-21-5, 94 NRC __ (July 26, 202 1) (slip op.) (LBP-21-5).

2 Appeal at 3, 26.

2

BACKGROUND

By letter dated November 16, 2020, NextEra Energy Point Beach, LLC (NextEra)

submitted a subsequent license renewal applic ation (SLRA) for Point Beach Nuclear Plant,

Units 1 and 2 (Point Beach) to renew the Point Beach operating licenses for an additional 20

years. 3 The proposed action would extend the Unit 1 license to October 5, 2050 and the Unit 2

license to March 8, 2053. On January 22, 2021, the NRC published a notice of opportunity to

petition for leave to intervene on the SLRA, which set March 23, 2021 as the deadline for these

filings. 4 In response, Petitioner submitted a petition for leave to intervene, including four

proposed contentions. 5 The Staff and NextEra filed answers in opposition to the Petition,

arguing that none of the proposed contentions were admissible; Petitioner replied. 6

Contemporaneously with the filing of i ts Reply, and after the March 23 filing deadline, Petitioner

filed a motion for leave to file amended proposed Contention 2. 7 The Staff filed an answer that

3 Letter from Michael Strope, Site Vice President, NextEra, to NRC, Application for Subsequent Renewed Fa cility Operating Licenses (Nov. 16, 2020) (ML20329A293 in ADAMS Package No. ML20329A292).

The enclosures to this letter include: Encl. 3, Att. 1, Point Beach Nuclear Plant Units 1 and 2 Subsequent License Renewal Application (Public Version) (Nov. 2020) (ML20329A247) (SLRA); Encl. 3, Att. 2, Appendix E Applicants Environmental Report Subsequent Operating License Renewal Point Beach Nuclear Plant Units 1 and 2 (Nov. 2020) (ML20329A248) (Environmental Report).

4 NextEra Energy Point Beach, LLC; Point Beach Nuclear Plant, Units 1 and 2, 86 Fed. Reg. 6684 (Jan. 22, 2021).

5 Petition of Physicians for Social Responsibility Wisconsin for Leave to Intervene in Point Beach Nuclear Plant, Units 1 and 2 Subsequent License Renewal Proceeding, and Requesting an Adjudicatory Hearing (Mar. 23, 2021) (ML21082A530) (Petition).

Attached to the Petition are: Declarations in Support of Petition of Physicians for Social Responsibility Wisconsin for Leave to Intervene (Mar. 23, 2021) (ML21082A531); Declaration of Arnold Gundersen (Mar.

23, 2021) (ML21082A532); Declaration of Alvin Compaan, Ph.D (Mar. 23, 2021) (ML21082A533);

Declaration of Mark Cooper, Ph.D (Mar. 23, 2021) (ML21082A534).

6 NRC Staffs Answer Opposing Physicians for Social Responsibility Wisconsins Petition to Intervene (Apr. 19, 2021) (ML21109A387) (Staff Answer); NextEra Energy Point Beach, LLCs Answer Opposing the Physicians for Social Responsibility Wisconsins Petition for Leave to Intervene and Request for Hearing (Apr. 19, 2021) (ML21109A133); Physicians for Social Responsibility Wisconsins Reply in Support of Petition for Leave to Intervene in Point Beach Nuclear Plant, Units 1 and 2 Subsequent License Renewal Proceeding, and Requesting an Adjudicatory Hearing (Apr. 26, 2021) (ML21116A578) (Reply).

7 Physicians for Social Responsibility Wisconsins Motion to Amend Contention 2 (Inadequately Tested Reactor Coolant Pressure Boundary) (Apr. 26, 2021) (ML21116A577) (Motion). Attached to the Motion is the Supplemental Declaration of Arnold Gundersen, Nuclear Engineer (Apr. 26, 2021).

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did not oppose the M otion, but argued that amended proposed C ontention 2 is inadmissible,

and NextEra filed an answer opposing the M otion; Petitioner replied. 8

On June 22, 2021, the Board held oral argument on the four proposed contentions and

the Motion. 9 Subsequently, in LBP-21-5, the Board granted the Motion and held that Petitioner

had established representational standing to intervene, but had failed to proffer at least one

admissible contention and, therefore, the Board denied the Petition. 10 Petitioner now appeals

and argues that the Board should have admitted its proposed Contentions 1, 2, and 3. 11

DISCUSSION

I. Legal Standards

Under 10 C.F.R. § 2.311, a Board order denying a petition to intervene is appealable by

the petitioner on the question as to whether the petition should have been granted. O n

threshold matters such as contention admissibility and standing, the Commission generally

defer[s] to the Board unless an appeal demonstrates an error of law or abuse of discretion. 12

Similarly, the Commission g enerally defer[s] to the Board on questions pertaining to the

8 NRC Staffs Answer to Physicians For Social Responsibility Wisconsins Motion for Leave to File Amended Proposed Contention 2 (May 21, 2021) (ML21141A042) ; NextEra Energy Point Beach, LLCs Answer Opposing the Physicians for Social Responsibility Wisconsins Amendment of Contention 2 (May 21, 2021) (ML21141A097); Physicians for Social Responsibility Wisconsins Combined Reply in Support of Motion to Amend Contention 2 (Inadequately Tested Reactor Coolant Pressure Boundary) (May 28, 2021)

(ML21148A310).

9 See Transcript of Oral Argument at 1-142 (June 22, 2021) (ML21176A136) ( Tr. ); Order (Adopting Transcript Corrections) (July 14, 2021) (unpublished) (ML21195A052).

10 LBP-21-5 at __ (slip op. at 31, 51).

11 Appeal at 3, 26. While Petitioner initially argues that all four of its proposed contentions were improperly rejected, it later concedes the rejection of proposed Contention 4. See id.

12 Holtec International (HI-STORE Consolidated Interim Storage Facility), CLI 4, 91 NRC 167, 173 (2020); see also Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3), CLI-08-17, 68 NRC 231, 234 (2008); PPL Susquehanna LLC (Susquehanna Steam Electric Station, Units 1 and 2),

CLI-07-25, 66 NRC 101, 104 (2007); AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI 24, 64 NRC 111, 121 (2006); Private Fuel Storage, LLC (Private Fuel Storage Facility),

CLI-00-21, 52 NRC 261, 265 (2000).

