ML20254A234

Nextera'S Answer Opposing C-10 Motion for Leave and Motion for Partial Reconsideration of LBP-20-9

ML20254A234
Person / Time
Site:	Seabrook
Issue date:	09/10/2020
From:	Bessette P, Hamrick S, Lighty R Morgan, Morgan, Lewis & Bockius, LLP, NextEra Energy Seabrook
To:	Atomic Safety and Licensing Board Panel
SECY RAS
Shared Package
ML20254A233	List: ML20254A234 ML20254A235
References
50-443 LA-2, ASLBP-17-953-02-LA-BD01, LBP-20-9, RAS 55783
Download: ML20254A234 (11)

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 )

) September 10, 2020 (Seabrook Station Unit 1) )

)

NEXTERAS ANSWER OPPOSING C-10S MOTION FOR LEAVE AND MOTION FOR PARTIAL RECONSIDERATION OF LBP-20-9 I. INTRODUCTION In accordance with 10 C.F.R. § 2.323(c), NextEra Energy Seabrook, LLC (NextEra) submits this Answer opposing C-10 Research and Education Foundations (C-10) Motion for Leave to File Motion for Partial Reconsideration (Motion for Leave),1 and Motion for Partial Reconsideration of LBP-20-09 (Motion for Reconsideration) (collectively, Motions).2 As discussed below, C-10s Motions ask the Atomic Safety and Licensing Board (Board) to modify the four license conditions imposed in LBP-20-9.3 The Board should deny these Motions because they merely seek an opportunity to file new post-hoc commentary by Dr. Saouma on LBP-20-9, but do not remotely satisfy the high legal standard applicable here, which requires demonstration of a manifest injustice in the decision that renders it invalid.

1 C-10 Research and Education Foundations Motion for Leave to File Motion for Partial Reconsideration of LBP-20-9 (Aug., 31, 2020) (Motion for Leave).

2 C-10 Research and Education Foundations Motion for Partial Reconsideration and Motion to Re-Open the Record for Consideration of Supplemental Testimony Regarding License Conditions in LBP-20-9 (Aug. 31, 2020) (Motion for Reconsideration). The Motion for Reconsideration also presents C-10s request to reopen the record, id. at 4-5, which is accompanied by new proposed testimony attached thereto, see Supplemental Testimony of Victor E. Saouma, Ph.D[.] Regarding License Conditions in LBP-20-09 (Aug. 28, 2020) (Exhibit INT052) (Proprietary)). NextEra is responding to C-10s reopening request in a separate answer. See NextEras Answer Opposing C-10s Motion to Reopen the Record (Sept. 10, 2020).

3 NextEra Energy Seabrook LLC (Seabrook Station Unit 1), LBP-20-9, 92 NRC __ (Aug. 21, 2020) (slip op.).

II. BACKGROUND The Board issued its Initial Decision, LBP-20-9, on August 21, 2020,4 resolving the reformulated contention in NextEras favor, subject to the following license conditions:

c. NextEra shall undertake the monitoring required by MPR-4273, Appendix B, Check 3, for control extensometers every six months, rather than in 2025 and every ten years thereafter.

d. If stress analyses conducted pursuant to the SEM show that the stress in the rebar from ASR-induced expansion and other loads will exceed the yield strength of the rebar, NextEra must develop a monitoring program sufficient to ensure that rebar failure or yielding does not occur, or is detected if it has already occurred, in the areas at-risk of rebar failure or yielding.

e. If the ASR expansion rate in any area of a Seabrook seismic Category I structure significantly exceeds 0.2 mm/m (0.02%) through-thickness expansion per year, NextEras Management will perform an engineering evaluation focused on the continued suitability of the six-month monitoring interval for Tier 3 areas. If the engineering evaluation concludes that more frequent monitoring is necessary, it shall be implemented under the SMP.

f. Each core extracted from Seabrook Unit 1 will be subjected to a petrographic analysis to detect internal microcracking and delamination.5 The Board stated that, by adding the above four license conditions, it agreed with NRC Staff that NextEras proposed method to evaluate seismic Category I structures affected by alkali-silica reaction (ASR) is acceptable and provides reasonable assurance that these structures [will] continue to meet the relevant regulatory requirements.6 In its Motions, C-10 asks the Board to reconsider LBP-20-9 to address new proposed testimony from its witness, Dr.

