ML17132A285
| ML17132A285 | |
| 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: ML17132A285 (18) | |
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 REPLY TO NRC STAFFS ANSWER TO C-10S PETITION FOR LEAVE TO INTERVENE I. INTRODUCTION 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 insert content from other proposed contentions (i.e., not pled in Contention D), and then inventing a new specific statement of the issue of law or 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) (NextEra Answer) (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.
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fact to be raised or controverted (Staffs New/Amended Contention).4 The Staffs act of drafting and proposing a new contention appears to be unprecedented in the history of 10 C.F.R. Part 50 licensing proceedings.5 Staffs action amounts to either: (a) an unauthorized proposal for a late-filed contention, for which the Staff also has not demonstrated good cause, or (b) a recommendation that the Board rejuvenate Petitioners deficient contentions, which is prohibited by law. Either way, Staffs New/Amended Contention does not satisfy the admissibility requirements in 10 C.F.R. § 2.309(f). Accordingly, Staffs New/Amended Contention should be rejected.
II. STAFFS NEW/AMENDED CONTENTION IS AN UNAUTHORIZED LATE-FILED CONTENTION AND SHOULD NOT BE ENTERTAINED IN THIS PROCEEDING As explained below, Staff does not have the authority to submit contentions in adjudicatory proceedings. Even assuming it had such authority, Staffs New/Amended Contention, for all practical purposes, constitutes a late-filed contention. However, Staff has neither addressed nor satisfied the 10 C.F.R. § 2.309(c) standards for late-filed new or amended contentionsit has not moved or been granted leave to submit a late-filed contention, and it has not demonstrated good cause for the New/Amended Contention to be entertained in this proceeding. Moreover, as further explained in Section IV, below, Staffs New/Amended Contention likewise fails to satisfy the applicable contention admissibility requirements in 10 4
Id.
5 In Crow Butte, the Commission addressed board authority to reformulate contentions and pointed to a more fulsome discussion in the MOX proceeding. See Crow Butte Resources, Inc. (North Trend Expansion Project), CLI-09-12, 69 NRC 535, 552 n.79 (2009). The MOX board examined a series of cases in which boards had reformulated contentions. See Shaw AREVA MOX Services (Mixed Oxide Fuel Fabrication Facility), Licensing Board Memorandum and Order (Recasting Contention 4 and Suggesting Certain Discussions) at 4-5 n.3 (Jan. 16, 2008) (unpublished) (ML080160265). Staff did not affirmatively draft or propose a new contention in its answer pleading in any of those cases. Nor did keyword searches in the NRCs Electronic Hearing Docket reveal any such pleadings.
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C.F.R. § 2.309(f). Accordingly, Staffs New/Amended Contention should be summarily rejected.
A. Staff Lacks Authority to Submit Contentions in Adjudicatory Proceedings Staff points to no authority permitting submission of its New/Amended Contention in this proceeding. Nor is there any. Although NRC regulations do not include an explicit prohibition against Staff contentions, it would be unreasonable to read the agencys Rules of Practice and Procedure to authorize them.
Submission of hearing requests and contentions in adjudicatory proceedings is governed by 10 C.F.R. § 2.309. This regulation specifies that only a person whose interest may be affected by a proceeding is authorized to file a hearing request. The NRC is explicitly excluded from the definition of person.6 Thus, Staff is not authorized to submit contentions as part of a hearing request.
Moreover, reading 10 C.F.R. § 2.309 to authorize Staff contentions would be inconsistent with the remainder of Part 2. If Staff concludes that an application is deficient, its recourse is to issue a notice of proposed denial or a notice of denial of the application.7 And if Staff has questions, it may submit requests for additional information (RAI).8 In fact, Staff appears likely to do so here. On the same day it filed its Answer, Staff issued draft RAIs to NextEra posing several questions related to representativeness of NextEras ASR testing programwhich is also the subject of the Staffs New/Amended Contention. The Staffs New/Amended Contention could be viewed as an effort to also address such issues through litigation before the 6
See 10 C.F.R. § 2.4 (definition of person).
