ML20140A258

Memorandum and Order (Initial Prehearing Order)

ML20140A258
Person / Time
Site:	Vogtle
Issue date:	05/19/2020
From:	Bollwerk G Atomic Safety and Licensing Board Panel
To:	Sue Abreu, Gary Arnold Atomic Safety and Licensing Board Panel
SECY RAS
References
52-025-LA-3, License Amendment, RAS 55686
Download: ML20140A258 (10)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD PANEL Before the Licensing Board:

G. Paul Bollwerk, III, Chairman Dr. Sue H. Abreu Dr. Gary S. Arnold In the Matter of Docket No. 52-025-LA-3 SOUTHERN NUCLEAR OPERATING COMPANY, INC. ASLBP No. 20-967-03-LA-BD01 (Vogtle Electric Generating Plant, Unit 3) May 19, 2020 MEMORANDUM AND ORDER (Initial Prehearing Order)

This proceeding concerns a February 7, 2020 application submitted by Southern Nuclear Operating Company, Inc. (SNC) asking the Nuclear Regulatory Commission (NRC) to amend the existing 10 C.F.R. Part 52 combined operating license (COL) for Vogtle Electric Generating Plant, Unit 3 (Vogtle 3). The proposed amendment would revise the Vogtle 3 COL Appendix C (and plant-specific Tier 1) and corresponding Tier 2* and Tier 2 information in the updated final safety analyses report. Specifically, SNC proposes to modify the north-south minimum seismic gap requirements above grade between the nuclear island and the annex building west of Column Line I from elevation 141 feet through 154 feet to accommodate as-built localized nonconformances. Further, because, this proposed change requires a departure from Tier 1 information in the Westinghouse Electric Companys AP1000 design control document (DCD),

SNC also requests an exemption from the requirements of the Generic DCD Tier 1 in accordance with 10 C.F.R. § 52.63(b)(1).1 On March 10, 2020, the NRC published a Federal Register notice of hearing opportunity regarding this application.2 Petitioners Blue Ridge Environmental Defense League and its chapter Concerned Citizens of Shell Bluff (collectively BREDL) submitted a hearing request on May 11, 2020, with two contentions challenging the SNC license amendment request.3 By memorandum dated May 13, 2020, the Secretary of the Commission referred this petition to the Chief Administrative Judge,4 who, in turn, on May 19, 2020, referred the hearing petition to this Licensing Board to rule on standing and contention admissibility matters and preside at any hearing.5 Regarding the conduct of this proceeding, the following directives shall apply:

I. BRIEFING SCHEDULE Pursuant to 10 C.F.R. § 2.309(i), the answers of SNC and the NRC Staff to the BREDL hearing petition are due on Friday, June 5, 2020, while any reply on behalf of BREDL to those 1 Letter from Brian H. Whitley, Director, Regulatory Affairs, SNC, to NRC Document Control Desk at 1 (Feb. 7, 2020) (ADAMS Accession No. ML20038A939).

2 Vogtle Electric Generating Plant, Unit 3, 85 Fed. Reg. 13,944, 13,94647 (Mar. 10, 2020).

3 Petition for Leave to Intervene and Request for Hearing by [BREDL] Regarding [SNC]s Request for a License Amendment and Exemption for Unit 3 Auxiliary Building Wall 11 Seismic Gap Requirements, LAR-20-001 (May 11, 2020).

4 Memorandum from Annette Vietti-Cook, NRC Secretary, to E. Roy Hawkens, Chief Administrative Judge (May 13, 2020).

5 [SNC], Establishment of Atomic Safety and Licensing Board, 85 Fed. Reg. ___

(May __, 2020) (ADAMS Accession No. ML20140A129).

answers is due on or before Friday, June 12, 2020. If by the time the Staff submits its answer to the BREDL petition it has not made publicly available its audit summary report for SNCs amendment application, the Board requests that in its answer the Staff provide an estimated date by which it anticipates that its audit summary report will be made publicly available.6 II. ADMINISTRATIVE MATTERS A. Notice of Appearance If they have not already done so, on or before Friday, June 5, 2020, each counsel or representative for each participant shall file a notice of appearance complying with the requirements of 10 C.F.R. § 2.314(b) via the agencys E-Filing system.7 In each notice of appearance, besides providing a business address and telephone number, an attorney or representative should provide a facsimile number and an email address.

