ML103560285

NRC Staff'S Response in Opposition to Friends of the Coast and New England Coalition'S Motion for Leave to Reply

ML103560285
Person / Time
Site:	Seabrook
Issue date:	12/22/2010
From:	Emily Monteith NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 19278, 50-443-LR, ASLBP 10-906-02-LR-BD01
Download: ML103560285 (6)

Text

December 22, 2010 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

NextEra Energy, LLC ) Docket Nos. 50-443

)

(Seabrook Station, Unit 1) ) ASLBP No. 10-906-02-LR-BD01 NRC STAFFS RESPONSE IN OPPOSITION TO FRIENDS OF THE COAST AND NEW ENGLAND COALITIONS MOTION FOR LEAVE TO REPLY INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c), the Staff of the U.S. Nuclear Regulatory Commission (Staff) hereby responds to Friends of the Coast and New England Coalitions (FOTC/NECs)

Motion by Friends of the Coast and New England Coalition for Leave to Reply to NRC Staff Objections; NextEra Energy Seabrook, LLC Response in Opposition to the Friends of the Coast and New England Coalition Supplement to its Petition (Motion) filed December 20, 2010. For the reasons set forth below, the Staff opposes the Motion.

DISCUSSION As authorized by the Board, 1 on December 13, 2010, NRC Staff and NextEra filed objections to FOTC/NECs December 6, 2010 Supplement to the Blanch Declaration (Supplement). 2 FOTC/NEC now moves for leave to file a reply to these objections.

1 Argument Transcript, NextEra Seabrook Station, LLC (Seabrook Station, Unit 1), at 69-70, 170 (Nov. 30, 2010) (Tr.) (Agencywide Documents Access and Management System (ADAMS)

Accession No. ML103420615).

2 See Supplement to Friends of the Coast and New England Coalition Petition for Leave to Intervene, Request for Hearing, and Admission of Contentions: Errors and Corrections and New

FOTC/NEC claims that it could not have anticipated either the procedural arguments or the arguments concerning the nature of changes made to the Blanch Declaration that were raised in the Staffs and NextEras objections. See Motion at 3-4. Therefore, FOTC/NEC argues, the compelling circumstances contemplated by 10 C.F.R. § 2.323(c) for the filing of replies exist.

See id. However, FOTC/NEC has not met the requirements for filing a reply under 10 C.F.R.

§ 2.323(c).

Under 10 C.F.R. § 2.323(c), any party wishing to file a reply after filing an initial motion and receiving a responsive pleading must first seek, and obtain, leave to file the reply. This is because, as § 2.323(c) states, [t]he moving party has no right to reply, except as permitted by the Secretary, the Assistant Secretary, or the presiding officer. Leave to reply may be granted only in compelling circumstances, such as where the moving party demonstrates that it could not reasonably have anticipated the arguments to which it seeks leave to reply. 10 C.F.R.

§ 2.323(c) (emphasis added). FOTC/NEC has not demonstrated compelling circumstances exist because it has not demonstrated that the Staff and NextEras objections to aspects of FOTC/NECs Supplement could not reasonably have been anticipated. The Board specifically authorized the Staff and NextEra to file objections to the Supplement and to raise the issue of whether the Board could consider any changes made consistent with the Commissions rules and case law. Tr. at 69-71. The Board also specifically noted that the Staff and NextEra may raise objections as to the substantive nature of any changes made in the Supplement. Id. at 170 3. In acknowledging the need and opportunity to object, the Board itself contemplated that the Staff and NextEra would file objections. Thus, FOTC/NEC should have anticipated that the Information (Dec. 6, 2010) (ADAMS Accession No. ML103400561); Friends/NEC Petition Supplement - : Declaration of Paul Blanch (Dec. 6, 2010) (ADAMS Accession No. 103400564); NRC Staffs Objections to the Friends of the Coast and New England Coalitions Supplement (Dec. 13, 2010)

(ADAMS Accession No. ML103470591); NextEra Energy Seabrook, LLCs Response Opposing NEC/Friends of the Coasts Supplement to Its Petition (Dec. 13, 2010) (ADAMS Accession No. ML103470704).

3 Specifically, the Board stated, the other parties will have seven days after receiving [the revised declaration] if they wish to object to any aspect of it presumably as going beyond the original filing other than what might be allowed under Commission precedent. Tr. at 170.

Staff and NextEra would in fact file such objections based upon the Commissions regulations and case law.

