ML12349A385

NRC Staff Answer to Fotc/Nec Appeal

ML12349A385
Person / Time
Site:	Seabrook
Issue date:	12/14/2012
From:	David Cylkowski, Amitava Ghosh, Matthew Smith NRC/OGC
To:	NRC/OCM
SECY RAS
References
RAS 23893, 50-443-LR, ASLBP 10-906-02-LR-BD01
Download: ML12349A385 (30)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

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

)

(Seabrook Station, Unit 1) )

NRC STAFF ANSWER TO FOTC/NEC APPEAL Maxwell C. Smith Anita Ghosh David M. Cylkowski Counsel for NRC Staff December 14, 2012

TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ........................................................................................................... ii INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 2 I. Procedural History ................................................................................................. 2 II. The NRCs Review of ASR at Seabrook ............................................................... 3 ARGUMENT ................................................................................................................................. 6 I. FOTC/NEC Has Not Identified the Applicable Standard for Interlocutory Review and Not Adequately Addressed the Controlling Standard ..................................... 7 II. The Boards Order Does Not Reflect an Error of Law or Abuse of Discretion ..... 10 A. The Board Properly Found the ASR Contention Untimely ............................ 10 B. None of FOTC/NECs Remaining Arguments Demonstrate Legal Error or Abuse of Discretion in the Boards Ruling ..................................................... 15

1. FOTC/NECs Claimed Practical or Legal Problems with the Boards Ruling Do Not Demonstrate Legal Error or Abuse of Discretion.............. 15

2. FOTC/NECs Request that the Commission Issue a Clarifying Opinion Regarding Its Timeliness Standards is Unnecessary and Does Not Demonstrate Error or Abuse of Discretion by the Board ......................... 18

3. FOTC/NEC Arguments Regarding the ASR Inspection Process Do Not Demonstrate Grounds for Overturning the Boards Ruling ...................... 20 CONCLUSION ............................................................................................................................ 23

ii TABLE OF AUTHORITIES Page ADMINISTRATIVE DECISIONS Commission Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111 (2006)............................................................................................................................................ 7 Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-07 69 NRC 235 (2009).......................................................................................................................................... 17 Baltimore Gas & Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-25, 48 NRC 325 (1998) ..................................................................................................................... 18 Dominion Nuclear Connecticut, Inc. (Millstone Power Station, Unit 3), CLI-08-17, 68 NRC 231 (2008).......................................................................................................................................... 10 Dr. James E. Bauer (Order Prohibiting Involvement in NRC Licensed Activities), CLI-95-3, 41 NRC 245 (1995) ....................................................................................................................... 9 Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-28, 56 NRC 373 (2002) ....................................................................................... 17 Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328 (1999).......................................................................................................................................... 18 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-08-2, 67 NRC 31 (2008)...................................................................................................................................... 9, 10 Entergy Nuclear Vermont Yankee, L.L.C. & Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-11-02, 73 NRC 333 (2011) ...................................................... 11, 15 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), CLI-09-6, 69 NRC 128 (2009) ............................................................................................................. 8, 9, 10 Exelon Generating Company, LLC (Early Site Permit for the Clinton ESP Site), CLI-04-31, 60 NRC 461 (2004) ............................................................................................................. 8, 9, 10 Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 and 4),

CLI-12-07, 75 NRC __ (Mar. 16, 2012) (slip op.) .......................................................................... 7 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-05, 75 NRC __

(Mar. 8, 2012) (slip op.)........................................................................................................... 2, 19 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), CLI-10-27, 72 NRC 481 (2010) ..................................................................................................................... 20 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-00-2,

iii 51 NRC 77 (2000) ......................................................................................................................... 8 South Texas Project Nuclear Operating Co. (South Texas Project, Units 3 and 4), CLI-09-18, 70 NRC 859 (2009) ............................................................................................................................ 7 Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4), CLI-11-08, 74 NRC ___ (Sept. 27, 2011) (slip op.) ............................................................................................ 11 Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18 (1998)...................................................................................................................................... 7, 19 Atomic Safety and Licensing Appeal Board Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-734, 18 NRC 11 (1983)...................................................................................................................................... 9, 10 Atomic Safety and Licensing Board Licensing Board Initial Scheduling Order (Apr. 4, 2011) (ADAMS Accession No. ML110940336) ................................................................................................................ 11, 16, 17 Memorandum and Order (Denying Motion for Leave to File New Contention)

(Nov. 8, 2012) ......................................................................................................................passim NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), LBP-11-02, 73 NRC 28 (2011) ... 2, 7 REGULATIONS 10 C.F.R. § 2.309(c)(2) ............................................................................................................... 15 10 C.F.R. § 2.311...................................................................................................................... 1, 7 10 C.F.R. § 2.341.......................................................................................................................... 1 10 C.F.R. § 2.341(f)(2) ........................................................................................................ 8, 9, 10 10 C.F.R. § 54.29(a)(1) ................................................................................................................. 6 MISCELLANEOUS Amendments to Adjudicatory Process Rules and Related Requirements, 77 Fed. Reg. 46562 (Aug. 3, 2012) ....................................................................................................................... 19, 20 Confirmatory Action Letter, Seabrook Station, Unit 1 - Information Related to Concrete Degradation Issues (May 16, 2012) (ADAMS Accession No. ML12125A172) ............................. 5 Letter from Mary B. Spencer, Counsel for the NRC Staff, to the Atomic Safety and Licensing Board Providing Changes to Projected Schedule for Completion of Safety Evaluations (July 14, 2011) (ADAMS Accession No. ML11195A034) ............................................................................ 5 Letter from Maxwell C. Smith, Counsel for the NRC Staff, to the Atomic Safety and Licensing

iv Board Providing Changes to Schedule for Site-Specific Environmental Impact Statement and Safety Evaluation Report (June 4, 2012) (ADAMS Accession No. ML12156A118) ..................... 5 Letter from Paul O. Freeman, Site Vice President, dated May 25, 2010, transmitting application for license renewal for Seabrook Station, Unit 1 (ADAMS Accession No. ML101590099) ........... 2 NRC Information Notice 2011-20: Concrete Degradation by Alkali-Silica Reaction (Nov. 18, 2011) (ADAMS Accession No. ML112241029) ........................................................... 3, 12, 21, 22 Request for Additional Information Related to the Review of the Seabrook Station License Renewal Application (June 29, 2011) (ADAMS Accession No. ML11178A338) ......... 4, 12, 13, 22 Request for Additional Information Related to the Review of the Seabrook Station License Renewal Application (TAC No ME4028) - Aging Management Programs (Nov. 18, 2010)

