ML20273A315

Southern Nuclear Operating Company'S Brief in Opposition to Bredl Appeal of LBP-20-08

ML20273A315
Person / Time
Site:	Vogtle
Issue date:	09/29/2020
From:	Blanton M, Lejeune P, Lovett A Balch & Bingham, LLP, Southern Nuclear Operating Co
To:	NRC/OCM
SECY RAS
References
52-025-LA-3, LBP-20-08, License Amendment, RAS 55808
Download: ML20273A315 (26)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of: ) Docket No. 52-025-LA-3

)

SOUTHERN NUCLEAR OPERATING CO. )

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Vogtle Electric Generating Plant, Unit 3 ) September 29, 2020

)

SOUTHERN NUCLEAR OPERATING COMPANYS BRIEF IN OPPOSITION TO APPEAL M. Stanford Blanton Peter D. LeJeune Alan D. Lovett BALCH & BINGHAM LLP 1710 Sixth Avenue North Birmingham, AL 35203-2015 Telephone: (205) 251-8100 E-mail: sblanton@balch.com E-mail: plejeune@balch.com E-mail: alovett@balch.com COUNSEL FOR SOUTHERN NUCLEAR OPERATING COMPANY, INC.

TABLE OF CONTENTS I. Background and Procedural History ....................................................................................2 II. Summary of Argument ........................................................................................................5 III. Standard of Review on Appeal ............................................................................................6 IV. Argument .............................................................................................................................8 A. BREDL Has Not Identified Any Error of Law or Abuse of Discretion in the Boards Bases for Rejecting Contention 2 under 10 CFR § 2.309 ..........................8 B. BREDLs Arguments on Appeal Appear to Raise a New Contention of Omission That BREDL Did Not Raise before the Board and Has No Basis in Commission Precedent...........................................................................................11

i. BREDLs Petition Did Not Raise a Contention of Omission or Argue that Contention 2 Should be Subject to a Relaxed Admissibility Standard .....................................................................................................12 ii. BREDLs Claims that the LAR was Incomplete or that Contention 2 Should Be Subjected to a Lighter Admissibility Standard are Meritless .....................................................................................................14 C. BREDLs Attacks on NRC Staffs Review of the LAR and Internal Review Guidelines are Incorrect and Beyond the Scope of this Proceeding ......................19 V. Conclusion .........................................................................................................................20 i

TABLE OF AUTHORITIES ADMINISTRATIVE PROCEEDINGS Additional Views of Bollwerk, Administrative Judge, Attachment to Order........................... 6, 20 Advanced Medical Systems, Inc. (One Factory Row), CLI-94-6, 39 NRC 285 (1994) .................. 7 Baltimore Gas & Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI 25, 48 NRC 325 (1998) ............................................................................................... 16, 17, 20 Consumers Energy Co. (Palisades Nuclear Power Plant), CLI-07-18, 65 NRC 399 (2007) ........ 15 Detroit Edison Co. (Fermi Nuclear Power Plant, Unit 3), LBP-09-16, 70 NRC 227 (2009) ....... 12 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 3), CLI-08-17, 68 NRC 231 (2008)...................................................................................................................... 14 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 3), LBP-08-9, 67 NRC 421 (2008)................................................................................................................ 14, 20 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI 24, 54 NRC 349 (2001) ........................................................................................................... 16 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI 36, 60 NRC 631 (2004) ................................................................................................... 7, 8, 11 Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11,49 NRC 328 (1999) ................................................................................................................................ 16, 17 Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-15-213, 82 NRC 321, 325 n.21 (2015) ....................................................................................................................... 16 Exelon Generation Co., LLC (Early Site Permit for Clinton ESP Site), CLI-07-12, 65 NRC 203 (2007)................................................................................................................ 15, 19 FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), CLI-12-8, 75 NRC 393 (2012) ......................................................................................................... 8 PPL Susquehanna LLC (Susquehanna Steam Electric Station, Units 1 and 2), CLI-07-25, 66 NRC 101 (2007) ................................................................................................................... 7 Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), CLI-00-21, 52 NRC 261 (2000)........................................................................................................................ 7 Progress Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plant, Units 2 and 3),

