ML24095A314
| ML24095A314 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 04/04/2024 |
| From: | Jeremy Wachutka NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| ASLBP 24-981-01-SLR-BD01, RAS 56982, 50-250-SLR-2, 50-251-SLR-2 | |
| Download: ML24095A314 (0) | |
Text
April 4, 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)
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
Pursuant to 10 C.F.R. § 2.323 and the Atomic Safety and Licensing Boards Initial
Scheduling Order, 1 the U.S. Nuclear Regulatory Commission Staff hereby files, as Part 1, below,
a timely unopposed motion to dismiss Reformulated Contention 1 as moot, in which Miami
Waterkeeper and Florida Power & Light Company (FPL) both join. As Part 2, below, the Staff
and Miami Waterkeeper provide their position regarding the opportunity to file new or amended
contentions in this proceeding notwithstanding the dismissal of Reformulated Contention 1,
which position FPL does not oppose.
In LBP-24-3, the Board granted the hearing request filed by Miami Waterkeeper,
reformulating and admitting as a contention of omission a portion of Contention 1.2 As
reformulated, Contention 1 alleges that the Staffs 2023 Draft Site-Specific Environmental Impact
1 Initial Scheduling Order at 2 (Mar. 26, 2024) (unpublished) (ML24086A446) (Initial Scheduling Order).
2 Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 & 4), LBP 03, 99 NRC __, __ (Mar.
7, 2024) (slip op. at 21- 22).
Statement (2023 DSEIS)3 did not include an explanation for one of the conclusions therein.4
Thereafter, the Staff issued its Final Site-Specific Environmental Impact Statement (2024
FSEIS), which updates the 2023 DSEIS in response to public comments on the 2023 DSEIS
and information available since the issuance of the 2023 DSEIS. 5 The 2024 FSEIS expressly
presents an explanation for the conclusion that Reformulated Contention 1 alleges was omitted
from the 2023 DSEIS.6 Because the alleged omission has been cured, the parties agree that
Reformulated Contention 1 is moot and should be dismissed.
Additionally, the position of the Staff and Miami Waterkeeper, which is unopposed by
FPL, is that, if the Board were to dismiss Reformulated Contention 1 before the deadline in its
Initial Scheduling Order for the filing of new or amended contentions based on the 2024 FSEIS,
then there would still be an opportunity to file new or amended contentions until that deadline.
This is because the deadlines in the Initial Scheduling Order for filing dispositive motions and for
filing new or amended contentions overlap and because there is a reasonable prospect that new
or amended contentions will be filed consistent with the Initial Scheduling Order.
I. Reformulated Contention 1 should be Dismissed as Moot because the Allegedly Omitted Information in the 2023 DSEIS is Expressly Presented in the 2024 FSEIS
In LBP-24-3, the Board found that Miami Waterkeeper had standing and had proposed
one admissible contention and, therefore, granted the hearing request. 7 Reformulated
Contention 1, as narrowed and admitted by the Boardas a contention of omissionasserts
the following :
3 NUREG-1437, Supplement 5a, Second Renewal, 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 (Aug. 2023) (ML23242A216) (2023 DSEIS).
4 Turkey Point, LBP 03, 99 NRC at __ (slip op. at 22).
5 NUREG-1437, Supplement 5a, Second Renewal, 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, at 1- 3- 1-4 (Mar. 29, 2024) (ML24087A061) (2024 FSEIS).
