ML23331A971
| ML23331A971 | |
| Person / Time | |
|---|---|
| Site: | Turkey Point  |
| Issue date: | 11/27/2023 |
| From: | Bills C Miami Waterkeeper |
| To: | NRC/SECY/RAS |
| SECY RAS | |
| References | |
| Download: ML23331A971 (0) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
BEFORE THE SECRETARY
In the Matter of: )
)
FLORIDA POWER & LIGHT COMPANY ) Docket No. 50-250
) Docket No. 50-251 (Turkey Point Nuclear Generating Station, Unit Nos. 3 )
and 4) ) November 27, 2023
)
(Subsequent License Renewal Application)
REQUEST FOR HEARING AND PETITION TO INTERVENE SUBMITTED BY MIAMI WATERKEEPER
PRELIMINARY STATEMENT
Pursuant to 10 C.F.R. § 2.309 and the Notice of License Renewal Application;
Opportunity to Request a Hearing and to Petition for Leave to Intervene, 88 Fed. Reg. 62,110,
(Sept. 8, 2023), Biscayne Bay Waterkeeper, Inc. d/b/a Miami Waterkeeper (Miami
Waterkeeper) (Petitioner) hereby submits this hearing request and petition to intervene in the
Nuclear Regulatory Commissions (NRC or the agency) subsequent relicensing proceeding
that will determine whether Turkey Point Nuclear Generating Station, Unit Nos. 3 and 4 (Turkey Point), will be licensed to operate until 2052 and 2053, respectively.1 Florida Power &
Light Company (Applicant or FPL) owns and operates Turkey Point. These units have
operated since the early 1970s adjacent to the Florida Everglades, Everglades National Park,
1 By Order of Secretary of the Commission dated November 6, 2023, Miami Waterkeeper was granted an extension and leave to file a Petition to Intervene on or before November 27, 2023.
1 Biscayne Bay, Biscayne National Park, the Florida Keys National Marine Sanctuary, and several
population centers on South Floridas Atlantic coast.
STANDING
Legal standards
Under the Atomic Energy Act (AEA), the NRC must grant a hearing on a license
application upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding.2 To that end, a petitioner must
provide the Commission with information regarding (1) the nature of the petitioners right
under the governing statutes to be made a party; (2) the nature of the petitioners property,
financial, or other interest in the proceeding; and (3) the possible effect of any decision or order
on the petitioners interest.3 The NRC generally uses judicial concepts of standing in
interpreting this regulation.4 Thus, a petitioner may intervene if it can specify facts showing
that (1) it has suffered or will suffer a distinct and palpable harm constituting injury-in-fact
within the zone of interests arguably protected by the governing statutes, (2) the injury is fairly
traceable to the action being challenged, and (3) the injury will likely be redressed by a favorable
2 42 U.S.C. § 2239(a)(1)(A).
3 Entergy Nuclear Vermont Yankee, L.L.C., & Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), 60 N.R.C. 548, 552 (2004) (citing 10 C.F.R. § 2.309(d)(1)).
4 Entergy Nuclear Vermont Yankee, 60 N.R.C. at 552.
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determination.5 In determining whether a petitioner has met the requirements for establishing
standing, the petition is to be construed in favor of the petitioner.6
In certain licensing proceedings, the Commission relies on the proximity presumption,
which presumes that petitioners have standing if they reside, or otherwise have frequent contacts, within 50 miles of the nuclear facility.7 The NRC has consistently applied the
proximity presumption to license renewal proceedings, because a license renewal allows
operation of a reactor over an additional period of time during which the reactor could be subject
to the same equipment failures and personnel errors as during operations over the original period
of the license.8 An Atomic Safety and Licensing Board noted that [t]he Commission endorsed
this approach when it found no conflict between the basic requirements for standing, as applied
in the federal courts, and the NRCs proximity presumption and held that the [licensing b]oard correctly applied the proximity presumption.9
Member organizations such as Miami Waterkeeper may intervene on behalf of their
members if they can demonstrate that the licensing action will affect at least one of its
5 Id. at 552-53.
6 Id. at 553 (citing Institute of Technology (Georgia Tech Research Reactor, Atlanta, Georgia),
CLI-95-12, 42 N.R.C. 111, 115 (1995)).
7 See, e.g., PPL Bell Bend, LLC (Bell Bend Nuclear Power Plant), CLI-10-7, 71 N.R.C. 133, 138-39 (2010); Calvert Cliffs 3 Nuclear Project, LLC, & UniStar Nuclear Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-09-20, 70 N.R.C. 911, 915-17 (2009).
8 Nextera Energy Point Beach, LLC (Point Beach Nuclear Plant, Units 1 and 2), ASLBP No. 21-971-02-SLR-01, 94 N.R.C. 1, 19 (July 26, 2021) (citing Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), LBP-12-8, 75 N.R.C. 539, 547, rev'd in part on other grounds, CLI-12-19, 76 N.R.C. 377 (2012)).
9 Id. (citing Calvert Cliffs, CLI-09-20, 70 N.R.C. at 917, 915 n.15).
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members,... identify that member by name and address, and... show that it is authorized by that member to request a hearing on his or her behalf.10 Miami Waterkeeper has supplied
declarations from members who reside within 50 miles of Units 3 and 4. Each declaration
describes the economic, aesthetic, and environmental interests they wish to safeguard and the
harms that the relicensing of Units 3 and 4 without full compliance with the law will pose to
those interests.11 Member Declarants support this Petition and have authorized Miami
Waterkeeper to intervene in this proceeding and request a hearing on their behalf.12
Standing of Miami Waterkeeper
Miami Waterkeeper is a Florida non-profit organization whose mission is to protect and
preserve the Biscayne Bay watershed. Miami Waterkeeper achieves its mission through public
education, advocacy for sound public policies, and participation in legal and administrative forums.13 Miami Waterkeeper is a member of the Waterkeeper Alliance, an international
organization uniting more than 190 Waterkeeper affiliates across the world. Miami Waterkeeper
has over 500 members, many of whom use, enjoy, and reside near the Biscayne Bay watershed
and its tributaries.
10 Entergy Nuclear Vermont Yankee, 60 N.R.C. at 553.
11 Declaration of Rachel Silverstein, Ph.D. (Exhibit 1); Declaration of Philip Stoddard, Ph.D.
(Exhibit 2).
12 Declaration of Rachel Silverstein, Ph.D. (Exhibit 1); Declaration of Philip Stoddard, Ph.D.
(Exhibit 2).
13 Declaration of Rachel Silverstein, Ph.D. (Exhibit 1) at ¶ 2.
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In support of the representational standing of its members, Miami Waterkeeper submits
the declarations of Rachel Silverstein, Ph.D. (Exhibit 1) and Philip Stoddard, Ph.D. (Exhibit 2).
As Member Declarants explain, they will suffer (or will be under threat of suffering) concrete
and particularized injuries from the continued operations of Units 3 and 4 operations without adequate analysis of threatened environmental harms.14
Dr. Silverstein lives approximately 30 miles from Turkey Point. Dr. Silverstein is the
Executive Director and a member of Miami Waterkeeper. She has authorized Miami
Waterkeeper to represent her interests in the Turkey Point subsequent license renewal
proceeding. Dr. Silverstein holds a Ph.D. in the Department of Marine Biology and Fisheries
from the University of Miamis Rosenstiel School for Marine and Atmospheric Science. In her
role at Miami Waterkeeper, Dr. Silverstein directs teams to monitor and test water quality,
investigate pollution problems, educate the public, enforce state and federal environmental laws,
and work with civic leaders to support our mission. Dr. Silverstein enjoys boating in southern
Biscayne Bay, as well as scuba diving, snorkeling, and camping in the area. She and her family
frequently visit Everglades National Park and Florida Keys National Marine Sanctuary as well.
She plans to continue visiting South Floridas national parks and marine sanctuaries and enjoys
viewing the unique wildlife that depends on clean water and sustained freshwater flow for their
habitats and life cycles.
As a resident of Miami-Dade County, Dr. Silverstein relies on the Biscayne Aquifer as a
primary source of drinking water. Dr. Silverstein is concerned that the hypersaline plume
14 Id. at ¶¶ 7-9; Declaration of Philip Stoddard, Ph.D. (Exhibit 2) at ¶¶ 8-10.
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emanating from Turkey Points Cooling Canal System (CCS) is contaminating the Biscayne
Aquifer and threatens the areas drinking water supply. If an accident happened and a radiation
release occurred, Dr. Silversteins health and personal safety may be at risk.
Dr. Philip Stoddard is a member of Miami Waterkeeper and lives approximately 18 miles
from Turkey Point. He has authorized Miami Waterkeeper to represent his interests in this
proceeding. Dr. Stoddard previously served as Mayor of the City of South Miami, Florida. In this
role, he physically toured the Turkey Point Generating Station with FPL staff following the
Fukushima accident as part of FPLs program to assure elected officials that their own nuclear
operation was safe. During the proposed licensing of planned Turkey Point nuclear Units 6 and
7, Dr. Stoddard reviewed licensing documents and other material related to safety issues and
severe accident risks posed by the Turkey Point Generating Station; additionally, he consulted
with experts in nuclear safety and risk assessment concerning the risks of operation of the
reactors. Dr. Stoddard is particularly concerned about the lack of careful analysis of storm surge
vulnerability on cooling systems and stored fuel, and the potential for a storm-surge related
malfunction that could jeopardize the safety of him and his family.
Member Declarants therefore have standing to intervene in their own right: they have met
the requirements for injury-in-fact, causation, and redressability, and their concerns fall within
the zone of interests protected by NEPA, the AEA, and their implemen ting regulations. They
will be affected by Turkey Points proposed relicensing and failure to provide a legally adequate
environmental analysis. Member Declarants have also provided their names and addresses and
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have authorized their member organization (Miami Waterkeeper) to intervene in this proceeding on their behalf. Thus, Petitioner has standing to pursue this action.15
PROCEDURAL BACKGROUND
In October 2019, the NRC staff issued what at the time it understood to be the full site-
specific environmental review required under NEPA for subsequent license renewal (SLR) of
Turkey Point, the Generic Environmental Impact Statement for License Renewal of Nuclear
Plants, Supplement 5, Second Renewal, Regarding Subsequent License Renewal for Turkey Point Nuclear Generating Unit Nos. 3 and 4, Final Report (2019 FSEIS).16 However, on
February 24, 2022, the Commission reconsidered and issued three decisions, CLI-22-02,17 CLI-
22-03,18 and CLI-22-04,19 that revised the requirements for NRC staffs environmental reviews
in SLR proceedings. Two of these orders, CLI-22-02 and CLI-22-03, are directly relevant to
Turkey Point. In CLI-22-02, the Commission explained that because [n]either the original 1996
15 Entergy Nuclear Vermont Yankee, 60 N.R.C. at 553.
16 NUREG-1437, GENERIC ENVIRONMENTAL IMPACT STATEMENT FOR LICENSE RENEWAL OF NUCLEAR PLANTS, SUPPLEMENT 5, SECOND RENEWAL, REGARDING SUBSEQUENT LICENSE RENEWAL FOR TURKEY POINT NUCLEAR GENERATING UNIT NOS. 3 AND 4, FINAL REPORT, ADAMS Accession No. ML19078A330 (Oct. 2019).
17 Florida Power & Light Company (Turkey Point Nuclear Generating Units 3 and 4) CLI-22-02, 95 N.R.C. 26 (Feb. 24, 2022).
18 Duke Energy Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, and 3), Exelon Generating Company, LLC (Peach Bottom Atomic Power Station, Units 2 and 3), Florida Power & Light Company (Turkey Point Nuclear Generating Units 3 and 4), Nextera Energy Point Beach LLC
((Point Beach Nuclear Plant, Units 1 and 2), Virginia Electric and Power Company (North Anna Power Station, Units 1 and 2), CLI-22-03, 95 N.R.C. 40 (Feb. 24, 2022).
19 Exelon Generating Company, LLC (Peach Bottom Atomic Power Station, Units 2 and 3) CLI-22-04, 95 N.R.C. 44 (Feb. 24, 2022).
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[Generic Environmental Impact Statement (GEIS)] nor the revised 2013 GEIS analyzed the
environmental impacts of subsequent license renewal periods, therefore, the Staff did not
conduct an adequate NEPA analysis before issuing FPL licenses for the subsequent license
renewal period.20 In CLI-22-03, the Commission defined the scope of the full environmental
analysis that must be done before the NRC can issue a SLR for the two Turkey Point units.
Issues previously designated as Category 1 (generic) issues must either be addressed generically for SLR or they must be addressed on a site-specific basis.21 In addition, the NRCs analysis of
issues previously characterized as Category 2 (site-specific) issues must be revisited in light of
new research findings and information since the NRC published the 2019 FSEIS.22 Accordingly,
the Commission directed the NRC staff to leave the Turkey Point subsequent renewed licenses in
place but to modify their expiration dates to reflect the end dates of the previous renewed
licenses (i.e., July 19, 2032, for Turkey Point Unit 3 and April 10, 2033, for Turkey Point Unit
4), which the staff did on March 25, 2022. The Commission affirmed this direction in CLI 06.23 CLI-22-03 clarifies that when the applicant submits a revised environmental report
providing information on environmental impacts during the subsequent license renewal period,
20 Florida Power & Light Company (Turkey Point Nuclear Generating Units 3 and 4) CLI-22-02, 95 N.R.C. at 26, 35-36 (Feb. 24, 2022).
21 Duke Energy Carolinas, LLC et al., CLI-22-03, 95 N.R.C. at 42.
22 Id.
23 Florida Power & Light Company (Turkey Point Nuclear Generating Units 3 and 4), CLI 06, 2022 WL 18354138 (June 3, 2022).
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petitioners or intervenors will be given an opportunity to submit new or amended contentions based on new information in the revised site-specific environmental impact statement.24
Consistent with CLI-22-03, on June 9, 2022, FPL submitted Environmental Report
Supplement 2 providing a site-specific analysis of environmental impacts previously dispositioned as a Category 1.25 The NRC then issued a notice of intent to conduct a scoping
process and prepare an Environmental Impact Statement for Turkey Point on October 7, 2022.26
Petitioner Miami Waterkeeper responded with a comment letter on November 7, 2022.27 The
agency summarized Petitioners comments along with others in a Site Specific EIS Scoping
Process Summary Report for Turkey Point Nuclear Generating Unit Nos. 3 and 4.28
The NRC released a Draft Site-Specific Environmental Impact Statement (2023
DSEIS) on September 8, 2023.29 The NRC asserts that the 2023 DSEIS supplements the 2019
24 Duke Energy Carolinas, LLC et al., CLI-22-03, 95 N.R.C. 40, 41-42 (Feb. 24, 2022).
25 SUBSEQUENT LICENSE RENEWAL APPLICATION - APPENDIX E ENVIRONMENTAL REPORT SUPPLEMENT 2, ADAMS Accession No. ML22160A301 (June 9, 2022).
26 Notice of Intent to Conduct Scoping Process and Prepare Environmental Impact Statement Florida Power & Light Company Turkey Point Nuclear Generating Unit Nos. 3 and 4, Docket Nos. 50-250 & 50-251, NRC-2022-0172, 87 Fed. Reg. 61,104 (Oct. 7, 2022).
27 Comment (3) of Caroline Reiser on Notice of Intent to Conduct Scoping Process and Prepare Environmental Impact Statement Florida Power & Light Company Turkey Point Nuclear Generating Unit Nos. 3 and 4, ADAMS Accession No. ML22312A574 (Nov. 7, 2022).
28 TURKEY POINT NUCLEAR GENERATING STATION, UNITS 3 AND 4 - SUBSEQUENT LICENSE RENEWAL SITE-SPECIFIC SCOPING
SUMMARY
REPORT, ADAMS Accession No. ML23198A271 (Aug. 3, 2023).
29 NUREG-1437, SITE-SPECIFIC ENVIRONMENTAL IMPACT STATEMENT FOR LICENSE RENEWAL OF NUCLEAR PLANTS, SUPPLEMENT 5A, SECOND RENEWAL REGARDING SUBSEQUENT LICENSE RENEWAL FOR TURKEY POINT NUCLEAR GENERATING UNIT NOS. 3 AND 4, DRAFT, ADAMS Accession No. ML23242A216 (Aug. 2023) (hereinafter 2023 DSEIS).