CLI-10-9, 71 NRC 245 (2010).................................................................................................. 3 South Texas Project Nuclear Operating Co. (South Texas Project, Units 3 and 4), CLI-10-24, 72 NRC 451 (2010) ..................................................................................................... 15 Southern Nuclear Operating Co., Inc. (Vogtle Elec. Generating Plant, Units 3 and 4),

CLI-17-02, 85 NRC 33 (2017).................................................................................................. 7 ii

Southern Nuclear Operating Co., Inc. (Vogtle Electric Generating Plant, Unit 3), LBP-20-08, 90 NRC __ (slip op.) (Aug. 10, 2020) (ADAMS Accession No. ML20223A385) ............................................................................................................... passim Southern Nuclear Operating Co., Inc. (Vogtle Electric Generating Plant, Units 3 and 4),

LBP-16-5, 83 N.R.C. 259 (2016) ............................................................................................ 20 Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 2), CLI-93-10, 37 NRC 192 (1993) ............................................................................................................. 7, 10 USEC, Inc. (Am. Centrifuge Plant), CLI-06-10, 63 NRC 451 (2006) ................................... 13, 14 REGULATIONS 10 C.F.R. § 2.309 ................................................................................................................... passim 10 C.F.R. § 2.311 ........................................................................................................................ 1, 6 10 C.F.R. § 50.90 ...........................................................................................................................15 10 C.F.R. § 52.79 ...........................................................................................................................15 FEDERAL REGISTER Final Rule, Rules of Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, 54 Fed. Reg. 33 (Aug. 11, 1989) .......................................... 16, 17, 18 OTHER AUTHORITIES NEI 06-02, License Amendment Request (LAR) Guidelines, rev. 2 (Oct. 31, 2010)

(ADAMS Accession No. ML103360404) .............................................................................. 15 NRR Office Instruction, LIC-101, License Amendment Review Procedures, rev. 5 (Jan.

9, 2017) (ADAMS Accession No. ML16061A451) ............................................................... 19 NRR Office Instruction, LIC-109, Acceptance Review Procedures, rev. 2 (Jan. 9, 2017)

(ADAMS Accession No. ML16144A521) ............................................................................. 19 NRR Office Instruction, LIC-111, rev. 1 (Oct. 31, 2019) (ADAMS Accession No. ML19226A274) .................................................................................................................. 4, 19 NUREG-0800, Chapter 3, Section 3.7.2, rev. 4 (Sept. 18, 2018) (ADAMS Accession No. ML13198A223) ...................................................................................................................... 15 NUREG-0800, Chapter 3, Section 3.8.5, rev. 3 (May 19, 2010) (ADAMS Accession No. ML100621093) ................................................................................................................... 2, 15 iii

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of: ) Docket No. 52-025-LA-3

)

SOUTHERN NUCLEAR OPERATING CO. )

)

Vogtle Electric Generating Plant, Unit 3 ) September 29, 2020

)

SOUTHERN NUCLEAR OPERATING COMPANYS BRIEF IN OPPOSITION TO APPEAL In accordance with 10 C.F.R. § 2.311(b), Southern Nuclear Operating Company, Inc.

(SNC) submits this Brief in opposition to the Notice of Appeal (the Appeal)1 filed on September 4, 2020, by Blue Ridge Environmental Defense League and its chapter Concerned Citizens of Shell Bluff (BREDL). BREDL requests review of the Atomic Safety and Licensing Boards (Board) August 10, 2020 Order LBP-20-08 (Order)2 denying BREDLs petition to intervene and request for hearing (Petition)3 filed in response to SNCs request to amend the Vogtle Unit 3 combined license, LAR-20-001 (LAR).4 For the reasons set forth below, the 1

Blue Ridge Environmental Defense Leagues Notice of Appeal and Brief in Support of Appeal from the Atomic Safety and Licensing Board Decision Denying Admissibility of Contentions in License Amendment Proceeding (Sept.

