ML24155A110

NRC Staff Answer to Amended and New Contentions and Petition for Waiver

ML24155A110
Person / Time
Site:	Turkey Point
Issue date:	06/03/2024
From:	Jeremy Wachutka NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
ASLBP 24-981-01-SLR-BD01, RAS 57038, 50-250-SLR-2, 50-251-SLR-2
Download: ML24155A110 (0)

Text

June 3, 2024

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

In the Matter of

FLORIDA POWER & LIGHT COMPANY Docket Nos. 50-250- SLR-2 50- 251-SLR-2

(Turkey Point Nuclear Generating Units 3 and 4)

NRC STAFF ANSWER OPPOSING MIAMI WATERKEEPER MOTION TO ADMIT AMENDED AND NEW CONTENTIONS AND PETITION FOR WAIVER

INTRODUCTION

Pursuant to 10 C.F.R. § 2.309(i), the Initial Scheduling Order dated March 26, 2024, and

the Memorandum and Order (Granting Motion for Extension of Time) dated April 26, 2024, the

U.S. Nuclear Regulatory Commission Staff files this answer opposing the amended and new

contentions and Petition for Waiver filed by Biscayne Bay Waterkeeper, Inc. d/b/a Miami

Waterkeeper (Petitioner). Petitioner filed three amended (Amended Contentions 1-A, 1-B, and 1-

C) and three new (New Contention 2 and New Contentions 3-A and 3-B) contentions

challenging the Staffs environmental review of the proposed action of licensing Florida Power &

Light Company (FPL) to operate Turkey Point Nuclear Generating Units 3 and 4 for an

additional 20 years, i.e., until July 19, 2052 for Unit 3 and until April 10, 2053 for Unit 4.

Petitioner s three amended contentions are inadmissible because they are not based on new

information, reiterate previous arguments that were previously rejected, do not raise genuine

disputes with the Staffs environmental review, and are not factual supported. Petitioner s three

new contentions are inadmissible because New Contention 2 does not raise a genuine dispute

with the Staffs environmental review, is not factually supported, and is not material and because

New Contentions 3-A and 3-B are not based on new information, reiterate previous arguments

that were previously rejected, and do not raise genuine disputes with the Staffs environmental

review. Further, New Contention 3-B is not within the limited scope of this license renewal

proceeding. Although Petitioner requests a waiver of the NRCs regulations to support the

admissibility of New Contention 3-B, Petitioner does not meet the requirements of showing that

the circumstances at issue are unique and that the waiver is necessary to reach a significant

safety or environmental problem. Because none of Petitioner s amended or new contentions

meet both the good cause requirements in 10 C.F.R. § 2.309(c)(i) and (ii) o f being based on new

and materially different information and the contention admissibility requirements in 10 C.F.R.

§ 2.309(f), and because the Petition for Waiver does not meet the requirements in 10 C.F.R.

§ 2.335, the amended and new contentions should be dismissed and the Petition for Waiver

should be denied. Additionally, because there would be no admitted or pending contentions

remaining before it, the Board should also terminate this proceeding.

BACKGROUND

In October 2015, Miami-Dade County, through its Department of Regulatory and

Economic Resources, Division of Environmental Resources Management (DERM), entered into

a consent agreement with FPL (2015 DERM Consent Agreement) that included the

requirements to construct a recovery well system to retract hypersaline groundwater in the

Biscayne Aquifer and to freshen the water in the Turkey Point cooling canal system (CCS). 1 In

June 2016, the State of Florida Department of Environmental Protection (FDEP) entered into a

Consent Order with FPL (2016 FDEP Consent Order) that included the requirement to cease

1 Consent Agreement between Miami-Dade County, through its Department of Regulatory and Economic Resources, Division of Environmental Resources Management, and Florida Power &

Light Company (Oct. 7, 2015) (ADAMS Accession No. ML15286A366) (2015 DERM Consent Agreement).

discharges from the CCS that impair the reasonable and beneficial uses of adjacent

groundwater in the Biscayne Aquifer by freshening the CCS. 2

By letter dated January 30, 2018, as supplemented, FPL submitted to the NRC a

subsequent license renewal application (SLRA) seeking permission to operate Turkey Point

Units 3 and 4 for an additional 20 years, i.e., from July 19, 2032, and April 10, 2033, to July 19,

2052, and April 10, 2053, respectively. 3 On August 1, 2018, Petitioner, along with Friends of the

Earth and Natural Resources Defense Council (collectively, Joint Petitioners), filed a timely

hearing request challenging the SLRA. 4 The Staff and FPL filed answers in opposition, 5 to which

Joint Petitioners replied. 6

In LBP-19-3, the Board, among other things, granted Joint Petitioners hearing request

and admitted, as revised, two contentions. 7 The first admitted contention, Contention 1-E,

argued that the ER was deficient for failing to consider mechanical draft cooling towers as a

2 Consent Order between State of Florida Department of Environmental Protection and Florida Power & Light Company (Jun. 20, 2016) (ML16216A216) (2016 FDEP Consent Order).

3 See Letter from Mano K. Nazar, FPL, to NRC Document Control Desk (Jan. 30, 2018)

(ML18037A812 (package)) (SLRA); Letter from William D. Maher, FPL, to NRC Document Control Desk (Feb. 9, 2018) (ML18044A653) (SLRA Supplement 1); Letter from William D.

Maher, FPL, to NRC Document Control Desk (Feb. 16, 2018) (ML18053A123 (package)) ( S L R A Supplement 2); Letter from William D. Maher, FPL, to NRC Document Control Desk (Mar. 1, 2018) (ML18072A224 (package)) (SLRA Supplement 3); and Letter from William D. Maher, FPL, to NRC Document Control Desk (Apr. 10, 2018) (ML18113A132 (package)) (SLRA Revision 1).

4 Request for Hearing and Petition to Intervene Submitted by Friends of the Earth, Natural Resources Defense Council, and Miami Waterkeeper (Aug. 1, 2018) (ML18213A418) (Joint Petition).

5 NRC Staff s Corrected Response to Petitions to Intervene and Requests for Hearing filed by (1) Friends of the Earth, Natural Resources Defense Council and Miami Waterkeeper, and (2)

Southern Alliance for Clean Energy (Aug. 27, 2018) (ML18239A458); Applicants Answer Opposing Request for Hearing and Petition to Intervene Submitted by Friends of the Earth, Natural Resources Defense Council, and Miami Waterkeeper (Aug. 27, 2018) (ML18239A445).

6 Reply in Support of Request for Hearing and Petition to Intervene Submitted by Friends of the Earth, Natural Resources Defense Council, and Miami Waterkeeper (Sep. 10, 2018)

(ML18253A280).

7 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), LBP-19-3, 89 NRC 245, 301-2 (2019).

reasonable alternative, given the adverse impact of the continued operations of the Turkey Point

CCS on the threatened American crocodile and its critical seagrass habitat.8 The second

admitted contention, Contention 5 -E, argued that the ER wa s deficient in its failure to recognize

Turkey Point as a source of ammonia in freshwater wetlands surrounding the site, and in its

failure to analyze the potential impacts of ammonia releases during the renewal period on

threatened and endangered species and their critical habitat. 9

In March 2019, consistent with 10 C.F.R. § 51.95(c), the Staff issued, as a supplement to

the NRCs 2013 license renewal generic environmental impact statement, NUREG-1437 (LR

GEIS), 10 its draft environmental impact statement regarding the Turkey Point SLRA (2019

DSEIS). 11 Among other things, the 2019 DSEIS considered the use of mechanical draft cooling

towers as an alternative to the CCS12 and analyzed ammonia releases within and around the

Turkey Point site. 13 Therefore, in LBP-19-6, the Board determined that the omissions that were

the bases for Contentions 1-E and 5-E had been cured and thus that the admitted contentions

were rendered moot. 14 The Board did not terminate the proceeding, though, because the Board

was still considering two amended and four new contentions regarding the 2019 DSEIS and a

8 Id. at 287.

9 Id. at 293-94.

10 Generic Environmental Impact Statement for License Renewal of Nuclear Plants, NUREG-1437, R e v. 1, Vols. 1-3 (Jun. 2013) (ML13107A023 (package)) (LR GEIS).

11 Generic Environmental Impact Statement for License Renewal of Nuclear Plants Regarding Subsequent License Renewal for Turkey Point Nuclear Generating Unit Nos. 3 and 4, Draft Report for Comment, NUREG-1437, Supplement 5, Second Renewal (Mar. 2019)

(ML19078A330) (2019 DSEIS).

12 Id. at 2 2-13, 2 2-23, 4-11, 4 4-19, 4-21, 4 4-42, 4-48-4-49, 4 4-60, 4-76, 4-82-4-84, 4-88, 4 4-95, 4-97.

13 Id. at 3 3-44.

14 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), LBP-19-6, 90 NRC 17, 26 (2019).

petition for waiver filed by Joint Petitioners. 15 The Staff and FPL filed answers opposing these

filings, 16 to which Joint Petitioners replied. 17 In LBP-19-8, the Board dismissed Joint Petitioners

new and amended contentions and petition for waiver and, as there were no pending

contentions remaining before it, the Board terminated the proceeding.18 Joint Petitioners

appealed LBP-19-3, LBP-19-6, and LBP-19-8. 19

In October 2019, the Staff issued the 2019 Final SEIS (2019 FSEIS). 20 Thereafter, since

the Staff had previously completed its safety review of the SLRA, 21 it approved the SLRA and

issued subsequent renewed licenses for Turkey Point Units 3 and 4. 22

15 Id. at 26; Natural Resources Defense Councils, Friends of the Earth s, and Miami Waterkeepers Amended Motion to Migrate Contentions & Admit New Contentions in Response to NRC Staffs Supplemental Draft Environmental Impact Statement (Jun. 28, 2019)

(ML19179A316) (Motion to Admit New and Amended Contentions).

16 NRC Staff s Answer to Joint Intervenors (1) Amended Motion to Migrate or Amend Contentions 1-E and 5-E and to Admit Four New Contentions, and (2) Petition for Waiver (Jul.

19, 2019) (ML19200A300); Florida Power & Light Companys Answer Opposing Intervenors Motion to Migrate or Amend Contentions 1-E and 5-E and to Admit New Contentions 6-E, 7-E, 8-E, and 9-E (Jul. 19, 2019) ( ML19200A297).

17 Reply in Support of Motion to Migrate Contentions & Admit New Contentions in Response to NRC Staff s Supplemental Draft Environmental Impact Statement (Jul. 26, 2019)

(ML19207C092).

18 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), LBP-19-8, 90 NRC 139, 178 (2019).

19 Friends of the Earths, Natural Resources Defense Councils, and Miami Waterkeeper s Petition for Review of the Atomic Safety and Licensing Boards Rulings in LBP 3 and LBP 6 (Aug. 9, 2019) (ML19221B677); Friends of the Earths, Natural Resources Defense Councils, and Miami Waterkeeper s Petition for Review of the Atomic Safety and Licensing Boards Ruling in LBP-19-8 (Nov. 18, 2019) (ML19322D623).

20 Generic Environmental Impact Statement for License Renewal of Nuclear Plants Regarding Subsequent License Renewal for Turkey Point Nuclear Generating Unit Nos. 3 and 4 (Final Report), NUREG-1437, Supplement 5, Second Renewal (Oct. 2019) (ML19290H346) (2019 FSEIS).

21 Safety Evaluation Report Related to the Subsequent License Renewal of Turkey Point Generating Units 3 and 4, Docket Nos. 50-250 and 50- 251, Florida Power & Light Company (Jul. 2019) (ML19191A057).

22 Letter from David Drucker, NRC, to Mano Nazar, FPL, Issuance of Subsequent Renewed Facility Operating License Nos. DPR-31 and DPR-41 for Turkey Point Nuclear Generating Unit Nos. 3 a nd 4 (EPID L -2018-RNW-0002) (Dec. 4, 2019) (ML19305C879).

In 2022, the Commission took up the pending appeals of LBP 3, LBP-19-6, and LBP-

19-8 and, in CLI-22-2, found that the Staffs environmental review of the Turkey Point SLRA was

incomplete. 23 In CLI-22-3, the Commission explained that the Staffs environmental review could

be completed through either (1) updating the LR GEIS so that it addresses subsequent license

renewal and then reviewing the SLRA using this updated LR GEIS or (2) addressing

environmental impacts on a site-specific basis in a site-specific environmental impact

statement. 24 The Commission explained that Option 2 would involve the Staff addressing the

impacts designated as Category 1 or generic in the 2013 version of the LR GEIS on a site-

specific basis in the Staff s site-specific environmental impact statements instead of simply

incorporating the determinations for those impacts from the LR GEIS into the environmental

impact statements by reference. 25 The Commission dismissed the environmental contentions

and motions pending in the affected subsequent license renewal proceedings, including in the

Turkey Point SLRA proceeding. 26 The Commission stated that there would be a hearing

opportunity on any site-specific environmental impact statements developed by the Staff, but

that it would be limited to contentions based on new information in the site-specific

environmental impact statement. 27

In response to CLI-22-2 and CLI-22-3, F P L submitted Environmental Report (ER)

Supplement 2, which provided a site-specific analysis of the impacts designated as Category 1

or generic in the 2013 version of the LR GEIS with respect to the continued operation of Turkey

23 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), CLI-22-2, 95 NRC 26, 27 (2022).

24 Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, and 3), CLI 3, 95 NRC 40, 41-42 (2022).

25 Id. at 41

26 Id. at 42.

27 Id.

Point during the subsequent license renewal term. 28 That analysis supplemented the ER and

ER Supplement 1 that were included as part of the Turkey Point SLRA 29 and addressed, on a

site-specific basis, each generic environmental issue.

In 2023, following its receipt of ER Supplement 2, the Staff issued the 2023 Draft SEIS

(2023 DSEIS), which evaluated, on a site -specific basis, the impacts designated as Category 1

or generic in the 2013 version of the LR GEIS with respect to the continued operation of Turkey

Point during the subsequent license renewal term. 30 The 2023 DSEIS considered information

contained in ER Supplement 2; the Staffs consultation with Federal, State, Tribal, and local

government agencies; and other information, as appropriate. 31 The 2023 DSEIS also

considered whether there was significant new information that would change the St aff s

conclusions regarding the impacts designated as Category 2 or site-specific in the 2013

version of the LR GEIS and evaluated on a site-specific basis in the 2019 FSEIS, 32 and also

considered the then-ongoing rulemaking to update the 2013 license renewal rule and LR

GEIS. 33 Thus, the 2023 DSEIS supplemented and updated the 2019 FSEIS so that together, the

2023 DSEIS and the 2019 FSEIS evaluated, on a site -specific basis and without relying on the

28 Letter from William D. Maher, FPL, to NRC Document Control Desk (Jun. 9, 2022)

(ML22160A301) (ER Supplement 2).

29 Florida Power & Light Company, Appendix E, Applicants Environmental Report, Subsequent Operating License Renewal Stage, Turkey Point Nuclear Plant Units 3 and 4 (Jan. 2018)

(ML18113A145) (ER); Letter from William D. Maher, FPL, to NRC Document Control Desk (Apr.

10, 2018) (ML18102A521) (ER Supplement 1).

30 Site -Specific Environmental Impact Statement for License Renewal of Nuclear Plants Regarding Subsequent License Renewal for Turkey Point Nuclear Generating Unit Nos. 3 and 4, Draft Report for Comment, NUREG-1437, Supplement 5a, Second Renewal (Aug. 2023)

(ML23242A216) (2023 DSEIS).

31 Id. at 1-4

32 Id.

33 Id. at App. E.

2013 version of the LR GEIS, all of the environmental impacts of continued operation during the

subsequent license renewal term for Turkey Point. 34

On September 8, 2023, the Staff noticed the availability of the 2023 DSEIS and provided

members of the public an opportunity to request a hearing on it. 35 This opportunity to request a

hearing was specifically limited to contentions based on new information in the [2023

DSEIS]. 36 This limitation mirrors the language in CLI 3, in which the Commission directed

the Staff to provide a new notice of opportunity for hearing after each site-specific review is

complete limited to contentions based on new information in the site-specific environmental

impact statement. 37 The Commission confirmed that the timing of the Staffs notice of

opportunity to request a hearing was appropriate. 38

In response to the notice of opportunity to request a hearing, Petitioner timely filed a

hearing request, in which Petitioner argued that a hearing should be granted regarding the 2023

DSEIS because Petitioner has standing and has proposed five contentions. 39 The Staff and FPL

filed answers in opposition,40 to which Petitioner replied. 41

34 Id. at 1 1-5.

35 Florida Power & Light Company; Turkey Point Nuclear Generating Unit Nos. 3 and 4; Draft environmental impact statement; request for comment; public comment meetings; opportunity to request a hearing and to petition for leave to intervene, 88 Fed. Reg. 62,110, 62,110- 11 (Sep. 8, 2023).

36 Id.

37 Oconee, CLI-22-3, 95 NRC at 42.

38 CLI-24-01, 99 NRC __ ( Mar. 7, 2024) (slip op.).

39 Request for Hearing and Petition to Intervene Submitted by Miami Waterkeeper (Nov. 27, 2023) (ML23331A971) (Hearing Request).

Petitioner filed, among others, the following with Hearing Request: Exhibit 3, Declaration of Dr.

William K. Nuttle regarding the draft EIS for the Turkey Point Nuclear Generating Unit Nos. 3 and 4 (NUREG-1437 Supplement 5a Second Renewal) (ML23331A983) (2023 Nuttle Report).

40 NRC Staff Answer Opposing Miami Waterkeeper Hearing Request (Dec. 22, 2023)

(ML23356A162); Florida Power & Light Companys Answer Opposing Miami Waterkeeper s Hearing Request and Petition for Leave to Intervene (Dec. 22, 2023) (ML23356A156).

41 Reply in Support of Request for Hearing and Petition to Intervene Submitted by Miami Waterkeeper (Jan. 8, 2024) (ML24008A293).

In LBP-24-3, the Board determined that Petitioner had standing to intervene and

admitted a portion of Contention 1 as a contention of omission. As narrowed and reformulated

by the Board, Contention 1 argued that the Staffs analysis in the 2023 DSEIS lacks an

explanation as to how the uncertainty about the success of FP L s efforts to retract the

hypersaline groundwater plume resulting from the operation of the CCS to within the Tur k e y

Point site boundary prior to the subsequent license renewal term leads to a finding of moderate

environmental impacts. 42 Therefore, the Board granted the hearing request and dismissed

Contentions 2 through 5 and the remaining portions of Contention 1.43

On March 29, 2024, the Staff issued the 2024 Final SEIS (2024 FSEIS), which made

changes to the 2023 DSEIS, as necessary, based on the information gathered during the public

comment period and any other new information received.44 Consistent with the Boards Initial

Scheduling Order dated March 26, 2024, 45 Petitioner, the Staff, and FPL jointly filed a motion

agreeing that Reformulated Contention 1 should be dismissed as moot because the Staff

included the explanation alleged by that contention to be missing from the 2023 DSEIS in the

2024 FSEIS. 46 Prior to the Board ruling on that joint motion, on May 8, 2024, Petitioner timely

filed 47 a motion to admit amended and new contentions based on the 2024 FSEIS and

42 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), LBP-24-3, 99 NRC __, __ (Mar. 7, 2024) (slip op. at 11, 21-22).

43 Id. at __ (slip op. at 34).

44 Site -Specific Environmental Impact Statement for License Renewal of Nuclear Plants Regarding Subsequent License Renewal for Turkey Point Nuclear Generating Unit Nos. 3 and 4, Final Report, NUREG-1437, Supplement 5a, Second Renewal, at 1-3 (Mar. 2024)

(ML24087A061) (2024 FSEIS).

45 Initial Scheduling Order (Mar. 26, 2024) (ML24086A446).

46 Joint Unopposed Motion to Dismiss Reformulated Contention 1 as Moot and Position of the NRC Staff and Miami Waterkeeper Regarding Opportunity to File New or Amended Contentions, at 5 (Apr. 4, 2024) (ML24095A314).

47 See Initial Scheduling Order (Mar. 26, 2024) (ML24086A446); Memorandum and Order (Granting Motion for Extension of Time) (Apr. 26, 2024) (ML24117A266).

Government Accountability Office Report 24 -106326 (GAO Report) 48 and a petition for waiver.49

Specifically, Petitioner requested, based on the 2024 FSEIS, the admission of Amended

Contentions 1 -A, 1-B, and 1-C and New Contention 2 and, based on the GAO Report, the

admission of New Contentions 3-A and 3-B. 50 In addition, Petitioner included the Petition for

Wa i v er associated with New Contention 3-B to challenge the Staff s severe accident mitigation

alternatives (SAMA) update. 51 Thereafter, on May 9, 2024, the Board granted the parties joint

motion and dismissed Reformulated Contention 1, such that no admitted contentions remain

before the Board. 52

DISCUSSION

In support of the dual mandates of the National Environmental Policy Act of 1969, as

amended (NEPA), to foster informed decision-making and informed public participation,53 the

Staff has completed two reviews of the environmental impacts of the proposed action, with each

review consisting of a draft environmental impact statement that was issued for comment and a

final environmental impact statement addressing comments received, and the two final

environmental impact statements total almost 900 pages. The deadline for filing contentions

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

49 Miami Waterkeeper s Motion to Admit Amended and New Contentions in Response to NRC Staff s Final Site-Specific Environmental Impact Statement (May 8, 2024) (ML24129A220)

(Motion); Miami Waterkeeper s Petition for Waiver of 10 C.F.R. §§ 51.53(c)(3) and 51.71(d) and 10 C.F.R. Part 51, Subpart A, Appendix B (May 8, 2024) (ML24129A221) (Petition for Waiver).

50 Motion at 1 - 2, 7, 51.

51 Petition for Wavier at 1, 3, 5-9.

52 Memorandum and Order (Granting Unopposed Motion to Dismiss Contention 1) (May 9, 2024)

(ML24130A205).