Saouma, regarding the alleged inadequacy of the four License Conditions.7 4

The Boards Initial Decision provides the procedural history of this matter up to the Board closure of the record on January. 17, 2020. See id. at __ (slip op. at 3-21).

5 Id. at __ (slip op. at 192-93).

6 Id. at __ (slip op. at 193).

7 Motion for Leave at 1; see also Motion for Reconsideration at 4.

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III. LEGAL STANDARDS Prior to 2004, the applicable legal standard permitted parties to seek reconsideration of issues that merely may have been misunderstood or overlooked in an adjudicatory decision.8 In 2004, however, the Commission adopted a new compelling circumstances standard, which it described as a higher standard, and is intended to permit reconsideration only where manifest injustice would occur in the absence of reconsideration.9 The Commission further clarified that reconsideration is an extraordinary action and should not be used as an opportunity to reargue facts and rationales which were (or should have been) discussed earlier.10 Thus, under the current rules, the proponent of a reconsideration request must affirmatively demonstrate the existence of compelling circumstances, such as the existence of a clear and material error in a decision, which could not have been reasonably anticipated, which renders the decision invalid.11 Under 10 C.F.R. § 2.323(e), the proponent also must seek leave of the presiding officer, which requires the same showing of compelling circumstances.

IV. THE BOARD SHOULD DENY BOTH MOTIONS A. The Board Should Deny the Motion for Leave The legal standard applicable to the Motion for Leave, as articulated in the plain text of 10 C.F.R. § 2.323(e), is identical to the standard applicable to the Motion for Reconsideration.

In other words, the Board may grant C-10s Motion for Leave upon a showing of compelling circumstances. As explained in Section IV.B, below, C-10 has not remotely satisfied this standard. Accordingly, the Board should deny the Motion for Leave.12 8

Changes to Adjudicatory Process, 69 Fed. Reg. 2,182, 2,207 (Jan. 14, 2004).

9 Id. (emphasis added).

10 Id.

11 10 C.F.R. §§ 2.323(e), 2.345(b).

12 Licensing boards in other proceedings have suggested that there exists no legal standard applicable to motions for leave to seek reconsideration. See, e.g., Tenn. Valley Auth. (Clinch River Nuclear Site Early Site Permit 3

B. The Board Should Deny the Motion for Reconsideration The Motion for Reconsideration purports to satisfy the compelling circumstances standard based on proposed new testimony from Dr. Saouma, as presented in exhibit INT052.13 Therein, Dr. Saouma expresses his views that the four license conditions imposed by the Board in LBP-20-9 should be more prescriptive and should impose additional monitoring and analysis techniques preferred by Dr. Saouma.

As an initial matter, because the Board closed the evidentiary record in this proceeding over seven months ago, C-10 is not presently authorized to submit additional exhibits on the record. 14 Thus, the Motion for Reconsideration hinges on an assumption that the Board will grant C-10s Motion to Reopen and retroactively authorize the filing of INT052. For the multiple reasons explained in NextEras separate Answer thereto, the Board should deny that motion and disregard INT052. If the Board agrees, the Motion for Reconsiderationwhich necessarily relies on that (disallowed) documentalso must be denied.15 Furthermore, the new testimony presented in INT052 itself fails to satisfy the Commissions high bar for granting reconsideration. As explained in further detail below, Dr.

Application), Licensing Board Memorandum and Order (Granting Intervenors Motion for Leave to File Motion for Partial Reconsideration, and Denying Motion for Partial Reconsideration) at 3 (Nov. 9, 2017)

(unpublished) (ML17313A050). If so, the Board should be guided by its duty . . . to avoid delay and maintain order. 10 C.F.R. § 2.319. After nearly four years of litigation, a record of oral and written testimony and exhibits that spans many thousands of pages, many months of Board deliberation, and a nearly 200-page Initial Decision, granting the Motion for Leave (which amounts to little more than a post-decision opportunity to comment on and criticize the Boards decision, and to superimpose Dr. Saoumas preferences) would only delay the orderly conclusion of this proceeding without good cause for doing so. Thus, it should be denied.

