ML20254A235
| ML20254A235 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 09/10/2020 |
| From: | Lighty R Morgan, Morgan, Lewis & Bockius, LLP, NextEra Energy Seabrook |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| Shared Package | |
| ML20254A233 | List: |
| References | |
| 50-443 LA-2, ASLBP-17-953-02-LA-BD01, LBP-20-09, RAS 55783 | |
| Download: ML20254A235 (10) | |
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 TO REOPEN THE RECORD FOR CONSIDERATION OF SUPPLEMENTAL TESTIMONY 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 to Reopen the Record for Consideration of Supplemental Testimony Regarding License Conditions in LBP-20-09 (Motion to Reopen).1 The Motion to Reopen asks the Atomic Safety and Licensing Board (Board) to reopen the evidentiary record in this proceedingwhich the Board closed over seven months ago2to allow additional new testimony from its witness, Victor E.
Saouma, Ph.D.3 As explained below, the Board should deny the Motion to Reopen because C-10 1
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-20-09 (Aug. 31, 2020) (Motion to Reopen). The Motion to Reopen also presents C-10s request for reconsideration of LBP-20-9, id. at 2-4, and is accompanied by the Declaration by Victor E. Saouma, Ph.D[.] in Support of C-10 Research and Education Foundations Motion to Re-open the Record (Aug. 28, 2020). NextEra is responding to C-10s request for reconsideration in a separate answer. See NextEras Answer Opposing C-10s Motion for Leave and Motion for Partial Reconsideration of LBP-20-9 (Sept. 10, 2020).
2 Order (Admitting Exhibits, Closing the Record of the September 2019 Evidentiary Hearing, and Providing Additional Instruction for Supplemental Proposed Finding) (Jan. 17, 2020) (ML20017A076).
3 Supplemental Testimony of Victor E. Saouma, Ph.D[.] Regarding License Conditions in LBP-20-09 (Aug. 28, 2020) (Exhibit INT052) (Proprietary).
has not satisfied the high standard necessary to justify the extraordinary act of reopening the record at this point in the proceeding.
II. BACKGROUND The Board issued its Initial Decision, LBP-20-9, on August 21, 2020.4 Therein, the Board resolved the reformulated contention in NextEras favor, subject to four license conditions.5 C-10s Motion to Reopen asks that the Board reopen the evidentiary record in this proceeding and accept new testimony from Dr. Saouma. In that new testimony (proposed exhibit INT052), Dr. Saouma criticizes the adequacy of the Boards Initial Decision and articulates his preferred modifications to the four license conditions imposed by the Board. Ultimately, C-10 seeks to rely on INT052 to support its Motion for Reconsideration, in which it asks the Board to modify the license conditions in LBP-20-9 to conform to Dr. Saoumas wishes.
III. LEGAL STANDARDS To reopen the record, 10 C.F.R. § 2.326 requires C-10 to show that its motion (1) was timely, (2) concerns a significant safety or environmental issue, and (3) shows that the Board would have reached a materially different result had the newly proffered evidence been considered initially.6 The Commission considers reopening the record to be an extraordinary 4
NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), LBP-20-9, 92 NRC __ (Aug. 21, 2020) (slip op.).
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 10 C.F.R. § 2.326(a)(1)-(3).
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action,7 and has explained that the high standard in 10 C.F.R. § 2.326 imposes a stiff test and represents a deliberately heavy burden.8 C-10, alone, bears this burden.9 IV. THE BOARD SHOULD DENY THE MOTION TO REOPEN A. The Motion to Reopen Does Not Satisfy the Timeliness Requirement C-10s only assertion that the Motion to Reopen satisfies the timeliness requirement in 10 C.F.R. § 2.326(a)(1) is presented in a single sentence noting that it was filed within ten days of the issuance of LBP-20-09.10 The Motion to Reopen was, in fact, filed within 10 days of the Initial Decision. However, the timeliness element in 10 C.F.R. § 2.326(a)(1) does not refer to the 10-day filing deadline for general motions under 10 C.F.R. § 2.323. Rather, this prong of the reopening standard considers whether the new arguments or information could have been raised earlier in the proceeding.11 As explained below, Dr. Saoumas fundamental arguments in INT052 could have beenand some even wereraised earlier here. Thus, C-10 has not met its burden to satisfy the timeliness requirement.
In INT052, Dr. Saouma explains his view that NextEras methodology, even as modified by the License Conditions, is unacceptable because it does not contain (1) a prescriptive 7
Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station), CLI-11-2, 73 NRC 333, 338 (2011).
8 Id. (quoting AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-28, 68 NRC 658, 674 (2008)). See also Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 287 (2009) (citing La. Power & Light Co. (Waterford Steam Elec. Station, Unit 3), CLI-86-1, 23 NRC 1, 5 (1986)); Va. Elec. & Power Co., (North Anna Power Station, Unit 3), CLI-12-14, 75 NRC 692, 700 (2012); Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-06-03, 63 NRC 19, 25 (2006).