53 See Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI 17, 56 NRC 1, 10 (2002) (quoting Louisiana Energy Services, L.P.

(Claiborne Enrichment Center), CLI-98-3, 47 NRC 77, 88 (1998)).

regarding these environmental review s has passed. 54 Accordingly, in order to be admitted,

Petitioner s amended and new contentions must meet both the heightened pleading

standards of 10 C.F.R. § 2.309(c), which require, in part, demonstrating that the information

upon which the filing is based was not previously available and is materially different from

information previously available, and the strict-by-design contention admissibility requirements

of 10 C.F.R. § 2.309(f)(1). 55 As discussed below, Petitioner has not demonstrated that any of

its amended or new contentions meet all of these requirements. In addition, in order to be

admitted, New Contention 3-B, which challenges the Staff s SAMA update, must also be

accompanied by a waiver of the NRCs rules under 10 C.F.R. § 2.335. A petition for such a

waiver must meet all four factors of the Millstone test to demonstrate a prima facie case

that the waiver should be granted. 56 As also discussed below, Petitioner s Petition for

Waiver does not meet the factors of showing that the circumstances at issue are unique

and that the waiver is necessary to reach a significant safety or environmental problem.

Therefore, the amended and new contentions should be dismissed and the Petition for Waiver

should be denied. Because there would be no admitted or pending contentions remaining

before it, the Board should also terminate this proceeding. 57

54 See 88 Fed. Reg. at 62,110- 11; Order (Granting a 20- Day Extension Deadline to Request for Hearing) (Nov. 6, 2023) (ML23310A269); CLI 01, 99 NRC at __ (slip op. at 6).

55 See, e.g., Crow Butte Resources, Inc. (In Situ Leach Uranium Recovery Facility), CLI 8, 92 NRC 255, 259-60 (2020); Turkey Point, LBP-19-8, 90 NRC at 149, 159-60.

56 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI 24, 62 NRC 551, 559-60 (2005).

57 See Virginia Electric and Power Co. D/B/A Dominion Virginia Power and Old Dominion Electric Coop. (North Anna Power Station, Unit 3), CLI-12-14, 75 NRC 692, 699-701 (2012)

(directing that licensing boards terminate proceedings once all contentions have been decided and not hold them open for future filings; instead, the appropriate process is a 10 C.F.R. § 2.326 motion to reopen); Turkey Point, LBP-19-8, 90 NRC at 178 (terminating the first Turkey Point subsequent license renewal proceeding at the Board level after the admitted contention of omission was found to be moot and all proposed new and amended contentions were dismissed).

I. Requirements for the Admissibility of New or Amended Contentions Filed after the Deadline

Pursuant to 10 C.F.R. § 2.309(c), new and amended contentions will not be

entertained absent a determination by the presiding officer that a participant has

demonstrated good cause. 58 Good cause is demonstrated by showing that:

(i) The information upon which the filing is based was not previously available; (ii) The information upon which the filing is based is materially different from information previously available; [ 59] and (iii) The filing has been submitted in a timely fashion based on the availability of the subsequent information. [ 60]

As defined by the three factors in 10 C.F.R. § 2.309(c), good cause is the sole factor to be

considered when evaluating whether to review the admissibility of a new or amended

contention. 61 Thus, the regulation requires that the contention s proponent establish good

cause for why the contention was not raised at the outset of the proceeding and when

determining whether a new or amended contention is timely, the Commission look[s] to whether

the contention could have been raised earlier. 62 There is no good cause if the challenge that

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

59 10 C.F.R. § 2.309(c) ; cf. Turkey Point, LBP-19-8, 90 NRC at 149 n.13 (The term materially describes the type or degree of difference between the new information and previously available information, and it is synonymous with, for example, significantly, considerably, or importantly.) (quoting Florida Power & Light Co. (Turkey Point Units 6 and 7), LBP-17-6, 86 NRC 37, 48 (2017), aff d on other grounds, CLI 12, 86 NRC 215 (2017)).

60 10 C.F.R. § 2.309(c) ; see Initial Scheduling Order (Mar. 26, 2024) (ML24086A446) (providing that new or amended contentions based on the 2024 FSEIS are due 40 days after the issuance of the 2024 FSEIS); Memorandum and Order (Granting Motion for Extension of Time) (Apr. 26, 2024) (ML24117A266) (providing that new or amended contentions based on the GAO Report are due at the same time as new or amended contentions based on the 2024 FSEIS).

61 Amendments to Adjudicatory Process Rules and Related Requirements; Proposed Rule, 76 Fed. Reg. 10,781, 10,783 (Feb. 28, 2011). See also Amendments to Adjudicatory Process Rules and Related Requirements; Final Rule, 77 Fed. Reg. 46,562, 46,572 (Aug. 3, 2012).

62 Holtec International (HI-STORE Consolidated Interim Storage Facility), CLI-21-7, 93 NRC 215, 221 (2021).

is the subject of the new contention or the amendment to a previous contention could have been

timely raised at the outset of the proceeding. 63 This includes a challenge arguing that there is an

omission in a draft environmental impact statement when that same omission was present in the

environmental report on which the hearing opportunity was offered.64 Relatedly, there is no good

cause if the information being challenged is not actually new. 65 A new or amended contention is

not timely even if it is based on a new report if the information in that report was either

previously available or not materially different from the information that was previously available;

old information repackaged in a new report is not new information.66 A failure to satisfy the

requirements for proffering a contention out of time, without more, necessarily requires the

rejection of the new or amended contention, regardless of whether the new or amended

contention meets the contention admissibility requirements. 67

New and amended contentions must also meet the general contention admissibility

requirements in 10 C.F.R. § 2.309(f). 68 Those requirements and the related case law continue to

63 Interim Storage Partners LLC (WCS Consolidated Interim Storage Facility), CLI-21-9, 93 NRC 244, 247-49 (2021) (affirming the Board ruling that because the petitioner could have raised these challenges in its [timely] hearing request, the petitioner s new contention was untimely).

64 Id. at 248.

65 Id. (discussing that both the environmental report, on which a hearing opportunity was offered, and the subsequent draft environmental impact statement discussed the same impacts and, therefore, there was no good cause to challenge the draft environmental impact statement regarding these impacts when that same challenge could have been raised in a timely manner against the environmental report).

66 Holtec International (HI-STORE Consolidated Interim Storage Facility), CLI 4, 93 NRC 119, 127-28 (2021). See also 77 Fed. Reg. at 46,566 (discussing how the good-cause test applies to documents that use previously available information).

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

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

be the same as presented in the Staffs answer to Petitioner s hearing request.69 As relevant

here, a petitioner must set forth with particularity the contentions that the petitioner seeks to

raise and, for each contention, the petitioner must:

(i) Provide a specific statement of the issue of law or fact to be raised or controverted; (ii) Provide a brief explanation of the basis for the contention; 70 (iii) Demonstrate that the issue raised in the contention is within the scope of the proceeding;71 (iv) Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action involved in the proceeding;72 (v) Provide a concise statement of the alleged facts or expert opinions that support the petitioner s position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the petitioner intends to rely;73 and

69 NRC Staff Answer Opposing Miami Waterkeeper Hearing Request at 14-20 (Dec. 22, 2023)

(ML23356A162).

70 Contentions cannot be based on speculation and must have some reasonably specific factual or legal basis. Entergy Nuclear Vt. Yankee, LLC and Entergy Nuclear Operations, Inc.

(Vermont Yankee Nuclear Power Station), CLI-15-20, 82 NRC 211, 221 (2015).

71 The scope of the proceeding is defined by the Commission in its initial hearing notice and order referring the proceeding to the licensing board. See Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI 23, 52 NRC 327, 329 (2000). As a consequence, any contention that falls outside the specified scope of the proceeding must be rejected. See Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),

CLI-11-11, 74 NRC 427, 435 - 36 (2011).

72 A dispute at issue is material if its resolution would make a difference in the outcome of the licensing proceeding. Holtec International (Hi-STORE Consolidated Interim Storage Facility),

CLI 4, 91 NRC 167, 190 (2020). There may, of course, be mistakes in an environmental document, but in an NRC adjudication, it is the burden of petitioners to show their significance and materiality because boards do not sit to flyspeck environmental documents or to add details or nuances and [i]f the [document] on its face comes to grips with all important considerations nothing more need be done. Exelon Generation Co., LLC (Early Site Permit for Clinton ESP Site), CLI- 05-29, 62 NRC 801, 811 (2005) (quoting Systems Energy Resources, Inc.

(Early Site Permit for Grand Gulf ESP Site), CLI- 05-4, 61 NRC 10, 13 (2005)).

73 The petitioner is obliged to present the facts and expert opinions necessary to support its contention. See USEC Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 457 (2006) (it is the petitioner s responsibility to satisfy the basic contention admissibility requirements; boards should not have to search through a petition to uncover arguments and support for a contention and may not simply infer unarticulated bases of contentions); see also Arizona

(vi) Provide sufficient information to show that a genuine dispute exists with the applicant or licensee on a material issue of law or fact. This information must include references to specific portions of the application (including the applicants environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioner s belief.

The NRCs regulations governing contention admissibility are intended to focus litigation on

concrete issues and result in a clearer and more focused record for decision.74 The

Commission has explained that the contention admissibility rules are strict by design. 75 Failure

to satisfy any of the six pleading requirements renders a contention inadmissible.76 As noted

above, the rules require a clear statement as to the basis for the contentions and the

Public Service Co., et. al. (Palo Verde Nuclear Generating Station, Units 1, 2 and 3), CLI-91-12, 34 NRC 149, 155 (1991). Bare assertions and speculation, even by an expert, are insufficient to trigger a full adjudicatory proceeding. Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC 704, 714 (2012).

74 See, e.g., Southern Nuclear Operating Co. Inc. (Vogtle Electric Generating Plant, Unit 3),

LBP-20- 8, 92 NRC 23, 46 (2020) (quoting Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2202 (Jan. 14, 2004)); Crow Butte Resources, Inc. (In Situ Leach Facility, Crawford, NE), LBP -

15-15, 81 NRC 598, 601 (2015).

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

(citing Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3),

CLI-01-24, 54 NRC 349, 358 (2001) and South Carolina Electric & Gas Co. and South Carolina Public Service Authority (Virgil C. Summer Nuclear Station, Units 2 and 3), CLI-10-1, 71 NRC 1, 7 (2010). The Commission has stated that it should not have to expend resources to support the hearing process unless there is an issue that is appropriate for, and susceptible to, resolution in an NRC hearing. 69 Fed. Reg. at 2202.

76 Indian Point, CLI 5, 83 NRC at 136; see also Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 334-35 (1999) (the heightened contention admissibility rules are designed to preclude contentions based on little more than speculation).

The requirements are intended, among other things, to ensure that a petitioner reviews the application and supporting documents prior to filing contentions; that contentions are supported by at least some facts or expert opinion known to the petitioner at the time of filing; and that there exists a genuine dispute before a contention is admitted for litigation, to avoid the practice of filing contentions that lack any factual support and seeking to flesh them out later through discovery. Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), LBP-91-35, 34 NRC 163, 167-68 (1991).

submission of supporting information and references to specific documents and sources that

establish the validity of the contention.77

Although a petitioner does not have to prove its contention at the admissibility stage,78

the contention admissibility standards are meant to afford hearings only to those who proffer at

least some minimal factual and legal foundation in support of their contentions. 79 The petitioner

must provide some support for the contention, either in the form of facts or expert testimony,

and failure to do so requires that the contention be rejected.80 Any supporting material provided

by the petitioner is subject to scrutiny by the presiding officer,81 who must confirm that the proffered material provides adequate support for the contention.82 If a petitioner neglects to

provide the requisite support for its contentions, then the presiding officer should not make

assumptions of fact that favor the petitioner or search for or supply information that is lacking.83

Moreover, providing any material or document as a basis for a contention without explaining its

significance is grounds for the presiding officer to reject the contention. 84 In sum, the

77 AmerGen Energy Co. (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 118-19 (2006).

78 Private Fuel Storage L.L.C. (Independent Spent Fuel Storage Installation), CLI 22, 60 NRC 125, 139 (2004).

79 Oconee, CLI-99-11, 49 NRC at 334.

80 Palo Verde, CLI-91-12, 34 NRC at 155 ; accord, Indian Point, CLI 5, 83 NRC at 136. See Rules of Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,170 (Aug. 11, 1989) (This requirement does not call upon the intervener to make its case at this stage of the proceeding, but rather to indicate what facts or expert opinions, be it one fact or opinion or many, of which it is aware at that point in time [that]

provide the basis for its contention.).

81 See Vermont Yankee Nuclear Power Co. (Vermont Yankee Nuclear Power Station), ALAB-919, 30 NRC 29, 48 (1989), vacated in part on other grounds and remanded, CLI 4, 31 NRC 333 (1990); see also Tennessee Valley Authority (Bellefonte Nuclear Plant, Units 1 and 2), LBP-10-7, 71 NRC 391, 421 (2010).

82 See Vermont Yankee, A L A B -919, 30 NRC at 48; see also Bellefonte, LBP-10-7, 71 NRC at 421.

83 See USEC Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 457 (2006).

84 See Fansteel, Inc. (Muskogee, Oklahoma Site), CLI 13, 58 NRC 195, 205 (2003).

information, facts, and expert opinions provided by the petitioner are examined by the presiding

officer to determine whether they provide adequate support for the proffered contentions. 85

The Commissions regulations in 10 C.F.R. Part 54 limit the scope of license renewal

proceedings to those matters that must be considered for the license renewal application to be

granted and that have not been addressed by rulemaking or on a generic basis.86 A plants

current licensing basis is not within the scope of the license renewal rule.87 Adjudications on

license renewal applications are bounded by the same rules and scope as the NRCs license

renewal review. 88 Under 10 C.F.R. Part 54, the NRC conducts a technical review of the license

renewal application to ensure that public health and safety requirements are satisfied.89

However, the focus of this safety portion of the NRCs license renewal review is on plant

systems, structures, and components for which current [regulatory] activities and requirements

may not be sufficient to manage the effects of aging in the period of extended operation.90 The

Commission has found it unnecessary, at the license renewal stage, to review issues already

monitored and reviewed in ongoing regulatory oversight processes.91 Contentions falling outside

the scope of this safety review are inadmissible and must be rejected.92

85 American Centrifuge, CLI 10, 63 NRC at 457; see Bellefonte, LBP 7, 71 NRC at 421.

86 Oyster Creek, CLI-06-24, 64 NRC at 117-18; see also 10 C.F.R. § 54.29; Turkey Point, CLI-01-17, 54 NRC at 8 - 10.

87 10 C.F.R. § 54.30.

88 Turkey Point, CLI- 01-17, 54 NRC at 8 (Adjudicatory hearings in individual license renewal proceedings will share the same scope of issues as our NRC Staff review, for our hearing process (like our Staffs review) necessarily examines only the questions our safety rules make pertinent.).

89 Id. at 6.

90 Id. at 10 (quoting 60 Fed. Reg. at 22,469).

91 See, e.g., Turkey Point, CLI-01-17, 54 NRC at 8-10 (holding that [i]ssues like emergency planningwhich already are the focus of ongoing regulatory processes do not come within the NRC's safety review at the license renewal stage).

92 10 C.F.R. § 2.309(f)(1)(iii); see, e.g., Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI 24, 62 NRC 551, 567 (2005).

In accordance with its N E PA responsibilities, the Staff is required to take a hard look at

the environmental impacts of a proposed major federal action that could significantly affect the

environment, as well as reasonable alternatives to that action.93 This hard look is tempered by

a rule of reason consideration of environmental impacts need not address all theoretical

possibilities, but rather only those that have some possibility of occurring.94 An agency thus

need only address impacts that are reasonably foreseeable; the agency need not perform

analyses concerning events that would be considered worst case scenarios or those

considered remote and highly speculative.95 Further, N E PA does not call for certainty or

precision, but an estimate of anticipated (not unduly speculative) impacts.96 NEPA similarly

does not require review when the circumstances render review impossible.97 And NEPA gives

agencies broad discretion to keep their inquiries within appropriate and manageable

boundaries. 98 As the Commission has observed, NEPA requires consideration of reasonable

alternatives, not all conceivable ones.99 Further, environmental impact statements need only

discuss those alternatives that will bring about the ends of the proposed action. 100

Following publication of an environmental impact statement, further supplementation is required

93 See Claiborne, CLI 3, 47 NRC at 87-88; Crow Butte Resources, Inc. (Marsland Expansion Area), LBP-19-2, 89 NRC 18, 40 (2019).

94 Crow Butte Marsland, LBP-19-2, 89 NRC at 40 (quoting Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), ALAB-156, 6 AEC 831, 836 (1973)).

95 Holtec International (HI -STORE Consolidated Interim Storage Facility), LBP-19-4, 89 NRC 353, 357 (2019) (quoting Limerick Ecology Action, Inc. v. NRC, 869 F.2d 719, 754 - 55 (3d Cir.

1989)).

96 Crow Butte Marsland, LBP 2, 89 NRC at 40 (quoting Louisiana Energy Services, L.P.

(National Enrichment Facility), CLI-05-20, 62 NRC 523, 536 (2005)).

97 The Supreme Court has observed that where it is not possible for an agency to analyze the environmental consequences of a proposed action or alternatives to it, requiring such analysis would have no factual predicate and under those circumstances an EIS is not required. Kleppe

v. Sierra Club, 427 U.S. 390, 401- 02 (1976).

98 Crow Butte Marsland, LBP 2, 89 NRC at 40 (quoting Claiborne, CLI-98-3, 47 NRC at 103).

99 Seabrook, CLI-12-5, 75 NRC at 338.

100 Id. at 339 (footnotes and quotation marks omitted).

only if there are significant new circumstances or information [that] paint a dramatically

different picture of impacts compared to the description of impacts in the EIS. 101

The Commission has held that, absent a waiver, a contention must be rejected if it

challenges applicable statutory requirements, regulations, or the basic structure of the

Commissions regulatory process. 102 Contentions raising environmental issues in a license

renewal proceeding are limited to those issues that are affected by license renewal and that

have not been addressed by rulemaking or otherwise on a generic basis.103 As the Commission

has stated, Category 1 determinations are not subject to site-specific review and thus fall

beyond the scope of individual license renewal proceedings.104 Because these Category 1

determinations have been incorporated into a regulation, the conclusions of that analysis may

not be challenged in litigation unless the rule is waived.105 Accordingly, a contention challenging

a Category 1 determination, even if based on new and significant information, can be admitted

only if the Commission grants a waiver of its regulations according to the provisions of 10 C.F.R.

§ 2.335. 106 Similarly, the exception in 10 C.F.R. § 51.53(c)(3)(ii)(L) operates as the functional

101 Massachusetts v. U.S. Nuclear Reg. Comm., 708 F.3d 63, 68-69 (1st Cir. 2013) ( quoting Town of Winthrop v. FAA, 535 F.3d 1, 7, 12 (1st Cir. 2008)); accord, Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), CLI 7, 78 NRC 199, 211, 216 - 17 (2013).

102 As set forth in 10 C.F.R. § 2.335(a), no rule or regulation of the Commission is subject to attack in any adjudicatory proceeding, in the absence of a waiver petition granted by the Commission. Further, any contention that amounts to an attack on applicable statutory requirements or represents a challenge to the basic structure of the Commissions regulatory process must be rejected. Dominion Nuclear Conn. (Millstone Nuclear Power Station, Unit 2),

CLI 14, 58 NRC 207, 218 (2003).

103 Turkey Point, CLI-01-17, 54 NRC at 11 - 12; see 10 C.F.R. § 51.53(c)(3)(i)- (ii).

104 Id.

105 Entergy Nuclear Vermont Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-07-3, 65 NRC 13, 17 (footnotes omitted),

reconsid. denied, CLI- 07-13, 65 NRC 211, 214 (2007). This approach has been found to comply with NEPA. See, e.g., Massachusetts v. NRC, 708 F.3d at 68 - 69.

106 10 C.F.R. § 2.335(b).

equivalent of a Category 1 issue, thereby removing SAMA updates from litigation in this license

renewal adjudication. 107

II. The Amended and New Contentions Do Not Meet All of the Requirements in 10 C.F.R.

§ 2.309(c) and (f) and, therefore, should be Dismissed

Amended Contentions 1-A, 1-B, and 1-C and New Contentions 3-A and 3-B are not

admissible because, as a threshold matter, the information that they challenge in the 2024

FSEIS, as well as the information that they provide in support of these challenges, including in

the GAO Report, is not new and materially different from information previously available and

thus Petitioner could have timely filed contentions raising these same issues during the hearing

opportunity on the 2023 DSEIS. Therefore, Petitioner has failed to demonstrate good cause

under 10 C.F.R. § 2.309(c) for the Board to entertain these challenges n o w. Additionally,

Amended Contentions 1-A, 1-B, and 1-C and New Contentions 3-A and 3-B do not meet the

contention admissibility requirements of 10 C.F.R. § 2.309(f). Unlike Amended Contentions 1-A,

1-B, and 1-C and New Contentions 3-A and 3-B, New Contention 2 does challenge information in

the 2024 FSEIS that is new and materially different from information previously available. But

Contention 2 still does not show that a genuine dispute exists with the 2024 FSEIS on a material

issue of law or fact, lacks adequate factual support for Petitioner s position, and does not

demonstrate that the issue raised is material to the findings that the NRC must make. Therefore,

while New Contention 2 demonstrates good cause under 10 C.F.R. § 2.309(c), it does not meet

the contention admissibility requirements of 10 C.F.R. § 2.309(f). For these reasons, as detailed

below, the Board should dismiss Amended Contentions 1-A, 1-B, and 1-C, New Contention 2,

and New Contentions 3-A and 3-B.

