UNITED STATES OF AMERICA 

NUCLEAR REGULATORY COMMISSION 

COMMISSIONERS: 

Stephen G. Burns, Chairman 

Kristine L. Svinicki 

Jeff Baran 

 

In the Matter of 

 

FLORIDA POWER & LIGHT CO. Docket Nos. 50-250-LA 

 50-251-LA 

(Turkey Point Nuclear Generating Units 3 and 4) 

 

CLI-16-18 

MEMORANDUM AND ORDER 

Citizens Allied for Safe Energy, Inc. (CASE) challenges the Atomic Safety and Licensing 

Board’s ruling on the merits of Contention 1 in this license amendment matter.1 For the reasons 

stated below, we deny review. 

 BACKGROUND 

Turkey Point Nuclear Generating Station employs a cooling canal system as its ultimate 

heat sink. As described by the Board, “[a]fter being discharged from the plant into the cooling 

canal system, heated water flows over a 13-mile loop before returning to the plant, where the 

water is recirculated for cooling purposes and the entire process is repeated.”2 The renewed 

 

1 Citizens Allied for Safe Energy Petition for Review (June 27, 2016) (Petition); see LBP-16-8, 

83 NRC 417 (2016). 

2 LBP-16-8, 83 NRC at 421 (citation omitted). 
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operating licenses for Units 3 and 4 included Technical Specifications that set an upper limit on 

the water temperature in the ultimate heat sink at 100 degrees Fahrenheit (°F).3 If the 

temperature limit were to be exceeded, the licensee, Florida Power & Light Company (FPL), 

was required to shut down the plant.4

In July 2014, the water temperature in the cooling canal system approached the 100°F 

limit.5 As a result, FPL requested license amendments to increase the ultimate heat sink 

temperature at Units 3 and 4 from 100°F to 104°F and to revise related surveillance 

requirements for monitoring the ultimate heat sink temperature and component cooling water 

heat exchangers.6 FPL requested expedited consideration of the proposed amendments.7

The NRC Staff published the Environmental Assessment and Finding of No Significant 

Impact for these license amendments in the Federal Register on July 31, 2014.8 Concurrently, 

the Staff determined that the amendments involved no significant hazards considerations and 

 

3 Ex. FPL-008, Letter from Michael Kiley, FPL, to NRC Document Control Desk, “License 

Amendment Request No. 231, Application to Revise Technical Specifications to Revise Ultimate 

Heat Sink Temperature Limit” (July 10, 2014), Attachment to Enclosure (ADAMS accession no. 

ML16015A380) (Application). 

4 LBP-16-8, 83 NRC at 421 (citation omitted).

5 Id.

6 Ex. FPL-008, Application, Enclosure at 2. 

7 FPL initially requested that the application be approved by August 30, 2014. Id., Cover Letter 

at 1. Shortly thereafter, in a supplement to the application, FPL requested that the NRC 

approve the application on an emergency basis. Ex. NRC-011, Letter from Michael Kiley, FPL, 

to NRC Document Control Desk, “License Amendment Request No. 231, Application to Revise 

Ultimate Heat Sink Temperature Limit—Request for Emergency Approval” (July 17, 2014), at 1 

(ML16015A355) (requesting “timely review of this application to avoid . . . a [dual-unit] shutdown 

[that] would impact grid reliability”); see 10 C.F.R. § 50.91(a)(5). 

8 Ex. NRC-009, Florida Power & Light Company; Turkey Point Nuclear Generating Unit Nos. 3 

and 4; Environmental Assessment and Finding of No Significant impact, 79 Fed. Reg. 44,464 

(July 31, 2014). 
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indicated that it would process FPL’s license amendment request under the regulations 

applicable to amendments granted under exigent circumstances.9 The Staff approved the 

amendments on August 8, 2014, and published a notice of issuance in the Federal Register.