6 Compare 2023 DSEIS at 2-31 with 2024 FSEIS at 2- 38- 2-40.
7 Turkey Point, LBP 03, 99 NRC at __ (slip op. at 1, 11).
The 2023 [DSEIS] fails to take a hard look at impacts to groundwater quality because it does not include an explanation for the Staffs conclusion that the uncertainty in retracting the hypersaline groundwater plume could result in moderate impacts.[ 8]
The conclusion referenced in Reformulated Contention 1 is found on page 2- 31 of the 2023
DSEIS, and states that :
because some uncertainty exists about whether FPL will be able to retract the hypersaline groundwater plume to within the FPL site boundary prior to the [subsequent license renewal] term, the impact could be MODERATE.[ 9]
On March 29, 2024, the Staff issued the 2024 FSEIS.10 Therein, the conclusion
referenced in Reformulated Contention 1 has been significantly expanded to state, in part, the
following:
Under the scenario of the hypersaline groundwater plume not expanding overall, but still extending outside of the Turkey Point Units 3 and 4 site boundary due, in part, to the [cooling canal system (CCS)] and the continuing operation of Turkey Point Units 3 and 4, the impacts to groundwater quality will generally be similar to the current impacts, which are thoroughly discussed in this site-specific EIS and the 2019 [final supplemental environmental impact statement]. Stated another way, as long as the hypersaline groundwater plume continues to extend outside of the site boundary due, in part, to the CCS and the continuing operation of Turkey Point Units 3 and 4, current groundwater quality impacts will persist. The NRC staff concludes that the appropriate impact determination for groundwater quality under this scenario is MODERATE, which means that environmental effects are sufficient to alter noticeably, but not to destabilize, important attributes of the resource. This impact determination is appropriate because the Biscayne Aquifer is classified as Class G -
III (nonpotable use, with [total dissolved solids] levels of 10,000 mg/L or greater) beneath the Turkey Point site and CCS, but Class-II (potable) to the west of the CCS. Therefore, the extension
8 Id. at __ (slip op. at 22). The Board framed this as a contention of omission as demonstrated by the Boards use of the terms omission and contention of omission as part of its discussion of Contention 1.
See id. at __ (slip op. at 18, 21). See also Initial Scheduling Order at 1 (On March 7, 2024, we granted Miami Waterkeeper s hearing request and admitted a contention of omission challenging the discussion of groundwater quality impacts in the Staffs Draft Supplemental Environmental Impact Statement.).
9 2023 DSEIS at 2- 31.
10 Board Notification (Mar. 29, 2024) (ML24089A151) (notifying the Board and the parties that the 2024 FSEIS was issued on March 29, 2024).
of the hypersaline groundwater plume (defined as groundwater with a chloride concentration greater than 19,000 mg/L) beyond the site boundary has altered noticeably the groundwater quality of the potable portion of the Biscayne Aquifer with respect to the designated groundwater use classification. Additionally, westward migration of the saltwater interface, which, as discussed in this site-specific EIS and the 2019 [final supplemental environmental impact statement], has historically been attributed, in part, to CCS hypersaline discharges, has also affected the aquifer. However, the hypersaline groundwater has not destabilized the aquifer as demonstrated by the facts that the use of the aquifer by existing users has not been affected and that remediation efforts have demonstrated that the hypersaline groundwater plume is subject to retraction. This determination is consistent with Section 4.5.1.2 of the 2019 [final supplemental environmental impact statement],
which states that the plume of hypersaline water from the CCS has measurably altered and degraded groundwater quality in the lower part of the Biscayne Aquifer beyond the CCS and Turkey Point property. It is also consistent with the notices of violation from both Miami-Dade County and [the Florida Department of Environmental Protection (FDEP)] related to groundwater quality impacts from the presence of hypersaline groundwater west of the CCS, which led to the 2015 Miami-Dade County Consent Agreement and the 2016 FDEP Consent Order, respectively.
Again, however, given the requirement of the 2015 Miami-Dade County Consent Agreement, the 2016 FDEP Consent Order, and the [National Pollutant Discharge Elimination System] permit to achieve an average annual CCS salinity of 34 [practical salinity unit] or less and the continued enforcement of this requirement by State and local regulators, the staff finds that, similar to the impact from the CCS now, it is unlikely that the continued operations of Turkey Point Units 3 and 4 during the [subsequent license renewal] term will contribute further to plume expansion. [ 11]
Based on this and the other language in the new Conclusion portion of Section 2.8.3 of the
2024 FSEIS, 12 the required explanation alleged to be omitted by Reformulated Contention 1 is
now expressly presented in the 2024 FSEIS.
Per the NRCs contention- migration tenet, 13 Reformulated Contention 1, which originally
challenged the 2023 DSEIS, is now a challenge to the 2024 FSEIS. Further, as the Commission
11 2024 FSEIS at 2- 39.
12 Id. at 2 2-40.
13 Crow Butte Res., Inc. (In Situ Leach Facility, Crawford, Neb.), CLI 17, 82 NRC 33, 42 n.58 (2015);
see also Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), LBP 3, 89 NRC 245, 272 & n.44 (2019) (acknowledging this tenet).
has explained, where a contention alleges the omission of particular information, such as
Reformulated Contention 1, and the information is provided in a subsequent environmental
document, such as the 2024 FSEIS, the contention is moot.14 Contentions of omission rendered
moot by a subsequent environmental document are subject to dismissal.15 Accordingly, because
the explanation alleged to be missing from the 2023 DSEIS is expressly presented in the
subsequent 2024 FSEIS, Reformulated Contention 1 should be dismissed as moot.
