ML111360223

Answer of NextEra Energy Seabrook, LLC Opposing Motion to Permit Unauthorized Reply

ML111360223
Person / Time
Site:	Seabrook
Issue date:	05/16/2011
From:	Doris Lewis NextEra Energy Seabrook, Pillsbury, Winthrop, Shaw, Pittman, LLP
To:	NRC/OCM
SECY RAS
References
RAS 20280, 50-443-LR, ASLBP 10-906-02-LR-BD01
Download: ML111360223 (8)

Text

May 16, 2011 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of )

)

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

) ASLBP No. 10-906-02-LR (Seabrook Station, Unit 1) )

ANSWER OF NEXTERA ENERGY SEABROOK, LLC OPPOSING MOTION TO PERMIT UNAUTHORIZED REPLY NextEra Energy Seabrook, LLC (NextEra) hereby opposes Petitioners Motion for Modification of the Commissions April 19, 2011 Order to Permit a Consolidated Reply (May 6-9, 2011) (Motion), which was filed in this proceeding by Beyond Nuclear, the Seacoast Anti-Pollution League, and the New Hampshire Sierra Club on May 6, 2011, and also by the New England Coalition and Friends of the Coast that same day. The same Motion and accompanying Reply1 are apparently being filed in approximately twenty NRC licensing proceedings by some fifty individuals and organizations who, between April 14 and 18, 2011, filed with the Commission an Emergency Petition to Suspend all Pending Licensing Decisions and Related Rulemaking Decisions Pending Investigation of Lessons Learned from the Fukushima Daiichi Nuclear Power Station Accident (Petition).2 The Motion asks the 1

Petitioners Reply to Responses to Emergency Petition to Suspend all Pending Reactor Licensing Decisions and Related Rulemaking Decisions Pending Investigation of Lessons Learned From Fukushima Daiichi Nuclear Power Station Accident (May 6-9, 2011) (Reply).

2 The Petition requests that the Commission take a two-page list of actions, which can be summarized as including:

1) suspension of all decisions pending completion of the NRCs review of the Fukushima accident; 2) suspension of all proceedings, hearings or opportunities for public comment on any issue considered in that review; 3) performance of an environmental analysis of the accident; 4) performance of a safety analysis of the accidents regulatory implications; 5) establishment of procedures and a timetable for raising of new issues in pending licensing proceedings; 6) suspension of all decisions and proceedings pending the outcome of any independent Congressional, Presidential or NRC investigations; and 7) request for a Presidential investigation.

Commission to allow a consolidated reply to the answers that were filed opposing the Petition.3 The Motion should be denied, because neither the Commissions April 19, 2011 Order nor the Commissions rules allow replies, and the Motion does not make the requisite showing of compelling circumstances to overcome the general prohibition against replies.

On April 19, 2011, the Secretary issued an Order (Order) that set a schedule for further briefing in connection with the Petition. Order at 1. The Order directed that (1) [a] ny supplements to the petition may be filed no later than Thursday, April 21, 2011 (id. at 1-2, footnote omitted) and (2) that [a]ny person may file an answer to the petition, or a brief amicus curiae, no later than Monday, May 2, 2011. Id. at 2. The Order does not authorize any additional filings relating to the Petition.

Likewise, the Commissions Rules of Practice do not authorize a reply. In particular, 10 C.F.R. § 2.323(c) provides:

The moving party has no right to reply, except as permitted by the Secretary, the Assistant Secretary, or the presiding officer. Permission 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).

The Motion acknowledges that the standards in 10 C.F.R. § 2.323(c) govern the disposition of the Motion. Motion at 3. However, the Motion does not meet these standards. It makes no showing of compelling circumstances that would warrant allowing a reply.

A Declaration of Dr. Arjun Makhijani in Support of Emergency Petition to Suspend all Pending Reactor Licensing Decisions and Relating Rulemaking Decisions Pending Investigation of Lessons Learned from Fukushima Daiichi Nuclear Power Station Accident (April 19, 2011) (Makhijani Declaration) was filed in this proceeding on April 20, 2011. The Makhijani Declaration was filed as well in other proceedings.