(ADAMS Accession No. ML103090558) ........................................................................... 3, 11, 15 Request for Additional Information Related to the Review of the Seabrook Station License Renewal Application (TAC No ME4028) (Mar. 17, 2011) (ADAMS Accession No. ML110350630) .............................................................................................................................. 3 Requests for Additional Information for the Review of the Seabrook Station, License Renewal Application - Set 19 (Sep. 14, 2012) (ADAMS Accession No. ML12250A707) ............................ 5 Safety Evaluation Report, With Open Items Related to the License Renewal of Seabrook Station (June 2012) (ADAMS Accession No. ML12160A374) .................................................................. 5 Schedule Revision for the Safety Review of the Seabrook Station License Renewal Application (TAC No. ME4028) (Jul. 12, 2011) (ADAMS Accession No. ML11178A365) ............................... 4 Seabrook Station, NextEra Energy Seabrook License Renewal Application - Structures Monitoring Program Supplement - Alkali Silica Reaction (ASR) Monitoring (May 16, 2012)

(ADAMS Accession No. ML12142A323) .................................................................... 5, 13, 14, 20 Seabrook Station - NRC Inspection Report 05000443/2011010 Related to Alkali-Silica Reaction Issue in Safety Related Structures (Mar. 26, 2012) (ADAMS Accession No. ML120480066) ...... 5 Seabrook Station, Response to Request for Additional Information, NextEra Energy Seabrook License Renewal Application, Aging Management Programs (Dec. 17, 2010) (ADAMS Accession No. ML103540534) ...................................................................................................... 3 Seabrook Station, Response to Request for Additional Information, NextEra Energy Seabrook License Renewal Application - Alkali Silica Reaction (ASR) (Mar. 30, 2012) (ADAMS Accession No. ML12094A725) ............................................................................................................... 14, 15 Seabrook Station, Response to Request for Additional Information, NextEra Energy Seabrook License Renewal Application Request for Additional Information - Set 19 (Nov. 2, 2012)

(ADAMS Accession No. ML12312A017) ...................................................................................... 5 Seabrook Station, Response to Request for Additional Information, NextEra Energy Seabrook License Renewal Application - Set 13 (Apr. 14, 2011) (ADAMS Accession No. ML11108A131) ....................................................................................................................... 4, 17

v Seabrook Station, Response to Request for Additional Information, NextEra Energy Seabrook License Renewal Application - Set 15 (Aug. 11, 2011) (ADAMS Accession No. ML11227A023) ............................................................................................................................. 4 Seabrook Station, Response to Request for Additional Information, NextEra Energy Seabrook License Renewal Application Supplemental Response - Alkali Silica Reaction (ASR)

(Mar. 30, 2012) (ADAMS Accession No. ML12094A364) ............................................................. 4 Transcript of Advisory Committee on Reactor Safety, Plant License Renewal Subcommittee (July 10, 2012) (ADAMS Accession No. ML122070401) .............................................. 3, 5, 20, 21 U.S. Department of Transportation Federal Highway Administration, Report on the Diagnosis, Prognosis, and Mitigation of Alkali-Silica Reaction in Transportation Structures (January 2010),

available at http://www.fhwa.dot.gov/ pavement/concrete/pubs/hif09004/hif09004.pdf ........ 12, 21

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

)

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

)

(Seabrook Station, Unit 1) )

NRC STAFF ANSWER TO FOTC/NEC APPEAL INTRODUCTION Pursuant to 10 C.F.R. ' 2.341(f)(2) and ' 2.341(b)(3), the staff of the U.S. Nuclear Regulatory Commission (Staff or NRC Staff) hereby files its answer in opposition to the New England Coalition and Friends of the Coasts (FOTC/NEC) appeal1 of the Atomic Safety and Licensing Boards (Board) November 8, 2012, order denying admission of the Alkali Silica Reaction (ASR) Contention.2 In its brief, FOTC/NEC asserts that the Commission should reverse the Boards decision to deny admission of this contention for hearing and find that the Petition was timely, provided adequate basis, and should have been, and should now be, admitted.3 For the reasons set forth below, FOTC/NECs appeal should be denied on the grounds that FOTC/NEC has neither met the criteria for interlocutory review nor identified any error or abuse of discretion in the Boards order. Although the effect of ASR on concrete 1

New England Coalition and Friends of the Coasts Notice of Appeal of ASLBP No.10-906 LR-BD01 to NextEra Energy Seabrook, LLC (Nov. 19, 2012); 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) (FOTC/NEC Appeal). NRC Regulations provide 25 days for responding to interlocutory appeals. 10 C.F.R. §§ 2.311, 2.341. Thus, this answer is timely.

2 Memorandum and Order (Denying Motion for Leave to File New Contention) (Nov. 8, 2012)

(ASR Order).

3 FOTC/NEC Appeal at 6.

structures is an important issue at Seabrook, one which the Staff continues to thoroughly review, the Board correctly found that FOTC/NEC raised its ASR claims too late under controlling NRC precedent.

BACKGROUND I. Procedural History This proceeding concerns the May 25, 2010 application of NextEra Energy Seabrook, LLC (NextEra or Applicant) to renew its operating license for Seabrook Station, Unit 1 (Seabrook) for an additional 20 years from the current expiration date of March 15, 2030.4 FOTC/NEC filed an initial petition to intervene on October 20, 2010.5 On February 15, 2011, the Board found that FOTC/NEC raised at least one admissible contention and admitted FOTC/NEC as a party to this proceeding.6 FOTC/NEC currently has a pending contention in this proceeding that challenges the adequacy of NextEras severe accident mitigation analysis.7 On August 27, 2012, FOTC/NEC submitted a new contention (ASR Contention)8 challenging NextEras aging management program for ASR at Seabrook during the license renewal period.9 On November 8, 2012, the Board issued an order (ASR Order) denying 4

Letter from Paul O. Freeman, Site Vice President, dated May 25, 2010, transmitting application for license renewal for Seabrook Station, Unit 1 (Agency Documents Access and Management System (ADAMS) Accession No. ML101590099) (LRA).

5 Friends of the Coast and New England Coalition Petition for Leave to Intervene, Request for Hearing, and Admission of Contentions (Oct. 20, 2010) (ADAMS Accession No. ML102940545)

(FOTC/NEC Initial Petition).

6 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), LBP-11-02, 73 NRC 28 (2011).

7 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-05, 75 NRC __, __ (Mar. 8, 2012) (slip op.).

8 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 Concrete Structures (Aug. 27, 2012) (ADAMS Accession No. ML12241A061) (ASR Contention).

9 Id. at 1-2.

ASR can occur in a moistened environment when aggregate in concrete contains reactive silica which reacts with alkali hydroxides in the cement paste. The reaction forms an alkali-silica gel, which can

admission of the proposed ASR Contention on timeliness grounds.10 On November 19, 2012, FOTC/NEC filed the instant interlocutory appeal before the Commission.11 As described in detail below, FOTC/NECs appeal should be denied because it does not meet the standards for interlocutory review.

