ML12349A115

Nextera'S Answer Opposing New England Coalition and Friends of the Coast'S Notice of Appeal

ML12349A115
Person / Time
Site:	Seabrook
Issue date:	12/14/2012
From:	Doris Lewis NextEra Energy Seabrook, Pillsbury, Winthrop, Shaw, Pittman, LLP
To:	NRC/OCM
SECY RAS
References
50-443-LR, ASLBP 10-906-02-LR-BD01
Download: ML12349A115 (13)

Text

December 14, 2012 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of )

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

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

NEXTERAS ANSWER OPPOSING NEW ENGLAND COALITION AND FRIENDS OF THE COASTS NOTICE OF APPEAL I. INTRODUCTION Pursuant to 10 C.F.R. § 2.341(b)(3), NextEra Energy Seabrook, LLC (NextEra) hereby answers and opposes the Notice of Appeal1 submitted by the New England Coalition and Friends of the Coast (NEC/FOTC) on November 19, 2012 in the license renewal proceeding for Seabrook Station, Unit 1 (Seabrook).2 NEC/FOTC seek review of the Atomic Safety and Licensing Boards November 8, 2012 Memorandum and Order (Denying Motion for Leave to File New Contention) (M&O), which rejected as untimely a proffered contention relating to alkali-silica reaction (ASR). NEC/FOTCs appeal of this ruling should be denied because it is interlocutory, and NEC/FOTC fails to address the standards in 10 C.F.R. § 2.341(f) governing such review. Further, NEC/FOTC fails to identify any error in the Boards ruling.

1 New England Coalition and Friends of the Coasts Notice of Appeal of ASLBP No. 10-906-02-LR-BD01 to NextEra Energy Seabrook, LLC (Nov. 19, 2012) (Notice of Appeal). The Notice of Appeal is accompanied by Brief in Support of the New England Coalition and Friends of the Coast Appeal of ASLBP No. 10-906-02-LR-BD01 (Denying Motion for Leave to File New Contention) (Nov. 19, 2012) (NEC/FOTC Brief).

2 On September 4, 2012, amendments to the NRCs Rules of Practice became effective. See Amendments to Adjudicatory Process Rules and Related Regulations, 77 Fed. Reg. 46,562 (Aug.3, 2012). Because the Licensing Boards Memorandum and Order and FOTC/NECs Notice of Appeal thereof arose after the effective date of these amendments, the timing of responses is governed by the amended rules, which allow 25 days to answer an appeal (under either 10 C.F.R. § 2.311 or 10 C.F.R. § 2.341).

II. STATEMENT OF FACTS In May 2010, NextEra submitted its Application to the NRC for a renewed operating license (LRA) for Seabrook Station. Subsequently, in LBP-11-2, the Board granted NEC/FOTCs petition to intervene and admitted NEC/FOTC as a party in this proceeding, accepting three contentions for litigation. NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), LBP-11-2, 73 N.R.C. 28, 79 (2011). In addition, the Board issued an Initial Scheduling Order requiring any proposed new contention to be filed within thirty days of the date when the new and material information on which it is based first becomes available, in order to be deemed timely. Initial Scheduling Order (Apr. 4, 2011) at 4.

In CLI-12-05, the Commission reversed the Boards ruling on the admissibility of two of NEC/FOTCs admitted contentions, but declined to disturb the Boards admittance of portions of the third (relating to severe accident mitigation alternatives). NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-05, 75 N.R.C. __, slip op. at 18, 27, 33, 36, 47 (Mar. 8, 2012). As a result, NEC/FOTC remains a party whose petition to intervene has been granted in this proceeding.