10 

As approved by the Staff, the license amendments revise the ultimate heat sink watertemperature limit in the Technical Specifications and the related surveillance requirements.11

In response to the notice of issuance, CASE requested and was granted a hearing. The 

Board admitted Contention 1 for hearing, related to the environmental impacts of the proposed 

action, as follows: 

The NRC’s environmental assessment, in support of its finding of 

no significant impact related to the 2014 Turkey Point Units 3 and 

4 license amendments, does not adequately address the impact of 

increased temperature and salinity in the [cooling canal system] 

on saltwater intrusion arising from (1) migration out of the [cooling 

canal system]; and (2) the withdrawal of fresh water from 

surrounding aquifers to mitigate conditions within the [cooling 

canal system].12 

 

9 Florida Power & Light Company; Turkey Point Nuclear Generating Units 3 and 4, License 

Amendment Application; Opportunity to Comment, Request a Hearing, and Petition for Leave to 

Intervene, 79 Fed. Reg. 44,214, 44,215 (July 30, 2014); see 10 C.F.R. § 50.91(a)(6) (setting 

forth the notice and comment process for those circumstances involving a license amendment 

where the NRC finds that exigent circumstances exist, in that a licensee and the NRC must act 

quickly and that time does not permit 30 days’ notice for prior public comment, and the 

amendment involves no significant hazards considerations). This notice also included an 

opportunity for interested persons to request a hearing. 

10 Ex. NRC-006, Letter from Audrey L. Klett, NRC, to Mano Nazar, NextEra Energy (Aug. 8, 

2014) (ML16015A349) (License Amendments Issuance); see Florida Power & Light Company; 

Turkey Point Nuclear Generating Units 3 and 4; License Amendment; Issuance, Opportunity to 

Request a Hearing, and Petition for Leave to Intervene, 79 Fed. Reg. 47,689 (Aug. 14, 2014). 

In this notice, the Staff reset the period to request a hearing. Id. at 47,690. 

11 Ex. NRC-006, License Amendments Issuance at 1. 

12 LBP-16-8, 83 NRC at 423 (as reformulated by the Board). 
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Following an evidentiary hearing in January 2016, the Board “conclude[d] that the 

[Environmental Assessment] fails to satisfy the requirements of the National Environmental 

Policy Act (NEPA) because of its deficient discussion of saltwater migration, saltwater intrusion, 

and aquifer withdrawals.”13 But the Board found that the evidence developed during the 

adjudicatory proceeding cured the identified deficiencies in the Environmental Assessment and 

obviated the need for the Staff to further revise it.14

The Board found that it could uphold the Staff’s proposed action despite deficiencies in 

the Staff’s NEPA documents “if sufficient evidence is developed in an adjudicatory proceeding 

concerning the environmental impacts of the proposed action.”15 As the Board explained, “[i]n 

such situations, the licensing board’s findings and conclusions are deemed to amend the NRC 

Staff’s NEPA documents and become the agency record of decision on those matters.”16 The 

Board generated a robust record in this proceeding based on an evidentiary hearing, written 

testimony, and exhibits. Based on this record, the Board found that the Environmental 

Assessment, as supplemented, fulfills the agency’s NEPA obligation to take a “hard look” at 

environmental impacts and justifies the finding of no significant environmental impact.17

 

13 Id. at 420. 

14 Id. at 420-21. 

15 Id. at 447 (citing Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), CLI-15-6, 

81 NRC 340, 388 (2015)). 

16 Id. (citing Indian Point, CLI-15-6, 81 NRC at 387-88; Friends of the River v. Fed. Energy 

Regulatory Comm’n, 720 F.2d 93, 106 (D.C. Cir. 1983)). 

17 Id. at 460; see also id. at 451, 455, 457. 
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CASE now petitions for review and seeks “proper and appropriate redress and relief of 

[its members’] proven grievances.”18 FPL and the Staff oppose the Petition; CASE replied to 

those answers.19

 DISCUSSION 

We will grant a petition for review at our discretion, upon a showing that the petitioner 

has raised a substantial question as to the following: 

(i) a finding of material fact is clearly erroneous or in conflict with a finding as 

to the same fact in a different proceeding; 

(ii) a necessary legal conclusion is without governing precedent or is a 

departure from or contrary to established law; 

(iii) a substantial and important question of law, policy, or discretion has been 

raised; 

(iv) the conduct of the proceeding involved a prejudicial procedural error; or 

(v) the proceeding raises any other consideration that we may deem to be in 

the public interest.20

We review questions of law de novo, but we defer to the Board’s findings with respect to 

the underlying facts unless the findings are “clearly erroneous.”21 The standard for showing 

 

18 Petition at 24. 

19 Florida Power & Light Company’s Answer Opposing CASE’s Petition for Review of LBP-16-08 

(July 22, 2016); NRC Staff’s Response to Citizens Allied for Safe Energy Petition for Review

(July 22, 2016); Citizens Allied for Safe Energy Answer to NRC Staff and FPL Regarding 

Petition for Review (Aug. 1, 2016) (Reply). 

