ML103470704

NextEra Energy Seabrook, Llc'S Response Opposing Nec/Friends of the Coast'S Supplement to Its Petition

ML103470704
Person / Time
Site:	Seabrook
Issue date:	12/13/2010
From:	Fernandez A NextEra Energy Seabrook
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 19246, 50-443-LR, ASLPB 10-906-02-LR-BD01
Download: ML103470704 (34)

Text

December 13, 2010 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

)

NextEra Energy Seabrook, LLC ) Docket No. 50-443-LR

)

(Seabrook Station) )

) ASLBP No. 10-906-02-LR (Operating License Renewal) )

NextEra Energy Seabrook, LLCs Response Opposing NEC/Friends of the Coasts Supplement to Its Petition I. Introduction During the November 30, 2010 prehearing conference held in the above-captioned proceeding, the Atomic Safety and Licensing Board (Board) afforded NEC/Friends of the Coast (Petitioners) seven days to present a corrected version of the Declaration of Paul Blanch (First Blanch Declaration) that Petitioners originally filed with their Hearing Request on October 21, 2010. Transcript at 69-70. The Board explained that this opportunity was to allow Petitioners to correct typographical errors in the Blanch Declaration so that the record in the proceeding would be clear. Id. at 70-71.

The Board did not authorize Petitioners to present new arguments in support of their proffered contentions or to add threshold support for their contentions. See id.

On December 6, 2010, Petitioners submitted a Supplement to Friends of the Coast and New England Coalition Petition for Leave to Intervene, Request for Hearing, and Admission of Contention: Errors and Corrections and New Information, (Petition Supplement), which included a revised version of the Blanch Declaration (Second 1

Blanch Declaration), together with a single change to the original Petition and a reference to a newly-published NRC document. The Board explained at the prehearing conference that NextEra Energy Seabrook, LLC (NextEra) and the NRC Staff could object to the revised declaration within seven days of its filing to point out changes that go beyond what is permitted by the Commissions rules and caselaw. Transcript at 70-

71. NextEra respectfully objects to the Boards consideration of any of the new material proffered in the Petition Supplement.

II. ARGUMENT Having been graciously afforded this opportunity by the Board, the Petitioners could have limited their amendments to merely correcting typographical errors, but instead took the opportunity to make wholesale changes to significant portions of the Blanch Declaration, to change the text of Contention 4 in their Petition, and to raise new information potentially relevant to Contention 1, without addressing any of the requirements in the Commissions rules and caselaw for raising new claims. See 10 C.F.R. §§ 2.309(c), (f)(2). As the Board acknowledged at the prehearing conference, Petitioners pro se representative has at least 14 years of experience litigating various matters at the NRC. Transcript at 57-58. While ignorance of the rules is no excuse, ignorance cannot even plausibly be argued in this case.

A. CONTROLLING AUTHORITY Although the Petition Supplement was filed two weeks after Petitioners Reply, the Commissions caselaw on the permissible scope of replies remains applicable. Any new argument or information that would be impermissible in a reply would certainly also be impermissible in a separate filing two weeks later. The Commission has ruled that a 2

reply to an answer may not be used as a vehicle to raise new arguments or claims not found in the original contention, nor be used to cure an otherwise deficient contention.

Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-25, 60 NRC 223, 224-25 (2004), reconsideration denied CLI-04-35, 60 NRC 619 (2004) (LES);

Nuclear Management Company, LLC (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727, 732 (2006); Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-08-19, 68 NRC 251, 262 n.32 (2008); PPL Susquehanna LLC (Susquehanna Steam Electric Station, Units 1 and 2), CLI-07-25, 66 NRC 101, 106 n.26 (2007). In the LES case, the licensing board rejected four contentions filed by the State of New Mexico Environment Department (Environment Department) and the New Mexico Attorney General (Attorney General) and declined to consider new purportedly material information in support of the contentions that was first submitted as part of a reply pleading. LES, CLI-04-25, 60 NRC at 224. On appeal of the boards decision, the Commission agreed that the reply briefs constituted a late attempt to reinvigorate thinly supported contentions by presenting entirely new arguments in the reply briefs. Id. The Commission went on to state that such a course of action was impermissible under its rules of practice:

[O]ur contention admissibility and timeliness requirements demand a level of discipline and preparedness on part of petitioners, who must examine the publicly available material and set forth their claims and the support for their claims at the outset. The Petitioners reply brief should be narrowly focused on the legal or logical arguments presented in the applicant/licensee or NRC staff answer, a point the Board itself emphasized in this proceeding. As we face an increasing adjudicatory docket, the need for parties to adhere to our pleading standards and for the Board to enforce those standards are paramount. There simply would be no end to NRC licensing proceedings if petitioners could disregard our timeliness requirements 3

and add new bases or new issues that simply did not occur to [them] at the outset.

Id. at 224-25 (footnotes omitted) (emphases added).

In denying requests for reconsideration from the Attorney General and the Environment Department and reaffirming its holding in CLI-04-25, the Commission reiterated the explanations in CLI-04-25 as to why allowing a reply to raise new arguments or claims not found in the original contention would eviscerate its requirements for the pleading of contentions:

Allowing contentions to be added, amended, or supplemented at any time would defeat the purpose of the specific contention requirements . . . by permitting the intervenor to initially file vague, unsupported, and generalized allegations and simply recast, support, or cure them later. The Commission has made numerous efforts over the years to avoid unnecessary delays and increase the efficiency of NRC adjudication and our contention standards are a cornerstone of that effort. We believe that the 60-day period provided under 10 C.F.R. § 2.309(b)(3) for filing hearing requests, petitions, and contentions is more than ample time for a potential requestor/intervenor to review the application, prepare a filing on standing, and develop proposed contentions and references to materials in support of the contentions. Under our contention rule, Intervenors are not being asked to prove their case, or to provide an exhaustive list of possible bases, but simply to provide sufficient alleged factual or legal bases to support the contention, and to do so at the outset.

CLI-04-35, 60 NRC at 622-23 (footnotes omitted).