13 Motion for Reconsideration at 3-4 (discussing INT052).

14 Order (Admitting Exhibits, Closing the Record of the September 2019 Evidentiary Hearing, and Providing Additional Instruction for Supplemental Proposed Finding) (Jan. 17, 2020) (ML20017A076).

15 C-10 proposes to incorporate by reference INT052 into its Motion for Reconsideration and/or Motion to Reopen. Motion for Reconsideration at 2. However, wholesale incorporations of external documents are impermissible in adjudicatory filings. See FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), CLI-12-8, 75 NRC 393, 404 n.67 (2012). C-10s stated desire for public notice, see Motion for Reconsideration at 2 n.2, does not excuse its vague and improper wholesale incorporation here.

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Saouma does not identify any error in the Boards decision. Rather, he expresses his dissatisfaction with the ruling and notes how he would modify the license conditions. But Dr.

Saoumas personal preferences do not conjure a manifest injustice. Moreover, C-10 fails to explain why Dr. Saouma could not have provided these views earlier in the proceeding.

Accordingly, the Motion for Reconsideration should be denied on either or both of these additional grounds.

1. Dr. Saoumas Preferences Do Not Reveal Any Error in LBP-20-9, Much Less One That Is Both Clear and Material C-10 argues that INT052 identifies clear and material errors in the ASLBs reasoning with respect to the composition of the License Conditions in LBP-20-9 because, in Dr.

Saoumas view, they permit an excessive and unnecessary degree of discretion.16 C-10 further argues that this difference in opinion between the Board and Dr. Saouma as to the appropriate level of discretion renders LBP-20-9 invalid.17 These arguments, however, are unpersuasive.

As an initial matter, the concept of engineering discretion (also known as engineering judgment) has long been part of the fabric of the NRCs safety regulation framework. To the extent C-10 suggests that a licensing action that permits some degree of licensee discretion is somehow unsafe and constitutes a clear and material error, its claim is entirely unsupported and contrary to agency precedent.18 Additionally, as demonstrated in LBP-20-9, this Board was cognizant of, and squarely considered, the question of the appropriate level of licensee discretion.19 Thus, Dr. Saouma has not identified an issue that was overlooked in LBP-20-9.

16 Motion for Reconsideration at 3.

17 Id. at 4.

18 See, e.g., S. Nuclear Operating Co., Inc. (Vogtle Electric Generating Plant, Units 3 & 4), CLI-17-2, 85 NRC 33 (2017) (affirming the rejection of a challenge to engineering judgment in the license amendment context).

19 Seabrook, LBP-20-9, 92 NRC at __ (slip op. at 139).

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Simply put, Dr. Saoumas preference for more prescriptive license conditions does not identify any error in LBP-20-9.

More specifically, Dr. Saouma points to the requirement in Condition (e) that NextEra take certain actions if the ASR expansion rate significantly exceeds 0.2 mm/m (0.02%) through-thickness expansion per year.20 He then says that, in his view, the term significantly is too vague and should be removed such that the condition contains only a prescriptive value.21 The basis for his recommendation appears to be that, without a prescriptive value, there is no . . .

limit [to] NextEras discretion.22 But that is simply untrue. NextEras engineering judgment in this regard would be subject to robust regulatory oversight from the NRC.23 Moreover, the term significantly is used in countless codified NRC regulatory provisions, and the NRC routinely inspects against and enforces these requirements.24 Dr. Saouma identifies no instance in which the word significantly has ever been interpreted to be unlawful or allow unlimited or inappropriate licensee discretion.

