ML24155A267

Applicants Answer to Petitioners Motion to Admit New and Amended Contentions on the Final Site-Specific Environmental Impact Statement

ML24155A267
Person / Time
Site:	Turkey Point
Issue date:	06/03/2024
From:	Bessette P, Clausen S, Hamrick S, Lighty R Florida Power & Light Co, Morgan, Morgan, Lewis & Bockius, LLP
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
ASLBP 24-981-01-SLR-BD01, RAS 57039, 50-250-SLR-2, 50-251-SLR-2
Download: ML24155A267 (0)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

In the matter of: Docket Nos. 50-250-SLR-2 and 50-251-SLR-2 FLORIDA POWER & LIGHT COMPANY

(Turkey Point Nuclear Generating Station, June 3, 2024 Units 3 and 4)

FLORIDA POWER & LIGHT COMPANYS ANSWER TO MIAMI WATERKEEPERS MOTION TO ADMIT AMENDED AND NEW CONTENTIONS IN RESPONSE TO THE NRC STAFFS FINAL SITE -SPECIFIC ENVIRONMENTAL IMPACT STATEMENT

RYAN K. LIGHTY, Esq.

PAUL M. BESSETTE, Esq.

SCOTT D. CLAUSEN, Esq.

MORGAN, LEWIS & BOCKIUS LLP

STEVEN HAMRICK, Esq.

FLORIDA POWER & LIGHT COMPANY

Counsel for Florida Power & Light Company TABLE OF CONTENTS

I. INTRODUCTION............................................................................................................. 1

II. BACKGROUND............................................................................................................... 3 III. EFFECT OF THE PENDING PART 51 RULEMAKING................................................ 6 IV. THE BOARD SHOULD DENY THE MOTION.............................................................. 9 A. Legal Standards...................................................................................................... 9 B. Contention 1-A (No-Action Alternative)............................................................. 10

1. Contention 1-A Is Not Based on New and Materially Different Information.............................................................................................. 11

2. Contention 1-A Is Inadmissible............................................................... 12 C. Contention 1-B (Potable Water).......................................................................... 16

1. Contention 1-B Is Not Based on New and Materially Different Information.............................................................................................. 16

2. Contention 1-B Is Inadmissible............................................................... 17 D. Contention 1-C (Groundwater Quality)............................................................... 22

1. Contention 1-C Is Not Based on New and Materially Different Information.............................................................................................. 22

2. Contention 1-C Is Inadmissible............................................................... 27 E. Contention 2 (Endangered Species)..................................................................... 33

1. Contention 2 Is Inadmissible................................................................... 34 F. Contentions 3-A and 3-B (Climate Change)........................................................ 43

1. Contentions 3-A and 3-B Are Not Based on New and Materially Different Information............................................................................... 43

2. Contention 3-A Is Inadmissible............................................................... 50

3. Contention 3-B Is Inadmissible............................................................... 55 V. THE BOARD SHOULD DENY THE WAIVER REQUEST......................................... 58 A. Legal Standards for Waivers................................................................................ 58 B. Petitioners Waiver Request Should Be Denied.................................................. 60

1. Under the Current Rule, the Board Should Deny the Waiver Request Because a Waiver Is Unnecessary............................................. 60

2. Under the New Rule, the Board Should Deny the Waiver Request Because Petitioner Has Not Made the Requisite Prima Facie Showing................................................................................................... 61 V I. CONCLUSION................................................................................................................ 63 I. INTRODUCTION

Pursuant to 10 C.F.R. § 2.309(i)(1), the Atomic Safety and Licensing Board s (Board)

March 26, 2024 Initial Scheduling Order, 1 and the Boards May 21, 2024 Memorandum and Order, 2

Florida Power & Light Company (FPL or Applicant) submits this Answer to M iami

Waterkeepers (Petitioners) Motion to A dmit Amended and New Contentions in Response to the

NRC Staffs F inal S ite-Specific Environmental I mpact S tatement (Motion) 3 and Petition for a

Waiver of 10 C.F.R. § 51.53(c)(3) and 51.71(D) and 10 C.F.R. Par 51, Subpart A, Appendix B

(Waiver Request) 4 regarding the subsequent license renewal (SLR) application (SLRA) for

Turkey Point Nuclear Generating Station Units 3 and 4 (Turkey Point). The Motion seeks the

admission of one amended contention (with 3 sub-contentions) and two new contentions (one of

which has 2 sub-contentions). Petitioners Waiver Request asks that the application of certain U.S.

Nuclear Regulatory Commission (NRC) environmental regulations be set aside for Contention

3-B. As explained in detail below, the Motion and Waiver Request should be denied in their

entirety.

Petitioner seeks to challenge certain findings and conclusions in the Final Site -Specific

Environmental Impact Statement ( 2024 FSE IS) issued on March 29, 2024. 5 Contentions 1-A,

1-B, and 1-C challenge various aspects of the NRCs groundwater impacts analysis in the

2024 FSE IS. Contention 2 challenges the 2024 FSEISs analysis of the Miami cave crayfish, a

1 Initial Scheduling Order at 3 (Mar. 26, 2024) (unpublished) ( ML24086A446) (Initial Scheduling Order).

2 Memorandum and Order (Requesting that Parties Address Applicability of Part 51 Amendments and Providing Notice of Dates for Possible Oral Argument) ( May 21, 2024) (unpublished) (ML24142A105) (May 21 Order).

3 Miami Waterkeepers Motion to Admit Amended and New Contentions in R esponse to the NRC Staffs Final Site-Specific Environmental Impact Statement (May 8, 2024) (ML24129A220) (Motion).

4 Miami Waterkeeper s Petition For Waiver Of 10 C.F.R. 51.53(C)(3) And 51.71(D) And 10 C.F.R. Part 51, Subpart A, Appendix B (May 8, 2024) ( ML24129A221) (Waiver Request).

5 Id. at 1; Motion at 2.

1 species proposed for listing, but not yet listed under the Endangered Species Act (ESA). And

Contentions 3-A and 3-B claim the NRC failed to consider certain climate change-related risks

discussed in a recently issued report by the U.S. Government Accountability Office (GAO) on

actions the NRC should consider regarding potential effects of climate change (the GAO

Report). 6

In sum, the Motion should be denied as to Contentions 1-A, 1-B, and 1-C, and Contentions

3-A and 3-B because they fail to meet the good cause standard for new or amended contentions in

10 C.F.R. § 2.309(c). In particular, those c ontentions are not based on new or materially different

information. Each attempts to raise arguments that simply did not occur to Petitioner at the outset,

or seeks to recycle or reinvigorate arguments Petitioner raised previously but were rejected.

Additionally, the Motion should be denied as to all of the contentions because none satisfy

the admissibility requirements in 10 C.F.R. § 2.309(f). As an overarching matter, Contentions 1-A,

1-B, and 1-C fail to engage with or dispute the relevant portions of the 2024 FSE IS. These

contentions largely reference outdated information without acknowledging or discussing the more

recent data used by the NRC Staff in its analyses. Contention 2 largely relies on the claims

presented in 1-B and 1-C, and is inadmissible for the same reason. And Contention 3 is based on a

GAO Report that is little more than a compendium of long -available information that offers nothing

to contest the discussion in the 2024 FSE IS which the GAO Report does not purport to review or

analyze. Ultimately, none of these contentions raise a genuine material dispute, and all of them fail

to satisfy one or more of the admissibility criteria. For the reas ons set forth below, the Board

should deny Petitioners Motion and Waiver Request.

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

2 II. BACKGROUND

Much of the background information relevant to this pleading has been provided previously

in FPLs Answer Opposing Miami Waterkeepers Hearing Request and Petition to Intervene dated

December 22, 2023 (FPL Answer). 7 For the sake of brevity, that information is not republished

again here. Instead, FPL incorporates by reference its discussions regarding the scope and

objectives of the NRCs license renewal safety and environmental review s, 8 the history of the

cooling canal system ( CCS) and FPLs efforts to retract the hypersaline plume, 9 and the

procedural history of the Turkey Point SLRA through October 2023. 10 The subsequent procedural

history is summarized below.

Miami Waterkeeper filed its Request for Hearing and Petition to Intervene (Petition ) on

November 27, 2023. 11 The Petition proposed five contentions based on alleged deficiencies in the

draft Site-Specific Environmental Impact Statement for Turkey Points SLRA, issued on

August 31, 2023 (2023 DSEIS). 12 The Petition alleged that the 2023 DSEIS failed to : (1)take a

hard look at the impacts to ground water caused by the continued operation of the CCS; (2)analyze

the benefits of replacing the CCS with cooling towers; (3)adequately consider the cumulativ e

impacts fromclimate change during the subsequent period of extended operation s; (4)address

whether the continued operations would impact the Miami cave crayfish; and (5) consider the effect

7 Florida Power and Light Companys Answer Opposing Miami Waterkeepers Hearing Request and Petition for Leave to Intervene (Dec. 22, 2023) ( ML23356A156) (FPL Answer).

8 Id. at 3-4.

9 Id. at 9-10.

10 Id. at 4-9.

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

(Petition). The Petition was filed with 18 exhibits. (Package No. ML23332A301).

12 NUREG-1437, Supplement 5a, Second Renewal, Site Specific Environmental Impact Statement for License Renewal of Nuclear Plants Regarding Subsequent License Renewal for Turkey Point Nuclear Generating Unit Nos. 3 and 4, Draft Report for Comment (Aug. 31, 2023) ( ML23242A216) ( 2023 DSEIS).

3 of climate change on accident risk. 13 FPL filed its answer on December 22, 2023, 14 as did the NRC

Staff. 15 Both FPL and the NRC Staff and argued that the Petition should be dismissed because

Miami Waterkeeper failed to submit an admissible contention. 16

On March 7, 2024, the Board issued its decision (LBP 03) granting Petitioner s hearing

request and admitting a narrowed and reformulated Contention 1. 17 As reformulated by the Board,

the admitted contention of omission was:

The 2023 Draft SEIS fails to take a hard look at impacts to groundwater quality because it does not include an explanation for the Staffs conclusion that the uncertainty in retracting the hypersaline groundwater plume could result in moderate impacts. 18

The Board dismissed the rest of Petitioners claims in Contentio n 1 as inadmissible because Miami

Waterkeeper failed to provide sufficient information to raise a genuine, material dispute with the

existing information in the [ 2023 DSE IS ]. 19 The Board also found Contentions 2, 3, and 5 to be

inadmissible because they did not raise a genuine, material dispute with the 2023 DSEIS. 20 The

Board found Contention 4 to be premature and stated that Petitioner would have an opportunity to

advance any arguments regarding the agencys [ESA]compliance relative to the Miami cave

crayfish in a new or amended contention when the Staff issues the [2024 FSEIS]. 21

13 See generally Petition.

14 See FPL Answer.

15 NRC Staff Answer Opposing Miami Waterkeepers Hearing Request (Dec. 22, 2023) (ML23356A162) (NRC Staff Answer).

16 See generally FPL Answer; NRC Staff Answer.

17 Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), LBP 03, 99 NRC __ (Mar. 7, 2024)

(slip op.).

18 Id. at __ (slip op. at 22).

19 Id. at __ (slip op. at 22).

20 Id. at __, __, and __ (slip op. at 24, 27, and 32).

21 Id. at __ (slip op. at 31).

4 After the Boards decision, the parties conferred and filed a joint motion regarding the

hearing schedule, mandatory disclosures, and hearing file obligations for the proceeding, which the

Board granted on March 26, 2024 (Joint Motion). 22 The Boards Initial Scheduling Order

provided a deadline for filing new or amended contentions based on the [2024 FSE IS ]. 23

The NRC Staff published the 2024 FSE IS on March 29, 2024. 24 The 2024 FS EIS expanded

the discussion of impacts to groundwater and provided the basis for the Staffs conclusion that

uncertainty in retracting the hypersaline groundwater plume could result in moderate impacts. 25

This expanded discussion made the admitted contention of omission moot. As a result, the parties

jointly filed an unopposed motion to dismiss the sole admitted contention, 26 which the Board

granted. 27

Petitioner filed its Motion and Waiver Request on May 8, 2024. Petitioner seeks to admit

threeamended contentions (labeled Contentions 1-A, 1-B, and 1-C) and threenew contentions

(labeled Contentions 2, 3-A, and 3-B). 28 Petitioner s Waiver Request seeks a waiver of certain

NRC environmental regulations to challenge the 2024 FSE IS s evaluation of severe accident

mitigation al ternatives (SAMAs) in Contention 3-B. 29

22 Initial Scheduling Order.

23 Id. at 2.

24 NUREG-1437, Supplement 5a, Second Renewal, Site -Specific Environmental Impact Statement for License Renewal of Nuclear Plants Regarding Subsequent License Renewal for Turkey Point Nuclear Generating Unit Nos. 3 and 4, Final Report (Mar. 29, 2024) (ML24087A061) ( 2024 FSEIS).

25 Id. at 2-38 to 2-40.

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

(ML24095A314).

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

(ML24130A205).

28 See generally Motion.

29 Waiver Request.

5 III. THE ONGOINGPART 51 RULEMAKING WILL HAVE NO IMPACT ON THIS ADJUDICATORY PROCEEDING

On February 21, 2024, the NRC Staff submitted SECY 0017 to the Commission to

obtain the Commissions approval to publish a final rule to amend 10 C.F.R. Part 51. 30 The final

rule would update Part 51, Appendix B, Table B-1 to codify Category 1 and Category 2 issues,

which is supported by the revised Generic Environmental Impact Statement for License Renewal of

Nuclear Plants, Revision 2 (2024 GE IS). 31 The Commission approved the publication of the final

rule, subject to resolving comments from the Commissioners, on May 16, 2024. 32 On May 21,

2024, the Board issued a Memorandum and Order asking the parties to address what impact, if any,

the final rule may have on this proceeding if it takes effect during this adjudication. 33 FPLs

response is provided below.

The Part 51 rulemaking does not affect this proceeding. For SLR applications pending at

the time CLI-22-3 was issued, the Commission establi shed, by order, an alternative procedural

pathway. That pathway permitted such applicants to submit a site -specific environmental report

supplement, upon which the NRC would perform a site-specific review, instead of waiting for the

staff to complete the rulemaking. 34 As t he Commission explained, applicants could submit a

revised [ER] providing information on environmental impacts [for Category 1 issues] during the

30 SECY 0017, Final Rule: Renewing Nuclear Power Plant Operating Licenses Environmental Review (Feb.

21, 2024) (ML23302A150).

31 See NUREG-1437, Rev. 2, Generic Environmental Impact Statement for License Renewal of Nuclear Plants : Final Rule (Feb. 2024) (Vol. 1, ML23201A224 ) (NUREG-1437, Rev. 2).

