ML20272A257
| ML20272A257 | |
| Person / Time | |
|---|---|
| Site: | Vogtle  |
| Issue date: | 09/28/2020 |
| From: | Julie Ezell NRC/OGC |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| 52-025-LA-3, LBP-20-8, License Amendment, RAS 55802 | |
| Download: ML20272A257 (15) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of SOUTHERN NUCLEAR OPERATING CO. Docket No. -
(Vogtle Electric Generating Plant, Unit )
NRC Staff Answer in Opposition to Blue Ridge Environmental Defense Leagues Appeal of LBP- -
Julie G. Ezell Counsel for NRC Staff September ,
TABLE OF CONTENTS Introduction ................................................................................................................................... 1 Background ................................................................................................................................... 1 Discussion..................................................................................................................................... 6 I. Applicable Legal Standards ................................................................................................... 6 II. The Board properly found that BREDLs proposed Contention 2 was inadmissible and BREDL has not demonstrated that the Board erred or abused its discretion ........................................................................................................................... 7 Conclusion .................................................................................................................................. 11 ii
TABLE OF AUTHORITIES Commission Legal Issuances AmerGen Energy Co. (Oyster Creek Nuclear Generating Station), CLI- - ,
NRC ( ) ................................................................................................................. ,
Consumers Energy Co., (Palisades Nuclear Power Plant), CLI- - , NRC (Apr. , ). ........................................................................................................................
Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units and ),
CLI- - , NRC ( ) ..................................................................................................
Exelon Generation Co. (Early Site Permit for Clinton ESP Site) CLI- - ,
NRC ( ) .................................................................................................................
Florida Power and Light Co. (Turkey Point Nuclear Generating Units and ),
CLI- - , NRC , ( ) ..............................................................................................
Shieldalloy Metallurgical Corp. (License Amendment Request for Decommissioning of the Newfield, New Jersey Facility), CLI- - , NRC ( )......................................
Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit ),
CLI- - , NRC ( ) ...................................................................................................
USEC, Inc. (American Centrifuge Plant), CLI- - , NRC ( ) ................................. ,
Atomic Safety and Licensing Board Decisions Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Unit ), LBP- - ,
NRC __ (Aug. , ) .............................................................................................. passim Regulations C.F.R. § . ............................................................................................................................
Other Authorities Vogtle Electric Generating Plant, Unit : License amendment application; opportunity to comment, request a hearing, and petition for leave to intervene, Fed. Reg.
, (Mar. , ) ...............................................................................................................
Vogtle Electric Generating Plant, Units and ; Issuance of Combined Licenses and Limited Work Authorizations and Record of Decision, Fed. Reg. ,
(Feb. , ) ..........................................................................................................................
iii
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of SOUTHERN NUCLEAR OPERATING CO. Docket No. -
(Vogtle Electric Generating Plant, Unit )
NRC Staff Answer in Opposition to Blue Ridge Environmental Defense Leagues Appeal of LBP--
INTRODUCTION Pursuant to C.F.R. § . , the staff of the U.S. Nuclear Regulatory Commission (Staff) hereby files this answer in opposition to the appeal submitted by Blue Ridge Environmental Defense League and its chapter Concerned Citizens of Shell Bluff (BREDL) from the Atomic Safety and Licensing Boards (Boards) Memorandum and Order LBP- - . The Board denied BREDLs petition to intervene and terminated the proceeding, properly finding that BREDL did not proffer an admissible contention. BREDL now seeks Commission review of the Boards determination that proposed Contention was inadmissible but has not identified any error of law or abuse of discretion in the Boards decision. In fact, BREDL does not address the Boards reasons for rejecting proposed Contention . Instead, BREDL now attempts to reframe the claims regarding lack of information that it decided to pursue through the Freedom of Information Act (FOIA) as a contention of omission. BREDL did not include these claims in proposed Contention or otherwise frame them as a proposed contention in its petition.