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FSEIS Category 1 impacts and updates the 2019 FSEIS evaluation of Category 2 impacts so that
together, the 2023 DSEIS and the 2019 FSEIS evaluate, on a site-specific basis, all the
environmental impacts of the continued operation during the Subsequent License Review Term
for Turkey Point Units 3 and 4 identified in 10 C.F.R. Part 51, Subpart A, Appendix B.30
On October 27, 2023, Miami Waterkeeper emailed a letter to NRC Secretary Brooke
Poole Clark.31 In the October 27 letter, Miami Waterkeeper requested that NRC withdraw the
September 8, 2023 hearing notice, because the NRC Commissioners have ruled that the hearing
process should not begin until the environmental review process is complete. In Duke Energy
Carolinas, LLC (Oconee Nuclear Station, Units 1, 2, and 3), CLI-22-03, 95 N.R.C. 40, 42
(2022), the NRC Commissioners determined that:
[a]fter each site-specific review is complete, a new notice of opportunity for hearing limited to contentions based on new information in the site-specific environmental impact statement will be issued. This approach will not require intervenors to meet heightened pleading standards in 10 C.F.R. § 2.309(c) for newly filed or refiled contentions.
According to this decision, the NRC should not have issued the September 8 hearing notice at
all. Instead, NRC should have waited until it had finalized the 2023 site-specific EIS to issue a
hearing notice. Miami Waterkeeper therefore requested that the NR C withdraw the notice, and to
provide an explanation if the NRC did not withdraw the notice. Miami Waterkeeper requested, in
the alternative, that the NRC extend the deadline for submitting hearing requests by 60 days.
30 Id. at iii.
31 On November 1, 2023, per the request of the Commission, Miami Waterkeeeper filed the same request on NRCs electronic filing system. Miami Waterkeeper reserves the right to challenge the premature timing of the hearing notice on the ground that it is inconsistent with CLI-22-03.
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On November 6, 2023, the NRC issued an order extending the hearing granting Miami
Waterkeeper a 20-day extension to the hearing request deadline, thereby extending the deadline
until November 27, 2023. The NRC denied Miami Waterkeepers request to withdraw the
September 8, 2023 hearing notice, stating that [t]he Secretary lacks authority to direct the
withdrawal of a notice of opportunity to request a hearing published in the Federal Register.
(citing 10 C.F.R. § 2.346).
CONTENTIONS
Pursuant to 10 C.F.R. § 2.309, Petitioner set forth below the specific contentions they
seek to litigate. Each contention challenges the sufficiency of NRCs compliance with NRC
regulations and NEPA.
The 2023 DSEIS is the subject of Petitioners contentions. Each of Petitioners
contentions is within the scope of this subsequent license renewal proceeding, which is described
in Parts 51 and 54.32 A subsequent license renewal application review typically implicates issues
that fall into one of two broad areas: (i) safety/aging management issues and (ii) public
health/environmental impacts. Petitioners contentions are focused on environmental and public
health impacts.
32 See Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 N.R.C. 3, 6-13 (Jul. 19, 2001); Nuclear Power Plant License Renewal, 60 Fed. Reg.
22,461 (May 8, 1995).
11
CONTENTION I: THE 2023 DRAFT SITE-SPECIFIC ENVIRONMENTAL IMPACT STATEMENT FAILS TO TAKE A HARD LOOK AT IMPACTS TO GROUNDWATER QUALITY
- 1. Statement of the issue of law or fact to be raised or controverted (10 C.F.R. § 2.309(f)(1)(i))
The 2023 DSEIS violates NEPAs requirement to take a hard look at the environmental
impacts of the proposed action because its evaluation of environmental impacts caused by the
continued operation of cooling canal system (CCS) serving units 3 and 4 is inadequate. The
operation of the CCS, as well as remediation measures to offset its legacy of significant
environmental impacts, impart groundwater use conflicts, groundwater quality degradation, and
habitat degradation via exposure of aquatic organisms to non-radiological contaminants. These
impacts are LARGE impacts because they are clearly noticeable and destabilizing important
resources, including the Biscayne Aquifer, Floridan Aquifer, and seagrass communities in the
adjacent Biscayne Bay. Yet, NRC staff concluded that the potential for groundwater use conflicts
would be SMALL on the Biscayne Aquifer33 and MODERATE on the Upper Floridan Aquifer.34
The NRC staff also concluded that depending on FPLs success in retracting the hypersaline plume the impacts to groundwater quality would be SMALL or MODERATE.35 NRC
concluded that impacts of non-radiological contaminants on aquatic organisms would be
33 2023 DSEIS at 2-20.
34 2023 DSEIS at 2-22.
35 2023 DSEIS at 2-31.
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SMALL.36 These conclusions do not satisfy the hard look requirement because they are
unsupported by and contrary to the evidence.
- 2. Brief explanation of the basis for the contention (10 C.F.R. § 2.309(f)(ii)) and concise statement of facts or expert opinions which support Petitioners position and on which Petitioner intends to rely at hearing (10 C.F.R. § 2.309(f)(1)(v))
NEPA and NRC regulations require a hard look at the environmental consequences of
the proposed action.37 Here the 2023 DSEIS concludes that:
if FPL can retract and maintain the hypersaline plume to within the FPL site boundary prior to the SLR term, the impacts on groundwater quality from the CCS operations during the SLR term would be SMALL. However, 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 SLR term, the impact could be MODERATE.38
The 2023 DSEIS also concludes that groundwater use conflicts will be SMALL in the Biscayne
Aquifer39 and MODERATE in the Upper Florida Aquifer.40 The 2023 DSEIS concludes that
impacts of non-radiological contaminants on aquatic organisms would be SMALL.41 The NRC
staffs conclusions are not robustly supported, including with new and significant information
from the Applicant that the Petitioner provides here. A subset of the information provided by the
Petitioner was also sent to the NRC in November of 2022 scoping comments that the NRC
36 2023 DSEIS at 2-47.
37 Sierra Club v. Fed. Energy Regulatory Commn, 867 F.3d 1357, 1367 (D.C. Cir. 2017); 40 C.F.R. § 1502.16; 10 C.F.R. § 51.71(d).
38 2023 DSEIS at 2-31.
39 2023 DSEIS at 2-20.
40 2023 DSEIS at 2-22.
41 2023 DSEIS at 2-47.
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arbitrarily excluded in the 2023 DSEIS.
Turkey Point Units 3 and 4 currently rely on the cooling canal system as their cooling
water system: the Units discharge heated water into the cooling canal system, and as the water
travels through the cooling canal system, it loses heat through evaporation. But, as the evaporation removes heat, it also removes water and concentrates total dissolved solids.42As
discharge from Units 3 and 4 has become hotter (increasing evaporation) and because of
droughts (decreasing the freshwater precipitation replenishment), the salinity of the cooling canal
system has increased.43
While the CCS is classified as an industrial wastewater facility, it functions as an open system from the point of view of water supply.44 Water is actively exchanging with the
atmosphere and with groundwater and the surface water of Biscayne Bay.45 Active exchange
with groundwater plays an important role in maintaining the water balance in the cooling
canals.46
The continued operation of the cooling canal system impacts regional freshwater
resources in two ways:
- 1. Water is pumped from the nearby interceptor ditch as a freshwater input into the CCS.
42 2023 DSEIS at 2-22.
43 Expert Report of William K. Nuttle, in the case of Southern Alliance for Clean Energy, et al.
vs. Florida Power & Light Company, Case No. 1:16-cv-23017-DPG (S.D. Fla. May 14, 2018), at 2 (Exhibit 3, Attachment A).
44 Id. at 2.
45 Id. at 2.
46 Id. at 2.
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Water is pumped out of the interceptor ditch for the purpose of maintaining a hydraulic
barrier to westward movement of CCS water in the shallow groundwater.
- 2. The active exchange between the CCS and underlying aquifer feeds the growth of a
hypersaline plume that accelerates the intrusion of saltwater.47
Interceptor Ditch Failure
Since 1974, a series of agreements with the South Florida Water Management District have prescribed the operation and monitoring of the interceptor ditch.48 The interceptor ditch was
constructed to restrict movement of saline water from the cooling water system westward of
Levee 31-E adjacent to the cooling canal system to those amounts which would occur without
the existence of the cooling canal system. This was in response to concerns that water
discharged to the aquifer from the CCS could harm freshwater supplies.
Water is pumped out of the interceptor ditch for the purpose of maintaining a hydraulic
barrier to westward movement of CCS water in the shallow groundwater.49 The interceptor ditch
withdraws fresh water from the Biscayne Aquifer at rates comparable to pumping from nearby public water supply wells.50 Operation of the interceptor ditch represents a large, undocumented
demand on the regional freshwater resource provided by the Biscayne aquifer51 that the 2023
DSEIS fails to discuss in its analysis of groundwater use conflicts. NRC staff must reassess its
47 Id. at 3.
48 Id. at 14.
49 Id. at 15.
50 Id. at 3.
51 Id. at 15.
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conclusions that the continued operation of the CCS will impart SMALL impacts on the
Biscayne Aquifer given the demand that the interceptor ditch imposes on it.
Operation of the interceptor ditch is supposed to prevent CCS water flowing west through
the aquifer from reaching the L-31E canal.52 Water is pumped out of the interceptor ditch as
needed to maintain water levels in the interceptor ditch lower than water levels in the L-31E
canal. This is supposed to ensure that the direction of groundwater flow is always from the west
into the interceptor ditch. In practice, the interceptor ditch has failed to prevent the westward
movement of the dense hypersaline plume along the bottom of the aquifer, ~ 100 feet below the
land surface.53 The interceptor ditch is too shallow, ~20 feet deep, to retard the horizontal
movement of water deep in the aquifer, especially under the conditions where flow in the aquifer
is stratified. The 2023 DSEIS does not discuss the failure of the interceptor ditch to prevent
westward migration of hypersaline water toward public water supplies. NRC staff should
reassess their confidence that cooperation with local agencies will shepherd FPLs remediation
measures to a successful result.
Hypersalinity Plume
When the U.S. Atomic Energy Commission prepared a 1972 EIS for the planned cooling
canal system, the EIS acknowledged that water from the unlined CCS could emerge via
groundwater into Biscayne Bay to the east,54 even while acknowledging that available
52 Id. at 14.
53 Id. at 14.
54 FINAL ENVIRONMENTAL STATEMENT RELATED TO OPERATION OF TURKEY POINT PLANT, 1972, DOCKET NOS. 50-250 & 50-251 (July 1972), at ii. (Exhibit 7)
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information was extremely limited regarding the environmental impacts from the construction
and operation of the proposed CCS.55 The agency also concluded that environmental impacts
from the CCS would be insignificant on subsurface flows to the west.56
Yet, in contrast to early assumptions, new information shows that the environmental
impacts are clearly significant, noticeable, and destabilizing important resources. Over time, the
CCS has emitted an enormous volume of hypersaline (<19,000 mg/L chloride concentration) groundwater that has extended several miles west of the property.57 Both state and local
governments have found FPL to be violating water quality laws and regulations by
contaminating the freshwater portions of the Biscayne Aquifer.58 As a result, FPL has been
ordered, through a series of administrative enforcement efforts by the Florida Department of
Environmental Protection (FDEP) and Miami-Dade County, to take remedial measures,
including adding 15 MGD annually of mildly saline water from the Floridan Aquifer (2.5
practical salinity units, or PSU) into the cooling canals to dilute canal salinities.59 FPL is
required by the state consent order to achieve an average concentration of 34 PSU in the canals by the fourth year of freshening activities.60 FPLs freshening allocations were increased again in
55 Id. at iii.
56 Id. at VI-2.
57 Andrew W. McThenia et al., Rising Tides and Sinking Brines: Managing the Threat of Salt Water Intrusion, Florida Water Resources Journal 68, at 36 (2017), available at https://fkaa.com/DocumentCenter/View/211/Managing-the-Threat-of-Salt-Water-Intrusion-PDF.
58 2019 FSEIS at 3-89-3-91.
59 2023 DSEIS at 2-17, Table 2-4 (Turkey Point Groundwater Withdrawal Wells).
60 2023 DSEIS at 2-24.
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October 2021 to 10,950 million gal/yr (30 MGD) as the initial 15 MGD annual allotment was insufficient to meet the target PSU in time.61 FPLs Year 5 annual remediation report claims that,
as of September 2022, it has maintained a PSU of 34 or below.62
In addition to CCS freshening, FPL has constructed a recovery well system to attempt to control the hypersaline plume.63 Both the state consent order64 and county consent agreement65
require FPL to halt the westward migration of hypersaline water from the CCS, and retract the
westward extent of the hypersaline plume to the L-31E within 10 years of recovery well
operation, without creating adverse environmental impact.66 Operation of these wells
commenced in May of 2018.67 This plan involves the installation of a series of pump-driven
wells, located near the interceptor ditch and screened near the base of the Biscayne Aquifer, that
61 FPL YEAR 4 REMEDIAL ACTION ANNUAL STATUS REPORT, Turkey Point Clean Energy Center (Nov. 15, 2022), available at https://ecmrer.miamidade.gov/OpenContent/rest/content/content/TECHNICAL%20REPORTS.p df?id=0902a13494af5af8&contentType[]=pdf,txt,.*/true (hereinafter FPL Year 4 RAASR)
(Exhibit 8).
62 FPL YEAR 5 REMEDIAL ACTION ANNUAL STATUS REPORT, Turkey Point Clean Energy Center (Nov. 15, 2023), at 7-4, available at https://ecmrer.miamidade.gov/OpenContent/rest/content/content/TECHNICAL%20REPORTS.p df?id=0902a13495c83145&contentType[]=pdf,txt,.*/true (hereinafter FPL Year 5 RAASR)
(Exhibit 9).
63 2023 DSEIS at 2-15.
64 Florida Department of Environmental Protection Consent Order with FPL, ADAMS Accession No. ML16216A216 (June 20, 2016).
65 Miami-Dade County Cooling Canal System Consent Agreement with FPL, ADAMS Accession Nos. ML16004A241 & ML16015A339 (Oct. 6, 2015).
66 2019 FSEIS at 3-91.
67 FPL Year 4 RAASR at 2-7 (Exhibit 8).
18
currently are approved to withdraw approximately 15 MGD of water from that part of the aquifer for disposal via reinjection into the Boulder Zone of the Floridan Aquifer.68
The remediation plan does not abate the continued leaching of industrial wastewater from
the unlined canals in the CCS into groundwater. Groundwater flow out of the CCS removes the
higher concentration of salt water, effectively flushing salt and other dissolved substances out of
the CCS and into the Biscayne Aquiferand ultimately into Biscayne Bay as well. This flushing
is the only mechanism that limits the accumulation of salt and other dissolved substances in the
CCS,69 allowing FPL to achieve salinity requirements under the consent order and consent
agreement. On October 19, 2021, the Florida Department of Environmental Protection issued an
authorization to increase Turkey Points Upper Floridan Aquifer annual allocation for freshening
to 10,950 million gallons (average rate of 30 MGD) with a maximum monthly allocation of 1,033.6 million gallons.70 Therefore, even if the recovery well system works as designed, there
will still be a net addition of salt to the Biscayne Aquifer from the CCS, and potentially 30
million gallons of saline water (34 PSU) migrating into the aquifer every day. This flushing
pushes contamination from the CCS into the groundwater, reducing the amount of fresh
groundwater available to users in South Florida, thereby exacerbating groundwater use conflicts.
68 2023 DSEIS at 2-16. The Boulder Zone is a deeply buried zone of the Floridan Aquifer
(~3,000 feet below sea level) that is used to store wastewater.
69 Expert Report of William K. Nuttle (May 14, 2018), at 5 (Exhibit 3, Attachment A).
70 2023 DSEIS at 2-21.
19
Yet, the NRC staff conclude that impacts to the Biscayne Aquifer from FPLs groundwater withdrawals during the SLR term are SMALL.71
But the recovery well system is not working per FPLs initial remediation plan. Expert
review has indicated that the initial plans to remediate the plume are inadequate.72 The volume of
contaminated water that can be extracted using the current recovery well system (RWS) is barely
adequate to offset the rate at which the continued operation of the CCS adds water to the plume.73 In fact, FPLs Year 5 remediation report, just released in November 2023, predicts that
at the 10-year mark the plume in Model Layers 13 and 16 will not have retracted far enough to
reach its target.74 FPLs three latest consecutive annual reports on the remediation efforts75,76,77
show by way of modeling that the remediation system is unlikely to achieve hypersaline plume
retraction by Year 10 in all layers of the aquifer. Moreover, FPLs modeling predicts that the hypersaline interface in layer 16 will have expanded in some areas.78
71 2023 DSEIS at 2-20.