32 SECY 0017, Commission Voting Record (May 16, 2024) ( ML24137A131).

33 May 21 Order.

34 Fla. Power & Light Co. (Turkey Point Nuclear Generating Units 3 and 4), CLI-22-3, 95 NRC 40, 41-42 (2022).

6

[SLR] period. 35 The Commissions intent in CLI 3 is clear: it provided an alternative pathway

for applicants, separate and apart from the Part 51 rulemaking.

Moreover, the Commission endorsed this interpretation in its recent SRM. Specifically, as

explained in the Comment Response Document provided as Appendix A to the 2024 GE IS,

commenters requested clarification on this very issue. One commenter expressed concern that the

rule could be construed as requiring the NRC to perform further environmental reviews to address

the new final rule, potentially delaying the proceeding. 36 As the commenter further noted, that

would be inconsistent with Commission order CLl-22-3, in which the Commission provided

applicants the option of proceeding with a site-specific environmental review that is not subject to

the new final rule. In its response, the NRC assuaged this concern, explaining that:

Any application for an initial LR received before the effective date of the final rule will be processed under the current rule and the 2013 LR GE IS. Any application for an SLR received before the effective date of the final rule will be processed in accordance with Commission direction contained in CLI-22-02 [] and CLI-22-03 []. 37

In its SRM, the Commission did not alter this (or any other) comment response, which reflects the

Commissions endorsement of this interpretation of its orders.

Here, as envisioned by the Commission in CLI-22-3, FPL opted to pursue this alternative

pathway and submitted a revised ER that provided updated site -specific information on the

environmental impacts associated with a Turkey Point SLR period in lieu of waiting until the

issuance of the updated GEIS. The NRC Staff then conducted its site -specific review, considering

that information, and prepared the 2024 FSEIS in accordance with CLI 03. 38

35 Id. at 41.

36 NUREG-1437, Rev. 2, App. A at A -317. Appendix A is contained in NUREG -1437, Rev. 2, Vol. 2 ( Vol. 2 ML23201A225).

37 Id.

38 2024 FSEIS at xiv.

7 Given the plain text of CLI-22-3, and the Commission-endorsed confirmatory explanation of

the intent of that order in the 2024 GE IS, the 2024 Rule cannot be interpreted as requiring the

environmental review process for Turkey Point to begin anew, or to somehow become subject to a

whole new set of requirements. Accordingly, the 2024 Rule will continue to have no effect on this

proceeding even after it becomes effective.

As a general matter, the 2024 Rule would not affect the content of the 2024 FSE IS. Both

the 2023 DSEIS and 2024 FSE IS proactively and voluntarily analyzed the new and revised

environmental issues as defined in the new rule. 39 In other words, there are no content gaps in the

2024 FSEIS even assuming the 2024 Rule would apply to Turkey Point. And the new or amended

contentions proposed in the Motion also would be unaffected by the 2024 Rule. Contentions 1-A,

1-B, 1-C, 2, and 3-A pertain to site-specific analyses that will remain Category 2 ( i.e., site -

specific) issues after the new rule becomes effective. So, the 2024 Rule has no material impact on

those contentions.

Contention 3-B pertains to the site -specific SAMA analysis in the 2024 FSEIS. When the

2024 Rule becomes effective, SAMA analyses will beconsidered a Category 1 issue. 40 That

means the generic SAMA analysis in the 2024 GEIS will be codified in Table B-1 and will be

available for applicants to rely upon in future environmental reports, and for the NRC Staff to rely

upon in future environmental impact statements. If so, then the analysis could not be challenged in

an adjudicatory proceeding absent a waiver under 10 C.F.R. § 2.335.

Here, however, neither FPLs ER nor the 2024 FSEIS purport to rely on the codified SAMA

analysis in the 2024 Rule. So even when the 2024 Rule becomes effective, as discussed in

39 2023 DSEIS at E-3; 2024 FSEIS at E-3.

40 See SRM, Encl. at 52-53, 102.

8 Section V below, a waiver is unnecessary for Contention 3-B because it purports to challenge the

site-specific SAMA analysis presented in the 2024 FSEIS. 41 And the 2024 Rule would not trigger

the need for yet another supplement to the already -completed 2024 FSEIS. 42

In sum, the 2024 Rule will have no impact on this adjudicatory proceeding.

IV. THE BOARD SHOULD DENY THE MOTION

A. Legal Standards

New contentions and a mendments to prior contentions must meet the good cause standard

in 10 C.F.R. § 2.309(c)(1). That regulation states that good cause exists to file new or amended

contentions only if the petitioner can show: (1) the information on which the amended or new

contention is based was not previously available; (2) the information on which the amended or new

contention is based is materially differentfrom information previously available; and (3) the

amended or new contention is timely submitted based on the availability of the new information. 43

The petitioner has the burden of proving that any new or amended contention meets the standards in

10 C.F.R. § 2.309(c)(1). 44

Pursuant to the Initial Scheduling Order and April 26, 2024 Memorandum and Order

Granting Motion for Extension of Time, motions to admit new and amended contentions

challenging the 2024 FS EIS or the GAO Report were due within 40 days from the issuance of the

41 After the rule becomes effective, FPL or the NRC Staff could voluntarily supplement the ER or 2024 FSEIS to rely on the codified analyses. However, that has not occurred here.

42 Supplements to final EISs are governed by 10 C.F.R. § 51.92. Thereunder, supplements are required when new and significant information (e.g., something that would change an impact conclusion) arises before the proposed action has been taken. However, because the SAMA conclusion in the 2024 FSEIS is consistent with the SAMA conclusion in the 2024 Rule, the 2024 Rule is not new and significant information, and does not trigger the need for yet another supplemental EIS here.

43 10 C.F.R. § 2.309(c)(1)(i) -(iii).

44 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI- 09-7, 69 NRC 235, 260 - 61 (2009).

9 2024 FSE IS. 45 Because Petitioner filed its Motion 40 days after the NRC released the 2024 FSE IS,

Petitioner has made its filing in a timely fashion and satisfied the third element of the good

cause standard in Section 2.309(c)(1). But Petitioner must still show that its new and amended

contentions are based on information not previously available (i.e., based on new facts) 46 and that

the information is materially different from previously available information. 47 Additionally,

10 C.F.R. § 2.309(c)(4) provides that the new or amended contention must meet the applicable

contention admissibility requirements in Section 2.309(f). Thus, if the new or amended contention

is not based on new facts that are materially different from those previously available, then the

Board need not analyze the contentions admissibility.

B. Contention 1-A (No -Action Alternative)

In Contention 1-A, Petitioner alleges that the 2024 FSE IS fails to adequately analyze

groundwater conditions for the No Action alternative, which should be the conditions present

when the plant is not operational. 48 Petitioner claims the NRC Staff failed to evaluate the

baseline conditions for the no action alternative 49 which for Turkey Point would be closure at the

end of the licensing term and ending the use of the CCS as a heat sink. 50 Contention 1-A should be

rejected because Petitioner has not demonstrated satisfaction of Sections 2.309(c)(1), (c)(4), or

(f)(1).

45 Initial Scheduling Order at 2.

46 Entergy Nuclear Gen. Co. (Pilgrim Nuclear Power Station), CLI 10, 75 NRC 479, 493 n.70 (2012) (emphasis partially omitted).

47 See 10 C.F.R. § 2.309(c)(1)(i)- (ii).

48 Motion at 7.

49 Id. at 8.

50 Id. at 9.

10

1. Contention 1-A Is Not Based on New and Materially Different Information

In Contention 1-A, Petitioner apparently seeks to challenge Section 3.2 of the 2024 FSE IS,

titled Comparison of Alternatives, because it allegedly does not compare groundwater impacts to

a no action alternative where the CCS is no longer used as a heat sink. 51 Petitioner notes that

Section 3.2 references the no -action alternative analysis in the 2019 FSEIS. 52 Petitioner then seeks

to challengeSection 4.6.2 of the 2019 FSE IS for allegedly failing to objectively analyze, using

best available science, how environmental conditions would benefit from the no action

alternative. 53 However, the 2019 FSE IS is not new; Petitioner could have challenged it earlier in

this proceeding. In fact, Petitioner raised a substantially similar challenge in its original Petition,

which was rejected by the Board in LBP-24-03. 54 Likewise, the statements from Section 3.2 of the

2024 FSE IS referenced by Petitioner contain identical text to thatpresented in Section 3.2 of the

2023 DSEIS. 55 Thus, there is nothing new there either.

The only new information Petitioner mentions in Contention 1-A is new information that

the Petitioner provided to the NRC. 56 Petitioner alleges that this information appears somewhere

between pages 2 -24 and 2-40 of the 2024 FSE IS. 57 However, that conclusory assertion is

unaccompanied by any further explanation. Petitioner does not say, specifically, what that

information is. It does not explain why it is new. And it does not allege that such unspecified

information is materially different from information that was previously available regarding the no

51 Id. at 13.

52 Id.

53 Id. at 13-14.

54 Turkey Point, LBP 03, 99 NRC at __ (slip op. at 24 - 26) (rejecting proposed contention 2).

55 Compare 2024 FSEIS at 3-2 (first full paragraph, beginning [t]he NRC Staff evaluated...) with 2023 DSEIS at 3-2 (first full paragraph, beginning [t]he NRC Staff evaluated...).

56 Motion at 13.

57 Id.

11 action alternative. 58 Ultimately, Petitioner simply has not met its affirmative burden to identify new

and materially different information upon which Contention 1-A allegedly is based.

2. Contention 1-A Is Inadmissible

If the Board finds that Petitioner satisfied the good cause standard for Contention 1-A, the

Board should nonetheless reject it as inadmissible.

As a general matter, Contention 1-A is not a model of clarity. It discusses and appears to

conflate two concepts: the environmental baseline and the no-action alternative. As articulated in

the caption for Contention 1-A, its primary claim is that the 2024 FSE IS fails to adequately analyze

groundwater conditions for the no-action alternative. 59 Petitioner also claims that the 2024 FSE IS

does not compare groundwater impacts to a no action alternative where the CCS is no longer used

as a heat sink. 60 In the statement of the Contention itself, the issue being raised or controverted is

whether the NRC Staff fully analyzed the difference between extending the license... and

declining the application ( i.e., the proposed action versus the no-action alternative). 61 However,

Petitioner devotes more than 5 pages of discussion to the (uncontroversial) proposition that an

environmental impact statement ( E IS) must contain an adequate discussion of the environmental

baseline. 62 And the basis statement for t he contention argues that the NRC is required to compare

the effects of the proposed action against a baseline of no action. 63

58 More broadly, given that the discussion at pages 2-24 to 2-40 of the 2024 FSEIS relates to possible impacts of the proposed action, it is unclear how any new and materially different information on those pages would reveal any potentially new and material information regarding the no -action alternative, which is discussed primarily in the 2019 FSEIS and for which the NRC determined, in both the 2023 DSEIS and 2024 FSEIS (Sections 3.2), that no new and significa nt information exists.

59 Motion at 7.

60 Id. at 13.

61 Id. at 7.

62 Id. at 8-13.

63 Id. at 8.

12 This suggests Petitioner erroneously believes that the environmental baseline and the no

action alternative are one and the same. But that is not the case. The environmental baseline is

discussed primarily in Chapter 3 of the 2019 FSE IS. 64 Whereas, the no-action alternative is

discussed in various subsections of the 2019 FSEIS, including the discussion and comparison of

alternatives in Chapters 2 and 5, and the discussion of environmental consequences, per resource

area, throughout Chapter 4. 65

As a threshold matter, Petitioner s misunderstanding of the difference between the

environmental baseline and t he no -action alternative cannot give rise to an admissible

contention. And as explained below, Contention 1-A does not raise a genuine dispute as to either

one.

First, Petitioner claims that the NRC did not compare groundwater impacts to a no action

alternative where the CCS is no longer used as a heat sink. 66 But that assertion lacks the requisite

support for an admissible contention and fails to demonstrate a genuine dispute because it is

demonstrably untrue. The groundwater analysis for the no-a ction alternative is provided in

Section 4.5.2.2 of the 2019 FSE IS. 67 And Section 3.2 of the 2024 FSE IS, plainly titled

Comparison of Alternatives, 68 refers to Table 2-2 of the 2019 FSE IS, which provides a side-by-

side comparison of groundwater impacts for the proposed action and the no-action alternative. 69

64 See generally NUREG-1437, Supp. 5, Second Renewal, 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 at Ch. 3 (Oct. 2019) (ML19290H346) (2019 FSEIS).

See also generally, e.g., Reg. Guide 4.2, Supp. 1, Rev. 1 at 48 (June 2013) ( ML13067A354) (explaining that the environmental baseline is presented in the affected environment discussion).

65 See generally 2019 FSEIS Ch. 4.

66 Motion at 13.

67 2019 FSEIS § 4.5.2.2. The no -action alternative and effects on groundwater is also discussed in Se ction 4.5.3.2 (p. 4-41), Section 4.5.7.2 (pp. 4-43 to 4-44), and Section 4.6.2.

68 2024 FSEIS at 3-1.

69 2019 FSEIS at 2-23 to 2-25.

13 Contrary to Petitioners claim, those impacts plainly have been compared. And Petitioner

identifies no alleged error or deficiency in that comparison, which they ignore en tirely.

Second, to the extent Petitioner claims that the 2024 FSE IS fails to adequately analyze the

issue of groundwater resources for the no-action alternative, as suggested in the caption for

Contention 1-A, 70 it fails to articulate any specific dispute. In fact, as noted above, Petitioner

appears entirely unaware that the analysis in Section 4.5.2.2 exists. Therein, the NRC states that the

no action alternative would gradually reduce and eventually stop the discharge of condenser cooling

water to the C CS. 71 The NRC also states the no action alternative would result in a reduced thermal

discharge and would reduce groundwater mounding beneath the CCS. 72 Thus, under the no

action alternative, the NRC would expect the amount of water needed to support freshening

activities to comply with the consent orders could be reduced but probably not stopped. 73 And

the NRC expects that the operation of the recovery well system would need to continue until the

initial remediation objectives are met. 74 Petitioner does not acknowledge or dispute any of this

information in Section 4.5.2.2; instead, Petitioner simply ignores it.

Third, Petitioner s criticism of Sectio n 4.6.2 of the 2019 FSE IS provides no support for the

contention. Petitioner claims that, although Section 4.6.2 acknowledges the potential benefits of

the no action alternative, it purportedly does not objectively analyze, using best available science,

how environmental conditions would benefit from the no action alternative. 75 As noted above,

there is no reason Petitioner could not have raised this claim earlier, and thus it is inexcusably late.

