ML12275A475

Nextera'S Motion to Strike Fotc/Nec'S Corrected Contention

ML12275A475
Person / Time
Site:	Seabrook
Issue date:	10/01/2012
From:	Hamrick S NextEra Energy Seabrook
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 23549, 50-443-LR, ASLBP 10-906-02-LR-BD01
Download: ML12275A475 (5)

Text

October 1, 2012 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

) Docket No. 50-443-LR NextEra Energy Seabrook, LLC )

) ASLBP No. 10-906-02-LR (Seabrook Station, Unit 1) )

NEXTERAS MOTION TO STRIKE FOTC/NECS CORRECTED CONTENTION On September 21, 2012, Friends of the Coast and the New England Coalition (FOTC/NEC) filed a correction to its pending contention regarding NextEra Energy Seabrooks (NextEra) aging management program for alkali-silica reaction (ASR) (the ASR Contention).1 According to its transmittal letter, FOTC/NECs Corrected Contention was intended to correct typographical and scriveners errors . . . for the sake of the record and the convenience of readers . . . together with an errata and corrections index so that readers need not hunt for changes.2 However, in addition to failing to include the promised index of corrections, FOTC/NEC once again went beyond permissible correction of typographical errors and attempted to provide threshold support for its contention. Accordingly, the Board should strike FOTC/NECs Corrected Contention.

1 Friends of the Coast and New England Coalitions Motion (With September 19, 2012 Corrections) for Leave to File a New Contention Concerning NextEra Energy Seabrooks Amendment of its Aging Management Program for Safety-Related Structures (Dated Aug. 27, 2012 and Sept. 19, 2012, but filed on Sept. 21, 2012) (Corrected Contention).

2 Letter from R. Shadis to Atomic Safety and Licensing Board, Corrections and Supplement to Friends of the Coast and New England Coalition Petition for leave to File a New Contention Regarding NextEra Energy Seabrook License Renewal Application Structures Monitoring Program Supplement-Alkali-Silica Reaction (ASR) Monitoring (Sept. 21, 2012) (Transmittal Letter). The Transmittal Letter also forwarded a supplement to the ASR Contention. NextEra will respond to that filing in 25 days in accordance with the Initial Scheduling Order.

Specifically, on page 3 of the Corrected Contention, FOTC/NEC modified footnote 3 by adding a reference in support of a previously unsupported assertion. Further, on page 9, FOTC/NEC added a reference to the newly revised footnote 3 following its previously unsupported statement number 2 regarding the adequacy of visual inspection. Neither of these additions can reasonably be considered the correction of a typographical error.3 Revised footnote 3 cites to a PowerPoint presentation prepared by the Portland Cement Association. Corrected Contention at 3. This document has been publicly available in the NRCs ADAMS database at Accession No. ML12153A420 since July 10, 2012. The Commission does not allow contentions to be supplemented after the fact with previously available information. See e.g., Louisiana Energy Services, L.P. (National Enrichment Facility), CLI-04-25, 60 N.R.C. 223, 224-25 (2004),

reconsideration denied CLI-04-35, 60 N.R.C. 619 (2004). Its contention timeliness requirements demand a level of discipline and preparedness on the part of petitioners, as there simply would be no end to NRC licensing proceedings if petitioners could disregard our timeliness requirements and add new bases or new issues that simply did not occur to [them] at the outset. Id.

Of course, this is not the first time FOTC/NEC has attempted to add missing threshold support for one of its contentions under the guise of correcting typographical errors. See NextEra Energy Seabrook, LLC (Seabrook Station Unit 1), LBP-11-02, slip op. at 8 (2011). At oral argument in this case, the Board invited FOTC/NEC to correct typographical errors, but warned it not to present new arguments or new issues. Id. citing Tr. at 70. FOTC/NEC failed to abide by the Boards admonition:

3 FOTC/NEC also added a heading regarding the NRCs late filing criteria in 10 C.F.R. § 2.309(f)(2) on page 17 and a prayer for relief in its conclusion on page 18. These additions are not as egregious as the addition of threshold support for its visual inspection claim, but they nonetheless contradict FOTC/NECs claim that it intended only to fix typographical errors.

2

Although some of Friends/NECs numerous corrections appear to be of the sort the Board expected, others such as bolstering the description of Mr. Blanchs credentials to opine concerning subjects on which his expertise had been questioned during oral argument clearly go further. In the circumstances, the Board will not try to parse through which of Friends/NECs changes constitute authorized corrections and which improperly go beyond what the Board intended.

Accordingly, in ruling on Friends/NECs petition, we have not considered or relied upon their submissions subsequent to their original petition and reply.

LBP-11-02, slip op. at 8-9.

At this point in the litigation, FOTC/NEC cannot reasonably argue that it was unaware that this type of addition is unacceptable. Accordingly, NextEra requests the Board to strike FOTC/NECs Corrected Contention or, in the alternative, to follow its precedent from LBP-11-02 and simply refuse to consider the submission.

As required by 10 C.F.R. § 2.323(c), NextEra consulted with the other parties to this proceeding prior to filing this motion. NextEra was unable to resolve the issues identified herein with FOTC/NEC. The NRC Staff stated that it would not oppose the motion.

Respectfully Submitted,

/Signed electronically by Steven C. Hamrick/

Steven C. Hamrick NextEra Energy Seabrook, LLC 801 Pennsylvania Ave. NW Suite 220 Washington, DC 20004 Tel. (202) 349-3496 Counsel for NextEra Dated: October 1, 2012 3

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

) Docket No. 50-443-LR NextEra Energy Seabrook, LLC )

) ASLBP No. 10-906-02-LR (Seabrook Station, Unit 1) )

CERTIFICATE OF SERVICE I hereby certify that NextEras Motion to Strike FOTC/NECs Corrected Contention, dated October 1, 2012, was provided to the Electronic Information Exchange for service to those individuals on the service list in this proceeding, this 1st day of October, 2012.

Office of the Secretary of the Commission Office of Commission Appellate Adjudication Attn: Rulemakings and Adjudications Staff U.S. Nuclear Regulatory Commission Hearing Docket Washington, DC 20555-0001 Mail Stop O-16C1 ocaamail@nrc.gov U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: hearingdocket@nrc.gov Administrative Judge Administrative Judge Paul S. Ryerson, Esq., Chair Dr. Michael Kennedy Atomic Safety and Licensing Board Atomic Safety and Licensing Board Mail Stop T-3 F23 Mail Stop T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Email: psr1@nrc.gov Washington, DC 20555-0001 Email: michael.kennedy@nrc.gov Administrative Judge Mary Spencer, Esq.

Dr. Richard E. Wardwell Maxwell C. Smith, Esq.

Atomic Safety and Licensing Board Office of the General Counsel Mail Stop T-3 F23 Mail Stop O-15 D21 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: mary.spencer@nrc.gov Email: richard.wardwell@nrc.gov

Raymond Shadis Matthew Brock, Esq.

New England Coalition Assistant Attorney General Post Office Box 98 Environmental Protection Division Edgecomb, Maine 04556 Office of the Attorney General One Ashburton Place, 18th Floor E-mail: shadis@prexar.com Boston, Massachusetts 02108 E-mail: matthew.brock@state.ma.us

/Signed electronically by Steven C. Hamrick /

Steven C. Hamrick 2