ML17156A280

NRC Staff'S Sur-Reply to Nextera'S Reply to NRC Staff'S Answer to C-10's Petition for Leave to Intervene

ML17156A280
Person / Time
Site:	Seabrook
Issue date:	06/05/2017
From:	Amitava Ghosh, Harris B, Jeremy Wachutka NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-443 LA-2, ASLBP 17-953-02-LA-BD01, RAS 53869
Download: ML17156A280 (18)

Text

June 5, 2017 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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NEXTERA ENERGY SEABROOK LLC ) Docket No. 50-443-LA2

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(Seabrook Station, Unit 1) )

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NRC STAFFS SUR-REPLY TO NEXTERAS REPLY TO NRC STAFFS ANSWER TO C-10S PETITION FOR LEAVE TO INTERVENE INTRODUCTION Pursuant to the Atomic Safety and Licensing Board (Board) Order dated May 26, 2017, 1 and 10 C.F.R. § 2.323, the U.S. Nuclear Regulatory Commission (NRC) staff (Staff) files this response to the NextEra Energy Seabrook, LLC (NextEra) reply (NextEra Reply) 2 to the Staffs answer (Staff Answer) 3 to the C-10 Research and Education Foundation, Inc. (C-

10) petition for leave to intervene (Petition). 4 Contrary to the NextEra Reply, the Staffs suggestion in the Staff Answer that the Board reformulate C-10s proposed contentions 5 is not outside of the Staffs authority and is not unprecedented. As explained below, (1) under 10 C.F.R. § 2.309(f), the Staff has the authority to suggest, and has on numerous occasions in the 1 Order (Granting NextEras Motion to File a Reply) (May 26, 2017) (unpublished) (Agencywide Documents Access and Management System (ADAMS) Accession No. ML17146A173).

2 NextEras Reply to NRC Staffs Answer to C-10s Petition for Leave to Intervene (May 12, 2017)

(ADAMS Accession No. ML17132A285) (NextEra Reply).

3 NRC Staffs Answer to C-10 Research and Education Foundation, Inc. Petition for Leave to Intervene (May 5, 2017) (ADAMS Accession No. ML17125A304; Document Package No. ML17125A303)

(Staff Answer).

4 C-10 Research and Education Foundation, Inc. Petition for Leave to Intervene: Nuclear Regulatory Commission Docket No. 50-443 (Apr. 10, 2017) (ADAMS Accession No. ML17100B013)

(Petition).

5 Staff Answer at 26, 38-39.

past actually suggested, reformulating contentions and (2) a number of the contentions proposed by C-10 in its Petition are interrelated and, therefore, susceptible to reformulation as suggested by the Staff. Accordingly, NextEras argument that, through the Staff Answer, the Staff is somehow inappropriately filing its own new or amended late-filed contention is without merit.

BACKGROUND This proceeding concerns the August 1, 2016, NextEra license amendment request (LAR) to adopt a methodology to account for the impacts of alkali-silica reaction (ASR) on concrete structures at Seabrook Station, Unit No. 1 (Seabrook). 6 On February 7, 2017, the NRC published a notice of opportunity to request a hearing on the LAR. 7 On April 10, 2017, C-10 filed its Petition, which requested a hearing on the LAR with respect to ten interrelated contentions. 8 On May 5, 2017, the Staff and NextEra filed answers opposing the granting of the requested hearing due to C-10s failure to establish standing in its Petition. 9 NextEra also opposed the granting of the requested hearing due to C-10s failure to plead an admissible contention; 10 whereas, the Staff had determined that, due to the interrelationship of a number of C-10s proposed contentions, these proposed contentions could be reformulated as a single, 6 License Amendment Request 16-03, 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) (ADAMS Accession No. ML16216A240) (LAR).

7 Applications 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, 9604 (Feb. 7, 2017).

8 See Petition at 2-3.

9 Staff Answer at 1; 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 2-3 (May 5, 2017) (ADAMS Accession No. ML17125A289) (NextEra Answer).