70 Motion at 7.

71 2019 FSEIS at 4-37.

72 Id.

73 Id.

74 Id.

75 Motion at 13-14.

14 Nevertheless, as relevant t o Contention 1-A, Petitioner offers no explanation of how this alleged

defect provides a basis or support here. As explained by Petitioner, Contention 1-A asserts that the

NRC Staff failed to adequately consider the differences in terms of groundwater contamination.

But Section 4.6.2 of the 2019 FSE IS pertains to Terrestrial Resources, not groundwater

contamination. And Petitioner offers no explanation of why Section 4.6.2 was purportedly

required to analyze groundwater contamination, which is evaluated elsewhere in the 2 019 FSEIS.

Likewise, Petitioners claims regarding the environmental baseline fail to raise an

admissible contention. Petitioner suggests that the discussion of the environmental baseline suffers

from flaws 76 and purports to contest[] the NRC Staff s reliance on an incorrect environmental

baseline. 77 The 2019 FS EIS sets the environmental baseline for the SLRA as the environment

that currently exists at and around the Turkey Point site. 78 This baseline included the impacts of

past construction and operations of the plant and therefore, presented the nature of t hese past

actions as well as ongoing actions. 79 Relevant to this proceeding, Section 3.5.2 of the 2019 FSE IS

discusses the environmental baseline for groundwater resources. 80 This discussion explores the

areas hydrology and aquifers; 81 groundwater quality; past contamination and remediation efforts; 82

and groundwater use, including recovery and injection wells. 83 Although Petitioner offers vague

76 See, e.g., id. at 12-13 (claiming the baseline analysis... suffers from flaws.).

77 Id. at 15.

78 2019 FSEIS at 3-1.

79 Id. at 3-1.

80 Id. § 3.5.2.

81 Id. § 3.5.2.1.

82 Id. § 3.5.2.2.

83 Id. § 3.5.2.3

15 and conclusory assertions suggesting this baseline is somehow improper, 84 Petitioner appears

unaware of the existence of the actual environmental baseline discussion in the 2019 FSE IS. And

Petitioner certainly has notidentifie d any material dispute with that unacknowledged analysis.

Finally, Petitioner articulates no disagreement with the NRCs conclusion in the 2024 FSE IS

that no new and significant information exists regarding the groundwater resources analysis for the

no-action alternative. But, to the extent Petitioner s oblique reference to that conclusion could be

interpreted as a challenge, it would be inadmissible. Petitioner offers no explanation why that

conclusion is wrong, points to no specific missing information, and fails to engage with the

definition of significant.

In sum, Petitioner provides insufficient factual or expert support for Amended Contention

1-A, and supplies insufficient information to demonstrate the existence of a genuine dispute on a

material issue of law or fact.

Accordingly, Amended Contention 1-A is inadmissible because it fails to satisfy multiple

criteria in 10 C.F.R. § 2.309(f)(1).

C. Contention 1-B (Potable Water)

Contention 1-B should be rejected because Petitioner has not satisfied Sections 2.309(c)(1),

(c)(4), or (f)(1).

1. Contention 1-B Is Not Based on New and Materially Different Information

In Amended Contention 1-B, Petitioner argues that the NRC employed the wrong standard

to determine the impact of the CCS on drinking water and whether the hypersaline groundwater has

destabilized the aquifer. But other than purporting to challenge the 2024 FSEIS, Petitioner has not

84 See Motion at 10- 11 (discussing the need to analyze baseline data and claiming that [a]n agency cannot rely on future mitigation and monitoring to satisfy its duty to fully analyze the baseline conditions.).

16 shown that this contention is based on new information because the 2023 D SEIS uses the same

standard.

The 2023 DSE IS, like the 2024 FSE IS, uses hypersalinity as a standard and looks at whether

the hypersaline plume has destabilized the aquifer to prevent it use beneficial use as drinking water.

More specifically, the 2023 DSEIS states that with continued freshening of the CCS and continued

operation of the [recovery well system (RWS) ] to halt and retract the westward migration of that

[hypersaline] plume, the operation of Turkey Point Units 3 and 4 during the SLR term would not

worsen the hypersaline groundwater plume outside the plant boundary, would not destabilize th e

groundwater resource, and would not adversely affect the beneficial uses of groundwater offsite by

existing users. 85 Using the hypersalinity standard, the 2023 DSEIS concluded that impacts on

ground water quality during the SLR term would be SMALL unless FPL cannot retract the

hypersaline plume to the CCS boundaries in which case they would be MODERATE. 86 This is the

same conclusion reached in the 2024 FSE IS. 87

Thus, Petitioner has not shown the amended contention is based on new information. If

Petitioner wanted to challenge the NRCs use of the hypersalinity standard, it sh ould have done so

when it filed its challenge to the 2023 DSE IS, because it used the same hypersalinity standard.

2. Contention 1-B Is Inadmissible

If the Board finds that Petitioner satisfied the good cause standard for Contention 1-B, the

Board should nonetheless reject it because it is inadmissible.

85 2023 DSEIS at 2-31.

86 Id.

87 2024 FSEIS at 2-40 (concluding the impacts would be MODERATE if the hypersaline plume continues to extend outside the site boundary and SMALL if the hypersaline plume is retracted.).

17 In Contention 1-B, Petitioner alleges that the 2024 FSE IS employs the wrong standard to

determine the impact of the CCS on potable water. 88 According to Petitioner, the NRC

inappropriately used a standard for hypersalinity rather than potability to reach its conclusion that

the proposed action will have SMALL or MODERATE impacts to groundwater quality. 89

Petitioner argues that because the Biscayne aquifer is a source of potable drinking water, the

potable water standard must be used to determine whether the continued operation of the CCS will

render potable portions of the Biscayne aquifer non-potable. 90 As explained below, this

contention is inadmissible for several reasons.

Petitioners basis for Amended Contention 1-B is based on either a misreading of the

2024 FSE IS or a carefully selected representation of the NRCs analysis. The NRCs analysis

considers two reasonably foreseeable scenarios: (1) the hypersaline plume not expanding, but

continuing to exist beyond the site boundary, and (2) the hypersaline plume being retracted to

within the site boundary. 91 Under the first scenario, the NRC Staff determined that impacts would

be MODERATE based on the Biscayne aquifers classification as Class [G]-II (potable)

groundwater west of the CCS. 92 Under the second scenario, the NRC Staff determined the impacts

would be SMALL based on the aquifers classi fication as Class G-III (non-potable) groundwater

beneath the CCS.93 Thus, the staffs analysis is based, in part, on the location of the plume during

the SLR term.

88 Motion at 16.

89 Id.

90 Id. at 17-18.

91 2024 FSEIS at 2-39.

92 Id. Class G -II groundwater is groundwater in an aquifer that can be used for potable water and has a total dissolved solids content of less than 10,000 mg/l. F LA. ADMIN. CODE ANN. R.62-520.410.

93 Id. at 2-40.

18 The NRC recognized that the extent (i.e., location) of the hypersaline plume and impacts to

aquifer users are different but related concepts. The NRC found that the hypersaline plume in the

shallow aquifer has largely been retracted to the FPL site boundary but extends 0.5 to 1.7 miles west

in the deeper aquifer. 94 In contrast, [t]he nearest public water supply wells are located about 6

mi[les] (9.7 km) from the northwest corner of the CCS. 95 Based on this, the NRC concluded that,

with continued freshening and operation of the recovery well system, operation of Turkey Point

would not worsen the hypersaline groundwater plume outside the plant boundary, destabilize the

groundwater resource, or adversely affect the beneficial uses of groundwater offsite by existing

users. 96

Petitioners chief complaint is that the NRC used the wrong standard (hypersalinity) to

determine whether the continued CCS operation is sufficient to destabilize [a] drinking water

resource. 97 But the NRCs use of hypersalinity as a standard stems from the Florida Department of

Environmental Protections (FDEP) Cons ent Order, 98 and the recent FDEP Final Order rejecting

challenges to Turkey Points recently renewed NPDES permit. 99 The Consent Order used

hypersalinity to gauge the CCSs influence on the saltwater interface, 100 as does the Final Order. 101

As discussed in the Final Order, the saltwater interface had already moved west of where the CCS is

94 Id. at 2-38.

95 Id.

96 Id.

97 Motion at 18.

98 Florida Dept of Envtl. Prot. v. Fla. Power & Light Co., OGC File No. 16-0241, Consent Order (Fla. Dept of Envtl. Prot. 2016) ( ML16216A216) (Consent Order).

99 Florida Keys Aqueduct Auth. v. Fla. Power & Light, OGC File No. 20-0820, Consolidated Final Order (F la. Dept of Envtl. Prot. 2022), https://floridadep.gov/sites/default/files/20 -0820.pdf (Final Order).

100 Consent Order ¶ 19. The saltwater interface is the location in the aquifer at which Class G -II and G-II ground water intersect. Final Order, Exh. A (Amended Recommended Order) at 13.

101 Final Order, Exh. A at 23-24.

19 now located nearly two decades before the CCS was even constructed. 102 In light of the fact that

numerous activities, not just operation of the CCS bear on the movement of the saltwater

interface, FDEP declined to require FPL to retract the saltwater interface (i.e., the potable water

boundary). 103 Instead, FDEP only requires FPL to retract the hypersaline plume, 104 in order to

ensure that it is no longer a factor in the location of the saltwater interface. 105

Indeed, concerns regarding the impact of continued CCS operation on potable water

supplies were at the core of the FDEP proceeding that resulted in issuance of the Final Order. And

in that proceeding, FDEP concluded that there was reasonable assurance that all statutory and

regulatory water quality requirements would be satisfied, given that implementation of the Consent

Order will stop the westward movem ent of the saltwater interface, to the extent such movement is

caused by the discharge of hypersaline water from the CCS into ground water. 106

Thus, while the saltwater interface and hypersaline plume do not directly overlap, the

Consent Order and Final Order represent a determination by the cognizant state authority that the

location of the hypersaline plume is an appropriate proxy to determine the CCSs impact on the

aquifer and its potable water users. Petitioner does not acknowledge or dispute any of this

information. And it identifies no reason why the NRCs adoption of that same standard, as a proxy

to evaluate whether CCS operation would destabilize the aquifer, is materially deficient.

Additionally, Petitioner argues that the NRC should have used Miami-Dade Countys

drinking water standard, instead, because the Biscayne aquifer is used for that purpose. 107 As a

102 Id. at 13 (By 1955, the saltwater interface already was located west of where the CCS is now located.).

103 Id. at 74 n.35.

104 Id.

105 Id. at 75 n.37 (emphasis added).

106 Id. at 77-78, 124.

107 Motion at 18-19.

20 general matter, however, the mere presentation of an alternative analysis method is not enough to

demonstrate a material dispute. Petitioner then speculates that non -potable saltwater from the

CCS somehow could reach and impair the currently-potable portion of the Biscayne Aquifer.

However, Petitioner cites no authority, and fails to offer so much as a simple explanation, for this

dubious theory. Notably, both of these arguments ignore and fail to dispute relevant information in

the 2024 FSE IS, including:

• the fact that the nearest drinking water supply well is more than 4 miles beyond the furthest historical extent of the hypersaline plume; 108

• the fact that the hypersaline plume, at its current extent, has not affected drinking water; 109 and

• the fact that [a] scenario where the plume would continue to expand overall within the Biscayne Aquifer was not considered by the staff because it is not reasonable given the available information and the aforementioned requirements that are subject to enforcement by State and local regulators.

In other words, Petitioner fails to acknowledge that drinking water is not currently impacted

(by either the hypersaline plume or non-potable saltwater) and fails to engage with the NRCs

well-reasoned conclusion that the current state is bounding. Far more is required to demonstrate a

genuine dispute of material fact.

Ultimately, Petitioners preference for a different analysis method is not enough to

demonstrate a material dispute with the 2024 DSEIS. And Petitioner has not otherwise engaged

with or attempted to dispute the extensive information showing that the NRCs analysis method is

reasonable and appropriate. For those reasons, Contention 1-B lacks the requisite support for an

admissible contention and fails to raise a genuine dispute.

108 2024 FSEIS at 2-38.

109 Id. at 2-39.

21

Accordingly, Amended Contention 1-B is inadmissible because it fails to satisfy multiple

criteria in 10 C.F.R. § 2.309(f)(1).

D. Contention 1-C (Groundwater Quality)

Contention 1-C should be rejected because Petitioner has not demonstrated satisfaction of

Sections 2.309(c)(1), (c)(4), or (f)(1).

1. Contention 1-C Is Not Based on New and Materially Different Information

In Contention 1-C, Petitioner claims that the 2024 FSE IS incorr ectly concluded that the

impacts of the proposed action on groundwater quality are SMALL to MODERATE. 110 However,

that conclusion to Section 2.8.3 of the 2024 FSEIS is not newthe exact same conclusion is

presented in Section 2.8.3 of the 2023 DSE IS. 111 And despite the NRC Staff adding several

additional pages of discussion to Section 2.8.3, Petitioner does not point to any specific new

information in that s ection as providing the basis for Contention 1-C. In fact, nothing in the

discussion of Contention 1-C appears to meaningfully engage with or dispute one single wordof

new information in Section 2.8.3. Far more is required to demonstrate good cause for a new or

amended contention.

As detailed below, Petitioner seeks to challenge information that appeared previously in

documents of which the [Petitioner was] well aware. 112 However, questions about that information

110 Motion at 21.

111 Compare 2024 FSEIS at 2-40 with 2023 DSEIS at 2-31.

112 See Hydro Res., Inc. (P.O. Box 15910, Rio Rancho, NM 87174), CLI 33, 60 NRC 581, 591 (2004).

22 should have been raised long ago. 113 It was the [Petitioners] ob ligation to review the record

carefully for any material information on this issue. 114 As the Commission has explained:

If a party were free to raise new arguments once it realized that maybe there was something after all to a challenge it either origina lly opted not to make or which simply did not occur to it at the outset, NRC adjudicatory proceedings would prove endless. Thus, [petitioners]

have an obligation to review the record closely and to raise their arguments promptly. The Commission must ins ist that Intervenors and all parties be disciplined in their scrutiny of the record. 115

Here, Petitioner seeks to challenge information that has long been available. Thus, it has not

demonstrated good cause for submitting Contention 1-C.

a. Challenges to Mitigation Measures Are Not New

First, Petitioner seeks to recycle prior challenges to FPLs mitigation measures. 116

Petitioner argues that the effect of the State - and County-ordered remediation activities, which

include adding less-saline water to the CCS and extracting more-saline water from the Biscayne

Aquifer, somehow increases the inland movement of the saltwater interface in the Biscayne

aquifer. 117 However, Petitioner identifies no new information about mitigation measures that

allegedly arose after the 2023 DSEIS. In fact, it claims the opposite. Petitioner readily admits that

it raised this concern in its comment letter in response to the 2023 DSE IS. 118 That comment letter

was submitted to the NRC on November 26, 2023, one day before Petitioner filed its Petition. 119 If

113 See id.

114 See id.

115 Id. (quoting Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2),

CLI-03-17, 58 NRC 419, 428 - 29 (2003) ).