4, 2020) (ADAMS Accession No. ML20248J166) (Appeal).

2 Southern Nuclear Operating Co., Inc. (Vogtle Electric Generating Plant, Unit 3), LBP-20-08, 90 NRC __ (slip op.)

(Aug. 10, 2020) (ADAMS Accession No. ML20223A385) (Order).

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) (ADAMS Accession No. ML20132D303) (Petition).

4 ND-20-0075, Letter from Brian Whitley to NRC Control Desk, Vogtle Electric Generating Plant Unit 3 Request for License Amendment and Exemption: Unit 3 Auxiliary Building Wall 11 Seismic Gap Requirements (LAR-20-001),

Encl. 1 (Feb. 7, 2020) (ADAMS Accession No. ML20038A939) (LAR).

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Commission should deny the Appeal and affirm the Boards decision because BREDL has not identified any error of law or abuse of discretion in the Boards Order.

I. Background and Procedural History SNC submitted LAR-20-001 on February 7, 2020 to accommodate an as-built localized nonconformance in a 13-foot vertical section of wall on the Vogtle Unit 3 auxiliary building. The nonconformancea slight bulge of approximately 13/16 of an inch on the auxiliary building wallreduced the as-built gap between a portion of the opposite facing walls of the annex building to below 3 inches as required by the Vogtle Unit 3 Updated Final Safety Analysis Report (UFSAR).5 The UFSAR requires the minimum distance between the two buildings as a design feature to prevent interaction of the walls in the event of a safe shutdown earthquake.6 The LAR requested to reduce the 3-inch minimum gap by 15/16 of an inch, to 2-1/16 inches, for the elevations affected by the nonconformance.7 As part of the technical justification, the LAR described seismic analyses showing that, even with the smaller as-built gap, the auxiliary and the annex buildings would maintain the one-inch minimum separation required by the UFSAR during a safe shutdown earthquake, taking into account the building displacements during the seismic event.8 The LAR also described settlement trends for the nuclear island (on which the auxiliary 5

LAR at 4-5.

6 Revision 8 to UFSAR, Section 3.8, Design of Category I Structures, Section 3.8.5.1 (Mar. 21, 2019) (ADAMS Accession No. ML19171A058).

7 LAR at 5. The LAR did not seek a change to the minimum 3-inch gap above or below the as-built nonconformance.

Id. (The proposed change only applies to the north-south minimum gap between the nuclear island and the annex building west of Column Line I from El. 141 through El. 154 at VEGP Unit 3); see also Transcript of July 1, 2020 Prehearing Conference at 61-62 (ADAMS Accession No. ML20189A038) (Transcript).

8 LAR at 6-9. The requirement to maintain one-inch separation during a safe shutdown earthquake is the way the AP1000 satisfied design criteria to minimize (in this case, prevent) interactions between seismic Category I (annex building) and Category II (auxiliary building) structures during a design-basis seismic event. See AP1000 Design Control Document (AP1000 DCD), rev. 19, Section 3.8 Design of Category I Structures, Section 3.8.5.1 (ADAMS Accession No. ML11171A431) (June 13, 2011); see generally NUREG-0800, Chapter 3, Section 3.8.5, rev. 3 (May 19, 2010) (ADAMS Accession No. ML100621093).

