ML18253A280

Reply in Support of Request for Hearing and Petition to Intervene Submitted by Friends of the Earth, Natural Resources Defense Council, and Miami Waterkeeper

ML18253A280
Person / Time
Site:	Turkey Point
Issue date:	09/10/2018
From:	Ayres R, Fettus G, Rotenberg E, Rumelt K J Ayres Law Group, LLP, Natural Resources Defense Council, Super Law Group, Vermont Law School
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-250-SLR, 50-251-SLR, License Renewal, RAS 54454
Download: ML18253A280 (58)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of: FLORIDA POWER & LIGHT COMPANY (Turkey Point Nuclear Generating Station, Unit Nos. 3 and 4) (Subsequent License Renewal Application) ) ) ) ) ) ) ) ) Docket No. 50-250 Docket No. 50-251 September 10, 2018 REPLY IN SUPPORT OF REQUEST FOR HEARING AND PETITION TO INTERVENE SUBMITTED BY FRIENDS OF THE EARTH, NATURAL RESOURCES DEFENSE COUNCIL, AND MIAMI WATERKEEPER Pursuant to 10 C.F.R. § 2.309(i)(2), Friends of the Earth, Inc., Natural Resources Defense Council, Inc. hereby submit this reply 1 and Florida Power & 2 hearing request and petition to intervene3 subsequent relicensing proceeding that will determine whether Turkey Point Nuclear Generation Station, Unit Nos. 3 and 4 , will be licensed to operate until 2052 and 2053, respectively. 1 Earth, Natural Resources Defense Council and Miami Waterkeeper, and (2) Southern Alliance for Clean Energy (Aug. 27, 20 2 . 3 Request for Hearing and Petition to Intervene Submitted by Friends of the Earth, Natural Resources Defense 2 contentions.4 NRC Staff concedes that parts of two contentions1-E and 5-Eare admissible. does not oppose the admission of Contention 1-E, insofar as it asserts towers in connection with license renewal of Turkey Point Units 3 and 4, as a reasonable alternative to 5 opposes the admission (as part of the contention) of issues concerning the environmental impacts of continued CCS operation.6 NRC Staff also does not oppose the admission of one portion of Contention 5-E, concerning the impact of ammonia releases from Turkey Point Units 3 and 4 on endangered and threatened species, but opposes the admission of other portions of the contention.7 The Applicant asserts that none of For the following INTRODUCTION Petitioners meet admissibility. Both the Applicant and NRC Staff mischaracterize the admissibility standards applicable at this early stage of the proceedings and assert, without support, that NRC regulations applicable to environmental reviews in subsequent license renewals relieve the Applicant from considering None of the arguments raised by the Applicant or NRC Staff have merit. First, arguments that 4 NRC Staff Response at 9-10; FPL Response at 2. 5 NRC Staff Response at 29-30. 6 Id., at 30. 7 Id., at 54.

3 C.F.R. § 2.309(f). As the NRC Staff recognizes, the objectives of are (1) to assure that the contention raises a matter appropriate for adjudication in a particular proceeding; (2) to establish a sufficient foundation for the contention to warrant further inquiry into the assertion; and (3) to put other parties sufficiently on notice of the issues so that they will know generally what they will have to defend against.8 The NRC Staff pays lip service to these principles, and then disregards them for the rest of its Response, relying instead on flyspecking-type arguments that bear no relation to the objectives served by the § 2.309(f) admissibility standards.9 The NRC Staff, for example, faults Petitioners for failing to provide expert support for the assertion that increased air temperature will increase the rate of evaporation in the cooling canal system.10 Due in part to -E as based on 11 But § 2.309(f) does not require a petitioner to provide expert support for such an assertion or else face denial of intervention. s . The § 2.309(f) standards are not the seemingly impossibly high barriers that NRC Staff would have this Board believe. None of the arguments raised by NRC Staff or the Applicant bear any relation to the issues this Board is tasked with determining: whether the matter raised is 8 Id., at 14 (citing Philadelphia Elec. Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20-21 (1974)). 9 NRC Staff Response at 14. 10 NRC Staff Response at 35. 11 NRC Staff Response at 36.

4 appropriate for adjudication, whether the Petitioners have established a sufficient foundation to warrant further inquiry into the matter, and whether the Applicant and NRC Staff are sufficiently on notice of the issues so that they can mount an effective defense. The answer to each of those questionsas to all five contentionsis clearly yes. Petitioners have supported each of their contentions with specific assertions, referencing specific portions of the Environmental Report and identifying specific information missing from that Report, relying on expert support where appropriate. Second, NRC Staff makes the curious argument that Petitioners may not raise any Impact 2013 12 That argument is entirely unsupported and, in fact, contrary to an unambiguous regulation establishing precisely the opposite principle. NRC Staff cites 10 C.F.R. § 51.53(c)(3)(i) for the principle that the Environmental Report at issue need not analyze Category 1 issues.13 By its clear terms, however, that provision applies initial 14 The prohibition in § 51.53(c)(3)(i) against challenging Category 1 issues does not apply to requestssuch as the one at issue herefor subsequent license renewals. 12 NRC Staff Response at 2627, nn.98, 99 (citing NUREG--3 (ML13106A241, ML13106A242, and ML13106A244) (hereinafter 2013 GEIS). 13 NRC Staff Response at 27. 14 10 C.F.R. § 51.53(c)(3) (emphasis added).

5 NRC Staff attempts to brush off this issue by citing Commission documents purporting to § 51.53(c)(3)(i), applies to subsequent license renewals.15 But that interpretation is contrary to the clear language of § Neither the Commission nor the NRC Staff has authority to unilaterally overrule a duly promulgated legislative rule. Unless and until the Commission proceeds through the rulemaking process in accordance with the requirements of the Administrative Procedure Act, the provision relieving an Environmental Report from discussing Category 1 issues is limited to only license renewals. No reasonable interpretation of that regulation can expand the scope of that application to subsequent license renewals. Because the provision in § 51.53(c)(3) relieving an Environmental Report from addressing Category 1 issues does not apply in this case, FPL is bound to address Category 1 issues. Its failure to do so violates NEPA. adopt an interpretation of § 51.53(c)(3) that is unmoored from its clear and unambiguous regulatory language. § 51.53(c)(3) applies to a subsequent relicensing proceeding such as this one, the Board is required under applicable law to proposed contentions. the Environmental Report violates § 51.53(c)(3), those contentions also assert, as we note below, that the Environmental Report 15 NRC Staff Response at 23.

6 fails to comply with other provisions of law, including statutory requirements, caselaw applying NEPA, and binding regulations of the Council on Environmental Quality (CEQ). The Board should grant the Petition in full. DISCUSSION I. LEGAL BACKGROUND AND STANDARD OF REVIEW consideration of licensing issues and in establishing public confidence in the sound discharge of the important duties which have been entrusted to us.16 proce17 The NRC Staff and the Applicant present an apparently opposing principle, citing several cases describing ontentions . But a review of the cases cited by the NRC Staff and the Applicant reveals that they are using the than that of the Commission and its Licensing Boards. In fact, the cases decided under § 2.309(f) show that the limited purpose of the regulation is to relieve Licensing Boards of the duty to hold hearings on vague and unsubstantiated claims. The rule has not been and should not be used to foreclose hearings on contentions like those presented in this case, where the proposed intervenors have provided clear, well-supported statements of contentions that are within the 16 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), CLI-75-1, 1 NRC 1, 2 (1975) (quoted in NRC, , 2182 (Jan. 14, 2004)). 17 Id.

7 scope of the proceeding, and that present genuine issues of fact or law material to the findings the Commission must make. claims ruled inadmissible in Duke Energy Co. (Oconee Nuclear Station, Units 1, 2 & 3), CLI-99-11, 49 NRC 328 (1999). There, the Commission identified types of contentions for which Licensing Boards permissible under the recently revised rule.18 ons that -19 Likewise, the Commission ruled impermissible the practice of admitting contentions that were 20 which it had once approved under earlier NRC regulations.21 But the Commission also made clear that while Licensing Boards were now authorized to decline to hear the kinds of contentions identified, the rule was not intended to alter the principle 22 tion rule should not be turned into a 18 Duke Energy Co. (Oconee Nuclear Station, Units 1, 2 & 3), CLI-99-11, 49 NRC 328, 338 (1999); see also NRC Staff Response at 14, n.51. 19 Oconee, 49 NRC at 334. 20 Id. 21 Id. 22 , 2182 (Jan. 14, 2004).

