ML17132A284
| ML17132A284 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 05/12/2017 |
| From: | Bessette P, Blair W, Hamrick S, Lighty R Morgan, Morgan, Lewis & Bockius, LLP, NextEra Energy Seabrook |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| Shared Package | |
| ML17132A283 | List: |
| References | |
| 50-443 LA-2, ASLBP 17-953-02-LA-BD01, RAS 53839 | |
| Download: ML17132A284 (6) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of: )
) Docket No. 50-443-LA-2 NEXTERA ENERGY SEABROOK, LLC )
) May 12, 2017 (Seabrook Station Unit 1) )
)
NEXTERAS MOTION FOR LEAVE TO FILE A REPLY TO NRC STAFFS ANSWER TO C-10S PETITION FOR LEAVE TO INTERVENE On May 5, 2017, NextEra Energy Seabrook LLC (NextEra) and the U.S. Nuclear Regulatory Commission (NRC) Staff (Staff) filed their respective answers1 to C-10 Research and Education Foundation, Inc.s (C-10 or Petitioner) April 10, 2017 Petition for Leave to Intervene (Petition), requesting a hearing, and proposing ten contentions.2 The NRC Staff, in its Answer, concluded that [n]one of C-10s contentions are independently admissible.3 However, Staff took the extraordinary step of crafting a new proposed contention for the Boards considerationone that it argues would be admissibleby amending Petitioners proposed Contention D to include additional content not pled in Contention D, and then inventing a new specific statement of the issue of law or fact to be raised or controverted (Staffs New/Amended Contention).4 As explained further below, necessity 1
See NextEras Answer Opposing C-10 Research & Education Foundations Petition for Leave to Intervene and Hearing Request on NextEra Energy Seabrook, LLCs License Amendment Request 16-03 (May 5, 2017) (ML17125A289); NRC Staffs Answer to C-10 Research and Education Foundation, Inc. Petition for Leave to Intervene (May 5, 2017) (Staff Answer) (ML17125A304).
2 C-10 Research and Education Foundation, Inc., Petition for Leave to Intervene: Nuclear Regulatory Commission Docket No. 50-443 (Apr. 10, 2017) (ML17100B013).
3 Staff Answer at 26.
4 Id.
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and fairness require an opportunity for NextEra to respond to Staffs New/Amended Contention.
Accordingly, NextEra files this Motion for Leave to File a Reply pursuant to 10 C.F.R. § 2.323.
NRC regulations provide that only the participant who filed the hearing request under 10 C.F.R. § 2.309 may file a reply to an answer thereto.5 However, the Commission has explained that extra filings, such as reply briefs that are not explicitly permitted by NRC regulations, may be considered on a case-by-case basis and are permissible where necessity or fairness dictates.6 Here, necessity and fairness weigh strongly in favor of providing NextEra an opportunity to respond to Staffs Answer because: (1) NextEra has not had a fairor any opportunity to respond to Staffs New/Amended Contention, and (2) such a response is necessary for a complete record.
The Commissions Statement of Policy on the Conduct of Adjudicatory Proceedings emphasizes the importance of ensuring a fair and thorough hearing process and establishing a full, fair, and adequate record.7 Here, NextEra has not had an opportunity to respond to the NRC Staffs New/Amended Contention. Contrary to Staffs assertions that it has simply reformulate[d] Petitioners arguments, it has instead proposed a brand new contention, with an entirely new set of issues of law or fact to be raised or controverted in this proceeding.8 Moreover, although the various components of Staffs New/Amended Contention are found scattered throughout the Petition, Staff seeks to assemble them in a new formulation aided by a 5
10 C.F.R. §§ 2.309(i)(2)-(3).
6 U.S. Dept of Energy (High-Level Waste Repository), CLI-08-12, 67 NRC 386, 393 (2008).
7 Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 18-19 (1998);
Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-81-08, 13 NRC 452, 453 (1981).
8 See Staff Answer at 26.
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new overarching argument developed by the Staff itself. By doing so, Staff admits that it transformed Contention D.9 It is not NextEras burden to foresee every possible permutation of reorganized snippets of content from the original Petition, or every possible amendment, amalgam, or reformulation of specific issues of law or fact to be raised or controverted, against which it is expected to defend.