The Commission went on to reaffirm its holding that a reply to an answer may not be used as a vehicle to raise new arguments or claims not found in the original contention or be used to cure an otherwise deficient contention:

What our rules do not allow is using reply briefs to provide, for the first time, the necessary threshold support for 4

contentions; such a practice would effectively bypass and eviscerate our rules governing timely filing, contention amendment, and submission of late-filed contentions.

Id. at 623 (emphasis added).

The Commission later expanded upon the appropriate content of reply briefs in an adjudicatory proceeding in the Palisades license renewal proceeding, where the licensing board had held that it would not consider anything in the [Petitioners] Reply that [did]

not focus on the matters raised in the [applicants and Staffs] Answers. Nuclear Management Company, LLC (Palisades Nuclear Plant), LBP-06-10, 63 NRC 314, 329 (2006).

The Commission affirmed the licensing board, ruling that the petitioners reply constituted an untimely attempt to supplement the contention. Palisades, CLI-06-17, 63 NRC at 730. The Commission then held that [n]ew bases for a contention cannot be introduced in a reply brief, or any other time after the date the original contentions are due, unless the petitioner meets the late-filing criteria set forth in 10 C.F.R. §§ 2.309(c),

(f)(2). Id. at 732 (emphasis added). See also AmerGen Energy Company, LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 261 & 276 (2009) (holding that neither new bases nor new arguments may be raised in a reply brief unless the standards for late-filed contentions are met); Crow Butte Resources, Inc. (North Trend Expansion Project), CLI-09-12, 69 NRC 535, 568 (2009). In Palisades, the Commission reiterated its holding in the LES decision: allowing new content in reply briefs would defeat the contention-filing deadline. Palisades, CLI-06-17, 63 NRC at 732. In addition, 5

the Commission held that allowing new claims in a reply would unfairly deprive other participants of an opportunity to rebut the new claims. Id.

Thus, the Commission has warned that a reply to an answer may not be used to cure or supplement an otherwise deficient contention, nor may such remedial action be taken at any other time after the filing deadline. As the Commission has made clear, a contrary ruling would eviscerate the Rules of Practice governing timely filing of properly pled contentions, contention amendments, and submission of late-filed contentions, and would unfairly limit the other proceeding participants ability to rebut new information.

The NRC rules do provide an avenue for providing new information, but amended or new contentions filed after the initial filing may be submitted only with leave of the presiding officer upon a showing that -

(i) The information upon which the amended or new contention is based was not previously available; (ii) The information upon which the amended or new contention is based is materially different than information previously available; and (iii) The amended or new contention has been submitted in a timely fashion based on the availability of the subsequent information.

10 C.F.R. § 2.309(f)(2) (emphasis added). As the Commission held in LES and Palisades, allowing the introduction of unauthorized new or amended claims or arguments after the filing deadline would eviscerate these provisions of the rule, rendering them meaningless.

In applying these standards, licensing boards have struck, or declined to consider, new information or argument offered in a reply pleading. See, e.g., Luminant Generation 6

Company, LLC (Comanche Peak Nuclear Power Plant, Units 3 and 4), LBP-09-17, 70 NRC __, slip op. at 9-10 (Aug. 6, 2009); PPL Susquehanna LLC (Susquehanna Steam Electric Station, Units 1 and 2), LBP-07-10, 66 NRC 1, 32 (2007); PPL Susquehanna LLC (Susquehanna Steam Electric Station, Units 1 and 2), LBP-07-4, 65 NRC 281 301-02 (2007).

Here, the Petition Supplement runs afoul of the Commissions Rules of Practice and its decisions in LES and Palisades. For the reasons explained below, the Petition Supplement raises, without seeking leave of the Board, new arguments and claims nowhere to be found within the Petition. Permitting introduction of these new claims and supporting information would bypass and eviscerate the NRCs hearing rules (see LES, CLI-04-35, 60 NRC at 623) and unfairly deprive other participants of an opportunity to rebut the new claims. Palisades, CLI-06-17, 63 NRC at 732.

B. MANY PORTIONS OF THE PETITION SUPPLEMENT VIOLATE THE COMMISSIONS RULES OF PRACTICE The NRC published notice of an opportunity for hearing in the Federal Register.

Notice of Acceptance for Docketing of the Application and Notice of Opportunity for Hearing Regarding Renewal of Facility Operating License No. NPF-86 for an Additional 20-Year Period; Nextera Energy Seabrook, LLC; Seabrook Station, Unit 1, 75 Fed. Reg.

42,462 (July 21, 2010) (Hearing Notice). The Hearing Notice permitted any person whose interest may be affected to file a request for hearing and petition for leave to intervene within 60 days. 75 Fed. Reg. at 42,463. On September 17, 2010, the Secretary of the Commission granted the State of New Hampshire, Beyond Nuclear, Friends of the Coast and the New England Coalition an extension of time to file intervention petitions, 7

until October 20, 2010. In their original filing, it is apparent that Petitioners did not take advantage of the additional 30 days granted by the Commission to proofread or revise the First Blanch Declaration, which is dated September 18, 2010. Instead, contrary to the Rules of Practice and the Commissions jurisprudence on this issue, they seek to do so now.

Notably, for a pleading intended to correct typographical errors, the Petition Supplement is rife with the same type of errors it seeks to correct. For instance, in Sections IA and IB, Petitioners identify changes reflected in the Second Blanch Declaration, each with an identifying page number, ostensibly to help locate the changes.

Every single page reference is incorrect.1

1. The Second Blanch Declaration Includes a Multitude of Editorial and Substantive Changes That Should Not Be Considered Instead of taking this opportunity to correct typographical errors in the First Blanch Declaration as the Board intended, Petitioners made dozens of editorial (non-typographical) and substantive changes in the Second Blanch Declaration, impermissibly raising new arguments not found in the original submittal, without addressing the factors for new or amended contentions in 10 C.F.R. § 2.309(f)(2). These changes are identified in Attachment 1 to this Response, Significant Changes to the Blanch Declaration.2 Many of these changes appear to be in response to shortcomings pointed out in NextEras and the NRC Staffs Answers and by the Board at the prehearing conference, which underscores the inappropriateness of allowing those passages to be amended now. It 1

Inexplicably, Mr. Blanch also removed the paragraph numbers from his declaration. The numeric identifiers in Sections IA and IB of the Petition Supplement do not correspond to the paragraph numbers of the First Blanch Declaration or appear to correspond to any rational numbering system of the unnumbered paragraphs in the Second Blanch Declaration.