Therefore, the Commission should affirm the Boards Order.
BACKGROUND Vogtle Unit is one of two AP pressurized water reactor units currently under construction at Southern Nuclear Companys (SNCs) Vogtle site in Burke County, Georgia. The
NRC issued the Vogtle Unit combined license in February .1 On February , , SNC submitted a license amendment request to change the required minimum seismic gap between the Vogtle Unit Auxiliary and Annex Buildings from inches to - / inches at elevations to .2 On March , , the NRC published a notice of receipt of the request in the Federal Register, which provided an opportunity to request a hearing and petition for leave to intervene.3 On May , , two business days before the filing deadline, BREDL contacted the Staff to request data, documents, and calculations that were made available by SNC to the Staff as part of the regulatory audit associated with LAR- - or that regard[ed] the analysis performed by the NRC Audit Team members in this matter.4 On May , , BREDL reiterated its request and asserted that the Staff must provide the requested information under FOIA.5 On May , , the Staff replied ( ) that the Staff could not provide information made available for audit in SNCs electronic reading room because this information was not submitted on the docket and was not in the Staffs possession, ( ) that [t]he NRC staffs safety review of License Amendment Request - will rely on information placed on the docket by the licensee, and ( ) that a report summarizing the audit would be made available in the future.6 Also, the Staff provided two additional publicly available documents related to the license 1 Vogtle Electric Generating Plant, Units 3 and 4; Issuance of Combined Licenses (NPF-91 and NPF-92) and Limited Work Authorization (LWA) (Nos. LWA-001 and LWA-002) and Record of Decision Issuance, 77 Fed. Reg. 12,332 (Feb. 29, 2012).
2 See Request for License Amendment and Exemption: Unit Auxiliary Building Wall Seismic Gap Requirements (LAR- - ) (Feb. , ) (ADAMS Accession No. ML A ) (LAR- - ).
3 See Vogtle Electric Generating Plant, Unit : License amendment application; opportunity to comment, request a hearing, and petition for leave to intervene, Fed. Reg. , (Mar. , ).
4 Email from Louis Zeller, BREDL, to Cayetano Santos, NRC (May , ) (ML A ).
5 Email exchange between Louis Zeller, BREDL, and Cayetano Santos, NRC (May , )
(ML A ).
6 Id. The Staff provided the Audit Report to the BREDL representative once it was publicly available. See Email from Cayetano Santos, NRC, to Louis Zeller, BREDL (May , ) (ML K ).
amendment request, stated that it was referring BREDLs FOIA request to an NRC FOIA/PA officer, and provided BREDL with links to guidance documents on the FOIA process.7 BREDL timely filed its Petition on May , , and proffered two contentions opposing the request.8 In Proposed Contention , BREDL alleged that the Vogtle Unit basemat is sinking and that this settlement is an unanalyzed condition that was not anticipated or considered in the original design.9 In Proposed Contention , BREDL claimed certain key factors were not addressed in SNCs request: ( ) the differential settlement of the nuclear island, which BREDL refers to as dishing or cupping, ( ) an assertion that a wall BREDL did not identify has moved closer to the nuclear island and is now unlevel and leaning, and ( ) as a result of the settlement, other systems and structures must also have become deformed yet have not been evaluated.10 Also, BREDL asserted that it made a prima facie showing under C.F.R. § . (b) that SNC could not meet the acceptance criteria in unidentified inspections, tests, analyses, and acceptance criteria (ITAAC).11 As relief, BREDL requested that construction of Vogtle Unit immediately cease and the license amendment not be issued until certain analyses it claimed had not been done were performed.12 The Petition also included BREDLs claims regarding a lack of information concerning the Staffs audit, but these claims 7
Email exchange between Louis Zeller, BREDL, and Cayetano Santos, NRC (May , )
(ML A ). On September , , the NRC provided BREDL an interim response to its FOIA request. One remaining document is subject to a critical electric infrastructure information review by the Federal Energy Regulatory Commission; the NRC will complete its response to the FOIA request when that review is complete.