116 Motion at 22.

117 Id.

118 Id. at 22-23.

119 Letter from A. Siu, Policy Director, Miami Waterkeeper to NRC, Program Management, Announcements and Editing Staff, Notice of Intent for Public Comment on Draft Environmental Impact Statement NUREG - 1437, Supplement 5a, Second Renewal, Site-Specific Environmental Impact Statement for License Renewal of Nuclear

23 Petitioner had this concern when it commented on the 2023 DSEIS, the time to raise a challenge on

it was in its Petition.

And in fact, Petitioner did try to challenge these mitigation measures in its original

Petition. However, the Board rejected that challenge because Petitioner failed to challenge the

analyses in the Draft SEIS [or] show that the Staffs analyses are unreasonable. 120 To the extent

Petitioner is attempting to cure those defects in Contention 1-C, its attempt is untimely. The

requirements of 10 C.F.R. § 2.309(c) do not provide for a second bite at the proverbial apple simply

because Petitioner fell short on its first attempt.

Likewise, these same arguments were presented and rejectedin the Turkey Point

NPDES renewal proceeding. For example, challengers there contented that the mitigation measures

would increase[] the hydrostatic head of water seeping from the CCS and exacerbate the

movement of the hypersaline plume. 121 Simply put, these theories, and the information upon

which they are based, simply are not new.

b. The Petition Does Not Identify Any New Information

Moreover, the limited portions of Section 2.8.3 of the 2024 FSE IS that are, in fact, cited in

Contention 1-C do not contain any new information (much less, anything that is materially

different).

Plants Regarding Subsequent License Renewal for Turkey Point Nuclear Generating Unit Nos. 3 and 4, Draft Report for Comment, Docket Nos. 50- 250 and 50-251; NRC-2022- 0172 at Section II.B (Nov. 26, 2023)

(ML23333A022).

120 Turkey Point, LBP 03, 99 NRC at __ (slip op. at 22).

121 Final Order at 78 ¶ 302.

24 First, Petitioner criticizes the discussion for allegedly failing to adequately acknowledge the

transport and fate of saline water emanating from the [CCS]. 122 But as Petitioner noted, it

raised this concern in its comment letter, 123 so this obviously is not new.

Second, it discusses the NRCs resolution of that comment in an appendix to the

2024 FSE IS. 124 Petitioners apparent complaint is that the NRC did not make any changes from the

2023 DSEIS to the 2024 FSE IS to address that comment. 125 As Petitioner concedes, this complaint

also does not identify any new information in Section 2.8.3 that purportedly is being challenged.

Third, Petitioner notes that the analysis in Section 2.8.3 of the 2024 FSE IS posits two

scenarios, one in which the plume is retracted to within the site boundary and one in which it is

not. 126 However, those are the same two scenarios described in Section 2.8.3 of the 2023 DSE IS. 127

Fourth, Contention 1-C references the 2024 FSEIS for the values of the CCS salinity target

(34 PSU), freshening well withdrawal allocation (10,950 MGY), and chloride concentration (19,000

mg/L) used in the NRC Staff s analysis. 128 But those same values are also articulated in the

2023 DSEIS. 129 That information is not new.

The Petition also devotes several pages to summarizing Dr. Nuttle s Report (Nuttle

Report). As detailed below, that document also does not purport to rely on or challenge any new

information.

122 Motion at 22-23. Se e also id. at 22-25 (discussing the volume of saline water).

123 Id. at 23.

124 Id. at 23-24.

125 2024 FSEIS at A-45 to A-46.

126 Motion at 24-25 (citing 2024 FSEIS at 2-39).

127 2023 DSEIS at 2-22 to 2-31.

128 Motion at 31-32 n.120, 31 n.121, 32-33 n.124.

129 2023 DSEIS at 2-23 to 2-24.

25

c. The Nuttle Report Does Not Identify Any New Information

In his Report, Dr. Nuttle focuses on the design of the CCS and the conditions that existed

over 50 years ago and on FPLs past remediation activities. 130 For example, Dr. Nuttle claims that

the volume of CCS water present in the aquifer exceeds the capacity of the RW S. 131 But this is

based on conditions that existed [b]etween 2009 and 2015, which is before the Consent Order and

much of FPLs remediation efforts. 132 Dr. Nuttle also discusses estimates for the volume of CCS

water in the aquifer from 2013 but does not update this estimate to account for FPLs remediation

work. 133 Dr. Nuttle next discusses two groundwater modeling studiesone from 2009 and one

from 2018that looked that the effect of CCS had on salt water intrusion. 134 None of this is new

information.

In fact, the Nuttle Report cites the 2024 FSE IS only threetimes. First, h e cites the impact

conclusion of SMALL to MODERATE. 135 But, as noted above, that conclusion is not new.

Second, cites the Staffs conclusion in the 2024 FSEISthat continued operation during the SLR

term would have no additional adverse effect on the beneficial use of groundwater offsite by

existing users. 136 But that conclusion is not new either. The 2023 DSE IS also concluded that

continued operation during the SLR term would not adversely affect the beneficial uses of

groundwater offsite by existing users. 137 Third, he cites a tabletitled Table 2-4: Turkey Point

130 See id. at 3-25.

131 Motion, Attach. A at 17 ( Nuttle Report).

132 Id.

133 Id.

134 Id. at 18-20.

135 Id. at 2 (citing 2024 FSEIS, page not specified).

136 Id. at 3 (citing 2024 FSEIS at 2-39).

137 2023 DSEIS at 2-31.

26 Groundwater Withdrawal Wells. 138 But the exact same table was presented in the 2023 DSEIS. 139

Dr. Nuttles discussion of pre-existing information fails to identify anythin g that is new, much

less materially so. And he otherwise identifies no allegedly new information that forms the basis

for his disagreement with these previously available conclusions and tables.

Notably, the 2023 DSE IS and 2024 FSE IS discuss extensive new information, including five

years of updated monitoring well data. Both Petitioners and Dr. Nuttles failure to engage with the

2024 FSEISs discussion of that new information is particularly conspicuous because itdirectly

refutes many of Dr. Nuttles assertions and conclusions.

Ultimately, nothing in the Motion or the Nuttle Report identifies any new information (much

less, any that is materially different) to satisfy the good cause standard. Accordingly, the Motion

should be denied to the extent it seeks admission of Contention 1-C.

2. Contention 1-C Is Inadmissible

If the Board finds that Petitioner satisfied the good cause standard for Contention 1-C, the

Board should nonetheless reject it because it is inadmissible. In Contention 1-C, Petitioner seeks to

challenge the groundwater quality discussion in Section 2.8.3 because it allegedly fails to consider

(or adequately consider) the purported negative effects of the remediation measures ordered by the

cognizant state and local regulators. However, these claims are inadmissible for multiple,

overlapping reasons. As an overarching matter, Petitioner and Dr. Nuttle base their analysis on

outdated information or bare speculation that pre-dates the availability of actual monitoring data

related to the mitigation measures. This leaves their claims far short of satisfying the requirement in

10 C.F.R. § 2.309(f)(1)(v) to identify adequate support for their contention. Likewise, they largely

138 Nuttle Report at 14 (citing 2024 FSEIS at 2-1[8], tbl. 2-4).

139 2023 DSEIS at 2-17, tbl. 2-4.

27 ignore the extensive data analyzed or referenced in the 2024 FSE IS that is directly relevant to their

claims (and which undermines or entirely refutes their speculative theories and outdated analyses).

By sidestepping this information, they have failed to raise a genuine dispute with the 2024 FSE IS

on a material issue of fact or law, as required by 10 C.F.R. § 2.309(f)(1)(vi). Accordingly,

Contention 1-C is inadmissible.

a. Petitioners Claims Fail to Raise a Genuine Dispute Because They Are Based on Outdated Information and Fail to Acknowledge or Controvert the Updated Information in the 2024 FSEIS

Dr. Nuttle claims that the volume of CCS water present in the aquifer exceeds the capacity

of the RWS. 140 According to his estimate, the estimated total volume of CCS water present in the

aquifer is 123 billion gallon s, whereas at the current rate of [RWS] pumping removing 123 billion

gallons would take about 30 years. Extrapolating from his assertion, Dr. Nuttle believes the

current rate of RWS pumping is approximately 11 million gallons per day (M GD). 141 But, as

noted in the 2024 FSE IS, the current rate is actually 15 MGD. 142 And FPL has requested

approval from State and local authorities to pump 22 MGD, essentially twice the value Dr. Nuttle

used. 143 However, he fails to acknowledge, engage with, or dispute this updated information, and

fails to explain how or why his analysis remains relevant in light of it. Far more is required to raise

a genuine dispute.

Petitioner and Dr. Nuttle also claim that the rate of discharge (i.e., seepage or leakage)

from the CCS to the aquifer is 9 MGD. 144 But these claims appear to be based on old estimates

140 Nuttle Report at 17.

141 123,000,000,000 divided by 30 years, divided by 365 days, is 11.232 MGD.

142 See 2024 FSEIS at 2-18, tbl. 2-4.

143 Id. at 2-34.

144 Motion at 31; Nuttle Report at 17.

28 from 2013, when the CCS was hypersaline and before the RWS became operational. 145 These

claims ignore recent actual monitoring data presented in the 2024 FSE IS that directly contradict

Petitioners and Dr. Nuttles outdated estimates. The 2024 FSE IS discusses seepage data and

states that from 2017 to 2023, there has been a net seepage of approximately 1.2 MGD out of the

CCS. 146 Th e 2024 FSE IS also states that for the most recent annual reporting period (June 2022

through May 2023), FPL reported a net seepage of approximately 4 MGD out of the CCS. 147 In

other words, the actual data from the monitoring wells shows that the net seepage is far below

Petitioners and Dr. Nuttles outdated estimate of 9 MGD. 148 This is all discussed in the

2024 FSE IS, but Petitioner and Dr. Nuttle ignore that discussion for their analysis.

Petitioner also speculates that there will still be a net a ddition of salt to the Biscayne

Aquifer from the [CCS], even if the [RWS] works as designed. 149 However, that theoretical

speculation is unsupported and disregards the actual, available data showing the exact opposite.

Actual data from monitoring wells west of the CCS show decreases in chloride since remediation

began. 150 FPLs Remedial Action Annual Status Report (RAASR) - Year 5 (2023 RAASR ) 151

also explains that during the most recent annual reporting period, 152 FPL removed 2.37 billion

pounds of salt (1.18 million tons). 153 In comparison, FPLs 2023 Annual Monitoring Report (cited

145 Nuttle Report at 17.

146 2024 FSEIS at 2-25.

147 Id.

148 Motion at 31; Nuttle Report at 17.

149 Motion at 23.

150 Petition, Exh. 9 at 3-10 to 3-21.

151 The RAASR is prepared annually to document compliance with the Consent Order and Consent Agreement and to document the results of the RWS. The RAASRs are public documents and the 2023 RAASR was referenced and relied upon in the 2024 FSEIS. The 2023 RAASR was attached as Exhibit 9 to the original Petition and Dr. Nuttle references a few limited portions of the 2023 RAASR in his May 2024 Report. See Nuttle Report.

152 The 2023 RAASR reporting period is from July 1, 2022, through June 30, 2023.

153 Id. at 2-4.

29 by both the 2024 FSEIS and Dr. Nuttle) 154 acknowledges a net outflow of 62.7 tons of salt per day

from the CCS, or approximately 23,000 tons of salt for the re porting period. 155 While the annual

reporting periods for the two reports are offset by one month, the data from publicly available

reports upon which the 2024 FSEIS relies show that FPL is withdrawing significantly more salt than

leaves the CCS (approximately 48 times more during the 2022-2023 timeframe alone : 23,000 tons

annual outflow versus 1,100,000 tons annual withdrawal). Given this material information, which

Petitioner ignores and fails to dispute, its net addition of salt argument fails to demonstrate a

genuine dispute of material fact here.

As noted in the 2024 FS EIS, the NRC has considered actual monitoring data confirming

that the remediation activities have largely halt[ed] the westward advance of the saltwater

interface [i.e., not just the hypersaline plume] in the Biscayne Aquifer. 156 Neither Petitioner nor

Dr. Nuttle acknowledge or grapple with that new monitoring data. Far more is required to raise a

genuine dispute.

b. The Limited References to the 2024 FSEIS in Contention 1-C Fail to Demonstrate a Genuine Dispute

As noted above, Petitioner and Dr. Nuttle reference certain limited portions of the

2024 FSE IS that do not contain any new information compared to what was available in the

2023 DSEIS. Aside from failing to provide the good cause required for a new contention, those

references also fail to demonstrate a genuine dispute on a material issue of f act or law.

154 2024 FSEIS at 4-8; Nuttle Report at 26.

155 Turkey Point Clean Energy Center Annual Monitoring Report at 4-6 to 4-7 (Aug. 31, 2023),

https://ecmrer.miamidade.gov/hpi/search (Full-Text Search: 2023 Annual Monitoring Report; Facility Name:

Turkey Point; Case No.: HWR- 01006; Folio: 3070270000010). The reporting period for the 2023 Annual Monitoring Report is from June 1, 2022, through May 31, 2023.

156 Id. at 2-30.

30 First, Petitioner criticizes Section 2.8.3 of the 2024 FSEIS for allegedly providing an

inadequate analysis of the transport and fate of saline water emanating from the [CCS] 157 and

for only considering two scenarios related to the extent of the hypersaline plume. 158 And it

disputes the NRC Staff s conclusion in the 2024 FSEIS that continued operation during the SLR

term would have no additional adverse effect on the beneficial use of groundwater offsite by

existing users. 159 However, Petitioner and Dr. Nuttle fail to acknowledge and controvert the

information in the 2024 FSE IS relevant to these arguments. They disregard the fact that the goal of

the RWS (in regard to the CCS) is not merely to intercept hypersaline water. Rather, its goal is to

prevent additional CCS-sourced water, regardless of salinity (i.e., hypersaline, saline, brackish, or

fresh), from moving inland. 160

Furthermore, the analysis provided in the 2023 RAASR, upon which the NRC relied in

developing the 2024 FSE IS, indicates that the RWS is highly effective in this regard but Petitioner

does not say a single word about that information. 161 And as noted above, Petitioner fails to

acknowledge or engage with the actual data underlying the 2024 FSE IS showing that the mitigation

measures have halted the westward advance of the saltwater interface in the Biscay ne Aquifer. 162

157 Motion at 22-23. See also id. at 2 2-25 (discussing the volume of saline water).

158 Id. at 24-25 (citing 2024 FSEIS at 2-39). See also id. at 26 (citing 2024 FSEIS at 2-39).

159 Nuttle Report at 3 (citing 2024 FSEIS at 2-39).

160 2024 FSEIS at 2-30. See also Final Order, Exh. A at 69 (The RWS create[es] a hydraulic barrier such that none of the CCS water that seeps into ground water is able to move westward past the RWS. The extraction of the hypersaline ground water beneath the CCS reduces the driving force that contributed to lateral movement away from the CCS thereby halting the westward migration of hypersaline water from the CCS. Thus, since May 2018, the RWS has functionedand continues to functionas a hydrologic barrier that has halted the westward movement of hypersaline water from the CCS. ).