2 Attachment 1 does not identify each of the minor typographical corrections in the Second Blanch Declaration.

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should not be up to the parties or the Board to sort through the Second Blanch Declaration and separate the potentially permissible typographical corrections from the dozens of other changes. For this reason and the reasons set forth below, the Board should disregard the entire Second Blanch Declaration.

Most of the errors corrected in the Second Blanch Declaration cannot properly be considered typographical errors. A typographical error is an error in printed or typewritten matter resulting from striking the improper key of a keyboard, from mechanical failure, or the like.3 The most obvious errors in the First Blanch Declaration, by contrast, were the result of the wholesale importation of documents prepared for other proceedings. These errors, such as Mr. Blanchs claim to have reviewed applications and safety evaluation reports in other license renewal proceedings but not Seabrooks (see First Blanch Decl. at 4, ¶ 13), are not mere typographical errors that can simply be corrected with no real impact on the proceeding. These errors in the First Blanch Declaration are crucial in that they show Petitioners failure to demonstrate the existence of a genuine dispute with the instant application at the outset. 10 C.F.R.

§ 2.309(f)(1)(vi).

a. Mr. Blanchs Experience In its Answer Opposing The Petition to Intervene and Request for Hearing of Friends of the Coast and the New England Coalition (NextEra Answer), NextEra explained that the First Blanch Declaration provides no evidence that he has any specialized knowledge about either corrosion or radiological or environmental protection. NextEra Answer at 54. Mr. Blanch now recognizes this deficiency and has 3

Dictionary.com Unabridged. Random House, Inc.

http://dictionary.reference.com/browse/typographical error (accessed: December 10, 2010).

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attempted to remedy it. Petition Supplement at 3. The Second Blanch Declaration provides the following completely new paragraph:

My duties at Northeast Utilities included piping system designs and also all Instrument and control systems. I also served as Nuclear Operations Engineer providing liaison services between the NU headquarter and Millstone Unit 2 responsible for coordination of all system design, operation and backfits of operating systems.

Second Blanch Declaration at 3. Mr. Blanch also attempts to bolster his academic coursework by adding that his undergraduate electrical engineering curriculum included numerous courses in thermal and mechanical engineering. Compare id. with First Blanch Declaration at 2, ¶ 6. Also, the Second Blanch Declaration adds a new sentence to the Engineer of the Year paragraph: These failures included generic design deficiencies of piping and mechanical systems in reactor level monitoring systems.

Compare id. at 4 with First Blanch Declaration at 3, ¶ 12.

The untimely attempt to burnish Mr. Blanchs credentials as an expert on piping should be rejected. The Commissions contention admissibility and timeliness requirements demand a level of discipline and preparedness on part of petitioners, who must examine the publicly available material and set forth their claims and the support for their claims at the outset. LES, CLI-04-25, 60 NRC at 224-25. Had these statements been included in the First Blanch Declaration, NextEra would have had an opportunity to challenge them in its Answer. By waiting to provide these credentials in the Petition Supplement, Petitioners deny NextEra that opportunity. In any event, these embellishments could hardly be classified as corrections of typographical errors.

NextEras Answer also criticized the First Blanch Declaration because Mr.

Blanch failed to state whether he had read the application at issue. NextEra Answer at 10

26-27 (Indeed, Mr. Blanch does not even claim to have read the Seabrook LRA).

Indeed, Mr. Blanch stated that he had reviewed Vermont Yankees License Renewal Application and the subsequent submittals by Entergy to renew the operating licenses for Indian Point Unit 2 and Unit 3 [and] also reviewed pertinent sections of the NRCs Safety Evaluation Report [for Vermont Yankee] dated May 2008 (NUREG 1907). First Blanch Decl. at 4. The Second Blanch Declaration removes the references to the Vermont Yankee and Indian Point applications and the Vermont Yankee Safety Evaluation Report and replaces them with a reference to the Seabrook application. See Second Blanch Declaration at 5. But, Petitioners must set forth their claims and the support for their claims at the outset. LES, CLI-04-25, 60 NRC at 224-25 (emphasis added). When a proffered expert opines on the sufficiency of the application, part of the support that must be provided at the outset is the simple fact that he has reviewed the application. The First Blanch Declaration failed to make this showing, and Petitioners should not be allowed to remedy that failure now under the pretense of correcting a typographical error.

b. Inaccessible Cables As to Contention 1, NextEras Answer criticized the First Blanch Declaration for its references to Time-Limited Aging Analyses (TLAA). NextEra Answer at 27 (Of course . . . the Seabrook LRA contains . . . a TLAA for the Environmental Qualification of Electrical Components (LRA § 4.4)). Mr. Blanch attempts to bolster his declaration and respond to this criticism by removing two references to TLAAs that occurred in the First Blanch Declaration (page 7, ¶ 19; page 7, ¶ 20). Second Blanch Decl. at 7.

However, the Second Blanch Declaration does retain a second reference to TLAAs that 11

also appeared in paragraph 19 of page 7 of the First Blanch Declaration. While NextEra does not generally object to Petitioners removing claims from this litigation, Mr.

Blanchs assertions illustrate that Mr. Blanch failed to perform an adequate review of the application, which appears to be why he removed these assertions.. To the extent Petitioners seek to remedy that failure now, it is untimely.

In their Reply, Petitioners argued that the Blanch Declaration in the Vermont Yankee proceeding at ¶¶ 21-22 (and apparently by extension the First Blanch Declaration here at ¶¶ 18-19) made a claim about the lack of an aging management program for low-voltage inaccessible cables. Petitioners Reply at 11. This claim, if it was actually intended, was ambiguous enough to have confused both NextEra and the Licensing Board in the Vermont Yankee case. See id at 10-11. In any event, Mr. Blanch now seeks to remedy this lack of clarity by adding:

10 CFR 54.21 addresses electrical cables and connections and does not differentiate between low, medium and high voltage cables and connections. It is only the GALL document that makes the differentiation. All cables meeting the requirements of 10 CFR 54.21 must be addressed and provided with an aging management program (AMP).