B. Limitations on Pleading Length and Reply Pleadings

1. Page Limitation Absent preapproval by the Board or some other Board directive, any motion filed after the date of this memorandum and order and any related responsive pleadings shall not exceed ten pages in length (including the signature page, but excluding the certificate of service and 6 See Memorandum from Cayetano Santos, Jr., Project Manager, Vogtle Project Office, Office of Nuclear Reactor Regulation (NRR), to Victor Hall, Chief, Vogtle Project Office, NRR, encl. at 2 (Mar. 20, 2020) (indicating that [o]n completion of the audit, the staff will prepare an audit summary report that will be declared and entered as an official agency record in ADAMS.)

(ADAMS Accession No. ML20063H206).

7 For assistance with the NRCs E-Filing system, please contact the Electronic Filing Helpdesk by visiting its webpage (https://www.nrc.gov/site-help/e-submittals/contact-us-eie.html); calling (866) 672-7640 between the hours of 9:00 a.m. to 6:00 p.m. Eastern Time, Monday through Friday (excluding federal government holidays); or sending an e-mail to Meta_System_Help_Desk.Resource@nrc.gov.

any attachments/enclosures).8 Any request for preapproval to exceed this page limitation shall be submitted in writing no less than three business days prior to the time the motion or responsive pleading is filed or due to be filed. The request must (1) indicate (as is the case with any motion) whether the request is opposed or supported by the other participants to the proceeding;9 (2) provide a good faith estimate of the number of additional pages that will be filed; and (3) demonstrate good cause for being permitted to exceed the page limitation.

2. Reply Pleadings Except in instances involving a motion to file a new/amended contention, participants in this proceeding must request permission to file a reply to a response/answer to a motion.10 A request for Board preapproval to file a reply shall be submitted in writing no less than three 8 Any answers/replies associated with the May 2020 hearing request are not subject to this page limitation. However, any subsequent motion for admission of a new or amended contention under section 2.309(f)(2) and responses/replies to such a motion are subject to this page limitation. In an instance when more than one new or amended contention is being filed in connection with information that is asserted to provide the basis for a motion to admit new or amended contentions, see infra note 12, because the page limit applies regardless of the number of contentions involved, in lieu of filing multiple separate motions of ten pages seeking the admission of each individual contention, it would be preferable to seek leave of the Board to exceed the page limit. If granted, this would permit the participant to file one timely motion that deals with all the contentions being proffered regarding the information that it is asserted triggers the motion.

9 See 10 C.F.R. § 2.323(b). Pursuant to section 2.323(b), any motion requires a certification by the attorney or representative for the moving participant/party that a sincere effort has been made to contact the other participants/parties in the proceeding and resolve the matters raised by the motion, but that the movants efforts in this regard have been unsuccessful. The Board notes that it is inconsistent with the dispute avoidance/resolution purposes of section 2.323(b) for counsel or the representative for the non-moving participant/party to fail to make a sincere effort to be available to consult regarding, or to fail to attempt in good faith to resolve, the factual and legal issues raised in the motion. Also, if the consultation mandated by section 2.323(b) is initiated within a reasonable time and the participants/parties believe that all or part of the matter may be resolved amicably if additional time is provided for filing the motion, the participants/parties are encouraged to file a joint motion requesting such a time extension.

10 Compare 10 C.F.R. § 2.323(c), with id. § 2.309(i)(2).

business days prior to the time the reply will be filed.11 A request to file a reply must (1) indicate whether the request is opposed or supported by the other participants to the particular proceeding; and (2) demonstrate compelling circumstances exist for permitting the reply to be filed.12 C. Motions for Extension of Time A motion for extension of time in this proceeding shall be submitted in writing at least three business days before the due date for the pleading or other submission for which an extension is sought.13 A motion for extension of time must (1) indicate whether the request is opposed or supported by the other participants to the particular proceeding; and (2) demonstrate appropriate cause that supports permitting the extension.