10 NextEra Answer at 2-3.

admissible contention. 11 On May 12, 2017, NextEra filed a motion seeking leave to reply to the Staff Answer, claiming that the Staffs suggested reformulation amounted to a request that the Board admit the Staffs own New/Amended Contention. 12 NextEra also filed its Reply at the same time. On May 26, 2017, the Board granted the NextEra motion to file its Reply and stated that, should either the Staff or C-10 desire to submit a response to any arguments raised in the NextEra Reply, such a response should be filed no later than ten days together with a brief motion seeking leave to file the response. 13 Consistent with this order and 10 C.F.R. § 2.323, the Staff files this instant response to the NextEra Reply.

DISCUSSION NextEra argues in its Reply that the Staffs suggestion in the Staff Answer that the Board reformulate C-10s proposed contentions amounts to the Staffs submission, itself, of a new or amended late-filed contention in this proceeding and that the Staff does not have the authority to itself submit new or amended contentions. 14 NextEra claims that the Staffs suggested reformulation is unprecedented in the history of 10 C.F.R. Part 50 licensing proceedings. 15 NextEra even asserts that the Staffs suggested reformulation could be viewed as [a Staff]

effort to also address [issues related to the representativeness of NextEras ASR testing 11 Staff Answer at 26, 38-39 (suggesting a reformulation of C-10s Contentions A, B, C, D, G, and H to state that 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).

12 NextEras Motion for Leave to File a Reply to NRC Staffs Answer to C-10s Petition for Leave to Intervene, at 1-2 (May 12, 2017) (ADAMS Accession No. ML17132A284).

13 Order (Granting NextEras Motion to File a Reply) (May 26, 2017) (unpublished) (ADAMS Accession No. ML17146A173).

14 NextEra Reply at 1-3.

15 Id. at 2.

program] through litigation before the Board instead of through the licensing process. 16 These NextEra arguments, though, are without merit because (1) the Staff, as a full party to NRC proceedings and the representative of the public interest in these proceedings, 17 has broad authority to suggest reformulations of petitioners contentions and is not in any way limited in how it may respond to petitions to intervene and (2) the Staffs suggested reformulation was appropriate given the interrelationship of the underlying proposed contentions.

I. The Staff has Full Authority to Suggest, and has on Numerous Occasions in the Past Actually Suggested, the Reformulation of Contentions The Commissions rules purposefully empower the Staff to be a full, co-equal participant in adjudicatory proceedings in order to help ensure the development of a sound record and the representation of the public interest. 18 This includes empowering the Staff to suggest the reformulation or narrowing of petitioners contentions when the Staff believes that doing so is consistent with the contention admissibility requirements at 10 C.F.R. § 2.309(f). The NRC adjudicatory docket includes numerous examples of the Staff doing just this; therefore, to the extent that the NextEra Reply argues that the Staff did not have the authority to suggest to the Board that it reformulate C-10s contentions, this argument is contrary to both the Commissions regulations and NRC precedent.

A. The Staff is a Full Party to NRC Proceedings and May Suggest the Reformulation of Proposed Contentions Under 10 C.F.R. § 2.309(i)(1), the Staff is given the same opportunity as the applicant/licensee or any other parties to a proceeding to file an answer to a hearing request, 16 NextEra Reply at 3-4.

17 Rules of Practice for Domestic Licensing Proceedings; Role of NRC Staff in Adjudicatory Licensing Hearings, 51 Fed. Reg. 36,811, 36,812 (Oct. 16, 1986) (advance notice of proposed rulemaking; withdrawal).

18 See id. at 36,811-12 (deciding that, after considering possible changes to the Staffs role as a full party in adjudicatory hearings, the Staff should continue to participate as a full party).

intervention petition, or motion for leave to file amended or new contentions filed after the deadline. If a hearing is granted and contentions are admitted, then the Staff also has the authority, at its discretion, to become a full party to a 10 C.F.R. Part 2, Subpart L, proceeding and may exercise this authority at any time during the course of the proceeding. 19 As a full party to a proceeding, the Staff shall have all the rights and responsibilities of a party with respect to the admitted contention/matter in controversy on which the [S]taff chooses to participate. 20 These rights and responsibilities include filing pleadings in support of or in opposition to, in whole or in part, any of the matters in controversy on which the Staff chooses to participate. 21 In 1983, the Commission considered whether to modify or eliminate its regulations providing for the Staffs participation as a full party to NRC proceedings. 22 Ultimately, the Commission elected to retain the Staff as a full party, explaining that the [S]taff's participation on all substantive issues is necessary to assist in the development of a sound record and that

[t]he Commission and the adjudicatory boards rely heavily on the [S]taff's expertise in making their determinations. 23 Moreover, the Commission found that [t]he [S]taff's participation on procedural issues is desirable because it could reduce or even eliminate some of the substantive issues to be heard and because the [S]taff is often the best source of guidance for the adjudicatory boards on procedural matters. 24 In addition, the Commission affirmed that the 19 10 C.F.R. § 2.1202(b)(2).