8 See 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) (ML20132D303) (Petition). BREDL did not appeal the Boards decision on proposed Contention 1. As such, BREDL has waived its opportunity to appeal the Boards ruling on Contention 1 and the Staff only discusses proposed Contention 2 here.
9 Id. at - .
10 Id. at .
11 Id. at .
12 Id. at , .
were not included as part of BREDLs proposed contentions.13 Instead, BREDL offered these claims as support for its statement that we reserve the right to modify this report when the appropriate information is finally placed in ADAMS for public review as required by federal statute.14 SNC opposed BREDLs Petition, arguing that BREDL had not demonstrated standing or proffered an admissible contention.15 The Staff concluded that BREDL had provided sufficient information to demonstrate standing, but it opposed the Petition because BREDL had not submitted an admissible contention.16 In particular, the Staff argued that proposed Contention failed to demonstrate a genuine dispute with the application on a material issue of law or fact, raised issues not material to a finding the Staff must make, and requested relief outside the scope of this license amendment proceeding.17 The Staffs answer also explained that its decision on the request would be based on information available on the docket and described how the Staff had addressed BREDLs request for information the Staff had audited.18 BREDL subsequently filed its reply, reiterating its complaints about access to information the Staff audited as part of its review and its claims that Vogtle Unit was not analyzed for the differential settlement scenario it referred to as dishing or cupping.19 13 See id. at - .
14 Id. at .
15 Southern Nuclear Operating Companys Answer Opposing Petition to Intervene and Request for Hearing (June , ) (ML A ).
16 NRC Staff Answer to Petition for Leave to Intervene and Request for Hearing (June , )
(ML A ).
17 See id. at - .
18 Id. at - .
19 See Reply of [BREDL] to Answers of [NRC] and [SNC], LAR- - (June , ) at , -
(ML A ).
On July , , the Board held an oral argument on standing and contention admissibility.20 Subsequently, the Board denied BREDLs Petition, holding that while the Petitioner had demonstrated standing, its proposed contentions did not meet the requirements of C.F.R. § . (f)( ).21 Regarding proposed Contention , the Board held that BREDLs broad claims about the settlement of the nuclear island and the broad remedies it sought were outside the narrow scope of the proceeding and did not meet the requirements of C.F.R.
§ . (f)( )(iii).22 As the Board stated, the license amendment proceeding is narrowly focused on the requested change to the seismic gap in a localized area between the Auxiliary Building and the Annex Building.23 However, the Board found that BREDL had not addressed this issue; instead BREDL had raised claims about the settlement of the entire nuclear island, and had failed to explain how that concern related to the requested change in LAR- - .24 Additionally, the Board held that contrary to C.F.R. § . (f)( )(vi), BREDL had not shown a genuine dispute with information in the license amendment request on a material issue because its claims that differential settlement (dishing) was not considered in the design of Vogtle Unit were unsupported.25 Indeed, the Board noted that the Vogtle Unit Updated Final Safety Analysis Report contained information and values for total and differential settlement and that SNC did not request to change those values.26 Furthermore, the Board held that contrary to C.F.R. § . (f)( )(v), BREDL does not provide a concise statement of the alleged facts or 20 Transcript of Oral Argument, Southern Nuclear Operating Company Vogtle Electric Generating Plant, Unit (July , ) (ML A ).
21 Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Unit ), LBP- - , NRC __, __
(Aug. , ) (slip op. at ) (ML A ).
