ML12290A266

NRC Staff'S Answer to Intervenors' Supplement to Motion for Leave to File a New Contention Concerning Safety-Related Concrete Structures

ML12290A266
Person / Time
Site:	Seabrook
Issue date:	10/16/2012
From:	Amitava Ghosh, Matthew Smith NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 23636, 50-443-LR, ASLBP 10-906-02-LR-BD01
Download: ML12290A266 (40)

Text

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-LR

)

(Seabrook Nuclear Station, Unit 1) ) ASLBP No. 10-906-02-LR-BD01 NRC STAFFS ANSWER TO INTERVENORS SUPPLEMENT TO MOTION FOR LEAVE TO FILE A NEW CONTENTION CONCERNING SAFETY-RELATED CONCRETE STRUCTURES Maxwell C. Smith Anita Ghosh Counsel for NRC Staff October 16, 2012

TABLE OF CONTENTS PAGE INTRODUCTION .......................................................................................................................... 1 BACKGROUND ............................................................................................................................ 2 I. Procedural History ............................................................................................................ 2 II. The Staffs Evaluation of ASR in Concrete Structures at Seabrook Under the ROP ........ 4 DISCUSSION ................................................................................................................................ 6 I. The ASR Supplement, Like All Documents that Add Support for Pending Contentions, Must Meet the Requirements for Amending a Contention ................................................ 6 II. Legal Standards ................................................................................................................ 7 A. Timeliness Standards Under 10 C.F.R. § 2.309(c)(1) ........................................... 7 B. Contention Admissibility Standards in NRC License Renewal Proceedings ......... 9

1. Contention Admissibility Factors in 10 C.F.R. § 2.309(f)(1)....................... 9

2. Scope of NRC License Renewal Proceedings ........................................ 10

3. An Admissible Contention Must Contain an Adequate Factual Basis ..... 11 III. The Portions of the ASR Supplement Related to the Staff ROP Request and Charter Are Not Adequately Supported, Untimely, Immaterial, and Out of Scope ....................... 12 A. The Staff ROP Request and Charter Do Not Provide Adequate Factual Support for the ASR Contention ....................................................................................... 12 B. The Staff ROP Request and Charter Do Not Provide Materially Different Information than Previously Available ................................................................. 15 C. The Staff ROP Request and Charter are Not Material to the ASR Contention ... 18 D. NRC Regulations Do Not Require the Agency to Resolve All ROP Issues Before Considering a License Renewal Application ....................................................... 20 IV. The Portion of the ASR Supplement Related to RAI Set 19 Is Untimely and Does Not Support Several Portions of the ASR Contention ........................................................... 22 A. RAI Set 19 Does Not Provide New Information ................................................... 22

1. Follow-Up RAI B.2.1.28-3 ........................................................................ 23

2. Follow-Up RAI B.2.1.31-1 ........................................................................ 24

3. RAI B.2.1.31-5 ......................................................................................... 24

4. RAI B.2.1.31-6 ......................................................................................... 25

5. RAI B.2.1.31-7 ......................................................................................... 26

6. RAI B.2.1.31-8 ......................................................................................... 27

7. RAI B.2.1.31-9 ......................................................................................... 28

8. RAI B.2.1.31-10 ....................................................................................... 28

9. RAI B.2.1.31-11 ....................................................................................... 29 B. RAI Set 19 Does Not Provide Adequate Factual Support for Several of the Assertions in the ASR Contention ....................................................................... 30 V. Portions of the C-10 Letter Do Not Provide Adequate Support for the ASR Supplement and It Is Untimely ....................................................................................... 32 A. While Portions of the C-10 Letter Provide Factual Support for the ASR Contention, the C-10 Letter is Nevertheless Untimely......................................... 32

1. Portions of the C-10 Letter Support the ASR Contention ........................ 32

2. The Remainder of the C-10 Letter Does Not Provide Adequate Factual Support for the ASR Contention .............................................................. 33 B. The C-10 Letter Does Not Contain New and Materially Different Information ..... 35 CONCLUSION ............................................................................................................................ 36

October 16, 2012 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-LR

)

(Seabrook Nuclear Station, Unit 1) ) ASLBP No. 10-906-02-LR-BD01 NRC STAFFS ANSWER TO INTERVENORS SUPPLEMENT TO MOTION FOR LEAVE TO FILE A NEW CONTENTION CONCERNING SAFETY-RELATED CONCRETE STRUCTURES INTRODUCTION Pursuant to 10 C.F.R. § 2.309(i)(1), and the Atomic Safety and Licensing Boards (Board) April 4, 2011 Initial Scheduling Order,1 the Staff of the U.S. Nuclear Regulatory Commission (NRC Staff or Staff) hereby answers Friends of the Coast and New England Coalitions (FOTC/NEC or Intervenors) Supplement to their motion for leave to file a new contention regarding Alkali-Silica Reaction (ASR).2 FOTC/NEC asserts that the documents the ASR Supplement references provide additional support for the contention. Although limited portions of the ASR Supplement do support the contention, the entirety of the ASR Supplement is untimely. Consequently, the NRC Staff opposes FOTC/NECs attempt to add additional support for the contention in the ASR Supplement.

1 Initial Scheduling Order (Apr. 4, 2011) (Agencywide Documents Access and Management System (ADAMS) Accession No. ML110940336) (ISO).

2 Supplement to Friends of the Coast and New England Coalitions Motion for Leave to File a New Contention Concerning NextEra Energy Seabrooks Amendment of its Aging Management Program for Safety-Related Concrete Structures (Sep. 21, 2012) (ADAMS Accession No. ML12265A394) (ASR Supplement).

BACKGROUND I. Procedural History On August 27, 2012, FOTC/NEC submitted a Motion for Leave to File a New Contention Concerning NextEra Energy Seabrooks [(NextEra)] Amendment of its Aging Management Program for Safety-Related Concrete Structures (ASR Contention) in this license renewal proceeding.3 The ASR Contention challenged NextEras aging management program for ASR (ASR AMP) at the Seabrook Nuclear Station (Seabrook) during the license renewal period.4 The Staff and NextEra responded to the ASR Contention on September 21, 2012.5 Although the ASR Contention raised some admissible issues, the Staff concluded that it was untimely under the Commissions regulations.6 A week later, on September 28, FOTC/NEC filed a reply to the Staffs and NextEras answers.7 3

Friends of the Coast and New England Coalitions Motion for Leave to File a New Contention Concerning NextEra Energy Seabrooks Amendment of its Aging Management Program for Safety-Related Concrete Structures (Aug. 27, 2012) (ADAMS Accession No. ML12241A061) (ASR Contention).

4 Id. at 1-2. Seabrook Station, NextEra Energy Seabrook License Renewal Application -

Structures Monitoring Program Supplement - Alkali Silica Reaction (ASR) Monitoring, (May 16, 2012)

(ADAMS Accession No. ML12142A323) (ASR AMP).

ASR can occur in a moistened environment when aggregate in concrete contains reactive silica which reacts with alkali hydroxides in the cement paste. The reaction forms an alkali-silica gel, which can absorb water and swell. This swelling causes internal stress in the concrete structure. In turn, that stress leads to cracking, which may degrade the mechanical properties of concrete. NRC Information Notice 2011-20: Concrete Degradation by Alkali-Silica Reaction, 2 (Nov. 18, 2011) (ADAMS Accession No. ML112241029); Transcript of Advisory Committee on Reactor Safety, Plant License Renewal Subcommittee, NRC Slides at 25 (July 10, 2012) (ADAMS Accession No. ML12207A401) (ACRS Transcript).

5 NRC Staffs Answer to Intervenors Motion for Leave to File New Contention Concerning Safety-Related Concrete Structures (Sep. 21, 2012) (ADAMS Accession No. ML12265A384) (Staff Answer);

NextEra Answer Opposing Admission of Contention Concerning Alkali-Silica Reaction (Sep. 21, 2012)

(ADAMS Accession No. ML12265A135).