In September 2010, NextEra identified the presence of ASR through petrographic examination of concrete core borings performed at NextEras own initiative. NextEra then engaged highly qualified subject matter experts from the University of Texas, University of New Hampshire, Electric Power Research Institute, and several engineering firms to assist in assessing the concrete structures impacted by ASR. Over the next eighteen months, NextEra and the NRC Staff engaged in a series of transparent interactions, including audits, inspections, public meetings and requests for information. This expert review and interactions with the NRC 2

Staff culminated with NextEras submittal on May 16, 2012 of an ASR Monitoring Program, which augments the Structures Monitoring Program in the LRA.3 On July 9, 2012, nearly two months after NextEra submitted its ASR Monitoring Program, NEC/FOTC sent a message informing the NRC Staff and NextEra that NEC/FOTC was considering filing several new contentions, including one addressing ASR. See Attachment to NextEra Answer to ASR Contention. Therein, NEC/FOTC stated, The timing of this contention . . . is founded on our determination that that there is now accrued sufficient information to provide a reasonable fact basis for the contention(s). Id. NEC/FOTC, however, did not submit its proposed contention at that time. Instead, it waited another month and a half before moving to file its new contention on ASR.4 NEC/FOTC argued that this contention should be considered timely because the ASR Monitoring Program (submitted more than three months earlier) had been discussed at a July 10, 2012 meeting of the ACRS License Renewal Subcommittee, a transcript of which had been made available on July 26, 2012.5 The Licensing Board rejected NEC/FOTCs attempt to use the ACRS Transcript as justification for waiting more than three months after NextEras submittal of the ASR Monitoring Program to submit the proposed contention. As a general matter, the Board observed:

Here, much of the Staffs testimony, appearing in the transcript of the July 10, 2012 ACRS meeting regarding ASR issues at Seabrook, merely summarizes opinions and information that were available much earlier in the Staffs requests 3

The discovery and extensive evaluation of ASR, including the many interactions with the NRC Staff, are described in greater detail in NextEras Answer Opposing Admission of Contention Concerning Alkali-Silica Reaction (Sept. 21, 2012) at 3-15 (NextEra Answer to ASR Contention).

4 Friends of the Coast and New England Coalitions Motion for Leave to File a New Contention Concerning NextEra Energy Seabrooks Amendment of its Aging Management Program for Safety-Related Structures (Aug.

27, 2012) (NEC/FOTC Motion).

5 ACRS PLR Subcommittee Transcript (July 10, 2012) (ADAMS Accession No. ML122070401) (ACRS Transcript).

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for additional information and in other correspondence with the Applicant.

Recently, in very similar circumstances, the Commission has specifically ruled that a party may not use the ACRS meeting, or its transcript, as an artificial bridge to extend the time in which a contention could be filed. Intervenors cannot defend their failure to challenge the Applicants May 16, 2012 supplement any earlier on the ground that they did not know about ASR issues at Seabrook.

ASR problems at Seabrook had been in the public record for some time by that point.

M&O at 5-6 (footnote omitted). The Board then proceeded to carefully scrutinize each of NEC/FOTCs specific claims (eight assertions identified in the bases for the contention), finding that, in each case, the claim could have been raised earlier (and, in most cases, was not even discussed in the ACRS Transcript). See id. at 8-12.

III. ARGUMENT A. NEC/FOTCs Appeal Impermissibly Seeks Interlocutory Review NEC/FOTCs appeal should be denied because it impermissibly seeks interlocutory review. While NEC/FOTC purports to appeal under 10 C.F.R. § 2.311 (see Notice of Appeal; see also NEC/FOTC Brief at 6), that section of the NRC rules is inapplicable. 10 C.F.R. § 2.311 only allows appeals with respect to a request for hearing, a petition to intervene, or a request for access to sensitive information. See 10 C.F.R. § 2.311(a)(1)-(3). This provision does not allow appeal of an order denying a motion by an already admitted party (i.e., a party whose hearing request and intervention petition has already been granted) to add a new contention.

[NRC] rules permit appeals of rejected contentions only where a petitioner claims that the Board wrongly rejected all contentions. . . . Section 2.311 does not provide for interlocutory appeals by an admitted intervenor. . . .

Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-07-2, 65 N.R.C. 10, 11 (2007) (emphasis added; citations omitted). Thus, Under longstanding Commission precedent, once a petition to intervene and request for hearing has been granted and contentions are admitted for hearing, appeals of Board rulings on new or amended contentions are treated under section 2.341(f)(2) . . . .

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South Texas Project Nuclear Operating Co. (South Texas Project, Units 3 and 4), CLI-10-16, 71 N.R.C. 486, 490 (2010).

Consequently, NEC/FOTCs appeal is governed by 10 C.F.R. § 2.341(f)(2), which permits interlocutory review only if a petition for review is filed in the form prescribed by 10 C.F.R. § 2.341(b) and only if the petitioning party demonstrates that the issue for which the party seeks interlocutory review: (i) Threatens the party adversely affected by it with immediate and serious irreparable impact which, as a practical matter, could not be alleviated through a petition for review of the presiding officer's final decision; or (ii) Affects the basic structure of the proceeding in a pervasive or unusual manner. 10 C.F.R. § 2.341(f)(2). As the Commission has explained, interlocutory review will only be granted under these extraordinary circumstances because of the Commissions disfavor of piecemeal appeals during ongoing licensing board proceedings. South Texas Project, CLI-10-16, 71 N.R.C. at 489-90.

Here, NEC/FOTC has not addressed any of the applicable standards in 10 C.F.R. § 2.341.

Its appeal is not in the form prescribed by 10 C.F.R. § 2.341(b) and does not address any of the considerations in 10 C.F.R. § 2.341(b)(4)(i)-(iv) for granting discretionary review. More importantly, NEC/FOTCs does not address the factors in 10 C.F.R. § 2.341(f)(2)(i)-(ii) for granting interlocutory review. NEC/FOTC does not demonstrate - or even claim - that the Boards Memorandum and Order threatens NEC/FOTC with immediate and serious irreparable injury or affects the proceeding in a pervasive or unusual manner.

Nor could it. Obviously, the Boards ruling can be reviewed at the end of this proceeding without any injury to NEC/FOTC, and the ruling that NEC/FOTCs contention was untimely cannot be said to affect the proceeding in any pervasive or unusual manner. As the Commission has repeatedly held, the rejection or admission of a contention, where the Petitioner has been 5

admitted as a party and has other contentions pending, neither constitutes serious and irreparable impact, nor affects the basic structure of the proceeding in a pervasive and unusual manner.

Crow Butte Resources, Inc. (License Renewal for In Situ Leach Facility, Crawford, Nebraska),

CLI-09-09, 69 N.R.C. 331, 365 (2009).6 B. NEC/FOTC Identifies No Error in the Licensing Boards Ruling Apart from its failure to satisfy any of the criteria for discretionary or interlocutory review, NEC/FOTC does not identify any error in the Licensing Boards Memorandum and Order. As NEC/FOTC recognizes (NEC/FOTC Brief at 9-10), the Commission gives substantial deference to a Board's rulings on contention admissibility in the absence of clear error or abuse of discretion. Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4),

CLI-09-16, 70 N.R.C. 33, 35 (2009). Here, where (1) NEC/FOTC ignored the Boards Initial Scheduling Order by waiting more than three months before challenging the ASR monitoring program, (2) NEC/FOTC had expressly admitted over a month and a half earlier that it had sufficient information to provide the basis for a contention, and (3) the Board found that much testimony before the ACRS Subcommittee merely summarizes opinions and information that were available much earlier in the Staffs requests for additional information and in other correspondence with the Applicant (M&O at 5), the Board clearly acted reasonably and well within its discretion in rejecting NEC/FOTCs contention as untimely.

NEC/FOTC fallaciously argues that the Board failed to distinguish the new and material NRC staff testimony on which NEC/FOTC was relying from the old, inadmissible and therefore immaterial information. NEC/FOTC Brief at 10. That information available 6

See also Entergy Nuclear Operations, Inc. (Indian Point, CLI-08-7, 67 N.R.C. 187, 191-92 (2008); Pilgrim, CLI-07-2, 65 N.R.C. at 11; Exelon Generation Co., LLC (Early Site Permit for the Clinton ESP Site), CLI-04-31, 60 N.R.C. 461, 466-67 (2004); Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), CLI-00-2, 51 N.R.C. 77, 79-80 (2000).