FOTC/NECs disagreements with the Staffs and NextEras arguments and conclusions as to the changes made in the Supplement do not amount to the compelling circumstances contemplated by 10 C.F.R. § 2.323(c). FOTC/NEC has not referenced any particular statement in the Staffs and NextEras pleadings that FOTC/NEC believes it could not have reasonably anticipated. Motion at 3-4. Instead, FOTC/NEC relies on a series of vague assertions to support its motion, such as broad statements that it could not have anticipated the Staffs and NextEras argument that the Supplement was analogous to a reply or that some of the revisions FOTC/NEC made to the Supplement were substantive. Id. But, such unsupported statements cannot constitute the demonstration of compelling circumstances necessary to justify leave to reply. 10 C.F.R. § 2.323(c).

Moreover, this Motion goes beyond what the Board specified and is not contemplated by the Commissions regulations. Under 10 C.F.R. § 2.309(h), unless otherwise specified by the Commission, the presiding officer, or the Board designated to rule on requests for hearing or petitions for leave to intervene, the pleadings in an NRC proceeding are limited to the petition for leave to intervene, an answer to the petition to intervene, and a reply to any answer. No other written answers or replies will be entertained. 10 C.F.R. § 2.309(h)(3). The Board specified that FOTC/NEC could file a revised declaration and that the Staff and NextEra could file objections to the revised declaration. See Tr. at 69-70; 170. No further pleadings were specified by the Board. Thus, the additional reply requested by FOTC/NEC is beyond what the Board specified and beyond what is contemplated by the Commissions rules. Consequently, the Board should not consider the proposed reply submitted by FOTC/NEC concurrently with this Motion.

CONCLUSION For the reasons stated above, the Staff respectfully requests that the Board deny FOTC/NECs Motion and give no consideration to FOTC/NECs proposed reply.

Respectfully submitted, Signed (electronically) by Emily Monteith Counsel for NRC Staff Office of the General Counsel Mail Stop: O-15D21 U.S. Nuclear Regulatory Commission Washington, DC 20555 Telephone: (301) 415-2718 E-mail: Emily.Monteith@nrc.gov

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

NextEra Energy, LLC ) Docket Nos. 50-443

)

(Seabrook Station, Unit 1) ) ASLBP No. 10-906-02-LR-BD01 CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing NRC STAFFS RESPONSE IN OPPOSITION TO FRIENDS OF THE COAST AND NEW ENGLAND COALITIONS MOTION FOR LEAVE TO REPLY, dated December 22, 2010, have been served upon the following by the Electronic Information Exchange, this 22nd day of December, 2010:

Office of the Secretary Dr. Richard E. Wardwell Attn: Rulemakings and Adjudications Staff Administrative Judge Mail Stop: O-16C1 Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission Mail Stop - T-3 F23 Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission E-mail: Hearing.Docket@nrc.gov Washington, DC 20555-0001 E-mail: Richard.Wardwell@nrc.gov Paul S. Ryerson, Chair Office of Commission Appellate Administrative Judge Adjudication Atomic Safety and Licensing Board Mail Stop: O-16C1 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: OCAAMAIL.Resource@nrc.gov E-mail: Paul.Ryerson@nrc.gov Dr. Michael F. Kennedy Hillary Cain, Law Clerk Administrative Judge Atomic Safety and Licensing Board Atomic Safety and Licensing Board Mail Stop: T-3F23 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: Hillary.cain@nrc.gov E-mail: Michael.Kennedy@nrc.gov

Steven Hamrick, Esq. Mitchell Ross, Esq.

NextEra Energy Seabrook, LLC Antonio Fernandez, Esq.

801 Pennsylvania Ave NW Suite 220 NextEra Energy Seabrook, LLC Washington, DC 20004 700 Universe Boulevard Steven.hamrick@fpl.com Juno Beach, FL 33408 E-mail: mitch.ross@fpl.com Raymond Shadis E-mail: antonio.fernandez@fpl.com Friends of the Coast New England Coalition Doug Bogen Post Office Box 98 Executive Director Edgecomb, Maine 04556 Seacoast Anti-Pollution League E-mail: shadis@prexar.com PO Box 1136 Portsmouth, NH 03802 E-mail: dbogen@metrocast.net Kurt Ehrenberg New Hampshire Sierra Club 40 N. Main Street Concord, NH 03301 E-mail: kurt.ehrenberg@sierraclub.org Michael A. Delaney, Esq.

K. Allen Brooks, Esq.

Peter Roth, Esq.

Office of the Attorney General 33 Capitol Street Concord, NH 03301 E-mail: michael.a.delaney@doj.nh.gov E-mail.k.allen.brooks@doj.nh.gov E-mail: peter.roth@doj.nh.gov Signed (electronically) by Emily Monteith Counsel for NRC Staff Office of the General Counsel Mail Stop: O-15D21 U.S. Nuclear Regulatory Commission Washington, DC 20555 Telephone: (301) 415-2718 E-mail: Emily.Monteith@nrc.gov