9 Oyster Creek, CLI-08-28, 68 NRC at 668-69.
10 Motion to Reopen at 4.
11 See Tx. Util. Elec. Co. (Comanche Peak Steam Electric Station, Units 1 & 2), CLI-99-12, 36 NRC 62, 76 (1992) (Petitioners have again misinterpreted the timeliness requirement.) The issue is not whether the Motion to Reopen was filed within 10 days of the Initial Decision. Instead, the test is whether the information upon which the movant relies could have been presented to the NRC at an earlier date. Id. (citations omitted).
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requirement for error bars,12 (2) a prescriptive requirement for acoustic sensors,13 (3) a prescriptive definition of microcracking,14 and (4) a prescriptive quantitative trigger for further evaluation of the monitoring intervals.15 In other words, the relevant circumstance that C-10 seeks an opportunity to challenge in its proposed new testimony is the absence of these features in NextEras methodology (as modified by the License Conditions). But, NextEras original methodologywhich has long been available for Dr. Saoumas reviewalso did not contain these prescriptive elements. C-10 fails to explain why the continued absence of these elements, following the Boards imposition of the License Conditions, allegedly creates some new circumstance to which INT052 timely responds.
Longstanding precedent explains that [t]he critical question is whether the information could have been submitted earlier.16 Here, NextEras methodology has long been available to C-10. That methodology did not contain Dr. Saoumas preferred prescriptive elements (as articulated in INT052) before LBP-20-9 was issued; and it still does not contain such elements now, as modified by the Board. In other words, the issuance of the License Conditions did not materially alter the methodology vis--vis Dr. Saoumas preferred elements. Thus, C-10 could have submitted these substantive critiques of the methodology at the outset of this proceeding.
Indeed, this is further confirmed by the fact that Dr. Saouma actually submitted testimony criticizing the absence of error bars and acoustic sensors in the methodology.17 Ultimately, the answer to the critical question is yesnotwithstanding the recent issuance of the License 12 INT052 at 1-2 (as to Condition (c)).
13 Id. at 2 (as to Condition (d)).
14 Id. at 2-4 (as to Condition (e)).
15 Id. at 4-5 (as to Condition (f)).
16 Metro. Edison Co. (Three Mile Island Nuclear Station, Unit No. 1), ALAB-815, 22 NRC 198, 202 (1985)
(citations omitted).
17 LBP-20-9, 92 NRC at __ (slip op. at 142, 146, 164, 166-67, 169).
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Conditions, the fundamental programmatic criticisms proffered in INT052 were or could have been raised earlier. Thus, C-10 has not met its burden to demonstrate the timeliness of the Motion to Reopen.
B. The Motion to Reopen Does Not Identify a Significant Safety Issue C-10s sole assertion that the Motion to Reopen identifies a significant safety or environmental issue, as required by 10 C.F.R. § 2.326(a)(2), is presented in a single conclusory sentence claiming that INT052 addresses an alleged inadequacy in the Boards License Conditions.18 However, INT052 offers little more than Dr. Saoumas difference of opinion with the Board and criticisms of LBP-20-9. It does not, however, pinpoint any error therein, much less identify a significant safety issue.
In INT052, Dr. Saouma argues that a prescriptive definition of microcracking and a prescriptive quantitative trigger for further evaluation of the monitoring intervals should be included in the License Conditions because, otherwise, NextEra would have too much discretion in executing its ASR monitoring program.19 He also argues that NextEras methodology, even as modified by the License Conditions, remains insufficient because it lacks prescriptive requirements for error bars and acoustic sensors.20 However, the Board has already spoken on these topics. As explained in NextEras Answer Opposing C-10s Motion for Reconsideration, C-10 has identified no error in the Boards rulings in this regard.
More specifically, in crafting the License Conditions, the Board considered the appropriate level of engineering discretion.21 Thus, Dr. Saoumas commentary in INT052 18 Motion to Reopen at 4.
19 INT052 at 2-5.
20 Id. at 1-2.
21 Seabrook, LBP-20-9, 92 NRC at __ (slip op. at 139).
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obviously does not identify something the Board overlooked, much less explain why it allegedly is flawed.22 Instead, Dr. Saouma offers little more than his conclusion that the terminology in the License Conditions is too vague to permit the required reasonable assurance finding.23 At best, this commentary merely articulates (without support) a difference of opinion with the Board. It also purports to provide a legal conclusion (i.e., regarding the NRCs reasonable assurance threshold in 10 C.F.R. Part 50) on which Dr. Saouma is not qualified to testify.24 At bottom, this line of commentary fails to identify a significant safety issue.
Likewise, the Board already consideredand rejectedDr. Saoumas demands for prescriptive requirements associated with error bars25 and acoustic sensors.26 Again, Dr.