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much earlier in the RAIs and correspondence was old merely underscores the untimeliness of NEC/FOTCs contentions (i.e., that NEC/FOTC was capable of challenging the ASR Monitoring Program within 30 days of its submittal), and there is no requirement that contentions be based on admissible information.

Here, on its face, the new contention challenged the May 16, 2012 ASR Monitoring Program, and the Board examined previous RAIs and correspondence only to determine whether NEC/FOTCs references to the ACRS Transcript (which NEC/FOTC claimed was new information providing the basis for its dispute with the ASR Monitoring Program - see NEC/FOTC Motion at 17) actually contained any information not previously available that might justify NEC/FOTCs over three-month delay in challenging that program. See M&O at 4-5.

Because the NRC rules allow new contentions after the initial filing only on a showing that they are based on new information that was not previously available and is materially different from than information previously available (see 10 C.F.R. § 2.309(f)(2)(i)-(ii) (2012) (emphasis added)),7 the Licensing Board was obviously correct in doing so. NEC/FOTCs superficial argument that the ACRS Transcript was new and previous RAIs and correspondence was old is thus wide of the mark. What was pertinent under the NRC rules was that the statements in the ACRS Transcript on which NEC/FOTC sought to rely were not materially different from those in prior RAIs and correspondence, and therefore, could not provide good cause for the new contention.

Further, there is no requirement in the NRC rules that only admissible information can be used to support or provide good cause for a new contention. See Texas Utilities Electric Co.

(Comanche Peak Steam Electric Station, Unit 1), ALAB- 868, 25 N.R.C. 912, 931 (1987) (The 7

Under the recent amendments to the Rules of Practice, these standards are now in 10 C.F.R. § 2.309(c), but have not changed.

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regulation does not require the detailing of admissible evidence as support for a contention)

(footnote omitted). Similarly, NEC/FOTC is wrong in asserting that RAIs and responses are not deemed admissible as basis documents by NRC. NEC/FOTC Brief at 13. The Calvert Cliffs and Oconee decisions cited by NEC/FOTC for this proposition (id. n.9) address whether the mere posing of questions by the NRC Staff means that an application is incomplete.

Baltimore Gas & Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-25, 48 N.R.C. 325, 349 (1998); Duke Energy Corp., (Oconee Nuclear Station, Units 1, 2, and 3),

CLI-99-11, 49 N.R.C. 328, 336, 341 (1999). As the Commission made clear, [i]f a petitioner concludes that a staff RAI or an applicant RAI response raises a legitimate question about the adequacy of the application, the petitioner is free to posit that issue as a new or amended contention, subject to complying with the late-filing standards of section 2.714(a). Calvert Cliffs, CLI-98-25, 48 N.R.C. at 350.

[RAIs] can, for instance, provide a jumping-off point for the petitioners to focus upon particular parts of the application and thereby develop potential issues of concern. The extent to which an RAI might help support a contention must be considered on a case by case basis, but the Commission expects that in almost all instances a petitioner must go beyond merely quoting an RAI to justify admission of a contention into the proceeding.

Oconee, CLI-99-11, 49 N.R.C. at 341. Thus, an intervenor may use an RAI to show a genuine dispute with the applicant, as long as it makes the issue of concern its own by developing a fact-based argument that actually and specifically challenges the application. Id.

Further, NEC/FOTC ignore the fact that the Board found most of NEC/FOTCs claims were not even supported by any discussion in the ACRS Transcript. See M&O at 9-11 (claims related to Inaccessible or Buried Concrete, ASR-Aggravating Factors, Inspector Qualifications, No Active Component to Arrest, Mitigate, or Manage Growth of ASR, and Inspection Intervals not supported by the ACRS Transcript). Thus, NEC/FOTCs attempt to 8

rely on the ACRS Subcommittee Transcript to excuse its tardiness in challenging the ASR Monitoring Program was clearly pretextual.