8 23 Millstone, the 24 There the Commission explained that the its contention admissibility rules had been tightened in 1989 to allow negligible knowledge of nuclear power issues and, in fact, no direct case 25 Contentions ruled inadmissible under the rule have typically been limited to situations where a contention represented little more than an unsupported opinion.26 In another case involving Turkey Point, the Board ruled that several untimely contentions were also inadmissible because (1) no documentary or expert opinion was submitted, and the petitioner failed to challenge the Environmental Report2728; and 29 23 Oconee, 49 NRC at 335 (quoting Peach Bottom, 8 AEC at 21). 24 Dominion Nuclear Connecticut Inc. (Millstone Nuclear Power Station Units 2 and 3), CLI-01-24, 55 NRC 1 (2001). 25 Id. 26 See, e.g., Fla. Power & Light Co. (Turkey Point Units 6 & 7), ASLBP No. 10-903-02-COL-BD01, 2107 WL 9478619, at 13 (July 31, 2017) (supportby factual a). 27 Fla. Power & Light Co. (Turkey Point Units 6 & 7), ASLBP No. 10-903-02-COL-BD01, 2017 WL 4310384, at *9 (Jan. 13, 2017). 28 Id. at 11. 29 Id. at 14.

9 In the Oconee case, the Commission articulated the distinction between admissible and inadmissible contentions in a way that plainly places the contentions urged by Petitioners here on the admissible side. This was not, the Commission said in rejecting the petitions in the Oconee ng documents, have isolated desire more time and more NRC staff information to determine whether they even have a 30 Even where petitioners have provided more minimal factual and legal foundations for their contentions, Licensing Boards have found them admissible. In Tennessee Valley Authority (Clinch River Nuclear Site Early Site Permit Application), ASLBP No. 17-954-01-ESP-BD01, 2017 WL 9478622 (Oct. 10, 2017), the Licensing Board admitted certain contentions, quoting to deny intervention,31 ome minimal factual and legal 32 the Board said, a 33 34 In their responses to the Petition in this case, NRC Staff and the Applicant ask the 30 Oconee, 49 NRC at 4. 31 Clinch River, 86 NRC at 150 (quoting Peach Bottom, 8 AEC at 21). 32 Id. (citing Millstone at 358). 33 Id.. 34 Id. (citing Amergen Energy Co. (Oyster Creek Nuclear Generating Station), LBP-06-22, 64 NRC 229, 244 (2006)).

10 (1) its objective and (2) the line established by previous rulings of the Commission and its Licensing Boardsis to relieve the Licensing Boards of providing hearings for petitions that are no more than unsupported fishing expeditions in search of something to complain about, or obviously unsupported or vague. It was intended, and has been applied by the Commission and its Licensing Boards, to require well-pleaded contentions like those filed by Petitioners in this case. Neither 10 C.F.R. § 2.309(f) nor the rulings of the Commission and its Licensing Boards require petitioners to prove their entire factual and/or legal case, or authorize Licensing Boards to adjudicate the factual or legal issues presented by a proposed intervenor at the admissibility stage. As the Commission said in proposing what became § inquire further with regard to the validity 35 not to rule on the validity of the contention.36 By contrast to the contentions ruled inadmissible by the Commission and its Licensing Boards under § 2.309(f), the contentions presented by Petitioners here are clearly presented, focused, and well supported. The Petition itself is 65 well-reasoned pages long, supported with declarations from highly qualified experts. The presentation of each contention addresses one-by-one the elements required under § 2.309(f). All five contentions focus on discrete, clearly-described and specific genuine issues of 35 Proc328108 (June 30, 1986), at *3. The Commission pointed [t]his is the standard articulated in Costle v. Pacific Legal Foundation Id. 36 Id.

11 material fact with the assertions of the Applicant in its Environmental Report. All five cite to specific facts, supported by expert affidavits, and specific provisions of law. In short, all five Oconoee decision.37 The NRC Staff has already recognized the admissibility of parts of two of these contentions. Below we demonstrate why the remainder should also be admitted. II. SCOPE OF SUBSEQUENT LICENSE RENEWAL PROCEEDINGS. The NRC Staff and Applicant, relying on 10 C.F.R. § 51.53(c)(3)(i), argue that Petitioners improperly raise Category 1 issues in the Petition.38 According to the NRC Staff and Applicant, § 51.53(c)(3)(i) exempts a license renewal applicant from addressing Category 1 issues in its Environmental Report, and permits the applicant to incorporate the findings of the 2013 GEIS. Aside from the incorrectness of that position, NRC Staff and Applicant ignore the fact that Contentions 1E5E do not rely solely on § 51.53(c)(3). Petitioners also rely on § 51.53(c)(1) and (2).39 These regulatory provisions apply to all license renewal requests, not just initial requests, and do not invoke the distinction between Category 1 and 2 issues. While Applicant relies entirely on its erroneous interpretation of § 51.53(c)(3), ignoring 37 Oconee, 49 NRC at 337. 38 FPL Response at 4; NRC Staff Response at 27. 39 Petition to Intervene at 16 n.71.

12 altogether the issue of whether § 51.53(c)(1) and (2) apply,40 the NRC Staff recognizes the serious peril in relying on § 51.53(c)(3) alone because, as Petitioners explained, the provision exempting license renewal applicants from addressing Category 1 issues applies only 41 Thus, NRC Staff spend more than five pages with 15 footnotes attempting to explain why the Board, and eventually the NRC, should read the woof the regulation.42 But its position is not supported by the law. Both the courts and the NRC apply the well-known princonstruction, [] that a text should be construed so that effect is given to all of its provisions, so no 43 interpretation, the uld be read entirely out of the statute, drastically altering the scope of the regulations. The plain language of § 51.53(c) makes clear that subsections (c)(1) and (c)(2) apply renewal of a licenseonly those applicants seeking an initial renewed licenseis the only subsection in § 51.53 that the types of license renewal to which the 40 When presented with the opportunity to rebut the applicability of § 51.53(c)(2) in response to Contention 4-E, Applicant argued only that, based on its incorrect interpretation, this section does not require a description of the affected environment that will exist when the subsequent license renewal would commence. FPL Response at 4649. 41 Petition to Intervene at 16 n.71. 42 NRC Staff Response at 1824. 43 In the Matter of U.S. Dep't of Energy (High-Level Waste Repository), 72 NRC 661, 671 n.25 (2010) (citing Silverman v. Eastrich Multiple Investor Fund, LP., 51 F.3d 28, 31 (3d Cir. 1995) (original alterations omitted)).

13 distinction out of the regulation. unavailing.44 language, its 45 the same procedures when they amend or repeal a rule as they used to issue the rule in the first 46 Therefore, guidance documents, which did not undergo formal notice and comment III. ANALYSIS OF PROPOSED CONTENTIONS CONTENTION 1-E: THE ENVIRONMENTAL REPORT FAILS TO CONSIDER A REASONABLE RANGE OF ALTERNATIVES TO THE PROPOSED ACTION, AS REQUIRED BY NEPA AND NRC IMPLEMENTING REGULATIONS. -asserts that the [ER] omits consideration of mechanical draft cooling towers in connection with 47 FPL, however, asserts a host of arguments to urge the Board to reject 44 NRC Staff Response at 20-23. 45 In the Matter of Calvert Cliffs 3 Nuclear Project, LLC, & Unistar Nuclear Operating Servs., LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), ASLBP No. 09-874-02-COL-BD01, 70 NRC 198, 214 (2009) (citing Abourezk v. Reagan, 785 F.2d 1043, 1053 (D.C. Cir. 1986), aff'd, 484 U.S. 1 (1987)); GUARD v. NRC, 753 F.2d 1144, 1146 (D.C. Cir. 1985). 46 See, e.g., , 135 S. Ct. 1199, 1206 (2015). 47 NRC Staff Response at 29-e contention) of issues consideration of these issues is necessary to fully adjudicate Contention 1-E, Petitioners assert that the Board should not exclude these issues. See Section II.C infra.

14 Contention 1-determination of whether the contention should be admitted. The Board should reject these arguments and admit Contention 1-E in full. A. environmental impacts. FPL repeatedly asserts that Petitioners have not identified any legal requirement to 48 But Petitioners have pointed to two legal authorities requiring precisely that: 10 C.F.R. §§ include an analysis that considers and balances . . . alternatives available for reducing or avoiding adverse environ49 These provisions are clear. Despite the plain language of these regulations, FPL insists that the ER need not consider alternatives for reducing or avoiding environmental impacts. Rather than grappling with the requirements of §§ 51.45(c) and 51.53(c)(3)(iii), FPL ignores them. FPL attempts to muddy the clear requirements of these provisions by pointing to a purported distinction 50 According to 48 FPL Response at 12; see also id. at 9, 10, 11. 49 Petition to Intervene at 16, 18. 50 FPL Response at 8-9.