107 Limerick, CLI-13-7, 78 NRC at 210- 12.

A. Amended Contentions 1-A, 1-B, and 1-C are Not Admissible because they Both Challenge and are Based on Preexisting Information and because they are Not Supported and Do Not Dispute a Material Issue of Law or Fact

Amended Contentions 1-A, 1-B, and 1 -C identify Section 2.8.3 of the 2024 FSEIS as

containing language that is new to the 2024 FSEIS as compared to the 2023 DSEIS, 108 but,

as explained below in the Staff answer to Amended Contention 1 -B, all of that new

language is adapted from preexisting information in the 2019 FSEIS and the 2023 DSEIS.

Moreover, Petitioner s challenges to that new language are substantively similar to previous

challenges to the 2019 DSEIS and the 2023 DSEIS, specifically, having to do with (1) the

beneficial impacts of ceasing operations of the CCS and (2) the theory that the required

remediation actions of withdrawing hypersaline groundwater and freshening the CCS will

worsen groundwater conditions in the Biscayne Aquifer, and those challenges were

previously rejected. 109 Because the information being challenged and the information in

support of that challenge are not new and because the challenges are not admissible for

the same reasons that they were not admissible previously, Amended Contentions 1 -A, 1-B,

and 1-C do not meet all of the requirements of 10 C.F.R. § 2.309(c) and (f) and should be

dismissed.

108 Motion at 16, 18-19, 21-22 (citing 2024 FSEIS at 2-39-2-40).

109 See Turkey Point, LBP-19-3, 89 NRC at 294 ( stating that the expert report attached to the pleading discusses the potential for the hydraulic plume to reach and impact the quality of the L-31E Canal); Turkey Point, LBP-19-8, 90 NRC at 154 (The [2019] DSEIS describes the scenario in which discontinued use of the CCS would reduce discharges of heated water and other effluents to the CCS, potentially reducing the amount of water used to support freshening activities. Joint Intervenors do not cite, much less contest, that part of the [2019] DSEIS. );

LBP-24-3, 99 NRC at __ (slip op. at 17, n.86) ([E] ven were we to consider Miami Waterkeeper s argument regarding the benefits of discontinuing use of the CCS, it would not change our admissibility determination for Contention 1); LBP 3, 99 NRC at __ (slip op. at 22)

(Petitioner s challenge that the recovery well system exerts additional pressure on exiting groundwater use conflicts does not explain how this information would change the analyses in the [2023 DSEIS], nor does Miami Waterkeeper otherwise show that the Staffs analyses are unreasonable. ).

1. Amended Contention 1-A is Not Admissible because it is Not Based on New Information, is Not Supported, and Does Not Genuinely Dispute the 2024 FSEIS

In Amended Contention 1-A Petitioner states:

The 2024 FSEIS fails to adequately analyze groundwater conditions for the no action alternative, which should be the conditions present when the plant is not operational.[ 110]

Petitioner argues that it has good cause under 10 C.F.R. § 2.309(c) to raise this contention now

because Petitioner asserts that Section 2.8.3 of the 2024 FSEIS includes new information that

was previously unavailable in the 2023 DSEIS.111 Petitioner then presents regulations and case

law that it asserts stand for the proposition that NEPA requires an evaluation of a no action

alternative, or, in this case, an evaluation of the environmental difference between extending

and not extending the expiration dates of the Turkey Point licenses for an additional 20 years.112

According to Petitioner, this proposition was also a basis for Petitioner s Contention 1

challenging the 2023 DSEIS and a basis for comments that Petitioner submitted on the 2023

DSEIS. 113 Petitioner further states that Section 3.2 of the 2024 FSEIS, which is unchanged from

the 2023 DSEIS in this regard, 114 refers to the 2019 FSEIS for its discussion of the alternatives

to the proposed action, including the no-action alternative, and that Section 4.6.2 of the 2019

FSEIS discusses CCS conditions under the no-action alternative. 115 In essence, Petitioner

argues that the Staffs environmental review is deficient in its analysis of the condition of the

110 Motion at 7.

111 Id. at 6, 16; compare 2024 FSEIS at 2 2-40 with 2023 DSEIS at 2-22-2-31.

112 Motion at 7 - 13.

113 Id. at 7; see LBP-24-3, 99 NRC at __ (slip op. at 17, n.86) (noting that Petitioner raised this argument at oral argument and in its reply brief); Motion at 13 (although the comment actually asserts a challenge to the discussion of the environmental baseline and not to the discussion of the no-action alternative).

114 Compare 2024 FSEIS at 3-2 with 2023 DSEIS at 3-2.

115 Motion at 13-14; 2019 FSEIS at 4 -49.

groundwater in the vicinity of the plant under the no-action alternative, that is, under the

alternative that the CCS is no longer used as a heat sink. 116

Amended Contention 1-A is not admissible because, contrary to 10 C.F.R. § 2.309(c),

Petitioner admits that it has raised the same argument previously in this proceeding. 117 Although

Petitioner states that Amended Contention 1-A i s revised, 118 Petitioner does not identify any

way in which Amended Contention 1-A is different than Petitioner s previous argument. Instead,

it appears that Petitioner is raising the same argument against the 2024 FSEIS that it raised

against the 2023 DSEISthat the Staffs impact determination of SMALL or MODERATE with

respect to groundwater quality is insufficient because it doesnt discuss the impacts to

groundwater quality under the alternative of no longer using the CCS as a heat sink. 119 The only

real difference here, though, is that Petitioner now explicitly challenges the no-action alternative

instead of its previous challenge, which had to do with the cooling tower alternative, but both

arguments encompass the same situation of the CCS no longer being used as a heat sink.120

Moreover, the information that Petitioner identifies as its basis for re-pleading this previous

argument, Section 2.8.3 of the 2024 FSEIS, is neither new nor materially different from

116 Motion at 13.

117 Id. at 7; see LBP-24-3, 99 NRC at __ (slip op. at 17, n.86) (noting that Petitioner raised this argument at oral argument and in its reply brief).

118 Motion at 7.

119 Compare Motion at 7-8, 16 (The Staff has made only a cursory effort to evaluate the baseline conditions for the no action alternative instead of fully analyz[ing] and present[ing] to the public and the Boards consideration, the environmental difference between extending the license and continuing the use of the CCS and declining the application and, therefore, its reliance in section 2.8.3 of the 2024 FSEIS on an incorrect environmental baseline is the basis of its erroneous determination that impacts on groundwater quality will be SMALL or MODERATE.) with Reply at 16-17 ([T]he 2023 DSEISs determination that the proposed action will have a SMALL or MODERATE impact on groundwater quality failed to compare the positive and remedial impact to groundwater of reasonable alternatives to the proposed action (i.e., discontinuing the use of the CCS as a heat sink for Units 3 and 4 mandating FPL implement a cooling tower) against the perpetuating and exacerbating impact of the proposed action (continuing to operate the CCS as a heat sink for Units 3 and 4).).

120 See Motion at 9, 13 (specifying that its argument is related to the use of the CCS as a heat sink).

information that was previously available. Although that section uses new language to present

the Staffs SMALL to MODERATE impact determination with respect to groundwater quality,

Petitioner does not identify and challenge any substantive difference between that impact

determination and the impact determination in the same section of the 2023 DSEIS.121 In fact,

as explained below in the Staff answer to Amended Contention 1-B, all of the new language in

Section 2.8.3 of the 2024 FSEIS is adapted from preexisting information in the 2019 FSEIS and

the 2023 DSEIS. Therefore, both Petitioner s argument and the portion of the 2024 FSEIS that

Petitioner points to as the basis for that argument are substantively unchanged from what was

available during the hearing opportunity on the 2023 DSEIS. The purpose of the heightened

pleading standard of 10 C.F.R. § 2.309(c), though, is to ensure that the only arguments admitted

after the deadline are those that could not have otherwise been filed by the deadline. 122

Accordingly, Amended Contention 1-A does not meet 10 C.F.R. § 2.309(c) and should, for this

reason alone, be dismissed.

All the other facets of Amended Contention 1-A and the related portions of the 2024

FSEIS are also not new and could not support the admission of this contention after the

deadline. First, Petitioner asserts that its request to amend Contention 1 is appropriate because

Contention 1 was previously admitted. 123 This statement, though, is incorrect. The narrowly

reformulated portion of Contention 1 that the Board admitted was a contention of omission

121 Compare 2024 FSEIS at 2 2-40 (stating that impacts to groundwater quality would be MODERATE under the scenario of the hypersaline groundwater plume extending outside of the Turkey Point site boundary during the subsequent license renewal term and SMALL under the scenario of the hypersaline groundwater plume being fully retracted to within the Turkey Point site boundary either before or during the subsequent license renewal term) with 2023 DSEIS at 2-31 ( [I]f FPL can retract and maintain the hypersaline plume to within the FPL site boundary prior to the [subsequent license renewal] term, the impacts on groundwater quality from the CCS operations during the [subsequent license renewal] term would be SMALL; otherwise, if the hypersaline groundwater plume is not retracted, impacts could be MODERATE.).

122 See HI-STORE Consolidated Interim Storage Facility, CLI-21-7, 93 NRC at 221.

123 Motion at 7.

that the 2023 DSEIS lacks an explanation as to how the uncertainty about the success of FPLs

efforts to retract the hypersaline groundwater plume to within the Turkey Point site boundary

prior to the subsequent license renewal term leads to a finding of moderate environmental

impacts. 124 The Board did not find that this omission extended to the discussion of the

groundwater impacts of the no-action alternative. 125 In fact, the Board explicitly questioned

whether Petitioner s argument regarding the beneficial impacts of discontinuing the use of the

CCS as a heat sink was even a part of Contention 1 and, therefore, did not include this

argument as part of the admitted portion of Contention 1. 126

Second, Petitioner asserts that the basis for Amended Contention 1-A i s that the 2023

DSEIS omitted explanation of the predictions regarding the hypersaline plume and that now

the 2024 FSEIS includes that explanation in Section 2.8.3. 127 Again, this is inaccurate because

the omission that was the subject of Reformulated Contention 1 was not of an explanation of

predictions regarding the hypersaline groundwater plume, but rather was of an explanation of

how the uncertainty regarding those predictions could result in moderate groundwater

impacts. 128 Accordingly, although Petitioner challenges the new language of Section 2.8.3 of the

2024 FSEIS for not discussing the no-action alternative, this was never the purpose of that new

language. Because neither Section 2.8.3 of the 2024 FSEIS nor Section 2.8.3 of the 2023

DSEIS discusses the no-action alternative in this regard, Petitioner s repetition of this argument

does not identify any new information as its basis. Instead, as conceded by Petitioner, 129 the no-

action alternative is discussed in the 2024 FSEIS at Section 3.2, which is unchanged from the

124 LBP-24-3, 99 NRC at __ (slip op. at 21 - 22).

125 Id.

126 Id. at 17, n.86 ( [W]e admit only a narrow portion of Contention 1 and conclude that all other claims, including this one, are inadmissible.).

127 Motion at 6, 16.

128 LBP-24-3, 99 NRC at __ (slip op. at 21-22).

129 Motion at 13-14.

2023 DSEIS at Section 3.2 and which states that the Staff identified no significant new

information that would change its discussion of the issue in Chapter 4 of the 2019 FSEIS. 130 This

is also not new information. Additionally, all of the regulations and case law cited in Amended

Contention 1-A are not new information, but rather were also available during the hearing

opportunity on the 2023 DSEIS. 131 Therefore, although Petitioner is asserting that the new

language in Section 2.8.3 of the 2024 FSEIS provides good cause for bringing Amended

Contention 1-A now, its proposed amendment of Contention 1 is actually based solely on old

information. As such, Amended Contention 1-A is an untimely supplementation of a preexisting

argument with preexisting information and, therefore, should be dismissed for failing to meet the

good cause requirement of 10 C.F.R. § 2.309(c).

Even if it were not dismissed for lack of good cause, Amended Contention 1-A should be

dismissed because it doesnt meet the contention admissibility requirements of 10 C.F.R.

§ 2.309(f). In Amended Contention 1-A, Petitioner asserts that the Staffs discussion of the

environmental impacts to groundwater of no longer using the CCS as a heat sink is inadequate.

However, Petitioner (1) does not provide factual support for this assertion and (2) does not

explain how this assertion genuinely disputes any specific portion of the Staffs environmental

review. With respect to factual support, Amended Contention 1-A states that the Staff has made

only a cursory effort to evaluate the baseline conditions for the no action alternative, has not

conducted an adequate baseline analysis against which to compare the impacts of the [CCS]

on saltwater intrusion, and has not explained the environmental difference between extending

the license and continuing the use of the CCS and declining the application. 132 The balance of

Amended Contention 1-A is a recitation of assertedly relevant regulations and case law. 133 That

130 2023 DSEIS at 3 3-2; 2024 FSEIS at 3 3-2.

131 See Motion at 8-13 (citing case law that all predates the 2023 DSEIS).

132 Motion at 7 - 8, 11-12.

133 Id. at 8-13.

discussion does not include any factual support, despite Petitioner referring to it as providing the

facts supporting Amended Contention 1-A. 134 And there is no factual support anywhere else in

Amended Contention 1-A f o r Petitioner s position that the 2024 FSEIS does not comply with the

recited legal standards just asserting that a discussion is inadequate and that regulations and

case law require adequate discussions is not factual support.135 Petitioner concludes that the

Staff s environmental baseline is incorrect, which is the basis of [the Staffs] erroneous

determination that impacts on groundwater quality will be SMALL or MODERATE. 136 This

statement does not support Amended Contention 1-A because that contention challenges the

adequacy of the Staffs analysis of groundwater conditions for the no-action alternative, 137 but

this statement concerns the separate issue of the adequacy of the environmental baseline. As

explained in the Staffs environmental review, the environmental baseline describes the

environment at the time of the Staffs analysis 138 and the no-action alternative describes the

impacts on that environmental baseline from the action of not authorizing an additional 20 years

of operation. 139 Conflating these two issues does not amount to support for Amended

Contention 1-A. Additionally, to the extent that Petitioner may with this statement somehow be

pointing to Amended Contention 1-C for the factual support required for Amended Contention 1-

134 Id. at 15 (The facts supporting the Petitioner s contention are set forth in the Basis Statement in Section 2, above.).

135 See Pilgrim, CLI-12-15, 75 NRC at 714 (explaining that bare assertions and speculation, even by an expert, are insufficient to trigger a full adjudicatory proceeding).

136 Motion at 16.

137 Id. at 7.

138 See 2019 FSEIS at 3-1 (In conducting its environmental review the [NRC s t a ff] first defines and describes the environment that could be affected by the subsequent license renewal. For this review, the NRC staff defines the affected environment as the environment that currently exists at and around the Turkey Point site.); 2019 FSEIS at 3 3-88 (describing the Baseline Groundwater Quality).

139 See 2019 FSEIS at 4-2 (The affected environment (i.e., environmental baseline) for each resource area considered is described in Chapter 3 and it is against this environmental baseline that the potential environmental impacts of the alternatives are measured.).

A, that too would be of no avail because, as discussed below, Amended Contention 1-C similarly

is untimely, not supported, and doesnt genuinely dispute the Staffs environmental review.

Therefore, contrary to 10 C.F.R. § 2.309(f)(1)(v), Amended Contention 1-A does not include

supporting alleged facts or expert opinions and, accordingly, it should be dismissed.

Amended Contention 1-A is also not admissible because although it references portions

of the 2024 FSEIS and the 2019 FSEIS, it doesnt provide sufficient information to show that a

genuine dispute exists with those documents on a material issue of law or fact. First, Petitioner

points to [t]he 2024 FSEIS at pages 2-24 to 2-40, which corresponds to Section 2.8.3 of the

2024 FSEIS, and points to Section 3.2, Comparison of Alternatives, of the 2024 FSEIS and

identifies that Section 3.2 of the 2024 FSEIS points, in turn, to the Staff evaluation of

alternatives in Chapter 4 of the 2019 FSEIS. 140 Petitioner then references Section 4.6.2 of the

2019 FSEIS, 141 which is the Staff discussion of the no-action alternative with respect to

terrestrial resources. 142 Petitioner, though, does not reference the Staff discussion of the no-

action alternative with respect to groundwater resources,143 despite its statement that this

contention concerns only groundwater analysis. 144 Because it doesnt cite the actually

relevant information of the Staffs discussion of beneficial impacts to groundwater quality from

Turkey Point Units 3 and 4 no longer using the CCS as a heat sink, 145 Petitioner has not shown

140 Motion at 13.

141 Id.

142 2019 FSEIS at 4 -49.

143 See id. at 4 4-38.

144 Motion at 14.

145 See 2019 FSEIS at 4 4-38 (The shutdown of Turkey Point would substantially reduce thermal discharges to the CCS as well as cooling water and other effluents from the plants cooling water system. This flow reduction would reduce groundwater mounding (i.e., a localized increase in the water table) beneath the CCS and reduce the generation of hypersaline water.

As a result, the NRC staff expects that the amount of water used to support freshening activities could be reduced[, which] is derived from five production wells tapping the Upper Floridan aquifer. [However,] FPL may need to operate and maintain the recovery well and associated

that a genuine dispute exists. Moreover, Petitioner s clarification that Amended Contention 1-A

only has to do with the updated groundwater analysis in the 2024 FSEIS is not availing

because, with respect to the no-action alternative, that analysis is exactly the same as the 2023

DSEIS analysis and neither discusses the beneficial impacts of ceasing Turkey Point Units 3

and 4 operations on the CCS because both rely, instead, on the discussion of the no-action

alternative in the 2019 FSEIS. 146

Contentions substantively similar to Amended Contention 1-A have already been raised

and rejected in both LBP-19-8 and LBP-24-3 for not meeting all of the contention admissibility

requirements of 10 C.F.R. § 2.309(f). 147 Although focusing on the cooling tower alternative as

opposed to the no-action alternative, in 2019, the Board addressed the argument that the Staff

had not sufficiently discussed the beneficial environmental impacts to groundwater of Turkey

Point Units 3 and 4 ceasing to use the CCS.148 The Board pointed out that the Staff described

the scenario in which discontinued use of the CCS would reduce discharges of heated water

and other effluents to the CCS, potentially reducing the amount of water used to support

freshening activities and that the Joint Petitioners did not cite, much less contest, that part of

the Staffs analysis and that, therefore, that aspect of the contention was inadmissible for failing

to raise a genuine dispute on a material issue of law or fact.149 In LBP 3, the Board also

deep well injection systems for as long as necessary to achieve and maintain compliance with County and FDEP requirements.).

146 Compare 2024 FSEIS at 3-2 with 2023 DSEIS at 3-2 (both stating that [t]he NRC staff evaluated the no-action alternative, in depth in Chapter 4 of the [2019] FSEIS and has identified no significant new information that would change these discussions in the [2019]

FSEIS).

147 See Turkey Point, LBP-19-8, 90 NRC at 154; Turkey Point LBP-24-3, 99 NRC at __ (slip op.

at 17, n.86).

148 Turkey Point, LBP-19-8, 90 NRC at 154.

149 Id.

found that Petitioner s argument regarding the benefits of discontinuing use of the CCS was

inadmissible. 150

As explained above, the argument of Amended Contention 1-A that the Staffs discussion

of the environmental impacts to groundwater of no longer using the CCS as a heat sink is

inadequate is not timely because, with respect to this topic, Petitioner does not point to any

materially different information in the 2024 FSEIS as compared to the 2023 DSEIS and does not

make any materially different arguments than it made regarding the 2023 DSEIS. This argument

also does not meet the contention admissibility requirements because Petitioner does not

provide any alleged facts or expert opinions in support of it and because Petitioner does not

genuinely dispute any relevant portions of the Staffs environmental review. Therefore, in

accordance with 10 C.F.R. § 2.309(c) and (f), Amended Contention 1-A should be dismissed.