II. The NRCs Review of ASR at Seabrook On November 18, 2010, the Staff sent NextEra a request for additional information (RAI) which noted that cracks due to Alkali-Silica Reaction (ASR) have been observed in different Seabrook plant concrete structures, including the concrete enclosure building.12 In its December 17, 2010 response, NextEra stated that, based on its inspection, it found no sign of detrimental cracking in the Containment Structure.13 Nonetheless, NextEra committed to perform a condition assessment.14 The NRC Staff responded with a follow-up RAI on March 17, 2011, which noted that NextEras response did not provide specific information on the planned condition assessment.15 absorb water and swell, causing internal stress in the concrete structure. In turn, that stress leads to cracking which may degrade the mechanical properties of concrete. NRC Information Notice 2011-20:

Concrete Degradation by Alkali-Silica Reaction, 2 (Nov. 18, 2011) (ADAMS Accession No. ML112241029) (NRC IN 2011-20); Transcript of Advisory Committee on Reactor Safety, Plant License Renewal Subcommittee, NRC Slides at 25 (July 10, 2012) (ADAMS Accession No. ML122070401)

(ACRS Transcript).

10 ASR Order at 2.

11 FOTC/NEC Appeal.

12 Request for Additional Information Related to the Review of the Seabrook Station License Renewal Application (TAC No ME4028) - Aging Management Programs, Enclosure at 10 (Nov. 18, 2010)

(ADAMS Accession No. ML103090558) (Nov. 2010 RAI).

13 Seabrook Station, Response to Request for Additional Information, NextEra Energy Seabrook License Renewal Application, Aging Management Programs, Enclosure 1 at 33 (Dec. 17, 2010) (ADAMS Accession No. ML103540534).

14 Id. NextEra indicated that the condition assessment would include confirmatory testing and evaluation of the Containment Structure concrete. Id.

15 Request for Additional Information Related to the Review of the Seabrook Station License Renewal Application (TAC No ME4028), Enclosure at 2 (Mar. 17, 2011) (ADAMS Accession No. ML110350630).

On April 14, 2011, NextEra responded and indicated that it would perform lab tests to determine how ASR propagates, issue an engineering evaluation of ASR at Seabrook, and update its Structures Monitoring Program in its license renewal application (LRA) accordingly.16 In response, the Staff issued a further RAI on June 29, 2011 that asked NextEra to provide detailed and comprehensive information regarding the planned approach to addressing ASR degradation throughout the site.17 The Staff also asked NextEra to justify its decision not to take core samples from the containment structure to monitor containment concrete.18 Additionally, the Staff informed NextEra that the NRC would extend its review of the LRA because NextEra had delayed providing aging management programs that include the evaluation of ASR.19 In an August 11, 2011 response, NextEra stated that the engineering evaluation, which it planned to complete in March 2012, would answer these questions.20 NextEra supplemented its responses on March 30, 2012.21 On May 16, 2012, NextEra supplemented its LRA to include a new aging management 16 Seabrook Station, Response to Request for Additional Information, NextEra Energy Seabrook License Renewal Application, Request for Additional Information - Set 13, Enclosure 1 at 6 (Apr. 14, 2011) (ADAMS Accession No. ML11108A131).

17 Request for Additional Information for the Review of the Seabrook Station License Renewal Application, Enclosure at 3 (June 29, 2011) (ADAMS Accession No. ML11178A338) (June 2011 RAI).

The Staff noted that the previous response lacked specific information about what tests (laboratory and in-situ) would be conducted and when, did not discuss how NextEra estimated or addressed possible reductions in concrete shear strength, and did not address the statistical validity and size of core samples taken. Id., Enclosure at 2.

18 Id., Enclosure at 5.

19 Schedule Revision for the Safety Review of the Seabrook Station License Renewal Application (TAC No. ME4028) (Jul. 12, 2011) (ADAMS Accession No. ML11178A365).

20 Seabrook Station, Response to Request for Additional Information, NextEra Energy Seabrook License Renewal Application, Request for Additional Information - Set 15, Enclosure 1 at 7, 12-13 (Aug.

11, 2011) (ADAMS Accession No. ML11227A023). NextEra indicated that this evaluation would discuss concrete degradation mechanisms, areas susceptible to ASR, the in-situ and lab concrete tests, and mitigation techniques. Id. at 12-13.

21 Seabrook Station, Response to Request for Additional Information, NextEra Energy Seabrook License Renewal Application Supplemental Response - Alkali Silica Reaction (ASR), (Mar. 30, 2012)

(ADAMS Accession No. ML12094A364) (March 2012 RAI Response).

program for ASR (ASR AMP).22 Shortly afterwards, the NRC Staff issued its Safety Evaluation Report with Open Items for Seabrook, which concluded that the Applicants plans to manage ASR did not meet all applicable regulatory requirements for license renewal, although the report did not consider the ASR AMP.23 Thereafter, on September 14, 2012, the Staff sent NextEra another set of RAIs, largely focused on the ASR AMP.24 On November 2, 2012, NextEra submitted its response to the Staffs latest set of RAIs.25 The NRC Staff is currently reviewing that response.26 In summary, the Staff has questioned NextEras plans to manage ASR at Seabrook since almost the beginning of this LRA review and has delayed its review to obtain adequate answers to those questions.27 In response, NextEra has altered its approach on several 22 Seabrook Station, NextEra Energy Seabrook License Renewal Application - Structures Monitoring Program Supplement - Alkali Silica Reaction (ASR) Monitoring, (May 16, 2012) (ADAMS Accession No. ML12142A323) (ASR AMP).

23 Safety Evaluation Report, With Open Items Related to the License Renewal of Seabrook Station (June 2012) (ADAMS Accession No. ML12160A374), at 6.

24 Requests for Additional Information for the Review of the Seabrook Station, License Renewal Application - Set 19 (Sep. 14, 2012) (ADAMS Accession No. ML12250A707).

25 Seabrook Station, Response to Request for Additional Information, NextEra Energy Seabrook License Renewal Application, Request for Additional Information - Set 19, (Nov. 2, 2012) (ADAMS Accession No. ML12312A017).