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sufficiency of factual support for the admission of a contention. 13 Therefore, an appeal of a

Boards decision on contention admissibili ty or standing that, instead of identifying a specific

error of law or abuse of discretion by the Board, consists of just a [r]ecitation of an appellants

prior positions in a proceeding or statement of general disagreement with a decisions result is

not sufficient. 14 I t is also not sufficient to p resent[] arguments and evidence never provided to

the Board. 15 F urther, an argument that was previously made before the presiding officer but

not discussed on appeal is considered abandoned. 16

II. The Commission Should Affirm the Boards Decision Regarding Contention Admissibility Because Petitioner Does Not Identify a Specific Board Error of Law or Abuse of Discretion

The Commission should affirm the Boards decision regarding contention admissi bility

because, instead of identify ing a specific Board error of law or abuse of discretion, Petitioner

simply restates and impermissibly supplements its arguments in the record below or merely

expresses general disagreement with the decision. 17

A. Petitioner Identifies No Specific Error of Law or Abuse of Discretion in the Boards Rejection of Proposed Contention 1

Proposed Contention 1 states that

The Environmental Report fails to consider a reasonable range of alternatives to the proposed action because of a failure to anal yze thermal pollution mitigation as a means of reducing aquatic biota and migratory bird impingement, entrainment, and damage from

13 Holtec, CLI-20-4, 91 NRC at 173; see also Strata Energy, Inc. (Ross In Situ Recovery Uranium Project),

CLI-16-13, 83 NRC 566, 574 (2016); Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3),

CLI-15-6, 81 NRC 340, 354-55 (2015); Crow Butte Resources, Inc. (Marsland Expansion Area), CLI-14-2, 79 NRC 11, 26 (2014).

14 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 6 and 7), CLI-17-12, 86 NRC 215, 219 (2017).

15 Shieldalloy Metallurgical Corp. (License Amendment Request for Decommissioning of the Newfield, New Jersey Facility), CLI-07-20, 65 NRC 499, 503- 05 (2007) (quoting USEC Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 458 (2006)).

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

17 See Turkey Point, CLI-17-12, 86 NRC at 219; Shieldalloy, CLI-07-20, 65 NRC at 503- 05 (quoting American Centrifuge Plant, CLI-06-10, 63 NRC at 458).

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thermal pollution, as required by [ the National Environmental Policy Act of 1969, as amended (N E PA)] and the NRC. 18

On appeal, besides simply repeating previous arguments without identifying a specific

Board error of law or abuse of discretion, Petitioner argues that the Boards rejection of

Contention 1 ignores that it is possible to comply with both NEPA and the Clean Water A ct

[(CWA) 19] here. 20 Petitioner further asserts that the NRC has the responsibility to read

different statutory enactments in harmony with one another to fulfill the informational purposes

of NEPA and identify all adverse environmental impacts, reasonabl e alternatives to subsequent

license renewal, and mitigation of impacts, and that this may be done without any undermining

of the State of Wisconsins CW A § 316a permitting of Point Beach. 21

As explained below, although Petitioner claims that the Board ignored these matters in

LBP-21-5, Petitioner s statutory harmony arguments were not raised before the Board, and, on

that basis alone, should be rejected. Moreover, these arguments and Petitioner s generalized

recitation of its previous arguments do not sh ow a Board error of law or abuse of discretion.

1. Petitioner s Arguments Raised for the First Time on Appeal Should Be Rejected and Do Not Show a Board Error of Law or Abuse of Discretion

Before addressing Petitioner s statutory harmony arguments, a brief summary of the

Boards ruling on proposed Contention 1 is helpful.

18 Petition at 17.

19 33 U.S.C. § 1251 et seq. The CWA, also known as the Federal Water Pollution Control Act, authorizes the U.S. Environmental Protection Agency (E PA) to approve state programs for issuance of National Pollutant Discharge Elimination System (NPDES) permits. 33 U.S.C. § 1342(b). A CWA § 316(a) discharge permit allows a thermal effluent discharger to demonstrate that thermal discharge effluent limits are more stringent than necessary to protect aquatic organisms and obtain alternate, facility -specific limits, known as a variance. 33 U.S.C. § 1326(a). A CWA § 316(b) determination is made as part of the NPDES permit program, which establishes requirements and standards for location, design, construction, and capacity of cooling water intake structures, and provides requirements that reflect the best technology available (BTA) for minimizing the adverse environmental impacts of impingement and entrainment. 33 U.S.C. § 1326(b). See National Pollutant Discharge Elimination SystemFinal Regulations to Establish Requirements for Cooling Water Intake Structures at Existing Facilities and Amend Requirements at Phase I Facilities, 79 Fed. Reg. 48,300, 48,302-303 (Aug. 15, 2014).

20 Appeal at 8.

21 Id. at 8-9.

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As Petitioner notes, the Board found proposed Contention 1 inadmissible as it

constitutes a collateral attack upon [10 C.F.R. § 51.53(c)(3)(ii)(B) 22] and because the NRCs

consideration of alternative cooling system impacts after an applicant has satisfied 10 C.F.R.

§ 51.53(c)(3)(ii)(B) is contrary to CWA section 511(c)(2)[ 23] and Commission precedent. 24 The

Board noted that, under this regulation, an assessment of thermal, impingement, and

entrainment impacts is only required if an applicant or licensee cannot provide a current

determination under CWA § 316(b). 25 In addition, the Board noted that the NextEra

Environmental Report includes a discharge permit issued by the Wisconsin Department of

Natural Resources (WDNR), the state NPDES-permitting authority, which contains a C WA

§ 316(b) interim determination that the existing Point Beach once-through cooling water system

represents the BTA for minimizing adverse environmental impact. 26 The permit also includes a

C WA § 316(a) variance determination that sets a heat load discharge limit that is protective of

the balanced, indigenous community of shellfish, fish, and wildlife in and on Lake

Michigan. 27

Petitioner quotes the Boards conclusion that, based on the above, Contention 1 is

inadmissible because it impermissibly challenges NRC rules, is not with the scope of the

22 This regulation states that [i]f the applicants plant utilizes once-through cooling, the applicant shall provide a copy of current Clean Water Act 316(b) determinations and, if necessary, a 316(a) variance in accordance with 40 CFR part 125, or equivalent State permits and supporting documentation. If the applicant cannot provide these documents, it shall assess the impact of the proposed action on fish and shellfish resources resulting from thermal changes and impingement and entrainment.