6 Staff Answer at 1.

7 Friends of the Coast and New England Coalitions Reply to NRC Staffs Answer & NextEras (continued. . .)

On September 21, 2012, the same day NextEra and the Staff filed their responses, FOTC/NEC filed the ASR Supplement, which is the subject of this answer.8 The ASR Supplement contends that four additional documents provide further support for the ASR Contention.9 Those four documents are (1) a Request for Deviation from the Reactor Oversight Process (ROP) Action Matrix to Provide Increased Oversight of the Alkali-Silica Reaction Issue at Seabrook (Staff ROP Request);10 (2) the Seabrook Alkali Silica Reaction Issue Technical Team Charter (Charter),11 (3) Requests for Additional Information (RAI) for the Review of the Seabrook Station, License Renewal Application - Set 19 (RAI Set 19);12 and (4) a Letter from Sandra Gavutis, Executive Director, C-10 Research and Education Foundation and Dr. David Wright, Co-Director, Global Security Program, Union of Concerned Scientists to William M.

Dean, Regional Administrator Region 1, NRC (C-10 Letter).13 The Staffs September 21, 2012 Answer fully described the relevant history of this

(. . .continued)

Answer to Intervenors Motion for Leave to File New Contention Concerning Safety-Related Concrete Structures (Sep. 28, 2012) (ADAMS Accession No. ML12273A008).

8 ASR Supplement.

9 Id. at 2-3.

10 Request for Deviation from the Reactor Oversight Process Action Matrix to Provide Increased Oversight of the Alkali-Silica Reaction Issue at Seabrook (Sep. 5, 2012) (ADAMS Accession No. ML12242A370) (Staff ROP Request).

11 Seabrook Alkali Silica Reaction Issue Technical Team Charter (July 9, 2012) (ADAMS Accession No. ML121250588) (Charter).

12 Requests for Additional Information for the Review of the Seabrook Station, License Renewal Application - Set 19 (Sep. 14, 2012) (ADAMS Accession No. ML12250A707) (RAI Set 19).

13 Letter from Sandra Gavutis, Executive Director, C-10 Research and Education Foundation and Dr. David Wright, Co-Director, Global Security Program, Union of Concerned Scientists to William M.

Dean, Regional Administrator Region 1, NRC (Sep. 13, 2012) (ADAMS Accession No. ML12265A398)

(C-10 Letter).

proceeding and the Staffs evaluation of ASR in its review of the Seabrook license renewal application (LRA).14 Therefore, the Staff will not repeat that discussion here. Nonetheless, because the ASR Supplement references many documents regarding the Staffs review of ASR at Seabrook under the ROP, the Staff will briefly describe the ROP and how the Staff has examined ASR at Seabrook under that process.

II. The Staffs Evaluation of ASR in Concrete Structures at Seabrook under the ROP The ROP is a risk-informed process for inspecting and assessing licensee performance.15 A risk-informed process assesses the safety risk posed by a non-compliance and uses that risk to determine the level of regulatory response under the ROP. 16 The primary mechanism the NRC Staff uses to direct its oversight under the ROP is the Action Matrix.17 The NRC Staff assigns each plant to one of five columns in the Action Matrix based on its performance.18 If a plant demonstrates degraded performance, the NRC Staff will move it to a higher-numbered Column in the Action Matrix.19 That reassignment will result in additional inspections.20 In Columns I-IV21 of the Action Matrix, the NRC Staff has reasonable assurance 14 Staff Answer at 2-7.

15 Inspection Manual Chapter (IMC) 0308, Reactor Oversight Process (ROP) Basis Document, at 1-2 (Nov. 11, 2007) (ADAMS Accession No. ML071860181) (IMC 0308).

16 IMC 0305, Operating Reactor Assessment Program (IMC 0305) at 17 (Jul. 1, 2012) (ADAMS Accession No. ML12089A066) (IMC 0305).

17 IMC 0308 at 5.

18 Id. at 17.

19 IMC 0305 at 17-24.

20 Id. at F1-1.

21 Referring to the columns of the Action Matrix by Roman numerals is a short hand. The formal names for the columns are: I-Licensee Response Column; II-Regulatory Response Column; III-Degraded (continued. . .)

that the plant will operate safely.22 If the NRC Staff determines that a plants safety performance is unacceptable and that the NRC Staff therefore lacks reasonable assurance that the plant can comply with its licensing basis, the NRC Staff will move the plant to Column V and direct it to shut down.23 The NRC has monitored NextEras treatment and analysis of ASR at Seabrook under the ROP since November of 2010.24 The NRC has determined that the structures affected by ASR are currently capable of performing their safety-related functions.25 The NRC based this determination on (1) engineering conservatisms in design, (2) the lack of significant deformation, distortion, or displacement of structures, (3) the limited number of areas affected by ASR, and (4) ASRs slow progression at Seabrook combined with NextEras monitioring plans.26 Nonetheless, the NRC still has concerns associated with long term operability.27 Thus, NextEra has committed to provide the NRC with substantially more information regarding

(. . .continued)

Cornerstone Column; IV-Multiple/Repetitive Degraded Cornerstone Column; V-Unacceptable Performance Column. Id. at F1-1.

22 See IMC 0305 at 23 (noting that when a plant is in Column V, the NRC lacks reasonable assurance that the plant will operate safely).

23 Id. at 23-24.

24 Seabrook Station - NRC Inspection Report 05000443/2011010 Related to Alkali-Silica Reaction Issue in Safety Related Structures, Enclosure at 1 (Mar. 26, 2012) (ADAMS Accession No. ML120480066) (ASR IR).

25 Confirmatory Action Letter, Seabrook Station, Unit 1 - Information Related to Concrete Degradation Issues, at 2 (May 16, 2012) (ADAMS Accession No. ML12125A172) (CAL).

26 Id.

27 ASR IR at 1.

ASR at Seabrook in the coming year.28 DISCUSSION I. The ASR Supplement, Like All Documents that Add Support for Pending Contentions, Must Meet the Requirements for Amending a Contention FOTC/NEC asserts that the ASR Supplement does not amend the ASR Contention but only adds basis and support for that contention.29 Under NRC precedent, a petitioner need not introduce at the contention phase every document on which it will rely in a hearing.30 Nonetheless, if a petitioner provides additional information to support a pending contention, the addition must meet the normal requirements for filing a new or amended contention. New bases for a contention cannot be introduced in a reply brief, or any other time after the date the original contentions are due, unless the petitioner meets the late-filing criteria set forth in 10 C.F.R. § 2.309[(c)(1)].31 The additional information must also meet the normal contention admissibility requirements.32 These stringent standards serve an important policy purpose. As the Commission has observed, There simply would be no end to NRC licensing proceedings if 28 CAL at 2-3.

29 ASR Supplement at 2.

30 Nuclear Management Company, LLC (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727, 732 (2006).

31 Id. Although FOTC/NEC claims that the ASR Supplement meets the requirements for new and amended contentions under 10 C.F.R. § 2.309(f)(2), the Staff notes that the Commission recently moved those standards to 10 C.F.R. § 2.309(c)(1). Amendments to Adjudicatory Process Rules and Related Requirements, 77 Fed. Reg. 46,562, 46,591 (Aug. 3, 2012). Because this amendment did not change the substance of those provisions, the Staff will refer to the new provisions in responding to FOTC/NECs arguments and rely on case law discussing § 2.309(c)(1)s predecessor, § 2.309(f)(2).

32 See Palisades, CLI-06-17, 63 NRC at 732 (By stressing untimeliness, we by no means suggest that the new information . . . amounts to an admissible contention.); Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 261 (2009) (noting that new and amended contentions must also meet the normal contention admissibility requirements under 10 C.F.R. § 2.309(f)(1)).

petitioners could disregard our timeliness requirements and add new bases or new issues that simply did not occur to [them] at the outset.33 Consequently, like any attempt to add further support for a pending contention, the ASR Supplement must meet the Commissions standards for new and amended contentions in 10 C.F.R. § 2.309(c)(1) and contention admissibility in § 2.309(f)(1). FOTC/NEC apparently agrees and contends that the ASR Supplement meets the requirements of 10 C.F.R. § 2.309(c)(1) and (f)(1)(v) and that the ASR Contention itself provides sufficient information to meet the remaining requirements in § 2.309(f)(1).34 The Staff will discuss in turn each document the ASR Supplement references: the Staff ROP Request, the Charter, RAI Set 19, and the C-10 Letter.

But, first, the following section will briefly discuss the Commissions standards for contention amendment and admissibility.

