ML20279A481
| ML20279A481 | |
| Person / Time | |
|---|---|
| Site: | Seabrook  |
| Issue date: | 10/05/2020 |
| From: | Curran D C-10 Research & Education Foundation, Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-443-LA-2, ASLBP 17-953-02-LA-BD01, LBP-20-09, RAS 55817 | |
| Download: ML20279A481 (7) | |
Text
MAY CONTAIN PROPRIETARY INFORMATION -
SUBJECT TO PROTECTIVE ORDER Re-filed Oct. 5, 2020 as public document September 17, 2020 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of )
NextEra Energy Seabrook, LLC ) Docket No. 50-443 (Seabrook Station, Unit 1) )
_____________________________________)
C-10 RESEARCH AND EDUCATION FOUNDATIONS REPLY TO OPPOSITIONS TO MOTION FOR PARTIAL RECONSIDERATION AND MOTION TO RE-OPEN THE RECORD FOR CONSIDERATION OF SUPPLEMENTAL TESTIMONY REGARDING LICENSE CONDITIONS IN LBP-20-09 I. INTRODUCTION Pursuant to 10 C.F.R. §§ 2.32(e), C-10 Research and Education Foundation (C-10) hereby replies to NextEras Answer Opposing C-10s Motion for Leave and Motion for Partial Reconsideration of LBP-20-9 (Sept. 10, 2020) (NextEra Answer I), NextEras Answer Opposing C-10s Motion to Reopen the Record for Consideration of Supplemental Testimony (Sept. 10, 2020) (NextEra Answer II) and NRC Staffs Answer to C-10s Motion for Partial Reconsideration and to Reopen the Record (Sept. 10, 2020) (NRC Staff Answer). NextEra Answer I, NextEra Answer II, and NRC Staff Answer were filed in response to C-10s 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) (C-10s Motion to Reconsider and Motion to Re-open). 1 1
This Reply also references the following recent filings: Ex. INT52, Supplemental Testimony of Victor E. Saouma, Ph.D Regarding License Conditions in LBP-20-09 (Aug. 28, 2020)
(Proprietary) (Saouma Supp. Test.); Ex. INT53, Rebuttal Supplemental Testimony of Victor E.
Saouma, Ph.D Regarding License Conditions in LBP-20-09 (Sept. 17, 2020) (Proprietary)
(Saouma Rebuttal Supp. Test.), and the Affidavit of Angela Buford, Bryce Lehman, Jacob
The NRC Staff does not object to C-10s Motion to Reconsider LBP-20-09, but objects to C-10s Motion to Re-open. NextEra objects both to C-10s Motion to Reconsider and Motion to Re-open. In Section II.A, C-10 replies to their objections.
The Staff agrees with the necessity of one of C-10s proposed change to the ASLBs four new license conditions (removal of the word significantly from License Condition (d)), and also proposes changes of its own to several license conditions. Staff Answer at 2-3. See also Staff Aff. But the Staff objects to all other changes to the license conditions proposed by C-10.
C-10 responds to the Staffs specific proposals below in Section II.B.
II. ARGUMENT A. C-10 Meets the Standards for Reconsideration and Re-Opening the Record.
The NRC Staff agrees with C-10 that the language of the license conditions imposed by the Atomic Safety and Licensing Board (ASLB) in LBP-20-09 could not have reasonably been anticipated. Staff Answer at 2. In addition, the Staff proposes several modifications to the license conditions, including a modification identical to C-10s that the word significantly should be removed from License Condition (e). NRC Answer at 2. See also Staff Aff., A.9 at 9; Rebuttal Saouma Supp. Test., ¶ 21. The Staff asserts that inclusion of the term significantly constitutes clear and material error that renders LBP-20-9 invalid. Staff Answer at 2. The Staff also proposes several substantive and editorial changes to the license conditions. Id. at 2-3.
By proposing these changes, the Staff demonstrates that reconsideration is timely and appropriate in these circumstances, where the exact terms of new license conditions were not previously proposed or discussed in the hearing. Consideration of C-10s and the Staffs Philip, and George Thomas in Response to C-10s Motion for Partial Reconsideration and to Reopen the Record (Sept. 10, 2020) (Staff Aff.).
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proposed changes is also consistent with the guidance document cited by the NRC Staff, NRC Office Instruction LIC-101, License Amendment Review Procedures (July 31, 2020)
(ML19248C539) (LIC-101). LIC-101 strongly recommends that the Staff seek comments from licensees, under oath, before imposing license conditions:
The NRC staff may impose license conditions without agreement from the licensee.
However, to ensure no unintended consequences, it is strongly recommended that the NRC staff seek the licensees views on the language of NRC-proposed license conditions.
The NRC staffs request to the licensee should fully describe the proposed license condition, and the request should be sent from the responsible project division director or above. The NRC staff request can be done through the RAI process or a separate letter to the licensee. Licensee comments on the proposed license condition (i.e., response) should be documented via a formal docketed submittal (under oath or affirmation).
Id. at B-23 (emphasis added). In this case, the license conditions imposed by the ASLB will, for the next thirty years, establish limits and thresholds for actions taken by NextEra to address the potentially significant safety risks posed by ASR at Seabrook; thus, their precision and rigor greatly affects C-10s interests in protecting the health and safety of its members. Just as licensees should be allowed to comment on new license conditions that may affect their interests, so should intervenors have the opportunity to comment on new license conditions that may significantly affect their health and safety. C-10 has done so by providing supplemental testimony by Dr. Saouma which documents the technical reasons for his expert opinion that the license conditions should be modified to ensure that they are clear and reliable. NextEra has therefore failed to show that its objection to C-10s Motion to Reconsider has merit.