20 10 C.F.R. § 2.341(b)(4). 

21 Honeywell International, Inc. (Metropolis Works Uranium Conversion Facility), CLI-13-1, 

77 NRC 1, 18-19 (2013). 
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“clear error” is a difficult one to meet—a petitioner must demonstrate that the Board’s 

determination is “not even plausible” in light of the record as a whole.22

Fundamentally, CASE challenges the legality of the Board’s decision to supplement the 

environmental record. 23 This practice, however, has a long history at the agency. The Board 

cited to case law from the Commission, the Atomic Safety and Licensing Appeal Board, and the 

United States Court of Appeals for the D.C. Circuit to support its approach, and CASE does not 

call these authorities into question.24 As we recently explained, our hearing procedures “[allow] 

for additional and a more rigorous public scrutiny of the [FSEIS] than does the usual ‘circulation 

for comment.’”25 When the environmental record of decision is supplemented by the 

adjudicatory process, the disclosure purpose of NEPA is satisfied through the public vetting of 

environmental issues at an evidentiary hearing and issuance of a decision; consequently, the 

Staff is not required to otherwise supplement or amend its NEPA documents.26 Relatedly, 

CASE asserts that the Board should have addressed the process that the Staff followed in 

 

22 See, e.g., Shaw AREVA MOX Services, LLC (Mixed Oxide Fuel Fabrication Facility), 

CLI-15-9, 81 NRC 512, 519 (2015). 

23 See Petition at 5. 

24 LBP-16-8, 83 NRC at 447. In Friends of the River, the Federal Court of Appeals for the 

District of Columbia Circuit declined to remand a NEPA case where the Federal Energy 

Regulatory Commission had issued a public order during the adjudicatory process that cured 

the deficiencies in the Environmental Impact Statement. 720 F.2d at 106. 

25 Indian Point, CLI-15-6, 81 NRC at 388 (quoting Philadelphia Electric Co. (Limerick Generating 

Station, Units 1 and 2), ALAB-819, 22 NRC 681, 707 (1985), aff’d in part, CLI-86-5, 23 NRC 125 

(1986), remanded in part on other grounds sub nom. Limerick Ecology Action, Inc. v. NRC, 

869 F.2d 719 (3d Cir. 1989)). Allowing the adjudicatory proceeding to supplement an 

environmental assessment, in the same manner as is done for environmental impact 

statements, is also appropriate. See Pacific Gas and Electric Co. (Diablo Canyon Power Plant 

Independent Spent Fuel Storage Installation), CLI-08-26, 68 NRC 509, 526 (2008). 

26 LBP-16-8, 83 NRC at 447 (citing Philadelphia Electric Co. (Limerick Generating Station, Units 

1 and 2), ALAB-262, 1 NRC 163, 197 n.54 (1975)). 
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conducting the Environmental Assessment and issuing the Finding of No Significant Impact.27 

At issue in the hearing, however, was the single contention admitted by the Board—regarding 

the adequacy of the Environmental Assessment’s discussion of particular impacts—not the 

Staff’s process for preparing the environmental assessment. CASE’s dissatisfaction with 

supplementation generally, and with the Staff’s NEPA process in this case, does not present an 

issue for review. 

Below, we address CASE’s remaining asserted errors related to the Staff’s NEPA 

process and the Board’s factual findings. CASE raises issues that are either outside the scope 

of this license amendment proceeding or are insufficiently supported to challenge the Board’s 

decision. Moreover, CASE has not identified any legal or factual error in the Board’s decision, 

either as a result of how it weighed the evidence or as a result of the supplementation. In sum, 

CASE has not raised a substantial question for review of the Board’s decision. 