23 33 U.S.C. § 1371(c)(2). C WA § 511(c)(2) directs that nothing in NEPA shall be deemed to authorize any Federal agency with authority to license or permit an activity that may result in pollutant discharges into navigable waters (1) to review any effluent limitation or other requirement established under the CWA or (2) to impose any effluent limitation other than that established pursuant to the CWA.

24 Appeal at 5 (quoting LBP-21-5 at __ (slip op. at 23)).

25 LBP-21-5 at __ (slip op. at 20).

26 Id. at __ (slip op. at 21) (citing Environmental Report, Att. B, Wisconsin Pollutant Discharge Elimination System (WPDES) Permit No. WI-0000957 0 § 1.3 (July 1, 2016) (WPDES Permit)).

27 Id. (quoting WPDES Permit, Letter from Amanda Minks, Water Quality Specialist, WNDR, to Steve Jaeger, Wastewater Engineer, WNDR, at 3 (Aug. 29, 2012)). The Board noted that Petitioner did not seek a 10 C.F.R. § 2.335 waiver to challenge 10 C.F.R. § 51.53(c)(3)(ii)(B). LBP-21-5 at __ (slip op. at 20 n.111).

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proceeding, does not raise an issue that is material to the findings the NRC must make, and

fails to demonstrate a genuine dispute with the applicant i n contravention of 10 C.F.R.

§ 2.309(f)(1)(iii), (iv), and (vi). 28 Petitioner also acknowledges that the Board, relying on the

binding Commission precedent of Vermont Yankee, 29 found that the WPDES permit, issued by

the authorized state agency (i.e., WDNR) and submitted by NextEra, makes the June 30, 2021

expiration of the current permit irrelevant, in part due to the timely renewal doctrine. 30

For the first time on appeal, Petitioner argues that it is possible to defer to the C WA § 316

issuing agency, as directed in Vermont Yankee, 31 and compl y with both the NEPA and the CWA

by construing the statutes in a harmonious manner that gives effect to both. 32 Petitioner does

not identify where it made these arguments t o the Board in the record below or specify why this

approach would be consistent with the intent of the CWA. 33 Consequently, Petitioner cannot

credibly claim that the Board i gnored a proposition that Petitioner had never presented for Board

consideration. Additionally, raising an argument for the first time on appeal is impermissible. 34

On that basis alone, this argument should not be entertained by the Commission.

Even if Petitioner s statutory harmony arguments were not impermissibly raised,

Petitioner misses the mark. Petitioner argues that the NRC can defer to the C WA § 316(a )

issuing agency, as directed in Vermont Yankee, and discharge its N E PA responsibility to

28 Appeal at 5 (quoting LBP-21-5 at __ (slip op. at 23)).

29 Entergy Nuclear Vt. Yankee, LLC, & Entergy Nuclear Operations, Inc. (Vt. Yankee Nuclear Power Station), CLI-07-16, 65 NRC 371 (2007).

30 Appeal at 5 (citing LBP-21-5 at __ (slip op. at 21 n.121)).

31 Vt. Yankee, CLI-07-16, 65 NRC at 389.

32 Appeal at 8 (citing Epic Sys. Corp v. Lewis, __ U.S. __, 138 S. Ct. 1612, 1624 (2018); Assoc. of Am. R.R.

v. S. Coast Air Quality Mgmt. Dist., 622 F.3d 1094, 1097 (9th Cir. 2010)).

33 Petitioner did not make these arguments in its Petition, Reply, or during oral argument. In fact, at oral argument, Petitioner s counsel argued that [i]n effect, when NEPA and the Atomic Energy Act collide, N E PA m ust prevail. Tr. at 52 (Lodge); see also id. at 62 (Lodge) ( [T]he case law strongly shows, that when NEPA and the Atomic Energy Act collide that effectively N E PA wins. ).

34 Shieldalloy, CLI-07-20, 65 NRC at 503- 05 (indicating that appeals should identify errors, not try to cure defective contentions by stating new arguments).

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disclose in a supplemental environmental impact statement ( SEIS) for the Point Beach

subsequent license renewal all adverse environmental impacts, reasonable alternatives to the

project, and means [to mitigate] the identified impacts. 35 Petitioner asserts that this can be

done without undermining the S tate of Wisconsins C WA § 316 permitting and (1) would ensure

that the NRC considers detailed information concerning significant env ironmental impacts,

(2) would fulfill N E PA s public information purpose by providing environmental information before

decisions are made and actions are t aken, and (3) might lead to public participation in the State

process to persuade Wisconsin to select cooling towers as the BTA at Point Beach. 36

The Staff does not dispute that NEPA has an informational purpose. However, at this

juncture, the Commissions regulations require that Petitioner file contentions based on the

Environmental Report and not on the NRCs yet-to-be-issued SEIS. 37 In addition, even though

Petitioner quotes the C WA § 511(c)(2) language that specifically limits a f ederal agencys

authority under NEPA to review any effluent limitation or other requirement established under

the CWA, 38 Petitioner ignores the import of that language to the circumstances here. This

language expresses Congresss intent that water quality standards and determinations be solely

in the hands of the EPA or an authorized state agency and not some other f ederal agency. 39 As

noted by t he Board, NextEra submitted a valid permit (in timely renewal ), as required by

35 Appeal at 9.

36 Id. at 9-10 (citing Found. for N. Am. Wild Sheep v. U.S. Dept of Agric., 681 F. 2 d 1172, 1181 (9th C i r.

1982)). Petitioner previously argued that the consideration of a different cooling system technology might convince the decision-maker to meet the goal of the proposed project with lesser impact. See Petition at 30.

37 See 10 C.F.R. § 2.309(f)(1)(vi) (requiring an intervention petitioner to show a genuine dispute by proffering information that includes references to specific portions of an applicants environmental report );

10 C.F.R. § 2.309(f)(2) (requiring that contentions raising NEPA issues be based on the applicants environmental report and allowing for new or amended contentions to be filed based on draft or final NRC environmental review documents).

38 Appeal at 5 n.20 (quoting 33 U.S.C. § 1371(c)(2)).

39 See LBP-21-5 at __ (slip op. at 21-22, 22 n.125) (citing Vt. Yankee, CLI 16, 65 NRC at 388 (citing Carolina Power & Light Co. (H.B. Robinson, Unit 2), ALAB-569, 10 NRC 557, 561 (1979)); Pub. Service Co. of N.H. (Seabrook Station, Units 1 & 2), CLI-78-1, 7 NRC 1, 25 (1978)).