22 Id. at .
23 Id.
24 Id.
25 Id. at .
26 Id.
expert opinions that support its position, nor did it provide any supporting citations.27 Last, the Board found that to the extent that BREDL was challenging Vogtle Unit ITAAC, BREDLs claims were outside the scope of the proceeding.28 The Board acknowledged BREDLs claims regarding lack of information and characterized BREDLs statement that it reserve[d] the right to modify this report when additional information became available as an apparent reference to the opportunity afforded BREDL under the agencys rules of practice to submit new or amended contentions regarding information not previously available.29 Finally, one member of the Board attached Additional Views to the decision related to the use of audits and electronic reading rooms by the Staff in its docketing and technical reviews and the public availability of the information the Staff used to support its docketing decision.30 The judges Additional Views included his agreement with the Boards decision and his conclusion that the Staff acted in accordance with agency regulatory procedures and guidance in providing BREDL access to information on which the Staff relied in making its determination on acceptability of the license amendment request for docketing.31 BREDL now appeals the Boards decision to reject proposed Contention and terminate the proceeding.32 For the reasons discussed below, the Staff opposes BREDLs appeal.
DISCUSSION I. Applicable Legal Standards A licensing board order wholly denying a petition to intervene or request for hearing is appealable under C.F.R. § . (c) on the question as to whether the request and/or petition 27 LBP- - at - .
28 Id. at .
29 Id. at n. .
30 See LBP- - , Additional Views of Judge Bollwerk.
31 See LBP- - , Additional Views of Judge Bollwerk at , .
32
[BREDL]s Notice of Appeal and Brief in Support of Appeal from the [ASLB] Decision Denying Admissibility of Contentions in License Amendment Proceeding (Sept. , ), (ML J ) (Appeal).
should have been granted.33 The Commission regularly affirm[s] Board decisions on the admissibility of contentions where the appellant points to no error of law or abuse of discretion.34 Indeed, pointing out the errors in the Boards decision is a basic requirement for an appeal,35 and a mere recitation of an appellants prior positions in a proceeding or a statement of his or her general disagreement with a decisions result is no substitute for a brief that identifies and explains the errors of the Licensing Board in the order below.36 Further, an appellant is limited to the proposed contentions as initially filed and may not rectify its deficiencies or reframe its proposed contentions through an appeal.37 II. The Board properly found that BREDLs proposed Contention was inadmissible and BREDL has not demonstrated that the Board erred or abused its discretion BREDL identifies no error of law or abuse of discretion in the Boards proper determination that BREDLs broad claims in proposed Contention about the differential settlement of the nuclear island at Vogtle Unit and the broad remedies it sought were outside the narrow scope of the license amendment proceeding, did not raise genuine dispute with the license amendment application on a material issue, and were not supported by a concise statement of the alleged facts or expert opinions that support BREDLs position. In an appeal 33 The Board cited C.F.R. § . to notify BREDL of its appeal rights. LBP- - at .
34 AmerGen Energy Co. (Oyster Creek Nuclear Generating Station), CLI- - , NRC 111, 121 (2006)
(internal quotation marks omitted) (quoting USEC Inc. (American Centrifuge Plant), CLI-06-9, 63 NRC 433, 439 n.32 (2006)); see also Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units and ), CLI- - , NRC , ( ) ([T]he Commission affirms Board rulings on admissibility of contentions if the appellant points to no error of law or abuse of discretion.) (quoting Private Fuel Storage LLC (Independent Fuel Storage Installation), CLI- - , NRC , ( ))).
35 Shieldalloy Metallurgical Corp. (License Amendment Request for Decommissioning of the Newfield, New Jersey Facility), CLI- - , NRC , ( ) (regarding appeal of denied intervention petitions under C.F.R. § . ) (citing Oyster Creek, CLI- - , NRC at ); cf. Florida Power and Light Co. (Turkey Point Nuclear Generating Units and ), CLI- - , NRC , ( ) (stating
[r]ecitation of an appellants prior positions in a proceeding or statement of general disagreement with a decisions result is not sufficient; the appellant must point out the errors in the Boards decision.).
36 Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit ), CLI- - , NRC ,
( ) (quoting Georgia Power Co. (Vogtle Electric Generating Plant, Units and ), CLI- - ,
NRC , ( )).