7 See 10 C.F.R. § 2.103(b).
8 See generally, e.g., NRR Office Instruction LIC-101, Rev. 5, License Amendment Review Procedures (Jan. 9, 2017) (ML16061A451).
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Board. However, litigating Staffs questions and concerns regarding applications in adjudicatory proceedings is first unauthorized and second would require an unnecessary expenditure of resources, directly contrary to Commission policy.9 Accordingly, Staffs New/Amended Contention is not authorized, here.
B. Staffs New/Amended Contention Is Properly Viewed As a Late-Filed Contention Even assuming Staff had the authority to file a contention, Staffs New/Amended Contention constitutes a late-filed contention because Staff did not merely respond to Petitioners as-pled contentions. Rather, Staff took the additional step of affirmatively crafting and arguing the sufficiency of an entirely new contentionwith a new specific statement of law or fact to be raised or controvertedfor the Boards consideration.10 Staff accomplished this by amending an existing contention that it declared inadmissible to add bases not pled by Petitioner for that contention.11 Staff argues, incorrectly, that amending the otherwise defective contention renders it admissible.12 Staff, in reality, has proposed a new or amended contention. Had Petitioner, itself, proposed to amend its existing contention, after expiration of the hearing opportunity, to add additional bases or propose a new specific statement of law or fact, as Staff has, there would be no question that such action amounted to a new or amended contention. Accordingly, Staffs action here must be treated the same.
9 See generally 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).
10 See Staff Answer at 26.
11 See id.
12 See id.
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C. Staff Has Neither Requested Nor Obtained Leave of the Board In order to submit a new or amended contention after expiration of the hearing opportunity, participants must request leave to do so from the Board.13 Here, the hearing opportunity has expired,14 and Staff has not otherwise sought or obtained such leave, which is dispositive.
D. Staff Has Not Demonstrated Good Cause Notwithstanding the lack of a motion for leave to submit a new or amended contention after the deadline, NRC regulations further specify that late-filed contentions will not be entertained unless:
(i) The information upon which the filing is based was not previously available; (ii) The information upon which the filing is based is materially different from information previously available; and (iii) The filing has been submitted in a timely fashion based on the availability of the subsequent information.15 The NRC Staff does not acknowledge these standards, much less contend that Staffs New/Amended Contention satisfies them. Nor could it. Staffs New/Amended Contention relies on the same insufficient documentary support proffered in the Petition, bolstered by Staffs new arguments and formulations.16 13 10 C.F.R. § 2.309(c)(1).
14 The deadline was April 10, 2017. See Application and Amendments to Facility Operating Licenses and Combined Licenses Involving Proposed No Significant Hazards Considerations and Containing Sensitive Unclassified Non-Safeguards Information and Order Imposing Procedures for Access to Sensitive Unclassified Non-Safeguards Information, 82 Fed. Reg. 9601, 9602 (Feb. 7, 2017).
15 10 C.F.R. § 2.309(c)(1)(i)-(iii).
16 See Staff Answer at 26-39.
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III. STAFFS RECOMMENDATION THAT THE BOARD REJUVENATE OTHERWISE INADMISSIBLE CONTENTIONS IS CONTRARY TO LAW Alternatively, to the extent Staffs New/Amended Contention is viewed as a recrafting of (or a request to the Board to recraft) Petitioners otherwise inadmissible contentions (rather than as Staffs own late-filed contention), Staffs actions are directly contrary to Commission case law. Accordingly, Staffs recommendation should be rejected.
In its answer to the Petition, Staff states that the Board has authority to reformulate a petitioners arguments while not itself generating arguments on behalf of the petitioner.17 Staff further states that, had C-10 established standing, the Board could have found that the Petition had articulated a single admissible contention, which Staff has rewritten.18 However, Staff overstates the Boards authority to resuscitate deficient contentions, and understates the degree to which Staff has altered and supplemented the Petition to create its New/Amended Contention.