20 10 C.F.R. § 2.1202(b)(3). The regulations consider the Staffs participation of such importance that the Staffs participation can be compelled by a presiding officer. See 10 C.F.R. § 2.1202(b)(1)(ii).

21 See, e.g., 10 C.F.R. § 2.323(c).

22 Rules of Practice for Domestic Licensing Proceedings; Role of NRC Staff in Adjudicatory Licensing Hearings, 48 Fed. Reg. 50,550 (Nov. 2, 1983) (advance notice of proposed rulemaking).

23 51 Fed. Reg. at 36,811-12.

24 Id. at 36,812.

[S]taff is the representative of the public interest in these proceedings and that the [S]taff should continue to present and defend the results of its objective evaluation of the application at the hearing for the benefit of the public. 25 In 2003, the Commission again affirmed the Staffs role as a full party to its adjudicatory proceedings by rejecting a request by the Nevada Attorney General to prevent the Staff from acting as a party advocate during the Yucca Mountain High Level Waste Repository hearing. 26 The Commission explained that the Staff participates as a full party to its adjudicatory proceedings because of the Staffs independence and extraordinary knowledge of the related legal and technical issues. 27 The Commission concluded that [i]t is difficult to imagine not putting that independence and knowledge to use in such an important hearing, where decisions need to be rooted in a comprehensive record that contains the testimony of the most knowledgeable experts. 28 The Commission later reaffirmed this determination in 2007. 29 During a 2012 rulemaking to revise the NRCs adjudicatory process rules, the Commission received negative comments regarding the Staffs participation in NRC proceedings. In response to this criticism, several members of the Commission defended the Staffs role in their individual votes on the rulemaking. Then-Commissioner Svinicki observed that the [S]taffs participation as a party is useful to the Atomic Safety and Licensing Board, the other parties, and the public as it will provide an independent regulatory perspective for the 25 51 Fed. Reg. at 36,812.

26 Letter from Edward McGaffigan, Acting Chairman, NRC, to Brian Sandoval, Attorney General, State of Nevada, Enclosure at 3-5 (July 8, 2003) (ADAMS Accession No. ML031631253).

27 Id. at 5.

28 Id.

29 Letter from Dale Klein, Chairman, NRC, to Robert Loux, Executive Director, Agency for Nuclear Projects, State of Nevada (May 9, 2007) (ADAMS Accession No. ML071340263).

record. 30 Commissioner Apostolakis stated that the [S]taff's perspective in adjudicatory matters is of high value to me and should be of value to the licensing boards, other parties, and the public and that [t]he NRC staff brings an independent perspective into the mix that is grounded in long experience with our procedural rules and extensive knowledge of related technical issues and licensing processes. 31 Taken together, the Commissions regulations and statements demonstrate that the Staff is a full participant to this proceeding and may make any arguments within the scope of this proceeding, including arguing that C-10s interrelated contentions should be reformulated. 32 B. The Staff has Previously Suggested the Reformulation of Proposed Contentions in NRC Proceedings NextEra states that the Staffs proposal to reformulate C-10s interrelated contentions appears to be unprecedented in the history of 10 C.F.R. Part 50 licensing proceedings. 33 However, because this statement is artificially restricted to 10 C.F.R. Part 50 licensing proceedings, it is potentially incomplete. 34 When the scope of this statement is appropriately 30 Commission Voting Record, SECY-12-0004, Final Rule - 10 CFR Parts 2, 12, 51, 54, and 61, Amendments to Adjudicatory Process Rules and Related Requirements, at 7 of 39 (unnumbered) (June 29, 2012) (ADAMS Accession No. ML121840015) (quoting Chairman Meserve).