Second Blanch Decl. at 5. Mr. Blanch also adds:

I am aware there are cables within the scope of 10 CFR 54.4 and 10 CFR 54.21 that operate from less than 1000 volts to 35,000 volts.

Id. at 6. Mr. Blanch also adds:

A review of the Seabrook LRA Appendix B finds no Aging Management Program (AMP) for inaccessible cables designed to operate in the voltage range of less than 1000 to 2000 volts . . . There is no assurance that cables not designed to operate while submerged or subsequent to moisture or submergence are capable of performing the functions within the scope of 10 CFR 54.4.

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Id. at 7-8.4 To the extent the First Blanch Declaration did not sufficiently identify a challenge to the voltage limitation of the original aging management program, the Second Blanch Declaration may not be used to remedy that failure. Mr. Blanch was able to clearly state the low-voltage cable issue four years ago in the Indian Point proceeding, so there can be no dispute that this late clarification is untimely. See New York State - Notice of Intention to Participate and Petition to Intervene, Supporting Declarations and Exhibits, Volume I of II (ADAMS Accession No. ML073400205) (New York State Exhibits),

Blanch Decl. at 4-5.

Mr. Blanch also claimed that the failure to properly manage aging of Electrical Transformers at Indian Point may compromise plant safety . First Blanch Decl. at 7 (emphasis added). This out-of-place statement is changed to the failure to properly manage aging of Electrical Cables at Seabrook may compromise plant safety .

Second Blanch Decl. at 8 (emphasis added). Again, this change does not correct a typographical error, but instead represents an attempt to remedy the failure of the First Blanch Declaration to refer to the application at issue.

Next, Mr. Blanch adds a new sentence following what was paragraph 24 on page 8 of the First Blanch Declaration, claiming: Seabrook has experienced submerged cables within the scope of 10 CFR 54. Second Blanch Decl. at 8. This plant-specific operating experience had been identified in Seabrooks LRA (at B-183) and not addressed by Mr.

4 Perhaps justifiably, Mr. Blanch also removed the description of his review as diligent. Compare First Blanch Decl. at 7, ¶ 19 with Second Blanch Decl. at 7. This change appears to be a tacit admission that NextEras claim that Mr. Blanch did not perform an adequate review of the application is correct. The original paragraph also included a reference to his review of the LRA and the NRC Staffs SER. First Blanch Decl. at 7, ¶ 19. Mr. Blanch has replaced that with the new reference to the Seabrook LRA.

Second Blanch Decl. at 7.

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Blanch until the filing of his Second Declaration, which was intended to clarify typographical errors. Mr. Blanch also makes editorial changes to paragraph 24 on page 8 and paragraph 26 on page 9, changing their meaning with no explanation as to the reason.

See Attachment 1.5 Here again Mr. Blanch has sought to improve upon and bolster his First Declaration. Since his attempts go well beyond correcting typographical errors, they must be rejected.

c. Transformers In the transformers section, Mr. Blanch corrects another significant error in the First Blanch Declaration, where he referred to transformers as both passive and active devices. See First Blanch Decl. at 12, ¶¶ 35-36. This error is noteworthy because the Petitioners rely exclusively on the Blanch Declaration to support their claim that transformers are passive, and thus must be subject to an aging management program.

At the prehearing conference, Judge Wardwell pointed out that using the term active instead of passive is not a typographical error, to which Petitioners representative replied: That should have read inactive I believe. Transcript at 107-08. But the Second Blanch Declaration (at 13) changes the term active that appeared in the First Blanch Declaration (at 12 ¶ 36) to the correct regulatory term, passive, not inactive.6 The Second Blanch Declaration is evidence that the rationalization of Petitioners representative at the prehearing conference was incorrect and that the error was not, in fact, typographical in nature.

5 Mr. Blanch also moves the commodity grouping paragraph, originally misplaced in the transformers section of the First Blanch Declaration (page 13, ¶ 38), to the inaccessible cables section. See Second Blanch Decl. at 11.

6 Mr. Blanch also adds a reference to transformers as passive devices on page 11 of the Second Blanch Declaration (modifying page 11, ¶ 28 of the First Blanch Decl.)

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In its Answer, NextEra also criticized the Blanch Declaration for failing to show that the lack of an AMP was material. NextEra Answer at 45 (citing First Blanch Decl. at 12 ¶36 (the licensee has not provided for any AMP to assure ???????)). Mr. Blanch also changes this statement, clearly not a typographical error, to read: the licensee has not provided for any AMP to assure compliance with the requirements of 10 CFR 54.21.

Second Blanch Decl. at 13.

Mr. Blanchs changes to his Declaration should be rejected as post hoc efforts to provide the necessary threshold support for Petitioners contentions. The burden to provide adequate support must be met at the outset not now under the guise of correcting typographical errors. See LES, CLI-04-25, 60 NRC at 224-25. This is of particular significance when a contention relies solely on the opinion of a proffered expert for the necessary supportthat opinion must be logically sound and not contradictory. Petitioners cannot remedy their failure to meet their burden now.

In addition, on page 12 of the Second Blanch Declaration, Mr. Blanch adds a new sentence regarding the availability of the UFSAR. This revision impermissibly changes his argument from one alleging that NextEra did not include relevant portions of the UFSAR in its application, to one claiming the UFSAR is not available at all. See First Blanch Decl. at 12, ¶ 34.

Finally, the Second Blanch Declaration replaces the misplaced commodity group paragraph with:

Figure 2.5-1 clearly illustrates that transformers are part of the SBO recovery path and there are numerous additional transformers within the scope of 10 CFR 54.4 that are not discussed in the LRA. There is no proposed AMP for these transformers.

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Second Blanch Decl. at 14. This section originally criticized the application for not including Figure 2.5-1. See First Blanch Decl. at 13, ¶ 38. Now Petitioners seek to add a completely new criticism, apparently based on the availability of Figure 2.5-1. For the reasons explained above, this late attempt to identify completely new threshold support for the contention should be rejected.

d. Buried Pipes and Tanks Mr. Blanch also made a number of impermissible revisions to his support for Contention 3. For instance, on page 14 of the Second Blanch Declaration, he makes significant changes to paragraph 39 of page 13 of the First Blanch Declaration.