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building sits) and annex building (which has a separate foundation, not part of the nuclear island) to make the point that foundational settlement would not reduce the gap between the buildings.9 In describing these settlement trends, the LAR explained that long-term (consolidation) settlement is expected to be relatively small [based on the compacted fill and site soil properties]

and [b]ased on the site-specific settlement data through 2019, no significant changes are anticipated to the aforementioned short-term and long-term settlement trends.10 In response to NRCs Federal Register notice, BREDL submitted two contentions in its Petition filed on May 11, 2020. BREDLs Appeal only relates to Contention 2,11 titled Basemat, Foundation and Construction Factors Create Unacceptable Operational Risk to Public Health and Safety, which requested that the Board halt construction of Unit 3 and require SNC to perform a full reanalysis of the stresses placed on the nuclear island during construction and the impacts on foundational settlement. BREDLs theory was that the reduction in the seismic gap was evidence that settlement of the foundation of the Nuclear Island had rendered it unsafe and subject to seismic failure and meltdown.12 BREDL claimed in Contention 2 that the settlement, or, in 9

LAR at 8. The VEGP Unit 3 settlement survey data of the past few years indicates that the nuclear island basemat has deflected more in the center and less at the perimeter which would tend to cause the perimeter walls to lean towards the center of the nuclear island. Theoretically, this suggests that the nuclear island tends to tilt away from the annex building. The survey data also indicates the foundation deflection contour of the annex building is uniform in the vicinity of the nuclear island, which does not result in tilt of the perimeter structures towards the nuclear island. Id.

10 Id.

11 The Board also rejected Contention 1, as well as BREDLs attempt to cast Contention 2 as an ITAAC challenge and BREDLs belated attempt to challenge the exemption accompanying the LAR for the first time during prehearing conference. See Order at 9 n.17, 22-23, and 27. Because the Appeal only addresses the Boards denial of Contention 2, SNC does not address the Boards rejection of Contention 1, rejection of Contention 2 as an ITAAC challenge, or rejection of BREDLs belated challenge to the exemption. By failing to specifically address any of these matters in the Appeal, BREDL has waived its appeal right with respect to those issues. See Progress Energy Carolinas, Inc.

(Shearon Harris Nuclear Power Plant, Units 2 and 3), CLI-10-9, 71 NRC 245, 257 n.70 (2010).

12 Petition at 16.

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BREDLs terminology, the dishing of the nuclear island had never been acknowledged or evaluated by SNC or the NRC.13 Following briefing and oral argument, the Board rejected Contention 2 because the general challenge to the safety of the settlement of the nuclear island foundation was outside the scope of the proceeding, did not raise a material dispute with the LAR, and lacked expert support.14 BREDL filed the Appeal on September 4, 2020, seeking to overturn the Boards rejection of Contention 2.

BREDLs Appeal, rather than addressing the grounds upon which the Board rejected Contention 2, focuses on the Staffs audit of proprietary documents in the possession of SNC subsequent to the docketing of the LAR. Staff completed its acceptance review on February 21, 2020, approximately two weeks after SNC submitted the LAR.15 Staff did not request any additional information from SNC prior to docketing the LAR (a point BREDL misunderstands or misstates in the Appeal).16 During post-docketing technical review, Staff conducted an audit in March and April to review certain non-public information.17 The audited documents related to settlement measurements and analysis and predicted displacement during a seismic event.18 As is common practice, and fully consistent with NRC guidelines,19 Staff accessed this non-public 13 Id. at 15-16.

14 Order at 24-27.

15 E-mail from Cayetano Santos, Office of Nuclear Reactor Regulation (NRR) to Brian Whitley of SNC, Acceptance Review of [SNCs] Request for License Amendment and Exemption: Unit 3 Auxiliary Building Wall 11 Seismic Gap Requirements (EPID No. L-2020-LLE-0009) (Feb. 21, 2020) (ADAMS Accession No. ML20052H043) (Acceptance Review Notice).

16 See id.; see also Transcript at 70.

17 See Memorandum from Cayetano Santos, Project Manager, NRR Vogtle Project Office, to Victor Hall, Chief, NRR Vogtle Project Office, Audit Report for [Vogtle] Unit 3, Request for License Amendment and Exemption: Unit 3 Auxiliary Building Wall 11 Seismic Gap Requirements (LAR 20-001) (May 26, 2020) (ADAMS Accession No. ML20141L698).