2. Amended Contention 1-B is Not Admissible because it is Not Based on New Information, Does Not Genuinely Dispute the 2024 FSEIS, and is Not Supported

In Amended Contention 1-B Petitioner states:

The 2024 FSEIS employs the wrong standard to determine the impact of the CCS on potable water.[ 151]

Petitioner disputes the discussion in the conclusion of Section 2.8.3 of the 2024 FSEIS that

under the scenario of the hypersaline groundwater plume extending outside of the Turkey Point

Units 3 and 4 site boundary during the subsequent license renewal term, the appropriate impact

determination for groundwater quality would be MODERATE. 152 Petitioner argues that the

impact determination of MODERATE is an underestimate because Petitioner asserts that the

environmental impacts of continued operations of the CCS during the subsequent license

150 LBP-24-3, 99 NRC at __ (slip op. at 17, n.86).

151 Motion at 16.

152 Id. at 18-19 (citing 2024 FSEIS at 2-39-2-40).

renewal term would destabilize the important attribute of potability of the Biscayne Aquifer. 153

Petitioner faults the 2024 FSEIS for supposedly not look[ing] to whether [the] proposed action

will render potable portions of the Biscayne Aquifer non-potable. 154 Petitioner supports this

argument by stating that the potable water standards for Miami-Dade County are a total

dissolved solids (TDS) concentration of less than or equal to 500 milligrams per liter ( mg/L) and

a chloride concentration of less than or equal to 250 mg/L.155 Petitioner then reasons that

because the conclusion of Section 2.8.3 of the 2024 FSEIS defines the classification of the

Biscayne Aquifer under the CCS as having a TDS concentration of 10,000 mg/L or greater and

defines hypersaline groundwater as groundwater with a chloride concentration of greater than

19,000 mg/L, it must not be properly addressing the impact of the proposed action on potable

water. 156 Rather, Petitioner asserts that the discussion in Section 2.8.3 of the 2024 FSEIS

amounts to the Staff employ[ing] a relaxed standard (hypersalinity) to determine whether the

continued CCS operations will destabilize a potable drinking water resource. 157

Petitioner s arguments in Amended Contention 1-B miss the mark because (1) the

information that the arguments challenge in the conclusion of Section 3.8.2 of the 2024 FSEIS is

not new and, instead, summarizes preexisting information from the 2019 FSEIS and the 2023

DSEIS; (2) the arguments do not identify, let alone dispute, the discussions in the 2019 FSEIS,

the 2023 DSEIS, and the 2024 FSEIS of the very issue of the im pact of the proposed action to

potable water use of the Biscayne Aquifer; and (3) the arguments do not include any factual

support for their assertion that there will be a greater impact to potable water use of the

Biscayne Aquifer than that already discussed in the 2019 FSEIS, the 2023 DSEIS, and the 2024

153 Motion at 17.

154 Id. at 18.

155 Id.

156 Id. at 18-19 (citing 2024 FSEIS at 2-39-2-40).

157 Motion at 19.

FSEIS. Therefore, as explained next, Amended Contention 1-B does not meet the good cause

standard of 10 C.F.R. § 2.309(c) and does not meet the contention admissibility requirements of

10 C.F.R. § 2.309(f)(1)(vi) and (v), respectively.

Amended Contention 1-B should be dismissed because, contrary to 10 C.F.R. § 2.309(c),

it is not based on new information and, therefore, could have been timely brought during the

opportunity for a hearing on the 2023 DSEIS. As indicated by the fact that the challenged

portion of Section 2.8.3 of the 2024 FSEIS is preceded by the heading Conclusion, 158 the

information therein is not new to the 2024 FSEIS; instead, that information relies on, and largely

summarizes, information that was already available in the 2023 DSEIS. As relevant to Amended

Contention 1-B, before the 2024 FSEIS, Section 2.8.3 of the 2023 DSEIS had already

determined that the impact to groundwater quality could be MODERATE if FPL is not able to

retract the hypersaline groundwater plume to within the FPL site boundary prior to the

[subsequent license renewal] term. 159 Section 2.8.3 of the 2023 DSEIS also already discussed

how the existence of the hypersaline groundwater plume outside of the Turkey Point site

boundary would not destabilize the groundwater resource. 160 Section 2.8.3 of the 2023 DSEIS

already stated that the Biscayne Aquifer is classified as both Class G-III (nonpotable use, with

TDS levels of 10,000 mg/L or greater) beneath the Turkey Point site and CCS, and Class-II

(potable) to the west of the CCS. 161 It also already discussed how hypersaline groundwater, as

defined as groundwater with a chloride concentration greater than 19,000 mg/L, extends to the

west of the CCS but is being retracted towards the CCS boundary by FPLs required

remediation actions. 162 Taken together, these preexisting portions of Section 2.8.3 of the 2023

158 2024 FSEIS at 2-38.

159 2023 DSEIS at 2-31.

160 Id.

161 Id. at 2-22.

162 Id. at 2 2-31.

DSEIS add up to exactly the new language in the conclusion of Section 2.8.3 of the 2024 FSEIS

that Petitioner is now challengingthat if the plume of groundwater with a chloride

concentration of greater than 19,000 mg/L were to extend into the Class-II (potable) portion of

the Biscayne Aquifer during the subsequent license renewal term, then the impact on the

groundwater resource from subsequent license renewal would be moderate. Additionally, as

discussed next, all of Petitioner s arguments regarding impacts to the potable use of the

Biscayne Aquifer are already addressed in the 2019 FSEIS, with that information only being

updated by the subsequent 2023 DSEIS and 2024 FSEIS; Petitioner simply does not identify

this information that it could have challenged earlier. A petitioner may not delay filing a

contention until a document becomes available that collects, summarizes and places into

context the facts supporting that contention, such as the new conclusion of Section 2.8.3 of the

2024 FSEIS. 163 Similarly, Petitioner had the responsibility to carefully review the 2019 FSEIS

and the 2023 DSEIS and cant now bring an argument that was simply missed earlier.164

Therefore, Amended Contention 1-B is impermissibly untimely and, consistent with 10 C.F.R.

§ 2.309(c), should be dismissed for this reason alone.

Additionally, Amended Contention 1-B is not admissible because it does not genuinely

dispute the Staffs environmental review. In Amended Contention 1-B, Petitioner argues that the

Staff has not adequately discussed the impact of the proposed action on the potable water use

of the Biscayne Aquifer. 165 Petitioner premises this argument on its assertion that the Staff did

not employ the drinking water standards of 500 mg/L TDS and 250 mg/L chloride and its

163 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), CLI 27, 72 NRC 481, 496 (2010).

164 See Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-25, 60 NRC 223, 224-25 (2004) (As the Commission has stressed, our contention admissibility and timeliness requirements demand a level of discipline and preparedness on the part of petitioners, who must examine the publicly available material and set forth their claims and the support for their claims at the outset.) (quotation marks omitted).

165 Motion at 18-19.

assertion that the Staff, instead, improperly relied upon the values of 10,000 mg/L TDS and

19,000 mg/L. 166 This argument, though, does not discuss, let alone engage, the fulsome

explanation of the Staffs review of this very issue in the 2019 FSEIS, including in the sections

Groundwater Quality Standards and Current Designated Uses, 167 Baseline Groundwater

Quality and Changes Attributable to Turkey Point Operations, 168 and Groundwater Use

Conflicts (Plants That Withdraw More Than 100 Gallons per Minute). 169 As discussed next, in

light of the 2019 FSEIS, it is apparent that Petitioner s assertions are both incorrect and

immaterial and, therefore, do not amount to an admissible contention.

Like Amended Contention 1-B, 170 the 2019 FSEIS recognizes that the Biscayne [A]quifer

is the major public water supply source across Miami-Dade County as well as for the Florida

Keys. 171 The 2019 FSEIS explicitly states the applicable drinking water standard of 500 mg/L

TDS. 172 The 2019 FSEIS then explains, however, that with respect to water in the Biscayne

Aquifer, potability is defined differently.173 That is, the FDEP categorizes Florida groundwater

into one of five classes and defines potable water use to include groundwater with a TDS of less

than 10,000 mg/L, which is called Class G-II groundwater. 174 Non-potable water use, defined, in

part, as a TDS content of 10,000 mg/L or greater, is separately categorized as Class G-III

groundwater. 175 The 2019 FSEIS recounts that the Biscayne Aquifer near the Turkey Point site is

166 Id.

167 2019 FSEIS at 3 3-71.

168 Id. at 3 3-88.

169 Id. at 4 4-35.

170 Motion at 17-18.

171 2019 FSEIS at 3 -70.

172 Id. at 3-69 ([T]the Federal drinking water standard or secondary maximum contaminant level for TDS is 500 mg/L and [t]he FDEP has adopted the same secondary standard for Florida drinking water.).

173 Id. at 3 3-69.

174 Id.

175 Id.

saline and has been since before the construction of the CCS. 176 It also recounts that the FDEP

classified the Biscayne Aquifer within the Turkey Point plant property as Class G-III, or non -

potable use, and the Biscayne Aquifer west of Turkey Point as Class G-II, or potable use. 177 The

2019 FSEIS then explains that, consistent with this FDEP classification, the boundary between

these two classes of groundwater, that is, the boundary between potable and non-potable use

water, is termed the saltwater interface. 178

Based on this background, the 2019 FSEIS analyzes the impact of the proposed action

on the potable use of the Biscayne Aquifer by considering the location of potable water users,

the impact of the proposed action on the location of the saltwater interface, and the impact of

the proposed action on any drawdown of the Biscayne Aquifer. The 2019 FSEIS discusses in

detail how the operation of the CCS and the hypersaline groundwater plume in the Biscayne

Aquifer, defined as water with a chloride concentration exceeding 19,000 mg/L, directly beneath

the CCS have influenced the movement of the saltwater interface and, therefore, the availability

of potable water to the region. 179 The 2019 FSEIS and the 2024 FSEIS, largely unchanged from

the 2023 DSEIS, both discuss the impacts of the proposed action with respect to potable water

use as part of the evaluation of the groundwater use conflicts resource area.180 This discussion

looks at the saltwater interface and how modeling and monitoring data predict that it would be

affected by recovery well system operation, which is, in turn, required by the 2015 DERM

176 2019 FSEIS at 3 3-70.

177 Id. at 3-70.

178 Id.

179 2019 FSEIS at 3 3-88 (stating, among other things, that the inland migration of the saltwater interface is closely related to TDS concentrations in the CCS; that [m]onitoring results show the influence of CCS operations on Biscayne [A]quifer groundwater quality adjacent to and west of the CCS, based on the presence of hypersaline water (chloride concentrations greater than 19,000 mg/L), in addition to elevated tritium levels; and that annual monitoring reports indicate the expansion of more saline groundwater, and possible CCS influence ).

180 See 2019 FSEIS at 4 4-32; 2023 DSEIS at 2 2-20; 2024 FSEIS at 2 2-21.

Consent Agreement. 181 Specifically, the recovery well system will extract hypersaline

groundwater, which will pull the saltwater interface in the Biscayne aquifer seaward (i.e., to the

east) from its current location and increase the amount of fresh groundwater in areas

surrounding the CCS. 182 This, though, will also have a drawdown effect on the aquifer.183 The

2019 FSEIS then compares the location of the saltwater interface and the extent of the

drawdown of the aquifer to the location of other users of the aquifer and concludes that there

would be no impact to those users. 184 The 2024 FSEIS incorporates by reference the Biscayne

Aquifer groundwater use conflicts information from the 2019 FSEIS and adds to it a discussion

that accounts for two u nderground injection control (UIC) test extraction wells that were

activated since the publication of the 2019 FSEIS to remove hypersaline groundwater from the

Biscayne Aquifer in addition to the recovery well system. 185 The 2024 FSEIS finds that the

additional UIC test extraction well withdrawals will not result in a drawdown that could impact

any offsite water supply wells. 186 This information is largely unchanged from the 2023 DSEIS.187

Moreover, the 2024 FSEIS evaluates the new information regarding a potential increased

recovery well system extraction capacity and finds that it too will not contribute to impacting any

offsite wells. 188 The 2024 FSEIS also continues to find that the saltwater interface will be moved

toward the CCS and therefore further away from offsite wells, including a major well field where

the Biscayne Aquifer serves as the major public water supply source for the region, including

181 2019 FSEIS at 4 4-31.

182 Id. at 4-31.

183 Id.

184 Id. at 4-31, 4-34.

185 2024 FSEIS at 2-19.

186 Id. at 2 2-20.

187 Compare 2024 FSEIS at 2 2-20 with 2023 DSEIS at 2 2-20.

188 2024 FSEIS at 2-20.

Miami-Dade County and the Florida Keys. 189 Accordingly, the 2019 FSEIS, the 2023 DSEIS,

and the 2024 FSEIS conclude that the proposed action would have a SMALL impact on

groundwater use conflicts for the Biscayne Aquifer.190

In total, the 2019 FSEIS, the 2023 DSEIS, and the 2024 FSEIS explain (1) that the

delineation between potable and non-potable water in the Biscayne Aquifer is the 10,000 mg/L

TDS boundary referred to as the saltwater interface, (2) that the hypersaline groundwater

plume, which is defined as groundwater with greater than 19,000 mg/L chloride, influences the

position of this saltwater interface, (3) that FPL is taking remedial actions required by the 2016

Consent Order to retract the hypersaline groundwater plume to within the Turkey Point site

boundary, and (4) that, therefore, the impact to the potable water use of the Biscayne Aquifer is

based on the relative locations of potable water users and the saltwater interface, as well as the

drawdown effect from F P L s remediation actions. The Staffs environmental review then

discusses the monitoring data that demonstrate that the withdrawals of hypersaline groundwater

from the Biscayne Aquifer are removing its influence on the saltwater interface and that the

drawdown caused by these withdrawals will also not impact those other water users. Moreover,

the Staffs environmental review discusses that, based on the monitoring data available to date

and the presumption that State and local regulators will enforce applicable laws and regulations,

including through continued enforcement of the 2015 DERM Consent Agreement and the 2016

FDEP Consent Order, it is reasonably foreseeable that the hypersaline groundwater plume will

eventually return to the Turkey Point site boundary, pull the saltwater interface in the Biscayne

Aquifer seaward from its current location, and increase the amount of fresh groundwater in

areas surrounding the CCS. Petitioner does not identify, let alone dispute, this preexisting

information. Moreover, this information illustrates that Petitioners assertion that the Staff

189 Id. at 2-24.

190 2019 FSEIS at 4 4-35; 2023 DSEIS at 2-20; 2024 FSEIS at 2-20.

incorrectly used the values of 10,000 mg/L TDS and 19,000 mg/L chloride instead of the values

of 500 mg/L TDS and 250 mg/L chloride is not a genuine dispute with the Staffs environmental

review. Finally, Petitioner does not explain how this information, which it doesnt dispute, could

lead to an impact determination of greater than the Staff s SMALL to MODERATE

determination with respect to groundwater quality191 or the Staffs SMALL determination with

respect to groundwater use conflicts for the Biscayne Aquifer.192 Therefore, Amended

Contention 1-B does not meet 10 C.F.R. § 2.309(f)(1)(vi) and, accordingly, it should be

dismissed.

Finally, Amended Contention 1-B is not admissible because it doesnt provide any factual

support for its assertion that the Staff did not adequately evaluate the issue of the impact of the

proposed action on the potable use of the Biscayne Aquifer. As discussed above, all of the facts

that Petitioner statesthat the Biscayne Aquifer is partially classified as a source of potable

drinking water; that the CCS discharges to the Biscayne Aquifer; that, prior to remediation, the

saltwater interface had historically moved west of the boundary of the Turkey Point site; and that

the standards for drinking water are 500 mg/L TDS and 250 mg/L chloride,193are consistent

with the Staffs environmental review and do not support any inadequacies in that review.

Petitioner also discusses the definitions of Class G-III groundwater as 10,000 mg/L or greater

TDS and hypersaline groundwater as 19,000 mg/L chloride, 194 both of which facts, as also

discussed above, do not support a genuine dispute with the Staffs environmental review.

Because none of these facts support Petitioner s position on the issue, Amended Contention 1-B

does not meet the contention admissibility requirement of 10 C.F.R. § 2.309(f)(1)(v) and should

be dismissed.

191 2023 DSEIS at 2-31; 2024 FSEIS at 2 -40.

192 2023 DSEIS at 2-20; 2024 FSEIS at 2 -20.

193 Motion at 17-18.

194 Id. at 18-19.

The failure of Petitioner to provide facts in support of Amended Contention 1-B is not

cured by Petitioner s statement that facts supporting the contention are also in the expert report

of William Nuttle, Ph.D, which Petitioner attached to the Motion. 195 Amended Contention 1-B

does not explain how this report supports Petitioner s argument that the Staff has

underestimated the impact of the proposed action on the potable use of the Biscayne Aquifer.

Therefore, since 10 C.F.R. § 2.309(f)(1) specifies that it is the pleading that must satisfy the

contention admissibility requirements, such a general reference to an attachment cannot

support an admissible contention. The Commission has rejected contentions that generally rely,

without further explanation, on other documents to satisfy the contention admissibility

requirements. 196 As the Commission has stated, its practice is clear that a petitioner may not

simply incorporate massive documents by reference as the basis for or a statement of his

contentions because this does not serve the purposes of a pleading in which participants

must clearly identify the matters on which they intend to rely with reference to a specific

point. 197 Therefore, Petitioner s general reference to the Nuttle Report cannot meet the factual

support requirement with respect to Amended Contention 1-B and, accordingly, the Board

should not search through that report for such factual support. Additionally, even if the Board

were to review the Nuttle Report with respect to Amended Contention 1-B, that report doesnt

contain any support for the assertion that the Staffs discussion of the impacts of the proposed

195 Id. at 20- 21 (citing to Motion at Att. A).

196 See, e.g., Fansteel, Inc. (Muskogee, Oklahoma Site), CLI 13, 58 NRC 195, 204 (2003)

(Petitioners have an obligation not just to refer generally to voluminous documents, but to provide analysis and supporting evidence as to why particular sections of those documents provide a basis for the contention); USEC Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 457 (2006) (stating that it is the petitioner s responsibility to satisfy the basic contention admissibility requirements; boards should not have to search through a petition to uncover arguments and support for a contention and may not simply infer unarticulated bases of contentions).

197 Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-89-03, 29 NRC 234, 240- 41 (1989).

action on potable water is deficient. This is fully explained in the Staffs answer to Amended

Contention 1-C below.

Because Amended Contention 1-B is not based on new information, does not identify, let

alone dispute, on-point discussions in the Staffs environmental review, and does not provide

alleged facts or expert opinions that support its challenges to the Staffs environmental review, it

does not meet either the good cause requirements of 10 C.F.R. § 2.309(c) or the contention

admissibility requirements of 10 C.F.R. § 2.309(f). Accordingly, Contention 1-B should be

dismissed.

3. Amended Contention 1-C is Not Admissible because it is Not Based on New Information, Does Not Genuinely Dispute the 2024 FSEIS, and is Not Supported

In Amended Contention 1-C Petitioner states:

The 2024 FSEISs assessment of the impact of the proposed action to groundwater quality is inadequate because it underestimates the impacts on drinking water resources.[ 198]

As required by the 2015 DERM Consent Agreement, the 2016 FDEP Consent Order, and its

National Pollutant Discharge Elimination System (NPDES) permit, 199 FPL must take the

remediation actions of freshening the CCS and retracting the hypersaline groundwater plume

and must measure and report the effect of those remediation actions. 200 In Amended Contention

1-C, however, Petitioner asserts that these remediation actions will have the opposite of their

intended effect, as explicitly set forth by state and local regulators, 201 and will instead actually

expand the saltwater interface so that it moves towards and ultimately impacts users of the

198 Motion at 21.

199 See 2024 FSEIS at 2-28.

200 Motion at 22.

201 See 2015 DERM Consent Agreement at 5-6 (stating that the recovery well system shall retract hypersaline groundwater); 2016 FDEP Consent Order at 7-9 (stating that FPL shall freshen the CCS and operate a recovery well system to retr act the hypersaline groundwater plume).

Biscayne Aquifer for potable water.202 Petitioner asserts that this is a major concern203 and lays

out a theory for why this concern may come to pass.204

Amended Contention 1-C largely restates the arguments in Amended Contention 1 -B

and, therefore, is not admissible for the same reasons that Amended Contention 1-B is not

admissible. Like Amended Contention 1-B, Amended Contention 1-C asserts that the Staffs

impact determination regarding groundwater quality of SMALL to MODERATE was incorrect

because the continued operation of the CCS as a heat sink during the [subsequent license

renewal] term will produce significant and destabilizing effects on the Biscayne Aquifer, a

potable groundwater resource. 205 However, as with Amended Contention 1-B, Amended

Contention 1-C does not discuss any of the information in the 2019 FSEIS, the 2023 DSEIS, and

the 2024 FSEIS regarding groundwater use conflicts for the Biscayne Aquifer. In those

documents, the Staff explains that (1) the delineation between potable and non-potable water in

the Biscayne Aquifer is the 10,000 mg/L TDS boundary referred to as the saltwater interface, (2)

the saltwater interface is influenced by the CCS and the hypersaline groundwater plume

underlying the CCS, (3) the modeling and monitoring data indicate that the remediation action of

withdrawals of hypersaline groundwater from the Biscayne Aquifer are removing its influence on

the saltwater interface, and (4) these withdrawals are not drawing down the aquifer to an extent

that would impact these users.206 In this manner, the preexisting Staff environmental review in

the 2019 FSEIS and the 2023 DSEIS already discussed the issues in Amended Contention 1-C,

including the Newton Field wells that Petitioner asserts are the nearest wells to the CCS, 207 and

202 Motion at 22.

203 Id.

204 Id. at 34.

205 Id. at 21-22.

206 See 2019 FSEIS at 3 3-88, 4-29-4-35; 2023 DSEIS at 2-16-2-20; 2024 FSEIS at 2 2-21.

207 Motion at 27.

determined that the impact to potable water use of the Biscayne Aquifer would be SMALL. 208

Therefore, as explained in the Staff answer to Amended Contention 1-B, Petitioner s argument

both (1) is not timely and (2) does not genuinely dispute the Staffs environmental review and,

accordingly, consistent with 10 C.F.R. § 2.309(c) and 10 C.F.R. § 2.309(f) (1)(vi), respectively,

should be dismissed.

The difference between Amended Contention 1-C and Amended Contention 1-B is that,

unlike Amended Contention 1-B, Amended Contention 1-C does discuss support for the

argument that the Staff did not adequately evaluate the issue of the impact of the proposed

action on the potable use of the Biscayne Aquifer. Specifically, where Amended Contention 1-B

only refers generally to the 2024 Nuttle Report,209 Amended Contention 1-C discusses that

report in detail. 210 Amended Contention 1-C states that, according to the 2024 Nuttle Report,

instead of retracting the saltwater interface, FPLs remediation actions, which are required by

the 2015 DERM Consent Agreement, the 2016 FDEP Consent Order, and NPDES permit, will

actually expand the saltwater interface such that it moves closer to users of the Biscayne

Aquifer and, therefore, could potentially impact their use of the aquifer. 211 Petitioner s theory,

208 See, e.g., 2019 FSEIS at 3-106-7 (While the Biscayne aquifer is the principal source of potable water supplied by the Miami-Dade Water and Sewer Department there are no potable water wells within the Turkey Point site boundary. There are no registered groundwater supply wells within a 2 -mi (3.2-km) band of the Turkey Point site boundary.

Relative to the Turkey Point site, the nearest mapped water supply wells are located about 5 mi (8 km) west of the western boundary of the CCS and are used to support mining operations.

As for public water supply sources, the nearest wells are located about 6 mi (10 km) from the northwest corner of the CCS and approximately 7 mi (11 km) from the center of the Turkey Point plant complex. Potable water supply for the Florida Keys comes from Biscayne aquifer wells located west of Florida City at the Florida Keys Aqueduct Authoritys J. Robert Dean Water Treatment Plant. These facilities are located approximately 9.5 mi (15 km) west, northwest of the western boundary of the CCS.); 2023 DSEIS at 2 2-22 ([T]he 0.1 ft drawdown contour within the Biscayne Aquifer extends approximately 1.5 miles west of the CCS in year 5 of the remediation period, and this contour does not intersect with any offsite water supply wells completed in the Biscayne Aquifer.).