72 Expert Report of William K. Nuttle (May 14, 2018), at 3 (Exhibit 3, Attachment A).
73 Id. at 3.
74 FPL Year 5 RAASR at 5-22-5-23, Figures 5.3-1c & 5.1-3d (Exhibit 9).
75 FPL YEAR 3 REMEDIAL ACTION ANNUAL STATUS REPORT, Turkey Point Clean Energy Center (Nov. 15, 2021), available at https://ecmrer.miamidade.gov/OpenContent/rest/content/content/TECHNICAL%20REPORTS.p df?id=0902a13492828df9&contentType[]=pdf,txt,.*/true (Exhibit 10).
76 FPL Year 4 RAASR (Exhibit 8).
77 FPL Year 5 RAASR (Exhibit 9).
78 Id. at 5-23, Figure 5.3-1d.
20
In its November 15, 2023 remediation status report, FPLs own mapping of the present-
day chloride contour at the 5-year mark indicates that the chloride contour in aquifer Layers 6-14
are far from retracting to meet the consent order and consent decree targets.79 FPL notes in its
report,... full retraction of the existing hypersaline plume to the L-31E canal is unlikely after ten years of RWS operation.80 To mitigate for the long-term existence of the plume, FPL
proffers modifications to the RWS including increased withdrawal flexibility and hardening of project components for long term operations....81
Today, the recovery well system and the Upper Floridan Aquifer pumping exert
additional pressure on existing groundwater use conflicts. The 2023 DSEIS maintains that the potential for groundwater use conflicts would be MODERATE on the Upper Floridan Aquifer.82
However, since FPLs Year 5 remediation report was made public on November 17, 2023, the
NRC has not evaluated the increased withdrawal flexibility of the RWS for long-term
operations over the subsequent license renewal period.
The 2023 DSEIS notes that FPL has not presented predictive modeling results that extend
to either the start or expiration of the SLR term, which precludes staff from reaching a definitive
conclusion about the likely extent of the hypersaline plume retraction during the SLR term.83 The
2023 DSEIS further contemplates that if FPL can retract and maintain the hypersaline plume to
79 Id. at 4-36-4-44, Figures 4.5-1 through 4.5-9.
80 Id. at 7-4.
81 Id. at 7-4.
82 2023 DSEIS at 2-22.
83 2023 DSEIS at 2-31.
21
within the FPL site boundary prior to the SLR term, impacts on groundwater quality from the
CCS operations during the SLR term would be SMALLthough due to uncertainty about FPLs
efforts, the impact could be MODERATE.84 This is not a reasonable conclusion. As discussed
below, the impacts are likely to be significant.
First, the NRC has not considered how the States regulatory processes could conflict
with and exacerbate contamination of the groundwater. For example, the NRC has not
considered that the adjacent Model Lands, the L-31E canal and its weir system, Everglades
Mitigation Bank, and the continued operation of the cooling canal system are all hydrologically
linked, and as such, are at the nexus of overlapping goals and responsibilities for several agencies.85 These overlapping jurisdictions can conflict. For instance, the Florida Department of
Environmental Protection issued a permit modification on June 28, 2018, stipulating that Florida
Power and Light set and maintain the Everglades Mitigation Bank weirs along the L-31E canal at
1.8 feet NGVD.86 Lowering the elevation of the weirs drains water out of the Model Lands basin,
which has the effect of lowering the water table throughout the basin.87 Lowering the water table
directly impacts the wetlands in the Model Lands basin, degrading their ecological functioning.88
Lowering the water table indirectly impacts the wetland by opening pathways for the infiltration
84 Id. at 2-31.
85 Expert Report of William K. Nuttle, Ph.D. (June 23, 2019), at 11 (Exhibit 3, Attachment B).
86 Id. at 2.
87 Id. at 4.
88 Id. at 4.
22
of saline groundwater into the L-31E canal.89 From here, the saline water can move throughout
the basin through the network of interconnected drainage canals, which threatens the freshwater
wetlands with further degradation.90 Lowering the water table also reduces the natural hydraulic
barrier against the intrusion of saltwater into the basin through the Biscayne Aquifer from Biscayne Bay and water discharged into the aquifer from the CCS.91
Miami-Dade County challenged the permit modification, asserting that the permit
modification may adversely impact water resources, is not sustainable over the long term,
and [i]nterferes with protecting water quality in the L-31E canal from chloride contamination
and addressing the existing inland migration of the salt intrusion front [from the cooling canal system] in this area.92 FDEPs permit modification reverses one of the actions prescribed in the
consent agreement between the County and FPL for remediation at Turkey Point, which required FPL to raise the elevation of the weirs.93 With conflict occurring between state and local
regulators, NRC staff should reassess their confidence that cooperation between FDEP and
DERM will shepherd FPLs remediation measures to a successful result.
89 Id. at 3-4.
90 Id. at 4.
91 Id. at 4.
92 Id. at 2-3.
93 Id. at 11.
23
The uncertainty regarding the remediation plan has been clarified by the Applicants Year
5 report: the RWS will need to operate long-term as it is evident that the current plans to
remediate the plume are inadequate.94
Second, the 2023 DSEIS fails to include information that was sent to NRC in Petitioner Miami Waterkeepers scoping comments.95 Petitioner provided a report by a peer reviewer,
Groundwater Tek Inc., which posited that the hypersaline plume in the lower layers will likely
remain a source of pollution, and the salt will likely diffuse back to the layers above due to the
concentration gradient if the recovery well pumps were shut off.96 Also not discussed in the 2023
DSEIS was the September 2020 report by a second peer reviewer that the Petitioner provided in
November, 2022 scoping comments; this report recommended FPL perform a more robust and
technically defensible assessment of the mathematical relationships between variables and the magnitude of uncertainty, particularly in the absolute plume volume.97 In a recent analysis
performed after we submitted our scoping comments, Arcadis found that FPLs estimates of the
94 FPL Year 5 RAASR at 7-4 (Exhibit 9).
95 Miami Waterkeeper Letter to NRC re Notice of Intent to Conduct Scoping Process and Prepare Environmental Impact Statement Florida Power & Light Company Turkey Point Nuclear Generating Unit Nos. 3 and 4, Docket Nos. 50-250 & 50-251; NRC-2022-0172 (Nov. 7, 2022)
(Exhibit 11).
96 Groundwater Tek, Inc., REVIEW OF FPLS GROUNDWATER FLOW AND SALT TRANSPORT MODELS AND ASSESSMENT OF THE FIRST YEAR OPERATION OF THE RWS (July 2020), at 34 (Exhibit 12). This peer review report was also noted in the SITE SPECIFIC EIS SCOPING PROCESS
SUMMARY
REPORT FOR TURKEY POINT NUCLEAR GENERATING UNIT NOS. 3 AND 4, at 16.
97 SITE SPECIFIC EIS SCOPING PROCESS
SUMMARY
REPORT FOR TURKEY POINT NUCLEAR GENERATING UNIT NOS. 3 AND 4, ADAMS Accession No. ML23198A271 (Aug. 2023), at 16 (referencing the Arcadis report, REVIEW OF AERIAL ELECTROMAGNETIC SURVEYS AT TURKEY POINT POWER PLANT, SOUTHERN FLORIDA, at 2 (Sept. 30, 2020)).
24
plume volume were unreliable due to FPL including data from outside the relevant calibration
range in establishing relationships between chlorine concentration, water resistivity, and aerial-
electromagnetic resistivity. Arcadis found that hypersalinity volume estimates across years 2018
through 2022 are inaccurate.98 Therefore, it is unknown the degree to which FPLs remediation
plan has been effective. That the NRC has based its analysis of groundwater impacts solely on
information provided by the Applicant and has chosen to exclude from discussion a spate of peer
reviews challenging FPLs methods and findings is inconsistent with 10 C.F.R. § 51.71(b).
The inability of the Applicant to define the absolute plume volume and to retract it per
the consent order and consent agreement underscores the failure in the original 1972 EIS that
determined the CCS operation would have an insignificant effect on subsurface flows to the
west. The hypersaline plume pollution has already had significant, clearly noticeable, and
destabilizing environmental impacts, so much so that local and state regulators needed to
intervene to protect the public interest. The prospect of the recalcitrant plume in the lower
aquifer diffusing back to layers above if the pumps were shut off could have additional
significant, clearly noticeable, and destabilizing environmental impacts on the sole source
aquifer, surface waters, and ecological communities surrounding the plant. Conversely, the
prospect of running the remediation systemindefinitelyis an unexamined impact on
groundwater use. The NRCs conclusion that groundwater conflicts are SMALL on the Biscayne
Aquifer and MODERATE on the Upper Floridan Aquifer is unfounded given this new and
98 Arcadis Letter to DERM re Final Review Memorandum for the Florida Power and Light 2022 Remedial Action Annual Status Report, (Jun. 2, 2023), at 2 (Exhibit 13).
25
significant information. The NRCs conclusion that impacts on groundwater quality are SMALL
to MODERATE is also unfounded. given this new and significant information.
Seagrass Decline
In addition to impacting freshwater resources, the continued operation of the CCS
impacts marine waters and the ecosystems that depend on them. The 2023 DSEIS fails to
adequately consider the effects of non-radiological contaminants on aquatic organisms. The
adjacent Biscayne Bay is a phosphorus-limited estuary, meaning that phosphorus controls the
abundance, productivity, and species composition of seagrass.99 Continued phosphorus loading
(P loading) is cumulative and permanent, so continued P loading leads to regime changes in species composition that can disrupt essential fish habitat.100 In essence, seagrasses are killed and
replaced by fast-growing, noxious seaweed or planktonic algae,101 and the loss of the healthy
seagrass community will result in dramatic change in community structure and function. Animal
species dependent on seagrass for food and shelter (e.g., speckled trout, redfish, bonefish and
tarpon) are replaced by less desirable species (e.g., jellyfish).102
As established in previous paragraphs, the unlined CCS is not a closed system; it
exchanges water radially with the Biscayne Aquifer and the Bay. Data from FPL show that
periods of groundwater flow out of the canals toward the Bay have occurred regularly throughout
99 Declaration of James Fourqurean, Ph.D. (Jan. 8, 2021), at 1 (Exhibit 4, Attachment A).
100 Id. at 1.
101 Id. at 2
102 Id. at 3.
26
the period for which data are available.103 As the CCS also contains high levels of tritium104,
porewater tritium is, therefore, an excellent tracer for CCS water and can indicate where CCS
water is discharged through groundwater into Biscayne Bay. Recent sampling indicates that
water from the CCS is influencing the porewater in areas adjacent to the CCS.105 Groundwater
under the seagrass meadows of this part of the bay, in the vicinity of the CCS, contains tritium at
concentrations that can only be explained by this water coming from the CCS.106
CCS water itself has been documented to contain very high phosphorus concentrations
compared to Biscayne Bay.107 Seagrasses in areas that hydrological models and field data show
as receiving phosphorus-laden discharge also show signs of abnormally high phosphorus concentrations.108 Yet, the water column in southern Biscayne Bay has very low concentrations
of dissolved phosphorus, and the grand mean TN:TP ratios (i.e., the ratio of moles of nitrogen to the moles of phosphorus) of the water in southern Biscayne Bay average 177.9.109 When TN:TP
of oceanic water is above 16 it indicates that the availability of phosphorus limits the growth of
103 Expert Report of William K. Nuttle (May 14, 2018), at 3 (Exhibit 3, Attachment A).
104 David A. Chin, The Cooling Canal System at the FPL Turkey Point Power Station, U. MIAMI (2015), at 2 (Exhibit 17).
105 Expert Report of James Fourqurean, Ph.D. (Jan. 8, 2021), at 1 (Exhibit 4, Attachment A).
106 Id. at 6-7.
107 Id. at 1.
108 Id. at 1.
109 Id. at 4 (citing Valentina Caccia & Joseph N. Boyer, Spatial Patterning of Water Quality in Biscayne Bay, Florida as a Function of Land Use and Water Management, MARINE POLLUTION BULLETIN 50:1416-1429 (2005)).
27
plankton.110 Seagrasses are more complex than phytoplankton, so that the critical ratio
determining whether N or P limits plant growth for seagrasses is 30.111 The N:P of Turtle Grass
(Thalassia testudinum) collected in the vicinity of Turkey Point was 88.6 in 2013, a clear
indication of phosphorus limitation.112 In 2014, the nitrogen-to-phosphorus ratio of seagrass in
the vicinity of the CCS was over 60, a sign of higher P availability within 50m of the shore close
to the CCS, and around 80 within 500m offshore. 113
The seagrass beds of Biscayne Bay and the rest of South Florida require very low nutrient
loading to survive.114 At higher nutrient levels, seagrasses are replaced by seaweeds
(macroalgae) and microalgae. 115 The loss of the seagrass community results in a dramatic change
in community structure, function, and ecological productivity. Specifically, the addition of
excess phosphorus in south Biscayne Bay will upset the ecological balance of seagrass beds, as has occurred in the northern part of the bay.116 In transect samples within the nearshore area of
Turkey Point, elevated nutrients inputs were identified as a result of the operations of Turkey
110 Id. at 4 (citing Alfred C. Redfield, The Biological Control of Chemical Factors in the Environment, AMERICAN SCIENTIST 46:205-221 (1958)).
111 Id. at 4 (citing James W. Fourqurean & Leanne M. Rutten, Competing Goals of Spatial and Temporal Resolution: Monitoring Seagrass Communities on a Regional Scale, in MONITORING ECOSYSTEM INITIATIVES: INTERDISCIPLINARY APPROACHES FOR EVALUATING ECOREGIONAL INITIATIVE, Island Press (2003)).
112 Id. at 4 (citing Bryan Dewsbury, The Ecology and Economics of Seagrass Community Structure, FLORIDA INTERNATIONAL UNIVERSITY (2014)).
113 Id. at 4.
114 Id. at 2.
115 Id. at 3.
116 Id. at 4.
28
Point.117 Under phosphorus pollution, normally phosphorus-limited turtlegrass (Thalassia
testudinum) first increases in density and then becomes displaced by progressively faster-
growing species until no benthic vegetation is left at the highest phosphorus pollution levels.118
Time series aerials from Google Earth show that high phosphorus in this area is related to very dense seagrasses that collapsed over the period of 2010-2014.119 It is evident that operations of
the CCS are leading to the increased availability of phosphorus in nearshore waters and,
consequently, disrupting the balance of flora and fauna in adjacent Biscayne Bay and Biscayne
National Park.120
Operations to decrease the salinity and temperature of the CCS are expected to increase
tritium concentrations in porewater if future operations of the CCS increase the hydraulic head,
thus flushing of contaminated water, including the phosphorus content of the canal waters, into the Biscayne Aquifer and eventually to Biscayne Bay.121 After freshening activities began to
occur as part of the consent order and consent agreement, sampling of porewater was conducted
in seagrass soils adjacent to the CCS to examine the spatial extent of CCS tritium-containing groundwater.122 This sampling indicated that CCS-derived water is indeed influencing the
porewater in the areas adjacent to the CCS, and that soil phosphorus content and seagrass
117 Id. at 5.
118 Id. at 6.
119 Id. at 6, Figure 9.
120 Id. at 1.
121 Id. at 7.
122 Id. at 7.
29
phosphorus content (an indicator of phosphorus pollution in this region) are higher when tritium concentrations in the porewater are higher.123 The addition of water to freshen canals may help
FPL meet terms and conditions of the consent agreement and consent decree with respect to the
salinity in the CCS itself, though the unintended consequence is to exacerbate the groundwater
contamination, flushing CCS pollution into the groundwater and surface water surrounding the
plant.
In summary, the continued operation of the CCS without remediation of the hypersaline
plume threatens public water supplies and the wetlands and marine ecosystems surrounding the
plant. At the same time, actions being taken by FPL cannot achieve the objectives of the consent
order and consent agreement because of (1) the failure of the interceptor ditch; (2) the
inadequacy of the recovery well system; and (3) the increase in discharges from the CCS as a
result of addition of fresher water. The actions being taken by FPL ignore the basic reality of the
way the CCS interacts with groundwater and surface water.124As such, the perpetual remediation
via the long-term use of the RWS pumps and flushing of the canals to cool and desalinate waters
will have impacts on regional water supplies and adjacent ecosystems.