II. Legal Standards A. Timeliness Standards Under 10 C.F.R. § 2.309(c)(1)

Under 10 C.F.R. § 2.309(c)(1), a contention filed after the initial filing period may be admitted as a timely new or amended contention only with leave of the Board upon a showing that:

(i) The information upon which the amended or new contention is based was not previously available; (ii) The information upon which the amended or new contention is based is materially different than information previously available; and (iii) The amended or new contention has been submitted in a 33 Louisiana Energy Servs., L.P. (National Enrichment Facility), CLI-04-25, 60 NRC 223, 225 (2004).

34 ASR Supplement at 2.

timely fashion based on the availability of the subsequent information.35 Pursuant to the Boards modified Initial Scheduling Order, [a] motion and proposed new contention shall be deemed timely under 10 C.F.R. § 2.309(c)(1)(iii) if it is filed within thirty (30) days of the date when the new and material information on which it is based first becomes available to the moving party through service, publication, or any other means.36 The Commission has made several points clear when discussing what constitutes new and materially different information for purposes of 10 C.F.R. § 2.309(c)(1). First, when a petitioners motion makes little effort to meet the pleading requirements governing late-filed contentions, that in and of itself constitutes sufficient grounds for rejecting the petitioners motion.37 For example, the Commission has stated that a petitioners failure to address the factors in 10 C.F.R. § 2.309(c)(1) is reason enough to reject the motion.38 Second, petitioners cannot simply point to documents merely summarizing earlier documents or compiling pre-existing, publicly available information into a single source[as doing so] do[es] not render new the summarized or compiled information.39 The Commission has explained, a petitioner or intervenor [cannot] delay filing a contention until a document becomes available that collects, summarizes and places into context the facts supporting that contention. To conclude 35 10 C.F.R. § 2.309(f)(2).

36 Order (Granting Joint Motion to Modify Initial Scheduling Order), at 2 (Oct. 3, 2012) (ADAMS Accession No. ML12277A049) (Amended Scheduling Order at 2).

37 Florida Power & Light Co., (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-06-21, 64 NRC 30, 33 (2006).

38 Id. (noting that petitioner did not address any of the factors in 10 C.F.R. § 2.309(c)(1)).

39 Entergy Nuclear Vermont Yankee, L.L.C. and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-11-02, 73 NRC 333, 344 (2011).

otherwise would turn on its head the regulatory requirement that new contentions be based on information not previously available.40 Third, the Commission has emphasized that allegedly new and materially different information must support the proposed contention.41 Thus, the Commission has noted that allegedly new and materially different information must articulate a reasonably apparent foundation for the contention.42 B. Contention Admissibility Standards in NRC License Renewal Proceedings

1. Contention Admissibility Factors in 10 C.F.R. § 2.309(f)(1)

In addition to meeting the 10 C.F.R. § 2.309(c)(1) requirements, an attempt to add additional bases to a contention must also meet the requirements of 10 C.F.R. § 2.309(f)(1).43 Under § 2.309(f)(1), an admissible contention must:

(i) Provide a specific statement of the issue of law or fact to be raised or controverted; (ii) Provide a brief explanation of the basis for the contention; (iii) Demonstrate that the issue raised in the contention is within the scope of the proceeding; (iv) Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; 40 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), CLI-10-27, 72 NRC 481, 496 (2010) (internal citations omitted); see also 77 Fed. Reg. at 46566.

41 See Prairie Island, CLI-10-27, 72 NRC at 493-94 (noting that the SER petitioners cited to as having new and materially different information did not provide support for the contention and so did not contain new or materially different information).

42 Id. at 495.

43 See Palisades, CLI-06-17, 63 NRC at 732 (By stressing untimeliness, we by no means suggest that the new information . . . amounts to an admissible contention.); Oyster Creek, CLI-09-7, 69 NRC at 261.

(v) Provide a concise statement of the alleged facts or expert opinions which support the requestors/petitioners position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the requestor/petitioner intends to rely to support its position on the issue; and (vi) Provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact. This information must include references to specific portions of the application (including the applicants environmental report and safety report) that the petition disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioners belief.44 The contention admissibility requirements are strict by design.45 Thus, the Commission has strictly applied them in NRC adjudications, including license renewal proceedings.46

2. Scope of NRC License Renewal Proceedings Regarding scope, the Commission has held, [a]djudicatory hearings in individual license renewal proceedings will share the same scope of issues as our NRC Staff review.47 Part 54 governs the Staffs safety review of license renewal applications.48 Part 54 centers the license renewal reviews on the most significant overall safety concern posed by extended reactor 44 10 C.F.R. § 2.309(f)(1).

45 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001).

46 AmerGen Energy Company, LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 118-19 (2006).

47 Florida Power and Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 10 (2001).

48 10 C.F.R. § 54.1.

operation - the detrimental effects of aging.49 Accordingly, Part 54 requires renewal applicants to demonstrate how their programs will be effective in managing the effects of aging during the proposed period of extended operation.50 The Commission has repeatedly cautioned, [L]icense renewal should not include a new, broad-scoped inquiry into compliance that is separate from and parallel to [our] ongoing compliance oversight activity. 51 That ongoing oversight is sufficient to ensure that plants comply with the terms of their existing licenses.52 Therefore, To require a full reassessment of these issues at the license renewal stage . . . would be both unnecessary and wasteful.53

3. An Admissible Contention Must Contain an Adequate Factual Basis Although petitioners are not required to prove their case, or to provide an exhaustive list of possible bases at the contention admissibility phase, they are required to provide sufficient alleged factual or legal bases to support the contention, and to do so at the outset.54 In addition, [T]he Commission will not accept the filing of a vague, unparticularized [contention],

unsupported by alleged fact or expert opinion and documentary support.55 Put another way, 49 Turkey Point, CLI-01-17, 54 NRC at 7.

50 Id. at 8.

51 E.g. Prairie Island, CLI-10-27, 72 NRC at 490 (quoting Nuclear Plant License Renewal, 56 Fed.

Reg. 64,943, 64,952 (Dec. 13, 1991) (alteration in original)).

52 56 Fed. Reg. at 64,946.

53 Turkey Point, CLI-01-17, 54 NRC at 7.

54 Louisiana Energy Services, LP (National Enrichment Facility), CLI-04-35, 60 NRC 619, 623 (2004).

55 Consumers Energy Co. (Palisades Nuclear Power Plant), CLI-07-18, 65 NRC 399, 414 (2007)

(quotations omitted).

[g]eneral assertions or conclusions will not suffice.56 Thus, [a] petitioners issue will be ruled inadmissible if the petitioner has offered no tangible information, no experts, [or] no substantive affidavits but instead only bare assertions and speculation.57 Although the Staffs safety review is not the subject of NRC hearings, a document produced by the Staff may provide the requisite factual support for an admissible contention challenging the license application.58 However, a petitioner seeking to rely on a Staff document must adequately explain how it supports the contention.59 III. The Portions of the ASR Supplement Related to the Staff ROP Request and Charter Are Not Adequately Supported, Untimely, Immaterial, and Out of Scope A. The Staff ROP Request and Charter Do Not Provide Adequate Factual Support for the ASR Contention FOTC/NEC contends that information in the Staff ROP Request and Charter provides additional support for the ASR Contention under 10 C.F.R.§ 2.309(f)(1)(v).60 That section requires petitioners to [p]rovide a concise statement of the alleged facts or expert opinions which support the requestors/petitioners position on the issue.61 But, neither the Staff ROP 56 Id.

57 Fansteel, Inc. (Muskogee, Oklahoma, Site), CLI-03-13, 58 NRC 195, 203 (2003) (internal quotations omitted).

58 Baltimore Gas & Electric Company (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI 25, 48 NRC 325, 350 (1998) (noting that [i]f a petitioner concludes that a staff RAI or an applicant RAI response raises a legitimate question about the adequacy of the application, the petitioner is free to posit that issue as a new or amended contention, subject to complying with the late-filing standards).

59 Louisiana Energy Services, L.P. (Claiborne Enrichment Center), LBP-91-41, 34 NRC 332, 338 (1991); see USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 471 (2006) (noting that an expert opinion that merely states a conclusion (e.g., the application is deficient, inadequate, or wrong) without providing a reasoned basis or explanation for that conclusion is inadequate to establish a material dispute).