Nor do NextEras and the Staffs arguments against C-10s Motion to Re-open have merit. The Staff, for instance, argues that none of the issues raised by C-10 rise to the level of significant. Staff Answer at 3-4. But the Staffs own argument that inclusion of the word significantly would render LBP-20-09 invalid belies its argument. If the proposed deletion of the word significant had no safety significance, its continued inclusion would not have such 3
a dire result. In addition, Dr. Saouma Supplemental Testimony thoroughly explains why the other modifications to the license conditions are necessary to ensure the accuracy and reliability of NextEras monitoring program for alkali-silica reaction (ASR) by reducing the uncertainty of the monitoring results. Further, his Rebuttal Supplemental Testimony thoroughly responds to arguments by the Staff that the proposed modifications are not needed to ensure the effectiveness of the license conditions. Finally, the technical justifications provided by Dr. Saouma for his proposed changes to the license conditions establish that his expert opinion amounts to much more than a mere expression of his preferences. NextEra Answer at 5.
NextEras argument that the license conditions imposed by the ASLB in LBP-20-09 give it an appropriate level of discretion is also without merit. NextEra Answer at 6. But NextEras argument runs counter to the concern raised by the ASLB that discretion to manage ASR should be circumscribed, given the degree of uncertainty attending the phenomenon. This has nothing to do with NextEras integrity or competence, but simply is a matter of sound regulation:
In the absence of evidence to the contrary, NRC does not presume that a licensee will violate agency regulations whenever the opportunity arises. The Board makes no such presumption here. The problem with the SMP [structures monitoring program] is the lack of any specific directive as to when additional inspections must be performed. This creates a reasonable possibility of a violation of the maintenance rules requirement that NextEra monitor the condition of Seabrook seismic Category I structures so as to provide reasonable assurance that those structures remain capable of fulfilling their intended functions for the period of licensed operation.
LBP-20-09, slip op. at 139. In addition, as the Staff has pointed out, the Staffs own guidance for license conditions counsels that license conditions should be clear and not open to different interpretations, and should explicitly define the conditions for their satisfaction. Staff Aff.,
A.6 at 5.
In addition, with respect to Dr. Saoumas proposal to add a requirement for error bars to License Condition (c) (establishing the threshold for checking the reliability of extensometer 4
readings), NextEra incorrectly argues that the ASLB already considered - and rejected - Dr.
Saoumas demand for a prescriptive error bar requirement to account for data uncertainty.
NextEra Answer at 8 (citing LBP-20-09, slip op. at 164). But LBP-20-09 does not contain any holdings or conclusions about the appropriateness of error bars in License Condition (c), or otherwise in relation to evaluating extensometer measurements. The language cited by NextEra is not a holding in LBP-20-09, but the ASLBs summary of Dr. Saoumas testimony about the need for error bars with respect to the Corroboration Study. It has no bearing on License Condition (c).
Finally, re-opening the record is necessary to provide sufficient expertise regarding the need for the proposed modifications. As noted in Dr. Saoumas Supplemental Rebuttal Testimony, none of the NRC Staff members who sponsored the Staff Affidavit claims expertise regarding the topic of ASR; instead, their expertise lies in NRC licensing and enforcement. The Staff affiants also misconstrue Dr. Saoumas testimony in significant respects, thus indicating a deficit of expertise in the technical concerns raised by Dr. Saouma. And NextEra did not submit any expert testimony or affidavits at all. Thus, consideration of Dr. Saoumas Supplemental testimony, including Exhibits INT052 and INT053, is necessary to fully and adequately evaluate the merit of his proposed changes to the license conditions.
B. Response to Objections and Proposed License Condition Changes C-10 responds to the NRC Staffs proposed changes to the license conditions as follows:
(a) As discussed in Dr. Saoumas Rebuttal Supplemental Testimony, ¶¶ 18-19, C-10 agrees with the NRC Staffs proposal to delete the word significantly from License Condition (e).
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(b) As discussed in Dr. Saoumas Rebuttal Supplemental Testimony, ¶ 20, C-10 disagrees with the NRC Staffs proposal to change the numerical value in License Condition (e) from 0.2 mm/m (0.02%) to 0.24 mm/m (0.024%).
(c) With respect to License Condition (f), C-10 does not object to the Staffs suggestion that a reference to industry standard ASTM C856, Standard Practice for Petrographic Examinations of Hardened Concrete could serve as an adequate substitute for specification of a quantitative detection capability of cracks as small as 10 µm. If so, the requirement to follow ASTM C856 should be made explicitly.
(d) C-10 does not propose to the clerical changes and corrections to License Conditions (c), (d), and (e) proposed by the Staff at page 3 of its Answer.
III. CONCLUSION For the foregoing reasons, the ASLB should grant C-10s Motion for Partial Reconsideration of LBP-20-09 and re-open the record to consider the Supplemental Testimony of Dr. Victor E. Saouma Regarding LBP-20-09 (Ex. INT052, Proprietary) and the Rebuttal Supplemental Testimony of Dr. Victor E. Saouma Regarding LBP-20-09 (Ex. INT053, Proprietary).
Respectfully submitted,
__/signed electronically by/___
Diane Curran Harmon, Curran, Spielberg, & Eisenberg, L.L.P.
1725 DeSales Street N.W., Suite 500 Washington, D.C. 20036 240-393-9285 dcurran@harmoncurran.com September 17, 2020 6
CERTIFICATE OF COUNSEL Pursuant to 10 C.F.R. § 2.323(b), I certify that on September 16, 2020, I consulted counsel for NextEra and the NRC Staff in a sincere effort to resolve the issues raised by this motion. Counsel for NextEra and the Staff stated that they would oppose this motion.
___[Signed electronically by]__
Diane Curran 7