- 3. The issue raised in the contention is within the scope of the proceeding (10 C.F.R. § 2.309(f)(iii))
NRC regulations broadly divide the scope of a license renewal proceeding into (1)
safety/aging management issues and (2) environmental impacts. This contention concerns
123 Id. at 7.
124 Expert Report of William K. Nuttle (May 14, 2018), at 14 (Exhibit 3, Attachment A).
30
environmental impacts. The scope of the required environmental review is established by 10
C.F.R. Part 51. This contention is within the scope of the proceeding because it challenges the
sufficiency of the environmental analysis in the 2023 DSEIS.
- 4. The issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding (10 C.F.R. § 2.309(f)(1)(iv))
Each of the Petitioners contentions is material to the findings the NRC must make.125
An issue is material if the resolution of the dispute would make a difference in the outcome of the licensing proceeding.126 This means that there must be some link between the claimed error
or omission regarding the proposed licensing action and the NRCs role in protecting public health and safety or the environment.127
The issue raised in this contention relates directly to the NRCs role in protecting public
health and safety and the environment. NEPA imposes requirements on the NRC to ensure
environmental protection. The failure to comply with these requirements is material to the
findings NRC must make to support relicensing.
- 5. Concise statement of the alleged facts or expert opinions which support the petitioners position on the issue and on which the petitioner intends to rely at hearing (10 C.F.R. § 2.309(f)(1)(v))
The facts supporting the Petitioners contention are set forth in the Basis Statement in
Section 2 above, in official FPL and government documents as cited in Statement of the
125 10 C.F.R. § 2.309(f)(1)(iv).
126 Vermont Yankee, 64 N.R.C. at 149.
127 Id.
31
Contention and Basis Statement. Regarding the groundwater plume contamination, Petitioner relies on peer-review studies by Groundwater Tek Inc.128 and Arcadis129 that were previously
forwarded to the NRC in scoping comments in anticipation of the draft site-specific EIS.
Petitioner also relies on a 2023 Arcadis report indicating that the absolute hypersaline plume
volume has not been accurately calculated by Florida Power and Light in its Year 3 and Year 4
remedial action reports submitted to the Florida Department of Environmental Protection and the
Miami-Dade County Department of Environmental Resources Management. Petitioner relies on
the expert reports of William Nuttle, Ph.D.,130 for assertions on hydrology, hydrogeology,
hydraulics, and water quality of both surface water and groundwater. These independent peer
reviewers provide objective data that the hypersaline groundwater plume remediation is unlikely
to be successful by the deadline specified by state and county regulators. Petitioner relies on
FPLs Year 5 (November 15, 2022) remediation report indicating that the recovery well system
will not retract the hypersaline plume in the lower aquifer to the Applicants property within 10
years of operation, therefore necessitating modifications to the RWS including increased withdrawal flexibility and hardening of project components for long term operations.131
128 Groundwater Tek Inc., GROUNDWATER FLOW AND SALT TRANSPORT MODELS AND ASSESSMENT OF THE FIRST YEAR OPERATION RWS (July 2020) (Exhibit 12).
129 Arcadis Letter to DERM re Final Review Memorandum for the Florida Power and Light 2022 Remedial Action Annual Status Report (Jun 2, 2023) (Exhibit 13).
130 Expert Report of William Nuttle, Ph.D. (May 14, 2018) (Exhibit 3, Attachment A); Expert Report of William Nuttle, Ph.D. (June 24, 2019) (Exhibit 3, Attachment B).
131 FPL Year 5 RAASR at 7-4 (Exhibit 9).
32
Petitioner relies on the expert report of James Fourqurean, Ph.D.,132 for the assertion that marine
habitat changes have occurred in response to phosphorus pollution emanating from the CCS.
- 6. A genuine dispute exists with the applicant on a material issue of law or fact (10 C.F.R. § 2.309(f)(1)(vi))
Each of Petitioners contentions also demonstrates sufficient information to show that a
genuine dispute exists with the Applicant on a material issue of law or fact. NRC sets forth
factors relevant to determining if a genuine dispute exists when it adopted the current version of
10 C.F.R. § 2.309(f)(1):
This will require the intervenor to read the pertinent portions of the license application, including the Safety Analysis Report and the Environmental Report, state the applicant's position and the petitioner's opposing view. Where the intervenor believes the application and supporting material do not address a relevant matter, it will be sufficient for the intervenor to explain why the application is deficient.133
Petitioner contests the NRC staffs conclusion in section 2.8.3 of the 2023 DSEIS that the
impacts on groundwater quality will be SMALL or MODERATE. Petitioner also contests NRC
staffs conclusion in section 2.8.2.1 of the 2023 DSEIS that groundwater use conflicts in the
Biscayne Aquifer will be SMALL. Third, Petitioner contests NRC staffs conclusion in Section
2.8.2.2 that impacts to groundwater use conflicts in the Upper Floridan Aquifer will be
MODERATE. Fourth, Petitioner contests that the effect of non-radiological contaminants on
aquatic organisms will be SMALL. For the reasons stated in above, including referenced expert
132 Expert Report of James Fourqurean, Ph.D. (Jan. 8, 2021) (Exhibit 4, Attachment A).
133 Rules for Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,170 (Aug. 11, 1989).
33
opinions, the Staffs conclusion that impacts will be SMALL or MODERATE for impacts to
these four categories during the subsequent license renewal period is unsupported by and
contrary to the evidence provided by Petitioner.
As set forth in detail in the contention above, Petitioner satisfies the admissibility
standard with respect to each contention.
CONTENTION II: THE DRAFT SITE-SPECIFIC ENVIRONMENTAL IMPACT STATEMENT FAILS TO ADEQUATELY ANALYZE COOLING TOWERS AS A REASONABLE ALTERNATIVE THAT COULD MITIGATE ADVERSE IMPACTS OF THE COOLING CANAL SYSTEM IN CONNECTION WITH THE SUBSEQUENT LICENSE RENEWAL OF TURKEY POINT UNITS 3 AND 4.
- 1. Statement of the issue of law or fact to be raised or controverted (10 C.F.R.
§ 2.309(f)(1)(i))
The 2023 DSEIS fails to comply with 10 C.F.R. § 51.71 because it fails to include an
adequate analysis of alternatives available for reducing or avoiding adverse environmental
effects.134 An EIS must look at the economic, technical, and other benefits and costs of not just
the proposed action but also the alternatives.135 The 2023 DSEIS relies on the 2019 FSEIS,
which, at best, only analyzes the adverse impacts of constructing and operating an alternative
cooling system without looking specifically and in any detail at the environmental and other
134 10 C.F.R. § 51.71(d).
135 Id.
34
benefits that would accrue from replacing the current CCS with a cooling tower.136, 137 As
discussed below, the 2019 FSEIS unlawfully fails to provide any analysis of the benefits to
groundwater and aquatic organisms that would follow from replacing the cooling canal system
with the cooling water system alternative. NRC staff failed to adequately analyze alternatives by
failing to discuss how replacing the existing CCS with cooling towers would reduce adverse
environmental impacts, as required by NRC regulations.
- 2. Brief explanation of basis for the contention (10 C.F.R. § 2.309(f)(1)(ii)); concise statement of the alleged facts or expert opinions supporting the contention (10 C.F.R. § 2.309(f)(1)(v)); and statement that a genuine dispute exists with the licensee on a material issue of law or fact (10 C.F.R. § 2.309(f)(1)(vi))
NEPA and NRC regulations require that an environmental impact statement [r]igorously
explore and objectively evaluate all reasonable alternatives.138 An agencys consideration of
reasonable alternatives is the heart of NEPA.139 Furthermore, NRC regulations require that an
EIS include a mitigation discussion analyzing alternatives available for reducing or avoiding
adverse environmental effects of the proposed project.140 This mitigation discussion must
136 See, e.g., 2019 FSEIS at 2-13 (stating that the benefits of the alternative cooling water system are that the impacts of utilizing the CCS for cooling for Turkey Point Units 3 and 4 would be avoided).
137 See, e.g., 2019 FSEIS at 4-11, 4-18-4-19, 4-41-4-44.
138 40 C.F.R. § 1502.14. The Council on Environmental Qualitys regulations implementing NEPA apply to all federal agencies, including the NRC. Union Neighbors United, Inc. v. Jewell, 831 F.3d 564, 569 n.1 (D.C. Cir. 2016) (citing 40 C.F.R. § 1500.3).
139 Union Neighbors United, Inc. v. Jewell, 831 F.3d 564, 575 (D.C. Cir. 2016) (citing 40 C.F.R.
§ 1502.14).
140 10 C.F.R. § 51.71(d).
35
include an analysis of [the] benefits and costs of the proposed action and alternatives.141 It is a
vital part of the action forcing function of NEPA because [w]ithout such a discussion, neither
the agency nor other interested groups and individuals can properly evaluate the severity of the
adverse effects.142
The 2023 DSEIS fails to satisfy the NEPA and NRC requirements to rigorously explore
the benefits and costs of a reasonable alternative available for reducing or avoiding adverse
environmental effects of FPLs relicensing. The options presented in the 2019 FSEIS are carried
over into the 2023 DSEIS and include (1) the cooling canal system currently in use at Turkey
Point Units 3 and 4 and (3) closed-cycle cooling systems like the cooling towers used on Turkey Point Unit 5.143 The 2019 FSEIS purports to satisfy NEPAs obligation to consider available
alternatives for reducing adverse impacts of the cooling canal system by including the cooling
water system alternative. The 2019 FSEIS found that the impacts of a cooling water system
alternative on surface and groundwater resources would be SMALL.144 However, the 2019
FSEIS is devoid of any substance on the environmental benefits of the alternative, for example,
the adverse impacts of the proposed action that the alternative could reduce or avoid, as required
by 10 C.F.R. § 51.71(d). Commission orders in CLI-22-03 are extremely clear: no further
141 Id. (emphasis added).
142 Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 352 (1989); see also Hydro Res.,
Inc. (P.O. Box 777, Crownpoint, New Mexico 87313), 64 N.R.C. 53, 93 (Aug. 21, 2006)
(Mitigation must be discussed in sufficient detail to ensure that environmental consequences have been fairly evaluated.).
143 2019 FSEIS at 2-8, 2-13.
144 2019 FSEIS at 4-43-4-44.
36
licenses for subsequent renewal terms will be issued until the NRC staff has completed an adequate NEPA review for each application.145 As the 2023 DSEIS only carries forward the
prior, inadequate alternatives analysis, the agency must evaluate the economic, technical, other
benefits and costs of the cooling tower alternative, and this analysis must be done in light of new
information concerning the CCSs impacts to surface and groundwater resources.
The 2023 DSEIS fails to assess how the cooling water system alternative could
reduce adverse impacts to:
Groundwater use conflicts (plants that withdraw more than 100 gallons per minute);146
Groundwater quality degradation;147
Effects of non-radiological contaminants on aquatic organisms.148
As Petitioner has established in Contention I the impacts of operating the CCS as a heat sink has
driven evaporative losses in the canals, leading to hypersaline water contaminating groundwater
in all directions through the aquifer. Further, tritiuma reliable tracer of the CCS water
indicates that phosphorus-laden water has emerged through conduits in the bay bottom and
contributed to the degraded health of adjacent marine ecosystems in Biscayne Bay. The
continued operation of the CCS without remediation of the hypersaline plume threatens public
water supplies and the wetlands and marine ecosystems surrounding the plant.
145 Duke Energy Carolinas, LLC et al., CLI-22-03, 95 N.R.C. 40 (Feb. 24, 2022).
146 2023 DSEIS at 2-16-2-22.
147 2023 DSEIS at 2-22-2-23.
148 2023 DSEIS at 2-46-2-47.
37
At the same time, actions being taken by FPL cannot achieve the objectives of the
consent order and consent agreement because of (1) the failure of the interceptor ditch; (2) the
inadequacy of the recovery well system; and (3) the increase in discharges from the CCS as a
result of addition of fresher water. Regarding the inadequacy of the recovery well system, FPLs
Year 5 annual report on remediation activities confirms that the actions being taken by FPL
ignore the basic reality of the way the CCS interacts with groundwater and surface water.149As
such, the perpetual remediation via the long-term use of the RWS pumps and flushing of the
canals to cool and desalinate waters will have impacts on regional water supplies and adjacent
ecosystems.
Moreover, the NRC cannot rely on state and local regulators to shepherd FPL into
compliance with requirements to remediate the plume due to overlapping goals and
responsibilities in the area conflicting (i.e. FDEPs 2018 Everglades Mitigation Bank permit
modification for the elevation of weirs along the L-31E canal reverses one of the actions
prescribed in the consent agreement between the County and FPL for remediation at Turkey
Point, which required FPL to raise the elevation of the weirs).
The Miami-Dade County Board of County Commissioners adopted a resolution to seek a commitment from FPL to discontinue the use of the CCS at the plant.150 County concerns
included the hypersaline plume and water quality sampling detecting exceedances of Miami-
149 Expert Report of William K. Nuttle (May 14, 2018), at 14 (Exhibit 3, Attachment A).
150 Miami-Dade County Resolution No. R-722-16 (Jul. 19, 2016) (Exhibit 14).
38
Dade County water quality standards in certain surface water locations in or connected to
Biscayne Bay adjacent to and east of the CCS.
Replacing the existing cooling canal system with cooling towers is a reasonable and cost-
effective alternative to continued operation of the cooling canal system during the subsequent renewal term.151 FPL itself has demonstrated that the siting and water supply aspects of cooling
towers are feasible.152
First, FPL chose cooling towers rather than the existing cooling canal system or another
cooling system for its proposed Turkey Point Units 6 and 7, for which the NRC granted
combined construction permits and operating licenses in 2018.153 Both Units 6 and 7 would
utilize closed-cycle wet-cooling towers using reclaimed water from the Miami-Dade Water and
Sewer Department.154,155 The EIS for Units 6 and 7 includes specific design elements of the
cooling system, including: (a) a plan for piping reclaimed water from the Miami-Dade Water and
Sewer Department South District Wastewater Treatment Plant to the cooling system for Units 6
151 Declaration of Bill Powers (Nov. 3, 2023), at 1-2, 16 (Exhibit 5); see generally Expert Report of Bill Powers, P.E., Powers Engineering (May 14, 2018) (hereinafter Cooling Tower Feasibility Assessment) (Exhibit 5, Attachment A).
152 2019 FSEIS at 2-9, 2-13.
153 NUREG 2176, Vol. 1, ENVIRONMENTAL IMPACT STATEMENT FOR COMBINED LICENSES (COLS) FOR TURKEY POINT NUCLEAR PLANS UNITS 6 AND 7, FINAL REPORT, CHAPTERS 1 TO 6, ADAMS Accession No. ML16300A104 (Oct. 2016), at 3 -14 (hereinafter FEIS for Units 6 &
7).
154 FEIS for Units 6 & 7 at 3-8-3-14.
155 Cooling Tower Feasibility Assessment at 10-12 (Exhibit 5, Attachment A).
39
and 7; (b) location of the water-treatment facility and related infrastructure; (c) storage of treated reclaimed water in a make-up water reservoir.156
Second, replacement power options under the no-action alternative considered in the
2019 FSEIS incorporate closed-cycle cooling with mechanical draft cooling towers, and the 2023
DSEIS maintained that the NRC staff found no new significant information that would alter the
FSEIS discussions.157 None of the replacement power optionsnot even the new nuclear
generation optionwould utilize the existing cooling canal system. In other words, under the
alternative to shut down Units 3 and 4 and construct and operate a new nuclear plant, FPL has
deemed the construction of cooling towers as the best option, rather than utilization of the
already constructed cooling canal system.
Third, Turkey Point Unit 5 (a natural gas combined-cycle unit that began operating in
2007) already utilizes mechanical-draft cooling towers that use make-up water drawn from the
Upper Floridan Aquifer.158 Thus, it is clear that the siting and water supply aspects of cooling
towers are feasible.
Construction of cooling towers to replace the existing cooling has been successful at
other sites. Palisades Nuclear Plant, an 800-MW plant in Michigan, was converted from a once-
through cooling system to a closed-cycle wet cooling tower system after a significant period of
156 Id.
157 2023 DSEIS at 3-2; 2019 FSEIS at 4-87, 2-8, Table 2-1 (Summary and Key Characteristics of Replacement Power Alternatives Considered in Depth).