60 ASR Supplement at 2.

61 10 C.F.R. § 2.309(f)(1)(v).

Request nor the Charter discusses the issues raised by the ASR Contention. Consequently, they do not provide adequate support for the ASR Contention.

As discussed in the Staffs initial answer to the ASR Contention, the ASR Contention raises eight challenges to NextEras ASR AMP.62 Those challenges relate to (1) baselines for the ASR AMP, (2) visual inspections, (3) inaccessible areas, (4) ASR aggravating factors, (5) inspector qualifications, (6) measures to mitigate ASR, (7) inspection intervals, and (8) concrete sampling.63 But, the Staff ROP Request and the Charter do not discuss any technical issues, let alone the eight issues raised by the ASR Contention. Therefore, these documents do not provide sufficient factual support to demonstrate that the ASR Contention would meet the requirements of 10 C.F.R. § 2.309(f)(1)(v).

Rather, the Staff ROP Request asks for additional staff resources to study ASR at Seabrook.64 Previously, the Staff had studied ASR at Seabrook using the resources provided for by the ROP.65 However, the Staff believes this first-of-a-kind issue warrants additional inspection and assessment beyond that normally allocated by the ROP.66 Thus, the Staff ROP Request asks for more resources to conduct additional inspections and assessments 62 Staff Answer at 8.

63 ASR Contention at 9-10. As the NRC Staff noted in its answer, FOTC/NECs stated contention is impermissibly vague. Staff Answer at 30 n. 133. Moreover, FOTC/NECs stated bases are also too general to meet the NRCs specific pleading standards. Palisades, CLI-07-18, 65 NRC at 414; 10 C.F.R.

§ 2.309(f)(1)(i), (v), (vi) Those bases are: The Proposed ASR Structures Monitoring Program is not a Functional Effective tool for AMP and NextEra has not Developed Reliable Inventory and Analysis on Which to Base an ASR Monitoring Program or Aging Management Program for Affected Concrete Structures. ASR Contention at 9-10. Because the eight listed issues in the ASR Contention are the only portions of the pleading that raise claims with sufficient specificity to meet the NRCs pleading requirements, they should be the appropriate focus for an analysis of the contentions admissibility.

64 Staff ROP Request at 2.

65 Id. at 2.

66 Id.

associated with ASR in concrete at Seabrook.67 Likewise, the Charter only establishes procedures for coordinating Seabrook ASR reviews among NRC offices studying the issue.68 The NRC promulgated the charter to coordinate onsite inspections, in-office technical reviews, and other associated evaluation and assessment activities involving NextEras review and resolution of the ASR issues at Seabrook Station.69 The Charter specifies the Seabrook ASR Issue Technical Teams objectives and responsibilities.70 The Charter also lists the regulatory requirements governing the Staffs ASR review.71 Consequently, unlike the ACRS Transcript, the Charter and the Staff ROP Request do not discuss technical issues in general or any of the eight specific technical issues FOTC/NEC identified in the ASR Contention.72 Rather, these are simply administrative documents that establish the process the Staff will use to evaluate ASR at Seabrook and the resources that will support that evaluation. Therefore, they do not support the ASR Contention.

Although FOTC/NEC has not moved to amend the ASR Contention to include new claims, FOTC/NEC nonetheless argues that these documents support the contention because 67 Id. at 1-2.

68 Charter, Enclosure at 1-2.

69 Id.

70 Id.

71 Id. at Enclosure, Attachment, A-4.

72 Compare ACRS Transcript at 154-78 (providing detailed discussion of the Staffs technical concerns with NextEras proposed approach to managing ASR at Seabrook during the license renewal term, including NextEras reliance on visual inspections, baseline inspections, and sampling program) with Staff ROP Request (asking for additional resources to study ASR under the ROP); Charter (describing how the Staff will coordinate reviews of ASR at Seabrook).

they demonstrate that it is also quite clear that the licensee has not provided the staff with enough information to generate assurance that ASR-affected structures will not fail under the current license and reveal uncertainties about multiple aspects of going forward under the current license.73 But, even if FOTC/NEC had moved to amend the ASR Contention to include these claims, they are too vague to support an admissible contention.74 Unlike the claims in the initial ASR Contention, these claims do not challenge or even discuss any specific feature of NextEras ASR AMP.75 Rather, FOTC/NEC simply speculates that because the Staff is still reviewing ASR at Seabrook under the ROP, the ASR AMP must somehow be deficient.76 As a result, FOTC/NECs claims constitute the type of [g]eneral assertions or conclusions that the Commission has previously found will not suffice to support an admissible contention.77 B. The Staff ROP Request and Charter Do Not Provide Materially Different Information than Previously Available In addition to lacking an adequate factual basis, the portions of the ASR Supplement related to the Staff ROP Request and Charter are not timely under 10 C.F.R. § 2.309(c)(1).

That section requires petitioners to demonstrate that new or amended contentions are timely filed and rest on new information that is materially different from previously available 73 ASR Supplement at 6, 7.

74 North Atlantic Energy Service Corporation, et al. (Seabrook Station, Unit 1), CLI-99-06, 49, NRC 201, 219 (1999) (NRC regulations do permit the filing of a vague, unparticularized contention; rather, petitioners must provide sufficiently detailed grievances to allow the adjudicator to conclude that genuine disputes exist justifying a commitment of adjudicatory resources to resolve them).

75 Compare ASR Contention at 9-10 (raising specific issues with NextEras plan to manage ASR during the period of extended operation) with ASR Supplement at 4 (claiming that the additional documents reflect the NRCs misgivings).

76 ASR Supplement at 4-9.

77 Consumers Energy Co. (Palisades Nuclear Power Plant), CLI-07-18, 65 NRC 399, 414 (2007)

(quotations omitted).

information.78 As noted above, the Commission has also indicated that allegedly new and materially different information must articulate a reasonably apparent foundation for the contention.79 But, the Staff ROP Request and Charter do not discuss any of the eight specific claims raised by ASR Contention, let alone provide sufficient information to demonstrate a foundation for the contentions admissibility. Consequently, these documents cannot meet the requirements of § 2.309(c)(1).

Nevertheless, FOTC/NEC asserts that the Staff ROP Request supports the ASR Contention because, [i]t is clear that, as of this memorandum and three year[s] after the discovery of degraded concrete at Seabrook, NRC Staff has not been provided with enough information to be able to confirm if safety-related structures will continue to perform [their] safety function.80 Likewise FOTC/NEC claims that the Charter is significant because it reveals uncertainties about multiple aspects of going forward under the current license.81 But, information regarding the Staffs long-term-operability concerns has been available for months. In a March 26, 2012 inspection report, the Staff noted that although NRC inspectors concluded that concrete structures can currently perform their safety related functions despite the observed degradation due to ASR, the NRC still has concerns associated with long term operability.82 Likewise, on May 16, 2012, the NRC issued a Confirmatory Action Letter (CAL) that confirmed NextEras stated intent to submit the results of long term aggregate expansion 78 10 C.F.R. § 2.309(c)(1)(i)-(iii).

79 Prairie Island, CLI-10-27, 72 NRC at 493-94 (internal citations omitted).

80 ASR Supplement at 5 (quotations omitted) (third alteration in original).

81 Id. at 7.

82 ASR IR, Enclosure at 1.

testing regarding ASR by July 30, 2013.83 Therefore, although FOTC/NEC suggests that the Staff ROP Request and Charter are significant because they show that the Staff continues to evaluate ASR at Seabrook from a long-term operability standpoint, that information was available months before the NRC published those documents. The inspection report and CAL clearly indicated that the Staffs review of ASR under the ROP is ongoing and will likely continue well into 2013.84 Consequently, to the extent FOTC/NEC relies on the Staff ROP Request and Charter to show that the Staff is still evaluating ASR at Seabrook under the ROP, that information is not materially different than previously available information in the inspection report and CAL.