The Commission has recently made clear that it is Petitioners responsibility, not the Boards, to formulate contentions and to provide the necessary information to satisfy the basis requirement for admission.19 Although licensing boards have some limited discretion to reformulate contentions to eliminate extraneous issues or to consolidate issues for adjudicatory efficiency,20 they may not supply information that is lacking in a contention that otherwise would be inadmissible.21 In other words, the Boards authority is to reframe admissible 17 Id. at 26 (citing DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 2), CLI-15-18, 82 NRC 135, 145-46 (2015)).
18 Staff Answer at 26.
19 Entergy Nuclear Ops., Inc. (Palisades Nuclear Plant), CLI-15-23, 82 NRC 321, 329 (2015) (internal citation omitted).
20 Crow Butte, CLI-09-12, 69 NRC at 552 (internal citation omitted).
21 Fermi, CLI-15-18, 82 NRC at 141 (emphasis added).
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contentions for purposes of clarity, succinctness, and a more efficient proceeding.22 The limits of this authority are defined in NRC regulations.23 Here, as Staff explicitly recognizes, all ten contentions proposed by Petitioner are otherwise inadmissible.24 Staff points out the information that is lacking as to each and every contention proposed by Petitioner.25 However, Staff suggests that the Board could or should supply the necessary information to satisfy the basis requirement for admission of Staffs New/Amended Contention. But this would be contrary to established Commission case law holding that boards may not supply legal support, technical support, expert opinion, references to specific sources, or a reasoned basis or explanation for a conclusion26even for pro se litigants.27 Staff offers no explanation for its assertion that the Board, here, can supply the missing information necessary to turn otherwise inadmissible contentions into an admissible one, other than a single footnote citing to the very case law that explains the opposite.28 Moreover, Staff does not explain how the Board purportedly could reformulate the defective contentions while not itself generating arguments on behalf of the petitioner.29 Had the Petitioner generated such arguments on its own, there would be no need for the Board (or the 22 Shaw AREVA MOX Services (Mixed Oxide Fuel Fabrication Facility), LBP-08-11, 67 NRC 460, 482 (2008). This discussion was cited by the Commission as explaining the Boards legal authority to reformulate contentions. Crow Butte, CLI-09-12, 69 NRC at 552 n.79.
23 See MOX, LBP-08-11, 67 NRC at 482-83 (citing, as the source of the Boards authority to reformulate contentions, the Boards authority to hold conferences under 10 C.F.R. § 2.319(j) (e.g., for simplification of contentions) and § 2.329(c)(1) (for [s]implification, clarification, and specification of the issues).
24 Staff Answer at 26.
25 Id. at 27-48.
26 See Fermi, CLI-15-18, 82 NRC at 149 (the Board may not substitute its own support for a contention or make arguments for the litigants that were never made by the litigants themselves).
27 See id. at 145-46 (even though [petitioner] is not represented by counsel, the Board should not have read into [petitioner]s petition a different challenge from the one [petitioner] presented in [that] Contention).
28 Staff Answer at 26 (citing Fermi, CLI-15-18, 82 NRC at 145-46).
29 Staff Answer at 26.
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Staff) to create such a reformulation. But Petitioner did not do sohence, Staff is asking the Board to supply missing information to rejuvenate otherwise inadmissible contentions, an action which is prohibited by Commission precedent.
As a prime example, Staffs New/Amended Contention introduces for the very first time the assertion that [t]he MPR/FSEL large-scale test program is not bounding of the Seabrook concrete.30 Staff created this assertion from whole cloththe Petition does not once use the word bounding. Thus, this is not merely a reformulation.
Furthermore, Petitioners remaining contentions make only passing references to the representativeness of the Large-Scale Test Program (LSTP), if at all. Staff has twisted these contentions into arguments not raised by Petitioner. For example, Petitioners Contention G asserts that the LAR is deficient because it does not identify the point of failure.31 Staff acknowledges Petitioners assertion is immaterial, but invents a new claim (without citation to support) that the limits imposed by the LAR are derived from, and, in turn, determined to be conservative by the [LSTP].32 But where a petitioner, itself, does not provide any nexus between its claims and any [purported] deficiencies in the underlying application, a reformulation that imputes a claimed nexus would exceed the Boards authority.33 Furthermore, it makes no difference whether the missing information purportedly comes from elsewhere in the Petition; Petitioner has an affirmative obligation to plead the connection itself.34 30 Id.