37 See, e.g., USEC, Inc. (American Centrifuge Plant), CLI- - , NRC , ( ).
from a decision denying a petition, it is the appellants burden to demonstrate an error of law or an abuse of discretion by the Board.38 BREDLs proposed Contention related to the observed settlement discussed in SNCs request.39 The Board provided several reasons for rejecting this contention.40 BREDL challenges none of these reasons in its appeal. Instead, BREDL restates general complaints previously raised in its Petition and belatedly attempts to reframe its claims regarding lack of information as a contention of omission. Accordingly, the Commission should affirm the Boards dismissal of proposed Contention .
A petitioner is limited to contentions as initially filed and may not raise new arguments or reframe its proposed contentions through an appeal.41 For the first time on appeal, BREDL refers to the license amendment request as incomplete as submitted42 and further claims that Contention was dismissed by the [Board] despite [BREDL] pleading that relevant information was unavailable[.]43 However, BREDLs claims regarding lack of information were not included in proposed Contention , nor did BREDL frame these claims as a proposed contention or argue that they met the contention admissibility standards.44 The Board noted the claims regarding lack of information and accurately concluded that BREDL appeared to reference the opportunity afforded BREDL under the agencys rules of practice to submit new or amended 38 See, e.g., AmerGen Energy Co., CLI- - , NRC at .
39 See Petition at - .
40 See LBP- - at - . Regarding proposed Contention , the Board found that ) contrary to C.F.R. § . (f)( )(iii), BREDLs broad claims and the broad remedy it sought were not within the scope of the proceeding; ) contrary to C.F.R. § . (f)( )(vi), BREDL did not demonstrate a genuine dispute with the license amendment on a material issue; ) contrary to 10 C.F.R. § 2.309(f)(1)(v), BREDL failed to provide a concise statement of facts or expert opinion that supported its proposed Contention ;
and ) to the extent that BREDL was challenging Vogtle Unit ITAAC, BREDLs claims were outside the scope of the proceeding. Id.
41 See, e.g., USEC, Inc., CLI-06-10, 63 NRC at 458.
42 Appeal at .
43 Id. at .
44 Petition at - .
contentions regarding information not previously available.45 BREDL does not challenge that conclusion in its appeal, much less demonstrate an error in the Boards bases for denying the contention.
Further, most of BREDLs arguments on appeal are directed at the Additional Views of Judge Bollwerk rather than the Boards decision. In any event, BREDL misapprehends the Additional Views of Judge Bollwerk to support its new claims that SNCs application was incomplete as submitted.46 BREDL states:
The [Board] admitted that BREDL is entitled to access all information relied upon by the NRC Staff in accepting a license amendment request for processing as a prerequisite to intervening with a contention, agreed that BREDL was denied that access, and yet instead of judicially upholding the fundamental fairness requirement imposed by NRC procedure, committed a gross injustice.47 Contrary to BREDLs assertion, and as confirmed by Judge Bollwerk in his Additional Views, all of the information the Staff relied on in its decision to accept the license amendment request for technical review was available to BREDL prior to the May , , filing deadline for hearing petitions.48 Moreover, as part of the Staff audit of underlying calculations and analyses, the Staff determined that no additional information needed to be submitted on the docket to support the Staffs safety evaluation of the license amendment request.49 The Staff used the audit merely to verify information and conclusions in the license amendment application and did not rely on information examined during the audit to support its conclusion that the license amendment 45 LBP- - at n. .
46 Appeal at .
47 Id. at (emphasis added).
48 See LBP- - , Additional Views of J. Bollwerk at (stating the access afforded BREDL to SNC documentary material seemingly was in accord with agency regulatory procedures and the Staffs own review process guidance). BREDL also mistakenly attributes the Additional Views of Judge Bollwerk to the full Board.