D. Opposing a Request to Exceed the Page Limitation, to File a Reply, or to Extend the Time for Filing a Pleading Any opposition to a request to exceed the page limit, to file a reply, or to extend 11 Although the agencys rules of practice regarding motions practice do not provide for reply pleadings, the Board will presume that for a reply to be timely, it would have to be filed within seven days of the date of service of the response it is intended to address. See 10 C.F.R. § 2.309(i)(2).

12 Section 2.323(c) indicates that compelling circumstances might be shown in an instance when the moving participant/party demonstrates that it could not reasonably have anticipated the arguments to which it seeks to reply. Another compelling circumstance may be if a participant/party files an answer supporting a motion that includes new facts or arguments.

13 Unless some other time is specified in the agencys rules of practice or by the Board, in accordance with 10 C.F.R. § 2.323(a)(2), (c), motions generally are due within 10 days after the occurrence or circumstance from which the motion arises, with any response to that motion due within 10 days of service of the motion. The Board observes, however, relative to a motion seeking the admission of new/amended contentions, see 10 C.F.R. § 2.309(f)(2), that to be considered timely under 10 C.F.R. § 2.309(c)(1)(iii), such a motion (and the accompanying new/amended contention) should be filed within 30 days of the date upon which the information that is the basis of the motion becomes available to the petitioner/intervenor. Moreover, notwithstanding the provisions of section 2.309(i)(1), any answer to a motion seeking the admission of a new/amended contention shall be due within 14 days of service of the motion, and any reply to an answer is due within seven days of service of the response.

the time for filing a pleading shall be filed and served on the Board, the Office of the Secretary, and the counsel/representative for the other participants in this proceeding no later than the next business day after the filing of the request.

E. Attachments/Enclosures to Filings and Evidentiary Exhibits For all future filings, if a participant files a pleading or other submission that has additional documents appended to it, these items should be referred to as attachments or enclosures (not exhibits) and a separate alpha or numeric designation should be given to each appended document (e.g., Attachment A, Enclosure 1), either on the first page of the appended document or on a cover/divider sheet in front of the appended document. Attachments or enclosures to a motion and any related responsive pleadings are not subject to the page limitation set forth in section II.B.1 above, but should be submitted via the agencys E-Filing system as part of a single electronic file that consists of the pleading or other submission, the certificate of service, and all the attachments or enclosures associated with the pleading or submission. In accordance with the agencys E-Filing guidance (at page 19), multiple electronic files should be used for pleadings or submissions with attachments or enclosures only if the filing exceeds 100 megabytes in size.14 The label exhibit shall be reserved for use as a designation for those items that are submitted, whether by prefiling or at the time of an evidentiary hearing, as potential materials a participant will seek to have identified for inclusion in the evidentiary record of the proceeding.

Evidentiary hearing exhibits (and prefiled written testimony) shall be submitted via the agencys E-Filing system as separate electronic files. See 10 C.F.R. § 2.304(g).

14 See https://www.nrc.gov/site-help/e-submittals/adjudicatory-eie-submission-user-guide.pdf (access link for Adjudicatory Submission Users Guide (rev. 1 Oct. 2016)).

F. Filing Date on Pleadings The Board requests that the first page of each pleading submitted by a participant include the pleadings filing date in the upper right-hand corner or as part of the caption.

III. Initial Prehearing Conference and Limited Appearance Statements The Board has not yet determined whether it will hold an initial prehearing conference to hear argument regarding any disputes over standing or the admissibility of the proffered contentions. The Board would note, however, that in the event it decides to conduct an initial prehearing conference, given the current situation with the covid-19 pandemic, such a prehearing conference is likely to be done utilizing teleconferencing and/or web conferencing via either Microsoft Skype for Business or Cisco WebEx with the opportunity for public access to the conference via teleconferencing and/or web streaming.