26 Additionally, the NRC has monitored NextEras treatment and analysis of ASR at Seabrook under the Reactor Oversight Process (ROP) since November of 2010. Seabrook Station - NRC Inspection Report 05000443/2011010 Related to Alkali-Silica Reaction Issue in Safety Related Structures, Enclosure at 1 (Mar. 26, 2012) (ADAMS Accession No. ML120480066) (ASR IR). The NRC has determined that the structures affected by ASR are currently capable of performing their safety-related functions. Confirmatory Action Letter, Seabrook Station, Unit 1 - Information Related to Concrete Degradation Issues, at 2 (May 16, 2012) (ADAMS Accession No. ML12125A172) (CAL). The NRC based this determination on (1) engineering conservatisms in design, (2) the lack of significant deformation, distortion, or displacement of structures, (3) the limited number of areas affected by ASR, and (4) ASRs slow progression at Seabrook combined with NextEras monitoring plans. Id.

Nonetheless, the NRC still has concerns associated with long term operability. ASR IR at 1. Thus, NextEra has committed to provide the NRC with substantially more information regarding ASR at Seabrook in the coming year. CAL at 2-3.

27 See Letter from Maxwell C. Smith, Counsel for the NRC Staff, to the Atomic Safety and Licensing Board Providing Changes to Schedule for Site-Specific Environmental Impact Statement and Safety Evaluation Report (June 4, 2012) (ADAMS Accession No. ML12156A118); Letter from Mary B.

Spencer, Counsel for the NRC Staff, to the Atomic Safety and Licensing Board Providing Changes to

occasions. Currently, the Staff does not believe that NextEras plans to manage ASR are adequate. The Staff will continue its review and will only renew the license if it concludes that NextEras ASR AMP will serve to adequately manage the effects of aging from ASR during the period of extended operation.28 ARGUMENT The Commission should deny the FOTC/NEC Appeal because it addresses an inapplicable legal standard for interlocutory review. NRC regulations provide for two forms of interlocutory review. Under 10 C.F.R. § 2.311, parties may file an interlocutory appeal of certain board rulings on initial intervention petitions based on a showing of clear error or abuse of discretion. All other interlocutory appeals must meet the requirements of 10 C.F.R. § 2.341(f)(2), which requires a showing of an irreparable injury or a pervasive and unusual effect on the proceeding. Although FOTC/NEC claims that § 2.311 governs this appeal, § 2.341(f)(2) is the correct standard because the subject of the appeal is not an initial intervention petition.

FOTC/NEC has not shown how it meets the more stringent requirements of § 2.341(f)(2).

Even if § 2.311 were the appropriate standard for review, FOTC/NEC has not shown a clear error or abuse of discretion on the part of the Board. Rather, the Board reasonably applied governing Commission precedent to determine that the ASR Contention was not timely.

None of FOTC/NECs arguments to the contrary demonstrate a clear error or an abuse of discretion on the Boards part. Consequently, FOTC/NECs appeal is not justified under either standard for interlocutory review.

Projected Schedule for Completion of Safety Evaluations (July 14, 2011) (ADAMS Accession No. ML11195A034).

28 10 C.F.R. § 54.29(a)(1).

I. FOTC/NEC Has Not Identified the Applicable Standard for Interlocutory Review and Not Adequately Addressed the Controlling Standard FOTC/NEC filed the instant appeal under 10 C.F.R. § 2.311(a) and (d).29 However, in CLI-12-07, the Commission stated that section 2.311 permits an appeal as of right on the question of whether an initial intervention petition should have been wholly denied, or alternatively, was granted improperly.30 As a general matter, contentions filed after the initial petition are not subject to appeal pursuant to section 2.311.31 Further, where an appeal involves a new contention filed after the initial intervention period, the Commission routinely applies 10 C.F.R. § 2.341.32 As discussed above, FOTC/NEC submitted its initial intervention petition on October 20, 2010,33 and the Board ruled on the initial petition on February 15, 2011,34 more than a year prior to FOTC/NECs filing of the new ASR Contention on August 27, 2012.

Given that FOTC/NEC did not submit the underlying ASR Contention in its initial intervention petition and FOTC/NEC currently has an admitted contention in this proceeding,35 the appropriate appellate review provision governing this appeal is 10 C.F.R. § 2.341.

29 FOTC/NEC Appeal at 1, 6.

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

CLI-12-07, 75 NRC __, __ (Mar. 16, 2012) (slip op. at 6) (emphasis added) (citing Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 23 (1998) (stating that 10 C.F.R. § 2.714a (now 10 C.F.R. § 2.311) allows an appeal of a ruling on contentions, only if (a) the order wholly denies a petition for leave to intervene (i.e., the order denies the petitioners standing or the admission of a petitioners contentions) or (b) a party other than the petitioner alleges that a petition for leave to intervene or a request for hearing should have been wholly denied)). See also Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 119 (2006).

31 South Texas Project Nuclear Operating Co. (South Texas Project, Units 3 and 4), CLI-09-18, 70 NRC 859, 862 (2009). In CLI-09-18, the Commission permitted a party to appeal a boards ruling on new contentions under section 2.311 where those contentions were filed before the board ruled on the initial petition to intervene. In the instant case, the Board has already ruled on the initial petition to intervene. See Seabrook, LBP-11-02, 73 NRC at 79. Thus, section 2.311 does not apply here.

32 E.g. Comanche Peak, CLI-12-07, 75 NRC __, __ (slip op. at 6).

33 See FOTC/NEC Initial Petition.

34 Seabrook, LBP-11-02, 73 NRC at 79.

35 See supra notes 6-7.

Under section 2.341(f)(2), petitions for interlocutory review will be granted only if the party demonstrates that the issue for which it 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.36 Interlocutory appellate review of licensing board orders is disfavored and will be undertaken as a discretionary matter only in the most extraordinary circumstances.37 As a general matter, disputes over board rulings on contention admissibility are not the types of errors that affect the basic structure of a proceeding in a pervasive or unusual manner.38 Rather, interlocutory rulings on contentions must abide by the end of the case before undergoing appellate review.39 Moreover, as the Commission has noted, if parties could successfully invoke interlocutory 36 10 C.F.R. ' 2.341(f)(2). At the end of the case, the Commission may grant a petition for review at its discretion under 10 C.F.R. § 2.341(b)(4), giving due weight to the existence of a substantial question with respect to one or more of the following considerations:

(i) A finding of material fact is clearly erroneous or in conflict with a finding as to the same fact in a different proceeding; (ii) A necessary legal conclusion is without governing precedent or is a departure from or contrary to established law; (iii) A substantial and important question of law, policy, or discretion has been raised; (iv) The conduct of the proceeding involved a prejudicial procedural error; or (v) Any other consideration which the Commission may deem to be in the public interest.

37 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), CLI-09-6, 69 NRC 128, 133-37 (2009).

38 See, e.g., Indian Point, CLI-09-06, 69 NRC at 136-37; Exelon Generating Company, LLC (Early Site Permit for the Clinton ESP Site), CLI-04-31, 60 NRC 461, 467 (2004).