161 The 2023 RAASR explains that RWS operations extend the hydraulic barrier effect of the interceptor ditch (ID) operation in the upper portion of the Biscayne aquifer to the base of the aquifer. Petition, Exh. 9 at 2-1. It also notes that particle tracking confirmed hypersaline water from the CCS is intercepted, captured, and contained beneath the CCS and no longer migrates into the compliance zone and that the RWS prevents water from the CCS from flowing through and westward past the RWS. Id. at 5-9. Petitioner and Dr. Nuttle ignore and do not dispute this discussion.

162 2024 FSEIS at 2-30 (emphasis added).

31 Given this fact-based conclusion, plus the extensive new monitoring data discussed in the

2024 FSE IS, which Petitioner disregards, and the information provided in FPLs response to

Contention 1-B above, it is unclear why any further analysis would be required or what requirement

allegedly is unmetand Petitioner provides no such explanation.

Second, Petitioner references its comment to the NRC on the 2023 DSEIS regarding its net

addition of salt theory, and it claims that the NRCs response was merely to note that FPLs

remedial action is subject to significant ongoing state and local oversight. 163 Petitioner claims this

response is inadequate because permit compliance, alone, is not a substitute for, and does not

negate the requirement for NRC to weigh all environmental effects of the proposed action. 164

However, Petitioner misreads the NRCs response to its comment. As noted above, Petitioners

net addi tion of salt theory is factually unsupported and fails to confront or controvert actual data

that undermines this theory. The NRCs comment response references the NRCs analysis of that

data. 165 So, far from merely asserting that its obligations are met due to permit compliance, the

NRC updated its substantive analysis and weighed the associated environmental effects. Because

Petitioner ignores that new information, it has not identified a genuine dispute with the 2024 FSE IS

on that issue.

Third, Dr. Nu ttle criticizes a table titled Table 2 -4: Turkey Point Groundwater Withdrawal

Wells, because it does not include a separate line item for operation of the Interceptor Ditch and

because the NRC allegedly omitted this information from its assessment. 166 No tably, the Board

163 Motion at 23-24.

164 Id. at 24 (quoting 10 C.F.R. § 51.71 n.3).

165 2024 FSEIS at A-46 ( Section 2.8.3 of this site -specific EIS has been revised to reflect the status of FPLs remedial action based on the information provided in FPLs Year 5 Remedial Action Annual Status Report. ).

166 Nuttle Report at 14 (citing 2024 FSEIS at 2-1[8], tbl. 2-4).

32 rejected asimilar claim in LBP 03. 167 More importantly, Petitioner submitted this criticism in

its comment letter on the 2023 DSEIS and the NRC responded in the 2024 FSE IS. Specifically, the

NRC noted that Sections 3.1 and 3.5 of the 2019 FSE IS describe the operation of the interceptor

ditch in detail. The NRC Staff did not identify any new and significant information related to the

impacts from operation of the interceptor ditch that would change the conclusions reached in the

FSE IS. 168 Petitioner fails to dispute these assertions. It also fails entirely to acknowledge the

relevant discussion in the 2019 FSE IS regarding interceptor ditch operations. 169 It fails to engage

with the updated discussion of those operations in the 2023 RAASR, which describes FPLs

proposed alternative operating procedure to reduce pumping operations. 170 And it fails to

controvert the NRCs conclusion that no new and significant information exists on that topic. 171

Quite clearly, a petitioner cannot demonstrate a genuine dispute with information that it fails to

acknowledge or discuss. And for that reason, Petitioner has not met its burden to do so here.

Accordingly, Amended Contention 1-C is inadmissible because it fails to satisfy multiple

criteria in 10 C.F.R. § 2.309(f)(1).

E. Contention 2 (Endangered Species)

Contention 2 should be rejected because Petitioner has not demonstrated satisfaction of

Sections 2.309(c)(4) or (f)(1).

167 Turkey Point, LBP 03, 99 NRC at __ (slip op. at 22 - 23).

168 2024 FSEIS at A-49.

169 2019 FSEIS 3-8 to 3-10.

170 Petition, Exh. 9 at 2-11.

171 2024 FSEIS at A-49.

33

1. Contention 2 Is Inadmissible

In Contention 2, Petitioner alleges that the 2024 FSE ISs analysis of the potential impacts

of Turkey Points continued operation during the renewal period on Miami cave crayfish is

inadequate and its determination that continued operation is unlikely to adversely affect or

jeopardize the Miami cave crayfish is unsupported. 172 As the Board is aware, after the NRC

published the 2023 DSEIS, the U.S. Fish and Wildlife Service (FWS) published a proposal in the

Federal Register to list the Miami cave crayfish as a threatened species under the ESA. 173

Petitioner challenged the 2023 DSEIS because it did not address the Miami cave crayfish. 174 The

Board rejected this contention as premature because it was impossible for the 2023 DSE IS to

address something that occurred after it was published. The Board also said Petitioner would have

an opportunity to advance ESA compliance in the FSEIS. 175 Petitioner now challenges the

2024 FSE IS s analysis. As discussed below, the new contention is inadmissible because it does not

demonstrate a genuine dispute on a material issue of law or fact. A brief background discussion is

also provided below.

The Miami Cave Crayfish : I n the 2024 FSEIS, the NRC relied on information from the

FWSs Federal Register notice, which reflects the best available scientific and commercial

information available about the crayfishs life cycle, feeding, range, and possible factors that could

affect it. 176 The Miami cave crayfish is a small, freshwater, subterranean crayfish endemic to

172 Motion at 36.

173 Endangered and Threatened Wildlife and Plants; Threatened Species Status With Section 4(d) Rule for the Miami Cave Crayfish; Proposed Rule, 88 Fed. Reg. 64,856 (Sept. 20, 2023) (Proposed Listing).

174 Petition at 63-74.

175 Turkey Point, LBP 03, 99 NRC at __ (slip op. at 30 - 31).

176 2024 FSEIS at 2-63 to 2-64 (quoting Proposed Listing, 88 Fed. Reg. at 64,58 6 (stating the FWS reviewed the best available scientific and commercial information)).

34 southern and central Miami-Dade County. 177 The species has been collected from wells in those

areas at depths from 7.9 to 36 feet, but [d]espite significant sampling efforts, has no t been found

in groundwater wells of similar depths within Everglades National Park, which lies west of

Turkey Point. 178 The crayfish has not been found in the vicinity of Turkey Point, and its closest

range lies approximately six kilometers to the northwest of the northern most part of the CCS. 179

According to the FWS, the primary threat to the crayfish is saltwater intrusion associated

with sea level rise. 180 Other threats include modification of surface cover from agriculture,

urbanization, and development; modification of karstic limestone from below-ground construction

and infrastructure; aquifer drawdown from residential, agricultural, industrial, municipal, and

recreational uses; and groundwater contamination by various anthropogenic sources. 181

Duty to Confer on Proposed Species: T he NRCs need to confer with the FWS on a

proposed species is governed by 50 C.F.R. § 402.10. Section 402.10 states that a federal agency

shall confer on any action which is likely to jeopardize the continued existence of any proposed

species. 182 Thus, if the NRC determines that the proposed action is not likely to jeopardize the

crayfish, then the NRC need not confer with the FWS. As discussed below, the NRC concluded,

based on its evaluation of FPLs efforts to both retract the legacy plume and prevent CCS water

from moving westward beyond the CCS, that operation of the CCS during the SLR term is not

likely to jeopardize the continued existence of the crayfish. Thus, NRC did not need to confer with

the FWS.

177 Id. at 2-63.

178 Id.

179 Id. at 2-64.

180 Id. at 2-63 (emphasis added).

181 Id.

182 50 C.F.R. § 402.10(a) (emphasis added).

35 2024 FSE IS E valuation of Miami Cave Crayfish: To determine the potential impacts to the

crayfish during the SLR term, the NRC evaluated two potential impacts: (1) exposure to

radionuclides and (2) habitat loss from saltwater intrusion. 183 Because Petitioner challenges only

the NRCs analysis and conclusions on saltwater intrusion, the 2024 FSE IS s analysis of exposure

to radionuclides is not at issue here.

On saltwater intrusion, the 2024 FSE IS points out the that the hypersaline plume does not

currently overlap with the endemic range of the Miami cave crayfish. 184 The NRC also discusses

FPLs efforts to retract the legacy plume. According to the 2024 FSE IS, the data shows that since

implementation of the RWS in 2018, the hypersaline plume in the upper layers of the aquifer has

almost been fully retracted to within the FPL site boundary. 185 In other words, FPL has been

successful in retracting the legacy plume in the upper level of the aquifer.

As to the impacts from the CCS during the SLR term, the NRC found that with continued

freshening of the CCS and continued operation of the RWS during the SLR term, it is likely that the

CCS would not worsen the hypersaline groundwater plume outside the plant boundary, destabilize

the groundwater resource, or adversely affect the beneficial uses of groundwater offsite by existing

users. 186 The NRC also found that continued freshening of the CCS during the SLR term would

ensure that water originating from the CCS does not influence the saltwater/freshwater interface

within the species range. 187

183 2024 FSEIS at 2-65.

184 Id. at 2-67.

185 Id.

186 Id.

187 Id.

36 Based on the above factors, the NRC concluded that Miami cave crayfish are unlikely to

experience measurable effects from saltwater intrusion associated with the proposed continued

operation of Turkey Point during the SLR term. 188 The NRC also concluded that all potential

impacts on Miami cave crayfish from the proposed continued operation of Turkey Point during the

SLR term would not be able to be meaningfully measured, detected, or evaluated, and would,

therefore, be insignificant. 189 To be clear, the NRC did not omit an evaluation of these effects; it

squarely evaluated them and concluded that they were negligible.

a. Petitioners Hypersalinity Arguments Are Unsupported and Fail to Demonstrate a Genuine Dispute

According to Petitioner, the 2024 FSE IS is fundamentally deficient because it ma [de] no

reference to the crayfishs intolerance to even low salinity levels. 190 Petitioner claims that this

failure means that the NRC did not use science-based standards for determining ha rmful impacts

and that the 2024 FSE IS fails to consider the concept of a gradient of salinity throughout the

aquifer. 191 Petitioner also relies on its earlier arguments made in Contention 1 criticizing the

NRCs analysis of the hypersaline plume to gauge the impacts of the CCS on the Biscayne Aquifer.

However, none of these arguments are adequately supported or demonstrate a genuine dispute on a

material issue.

For example, Petitioner argues that the NRC improperly focuses on hypersalinity and

therefore ignores the movement of the saltwater/freshwater interface caused by the CCS, echoing

188 Id.

189 Id.; see also U.S. Fish and Wildlife Service, Endangered Species Consultation Handbook at 3-12 to 3-13 (1998)

(describing discountable effects), https://www.fws.gov/sites/default/files/documents/endangered -species-consultation-handbook.pdf.

190 Motion at 42.

191 Id.

37 claims made in Contentions 1-B and 1-C. 192 But as explained in FPLs corresponding discussions

above, which are incorporated here by reference, the NRCs use of hypersalinity is based on the

FDEPs use of hypersalinity to gauge the CCSs influence on the saltwater interface. As with

Contentions 1-B and 1-C, Petitioner fail s to provide any reasoned explanation for why that approach

is technically inadequate or legally insufficient. In fact, it fails to engage with that information at

all. In sum, many factors other than the CCS influence the saltwater interface; whereas, the

cognizant state regulatory authority has determined that removing the hypersaline plume as a factor

that affects that interface is sufficiently protective of potable water to fully satisfy all legal

requirements. More than a mere disagreement with the NRCs method is required to demonstrate a

genuine dispute, which Petitioner failed to do.

Given all of this, Petitioners criticism of the 2024 DSEIS for not referencing the crayfishs

likely intolerance to speculative salinity thresholds, or not discussing salinity gradients, also fails

to raise a genuine dispute. The thrust of the NRCs analysis is that mitigation measures have halted

the expansion of the saltwater interface. Given that conclusion, which is based on underlying

current data that Petitioner disregards entirely, it is unclear why any further analysis is needed to

comply with NEPA. And Petitioner offers no explanation.

Petitioner also repeats various arguments from Contention 1-C that rely on outdated data and

fail to acknowledge, consider, or dispute more recent data on those topics as presented or referenced

in the 2024 FSE IS. For example, Petitioner recycles its argument that the CCS is continuing to

flush large volumes of saline water into the aquifer. 193 But as discussed above, Petitioners claim is

directly refuted by evidence from FPLs monitoring wells, which Petitioner ignores. The data show

192 Id. at 41-4 4, 46-48.

193 Motion at 23.

38 that the RWS is extracting more saline water than Dr. Nuttle (and Petitioner) claim is being flushed

from the CCS. 194 Likewise, Petitioner claims that data from USGS wells prove that the saltwater

interface is advancing. 195 But those claims are based on data that is more than a decade old, well

before the RWS became operational. And those claims fail to acknowledge or confront the new

data considered in the 2024 FSE IS confirming that the saltwater interface has be en halted. Because

Petitioner simply ignores all of the extensive new monitoring data on these matters a s discussed or

referenced in the 2024 FSEIS, it has failed to raise a genuine dispute on this topic.