1. Adequacy of the NRC Staff’s NEPA Review 

CASE takes issue with the Board’s decision for the Board’s asserted failure to explore 

the underlying cause of the conditions being experienced in the cooling canal system.28 CASE 

further claims that the NRC is “responsible for the safe and ecologically neutral operation of the 

 

27 Petition at 6-7. To the extent that CASE challenges the NRC’s NEPA process generally (see 

id. at 7-8), CASE presents an impermissible challenge to the agency’s generally applicable 

rules. Such challenges are not cognizable in individual licensing proceedings. 10 C.F.R. 

§ 2.335; see also Vermont Yankee Nuclear Power Corp. and AmerGen Vermont, LLC (Vermont 

Yankee Nuclear Power Station), CLI-00-20, 52 NRC 151, 165-66 (2000). Further, to the extent 

that CASE suggests that the Board should have directed a change in the Staff’s internal 

procedures, licensing boards lack the authority to direct the Staff’s non-adjudicatory actions, and 

therefore, such a remedy is beyond the scope of this proceeding. See Shaw AREVA MOX 

Services, LLC (Mixed Oxide Fuel Fabrication Facility), CLI-09-2, 69 NRC 55, 63 (2009). 

28 Petition at 8-9. 
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[cooling canal system].”29 At issue in the admitted contention was whether the Staff’s 

Environmental Assessment adequately described the existing environmental conditions in the 

cooling canal system and the reasonably foreseeable environmental impacts of the license 

amendment; resolution of the contention on the merits did not require a precise finding of the 

historical contributors to the conditions in the cooling canal system. The record nonetheless 

contains testimony and evidence related to the salinity levels in the canals through the years, 

purported causes for the rise in salinity, acknowledgement that the canals are a complex 

ecosystem, and FPL’s mitigation measures.30 CASE does not acknowledge, let alone 

challenge, these portions of the record and, therefore, does not identify any particular deficiency 

in the Board’s decision. 

In any event, NEPA does not mandate that an agency undertake studies to obtain 

information that is not already available, and CASE does not support its claim that the NRC 

must undertake studies to determine the cause of particular environmental conditions or to 

determine the best mitigation measures for a potential environmental harm.31 The Staff’s 

 

29 Id. at 8. 

30 See, e.g., Tr. at 412-17 (testimony of Mr. Bolleter and Mr. Scroggs, for FPL, discussing 

conditions in the cooling canal system as they relate to algae blooms, drought, FPL actions to 

manage sediment and flow distribution in the system, and power operation of all units); 

Ex. NRC-001, NRC Staff Testimony of Audrey L. Klett, Briana A. Grange, William Ford, and 

Nicholas P. Hobbs Concerning Contention 1 (Nov. 10, 2015), at 27-29 (testimony of Mr. Ford, 

for the Staff, describing the increase in the cooling canal system’s salinity over time due to 

evaporation, the migration of higher salinity water from the canals into the Biscayne Aquifer 

underneath the canals, and the framework agreed to by FPL and the State for monitoring and 

potentially mitigating the hypersaline plume originating from the cooling canal system); 

Ex. NRC-044, Hughes et al., Effect of Hypersaline Cooling Canals on Aquifer Salinization, 

18 Hydrogeology Journal 25 (2010) (ML16015A179) (non-public) (modelling effect of 

hypersaline cooling canals at Turkey Point on aquifer salinization). 

31 See Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 and 4), 

CLI-12-7, 75 NRC 379, 391-92 (2012) (citations omitted) (“NEPA requires that we conduct our 

environmental review with the best information available today.”); see also Lee v. U.S. Air 
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Environmental Assessment, combined with the Board’s decision, disclosed the environmental 

impacts of the proposed action and discussed FPL’s mitigation measures. CASE’s assertion 

that the NRC must undertake studies and develop information does not raise a substantial 

question for review. 

Similarly, CASE appears to call for the NRC to impose mitigation measures on FPL.32 

CASE claims that the Environmental Assessment, even when taken together with the Board’s 

decision, does not remedy its members’ potential for injury because the Biscayne Aquifer and 

surrounding waters are still being affected.33 But NEPA, as a procedural statute, does not 

require any particular substantive result.34 NEPA serves the purpose of environmental 

protection through “action-forcing” procedures that require agencies to take a “hard look” at 

environmental impacts and that provide for “broad dissemination of relevant environmental 

information.”35 Therefore, CASE has not identified any legal error in the Board’s decision not to 

impose mitigation measures on FPL or direct other “substantive” actions related to water quality 

or saltwater migration. 