Saoumas commentary in INT052 does not identify something the Board overlooked, and entirely fails to acknowledge or engage with the Boards reasoning. Rather, it simply reiterates Dr. Saoumas earlier testimony regarding his preferred methodologies. Differing analyses by an expert of factual information already in the record, and already considered and rejected by the Board, provide an insufficient basis to reopen a closed evidentiary record.27 22 Moreover, to the extent Dr. Saouma implies a significant safety issue exists because NextEra would abuse this discretion, or the NRC would abdicate its oversight role, he provides no basis for doing sothus, such arguments are inappropriate and must be disregarded. See Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-01-9, 53 NRC 232, 235 (2001).
23 INT052 at 4.
24 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). Notably, although the Board explained that [c]ounsel may argue how the law should be interpreted, id., the one sentence in the Motion to Reopen discussing 10 C.F.R. § 2.326(b)(2) presents no argument regarding the reasonable assurance standard.
25 See Seabrook, LBP-20-9, 92 NRC at __ (slip op. at 164).
26 See id. at __ (slip op. at 142, 146).
27 Hous. Lighting & Power Co. (S. Texas Project, Units 1 & 2), LBP-85-42, 22 NRC 795, 799 (1985) (citing Pac.
Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-644, 13 NRC 903, 994-95 (1981)).
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Ultimately, to demonstrate a significant safety issue, petitioners must identify uncorrected . . . errors that endanger safe plant operation.28 Dr. Saoumas disagreement with the Board as to the appropriate level of engineering discretion necessary for a reasonable assurance finding does not remotely provide this required demonstration. Thus, the Motion for Reconsideration should be rejected for failing to satisfy 10 C.F.R. § 2.326(a)(2).
C. The Motion to Reopen Fails to Demonstrate That the Board Would Have Reached a Materially Different Result Finally, as required by 10 C.F.R. § 2.326(a)(3), C-10 argues that the Motion to Reopen demonstrates that the Board would have reached a materially different result if it had reviewed INT052 initially. More specifically, C-10 claims this is so because if Dr. Saoumas proposed changes are adopted, the level of protection of public health and safety will be substantially increased to a level of adequacy.29 But this circular argument entirely misses the mark. The requirement in 10 C.F.R. § 2.326(a)(3) does not query what may happen if the Board grants the Motion to Reopen, considers INT052, grants the Motions for Leave and Reconsideration, and revises the License conditions as instructed by Dr. Saouma. Rather, the third reopening prong requires a front-end demonstration by the movant that such a sequence of events is likely.
C-10 has not provided such a demonstration here.
As the Commission has explained, to satisfy this prong, [t]he evidence must be sufficiently compelling to suggest a likelihood of materially affecting the ultimate results in the proceeding.30 Neither the Motion to Reopen nor INT052 offer compelling evidence for such a demonstration. As explained throughout both this Answer and NextEras Answer to C-10s 28 Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 and 2), ALAB-940, 32 NRC 225, 243 (1990) (quoting Pac.
Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-756, 18 NRC 1340, 1345)
(1983)).
29 Motion to Reopen at 4-5 (emphasis added).
30 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-10, 75 NRC 479, 499 (2012).
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Motion for Reconsideration, INT052 merely provides post-hoc commentary on topics already considered in LBP-20-9. The Board considered the appropriate level of engineering discretion.31 The Board considered error bars32 and acoustic sensors.33 Inexplicably, neither the Motion to Reopen nor INT052 even acknowledge the Boards consideration of these issuesmuch less identify some error therein. C-10 simply has not demonstrated that recycled demands for error bars and acoustic sensors, as presented in INT052, would have swayed the Boards decision had they been included in the initial testimony. Likewise, C-10 has not demonstrated that Dr.
Saoumas thoughts on the level of discretion necessary for a reasonable assurance finding would have been afforded any weight by the Board, much less that this testimony likely would have changed the outcome of the proceeding in a material fashion.
Ultimately, all of these reasons suggest that a materially different result is decidedly unlikely. C-10, alone, bears the burden to demonstrate otherwise.34 It has not done so. Thus, the Motion to Reopen should be denied for this additional reason.
V. CONCLUSION For the reasons articulated above, because C-10 has not satisfied its deliberately heavy burden to demonstrate satisfaction of all three prongs of 10 C.F.R. § 2.326(a), as required to justify the extraordinary action of reopening the record, the Board should deny the C-10s Motion to Reopen and disregard INT052. Alternatively, if the Board grants the Motion to Reopen, it should issue a corresponding scheduling order for the submission of responsive testimony from NextEra and the NRC Staff.
31 Seabrook, LBP-20-9, 92 NRC at __ (slip op. at 139).
32 See id. at __ (slip op. at 164).
33 See id. at __ (slip op. at 142, 146).
34 Oyster Creek, CLI-08-28, 68 NRC at 668-69 (2008).
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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 (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 9
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 to Re-open the Record for Consideration of Supplemental Testimony 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/ 115925288