ML17338A862
| ML17338A862 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 12/04/2017 |
| From: | Lighty R Morgan, Morgan, Lewis & Bockius, LLP, NextEra Energy Seabrook |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| 50-443 LA-2, ASLBP 17-953-02-LA-BD01, RAS 54075 | |
| Download: ML17338A862 (6) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
)
In the Matter of: )
) Docket No. 50-443-LA-2 NEXTERA ENERGY SEABROOK, LLC )
) December 4, 2017 (Seabrook Station Unit 1) )
)
NEXTERAS ANSWER TO C-10S DE FACTO MOTION TO STRIKE On October 31, 2017, pursuant to 10 C.F.R. § 2.311, NextEra Energy Seabrook, LLC (NextEra) filed a Notice of Appeal of LBP-17-7, along with its supporting brief (Appeal).1 On November 22, 2017, C-10 Research and Education Foundation, Inc. (C-10) filed a response to that Appeal (Response).2 In its Response, C-10 requests the Commission to exclude, on procedural grounds, certain of NextEras arguments from consideration.
Specifically, C-10 argues NextEras confirmatory testing arguments3 are untimely and waived, based on its erroneous assertion that such arguments were first raised at oral argument and that C-10 did not have any opportunity to review the materials or respond.4 Regardless of the vehicle used to introduce this distinct prayer for relief,5 it is appropriately viewed as a Motion 1
NextEras Notice of Appeal of LBP-17-7 (Oct. 31, 2017); Brief in Support of NextEras Appeal of LBP-17-7 (Oct. 31, 2017) (ML17304B075).
2 C-10 Research and Education Foundation, Inc. Response to NextEras Appeal of LBP-17-7: Whereby the Atomic Safety and Licensing Board Granted Standing to C-10 Research and Education Foundation to Intervene in Docket No. 50-443-LA-2 and Admitted Five of Its Contentions (Nov. 22, 2017)
(ML17326A710).
3 Id. at 2 (quoting Appeal at 5: the LAR proposes to conduct confirmatory testing to empirically verify the similarity between Seabrooks concrete and the data collected as part of the [large-scale test program or]
LSTP.).
4 Id. at 2-3; see also id. at 1, 7, & 8 (making similar assertions).
5 Cf., e.g., Power Auth. of the State of N.Y. (James A. FitzPatrick Nuclear Power Plant; Indian Point, Unit 3),
CLI-01-14, 53 NRC 488, 513 (2001) (finding certain portions of a statement of position were appropriately 1
to Strike.6 Accordingly, pursuant to 10 C.F.R. § 2.323(c), NextEra files this timely Answer. As explained below, the Motion should be rejected.
NextEras Confirmatory Testing Arguments Are Neither Untimely Nor Waived NextEra has maintainedsince the beginning of this proceedingthat C-10s Petition7 failed to even acknowledge, much less challenge, any programmatic features of NextEras license amendment request (LAR)8 aimed at ensuring representativeness.9 For example, NextEras first pleading noted C-10:
attacks the LSTP because it allegedly sets no definitive parameters for representativeness to Seabrooks concrete. Likewise, Petitioner alleges the LSTP lacks a clear definition of the level of representativeness sought. But Petitioners allegation ignores the very section of the LAR that discusses this topic. MPR-4273 includes an entire section titled, Representativeness Objectives of Test Programs. This section describes the key features of its programmatic design for representativeness, and the subsequent sections of the report expand upon those features with additional details.10 viewed as a de facto appeal); Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), ASLB Order (June 1, 2012) (unpublished) (slip op. at 5 n.21) (ML12153A173) (declining to treat as timely an intervenors request, in an answer pleading, to exclude certain impermissible arguments from considerationa request the applicant characterized as an out-of-time de facto motion in limine).
6 See, e.g., Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), LBP-05-20, 62 NRC 187, 228 (2003) (explaining that a motion to strike is the appropriate mechanism for seeking the removal of information from a pleading or other submission.). Cf. FED. R. CIV. P. 7(b) (A request for a court order must be made by motion).
7 C-10 Research and Education Foundation, Inc., Petition for Leave to Intervene: Nuclear Regulatory Commission Docket No. 50-443 (Apr. 10, 2017) (ML17100B013).
8 See SBK-L-16071 (Aug. 1, 2016) (ML16216A240) (Original LAR); SBK-L-16153, (Sept. 30, 2016)
(ML16279A048) (LAR Supplement). The Original LAR and LAR Supplement, and all enclosures and attachments, are collectively the LAR.
9 See, e.g., 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 at 49 (May 5, 2017) (ML17125A289) (NextEra Answer) (noting C-10 has not disputed the LAR on the subject of representativeness and failed to even acknowledge, much less challenge the relevant LAR provisions on this topic).
