ML19015A317
| ML19015A317 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 01/15/2019 |
| From: | Ayres R, Cox K J, Curran D, Fettus G H, Rumelt K Ayres Law Group, LLP, Friends of the Earth, Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP, Natural Resources Defense Council, Southern Alliance for Clean Energy, Vermont Law School |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-250-SLR, 50-251-SLR, ASLBP 18-957-01-SLR-BD01, RAS 54754 | |
| Download: ML19015A317 (8) | |
Text
1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD _____________________________________ ) In the Matter of ) Florida Power and Light Company ) Docket Nos. 50-250/251-SLR Turkey Point Units 3 and 4 ) _____________________________________) Petitioners, Southern Alliance for Clean Energy, Friends of the Earth, Natural Resources Defense Council, and Miami Waterkeeper, hereby respond to new arguments presented by Applicant Florida Power & Light (FPL) in its latest filing regarding the admissibility of Joint -E and SACE Contention 2 (Alternative Cooling Systems). Petitiresponse is narrowly tailored to address only those issues that FPL raised for the first time in its January 7, 2019 filing, including mischaracterizations of the record. FPL represents throughout its latest filing that the Staf1 But response mischaracterizes Clarification by omitting which accords with NEPA, the consideration of such an alternative [cooling towers] is 2 Thus, while the words 1 Cooling Tower Cont 2 NRC Staff Clarification Contention 1-E and SACE Contention 2 (Alternative Cooling Systems) (Dec. 18, 2018) at 8.
2 FPL is not absolved from considering cooling towers as a reasonable alternative under NEPA and Part 51 regulations. Whether a cooling tower alternative is reasonable in this instance is a litigable issue, as the Staff has conceded. FPL also claims for the first time that -unmitigated impact not bounded by the existing mitigation discussion, and (2) cooling towers would be a proportional response to that otherwise-3 This new FPL-proposed test differs in material respects from , is found nowhere in the case law, and significantly exceeds .4 argument should be rejected. In any event, assuming for the sake of argument this were accepted as the appropriate test, Petitioners have still presented admissible contentions. newly-crafted test would be the need to establish a genuine dispute that unmitigated impacts are reasonably likely to occur. But even if such a showing were to be required at this stage, Petitioners would satisfy the requirement with evidence they cite measures for the Cooling Canal System (CCS) are not working as intended.5 Therefore, when viewed in a light most favorable to 3 4 WildEarth Guardians v. Jewellwhich alternatives the agency must discuss, and the extent to which it must 5 Request for Hearing and Petition to Intervene Submitted by Friends of the Earth, Natural Resources Defense Council, and Miami Waterkeeper (Aug. 1, 2018) ()
3 Petitioners,6 as the evidence must be for purposes of admissibility, the impacts FPL claims are mitigated must be assumed to be -unmitigated. Since effective preventative measures must be assumed not to be in place, these unmitigated impacts would be . Nothing more is required of Petitioners at this stage in the proceeding other than to demonstrate this genuine dispute.7 proposed requirement, i.e., that otherwise-unmitigated impacts are asserts that CCS impacts will be mitigated; but Petitioners evidence indicates they will not. Again, Petitioners have proposed test by demonstrating a genuine dispute. at 26 n. 113Intervene at 29 (Aug. 1, 2018) (SACE Petition) (asserting that mechanical draft cooling towers adverse impacts of Petition at SACE Petition at 30 (citing expert report of Bill Powers for the proposition that continued concentration of salt in the CCS by water into the CCS to maintain salinity below 34 psu). 6 S. Nuclear Operating Co. (Vogtle Nuclear Generating Station, Units 3 and 4), LBP-10-1, 71 N.R.C. 165, 179 (2010). 