18 Id. at 2.

19 See NRR Office Instruction, LIC-111, rev. 1, at 8 (Oct. 31, 2019) (ADAMS Accession No. ML19226A274) (LIC-111).

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information via an electronic reading room (i.e., an online portal). NRC Staff approved the LAR and issued the Safety Evaluation Report20 without requiring SNC to submit any information from the audited documents or the documents themselves to the NRC docket. Prior to filing the Petition, BREDL requested that NRC Staff provide BREDL with all the documents reviewed during the audit and eventually submitted a FOIA request to the same effect.21 As recounted below, BREDLs Appeal is based exclusively on SNCs and NRCs failure to make these documents available to BREDL at the contention pleading stage.

II. Summary of Argument On appeal, BREDL superficially challenges the Boards dismissal of Contention 2; however, BREDL does not identify any error of law or abuse of discretion in the Orderthe only issues that may properly be placed before the Commission on appeal. Instead, BREDL argues, for the first time on appeal, that the LAR was incomplete, that NRC Staff violated agency procedures during review of the LAR, and that BREDLs lack of access to non-public information independently justifies admission of an otherwise-defective contention. These arguments may be generously characterized as an untimely attempt to raise a contention of omission under

§ 2.309(f)(1)(vi). In addition to being barred due to BREDLs failure to bring a contention of omission before the Board, BREDLs arguments do not meet the requirements of § 2.309(f)(1)(vi) because BREDL has not identified any information required by law that was missing from the LAR. There is, of course, no regulatory requirement that licensees include the universe of relevant technical data in a LAR, nor is there a requirement that NRC staff publish all data it examines 20 NRC Staff issued the amendment based on a finding of no significant hazards. See Safety Evaluation Report by

[NRR] Related to Amendment No. 182 to the Combined License No. NPF-91, Vogtle Electric Generating Plant Unit 3, at 9-11 (Aug. 4, 2020) (ADAMS Accession No. ML20132A078).

21 Petition at 6-7; Appeal at 4-5.

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during its technical reviews to the public docket. BREDLs lack of access to non-public technical information did not excuse its obligation to proffer an admissible contention, or in the alternative to plead a valid contention of omission.

Moreover, BREDL does not address the Boards conclusion that BREDLs challenge to nuclear island settlement in generalthe subject of Contention 2 and the non-public information BREDL seeksis outside the scope of this proceeding. Regardless of what information BREDL receives, the Board concluded that the target of its attacks is beyond the scope of LAR-20-001, which is narrowly focused on the safety of the slight change in the minimum seismic gapa conclusion that BREDL does not challenge on appeal. Finally, BREDLs attacks on NRC Staffs docketing decisions and review of the LAR are premised on either BREDLs mistaken belief that NRC Staff violated internal review procedures by relying on non-public information during acceptance review of the LAR or a challenge to the procedures themselves. As explained below, it is undisputed that Staff did not violate their review procedures,22 and challenges to Staffs review of the LAR are likewise beyond the scope of this proceeding.

Accordingly, for the reasons discussed herein and for the reasons articulated by the Board, the Appeal should be denied, and the Board Order should be affirmed.

III. Standard of Review on Appeal BREDL appeals the Boards Order pursuant to 10 C.F.R. § 2.311(c), challenging the decision not to admit Contention 2 for hearing. In reviewing such decisions, the Commission will defer to the Boards rulings on contention admissibility unless an appeal demonstrates an error of 22 BREDLs Appeal relies heavily on the additional views of Judge Bollwerk, which are attached to the Order. It bears noting that Judge Bollwerk agreed with the Boards rejection of both contentions and did not dispute that NRC Staff followed all applicable procedures in this case. See Additional Views of Bollwerk, Administrative Judge, Attachment to Order, at 1, 5 (Bollwerk Additional Views).