39 Clinton, CLI-04-31, 60 NRC at 467 (citing Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-00-2, 51 NRC 77, 80 (2000) (None of our prior decisions has found the admission or denial of a contention, where the intervenor has other contentions pending in the proceeding, to be anything more than a routine interlocutory ruling not subject to immediate appellate review; such rulings must abide the end of the case. )).

review based merely on an assertion that the licensing board erred in admitting (or excluding) a contention, [the Commission would open] the floodgates to a potential deluge of interlocutory appeals from any number of participants who lose admissibility rulings.40 Rather, the Commission has clarified that the basic structure standard is meant to address disputes over the very nature of the hearing in a particular proceeding - for example, whether a licensing hearing should proceed in one step or in two - not to routine arguments over admitting particular contentions.41 Furthermore, absent a demonstration of irreparable harm or other compelling circumstances, the fact that legal error may have occurred does not of itself justify interlocutory appellate review in light of the longstanding Commission policy generally disfavoring such review.42 As a general matter, a legal error, standing alone, does not alter the basic structure of an ongoing proceeding; such errors can be raised on appeal after the final licensing board decision.43 Given that interlocutory review of licensing board decisions is generally disfavored, the threshold for the Commission to take interlocutory review of a decision under section 2.341(f)(2) is a high one and one that FOTC/NEC has not met. FOTC/NECs appeal should not be granted because FOTC/NEC has not demonstrated that it meets the criteria for interlocutory review under 10 C.F.R. ' 2.341(f)(2) or that it even addressed that standard. Specifically, FOTC/NEC has not shown how denial of the ASR Contention threatens it with immediate and serious irreparable impact, which could not be alleviated through a petition for review of the Boards final 40 Indian Point, CLI-09-06, 69 NRC at 137.

41 Clinton, CLI-04-31, 60 NRC at 467.

42 Public Service Co. of New Hampshire (Seabrook Station, Units 1 & 2), ALAB-734, 18 NRC 11, 15 (1983); Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-08-2, 67 NRC 31, 35 (2008).

43 Dr. James E. Bauer (Order Prohibiting Involvement in NRC Licensed Activities), CLI-95-3, 41 NRC 245, 246-47 (1995).

decision. Further, FOTC/NEC has not demonstrated that denial of admission of the ASR Contention affects the basic structure of the proceeding in a pervasive or unusual manner as required by 10 C.F.R. ' 2.341(f)(2). Rather, FOTC/NEC raises disputes over rulings on contention admissibility that do not justify interlocutory review under 10 C.F.R. § 2.341(f)(2).44 Further, the types of legal errors alleged by FOTC/NEC,45 absent a demonstration of irreparable harm or other compelling circumstances, constitute the types of legal errors that must await the end of the proceeding for appellate review.46 Thus, FOTC/NEC must wait until the end of the case, after the Board has made a final decision on all admitted pending contentions, before seeking appellate review of the ASR Contention.

II. The Boards Order Does Not Reflect an Error of Law or Abuse of Discretion Even if FOTC/NEC properly invoked § 2.311, this appeal lacks merit. Under § 2.311, The Commission gives substantial deference to Board conclusions on standing and contention admissibility unless the appeal points to an error of law or abuse of discretion.47 In this case, the Board properly applied Commission precedents to conclude that FOTC/NEC did not timely file the ASR Contention. Moreover, none of FOTC/NECs arguments on appeal establish that the Board committed a legal error or abuse of discretion in finding the ASR contention untimely.

Consequently, the Commission should decline to overturn the Boards decision.

A. The Board Properly Found the ASR Contention Untimely In rejecting the ASR Contention, the Board noted that its Initial Scheduling Order required parties to file contentions based on new information within 30 days of the availability of 44 See, e.g., Indian Point, CLI-09-06, 69 NRC at 136-37; Clinton, CLI-04-31, 60 NRC at 467.

45 FOTC/NEC Appeal at 6, 10.

46 Seabrook, ALAB-734, 18 NRC at 15; Pilgrim, CLI-08-2, 67 NRC at 35.

47 Dominion Nuclear Connecticut, Inc. (Millstone Power Station, Unit 3), CLI-08-17, 68 NRC 231, 234 (2008).

the information.48 FOTC/NEC argued that it met this deadline based on a July 26, 2012 ACRS Transcript in which the Staff discussed the ASR issue at Seabrook.49 Under well-established Commission precedent, recognized by the Board, [D]ocuments merely summarizing earlier documents or compiling preexisting, publicly available information into a single source do not constitute new information.50 Thus, the Board properly noted that the Commission had recently ruled in very similar circumstances . . . 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. 51 In light of these precedents, the Board reasonably examined whether each of the eight claims in the ASR Contention rested on genuinely new information in the ACRS Transcript.52 As discussed below, the Board found that each of the eight claims reflected information that had been available before the ACRS Transcript and predated the ASR Contention by more than 30 days.

1. Baseline Inspections The ASR Contention asserted that the Seabrook LRA did not provide a baseline for all affected structures from which to register and monitor trending.53 But, the Board noted that a November 18, 2010, RAI stated, A baseline quantitative concrete inspection of in-scope structures is necessary for monitoring and trending degradation during the period of extended operation. 54 Thus, the Board correctly found that information 48 ASR Order at 3 (citing Licensing Board Initial Scheduling Order, at 4 (Apr. 4, 2011) (ADAMS Accession No. ML110940336) (ISO)).

49 ASR Order at 4 (citing ASR Contention at 8).

50 ASR Order at 5 (quoting Entergy Nuclear Vermont Yankee, L.L.C. & Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-11-02, 73 NRC 333, 344 (2011)).

51 ASR Order at 5-6 (quoting Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4), CLI-11-08, 74 NRC ___, ___ (Sept. 27, 2011) (slip op. at 18)).

52 ASR Order at 5-12.

53 ASR Contention at 9.

54 ASR Order at 8 (quoting Nov. 2010 RAI, Enclosure at 17). The Board also noted that the RAI asked NextEra for plans on conducting a baseline inspection. Id.

establishing the importance of baseline inspections predated the ASR Contention by more than 30 days.55

2. Visual Inspections Next, the ASR Contention alleged, Visual inspection of surface indications alone is not [an] adequate gauge [of] the status of internal chemical processes such as ASR.56 In its order, the Board cited, among other documents, a 2011 NRC Information Notice which stated, ASR can be identified as a likely cause of degradation during visual inspection [but] can only be confirmed by optical microscopy performed as part of petrographic examination of concrete core samples. 57 As a result, the ASR Order reasonably concluded that claims on the limitations of visual inspections to detect ASR were untimely.58

3. Inaccessible or Buried Concrete The ASR Contention also claimed that NextEra did not adequately address ASR in inaccessible or buried concrete.59 However, the Board observed that the November 2010 RAI asked the Applicant to [e]xplain if/why the [core]

samples are representative of affected concrete throughout the plant, including foundations and the containment enclosure building. 60 Therefore, the Board rightly held that the Staff raised concerns on buried or inaccessible concrete well before FOTC/NEC filed the ASR Contention.61 55 Id.