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10 C.F.R. § 51.53(c)(3)(ii)(B), which i ncludes thermal effluent limits and an interim B TA

determination for Point Beach. 40 Neither CWA requirement can be second -guessed in an NRC

proceeding via a contention that seeks more stringent requirements by challenging the

adequacy of an assessment of thermal, impingement, and entrainment im pacts that NextEra

need not provide under 10 C.F.R. § 51.53(c)(3)(ii)(B). 41

Moreover, the NRCs NEPA regulations are already in harmony with the CWA.

Compliance with water quality standards and requirements does not negate the requirement

that the NRC weigh the environmental effects of a proposed action. 42 The NRC uses the

permitting agencys assessment to determine the magnitude of environmental impacts for

striking an overall cost-benefit balance and in its determination of whether the adverse

environmental impacts of license renewal are so great that preserving the option of license

renewal for energy planning decision-makers would be unreasonable at the license renewal

stage. 43 The NRC does not independently assess water quality impacts unless no assessment

is available from the CWA permitting authority. 44 Petitioner s statutory harmony arguments do

not explain how the process that Petitioner seeksthe conduct of an independent NRC inquiry

40 See LBP-21-5 at __ (slip op. at 21). As it did in its Reply, Petitioner again asserts on appeal that Wisconsin has not made the necessary factual findings after full administrative proceedings to approve a once-through cooling system for Point Beach. Compare Appeal at 9-10 with Reply at 4. The Board specifically rejected this assertion as being unsupported and contrary to information in NextEras Environmental Report, which included a CWA 316(a) variance and a 316(b) B TA determination. LBP-21-5 at __ (slip op. at 22 n.130). Because it does not provide any support for this bare assertion, Petitioner has not identified a Board error of law or abuse of discretion.

41 See LBP-21-5 at __ (slip op. at 21-23).

42 10 C.F.R. § 51.71(d) n.3.

43 Id. The term magnitude refers to the significance level of an environmental impact, which the NRC categorizes as SMALL, MODERATE, or LARGE in Table B-1Summary of Findings on NEPA Issues for License Renewal of Nuclear Power Plants. 10 C.F.R. Part 51, Subpart A, Appendix B.

44 10 C.F.R. § 51.71(d) n.3 ( When no such assessment of aquatic impacts is available from the permitting authority, NRC will establish its own, or in conjunction with the permitting authority and other agencies having relevant expertise, the magnitude of potential impacts for striking an overall cost benefit balance and in its determination of whether the adverse environmental impacts of license renewal are so great that preserving the option of license renewal for energy planning decision-makers would be unreasonable at the license renewal stage.).

10

to develop an SEIS that assesses impacts associated with a cooling system alternative not

permitted by Wisconsinwould give full effect to Wisconsins CWA determinations. Therefore,

Petitioner has not identified a Board error of law or abuse of discretion.

Petitioner also argues that, even if the NRC cannot order cooling towers as the BTA for

minimizing impacts at Point Beach, the NEPA evaluation of this alternative cooling system must

take place because the state agency may view the NRCs SEIS as a basis for modifying its B TA

standard. 45 This argument also does not demonstrate a Board error of law or abuse of

discretion. The Board correctly concluded that the BTA determination, as well as effluent

discharge limitations, is left to the duly authorized, state C WA permitting agency. 46 Petitioner s

argument thus fails to show that the Board erred in ruling, among things, that proposed

Contention 1 collateral ly attacks an NRC regulation by seeking to require that NextEra discuss,

contrary to 10 C.F.R. § 51.53(c)(2)(ii)(B), impacts associated with a different cooling sys tem, and

that Petitioner failed to satisfy the 10 C.F.R. § 2.309(f)(1)(vi) requirement to raise a genuine

dispute with the application. 47 Further, NRC consideration of impacts other than those

associated with the current BTA determination r uns afoul of the Commissions decision in

Vermont Yankee. Absent any showing that current C WA permit requirements are not being met,

the assessment that Petitioner requests would effectively have the NRC second-guess or

review the soundness of the Wisconsin permitting agencys interim determination that the

existing Point Beach once -through cooling system is the B TA to mitigate adverse impacts at

Point Beach. 48

45 Appeal at 10- 11.

46 LBP-21-5 at __ (slip op. at 19-23).

47 Id. Petitioner s summary of the circumstances leading to the consideration of a cooling tower alternative for Oyster Creek and Indian Point reveals that state authorities imposed a cooling tower requirement. See Petition at 26-27; see also Staff Answer at 20.

48 LBP-21-5 at __ (slip op. at 20).

11

Because Petitioner s statutory harmony arguments (1) were not presented to the Board

and, thus, impermissibly supplement previous arguments and (2) run afoul of the Commissions

direction in Vermont Yankee that the NRC not second-guess determinations by CWA-permitting

authorities, Petitioner fails to show a Board error of law or abuse of discretion. Despite

Petitioner s apparent unhappiness with the CWA permitting of Point Beach, 49 an NRC

proceeding is not the appropriate venue to have the NRC do what is in the exclusive purview of

state authoritiesconsider alternative cooling system or different effluent discharge

requirements at Point Beach.

2. Recitation of Previous Claims Does Not Show Board Error of Law or Abuse of Discretion in Applying Contention Admissibility Standards

On appeal, Petitioner repeats its previous claim that the Env ironmental Report is

insufficient for not considering (in addition to renewal and the no-action alternative) the allegedly

reasonable alternative of renewed operation with cooling towers replacing the existing Point

Beach once-through cooling system that would, according to Petitioner, reduce thermal

discharges, water withdrawal, and associated thermal, entrainment, and impingement impacts

on aquatic organisms. 50 Petitioner also again notes that other nuclear reactors have been

required (by state authorities) to change from once-through cooling systems to closed-cycle

cooling systems. 51 And Petitioner again argues that the Environmental Report presents limited

49 See Reply at 6 (The question is, how many generations of animals and human beings must suffer environmental predation by impingement, entrainment and thermal pollution as a cons equence of [the WDNRs] temporary, interim determination?); Appeal at 10 (stating that NEPA disclosure might move the public to act to cause change to Wisconsins [B TA] standard such that modern cooling tower technology would be installed at Point Beach.); Tr. at 77 (Lodge) (Wisconsins analysis does not appear to encompass any kind of analysis of climate change effects, which resulted in its minimal impact finding.).