31 Id. at 26 of 39 (unnumbered).

32 In addition to suggesting that the Staff did not have the authority to recommend to the Board that it reformulate C-10s proposed contentions, NextEra also seemed to suggest that, by doing so, the Staff was somehow acting improperly. Specifically, NextEra stated that the Staffs proposed reformulation could be viewed as [a Staff] effort to also address [issues related to the representativeness of NextEras ASR testing program] through litigation before the Board instead of through the licensing process.

NextEra Reply at 3-4. The Board should disregard this baseless suggestion of Staff impropriety. The Supreme Court and the Commission recognize the presumption that governmental officials, acting in their official capacities, have properly discharged their duties and the burden of proof to rebut this presumption involves the presentation of clear evidence to the contrary. La. Energy Servs., L.P. (Natl Enrichment Facility), CLI-06-22, 64 NRC 37, 49 n.48 (2006) (citing Natl Archives & Records Admin. v.

Favish, 541 U.S. 157, 174 (2004)). NextEra has provided no such clear evidence that the Staff has somehow improperly engaged in its participation in this proceeding.

33 NextEra Reply at 2.

34 What parties can and cannot argue with respect to contention admissibility is a function of the contention admissibility requirements at 10 C.F.R. § 2.309(f) and not the specific part of the NRCs regulations governing the underlying licensing action. As NextEra itself states, Submission of hearing

expanded to encompass all contention admissibility arguments under 10 C.F.R. § 2.309(f), and not artificially restricted to contention admissibility arguments in 10 C.F.R. Part 50 licensing proceedings, it becomes apparent that, contrary to NextEras statement, the Staff has indeed suggested the reformulation or narrowing of petitioners contentions on numerous occasions.

An example of the Staff suggesting the reformulation of a proposed contention under the contention admissibility requirements of 10 C.F.R. § 2.309(f) that is directly analogous to the Staffs suggestion of reformulating C-10s proposed contentions in the instant proceeding occurred in the license renewal proceeding 35 for the Davis-Besse Nuclear Power Station, Unit 1 (Davis-Besse). 36 In that proceeding, the intervenors proposed a new Contention 5, which stated:

Interveners contend that [the applicants] recently-discovered, extensive cracking of unknown origin in the Davis-Besse shield building/secondary reactor radiological containment structure is an aging-related feature of the plant, the condition of which precludes safe operation of the atomic reactor beyond 2017 for any period of time, let alone the proposed 20-year license period. 37 In support of this proposed new contention, the intervenors asserted that the Davis-Besse shield building structure was a feature requiring aging-management review, that the cracking must be addressed as part of the license renewal determination, and that the implications of the cracking must be analyzed within the supplemental environmental impact statement. 38 The Staff requests and contentions in adjudicatory proceedings is governed by 10 C.F.R. § 2.309. NextEra Reply at 3.

35 As a license renewal proceeding, this could be considered a 10 C.F.R. Part 54 licensing proceeding, as opposed to a 10 C.F.R. Part 50 licensing proceedings. See NextEra Reply at 2.

However, this distinction is irrelevant for the purposes of analyzing the Staffs authority under 10 C.F.R.

§ 2.309(f), which regulation applies equally in both instances.

36 See NRC Staffs Answer to Motion to Admit New Contention Regarding the Safety Implications of Newly Discovered Shield Building Cracking (Feb. 6, 2012) (ADAMS Accession No. ML12037A200).

37 Id. at 8.

38 Id.

interpreted these arguments as encompassing both a safety contention and an environmental contention. 39 The Staff then determined that a small portion of these arguments raised an admissible safety contention. 40 Therefore, the Staff propose[d] that the contention be refined to clearly establish the scope of the contention and reformulated it as:

Is the Structures AMP adequate to address any aging effects for the shield building that are related to the cracks identified by FENOC during the October 10, 2011 reactor head replacement and subject to a root cause evaluation to be provided by FENOC on February 28, 2012 such that the shield building would be unable to perform its intended functions of: 1) protecting the steel containment from environmental effects, including wind, tornado, and external missiles, 2) providing biological shielding, 3) providing controlled release to the annulus during an accident, and 4) providing a means for collection and filtration of fission product leakage from the Containment Vessel following a hypothetical accident? 41 The applicant in the Davis-Besse proceeding, like NextEra in the instant proceeding, moved for leave to file a reply to the Staffs answer, arguing that the Staff answer had advance[d] arguments not pled by [the i]ntervenors themselves, and had supplie[d] revised contention language. 42 The Board set the issue for oral argument. 43 Before the date of the oral argument, however, the applicant filed an amendment to its license renewal application, providing a new Aging Management Program (AMP) for monitoring the Davis-Besse shield building. 44 Finding that this amendment had addressed its concerns, the Staff no longer 39 Id.