15 dmitigation measures, but [Petitioners] reference project alternatives standards through their 51 This purported distinction has no basis in NEPA, CEQ regregulations, or the caselaw applying those authorities. NEPA requires consideration of a range of alternatives, which include a no-52 As the Supreme Court said in Robertson v. Methow Valley Citizens CouncilCEQ regulations require that the agency discuss possible mitigation measures in defining the scope of the EIS, 40 CFR § 1508.25(b), in discussing alternatives to the proposed action, § 1502.14(f), and consequences of that action, § 1502.16(h), and in explaining its ultimate decision, § 1505.2(c).53 NRC regulations provide further clarity alysis that considers and balances the environmental effects of the proposed action, the environmental impacts of alternatives to the proposed action, and alternatives available for reducing or avoiding adverse environmental effects54 There is nothing ambiguous about this requirement: environmental impacts, and FPL has failed to do so. Even if it were supported by law, the purported distinction conjured by FPL is immaterial 51 FPL Response at 9. 52 40 C.F.R. § 1508.25(b); see also id. § . . include 53 490 U.S. 332, 352 (1989). 54 10 C.F.R. § 51.45(c) (emphasis added).

16 to the issue at handargument is simple: Part 51 requires an ER to consider alternatives for reducing environmental impacts, and FPL, by failing to consider the reasonable alternative of replacing the CCS with cooling towers, has failed to comply with this requirement. Whether this alternative should be the ER to contain this analysis, and FPL has failed to include it. consider alternatives. The NRC Staff agrerequire FPL to consider cooling towers as a reasonable alternative to use of the cooling canal system.55 And past EISs prepared for nuclear power plant license renewals have analyzed replacement of the existing cooling system with cooling towers as an alternative for reducing adverse environmental impacts.56 B. the cooling canal system with cooling towers as an alternative for reducing or avoiding environmental effects. FPL makes a smattering of other arguments in an effort to escape the clear requirements 55 NRC Staff Response at 29-30. 56 See tatement for License Renewal of Nuclear Plants, Supplement 38 -1437, supp. 38, vol. 1 at 8-5 to 8-19 (Dec. f Nuclear Plants, -1437, supp. 28, vol. 1 at 8-3 to 8-26 (Dec. 2010) (ML070100234).

17 of §§ 51.45(c) and 51.53(c)(3)(iii). None of these have merit. First, FPL makes the nonsensical 57 FPL cites no legal authority for this argumentbecause there is none. Replacement of the existing cooling system with cooling towers is only one element of the alternative to the proposed action. The primary element of the alternativeissuance of the subsequent license renewalwould result in in power production. Petitioners, therefore, have established that a cooling towers alternative would satisfy the and needto produce power (and FPL has not challenged this assertion). In any event, as mentioned above, SEISs prepared for license renewals at Oyster Creek and Indian Point have considered replacement of the existing cooling system with cooling towerseven though 58 alternatives for reducing environmental impacts by pointing to existing mitigation measures.59 Part 51 requires FPL to consider alternatives to the proposed actionissuance of subsequent license renewalthat would reduce or avoid environmental impacts.60 Therefore, reliance on to taking a future action. (FPL does not specify which mitigation measures it relies upon.) NEPA is a forward- 57 FPL Response at 10. 58 FPL Response at 10. 59 FPL Response at 11. 60 10 C.F.R. § 51.45(c); see also 42 U.S.C. § 4332(2)(C)(iii).

18 report on the environmental effect of their p61 The requirement to consider a range of alternatives to the proposed action, and the environmental impacts of those alternatives, promotes that objective.62 consider alternatives to a future action. ed and enforced by state and local 63 The 2013 GEIS, however, is not an independent legal analysis of alternatives for reducing environmental effects. In any event, nothing in the 2013 lacks authority to require a plant to modify its cooling system, is contrary to established law.64 65 F 61 WildEarth Guardians v. Jewell, 738 F.3d 298, 302 (D.C. Cir. 2013). 62 Id. 63 FPL Response at 20. 64 FPL Response at 20. 65 40 C.F.R. § 1502.14(c).

19 essential fish habitat, (2) groundwater use conflicts, and (3) radionuclides released to groundwater.66 But CEQ regulations, and 10 C.F.R. § 51.53(c)(3)(iii) require precisely that: . . for all Category 2 license renewal issues67 Each of the three issues above are Category 2 license renewal issues.68 69 But this argument misses the point. Nodiscussion of Category 2 issues is deficient. Instead, as explained above, those provisions categorically require FPL to include an analysis of alternatives for reducing adverse impacts for all Category 2 issues. This requirement is unconditional; a showing that the discussion of Category 2 issues is deficient is not necessary in order to trigger it. Petitioners offered a discussion of the three Category 2 issues merely to establish that replacing the cooling canal system with cooling towers, in fact, would reduce adverse impacts related to Category 2 issues.70 It is clear that the existing cooling canal system has resulted, continues to result, and will result in adverse environmental impacts: 66 FPL Response at 13-26. 67 Robertson, 490 U.S. at 352 (citing 40 C.F.R. §§ 1508.25(b), 1502.14(f), 1502.16(h), and 1505.2(c)). 68 10 C.F.R. Pt. 51, Subpt. A, App. B. 69 FPL Response at 13. 70 Petition to Intervene at 23-29.

20 Operation of the cooling canal system has caused migration of the hypersaline plume toward within a few miles of the drinking water supply intake for the Florida Keys and the city of Homestead, posing an imminent danger to those drinking water supplies and causing the Monroe County Commission to pass a resolution calling for Turkey Point to discontinue use of the cooling canal system and replacing it with cooling towers;71 In 2016, the Florida Department of Environmental Protection issued a Notice of contributing cause to the continuing westward movement of the saline water interface, and that the discharge of hypersaline water contributes to saltwater the reasonable and beneficial use of adjacent G-72 The Miami-Dade County Department of Regulatory and Economic Resources (DERM) found that ammonia concentrations near the CCS exceeded Miami-Dade contributing source to the ammonia concentrations observed in areas which 73 and Reduction in the American crocodile population near Turkey Point.74 These impacts have been well-documented (including in the ER itself),75 and no amount of legal argument can conceal those impacts. It is equally clear that replacement of the cooling canal 71 Board of County Commissioners of Monroe County, Fla., Res. No. 043-2017 (Feb. 15, 2017), https://www.monroecounty-fl.gov/DocumentCenter/View/11861/Resolution-043-2017---Turkey-Point-Cooling-Canals?bidId=; Direct Testimony and Exhibits of Sorab Panday, Docket No. 20170007-EI (Aug. 23, 2017), at 10-11 (Attachment L to Petition to Intervene). 72 -0241 (June 20, 2016) (ML16216A216); see also ER at 2-8, 9-11. 73 Letter from Wilbur Mayorga (Miami-Dade County, Division of Environmental Resources Management) to Matthew J. Raffenberg (FPL) at 1-2018)). 74 Biological Opinion for Combined License for Turkey Point Nuclear Plant, Units 6 and 7 (June 23, 2017) at 20 75 : Subsequent Operating License Renewal Stage, ADAMS Accession No. ML18037A836 (Jan. 2018), at 9-11 to 9-13 (discussing hypersaline plume and ammonia) (hereinafter ER 21 76 Therefore, FPL is required to consider a cooling towers alternative. The efforts to obfuscate the clear language of §§ 51.45(c) and 51.53(c)(3)(iii). C. The Board should admit issues raised concerning environmental effects of the cooling canal system. -E, insofar as it asserts that the [ER] omits consideration of mechanical draft cooling towers in connection with license renewal of Turkey Point Units 3 and 4, as a reasonable alternative to use of the 77 opposes the admission (as part of the 78 For the reasons that follow, the Board should admit Contention 1-E in full. In to adequately consider cooling to consider the environmental effects of the cooling canal system. Indeed, consideration of the environmental effects of the existing cooling system is necessary to provide a baseline for comparison with the environmental effects of other alternatives. Thus, the Board should admit issues concerning the environmental impacts of continued CCS operation to the extent that it permits an adequate comparison of alternatives. 76 10 C.F.R. § 51.45(c). 77 NRC Staff Response at 29-30. 78 NRC Staff Response at 30.

22 CONTENTION 2-E: THE ENVIRONMENTAL REPORT FAILS TO CONSIDER ADEQUATELY THE CUMULATIVE IMPACTS OF CONTINUED OPERATION OF UNITS 3 AND 4. In Contention 2-t fails to address the cumulative environmental impacts of continued operation of Turkey Point Units 3 & 4 at a time when sea levels and air temperatures will be significantly higher than present conditions.79 own studies and experience at Turkey Point, these conditions cause a greater risk of flooding, higher rates of evaporation in the cooling canal system, and higher intake water temperatures.80 Rather than accept that there is a genuine ilure to address these obvious and significant issues, Applicant and NRC Staff try to shift the burden to Petitioners to prove the merits of their case. This, of course, is not required under the NRC rules at this preliminary stage.81 NRC regulations provide that relevant matter as required by law, the [petitioner must include an] identification of each failure 82 All that Petitioners are required to show 83 Petitioners have identified sufficient information to 79 See Petition to Intervene at 30. 80 See Petition to Intervene at 36-37 (referencinagainst flood hazards). 81 In the Matter of Nuclear Mgmt. Co., LLC (Palisades Nuclear Plant), ASLBP 05-842-03-LR, 63 NRC 314, 342 (2006). 82 10 C.F.R. § 2.309(f)(1)(vi). 83 Palisades, 63 NRC at 342.