31 See Petition at 13-15.
32 Staff Answer at 37.
33 Fermi, CLI-15-18, 82 NRC at 141.
34 See id. at 141-42 (transplanting support from a different argument exceeds the Boards authority); id. at 142 (using information from elsewhere in the[] hearing request that petitioner, itself, did not use to support the argument raised in the reformulation exceeds the Boards authority).
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Ultimately, Staff significantly understates the degree to which it has manipulated the deficient contentions, and misinterprets Commission case law as to the Boards acknowledged but limited authority to narrow arguments, trim out-of-scope subject matter, and otherwise ensure an efficient adjudication. Accordingly, Staffs New/Amended Contention should be rejected.
IV. NRC STAFFS NEW/AMENDED CONTENTION IS INADMISSIBLE Commission regulations at 10 C.F.R. § 2.309(f)(1) identify the six admissibility criteria for proposed contentions. NextEra fully briefed the applicable legal standards in its answer to C-10s Petition.35 As discussed below, even if Staffs New/Amended Contention could be considered in the proceeding, it still fails to articulate an admissible contention.
Staff acknowledges that Petitioners proposed Contention D in and of itself, is not admissible. 36 However, Staff argues that, when rewritten (i.e., amended) to include certain missing information, it would amount to a single admissible contention.37 Staff frames its new contention as follows:
The MPR/FSEL large-scale test program is not bounding of the Seabrook concrete because of the age of the Seabrook concrete, the length of time that ASR has propagated in the Seabrook concrete, the effect of water at varying levels of height and varying levels of salt concentration on the Seabrook concrete, the effect of heat on the Seabrook concrete, and the effect of radiation on the Seabrook concrete. As a result, the proposed monitoring, acceptance criteria, and inspection intervals are not adequate.38 But Staff offers no factual or documentary support for its new contention beyond the deficient conclusions and citations proffered in the original Petition. Likewise, it does nothing to 35 See NextEra Answer § III.B. That discussion is incorporated by reference, rather than republished, here.
36 Staff Answer at 26.
37 Id.
38 Id.
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rectify the other major deficiencies of these contentions in the original Petition: the fact that they disregard, rather than dispute, highly-relevant portions of the LAR, including its specific methods, analyses, conclusions, and underlying technical studies.39 As explained below, because Staffs New/Amended Contention relies on these empty claims, it, too, is inadmissible.
A. Contention D Does Not Supply Sufficient Support for Staffs New/Amended Contention or Demonstrate a Genuine Dispute with the LAR In Contention D, Petitioner asserted, erroneously, that NextEra is attempting to substitute not representative data from the LSTP in lieu of performing core sample testing at Seabrook.40 Staff argues Contention Ds deficiencies (as pled by Petitioner) relate to scope and materiality, but believes it otherwise provides sufficient support and identifies a genuine dispute.41 However, Staff devotes only a passing reference to its conclusions in this regard. An examination of the proffered arguments and support in Contention D reveals that they are nothing more than threadbare speculation and generalized commentary, rather than legitimate challenges to the LAR. Such assertions are insufficient to satisfy the NRCs contention admissibility requirements, which are strict by design.42 For example, Staff views Petitioners assertion that the LSTPs use of wetted absorbent fabric and misters could not accurately represent the potential presence of groundwater on one side of the reinforced concrete at Seabrook (as paraphrased by Staff) as providing support for Contention D.43 But Staff appears to conflate this mere conclusion with the support required by 10 C.F.R. § 2.309(f)(1)(v). Petitioner simply claims that the LAR is deficient, inadequate, or 39 See NextEra Answer § V.
40 Petition at 2, 8 (arguing the LSTP data cannot be substituted for core sample testing).
41 Staff Answer at 28.
42 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001), reconsid. denied, CLI-02-01, 55 NRC 1 (2002).