50 Appeal at 4 (citing Petition at 18-21). Table B-1 in 10 C.F.R. Part 51, Subpart A, Appendix B summarizes the NRCs findings on NEPA issues for license renewal of nuclear power plants based on the data contained in NUREG-1437, Revision 1, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (June 2013) (ML13106A241) (GEIS). Table B-1 indicates that thermal impacts and impingement and entrainment impacts on aquatic organisms for plants with once-through cooling systems are Category 2 (i.e., site-specific) issues that require a plant-specific review. See Table B-1 and Note 2 to Table B-1.

51 Appeal at 5 (citing Petition at 26-27). As the Staff noted before the Board, state authorities required the change in cooling system. See Staff Answer at 27-28 (citing Petition at 26-27).

12

data on aquatic and wildlife mortality due to entrainment and impingement at the intake

structures, fails to consider cumulative impacts of thermal pollution by not considering localized

site conditions, and relies on old data. 52

But in restating these arguments, Petitioner does not explain how the Board specifically

erred or abused its discretion in rejecting proposed Contention 1. As a result, Petitioner does

not support its assertions that the Board turned the contention admissibility standards into a

fortress to deny intervention. 53

Petitioner cites the Environmental Report statements that thermal discharge impacts will

continue to be SMALL because no uprates are planned during the subsequent license renewal

term, that mitigation measures are not warranted, that impacts on aquatic life are projected to

be SMALL, and that there are no significant adverse impacts that require consideration of

additional alternatives. 54 Petitioner states that 10 C.F.R. § 51.53(c)(3)(iii) requires each

environmental report to contain alternatives for reducing impacts as required by 10 C.F.R.

§ 51.45(c) for Category 2 (i.e., site-specific) issues and that it is absurd to treat 2011 fish

mortality data reported by a news article as SMALL. 55 But, again, Petitioner provides no

explanation for how this shows that the Board erred.

In fact, the Board did not rely on the Environmental Reports categorization of impacts to

reject proposed Contention 1. Rather, the Boards conclusions were grounded upon different

factorsthe Commissions decision in Vermont Yankee regarding the NRCs role in evaluating a

plants cooling system and deferral to CWA permi ts and requirements, the terms of 10 C.F.R.

52 Appeal at 4-5 (citing Petition at 20- 21, 24-25).

53 See id. at 3, 26 (citing Power Authority of the State of New York, et al. (James Fitzpatrick Nuclear Power Plant; Indian Point Generating Unit 3), CLI-00-22, 52 NRC 266, 295 (2000)).

54 Id. at 6-7 (citing Environmental Report at 4-26, 7-39, 7 7-4).

55 Id. at 7. Petitioner also notes that 10 C.F.R. Part 51, Subpart A, Appendix B requires a plant-specific assessment of cumulative impacts in the environmental report and that the NRC recognizes that impacts of minor actions may be significant when considered collectively over time. Id. (citing Environmental Report at 4-49 (citing, in turn, GEIS at § 4.13)). But Petitioner does not specifically show how this information demonstrates a Board error of law or abuse of discretion.

13

§ 51.53(c)(3)(ii)(B), the impermissibility of attacks on the NRCs regulations without the filing of a

10 C.F.R.§ 2.335(b) petition seeking waiver of the rule, and Petitioner s failure to raise a material

issue or show a genuine dispute with the application for the admission of its contention. 56

The Board recognized that the NRC has a limited role in evaluating a plants cooling

system. The CWA permitting agency determines the cooling system that a nuclear facility may

use. The NRC factors in the environmental impacts of the permitting agencys determinations,

but the NRC may not consider alternative systems because doing so would second guess the

permitting agencys determinations. 57 The Board also adhered to the Commissions binding

determination that CWA § 511(c)(2) was specifically intended to deprive th e NRC of the authority

to review and judge environmental permits issued under the CWA by the EPA or an authorized

state agency, and that this rendered the NRC unable to consider alternate cooling systems or

determine what type of cooling system a facil ity may use. 58 Thus the Commission directed that

licensing boards are to defer to the agency that issued the permit. 59

The Board further noted that 10 C.F.R. § 51.53(c)(3)(ii)(B) specifies that an applicant

need not assess entrainment, impingement, and thermal impacts if the applicant provides a

current CWA § 316(b) permit and, if necessary, a variance issued under CWA § 316(a). 60

Because the Board found that the SLRA provided this information, and because Petitioner did

not point to information that suggests that Point Beach is operating contrary to its permit, the

Board concluded that no further discussion in the Environmental R eport was required. 61

56 LBP-21-5 at __ (slip op. at 19-23).

57 Id. (slip op. at 20) (citing Vt. Yankee, CLI 16, 65 NRC at 371, 387 n.77, 389).

58 Id. (slip op. at 22) (quoting Vt. Yankee, CLI 16, 65 NRC at 387 n.77).

59 Id. (citing Vt. Yankee, CLI-07-16, 65 NRC at 389 (quoting Seabrook, CLI-78-1, 7 NRC at 28 n.42)).

60 LBP-21-5 at __ (slip op. at 20).

61 Id.

14

Moreover, although Petitioner cites the 10 C.F.R. § 51.53(c)(3)(ii i) requirement that an

environmental report must consider alternatives to reduce impacts, 62 it does not show on appeal

why the consideration of an alternative cooling system is consistent with the Commissions

decision in Vermont Yankee, which requires the NRC to rely on and defer to CWA

determinations. 63

For these reasons, Petitioner fails to show an error of law or abuse of discretion in the

Boards conclusions that (1) by regulation, NextEra, which submitted a current CWA § 316(a)

permit and variance, need not assess thermal, impingement, and entrainment impacts on

aquatic species inasmuch as the contention amounts to a collateral attack upon 10 C.F.R.

§ 51.53(c)(3)(ii)(B), (2) by Commission precedent, the NRC must defer to CWA determinations,

including BTA determinations, and may not entertain a contention that seeks consideration of a

cooling system alternative, and (3) Petitioner failed to raise a material issue or otherwise show a

genuine dispute with NextEra regarding its assessment of Category 2 issues. Therefore, the

Commission should affirm the Board s ruling that proposed Contention 1 is inadmissible.