23 demonstrate a genuine dispute exists on a material issue. No more is required at this stage. It is black letter law that all environmental issues related to license renewal must be addressed in either the 2013 GEIS or the plant-specific SEIS, including impacts related to climate change.84 This includes cumulative environmental impacts of operating the plant during the relevant time period. Here, Petitioners identified relevant sections of the Environmental Report that fail to address all the environmental issues, specifically cumulative environmental impacts from operating Turkey Point Units 3 and 4 during the extended license period when sea levels and air temperatures will be significantly higher than present levels.85 A. The Environmental Report fails to address cumulative environmental impacts on surface water from the continued operation of Units 3 & 4. 86 Petitioners provided the expert declaration of Dr. Robert Kopp, a renowned expert on sea level rise and climate change.87 Dr. Contention 2-E that, should the NRC grant ea levels and temperatures will be significantly higher. Neither the NRC Staff nor Applicant debate this point. own studies and experiences that cumulative environmental impacts associated with operating Units 3 and 4 under these conditions requires further analysis under NEPA. This analysis is entirely lacking in the 84 Massachusetts v. United States, 522 F.3d 115, 120 (1st Cir. 2008); 2013 GEIS at S-2 (recognizing the need to evaluate environmental impacts and additional issues that change over time). 85 See e.g., Petition to Intervene at 3738. 86 Palisades, 63 NRC at 342. 87 to Petition to Intervene).

24 Environmental Report. found Turkey Poand 4 was insufficient to protect against reasonably foreseeable flood hazards. The study demonstrated that certain existing flood barriers were not high enough to protect safety-related systems at the plant.88 These barriers could not be reached without flood waters first overtopping the cooling canal system. This point is obvious; to support this Contention, as NRC Staff contends.89 NRC states that isea level rise near Turkey Point will exceed 1 foot by 2060, and [there is] a 1-in-3 chance (with a pessimistic model of Antarctic instability) that it will exceed 2 90 Storms add further to such an increase.91 The National Oceanic and Atmospheric Administration estimates a one-in-ten probability of a storm surge of 1.4 feet, and a one-in-one hundred probability of a storm surge of 2.0 feet.92 Thus Dr. Ko 88 See Petition to Intervene at 3738 (c-06, Revision 2, Appendix G, G.4.2, Mitigating Accession No. ML17012A065 (Dec. 20, 2016)). 89 NRC Staff Response at 35. 90 Kopp Decl. ¶ 39. 91 Id. ¶¶ 14, 31. 92 Id. ¶ 32.

25 sea level rise and storm surge of as much as 4.0 feet over current levels by 2060. Since licensing period demonstrate overtopping of the cooling canal system barriers, and Dr. Kopp predicts even higher sea levels and flood risks through the subsequent license renewal period, there can be no serious dispute that Petitioners have established a genuine issue of material fact. B. NRC regulations do not require Petitioners to critique studies and guidance that are not relevant to Contention 2-E. Applicant and NRC Staff fault Petitioners for not addressing several studies and guidance documents that are not relevant to Contention 2-E. NRC Staff complain that Petitioners did not cooling canal system consistent with the GALL-SLR Report.93 But this Report does not does not address overtopping concerns directly or indirectly. Rather, the GALL-SLR Repoloss of material or form -may impose constraints on the function of the cooling system and present a potential hazard to t94 The GALL-SLR Report at XI.S7 demonstrates this point. It states: monitoring and maintenance of water-control structures so that the consequences of age-related deterioration and degradation can be 95 Even a brand new cooling canal system without any material loss or form will be overtopped if it not built high enough. Petitioners did not need 93 NRC Staff Response at 37. 94 Id. 95 Id. (citing NUREG-2191, Vol. 2, Generic Aging Lessons Learned for Subsequent License Renewal (GALL-SLR) Report, ADAMS Accession No. ML17187A204 (Jul. 2017), at XI.S7-1) (emphasis added).

26 to address this report because it is not relevant to Contention 2-E. NRC Staff also fault Petitioners for not discussing: groundwater from the CCS to surface waters connected to Biscayne Bay that result in exceedances of surface water quality standards in Biscayne 96 Neither this language, nor anything else in the Consent Order, addresses the risk of flood water overtopping the cooling canal system, resulting in the discharge of contaminated water into Biscayne Bay. While hydrologic connections exist between groundwater under and around the cooling canal system, a flood would release surface water, not groundwater. Similarly, the defects would not prevent flood water from overtopping barriers, mixing with contaminated canal water, and then discharging it back into Biscayne Bay and other surface waters. Like the GALL-SLR Report, the Consent Order is simply not relevant to overtopping. NRC Staff next argue that Petitioners do not explain how releasing cooling canal water into Biscayne Bay would significantly impact the environment. Again, Petitioners have provided sufficient information at this stage for an admissible contention. NRC rules do not require Petitioners to prove a significant impact to the environment at the contention stage particularly where, as here, Petitioners have included ample evidence that overtopping is reasonably foreseeable, the cooling canal system is contaminated with various pollutants, and the Environmental Report assumeswithout any analysisthat there will be no impact whatsoever. 96 Id. at 3738.

27 The Environmental Report states that the cooling canal system is a closed-loop system, with no discharges to surface waters. This is evident from the discussion of cumulative impacts to surface water, which identifies the scope of impacts that might water resource impacts would stem from alterations in hydrology, withdrawals, discharges, and 97 flood-related discharges to Biscayne Bay or other surface waters from the cooling canal system, but this interpretation is not to the closed-cycle cooling canals98 al 99 Again, this does not address surface water discharges that result from overtopping the cooling canal system. Since the Environmental Report fails to consider direct surface water discharges from the cooling canal system or the information supplied in Contention 2-E creates a genuine issue of material fact. The NRC Staff also faults Petitioners for not addressing the 2016 Consent Order between Applicant and the Florida Department of Environmental Protection. This is an odd criticism since the Environmental Report does not address flood-related surface water discharges from the cooling canal system, or offer the Consent Order as a basis for explaining why Applicant did not address them. Regardless, the Consent Order does not address pollutants in the cooling canal system beyond salinity and nutrients. Yet, the cooling canal system also serves as an industrial 97 ER at 4-68. 98 Id. (emphasis added). 99 Id.

28 wastewater system for operations at Turkey Point. Other pollutants present in cooling canal water include tritium, ammonia, and sediment. The Consent Order does not address these pollutants and, therefore, does not offer a reasoned basis for rejecting Contention 4-E. and 7 does not address the overtopping issue either, and therefore 100 While there is some mention of sea level rise in Appendix I of the Units 6 and 7 EIS, it neither describes or analyzes the impacts of overtopping the Unit 3 and 4 cooling canal system during the subsequent license renewal period. Instead, the entire mage [to] features at the site, including the IWF [Industrial Wastewater Facility] for the existing units, piles of spoil from the muck removal for the construction of the proposed units [6 and 7], and non-safety related structures built for the proposed u101 otherwise, that it even evaluated the environmental impacts from overtopping the cooling canal system during the subsequent license renewal period for Units 3 and 4. There is no mention of any pollutants other than nutrients and sediment; not tritium, ammonia, hypersaline water, heat, or other industrial chemicals present in the canal water. Neither did it explain why these 100 information from certain materials the Units 6 & 7 EIS, without identifying a page number or section, fails to indicate what information it intended to incorporate. See infra discussion at Contention 3-E. 101 NRC, Final Report, Environmental Impact Statement for Combined Licenses (COLs) for Turkey Point Nuclear Plant Units 6 and 7, ADAMS Accession No. ML16301A018 (Oct. 2016), at I-5 to I-6 (hereinafter Units 6 & 7 FEIS.

29 pollutants were not mentioned. This of course presumes that these three sentences on storm surges even constitutes meaningful analysis of environmental impacts, which they do not. Applicant makes similar complaints as those made by NRC Staff noted above, but adds that Petition102 It references Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 6 & 7), LBP-11-6, 73 NRC 149 (2011) for this proposition. This decision, however, supports Petitioners, not Applicant. First, the decision involved a contention alleging the Unit 6 and 103 Here, Contention 2-E focuses on cumulative environmental impacts on groundwater and surface water from the continued operation of Units 3 and 4 during the subsequent license renewal period. These are two separate issues. Second, the Licensing Board contention in the Unit 6 and 7 matter [d] nor challenge[d] 104 Here, however, Applicant has not performed any analysis of cumulative environmental impacts of operating Units 3 and 4 when sea levels will be higher even though its own analysis, which is curiously missing from the Environmental Report, demonstrates the reasonably foreseeable overtopping of the cooling canal systemown flood risk analysis demonstrates that this scenario is reasonably foreseeable. Petitioners have met their initial burden. 102 FPL Response at 32. 103 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 6 & 7), LBP-11-6, 73 NRC 149, 215 (2011). 104 Id. at 217.

