ML24302A321
| ML24302A321 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 10/28/2024 |
| From: | Curran R, Joseph Lopez, Webster R Law Office of Richard Webster, Miami Waterkeeper, Stetson University, College of Law |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| ASLBP 24-981-01-SLR-BD01, RAS 57170, 50-250-SLR-2, 50-251-SLR-2 | |
| Download: ML24302A321 (0) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIONBEFORE THE COMMISSION
In the Matter of Docke Nos. 50-250-SLR-2 &
50-251-SLR-2 FLORIDA POWER & LIGHT COMPANY Turkey Point Nuclear Generating Station, October 28, 2024 Unit Nos. 3 and 4 Subsequent License Renewal Application
MIAMI WATERKEEPERS REPLY IN SUPPORT OF PETITION FOR REVIEW OF LBP-24-08
Jaclyn Lopez Rachael Curran Jacobs Public Interest Law Clinic for Jacobs Public Interest Law Clinic for Democracy and the Environment Democracy and the Environment Stetson University College of Law Stetson University College of Law 1401 61st Ave. S., 1401 61st Ave. S.,
Gulfport, FL 33707 Gulfport, FL 33707 727-490-9190 727-537-0802 jmlopez@law.stetson.edu rcurran1@law.stetson.edu
Richard Webster Law Office of Richard Webster 133 Wildwood Avenue Montclair, NJ 07043 (202)-630-5708 rwebster463@gmail.com
Counsel for Miami Waterkeeper
TABLE OF CONTENTS
I. INTRODUCTION............................................................................................................ 1 II. PROCEDURAL BACKGROUND AND STANDARD OF REVIEW................................ 1 III. ARGUMENT.................................................................................................................. 2
A. New information regarding groundwater contamination since the 2023 DSEIS has rendered the alternatives analysis obsolete under NEPA............................ 3
B. NRC Staff did not disclose its flawed groundwater methodology until the 2024 FSEIS.................................................................................................................... 4
C. Miami Waterkeepers minor formatting nonconformity is an inadvertent, harmless error that should not preclude review................................................ 5 IV. CONCLUSION............................................................................................................... 5
i TABLE OF AUTHORITIES
Cases Duke Energy Co. (Oconee Nuclear Station, Units 1, 2 & 3), CLI-99-11, 49 NRC 328 (1999).............................................................................................................................. 1, 2 Florida Power & Light (Turkey Point Nuclear Generating Station, Unit Nos. 3 and 4),
LPB-24-08 (2024)1 Tennessee Valley Authority (Clinch River Nuclear Site Early Site Permit Application),
ASLBP No. 17-954-01-ESP-BD01, 86 NRC 138 (2017).................................................... 1
Rules
Changes to Adjudicatory Process, 69 Fed. Reg. 2182 (Jan. 14, 2004).............................. 5 Rules of Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, 1986 WL 328108 (June 30, 1986)......................................................... 1
Regulations 10 C.F.R. § 2.304................................................................................................................. 5
Miscellaneous Univ. of Miami Rosenstiel School, The Tritium Laboratory, Procedures and Standards, Tritium, https://tritium.earth.miami.edu/analytical-services/procedures-and-standards/tritium/index.html............................................................................................ 4
ii I. INTRODUCTION Pursuant to 10 C.F.R. § 2.341(b)(3), Petitioner Miami Waterkeeper files this
reply to the Answers in opposition filed by that the Nuclear Regulatory Commission Staff (NRC Staff) and the Florida Power and Light Company (FPL).
II. PROCEDURAL BACKGROUND AND STANDARD OF REVIEW At issue in this appeal are new and amended contentions concerning groundwater and climate change impacts submitted after the NRC issued its Final
Supplemental Environmental Impact Statement (2024 FSEIS). The 2024 FSEIS contained information not contained within the DSEIS, necessarily so as to moot a prior, admitted contention of omission. The Board, in LPB-24-08, erroneously did not
admit any of the new or amended contentions based on new evidence obtained since the Draft Supplemental Environmental Impact Statement (2023 FSEIS).
Petitioner does not have to prove its contentions at the admissibility stage.1 Nor
does the Board adjudicate disputed facts at this juncture.2 As the Commission explained
in proposing what became § 2.309(f), the presiding officers job is to determine whether the information presented is sufficient to prompt a reasonable mind to inquire
further with regard to the validity of the contention, not to rule on the validity of the contention.3
The purpose of 10 C.F.R. § 2.309(f) is to relieve Boards of the duty to hold hearings on vague and unsubstantiated claims.4 However, as the Commission has stated
forcefully, the contention rule should not be turned into a fortress to deny intervention,5 but rather used to require at least some minimal factual and legal
foundation for contentions.6 A Board ought not reject the contentions of petitioners
1 Tennessee Valley Authority (Clinch River Nuclear Site Early Site Permit Application), ASLBP No. 17-954-01-ESP-BD01, 86 NRC 138, 150 (2017).