56 ASR Contention at 9.

57 ASR Order at 8-9 (quoting NRC IN 2011-20 at 2-3). The Board also found that a June 2011 RAI and a report from the Federal Highway Administration contained similar information. Id. at 9 (citing June 2011 RAI, Enclosure at 5; U.S. Department of Transportation Federal Highway Administration, Report on the Diagnosis, Prognosis, and Mitigation of Alkali-Silica Reaction in Transportation Structures, at 3-4 (January 2010), available at http://www.fhwa.dot.gov/

pavement/concrete/pubs/hif09004/hif09004.pdf) (FHWA Report)).

58 Id 59 ASR Contention at 9.

60 ASR Order at 10 (quoting Nov. 2010 RAI, Enclosure at 16 (second alteration in original)). The Board also noted that the Staff did not address this issue in the ACRS Transcript. Id.

61 Id.

4. ASR-Aggravating Factors The ASR Contention additionally challenged the application because the proposed monitoring program makes no provision for monitoring ASR

- aggravating factors, such as the moisture content, the presence of liquid water, the potential of chemically aggressive water, or the temperature of affected [or] susceptible concrete.62 But, the Board noted that a June 2011 RAI asked NextEra to provide [p]lans, if any, for relative humidity and temperature measurements of affected concrete areas over the long term. 63 Consequently, the Board appropriately determined that the ASR Contentions challenge to the absence of monitoring for ASR-aggravating factors in the LRA was untimely.64

5. Inspector Qualifications The ASR Contention further questioned NextEras plan to manage ASR because [f]irst field observations are to be done by untrained or minimally-trained personnel, who must make the first cut on what is reportable for further examination by a qualified professional engineer.65 In response, the Board cited to the May 16, 2012, ASR AMP, which explicitly stated, ASR is detected by visual inspections performed by qualified individuals.

These individuals must either be a licensed Professional Engineer experienced in this area, or will work under the direction of a licensed Professional Engineer.66 Accordingly, the Board justifiably found that the ASR AMP provided clear information regarding inspector qualifications more than 30 days before the ASR Contention.67

6. ASR Mitigation The ASR Contention also stated that [i]f this monitoring program is the AMP in its entirety it fails because there is no active component proposed to arrest, mitigate 62 ASR Contention at 9.

63 ASR Order at 10 (quoting June 2011 RAI, Enclosure at 3). Again, the Board observed that the ACRS Transcript did not support this claim. Id.

64 Id.

65 ASR Contention at 9.

66 ASR Order at 10 (quoting ASR AMP, Enclosure 2 at 12). The Board found this claim similarly unrelated to the ACRS Transcript. Id. at 11 67 Id.

or manage the growth of ASR.68 Again, the Board referred to the May 16, 2012, ASR AMP, which explicitly indicated, There are no preventive actions specified in the Seabrook Station Structures Monitoring Program . . . . These are monitoring programs only. Similarly, the ASR Monitoring Program does not rely on preventive actions.69 Resultantly, the ASR Order appropriately found the mitigation measures claim untimely.70

7. Inspection Intervals The ASR Contention also argued, NextEra has proposed intervals of inspection of [six] months but the interval appears nominal; not tied to any calculation of the rate of growth of ASR in any given set of locations.71 The Board noted that the ASR AMP, available in May of 2012, stated it would monitor at least 20 locations that represent the highest CCI [Combined Cracking Index] values recorded during the baseline inspections. Follow-up inspection of these locations will be performed at six month intervals. 72 Hence, the Board logically found that FOTC/NEC could have challenged the six month intervals earlier.73

8. Concrete Sampling Last, the ASR Contention asserted, NextEra has determined the extent to which concrete has degraded or lost its structural function by relying on testing measurements of a very limited number of samples for a very limited number of structural dynamics.74 However, the Board noted that the November 2010 RAI asked for a summary of 68 ASR Contention at 9-10.

69 ASR Order at 11 (quoting ASR AMP, Enclosure 2 at 10) (alteration in original). The Board was also unable to find support for this claim in the ACRS Transcript. Id. at 11.

70 Id.

71 ASR Contention at 10.

72 ASR Order at 11 (quoting ASR AMP, Enclosure 2, at 3). The Board also determined that a March 30, 2012 response to an RAI contained information regarding the six month inspection interval. Id.

at 11 (citing March 2012 RAI Response, Enclosure 1 at 17). In addition, the Board found that the Staffs statements in the ACRS Transcript did not relate to this claim. Id.

73 Id.

74 ASR Contention at 10.

the results of the concrete testing performed to date [including] information on mechanical properties (e.g. compressive strength, modulus of elasticity, tensile strength, etc.) and an explanation of if/why the samples are representative of affected concrete throughout the plant, including foundations and the containment enclosure building. 75 Thus, the Board appropriately determined that the claims associated with concrete sampling were untimely.

In light of the previous RAIs, the Information Notice, and the ASR AMP, the Board reasonably found that the ACRS Transcript did not constitute new information with respect to the ASR contention.76 Instead, the Board determined that information supporting each of the claims in the ASR Contention had been available more than 30 days before FOTC/NEC filed the contention. In applying these well-established timeliness rules to the ASR Contention the Board committed no clear error or abuse of discretion.77 Thus, even if § 2.311 were the appropriate standard for review, FOTC/NECs Appeal would be groundless.

B. None of FOTC/NECs Remaining Arguments Demonstrate Legal Error or Abuse of Discretion in the Boards Ruling As explained above, the Board committed no clear error or abuse of discretion in concluding that the FOTC/NEC did not timely file the ASR Contention under NRC regulations.

Nonetheless, FOTC/NEC raises several other challenges to the Boards ASR ruling. As discussed below, none of these arguments are meritorious.

1. FOTC/NECs Claimed Practical or Legal Problems with the Boards Ruling Do Not Demonstrate Legal Error or Abuse of Discretion FOTC/NEC complains of a number of practical and legal problems with what [the Board 75 ASR Order at 12 (quoting Nov. 2010 RAI, Enclosure at 16). The Board found that the March 2012 RAI Response also addressed this issue. Id. (citing March 2012 RAI Response, Enclosure 1 at 3).