209 Motion at 20- 21.

210 Id. at 26-34.

211 Id. at 22.

taken from the 2024 Nuttle Report, is that FPLs withdrawal of hypersaline groundwater from the

Biscayne Aquifer lowers the head in that area on the inland side of the reactor and that F P L s

freshening of the CCS with water from the Upper Floridan Aquifer, and to a lesser extent, the

interceptor ditch increases the head in the [CCS], leading to the infiltration of larger volumes

of saline water into the Biscayne Aquifer. 212 Petitioner concludes that this would effectively

suck[] saline water inland. 213 Based on this additional argument in Amended Contention 1-C as

compared to Amended Contention 1-B, Amended Contention 1-C should be dismissed for the

additional reasons that (1) its theory of the expansion of the saltwater interface is not based on

new information in the 2024 FSEIS and is not a new theory that only became available after the

opportunity to request a hearing on the 2023 DSEIS, but rather has been proposed since at

least 2018; (2) its theory of the expansion of the saltwater interface does not identify, let alone

dispute, the large amount of discussion and data in the 2019 FSEIS, the 2023 DSEIS, and the

2024 FSEIS demonstrating that the remediation action of withdrawals of hypersaline

groundwater from the Biscayne Aquifer are removing its influence on the saltwater interface;

and (3) its theory of the expansion of the saltwater interface is not supported because Petitioner

provides no data to support this theory and because bare assertions, even by an expert, are not

admissible. 214

First, Petitioner previously argued its theory of the expansion of the saltwater interface

towards potable water users in Contention 1 against the 2023 DSEIS, and Petitioner does not

identify how the arguments in that Contention 1 are being amended in any way here. The basis

for Amended Contention 1-C largely repeats the basis for Contention 1. 215 As provided by 10

212 Id.

213 Id.

214 See Pilgrim, CLI-12-15, 75 NRC at 714 (explaining that bare assertions and speculation, even by an expert, are insufficient to trigger a full adjudicatory proceeding).

215 Compare Motion at 22 with Hearing Request at 14-20 (both asserting that F P L s freshening of the CCS with water from the Upper Floridan Aquifer and the interceptor ditch and withdrawal

C.F.R. § 2.309(c), the opportunity to file amended contentions based on new information does

not grant Petitioner the ability to simply refile its Contention 1 because there is new language in

the 2024 FSEIS as compared to the 2023 DSEIS; on the contrary, the amended contention

must be based on information that is new in the 2024 FSEIS. All Petitioner s references to the

2024 FSEIS, though, are with respect to information that was already available in the 2019

FSEIS and the 2023 DSEIS. For example, Petitioner states that the 2024 FSEIS did not discuss

its theory, raised in its 2023 Hearing Request,216 that the required CCS freshening and

hypersaline groundwater withdrawal activities would expand the saltwater interface217 and that,

therefore, the Staff has not fully assess[ed] the impact of extended operation on groundwater

resources. 218 However, an assertion that the 2024 FSEIS does not include information that

similarly was not included in the 2023 DSEIS does not provide an adequate basis for an

amended contention under 10 C.F.R § 2.309(c).219 Petitioner also argues that the Staff response

in the 2024 FSEIS to Petitioner s comment on the 2023 DSEIS on this topic was not

sufficient; 220 however, that Staff response is similarly not new information because it relies on

preexisting information in the 2019 FSEIS regarding significant ongoing S tate and local

oversight and a water balance calculation of the inflows and outflows related to the CCS.221

Petitioner then challenges the information from the 2019 FSEIS identified by the Staff, 222 but

such a challenge is plainly something that could have been raised earlier and is not now timely.

Additionally, Petitioner cites new language from the 2024 FSEIS regarding the determination

of hypersaline groundwater from the Biscayne Aquifer increases the expansion of the saltwater interface in the Biscayne Aquifer).

216 Hearing Request at 14-20.

217 Motion at 22-23.

218 Id. at 23-24.

219 See WCS, CLI-21-9, 93 NRC at 248.

220 Motion at 23-24 (citing 2024 FSEIS at A A-46).

221 2024 FSEIS at A A-46.

222 Motion at 23-24.

that the hypersaline groundwater plume will not expand such that it could cause an impact

existing groundwater users,223 but doesnt acknowledge that this new language is simply

presenting preexisting information from the 2019 FSEIS, as is discussed above in the Staff

answer to Amended Contention 1-B. 224 Finally, the 202 4 Nuttle Report, on which Amended

Contention 1-C relies, advances the same theory as the 2018 Nuttle Report that was attached to

Petitioner s 2023 Hearing Request. 225 Moreover, the 2018 Nuttle R eport was previously relied

upon to raise similar challenges against the draft of the 2019 FSEIS. 226 And the 2024 Nuttle

Report relies on a 1978 study, 227 which is plainly not new information. For these reasons, neither

the basis for Amended Contention 1-C nor the argument of Amended Contention 1-C is new and

there is no indication that either of these has actually been amended. Therefore, all of the

arguments of Amended Contention 1-C could have been, and largely were, raised previously

and, therefore, repeating them here does not meet the good cause standard of 10 C.F.R.

§ 2.309(c) and, accordingly, Amended Contention 1-C should be dismissed.

Second, Petitioner s theory of the expansion of the saltwater interface towards potable

water users is not admissible because, although it relies on the same baseline conditions as the

Staffs environmental review, it comes to a different conclusion without discussing, let alone

disputing, the data that support the Staffs conclusion that the remediation action of withdrawals

of hypersaline groundwater from the Biscayne Aquifer are removing its influence on the

saltwater interface. Both the Staffs environmental review and Amended Contention 1-C discuss

223 Id. at 24-25 (citing 2024 FSEIS at 2 -39).

224 See 2019 FSEIS at 4 4-35.

225 See Hearing Request at Ex. 3, Att. A, page 3, 14-20 (ML23331A983) (Continued operation of the CCS impacts regional fresh water resources because active exchange between the CCS and the underlying aquifer feeds the growth of a plume of hypersaline water that accelerates the intrusion of saltwater toward well fields used for public water supply.).

226 See Southern Alliance for Clean Energys Request for Hearing and Petition to Intervene, Att.

4 (Aug. 1, 2018) (ML18213A528 (package)).

227 Motion at 32.

that the effect of the proposed action on potable water users is based, in part, on whether the

saltwater interface is expanded. 228 Both discuss the position of the saltwater interface outside of

the CCS as affected by the inflows to and outflows from the CCS. 229 Whereas Petitioner asserts

that the Staff is tracking only chlorinity at 19,000 mg/L in its determination as to whether the

continued operation of the CCS as a heat sink will affect groundwater quality;230 the Staffs

environmental review actually discusses the impact of the CCS on the saltwater interface. 231

Petitioner discusses the CCS water budget, including freshening activities, 232 but doesnt

explain how this discussion in any way disputes the discussion of this same topic in the 2019

FSEIS and the 2024 FSEIS.233 Finally, the discussion of the identification of tritium at levels

greater than 20 pico-Curie per liter in wells as it relates to the Newton Wellfield agrees with, and

does not dispute, the Staffs environmental review.234 Taken together, Petitioner does not

dispute any aspect of the Staffs environmental review with respect to the location of the

saltwater interface in relation to potable water users of the Biscayne Aquifer.

The only portion of the Staffs environmental review that Petitioner specifically disputes

is its conclusion that potable water users of the Biscayne Aquifer will not be impacted by the

required remediation actions. 235 This, though, is not a genuine dispute because Petitioner does

not engage with any of Staffs reasoning for reaching that conclusion; instead, Petitioner ignores

that reasoning and supplies its own theory on how the CCS can affect nearby public water

228 Motion at 27; 2019 FSEIS at 4 4-31, 4-34.

229 Motion at 27-29; 2019 FSEIS at 3 3-11, 3 3-88; 2024 FSEIS at 2 2-38.

230 Motion at 31 - 32.

231 2019 FSEIS at 3 3-70; see also 2019 FSEIS at 3 3-88 (examining the CCSs contribution to the movement of the saltwater interface).

232 Motion at 32-33.

233 2019 FSEIS at 3 3-11, 3 3-88; 2024 FSEIS at 2-25-2-38.

234 Compare Motion at 34 with 2019 FSEIS at 3 76, 4-27; 2024 FSEIS at 2 2-66 (identifying the westward boundary of potential CCS water as approximately 2 miles southeast of the Newton Wellfield).

235 Motion at 26 (citing 2024 FSEIS at 2-39).

supply wells.236 In sum, the Staffs environmental review determined the amount of withdrawals

from the Biscayne Aquifer by the recovery well system and the amount of freshening of the

CCS, discussed modeling predicting that the withdrawals would indirectly pull the saltwater

interface seaward, discussed modeling predicting that the withdrawals would not drawdown the

aquifer to an extent that would impact existing users, discussed peer-reviewed data indicating

that the hypersaline groundwater plume has been reduced since the start of recovery well

system operations in 2018, discussed data indicating that the salinity of the CCS has decreased,

and discussed the continuing requirements of the 2015 DERM Consent Agreement, the 2016

FDEP Consent Order, and the NPDES permit that are enforced by local and State regulators. 237

In response to this fulsome analysis, Petitioner only disputes the Staffs reliance on regulatory

requirements as enforced by local and State regulators, stating that such reliance is contrary to

N E PA. 238 However, as found by a previous Board addressing previous arguments based on

these same facts, the suggestion that NEPA proscribes the NRC Staff from considering

enforcement requirements and oversight activities by local authorities when preparing its

environmental review is incorrect as a matter of law and does not amount to a genuine

dispute; instead, [p] ursuant to binding case law, licensing boards accord substantial weight to

the determination of Florida and Miami-Dade County that FPL will comply with its legal

obligations. 239 Because Petitioner does not engage with the Staffs analysis for why the

proposed action will not result in any conflicts with potable water users of the Biscayne Aquifer,

Amended Contention 1-C does not meet the requirement and 10 C.F.R. § 2.309(f)(1)(vi) and,

accordingly, should be dismissed.

236 Motion at 27.

237 2019 FSEIS at 4 4-31; 2024 FSEIS at 2 2-40.

238 Motion at 23-24.

239 Turkey Point, LBP-19-8, 90 NRC at 164-65. See also Arkansas Power & Light Co. (Arkansas Nuclear One Unit 2), ALAB -94, 6 AEC 25, 28 (1973).

Finally, even if the Board were to entertain Petitioner s theory, despite the fact that it was

presented before in 2018 and 2023 and rejected and therefore is not timely, and despite the fact

that it does not refer to and dispute any of the Staffs analysis of the matter and therefore is not

a genuine dispute, the Board would still have to find that the theory is not sufficiently supported,

contrary to the contention admissibility requirement of 10 C.F.R. § 2.309(f)(1)(v). According to his

report, Dr. Nuttle used multiple regression analysis applied to a record of changes in water

levels in the CCS, the water balance fluxes, and salinity from January 2016 through May 2020

to quantify the change in water level that will result from planned current and planned future

freshening operations.240 This resulted in a finding of a current total increase in CCS water

level of 0.38 feet and, if the amount of water added for freshening is increased to approximately

30 million gallons per day, then a total increase of 0.52 feet, as compared to a 2010

baseline. 241 Dr. Nuttle then compared these values to a 1978 study and concluded that a 0.5

foot increase in CCS water level could decrease the regional gradient by as much as 25

percent and can be expected to displace the position of the salt water interface to the west

between [approximately] 1 mile, under wet, high regional gradient conditions, and

[approximately] 7 miles, under dry, low regional gradient conditions.242 However, nowhere does

Petitioner explain how this prediction of an expansion of the saltwater interface aligns with the

monitoring data discussed in the Staffs environmental review. Specifically, Petitioner s position

is that the remediation actions of withdrawing hypersaline groundwater and freshening the CCS

combine to suck[] saline water inland 243 and Dr. Nuttle asserts that this could expand the

saltwater interface by as much as 7 miles, which would approach wells in the Biscayne

240 2024 Nuttle Report at 23.

241 Id.

242 Id. at 24.

243 Motion at 22.

Aquifer. 244 However, the 2024 FSEIS includes monitoring data gathered since both the

operation of the recovery well system and the freshening of the CCS that shows an overall

decrease in the annual average salinity in the CCS and the overall volume and extent of the

hypersaline groundwater plume, 245 which is contrary to the prediction of Petitioner s theory. By

not addressing this monitoring data, Petitioner does not provide support for its theory and such

an unsupported theory, even if proposed by an expert, is not admissible. 246

B. New Contention 2 is Not Admissible because it Does Not Genuinely Dispute the 2024 FSEIS, is Not Supported, and is Not Material to the Findings that the NRC Must Make

In New Contention 2 Petitioner states:

The 2024 FSEISs analysis of the potential impacts of Turkey Points continued operation during the renewal period on Miami cave crayfish is inadequate and its determination that continued operation is unlikely to adversely affect or jeopardize the Miami cave crayfish is unsupported.[ 247]

Petitioner bases New Contention 2 on the same theory that Petitioner advanced in Amended

Contention 1-Cthat the required remediation actions of freshening the CCS and withdrawing

hypersaline groundwater from the Biscayne Aquifer are actually expanding saltwater intrusion in

the Biscayne Aquifer. 248 Petitioner argues that because the Miami cave crayfish is susceptible to

the effects of water salinity at any level above natural freshwater conditions, such an expansion

of saltwater intrusion in its habitat will necessarily adversely affect the crayfish. 249 Therefore,

Petitioner concludes that the proposed action, which would include the continued operation of

the CCS and, in turn, potentially continued remediation actions, will adversely affect the Miami

244 Id. at 32-34.

245 2024 FSEIS at 2-30- 2-38.

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

247 Motion at 36.

248 Id. at 38-39; 42-44. See also id. at 46 (challenging the Staffs assumption in its discussion of impacts on the Miami cave crayfish that the hypersaline plume will retract as planned).

249 Motion at 41-44.

cave crayfish through increased exposure to salinity. 250 Petitioner also asserts that for this

reason the Staff is required under the Endangered Species Act of 1973, as amended (ESA), to

confer with the U.S. Fish and Wildlife Service (FWS) regarding the proposed action. 251

New Contention 2 is not admissible because, first, just as with Amended Contention 1 -C,

the theory on which New Contention 2 is based does not genuinely dispute the Staffs

environmental review and is not supported by data, including the contrary data identified in the

Staffs environmental review. In the 2019 FSEIS, the 2023 DSEIS, and the 2024 FSEIS, the

Staff explained that saltwater intrusion in the Biscayne Aquifer is influenced by the salinity of the

CCS and the hypersaline groundwater plume underlying the CCS, determined the amount of

withdrawals from the Biscayne Aquifer by the recovery well system and the amount of

freshening of the CCS, discussed modeling predicting that these remediation actions are

removing the hypersaline groundwater plumes influence on saltwater intrusion, discussed peer -

reviewed data indicating that the hypersaline groundwater plume has been reduced in size

since the start of recovery well system operations in 2018, discussed data indicating that the

salinity of the CCS has decreased, and discussed the continuing requirements to reduce the

hypersaline groundwater plume in the Biscayne Aquifer and the salinity of the CCS of the 2015

DERM Consent Agreement, the 2016 FDEP Consent Order, and the NPDES permit that are

enforced by local and State regulators. 252 For these same reasons for why the proposed action

and the related required remediation actions would not expand saltwater intrusion in the

Biscayne Aquifer, the 2024 FSEIS explains that the proposed action would also not adversely

affect the Miami cave crayfish.253 Petitioner, though, does not genuinely dispute this

250 Id. at 44.

251 Id. at 48-49.

252 See 2019 FSEIS at 3 3-11, 3 3-88, 4-29-4-35; 2023 DSEIS at 2-16-2-20; 2024 FSEIS at 2 2-40.

253 2024 FSEIS at 2-67 ([T]he NRC staff concludes that based on the results obtained to date, it is likely that, with continued freshening of the CCS and continued operation of the [recovery

explanation; instead, Petitioner, with reference to Amended Contention 1-C, advances its own

theory for how the required remediation actions wil l actually expand, rather than retract,

saltwater intrusion. 254 Nowhere does Petitioner explain how this theory aligns with the

monitoring data discussed in the Staffs environmental review, which show an overall decrease

in the annual average salinity of the CCS as well as in the overall volume and extent of the

hypersaline groundwater plume. 255 By not supply ing any data or discussing the contrary data in

the Staffs environmental review, Petitioner does not provide support for its theory and such an

unsupported theory, even if proposed by an expert, is not admissible.256 Moreover, Petitioner s

theory implicitly challenges the presumption, relied upon as part of the Staffs conclusion that

the proposed action will not adversely affect the Miami cave crayfish,257 that State and local

regulators will enforce their regulations such that the required remediation actions will not

expand the current saltwater intrusion in the Biscayne Aquifer. Such a challenge, though, is

contrary to the well-recognized presumption of administrative regularity that applies to these

well system] to halt and retract the westward migration of the hypersaline plume, as required by the 2015 Miami-Dade County Consent Agreement, the 2016 FDEP Consent Order, and the NPDES permit and enforced by local and State regulators, the operation of Turkey Point Units 3 and 4 during the [subsequent license renewal] term would not worsen the hypersaline groundwater plume outside the plant boundary, destabilize the groundwater resource, or adversely affect the beneficial uses of groundwater offsite by existing users. Notably, the hypersaline plume does not currently overlap with the endemic range of the Miami cave crayfish and the required continued CCS freshening would ensure that water originating from the CCS does not influence the Biscayne Aquifer s saltwater/freshwater interface within the species range. Therefore, the NRC staff finds that Miami cave crayfish are unlikely to experience measurable effects from saltwater intrusion associated with the proposed continued operation of Turkey Point during the [subsequent license renewal] term.).

254 Motion at 38-39.

255 2024 FSEIS at 2-30- 2-38.

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

257 2024 FSEIS at 2-67.

regulators. 258 For these reasons, Petitioners challenge to the Staff s determination of the effect

of the proposed action on the Miami cave crayfish does not amount to an admissible contention.

In addition to the theory at the core of New Contention 2 not amounting to an admissible

contention regarding the effect of the proposed action on the Miami cave crayfish, none of

Petitioners other arguments in New Contention 2 amount to an admissible contention either.

Petitioner makes arguments regarding the environmental baseline relevant to the Miami cave

crayfish, but these arguments do not show that a genuine dispute exists with the Staffs

environmental review on a material issue of law or fact. For example, Petitioner faults the 2024

FSEIS for not specifically identifying that the Miami cave crayfish is susceptible to the effects of

water salinity at any level above natural freshwater conditions 259 and for not discussing the

gradient of the saltwater intrusion.260 Petitioner also asserts that saltwater intrusion already

extends into known crayfish habitat. 261 Finally, Petitioner identifies uncertainty with respect to

the Miami cave crayfishs range.262 The basis for all of these statements related to the Miami

cave crayfish environmental baseline is the Federal Register Notice proposing to list the Miami

cave crayfish as a threatened species under the ESA263 and the FWS species status

assessment report used as the basis for that notice. 264 These, though, are the exact same

sources of information on which the 2024 FSEIS is based. 265 Therefore, Petitioners assertions

258 Arkansas Nuclear One, ALAB-94, 6 AEC at 28. See also Turkey Point, LBP-19-8, 90 NRC at 164-65.

259 Motion at 41.

260 Id. at 43.

261 Id. at 45.

262 Id. at 47.

263 Endangered and Threatened Wildlife and Plants; Threatened Species Status with Section 4(d) Rule for the Miami Cave Crayfish; Proposed Rule, 88 Fed. Reg. 64,856 (Sept. 20, 2023).

264 FWS, Miami Cave Crayfish (Procambarus milleri) Species Status Assessment Version 1.2 (Sept. 2023), available at https://ecos.fws.gov/ServCat/DownloadFile/238642.

265 2024 FSEIS at 2-63 (Information in this section is drawn from the FWSs proposed rule (88 FR 64856) and Species Status Assessment unless otherwise cited.).

agree with, rather than dispute, the 2024 FSEIS and recognize that these sources of information

are appropriate, contrary to Petitioners later criticism of the 2024 FSEIS for using decades old

information. 266 NEPA requires the conduct of an environmental review with the best information

available today and does not mandate that an agency undertake studies to obtain information

that is not already available. 267 And the Staffs environmental review, as discussed above, has

gathered substantial information in support of the conclusion that the proposed action would not

expand saltwater intrusion in the Biscayne Aquifer and, accordingly, would not adversely affect

the Miami cave crayfish. 268 Petitioner also states that the Staffs environmental review ignores

the volume of saline water exiting the CCS as a function of its operations and related

freshening, the effects of the continued operation of the CCS on t he hydraulic gradient, and

the advancing line of saltwater intrusion 269 and asserts that the Staffs environmental review

instead assumes that the impacts of the hypersaline plume are coextensive with the broader

salinizing effects of the CCS. 270 These statements are also not genuine disputes because they

do not acknowledge that the Staffs environmental review discusses the water budget of the

CCS 271 and how groundwater of differing salinity moves in the Biscayne Aquifer in relation to the

operation of the CCS.272 Finally, Petitioners identification of uncertainties in the Staffs analysis

266 Motion at 47.

267 Florida Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), CLI-16-18, 84 NRC 167, 173-174 (2016) (finding that the Staffs environmental review discussing the CCS combined with the Boards decision was sufficient to disclose the environmental impacts of the proposed action and that no further information needed to be developed); Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 and 4), CLI-12-7, 75 NRC 379, 391 - 92 (2012).

268 See 2019 FSEIS at 3 3-11, 3 3-88, 4-29-4-35; 2023 DSEIS at 2-16-2-20; 2024 FSEIS at 2 2-40.

269 Motion at 45.

270 Id. at 46.

271 2019 FSEIS at 3 3-11, 3 3-88; 2024 FSEIS at 2-25-2-38.