Specifically, he adds the sentence: While numerous drawings were discussed and referenced in the LRA, few of these actual piping drawings and diagrams are available for review. Second Blanch Decl. at 14. He also modified the end of a sentence in that paragraph, completely changing its meaning, with no explanation. Compare First Blanch Decl. at 14, ¶ 39 (determine if mechanical scoping was properly done) with Second Blanch Decl. at 14 (determine if buried pipes and tanks are properly addressed). These new and revised claims are untimely and impermissible.

The Second Blanch Declaration (at 15) also makes a significant change to paragraph 41 of page 14 of the First Blanch Declaration. Originally, that paragraph provided four reasons why the Seabrook LRA was allegedly inadequate. The Second Blanch Declaration removes the first reason, (1) it does not provide for adequate inspection of all systems, structures, and components that may contain or convey radioactively contaminated water, and/or other fluids, and renumbers the remaining three reasons accordingly. NextEra criticized this very phrase in its Answer because such 16

issues are beyond the scope of this proceeding. NextEra Answer at 49-51. Mr. Blanch appears to have made this change in an attempt to insulate the contention from this challenge. NextEras Answer explained that Boards are not permitted to reformulate otherwise inadmissible contentions. Id. at 52-53. Petitioners, while claiming to correct typographical errors, may not do so either.

Next, Mr. Blanch raises a new claim about the inadequacy of the AMPs for transfer canals and water cavities that contain radioactive water during refueling.

Compare First Blanch Decl. at 15, ¶ 44 with Second Blanch Decl. at 16. This is a new claim that, for the various reasons explained above, Petitioners may not raise at this late date, their obligation is to support their proposed contentions at the outset. LES, CLI-04-25, 60 NRC at 224-25.

Finally, Mr. Blanch revises paragraph 46 of page 15 of the First Blanch Declaration by changing the phrase various aging piping systems to various in-scope piping systems and adding a new footnote. Second Blanch Decl. at 17. The new footnote seeks to identify the recent events to which Mr. Blanch originally referred, stating: Indian Point failure of Condensate Storage Tank buried piping and severe degradation of Salem Unit 1 AFW buried discharge piping. Id. Mr. Blanch does not identify the dates of these events, but in order to amend the support for the contention, Petitioners must show that the information they seek to provide was not previously available. 10 C.F.R. § 2.309(f)(2)(i). Petitioners have failed to even attempt such a showing here. In any event, providing this type of additional support goes well beyond the scope of the typographical corrections that the Board allowed to be corrected as part of this new Declaration.

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2. Petitioners Attempt to Amend the Petition is Untimely and Should be Rejected Also in the Petition Supplement, Petitioners seek to make a single correction of a dislocation and citation error in the Petition, changing an incorrect reference to another license renewal application on page 74, LRA, Appendix E, 2.10, to a reference to Seabrooks application, LRA , Page F-158 -F.8.2 Uncertainty) [sic]. Petition Supplement at 5-6. While this change may not be of enormous importance, however, it is not a typographical error. It is an example of Petitioners lack of diligence when preparing their Petition and cutting and pasting pleadings from other license renewal proceedings. While perhaps not dispositive, it is certainly some evidence of the extent to which Petitioners reviewed the application at issue in this case. The record should duly reflect Petitioners carelessness. Petitioners should not be allowed to cure their failure to meet their ironclad obligations under the guise of typographical corrections.

Petitioners also seek to add a footnote that includes a paragraph quotation from page F-158 of the ER, which may be the dislocation to which they refer. Id. at 5-6.

The footnote is largely unnecessary because significant portions of that same paragraph are already quoted on the following page of the Petition. See Petition at 75. However, to the extent Petitioners seek to amend Contention 4 to add this footnote, it is untimely and the Petitioners have failed to address either the timeliness factors in 10 C.F.R. § 2.309(f)(2) or the late-filed contention standards in 10 C.F.R. § 2.309(c).

3. Petitioners Submission of New Information Fails to Comply with the Commissions Rules and Should be Rejected Finally, Petitioners identify new information relevant to their Contention 1.

Petition Supplement at 6. On December 2, 2010, the NRC published Information Notice 18

2010-26, Submerged Electrical Cables. Id. Petitioners argue that this document is material because it affirms throughout Friends/NECs concerns with the challenges to maintaining safety of submerged cables. Id. at 7. Petitioners are not entirely clear, but it appears that they seek to add this document as further support for Contention 1. See Petition Supplement at 8-9.

Petitioners, however, have failed to make the required showing under 10 C.F.R.

§ 2.309(f)(2) for raising new information with respect to this Information Notice. That rule requires the petitioner to show that: (i) the information was not previously available; (ii) the information is materially different than information previously available; and (iii) the amended contention has been submitted in a timely fashion based on the availability of the subsequent information. 10 C.F.R. § 2.309(f)(2).

However, Petitioners have not shown that the information contained in the Information Notice is materially different than information that has long been available.

10 C.F.R. § 2.309(f)(2)(i). For example, one of the cited portions of the Information Notice explains that the likelihood of failure . . . increases over time as the cable insulation degrades and/or is exposed to water. Petition Supplement at 7-8 (citing IN 2010-26 at 5). Another portion explains that cables may not be designed or qualified for long-term submergence. Id. at 8 (citing IN 2010-26 at 6). But this is the very reason that this aging management program exists in the first place. The GALL Report explains:

[S]ome cables may be exposed to condensation and wetting in inaccessible locations, such as conduits, cable trenches, cable troughs, duct banks, underground vaults or direct buried installations. When an energized medium-voltage cable (2 kV to 35 kV) is exposed to wet conditions for which it is not designed, water treeing or a decrease in the dielectric strength of the conductor insulation can occur.

This can potentially lead to electrical failure.

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GALL Rev. 1 at XI E-7 (emphasis added). See also LRA at B-180-81. None of this cited information is materially different from what was previously available in the GALL Report.