76 Id. at 12; Vermont Yankee, CLI-11-02, 73 NRC at 344.

77 10 C.F.R. § 2.309(c)(2) (stating that new contentions will not be considered unless timely filed based on the availability of new information); Vermont Yankee, CLI-11-02, 73 NRC at 344.

and opposing parties] suggest as the proper approach.78 Specifically, FOTC/NEC argues that (1) [u]ntil May of 2012, NextEra (Seabrook) did not have an ASR AMP with which to take issue; (2) [m]ost if not all documents suggested as providing primary basis so far predated the roll-out of the ASR AMP that they would be deemed untimely, at least at the contention filing stage; and (3) [m]any of the documents cited by the Board and the opposing parties are NRC Staff [RAIs] and [NextEras] responses which are not deemed admissible as basis documents by NRC.79 However, none of these arguments demonstrate legal error or abuse of discretion in the Boards ruling.

First, the Boards finding that FOTC/NECs proposed contention was untimely was not based simply on the fact that NextEra submitted its ASR AMP in May 2012, but rather that the proposed contention was filed more than thirty days after the ASR AMP became available. As stated in the Boards Initial Scheduling Order, a proposed new contention shall be deemed timely . . . if it is filed within thirty (30) days of the date when the new and material information on which it is based first becomes available to the moving party.80 As the Board correctly noted, FOTC/NECs proposed new contention focuses on the sufficiency of [the ASR AMP] that was submitted to the NRC on May 16, 2012, placed in ADAMS on May 22, and specifically disclosed to [FOTC/NEC] on July 6 - all more than thirty days before [FOTC/NEC] filed their proposed new contention on August 27, 2012.81 Thus, the Boards ruling was not based on any length of time preceding publication of the ASR AMP, but rather on the length of time between the publication of the ASR AMP and the ASR Contention.82 78 FOTC/NEC Appeal at 12.

79 Id. at 12-13.

80 ISO at 4.

81 ASR Order at 4.

82 See ASR Order at 4.

FOTC/NEC also suggests that they could not have brought the ASR Contention until NextEra submitted the ASR AMP.83 However, FOTC/NEC could have challenged the structural monitoring program, which NextEra relied on to monitor ASR prior to the ASR AMP,84 or filed a contention of omission.85 Consequently, the fact that the ASR AMP did not become available until May 2012 does not demonstrate any error in the Boards ruling that the ASR Contention filed in August 2012 was untimely.

In addition, FOTC/NECs claim that the documents suggested as providing primary basis so far predated the roll-out of the ASR AMP that they would be deemed untimely is incorrect. The Boards Initial Scheduling Order established explicit standards for whether motion[s] and proposed new contention[s] would be deemed timely, not whether basis documents themselves would be deemed timely. 86 If FOTC/NEC had filed a proposed contention within thirty days of new and material information becoming available, such a contention would not be untimely simply because the applicant had yet to propose a separate AMP for managing ASR. Therefore, FOTC/NECs assertion regarding the age of the previously-available documents does not demonstrate legal error or abuse of discretion in the ASR Order.

Indeed, the length of time these documents were available suggests that the Board correctly found that FOTC/NEC did not diligently pursue its ASR-related claims.87 Finally, FOTC/NECs argument that RAIs and responses . . . are not deemed 83 FOTC/NEC Appeal at 14.

84 April 2011 RAI Response, Enclosure 1 at 6.

85 Duke Energy Corporation (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-28, 56 NRC 373, 382-83 (2002) (recognizing that intervenors may challenge the omission of required information in an application as well as the adequacy of information included).

General challenges to an enhanced AMP in license renewal proceedings are untimely because if the enhanced monitoring program is inadequate, then [a]s a matter of law and logic the earlier, unenhanced AMP was a fortiori inadequate. Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-09-07, 69 NRC 235, 274 (2009) (quotations omitted).

86 ISO at 4.

87 ASR Order at 5-6.

admissible as basis documents by NRC is incorrect. In fact, the Commission does not categorically treat RAIs or RAI responses as inadmissible basis documents, but rather considers the information in such documents under the same standards as information in other available documents. While petitioners must do more than rest on [the] mere existence of RAIs as a basis for their contention88such as identify a specific safety concern and explain why the RAI supports that concernif genuinely new and material safety or environmental issues later emerge from RAIs or other NRC staff documents, [the Commissions] contention rule does not prevent their litigation.89 Indeed, FOTC/NEC appears to recognize this precedent.90 Thus, the Board correctly denied FOTC/NECs motion because RAIs and RAI responses, as well as other documents, could have formed the basis for the ASR Contention prior to the availability of the ACRS Transcript.91

2. FOTC/NECs Request that the Commission Issue a Clarifying Opinion Regarding Its Timeliness Standards is Unnecessary and Does Not Demonstrate Error or Abuse of Discretion by the Board FOTC/NEC also expresses confusion as to the exact meaning and application of terms

. . . regarding establishment of sufficient basis and material dispute[,] and the nature of new information upon which a timely new contention must be based.92 FOTC/NEC then requests that the Commission issue [a] clarifying opinion providing concise workable definitions of its terminology so that future litigants will hopefully waste less of their time (and that of the agency) 88 Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 336 (1999) (quoting Baltimore Gas & Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI 25, 48 NRC 325, 350 (1998)).

89 Oconee, 49 NRC at 338.

90 FOTC/NEC Appeal at 13 n.9 (citing Oconee, CLI-99-11, 49 NRC at 338) (The Commission allows litigation of issues raised in RAIs only if they contain genuinely new and material safety or environmental issues.).

91 See ASR Order at 5 (noting that much of the ACRS Transcript merely summarizes opinions and information that were available much earlier in the Staffs requests for additional information and in other correspondence with the Applicant).

92 FOTC/NEC Appeal at 6.

in trying to capture fleeting NRC expectations.93 FOTC/NECs request is unfounded because the Commission has frequently issued general descriptions of its adjudicatory proceedings for the benefit of litigants such as FOTC/NEC.94 Additionally, in prior precedents the Commission has provided specific answers to the questions FOTC/NEC raises. For instance, the Commission has explained the requirement that a contention be supported by an adequate factual basis in a previous order in this proceeding. The Commission explained that [i]n order to raise a litigable challenge[,] . . .

Friends/NEC would have to provide sufficient factual information or expert opinion to merit further consideration of the matter.95 In addition, the Commission emphasized that it is especially important to ensure the existence of a genuine material dispute with [the] particular application at issue.96 Furthermore, the Commission has explained what constitutes new information. For example, the Commission has stated that a petitioner or intervenor [cannot] delay filing a contention until a document becomes available that collects, summarizes and places into context the facts supporting that contention. To conclude otherwise would turn on its head the regulatory requirement that new contentions be based on information . . . not previously available.97 The Commission clarified this understanding again in the recent amendments to the NRCs procedural requirements and stated that where the NRC compiles or uses 93 Id.