272 2019 FSEIS at 3 3-88.

is also not a genuine dispute on a material issue;273 on the contrary, NEPA does not call for

certainty or precision, but an estimate of anticipated (not unduly speculative) impacts.274

Additionally, Petitioner faults the Staffs evaluation of the effects of the proposed action

on the Miami cave crayfish for not discussing the cumulative effects of the proposed action and

of sea level rise. 275 The Staffs environmental review, though, does discuss the cumulative

impacts of sea level rise and operation of the CCS on the saltwater interface.276 It states that

currently, the saltwater interface is located about 4.7 m iles west of the CCS at its closest

point. 277 It explains that because of the operation of the recovery well system and the freshening

of the CCS, the saltwater interface will be retracted back to the east from its current

location. 278 It also explains that as sea levels rise, saltwater from the east would move along

the base of the Biscayne Aquifer, pushing the saltwater interface farther to the west from its

current location. 279 Combined with sea level rise, decreases in recharge to the Biscayne Aquifer

would reduce the freshwater hydraulic head in the Biscayne aquifer, further increasing the

potential for westerly migration of the saltwater interface.280 The 2024 FSEIS contains an

updated discussion of sea level rise.281 Therefore, again, Petitioner has not shown that a

genuine dispute exists with the Staffs environmental review on a material issue of law or fact.

Taken together, the environmental baseline of both the current condition of the Miami cave

crayfish and future sea level rise is discussed in the Staffs environmental review. Accordingly,

273 Motion at 46-48.

274 Louisiana Energy Services, L.P. (National Enrichment Facility), CLI 20, 62 NRC 523, 536 (2005).

275 Motion at 44-45.

276 2019 FSEIS at 4 -132-4-133.

277 Id. at 4-132.

278 Id. at 4-131.

279 Id. at 4-132.

280 Id.

281 2024 FSEIS at E E-11.

the Staffs environmental review fulfills the dual mandates of NEPA to foster informed decision-

making and informed public participation282 and Petitioner does not demonstrate that more is

required.

Finally, the issue raised in New Contention 2 is not material to the findings that the NRC

must make under the ESA to support the proposed action because Petitioner largely challenges

the Staffs discussion of the current and future environmental baseline and how it may affect the

Miami cave crayfish and not the issue that is actually relevant to the ESA and its implementing

regulationsthe potential effects of the proposed action itself on the Miami cave crayfish. 283 As

discussed above, the only argument that Petitioner makes with respect to the potential effects of

the proposed action itself does not amount to an admissible contention because it is based on a

theory of the required remediation actions actually expanding saltwater intrusion, which does

not genuinely dispute the Staffs environmental review and is not supported.

On September 20, 2023, the FWS proposed a rule to list the Miami cave crayfish as a

threatened species under the ESA. 284 Therefore, consistent with Section 7(a)(4) of the ESA and

50 C.F.R. § 402.10, the finding that the NRC must make under the ESA is whether the

proposed action of licensing Turkey Point for an additional 20 years, which would include the

plants continued use of the CCS and potentially continued required remediation actions, is

likely to jeopardize the continued existence of the Miami cave crayfish or result in the

282 See McGuire, CLI-02-17, 56 NRC at 10 (quoting Claiborne, CLI-98-3, 47 NRC at 88).

283 See ESA § 7(a)(4) (Each Federal agency shall confer with the Secretary on any agency action which is likely to jeopardize the continued existence of any species proposed to be listed under [ESA] section 4 or result in the destruction or adverse modification of critical habitat proposed to be designated for such species.) (emphasis added); 50 C.F.R. § 402.10(a) ( Each Federal agency shall confer with the Service on any action which is likely to jeopardize the continued existence of any proposed species or result in the destruction or adverse modification of proposed critical habitat.) (emphasis added); 50 C.F.R. § 402.2 (defining action as all activities or programs of any kind authorized, funded, or carried out, in whole or in part, by Federal agencies in the United States, which include the granting of licenses); Center for Biological Diversity v. U.S. Fish & Wildlife Service, 807 F.3d 1031, 1052 (9th Cir. 2015).

284 88 Fed. Reg. at 64,856.

destruction or adverse modification of proposed critical habitat. 285 If so, then the Staff must

confer with the FWS.286 In order to make this finding, the Staff evaluates the potential effects of

the proposed action on proposed species and proposed critical habitat to determine whether

they are likely to be adversely affected by the proposed action such that a conference would be

required. 287 This evaluation looks at the environmental baseline, which is the condition of the

listed species or its designated critical habitat in the action area, without the consequences to

the listed species or designated critical habitat caused by the proposed action and includes the

past and present impacts of all Federal, State, or private actions and other human activities in

the action area. 288 It then looks at the effects of the action, which are all consequences to

listed species or critical habitat that are caused by the proposed action meaning that the

consequence would not occur but for the proposed action and it is reasonably certain to occur

and cumulative effects, which are those effects of future State or private activities, not involving

Federal activities, that are reasonably certain to occur within the action area of the Federal

action subject to consultation. 289

Consistent with the ESA and its implementing regulations, in the 2024 FSEIS, the Staff

documents why it determined that the proposed action itself is not likely to jeopardize the

285 Jeopardize the continued existence of means to engage in an action that reasonably would be expected, directly or indirectly, to reduce appreciably the likelihood of both the survival and recovery of a listed species in the wild by reducing the reproduction, numbers, or distribution of that species; Destruction or adverse modification means a direct or indirect alteration that appreciably diminishes the value of critical habitat as a whole for the conservation of a listed species. 50 C.F.R. § 402.02.

286 50 C.F.R. § 402.10(a).

287 50 C.F.R. § 402.12(a).

288 50 C.F.R. § 402.02. See also 50 C.F.R. § 402.14(c)(1)(iii) (Information on the listed species and designated critical habitat in the action area, including available information such as the presence, abundance, density, or periodic occurrence of listed species and the condition and location of the species habitat, including any critical habitat.).

289 50 C.F.R. § 402.02.

continued existence of the Miami cave crayfish.290 Specifically, all of the data obtained to date

demonstrate that the required remediation actions of hypersaline groundwater withdrawals and

CCS freshening are removing the hypersaline groundwater plumes influence on saltwater

intrusion, and, moreover, the 2015 DERM Consent Agreement, the 2016 FDEP Consent Order,

and the NPDES permit provide reasonable assurance that this will continue to be the case.291

As discussed above, this finding is based on significant discussions in the 2019 FSEIS, the

2023 DSEIS, and the 2024 FSEIS292 and is not unsupported as Petitioner asserts. 293

Petitioners challenges to the Staffs discussion of the environmental baseline, such as the

current condition of the Miami cave crayfish and future sea level rise, are not material to this

finding because the Staffs finding is based on the determination that the effects of the proposed

action would not be any worse than the effects of the environmental baseline. That is, when the

effects of the action and cumulative effects are added to the environmental baseline and in

light of the status of the species and critical habitat, the proposed action is not likely to

jeopardize the continued existence of the Miami cave crayfish or result in the destruction or

adverse modification of its critical habitat294 because, as demonstrated throughout the Staffs

environmental review, the effects of the proposed action and cumulative effects at most would

not increase the environmental baseline salinity conditions. Petitioners characterization of

existing saltwater intrusion conditions and sea level rise as a cumulative effects 295 does not

change this, because it is the incremental effect of the proposed action itself that is the factor

290 2024 FSEIS at 2-63-2-67, B-2.

291 Id. at 2-67.

292 See 2019 FSEIS at 3 3-11, 3 3-88, 4-29-4-35; 2023 DSEIS at 2-16-2-20; 2024 FSEIS at 2 2-40.

293 Motion at 36.

294 50 C.F.R. § 402.14(g)(4).

295 Motion at 44-46.

that is material to the analysis required by the ESA. 296 Taken together, Petitioner has not

demonstrated that any of these arguments are material to the Staffs evaluation of the Miami

cave crayfish under the ESA and would in any way change the Staffs determination that the

effects of the proposed action itself would not require the NRC to confer with the FWS.

In conclusion, Petitioners argument in New Contention 2 that the Staffs environmental

review is inadequate under NEPA and the ESA with respect to its discussion of the Miami cave

crayfish does not amount to an admissible contention. First, Petitioners assertion that the effect

of the proposed action on the Miami cave crayfish will be greater than that determined by the

Staff is based on a theory that the required remediation actions of hypersaline groundwater

withdrawals and CCS freshening will somehow expand, rather than retract, salinity in the

Biscayne Aquifer and, therefore, impact the crayfish; however, Petitioner does not provide

sufficient information to show that a genuine dispute exists with the Staffs environmental review

in this regard or provide facts that support this theory. Moreover, Petitioners criticisms of the

Staffs discussion of the current and future environmental baseline relevant to the Miami cave

crayfish do not show that a genuine dispute exists with that discussion, but, instead, largely

agree with that discussion. Finally, Petitioner does not demonstrate that its challenges regarding

the Miami cave crayfish are material to the findings that the Staff must make under the ESA and

its implementing regulations because Petitioner does not explain how the proposed action itself,

and not the current and future environmental baseline, will jeopardize the continued existence of

the crayfish such that the Staff would be required to confer with the FWS. Therefore, New

296 See Center for Biological Diversity v. U.S. Fish & Wildlife Service, 807 F. 3 d at 1052 (stating that it would be inconsistent with the statutory scheme that jeopardy caused by cumulative effects could obviate the requirement that the federal action itself must cause some incremental deterioration in the species pre-action condition) (emphasis added); Appalachian Voices v.

United States Department of Interior, 25 F.4th 259, 276 (4th Cir. 2022) (not faul ting the FWS for considering climate change as part of the environmental baseline analysis).

Contention 2 does not meet the contention admissibility requirements of 10 C.F.R.

§ 2.309(f)(1)(iv)- (vi) and, accordingly, should be dismissed.

C. New Contentions 3-A and 3-B are Not Admissible because they Do Not Meet Both the Good Cause Requirements of 10 C.F.R. § 2.309(c) and the Contention Admissibility Requirements of 10 C.F.R. § 2.309(f)

As explained below, New Contentions 3-A and 3-B are not admissible because they do

not meet both the good cause requirements of 10 C.F.R. § 2.309(c) and the contention

admissibility requirements of 10 C.F.R. § 2.309(f).

1. New Contentions 3-A and 3-B are Not Admissible because the Information on which they are Based is Not New and Materially Different f rom Information Previously Available

On April 2, 2024, the GAO issued Report 24-106326 on the potential effects of climate

change on nuclear power plants.297 Petitioner asserts that this report constitutes good cause

under 10 C.F.R. § 2.309(c)(i)- (iii) to file new contentions on the 2024 FSEIS. 298 But Petitioner

has effectively reconstituted prior Contentions 3 and 5, which were not admitted as part of its

challenge to the 2023 DSEIS, 299 as New Contentions 3-A and 3-B, respectively, and the GAO

Report does not include information that is new and materially different from information

previously available such that the Board should re-entertain these contentions.

The GAO R eport is insufficient to support New Contentions 3-A and 3-B as admissible

contentions because the information in the GAO Report is a generalized compilation of

previously publicly available information and is unrelated to license renewal at Turkey Point and,

therefore, does not demonstrate good cause pursuant to 10 C.F.R. § 2.309(c)(i). Furthermore,

the information is not materially different from information previously available relating to climate

change impacts on Turkey Point as is required for Petitioner to demonstrate good cause

pursuant to 10 C.F.R. § 2.309(c)(ii). The GAO Report recommends that the Chair of the NRC

297 GAO Report at 1.

298 Motion at 52-53.

299 See LBP-24-3, 99 NRC at __ (slip op. at 26 - 29, 31-34).

direct internal assessment of the processes to address climate change, implement a plan to

address any gaps identified, and finalize guidance to incorporate climate data, and does not

identify any way in which the Staffs license renewal reviews are deficient under the current

statutory or regulatory requirements.300

Nevertheless, Petitioner claims that the GAO Report provides a novel site-specific

analysis and conclusions about the specific vulnerability of Turkey Point to climate

change. 301 Petitioner mis-represents the GAO Report. The GAO Report expressly states

multiple times that [t]his analysis does not account for any protective measures plants may

have taken to mitigate the risk of selected natural hazards.302

Petitioner claims that the GAO Report provides a materially different picture from the

information previously available to describe the cumulative impacts to the environment from

climate change specific to the CCS in New Contention 3-A. 303 The GAO Report does no such

thing. Instead, the GAO Report references the threat of saltwater intrusion into the CCS as a

threat to operations at Turkey Point due to saltwater corrosion,304 and describes the historical

problem of high salinity in the CCS.305 The GAO Report does not present any new information

that has not already been litigated at length in this and prior proceedings.

300 GAO Report at 40.

301 Motion at 53.

302 GAO Report at 17, 20, 22, 24.

303 Motion at 55-59.

304 GAO Report at 22, 23 n.31 (According to [National Oceanic and Atmospheric Administration (NOAA)] officials, a rise in sea level can increase corrosion from saltwater intrusion NOAA officials said that Turkey Point Nuclear Generating Station is an example of a plant where, if unaddressed, sea level rise could lead to saltwater intrusion into the plants cooling canals.)

(emphasis added).

305 Id. at 15 (To mitigate these risks, the licensee constructed a series of wells to decrease the water salinity in the cooling canals.) (emphasis added).

A chief concern raised by Petitioner with the climate data in the 2024 FSEIS is that the

Staff is not using the most up -to-date information from the fifth National Climate Assessment. 306

The Staff updated the climate information discussion in the 2024 FSEIS to incorporate the fifth

National Climate Assessment. 307 Petitioner remains unhappy with the Staff s data and claims

that the GAO R eport provides more up-to-date information. 308 To the contrary, the GAO Report

analyzed climate change effects on temperature using the fourth National Climate

Assessment. 309 In fact, the GAO R eport came to the same conclusion that the Staff did that

after reviewing the relevant sections from the fifth National Climate Assessment, the GAO did

not identify any major differences in the predicted or projected trends for the selected natural

hazards [compared to the fourth National Climate Assessment]. 310 The Staff used the same

data that the GAO Report used and came to the same conclusion that the GAO Report did, yet

Petitioner claims that the S taffs conclusion is insufficient,311 while Petitioner also claims that the

GAO Report constitutes the exact sort of analysis that NRC Staff ought to undertake. 312

In New Contention 3-A, Petitioner seeks to rectify deficienc ies identified by this Board in

prior Contention 3 with information derived from the 2002 FSEIS, 313 and the 2019 FSEIS.314 In

so much as Petitioner attempts to rectify these deficiencies and others with preexisting

information, this constitutes a late attempt to reinvigorate thinly supported contentions by

306 Motion at 59-60.

307 2024 FSEIS at E E-11.

308 Motion at 59-60.

309 GAO Report at 49.

310 Id. at 3 n.3; see also 2024 FSEIS at E E-11.

311 Motion at 60.

312 Id. at 61.

313 See, e.g., id. at 59, n.230 - 231 (citing Generic Environmental Impact Statement for License Renewal of Nuclear Plants: Regarding Turkey Point Plant, Units 3 and 4 - Final Report, NUREG-1437, Supplement 5, at 2-1 (Jan. 2002) (ML020280119) (2002 FSEIS)).

314 Id. at n.232.

presenting new arguments in response to the Boards previous ruling.315 Such arguments are

not supported by good cause, and Petitioner makes no attempt to justify that good cause exists

for any arguments not based on the GAO Report.

The GAO R eport compiles previously available climate information that was already

incorporated into the 2024 FSEIS. Accordingly, this information was previously available, and

the GAO Report relies on the same data that the 2024 FSEIS relies upon and, therefore,

Petitioner does not demonstrate good cause pursuant to 10 C.F.R. § 2.309(c)(i)- (ii). To the

extent that any new factual support for arguments has been raised that is not derived from the

GAO Report, Petitioner does not allege that good cause exists to include it as support for the

admissibility of New Contentions 3-A and 3-B. Therefore, Petitioner does not demonstrate good

cause pursuant to 10 C.F.R. § 2.309(c)(1)(i) and (ii) for both New Contentions 3-A and 3-B and,

accordingly, the Board should not entertain New Contentions 3-A and 3-B. 316

2. New Contention 3-A (Previous Contention 3) Does Not Genuinely Dispute the 2024 FSEIS, and the GAO Report Does Not Provide the Necessary Support as a Basis for the Previously Rejected Contention 3 to be Admissible Now

In New Contention 3-A Petitioner states:

The 2024 FSEIS fails to adequately analyze climate change-related environmental impacts that are reasonably foreseeable to occur during the subsequent license renewal period. [ 317]

Specifically, Petitioner re-argues Contention 3 from its challenge to the 2023 DSEIS that the

Staffs environmental review fails to adequately consider the cumulative impacts of continued

operations of Turkey Point, which was determined by the Board to not be admissible because

Petitioner did not provide sufficient support to raise a genuine material dispute. Even more

pertinent, this Board previously found that although Petitioner offered several sources of

315 See National Enrichment Facility, CLI 25, 60 NRC at 224-25; Duke Energy Corp.,

(McGuire Nuclear Station, Units 1 and 2), CLI 17, 58 NRC 419, 428 - 29 (2003).

316 10 C.F.R. § 2.309(c).

317 Motion at 75.

purportedly new information in support of its contention, it does not explain the significance of

that information to the Staffs review... and does not explain how its proffered information would

amount to more than fine-tuning the information in the [2023 D SEIS]. 318

As discussed above, Petitioner has not demonstrated good cause to file New Contention

3-A, as the information compiled in the GAO Report is not new and materially different from the

information previously available and, therefore, the good cause requirements of 10 C.F.R.

§ 2.309(c)(1)(i) - (ii) are not met. Furthermore, for the same reasons that this Board previously

did not admit Contention 3, this Board should not now admit New Contention 3-A as it, again,

fails to provide the necessary support for Petitioners assertions or demonstrate that a genuine

dispute exists on a material issue of fact or law, as is required by 10 C.F.R. § 2.309(f)(1) (v)- (vi).

Petitioner asserts that the GAO R eport provides a novel site-specific analysis and

conclusions about the specific vulnerability of Turkey Point to climate change.319 To the

contrary, it does not make any findings about any specific unaddressed environmental impacts

that might be exacerbated by climate change at Turkey Point. 320 The GAO R eport makes many

findings general to all U.S. nuclear power plants by applying climate change projections to the

general area of nuclear power plants, without taking into account any protective measures to

mitigate the external hazards at each plant.321

Petitioner claims that the site-specific analysis of climate change-related impacts is

located within the GAO Report. 322 Yet all of P etitioner s claims in New Contention 3-A simply

318 LBP-24-3, 99 NRC at __ (slip op. at 27).

319 Motion at 53.

320 The site-specific analysis is contained in the GAO Report at Appendix III, page 55. Turkey Point is mentioned on pages 15 and 23 regarding CCS salinity (unrelated to accident risk) and at page 19 to showcase the flood barriers protecting Turkey Point. None of this discussion suggests or demonstrates that climate change presents an unaddressed external hazard not yet considered, as the report specifically states that it does not account for protective measures to mitigate against natural hazards.

321 GAO Report at 17, 20, 22, 24.

322 Motion at 59, 61.

restate its prior arguments without citing to the GAO Report in a substantive manner. This is

because the GAO Report does not analyze climate changes cumulative impacts from any

nuclear power plant to the environment. Instead, the GAO Report discusses the effects of

climate change on U.S. nuclear power plant operations and makes three general

recommendations for executive action at the NRC. 323

The Board previously found that Petitioner did not provide sufficient information to

demonstrate a genuine, material dispute with the 2023 DSEIS regarding overtopping of the

CCS. 324 This Board previously found that the contention, citing a prior Board facing the

substantively similar argument, lacked such necessary information as the relationship between

th[e] projected sea levels and the relevant elevations of the Turkey Point site, its sea level

barriers, or the CCS, to support th[e] claim that the site will be flooded and the CCS

overtopped or breached.325 The GAO Report provides no new information that addresses any

of these factors. Instead, Petitioner seeks to rectify this deficiency in its previous pleading with

preexisting information derived from the 2002 EIS,326 and the 2019 FSEIS. 327 Nevertheless,

despite reciting the facts identified as missing previously by the Board, Petitioner fails to

demonstrate how a potential overtopping event could cause any significant environmental

impacts that might change the Staffs determination of SMALL impacts on surface water quality

in Biscayne Bay and Card Sound. 328 In the 2019 FSEIS, the S taff addressed a comment

regarding overtopping and climate change and explained with references to the body of the

2019 FSEIS why overtopping events, even if more frequent, would not have a material effect on

323 GAO Report at 40.

324 LBP-24-3, 99 NRC at __ (slip op. at 27).

325 Id. at __ (slip op. at 28).

326 See Motion at 59, n. 230- 231.

327 Id. at n. 232.

328 2019 FSEIS at 2-23; 2024 FSEIS at 2-2.

the Staffs determination of SMALL impacts on surface water quality in Biscayne Bay and Card

Sound. 329

This Board previously identified that a prior Board rejected a substantively similar

argument regarding the increase in air temperature and the rate of evaporation from the CCS.330

Just as the reasoning applied in 2019, and before this Board in 2024, it applies again here. New

Contention 3-A is not accompanied by sufficient support to demonstrate that the [postulated]

higher temperatures would increase evaporation in the CCS to any particular extent, much

less to an extent that would be sufficient to increase the CCS salinity such that it would, in turn,

affect the environment. 331 The GAO R eport provides no new information that addresses any of

these issues, 332 nor does New Contention 3-A and, therefore, Petitioner has failed to rectify the

deficiencies identified by the Board regarding CCS salinity levels and climate change.

Petitioner raises hurricane risks as a basis for its contention, but only cite s to a general

statement in the GAO Report about nuclear power plant safety in the event of a hurricane that

remains unconnected to cumulative impacts.333 Petitioner does not connect the GAO R eports

discussion of hurricanes to the Staffs cumulative impacts analysis, and it is not clear if

Petitioner seeks to raise a current licensing basis issue instead of a cumulative impacts

contention. Regardless, this vague assertion does not demonstrate a genuine dispute of

material fact regarding the cumulative impacts analysis in the 2024 FSEIS.