43 Staff Answer at 27.
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wrong, but does not otherwise support its assertion with any factual information or expert opinion. Moreover, Petitioners conclusion disregards, rather than disputes, the intended purpose of the wetted fabric, as described in the LAR;44 and disregards, rather than disputes, the confirmatory analysis showing the wetted absorbent fabric accomplished its purpose.45 To the contrary, a contention must acknowledge relevant portions of the application and explain, with appropriate support, how those portions are purportedly deficient.46 So too with Staffs and Petitioners vague references to the purported effects of concrete age, ASR age, water height, salt concentration, heat, and radiation on the Seabrook concrete.47 Neither Contention D, as pled by Petitioner, nor Staffs Answer make any showing that these topics are within the scope of the instant proceeding, versus issues that are considered under other CLB programs, or offer any explanation for how such purported effects would impact the LAR. Ultimately, Staffs New/Amended Contention deprives the Board of the ability to make the necessary, reflective assessment of the underlying assertion.48 44 The purpose of the wetted absorbent fabric was to ensure that ASR developed through the entire thickness of the test specimens. See MPR-4273, Rev. 0, Seabrook Station - Implications of Large-Scale Test Program Results on Reinforced Concrete Affected by Alkali-Silica Reaction at 4-7 (July 2016) (Non-Proprietary) (MPR-4273) ([t]he internal humidity of the concrete [created by the wet fabric] and the atmospheric conditions in the ECF were sufficient to drive progression of ASR uniformly throughout the test specimens) (MPR-4273 was included as Enclosure 3 to SBK-L-16071, Letter from to R. Dodds to NRC Document Control Desk, License Amendment Request 16 Revise Current Licensing Basis to Adopt A Methodology for the Analysis of Seismic Category I Structures with Concrete Affected by Alkali-Silica Reaction, (Aug. 1, 2016) (ML16216A240) (Original LAR) .
45 Confirmatory petrographic analysis showed ASR was observed throughout the entire test specimen, not just at the surface, thus, the control specimens provided an appropriate baseline for the test programs.
MPR-4273 at 4-10.
46 Millstone, CLI-01-24, 54 NRC at 358.
47 See Staff Answer at 27-28 (citing Petition at 9-11).
48 Cf. USEC, Inc. (Am. Centrifuge Plant), CLI-06-10, 63 NRC 451, 472 (2006).
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Likewise, Staff points to the opinion of Dr. Brown as purported support for a representativeness contention.49 However, the purported support is actually a letter written by Petitioner and the Union of Concerned Scientists, not Dr. Brown himself.50 Moreover, the proffered quotation merely suggests that ASR is not a linear phenomenon.51 Neither the source document, nor the Petition, nor the Staff explain any connection between ASR linearity and the LSTPnor is there any obvious connectionand the Board cannot accept uncritically the assertion that there is one.52 As to Staffs and Petitioners vague references to salt, radiation, etc.,53 Staff points to nothingnot one bit of supportfor the assertion that these factors influence ASR, impact the LAR analysis, or render the application deficient. This type of vague speculation that a flaw may exist . . . is not sufficient to establish a material challenge.54 Thus, nothing in Contention D, as pled by Petitioner, provides support for Staffs New/Amended Contention or demonstrates a genuine dispute with the LAR, as demanded by 10 C.F.R. § 2.309(f)(1)(v)-(vi).55 B. Contentions A, B, C, G, and H Do Not Supply Sufficient Support for Staffs New/Amended Contention or Demonstrate a Genuine Dispute with the LAR Staff states that the only thing preventing admission of Contention D is an assert[ion]
that consequences would accrue from the purported lack of representativeness of the LSTP.56 49 Staff Answer at 28.
50 See id. at 27 (citing Petition at 9, which it turn cites Letter from S. Gavutis, C-10, and D. Wright, UCS, to W. Dean, NRC (Sept. 13, 2012) (C-10 and UCS 9/13/12 Letter)).
51 See Petition at 9 (citing C-10 and UCS 9/13/12 Letter).
52 Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), LBP, 98-7, 47 NRC 142, 181 (1998),
affd, CLI-98-13, 48 NRC 26, 37 (1998).