II. The Staff and Miami Waterkeeper Position regarding Opportunity to File New or Amended Contentions
In its Initial Scheduling Order, the Board established a hearing schedule with the
deadline for dispositive motions regarding Reformulated Contention 1 set at 30 days after the
issuance of the 2024 FSEIS and with answers to these dispositive motions due 20 days
thereafter. 16 The hearing schedule also provides an overlapping deadline of 40 days after the
issuance of the 2024 FSEIS for the filing of new or amended contentions based on the 2024
FSEIS. 17 Because these deadlines for filing dispositive motions and for filing new or amended
contentions overlap and because there is a reasonable prospect that new or amended
contentions will be filed consistent with the Initial Scheduling Order, the position of the Staff and
Miami Waterkeeper, which is unopposed by FPL, is that, if the Board were to dismiss
Reformulated Contention 1 before the deadline in its Initial Scheduling Order for the filing of new
or amended contentions, then there would still be an opportunity to file new or amended
contentions until that deadline. This is consistent with precedent in which the Commission
rejected a Board determination to hold a proceeding open on the basis that new information
14 See, e.g., USEC, Inc. (American Centrifuge Plant), CLI-06-9, 63 NRC 433, 444 (2006); Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2), CLI-02-28, 56 NRC 373, 383 (2002).
15 See, e.g., Fla. Power & Light Co. (Turkey Point Units 6 & 7), ASLB Memorandum and Order (Granting FPLs Motion to Dismiss Joint Intervenors Contention 2.1 and CASEs Contention 6 as Moot), at 5 (Jan.
26, 2012) (ML12026A438) (unpublished).
16 Initial Scheduling Order at 2.
17 Id.
triggering fresh contentions might appear later in the Staffs final review documents but did not
express disapproval of that same Board holding the proceeding open when a scheduling order
gave the petitioner a short amount of time to file new contentions after there were no longer any
contentions pending before the Board. 18
III. Conclusion
The Parties agree that, because Reformulated Contention 1 has been rendered moot by
the 2024 FSEIS, it should be dismissed. 19 Additionally, the position of the Staff and Miami
Waterkeeper, which FPL does not oppose, is that if Reformulated Contention 1 were to be
dismissed before the deadline in the Boards Initial Scheduling Order for filing new or amended
contentions based on the 2024 FSEIS, then there would still be an opportunity to file new or
amended contentions until that deadline.
Respectfully submitted, 20
/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 Dated April 4, 2024 Email: Jeremy.Wachutka@nrc.gov
18 Va. Elec. Power Co. d/b/a/ Dominion Va. Power and Old Dominion Elec. Coop. (North Anna Power Station, Unit 3), CLI- 12-14, 75 NRC 692, 694- 695, 699- 701 (2012). See also Crow Butte Res., Inc. (In Situ Leach Facility, Crawford, Neb.), LBP- 23- 01, 97 NRC __, __ (Jan. 5, 2023) (slip op. at 7) ([W]hen all admitted contentions have been resolved, either through licensing board rulings or through party actions, and when there is no reasonable prospect that any new litigable issues will be timely raised, there is no basis for continuing the adjudicatory proceeding.).
19 Upon dismissal, any mandatory disclosure obligations associated with Reformulated Contention 1 would end. See 10 C.F.R. § 2.336(d).
20 Miami Waterkeeper and FPL have authorized the Staff to file this joint motion on their behalf.
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)
Consultation Certification
Pursuant to 10 C.F.R. § 2.323(b), I certify that the NRC Staff made a sincere effort to contact the
other parties in this proceeding and resolve the issues raised in the above motion. As discussed
above, all parties have either joined or not opposed all portions of this motion and have
authorized the Staff to file this motion on their behalf.
/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 Dated April 4, 2024 Email: Jeremy.Wachutka@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 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, dated April 4, 2024 , have been served upon
the Electronic Information Exchange (the NRCs E-Filing System), in the captioned proceeding,
this 4th day of April 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