94 E.g., Policy on Conduct of Adjudicatory Proceedings; Policy Statement, CLI-98-12, 48 NRC 18 (1998); Amendments to Adjudicatory Process Rules and Related Requirements, 77 Fed. Reg. 46,562, 46,566 (Aug. 3, 2012).

95 Seabrook, CLI-12-05, 75 NRC at __ (slip op. at 24-25).

96 Id. at 28 (citations and internal quotation marks omitted) (emphasis in original); see also id. at 40 (holding a contention inadmissible for which FOTC/NEC had proffered ill-defined claims and did not tie specific information in the basis document to a genuine material dispute with the application).

97 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), CLI-10-27, 72 NRC 481, 496 (2010) (internal citations omitted).

previously available information in a new document, the previously available information cannot be used as the basis for a new or amended contention filed after the deadline.98 Finally, the Commission has emphasized that purportedly new information must support the proposed contention by articulating a reasonably apparent basis for the contention.99

3. FOTC/NEC Arguments Regarding the ASR Inspection Process Do Not Demonstrate Grounds for Overturning the Boards Ruling In addition, FOTC/NEC asserts that the Board erred in finding untimely the portion of its claim regarding visual inspections. First, FOTC/NEC argues, as it did below, that the ASR AMP relies on visual screening for ASR by entry-level or non-expert employees.100 But the ACRS Transcript contains no suggestion that inexperienced or entry-level employees will perform visual inspections for ASR.101 Furthermore, as the Board noted, the ASR AMP states that visual inspections [are] performed by qualified individuals[, who] must either be a licensed Professional Engineer experienced in this area, or will work under the direction of a licensed Professional Engineer.102 Thus, the Board did not error in finding this portion of the claim unsupported and untimely.103 Second, FOTC/NEC alleges that the Board erred when it found that FOTC/NECs challenge to using of visual inspections to establish the absence of ASR was untimely.104 But, this argument rests on a misunderstanding of the process of performing visual inspections for ASR. In its brief, FOTC/NEC writes:

98 77 Fed. Reg. at 46,566.

99 Prairie Island, CLI-10-27, 72 NRC at 493-95.

100 FOTC/NEC Appeal at 11.

101 See generally ACRS Transcript.

102 ASR AMP, Enclosure 2 at 12; see also ASR Order at 10.

103 ASR Order at 10-11.

104 FOTC/NEC Appeal at 11-12

NextEra, NRC Staff, and following their lead, the ASLBP, all point to documents, long-known to everyone involved in the Seabrook matter, that explain that the presence of ASR cannot be confirmed by visual examination alone.

The difference is that the AMP relies on visual examinations to detect ASR, it cannot, according to NRC Technical Staff be relied on to rule out the presence of ASR in the absence of the visual indicators upon which it relies. The risk is false negatives; a non-conservative outcome. The inability to confirm the presence of ASR by visual examination alone means that the risk of calling ASR! on seeing typical cracking patterns and excrescences is that further examination will be called for; a conservative (plus safety) outcome.105 FOTC/NEC further claims that relying on visual inspections to detect the presence of ASR in the first instance will leave some affected areas undetected. However, nothing in the ACRS Transcript supports this conclusionin fact, the transcript makes clear that [w]hile visual inspections cant rule out the existence of ASR, visual examinations can very much demonstrate that you do have ASR.106 Furthermore, the inspection and confirmation process for determining whether ASR is present in potentially affected structures is explained in multiple previously-available documents, cited by the Board.107 These documents, demonstrate that this process begins with visual inspections of concrete, which can identify the unique map or patterned cracking and the presence of alkali-silica gel in areas likely to experience ASR (i.e., concrete exposed to moisture).108 Once visual indications of ASR-induced concrete degradation have been identified, additional actions to evaluate and monitor the condition . . . may include confirming the presence of ASR through microscopic examination of concrete cores; verifying the mechanical properties through testing of concrete cores . . . and in situ monitoring of the 105 Id. at 11-12.

106 ACRS Transcript at 181.

107 See, e.g., ASR Order at 8-9 (citing NRC Information Notice 2011-20; FHWA Report at 3-4).

108 NRC Information Notice 2011-20 at 3.

concrete over time, such as crack mapping and monitoring of concrete relative humidity.109 In short, while it is true that visual examination cannot rule out the presence of ASR in concrete structures exhibiting cracking, visual inspections effectively detect potentially-affected concrete structures, which must be further evaluated to confirm or rule out the presence of ASR.

In any event, the Board recognized that the Staff explicitly made this point in the June 2011 RAI.110 In that document, the Staff noted that the Applicant enhanced an AMP to include confirmatory testing of the containment concrete to determine the compressive strength, the presence or absence or ASR, the concrete modulus of elasticity, and the presence or absence of rebar degradation.111 The Staff explained that it was unaware of any method other than core bores that can be used to determine all the[se] concrete properties.112 Thus, the Staff asked the applicant to explain how these properties (compressive strength, presence of ASR, modulus of elasticity, presence of rebar degradation) can be verified without taking core samples.113 As a result, the June 2011 RAI plainly disclosed that ASR can only be ruled out as a potential cause of observed cracking through core samples and it cannot be ruled out through other means of examination like visual inspections. Consequently, FOTC/NEC has not shown that the Board committed a clear error or abuse of discretion in finding that the visual inspection components of the ASR claim were untimely.

109 Id. at 4.

110 ASR Order at 9.

111 June 2011 RAI, Enclosure at 5 (emphasis added).

112 Id.

113 Id.

CONCLUSION For the foregoing reasons, the Commission should decline interlocutory review of the Board=s decision denying the ASR Contention.

Respectfully submitted,

/Signed (electronically) by/

Maxwell C. Smith Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-1246 E-mail: maxwell.smith@nrc.gov Date of signature: December 14, 2012 Executed in Accord with 10 CFR 2.304(d)

Anita Ghosh Counsel for NRC Staff U.S. Nuclear Regulatory Commission (301) 415-4113 anita.ghosh@nrc.gov Executed in Accord with 10 CFR 2.304(d)

David M. Cylkowski Counsel for NRC Staff U.S. Nuclear Regulatory Commission (301) 415-1631 david.cylkowski@nrc.gov

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

NextEra Energy, LLC ) Docket Nos. 50-443

)

(Seabrook Station, Unit 1) )

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing NRC STAFFS ANSWER TO FOTC/NEC APPEAL dated December 14, 2012, have been served over the Electronic Information Exchange, the NRCs E-Filing System, this 14th day of December, 2012.

/Signed (electronically) by/

Maxwell C. Smith Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 (301) 415-1246 maxwell.smith@nrc.gov Date of Signature: December 14, 2012