Petitioners also refer to the Information Notices statement asserting that periodic draining could slow the rate of insulation degradation, but it may not prevent cable degradation (Id. (citing IN 2010-26 at 7)). This is also acknowledged in the GALL Report, which explains that because periodic draining may not be sufficient, condition testing will be performed, as well:

In this aging management program periodic actions are taken to prevent cables from being exposed to significant moisture, such as inspecting for water collection in cable manholes, and draining water, as needed. The above actions are not sufficient to assure that water is not trapped elsewhere in the raceways. For example, if duct bank conduit has low points in the routing, there could be potential for long-term submergence at these low points. In addition, concrete raceways may crack due to soil settling over a long period of time and manhole covers may not be watertight. Additionally, in certain areas, the water table is high in seasonal cycles and therefore, the raceways may get refilled soon after purging. Furthermore, potential uncertainties exist with water trees even when duct banks are sloped with the intention to minimize water accumulation. Experience has shown that insulation degradation may occur if the cables are exposed to 100 percent relative humidity. The above periodic actions are necessary to minimize the potential for insulation degradation. In addition to above periodic actions, in-scope, medium-voltage cables exposed to significant moisture and significant voltage are tested to provide an indication of the condition of the conductor insulation.

GALL Rev. 1 at XI E-7 (emphases added).

Petitioners also refer to the fact that the recent Information Notice provides examples of early cable failures, but also fails to provide materially different information.

20

Incidents involving early failures of electric cables and cable failures leading to multiple equipment failures are cited in Information Notice 2002-12, Submerged Safety-Related Cables, and NRC Generic Letter 2007-01, Inaccessible or Underground Power Cable Failures That Disable Accident Mitigation Systems or Cause Plant Transients, both of which Petitioners cited in their Petition. See Petition at 16-18. Moreover, IN-2010-26 is based in part on licensee responses to Generic Letter 2007-01, which are publicly available and were due to the NRC in May 2007. See GL 2007-01.

In sum, Petitioners have failed to make the required showing that the information provided in Information Notice 2010-26 is materially different from information that was available when they filed their petition. As a result, their request for the Board to consider this new information in determining the admissibility of Contention 1 is untimely and should be rejected.7 III. CONCLUSION For the reasons discussed above, NextEra objects to the Boards consideration of any of the material provided in the Petition Supplement.

7 As this is a nontimely amendment of their contention, Petitioners could have, but failed to, address the factors in 10 C.F.R. § 2.309(c) for admission of a nontimely contention.

21

Respectfully Submitted,

/Signed electronically by Antonio Fernández/

Mitchell S. Ross Antonio Fernández NextEra Energy Seabrook, LLC 700 Universe Blvd.

Juno Beach, Florida 33408 Telephone: 561-691-7126 Facsimile: 561-691-7135 E-mail: mitch.ross@fpl.com antonio.fernandez@fpl.com Steven Hamrick NextEra Energy Seabrook, LLC 801 Pennsylvania Avenue, N.W. Suite 220 Washington, DC 20004 Telephone: 202-349-3496 Facsimile: 202-347-7076 E-mail: steven.hamrick@fpl.com Counsel for NextEra Energy Seabrook, LLC December 13, 2010 22

NextEra Response to NEC/FOTC Petition Supplement Attachment 1 Significant Changes to the Blanch Declaration Section Original First Blanch Declaration New Second Blanch Declaration Identified in Page # Page # Petitioners

(¶ #) Supplement?

Exper- 2 (5) including the subject of reactor and 2 including the subject of reactor systems and No ience electrical theory electrical theory 2 (6) -- 3 This curriculum included numerous courses No in thermal and mechanical engineering.

2 (7) project coordination experience for 3 project coordination experience for the No the construction and operation of construction maintenance and operation of nuclear power plants nuclear power plants 2 (7) under the direction of the 3 under the direction of the Nuclear Yes Engineering division within Northeast Engineering Department within Northeast Utilities. Utilities.

-- -- 3 My duties at Northeast Utilities included Yes piping system designs and also all Instrument and control systems. I also served as Nuclear Operations Engineer providing liaison services between the NU headquarter and Millstone Unit 2 responsible for coordination of all system design, operation and backfits of operating systems.

3 (10) including monitoring the 4 including monitoring the performance of No conditions of active devices safety systems and devices 3 (12) -- 4 These failures included generic design Yes 1

Section Original First Blanch Declaration New Second Blanch Declaration Identified in Page # Page # Petitioners

(¶ #) Supplement?

deficiencies of piping and mechanical systems in reactor level monitoring systems.

4 (13) I have reviewed Vermont Yankees 5 I have reviewed applicable portions of No License Renewal Application and the Renewal Application Nextera Energy subsequent submittals by Entergy to Seabrook, LLC, et al. Docket no. 50-443 renew the operating licenses for Seabrook Station, Unit No. 1 Facility Indian Point Unit 2 and Unit 3. I Operating License No. NPF-86 have also reviewed pertinent sections of the NRCs Safety Evaluation Report dated May 2008 (NUREG 1907).

Inacc- 4 (15) Footnote 1: Cables designed for 5 Footnote deleted No essible service between 1000 and 2000 volts Cables are not defined.

4 (15-16) -- 5 10 CFR 54.21 addresses electrical cables and Yes connections and does not differentiate between low, medium and high voltage cables and connections. It is only the GALL document that makes the differentiation. All cables meeting the requirements of 10 CFR 54.21 must be addressed and provided with an aging management program (AMP).

4 (16) Based upon more than 40 years of 6 Based upon more than 40 years of Yes engineering, operation and design engineering, operation and design experience, experience, I believe these cables are I am aware there are cables within the scope designed to operate between <1000 to of 10 CFR 54.4 and 10 CFR 54.21 that 35,000 volts as defined in NUREG operate from less than 1000 volts to 35,000 2

Section Original First Blanch Declaration New Second Blanch Declaration Identified in Page # Page # Petitioners

(¶ #) Supplement?

1801. volts.