B. Petitioner Identifies No Specific Error of Law or Abuse of Discretion in the Boards Rejection of Proposed Contention 2

Proposed Contention 2, as amended, states that

Point Beachs continued operation violates 10 [C.F.R.] Part 50, Appendix A, [General Design] Criterion 14 because the reac tor coolant pressure boundary has not been tested s o as to have an extremely low probability of abnormal leakage, of rapidly propagating failure, and of gross rupture, and the aging management plan does not provide the requisite reasonable assurance. The Electric Power Research Institute [(EPRI )] has recently admitted that its computer software for predicting embrittlement in boiling water reactors is nonconservative.

Physical specimens and coupons at Point Beach may indeed prove that embrittlement calculations made at Point Beach are not

62 Appeal at 7.

63 Petitioner notes the iron[ y] that NextEras postulated replacement power alternatives for Point Beach each include a cooling tower system. Id. at 6. However, Petitioner does not appear to acknowledge that it is reasonable to consider a different cooling system for new facility construction since no BTA determination has been made.

15

conservative. Without testing the physical specimens and coupons at Point Beach, NextEra is severely risking public safety. 64

The Board did not admit proposed Contention 2 because it found that the proposed

contention was an impermissible challenge to the NRCs rules r egarding neutron embrittlement

calculations and to Point Beachs current operation, did not genuinely dispute the discussion of

capsule 65 testing in the SLRA, and was vague and unsupported. 66

On appeal, Petitioner makes two arguments regarding the Boards denial of proposed

Contention 2. First, it argues that the Board misread the thrust of proposed Contention 2. 67

Second, Petitioner argues that the Board effect[i]vely required PSR WI to completely litigate its

contention on its merits at the Petition to Intervene stage. 68 Neither of these arguments identify

a Board error of l aw or a buse of d iscretion.

1. The Board Did Not Misread Proposed Contention 2

Petitioner s argument that the Board misread proposed Contention 2 does not identify a

Board error of law or abuse of discretion; in fact, the Boards decision addressed the very

argument that Petitioner now asserts.Specifically, in its Appeal, Petitioner reframes proposed

Contention 2 as a challenge to the basis for the agencys refusal to resort to physical evidence

and data on the status of metallurgical embrittlement of the [Point Beach] reactor vessel and its

64 Motion at 7. The EPRI reference is to: Letter from Nathan Palm, EPRI, to Hipolito Gonzalez, NRC, Potential Non-Conservatism in EPRI Report, BWRVIP-100, Rev. 1-A, 3002008388 and Impacted BWRVIP Reports (Mar. 22, 2021) (ML21084A164) (EPRI Letter).

Attached to the EPRI Letter are: Letter from Rick Way, EPRI, 10 CFR Part 21 Transfer of Information NoticePotential Non -Conservatism in EPRI Software, BWRVIP-235, 1018251 (Feb. 19, 2021); Letter from Rick Way, EPRI, Update Regarding 10 CFR Part 21 Transfer of Information NoticePotential Non -

Conservatism in EPRI Software (BWRVIP-235) and Inspection and Evaluation Guidance for the BWR Core Shroud (BWRVIP-76 Revision 1-A, BWRVIP-76 Revision 2, and BWRVIP letter 2016-030) (Mar. 19, 2021).

65 The terms coupons and capsules are used interchangeably. See LBP-21-5 at __ (slip op. at 27, n.158).

66 LBP-21-5 at __ (slip op. at 31-37).

67 Appeal at 16.

68 Id. at 18.

16

components for the 20 year subsequent licensing period beginning in 2030. 69 The Boards

decision, though, addressed the substantively identical challenge that there are not enough

sample coupons to remove from the [Point Beach] reactor and test for embrittlement for an

additional 20 more years out to 80 years. 70 The Board found that this argument was

inadmissible because it failed to incl ude references to specific portions of the S L R A that

Petitioner disputes and the supporting reasons for each di spute, as is required by 10 C.F.R.

§ 2.309(f)(1)(vi); moreover, the SLRA includes discussion of Petitioner s very concern regarding

embrittlement. 71 Additionally, Petitioner does not provide any explanation for how the alleged

Board misreading of proposed Contention 2 is an error of law or abuse of discretion; rather, all

of the arguments in the Appeal related to proposed Contention 2 are repeated, largely verbatim,

from previous pleadings and from the Boards decision. 72

Separately, to the extent that Petitioner s reframed proposed Contention 2 is somehow

different than Petitioner s original proposed Contention 2, it is an impermissible supplementa tion

of Petitioner s arguments in the record below and, thus, not a valid basis for an appeal. 73 And,

even if there were cause to address Petitioner s reframed proposed Contention 2, the

contention would still be inadmissible. First, as with Petitioner s original proposed Contention 2,

the reframed contention fails to include references to specific portions of the SLRA that

69 Id. at 16.

70 LBP-21-5 at __ (slip op. at 34) (quoting Petition at 36).

71 Id. at __ (slip op. at 34-35) (citing SLRA, app. A, at A-25-A-26; SLRA, app. A, at A-158; SLRA, app. B, at B-148-B-149) (discussing the withdrawal and testing of a Point Beach surveillance capsule and the receipt of supplemental data from other reactors).

72 Compare Appeal at 11-12 with Reply at 7; compare Appeal at 12-13 with LBP-21-5 at __ (slip op. at 23-

25) (repeating, with citations to Petitioner s pleadings and supporting documents, arguments previously presented by Petitioner as summarized by the Board); compare Appeal at 13-14 with Petition at 36; compare Appeal at 14 with Motion at 3-6; compare Appeal at 14 with Petition at 32-33; compare Appeal at 14-15 with Petition at 37; compare Appeal at 16 with Petition at 32-33; compare Appeal at 16-17 with Declaration of Arnold Gundersen at 19-20; compare Appeal at 17-18 with Supplemental Declaration of Arnold Gundersen at 2-4; compare Appeal at 19-20 with Reply at 12-13.

73 See Shieldalloy, CLI-07-20, 65 NRC at 504 (quoting American Centrifuge Plant, CLI-06-10, 63 NRC at 458) (The purpose of an appeal is to point out errors made in the Boards decision, not to attempt t o cure deficient contentions by presenting arguments and evidence never provided to the Board. ).