Nothing in the Commissions regulations require it to do so. Further, it is not enough that a party be placed on general notice of possible arguments.10 The regulations afford applicants the absolute right to be presented with contentions that are set forth with particularity11 and with specific statements of law or fact for which a petitioner seeks a hearing.12 NRC regulations further provide applicants the absolute right to respond thereto.13 Here, where Staffs Answer presents a new contention, with a new specific statement of law or fact for the Boards consideration, but to which NextEra has not had a full and fair opportunity to respond, fairness demands the provision of such an opportunity, and necessity commands the establishment of a full record.
Accordingly, NextEra respectfully requests that the Board grant this Motion for Leave to File a Reply, and accept for the Boards consideration its proposed Reply to Staffs Answer, attached hereto.
9 See id. (arguing its alterations render otherwise-inadmissible contentions admissible).
10 Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 118-19 (2006) (explaining that Notice Pleading is not sufficient in NRC adjudicatory proceedings).
11 10 C.F.R. § 2.309(f)(1).
12 10 C.F.R. § 2.309(f)(1)(i). See also Kan. Gas & Elec. Co. (Wolf Creek Generating Station, Unit 1),
ALAB-279, 1 NRC 559, 557 (1975) (The applicant is entitled to a fair chance to defend. It is therefore entitled to be told at the outset, with clarity and precision, what arguments are being advanced).
13 10 C.F.R. § 2.309(i)(1). See also DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 2), CLI-15-18, 82 NRC 135, 146 (2015) (citing Wolf Creek and explaining litigants should not be taken by surprise and should be accorded an appropriate opportunity to respond to new arguments).
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Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d) Executed in Accord with 10 C.F.R. § 2.304(d)
Steven Hamrick, Esq. Paul M. Bessette, Esq.
NextEra Energy Seabrook, LLC Morgan, Lewis & Bockius LLP 801 Pennsylvania Ave., NW Suite 220 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Washington, D.C. 20004 Phone: (202) 349-3496 Phone: (202) 739-5796 Fax: (202) 347-7076 Fax: (202) 739-3001 E-mail: steven.hamrick@fpl.com E-mail: paul.bessette@morganlewis.com Executed in Accord with 10 C.F.R. § 2.304(d) Signed (electronically) by Ryan K. Lighty William S. Blair, Esq. Ryan K. Lighty, Esq.
NextEra Energy Seabrook, LLC Morgan, Lewis & Bockius LLP 700 Universe Blvd. 1111 Pennsylvania Avenue, N.W.
Juno Beach, FL 33408 Washington, D.C. 20004 Phone: (561) 304-5238 Phone: (202) 739-5274 Fax: (561) 304-5366 Fax: (202) 739-3001 E-mail: william.blair@fpl.com E-mail: ryan.lighty@morganlewis.com Counsel for NextEra Energy Seabrook, LLC Dated in Washington, DC this 12th day of May 2017 4
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of: )
) Docket No. 50-443-LA-2 NEXTERA ENERGY SEABROOK, LLC )
) May 12, 2017 (Seabrook Station Unit 1) )
)
CONSULTATION CERTIFICATION Pursuant to 10 C.F.R. § 2.323(b), I certify that NextEra has made a sincere effort to contact the other participants in this proceeding and resolve the issues raised in the above motion. Neither the NRC Staff nor the Petitioner oppose this motion.
Executed in Accord with 10 C.F.R. § 2.304(d)
Paul M. Bessette, Esq.
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: (202) 739-5796 Fax: (202) 739-3001 E-mail: paul.bessette@morganlewis.com Counsel for NextEra Energy Seabrook, LLC
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of: )
) Docket No. 50-443-LA-2 NEXTERA ENERGY SEABROOK, LLC )
) May 12, 2017 (Seabrook Station Unit 1) )
)
CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, copies of the foregoing NextEras Motion for Leave to File a Reply to NRC Staffs Answer to C-10s Petition for Leave to Intervene were served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned proceeding.
Signed (electronically) by Ryan K. Lighty Ryan K. Lighty, Esq.
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: (202) 739-5274 Fax: (202) 739-3001 E-mail: ryan.lighty@morganlewis.com Counsel for NextEra Energy Seabrook, LLC DB1/ 92079561