40 Id. at 8-9.

41 Id. at 9.

42 FENOCS Unopposed Motion for Leave to Respond to the NRC Staffs Answer to Proposed Contention 5 on Shield Building Cracking, at 1-2 (Feb. 9, 2012) (ADAMS Accession No. ML12040A170).

43 Order Denying Unopposed Motion for Leave to Respond to NRC Staffs Answer to Proposed Contention 5 and Setting Proposed Contention 5s Admissibility for Oral Argument (Feb. 13, 2012)

(ADAMS Accession No. ML12044A306).

44 FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), LBP-12-27, 76 NRC 583, 589 (2012).

supported the admission of its proposed reformulated version of Contention 5. 45 In its ultimate ruling on contention admissibility, the board explicitly approved of the Staffs reformulation of Contention 5. 46 The board then compared the contention, as reformulated by the Staff, against the contention admissibility requirements of 10 C.F.R.

§ 2.309(f)(1), found that it met all of these requirements, and concluded that, [t]herefore, Contention 5, as modified by the NRC Staff, would have been admissible. 47 However, the board also agreed with the Staff that this reformulated contention had been mooted by the applicants subsequent submission of its shield building monitoring AMP. 48 Notably, the board did not in any way criticize the Staffs suggestion to reformulate Contention 5 or rule that making this suggestion was somehow outside of the Staffs authority in the proceeding.

It is also not uncommon for the Staff, in an answer to a petition, to identify any admissible portions of the contentions proposed in the petition and then suggest to the Board that it narrow these contentions to those admissible portions. For instance, in the license renewal proceeding for the Diablo Canyon Nuclear Power Plant, Units 1 and 2, the Staff stated that it had no objection to the admission of a limited portion of a proposed contention and, accordingly, proposed that the board admit a modified version of the contention, 49 the language 45 Davis-Besse, LBP-12-27, 76 NRC at 590.

46 Id. at 609-610 ([W]e agree [with the Staff] that although Contention 5 as originally proposed, was (and still is) largely inadmissible for the reasons discussed above, it nonetheless initially contained an admissible contention of omission challenging [the applicants] failure to provide a plan to monitor and/or address the shield building cracking in its [license renewal application].).

47 Id. at 610.

48 Id.

49 See Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-10-15, 72 NRC 257, 284-85 (2010), affd in part, revd in part CLI-11-11, 74 NRC 427, 411 (2011) (the admission of the narrowed version of this contention was affirmed by the Commission after further reformulation of the contention by the Commission).

of which the Staff provided in its answer. 50 Similarly, the Staff identified that a proposed contention in each of the Comanche Peak Nuclear Power Plant, Units 3 & 4, and South Texas Project, Units 3 & 4, combined license proceedings 51 could be narrowed to an admissible contention of omission. 52 Moreover, it is not uncommon for boards to agree with these Staff suggestions to narrow contentions by removing inadmissible arguments from them and reformulating them. For instance, in the Victoria County Station Site early site permit proceeding, the board agreed with the NRC Staff that a proposed contention was inadmissible in part and, consequently, reformulated the contention to eliminate its inadmissible portions and concluded that the contention, as revised, was admissible. 53 These examples and others, 54 demonstrate that, not only does the Staff have the 50 See NRC Staffs Answer to the San Luis Obispo Mothers for Peace Request for Hearing and Petition to Intervene, at 29 (Apr. 16, 2010) (ADAMS Accession No. ML101060667) (The Staff proposes the following language for EC-1: The [Severe Accident Mitigation Alternatives (SAMA)] evaluation contained in the Environmental Report, at Attachment F to Appendix D omits a discussion of the impact, if any, the Shoreline Fault might have on the SAMA evaluation.).

51 As a combined license proceeding, this could be considered a 10 C.F.R. Part 52 licensing proceeding, as opposed to a 10 C.F.R. Part 50 licensing proceedings. See NextEra Reply at 2.