17

Petitioner disputes. And the embrittlement discussion in the SLRA that the Board identified is

equally applicable to Petitioner s reframed concern on appeal regarding physical evidence and

data on the status of metallurgical embrittlement, 74 which, again, Petitioner does not dispute.

Second, because it explicitly challenges an alleged agency[] refusal, 75 reframed proposed

Contention 2 is, on its face, an inadmissible challenge to the manner in which the Staff performs

its duties. 76

For these reasons, Petitioner s bare assertion that the Board misread proposed

Contention 2 does not identify a Board error of law or abuse of discretion.

2. The Board Did Not Require Petitioner to Litigate Proposed Contention 2 on its Merits

Petitioner s argument that the Board required Petitioner to litigate proposed Contention 2

on its merits does not identify a Board error of law or abuse of di scretion for the simple reason

that the argument is completely unsupported. Petitioner asserts that the Board conducted the

inquiry into admissibility of Contention 2 as substitute for trial on the merits, on paper, without

the due process guarantees attendant to a live adversarial hearing and sifted through

NextEras and the NRC Staffs versions of the facts or allegations passed off as fact, conducted

weighing, and denied admission of the contention on the merits 77all without a single citation

to the record. By not providing any specific criticism of the Board decision or even engaging the

Board decision, Petitioner has not identified any grounds on which to disturb it. 78

74 Appeal at 16.

75 Id.

76 See LBP-21-5 at __ (slip op. at 8) (Contentions that challenge the manner in which the NRC Staff performs its duties are outside the scope of NRC adjudicatory proceedings.) (citing Millstone, CLI-05-24, 62 NRC at 570 ([Licensing] boards lack the authority to supervise the NRC Staff in the performance of its regulatory duties. (footnote omitted)); Balt. Gas & Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units 1 &

2), CLI-98-25, 48 NRC 325, 350 (1998), aff d sub nom., Natl Whistleblower Ctr. v. NRC, 208 F.3d 256 (D.C. Cir. 2000), cert. denied, 531 U.S. 1070 (2001) ([I]t is the license application, not the NRC Staff review, that is at issue in our adjudications. (citation omitted)); Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3, & 4), CLI-80-12, 11 NRC 514, 516 (1980) (Boards do not direct staff in performance of their administrative functions.)).

77 Appeal at 18.

78 See, e.g., Turkey Point, CLI-17-12, 86 NRC at 226.

18

Additionally, Petitioner s general criticisms miss the mark. Petitioner ass erts that an

acceptable contention need only be specific and have a basis and include factual support

necessary to show that a genuine dispute exists [, which] need not be in formal evidentiary

form. 79 Petitioner then implies that the Board somehow ran afoul of the se standards. 80 As

discussed above, however, the Board denied proposed Contention 2, in part, on the basis of a

separate contention admissibility requirement that Petitioner does not acknowl edgethat a

contention must include references to specific portions of the application. 81 In particular, the

Board determined that none of the arguments in proposed Contention 2 referenced any specific

portions of the SLRA. 82 Additionally, where the Board did discuss Petitioner s alleged facts or

expert opinions, it was not to weigh the truth or falsity of the contention 83 but simply to note

that the Petitioner provided no explanation of how these alleged facts or expert opinions support

the contention. 84

For these reasons, Petitioner s bare assertion that the Board r equired Petitioner to

litigate proposed Contention 2 on its merits does not identify a Board error of law or abuse of

discretion.

79 Appeal at 18.

80 Id.

81 10 C.F.R. § 2.309(f)(1)(vi).

82 LBP-21-5 at __ (slip op. at 32) (Petitioner did not identify any new or revised [time-limited aging analysis].); id at __ (slip op. at 34) (Petitioner fails to cite to the [SLRA] that discusses capsule testing.); id at __ (slip op. at 35) (Petitioner does not address [NextEras] Reactor Vessel Material Surveillance Program.); id at __ (slip op. at 35) ([T]he plain language of the [SLRA] indicates

[NextEra] will both conduct an analysis of the capsules and do so in accordance with NRC regulations.);

id at __ (slip op. at 36) (Petitioner does not cite the specific [ aging management plan] in the [SLRA] it disputes.); id. at __ (slip op. at 36) (references to new administrative controls does not demonstrate a genuine dispute with the applicant); id. at __ (slip op. at 36) (Petitioner provides no detail about which calculation it references or what is error-prone about that calculation.).

83 Appeal at 18.

84 See LBP-21-5 at __ (slip op. at 36-37).

19

C. Petitioner Identifies No Specific Error of Law or Abuse of Discretion in the Boards Rejection of Proposed Contention 3

Proposed Contention 3 states that

The [Point Beach] Environmental Report fails to adequately evaluate the full potential for renewable energy sources, such as solar electric power (photovoltaics) to offset the loss of energy production from [Point Beach], and to make the requested license renewal action from 2030 to 2053 unnecessary. 85

The Board did not admit proposed Contention 3 because it found that, contrary to

10 C.F.R. § 2.309(f)(1)(v) and (vi), the proposed contention lacked adequate support and failed

to demonstrate a genuine dispute with the Envir onmental Reports conclusion that the full solar

and storage alternative is not a reasonable alternative to Point Beach subsequent license

renewal. 86

On appeal, Petitioner fails to identify a Board error of l aw or abuse of discretion.

Instead, Petitioner simply mischaracterizes the Boards reasoning and expresses general

disagreement with the Boards decision.

Petitioner first claims that the Board agreed that the full solar and storage alternative

could be a reasonable alternative but that the Board inappropriately ruled that this alternative

was not a commercially viable alternative due to the acreage requirements. 87 However, the

Board made no such determination; rather, the Board pointed out that the Env ironmental Report

states that the necessary acreage requirements for a full solar and storage alternative could be

met, but that the land use disturbances could result in MODERATE to LARGE impacts on

wildlife habitats, vegetation, land use, and aesthetics. 88 The Board found that Petitioner had

not challenged either the underlying acreage requirements or the environmental impacts that

85 Petition at 41.

86 LBP-21-5 at __ (slip op. at 42-47).

87 Appeal at 21 (internal quotations omitted).

88 LBP-21-5 at __ (slip op. at 43) (quoting Environmental Report at 7-8).

20

would result from the full solar and storage alternative. 89 Thus, contrary to Petitioner s

argument on appeal, the Board di d not rule that the full solar a nd storage alternative was not a

commercially viable alternative due to the acreage requirements, but instead simply held that

proposed Contention 3 did not satisfy the requirement of 10 C.F.R. § 2.309(f)(1)(vi) because it

did not provide sufficient information to show that a genuine dispute existed with that conclusion

in the Environmental Report. 90 Therefore, Petitioner s misreading of the Boards decision

cannot show an error of law or abuse of discretion.