Moreover, to the extent Dr. Saouma implies NextEra would deliberately abuse this discretion, or the NRC would abdicate its oversight role, such arguments are inappropriate and must be disregarded.25 Dr. Saouma also argues that prescriptive numerical limits are necessary for a reasonable assurance finding.26 However, he provides no explanation or support, 20 INT052 at 4 (citing Seabrook, LBP-20-9, 92 NRC at __ (slip op. at 140)).

21 Id.

22 Id.

23 See, e.g., Tr. at 575, 740 (explaining oversight continues through the life of the plant).

24 See, e.g., 10 C.F.R. § 50.61a(f)(6)(i)(B) (requiring licensees to determine if the surveillance data show a significantly different trend than predicted in a reactor pressure vessel embrittlement model);

§ 50.72(b)(3)(ii)(B) (requiring licensees to provide a notification to the NRC within 8 hours9.259259e-5 days <br />0.00222 hours <br />1.322751e-5 weeks <br />3.044e-6 months <br /> of a plant being in an unanalyzed condition that significantly degrades plant safety).

25 See Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-01-9, 53 NRC 232, 235 (2001)

(in the absence of evidence to the contrary, it is improper to assume a licensee will violate NRC regulations).

26 INT052 at 4.

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whatsoever, for this conclusory assertion. In fact, the Board held that Dr. Saouma is not qualified to opine on legal thresholds, such as the NRCs reasonable assurance standard.27 Ultimately, C-10s suggestion that the word significantly constitutes a clear and material error, or would afford unlimited discretion, is unpersuasive and unsupported; and Dr.

Saoumas unqualified opinions on the matter do not otherwise identify any manifest injustice that renders the Boards decision invalid.

Similarly, as to the requirement in Condition (f) that NextEra perform petrographic analysis to detect internal microcracking, Dr. Saouma provides the unsurprising observation that microcracks can range in size and that there exist different methods of detecting them.28 He then demands that microcracking be defined prescriptively to mean cracks as small as 10 m.29 However, Dr. Saouma offers no explanation as to why the absence of his prescriptive numerical definition in the license condition allegedly constitutes a manifest injustice.30 In a similar vein, Dr. Saouma complains that Condition (d) (which requires NextEra to develop a rebar monitoring program if certain criteria are met) leaves too much discretion to NextEra, and should be revised to include a prescriptive requirement for the use of properly placed and attuned acoustic sensors monitored at six month intervals.31 But he fails to explain why the absence of an acoustic sensor requirement constitutes a clear and material error. In fact, Dr. Saouma raised this demand earlier in the proceeding, and the Board was not 27 See Seabrook, LBP-20-9, 92 NRC at __ (slip op. at 50) (Dr. Saouma is not an expert on NRC regulations);

id. at __ (slip op. at 50 n.353) (noting this is not a proper subject of expert testimony). See also Tr. at 365-66 (C-10s counsel interrupting the evidentiary hearing to advise the Board that Dr. Saouma is unfamiliar with common NRC terminology, concepts, and acronyms).

28 INT052 at 5.

29 Id.

30 Dr. Saouma also provides no explanation or basis for his seemingly random selection of 10 m as the appropriate prescriptive value, and this matter certainly was not addressed during the hearing.

31 INT052 at 2.

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persuaded.32 Here, he fails to engage withor even acknowledgethe Boards reasoning, much less identify some error therein. To the extent his (unarticulated) theory is that LBP-20-9 is clearly and materially erroneous because it provides NextEra unlimited discretion or because his preferred conditions are necessary for a reasonable assurance finding, these arguments must be rejected for the same reasons noted above. At bottom, Dr. Saoumas monitoring preferences do not reveal any error that renders LBP-20-9 invalid.

Finally, Dr. Saouma offers his opinion that Condition (c), which imposes a six-month periodicity for monitoring control extensometers at Seabrook, does not adequately resolve his concerns.33 He argues that expansion data is difficult to interpret and thus the Board should revise the license condition to add language requiring the use of error bars.34 Fundamentally, an expression of differing views on the adequacy of a decision does not identify a clear and material error in that decision. More directly, the Board already consideredand rejectedDr. Saoumas demand for a prescriptive error bar requirement to account for data uncertainty.35 Dr. Saouma identifies no manifest injustice in that rejection. As the Commission has clearly explained, the extraordinary action of reconsideration is not an opportunity to reargue facts and rationales which were (or should have been) discussed earlier.36 In sum, neither C-10s attempt to rehash previously-rejected arguments (without discussing the Boards reasons for rejecting those arguments), nor its proffered commentary regarding Dr. Saoumas preference for more prescriptive license conditions, reveals any error in the Boards decision. Accordingly, the Motion for Reconsideration should be rejected.