 

Force, 354 F.3d 1229, 1244 (10th Cir. 2004); Entergy Nuclear Operations, Inc. (Indian Point, 

Units 2 and 3), CLI-16-7, 83 NRC 293, 323 (2016). 

32 See, e.g., Petition at 7 (claiming need for “meaningful redress”), 22-23 (questioning the 

efficacy of mitigation measures due to reliance on computer analyses and criticizing the lack of 

“field testing” of proposed mitigation measures). 

33 Id. at 7. 

34 See Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989); Vermont 

Yankee Nuclear Power Corp. v. NRDC, 435 U.S. 519, 558 (1978); Indian Point, CLI-16-7, 

83 NRC at 328 (quoting Massachusetts v. NRC, 708 F.3d 63, 78 (1st Cir. 2013)). 

35 Methow Valley, 490 U.S. at 350 (quoting Kleppe v. Sierra Club, 427 U.S. 390, 410 n.21 

(1976)); Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), 

CLI-16-10, 83 NRC 494, 510 (2016). 
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Seemingly related to its argument that the NRC must impose mitigation measures on 

FPL, CASE disputes FPL’s ability and willingness to follow any such measures due to its past 

violations of water quality standards.36 CASE references, without more, a violation of an 

agreement with the South Florida Water Management District related to the movement of saline 

water from the cooling canal system and notice of violation issued by Miami-Dade County 

related to water quality.37 But CASE does not link these two instances of past violations to the 

Board’s decision and therefore does not raise a substantial question for review.38

Additionally, CASE argues that the NRC’s NEPA review in this matter was flawed 

because there is a “limited official flow of information between the NRC Staff and State and local 

agencies.”39 Along the same lines, CASE challenges the Staff’s point of contact for the State of 

Florida and would have us review these interactions.40 As we previously held, however, the 

selection of the State official with whom the Staff consulted on the license amendment (an issue 

 

36 Petition at 11-12 (citing LBP-16-8, 83 NRC at 452 (citing Ex. INT-004, Florida Department of 

Environmental Protection, Administrative Order, OGC No. 14-0741 (Dec. 23, 2014), ¶¶ 28-29; 

Ex. INT-005, Miami-Dade County, Notice of Violation and Orders for Corrective Action (Oct. 2, 

2015), at 1 (ML16015A337) (Notice of Violation)). 

37 Id.

38 In any event, we decline to assume that FPL will not comply with applicable requirements. 

The record indicates that FPL was issued a notice of violation by Miami-Dade County for 

exceeding groundwater standards for chlorides. LBP-16-8, 83 NRC at 429 (citing Ex. INT-005, 

Notice of Violation, at 1). But CASE has not shown a reason, for purposes of the NEPA review 

at issue here, to doubt that FPL will comply with environmental conditions required by State and 

local authorities. Indeed, the Notice of Violation, which resulted in a consent agreement 

between the County and FPL, demonstrates that FPL’s compliance with other environmental 

requirements at Turkey Point is subject to ongoing oversight by the appropriate authorities. See 

id. (citing Ex. INT-006, Consent Agreement Between Miami-Dade County’s Division of 

Environmental Resources Management and FPL (Oct. 6, 2015) (ML16015A339)). 

39 Petition at 9. 

40 Id. at 10. 
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initially identified not by CASE, but by the Board itself) is not within the scope of this 

proceeding.41 Consequently, arguments related to that selection do not provide a basis for us to 

review the Board’s decision. And in any event, CASE has not demonstrated a link between 

assertedly limited consultations between the Staff and State and local agencies and a specific 

deficiency in the environmental analysis. As a result, this claim does not present a substantial 

question for review. 

2. CASE’s Challenges to Board Factual Findings 

In its petition, CASE also disputes various “ecological conclusions and statements in the 

Decision.”42 These assertions amount to thinly supported challenges to Board findings of fact. 

As noted above, CASE must demonstrate that the Board’s findings are “not even plausible in 

light of the record viewed in its entirety.”43 None of CASE’s asserted errors clears that bar. 