Petitioner then argues that proposed C ontention 3 was denied because it did not stat [e]

in so many words that the full solar and storage alternative was likely to be available during

the period of extended operation. 91 However, there is no indication that the Board somehow

denied this proposed contention due to imprecise language. Instead, the Board found that

Petitioner had not provided information that would show that its proposed alternative replacing

the power from Point Beach with interconnected solar and storage dispersed throughout

Wisconsin, including on rooftops, farmland, and transmission line easements is commercially

viable on a utility scale. 92 Further, the Board found that Petitioner did not provide information

that would show that its alternative, while not commercially viable at the time of the application,

is both likely to be available during the period of extended operation and under development

for large-scale use. 93 This is consistent with Commission precedent and not an error of law or

abuse of discretion.

89 See LBP-21-5 at __ (slip op. at 44-45) (explaining that NextEra and Petitioner agree on the amount of land that would be required for the full solar and storage alternative, and noting that Petitioner proffered no information disputing the conclusion that such a requirement would lead to significant environmental impacts).

90Id. at __ (slip op. at 45).

91 Petition at 23 (quoting LBP-21-5 at __ (slip op. at 46)).

92 LBP-21-5 at __ (slip op. at 42).

93 LBP-21-5 at __ (slip op. at 46) (quoting NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1),

CLI-12-5, 75 NRC 301, 342 n.245 (2012)).

21

Finally, Petitioner asserts that the Board erred by disregard[ing] the standards for

assessing the admissibility of contentions, weigh[ing] the evidence, impos[ing] its own subjective

values, and declar[ing] photovoltaic solar in 2021 not to be a reasonable alternative. 94 To

support this point, Petitioner states that the Board credited the Environmental Reports

M O D E R AT E to LARGE environmental impacts assessment despite all of the evidence that

Petitioner had offered. 95 During oral argument, however, t he Board noted that Petitioner had not

challenged the Environmental Reports determination that the environmental impacts of

continued operation of Point Beach would be SMALL or that the environmental impacts of the

full solar and storage alternative would be MODERATE to LARGE. 96 Accordingly, as discussed

above, the Board denied proposed Contention 3 because Petitioner did not challenge the

underlying acreage requirement or the environmental impacts that would result from the full

solar and storage alternative. 97 In doing so, the Board correctly followed the Commission s

regulations because Petitioner was obliged to provide sufficient information and include

references to specific portions of the application that the petitioner disputes 98 Therefore,

Petitioner has failed to show that the Boards rejection of proposed Contention 3 was an error of

law or abuse of discretion.

D. Petitioner Concedes the Boards Rejection of Proposed Contention 4

At times in the Appeal, Petitioner appears to assert that all four of its proposed

contentions should have been admitted. 99 However, the Appeals discussion specific to

94 Appeal at 25.

95 Id. Although Petitioner uses the term moderate to high when describing the Environmental Reports environmental impact assessment finding, the Environmental Report and the Board decision both use the term MODERATE to LARGE, consistent with 10 C.F.R. Part 51, Subpart A, Appendix B, Table B-1. See LBP-21-5 at __ (slip op. at 43-45) (citing Environmental Report at 7-8).

96 Tr. at 121-24.

97 LBP-21-5 at __ (slip op. at 44-45).

98 10 C.F.R. § 2.309(f)(1)(vi).

99 See Appeal at i, 1, 3.

22

proposed Contention 4 states that PSR WI concedes the rejection of Contention 4 and the

Appeals conclusion requests that the Commission restore Contentions 1, 2 and 3 to the [Board]

for adjudication. 100 Additionally, Petitioner does not address the substance of the Boards ruling

on proposed Contention 4. An argument that was previously made before the Board but not

discussed on appeal is considered abandoned. 101 Accordingly, to the extent that the A ppeal

could be read to challenge the Boards decision regarding proposed Contention 4, the

Commission should affirm the Board s decision declining to admit proposed Contention 4.

CONCLUSION

For the foregoing reasons, Petitioner has failed to identify a specific error of law or abuse

of discretion with respect to the Boards decision on contention admissibility. Therefore,

consistent with the agencys regulations and Commission precedent, the Commission should

affirm the Boards decision in LBP-2 1-5.

Respectfully submitted,

/Signed (electronically) by/

Jeremy L. Wachutka Counsel for NRC Staff Mail Stop: O A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (30 1) 287-9188 E-mail: Jeremy.Wachutka@nrc.gov

Executed in Accord with 10 CFR 2.304(d)

Mitzi A. Young Counsel for NRC Staff Mail Stop: O A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287-9178 E-mail: Mitzi.Young@nrc.gov

100 Id. at 26.

101 Shearon Harris, CLI-10-9, 71 NRC at 257.

23

Executed in Accord with 10 CFR 2.304(d)

Travis C. Jones Counsel for NRC Staff Mail Stop: O A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 415-2848 E-mail: Travis.Jones@nrc.gov Dated this 14th day of September 2021

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

BEFORE THE COMMISSION

In the Matter of

NEXTERA ENERGY POINT BEACH, LLC Docket Nos. 50-266 & 50-301-SLR

(Point Beach Nuclear Plant, Units 1 and 2)

Certificate of Service

Pursuant to 10 C.F.R §2.305, I hereby certify that copies of the foregoing NRC STAFFS BRIEF

IN OPPOSITION TO PHYSICIANS FOR SOCIAL RESPONSIBILITY WISCONSINS APPEAL

OF LBP 5 (CORRECTED), dated September 14, 2021, have been served upon the

Electronic Information Exchange (the N RCs E-Filing System), in the captioned proceeding, this

14th day of September 2021.

/Signed (electronically) by/

Jeremy L. Wachutka Counsel for NRC Staff Mail Stop: O A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Telephone: (301) 287 -9188 E-mail: Jeremy.Wachutka@nrc.gov Dated this 14th day of September 2021