30 C. Contention 2-E creates a genuine issue of material fact on the cumulative environmental impacts on groundwater from operating Units 3 and 4. NRC Staff asserts that there is no need to evaluate the cumulative environmental impacts on groundwater from operating Units 3 and negotiated settlement agreements with state and local authorities.105 This presumption that cumulative impacts will be managed is based on language in NRC Regulatory Guide 4.2, which suggests that 106 However, NRC Staff offers no legal authority or compelling reason why this guidance language extends to situations, such as this one, where there is a permit violation, an enforcement action, and a negotiated settlement, and the permit holder is at the beginning of a decade-long attempt to remedy the violation. s. Applicant quotes language from the Consent Order and its Consent Agreement with the Miami-Dade County Department of Environmental Resource Management indicating that Applicant may avoid further enforcement actions by complying with relevant requirements.107 decision to forego further enforcement actions does not justify the much more significant permit compliance assumption that Applicant and NRC Staff seek here. When viewed in an analogous situation, it is clear why the compliance assumption does 105 NRC Staff Response at 40. 106 NRC Regulatory Guide 4.2, Supp. 1, Rev. 1, Preparation of Environmental Reports for Nuclear Power Plant ; ER at 4-69. 107 NRC Staff Response at 3940.

31 not apply here. An oncologist may reasonably assume that a patient who has never had cancer will not have cancer in the future; just as the NRC may reasonably presume a plant without significant past violations will not have significant violations in the future. However, an oncologist cannot reasonably assume a patient who has cancer now will be cancer free in 10 years just because they began treatment and the cancer may go into remission. Similarly, the NRC cannot presume environmental impacts at Turkey Point will be managed simply because Applicant is subject to a consent order and there is some hope it may manage its environmental impacts within 10 years. Like the analogy above, the Consent Order only indicates that in 10 years Units 3 and 4 may attain compliance with their permits and thus environmental impacts from Turkey Point may be managed. But that hope is very much conditional. At the end of the fifth year, Applicant is required to report whether its efforts are successful or state retract the hypersaline plume . . . within 10 years due to adverse environmental impacts of remedial measures or other technical issues. 108 If the plan is not working, Applicant must develop a new one. Here, the NRC Staff essentially argues that the cancer patient may assume e cured.109 This analogy also applies here because the Environmental Report assumes the treatment (freshening of the cooling canals) will not have any side effects (adverse environmental impacts). Yet again, Applicant and NRC Staff presume more than the Consent Order provides. As the 108 , OGC File No. 16-0241 (ML16216A216) (Jun. 20, 2016), ¶ 20(v) (hereinafter Consent Order. 109 See NRC Staff Response at 40.

32 quoted language above indicates, the Florida Department of Environmental Protection NRC Staff Response helps demonstrate why. It recognizes that Applicant is required to maintain 110 Therefore, as temperatures rise, cooling canal water will become more saline and Applicant will be required to use more water to manage salinity.111 This scenario is not mere speculation. As noted in the Petition, it reflects recent experience at Turkey Point and is based on fundamental scientific principles.112 At this early stage in the proceedings, NRC regulations do not require more from Petitioners. D. The Environmental Report fails to discuss cumulative environmental impacts of operating Units 3 and 4 during the subsequent license renewal period when sea levels and temperatures will be higher. Applicant suggests a section in its Environmental Report considered cumulative environmental impacts on water resources from operating Units 3 and 4 during the subsequent license renewal period.113 However, as Petitioners stated in Contention 2-Environmental Report fails to include any such discussion. Instead, the proffered section provides a confusing array of claims that fail to address Contention 2-E. 110 Id. 111 for a purported connection between air temperature and [cooling canal system] salinity. FPL Response at 31. Petitioners explained that higher temperatures will increase the rate of evaporation, which leads to higher salinity. Petition to Intervene at 3637. Contention 2-E is not inadmissible because Applicant demands an explanation of general scientific principles. 112 See e.g. Petition to Intervene amendment for ultimate heat sink temperatures). 113 FPL Response at 31.

33 temperature, precipitation, 114 Yet the next sentence provides that -cycle cooling using the cooling canals limits the opportunities for operation of the units to contribute to these factors due to the reuse of water and no discha115 This of course does not address concerns about cumulative impacts on groundwater or surface water during the subsequent license renewal period. Next, the Environmental Report states that Applicant conducted studies to determine the effects of the cooling canal system 116 Notably, the Environmental Report does not identify these studies,117 baseless. Had the Environmental Report actually identified the studies, they would still not 118 Thus, they do not address impacts from overtopping the cooling canal system, nor do these unidentified studies address impacts from the cooling canal system during the subsequent license renewal period on groundwater, which is the subject of the Consent Order. ne Bay is 114 ER at 4-69. 115 Id. (emphasis added). 116 Id. 117 Id. 118 Id.

34 not hold true for water temperatures in the cooling canal system.119 Despite this implication, this foreseeable higher temperatures during the subsequent license renewal period; it merely assumes that future conditions will be the same as today. show warming trends, the available data indicate that the no-discharge, closed-loop cooling . . . would also be a small contributor to local and regional warming trends120 Response suggests this section of the Environmental Report addresses impacts on water resources, its conclusion is focused on Unit 3 and warming at an unspecified regional level. There is simply no discussion whatsoever of the issues presented in Contention 2-E. Applicant further faults Petitioners for nto explain how overtopping is possible.121 But neither citation it offers actually supports its response to comments on safety concerns over the increase in spent nuclear fuel that would be stored on site for Units 6 and 7.122 The second citation, like the NRC 119 ER at 4-69 -uprate period do not correspond with commensurately higher air temp 120 Id. (emphasis added). 121 FPL Response at 32. 122 See id. (citing Units 6 & 7 FEIS, Vol. 4 at E-374 (ML16300A312)).

35 GALL-SLR Report, focuses on safety issues, not environmental issues.123 If anything, the cited language indicates that sea level rise is reasonably foreseeable and therefore supports admission of Contention 2-E.124 2011 decision in Florida Power and Light also supports admission of Contention 2-E.125 This decision is consistent with Contention 2-E, how Applicant designed Units 6 and -related struccooling canal system to protect Units 6 and 7 against predicted flooding.126 Thus, it implicates the same risks that Petitioners already identified. It is abundantly clear that the Environmental Report failed to address cumulative impacts on water resources from climate change during the subsequent license renewal period. There simply is no analysis. NRC regulations do not require Petitioners to critique nonexistent analysis to present an admissible contention. E. The Environmental and 7 does not provide the missing analyses. Applicant claims that the EIS for Units 6 and 7 analyzes the cumulative environmental 123 See id. (citing Turkey Point, CLI-18-1, 87 NRC at -- (slip op. at 26)). Notably, the language Applicant cites is found in -related issues, not environmental issues. 124 Even if some effort were made to increase the height of flood barriers around the cooling canal system, those would be predictable and would involve significant construction activities along many miles of berms. These impacts have not been addressed in the Environmental Report. Moreover, Applicant has not identified any current plans to address overtopping concerns for the cooling canal system. 125 See FPL Response at 32 n.134. 126 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 6 & 7), LBP-11-6, 73 NRC 149, 217 (2011).

36 impacts on groundwater and surface water during the operational period of Units 3 and 4 when sea level and temperatures will be higher.127 But this EIS suffers from the same defect as the main body of the Environmental Report. With respect to climate change effects, such as sea level rise and higher temperatures, the Units 6 and 7 EIS only addresses cumulative impacts associated with operating those units.128 It does not address cumulative environmental impacts associated with operating Units 3 and 4.129 For example, the EIS addresses the location of the freshwater-seawater interface in the Biscayne aquifer with anticipated sea level rise and how that will stress freshwater demand further inland.130 But it addresses the impacts associated with operating only Units 6 and 7; it fails to address the continued operation of Units 3 and 4.131 Similarly, the EIS recognizes that an increase in temperature will lead to more evapotranspiration, reducing overall recharge to Biscayne aquifer.132 But the EIS only considers these impacts with regards to Units 6 and impacts on water resources, noting that Units 6 and 7 would have little impact because it uses reclaimed water for most of its water needs.133 Again, absent is any discussion of cumulative environmental impacts on Units 3 and 4 when sea level rise and temperatures will be higher. If the Units 6 and 7 EIS supports admissibility of Contention 127 FPL Response at 30. 128 As noted in the Units 6 & 7 FEIS, li Units 6 & 7 FEIS at I-1. 129 Id. at I-5 to I-6. 130 Id. at I-5. 131 The assigned impacts of operating Units 6 and 7 are the operation of the Radial Collection Well system and its pumping duration, dewatering properties. See Units 6 & 7 FEIS at 5-34 to 5-41 (ML16300A104). 132 Units 6 & 7 FEIS at I-6. 133 Id. at I-6.