3 Responses to the Petition were filed by NextEra, a number of other license applicants, the NRC Staff, the Nuclear Energy Institute, and the Commonwealth of Massachusetts (filed in the Pilgrim license renewal proceeding only).

See Motion at (unnumbered) page 2, note 1. All responses, except that of Massachusetts, opposed the relief sought in the Petition.

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First, the Motion claims that the Fukushima accident raises unprecedented technical and legal issues for which there is very little precedent in NRC jurisprudence. Id. There is in fact substantial Commission precedent on the standards that the Commission applies to petitions to suspend proceedings, including very similar petitions that were filed after 9/11.4 The Petition simply ignored that case law and standards. The Motion now fails to demonstrate why the petitioners should now be entitled to a second bite at the apple to address those standards.

Second, the Motion argues that the petitioners could not have anticipated that the Petition would be characterized as a motion to suspend proceedings. Motion at 3-4. There is no merit to this assertion. Commission case law clearly holds that petitions to suspend proceedings are treated by the Commission as motions under 10 C.F.R. § 2.323. Oyster Creek, CLI-08-23, 68 N.R.C. at 476; Diablo Canyon, CLI-02-23 56 N.R.C. at 237. Moreover, the Motion itself treats the Petition as a motion, by invoking the provisions of 10 C.F.R. § 2.323(c) (applicable only to motions) to justify the filing a reply.

Further, Petition clearly seeks suspension of proceedings. In particular, the Petition asks the Commission to [s]uspend all proceedings with respect to any reactor-related or spent fuel pool-related issues that have been identified for investigation in the Task Forces Charter and with regard to any other issues that the Task Force subsequently may identify as significant in the course of its investigation. Petition at 2, 28. The Petition also states, The proceedings should be suspended pending completion of the Task Forces investigation into those issues and 4

Private Fuel Storage, LLC, (Independent Spent Fuel Storage Installation), CLI-01-26, 54 N.R.C. 376, 380 (2001);

Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI 27, 54 N.R.C. 385, 389-90 (2001); Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), CLI-01-28, 54 N.R.C. 393, 399 (2001), reconsideration denied, CLI-02-2, 55 N.R.C. 5 (2002); Pacific Gas & Electric Co. (Diablo Canyon Power Plant Independent Spent Fuel Storage Installation),

CLI-02-23 56 N.R.C. 230, 237 (2002); AmerGen Energy Co., LLC et al. (Oyster Creek Nuclear Generating Station et al.), CLI-08-23, 68 N.R.C. 461, 476 (2008); Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), CLI-00-20, 52 N.R.C. 151, 173-74 (2000); Entergy Nuclear Vermont Yankee LLC (Vermont Yankee Nuclear Power Station), CLI-10-17, 72 N.R.C. __, slip op. at 8-10 (July 8, 2010).

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the issuance of any proposed regulatory decisions and/or environmental analyses of those issues. Id. at 2, 28-29. In addition, the Petition asks the Commission to suspend all decisions and proceedings regarding all licensing and related rulemaking proceedings, as discussed above, pending the outcome of any independent investigation of the Fukushima accident. . . . Id. at 3.

It is inexplicable how the Motion can now claim that the Petition did not seek the suspension of licensing proceedings.

In any event, suspending decisions and suspending proceedings appears to be a distinction without a difference. Any request to suspend a proceeding or suspend a decision in a proceeding would be considered a motion, as it is asking the Commission to take some action in a proceeding.5 Further, the Commission has treated a request to stay consideration of a petition for review (i.e., a request to withhold a decision) as at bottom seeking a suspension of a proceeding. Vermont Yankee, CLI-10-17, slip op. at 8-10.

Third, the Motion claims that the petitioners also could not have anticipated the numerous technical arguments that the Responses have made in challenging the validity of Dr.