158 Cooling Tower Feasibility Assessment at 7-8 (Exhibit 5, Attachment A).
40
operating utilizing the once-through system.159 At least five other power plants have also
converted to a closed-cycle system.160
The cost of replacing the cooling canal system with cooling towers is reasonable. The
cost of the Palisades retrofit was approximately $99/kW in 2017 dollars.161 Todays retrofit costs
are approximately 40% higher than 2017 to account for inflation.162 The installed cost of cooling
towers at Turkey Point Units 3 and 4, each of which has nearly the same capacity as Palisades
(816 MW), would be approximately $113.4 million per unit for conventional inline mechanical
draft cooling towers, or $226.8 million for both units.163 This $226.8 million capital expense,
amortized over only ten years at standard rates, equates to approximately $28.78 million annual cost for both units.164 Given that the subsequent license renewal periods, if granted, would not
expire until 2052 and 2053, FPL could expect a much longer amortization period and, therefore,
a lower annual cost. This would equate to a small fraction of the energy charge component of an
FPL residential customers bill.165
159 TECHNICAL DEVELOPMENT DOCUMENT FOR THE PROPOSED SECTION 316(B) PHASE II EXISTING FACILITIES RULE, EPA (Apr. 2002), at 4-1 (hereinafter EPA 2002 TDD).
160 EPA 2002 TDD, at 4-1-4-6; Cooling Tower Feasibility Assessment, at 28-29 & n.138.
161 Cooling Tower Feasibility Assessment at 15.
162 Declaration of Bill Powers (Nov. 3, 2023) (Exhibit 5).
163 Id.
164 Id. at 15-16.
165 Id. at 16.
41
- 3. The issue raised in the contention is within the scope of the proceeding (10 C.F.R. § 203.9(f)(1)(iii))
NRC regulations broadly divide the scope of a license renewal proceeding into (1)
safety/aging management issues, and (2) environmental impacts. This contention concerns
environmental impacts. The scope of the required environmental review is established by 10
C.F.R. Part 51. This contention is within the scope of the proceeding because it challenges the
sufficiency of the environmental analysis in the 2023 DSEIS.
- 4. The issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding (10 C.F.R.
§ 203.9(f)(1)(iv))
Each of the Petitioners contentions is material to the findings the NRC must make.166
An issue is material if the resolution of the dispute would make a difference in the outcome of
the licensing proceeding.167 This means that there must be some link between the claimed error
or omission regarding the proposed licensing action and the NRCs role in protecting public
health and safety or the environment.168 The issue raised in this contention the NRCs failure
to comply with its regulations requiring consideration of alternativesrelates directly to the
NRCs role in protecting public health and safety and the environment because it prematurely
selects the CCS as the preferred cooling system option while disregarding historical and ongoing
challenges caused by the CCS. NEPA imposes requirements on the NRC to ensure
environmental protection. The failure of NRC staff to adequately conduct an alternatives analysis
166 10 C.F.R. § 2.309(f)(1)(iv).
167 Vermont Yankee, 64 N.R.C. at 149.
168 Id.
42
is material to the findings NRC must make to support relicensing. Petitioner requests a hearing
and intervention to present evidence that mechanical draft cooling towers are an alternative to
mitigate adverse impacts of continuing to operate Units 3 and 4.
- 5. Concise statement of the alleged facts or expert opinions which support the petitioners position on the issue and on which the petitioner intends to rely at hearing (10 C.F.R. § 2.309(f)(1)(v))
The facts supporting the Petitioners contention are set forth in the Basis Statement in
Section 2 above, in official FPL and government documents as cited in Statement of the
Contention and Basis Statement. Petitioner relies on the expert declaration of Bill Powers, P.E.,
which clarifies that replacing the cooling canal system with cooling towers is reasonable and cost-effective.169
- 6. A genuine dispute exists with the applicant on a material issue of law or fact (10 C.F.R. § 2.309(f)(1)(vi))
Each of Petitioners contentions also demonstrates sufficient information to show that a
genuine dispute exists with the Applicant on a material issue of law or fact. NRC sets forth
factors relevant to determining if a genuine dispute exists when it adopted the current version of
10 C.F.R. § 2.309(f)(1):
This will require the intervenor to read the pertinent portions of the license application, including the Safety Analysis Report and the Environmental Report, state the applicant's position and the petitioner's opposing view. Where the intervenor believes the application and supporting material do not address a relevant matter, it will be sufficient for the intervenor to explain why the application is deficient.170
169 Declaration of Bill Powers, P.E. (Nov. 3, 2023) (Exhibit 5).
170 Rules for Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, 54 Fed. Reg. at 33,170.
43
Petitioner alleges that the NRCs NEPA review is insufficient because it has failed to
include an adequate analysis of alternatives available for reducing or avoiding adverse
environmental effects171 in its 2023 DSEIS. NEPA and NRC regulations require that an
environmental impact statement [r]igorously explore and objectively evaluate all reasonable alternatives.172 Furthermore, NRC regulations require that an EIS include a mitigation
discussion analyzing alternatives available for reducing or avoiding adverse environmental effects of the proposed project.173 This mitigation discussion must include an analysis of the
benefits and costs of the proposed action and alternatives.174
Here, the NRC has failed to consider the benefits and costs of alternatives to continuing
to use the cooling canal system, specifically to a cooling tower alternative. The 2023 DSEIS
defaults to the 2019 FSEISs discussion of the cooling tower alternative despite Petitioner having
forwarded new and relevant information to the NRC regarding the inability of FPL to remediate
the plume successfully.
Petitioner has cited Petitioners expert, Bill Powers, P.E., who has established that cooling towers are a reasonable alternative to subsequent license review.175
171 10 C.F.R. § 51.71(d).
172 40 C.F.R. § 1502.14. The Council on Environmental Qualitys regulations implementing NEPA apply to all federal agencies, including the NRC. Union Neighbors United, Inc. v. Jewell, 831 F.3d 564, 569 n.1 (D.C. Cir. 2016) (citing 40 C.F.R. § 1500.3).
173 10 C.F.R. § 51.71(d).
174 Id. (emphasis added).
175 Declaration of Bill Powers, P.E. (Nov. 3, 2023), at 2 (Exhibit 5).
44
As set forth in detail in the contention above, Petitioner satisfies the admissibility
standard with respect to each contention.
CONTENTION III THE DRAFT SITE-SPECIFIC ENVIRONMENTAL IMPACT ASSESSMENT FAILS TO ADEQUATELY CONSIDER THE CUMULATIVE IMPACTS OF CONTINUED OPERATION OF UNITS 3 AND 4.
- 1. Statement of the issue of law or fact to be raised or controverted (10 C.F.R.
§ 2.309(f)(1)(i))
The 2023 DSEIS fails to comply with 10 C.F.R. § 51.71(d) because it does not
adequately address the cumulative effects on the environment of operating Units 3 and 4 through
the subsequent license extension period. New information shows that the effects of climate
change, including reasonably foreseeable increases in sea level and air temperature, will have
significant adverse impacts on the continued operation of Units 3 and 4. Thus, the discussion of
Climate Change Impacts on Environmental Resources at pages E-8-E-9 of the 2023 DSEIS is
inadequate to satisfy NEPA. The discussion of cumulative impacts in Section 4.16 of the 2019
FSEIS, upon which the 2023 DSEIS relies, is inadequate for the same reasons.
- 2. Brief explanation of the basis for the contention (10 C.F.R. § 2.309(f)(1)(ii))
NRCs regulations require the agency to include a cumulative impacts analysis of the
continued operations of a plant on a plant-specific basis.176 The draft environmental impact
176 10 C.F.R. § 51.71(d) ([T]he draft environmental impact statement will include a preliminary analysis that considers and weighs the environmental effects, including any cumulative effects, of the proposed action[.]); 10 C.F.R. Pt. 51, Subpt. A, App. B (Cumulative impacts of continued operations and refurbishment associated with license renewal must be considered on a plant-specific basis. Impacts would depend on regional resource characteristics, the resource-specific impacts of license renewal, and the cumulative significance of other factors affecting the resource.).
45
statement must include a preliminary analysis that considers and weighs the environmental effects, including any cumulative effects, of the proposed action.177 Cumulative effects are those
effects on the environment that result from the incremental effects of the action when added to
the effects of other past, present, and reasonably foreseeable actions.178 Impacts that the agency
must review depend on regional resource characteristics, the resource-specific impacts of license
renewal, and the cumulative significance of other factors affecting the resource.179 The
cumulative impacts analysis must account for climate change, including rising sea levels and a
hotter climate.180 A failure to take a hard look at cumulative impacts, including those from
climate change, violates the NRCs NEPA regulations and, thus, NEPA.
On February 24, 2022, the Commission issued two decisions related to Turkey Point
Nuclear Generating Units 3 and 4. In CLI-22-02, the Commission explained that because
[n]either the original 1996 [Generic Environmental Impact Statement (GEIS)] nor the revised
2013 GEIS analyzed the environmental impacts of subsequent license renewal periods,
therefore, the Staff did not conduct an adequate NEPA analysis before issuing FPL licenses for the subsequent license renewal period.181 In CLI-22-03, the Commission defined the scope of
177 10 C.F.R. § 51.71(d).
178 40 C.F.R. § 1508.1(g)(3).
179 10 C.F.R. Pt. 51, Subpt. A, App. B.
180 See Renewing Nuclear Power Plant Operating Licenses-Environmental Review, 88 Fed. Reg. 13329 (Mar. 3, 2023) (noting that climate change impacts on affected resources will be treated on a plant-specific basis).
181 Florida Power & Light Company (Turkey Point Nuclear Generating Units 3 and 4) CLI 02, 95 N.R.C. at 26, 35-36 (Feb. 24, 2022).
46
the full environmental analysis that must be done before the NRC can issue a SLR for the two
Turkey Point units. Issues previously designated as Category 1 (generic) issues must either be
addressed generically for SLR or they must be addressed on a site-specific basis.182 In addition,
the NRCs analysis of issues previously characterized as Category 2 (site-specific) issues must
be revisited in light of new research findings and information since the NRC published the 2019
FSEIS.183
On March 3, 2023, the NRC published a draft rule proposing to amend environmental
protection regulations in 10 C.F.R. Part 51.184 Specifically, the proposed rule would update the
NRCs findings concerning the environmental impacts of renewing the operating license of a nuclear power plant and specifically address subsequent license reviews.185 The 2023 draft rule,
when finalized, would redefine the number and scope of the environmental issues that must be
addressed by the NRC during the initial license renewal (LR) and subsequent license renewal
(SLR) environmental reviews.186 It adds new Category 2 issues to Table B-1, including
climate change impacts on environmental resources.187 The 2023 draft rule explains:
As part of a comprehensive environmental review to meet its obligations under NEPA, the NRC must consider the impacts of climate change on environmental resource conditions that could also be affected by continued nuclear power plant operation and any refurbishment as a result of the proposed action (license renewal). License renewal environmental reviews conducted by the NRC have found that climate change effects on
182 Duke Energy Carolinas, LLC et al., CLI-22-03, 95 N.R.C. at 42.
183 Id.
184 Id.
185 Id.
186 Id.
187 Id.
47
affected resources (e.g., water availability, sea level rise) can be equal to or greater than any direct effects associated with continued nuclear power plant operations during the license renewal term....
The impacts of climate change on environmental resources that are affected by continued nuclear power plant operations and refurbishment during the license renewal term (initial LR or SLR) are location-specific and cannot be evaluated generically. The effects of climate change can vary regionally and climate change information at the regional and local scale is necessary to assess the impacts on the human environment for a specific location. The NRC would need to perform a site-specific impact assessment as part of each license renewal environmental review. Therefore, this is a new Category 2 issue that cuts across multiple resource areas, similar to the cumulative effects issue, which is currently in Table B-1.188
The 2023 proposed rule is expected to be finalized in or about May 2024. To account for
the possibility that the proposed rule may be finalized before a final determination is reached on
FPLs SLR application, and to comply with the Commissions orders in CLI-22-02 and CLI 03, NRC staff purport to analyze on a site-specific basis the new and revised environmental
issues described in the 2023 draft rule, because they may apply to subsequent license renewal for
Turkey Point.189
The NRCs proposed rule, which accurately describes the agencys legal obligation under
NEPA to account for climate change-related impacts in its cumulative impacts assessment, is
consistent with Council on Environmental Quality (CEQ) guidance on cumulative impacts
assessments. The CEQs interim guidance on analyzing climate change effects of their proposed
actions under NEPA advises that:
[A]gencies should identify and use information on future projected GHG emissions scenarios to evaluate potential future impacts (such as flooding, high winds, extreme
188 Id.
189 2023 DSEIS at E-8.
48
heat, and other climate change-related impacts) and what those impacts will mean for the physical and other relevant conditions in the affected area.... Agencies also should consider the likelihood of increased temperatures and more frequent or severe storm events over the lifetime of the proposed action, and reasonable alternatives (as well as the no-action alternative). For example, an agency considering a proposed development of transportation infrastructure on a coastal barrier island should consider climate change effects on the environment and, as applicable, consequences of rebuilding where sea level rise and more intense storms will shorten the projected life of the project and change its effects on the environment.190
The CEQ further advises agencies to use the best available information and science when
assessing the potential future state of the affected environment in NEPA analyses and providing
up to date examples of existing sources of scientific information.191
The NRC is aware that it must evaluate the additive effects of climate change on
environmental resources that may also be directly affected by continued operations and
refurbishment during the license renewal term. The agency itself acknowledged this in its 2023 DSEIS at E-8.192 The NRC claims to analyze the additive effects of climate change on
environmental resources that may also be directly affected by continued operations and
190 National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions and Climate Change, 88 Fed. Reg. 1196 (Jan. 9, 2023).
191 Id.
192 2023 DSEIS at E-8 (With respect to climate change, the draft rule proposes to amend Table B-1 in Appendix B to Subpart A of 10 C.F.R. Part 51 by adding the new Category 2 issue Climate change impacts on environmental resources. This new issue considers the additive effects of climate change on environmental resources that may also be directly affected by continued operations and refurbishment during the LR term. The effects of climate change can vary regionally and climate change information at the regional and local scale is necessary to assess trends and the impacts on the human environment for a specific location. The impacts of climate change on environmental resources during the LR term are location-specific and cannot be evaluated generically.).
49
refurbishment during the subsequent license renewal term.193 The 2023 DSEIS cites new 2023
literature from the International Panel on Climate Change (IPCC), which concludes that [i]t is
unequivocal that human influence has warmed the atmosphere, ocean, and land.194 Despite the
new information, the 2023 DSEIS states that the new information published by the IPCC does not alter the conclusions in the 2019 FSEIS regarding climate change.195 However, the agency
chose to ignore the issue in its response to scoping comments,196 asserting that climate change
impacts on environmental resources had already been addressed in the 2019 FSEIS and did not
need to be further addressed because [t]here have been no updates to the climate change reports
from the [U.S. Global Change Research Program (USGCRP)] and the NOAA since the
publication of the FSEIS, and the new information published by the IPCC does not alter the
conclusions in the FSEIS regarding climate change.197
NRCs claim that the 2019 FSEIS adequately addresses the cumulative effects that
continued operation of Turkey Point reactors during the subsequent license renewal term will
have on environmental resources is incorrect for several reasons. First, contrary to NRCs claim,
there have been updates to the climate change reports from the USGCRP and the NOAAin
February 2022, NOAA published its updated Global and Regional Sea Level Rise Scenarios for
193 Id. at E-8.
194 Id. at E-9
195 Id. at E-9.
196 Id.
197 Id. at E-8-E-9.
50
the United States.198 It appears that NRC has not considered this report in its analysis, despite the
fact that the NOAA report was published about 18 months prior to the NRCs 2023 DSEIS.
Second, contrary to the NRCs claim, the 2019 FSEIS did not adequately address the
cumulative effects that continued operation of Turkey Point reactors during the subsequent
license renewal term will have on environmental resources. The 2019 FSEIS failed to consider
the cumulative effects of operating Units 3 and 4, which utilize the CCS, on water resources associated with reasonably foreseeable increases in sea level rise and air temperature.199
Therefore, the NRC is wrong to claim that climate change impacts on environmental resources
has already been adequately addressed in the 2019 FSEIS. The NRC fails to address these
shortfalls in the 2023 DSEIS, and therefore falls short of its obligation under NEPA and NRCs
implementing regulations.
The NRC further justifies sidestepping a full analysis of environmental effects in its
August 7, 2023 Site Specific Environmental Impact Statement Scoping Process Summary Report
for Turkey Point Nuclear Generating Unit Nos. 3 and 4.200 There, the agency stated:
The effects of climate change on Turkey Point Units 3 and 4 structures, systems, and components are outside the scope of the NRC staffs license renewal environmental review.