37 2-E. There is no reason why a cumulative impacts analysis like the one there should not be performed for the continued operation of Units 3 and 4 when sea levels and temperatures are higher. Accordingly, Petitioners have submitted an admissible contention. F. The 2013 GEIS discussion of sea level rise does not render Contention 2-E inadmissible. While the 2013 GEIS includes some general discussion about climate change impacts, these do not obviate the need for a plant-specific analysis. The 2013 GEIS itself provides that each SEIS will include a plant-climate change upon the affecte134 The 2013 supports -E because it acknowledges there will be higher sea levels and temperatures at Turkey Point during the subsequent license renewal period.135 Missing from both the 2013 GEIS and the Environmental Report is any evaluation of the cumulative environmental impacts of operating Turkey Point Units 3 and 4 under these conditions. G. Contention 2-ined in safety-related reports a safety contention. -related reports converts the environmental contention into a safety contention.136 Not only is this 134 2013 GEIS at 1-30. 135 See, e.g., 2013 GEIS at 4-239 (noting that t 136 NRC Staff Response at 4142.

38 inconsistent with the NRC ; it is also -E raises a safety issue is misleading.137 Petitioners point out that higher ambient air temperatures will lead to higher temperatures in the cooling canal water. Contention 2-E does not claim, as the NRC Staff asserts, that Applicant will not be able to operate Turkey Plant safely under its current licenses. s for Units 3 and 4 make clear that when cooling water becomes too hot, it must scale back production to compensate for the loss of heat sink capacity.138 But frequent and long-term scaling back of production impacts the overall generating capacity of these units. Since Units 3 and 4 will not be able to generate the same amount of electricity as under its current licenses (the same licenses Applicant proposes to renew)selection of alternatives must be adjusted accordingly to reflect the loss and intermittency of generating capacity at Turkey Point. -related report does not transform an environmental contention into a safety contention. If Applicant believes that it cannot operate Units 3 and 4 under its current licensing conditions when temperatures are higher, then it has the responsibility to inform the NRC and seek a license 137 See id. at 41. 138 See e.g. (ML14196A006) (July 10, 2014), encl. at 4 sink] temperatures were to exceed the [Technical Specification] limit . . . a plant shutdown would have to be 39 amendment like it has done in the past.139 Petitioners raise only NEPA-related environmental issues in Contention 2-E; not safety concerns. H. does not absolve it of the need to address cumulative impacts from any amount of sea level rise. 140 Even assuming NEPA does not require consideration of extreme future scenarios, however, that does not mean Applicant and the NRC can avoid consideration of any future scenario relating to climate change (as it has done here). I. NEPA requires an evaluation of the cumulative environmental impacts of operating Units 3 and 4 when sea levels and temperatures are significantly higher. Applicant argues that NEPA does not require an evaluation of reasonably foreseeable cumulative impacts during the subsequent license renewal period.141 Notably, the NRC Staff does not share this position, stating unequivocally that an EIS should contain the incremental potential environmental impacts of license renewal, including the impacts of climate 142 The NRC Staff also does can omit analysis of aspects of climate change from its discussion of cumulative environmental 139 See Petition to Intervene at 36s request for enforcement discretion and license amendment request in connection with ultimate heat sink temperature limits). 140 FPL Response at 32. 141 FPL Response at 29. 142 NRC Staff Response at 47 (citing 2013 GEIS at 3-1).

40 impacts.143 Without waiving any aspect of Contention 2-E, and as indicated in the Petition, Petitioners raise these NEPA issues now to preserve any objections that may appear in the Com144 CONTENTION 3-E: THE ENVIRONMENTAL REPORT FAILS TO CONSIDER NEW AND SIGNIFICANT INFORMATION REGARDING THE EFFECT OF SEA LEVEL RISE ON CERTAIN CATEGORY 1 AND 2 ISSUES, IN VIOLATION OF 10 C.F.R. § 51.53(c)(3)(iv). Part 51 req145 FPL has failed to analyze new and significant information regarding the effect of sea level rise on both plant operations and affected resources.146 The NRC Staff and FPL assert that Part 51 does not require 2013 GEIS.147 Additionally, NRC Staff and FPL advance a number of procedural arguments, none of which have any bearing on the issues in this contention. (1) NEPA and NRC regulations require FPL would provide a seriously different picture of 143 See NRC Staff Response at 3442 (responding to Contention 2-E). 144 Petition to Intervene at 1314. 145 10 C.F.R. § 51.53(c)(3)(iv). 146 See Petition to Intervene at 39-47. 147 FPL Response at 42; NRC Response at 43-46.

41 the environmental consequences of the proposed action than previously considered in the GEIS148 (2) there is a meaningful probability of sea level rise of at least two feet, and by more than three feet if emission trends continue on their current path, during the license renewal term;149 (3) storm surges may the trend of sea level rise at any given time;150 and (4) neither the 2013 GEIS nor the ER addresses how sea level rise will affect those issues.151 A. NEPA requires the Environmental Report to analyze the effect of sea level rise on affected resources and plant operations. NEPA and Part 51 regulations require FPL to consider the climate change-related provide[s] a seriously different picture of the environmental consequences of the proposed action than previously considered in the GEIS152 Both FPL and the NRC Staff contend that the requirement to consider new and change upon affected resources (including cumulative impacts, water resources, and decommissioning).153 Instead, 148 10 C.F.R. § 51.53(c)(3)(iv); see also Reg. Guide 4.2 at 49; 40 C.F.R. § 1502.9(c)(1)(ii) (agencies must . . [t]here are significant new circumstances or information relevant to environmental 149 Kopp Decl. ¶ 39. 150 Kopp Decl. ¶ 33. 151 Petition to Intervene at 41-45. 152 Reg. Guide 4.2 at 49. FPL appears to assert that 10 C.F.R. § 51.53(c)(3)(iv) does not require the Environmental Report to consider new and significant information related to environmental impacts for category 2 issues. FPL Response at 41. Section 51.53(c)(3)(iv), however, contains no language limiting its application to only category 1 issues. In any event, even assuming that the provision does not apply to category 2 issues, FPL is nonetheless required to consider all relevant information for category 2 issues, including new and significant information. See generally 10 C.F.R. § 51.53(c); id. § ). 153 FPL Response at 42; NRC Staff Response at 44-45.

42 according to the NRC Staff and FPL, that requirement extends only to environmental impacts that are directly caused by the proposed action: license renewal. But that mistaken understanding of NEPA would leave a significant gap of unanalyzed informationthe effect of sea level rise on affected resources near the plantobjectives. NEPA requires the ER to consider the effect of sea level rise on affected resources and the power plant itself. The NRC itself unequivocally took that positionthat individual plant-specific environmental reviews must consider the effect of climate change-related environmental impactspotential to affect air and water resources, ecological resources, and human health, and should be taken into account when evaluating cumulative impacts over the license 154 The NRC went on to state that, given the unique and localized nature of the effects of climate change, caused by potential climate change upon the affected resources was inappropriate for generic consideration.155 Therefore, the NRC committed to addressing the issue in each plant-specific environmental review . . include within each SEIS a plant-specific analysis of any impacts caused by GHG emissions over the course of the license renewal term as well as any cumulative impacts caused by potential climate change upon the affected resources during the license renewal term156 The NRC Staff and FPL now seek to wriggle out of that commitment. The 154 2013 GEIS at 1-29. 155 2013 GEIS at 1-29 to 1-30 (emphasis added). 156 Id. (emphasis added); see Petition to Intervene at 41.

43 Board should reject that effort. B. Neither the 2013 GEIS nor the Environmental Report analyzes the effect of sea level rise on plant operations or affected resources. 2013 GEIS would not consider climate change-related effects on a generic basis, FPL contends that the 2013 GEIS does in fact include such an analysis.157 14 times in the 2013 GEIS.158 But mentioning the term, without any reasoned analysis, does not sections of the 2013 GEIS cited by FPL are no more than a brief discussion of the fact that climate change is widely understood to cause sea level rise, which may result in other environmental impacts.159 None of the sections that mention sea level rise provide more than a cursory description of the generic environmental impacts that sea level rise might cause on a global or national scale, with no mention of effects of sea level rise at Turkey Point during the subsequent license renewal periodEnvironmenta160 157 FPL Response at 37-38. 158 FPL Response at 37-38. 159 FPL Response at 38 n.151; see 2013 GEIS at 3-35, 4-237, 4-238, 4-239, 4-241, 4-242, 4-249. 160 Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 (1976); see also supra at Contention 2-E.