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law or abuse of discretion.23 The party appealing a Boards denial of intervention bears the responsibility of clearly identifying the errors in the decision below and ensuring that its brief contains sufficient information and cogent argument to alert the other parties and the Commission to the precise nature of and support for the appellants claims.24 [T]he Commission affirms Board rulings on admissibility of contentions if the appellant points to no error of law or abuse of discretion.25 Appeals that simply repeat or add to previous claims are insufficient to show error.26 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.27 Likewise, [G]eneral arguments [that] do not come to grips with the Boards reasons for rejecting a contention will not revive a contention that lacks support in the law or facts.28 The question before the Board here was whether BREDL satisfied the requirements of 10 C.F.R. § 2.309. In order to form a valid request for hearing, a petitioner must propose at least one contention that meets the admissibility requirements in 10 C.F.R. § 2.309(f)(1).29 Most relevant here, § 2.309(f)(1) required BREDL to bring a contention that is within the scope of this licensing proceeding and presents a material dispute with the application, bolstered by meaningful factual 23 Southern Nuclear Operating Co., Inc. (Vogtle Elec. Generating Plant, Units 3 and 4), CLI-17-02, 85 NRC 33, 40 (2017).

24 Advanced Medical Systems, Inc. (One Factory Row), CLI-94-6, 39 NRC 285, 297 (1994).

25 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-04-36, 60 NRC 631, 637 (2004) (quoting Private Fuel Storage, LLC (Independent Spent Fuel Storage Installation), CLI-00-21, 52 NRC 261, 265 (2000)).

26 PPL Susquehanna LLC (Susquehanna Steam Electric Station, Units 1 and 2), CLI-07-25, 66 NRC 101, 104 (2007).

27 Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 2), CLI-93-10, 37 NRC 192, 198 (1993).

28 Millstone, CLI-04-36, 60 NRC at 639.

29 See 10 C.F.R. § 2.309(a).

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and expert support.30 A contention that fails to comply with even one of the 10 C.F.R. § 2.309(f)(1) criteria is inadmissible.31 Accordingly, to prevail on appeal, BREDL has the burden of demonstrating that the Board erred in each of its bases for rejecting Contention 2.32 IV. Argument A. BREDL Has Not Identified Any Error of Law or Abuse of Discretion in the Boards Bases for Rejecting Contention 2 under 10 CFR § 2.309 The Board thoroughly examined and properly concluded that Contention 2 was inadmissible due to BREDLs failure to satisfy three 2.309(f)(1) requirements. Because BREDLs appeal focuses solely on the Staffs review of proprietary data and does not address any of the bases asserted by the Board, much less show that the Board committed an error of law or abuse of discretion in all three, the Commission should reject the Appeal and affirm the Order.

First, the Board found BREDLs attempts to reexamine nuclear island settlement in general to be out of scope. BREDL claimed that the LAR revealed foundation problems which have plagued the construction of Vogtle 3 and 4 reactors since the very beginning and were never anticipated and therefore was not considered in Vogtles original design.33 In response to these perceived deficiencies, BREDL sought a full reanalysis of the structural integrity of the entire nuclear island. Because BREDL did not connect any of these arguments to the LAR, and instead raised issues that were evaluated during certification of the AP1000 DCD and issuance of the Vogtle COLs, the Board properly concluded that Contention 2 raises claims about the settlement 30 10 C.F.R. §§ 2.309(f)(1)(iii), (v), (vi).

31 FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), CLI-12-8, 75 NRC 393, 395-96 (2012).

32 See Millstone, CLI-04-36, 60 NRC at 638 (noting that failure to appeal one of a boards § 2.309(f)(1) bases for rejecting a contention is in and of itself, sufficient justification to reject [the] appeal).