As stated in the 2019 FSEIS (at 4-124), the NRC does not consider or evaluate the impacts of climate change on Turkey Point operations or its structures, systems, and components
198 William V. Sweet et al., GLOBAL AND REGIONAL SEA LEVEL RISE SCENARIOS FOR THE UNITED STATES, NATIONAL OCEANIC AND ATMOSPHERIC ADMINISTRATION (Feb. 2022), available at https://oceanservice.noaa.gov/hazards/sealevelrise/noaa-nos-techrpt01-global-regional-SLR-scenarios-US.pdf (hereinafter Sweet et al. 2022).
199 2019 FSEIS 4-118-4-127; 10 C.F.R. Pt. 51, Subpt. A, App. B.
200 SITE SPECIFIC ENVIRONMENTAL IMPACT STATEMENT SCOPING PROCESS
SUMMARY
REPORT FOR TURKEY POINT NUCLEAR GENERATING UNIT NOS. 3 AND 4 (Aug. 2023), Accession No. ML23198A271 (Aug. 3, 2023).
51
during its SLR environmental reviews, as these issues are outside the scope of the SLR environmental review.201
The NRC must include an adequate cumulative impacts analysis of the continued
operations of a plant on a plant-specific basis, taking into account the best available science with
respect to changes in the hydrosphererecognizing that the next 30 years will not be like the
past 30 years. The attendant circumstances surrounding the plant are changing. The global mean
sea level in the area around Turkey Point has risen over the past century and is projected to continue rising at an accelerated rate throughout this century and beyond.202 Likewise, the annual
average temperature of the contiguous United States is projected to rise throughout this century.203
- a. Cumulative impacts of rising sea levels
According to the 2022 Sea Level Rise Technical Report, Global and Regional Sea Level
Rise Scenarios for the United States, which was written on behalf of the U.S. Sea Level Rise and
Coastal Flood Hazard Scenarios and Tools Interagency Task Force by twenty-four authors from
federal agencies and academic institutions, [r]elative sea level along the contiguous U.S.
(CONUS) coastline is expected to rise on average as much over the next 30 years (0.25-0.30 m
over 2020-2050) as it has over the last 100 years (1920-2020).204 Higher sea level rise is
201 Id. at 25-26.
202 Declaration of Robert Kopp ¶ 13(i) (Exhibit 6) (referencing Sweet et al. 2022).
203 IPCC REPORT (2022), Summary for Policymakers, at 14, available at https://www.ipcc.ch/report/ar6/wg1/downloads/report/IPCC_AR6_WGI_SPM_Stand_Alone.pdf.
204 Sweet et al. 2022.
52
expected along the East and Gulf Coasts as compared to the West and Hawaiian/Caribbean Coasts.205 The report concludes that:
By 2050, the expected relative sea level (RSL) will cause tide and storm surge heights to increase and will lead to a shift in U.S. coastal flood regimes, with major and moderate high tide flood events occurring as frequently as moderate and minor high tide flood events occur today. Without additional risk reduction measures, U.S. coastal infrastructure, communities, and ecosystems will face significant consequences.206
Sea-level rise for the remainder of this century in South Florida, including around Turkey
Point, will be faster than the average over the last century in every reasonably foreseeable
climate change scenario.207 Scenarios for average sea-level rise at Key West over 2041-2059,
relative to average sea level over 1995-2014, are as follows:
205 Sweet et al. 2022.
206 Sweet et al. 2022.
207 Declaration of Robert Kopp ¶ 15 (Exhibit 6).
53
Based on the spatial scales of variability of sea level, conclusions drawn from this tide gauge can be reasonably construed to reflect the changes experienced at Turkey Point.208 These
projections indicate the acceleration of sea level rise in the South Florida region and underscore
Turkey Points vulnerability to sea level rise with its current operating conditions. Yet the 2023
DSEIS fails to adequately consider the cumulative impacts that the continued operations of the
plant will have, in light of these reasonably foreseeable changes in sea level rise that have been
projected by a consortium of experts from federal agencies and academic institutions.
The 2023 Federal Flood Risk Management Standard Climate-Informed Science
Approach (CISA) State of the Science Report, written by the Federal Flood Risk Management
Standard (FFRMS) Science Subgroup of the Flood Resilience Interagency Working Group of the
National Climate Task Force, directs federal agencies to apply this latest interagency Federal guidance for regionally-based sea level rise projections.209 Thus, for Turkey Point, the 2023
guidance directs NRC to use either the Intermediate High (central value of 1.3 ft in 2050 and 1.9
ft in 2060, relative to a 1995-2014 baseline) or High (central value of 1.6 ft in 2050 and 2.3 ft in
2060, relative to a 1995-2014 baseline) scenarios to generate planning curves when considering
the environmental impacts of a 30-year extension of the Turkey Point license.210 NRC has not
done so in its 2023 DSEIS.
208 Declaration of Robert Kopp ¶ 16 (Exhibit 6).
209 Declaration of Robert Kopp ¶ 17 (Exhibit 6).
210 Declaration of Robert Kopp ¶ 18 (Exhibit 6).
54
Hurricanes and tropical cyclones are becoming more intense as temperatures rise due to climate change, particularly in the North Atlantic.211 Recent studies project that the proportion of
tropical cyclones reaching category 4 & 5 intensity will increase in a warming climate.212 These
studies project that in the North Atlantic, category 4 & 5 storms will increase in frequency by a factor of 1.5 to 2.0, depending on the extent of future emissions.213 Scientists have documented
rapid intensification of Atlantic tropical cyclones in recent decades. S214 As the intensity of
coastal storms increases, so does the frequency and extent of extreme flooding.215 The forward
motion (translation speed) of tropical cyclones may have slowed over the continental U.S. over
the past decade, which causes an increase in rainfall and flooding, due to the longer duration a tropical cyclone is within the same area.216 Studies predict a 8% to 17% increase in rainfall rate
for tropical cyclones in the North Atlantic under a medium future emissions scenario, exacerbating flood risk.217
Continued sea level rise will likely exacerbate storm surge inundation and flooding.218
One study found that [i]n coastal regions, higher storm inundation levels will be among the
211 Thomas R. Knutson et al., Climate Change is Probably Increasing the Intensity of Tropical Cyclones, SCIENCEBRIEF REVIEW, at 1-2 (Mar. 2021) (Exhibit 15).
212 Id. at 5.
213 Id. at 5.
214 Id. at 4.
215 Id. at 1.
216 Id. at 3.
217 Id. at 6.
218 Id. at 6.
55
greatest potential impacts of future tropical cyclones under climate change, where the
combination of likely increased storm intensity and rainfall rates and continued sea level rise will
act to increase inundation risk of low-lying, unprotected region.219 This threat is particularly
salient for Atlantic coastal areas like Turkey Point, with one study projecting that the combined
effects of sea level rise and tropical cyclone storm surge by the late 21st century (20702095),
under a high emissions scenario (RCP8.5), will result in the historical 100-year flood level
occurring every 1-30 years in the Gulf of Mexico and southeast Atlantic coast, and every year in
the mid-Atlantic coast.220 For an intense storm with an appropriate track, extreme water levels
well above the highest level observed historically at a particular site are well within the range of possibility.
Extreme high-water levels are projected to arise from the superimposition of tidal and storm influences on top of a higher average sea level.221 The 2022 IPCC report found, with high
confidence, that increases in tropical cyclone winds and rainfall, and increases in extreme
waves, combined with relative sea level rise, exacerbate extreme sea level events and coastal hazards.222 Nationally, the frequency of moderate high tide flooding events (approximately 2.8
219 Id. at 6.
220 Id. at 7.
221 IPCC (AR6 Working Group 1 Contribution): Chapter 9, INTERGOVERNMENTAL PANEL ON CLIMATE CHANGE (2021), at 1309, available at https://www.ipcc.ch/report/ar6/wg1/downloads/report/IPCC_AR6_WGI_Chapter09.pdf (Exhibit 6, Attachment D).
222 IPCC SPECIAL REPORT: SPECIAL REPORT ON THE OCEAN AND CRYOSPHERE IN A CHANGING CLIMATE, Summary for Policymakers, available at https://www.ipcc.ch/srocc/chapter/summary-for-policymakers/.
56
ft above current mean higher high water) in 2050 is expected to be 10 times greater than in 2020.223
Even with drastic reductions in emissions of greenhouse gasses and if the Antarctic ice
sheets remain relatively stable, it is likely that sea-level rise will exceed 1 foot in south Florida by 2060.224
The NRC has not adequately considered the reasonably foreseeable impacts of Bay
waters increasingly over-topping the banks of the cooling canal system in its 2023 DSEIS.
Repeated inundation, and then constant flooding as the mean high water line of the bay shifts
landward,225 would mean that the surface waters of the cooling canal will flow into Biscayne Bay
National Park, carrying with it thermal pollution, and high levels of tritium, phosphorus, and salt-
concentrated waters.
- b. Cumulative impacts of increasing air temperatures
The annual average temperature of the contiguous United States is projected to rise
throughout this century.226 For the period 2021-2040, temperatures are projected to rise on
223 Sweet et al. 2022 at 41-42.
224 Declaration of Robert Kopp ¶ 15; Interagency Sea Level Rise Scenario Tool: Key West, National Oceanic and Atmospheric Administration (2022), available at https://sealevel.nasa.gov/task-forcescenario-tool?psmsl_id=188 (Exhibit 6, Attachment B).
225 See Sweet et al. at 28 (As sea levels continue to rise, coastal water levelsfrom the mean to the extremeare growing deeper and reaching farther inland along most U.S. coastlines. Where local relative sea level (RSL) is rising, the wet-dry land delineation (i.e., mean higher high water
[MHHW] tidal datum) is encroaching landward, causing more permanent inundation and land loss... ; affecting groundwater levels, stormwater systems effectiveness, and water quality; and altering the intertidal zone and its ecosystems.) (internal citations omitted).
226 IPCC REPORT, Summary for Policymakers (2022), at 14, available at
57
average by 2.7°F for a lower scenario.227 Projected temperature increases in the Southeast for the
2036-2065 period range from 3.40°F to 4.30°F.228 Temperatures in the Southeast over 2036-
2065 are projected to be 5.79°F higher on the warmest day of the year compared to the 1976-
2005 period.229 Change in the warmest 5-day, 1-in-10-year event for the same period is
11.09°F.230 Extreme temperatures in the contiguous United States are projected to increase even
more than average temperatures, with heat waves becoming more intense. 231
The Applicants current operating license limits allowable intake water temperature for
Units 3 and 4 at 104°F.232 In 2014, the Applicant requested and received from the NRC a
modification to its license authorizing an increase of 4°F (from 100 to 104) for its cooling water intake.233 The Applicant requested this modification to its license because prolonged hot
weather in the area has resulted in sustained elevated [Ultimate Heat Sink] temperatures...
. High temperatures during the daytime with little cloud cover and low precipitation have
resulted in elevated canal water temperatures at the Turkey Point site.234 The average intake
https://www.ipcc.ch/report/ar6/wg1/downloads/report/IPCC_AR6_WGI_SPM_Stand_Alone.pdf.
227 Id. at 14.
228 Donald J. Wuebbles et al., CLIMATE SCIENCE SPECIAL REPORT: FOURTH NATIONAL CLIMATE ASSESSMENT, U.S. GLOBAL CHANGE RESEARCH PROGRAM (2017), at 197, Table 6.4, available at https://science2017.globalchange.gov/downloads/CSSR2017_FullReport.pdf.
229 Id. at 198, Table 6.5.
230 Id.
231 Id. at 202.
232 ER at 3-112.
233 ER at 3-112.
234 FPL, Letter, Request for Enforcement Discretion Regarding Technical Specification 3/4.7.4,
58
temperature of cooling water for Units 3 and 4 is 2.5°F above the average ambient air temperature.235 The foreseeable increase in air temperature at Turkey Point during the
subsequent license renewal period, absent mitigating measures, will likely cause intake water
temperatures to exceed the 104°F limit in the Applicants operating license. An increase in air
temperature during the subsequent license renewal period will increase the rate of evaporation
from the cooling water canals, thereby increasing salinity in the canals and cumulative impacts
on groundwater.
The NRC has similarly failed to adequately consider how incrementally higher
temperatures over the license renewal period will drive greater evaporative losses in the CCS,
and what this will mean for groundwater use conflicts. Already the 2023 DSEIS pegs the
potential for groundwater use conflicts as MODERATE with respect to the Upper Floridan Aquifer under current pumping levels.236 The NRC must update its cumulative impacts analysis
in the site-specific EIS to evaluate the cumulative significance of these reasonably foreseeable
hotter air temperatures, longer droughts, and increased sea level rise inundation interacting with
the cooling canal system over the subsequent license renewal period and conclude how those
interactions will, cumulatively, affect regional resource characteristics-plus mitigative measures
designed to avoid or minimize impacts to those regional resource characteristics. The agency
Ultimate Heat Sink, ADAMS Accession No. ML14204A083 (July 21, 2014).
235 FPL, Letter, License Amendment Request No. 231, Application to Revise Technical Specification to Revise Ultimate Heat Sink Temperature Limit, ADAMS Accession No. ML14196A006 (July 10, 2014).
236 2023 DSEIS at 2-22.
59
must do this to ascertain the resource-specific impacts of license renewal. For these reasons, the
2023 DSEIS does not adequately address the cumulative effects on the environment of operating
Units 3 and 4 through the license extension periodand therefore fails to comply with 10 C.F.R.
§ 51.71(d).
- 3. The issue raised in the contention is within the scope of the proceeding (10 C.F.R. § 2.309(f)(1)(iii))
The issue is within the scope of the proceeding because NRCs NEPA regulations require a plant-specific assessment of cumulative impacts.237 It is a fallacy, and contrary to scientific
consensus across federal agencies, to conclude that the attendant environmental conditions
during the next 30 years will be just like the previous 30 years. Future attendant environmental
conditions will interact with plant operations in increasingly extreme ways, as explained above,
so the NRC must analyze how these interactions will affect the extent of the environmental
impacts listed in 10 C.F.R. Part 51 Appendix A., Subpart B., Table B-1. The authors of the
scoping letter summary report are incorrect that the NRC does not consider or evaluate the
impacts of climate change on Turkey Point operations or its structures, systems, and components
during its SLR environmental reviews.238 These issues are within the agencys scope.
The NRC is aware that it must evaluate the additive effects of climate change on
environmental resources that may also be directly affected by continued operations and
237 10 C.F.R. § 51.71(d); 10 C.F.R. Pt. 51, Subpt. A, App. B.
238 SITE-SPECIFIC ENVIRONMENTAL IMPACT STATEMENT SCOPING PROCESS
SUMMARY
REPORT:
TURKEY POINT NUCLEAR GENERATING UNIT NOS. 3 AND 4, NRC (Aug. 2023), at 25-26, available at https://www.nrc.gov/docs/ML2319/ML23198A271.pdf.
60
refurbishment during the license renewal term. The agency has directly acknowledged this in the
2023 DSEIS at E-8. The agency cannot meaningfully address the cumulative impacts of climate
change on plant operations and the environmental impacts that will result from the plant
operating under changing attendant circumstances unless it accounts for greater and more
accelerated sea level rise and increasing air temperatures during the license renewal period.
- 4. The issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding (10 C.F.R.
§ 2.309(f)(1)(iv))
Each of Petitioners contentions are material to the findings the NRC must make.239 A
material issue is one that would make a difference in the outcome of the proceeding.240 This
means that there should be some significant link between the claimed deficiency and either the
health and safety of the public or the environment.241
The issue raised is material to the findings NRC must make because the NRC is required
to undertake a cumulative impacts analysis as part of its NEPA-implementing regulations.242 The
omission is environmentally significant, and therefore material to the outcome of this
proceeding. The issue is also material because a failure to take a hard look at cumulative impacts
associated with the proposed project constitutes a violation of NEPA.243
239 10 C.F.R. § 2.309(f)(1)(iv).
240 Rules for Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, 54 Fed. Reg. at 33,172.
241 Vermont Yankee, 60 N.R.C. 548, 557 (Nov. 22, 2004).
242 10 C.F.R. § 51.71(d); 10 C.F.R. Pt. 51, Subpt. A, App. B.