Indeed, of the eight claims that NEC/FOTC offered as the bases for its contention, the only one even mentioned in the Argument section of NEC/FOTCs Brief is NEC/FOTCs claim concerning visual inspections. See NEC/FOTC Brief at 11-13.8 With respect to this issue, the Board found that there were at least three prior documents indicating that, while visual inspections can signal that ASR is occurring, additional examination is required to confirm it and to understand its impact on structures. See M&O at 8-9 & n.25 (referring to NRC Information Notice 2011-20 (Nov. 18, 2011), a June 29, 2011 RAI, and a 2010 Report by the Federal Highway Administration (extensively used by the Applicant and cited in both the ASR Monitoring Program and the NRC Information Notice).

NEC/FOTC now attempts to argue that these documents were not identical in meaning or materiality to the Staff testimony before the ACRS because the documents explain that ASR cannot be confirmed by visual inspection alone, while the Staff testimony is that visual inspection cannot be relied upon to rule out ASR.9 NEC/FOTC Brief at 11-12. Even if this 8

NEC/FOTC states that NextEras proposed aging management relies on visual screening by entry level or non-expert employees. NEC/FOTC Brief at 11. This assertion is a fabrication that has no support in the record. As the answers of both NextEra and the NRC Staff indicated, NextEras aging management program requires individuals conducting inspections to be qualified in accordance with ACI 349.3R-96, Evaluation of Existing Nuclear Safety Related Structures; to possess expertise in the design and inspection of steel, concrete and masonry structures; and to either be licensed Professional Engineers experienced in this area or work under the direction of a licensed Professional Engineer experienced in this area. See NextEras Answer to ASR Contention at 33; NRC Staffs Answer to Intervenors Motion for Leave to File New Contention Concerning Safety-Related Concrete Structures (Sept. 21, 2012) at 18, 37 & n.165.

9 NEC/FOTCs specific claim, however, was that [v]isual inspection of surface indications alone is not adequate

[to] gauge the status of internal chemical processes, such as ASR. NEC/FOTC Motion at 9. Further, the relevant portions of the ACRS Transcript that NEC/FOTC quoted when it proffered the proposed contention related to the potential need to confirm ASR through petrographic examination. See NEC/FOTC Motion at 12-

13. The ACRS Transcript did include statements by a member of the NRC Staff that visual examination cannot rule out the presence of ASR. ACRS Transcript at 170, 177. NEC/FOTC did not refer to these statements in its original contention. NEC/FOTC referred to one of these statements only in its reply after NextEra and the NRC Staff had mentioned it in their answers. Friends of the Coast and New England Coalitions Reply to NRC Staffs 9

tenuous distinction were valid (which it is not10), it would not provide good cause for NEC/FOTCs delay in challenging the ASR Monitoring Program because the ACRS Transcript clearly indicates that the inability to rule out ASR through visual inspection was common knowledge.

And it is a well-known fact that the visual examination cannot rule out the presence of ASR. You have to do some confirmatory tests. You can rule in and say yes, if you see pattern cracking and if you want to consider it ASR that's fine.

But you cannot rule in -- rule out the presence of ASR without petrographic examination. I checked with several researchers and that's what they told me about it.

ACRS Transcript at 170 (emphasis added). Thus, the statements by the NRC Staff during the ACRS meeting merely reflected information that was already well known and could have been previously ascertained by NEC/FOTC if it had made any effort to consult with experts or otherwise educate itself. Moreover, the Boards determination that the ACRS Transcript did not contain information materially different from that available in numerous documents that were publicly available before the ACRS presentation (M&O at 8) is the type of fact-specific question[] of contention admissibility of which the Board is the appropriate arbiter and for that reason the Commission should not second guess. Seabrook, CLI-12-05, slip op. at 33.