7 ng mitigation measures are sufficient does not negate the genuine dispute between assertion that the mitigation measures are effective 4 Though Petitioners reject the notion that the question of proportionality is a threshold question for purposes of admissibility,8 even if it were Petitioners have demonstrated that a discussion of the cooling tower alternative is required under NEPA and Part 51. To begin with, the ER admits that the current impacts are significant enough to require discussion of mitigation alternatives: the ER discusses existing measures to mitigate impacts from continued operation of the CCS. Petitioners show that the cooling tower alternative is reasonable and feasible alternative se-. Under these circumstances, Petitioners have met any conceivable proportionality test. FPL also asserts a new legal argument determine the best mitigation measures for a potential empirical demonstration of the effectiveness of a mitigation measure is not required to satisfy 9 But the cases cited by FPL relate to merits decisions on the adequacy of discussions of alternatives in two environmental assessments, and thus are inapplicable to the legal question raised here: whether FPL has violated NEPA and NRC implementing regulations by completely omitting consideration of a reasonable mitigation alternative, mechanical draft cooling towers. Even appropriate range of alternatives.10 Nothing in the case law supports FPLNEPA is satisfied as 8 FPL fails to cite a single case where a contention was found inadmissible for failure to address the so-called proportionality requirement. 9 Response at 6 (citing Fla. Power & Light Co. (Turkey Point Units 3 and 4), CLI-16-18, 84 NRC 167, 173 (2016) and Crow Butte Res., Inc. (License Renewal for the In Situ Leach Facility, Crawford, Neb.), CLI-18-08, 88 NRC __, __ (Nov. 29, 2018) (slip op. at 9-11). 10 Id. (emphasis in original).
5 11 To the contrary, the possible mitigation measures . . . neither the agency nor other interested groups and individuals can properly evaluate the severity of the adverse effects12 As the can be fully remedied by, for example, an inconsequential public expenditure is certainly not as serious as a similar effect that can only be modestly ameliorated through the commitment of vast public and private re13 Any perception that the availability of alternatives is inextricably tied to evaluating the seriousness of the adverse impacts is inconsistent with allowing the applicant to arbitrarily limit the alternatives considered in the ER. NEPA requires For the foregoing reasons, tharguments in response to the Staffcontentions for further proceedings. 11 Response at 67 (emphasis added). 12 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 352 (1989) (emphasis added). 13 Id.
6 Respectfully submitted, ___/signed electronically by/__ Diane Curran Harmon, Curran, Spielberg, & Eisenberg, L.L.P. 1725 DeSales Street N.W., Suite 500 Washington, D.C. 20036 240-393-9285 dcurran@harmoncurran.com Counsel to SACE ___/signed electronically by/__ Richard Ayres 2923 Foxhall Road, N.W. Washington, D.C. 20016 202-744-6930 ayresr@ayreslawgroup.com Counsel to Friends of the Earth ___/signed electronically by/__ Geoffrey H. Fettus NATURAL RESOURCES DEFENSE COUNCIL 1152 I Street, N.W., Suite 300 Washington, D.C. 20005 202-289-2371 gfettus@nrdc.org Counsel to Natural Resources Defense Council ___/signed electronically by/__ Professor Ken Rumelt Vermont Law School 164 Chelsea Street, PO Box 96 South Royalton, VT 05068 802-831-1000 krumelt@vermontlaw.edu Counsel to Friends of the Earth 7 ___/signed electronically by/__ Kelly J. Cox Miami Waterkeeper 2103 Coral Way, 2nd Floor Miami, FL 33145 (305) 905-0856 kelly@miamiwaterkeeper.org Counsel to Miami Waterkeeper January 15, 2019 8 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD _____________________________________ ) In the Matter of ) Florida Power and Light Company ) Docket Nos. 50-250/251-SLR Turkey Point Units 3 and 4 ) _____________________________________) CERTIFICATE OF SERVICE I certify that on January 15, 2019, I posted copies of the foregoing TO COOLING TOWER CONTENTIONS ___/signed electronically by/__ Geoffrey H. Fettus