Furthermore, these recycled arguments already have been rejected by the cognizant state

regulator. As noted above, challengers in the Turkey Point NPDES renewal proceeding before

FDEP contented that the mitigation measures would increase[] the hydrostati c head of water

seeping from the CCS and exacerbate the movement of the hypersaline plume. 196 In rejecting

that theory, the judge noted that it fails to take into account that... operation of the RWS prevents

any water seeping from the CCS into ground water from moving west of the CCS. 197

To the extent Petitioner wants to relitigate the outcome of the FDEP proceeding, it is in the

wrong forum. And to the extent it has failed to acknowledge or dispute the extensive, updated data

discussed in or underlying the 2024 FSEIS, it has failed to demonstrate a genuine dispute.

b. Petitioners Cumulative Impact Arguments Are Unsupported and Fail to Demonstrate a Genuine Dispute

According to Petitioner, the NRC needed to examine, analyze, and address the cumulative

impacts from continued operation of the CCS during the SLR term coupled with the impacts of

194 See Petition, Exh. 9 at 2-1.

195 Id. at 43.

196 Final Order at 78 ¶ 302.

197 Id. ¶ 303.

39 rising sea levels. 198 While FPL concedes that saltwater intrusion from rising sea levels will have far

greater impact on the crayfish than water from the CCS, Peti tioner fails to explain why any further

analysis is required here.

As a general matter, these arguments are rooted in Petitioner s defective arguments

regarding the alleged volume of saline water exiting the CCS, secondary impacts of RWS operation,

and the allegedly advancing saltwater interface. 199 Those arguments are unsupported and fail to

dispute the updated analytical data discussed or referenced in the 2024 FSEIS for all of the reasons

explained above.

Ultimately, the NRC concludes (based on empirical data ignored by Petitioner) that the

mitigation measures are expected to ensure that water originating from the CCS does not influence

the Biscayne Aquifers saltwater/freshwater interface within the species range. 200 Petitioner not

only fails to engage with or dispute the data or analysis that led to that conclusion, but it also offers

no competing analysis or data that purports to refute the NRCs conclusion. And if CCS water does

not influence the saltwater interface, it is uncle ar what other SLR-related impact theoretically could

combine with climate-change-based sea level rise to yield some unspecified cumulative impact.

And Petitioner offers no theory. Far more is required to demonstrate a genuine dispute.

c. Petitioners Uncer tainty Arguments Are Unsupported and Fail to Demonstrate a Genuine Dispute

Finally, Petitioner highlights the inherent uncertainty in this type of analysis and alleges that

this lack of information undermines the analysis in the 2024 FSEIS. 201 Specifically, Petitioner

198 Id. at 44-46.

199 Motion at 45.

200 2024 FSEIS at 2-67.

201 Motion at 48.

40 notes that there is uncertainty in aquifer modeling and uncertainty regarding the crayfishs range. 202

Petitioner then claims that these uncertainties somehow render the NRC Staff s analysis

deficient. 203 But Petitioner does not explain that conclusory assertion or reconcile it with NEPAs

rule of reason. 204 Far more is required to demonstrate a genuine dispute.

To the extent Petitioner complains about uncertainty regarding groundwater modeling, the

NRC has plainly acknowledged and explained that uncertainty. 205 NEPA does not require certitude.

To the contrary, disclosure of incomplete or unavailable information and significant uncertainties

is all that NEPA requires. 206 Petitioner fails to explain why anything more is required as to

groundwater modeling here. Likewise, Petitioner fails to explain why uncertainty in the crayfishs

range is material. Petitioner relie s on the FWSs statement that the crayfish is highly unlikely to

survive in even slightly salty water. 207 If so, the then crayfishs current range does not include

areas beyond the current saltwater interface; and as discussed in the 2024 FSEIS, continued

operation of Turkey Point is not expected to contribute to further expansion of that interface during

the SLR term. Petitioner does not explain why further precision in the exact range of the crayfish is

necessary to evaluate the potential impacts of SLR.

202 Id. at 46-47.

203 Id. at 46.

204 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-22, 72 NRC 202, 208 (2010) (stating that NEPA requirements are tempered by a practical rule of reason. and [a]n [EIS] is not intended to be a research document. ) (citations omitted).

205 See, e.g., FSEIS at 2-38 ( However, the ultimate extent and timing of this retraction cannot be fully known. This recognition of uncertainty is based on a hard look at all of the relevant information available to date. ).

206 Pilgrim, CLI 22, 72 NRC at 208.

207 Motion at 41-42.

41 At most, Petitioner offers a footnote citation to a licensing board decision for the proposition

that agency analysis methodologies must be reasonable. 208 But they make no attempt to explain

why that standard is not met here. In fact, that decision appears to contradict their claim. As the

licensing board explained:

NEPA requires that an agency take a hard look at the environmental consequences of a planned action. NEPA does not, however, require agencies to analyze every conceivable aspect of a proposed project.

Rather, NEPAs requisite hard look is subject to a rule of reason.

... Moreover, the Commission recognizes that an environmental impact statement is not a research document, and, in assessing foreseeable impacts, there will always be more data [that] could be gathered, so that agencies must have some discretion to draw the line and move forward with decisionmaking. In assessing these impacts, the agency is not required to use the best scientific methodology or study phenomena for which there are not yet standard methods of measurement or analysis. 209

Petitioner fails to engage with any of these legal standards and offers no explanation about

what more is purportedly required to satisfy the hard look requirement. It fails to explain what

more is required regarding aquifer modeling for the analysis of potential impacts on the crayfish

beyond the extensive work that already has been completed across many years of collection and

analysis of vast amounts of data (the most recent of which Petitioner ignores) using state-of-the-art

modeling (which Petitioner fails to dispute).

As the Commission has often explained, [o]ur boards do not sit to flyspeck environmental

documents or to add details or nuances. If the ER (or EIS) on its face comes to grips with all

208 Id. at 48 n.187 (citing Powertech USA, Inc. (Dewey-Burdock in Situ Uranium Recovery Facility), LBP-17-9, 86 NRC 167, 191 (2017)).

209 Id. (citations omitted).

42 important considerations nothing more need be done. 210 The NRCs analysis does so here; and

Petitioners conclusory assertion otherwise is not enough to generate a genuine dispute.

Accordingly, Contention 2 is inadmissible because it fails to satisfy multiple criteria in

10 C.F.R. § 2.309(f)(1).

F. Contentions 3-A and 3-B (Climate Change)

Contentions 3-A and 3-B both allege that the 2024 FSEIS failed to analyze the effects of

climate change during the SLR period. Contention 3-A alleges that the 2024 FSEIS contain s an

inadequate discussion how climate change will exacerbate seal level rise, hurricanes, and increase

temperatures and drought and how these climate-related impacts will affect Turkey point during the

SLR period. 211 Contention 3-B alleges that the NRC failed to adequately update its evaluation of

FPLs SAMA analysis to reflect the effects of climate change on accident risk. 212 Both Contention

3-A and 3-B rely on the recent GAO Report as a basis for each contention.

Contentions 3-A and 3-B should be rejected because Petitioner has not demonstrated

satisfaction of Sections 2.309(c)(1), (c)(4), or (f)(1).

1. Contentions 3-A and 3-B Are Not Based on New and Materially Different Information

Petitioners stated basis for Contentions 3-A and 3-B is the GAO Report issued on

April 2, 2024. 213 According to Petitioner, the GAO Report was not previously available and

210 Systems Energy Res., Inc. (Early Site Permit for Grand Gulf ESP Site), CLI- 05-4, 61 NRC 10, 13 (2005) (citation omitted).

211 Motion at 55 - 56.

212 Id. at 69.

213 Id. at 52-53.

43 therefore it satisfies the requirement that new contentions be based on new facts. 214 Petitioner

claims the GAO Report satisfies the materially different requirement in Section 2.309(c)(1)(ii)

for new contentions because it provides information showing that it is genuinely plausible that

consideration of the climate risks and associated environmental impacts identified in the report

would change the NRC Staffs conclusions regarding climate change-related environmental

impacts. 215

Contrary to Petitioners claims, the GAO Report provides no new information on the

anticipated effects of climate change. Even a cursory review of the GAO Report reveals that it

relies on already existing data that was availab le to Petitioner before the hearing request deadline on

November 27, 2023. In essence, the GAO Report is merely a compendium of historical information

that has long been publicly available. Also contrary to Petitioners claim, the GAO Report provides

no new analysis about the effects of climate change on nuclear reactors generally, or Turkey Point

specifically. In short, the GAO Report is not based on new facts that are materially different and

thus, Petitioner cannot demonstrate good cause for the new contentions. For these reasons, and as

discussed below, and the Board should deny the Motion to admit Contentions 3-A and 3-B.

As noted above, while the GAO Report is new, none of the data or reports it relied on are

new. The GAO Report only summarizes (at a high level) and repackages government data and

reports already available to Petitioner before it filed its Petition in November 2023. The GAO

admits as much in describing its methodology for the report. To prepare the report, the GAO first

reviewed its own past reports and then conducted a literature review for relevant articles published

214 Id. at 52; see Pilgrim, CLI 10, 75 NRC at 493 n.70 (new contentions must be based on new facts) (emphasis omitted).

215 Id. at 52.

44 from January 2012 through January 2023. 216 The GAO specifically relied on the following

government reports and national-level data sets from federal agencies for various climate-related

hazards: 217

• the National Climate Assessment (for heat and cold hazards);218

• the Federal Emergency Management Agencys (FEMA) National Flood Hazard Layer (for flooding risks); 219

• the U.S. Forest Services Wildfire Hazard Potential (for wildfire hazards); 220

• the National Oceanic and Atmospheric Administrations (NOAA ) Sea, Lake, and Overland Surges from Hurricane model (for storm surge); 221 and

• an interagency report on sea level rise.222

All of the reports and data above were available to Petitioner before it filed its Petition in

November 2023. Indeed, Petitioner cited both the National Climate Assessment and the interagency

report on sea level rise in its Petition. 223 That Petitioner already cited these sources shows the

information the GAO relied on for the report was previously available to Petitioner, and Petitioner

216 GAO Report at 42-43.

217 Id. at 43.

218 Id. at 44, 49-50 (citing the Fourth and Fifth National Climate Assessments). The GAO relied on the Fourth National Climate Assessment, which was published in 2018. See U.S. Global Change Research Program, Fourth National Climate Assessment (2018), https://nca2018.globalchange.gov/downloads. The Fifth National Climate Assessment was published on November 14, 2023 ( https://nca2023.globalchange.gov ), before Miami Waterkeeper filed its Petition. The GAO reviewed this assessment and identified no major differences major differences for the selected hazards. GAO Report at 44 n.9.

219 GAO Report at 44-45, 51 (citing FEMAs National Flood Hazard Layer, https://www.fema.gov/flood -

maps/national-flood-hazard-layer).

220 Id. at 44, 50- 51 (citing the Forest Services Wildfire Hazard Potential Map, https://www.firelab.org/

project/wildfire-hazard-potential).

221 Id. at 45, 52 (citing NOAAs Sea, Lake and Overland Surges from Hurricanes model, https://www.nhc.noaa.gov/surge/slosh.php#SMODEL ).

222 Id. at 45, 52-53 (referencing W.V. Sweet et al., Global and Regional Sea Level Rise Scenarios for the United States: Updated Mean Projections and Extreme Water Level Probabilities Along U.S. Coastlines (Feb. 2022),

https://oceanservice.noaa.gov/hazards/sealevelrise/sealevelrise-tech -report-sections.html (Sea Level Report)).

223 Petition at 58 n. 228 (citing Donald J. Wuebbles et al., Climate Science Special Report: Fourth National Climate Assessment, U.S. Global Change Research Program 197, tbl. 6.4 (2017), https://science2017.globalchange.gov/

downloads/CSSR2017_FullReport.pdf; id. at 51 n.198 (citing Sea Level Report)).

45 knew how to access the information. As a result, Petitioner cannot satisfy the first element of the

good cause standardthat the information was not previously availablein

Section 2.309(c)(1). 224 Petitioners failure to satisfy the first element of the three-part good cause

standard for a new contention should, by itself, result in the Boards denial of the Motion.

Furthermore, the information in the GAO Report also is not materially different than

previously available information. Even so, Petitioner claims that the GAO Report satisfies the

materially different requirement because it provides materially different information about three

specific categories of climate risks to Turkey Point: (1) flooding risks from rising sea levels and

intensifying hurricanes; (2) safety risks from stronger hurricanes; and (3) increased salinity in the

CCS because of rising temperatures and drought. 225 As shown below, however, the GAO Report

provides no mate rially different information on these climate -related impacts either generally or

specific to Turkey Point. As a result, Petitioner cannot satisfy the second element of the good

cause standard, 226 and the Board should deny the Motion.

Sea Level Rise: According to Petitioner, the GAO Report provides materially different

information about flooding risks due to sea level rise and intensifying hurricanes at Turkey Point.

To support this claim, Petitioner cites several findings in the GAO Report that Tu rkey Point is:

(1) susceptible to sea level rise, storm surges, and flooding; 227 (2) located in a high flood hazard

area; 228 and (3) susceptible to storm surges from Category 4 and 5 hurricanes. 229 Petitioner also

224 10 C.F.R. § 2.309(c)(1)(i) (a participant must demonstrate good cause by showing that: (i) the information upon which the filing is based was not previously available.).

225 Motion at 56-57.

226 10 C.F.R. § 2.309(c)(1)(ii).

227 Motion at 57.

228 Id.

229 Id.

46 claims that the GAO Report provides my riad information demonstrating the reasonably

foreseeable risk of overtopping of the Turkey Point CCS. But nothing in the GAO Report on these

risks is materially different from previously available information. In addition, these specific risks

have already been analyzed by the NRC as part of CLB activities in response to the accident at the

Fukushima Daiichi plant in Japan. 230 And those CLB safety conclusions are beyond the scope of

this proceeding.

First, the data cited in the GAO Report on sea level rise at Turkey Point is not materially

different from previously available information. As noted above, the GAO relied on an interagency

report from February 2022 on sea level rise, 231 which is publicly available on NOAAs website. 232

Not only was the report available when Petitioner filed its November 2023 Petition, but itcited the

report in its Petition. 233 The GAO Report does not contain any new analysis on sea level rise

unique to Turkey Point, it merely repackaged the data. For example, the GAO Report includes a

map showing projected sea level rise by coastal region (Figure 8 on page 24). 234 But the data in this

map is taken directly from the interagency report (Table 2.2 on page 19). 235 The only change to the

data made by the GAO was to convert the projected sea level rise from meters to feet.236

Converting meters to feet is not materially different information.

230 See Letter from R. Kuntz, NRC, to M. Nazar, NextEra Energy, Turkey Point Nuclear Generating Station, Unit Nos. 3 and 4 - Staff Assessment of Response to 10 CFR 50.54(f) Information Request - Flood-Causing Mechanism Reevaluation (TAC No. MF1114 and MF1115) (Dec. 4, 2014) ( ML14324A816) (Flooding Reevaluation).