10 NextEra Answer at 46 (citations omitted).
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One of those subsequent sections11 describes the proposed confirmatory testing which is but one feature of the LARs programmatic design for representativeness. In direct response to Board questions at oral argument, NextEra described this particular feature of the LAR in greater detail.12 Therefore, contrary to C-10s assertion, NextEras argument that C-10 failed to identify or dispute any featurewhatsoeverof the LARs programmatic design for representativeness was raised in its answer and not first raised at oral argument.13 Likewise, C-10 offers nothing to support its conclusory assertion that NextEras arguments are somehow untimely and waived. C-10 cites no authority for the proposition that an applicants answer highlighting a gaping deficiency in an intervenors petition must further supply a comprehensive listing of each missing sub-argument; and cites no authority suggesting that details of previously-made arguments discussed at oral argumentin direct response to Board questionsare somehow banned from arguments on appeal. Nor could it, as no such authority exists.
Moreover, C-10s claims that it did not have any opportunity to review the materials or respond, and that serious due process concerns are implicated here, ring hollow.14 NextEras materials have been publicly-available since August 2016;15 C-10s opportunity to respond was in their original Petition, yet they failed to address NextEras materials; and this is precisely 11 See Original LAR, Encl. 3 § 6.1.5; see also id. at vii (summarizing the recommendations in § 6.1.5).
12 See Transcript of Oral Argument at 103, 108, 115, 123 (June 29, 2017).
13 Compare NextEra Answer at 46 (filed May 5, 2017) with Response at 1 (alleging the issue was first raised June 29, 2017). Also, contrary to C-10s assertion, NextEra never stated in its Appeal that it raised the representativeness issue for the first time at oral argument. See Response at 2 (citing Appeal at 19).
Rather, NextEra simply stated that it had discussed confirmatory testing at oral argument in direct response to Board questions. See Appeal at 19.
14 Response at 2, 3.
15 MPR-4273 was included as an attachment to the Original LAR. Indeed, C-10 even selectively quoted portions of § 6.1.5 in its original Petition (but ignored the confirmatory testing provisions on the very same page). See Petition at 9.
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the fundamental deficiency NextEra flagged in its first pleading.16 Ultimately, C-10s arguments only further support NextEras position that C-10 has failed to meet its burden of submitting an admissible contention.
The Motion Is Untimely And Was Filed Without Prior Consultation C-10s Motion also should be rejected on procedural grounds. By any measure, considering any possible triggering occurrence or circumstance, C-10s Motion is untimely.17 Additionally, 10 C.F.R. § 2.323(b) states that any motion must be rejected if it fails to include a consultation certification. C-10s Response includes no such certification; nor did C-10 contact NextEra for such purposes. Accordingly, the Motion to Strike should be rejected for these additional reasons.18 Conclusion The Commission should reject C-10s de facto Motion to Strike because it is untimely, procedurally deficient, and fails to identify any valid basis for excluding NextEras confirmatory testing arguments.
16 C-10 admits it responds to the [confirmatory testing] argument here for the first time. Response at 2.
However it is far too late to cure this fatal defect, which was raised long ago by NextEra. Even assuming, arguendo, its response is somehow timely, C-10s primary complaintthat confirmatory testing is merely a recommendation, rather than a commitmenthas been mooted by NextEras response to the NRCs first set of RAIs, in which it committed to perform the recommended testing. See Letter from E.
McCartney, NextEra, to NRC Document Control Desk, Non-Proprietary Enclosure 1 to SBK-L-17156 (Oct. 17, 2017) (ML17291B136).
17 It was not filed within 10 days of the prehearing conference (June 29, 2017), service of the transcript from the prehearing conference (July 17, 2017), or service of the Appeal (Oct. 31, 2017), as required by Commission regulations at 10 C.F.R. § 2.323(a)(2).
18 The requirement to consult other parties prior to filing a motion is a substantive obligation, not a matter of pleading format. Accordingly, even pro se petitioners are required to comply. See Fla. Power & Light Co.
(Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-15-25, 82 NRC 389, 397 n.53 (2015) (To be sure, although we afford some leniency to pro se petitioners . . . we expect parties to our proceedings to fulfill the obligations imposed by our rules.)
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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 4th day of December 2017 5
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
)
In the Matter of: )
) Docket No. 50-443-LA-2 NEXTERA ENERGY SEABROOK, LLC )
) December 4, 2017 (Seabrook Station Unit 1) )
)
CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, the foregoing NextEras Answer to C-10s De Facto Motion to Strike was 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/ 94568186