243 42 U.S.C. § 4332(C); 10 C.F.R. § 51.71(d); 10 C.F.R. Pt. 51, Subpt. A, App. B.
61
- 5. Concise statement of the alleged facts or expert opinions which support the petitioners position on the issue and on which the petitioner intends to rely at hearing (10 C.F.R. § 2.309(f)(1)(v))
The NRC must take into account the best available science with respect to changes in the
hydrosphere and climate, recognizing that the next 30 years will not be like the past 30 years. As
demonstrated in Section III.2. above, the attendant circumstances surrounding the plant are
changing. Global mean sea level in the area around Turkey Point has risen over the past century
and is projected to continue rising at an accelerated rate throughout this century and beyond.244
The annual average temperature of the contiguous United States is projected to rise throughout
this century.245 Petitioner intends to rely on expert testimony from Dr. Robert Kopp regarding
climate change impacts, including worsening storms and sea level rise in the vicinity of the plant.
- 6. A genuine dispute exists with the applicant on a material issue of law or fact (10 C.F.R. § 2.309(f)(1)(vi))
Each of Petitioners contentions demonstrates sufficient information to show that a
genuine dispute exists with the Applicant on a material issue of law or fact. The NRC sets forth
factors relevant to determining if a genuine dispute exists in 10 C.F.R. § 2.309(f)(1):
This will require the intervenor to read the pertinent portions of the license application, including the Safety Analysis Report and the Environmental Report, state the applicant's position and the petitioner's opposing view. Where the intervenor believes the application and supporting material do not address a relevant matter, it will be sufficient for the intervenor to explain why the application is deficient.246
244 Declaration of Robert Kopp ¶ 15 (Exhibit 6) (referencing Sweet et al. 2022).
245 IPCC REPORT (2022), Summary for Policymakers, at 14, available at https://www.ipcc.ch/report/ar6/wg1/downloads/report/IPCC_AR6_WGI_SPM_Stand_Alone.pdf.
246 Rules for Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, 54 Fed. Reg. at 33,170.
62
The NRCs regulations require the agency to include a cumulative impacts analysis of the continued operations of a plant on a plant-specific basis.247 The draft environmental impact
statement must include a preliminary analysis that considers and weighs the environmental
effects, including any cumulative effects, of the proposed action.248 Since the NRC failed to
adequately consider cumulative impacts on water resources associated with reasonably
foreseeable increases in sea level rise and hotter temperatures during the subsequent license
renewal period, a genuine dispute exists with the agencys analysis of cumulative impacts on
water resources.
As set forth in detail in the contention above, Petitioner satisfies the admissibility
standard with respect to each contention.
CONTENTION IV: THE DRAFT SITE-SPECIFIC ENVIRONMENTAL IMPACT STATEMENT FAILS TO TAKE A HARD LOOK AT IMPACTS TO ENDANGERED SPECIES
- 1. Statement of the issue of law or fact to be raised or controverted (10 C.F.R. § 2.309(f)(1)(i))
NRC regulations require the 2023 DSEIS to consider the effects of Turkey Points continued operation on endangered species.249 To ensure that lead federal agencies take a hard
look at environmental impacts, agencies must consult with and obtain the comments of any
Federal agency which has jurisdiction by law or special expertise with respect to any
247 See 10 C.F.R. Pt. 51, Subpt. A, App. B.
248 10 C.F.R. § 51.71(d).
249 10 C.F.R. § 51.71(c).
63
environmental impact involved.250 In its NEPA-implementing regulations, the NRC is required,
pursuant to 10 C.F.R. §51.71(c), to list all federal permits, licenses, approvals, and other
entitlements which must be obtained in implementing the proposed action and will describe the
status of compliance with those requirements. The NRC must also indicate in the draft SEIS if it
is uncertain whether a federal permit, license, approval, or other entitlement is necessary. Under
Section 7 of the Endangered Species Act (ESA),251 the NRC is obliged to consult with the U.S.
Fish and Wildlife Service (FWS) about endangered or threatened species that may be affected
by a proposed action.252
Here, the 2023 DSEIS253 unlawfully fails to address whether the continued operation of
Turkey Point Units 3 and 4 and its cooling canals will affect an ESA-proposed species, South
Floridas endemic Miami cave crayfish (Procambarus milleri). FWS proposed the Miami cave crayfish for listing as a threatened species under the ESA on September 20, 2023.254 However,
the relevant section of the 2023 DSEIS is silent as to whether the NRC consulted with FWS
about the Miami cave crayfish.255 As such, the NRC has not taken a hard look at impacts to
endangered species and has not fulfilled its obligations under ESA Section 7(a)(2) of the
Endangered Species Act, and the EIS cannot be finalized until consultation with FWS has been
250 423 U.S.C. § 4332(C).
251 50 C.F.R. § 402.
252 42 U.S.C. § 4332.
253 2023 DSEIS at B-1.
254 Endangered and Threatened Wildlife and Plants; Threatened Species Status with Section 4(d)
Rule for the Miami Cave Crayfish, 88 Fed. Reg. 64,856 (Sept. 20, 2023).
255 2023 DSEIS at E5-6.
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concluded for the effects of the plants operation through the subsequent license period on the
cave crayfish.
- 2. Brief explanation of basis for the contention (10 C.F.R. § 2.309(f)(ii)) and statement that genuine dispute exists with the licensee on a material issue of law or fact (10 C.F.R. § 2.309(f)(1)(vi))
FWS proposed the Miami cave crayfish for listing as a threatened species under the ESA
on September 20, 2023.256 A threatened species is likely to become an endangered species
within the foreseeable future throughout all or a significant portion of its range.257 Pursuant to
the ESA, FWS must designate the critical habitat for the Miami cave crayfish, including areas
essential to the conservation of the species.258 The proposed area identified as critical habitat is
expected to be published in the Federal Register in early 2024, subsequent to its review by the
Office of Information and Regulatory Affairs.259
The ESA requires that federal agencies ensure their actions [are not] likely to jeopardize
the continued existence of any endangered species or result in the destruction or adverse
modification of its critical habitat.260 As required in Section 7 of the ESA, a lead federal agency
is required to consult with FWS about endangered or threatened species or their critical habitats
256 Endangered and Threatened Wildlife and Plants; Threatened Species Status with Section 4(d)
Rule for the Miami Cave Crayfish, 88 Fed. Reg. 64,856 (Sept. 20, 2023).
257 16 U.S.C. § 1532(20).
258 Threatened Species Status with Section 4(d) Rule for the Miami Cave Crayfish, 88 Fed. Reg.
at 64,869; 16 U.S.C. §§ 1533(a)(3), 1532(5).
259 Threatened Species Status with Section 4(d) Rule for the Miami Cave Crayfish, 88 Fed. Reg.
at 64,869; Executive Order 12,866.
260 16 U.S.C. § 1536(a)(2).
65
that might be affected by a proposed action.261 The lead agency also has the option of a
conference consultation; these consultations are intended to assist federal agencies and any
applicants in identifying and resolving potential conflicts at an early stage of the planning
process and to develop recommendations to minimize or avoid adverse effects to proposed species, candidate species, or proposed critical habitat.262 However, the 2023 DSEIS does not
mention nor consider the proposed threatened species, the Miami cave crayfish. In the NRCs
2023 DSEIS, the agency documents its request to reinitiate consultation with FWS under Section
7 for the American crocodile (Crocodylus acutus), but the agency has not documented
conference or reinitiation of consultation for any other species.263
To assess a species viability, FWS characterizes the biological status of the species in
terms of its resiliency, redundancy, and representation.264 FWS found the Miami cave crayfish to
have low resiliency, redundancy, and representation.265 This was attributed to the species
restricted endemic habitat and its low threshold to adapt to catastrophic events, like shifts in
freshwater quality and/or quantity, which is enhanced by the Biscayne Aquifers connectivity.
261 50 C.F.R. § 402.10(a).
262 CONSULTATION HANDBOOK: PROCEDURES FOR CONDUCTING CONSULTATION AND CONFERENCE, ACTIVITIES UNDER SECTION 7 OF THE ENDANGERED SPECIES ACT, U.S. FISH &
WILDLIFE SERVICE (Mar. 1998), available at https://www.fws.gov/sites/default/files/documents/endangered -species-consultation-handbook.pdf.
263 2023 DSEIS at B-1.
264 MIAMI CAVE CRAYFISH (PROCAMBUS MILLERI) SPECIES STATUS ASSESSMENT, VERSION 1.0, U.S. FISH & WILDLIFE SERVICE (Jan. 2022) (Exhibit 16).
265 Id. at 92-93.
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The high permeability and connectivity of the Biscayne Aquifer make it particularly susceptible to contaminants, including pollution from neighboring waterbodies.266
The Miami cave crayfish is highly endemic to the Miami-Dade County region. Its habitat
range is localized within the Biscayne Aquifer and along the Atlantic Coastal Ridge of Miami-Dade County.267 Habitat requirements specific to the Miami cave crayfish include
- 1. freshwater of sufficient water quality and quantity, 2. overlying surface cover that facilitates nutrient flow into subterranean ecosystems, and 3. karstic limestone substrate marked by a vertical and horizontal network of megaporosities. These elements allow for individuals to have sufficient food and shelter resources to grow, reach maturity, and reproduce.268
FWS detailed several variables that may impact the species, including saltwater intrusion and groundwater contamination.269 FPL operates its Turkey Point Nuclear Power Plant Units 3
and 4 in close proximity to the species habitat and near the Atlantic Coastal Ridge.270 In their
current operation, Turkey Points Units 3 and 4 disturb the Biscayne Aquifers fragile
environment. Turkey Points expansive, unlined CCS spans nearly 6,000 acres271 and contributes
to two anthropogenic sources that could impact the Miami cave crayfish: tritium and
hypersalinity.
266 Id. at 56.
267 Id. at 19.
268 Id. at 24.
269 Id. at v-viii and 77.
270 Id. at 61-62, Figure 3.4.3, 65.
271 David A. Chin, The Cooling Canal System at the FPL Turkey Point Power Station, U. MIAMI (2015) (Exhibit 17).
67
The waters in Turkey Points cooling canals have reported tritium levels at least two magnitudes higher than those in surrounding bodies of water.272 The tritium pollution is not
localized to the CCS since the canals actively convey water to the surrounding environment.
Miami-Dade County conducted surface water sampling in Biscayne Bay near the CCS and
found that all samples contained tritium concentrations higher than background levels typical for
Biscayne Bay surface waters (where the baseline is 20 pCi/L).21 The approximate limit of the 20
pCi/L contour has been reported as far as 3.8-4.7 miles west of the CCS and 2.1 miles east of the
CCS.273 Additionally, current and sustained exposure to tritium and other radioactive isotopes
associated with nuclear power generation can negatively impact the Miami cave crayfish, as
crustaceans are exceedingly sensitive to short-and long-term radiation exposure. This can lead to
high, even multigenerational, morbidity and mortality within the species.274
272 MIAMI CAVE CRAYFISH (PROCAMBUS MILLERI) SPECIES STATUS ASSESSMENT, VERSION 1.0, U.S. FISH & WILDLIFE SERVICE (Jan. 2022) at 61; John H. Janzen, P.G. & Steven Krupa, P.G.,
Water Quality Characterization of Southern Miami-Dade County and Nearby FPL Turkey Point Power Plant Miami-Dade County, Florida. Technical Publication WS-31, SOUTH FLORIDA WATER MANAGEMENT DISTRICT (June 2011), at 8, available at https://sfwmd.gov/sites/default/files/documents/ws-31_wqc_turkeypoint_janzen-v2010.pdf.
273 David A. Chin, The Cooling Canal System at the FPL Turkey Point Power Station, U. MIAMI (2015), at 2.
274 MIAMI CAVE CRAYFISH (PROCAMBUS MILLERI) SPECIES STATUS ASSESSMENT, VERSION 1.0, U.S. FISH & WILDLIFE SERVICE (Jan. 2022), at 63; Neil Fuller et al. The Biological Effects of Ionising Radiation on Crustaceans: A Review, 167 AQUATIC TOXICOLOGY (2015), at 57, 58, 60-63, available at https://www.sciencedirect.com/science/article/pii/S0166445X15300187?via%3Dihub.
68
The Miami cave crayfish is especially susceptible to saltwater intrusion because of its restricted range within the Biscayne Aquifer.275 The leakage of saltwater from canal systems into
the freshwater aquifer compounds the issue because it causes complete loss of habitat and is
projected to get worse in the future; and the species has no dispersal potential outside of its current, restricted range.276 The unlined cooling canals have contributed to a hypersaline plume
within the Biscayne Aquifer.277, 278 Hypersaline waters are extreme environments that have a
higher salt salinity than seawater and may be salt-saturated.279 Normal seawater has about 35
practical salinity units and a chlorine level of 19,000 mg/L. Miami-Dade Countys Division of
Environmental Resources Management (DERM) defines hypersaline groundwater as having a chlorinity of more than 19,000 mg/L.280
275 MIAMI CAVE CRAYFISH (PROCAMBUS MILLERI) SPECIES STATUS ASSESSMENT, VERSION 1.0, U.S. FISH & WILDLIFE SERVICE (Jan. 2022) (Exhibit 16).
276 Threatened Species Status with Section 4(d) Rule for the Miami Cave Crayfish, 88 Fed. Reg.
at 64,860; Scott T. Prinos et al., Origins and Delineation of Saltwater Intrusion in the Biscayne Aquifer and Changes in the Distribution of Saltwater in Miami-Dade County, FLORIDA: U.S.
GEOLOGICAL SURVEY SCIENTIFIC INVESTIGATIONS REPORT 2014-5025 (2014), at 12-16, available at https://pubs.usgs.gov/sir/2014/5025/pdf/sir2014-5025.pdf.
277 Miami-Dade County Consent Agreement, ADAMS Accession No. ML16015A339 (Oct. 7, 2015).
278 Consent Order, ADAMS Accession No. ML16216A216 (June 20, 2016), available at https://www.nrc.gov/docs/ML1621/ML16216A216.pdf.
279 Virginia I. Rich & Raina M. Maier, Chapter 6 - Aquatic Environments, ENVIRONMENTAL MICROBIOLOGY (2015), at 134, available at http://bly.covenantuniversity.edu.ng/ebooks/Environmental_Microbiology/Chapter-6---Aquatic-Environments_2015_Environmental-Microbiology.pdf.
280 FPL TURKEY POINT COOLING CANAL SYSTEM BASELINE CSEM REPORT, ADAMS Accession No. ML21035A195 (Oct. 2018), available at https://www.nrc.gov/docs/ML2103/ML21035A195.pdf.
69
FPLs attempts to retract the hypersaline plume have proven insufficient.281 Exposure to
hypersaline water constitutes the primary threat to the Miami cave crayfish.282 Prolonged
exposure to salinity levels above the Biscayne Aquifers natural habitat may result in limited to
no reproduction, reduced numbers and death of fertile eggs, lower hatching success, inhibition of growth, and elevated mortality.283 Ultimately, FWS concluded, the Miami cave crayfish likely
cannot persist in areas affected [by] saltwater intrusion because it needs sufficient freshwater in order to survive and reproduce.284
The NRC must consult with FWS because the full extent of Turkey Points impact on the
Miami cave crayfish has not been assessed. The Applicant provided no information in the
environmental report as to whether the vicinity around the plant, which is subject to influences of
the leaking cooling canal system, has been surveyed for the Miami cave crayfish and its habitat.285 The 2023 DSEIS fails to include any discussion of the potential impacts on the Miami
cave crayfish. As such, the NRC failed to meet NEPAs hard look standard and must engage in
Section 7 consultation with FWS.
281 DERM Letter to FPL (Aug. 3, 2023) (Exhibit 13).
282 MIAMI CAVE CRAYFISH (PROCAMBUS MILLERI) SPECIES STATUS ASSESSMENT, VERSION 1.0, U.S. FISH & WILDLIFE SERVICE (Jan. 2022), at 69 (Exhibit 16).
283 Id. at 69.
284 Threatened Species Status with Section 4(d) Rule for the Miami Cave Crayfish, 88 Fed. Reg.
at 64,860.