231 GAO Report at 23 n.32 (citing Sea Level Report).

232 See Sea Level Report.

233 See Petition at 51 n.198.

234 GAO Report at 24 fig. 8.

235 Sea Level Report at 19 tbl. 2.2. Moreover, Turkey Points coastal location had not previously been a secret.

236 Compare id. with GAO Report at 24 fig. 8.

47 Second, the GAO Report provides no new analysis of risks posed to Turkey Point from

rising sea levels. Indeed, the only Turkey Point-specific statement on sea level rise in the GAO

Report is in a footnote. In that footnote, the GAO notes that NOAA officials said that the plant is

an example of a plant where, if unaddressed, sea level rise could lead to salt water intrusion into

the plants cooling canals. 237 This cursory statement is not materially different information. In

fact, the 2019 FSE IS previously analyzed th e potential for overtopping of the CCS. 238

Third, the NRC has already reviewed flooding risks from storm surges at Turkey Point

caused by more powerful storms and exacerbated by rising sea levels. 239 But Petitioner does not

engage with the NRCs analysis of these risks at Turkey Point, compare the information used in

those analyses to the information in the GAO Report, or otherwise explain how the information in

the GAO Report is new or materially different. It is Petitioners burden to demonstrate t he

existence of new and materially different information, and it has not done so here.

Hurricane Risk: It is simply not news that Turkey Point, located in South Florida, may

experience strong hurricanes. Because of its location, Turkey Points CLB includes structures built

to withstand such hurricanes and detailed hurricane readiness procedures that FPL must implement

before the projected arrival of tropical storm force winds. 240 The closest the GAO Report comes to

discussing these procedures is providing a picture of a flood barrier at Turkey Point. 241 Th at is not

materially different information.

237 GAO Report at 23 n.31.

238 See, e.g., 2019 FSEIS at A-39.

239 See, e.g., Flooding Reevaluation at 1 3-15.

240 Id. at 7.

241 GAO Report at 19.

48 Rising Temperatures: Petitioner claims the GAO Report provides new, materially different

information on the effect rising temperature may have on evaporation rates and, by extension,

salinity levels in the CCS. In particular, Petitioner claims that the GAO Report warns that both

rising temperatures and sea level rise could exacerbate saltwater intrusion into the CCS and local

drinking water aquifers. 242 Based on this, Petitioner argues that whereas the Board previously

dismissed Petitioners concerns regarding the effects of rising temperatures, citing a lack of

evidence that the rising temperature would increase salinity levels to the extent that would affect the

environment, the GAO Report has specifically warned that such impacts are reasonably

foreseeable. 243 The GAO Report does little to apply any data on rising temperatures to Turkey

Point, doing so in a small sidebar discussing the drought conditions in 2014 and the NRC-approved

increase in cooling water temperature.244 But none of the data in the GAO Report is materially

different from previously available information. For example, the 2019 FSEIS squarely discusses

the relationship between ambient air temperatures and the CCS, as well as the aforementioned

drought conditions in 2014. 245 This information is neither new nor materially different from

previously available information.

In the NRCs response to the GAO, the NRC noted that the GAO Reports recommendations

are very broad but consistent with actions either underway or under development. 246 And while

the NRC said that the GAO report fairly characterized the NRCs regulatory structure, process, and

strengths, the NRC did not agree with its conclusion that it does not address the impacts of climate

242 Motion at 63.

243 Id. at 63-64.

244 GAO Report at 15.

245 2019 FSEIS at 3-53 to 3-54.

246 GAO Report at 65.

49 change. 247 In particular, the layers of conservatism, safety margins, and defense-in-depth policies

are incorporated into NRCs processes and provide reasonable assurance regarding any plausible

natural hazard for the operational lifetime of the reactor, including those that could result from

climate change. 248 The NRC also noted that its mission and delegated authority is focused on

nuclear safety and, as such, it cannot impose requirements without a nuclear safety justification. 249

At bottom, the GAO is an oversight agency that works for Congress to help the government

save money and work more efficiently. The GAO is not a technical expert and merely produced a

high-level summary of existing government data. And that data was available to Petitioner in

November 2023. While the GAOs collection of these sources in a single document is new, the

underlying data are not. And even to the extent that the GAO Report discusses potential climate

change impacts to Turkey Point, it presents no materially different information from that already

available. For these reasons, Petitioner has failed to show good cause for the new contentions,

and the Board should deny the Motion for leave to file Contentions 3-A and 3-B.

Accordingly, the Motion should be denied as to Contentions 3-A and 3-B for Petitioners

failure to demonstrate good cause as required by 10 C.F.R. § 2.309(c)(1).

2. Contention 3-A Is Inadmissible

If the Board finds that Petitioner satisfied the good cause standard for Contention 3-A, the

Board should nonetheless reject it because it is inadmissible. Petitioner alleges that the

2024 FSE IS fails to adequately analyze climate c hange-related environmental impacts that are

247 Id.

248 Id.

249 Id.

50 reasonably foreseeable to occur during the [SLR] period. 250 In particular, Petitioners claim sea

level rise, storm surges and stronger hurricanes, and increased temperatures as climate-related

impacts faced by Turkey Point during the SLR period. However, Petitioner fails to raise a genuine

dispute on a material issue with the 2024 FSE IS.

a. The GAO Report, Itself, Fails to Demonstrate a Genuine Dispute Because It Does Not Evaluate the 2024 FSEIS

At most, the GAO Report presents a generalized discussion of potential gaps in the NRCs

existing regulatory regime regarding climate change. But this sort of generalized discussion, that

has no regulatory weight and presents no criticisms specific to the 2024 F S EIS, falls well short of

satisfying the Commissions admissibility requirements. 251 In past adjudicatory proceedings,

petitioners have cited GAO reports as a purported bas is for proposed contentions. Presiding officers

have often found that such reports do not provide an independent basis for the admission of a

contention because they do not pertain directly to the application being considered. For example,

one licensing board found that a GAO report provided useful background on issues raised in a

petition. 252 But the board did not rely on the GAO report to admit a contention. 253

The Commission has also not accorded much weight to generalized conclusions in GAO

reports or claims extrapolated from these generalized conclusions. For example, in the recent

250 Motion at 53.

251 See Tenn. Valley Auth. (Bellefonte Nuclear Power Plant), LBP 16, 68 NRC 361, 388 (2008) (denying admission of a contention that relied on a GAO report because the contention failed to provide any evidence of environmental or safety concerns specific to the appl ication and constituted no more than an inadmissible generalized grievance regarding NRCs enforcement and regulatory policies.).

252 Va. Elec. & Power Co. (North Anna Power Station, Unit 3), LBP 15, 68 NRC 294, 312 n.82 (2008) (discussing a GAO report on the status of low -level radioactive waste disposal availability and the pending closure of the Barnwell, South Carolina facility to non-Atlantic Compact states).

253 See id. at 293-325 (admitting a safety contention as a contention of omission but denying the environmental portion of the contention related to storage and disposal of low -level radioactive waste). The petitioner cited a GAO report on low -level radioactive waste disposal. The board found the GAO report provided some background but the GAO report did not provide a basis for the admitted contention. Id. at 312 n.82.

51 license transfer proceeding for the Palisades Nuclear Power Plant, the Commission found that the

petitioners costs estimates, which came from industry-wide cost estimates in a GAO report, were

too general to support an admissible contention. 254 With this background, and as shown below, the

GAO Report is too general to support an admissible contention.

As discussed above, the GAO relied on existing data to prepare a broad summary of known

potential impacts from climate change for all nuclear plants. In other words, the GAO Report was

not singularly, or even remotely focused on Turkey Point or the SLRA. While the GAO performed

a site visit to Turkey Point and highlighted some climate -related risks to Turkey Point in the report,

none of these risks were new or unknown before the GAO Report. And the generalized treatment

of climate risks in the GAO R eport lacks the necessary specificity to support an admissible

contention.

For example, the GAO Report contains a sidebar on Heat and Drought at Turkey Point

Nuclear Generating Station. 255 This sidebar summarizes the drought conditions suffered by

Turkey Point in 2014 and the NRCs decision to allow Turkey Point to exceed its maximum

allowable intake temperature. 256 The GAO Report then states that those high temperatures and

drought at Turkey Point potentially created risks to local drinking water because of higher

salinity levels in the CCS. 257 The GAO Report then notes that FPL constructed a series of wells to

decrease salinity levels in the CCS.258 In sum, the GAO Reports treatment of heat and drought is

254 Entergy Nuclear Operations. Inc. ( Palisades Nuclear Power Plant and Big Rock Point Site), CLI 8, 96 NRC 1, 84 (2022) (While the GAO table is broadly cited as support for Joint Petitioners ultimate estimate... none of these categories are specifically identified as forming the basis for the... estimate developed by Joint Petitioners. ).

255 GAO Report at 15.

256 Id.

257 Id.

258 Id.

52 entirely backward looking. It makes no attempt to use climate data to forecast what might happen

in the future during the period of subsequently extended operations. This type of historical review

simply fails to raise a genuine dispute with the 2024 FSE IS.

The GAO R eport contains little other specific info rmation on climate -related risks for

Turkey Point. The other mentions of Turkey Point are in a footnote, 259 a picture of a flood

protection barrier, 260 a statement about the NRCs safety review for Turkey Point Units 6 and 7, 261

and in a table summarizing data for every nuclear plant.262 Thus, contrary to Petitioners claim that

the GAO Report contains novel analysis of the effects of climate change on nuclear reactors, 263

when it comes to Turkey Point, the GAO Report contains little analysis at all.

At bottom, the GAO Report offers little more than the type of generalized conclusions that

past boards found insufficient to support an admissible contention.

b. Petitioners Arguments Regarding Sea Level Rise, Hurricanes, and Rising Temperatures Fail to Demonstrate a Genuine Dispute

Petitioner devotes several pages in Contention 3-A to discussing general information from

the GAO Report regarding sea level rise, hurricanes, and rising temperatures. However, it offers

only a few vague criticisms of the 2024 FSE IS on these topics. And as explained below, these

criticisms are wholly insufficient to demonstrate a genuine dispute.

259 Id. at 23 n.31 (NOAA officials said that Turkey Point Nuclear Generating Station is an example of a plant where, if unaddressed, sea level rise could lead to saltwater intrusion into the plants cooling canals. ). Regardless, the GAO Report does not indicate how saltwater intrusion into the saltwater CCS is a material environmental issue.

260 Id. at 19.

261 Id. at 47 n.16.

262 Id. at 55-59.

263 Motion at 53.

53 First, Petitioner claims that the discussion of climate -change related sea level rise in the

2024 FSE IS is cursory. 264 It points to the NRC Staff s discussion of the Fifth National Climate

Assessment and corresponding conclusion that this information did not paint a seriously different

picture from what was considered in the 2019 FSE IS. Petitioner purports to dispute the basis for

this conclusion, but fails to engage with the conclusion itself or identify any reason the conclusion is

incorrect. Far more is required to demonstrate a genuine dispute.

Petitioner also criticizes the 2024 FSE IS for allegedly failing to analyze the impacts of

overtopping the CCS. 265 However, that analysis is provided in the 2019 FS EIS. 266 Whereas,

Petitioner fails to engage with that analysis or explain any reason it is deficient in any way.

Likewise, Petitioner appears to criticize the length of the discussion of hurricane-related

environmental impacts. 267 But it does not explain why anything further is required. Petitioner does

not identify any requirement that allegedly is unmet and offers no explanation of why the

2024 FSE IS purportedly falls short of that unidentified requirement.

As to rising temperatures, Petitioner also derides th e 2024 FSE IS discussion as cursory and

general. 268 But its only specific criticism is that it does not discuss how rising temperatures and

drought caused by climate change will affect groundwater quality and to what extent. 269 However,

the discussion of cumulative impacts on water resources is found in Section 4.16.2 of the

2019 FSE IS, which Petitioner did not challenge. As noted therein, [c] limate change can impact

groundwater availability and quality as a result of changes in temperature and precipitation, as well

264 Id. at 59.

265 Id. at 60.

266 See, e.g., 2019 FSEIS at A-39.

267 Petition at 60, 62.

268 Motion at 65.

269 Id. at 66.

54 as due to sea level rise. 270 That statement is followed by several paragraphs of information, none

of which Petitioner engages with or disputes. Ultimately, Petitioner fails to explain why anything

further is required.

In sum, Petitioners conclusory criticisms of the 2024 FSE IS discussion of sea level rise

and hurricanes fail to supply the requisite demonstration of a genuine material dispute.

Accordingly, Contention 3-A is inadmissible because it fails to satisfy multiple criteria in 10

C.F.R. § 2.309(f)(1).

3. Contention 3-B Is Inadmissible

If the Board finds that Petitioner satisfied the good cause standard for Contention 3-B, the

Board should nonetheless reject it because it is inadmissible. In Contention 3-B, Petitioner claims

the 2024 FSE IS does not comply with NEPA because the NRC fail[ed] to adequately update its

evaluation of FPLs SAMA analysis to reflect the effects of climate change on accident risk. 271

The basis for Contention 3-B is the GAO Report, which Petitioner claims provides new and

significant information concerning climate change-related severe accident risks 272 and paints a

seriously different picture than the 2024 FSE ISs evaluation of severe accident risks. 273 As

explained below, Contention 3-B is inadmissible because it raises issues outside the scope of this

license renewal proceeding and fails to raise a genuine dispute on a material issue.

270 2019 FSEIS at 4-132. The 2024 FSEIS also address es this topic in Appendix E noting that [s]easonal, annual average, and extreme precipitation across the Southeast will continue to increas e and will be driven primarily by more extreme events with greater increases in global surface temperature. 2024 FSEIS at E-9. The 2024 FSEIS also recognizes projected increases in coastal flooding, the intensity of hurricanes, and sea level rise. Id. at E-9 to E-10. The NRC Staff ultimately concludes that it did not identify any new information that would change the 2019 analysis and continues to rely on that analysis. Id. at E-11.

271 Motion at 69.

272 Id. at 70.

273 Id. at 77.

55

a. Petitioners Spent Fuel Arguments Are Outside the Scope of This Proceeding

Contention 3-B relies, in part, on the GAO Reports discussion of increased flooding and

storm surge risks caused by climate change.274 Petitioner quotes the GAO Reports statements that

by exposing the facility to salt water for prolonged periods, flooding could degrade or corrode a

casks exterior, potentially posing risks to the environment 275 and that flood waters could

interfere with heat removal from spent fuel pools by blocking ventilation ports with water. 276

Petitioner then argues that Turkey Point s high vulnerability to hurricane storm surges is

particularly troubling, as casks of spent nuclear fuel may remain on site after closure. 277 In sum,

Petitioners flooding concern is entirely premised on risks to spent fuel and spent fuel storage. Such

concern, as it relates to SAMAs, is outside the scope of a reactor license renewal proceeding. The

Commission has made clear that SAMAs apply only to reactor accidents, not to spent fuel pool

accidents. 278 As a result, the portion of Contention 3-B that claims the 2024 FSE IS is deficient

because the SAMAs do not address increased flooding risks to the safe storage of spent fuel fail to

satisfy 10 C.F.R. § 2.309(f)(1)(iii).

b. Petitioners Arguments Regarding Sea Level Rise, Hurricanes, and Rising Temperatures Fail to Demonstrate a Genuine Dispute

Contention 3-B claims to challenge th e 2024 FSEISs evaluation of FPLs SAMA analysis.