2 Id. at 151 (citing AmerGen Energy Co. (Oyster Creek Nuclear Generating Station), LBP-06-22, 64 NRC 229, 244 (2006)).
3 Rules of Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, 1986 WL 328108 (June 30, 1986), at *3.
4 Duke Energy Co. (Oconee Nuclear Station, Units 1, 2 & 3), CLI-99-11, 49 NRC 328, 338 (1999)
(Licensing boards need not hear contentions that appeared to be based on little more than speculation.)
5 Oconee, 49 N.R.C. at 335 (quoting Peach Bottom, ALAB-216, 8 AEC 13, 21 (1974)).
6 Clinch River, 86 NRC at 150 (quoting Oconee, CLI-99-11, 49 NRC at 334).
1 who, after reviewing all relevant licensing documents, have isolated specific issues they dispute and wish to litigate.7
Because each of Petitioners new and amended contentions met the good cause
standard and presented a genuine dispute regarding discrete material issues, Miami Waterkeeper sought review of the Boards order denying admission of the new and amended contentions, citing robust factual support for its claims, including a 44-page expert report by hydrologist Dr. William Nuttle8 and a Government Accountability
Office report containing new site-specific information.
NRC Staff and FPLs answers in opposition to Miami Waterkeepers petition for review contain several errors in law and fact that Miami Waterkeeper addresses in turn.
III. ARGUMENT Miami Waterkeepers new and amended contentions in light of the updated 2024 FSEIS concern groundwater impacts and climate change impacts throughout the
renewal period.
The Board failed to recognize the essence of the groundwater contentions, that reliance on the retraction of the hypersaline plume and regulatory requirements associated with it makes the assumption that the saline plume will behave in the same
way as the hypersaline plume. Miami Waterkeeper contends that newly discovered evidence proves this assumption is false. Thus, Miami Waterkeeper has raised a timely
material dispute on this issue.
Miami Waterkeeper also submitted new climate change contentions based on new site-specific information related to future climate change impacts within the
renewal period. Turkey point is 25 miles from Miami, a population center of over six million people. This area is subject to increasingly intense storms compounded by climate change and sea level rise. In dismissing these contentions, the board focused on
current safety, but the National Environmental Policy Act (NEPA) demands analysis on
7 Oconee, 49 NRC at 337.
8 See Expert Report of William Nuttle, Ph.D., PEng (May 8, 2024), (hereinafter May 2024 Nuttle Report)
2 potential severe accidents throughout the period of extended operation. This is a clear error of law. These are matters of compelling public interest that must be resolved.
A. New information regarding groundwater contamination since the 2023 DSEIS has rendered the alternatives analysis obsolete under NEPA.
NRCs references to the five-year-old 2019 Final Supplemental Environmental Impact Statement (2019 FSEIS) are the extent of the no-action alternative analysis in
the 2023 DSEIS and 2024 FSEIS. This is wholly inadequate given new information in the 2024 FSEIS as well as new information, including county tritium data and an expert
report that Miami Waterkeeper submitted to NRC in response to the 2024 FSEIS. NRC Staff complains that Miami Waterkeeper merely pointed to language in the 2019 FSEIS having to do with the impact of the no-action alternative on terrestrial resources and not on groundwater quality without further explanation.9 But no further explanation was
necessary. As Miami Waterkeeper pointed out in its petition for review, if information, like NRCs groundwater analysis, changes, so too must the comparison of alternatives to
the operation that causes those groundwater impacts. Instead of doing so, NRC arbitrarily relied on language in a five-year old no action alternatives analysis from an environmental review that did not contemplate the groundwater analysis that the 2024
FSEIS just included. The lack of an updated alternatives analysis makes the 2024 FSEISs newly included groundwater analysis, included to moot an admitted contention, a mere paper exercise that bypasses the heart of NEPA. Thus, while the more extensive
groundwater analysis in the 2024 FSEIS may have mooted the contention of omission prior to hearing, it did not obviate the need to perform a NEPA alternatives analysis that
considered that new information and did not cure the NEPA deficiency, giving rise to Miami Waterkeepers new contentions that should have been admitted so that Miami Waterkeeper could prove them at hearing.
As NRC Staff points out, Miami Waterkeeper has previously tried and failed to
9 NRC Staff Answer at 7.
3 bring groundwater contentions to the 2023 DSEIS related to the hypersaline plume.
However, Miami Waterkeeper does not seek to relitigate previously denied contentions, as these groundwater contentions have a new and materially different basis. For
instance, it was not until Miami Waterkeeper was able to obtain tritium data from Miami-Dade County that it and its expert could clearly show a material dispute. NRC Staff would have the Commission establish a once and done contention admission
standard, where a previously denied contention can never be revived given new information, that does not exist in NRC rules.