Petitioner does not demonstrate how any of the relevant information in the GAO Report

has not been accounted for in the Staffs environmental review. Instead, Petitioner effectively

329 2019 FSEIS at A A-40. See also 2024 FSEIS at A A-54.

330 LBP-24-3, 99 NRC at __ (slip op. at 28 - 29).

331 Id. at __ (slip op. at 28 - 29) (quotation marks omitted).

332 The GAO R eport specifically did not evaluate drought. We did not analyze drought data because we were unable to identify national-level geospatial data that was both relevant to nuclear power plants and sufficiently reliable for our purposes. GAO Report at 43, n. 3.

333 Motion at 61-62.

uses the GAO Report as an opportunity to re-argue its previously twice dismissed contention

and does not advance any argument that the GAO Report somehow remedies the previously

identified deficiencies in that contention. Therefore, New Contention 3-A does not meet 10

C.F.R. § 2.309(f)(1)(v)- (vi) and should be dismissed.

3. New Contention 3-B is Not Admissible because it is Not Supported, Does Not Genuinely Dispute the 2024 FSEIS, and is Not Within the Limited Scope of this License Renewal Proceeding

In New Contention 3-B Petitioner states:

The 2024 FSEIS fails to adequately update its evaluation of FPLs SAMA analysis to reflect the effects of climate change on accident risk.[ 334]

Specifically, Petitioner re-argues Contention 5 from its challenge to the 2023 DSEIS that the

Staffs environmental review fails to consider the effects of climate change on a ccident risk. In

LBP-24-3, the Board rejected Contention 5 because Petitioner did not provide sufficient support

to raise a genuine material dispute with the Staffs analysis in the 2023 DSEIS. 335 Petitioner now

argues that the GAO Report provides new and materially different information that satisfies the

good cause standard for new and amended contentions.336

New Contention 3-B is not admissible because the GAO Report that Petitioner cites as

support for this contention does not contain new and materially different information than that

which was previously available and Petitioner does not otherwise satisfy the good cause

requirements of 10 C.F.R. § 2.309(c)(i)- (ii). And even though Petitioner requested a waiver

under 10 C.F.R. § 2.335(b) to challenge the Staffs SAMA analysis in the 2024 FSEIS, as

discussed below in Section III, Petitioner s Petition for Waiver to challenge S taffs updated

SAMA analysis should be denied because it does not meet Millstone factors (iii) and (iv) to

demonstrate a prima facie case of special circumstances as required by 10 C.F.R. § 2.335(b).

334 Id. at 69.

335 LBP-24-3, 99 NRC at __ (slip op. at 33 - 34).

336 Motion at 52-53.

Additionally, New Contention 3-B raises issues that are not within the limited scope of this

license renewal proceeding, it is not supported, and it does not demonstrate that a genuine

dispute exists with the 2024 FSEIS on a material issue of fact or law and, therefore, it does not

meet 10 C.F.R. § 2.309(f)(1)(iii), (v), or (vi). Accordingly, New Contention 3-B should be

dismissed.

(a) New Contention 3 -B (Previous Contention 5) Does Not Genuinely Dispute the 2024 FSEIS, and the GAO R eport Does Not Provide the Necessary Support as a Basis for the Previously Rejected Contention 5 to be Admissible Now

This Board previously held that Contention 5, the prior iteration of New Contention 3 -B,

is inadmissible because it does not provide sufficient information to show a genuine, material

dispute exists with the [2023 DSEIS]. 337 New Contention 3-B is not admissible for similar

reasons. Here, Petitioner advances a generic GAO Report on climate change effects on nuclear

power plants as an attempt to demonstrate that it has good cause to file a new and amended

contention on climate change risks and SAMAs for Turkey Point specifically.

New Contention 3-B based on the GAO Report does not demonstrate how the Staffs

existing conservatisms, safety margins, and defense-in-depth to address natural phenomena fail

to adequately consider risks posed by climate change to nuclear power plants, and does not

demonstrate that Staffs SAMA update is inadequate. 338 The Commission has stated that unless

petitioners can show that their challenges to SAMA analyses could change the cost-benefit

conclusions, no purpose would be served to further refine the SAMA analysis, whose goal is

only to determine what safety enhancements are cost-effective to implement. 339 Citing the GAO

337 LBP-24-3, 99 NRC __ (slip op. at 32).

338 GAO Report at 65.

339 Entergy Nuclear Generation Company and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC 287, 315 - 17 (2010). See also McGuire, CLI-02-17, 56 NRC at 8, 11-12 (finding that the relevant inquiry to determine if a SAMA analysis meets the materiality contention admissibility requirement is whether the contention could change the cost-benefit analysis).

Report as support for its arguments, Petitioner advances safety concerns over f looding,

hurricane, and temperatures at Turkey Point before, during, and after the subsequent license

renewal term by alleging that the SAMA analysis does not account for climate change. 340 But

while the GAO Report looks at climate change projections at Turkey Point in its analysis, which

Petitioner elevates as a novel site -specific analysis and conclusions about the specific

vulnerability of Turkey Point to climate change, it does not make any findings about any specific

unaddressed risks of external hazards exacerbated by climate change to the safe operation of

Turkey Point, or point to any cost-effective accident mitigation measures that should be

considered. 341 This omission is significant. 342

Although the GAO R eport is new, the information within it is not and Petitioner has not

shown how this information supports challenges to the SAMA analysis that could change the

Staffs cost-benefit conclusions. Petitioner cites to the 2024 FSEIS and claims that the GAO

Report is new and significant information that would satisfy the criteria identified in the 2024

FSEIS of new information that indicates that a given potentially cost-beneficial SAMA would

substantially reduce the impacts of a severe accident or the probability or consequences (risk)

of a severe accident occurring.343 The Staff undertook this new and significant information

340 Motion at 72-74 (Petitioner also raises concerns about the storage of spent nuclear fuel well past the 2050s).

341 The site-specific analysis is contained in the GAO Report at Appendix III, page 55. Tur k e y Point is mentioned on pages 15 and 23 regarding CCS salinity (unrelated to accident risk) and at page 19 to showcase the flood barriers protecting Turkey Point. None of this discussion suggests or demonstrates that climate change presents an unaddressed external hazard not yet considered, as the report specifically states that it does not account for protective measures to mitigate against natural hazards.

342 As evidenced by Petitioner s citations to the GAO Report in its Motion, many of the concerns raised by the GAO R eport are about nuclear power plants reliability in delivering electricity to the grid, and the potential safety effects of individuals not having access to electricity.

343 Motion at 77 (quoting 2024 FSEIS at D-4).

evaluation pursuant to the NRC-endorsed topical report Nuclear Energy Institute (NEI) 17-04. 344

The Staff performed a new and significant information evaluation in the 2024 FSEIS based on

the first SAMA performed in accordance with 10 C.F.R. § 51.53(c)(3)(ii)(L). 345 As is explained in

the 2024 FSEIS:

An analysis of SAMAs was performed for Turkey Point at the time of the initial license renewal. The NRC staff documented its review of this analysis in NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 5, Regarding Turkey Point Units 3 and 4. Any new and significant information that might alter the conclusions of that analysis was considered in the [subsequent license renewal] application, as discussed below. No new and significant SAMAs were identified through FPLs use of the NRC-endorsed topical report Nuclear Energy Institute (NEI) 17 -04, Model [Subsequent License Renewal] New and Significant Assessment Approach for SAMA, nor was any new and significant information regarding SAMAs identified by the NRC staff in the FSEIS. [ 346]

Petitioner does not propose any SAMA alternative and does not argue that any proposed new

SAMA might be cost beneficial. Instead, Petitioner relies on the bare assertion that the SAMA

analysis does not address climate changes effects on flooding, hurricane, or temperate-related

severe accidents. 347

While Petitioner believes that the SAMA analysis needs to be redone with updated

climate data, Petitioner does not engage at all with F P L s underlying SAMA analysis.348 In the

2002 EIS, FPL provided a SAMA analysis, which the Staff evaluated and concurred with, which

identified internal events as the primary contributor to the baseline core damage frequency

344 2024 FSEIS at D-4 (citing Nuclear Energy Institute, Model [Subsequent License Renewal]

New and Significant Assessment Approach for SAMA, NEI 17-04, Rev. 1 (Aug. 2019)

(ML19316C718).

345 2002 FSEIS at 5 5-25.

346 2024 FS EIS at D-4.

347 Motion at 72-75.

348 Id. at 77-78 (If NRC Staff were to update the SAMA evaluation to reflect the risks identified in the GAO Report, it might very well call into question the [2024 FSEISs] overall conclusions regarding the probability-weighted consequences of potential severe accidents.) (quotation marks omitted).

(CDF). 349 FPLs SAMA analysis did not identify any fundamental weaknesses or vulnerabilities

of Turkey Point to severe accident risk with regard to the separate matter of external events

related to seismic, fire, high winds, flood, and other external hazards. 350

Here, Petitioner seeks to challenge the underlying inputs to the safety analyses, which

become the bases for the Staffs SAMA update in the 2024 FSEIS. 351 However, while Petitioner

asserts that it has identified a deficiency in the Staffs SAMA analysis, Petitioner has not

demonstrated that the existing historical climate data, with layers of conservatisms, safety

margins, and defense-in-depth, incorporated into NRCs processes might be unreliable to

address the natural hazards experienced at the plant, especially as external events are a low

contributor to overall CDF in F P L s SAMA analysis. 352 Just as P etitioner has not demonstrated

how the Staffs reliance on its existing climate data is unreliable or fails to adequately account

for climate change, it has not pointed to how consideration of climate change might result in a

different cost-benefit analysis. Petitioner does not make a logical connection to how the

incorporation of any information from the GAO Report paints a materially different picture of the

cost-benefit analysis done to address the SAMA analysis and Petitioner does not show that

climate change might change the SAMA analysis. In sum, New Contention 3-B does not provide

alleged facts or expert opinions that support its position and does not demonstrate that a

349 2002 FSEIS at 5-6 (listing the four top contributors to CDF as Transients, Loss-of-coolant accident (LOCA), Steam generator tube rupture (SGTR), and Interfacing system LOCA).

350 Id. at 5-9.

351 As Petitioner is challenging the underlying SAMA analysis, its challenge amounts to a challenge to 10 C.F.R. § 51.53(c)(3)(ii)(L).

352 Cf. Diablo Canyon, CLI 11, 74 NRC 427 (2011), affirming Pacific Gas & Electric Company (Diablo Canyon Nuclear Power Plant, Units 1 & 2), LBP-10-15, 72 NRC 257, 282 (2010) (as the disproportionate risk at Diablo Canyon in the initial SAMA analysis was, in part, due to seismic contributors, the petitioners had demonstrated that the SAMA analysis contained an omission because there was a newly discovered fault line that was not yet considered and therefore could change the seismic SAMA cost-benefit calculations).

genuine dispute exists on a material issue of fact as is required by 10 C.F.R. § 2.309(f)(1)(v)- (vi)

and, accordingly, it should be dismissed.

(b) The Effects of Climate Change on the Structures, Systems, and Components of a Nuclear Power Plant are Not Within the Scope of License Renewal and therefore are Not Within the Scope of SAMA Analyses

Petitioner argues that the Staffs environmental review of the updated SAMA analysis is

inconsistent with the GAO Report and N E PA because it does not address the impacts of climate

change on plant safety. 353 However, this argument amounts to a challenge to the NRCs license

renewal regulations because those regulations specify that such current licensing basis plant

safety issues are addressed separately through ongoing oversight and not through the license

renewal process.354 As provided by 10 C.F.R. § 2.335, no rule or regulation of the Commission

may be subject to attack in an adjudicatory proceeding unless the proponent files a petition for

waiver of that rule or regulation. Petitioner filed a waiver to challenge 10 C.F.R. § 51.53(c), which

is required to challenge generic environmental findings in the NRCs regulations, but it has not

requested a waiver to challenge 10 C.F.R. § 54.30, which excludes current licensing basis issues

from the scope of license renewal and, therefore, its challenges to current licensing basis safety

concerns should be dismissed. 355

Petitioner asserts that the 2024 FS EIS does not discuss climate change impacts on

accident risk. 356 However, the 2019 FSEIS, which the 2024 FSEIS supplements, contains a

section entitled, Climate Change Projections, that specifically states that the effects of climate

change on Turkey Point structures, systems, and components (SSCs) are not within the scope

353 Motion at 70.

354 See 10 C.F.R. § 54.30 (excluding current licensing basis issues from the scope of license renewal).

355 Millstone, CLI- 03-14, 58 NRC at 218.

356 Motion at 69.

of the Staffs license renewal environmental review. 357 Nevertheless, Petitioner disputes these

statements, and asserts that the St aff s SAMA update is an appropriate vehicle to raise these

safety concerns. 358 As the Commission has often explained, though, the effects of

environmental conditions on a nuclear power plant, as opposed to the effects of the nuclear

power plant on the environment, are not within the scope of license renewal.359 Accordingly, as

the effects of climate change on nuclear power plant safety is a current licensing basis issue,

the statement of the 2019 FSEIS that the effects of climate change on Turkey Point Unit 3 and 4

Structures, Systems, and Components (SSCs) are outside the scope of the NRC staffs license

renewal environmental review, 360 is consistent with the scope limitations excluding current

licensing basis issues from license renewal reviews, pursuant to 10 C.F.R. §§ 54.21, 54.29(a),

and 54.30 and pursuant to Commission precedent.361 For this reason, New Contention 3-B is

not admissible.

A SAMA analysis is required in a license renewal only when the applicant has not

performed one previously. 362 As a SAMA analysis was previously performed for Turkey Point,

the Staff only looks to new and significant information in its update to the previous SAMA

357 2019 FSEIS at 4-120- 4-124. See also 2024 FSEIS at A-5, A-3 4, A-35.

358 Motion at 79-80 (citing 2024 FSEIS at D-1) (asserting that NRC Staffs SAMA evaluation must ensure that the analysis accounts for the risks of severe accidents and their environmental consequences).

359 See, e.g., Pacific Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-15-21, 82 NRC 295, 304- 05 (2015).

360 2019 FSEIS at 4 -124.

361 See Turkey Point, CLI- 01-17, 54 NRC at 16-18 (T he Licensing Board correctly concluded that

[a contention was] outside of the scope of license renewal reviews and proceedings [because as] the Board found, the contention does not raise any aspect of the Applicants aging management review or evaluation of the plants systems, structures, and components subject to time-aging analysis. It does not, then, identify any issue encompassed by the NRC safety review for license renewal, conducted under 10 C.F.R. Part 54, which focuses on aging.)

(internal citations omitted).

362 10 C.F.R. § 51.53(c)(3)(ii)(L).

analysis. 363 In contrast to the analyses needed to determine whether a nuclear power plant

meets the safety requirements in the NRCs regulations, a SAMA analysis focuses on potential

alternative mitigation measures that are supplemental to the NRCs safety requirements that are

needed for adequate protection of the public health and safety:

Of note, none of the mitigation alternatives evaluated in the SAMA analysis are measures the agency has deemed necessary for safety. They are supplemental to mitigation capabilities our safety regulations already require. As an ongoing matter, the NRC oversees the safety of reactor operations pursuant to the Atomic Energy Act of 1954, as amended, and may require licensees to implement new mitigation measures whenever warranted to assure adequate protection of public health and safety. The NEPA mitigation analysis conducted for license renewal helps to identify additional measures that may further reduce plant risk beyond that necessary for adequate protection of public health and safety.

To identify those mitigation measures that may be cost-beneficial to implement, the SAMA cost-benefit analysis compares the cost of implementing a new mitigation measure with its assessed potential to reduce severe accident risk.[ 364]

A SAMA analysis is an alternatives analysis carried out under NEPA in order to determine if

there are any procedures, training activities, or plant-design alternatives that could significantly

reduce environmental risks at a reactor site in the event of a severe accident. 365 The

Commission has stated that the alternatives evaluated go beyond what is needed for adequate

protection under the NRCs safety regulations.366

The effects of climate change on n uclear power plant SSCs is a current licensing basis

issue. While the Board has previously taken Petitioner at its word that it seeks to challenge the

Draft SEIS and does not seek to challenge the Staffs safety analysis, such deference is not

363 Limerick, CLI-13-7, 78 NRC at 211-12.

364 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), CLI 7, 83 NRC 293, 296, 298 (2016) (emphasis added).

365 Preparation of Environmental Reports for Nuclear Power Plant License Renewal Applications, NRC Regulatory Guide 4.2, Suppl. 1, Rev. 1, at 44-45 (Jun. 2013)

(ML13067A354).

366 Indian Point, CLI-16-7, 83 NRC at 296.

appropriate here as Petitioner s arguments repeatedly invoke safety concerns and directly

challenge the scope of the NRCs license renewal process. 367 Specifically, Petitioner, quoting

the GAO Report, asserts that it is unclear whether the safety margins for nuclear power plants

are adequate to address the risks that climate change poses to plants. 368 Cloaking current

licensing basis safety concerns in an environmental cloth does not transform Petitioner s

concerns into an environmental contention.

This Board previously held that Petitioner s safety contention was an environmental

SAMA contention citing to Diablo Canyon. 369 However, Diablo Canyon does not support

including climate change with in the scope of the Staff s license renewal environmental review in

this instance, as here Petitioner seeks to challenge the underlying process that the Staff uses to

perform its safety determinations during it safety reviews. 370 In Diablo Canyon, the Commission

found that a newly discovered seismic fault line had not yet been incorporated into the safety

review and, therefore, was absent from the SAMA analysis, and, notably the applicants SAMA

analysis acknowledge[d] that both fire and seismic contributors [were] disproportionately

dominant risk factors.371 But here, in contrast, climate change is addressed through the current

licensing basis through layers of conservatism and defense in depth incorporated into NRCs

safety processes which provide reasonable assurance regarding any plausible natural hazard

367 LBP-24-3, 99 NRC at __ (slip op. at 32).

368 Motion at 76 (quoting GAO Report at 39).

369 LBP-24-3, 99 NRC at __ (slip op. at 33, n.173) (citing Diablo Canyon, CLI 11, 74 NRC at 442-43).

370 A holding that the Staffs analysis of current licensing basis issues is inadequate for the purposes of SAMAs would bifurcate the methodologies used by the Staff to perform its safety reviews to analyze a nuclear power plants compliance with its current licensing basis, and the analysis that the Staff uses to examine SAMAs during license renewal. Effectively, the Staff would have to undertake a new safety analysis using different methodologies exclusively for SAMAs.

371 Diablo Canyon, LBP 15, 72 NRC at 282 (quotation marks omitted) (The underlying safety analysis for the current licensing basis of Diablo Canyon regarding the new fault line was in process at the time of the hearing requests).

and combinations at the site for the licensed operation lifetime of the reactor, including those

that could result from climate change.372 Petitioner is not advancing new and significant

information in the form of specific recommendations or study demonstrating a specific omission

in the Turkey Point SAMA analysis.373 Instead, Petitioner advances a broad GAO Report framed

as an omission in the Staffs environmental impact statement, but actually contests the

adequacy of how the Staff addresses natural phenomena in the current licensing bases for all

plants. To this point, Petitioner broadly asserts that the current licensing basis for Turkey Point

might not provide adequate protection to the public and the environment leading up to, during,

and after the subsequent license renewal term, because climate change is not specifically

considered in the current licensing basis. 374

Contrary to Petitioners argument, New York v. NRC does not require the Staff to discuss

climate change impacts on accident risk in the license renewal environmental review. 375 In place

of environmental contentions, Petitioner raises speculative safety concerns about the effect of

climate change on Turkey Point.376 This runs contrary to the Commissions license renewal

regulations that, regarding safety issues, limit hearings in license renewal proceedings to

concerns regarding the applicants aging management programs and time-limited aging

analyses. 377 Contentions may address the environmental effects, including any cumulative

372 GAO Report at 65.

373 Diablo Canyon, CLI-11-11, 74 NRC at 442-43 (There, we affirmed the boards decision with regard to the portion of the admitted contention in which the petitioner asserted that the applicant failed to consider the result of a particular study in its SAMA analysis.).

374 Motion at 72-75, 77, 79-80.

375 Cf. State of New York v. NRC, 681 F.3d 471, 478 (2012) (whereas the court held that the NRC must analyze any environmental effects that are not remote and speculative, here the Staff did not exclude this topic because it was remote and speculative, but excluded consideration of climate change on SSCs because this topic is a current licensing basis issue that is excluded from review during license renewal by 10 C.F.R. § 54.30(b)).

376 Motion at 72-75.

377 10 C.F.R. §§ 54.21 and 54.29.

effects, of the proposed action, 378 but not the effects of the environment on the plant as those

issues are current licensing basis issues that are not within the scope of license renewal

proceedings. 379

Petitioner s arguments at bottom challenge the ability of Turkey Point to provide

adequate protection against natural hazards, because they assert that using climate change

projections may produce a different picture of the underlying natural hazards analysis that the

Staff performs under the current licensing basis. 380 The Staffs NEPA SAMA analysis takes the

data from the current licensing basis to perform the SAMA analysis. Therefore, Petitioner s claim

that it is challenging the SAMA analysis as a contention of omission is, in fact, a challenge to the

adequacy of the underlying current licensing basis, without demonstrating that it is

unreasonable for the Staff to rely on this data. This challenge reaches far beyond license

renewal and seeks to challenge the way that the NRC determines compliance with the current

licensing basis for nuclear power plants ability to cope with natural phenomenon. The

appropriate way to raise such a challenge to a plants current licensing basis is not through a

license renewal proceeding but through a 10 C.F.R. § 2.206 request for agency action. 381

Protecting Turkey Points SSCs from natural phenomena, climate induced or otherwise,

is a current licensing basis safety issue and, therefore, is excluded from the scope of this

license renewal proceeding. An argument to the contrary amounts to an impermissible collateral

attack on 10 C.F.R. § 54.30(b), for which Petitioner has not requested a waiver. Petitioner s

request to use data that it claims the Staff omitted from the 2024 FSEIS about the effects of

climate change on the SSCs of Turkey Point would arguably require a full re-analysis of all

natural phenomenon safety reviews, which is simply outside of the scope of the Staff s review

378 See, e.g., 10 C.F.R. § 51.71(d) and 10 C.F.R. § 51.95(c).

379 Diablo Canyon, CLI-15-21, 82 NRC at 304 - 05.

380 Motion at 77-80.

381 Diablo Canyon, CLI 15 -21, 82 NRC at 30 7- 08.

under the NRCs license renewal requirements. Therefore, New Contention 3-B does not meet

the contention admissibility requirement of 10 C.F.R. § 2.309(f)(1)(iii) and, accordingly, should be

dismissed.