At bottom, NEC/FOTCs argument on appeal amounts to a claim that, when the ASR Monitoring Program was submitted, NEC/FOTC had no obligation to develop its own bases for Answer and to NextEras Answer to Intervenors Motion for Leave to File New Contention Concerning Safety Related Concrete Structures (Sept. 28, 2012) at 15.

10 NEC/FOTC take the NRC Staffs statement that out of context. After stating that visual inspection cannot rule out the presence of ASR, the NRC Staff immediately stated: You have to do some confirmatory tests. ACRS Transcript at 170. Thus, the NRC Staffs statement relates to, and cannot be divorced from, the need for confirmatory testing. Further, the Staffs statement related to whether NextEra had ruled out ASR as the cause of pattern cracking observed in two areas of the containment (see id. at 160-61, 170), which NextEra confirmed it had not (id. at 165-66). The NRC Staff stated that it had no concern with the use of visual inspection to rule in areas to be monitored for ASR. Id. at 170 (You can rule in and say yes, if you see pattern cracking and if you want to consider it ASR that's fine.). Indeed, the petrographic examination of core samples at Seabrook has shown that ASR will be worse on the surface. ACRS Transcript at 68-69, 115. See also NextEra Answer to ASR Contention at 28-29.

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challenging that program - no obligation to retain its own expert to review the program, no obligation to review information already on the docket, no obligation to review pertinent standards or literature - but, instead, could simply sit on its hands until the NRC Staff raised some question upon which NEC/FOTC could seize. Such a position is inconsistent with the Commissions long-held position that petitioners have an ironclad obligation to examine the publicly available documentary material pertaining to the facility in question with sufficient care to enable the petitioner to uncover any information that could serve as the foundation for a specific contention. Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-28, 56 N.R.C. 373, 386 (2002), quoting Final Rule, Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,170 (Aug. 11, 1989) (emphasis added). A new document does not provide good cause for a late-filed contention when the factual predicate for that contention

[was] available from other sources. . . . Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), CLI-83-19, 17 N.R.C.1041, 1043 (1983) (emphasis added). Consequently, a document that merely asks questions about information previously available, or offers opinions based on such previously available information, fails to provide the requisite good cause.

Consequently, an intervenor may not delay filing a contention until a document becomes available that collects, summarizes, or places in context the facts supporting that contention.

Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), CLI-10-27, 72 N.R.C. 481, 496 (2010). To conclude otherwise would turn on its head the regulatory requirement that new contentions be based on information . . . not previously available. Id.

(emphasis in original) (footnote omitted). Similarly, that an issue is discussed or highlighted in an ACRS meeting does not make a new contention timely, where the underlying analysis being 11

challenged was previously available. AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 N.R.C. 235, 274-75 (2009). Thus, as the Licensing Board correctly observed (M&O at 5-6), where discussion with the ACRS members did not alter the technical information available to [an intervenor], the Commission has previously reject[ed]

[an intervenors] attempt to use the ACRS meeting, or its transcript, as an artificial bridge to extend the time in which a contention could be filed. Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4), CLI-11-8,74 N.R.C. 214, 224-25, 228 (2011). The Commission should similarly reject NEC/FOTCs attempt to use the ACRS Transcript in this proceeding as an artificial bridge to excuse its more than three month delay in challenging the ASR Monitoring Program.

IV. CONCLUSION For all of the above stated reasons, NEC/FOTCs appeal should be denied.

Respectfully Submitted,

/Signed electronically by David R. Lewis/

David R. Lewis PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, NW Washington, DC 20037-1128 Tel. (202) 663-8474 Counsel for NextEra Energy Seabrook, LLC Dated: December 14, 2012 12

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

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

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

CERTIFICATE OF SERVICE I hereby certify that NextEras Answer Opposing New England Coalition and Friends of the Coasts Notice of Appeal, dated December 14, 2012, has been served through the E-Filing system on the participants in the above-captioned proceeding, this 14th day of December, 2012.

/Signed electronically by David R. Lewis/

David R. Lewis 13