That new information, contrary to NRC Staffs assertion,10 could not have been
obtained prior to the November 7, 2023 deadline for hearings. Miami Waterkeeper only found out that Miami-Dade County was collecting tritium data in April of 2024. Miami
Waterkeeper asked Miami-Dade County for this information on April 18, 2024 and Miami-Dade County e-mailed the data on April 29, 2024. Even if Miami Waterkeeper were to learn of the existence of this data earlier, the last sampling data from the county
relied upon by Miami Waterkeeper in support of its contention is dated October 3, 2023.11 Miami-Dade County contracts with the University of Miamis Rosenstiel School
of Marine Sciences tritium lab to process its samples. It takes a minimum of six weeks for a sample to be processed and to compute measurements.12 Six weeks from October
3, 2023 is November 14, 2023, a full week after the November 7, 2023 deadline.
B. NRC Staff did not disclose its flawed groundwater methodology until the 2024 FSEIS.
FPL and NRC Staff claim that the 2024 FSEIS reached the exact same conclusion on groundwater quality as the 2023 DSEIS using the exact same technical analysis and methodology.13 This is incorrect, as evidenced by their
inconsistent position in the Joint Unopposed Motion to Dismiss the
10 NRC Staff Answer at 14.
11 Figure 7, May 2024 Nuttle Report.
12 Univ. of Miami Rosenstiel School, The Tritium Laboratory, Procedures and Standards, Tritium, https://tritium.earth.miami.edu/analytical-services/procedures-and-standards/tritium/index.html.
13 NRC Staff Answer at 18.
4 Contention of Omission which explains [t]he 2024 FSEIS expressly presents an explanation for the conclusion that Reformulated Contention 1 alleges was omitted from the 2023 DSEIS.14
Indeed, NRC provided several pages of new analysis to substantiate the same impact determination and moot out the contention of omission previously admitted, and nowhere does FPL and NRC Staff cite to where the hypersaline plume methodology
was previously provided to the public, because it was not.
C. Miami Waterkeepers minor formatting nonconformity is an inadvertent, harmless error that should not preclude review.
FPL complains that Miami Waterkeepers petition does not conform with
formatting requirements of 10 C.F.R. § 2.304 and that the Commission should therefore reject the Petition on its face.15 Contrary to FPLs assertion, Miami Waterkeepers
petition is double-spaced; however, its margins on three sides were inadvertently less
than one inch. Adjusting for this harmless error, the petition would have been 26 and a half pages in length rather than the 25-page limit, and effectively amounts to Miami Waterkeepers conclusion section. Miami Waterkeeper cautions the Commission against
adopting FPLs ultra-formulistic approach and denying Miami Waterkeeper review on this basis, particularly in light of NRCs core principle of open, understandable, and accessible processes meant to protect the public interest.16
IV. CONCLUSION Miami Waterkeeper submits that each of its new and amended contentions were
supported with ample facts to indicate that further inquiry at a hearing is appropriate.
Respectfully submitted,
Signed (electronically) by Rachael Curran Jacobs Public Interest Law Clinic for Democracy and the Environment Stetson University College of Law 1401 61st Ave. S.,
14 Joint Unopposed Motion to Dismiss the Contention of Omission filed April 5, 2024 at 2.
15 FPL Answer at 5.
16 Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2182 (Jan. 14, 2004).
5 Gulfport, FL 33707 727-537-0802 rcurran1@law.stetson.edu Executed in Accord with 10 C.F.R. § 2.304(d)
Jaclyn Lopez Jacobs Public Interest Law Clinic for Democracy and the Environment Stetson University College of Law 1401 61st Ave. S.,
Gulfport, FL 33707 727-490-9190 jmlopez@law.stetson.edu
Executed in Accord with 10 C.F.R. § 2.304(d)
Richard Webster Law Office of Richard Webster 133 Wildwood Avenue Montclair NJ 07043 (202)-630-5708 rwebster463@gmail.com
Counsel for Miami Waterkeeper Dated October 28, 2024
6 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSIONBEFORE THE COMMISSION
In the Matter of Docket Nos. 50-250-SLR-2 &
50-251-SLR-2 FLORIDA POWER & LIGHT COMPANY Turkey Point Nuclear Generating Station, October 28, 2024 Unit Nos. 3 and 4 Subsequent License Renewal Application
CERTIFICATE OF SERVICE
Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, copies of the foregoing Miami Waterkeepers Reply in Support of Petition for Review of LBP-24-08 were served by the Electronic Information Exchange (the NRCs E-Filing System) to all parties of record in the above-captioned docket.
Signed (electronically) by Rachael Curran Jacobs Public Interest Law Clinic for Democracy and the Environment Stetson University College of Law 1401 61st St. S.
Gulfport, FL 33707 727-537-0802 rcurran@law.stetson.edu Counsel for Miami Waterkeeper Dated October 28, 2024