44 caused by 161 But a review of the portions of the EUnits 6 and 7 EIS reveals that the ER did no such thing. FPL implies that the ER incorporates -of the ER (4-68) briefly discussing impacts to an entirely different issuesurface water and groundwater. Nowhere does that discussion reference climate change or sea level rise.162 The te by reference even that limited section regarding water resources; it is certainly not sufficient to incorporate an entirely different section of the document (its discussion of climate change- or sea level rise-related impacts), let alone to incorporate the entire document.163 Nor can FPL rely upon operational requirements to discharge its obligation to analyze the effects of sea level rise on affected resources. NRC Staff asserts that the ER need not analyze 161 FPL Response at 42 (emphasis in original). 162 FPL failed to provide a citation to support its See response to Contention 2-Id. -E asserts that the ER incorporates by reference the Units 6 and 7 EIS, but only to the extent it discusses cumulative impacts to groundwater and surface water. FPL Response at 30 n.124 (citing ER at 4-68). Thus, FPL does not cite any language in the ER that could be read to incorporate its discussion of climate change effects. 163 , 790 F.3d 920, 925-26 (9th Cir. 2015) (referencing one section of a document is not sufficient to incorporate a different section of the same document into an EIS); Pub. Employees for Envtl. Responsibility v. U.S. Fish & Wildlife Serv., 177 F. Supp. 3d 146, 155-56 (D.D.C. 2016) (a brief mention of a document was not sufficient to incorporate it by reference into a NEPA document); Natural Res. Defense Council v. Duvall resource areas caused by FPL maintains, neither NEPA nor Part 51 requires such an analysis.

45 this issue because Turkey Point is obligated to operate in compliance with (1) its current licensing basis, including its aging management program, and (2) a consent order in which FPL agreed to take certain measures to resolve a notice of violation issued by FDEP.164 But to the extent FPL plans to take certain actions to mitigate the environmental effects of sea level rise, those actions do not excuse FPL from describing the environmental effects. FPL may not evade -related effects simply because it is under an obligation to mitigate those environmental impacts. FPL is also under an analogous obligation but FPL does not contend that that obligation relieves it of the requirement to consider impacts to those species by climate change; in fact, the ER contains such an analysis.165 Moreover, the notion that FPL can rely on the consent ordera legal settlement entered into to resolve a prior violation of the lawto establish that it will comply with the law in the future, is beyond the pale. FPL has failed to comply with the requirement to consider new and significant information regarding the effect of sea level rise on plant operations and affected resources. CONTENTION 4-E: THE ENVIRONMENTAL REPORT FAILS TO DESCRIBE THE FORESEEABLE AFFECTED ENVIRONMENT DURING THE SUBSEQUENT LICENSE RENEWAL PERIOD. The only plausible interpretation of Part 51 requirement to describe the in this proceeding is that the term encompasses the reasonably 164 NRC Staff Response at 45. 165 See Petition to Intervene at 41-42.

46 foreseeable imate change will provide a new environment that the operation of [Units 3 and 4] 166 The description of the affected environment serves as the baseline for the environmental analysis and comparison of alternatives to the proposed project. Without an accurate description of the actual environment to be affected, i.e., the reasonably foreseeable affected environment, these analyses break down and the NRC will be unable to make a reasoned A. ort with NEPA. Applicant argues that Part 51 does not require a description of the environment that will actually be affected. Rather than explain why its position makes any sense, it attacks Petitioners167 But array of arguments focused on this phrase fail to address the fundamental flaw in the Environmental Report, i.e., that it osed license renewal. The AquAlliance case cited in the Petition illustrates why it is necessary to describe the environment that will actually be affected.168 Bureauprepared an EIS for a major water transfer project in California.169 The Bureau recognized its 166 Units 6 & 7 FEIS at I-1 (emphasis added). 167 See FPL Response at 4749. 168 Petition to Intervene at 48. 169 AquAlliance v. U.S. Bureau of Reclamation, 287 F. Supp. 3d 969 (E.D. Cal. 2018).

47 duty under NEPA to evaluate the impact of climate change on the project, including the need to .170 When the Bureau established the environmental baselisignificant decline in water availability.171 The court held the Bureau did not justify its decision 172 Applicant frames AquAlliance as merely holding that the deficient because they did not square with the underl173 But this overgeneralization misses the critical point. The Bureau violated NEPA because it measured the an improper environmental baseline. Here, the Environmental Report has the same deficiency. withdrawal of its NEPA guidance on evaluating climate in no way undermines the AquAlliance ations NEPA 174 170 Id. at 1028. 171 Id. 172 Id. at 1029. 173 FPL Response at 49 n.200. 174 AquAlliance, et al. v. U.S. Bureau of Reclamation, et al., No. 1:15-CV-754-LJO-56.

48 175 NEPA required, and continues to require, an accurate description of the affected environment to establish the proper baseline for the EIS. B. Contention 4-E establishes failure to describe the reasonably foreseeable affected environment. In Contention 4-E, Petitioners cite relevant sections of the Environmental Report that fail to describe the reasonably foreseeable affected environment.176 Applicant attempts to deflect 177 But NRC regulations do not require Petitioners to dispute information that is missing from the Environmental Report in the first place.178 Contention 4-E cites several sections in the Environmental Report that fail to include a description of the reasonably 179 Nothing more is required. -E proves that the required information is indeed missing. Contention 4-E identifies several sections of the Environmental Report that fail to describe the reasonably foreseeable affected environment. Yet not once does Applicant point to any discussion or information in these sections that addresses, or purports to address, the fact that 175 Id. 176 Petition to Intervene at 5558 (citing ER §§ 3.3, 3.6.1.3, and 3.6.2). 177 FPL Response at 49. 178 relevant matter as required by law, the [contention must include an] identification of each failure and the supporting 179 Id.

49 new environment that the operation of [Units 3 and 4] will 180 Like the Bureau in AquAlliancerely exclusively on historical information. By ignoring relevant predictions for the environment that will actually be affected, including its own modeling that incorporates projected sea level rise into a flood risk analysis, the Environmental Report fails to establish an accurate baseline against which impacts and alternatives can be measured.181 Petitioners, moreover, provided ample evidence to support their contention that the affected environment will, as the NRC has recognized, be significantly different than today. Contention 4-on to establish that the future environment at Turkey Point will face greater flood risks due to rising sea levels.182 Petitioners cited the Climate Science Special Report as evidence that air temperatures will be significantly higher during the subsequent license renewal period.183 Thus, Petitioners have provided an ample basis from which the Board should find a genuine dispute over a material issue warranting acceptance of Contention 4-E. Applicant also contends that NRC rules on intervention require Petitioners to offer proof of basic scientific principles that apply to nuclear power plants. Thus, according to Applicant, 180 See Units 6 & 7 FEIS at I-1 (emphasis added). 181 FPL Response at 51 (noting section 3.6.1.3 of the Environmental Repinformation such as FEMA floodplain data, various flood control projects, and the highest historical tide measured near the site 182 Petition to Intervene at 5052. 183 Id. at 5253.

50 Petitioners merely speculated that higher air temperatures at Turkey Point will lead to higher cooling water temperatures in the cooling canal systemexchange capacity.184 2013 GEIS without attribution to any study or explanation because none is required.185 Similarly, Applicant claims it is pure speculation that a nuclear power plant will not be able to operate as efficiently when its heat sink loses heat exchange capacity.186 Again, this is a fundamental scientific principle for nuclear power plants and does not require further proof at this early stage. Contention 4-rise in its description of flood risks in Section 3.6.1.3 of the Environmental Report.187 Applicant responds using the same tact as above, claiming the content of this section.188 information that is missing. And again, Applicant does not identify any information in this section that purports to evaluate sea level rise in any meaningful way. 184 FPL Response at 50 (arguing 185 2013 GEIS at 4-of thermal power plant 186 FPL Response at 50. 187 Petition to Intervene at 56. 188 FPL Response at 51.

51 risks, information which it omitted from the Environmental Report, does not alter the character of the contention. Contention 4-which to measure Unit 3 and rnatives. Finally, Applicant criticizes Contention 4-E as it relates to groundwater resources. Applicant rehashes the same flawed argument that Petitioners need to dispute information that was missing in the first instance.189 water availability when ambient temperatures will be higher, placing further strain on an already constrained resource, does not relieve it of the duty to address the issue in the first instance. Consequently, Contention 4-E demonstrates a genuine dispute because the Applicant fails to include any discussion of the baseline groundwater conditions, as Petitioners have shown.190 C. description of the affected environment. NRC Staff argues that future environmental conditions are traditionally examined in Section 4 of an Environmental Report, namely in the evaluation of cumulative impacts. Even ative impacts is flawed for the reasons discussed in the reply to Contention 2-environmental impacts of operating Units 3 and 4 during the subsequent license renewal period. For these reasons, Contention 4-E is 189 FPL Response at 53. 190 Petition to Intervene at 4758 (Contention 4-E).