However, this distinction is irrelevant for the purposes of analyzing the Staffs authority under 10 C.F.R.

§ 2.309(f), which regulation applies equally in both instances.

52 NRC Staffs Answer to Petition for Intervention and Request for Hearing at 25-28 (May 1, 2009)

(ADAMS Accession No. ML091210636); NRC Staffs Answer to Petition for Intervention and Request for Hearing at 16-17 (May 18, 2009) (ADAMS Accession No. ML091380469). Subsequently, the applicants amended their combined license applications and the boards determined that this had rendered the potentially admissible portion of the proposed contentions moot. Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant, Units 3 & 4), LBP-10-05, 71 NRC 329, 339 (2010); S. Tex. Project Nuclear Operating Co. (South Texas Project, Units 3 & 4), LBP-09-21, 70 NRC 581, 595-96 (2009).

53 Exelon Nuclear Tex. Holdings, LLC (Victoria County Station Site), LBP-11-16, 73 NRC 645, 666-68 (2011).

54 See, e.g., Fla. Power & Light Co. (Turkey Point, Units 6 & 7), LBP-11-06, 73 NRC 149, 238 (2011) (stating that [w]e agree with the NRC Staff that Contention 6 is admissible in part); Detroit Edison Co. (Fermi Nuclear Power Plant, Unit 3), LBP-09-16, 70 NRC 227, 271-72 (2009) (agreeing with the Staffs answer that a portion of a proposed contention amounted to an admissible contention of omission);

S. Nuclear Operating Co. (Early Site Permit for Vogtle ESP Site), LBP-07-03, 65 NRC 237, 259-261 (2007) (agreeing with the Staffs answer, in part, and admitting a reformulated contention); Exelon Generation Co., LLC (Early Site Permit for Clinton ESP Site), LBP-04-17, 60 NRC 229, 252 (2004)

(admitting a narrowed contention consistent with the Staffs answer in NRC Staff's Response to Petitioners Contentions Regarding the Early Site Permit Application for the Clinton Site, at 22-23 (May 28, 2004) (ADAMS Accession No. ML041530604)).

authority to suggest the reformulation of contentions, but that it has exercised this authority in numerous previous proceedings and that the presiding officer in those proceedings did not question the Staffs authority to make such suggestions. Therefore, the Staffs suggestion in this proceeding that the Board remove all of the inadmissible arguments from C-10s proposed contentions and reformulate the remaining, interrelated arguments into a single, admissible contention, is both within the Staffs authority and consistent with the Staffs past practice.

II. The Staff Correctly Argued that C-10s Contentions Are Interrelated and May Be Reformulated Contrary to NextEras assertions, the Staffs proposed reformulated contention was fully within the scope of its authority and within the Commissions regulations at 10 C.F.R.

§ 2.309(i)(1), which state that answers to petitions should address, at a minimum, the factors set forth in 10 C.F.R. § 2.309(a)-(h), as applicable. As explained below and in the Staff Answer, based on the Staffs evaluation of the Petition against the 10 C.F.R. § 2.309(f) contention admissibility requirements, the Staff understood Contentions A, B, C, D, G, and H as containing interrelated arguments. Accordingly, [d]ue to the interrelationship of these proposed contentions and in order to improve clarity, the Staff Answer suggested that the Board consolidate these arguments into a single, admissible contention. 55 In doing so, the Staff Answer did not supply new or missing information. Therefore, NextEras assertions that the Staffs proposed reformulated contention should be considered a new or amended late-filed contention are without merit and should be dismissed.

A. The Staffs Reformulated Contention Consolidates Admissible Portions of Interrelated Contentions As explained above, the Commission has affirmed that the Staff is the representative of the public interest in these proceedings and should present and defend the results of its 55 Staff Answer at 38.

objective evaluation of the application at the hearing for the benefit of the public. 56 Keeping this in mind, in support of its Answer, the Staff carefully evaluated the C-10 Petition and its contentions challenging the LAR, and, consistent with 10 C.F.R. § 2.309(i)(1), compared the Petitions arguments to the standing and contention admissibility requirements in 10 C.F.R.

§ 2.309(d) and (f), respectively. This evaluation led the Staff to conclude that a number of C-10s proposed contentions were interrelated and, therefore, that their arguments were susceptible to combination as a single, admissible contention.