49 Memorandum from Cayetano Santos, Jr., Project Manager, Vogtle Project Office, to Victor Hall, Chief, Vogtle Project Office, Audit Report for Vogtle Electric Generating Plant Unit , Request for License Amendment and Exemption: Unit Auxiliary Building Wall Seismic Gap Requirements (LAR - ),
enclosure at , (May , ) (ML L ) (Audit Report).
should be granted.50 The Staff routinely uses audits to verify information submitted on the docket by licensees, and the Commission has confirmed this process to be entirely consistent with sound regulatory practice.51 BREDL suggests that the unavailability of certain audit-related information represents fundamental unfairness and requests that the Commission dismiss the license amendment request or grant BREDL leave to intervene together with access via discovery to the unavailable documents[.]52 But the Commission has long precluded petitioners from using discovery as a device to uncover additional information supporting the admissibility of contentions.53 Instead, [c]ontentions should rest on defects or omissions in the application, not on underlying discovery material.54 If required information is lacking, a petitioner may file a contention of omission. If required information is present but is materially inaccurate or fails to show that the NRCs regulations are satisfied, a petitioner may file a contention of inadequacy.
Either way, petitioners have avenues to pursue genuine, material disputes with the application.
BREDL had the opportunity to assert a contention of omission regarding the information it seeks, but instead chose to challenge the adequacy of the information in the application. The Board appropriately assessed the bases for the contentions that BREDL actually presented.
BREDL is not free to use an appeal to redefine its contentions. In any event, as noted above, because none of the information BREDL portrays as unavailable was relied on by the Staff to 50 See Audit Report; see also Memorandum from Victor Hall, Chief, Vogtle Project Office to Cayetano Santos, Jr., Project Manager, Vogtle Project Office, Audit Plan for Vogtle Electric Generating Plant Unit ,
Request for License Amendment and Exemption: Unit Auxiliary Building Wall Seismic Gap Requirements (LAR - ) (Mar. , ) (ML H ).
51 Exelon Generation Co. (Early Site Permit for Clinton ESP Site), CLI- - , NRC , ( ).
52 Appeal at .
53 Consumers Energy Co. (Palisades Nuclear Power Plant), CLI- - , NRC , ( ).
54 Id.
make its findings on the license amendment, BREDL has identified no impediment to its opportunity to challenge the adequacy of the application.
BREDLs proposed Contention raised issues that are outside the scope of the proceeding, did not challenge the license amendment application on a material issue of fact or law, and did not contain a concise statement of facts or an expert opinion that supported BREDLs position.55 The Board, therefore, properly rejected proposed Contention for its failure to meet the contention admissibility requirements in C.F.R. § . (f)( )(iii), (v), and (vi), and BREDL has failed to demonstrate that the Boards decision was based on error or abuse of discretion.56 Accordingly, the Commission should affirm the Boards decision.
CONCLUSION Because BREDL has not identified any error of law or abuse of discretion by the Board in finding proposed Contention inadmissible, the Commission should affirm the Boards decision.
/Signed (electronically) by/
Julie G. Ezell Counsel for NRC Staff Mail Stop: O- -A U.S. Nuclear Regulatory Commission Washington, DC -
Telephone: ( ) -
E-mail: Julie.Ezell@nrc.gov Dated in Gaithersburg, MD this th day of September 55 See LBP- - at - .
56 Id.
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of SOUTHERN NUCLEAR OPERATING CO. Docket No. -
(Vogtle Electric Generating Plant, Unit )
Certificate of Service Pursuant to C.F.R § . , I hereby certify that copies of the foregoing NRC Staff Answer in Opposition to Blue Ridge Environmental Defense Leagues Appeal of LBP- - , dated September , , have been served upon the Electronic Information Exchange (the NRCs E-Filing System), in the captioned proceeding, this th day of September .
/Signed (electronically) by/
Julie G. Ezell Counsel for NRC Staff Mail Stop: O- -A U.S. Nuclear Regulatory Commission Washington, DC -
Telephone: ( ) -
E-mail: Julie.Ezell@nrc.gov Dated in Gaithersburg, MD this th day of September