53 See Staff Answer at 27-28 (citing Petition at 9-11).
54 See Palisades, CLI-15-23, 82 NRC at 329-30 (2015).
55 See generally NextEra Answer § V.D (providing a full explanation of the deficiencies of Contention D).
56 Staff Answer at 26, 28.
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Staff attempts to cure this deficiency by stitching together portions of Contentions A, B, C, G, and H (which Staff also admits are individually inadmissible) to the extent they purportedly challenge the representativeness of the LSTP.57 Notwithstanding, even when combined with Petitioners generalized assertions from Contentions A, B, C, G, and H, Staffs New/Amended Contention remains unsupported and ignores, rather than disputes, relevant portions of the LAR.
Moreover, it is unclear how anything from Petitioners contentions on prestressing, petrography, or tipping point could support Staffs New/Amended Contention because the specific statement of the contention says nothing about these issues.
Staff argues that Contention A is supported by March 2013 and November 2013 reports disputing the reliability of using a crack width index, and Dr. Paul Browns 2016 commentary specifically disputing the reliability of extensometers.58 However, those references largely comment on now-superseded iterations of NextEras ASR assessment program and other outdated information rather than the current LAR.59 None of the excerptsnor any other part of Contention Achallenge the specific application of techniques as described in the LAR,60 as an 57 See, e.g., id. at 30.
58 Id. (citing Petition at 3-4, which in turn cites: C-10 and UCS, Commentary on Seabrook Station: Impact of Alkali-Silica Reaction on Concrete Structures and Attachments (Mar. 2013) (the letter notes it is based on commentary by P. Brown) (C-10 and UCS 3/13 Commentary); UCS, Continuing Problems with Monitoring Concrete Damage at Seabrook (Nov. 4, 2013) (listing UCS and C-10 as contacts) (UCS 11/4/13 Commentary); and P. Brown, Commentary on Seabrook Station License Amendment Request 16-03 (Sept. 30, 2016) (Brown 9/30/16 Commentary)).
59 See generally NextEra Answer § V.A (providing a full explanation of the deficiencies of Contention A).
60 See, e.g., NextEra Answer at 23-26 (explaining that commentary criticizing the use of crack width indexing as the only means of monitoring ASR does not challenge the LAR methodology, which, categorically, does not propose the use of crack width indexing as the only means of monitoring ASR); id. at 26-27 (explaining that the 2013 document authored by UCS broadly suggesting visual inspection is not a comprehensive means of assessing ASR also misses the mark because it ignores the LARs three-tiered system which proposes only limited use of visual inspections up to the Tier 2 thresholda specific application which does not purport to use visual inspections as a comprehensive solution and to which the commentary is inapplicable); id. at 27 (explaining that Dr. Browns generalized criticism of extensometers does not consider the specific application of extensometers contemplated in LAR, whereby they are installed in the most conservative locations, and does not provide a reasoned explanation for how such application purportedly is deficient).
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admissible contention must.61 Ultimately, nothing in Contention A provides adequate support for Staffs New/Amended Contention or demonstrates a genuine dispute with the LAR.
Next, Staff argues that Contention B (challenging the LARs use of the term prestressing) is supported by the opinion of Dr. Paul Brown.62 Staff references Dr. Browns acknowledgement that the temporary mitigation of the loss of structural capacity caused by ASR in reinforced concrete ultimately does not stop the progress of ASR.63 However, there is no dispute on this point.64 Neither Dr. Brownnor the Petitionernor Staffoffer any connection between this assertion and Staffs New/Amended Contention. Moreover, Staffs conclusion that Contention B raises a genuine dispute with the LAR because it challenges the sufficiency of NextEras determination, based on the results of the [LSTP], that the prestressing effect impacts the structures at Seabrook is misguided. Quite the contrarythe approach described in the LAR does not credit the increase in capacity (from prestressing or otherwise) of the ASR-affected structural members.65 Ultimately, Contention B fails to provide adequate support for Staffs New/Revised Contention or demonstrate a genuine dispute with the specific analysis in the LAR.66 As to Contention C, which criticizes the LAR for allegedly not utilizing petrographic testing (a term that likely was intended to refer to material property testing, generally),67 Staff 61 See USEC, CLI-06-10, 63 NRC at 472 (2006) (explaining petitioners must identify an error or omission in the underlying analysis).