For example, Contention A challenges the representativeness of the large-scale test program conducted by MPR Associates (MPR) in collaboration with the Ferguson Structural Engineering Laboratory (FSEL) specifically with respect to the LARs reliance on visual inspections, crack width indexing, and extensometer deployment, 57 whereas Contention D challenges the representativeness of the MPR/FSEL large-scale test program in general. 58 To the extent that both Contentions A and D challenge the representativeness of the MPR/FSEL large-scale test program, the Staff recommended consolidating these arguments for efficiency. 59 Likewise, C-10s arguments in Contention B with respect to the prestressing effect on concrete are interrelated with portions of its arguments in Contentions C and D. 60 As the Staff notes in its Answer, Contentions B and C raise similar arguments with respect to the prestressing effect on concrete. 61 Contention D, which challenges the representativeness of the MPR/FSEL large-scale test program also raises similar arguments regarding the prestressing 56 51 Fed. Reg. at 36,812.

57 Petition at 3-4.

58 Id. at 8-11.

59 Staff Answer at 27-28, 30.

60 Compare Petition at 5 and Petition at 6-8 with Petition at 8-11.

61 Staff Answer at 34 (citing Petition at 7, 8).

effect. 62 Therefore, to the extent that Contentions B, C, and D all challenge the representativeness of the MPR/FSEL large-scale test program in this respect, the Staff proposed consolidating these arguments for efficiency. 63 Similarly, C-10s arguments in Contention C regarding the necessity of petrographic analyses are also raised in portions of Contentions B, C, D, and H. 64 Therefore, to the extent that these arguments are admissible and challenge the representativeness of the MPR/FSEL large-scale test program, the Staff recommended consolidating these arguments for clarity and efficiency. 65 Likewise, to the extent that C-10s arguments in Contention G regarding the LARs omission of the tipping point concept challenge the representativeness of the MPR/FSEL large-scale test program, the Staff suggested that the arguments be combined with Contention D. 66 Finally, Contention H questions the sufficiency of the LARs inspection intervals with respect to the representativeness of the MPR/FSEL large-scale test program. 67 Thus, to the extent that both Contentions H and D challenge the representativeness of the MPR/FSEL large-scale test program, the Staff recommended consolidating these arguments for efficiency. 68 As explained above, the Staff has the authority to suggest the reformulation of contentions in its answers to petitions. The Staff exercised this authority in this proceeding because its evaluation, under 10 C.F.R. § 2.309(i)(1), of C-10s Petition against the contention admissibility requirements of 10 C.F.R. § 2.309(f) revealed that numerous of C-10s proposed contentions were interrelated with respect to C-10s challenge to the representativeness of the 62 Petition at 8-11.

63 Staff Answer at 33, 34, and 35.

64 Petition at 5, 6-8, 8-11, and 15.

65 Staff Answer at 35, 38.

66 Id. at 37, 38-39.

67 Petition at 15.

68 Staff Answer at 38.

MPR/FSEL large-scale test program. Therefore, the Staffs suggestion in its Answer to reformulate these interrelated arguments regarding representativeness into a single, admissible contention was both within the Staffs authority and a proper exercise of the Staffs authority under 10 C.F.R. § 2.309(i)(1).

B. The Staffs Reformulated Contention Does Not Supply New or Missing Information Contrary to NextEras assertions, the Staff Answer does not supply, as the requisite basis for an admissible contention, information that is new to the Petition or that was missing from the Petition. The Staff Answer simply determined that the Petition and its cited references had provided the requisite basis for an admissible contention regarding the representativeness of the MPR/FSEL large-scale test program and sought only to reformulate this existing information for purposes of clarity and efficiency and not to add to this information.

NextEra argues that the Staff created an entirely new assertion from whole cloth by stating that [t]he MPR/FSEL large-scale test program is not bounding of the Seabrook concrete. 69 This Staff statement, though, is not a new argument; it is a restatement of C-10s assertion that the MPR/FSEL large scale test-program is not representative of the Seabrook concrete. 70 To the extent that NextEra faults the Staff for using the word bounding in this restatement instead of the word representative, 71 this is a distinction without a difference because interchanging the words bounding and representative would have no effect on the relevant question of contention admissibility. 72 Therefore, the Staffs suggested reformulation of 69 NextEra Reply at 8 (citing Staff Answer at 26).