CASE does not explain how evidence in the record in any way contradicts the Board’s 

decision.44 Indeed, prior to the evidentiary hearing FPL and the Staff filed several motions 

 

41 CLI-15-25, 82 NRC 389, 406 n.110 (2015). 

42 Petition at 13. 

43 See, e.g., MOX, CLI-15-9, 81 NRC at 519. 

44 See Petition at 13-14 (arguing that the Board incorrectly found that CASE presented no 

evidence that the Biscayne Aquifer is freshwater but citing to portions of the testimony regarding 

the salinity of the L-31 E canal without demonstrating that the L-31E canal is part of the 

Biscayne Aquifer); compare Petition at 16-18 (arguing that the Board unreasonably found that 

adding saline water to the cooling canal system would reduce the spread of the hypersaline 

plume into the Biscayne Aquifer) with LBP-16-8, 83 NRC at 450 (concurring with the Applicant’s 

modelling showing that diluting the salinity of the cooling canal system would reduce the spread 

of the plume); compare Petition at 18-20 (contending that the Board did not fully consider the 

impacts from withdrawals of freshwater from the Biscayne Aquifer and Upper Floridan Aquifer 

particularly with respect to “coning” and lowering of the water table) with LBP-16-8, 83 NRC at 

454-56 (noting that FPL’s modelling showed that the withdrawals from the Upper Floridan 

Aquifer would not “have a significant impact on the aquifer itself or on other users of the aquifer” 

and finding that proposed withdrawals from the Biscayne Aquifer were not freshwater and that 

CASE did not present any evidence to the contrary); see Petition at 20-23 (challenging the 

adequacy of the Board’s finding regarding confinement of the aquifers by relying on a summary 
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pertaining to (among other things) the quality of CASE’s evidence; it is clear that the Board took 

a lenient view and admitted into evidence all of the material CASE submitted relevant to 

Contention 1.45 The Board’s thorough decision demonstrates that it considered the entire 

record, including information and evidence put forth by CASE, FPL and the Staff, and CASE has 

not shown that the Board erred. Therefore, CASE does not present a substantial question for 

review with respect to the Board’s findings of fact. 

 CONCLUSION 

For the foregoing reasons, we deny the petition for review. 

IT IS SO ORDERED. 

 For the Commission 

NRC SEAL /RA/ 

 ___________________________ 

 Annette L. Vietti-Cook 

 Secretary of the Commission 

Dated at Rockville, Maryland, 

this 15th day of December 2016. 

 

of a report without demonstrating that the report applies to the aquifers in question). CASE also 

makes brief unsupported assertions regarding matters outside the scope of the proceeding—the 

Board’s asserted failure to “address or redress” wildlife impacts in the area and the presence of 

cyanobacteria in the cooling canal system. See Petition at 15, 18. 

45 See, e.g., Order (Denying Application for Subpoenas, Denying Motion for Summary 

Disposition, and Granting in Part and Denying in Part Motions to Strike) (Dec. 22, 2015), at 17 

(unpublished) (Dec. 22, 2015, Order) (excluding only evidence outside the scope of admitted 

Contention 1). In its reply brief, CASE explains the lack of testimony resulted from the Board's 

refusal to subpoena witnesses. Reply at 3-4. But the record establishes that the Board gave 

CASE an opportunity to renew its request for the issuance of subpoenas, “an extraordinary 

remedy,” and that CASE’s requests did not meet our procedural requirements. Dec. 22, 2015, 

Order at 2-3 (internal quotations omitted); Order (Denying CASE’s Application for Subpoenas) 

(Nov. 12, 2015), at 3 (unpublished). 
Commissioner Baran, Dissenting 

As I stated in my opinion dissenting in part in the Strata proceeding, a core requirement 

of NEPA is that an agency decisionmaker must consider an adequate environmental review 

before making a decision on a licensing action.1 If the Commission allows a Board to 

supplement and cure an inadequate NEPA document after the agency has already made a 

licensing decision, then this fundamental purpose of NEPA is frustrated. 

In this case, the Staff found that there were exigent circumstances and used the process 

in 10 C.F.R. § 50.91(a)(6), which allows the hearing to be held after the Staff’s issuance of the 

license amendments. However, this regulatory provision does not relieve the agency of its 

responsibility to comply with NEPA. An adequate environmental review still must precede the 

licensing decision, and I agree with the Board that it did not. 