33 Petition at 13-14, 15.

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of the entire nuclear island, which are not within the scope of this narrow license amendment proceeding, as required by 10 C.F.R. § 2.309(f)(1)(iii).34 Second, the Board found that BREDL failed to raise a material dispute with the LAR in asserting that settlement has never been evaluated and is the real cause for the reduced gap between the auxiliary and annex buildings. As the Board explained, the AP1000 DCD, which is incorporated into the Vogtle licensing basis, specifically acknowledges that differential settlement could impact the tilt of the nuclear island buildings and includes the limit of acceptable differential settlement of the AP1000 nuclear island foundation.35 The Board observed SNC has not sought to alter any of those settlement findings in the LAR.36 Moreover, the LAR itself expressly addresses the potential impact of settlement on the gap between the auxiliary and annex buildings, explaining that the differential settlement trends would tend to cause the perimeter walls [i.e., the auxiliary building wall in question] to lean towards the center of the nuclear island; i.e. away from the annex building.37 BREDL did not even acknowledge these portions of the existing licensing basis or the LAR; accordingly, the Board properly concluded that BREDL failed to raise a material dispute with the LAR, as required by § 2.309(f)(1)(vi).

Third, the Board concluded that Contention 2 lacked the requisite expert support. While BREDLs expert, Mr. Arnold Gundersen, provided a declaration meant to support BREDLs contention, the Board observed that Mr. Gundersens declaration failed to cite any portions of the LAR with which he disagreed, provide any citations to information supporting his bare assertions, or acknowledge that the LAR refuted his assertions to the extent the LAR addresses settlement of 34 Order at 24.

35 Id. at 25.

36 Id.

37 Id. (quoting LAR at 8) (emphasis in Order).

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the foundation in relation to the nuclear island and annex buildings. Accordingly, the Board properly concluded that Mr. Gundersens declaration is nothing more than mere speculation, which is insufficient under Commission precedent to support an admissible contention.38 Failure to satisfy any one of § 2.309s requirements provides sufficient basis for the Boards rejection of Contention 2; therefore, BREDL has the burden on appeal to show that the Board committed an error of law or abuse of discretion in all three of its bases for rejecting Contention 2. However, BREDLs Appeal does not even mention the Boards bases for rejecting Contention 2, much less point to an error of law or abuse of discretion. The most BREDL does to support admission of Contention 2 is repeat some of the same assertions raised and rejected by the Board.39 Simply repeating arguments from the Petition does not provide a basis for overturning the Boards Order.40 Moreover, it bears noting that while BREDLs Appeal largely focuses on SNCs and the NRCs failure to provide BREDL with proprietary settlement data and analysis, BREDL never contends with the Boards conclusion that BREDLs attacks on nuclear island settlement in general are beyond the scope of matters that may be litigated in a proceeding on this LAR. Even if BREDL had access to the information it seeks, the Board found that [n]either BREDLs broad claims nor the broad remedy it seeks is within the scope of this narrow license amendment proceeding.41 Because BREDL has not challenged that portion of the Board Order, its attempts to obtain additional information to support an out-of-scope contention are irrelevant (in addition to being meritless, as discussed below). A petitioners failure to challenge a boards ruling that its 38 Order at 26-27.

39 See Appeal at 3 (A seismic dishing analysis of the Nuclear Island has never been performed on the Vogtle docket.).

40 See Comanche Peak, CLI-93-10, 37 NRC at 198.

41 Order at 25.

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contention falls outside the scope of this proceeding is, in and of itself, sufficient justification to reject [the petitioners] appeal.42 Because the Appeal has not disputed the Boards rationale for rejecting Contention 2, BREDL has not met the burden of proof on appeal from the Boards decision, and the Appeal must be dismissed.