Makhijanis supporting declaration regarding the new and significant information demonstrated by the Fukushima accident, or that the Responses would fail to provide expert support for their technical arguments. Motion at 4. The petitioners obviously should have anticipated that the responses to the Petition would point out the weaknesses in and insufficiency of Dr. Makhijanis arguments. That NextEra and the other applicants responding to the Petition found it 5

See Blacks Law Dictionary (6th Ed. 1990) (defining a motion as an application made to a court or judge for purposes of obtaining a rule or order directing some act to be done in favor of the applicant.).

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unnecessary to support their observations and arguments with a declaration6 provides no grounds for a reply.

Finally, the Motion claims that the petitioners could not have anticipated the ways in which NextEra, the NRC Staff, and others respondents replied to petitioners NEPA arguments.

Id. Again, that NextEra and others might respond to and disagree with petitioners NEPA arguments cannot possibly be claimed to be unanticipated, particularly by the experienced intervernors in the Seabrook license renewal proceeding. Moreover, NextEras discussion of the standards for considering new and significant information was based on well-established, cited case law. The legal arguments in the responses do not become unanticipated simply because petitioners failed to research, or disagree with, the law and precedent. The petitioners had the opportunity to raise every relevant legal argument in support of their Petition in the first instance.

It was therefore incumbent on them to identify applicable precedents and distinguish them in their Petition and not in a reply. See Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1), CLI-91-8, 33 N.R.C. 461, 469 (1991); U.S. Department of Energy (High-Level Waste Repository: Pre-Application Matters, Advisory PAPO Board), Memorandum and Order (Denying Petition to Certify Issue to the Commission and Motion for Leave to File Replies) at 4-5 (Dec. 22, 2008) (ADAMS Accession No. ML083570498).

6 One does not need a countering declaration to point out that the assertions in Dr. Makhijanis declaration raised issues beyond the scope of license renewal proceedings, were speculative and unsupported by facts, and failed to provide any discussion specific to the proceedings that the Petition sought to disrupt.

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For the above stated reasons, the Commission should deny the Motion and disregard the Reply attached to it.

Respectfully submitted

/Signed electronically by/

Mitchell S. Ross David R. Lewis NextEra Energy Seabrook, LLC Pillsbury Winthrop Shaw Pittman LLP 700 Universe Blvd. 2300 N Street, NW Juno Beach, FL 33408 Washington, DC 20037-1122 Telephone: 561-691-7126 Tel. (202) 663-8474 E-mail: mitch.ross@fpl.com Email: david.lewis@pillsburylaw.com Steven C. Hamrick Counsel for NextEra Energy Seabrook, LLC NextEra Energy Seabrook, LLC 801 Pennsylvania Avenue, NW, Suite 220 Washington, DC 20004 Telephone: 202-349-3496 E-mail: steven.hamrick@fpl.com Dated: May 16, 2011 6

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of )

)

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

) ASLBP No. 10-906-02-LR (Seabrook Station, Unit 1) )

CERTIFICATE OF SERVICE I hereby certify that a copy of Answer of NextEra Energy Seabrook, LLC Opposing Motion to Permit Unauthorized Reply, dated May 16, 2011, was provided to the Electronic Information Exchange for service on the individuals listed below, this 16th day of May, 2011.

Secretary Office of Commission Appellate Attn: Rulemakings and Adjudications Staff Adjudication U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 hearingdocket@nrc.gov E-mail: OCAAMAIL@nrc.gov Administrative Judge Administrative Judge Paul S. Ryerson, Esq., Chair Dr. Richard E. Wardwell Atomic Safety and Licensing Board Atomic Safety and Licensing Board U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 Email: psr1@nrc.gov Email: richard.wardwell@nrc.gov Administrative Judge Mary Spencer, Esq.

Dr. Michael Kennedy Maxwell C. Smith, Esq.

Atomic Safety and Licensing Board Office of the General Counsel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 Email: michael.kennedy@nrc.gov E-mail: mary.spencer@nrc.gov; maxwell.smith@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 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.com Portsmouth, NH 03802 E-mail: dbogen@metrocast.net Matthew Brock, Esq.

Assistant Attorney General Environmental Protection Division Office of the Attorney General One Ashburton Place, 18th Floor Boston, Massachusetts 02108 matthew.brock@state.ma.us

/Signed electronically by/

David R. Lewis 2