In addition, FOTC/NEC contends that the Charter is new information because in it for the first time, NRC Staff provides an extensive list of areas and issues surrounding ASR that remained open as of July 9, 2012.85 But, the Commission has clearly indicated that petitioners cannot point to documents merely summarizing earlier documents or compiling pre-existing, publicly available information into a single source[as doing so] do[es] not render new the summarized or compiled information.86 As discussed above, information regarding the Staffs ongoing review of ASR at Seabrook under the ROP was available well before the Charter became publicly available.87 Consequently, the Charters summary of existing information does 83 CAL at 2.

84 Id.; ASR IR, Enclosure at 2.

85 ASR Supplement at 7.

86 Vermont Yankee, CLI-11-02, 73 NRC at 344.

87 See, e.g., CAL at 2-3.

not transform it into new information.88 Accordingly, the portions of the ASR Supplement related to the Staff ROP Request and Charter do not meet the requirements of § 2.309(c)(1).

C. The Staff ROP Request and Charter are Not Material to the ASR Contention Moreover, the Board should not amend the proposed bases for the ASR Contention to include the Staff ROP Request and Charter because FOTC/NEC has not shown how those documents are material to this proceeding.89 Pursuant to 10 C.F.R. 2.309(f)(1)(iv), a contentions proponent must demonstrate that it raises issues that are material to the findings the NRC must make to support the action. Moreover, the proponent must show a genuine dispute exists with the applicant/licensee on a material issue of law or fact.90 NRC license renewal proceedings consider the adequacy of the applicants plans to manage the effects of aging during the period of extended operation.91 Because the NRC already adequately considers current operating events under the ROP, the Commission determined not to expend agency resources on a duplicative review of these issues during license renewal.92 Consequently, the relevant inquiry in this proceeding is whether NextEra has demonstrate[d] how their programs will be effective in managing the effects of aging during the proposed period of extended operation.93 Indeed, the Commission has found that generalized assertions regarding current operating issues are immaterial to license renewal without a 88 Prairie Island, CLI-10-27, 72 NRC at 496.

89 10 C.F.R. § 2.309(f)(1)(iv), (vi).

90 10 C.F.R. § 2.309(f)(1)(vi).

91 10 C.F.R. § 54.29.

92 56 Fed. Reg. at 64,946.

93 Turkey Point, CLI-01-17, 54 NRC at 8.

demonstrated nexus between those current operating issues and aging management.94 The Staff ROP Request and the Charter do not discuss the adequacy of the ASR AMP, or any other AMP proposed by NextEra to manage the effects of aging at Seabrook during the license renewal period.95 Rather, as discussed above, the documents only discuss the NRCs future plans for evaluating ASR at Seabrook during the current operating term under the ROP.96 If a Staff document issued under the ROP contained information that was relevant to a proposed AMP, it could support a license renewal contention. 97 But, FOTC/NEC has not pointed to such information in either the Staff ROP Request or the Charter.98 Rather, FOTC/NEC has only cited portions from these documents that indicate the Staffs review of long-term operability under the ROP is ongoing. This information alone is simply not relevant to the question at stake in this proceeding: whether the ASR AMP is adequate to manage the effects of aging under Part 54.99 Consequently, the Board should not amend the ASR Contention to include the Charter and Staff ROP Request because FOTC/NEC has not shown 94 See Pacific Gas and Electric Company (Diablo Canyon Nuclear Power Plant Units 1 and 2),

CLI-11-11, 74 NRC __, __ (2011) (slip op. at 11) (finding that generalized assertions regarding current operating issues, that did not provide a nexus between the assertions and issues relevant to Part 54, were immaterial).

95 The Charter does indicate that one objective of the Seabrook ASR Issue Technical Team (SAITT) will be to ensure coordination of long term aging management program issues related to the ASR. Charter, Enclosure, at 2. But, this statement does not provide any substantive information on aging management. It only indicates that the SAITT will coordinate its activities with the current Seabrook LRA review.

96 See supra, section III.A.

97 See Calvert Cliffs, CLI-98-25, 48 NRC at 350 (finding that information from a Staff request for additional information, while not normally the focus of adjudicatory hearings, could support an admissible contention in some instances); see also Diablo Canyon, CLI-11-11, 74 NRC at __ (slip op. at 11).

98 ASR Supplement at 4-9.

99 See Diablo Canyon, CLI-11-11, 74 NRC at __ (slip op. at 11).

how those documents are material to this license renewal proceeding.100 D. NRC Regulations Do Not Require the Agency to Resolve All ROP Issues Before Considering a License Renewal Application Finally, FOTC/NEC asks how the NRC could find adequate protection of public health and safety for a program that will begin in 2032 when they cannot affirm or confirm adequate protection of public health and safety for a program intended to address the same issue for the intervening twenty years.101 Rather, FOTC/NEC asserts that ongoing ASR issues should have been resolved before filing the Seabrook LRA.102 Until NextEra resolves these issues, FOTC/NEC suggests that NextEra is not entitled to a discrete LRA review of its proposed ASR monitoring plan.103 But, contrary to FOTC/NECs suggestion that license renewal is legally contingent upon resolution of current operating issues, the NRC relies on separate regulatory processes to consider current operating issues and license renewal issues.104 The NRC fully considers operability questions under the ROP and aging management in its LRA review.105 Because the Commission found that the ROP would adequately address current operating issues as they arose, the Commission concluded that the NRC need not reconsider those issues at the time of license renewal.106 In fact, the Commission acknowledged that plants might operate outside of 100 10 C.F.R. § 2.309(f)(1)(iv), (vi).

101 ASR Supplement at 7-8.

102 Id. at 7.

103 Id. at 8.

104 56 Fed. Reg. at 64,946.

105 Id.

106 Id.

their licensing bases at the time of license renewal but concluded that the normal oversight process would be sufficient to address those issues without undertaking a duplicative review as part of license renewal.107 Thus, the Commission has noted that the two reviews are parallel and distinct.108 As a result, the NRC does not necessarily need to await the resolution of an issue under the ROP before it may consider a license renewal application.109 Consideration of an issue under the ROP and in license renewal may involve similar information. But, contrary to FOTC/NECs suggestion, NRC regulations impose no legal requirement that a licensee must resolve all current operating issues under the ROP before the NRC may consider the separate question of license renewal.110 Under firmly established NRC precedent, a contention that simply states the petitioners views about what regulatory policy should be does not present a litigable issue.111 Consequently, to the extent the ASR Supplement challenges existing NRC regulations, which permit licensees to file LRAs regardless of ROP status, the ASR Supplement is barred by NRC regulations and outside the scope of this proceeding.112 107 Id. at 64,945.

108 56 Fed. Reg. at 64,952.

109 10 C.F.R. § 54.29.

110 Id. See also, Diablo Canyon, CLI-11-11, 74 NRC __ (slip op. at 11) (litigation of current operational issues is precisely the type of duplicative review that appropriately is excluded from a license renewal proceeding).

111 Tennessee Valley Authority (Bellefonte Nuclear Plant, Units 1 and 2), LBP-10-07, 71 NRC 391, 420 (2010) (citing Philadelphia Elec. Co. (Peach Bottom Atomic Power Station, Units 2 & 3), ALAB-216, 8 AEC 13, n.33 (1974)).

112 10 C.F.R. § 2.309(f)(1)(iii); 10 C.F.R. § 2.335.

IV. The Portion of the ASR Supplement Related to RAI Set 19 Is Untimely and Does Not Support Several Portions of the ASR Contention FOTC/NEC asserts that RAI Set 19 offers additional support for the ASR Contention.113 Specifically, Intervenors argue that RAI Set 19 provides a window on more narrowly drawn ASR characterization, monitoring, and mitigations [and] technical issues, and therefore illumin[ates] technical and practical problems with NextEras proposed ASR monitoring program.114 However, FOTC/NECs reliance on RAI Set 19 is entirely untimely under 10 C.F.R.

§ 2.309(c)(1). Furthermore, FOTC/NEC has not shown that RAI Set 19 establishes a factual basis for several assertions in the ASR Contention, rendering this portion of the ASR Supplement deficient with respect to those assertions under 10 C.F.R. § 2.309(f)(1)(v).

Therefore, Intervenors should not be permitted to supplement the bases for the ASR Contention with RAI Set 19.