But Petitioner has not identified even one specific SAMA that it purports to challenge. And it has

not explained how any unspecified SAMAs are insufficient to account for climate change or why

274 Id. at 72-73.

275 Id. at 72 (quoting GAO Report at 19).

276 Id. at 72-7 3 (quoting GAO Report at 19).

277 Id. at 73.

278 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), LBP- 06-23, 64 NRC 257, 291 (2006) (citing Fla. Power & Light Co. ( Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 21-22 (2001)).

56 the analysis thereof would lead to any different outcome. As a threshold matter, this approach is

inadequate to raise a genuine dispute with regard to the adequacy of the SAMA. 279 As a result,

Petitioner has not raised a genuine dispute with the 2024 FSE IS.

According to the Commission, a SAMA analysis rests largely on selected inputs and so it

may always be possible to conceive of alternative and more conservative inputs, whose use in the

analysis could result in greater estimated accident consequences. 280 But the Commission also

cautioned that SAMA adjudications would prove endless if hearings were triggered merely by

suggested alternative inputs and methodologies that conceivably could alter the cost-benefit

conclusions. 281 Thus, [a] contention proposing alternative inputs or methodologies must present

some factual or expert basis for why the proposed changes in the analysis are warranted

[o]therwise, there is no genuine material dispute with the SAMA analysis that was done, only a

proposal for an alternative NEPA analysis that may be no more accurate or meaningful. 282 U nless

it looks genuinely plausible that inclusion of an additional factor or use of other assumptions or

models may change the cost-benefit conclusions for the SAMA candidates evalu ated, no purpose

would be served to further refine the SAMA analysis, whose goal is only to determine what safety

enhancements are cost-effective to implement. 283

While Petitioner makes vague arguments about including climate risks in the SAMA

analysis, these arguments fail to identify specific SAMAs or specific inputs that would change the

SAMA analysis. More specifically, at the beginning of each of the first three subsections in

279 Nuclear Mgmt. Co., LLC (Monticello Nuclear Generating Plant), LBP 31, 62 NRC 735, 762 (2005).

280 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI 5, 75 NRC 301, 323 (2012).

281 Id.

282 Id.

283 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI 11, 71 NRC 287, 317 (2010).

57 Contention 3-B, related to Flooding-related risks, Hurricane-related risks, and Temperature-

related risks, Petitioner includes a rote assertion that The 2024 FSE IS fails to adequately update

its SAMA evaluation to reflect the [flooding/hurricane/temperature]-related effects of climate

change on accident risk. 284 Petitione r then provides a summary of the GAO report on each subject.

However, it does not engage with any portion of the SAMA analysis. It does not identify any

SAMA that potentially would be affected by flooding, or hurricanes, or ambient air temperature. It

does not explain the current parameters of those SAMAs or contrast those parameters with some

new parameter that allegedly should be used instead, or explain why the existing parameter is

materially insufficient. In other words, contrary to 10 C.F.R. § 2.309(f)(1)(vi), Petitioner has not

bothered to identify the specific portions of the SAMA analysis that it disputes or any supporting

reasons to explain why those unidentified SAMAs fall short of some unspecified requirement in

Part 51. Simply put, Contention 3-B falls well short of what is needed for an admissible contention

on SAMAs.

Accordingly, Contention 3-B is inadmissible because it fails to satisfy multiple criteria in 10

C.F.R. § 2.309(f)(1).

V. THE BOARD SHOULD DENY THE WAIVER REQUEST

A. Legal Standards for Waivers

As the Commission has explained, Section 2.335(b) provides only a limited exception to

the NRCs general prohibition against challenges to NRC rules or regulations in adjudicatory

proceedings. 285 In general, when the Commission decides to carv[e] out issues from adjudication,

284 Motion at 72-74.

285 Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), CLI 7, 78 NRC 199, 206 (2013).

58 it does so carefully and deliberately pursuant to its broad statutory discretion to transact its

business broadly, through rulemaking, or case-by-case, through adjudication. 286 Thus, to challenge

the generic application of a rule, a petitioner seeking waiver must show that there is something

extraordinary about the subject matter of the proceeding such that the rule should not apply. 287

More specifically, to litigate an issue that otherwise would be outside the scope of an adjudication, a

petitioner must show that special circumstances with respect to the subject matter of the particular

proceeding are such that the application of the rule or regulation (or a provision of it) would not

serve the purposes for which... [it] was adopted. 288 The waiver petitioner must include an

affidavit that states with particularity the special circumstances that justify waiver of the rule. 289

In 2005, in the Millstone license renewal proceeding, the Commission set forth a four-part

test that it has long used in ruling on waiver petitions. 290 That test requires the petitioner to sho w

that:

(1) The rules strict application would not serve the purposes for which it was adopted;

(2) Special circumstances exist that were not considered, either explicitly or by necessary implication, in the rulemaking proceeding leading to the rule sought to be waived;

(3) Those circumstances are unique to the facility rather than common to a large class of facilities; and

(4) Waiver of the regulation is necessary to reach a significant safety (or environmental) problem. 291

286 Id. at 207 (citations omitted).

287 Id.

288 Id. at 206- 07 (quoting 10 C.F.R. § 2.335(b)).

289 Id. at 207 (quoting 10 C.F.R. § 2.335(b)).

290 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI- 05-24, 62 NRC 551, 55 9-60 (2005).

291 See id.

59 All four Millstone elements must be met to justify a rule waiver. 292 The Commission has

noted that this purposefully places a substantial burden on waiver petitioners because t he agency

will not set aside a duly -promulgated regulation lightly, and because the Commissions

longstanding view is that in general, challenges to regulations are best evaluated through generic

means. 293 In the context of a Part 51 waiver, the Commission has held that a petitioner must

present specific, fact -based claims... not mere allegations. 294 In other words, a waiver petition

is not an opportunity to embark upon a fishing expedition; waiver petitioners must make the

requisite presentation upfront.

B. Petitioners Waiver Request Should Be Denied

Petitioner seeks a waiver of 10 C.F.R. §§ 51.53(c)(3), 51.71(d) and Part 51 Subpart A,

Appendix B, in order to challenge the adequacy of the 2024 FSE IS s alleged failure to update the

SAMA analysis. 295 Petitioner claims that it requests a waiver in case the Board interprets those

regulations to preclude Petitioners Contention 3-B.

1. The Board Should Deny the Waiver Request Because It Is Unnecessary

As explained above in Section III, the 2024 Rule does not impact this proceeding. In FPLs

view, a waiver is not needed for the Board to consider Contention 3-B. That contention challenges

a site-specific SAMA analysis in the 2024 FSEIS that does not rely on the 2024 Rule. Because a

waiver is not needed to challenge a site-specific analysis, the Waiver Request should be denied.

292 See Limerick, CLI 7, 78 NRC at 208.

293 Id.

294 Interim Storage Partners LLC (WCS Consolidated Interim Storage Facility), CLI 15, 92 NRC 491, 506 n.111 (2020) (quoting Private Fuel Storage, LLC (Indep. Spent Fuel Storage Inst allation), CLI 22, 60 NRC 125, 134 (2004)).

295 Waiver Request at 1.

60

2. If the Board Determines a Waiver is Necessary to Consider Contention 3-B, It Should Deny the Waiver Request Because Petitioner Has Not Made the Requisite Prima Facie Showing

Alternatively, if the Board nevertheless concludes that 2024 Rule does apply and precludes

Contention 3-B absent a waiver, the Board should deny the Waiver Request because, as shown

below, Petitioner has not satisfied the requirements for a waiver.

a. Millstone Factor 1: Purpose for Which the Regulation was Adopted

Petitioner failed to show that strict application of the rules would not serve the purpose for

which they were enacted. To the contrary, strict application of the new rules for SLR

environmental review s would precisely serve the purpose for which those rules were enacted. The

new rules reflect the culmination of a two -year review by the NRC of environmental impacts during

one term of SLR. At the end of that process, the NRC determined that severe accidents should be

a Category 1 issue. According to NRC Staff, after its review of new information it determined

that the overall risk posed by severe accidents is less than originally stated by a significant

margin. 296 In addition, the NRC determined that new information in the 2024 GEIS did not

contribute sufficiently to the environmental impacts to warrant furth er SAMA analysis because the

likelihood of finding cost-effective significant plant improvements is small. 297

The NRCs decision to categorize severe accidents as Category 1 issue was based on a

reasoned analysis, and Petitioner has not shown why the application of the new rule would not serve

the purpose for which it was adopted. In fact, the Waiver Request does not mention, discuss, or

analyze those purposes whatsoever. It merely makes the conclusory assertion that application of the

rule would preclude the admission of Contention 3-B, which Petitioner claims would therefore

296 SECY 0017, Final Rule: Renewing Nuclear Power Plant Operating Licenses Environmental Review at Encl. 1, p. 51 (Feb. 21, 2024) (ML23205A024) (emphasis added).

297 Id.

61 undermine the safety purposes of the SAMA analysis. 298 However, SAMA analyses are

environmental reviews; they have no safety purpose whatsoever. Petitioner fundamentally

misunderstands the purpose of SAMA analyses, and identifies no reason that application of the rule

would not serve its purpose.

b. Millstone Factors 2 and 3: Special Circumstances Unique to the Plant

The second and third Millstone element s require demonstration of a circumstance that was

not considered, either explicitly or by necessary implication, in the rulemaking proceeding leading

to the rule sought to be waived, 299 and that is specific to the plant. Petitioner claims the recent

publication of the GAO Report and its identification of Turkey Point as being at high risk for

flooding and high-intensity hurricanes constitute special circumstances. 300 But the GAO Report,

and the occurrence of flooding and hurricanes at Turkey Point, is not such a circumstance.

The GAO Report is not a new and novel analysis of climate risk as Petitioner claims. As

explained above, the GAO Report compiled and summarized already available government data and

provided a high-level overview of climate risks generally. While the GAO document is new, the

underlying information and data have long been publicly available.

Even so, Petitioner identifies no information in the GAO Report that is surprising or

unexpected in the context of severe accident analysis. For example, Petitioner notes that the GAO

Report identified Turkey Point to be at risk of high-intensity hurricanes. 301 But that is not new

information and does not constitute a special circumstance of which the NRC was unaware when

it promulgated the rule. Turkey Points ability to withstand flooding and strong hurricanes has been

298 Waiver Request at 7.

299 Millstone, CLI 24, 62 NRC at 559-60 (citation omitted).

300 Waiver Request at 8.

301 Id. at 8.

62 part of its design basis since the ti me of its construction, and the NRC certainly considered the risk

of hurricanes in its GEIS analyses of postulated accidents. Ultimately, Petitioner identifies no new

circumstances that the NRC failed to consider in the rulemaking. And, indeed, it does not discuss

that rulemaking at all.

c. Millstone Factor 4: Significant Problem

The fourth Millstone factor is that w aiver of the regulation is necessary to reach a significant

safety (or environmental) problem. 302 Contrary to Petitioners claim, the GAO Report does not

analyze[] the increasing risk of severe accidents due to climate change. 303 The GAO Report

and specifically the portion cited by Petitioner, hereis a table summarizing government data on

potential impacts from climate change. The GAO Report does not perform any type of risk

analysis. And Petitioner fails to engage with or analyze the FSE IS or its updated analysis of severe

accidents or SAMAs or explain any reason that analysis is somehow deficient, much less why it

purportedly is a significant problem. As discussed above, the NRC has just completed a years-

long revision process to update the GEIS and determined that Severe Accidents are a Category 1

issue. The GAO Report does nothing to challenge that conclusion.

Accordingly, the Waiver Request should be denied.

VI. CONCLUSION

Pursuant to 10 C.F.R. § 2.309(c) the Motion should be DENIED as to Contentions 1-A, 1-B,

and 1-C and Contentions 3-A and 3-B because they are not based on new and materially different

information than that previously available. The Motion should also be DENIED as to all

contentions because Petitioner failed to propose an admissible contention.

302 Millstone, CLI 24, 62 NRC at 559-60.

303 Waiver Request at 9 (citing GAO Report at 55).

63 Respectfully submitted,

Signed (electronically) by Scott D. Clausen Executed in Accord with 10 C.F.R. § 2.304(d)

SCOTT D. CLAUSEN, Esq. PAUL M. BESSETTE, Esq.

M ORGAN, L EWIS & B OCKIUS LLP RYAN K. LIGHTY, Esq.

1111 Pennsylvania Avenue, N.W. M ORGAN, L EWIS & B OCKIUS LLP Washington, D.C. 20004 1111 Pennsylvania Avenue, N.W.

(202) 739-5402 Washington, D.C. 20004 Scott.Clausen@morganlewis.com (202) 739-5796 (202) 739-5274 Paul.Bessette@morganlewis.com Ryan.Lighty@morganlewis.com

Executed in Accord with 10 C.F.R. § 2.304(d)

STEVEN HAMRICK, Esq.

FLORIDA POWER & LIGHT COMPANY 801 Pennsylvania Ave., N.W. Suite 220 Washington, D.C. 20004 (202) 349-3496 Steven.Hamrick@fpl.com

Counsel for Florida Power & Light Company

Dated in Washington, DC this 3rd day of June 2024

64 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION

BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

In the matter of: Docket Nos. 50-250-SLR-2 and 50-251-SLR-2 FLORIDA POWER & LIGHT COMPANY

(Turkey Point Nuclear Generating Station, June 3, 2024 Units 3 and 4)

CERTIFICATE OF SERVICE

Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, a copy of the foregoing Florida

Power & Light Companys Answer To Miami Waterkeepers Motion To Admit Amended And

New Contentions In Response To The NRCStaffs Final Site -Specific Environmental Impact

Statement was served upon the Electronic Information Exchange (the NRCs E-Filing System),

in the above-captioned docket.

Signed (electronically) by Scott D. Clausen SCOTT D. CLAUSEN, Esq.

M ORGAN, L EWIS & B OCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 (202) 739-5402 Scott.Clausen@morganlewis.com

Counsel for Florida Power & Light Company

DB1/ 147754359