4 (17) NRC Regulations 6 Safety-related systems, structures, and No

17. In preparing this declaration, I components are those relied upon to remain reviewed 10 C.F.R. § 54.4. functional during and following design-basis Specifically, § 54.4 states: events (as defined in 10 CFR 54.4) to ensure

§ 54.4 Scope. the following functions:

6 § 54.21 Contents of application 7 Text deleted. No (No ¶ #) technical information. Each application must contain the following information:

(a) An integrated plant assessment (IPA). The IPA must--

7 (18) Based on my review of 10 C.F.R. § 7 Based on my review of 10 C.F.R. § Yes 54.21(a)(1), and 10 CFR § 54.4, 54.21(a)(1), and 10 CFR § 54.4, electrical electrical cables are included within cables are clearly included within the scope of the scope of § 10 CFR 54, irrespective § 10 CFR 54, irrespective of the applied of the design of or the applied voltage.

voltage.

7 (19) A diligent review of the LRA and the 7 A review of the Seabrook LRA Appendix B No NRC Staffs SER finds no such Time finds no Aging Management Program (AMP)

Limited Aging Analysis (TLAA) or for inaccessible cables designed to operate in Aging Management Program the voltage range of less than 1000 to 2000 (AMP) volts; There is no assurance that cables not designed to operate while submerged or subsequent to moisture or submergence are capable of performing the functions within the scope of 10 CFR 54.4.

3

Section Original First Blanch Declaration New Second Blanch Declaration Identified in Page # Page # Petitioners

(¶ #) Supplement?

7 (20) Complete and accurate Time Limited 8 An effective Aging Management Program No Aging Analysis (TLAA) or an would take into account effective Aging Management Program (AMP) would take into account 7 (20) Consequences of Inadequate 8 Text deleted No Management of Low and Medium Voltage Cables 7-8 (21 - The failure to properly manage aging 8 The failure to properly manage aging of No

22) of Electrical Transformers at Indian Electrical Cables at Seabrook may Point may compromise plant safety compromise plant safety discussed within 10 discussed within 10 CFR 54.4 that CFR 54.4.

states:

§ 54.4 Scope.

(a) Plant systems, structures, and components within the scope of this part are--

(1) Safety-related systems, structures, and components which are those relied upon to remain functional during and following design-basis events (as defined in 10 CFR 50.49 (b)(1)) to ensure the following functions--

(i) The integrity of the reactor coolant pressure boundary; (ii) The capability to shut down the reactor and maintain it in a safe shutdown condition; or 4

Section Original First Blanch Declaration New Second Blanch Declaration Identified in Page # Page # Petitioners

(¶ #) Supplement?

(iii) The capability to prevent or mitigate the consequences of accidents which could result in potential offsite exposures comparable to those referred to in § 50.34(a)(1), § 50.67(b)(2), or § 100.11 of this chapter, as applicable.

The consequence of failures of safety related cables may result in accidents beyond the Design Basis Accidents resulting in exposures to the public exceeding 10 C.F.R. § 100 limits.

8 (24) Most of the cables within the scope of 8 The inaccessible cables within the scope of No 10 CFR 54 (<2 kv) are not identified 10 CFR 54 are not identified and not and not inspected or maintained by inspected or maintained by any aging any aging management program. management program. Many of these cables These cables are also periodically may be periodically submerged and not submerged and not qualified for the qualified for this environment.

environment.

8 (24) -- 8 Seabrook has experienced submerged cables Yes within the scope of 10 CFR 54.

9 (25) Footnote 2 - NUREG CR/7000 9 Footnote Deleted No 9 (26) The integrity and function of power 9 Cables are monitored indirectly through the No and instrumentation and control performance of in-service testing of (I&C) cables are monitored indirectly safety-related systems and components. These through the performance of in-service tests may demonstrate the function 5

Section Original First Blanch Declaration New Second Blanch Declaration Identified in Page # Page # Petitioners

(¶ #) Supplement?

testing of safety-related systems and of the cables only under test conditions.

components. These tests can These tests do not provide assurance that they demonstrate the function will continue to perform of the cables under test conditions. successfully when they are called upon to However, they do not provide operate fully loaded for extended assurance that they will continue to periods as they would under design basis perform successfully when they are conditions.

called upon to operate fully loaded for extended periods as they would under normal service operating conditions or under design basis conditions.

10 (26) Footnote 3 - NUREG CR/7000 10 Footnote Deleted No 10 (27) 10 CFR Part 50 regulations require 10 10 CFR Part 50 including Appendix A and B No regulations require 11 (27) Footnote 4 - NUREG CR/7000 11 Footnote Deleted No 11 (27) -- 11 Characterization of cables by commodity No grouping is an acceptable practice only if the location where each cable type is used is also identified. The LRA should include the drawings identified in this section so that reviewers can identify locations of cables that may be subjected to moisture and submergence. Again, these materials are not in the public domain and the LRA is therefore opaque and incomplete.

Trans- 11 (28) There are numerous electrical 11 There are numerous electrical transformers Potentially:

formers transformers that perform a function that perform functions described in 10 CFR The Petition described in §§ 54.4(a)(1)/(2) and (3). 54.4(a)(1)/(2) and (3). Transformers function Supplement 6

Section Original First Blanch Declaration New Second Blanch Declaration Identified in Page # Page # Petitioners

(¶ #) Supplement?

Transformers function without moving without moving parts or without a change in identifies one parts or without a change in configuration or properties as defined in that addition of the configuration or properties as defined regulation and are passive devices. term in that regulation. passive 11-12 (31- Failure to properly manage aging of 12 Text Deleted No

32) electrical transformers could result in loss of emergency power to safety equipment and vital busses, including all station blackout loads. Appendix A, Page A-35 of the UFSAR supplement describes a Structures Monitoring Program that includes a program for monitoring transformer/switchyard support structures yet there is no APM described for transformers within the scope of 10 C.F.R. § 54.21(a)(1)(I).

The LRA also discusses the need for an AMP for transformer support structures based on the criterion of 10 CFR § 54.4(a)(3).

12 (34) While other License renewal 12 While other License renewal applications No applications contained a copy of contained a copy of relevant sections of relevant sections of the UFSAR, the UFSAR, Seabrook did not provide such Seabrook did not provide such copy copy and only referenced applicable and only referenced applicable sections of the UFSAR. This UFSAR is not sections of the UFSAR. readily available for review.

7

Section Original First Blanch Declaration New Second Blanch Declaration Identified in Page # Page # Petitioners

(¶ #) Supplement?