A. RAI Set 19 Does Not Provide New Information The portion of the ASR Supplement that relies on RAI Set 19 depends wholly on information previously available to FOTC/NEC and is thus untimely in its entirety under 10 C.F.R. § 2.309(c)(1).115 As discussed below, the NRC Staff has asked similar questions to those in RAI Set 19 from the beginning of its review of the ASR issue at Seabrook.116 At most, RAI Set 19 summarize[s] earlier documents or compil[es] pre-existing, publicly available 113 ASR Supplement at 9-13.

114 Id. at 9.

115 FOTCNEC does not state with specificity which portions of RAI Set 19 purportedly support which portions of the ASR Contention. Instead, FOTC/NEC quotes several pages of RAI Set 19, but then assert that they intend to rely on RAI Set 19 in its entirety. ASR Supplement at 13. The Staff will therefore address each RAI in turn.

116 Staff Answer at 3-7.

information into a single source.117 But, the Commission has plainly stated that doing so does not render new the summarized or compiled information.118 Consequently, RAI Set 19 does not provide new information that is materially different from previously available information within the meaning of § 2.309(c)(1).

1. Follow-Up RAI B.2.1.28-3 The Staffs first question in RAI Set 19 relates to NextEras apparent application of passive cracking thresholds to cracking from ASR, which is an example of active cracking.119 Passive cracking will not continue to grow over time, whereas active cracking can continue to grow over time and thus warrants continuous monitoring. In a March 30, 2012 letter, NextEra made clear that it had identified a maximum crack width of 8 mils in the exterior face of the Containment Structure and that two locations on the Containment Structure exhibited cracking that may be indicative of ASR.120 NextEra wrote that because the maximum crack width was less than 15 mils, further evaluation of the Containment Structure was unnecessary.121 However, the 2002 report from the American Concrete Institute (ACI) cited by NextEra actually states that while passive cracks less than 0.4 mm (15 mils) in maximum width are generally 117 Vermont Yankee, CLI-11-02, 73 NRC at 344.

118 Id.

119 RAI Set 19 at 12.

120 Seabrook Station, Response to Request for Additional Information, NextEra Energy Seabrook License Renewal Application Supplemental Response - Alkali Silica Reaction (ASR), Enclosure 1 at 5 (Mar. 30, 2012) (ADAMS Accession No. ML12094A364).

121 Id.

acceptable, active cracking requires further evaluation.122 The information underlying Follow-up RAI B.2.1.28-3 was thus previously available to Intervenors.

2. Follow-Up RAI B.2.1.31-1 In RAI B.2.1.31-1 the Staffs questions whether the ASR AMPs acceptance criteria for combined crack mapping index and crack width limits for concrete are based on tests of full-scale replicas of Seabrook concrete structures. In NextEras Response to RAIs dated March 30, 2012, it stated that it planned to perform testing on full-scale replicas of Seabrook structures to develop crack limits.123 However, the ASR AMP, dated May 16, 2012, has acceptance criteria that are not based on such testing.124 The Staffs concern is based entirely on information previously available to Intervenors. Both the March 30, 2012 and May 16, 2012 submissions were available to FOTC/NEC three months before the ASR Contention was filed, well over the thirty day period for filing contentions based on new information provided for in the Boards scheduling order.125

3. RAI B.2.1.31-5 The Staffs next question, expressed in RAI B.2.1.31-5, addresses the inadequacy of visual inspections alone to rule out the presence of ASR in a concrete structure and the consequent need for further investigation (i.e., petrographic examination) to confirm the absence of ASR. FOTC/NEC contends that the Staff discussed this issue for the first time in the 122 ACI 349.3R, Evaluation of Existing Nuclear Safety-Related Concrete Structures, at 14 (January 2002).

123 Seabrook Station, Response to Request for Additional Information, NextEra Energy Seabrook License Renewal Application Supplemental Response - Alkali Silica Reaction (ASR), Enclosure 1 at 19 (Mar. 30, 2012) (ADAMS Accession No. ML12094A364).

124 ASR AMP, Enclosure 2 at 14.

125 Amended Scheduling Order at 2.

ACRS Transcript.126 But, as noted in the Staffs Answer to the ASR Contention, the Staff previously expressed this concern in an RAI.127 In a June 2011 RAI, the Staff noted that the applicant had previously modified an AMP to include confirmatory testing of the containment concrete to determine the compressive strength, the presence or absence of ASR, the concrete modulus of elasticity, and the presence or absence of rebar degradation.128 The Staff asked the applicant to explain how these properties . . . can be verified without taking core samples.129 The Staff explained that it was unaware of any method other than core bores that can be used to determine these properties.130 The Staffs June 2011 RAI plainly discloses the inadequacy of visual inspections alone to fully evaluate ASR and rule out its presence more than a year before the Intervenors proposed their ASR Contention.

Therefore, information regarding the insufficiency of visual inspections to gauge the status of ASR has been publicly available since at least 2011.

4. RAI B.2.1.31-6 RAI B.2.1.31-6 questions whether the inclusion of the current acceptance criteria for combined cracking index (CCI) and individual crack width in the ASR AMP is adequate without first performing a detailed investigation and structural evaluation. The RAI indicates acceptance 126 ASR Contention at 9.

127 Staff Answer at 13-16.

128 Request for Additional Information for the Review of the Seabrook Station License Renewal Application, Enclosure at 5 (June 29, 2011) (ADAMS Accession No. ML11178A338) (emphasis added).

129 Id.

130 Id.

criteria in the ASR AMP include a CCI of 1.0 mm/m or less and an individual crack width of 1.0 mm or less,131 which is inconsistent with industry publications.

The information underlying this concern has been available for several years. In addition to being available in a January 2010 Federal Highway Administration Report, which states that expansions in structural members in excess of 0.5mm/m (0.018 in/yd) should warrant further investigations and . . . the potential consequences of such expansions should be assessed,132 this information was available in a 1992 Institution of Structural Engineers report on detecting and monitoring ASR.133

5. RAI B.2.1.31-7 RAI B.2.1.31-7 relates to baseline inspections. The Staff understands that out of the 131 areas at Seabrook where ASR has been identified, only twenty have been selected for baseline inspection. However, in an RAI dated November 18, 2010, the Staff stated that [a] baseline quantitative concrete inspection of in-scope structures is necessary for monitoring and trending degradation during the period of extended operation.134 Further, the Staff requested that the applicant provide plans for conducting a quantitative baseline inspection, in accordance with 131 RAI Set 19 at 5.

132 U.S. Department of Transportation Federal Highway Administration, Report on the Diagnosis, Prognosis, and Mitigation of Alkali-Silica Reaction in Transportation Structures, at 13 (January 2010),

available at http://www.fhwa.dot.gov/pavement/concrete/pubs/hif09004/hif09004.pdf (FHWA ASR Report).

133 Institution of Structural Engineers, Structural Effects of Alkali-Silica Reaction - Technical Guidance Appraisal of Existing Structures, at 29 (July 1992).

134 Request for Additional Information related to the Review of the Seabrook Station License Renewal Application (TAC No ME4028) - Aging Management Programs, Enclosure at 17 (Nov. 18, 2010)

(ADAMS Accession No. ML103090558).

the ACI 349.3R, prior to the period of extended operation.135 Finally, the ASR AMP, dated May 16, 2012, noted NextEras plan to monitor at least 20 areas identified in the baseline inspection as having ASR-associated cracking.136 Thus, all information related to baseline inspection was previously available to Intervenors. Consequently, information regarding this claim has been available for longer than 30 days, the deadline provided by the Board for filing claims based on new information.137

6. RAI B.2.1.31-8 In RAI B.2.1.31-8, the Staff questions the absence of rebar inspection and monitoring in the ASR AMP. Rebar inspection was mentioned in NextEras March 30, 2012 letter,138 but not in the May 16, 2012 ASR AMP submittal.139 Again, both of these documents were previously available to Intervenors. Furthermore, a March 14, 2012 report by the Union of Concerned Scientists regarding ASR issues at Seabrook specifically notes that further investigation of ASR-induced effects is of significant importance in establishing the vulnerability of embedded steel to chloride-induced corrosion.140 This report has been available to Intervenors since its public 135 Id.