The Board found that the Staff’s environmental assessment (EA) was inadequate and it 

identified a litany of deficiencies. Here is a sampling of the Board’s conclusions about the EA 

upon which the Staff based its finding of no significant impact (FONSI): 

 “Such a Rube Goldberg attempt at incorporation by reference disregards the clearly 

prescribed methods for incorporation, and ultimately, vitiates the underlying purpose of 

NEPA.”2

 “It is difficult to comprehend how the NRC Staff could deem this dramatic increase [in 

aquifer withdrawals] to have no practical environmental significance.”3

 “within the four corners of the 2014 EA there is no evaluation of groundwater impacts. ... 

The 2014 EA provides no technical analysis that would justify either of these conclusions 

[about impacts on groundwater resources], nor does the 2014 EA even acknowledge the 

potential migration of hypersaline water from the unlined cooling canal system into the 

 

1 Strata Energy, Inc. (Ross In Situ Uranium Project), CLI-16-13, 83 NRC 566, 604 (2016) (citing 

Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 349 (1989)), appeal docketed, 

No. 16-1298 (D.C. Cir. Aug. 24, 2016). 

2 LBP-16-8, 83 NRC at 433. 

3 Id. at 440. 
- 2 - 

groundwater beneath the canals. Consequently, the 2014 EA does not satisfy the ‘hard 

look’ standard required under NEPA with respect to groundwater resources.”4

 “nowhere is there any characterization of the summer 2014 temperatures as being 

unique, much less is there any explanation to justify such a characterization.”5

 “the cumulative effects analysis section of the 2014 EA fails because, after noting the 

likelihood of higher salinity, it offers no analysis of how this might impacts the preexisting saltwater plume.”6

 “By failing to review and discuss the full consequences of the state-mandated mitigation 

measures on which the NRC Staff relied, the NRC Staff abdicated this core NEPA 

responsibility. Because of these glaring absences, the 2014 EA failed to take an 

adequate ‘hard look’ and is deficient.”7

In my view, a FONSI cannot be based on such an inadequate EA. The information gleaned 

during the Board’s hearing process is valuable, but it cannot resuscitate the flawed EA or the 

licensing decision that was made in reliance on that NEPA analysis. 

As the Commission has observed many times, NEPA is a procedural statute.8 It 

establishes a process to ensure that, when an agency makes a decision that could affect the 

environment, that decision is informed by a meaningful evaluation of the expected 

environmental impacts. A basic premise of the statute is that informed decisionmaking will help 

protect the environment by forcing agencies to consider the consequences of potential actions 

and alternatives that could be less environmentally damaging. That commonsense approach 

simply does not work if the agency decision precedes the environmental review. Here, the true 

 

4 Id. at 441. 

5 Id. at 443. 

6 Id. at 444. 

7 Id. at 446-47. 

8 See, e.g., Entergy Nuclear Operations., Inc. (Indian Point, Units 2 and 3), CLI-11-14, 74 NRC 

801, 813 (2011). 
- 3 - 

environmental review occurred during the thorough Board hearing held 17 months after the Staff 

issued the license amendments. If we take NEPA’s dictates seriously (and we must), we cannot 

avoid the conclusion that the statute was violated in these circumstances. 

In federal court, a violation of NEPA, by itself, is not always sufficient to justify 

suspending or revoking a licensing action.9 But the Commission is not a federal court. We have 

an independent responsibility to ensure that the agency we lead complies with NEPA. We 

should take this opportunity to refine our jurisprudence to prevent post-decision 

supplementation of NEPA analyses.10

For these reasons, I respectfully dissent. The Commission should review the merits of 

the Board’s decision under section 2.341(b)(4)(v), on the ground that such consideration is 

deemed to be in the public interest. The Commission should then uphold the Board’s 

determination that the Staff’s EA was inadequate and hold that the Board cannot supplement a 

NEPA environmental document through the hearing process after a licensing action is taken 

under 10 C.F.R. § 50.91(a)(6). The Commission should vacate the license amendments and 

the Staff’s FONSI, upon which the amendments rely. In order to re-issue the license 

amendments, the Staff would need to determine whether it can issue a FONSI in light of all of 

the relevant environmental information, including all information in the record of this adjudicatory 

proceeding. 