32 Seabrook, LBP-20-9, 92 NRC at __ (slip op. at 142, 146).

33 INT052 at 1-2.

34 Id at 2.

35 See Seabrook, LBP-20-9, 92 NRC at __ (slip op. at 164).

36 Changes to Adjudicatory Process, 69 Fed. Reg. at 2,207.

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2. C-10 Could Have Anticipated That the Initial Decision Would Impose License Conditions In addition to demonstrating compelling circumstances such as a clear and material error in the decision, C-10 is further required to make an affirmative demonstration that the allegedly compelling circumstances could not have been reasonably anticipated.37 It has not done so here. Instead, C-10 advances the unpersuasive claim that it could not have anticipated that the Boards decision would impose license conditions.38 C-10s counselwho has extensive NRC adjudicatory experienceshould be well aware that this is a regular aspect of an initial decision. Licensing boards have long been empowered to issue decisions requiring appropriate[] condition[s] on NRC licensing actions in contested proceedings.39 In fact, in rejecting C-10s Emergency Petition earlier in this proceeding, the Commission explicitly told C-10 to anticipate this possibility.40 Thus, C-10s claim does not hold water.

C-10 also claims entitlement to reconsideration because it had no prior opportunity to address the adequacy of LBP-20-9 before it was issued.41 But such is the case with every adjudicatory decision in the history of the agency. Using C-10s logic, parties could seek reconsideration based on the unremarkable fact that they (obviously) did not see a decision before it was issued. But, such an interpretation would effectively nullify this prong of the reconsideration standard, and therefore is not a valid interpretation.

Finally, C-10 also claims that it did not have a prior opportunity to critique the specific conditions imposed by the Board. But this argument is equally unpersuasive. The conditions 37 10 C.F.R. §§ 2.323(e), 2.345(b).

38 Motion for Reconsideration at 3.

39 10 C.F.R. § 2.340.

40 NextEra Energy Seabrook LLC (Seabrook Station, Unit 1), CLI-19-7, 90 NRC 1, 11 (2019) (citing Entergy Nuclear Vt. Yankee, LLC (Vermont Yankee Nuclear Power Station), CLI-06-8, 63 NRC, 235, 238 (2006)).

41 Motion for Reconsideration at 3.

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represent adjustments to the original methodology proposed by NextEra, which was clearly described in the extensive evidentiary record of this proceeding, and clearly did not contain the prescriptive elements Dr. Saouma demands in INT052. C-10 fails to explain why License Conditions allowing the continued absence of these prescriptive elements (e.g., the Boards rejection of Dr. Saoumas arguments on error bars and acoustical sensors) could not reasonably have been anticipated. At bottom, C-10 does not identify any specific aspect of the license conditions that could not have been reasonably anticipated.

V. CONCLUSION For the reasons articulated above, the Board should deny the Motion for Leave and the Motion for Reconsideration.

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 (202) 349-3496 (202) 739-5796 steven.hamrick@fpl.com paul.bessette@morganlewis.com Signed (electronically) by Ryan K. Lighty Ryan K. Lighty, Esq.

MORGAN, LEWIS & BOCKIUS LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 (202) 739-5274 ryan.lighty@morganlewis.com Counsel for NextEra Energy Seabrook, LLC Dated in Washington, DC this 10th day of September 2020 10

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 )

) September 10, 2020 (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 Opposing C-10s Motion for Leave and Motion for Partial Reconsideration of LBP 20-9 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 (202) 739-5274 ryan.lighty@morganlewis.com Counsel for NextEra Energy Seabrook, LLC DB1/ 115898726