136 ASR AMP, Enclosure 2 at 7.

137 Amended Scheduling Order at 2.

138 Seabrook Station, Response to Request for Additional Information, NextEra Energy Seabrook License Renewal Application Supplemental Response - Alkali Silica Reaction (ASR), Enclosure 1 at 19 (Mar. 30, 2012) (ADAMS Accession No. ML12094A364).

139 See generally ASR AMP.

140 Paul Brown, Commentary on the Alkali-Silica Reaction in Concrete Structures at the Seabrook Nuclear Plant (March 14, 2012) (prepared under contract with the Union of Concerned Scientists), at 4, available at http://www.ucsusa.org/assets/documents/nuclear_power/brown-seabrook-concrete-report 14-12.pdf.

release on April 23, 2012.141 Thus, to be timely under the Boards order, FOTC/NEC should have brought any claim based on this information by June 16, 2012.142

7. RAI B.2.1.31-9 RAI B.2.1.31-9 notes the ASR AMPs lack of explanation as to how inaccessible concrete structures will be monitored for the effects of ASR. However, the Staffs questions regarding inspections for inaccessible or buried concrete were outlined in an earlier RAI dated November 18, 2010. In this RAI, the Staff observed that below-grade concrete structures have experienced groundwater infiltration and requested that the applicant, Explain if/why the [core]

samples are representative of affected concrete throughout the plant, including foundations and the containment enclosure building.143 Furthermore, the Generic Aging Lessons Learned Report, revised in December 2010, discusses the need for AMPs to address monitoring of inaccessible areas.144 Thus, information was publicly available as early as 2010 relating to monitoring inaccessible or buried concrete.

8. RAI B.2.1.31-10 Next, RAI B.2.1.31-10 asks whether mitigative actions will be part of the ASR AMP, as there appears to be conflicting information between submittals from the applicant regarding mitigation. Much like RAI B.2.1.31-8, this question stems from conflicting information in 141 See Press Release, Union of Concerned Scientists, Report Finds Many Unanswered Questions about Concrete Degradation at Seabrook, New Hampshire, Nuclear Plant (April 23, 2012),

available at http://www.ucsusa.org/news/press_release/report-finds-many-unanswered.html.

142 Amended Scheduling Order at 2.

143 Request for Additional Information Related to the Review of the Seabrook Station License Renewal Application (TAC No ME4028) - Aging Management Programs, Enclosure at 16 (Nov. 18, 2010)

(ADAMS Accession No. ML103090558).

144 Generic Aging Lessons Learned Report, Rev. 2, XI.S7-3 (Dec. 2010).

applicant submittals. While NextEras March 30, 2012 letter discusses mitigative actions,145 the May 16, 2012 ASR AMP does not.146 Again, both documents were previously available to FOTC/NEC more than three months before FOTC/NEC filed the ASR Contention.

9. RAI B.2.1.31-11 RAI B.2.1.31-11 requests information regarding why the Containment Enclosure Building (CEB), where the presence of ASR has been confirmed by petrographic examination, is not mentioned in the ASR AMP Scope of Program. Again, both the confirmation of ASR in the CEB and the omission of the CEB from the ASR AMP Scope of Program are previously available information. NextEra communicated that it identified ASR in the CEB no later than April 2012,147 and the May 16, 2012 ASR AMP plainly does not include the CEB in the Scope of Program.148 Ultimately, Intervenors reliance on RAI Set 19 amounts to impermissible reliance on a document summarizing earlier documents or compiling pre-existing, publicly available information into a single source.149 Doing so does not render new the summarized or compiled information.150 As all of the information presented in RAI Set 19 was previously 145 Seabrook Station, Response to Request for Additional Information, NextEra Energy Seabrook License Renewal Application Supplemental Response - Alkali Silica Reaction (ASR), Enclosure 1 at 13 (Mar. 30, 2012) (ADAMS Accession No. ML12094A364).

146 ASR AMP, Enclosure 2 at 10 (There are no preventive actions specified in the Seabrook Station Structures Monitoring Program.).

147 NextEra, Impact of Alkali Silica Reaction on Seabrook Structures (April 23, 2012), slide 15 (ADAMS Accession No. ML121160422).

148 ASR AMP, Enclosure 2 at 9.

149 Vermont Yankee, CLI-11-02, 73 NRC at 344.

150 Id.

available to FOTC/NEC, the portion of the ASR Supplement that relies on RAI Set 19 is untimely in its entirety under 10 C.F.R. § 2.309(c)(1).

B. RAI Set 19 Does Not Provide Adequate Factual Support for Several of the Assertions in the ASR Contention In addition, RAI Set 19 does not support many of the claims in the ASR Contention. As discussed above, the ASR Contention challenges NextEras ASR AMP with respect to (1) baselines for the ASR AMP, (2) visual inspections, (3) inaccessible areas, (4) ASR aggravating factors, (5) inspector qualifications, (6) measures to mitigate ASR, (7) inspection intervals, and (8) concrete sampling.151 Because RAI Set 19 does not provide a sufficient factual basis for several of these points of contention, the ASR Supplement fails to comply with 10 C.F.R. § 2.309(f)(1)(v) with respect to those points and should not be admitted.

FOTC/NEC complains that the ASR AMP makes no provision for monitoring ASR-aggravating factors[], such as the moisture content, the presence of liquid water, the potential of chemically aggressive water, or the temperature of affected [or] susceptible concrete, and that there is no active component proposed to arrest, mitigate or manage the growth of ASR.152 However, RAI Set 19 contains no information regarding monitoring the causes of ASR or the need to mitigate ASR.153 Additionally, FOTC/NEC asserts that ASR observations are to be done by untrained or minimally-trained personnel.154 However, RAI Set 19 contains no 151 ASR Contention at 9-10.

152 Id. at 9.

153 See generally RAI Set 19. While RAI B.2.31-10 requests clarification on whether mitigative actions will be relied on to manage ASR, this request stems from conflicting information between submittals rather than information supporting a need to enact mitigative actions. Id. at 8.

154 ASR Contention at 9.

information relating to personnel training.155 Without mentioning any information regarding these three points of contention, RAI Set 19 cannot provide any factual basis for them.

Intervenors also claim that NextEras proposed intervals of inspection of six months . . .

appears nominal[,] not tied to any calculation of the rate of growth of ASR in any given set of locations.156 While RAI B2.1.31-7 questions how trend data will be used to change the inspection frequency, it does not question the initial inspection frequency of six months.157 Rather, the Staffs concern is simply how trend data from ASR inspections will affect that initial six-month inspection frequency. Thus, RAI Set 19 does not provide a factual basis for FOTC/NECs claim that the initial six-month inspection interval is nominal.

The sole point of contention that was unsupported in the ASR Contention but that does have support in RAI Set 19 is FOTC/NECs claim that the ASR AMP makes no allowance for inspection of inaccessible or buried concrete save for opportunistic inspections which may never happen.158 In RAI B.2.1.31-9, the Staff notes that it did not find in the ASR AMP any discussion on how the effects of the ASR will be detected and monitored in the inaccessible structures such as base slabs of buildings, water intake and discharge structures, service water pump house, and below grade walls of the spent fuel pool covered with the liner plate on [the]

inside surface.159 Therefore, the ASR Supplement does provide support for the inaccessible concrete aspect of the ASR Contention. As explained above, however, the Staffs concern and 155 See generally RAIS Set 19.

156 ASR Contention at 10.

157 RAI Set 19 at 6.

158 ASR Contention at 9.

159 RAI Set 19, at 7.

the information upon which it was based constitute previously available information and this portion of the ASR Supplement is thus untimely.160 V. Portions of the C-10 Letter Do Not Provide Adequate Support for the ASR Supplement and It Is Untimely In the ASR Supplement, Intervenors assert that a fourth document, a letter dated September 13, 2012, from the C-10 Research and Education Foundation and the Union of Concerned Scientists (UCS) to the NRC Region I Administrator (C-10 Letter), provides support for the proposed ASR Contention.161 FOTC/NEC asserts that the C-10 Letter draws a nexus between the petition and the expressed misgivings of NRC experts and others regarding NextEras plans for managing determination and preservation of operability of ASR-affected structures.162 While portions of the C-10 Letter provide some support for the ASR Contention, FOTC/NECs reliance on the C-10 Letter is nevertheless untimely under 10 C.F.R. § 2.309(c)(1). Accordingly, FOTC/NEC should not be permitted to add the C-10 Letter to the proposed bases for the ASR Contention.