52 CONTENTION 5-E: THE ENVIRONMENTAL REPORT FAILS TO ADDRESS THE ADVERSE EFFECT OF OPERATING THE COOLING CANAL SYSTEM FOR AN ADDITIONAL 20 YEARS ON SURFACE WATERS, FRESHWATER WETLANDS, AND ENDANGERED SPECIES PRESENT IN THOSE WETLANDS. -E, Staff recognizes that the impacts of continued operation of the cooling canal system on threatened and endangered species and critical habitat is a Category 2 issue that the Staff must analyze on a site-specific basis in its SEIS191 FPL, however, asserts a host of arguments192 to urge the Board to reject Contention 5-E in its entirety, and NRC Staff joins industry on several of those arguments.193 The arguments to exclude the contention from a hearing are unsupported by law. The Board should reject these arguments and admit Contention 5-E in full. A. Petitioners have identified and presented sufficient information to demonstrate that a genuine dispute exists on a material issue regarding ammonia releases. NRC regulations require the Environmental Report to consider the effects of Turkey rface waters, freshwater wetlands, and endangered species present in those wetlands.194 The NRC Staff concedes that Petitioners a genuine 191 NRC Staff Response at 54. 192 FPL Response at 54-60. 193 NRC Staff Response at 54-57. 194 10 C.F.R. § 51.53(c)(3)(ii)(E) impact of refurbishment, continued operations, and other license renewal-ensee also id. § 51.53(c)(3)(ii)(B) (ER must consider impacts on fish and shellfish resources resulting from thermal changes and impingement and entrainment).

53 dispute with specific portions of the Environmental Report, in asserting that, contrary to the conclusions in the Environmental Report, Turkey Point is a source of ammonia in freshwater wetlands surrounding the site, and that the potential impacts of such ammonia releases during the period of continued operation on threatened and endangered species should be a195 B. Under the plain language of 10 C.F.R. §§ 51.45 and 51.53(c)(2) & (3), FPL must fully address the environmental impacts of operating Turkey Point Units 3 and 4 for another license renewal term, including all environmental impacts designated by Table B-1 as Category 1. Turning from that point of agreement, NRC Staff joins the Applicant and relies chiefly on the assertion that all other portions of Contention 5-E, concerning the impacts of continued operation of the cooling canal system on surface water and groundwater quality constitute an . Specifically, NRC Staff and FPL allege that C.F.R. Part 51, Appendix B, Table B-1, that the impacts of license renewal to altered salinity gradients in surface waters, groundwater quality degradation at plants with cooling ponds in salt marshes, and other cooling system impacts, are Category 1 issues that need not be addressed in (and thus, Petitioners may not file challenges on those specific matters unless they file a petition for waiver).196 Petitioners addressed this issue at length (supra at 11-13) and do not repeat argument here. Next, t for meaningful analysis of the effects 195 NRC Staff Response at 54. 196 NRC Staff Response at 54-55, FPL Response at 56-58.

54 of the hypersaline plume on fresher wetlands and threatened species has no merit because FPL may assume the 2016 Consent Order does not establish adequate mitigation measures and that the applicant will not comply and FDEP will fail to enforce.197 To this also Petitioners have responded.198 Last, the agency argues that Petitioners failed to identify specific pollutants other than ammonia or provide any specific facts or expert opinion to support the claim that the cooling canal system causes other pollutants to migrate into nearby surface waters and have therefore failed to plead specific grievances.199 As noted above,200 NRC and Applicant overreach with their approach. Petitioners are on sound footing for the proposition that over the last four decades, the portion of the Biscayne Aquifer below the cooling canal system has become saturated with hypersaline water moving down into the aquifer and radially in all directions, including westward (i.e., towards the Model Lands Basin, the wider Everglades, and drinking water wells screened in the Biscayne Aquifer), and eastward towards Biscayne Bay where the plume discharges to the surface water.201 As discussed at length in the Petition to Intervene (at 58-62), salt migrating out of the 197 NRC Staff Response at 56. 198 See supra at 26-32. 199 NRC Staff Response at 57. 200 See supra at 3-4. 201 See NRC, License Amendment To Increase the Maximum Reactor Power Level, Florida Power & Light Company, Turkey Point, Units 3 and 4, Final Environmental Assessment and Finding of No Significant Impact, 77 hypersaline water 55 cooling canal system has formed a hypersaline plume and has moved the saltwater/freshwater interface westwards at all elevations in the Biscayne Aquifer.202 Operation of the cooling canal system has driven the saltwater/freshwater interface at the base of the aquifer several miles westward into what was previously a potable portion of the aquifer.203 It is clearly established that the discharge of saline groundwater from the cooling canal system is now degrading those front at the base of the Biscayne aquifer, and where historically fresh surface water canals have recently been documented with higher conductivity and chloride levels uncharacteristic of fresh 204 Bluntly, the County has required Applicant to provide a significant water quality monitoring plan and would not have done so unless it had significant concern of existing and ongoing contamination. And to NRC assertion that Petitioners failed to identify specific pollutants other than ammonia or provide any specific facts or expert opinion to support the claim the cooling canal system causes other pollutants to migrate into nearby surface waters, the agency looks past measurements recorded in County-owned wetlands west of the canal in April 2018 finding that shallow groundwater in the area now exhibits conductivity of more than 5000 microSiemens (µmhos/cm).205 These conductivity levels are dangerously high for a 202 Chin, David A, Ph.D., The Cooling System at the FPL Turkey Point Power Station at 12 (2015) (Attachment O to Petition to Intervene). 203 Id. at 12-13. 204 DERM-FDEP July 2018 Letter (Attachment P to Petition to Intervene), at 2. 205 Id. at 27, 59.

56 naturally freshwater environment.206 Applicant takes a similar course and primarily alleges that the Category 1 distinction disposes of the contention.207 As discussed supra at 11-13, this is not correct. Next, Applicant asserts that Petitioners fail to provide support for the proposition that the hypersaline plume is degrading wetlands or otherwise impacting threatened, endangered or protected species.208 Applicants point to the ER at section 4.6.6, which provides a species-by-species analysis, but plain acknowledgment: taff recognizes that the impacts of continued operation of the CCS on threatened and endangered species and critical habitat is a Category 2 issue that the Staff must analyze on a site-specific basis in its SEIS209 Finally, Applicant asserts -Dade County, suggesting that as the letter does not use the words existing or phrases including the words ,or ds, or even forecasts on the ability or likelihood of saline canadocument is insufficient support for an admissible contention.210 Applicant misreads the import of the document. The County has found that the CCS is, at And that County has required that Applicant provide a plan (that is not yet due as of this date) to address cooling canal system nutrient impacts to groundwater and surface water resources beyond the boundaries of the cooling canal system.211 206 See Petition to Intervene at 61, n. 271. 207 FPL Response at 55-58. 208 Id., at 58. 209 Id., at 59; see also NRC Staff Response at 54. 210 FPL Response at 59, 60 (referring to Pet. Att. P). 211 See Attachment P to Petition to Intervene, at 2, 3.

57 CONCLUSION For the reasons stated above, the Board should admit in full each Contention described above. Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d): /s/ Richard Ayres /s/ Geoffrey Fettus Richard Ayres Geoffrey Fettus AYRES LAW GROUP LLP NATURAL RESOURCES DEFENSE COUNCIL 1401 K Street, NW, Suite 850 1152 15th Street, NW, Suite 300 Washington, DC 20005 Washington, DC 20005 202-744-6930 202-289-2371 ayresr@ayreslawgroup.com gfettus@nrdc.org Counsel for Natural Resources Defense Council /s/ Ken Rumelt /s/ Edan Rotenberg Ken Rumelt Edan Rotenberg Vermont Law School SUPER LAW GROUP, LLC 164 Chelsea Street, PO Box 96 180 Maiden Lane, Suite 603 South Royalton, VT 05068 New York, New York 10038 802-831-1000 212-242-2355, Ext. 2 krumelt@vermontlaw.edu edan@superlawgroup.com Counsel for Friends of the Earth Counsel for Miami Waterkeeper Filed this 10th day of September, 2018 58 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of: FLORIDA POWER & LIGHT COMPANY (Turkey Point Nuclear Generating Station, Unit Nos. 3 and 4) (Subsequent License Renewal Application) ) ) ) ) ) ) ) ) Docket No. 50-250 Docket No. 50-251 September 10, 2018 CERTIFICATE OF SERVICE Reply in Support of Request for Hearing and Petition to Intervene Submitted by Friends of the Earth, Natural Resources Defense Council, and Miami Waterkeeperved upon the Electronic -Filing System), in the above-captioned docket, which to the best of my knowledge resulted in transmittal of same to those on the EIE Service List for the captioned proceeding. /Signed (electronically) by/ Geoffrey H. Fettus Senior Attorney Natural Resources Defense Council 1152 15th Street, N.W., Suite 300 Washington, D.C. 20005 (202) 289-2371 gfettus@nrdc.org Counsel for Natural Resources Defense Council September 10, 2018