70 See Staff Answer at 26, 32, 37, and 39.

71 NextEra Reply at 8.

72 Moreover, although it does not use the word bounding, the Petition does cite to a sentence in the LAR that uses the word bound. Petition at 14 (citing LAR at 16 of 73 (unnumbered)). That sentence in the LAR specifically states: The specimens used in the large-scale test programs experienced levels of ASR that bound ASR levels currently found in Seabrook structures (i.e., are more severe than at

C-10s contentions is, in fact, a reformulation of C-10s existing arguments and does not add to C-10s existing arguments.

Similarly, NextEra argues that the Staff, in its evaluation of Contention G, 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 MPR/FSEL large-scale test program. 73 However, NextEra fails to note that in the Staff Answer, the Staff actually made an equivalent statement only two paragraphs above the quoted statement. 74 Moreover, the Staffs citation for that assertion is the same page of the LAR that is referenced by C-10 in its Contention G argument. 75 NextEra mistakes the Staffs summarizing (albeit using somewhat different terms) of a concept from C-10s Petition and its references as an independent Staff argument.

For these reasons, the Staff Answer, which suggests that the Board consolidate admissible portions of interrelated arguments spread across multiple contentions into a single reformulated contention, does not rise to the level of the Staff itself supplying the requisite basis for an admissible contention or submitting a new or amended late-filed. NextEras arguments to the contrary are without merit and should be dismissed. 76 Seabrook), but the number of available test specimens and nature of the testing prohibited testing out to ASR levels where there was a clear change in limit state capacity. LAR at 16 of 73 (unnumbered).

73 NextEra Reply at 8 (quoting Staff Answer at 37).

74 See Staff Answer at 36-37.

75 Compare Staff Answer at 37 n.161 (citing LAR at 31 of 73 (unnumbered)) and Petition at 14 (citing LAR160-04 (sic) Section 3.5.1., Table 4) with LAR at 31 of 73 (unnumbered).

76 Similarly, to the extent that NextEra asserts that the Staffs proposed reformulated contention is somehow untimely and that the Staff should have requested leave from the Board or demonstrated good cause in accordance with 10 C.F.R. § 2.309(c), these arguments should be dismissed in as much as the Staff filed its answer in a timely manner.

CONCLUSION Contrary to the NextEra Reply, the Staffs suggestion in its Answer to reformulate C-10s contentions is not unprecedented and does not amount to the Staffs pleading of a new or amended contention. Accordingly, the Board should find that the NextEra Reply is without merit.

Respectfully submitted,

/Signed (electronically) by/

Jeremy L. Wachutka Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop O14-A44 Washington, DC 20555 Telephone: (301) 287-9188 E-mail: Jeremy.Wachutka@nrc.gov Executed in Accord with 10 CFR 2.304(d) Executed in Accord with 10 CFR 2.304(d)

Brian G. Harris Anita Ghosh Counsel for the NRC Staff Counsel for the NRC Staff U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of the General Counsel Office of the General Counsel Mail Stop O14-A44 Mail Stop O14-A44 Washington, DC 20555 Washington, DC 20555 Telephone: (301) 287-9120 Telephone: (301) 287-9175 E-mail: brian.harris@nrc.gov E-mail: Anita.Ghosh@nrc.gov Dated at Rockville, Maryland this 5th day of June, 2017

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

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NEXTERA ENERGY SEABROOK LLC ) Docket No. 50-443-LA2

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(Seabrook Station, Unit 1) )

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CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I hereby certify that copies of the foregoing NRC STAFFS SUR-REPLY TO NEXTERAS REPLY TO NRC STAFFS ANSWER TO C-10S PETITION FOR LEAVE TO INTERVENE, dated June 5, 2017, have been filed through the Electronic Information Exchange, the NRCs E-Filing System, in the above-captioned proceeding, this 5th day of June, 2017.

/Signed (electronically) by/

Jeremy L. Wachutka Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop O14-A44 Washington, DC 20555 Telephone: (301) 287-9188 E-mail: Jeremy.Wachutka@nrc.gov Dated at Rockville, Maryland this 5th day of June, 2017