12 (35) Without a copy of the UFSAR it is not 12 Without a copy of the UFSAR it is not No possible to identify all of the possible to identify all of the transformers transformers within the scope of 10 within the scope of 10 CFR 54.4, however it CFR 54.4, however it is well known is known that many transformers perform that many transformers perform functions described in 10 CFR 54.

functions described in 10 CFR 54 and are passive devices in that they contain no moving parts and do not undergo a change of properties or state.

12 (36) Transformers are active devices within 13 Transformers are passive devices within the Potentially:

the scope of 10 CFR 54.4 yet the scope of 10 CFR 54.4 yet the licensee The Petition licensee has not provided any AMP to has not provided any AMP to assure Supplement assure ??????? compliance with the requirements of 10 CFR identifies one 54.21. addition of the term passive 12 (37) -- 13 New Footnote 1 - Gall Report NUREG 1801 No 12(38) Characterization of cables by 14 Figure 2.5-1 clearly illustrates that Yes commodity grouping is an acceptable transformers are part of the SBO recovery practice only if the location where path and there are numerous additional each cable type is used is also transformers within the scope of 10 CFR identified. The LRA should include 54.4 that are not discussed in the LRA.

the the drawings identified in this There is no proposed AMP for these section so that reviewers can identify transformers.

location of cables that may be subjected to moisture and 8

Section Original First Blanch Declaration New Second Blanch Declaration Identified in Page # Page # Petitioners

(¶ #) Supplement?

submergence. Again, these materials are not in the public domain and the LRA is therefore opaque and incomplete.

Buried 13 (39) In Appendix A of the LRA , under 14 Page 2.1-6 of the Seabrook LRA states the No Pipe scoping, the licensee references, but following:

does not provide color coded schematic drawings.

13 (39) Without these drawings the LRA is 14 While numerous drawings were discussed No incomplete and does not permit the and referenced in the LRA, few of these reviewer to easily determine if actual piping drawings and diagrams are mechanical scoping was properly available for review. Without these drawings done. the LRA is incomplete and does not permit the reviewer to determine if buried pipes and tanks are properly addressed.

14 (40) However, 10 CFR 54 does not 15 10 CFR 54 does not differentiate between No differentiate between steel and non- steel and non-steel piping and tanks.

steel piping and tanks. Stainless steel, Stainless steel, fiberglass, PVC, concrete and fiberglass, PVC, concrete and other other materials are employed and are materials are employed and are subject subject to degradation and must be addressed.

to degradation and must be addressed. Again, the LRA is deficient.

Again, the LRA is incomplete.

14 (41) The Aging Management program 15 The Aging Management program proposed in No proposed in the license renewal the license renewal application application for Seabrook is inadequate for Seabrook buried pipes is inadequate because: (1) it does not provide for because: (1) there is no adequate leak adequate inspection of all systems, prevention . . . [subsequent numbering 9

Section Original First Blanch Declaration New Second Blanch Declaration Identified in Page # Page # Petitioners

(¶ #) Supplement?

structures, and components that may modified accordingly]

contain or convey water, radioactively contaminated water, and/or other fluids; (2) there is no adequate leak prevention . . .

15 (44) These transfer canals contain 16 These transfer canals and water cavities No radioactive water during refuelings. contain radioactive water during refuelings.

The adequacy of the AMPs for these components cannot be determined from the information provided in the LRA.

15 (46) Recent events around the United 17 Recent events2 at nuclear power plants as Potentially States and the world - as well as at well as at the Seabrook Nuclear Power Station the Seabrook Nuclear Power Station - have demonstrated that various in scope have demonstrated that various aging piping systems have experienced leaks and/or piping systems have experienced leaks corrosion.

and/or corrosion.

New Footnote 2 - Indian Point failure of Condensate Storage Tank buried piping and severe degradation of Salem Unit 1 AFW buried discharge piping 17 (53) -- 19 New Footnote 3 - NACE Control of No External Corrosion on Underground or Submerged Metallic Piping Systems 18 -- Executed in Accord with 10CFR 2.304(d) No 10

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

)

NextEra Energy Seabrook, LLC ) Docket No. 50-443-LR

)

(Seabrook Station) )

) ASLBP No. 10-906-02-LR (Operating License Renewal) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing NextEra Energy Seabrook, LLCs Response Opposing NEC/Friends of the Coasts Supplement to Its Petition, were provided to the Electronic Information Exchange for service to those individuals listed below and others on the service list in this proceeding, this 13th day of December, 2010.

Administrative Judge Administrative Judge Paul S. Ryerson, Esq., Chair Dr. Michael Kennedy Atomic Safety and Licensing Board Atomic Safety and Licensing Board Mail Stop T-3 F23 Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 Email: psr1@nrc.gov Email: michael.kennedy@nrc.gov Administrative Judge Secretary Dr. Richard E. Wardwell Attn: Rulemakings and Adjudications Staff Atomic Safety and Licensing Board Mail Stop O-16 C1 Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 hearingdocket@nrc.gov Email: richard.wardwell@nrc.gov

Office of Commission Appellate Adjudication Mary Spencer, Esq.

Mail Stop O-16 C1 Catherine E. Kanatas, Esq.

U.S. Nuclear Regulatory Commission Maxwell C. Smith, Esq.

Washington, DC 20555-0001 Emily L. Monteith, Esq.

E-mail: OCAAMAIL@nrc.gov Megan Wright, Esq.

Office of the General Counsel Mail Stop O-15 D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: mary.baty@nrc.gov Raymond Shadis Kurt Ehrenberg New England Coalition New Hampshire Sierra Club Post Office Box 98 40 N. Main Street Edgecomb, Maine 04556 Concord, NH 03301 E-mail: shadis@prexar.com E-mail: Kurt.Ehrenberg@sierraclub.org Paul Gunter, Reactor Oversight Project Doug Bogen Beyond Nuclear Executive Director 6930 Carroll Avenue, Suite 400 Seacoast Anti-Pollution League Takoma Park, MD 20912 PO Box 1136 E-mail: paul@beyondnuclear.org Portsmouth, NH 03802 E-mail: bogen@metrocast.net

/Signed electronically by Antonio Fernández/

Antonio Fernández 2