(c) Conclusion for New Contention 3-B

In Sum, New Contention 3-B is not within the limited scope of this license renewal

proceeding, is not supported, and does not show that a genuine dispute exists on a material

issue of law or fact, as required by 10 C.F.R. § 2.309(f)(1)(iii), (v), and (vi). Therefore, New

Contention 3-B should be dismissed.

III. The Petition for Waiver should be Denied

It is a fundamental principle that NRC regulations are not subject to attack in an

adjudicatory proceeding unless the Commission grants a request for the waiver of the

application of a specific regulation or otherwise makes an exception for a particular

proceeding.382 The sole ground for a petition of waiver is that special circumstances with

respect to the subject matter of the particular proceeding are such that the application of the rule

or regulation (or a provision of it) would not serve the purposes for which the rule or regulation

was adopted. 383 The petition must be accompanied by an affidavit that identifies the specific

aspect or aspects of the subject matter of the proceeding as to which the application of the rule

or regulation (or provision of it) would not serve the purposes for which the rule or regulation

was adopted. The affidavit must state with particularity the special circumstances alleged to

justify the waiver or exception requested.384 Other participants may file a response by counter-

affidavit or otherwise. 385

382 10 C.F.R. § 2.335(a).

383 10 C.F.R. § 2.335(b).

384 Id.

385 Id.

If the presiding officer determines that the petitioning participant has not made a prima

facie showing that the application of the specific Commission rule or regulation (or provision

thereof) to a particular aspect or aspects of the subject matter of the proceeding would not serve

the purposes for which the rule or regulation was adopted and that application of the rule or

regulation should be waived or an exception granted, the presiding officer may not further

consider the matter.386 If, however, the presiding officer determines that the required prima facie

showing has been made, the presiding officer shall, before ruling on the petition, certify the

matter directly to the Commission for a determination in the matter of whether the application of

the rule or regulation or provision thereof to a particular aspect or aspects of the subject matter

of the proceeding should be waived or an exception made.387

In Millstone, the Commission established a four-factor test for waiver applications:

(i) the rules strict application would not serve the purposes for which it was adopted; (ii) the movant has alleged special circumstances that were not considered either explicitly or by necessary implication, in the rulemaking proceeding leading to the rule sought to be waived; (iii) those circumstances are unique to the facility rather than common to a large class of facilities; and (iv) a waiver of the regulation is necessary to reach a significant safety problem.[ 388]

Intervenors must satisfy all four factors to obtain a waiver.389 The fourth Millstone factor may

also apply to a significant environmental issue.390 The waiver standard is stringent by design

and [t]he waiver petitioner faces a substantial burden, but not an impossible one.391 The

purpose of rulemaking is to carv[e] out issues from adjudication for generic resolution;

386 10 C.F.R. § 2.335(c).

387 10 C.F.R. § 2.335(d).

388 Millstone, CLI- 05-24, 62 NRC at 559-60 (quotation marks omitted).

389 Id. at 560.

390 Limerick, CLI-13-07, 78 NRC at 209.

391 Id. at 207.

therefore, petitioners must show something extraordinary about the subject matter of the

proceeding such that the rule should not apply. 392

Here, Petitioner seeks a waiver of the Commissions regulations in 10 C.F.R.

§§ 51.53(c)(3) and 51.71(d) and 10 C.F.R. Part 51, Appendix B with respect to the Staffs updated

SAMA analysis in the 2024 FSEIS for allegedly failing to account for the effects of climate

change on Turkey Point. Even though this proceeding relates to a Staff analysis of all

environmental impacts in a site-specific basis and there are no Category 1 issues, a previously

completed SAMA analysis is the functional equivalent of a Category 1 issue393 pursuant to 10

C.F.R. § 51.53(c)(3)(ii)(L) which requires a waiver to litigate.394

Petitioner also argues that a waiver petition is not required to litigate the issue of new

and significant information regarding climate change risks because [n]o NRC regulation

prohibits Petitioner from challenging the adequacy of the 2024 FS EISs SAMA evaluation. 395

This is not true. The Commission has squarely addressed this issue. In Limerick, the

Commission held that a waiver is required to litigate purportedly new and significant information

with respect to a previously conducted SAMA analysis, akin to a challenge on new and

significant information with respect to a Category 1 issue.396 Therefore, Petitioner must obtain a

waiver to litigate N ew Contention 3-B here, which raises a SAMA-related contention.397

392 Id. (quotation marks omitted).

393 Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), CLI 19, 76 NRC 377, 386-87 (2012).

394 Limerick, CLI-13-07, 78 NRC at 210- 12.

395 Petition for Waiver at 5-6.

396 Limerick, CLI-13-07, 78 NRC at 211. See also Entergy Nuclear Vt. Yankee, LLC and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), Entergy Nuclear Generation Co. and Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Sta tion), CLI-07-3, 65 NRC 13, 26 (2007).

397 Limerick, CLI-13-07, 78 NRC at 212 (Consequently, to litigate a SAMA-related contention in this, as well as other adjudicatory proceedings where the SAMA-analysis exception applies, a petitioner must obtain a waiver by satisfying the requirements in section 2.335(b).).

In the 2024 FSEIS, the Staff analyzed the significance of new information concerning the

previously performed SAMA analysis and concluded that no new and significant SAMAs were

identified through FPLs use of the NRC-endorsed topical report NEI 17-04, nor was any new

and significant information regarding SAMAs identified by the Staff in the 2024 FSEIS. 398 To

challenge the Staffs analysis of new and potentially significant information on this functionally

equivalent Category 1 issue, or to rely upon other new information concerning this issue,

Petitioner must obtain a waiver of the Commissions rules concerning 10 C.F.R.

§ 51.53(c)(3)(ii)(L). 399 As the original SAMA analysis, as reviewed by the Staff in the 2002

FSEIS, was already performed on a site-specific basis for Turkey Point and is not designated as

a generic Category 1 issue in the 2013 LR GEIS, the SAMA updates in the 2019 FSEIS or the

2024 FSEIS were not affected by the Commissions rulings in CLI-22-2 and CLI-22-3. 400

Therefore, a waiver of the Commissions regulations is still required to challenge a SAMA when

one has already previously been conducted, even in the proceedings affected by CLI 2 and

CLI 3, such as this one.

Here, Petitioner has failed to make a prima facie showing that the Commissions

regulations in 10 C.F.R. § 51.53(c)(3)(ii)(L) should be waived with respect to the functionally

equivalent Category 1 issue of an updated SAMA analysis. Petitioner fails to satisfy criteria (iii)

and (iv) of the Millstone factors that the circumstances are unique and that the waiver of 10

C.F.R. § 51.53(c)(3)(ii)(L) is necessary to reach a significant safety or environmental problem.

398 2024 FSEIS at D-4.

399 Indeed, the Board has previously concluded that Joint Petitioners may not circumvent the regulatory bar against challenging a Category 1 issue by alleging the existence of new and significant information. Turkey Point, LBP-19-3, 89 NRC at 294 n.74.

400 Oconee, CLI-22-3, 95 NRC at 42 (As a general matter, in CLI-22-2 the Commission found that the 2013 [LR] GEIS did not consider the impacts from operations during the subsequent license renewal period and applicants for subsequent license renewal must evaluate Category 1 impacts in their environmental reports. Accordingly, these impacts must be addressed on a site-specific basis in the Staff s site-specific environmental impact statements.).

Climate change is a global phenomenon, with impacts to global weather patterns. The

GAO Report is one example of downscaling climate change effects onto regional areas, with

generalizable regional effects, such as on sea level, temperature, and precipitation.401 Petitioner

argues that the GAO Report identified Turkey Point to be at the highest risk level for flooding

and high-intensity hurricanes - and identified the increasing risk of severe accidents due to

climate change. 402 Petitioner overstates the significance of the GAO R eports findings to Turkey

Point. The GAO Report is a generalized analysis of climate change effects to all nuclear power

plants. 403 Furthermore, the GAO Report only expressly mentions Turkey Point in three locations,

as examples for the report to be used to highlight the generalizable effects of climate change.404

Therefore, the Petition for Waiver is based on circumstancesclimate change effects which

are applicable to all nuclear power plants to varying degrees and, accordingly, it fails to satisfy

Millstone factor (iii).

Furthermore, the requested waiver is not necessary to reach a significant safety or

environmental problem as required to satisfy Millstone factor (iv). 405 As was explained in

response to New Contention 3-B, external events are a low contributor to CDF, which is used as

the baseline input into the SAMA analysis.406 Petitioner speculates that new climate data might

change FPLs SAMA analysis, but does not explain how this new climate data would result in a

significant change to the external events analysis in the existing SAMA analysis, or that there

401 GAO Report at 49.

402 Petition for Waiver at 8.

403 GAO Report at 43, 46 (To conduct our data analysis, we identified national-level data sets from relevant federal agencies for six of the seven natural hazards identified by the NCA, and our review of literature, as likely to be exacerbated by climate change in the United States.

Using hazard and nuclear power plant location data, we analyzed natural hazard exposure in the areas around nuclear power plants.).

404 Id. at 15, 19, 23.

405 Limerick, CLI-13-07, 78 NRC at 209.

406 2002 FSEIS at 5-6.

might conceivably be a new mitigation alternative that might be cost-beneficial. 407 Instead,

Petitioner speculates about the possibility for climate change to increase accident risk due to

natural phenomena, and cites to the GAO Report as its basis for this argument. 408 The GAO

Report, though, expressly states multiple times that [t]his analysis does not account for any

protective measures plants may have taken to mitigate the risk of selected natural hazards.409

Therefore, the GAO Report does not identify any particular risk to nuclear safety at any nuclear

power plant, and Petitioner has not provided any basis to establish that a new SAMA analysis,

using the new climate inputs, would result in any change to the Staffs conclusion that there is

no new and significant information to update the SAMA cost-benefit calculations. As a result, a

waiver of the regulations is not necessary to reach a significant environmental problem as the

new climate data would only result in the fine-tuning of the St aff s original SAMA analysis, and

Petitioner has not presented any argument that this fine-tuning would result in any new SAMA

mitigation alternatives becoming cost-beneficial to implement.

In conclusion, the Petition for W aiver does not meet Millstone factors (iii) and (iv) that

circumstances are unique and that a waiver of 10 C.F.R. § 51.53(c)(3)(ii)(L) is necessary to

reach a significant safety or environmental problem. Accordingly, the Board should not further

consider Petitioner s challenge regarding the functionally Category 1 issue of the updated S A M A

analysis in New Contention 3-B.

IV. The Pending 10 C.F.R. Part 51 Rulemaking Has No Unique Impact on this Adjudication

On May 16, 2024, the Commission approved a final rule that would amend 10 C.F.R. Part

51 regarding environmental reviews for license renewal applications to account for up to one

407 Motion at 77-78.

408 Id. at 72-76.

409 GAO Report at 17, 20, 22, 24.

term of subsequent license renewal.410 The final rule is supported by a revised LR GEIS that

would be issued with the final rule. 411 The Staffs rulemaking information includes estimated

publication of the final rule in August 2024.412 As explained above, Amended Contentions 1-A, 1-

B, and 1-C, New Contention 2, and New Contentions 3-A and 3-B do not meet the good cause

requirements of 10 C.F.R. § 2.309(c) and/or all of the contention admissibility requirements of 10

C.F.R. § 2.309(f) and, therefore, should be dismissed. At that time, b ecause there would be no

admitted or pending contentions remaining before it, the Board should also terminate this

proceeding. 413 If this proceeding is terminated before the publication of the final rule and

issuance of the revised LR GEIS, then that occurrence would have no impact on this

proceeding. Although it is unlikely that the final rule and revised LR GEIS could amount to new

or materially different information since that same information has been available for a

significant amount of time, the appropriate way for any petitioner to utilize the information in

such a situation would be through a motion to reopen under 10 C.F.R. § 2.32 6 and a motion to

file new or amended contentions after the deadline under 10 C.F.R. § 2.309(c) and not for this

Board to somehow hold this proceeding open in anticipation of this contingency. 414

Additionally, even if this proceeding were still open at the time of the publication of the

final rule and issuance of the revised LR GEIS, that occurrence would have no impact on this

adjudication other than, as explained above, the unlikely possibility of new or materially different

information. In CLI-22-3, the Commission provided the direction for subsequent license

410 Staff RequirementsSECY 0017Final Rule: Renewing Nuclear Power Plant Operating LicensesEnvironmental Review (RIN 3150 -AK32; NRC-2018-0296) (May 16, 2024)

(ML24137A213 (package)).

411 Id. at 1.

412 See https://www.nrc.gov/reactors/operating/licensing/renewal/sled.html; https://www.nrc.gov/reading-rm/doc-collections/rulemaking-ruleforum/active/ruledetails.html?id=96.

413 See North Anna, CLI 14, 75 NRC at 699-701.

414 Id.

renewal reviews that the applicants could follow either one of two processes going forward(1)

wait for the completion of the [revised LR GEIS] and associated rulemaking or (2) submit a

revised [site-specific] environmental report based on which the Staff would develop a revised

site-specific environmental impact statement. 415 The Commission explained that Option 2

would involve the Staff addressing the impacts designated as Category 1 or generic in the 2013

versions of 10 C.F.R. Part 51 and the LR GEIS on a site -specific basis in the Staff's site -specific

environmental impact statements instead of simply incorporating the determinations for those

impacts from the regulation and LR GEIS into the environmental impact statements by

reference. 416 In this manner, the Commission created the new Option 2 process of a site-

specific review of the 2013 generic impacts as a separate process so that the environmental

reviews of subsequent license renewal applications could proceed. The Commission did not

provide direction to combine this new, optional process and the typical Option 1 process of

waiting for the completion of a rulemaking and then following new applicable regulations. 417 The

Commission also directed the Staff to provide members of the public with an opportunity to seek

a hearing on the Staffs updated, site-specific environmental impact determinations. 418

Based on the above, if the final rule were to be made effective during the pendency of

this proceeding, then that would not somehow stop this proceeding from moving forward

consistent with the new Option 2 process of conducting a site-specific review of the 2013

generic impacts in lieu of waiting for updated regulations. For example, neither the applicant nor

the Staff would be required to replace their site-specific evaluations with the new generic impact

determinations in the revised 10 C.F.R. Part 51 and LR GEIS. Such an outcome would

essentially invalidate Option 2 and mandate Option 1, contrary to the Commissions direction.

415 Oconee, CLI-22-3, 95 NRC at 41.

416 Id.

417 Id.

418 Id. at 41 - 42.

This would also deprive the members of the public of the meaningful opportunity for hearing

envisioned in CLI-22-3. Additionally, such an outcome would defeat the purpose of Option 2 of

allowing subsequent license renewal environmental reviews to proceed in a timely manner

without having to wait for and be delayed by the rulemaking process. That being said, the

rulemaking to amend 10 C.F.R. Part 51 and the LR GEIS, both before and after any issuance of

a final rule, is still information that could potentially be used in support of an argument before

this Board or could potentially be addressed by the Staff as part of a new-and-significant-

information analysis. The latter contingency is exactly why the Staff included in the 2023 DSEIS

and 2024 FSEIS a discussion of the rulemakings applicability to the Turkey Point subsequent

license renewal application. 419 Specifically, those documents state: To account for the

possibility that the proposed rule and the 2023 LR GEIS may be finalized before a final

determination is reached on FPLs [subsequent license renewal] application, the NRC staff

analyzes in this appendix, on a site-specific basis, the new and revised environmental issues

described in the 2023 LR GEIS because they may apply to [subsequent license renewal] for

Turkey Point. 420 This approach has been available for Petitioner to dispute along with all of the

other information in the 2023 DSEIS and 2024 FSEIS; Petitioner has not timely raised any such

dispute with this information and the Board cannot raise such a dispute for Petitioner. 421

Taken together, the Staff position is that if the final rule and revised LR GEIS were to be

made effective during the pendency of this proceeding, then that would not require re-analyzing

the existing contentions; that is, the case or controversy before the Board would remain the

completeness and adequacy of the Staffs site-specific evaluation of the 2013 generic impact

419 See 2023 DSEIS at App. E; 2024 FSEIS at App. E.

420 2023 DSEIS at E-3; 2024 FSEIS at E -3.

421 See, e.g., DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 2), CLI-15-18, 82 NRC 135, 141 (2015) ( Although boards have some discretion to reformulate or narrow contentions to eliminate extraneous issues or to consolidate issues for a more efficient proceeding, this authority is not without limit. A licensing board, for example, may not supply information that is lacking in a contention that otherwise would be inadmissible.) (quotation marks omitted).

determinations. Petitioner, FPL, and the Staff remain free to argue that information related to the

rulemaking supports or contradicts these questions of completeness and adequacy in the Staffs

environmental impact statement. In fact, the Staff accounted for the rulemaking by specifically

discussing it in the 2023 DSEIS and 2024 FSEIS and Petitioner did not challenge these

discussions. The proper way to bring arguments on this matter before the Board is not through

any Board action in response to the effectiveness of the final rule, but through the existing

regulatory processes such as motions for leave to admit new or amended contentions under 10

C.F.R. § 2.309(c). Therefore, the Staff concludes that the effectiveness of the final rule, in and of

itself, would not impact this proceeding.

CONCLUSION

In support of the dual mandates of NEPA to foster informed decision-making and

informed public participation,422 the Staff has completed two reviews of the environmental

impacts of the proposed action, with each review consisting of a draft environmental impact

statement that was issued for comment and a final environmental impact statement addressing

comments received, including many comments received from Petitioner, and the two final

environmental impact statements total almost 900 pages. Petitioner s efforts to require more of

the Staff are not availing because they do not, as required, meet both the heightened pleading

standards of 10 C.F.R. § 2.309(c) and the strict-by-design contention admissibility requirements

of 10 C.F.R. § 2.309(f)(1). 423 As a threshold matter, the Board should dismiss A mended

Contentions 1-A, 1-B, and 1-C and New Contentions 3-A and 3-B for not meeting 10 C.F.R.

§ 2.309(c) because the information that these contentions challenge in the 2024 FSEIS, as well

as the information that they provide in support of these challenges, including in the GAO Report,

is not new and materially different from information previously available. Petitioner could have

422 See McGuire, CLI 17, 56 NRC at 10 (quoting Claiborne, CLI-98-3, 47 NRC at 88).

423 See, e.g., Crow Butte, CLI-20-8, 92 NRC at 259-60; Turkey Point, LBP-19-8, 90 NRC at 149, 159-60.

timely filed, and largely did timely file, essentially these same challenges previously. Additionally,

Amended Contentions 1-A, 1-B, and 1-C, New Contention 2, and New Contentions 3-A and 3-B

do not meet the contention admissibility requirements of 10 C.F.R. § 2.309(f). Instead, these

contentions largely reiterate previous arguments that were previously rejected, do not genuinely

dispute the Staffs comprehensive environmental review, and rely on bare assertions rather than

specific factual support. Moreover, New Contention 3-B challenges both the plants current

licensing basis as well as the Staffs S A M A update, both of which issues are not within the

scope of this license renewal proceeding and thus are not subject to challenge without a waiver

of the NRCs regulations. Petitioner s Petition for Waiver, though, does not cure this defect of

New Contention 3-B because the Petition for Wavier does not meet the applicable requirements

of 10 C.F.R. § 2.335. Specifically, the Petition for Waiver does not meet all four factors of the

Millstone test because it does not show that the circumstances at issue are unique and that

the waiver is necessary to reach a significant safety or environmental problem.

For these reasons, Amended Contentions 1-A, 1-B, and 1-C, New Contention 2, and New

Contentions 3-A and 3-B should be dismissed and the Petition for Waiver should be denied.

Because there would be no admitted or pending contentions remaining before it, the Board

should also terminate this proceeding. 424

Respectfully submitted,

/Signed (electronically) by/

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

Executed in Accord with 10 CFR 2.304(d)

424 See North Anna, CLI-12-14, 75 NRC at 699-701; Turkey Point, LBP-19-8, 90 NRC at 178.

Kevin D. Bernstein Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555- 0001 Telephone: (301) 415-1001 Dated June 3, 2024 E mail: Kevin.Bernstein@nrc.gov UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

In the Matter of

FLORIDA POWER & LIGHT COMPANY Docket Nos. 50- 250- SLR-2 50- 251-SLR-2

(Turkey Point Nuclear Generating Units 3 and 4)

Certificate of Service

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

ANSWER OPPOSING MIAMI WATERKEEPER MOTION TO ADMIT AMENDED AND NEW

CONTENTIONS AND PETITION FOR WAIVER, dated June 3, 202 4, have been served upon

the Electronic Information Exchange (the NRCs E-Filing System), in the captioned proceeding,

this 3rd day of June 2024.

/Signed (electronically) by/

Jeremy L. Wachutka Counsel for NRC Staff Mail Stop: O-14-A44 U.S. Nuclear Regulatory Commission Washington, DC 20555- 0001 Telephone: (301) 287-9188 Email: Jeremy.Wachutka@nrc.gov Dated June 3, 2024