62 Staff Answer at 33.
63 Id. at 32 (citing Petition at 5, which in turn cites Brown 9/30/16 Commentary).
64 The LAR explicitly acknowledges that the mitigation is temporary. MPR-4288, Rev. 0, Seabrook Station:
Impact of Alkali-Silica Reaction on Structural Design Evaluations at 4-2 (July 2016) (Non-Proprietary)
(MPR-4288) (included as Enclosure 2 to the Original LAR).
65 See, e.g., MPR-4273 at vi, 2-3 n.3; MPR-4288 at 5-2, 5-4.
66 See generally NextEra Answer § V.B (providing a full explanation of the deficiencies of Contention B).
67 See id. at 34.
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points to commentary calling for core sample testing and predictive modeling, and suggests the contention could be admissible to the extent it challenges representativeness.68 Staff offers nothing to explain how such commentary would support its New/Amended Contention or demonstrate a genuine dispute with the LAR. Nor could it. Neither Petitioner, nor Dr. Brown, nor Staff offer anything to acknowledge, address, or otherwise challenge the specific elements of the LAR, such as the LSTPs use of core sample testing to correlate material properties to ASR progression, or the LARs use of actual measurements in lieu of predictive modeling.69 Thus, Contention C likewise fails to bolster Staffs proposed contention.
As to Contention G, which claims that the tipping point concept is [o]mitted from the LAR,70 Staff does not assert that the Petition offers documentary or expert support for a representativeness contention, such as Staffs New/Amended Contention, or demonstrates a genuine dispute with the LAR on the topic of representativeness.71 And as to Contention H, which asserts that the inspection intervals referenced in the LAR are too long, and too fixed,72 Staff offers only its conclusory assertion that C-10 has identified a specific [unspecified]
dispute with the LAR and has provided some limited support in the [unspecified] referenced documents.73 In other words, Staff merely makes vague references to the underlying Petition 68 Staff Answer at 35.
69 See generally NextEra Answer § V.C (providing a full explanation of the deficiencies of Contention C).
70 Petition at 13.
71 See Staff Answer at 36-37. Staff does, however, attempt to create a genuine dispute via its new argument, not raised by Petitioner, claiming the limits imposed by the LAR are derived from, and, in turn, determined to be conservative by the [LSTP]. Id. at 37. Otherwise, Staff merely opines that the subject matter raised in the contention would have been material had Petitioner raised representativeness argumentswhich it did not do. Id.
72 Petition at 15.
73 Staff Answer at 38.
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but does not identify the purported support or dispute, which is insufficient.74 Accordingly, these cannot cure the support and genuine dispute deficiencies from Contentions G and H as to Staffs New/Amended Contention.75 In summary, just like Petitioners original Contentions A, B, C, D, G, and H, Staffs New/Amended Contention likewise fails to demonstrate the requisite level of support required by 10 C.F.R. § 2.309(f)(1)(v), and fails to demonstrate a genuine dispute with the actual methodologies and underlying technical content of the LAR, as required by 10 C.F.R.
§ 2.309(f)(1)(vi). Accordingly, it is inadmissible and should be rejected.
V. CONCLUSION Because Staff lacks the authority to submit contentions, and furthermore has not addressed or satisfied the requirements for late-filed contentions in 10 C.F.R. § 2.309(c), Staffs New/Amended Contention should be rejected. Alternatively, Staffs recommendation that the Board craft a new contention is contrary to law and should be rejected. Ultimately, even if Staffs New/Amended Contention could be entertained in this proceeding, it still fails to satisfy the contention admissibility requirements in 10 C.F.R. § 2.309(f)(1). Accordingly, the Board should reject Staffs New/Amended Contention.
74 Cf. USEC, CLI-06-10, 63 NRC at 457 (A contention must make clear why cited references provide a basis for a contention).
75 See generally NextEra Answer §§ V.G, H (providing a full explanation of the deficiencies of Contentions G and H).
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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 17
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 Reply to NRC Staffs Answer to C-10s Petition 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/ 92079564