285 FPL ENVIRONMENTAL REPORT, SUPPLEMENT 2, ADAMS Accession No. ML22160A301 (June 9, 2022), at 35-38, 41-46, 57-67.
70
- 3. The issue raised in the contention is within the scope of the proceeding (10 C.F.R. § 203.9(f)(1)(iii))
As the NRC did not document any consultation or correspondence with FWS for the
Miami cave crayfish, including seeking a conference opinion, the NRC has not indicated that it has fulfilled its obligations under the Endangered Species Act.286 In its NEPA-implementing
regulations, the NRC is required, pursuant to 10 C.F.R. § 51.71(c), to list all federal permits,
licenses, approvals, and other entitlements which must be obtained in implementing the proposed action and to describe the status of compliance with those requirements.287 If it is uncertain
whether a federal permit, license, approval, or other entitlement is necessary, the draft EIS must so indicate.288 The 2023 DEIS does not indicate whether any surveys for the species or any
consultation, including conference opinion, have been sought for the Miami cave crayfish. The
cooling canal system is well-documented to pollute ground and surface waters with tritium and
excess salinity for miles around the plant, and as such, may have an impact on the species and its
habitat. The NRC has not analyzed this plausible route to effect in its 2023 DSEIS. Therefore,
this contention is within the scope of the proceeding.
286 50 C.F.R. § 402.
287 10 C.F.R. § 51.71(c).
288 10 C.F.R. § 51.71(c).
71
- 4. The issue raised in the contention is material to the finding the NRC must make to support the action that is involved in the proceeding (10 C.F.R.
§ 203.9(f)(1)(iv))
Each of the Petitioners contentions is material to the findings the NRC must make.289
A material issue is one that would make a difference in the outcome of the proceeding.290
This means that there should be some significant link between the claimed deficiency and either
the health and safety of the public or the environment.291
The issue raised in this contentionthe NRCs failure to comply with ESA regulations
requiring consultation and consideration of endangered or threatened species or their critical
habitats that might be affected by a proposed action in its analysisrelates directly to the NRCs
requirements under NEPA and the ESA to consult with FWS if there is a plausible route to effect
for a listed species. As such, the issue is material to the findings that the NRC must make in its
review of the Applicants request for a subsequent license renewal.
289 10 C.F.R. § 2.309(f)(1)(iv).
290 Rules for Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,172 (Aug. 11, 1989).
291 Vermont Yankee, 60 N.R.C. 548, 557 (Nov. 22, 2004).
72
- 5. Concise statement of facts or expert opinions which support Petitioners position and on which Petitioner intends to rely at hearing (10 C.F.R. § 2.309(f)(1)(v))
The facts supporting Petitioners contention are set forth in the Basis Statement in
Subsection 2 above, and in official FPL and government documents as cited in the Statement of
the Contention and Basis Statement.
- 6. A genuine dispute exists with the applicant on a material issue of law or fact (10 C.F.R. § 2.309(f)(1)(vi))
Each of the Petitioners contentions also demonstrates sufficient information to show that
a genuine dispute exists with the Applicant on a material issue of law or fact. The NRC sets forth
factors relevant to determining if a genuine dispute exists in10 C.F.R. § 2.309(f)(1):
This will require the intervenor to read the pertinent portions of the license application, including the Safety Analysis Report and the Environmental Report, state the applicant's position and the petitioner's opposing view. Where the intervenor believes the application and supporting material do not address a relevant matter, it will be sufficient for the intervenor to explain why the application is deficient.292
A genuine dispute exists with the agencys consultation with federal agencies under the
ESA. The NRC failed to consult with FWS as required under NEPA and the ESA for proposed
and listed species that may be impacted by Turkey Points continued operation, as requested in
the subsequent license renewal. As such, the 2023 DSEIS omits the Miami cave crayfish and
does not consider the Plants current or future effects on the proposed listed species for its
operation through the subsequent license renewal period.
292 Rules for Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, 54 Fed. Reg. at 33,170.
73
The continued operation of the cooling canal system throughout the subsequent license
renewal period presents a risk to the Miami cave crayfishs survivability. The high permeability
and connectivity of the Biscayne Aquifer make it particularly susceptible to contaminants
emanating from pollution sources. Contaminants disperse widely through surficial and
subsurface flows. The Applicants cooling canal system is a significant pollution source and has
been well-established to be destabilizing groundwater and surface watersleading to habitat
impacts. The Applicants unlined cooling canal system contributes to the salinization of the
neighboring canals and Aquifer system,293 thus further constricting the Miami cave crayfishs
already localized and niche habitat. Leakage of tritium into the canal system has also been
attributed to the cooling canal system. Exposure to radioactive isotopes like tritium can result in
multigenerational morbidity and mortality in the Miami cave crayfish. The FWSs ESA section 7
provisions require the Federal agency to consult with FWS if actions may affect a listed
species.294 The regulations further state that any actions permitted should be supported by the
best available scientific and commercial information, and if that information is not available, the
benefit of the doubt is afforded to the species when evaluating the potential for jeopardy and
adverse modification.295
As set forth in detail in the contention above, Petitioner satisfies the admissibility
standard with respect to each contention.
293 Expert Report of William Nuttle, Ph.D. (May 14, 2018), at 3-8 (Exhibit 3, Attachment A).
294 Endangered Species Consultations Frequently Asked Questions, ADAMS Accession No. ML16120A505 (Jul. 15, 2013), at 1-2.
295 Id. at 3.
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CONTENTION V: THE DRAFT SITE-SPECIFIC ENVIRONMENTAL IMPACT STATEMENT FAILS TO CONSIDER THE EFFECTS OF CLIMATE CHANGE ON ACCIDENT RISK.
- 1. Statement of the issue of law or fact to be raised or controverted (10 C.F.R. § 2.309(f)(1)(i))
The 2023 DSEIS does not consider the effects of climate change on accident risk, which
are potentially significant. As a result, the 2023 DSEIS fails to meet NEPAs requirement for a hard look at the potential environmental consequences of a proposed agency action.296 The
NRCs failure to consider climate change impacts on the operation of Turkey Point safety
systems is also inconsistent with federal guidance that agencies should consider climate change
impacts on proposed actions and mitigative actions to reduce climate risks and promote
resilience and adaptation.297 As a result of its inadequate impact analysis, the NRC generally
underestimates the environmental impacts of continuing to operate Turkey Point for another
twenty years. This underestimation causes the NRC to omit or understate the benefits of the no-
action alternative and mitigation alternatives.
- 2. Brief explanation of the basis for the contention (10 C.F.R. § 2.309(f)(ii)) and concise statement of facts or expert opinions which support Petitioners position and on which Petitioner intends to rely at hearing (10 C.F.R. § 2.309(f)(1)(v))
This contention is supported by Exhibit 18, the attached Declaration of Jeffrey T. Mitman
(Nov. 27, 2023) (Mitman Declaration). As Mr. Mitman states, climate change environmental
296 Robertson v. Methow Valley Citizens Council, 490 U.S. 3342, 350 (1989).
297 Council on Environmental Quality, National Environmental Policy Act Guidance on Consideration of Greenhouse Gas Emissions and Climate Change, 88 Fed. Reg. 1,196, 1,209 (Jan. 9, 2023).
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impacts constitute a new and fast-developing issue that was not addressed in the 1996 GEIS or the 2013 Revised GEIS.298 In Appendix D, the 2023 DSEIS for Turkey Point purports to address
some aspects of climate change impacts such as impacts on environmental resources like land
use, air quality, and water resources, although the analysis is deficient as set forth elsewhere in
this Hearing Request. However, the 2023 DSEIS does not even attempt to address the
environmental impacts of climate change on radiological accident risks.299 As stated by Mr.
Mitman, the NRCs failure to address climate change impacts on accident risks constitutes a
significant omission, because climate change impacts on safe operation of nuclear reactors may
be significant.300
Climate change affects accident risk in two ways. First, it increases the likelihood or
initiating event frequency of events. For example, increased storm frequency can lead to higher initiating event frequency for losses of offsite power (LOOPs).301
Second, climate change can increase the probability of failure of design features or
mitigation equipment.302 As noted by Mr. Mitman, a severe windstorm at the Duane Arnold plant
in 2020 illustrates this phenomenon. The windstorm caused a loss of offsite power. As a result of
the LOOP, debris accumulated at the suction of the service water systems, which are necessary
to cool the emergency diesel generators (EDGs) and the emergency core cooling system
298 Mitman Declaration ¶ 5.
299 Id. ¶ 5.
300 Id. ¶ 6.
301 Id. ¶ 11.
302 Id.
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(ECCS) heat exchangers. The NRCs risk analysis of the event showed an increase in the
failure probabilities of the service water systems, the EDGs and the ECCS due to this climate-
related external event. While the storm may or may not be directly attributable to climate change,
it is a reasonable example of the type of severe weather effects that climate change can cause
today and will cause in the future. Consideration of these risks in an EIS would provide
important information regarding climate-related accident risk as well as identification of mitigation measures to address those risks.303
A third way that climate change affects risk analysis, which is unique to flooding risk, is
the cliff edge effect. With most hazards if the severity is increased slightly, the stress on the
system is increased somewhat proportionately. However, with many flood-related issues, a small
increase in the hazard can cause a dramatic and often overwhelming impact on a structure. For
example, a small increase in wave height could raise the flood height sufficiently to overtop a
floodwall, inundating the equipment the floodwall is designed to protect. Risk analyses for
climate change-related flooding must look carefully at this cliff-edge phenomenon.304 The
environmental analysis should consider all relevant and up-to-date information, including
government studies. For instance, the National Academies under sponsorship of the National
Oceanic and Atmospheric Administration (NOAA) has started a project to modernize the
probable maximum precipitation (PMP) methodology. 305 This project will consider
303 Id.
304 Id. ¶ 13.
305 Modernizing Probable Maximum Precipitation Estimation, National Academies, https://www.nationalacademies.org/our-work/modernizing-probable-maximum-precipitation-
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approaches for estimating PMP in a changing climate, with the goal of recommending an updated approach, appropriate for decision-maker needs.306 PMP is a significant input into the
design of critical infrastructure such as dam and reactor safety analysis directly and indirectly
through its impact on probable maximum flood (PMF). PMP and PMF also impact reactor
safety directly via their impact on local intense precipitation (LIP). The NRC is aware of this
effort as they have already participated in at least one of the initial project workshops.307
While the 2023 DSEIS is completely silent with respect to climate change impacts on
accident risks, the 2019 FSEIS states that [t]he effects of climate change on Turkey Point Unit 3
and 4 structures, systems, and components are outside the scope of the NRC staffs license renewal environmental review.308 The explanation provided for this exclusion is as follows:
Site-specific environmental conditions are considered when siting nuclear power plants.
This includes the consideration of meteorological and hydrologic siting criteria as set forth in 10 CFR Part 100, Reactor Site Criteria. Turkey Point was designed and constructed in accordance with 10 CFR Part 50, Appendix A, General Design Criteria for Nuclear Power Plants. NRC regulations require that plant structures, systems, and components important to safety be designed to withstand the effects of natural phenomena, such as flooding, without loss of capability to perform safety functions.
Further, nuclear power plants are required to operate within technical safety specifications in accordance with the NRC operating license, including coping with natural phenomena hazards. The NRC conducts safety reviews prior to allowing licensees to make operational changes due to changing environmental conditions.
Additionally, the NRC evaluates nuclear power plant operating conditions and physical infrastructure to ensure ongoing safe operations under the plants initial and renewed operating licenses, through the NRCs reactor oversight program. If new information about changing environmental conditions (such as rising sea levels that threaten safe
estimation#sectionSponsors (last visited Nov. 27, 2023).
306 Id.
307 Id. ¶ 14.
308 2019 GEIS at 4-124.
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operating conditions or challenge compliance with the plants technical specifications) becomes available, the NRC will evaluate the new information to determine if any safety-related changes are needed at licensed nuclear power plants.309
The NRCs reasoning is inconsistent with NEPA in two respects. First, it assumes that if
an NRC licensing decision complies with the Atomic Energy Act with respect to nuclear reactor
safety, it also complies with NEPA. But this rationale was rejected by the U.S. Court of Appeals
in Limerick Ecology Action v. NRC, 869 F.3d 719, 730 (3rd Cir. 1989) (quoting Citizens for Safe
Power, Inc. v. NRC, 524 F.2d 1291, 1299 (D.C. Cir. 1975) ([I]t is unreasonable to suppose that
[environmental] risks are automatically acceptable, and may be imposed upon the public by
virtue of the AEA, merely because operation of a facility will conform to the Commissions
basic health and safety standards.).
Second, the 2019 FSEIS assumes that the NRCs reactor oversight program provides a
sufficient mechanism for identifying and responding to new information. But the NRCs reactor
oversight program is discretionary, allowing the NRC to prioritize when and how it will consider
and address new information about climate change effects on safety and significant information.
And these discretionary determinations generally are not reviewable.310 NEPA, in contrast,
imposes a non-discretionary procedural obligation to consider relevant environmental information whenever the NRC makes a licensing decision.311 And the procedures involve
discussion in a publicly available document that is offered for public comment and subject to
309 Id.
310 See, e.g., Massachusetts Public Interest Research Group, Inc. v. NRC, 852 F.2d 9, 19 (1st Cir.
1988).
311 Limerick Ecology Action, 869 F.2d at 725.
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judicial review.312 Therefore, any consideration the NRC may give to climate change impacts on
accident risks in the course of its reactor oversight program does not constitute a lawful
substitute for consideration in the NEPA review for subsequent license renewal.
- 3. The issue raised in the contention is within the scope of the proceeding (10 C.F.R. § 2.309(f)(iii))
The issue raised by Contention V is within the scope of the subsequent license renewal
proceeding because it challenges the NRCs failure to comply with NEPA in its 2023 DSEIS,
whose purpose is to support the NRCs re-licensing decision for Turkey Point Units 3 and 4.
- 4. The issue raised in the contention is material to the findings the NRC must make to support the action involved in the proceeding (10 C.F.R. § 2.309(f)(1)(iv))
The issue raised by Contention V is material to the findings the NRC must make to
support the action involved in this proceeding, because the NRC must make supportable
environmental findings regarding the environmental impacts of continued operation of Turkey
Point Units 3 and 4 in order to re-license the reactors. Petitioner contends that the 2023 DSEIS
fails to address potentially significant environmental impacts. If Petitioners claims are sustained,
the NRC may refuse to re-license Turkey Point Units 3 and 4 or may impose mitigation measures
that have not been considered or approved.
- 5. Concise statement of the alleged facts or expert opinions which support the petitioners position on the issue and on which the petitioner intends to rely at hearing (10 C.F.R. § 2.309(f)(1)(v))
The facts and expert opinion supporting the Petitioners contention are set forth in the
Basis Statement in Section 2 above, as well as the Mitman Declaration.
312 Id.
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- 6. A genuine dispute exists with the applicant on a material issue of law or fact (10 C.F.R. § 2.309(f)(1)(vi)).
As demonstrated in Sections 1 and 2 above, Petitioner has raised a genuine dispute with
the NRC regarding the adequacy of the 2023 DSEIS to address the environmental impacts of
climate change on accident risk during the proposed license renewal proceeding. Petitioner has
raised a genuine and material dispute by citing specific sections of the 2023 DSEIS that discuss
climate change impacts, explaining what is missing from that discussion, and explaining why the
absence of information about the impacts of climate change on accident risk could significantly
affect the outcome of the 2023 DSEISs environmental analysis.
CONCLUSION
For the reasons stated above, Petitioner should be admitted as a party to the proceeding to
pursue the admissible contentions they have presented.
Respectfully submitted,
/s/ Cameron Bills Cameron Bills Miami Waterkeeper PO Box 141596 Coral Gables, FL 33114-1596 Phone: (305) 905-0856 Email: cameron@miamiwaterkeeper.org
Filed November 27, 2023
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION
BEFORE THE SECRETARY
In the Matter of: )
)
FLORIDA POWER & LIGHT COMPANY ) Docket No. 50-250
) Docket No. 50-251 (Turkey Point Nuclear Generating Station, Unit Nos. 3 )
and 4) ) November 27, 2023
)
(Subsequent License Renewal Application)
CERTIFICATE OF SERVICE
Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, a copy of the foregoing
Request for Hearing and Petition to Intervene Submitted by Miami Waterkeeper was served
upon the Electronic Information Exchange (EIE, the NRCs E-Filing System), in the above-
captioned docket, which to the best of my knowledge resulted in transmittal of same to those on
the EIE Service List for the captioned proceeding.
/Signed (electronically) by/ Cameron Bills Cameron Bills Miami Waterkeeper PO Box 141596 Coral Gables, FL 33114-1596 Phone: (305) 905-0856 Email: cameron@miamiwaterkeeper.org
Counsel for Miami Waterkeeper
November 27, 2023
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