 

9 Monsanto Co. v. Geertson Seed Farms, 561 U.S. 139, 157-58 (2010) (injunction not automatic 

or default remedy to cure NEPA violation); Nw. Coal. for Alts. to Pesticides v. Lyng, 844 F.2d 

588, 595 (9th Cir. 1988); Cty. of Del Norte v. United States, 732 F.2d 1462, 1467 (9th Cir. 

1984); Cent. Delta Water Agency v. U.S. Fish & Wildlife Serv., 653 F. Supp. 2d 1066, 1086-87 

(E.D. Cal. 2009); Muhly v. Espy, 877 F. Supp. 294, 300 (W.D. Va. 1995). 

10 This approach would not require completing the hearing before making a licensing decision, 

and it would not change Commission jurisprudence allowing for supplementation of the 

environmental record before a licensing action is taken. Rather, if a licensing decision is based 

on an environmental document that the Board or Commission later finds to be deficient, then I 

would hold that supplementation of the NEPA analysis with the hearing record is not available 

as an option to cure the deficiency. 
UNITED STATES OF AMERICA 

NUCLEAR REGULATORY COMMISSION 

In the Matter of ) 

 ) 

FLORIDA POWER & LIGHT COMPANY ) Docket Nos. 50-250 and 50-251-LA 

 ) 

 ) 

(Turkey Point Nuclear Generating ) 

 Units 3 & 4) 

CERTIFICATE OF SERVICE 

I hereby certify that copies of the foregoing COMMISSION MEMORANDUM AND ORDER 

(CLI-16-18) have been served upon the following persons by Electronic Information Exchange. 

U.S. Nuclear Regulatory Commission 

Atomic Safety and Licensing Board 

Mail Stop: T-3 F23 

Washington, DC 20555-0001 

Michael M. Gibson, Chair 

Administrative Judge 

E-mail: michael.gibson@nrc.gov

Dr. Michael F. Kennedy 

Administrative Judge 

E-mail: michael.kennedy@nrc.gov

Dr. William W. Sager 

Administrative Judge 

E-mail: william.sager@nrc.gov

Jennifer Scro, Law Clerk 

E-mail: jennifer.scro@nrc.gov

U.S. Nuclear Regulatory Commission 

Office of Commission Appellate Adjudication 

Mail Stop: O-7H4 

Washington, DC 20555-0001 

ocaamail@nrc.gov

U.S. Nuclear Regulatory Commission 

Office of the Secretary of the Commission 

Mail Stop: O-4F00 

Washington, DC 20555-0001 

E-mail: hearingdocket@nrc.gov

U.S. Nuclear Regulatory Commission 

Office of the General Counsel 

Mail Stop - O-14A44 

Washington, DC 20555-0001 

Brian Harris, Esq. 

David Roth, Esq. 

Catherine Scott, Esq. 

Catherine Kanatas, Esq. 

Matthew Ring, Esq. 

John Tibbetts, Paralegal 

E-mail: brian.harris@nrc.gov

 david.roth@nrc.gov

 catherine.scott@nrc.gov

 catherine.kanatas@nrc.gov 

 matthew.ring@nrc.gov

 john.tibbetts@nrc.gov
Turkey Point, Units 3 & 4, Docket Nos. 50-250 and 50-251-LA 

COMMISSION MEMORANDUM AND ORDER (CLI-16-18) 

2 

Florida Power & Light Company 

700 Universe Blvd. 

Juno Beach, Florida 33408 

Nextera Energy Resources 

William Blair, Esq. 

E-mail: william.blair@fpl.com

Florida Power & Light Company 

801 Pennsylvania Ave. NW Suite 220 

Washington, DC 20004 

Steven C. Hamrick, Esq. 

E-mail: steven.hamrick@fpl.com

Citizens Allied for Safe Energy, Inc. (CASE) 

10001 SW 129 Terrace 

Miami, FL 33176 

Barry J. White 

E-mail: bwtamia@bellsouth.net

 

 [Original signed by Herald M. Speiser ] 

 Office of the Secretary of the Commission 

Dated at Rockville, Maryland, 

this 15th day of December, 2016