A. While Portions of the C-10 Letter Provide Factual Support for the ASR Contention, the C-10 Letter is Nevertheless Untimely

1. Portions of the C-10 Letter Support the ASR Contention Portions of the ASR Supplement regarding the C-10 Letter meet the contention admissibility requirements of 10 C.F.R. § 2.309(f)(1). Intervenors rely on a portion of the C-10 Letter stating that Paul Brown agrees with the NRC staff that visual examination of concrete 160 See supra IV.A.7.

161 C-10 Letter.

162 ASR Supplement at 4.

cannot rule out ASR degradation.163 FOTC/NEC asserts that this portion of the letter supports the proposed ASR Contention in that it points to a fatal weakness in relying on monitoring by visual inspection alone; visual inspection cannot rule out ASR degradation.164 The Staff agrees that FOTC/NEC has demonstrated a sufficient nexus between this portion of the C-10 Letter and FOTC/NECs visual inspection claim in the ASR Contention in accordance with 10 C.F.R. § 2.309(f)(1). However, as described below, FOTC/NEC reliance on the C-10 Letter is untimely.

Thus, FOTC/NEC should not be allowed to amend the proposed ASR Contention with the C-10 Letter.

2. The Remainder of the C-10 Letter Does Not Provide Adequate Factual Support for the ASR Contention The remaining portions of the C-10 Letter cited by FOTC/NEC in the ASR Supplement lack an adequate factual basis for the proposed ASR Contention. FOTC/NEC asserts that the C-10 Letter affirms their concern that without a thorough ASR extent-of-condition review, including, for example, examination of identical source, identical mix, and similar environment; contemporary and older concrete pours across the region, NextEra and NRC will be constructing monitoring and mitigation programs at least partially in the blind, as is the case in the current proposed NextEra ASR Monitoring Program.165 This claim, however, is speculative because FOTC/NEC provides no support for this claim. The C-10 letter does not discuss the ASR AMP or the need for an examination of identical source, identical mix, contemporary, or older concrete. The C-10 Letter merely states, The occurrence of ASR induced concrete 163 Id. at 15 (quoting C-10 Letter at 4).

164 ASR Supplement at 15.

165 Id. at 13-14.

degradation requires an extent of condition investigation under Seabrooks current license and under NRC NUREG-1800 Section: 3.5.2.2.1.4. as ASR concrete degradation is evidenced both below and above grade in multiple safety related buildings.166 An intervenors issue will be ruled inadmissible if the intervenor has offered no tangible information, no experts, or no substantive affidavits but instead only bare assertions and speculation.167 Because FOTC/NEC has failed to indicate how the limited statement from the C-10 Letter supports this vast claim, this portion of their claim is unsupported.

FOTC/NEC also quotes the following section of the C-10 Letter as support:

According to [Dr. Paul] Brown, degradation due to ASR is not a linear phenomenon, as there is some period during which the occurrence of ASR does not cause cracking and actually results in higher strength when compared to a control sample not experiencing ASR. But as the available local pore volumes become filled, cracking initiates. Crack formation and growth are not linear with time. In concrete restrained by reinforcement, mechanical testing of extracted concrete cores to establish compressive strengths and Youngs moduli are appropriate.168 FOTC/NEC asserts this portion of the C-10 Letter affirms its concern in the proposed ASR Contention that there appears to be nothing tying the six-month visual inspection interval in the proposed NextEra monitoring program to real world experience; changing crack formation and growth rates do not call for static inspection intervals; especially twenty years out.169 This portion of the C-10 Letter, however, does not discuss the ASR AMP or inspection intervals at all.

FOTC/NEC also quotes other portions of the C-10 Letter recounting Paul Browns 166 ASR Supplement at 14 (quoting C-10 Letter at 2).

167 Fansteel, Inc., CLI-03-13, 58 NRC at 203.

168 ASR Supplement at 15 (quoting C-10 Letter at 3).

169 Id. at 15.

analysis170 but provides no explanation as to how those portions support the proposed ASR Contention. Thus, FOTC/NEC has not provided enough information to show a sufficient nexus between these other portions of the C-10 Letter and the concerns in the proposed ASR Contention regarding the ASR AMP to establish a factual basis in accordance with 10 C.F.R. § 2.309(f)(1)(v). As a result, FOTC/NEC should not be allowed to amend the proposed ASR Contention with these portions of the C-10 Letter.

B. The C-10 Letter Does Not Contain New and Materially Different Information Although portions of the C-10 Letter provide factual support for the ASR Contention, FOTC/NECs reliance on the C-10 Letter is nevertheless untimely under 10 C.F.R. § 2.309(c)(1). As discussed above, FOTC/NEC cites as support for the proposed ASR Contention a portion of the C-10 Letter that recounts the independent expert analysis and comments prepared under contract with Union of Concerned Scientists by Paul Brown Ph.D.,

Professor of Ceramic Science and Engineering at Penn State University regarding the ASR situation at Seabrook.171 However, the comments and expert analysis Paul Brown prepared under contract with the UCS regarding ASR at Seabrook were published in a report dated March 14, 2012.172 This report was publicly released by the Union of Concerned Scientists on April 23, 2012.173 FOTC/NECs reliance on the C-10 Letter is untimely because as FOTC/NEC 170 ASR Supplement at 14-15.

171 Id. at 14.

172 See Paul Brown, Commentary on the Alkali-Silica Reaction in Concrete Structures at the Seabrook Nuclear Plant (March 14, 2012) (prepared under contract with the Union of Concerned Scientists), available at http://www.ucsusa.org/assets/documents/nuclear_power/brown-seabrook-concrete-report-3-14-12.pdf.

173 See Press Release, Union of Concerned Scientists, Report Finds Many Unanswered Questions about Concrete Degradation at Seabrook, New Hampshire, Nuclear Plant (April 23, 2012),

available at http://www.ucsusa.org/news/press_release/report-finds-many-unanswered.html.

itself states, the C-10 Letter merely recounts Paul Browns independent analysis and comments regarding ASR at Seabrook prepared under contract with Union of Concerned Scientists.174 Intervenors cannot simply point to documents merely summarizing earlier documents [as doing so] do[es] not render new the summarized or compiled information.175 FOTC/NEC has not demonstrated that the information in the C-10 Letter is new and materially different from information previously available in Paul Browns report which was publicly available in April 2012.176 Thus, FOTC/NEC does not meet the timeliness requirements of 10 C.F.R. § 2.309(c)(1) with respect to the C-10 Letter and should not be permitted to amend the proposed ASR Contention with the C-10 Letter.

CONCLUSION For the foregoing reasons, the NRC Staff opposes FOTC/NECs ASR Supplement.

Respectfully submitted, Executed in Accord with 10 CFR 2.304(d) /Signed (electronically) by/

Anita Ghosh Maxwell C. Smith Counsel for NRC Staff Counsel for NRC Staff U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of the General Counsel Office of the General Counsel Telephone: (301) 415-4113 Mail Stop - O-15D21 E-mail: anita.ghosh@nrc.gov Washington, DC 20555 Telephone: (301) 415-1246 E-mail: maxwell.smith@nrc.gov Date of signature: October 16, 2012 174 ASR Supplement at 14.

175 Vermont Yankee, CLI-11-02, 73 NRC at 344.

176 Given that Paul Browns report was publicly available in April 2012, information regarding the inadequacy of visual examinations was available for over three months before the July 2012 ACRS Transcript Intervenors rely on in their original ASR Contention.

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

)

NextEra Energy, LLC ) Docket Nos. 50-443

)

(Seabrook Station, Unit 1) ) ASLBP No. 10-906-02-LR-BD01 CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing NRC STAFFS ANSWER TO INTERVENORS SUPPLEMENT TO MOTION FOR LEAVE TO FILE A NEW CONTENTION CONCERNING SAFETY-RELATED CONCRETE STRUCTURES dated October 16, 2012, have been served over the Electronic Information Exchange, the NRCs E-Filing System, this 16th day of October, 2012:

Signed (electronically) by Maxwell C. Smith Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 (301) 415-1246 maxwell.smith@nrc.gov Date of Signature: October 16, 2012