The Board also has not determined whether it intends to conduct an oral limited appearance statements session. Nonetheless, in accord with 10 C.F.R. § 2.315(a), any person not a petitioner to this proceeding that wishes to make a statement regarding the issues in the proceeding can do so in writing. Limited appearance statements, which are placed in the docket for the hearing, provide members of the public with an opportunity to make the Board and/or the participants aware of their concerns about matters at issue in the proceeding.

A written limited appearance statement can be submitted at any time and should be sent to the Office of the Secretary using one of the methods prescribed below:

Mail to: Office of the Secretary Attn: Rulemakings and Adjudications Staff U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Fax to: (301) 415-1101 (verification (301) 415-1677)

Email to: hearingdocket@nrc.gov

In addition, a copy of the limited appearance statement should be sent to the Licensing Board Chairman using the same method at the address/fax number below:

Mail to: Administrative Judge G. Paul Bollwerk, III Atomic Safety and Licensing Board Panel Mail Stop T-3A02 U.S. Nuclear Regulatory Commission Washington, D.C. 20555-0001 Fax to: (301) 415-5206 (verification (301) 415-7550)

E-mail to: paul.bollwerk@nrc.gov It is so ORDERED.

FOR THE ATOMIC SAFETY AND LICENSING BOARD

/RA/

G. Paul Bollwerk, III, Chairman ADMINISTRATIVE JUDGE Rockville, Maryland May 19, 2020

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of )

)

Southern Nuclear Operating Company ) Docket No. 52-025-LA-3

)

(Vogtle Electric Generating Plant, Unit 3) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing MEMORANDUM AND ORDER (Initial Prehearing Order) have been served upon the following persons by Electronic Information Exchange.

U.S. Nuclear Regulatory Commission Taylor Mayhall, Law Clerk Office of Commission Appellate Adjudication taylor.mayhall@nrc.gov Mail Stop: O-16B33 Washington, DC 20555-0001 E-mail: ocaamail.resource@nrc.gov U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-14A44 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Office of the Secretary of the Commission Jody C. Martin, Esq.

Mail Stop: O-16B33 Michael A. Spencer, Esq.

Washington, DC 20555-0001 Olivia J. Mikula, Esq.

E-mail: hearingdocket@nrc.gov Susan Vrahoretis, Esq.

Julie G. Ezell, Esq.

Brian P. Newell, Senior Paralegal U.S. Nuclear Regulatory Commission Felicia Y. Keith, Paralegal Atomic Safety and Licensing Board Panel E-mail: jody.martin@nrc.gov Mail Stop: T-3F23 michael.spencer@nr.gov Washington, DC 20555-0001 olivia.mikula@nrc.gov susan.vrahoretis@nrc.gov G.Paul Bollwerk, III, Chairman brian.newell@nrc.gov Administrative Judge felicia.keith@nrc.gov paul.ryerson@nrc.gov julie.ezell@nrc.gov Dr. Sue H. Abreu Administrative Judge Balch & Bingham, LLP sue.abreu@nrc.gov 1710 6th Avenue North Birmingham, AL 35203 Dr. Gary S. Arnold Melvin S. Blanton, Esq.

Administrative Judge Alan Lovett, Esq.

gary.arnold@nrc.gov Nick Theodore, Esq.

Peter LeJeune, Esq.

Ian Curry, Law Clerk Email: sblanton@balch.com ian.curry@nrc.gov alovett@balch.com ntheodore@balch.com plejeune@balch.com

Vogtle 52-025-LA-3 MEMORANDUM AND ORDER (Initial Prehearing Order)

Blue Ridge Environmental Defense League, Inc.

PO Box 88 Glendale Springs, NC 28629 Louis A. Zeller Email: BREDL@skybest.com Krupskaya Digitally signed by Krupskaya T. Castellon Dated at Rockville, Maryland, T. Castellon Date: 2020.05.19 14:21:03 -04'00' this 19th day of May 2020. Office of the Secretary of the Commission 2