B. BREDLs Arguments on Appeal Appear to Raise a New Contention of Omission That BREDL Did Not Raise before the Board and Has No Basis in Commission Precedent Rather than challenging the Boards bases for rejecting Contention 2, BREDLs Appeal actually appears to concede that Contention 2 does not satisfy § 2.309s standardinstead, offering a new theory for why the contention should nevertheless be admitted. BREDL argues that Contention 2 was shredded by the NRCs strict by design standard because BREDL did not have access to non-docketed information and goes on to assert a legal theory that the contention admissibility standard should have been lowered due to SNCs and NRC Staffs failure to give BREDL all relevant non-public information audited by NRC during its technical review of the LAR.43 In making this argument, BREDL asserts for the first time on appeal that the LAR was incomplete as filed, which is apparently an attempt to convert Contention 2 into a contention of omission.44 However, BREDL did not raise a contention of omission before the Board, nor did BREDL assert its novel legal theory that Contention 2 should have been subjected to more permissive admissibility criteria because of supposedly missing information. Accordingly, BREDL is barred from raising those arguments on appeal as a basis for overturning the Board Order. In any event, BREDLs legal theory has no support in Commission precedent, and BREDL 42 Millstone, CLI-04-36, 60 NRC at 638.

43 Appeal at 6-7.

44 See 10 C.F.R. § 2.309(f)(1)(vi).

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has not identified any legally required information that is missing from the LAR, as would be necessary for a valid contention of omission. Accordingly, BREDLs primary argument on appeal provides no basis for overturning the Board Order.

i. BREDLs Petition Did Not Raise a Contention of Omission or Argue that Contention 2 Should be Subject to a Relaxed Admissibility Standard Contentions of omissions are based on 10 C.F.R. § 2.309(f)(1)(vi), which requires a petitioner to show that an application fails to contain information on a relevant matter as required by law . . . and the supporting reasons for the petitioners belief. [T]he contention of omission must describe the information that should have been included in the [application] and provide the legal basis that requires the omitted information to be included.45 While BREDLs Petition stated that its review had been seriously hampered by a lack of any complete engineering analyses or accurate information provided for review by SNC,46 the Petition did not demonstrate that the unspecified information was legally required to be submitted with the LAR or made available to BREDL at the pleading stage, nor did BREDL request that the Board order SNC to turn over any additional information. To the contrary, BREDL contended that Mr. Gundersons statements in his declaration provided ample support for Contention 2. Moreover, the Petition made no attempt to connect BREDLs complaints about information access, or the underlying documents that SNC made available to NRC staff during the audit, to the factual basis for Contention 2. Finally, BREDL did not assert that Contention 2 should be subject to a less rigorous admissibility review as a result of any allegedly missing information.

Rather, the upshot from BREDLs prefatory comments about information access in the Petition was merely to reserve the right to modify this report when the appropriate information is 45 Detroit Edison Co. (Fermi Nuclear Power Plant, Unit 3), LBP-09-16, 70 NRC 227, 244 (2009) (emphasis added).

46 Petition at 6.

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finally placed in ADAMS.47 In other words, BREDL restated its regulatory right to amend its Petition after the filing deadline in the event that new information satisfying the standard of

§ 2.309(c) came to light. That is precisely how the Board treated BREDLs statements regarding lack of access to informationconstruing them 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.48 BREDL now seeks to distort these statements into a basis for appeal, arguing that the Board committed a gross injustice by rejecting Contention 2 despite BREDLs complaints that it did not have all relevant information at the pleading stage.49 However, BREDLs Appeal fails to cite any applicable legal principle as to which the Board erred, nor does BREDL take issue with a particular conclusion from the Order or rejection of any argument from its Petition. In effect, BREDL is appealing the Boards failure to reconstrue its general complaints about document access into a contention of omission, or alternatively the Boards failure to sua sponte apply BREDLs (meritless) theory that those complaints justified a more permissive review of Contention 2. As the Commission has explained, the Commission does not overturn board decisions on the basis of arguments or issues that were not squarely put before the board by the petitioners.50 The purpose of an appeal is to point out errors made in the Boards decision, not to attempt to cure deficient contentions by presenting arguments and evidence never provided to the 47 Id. at 7.

48 Order at 21 n.48.

49 Appeal at 6.

50 Allowing petitioners to file vague, unsupported contentions, and later on appeal change or add contentions at will would defeat the purpose of our contention-pleading rules. USEC, Inc. (Am. Centrifuge Plant), CLI-06-10, 63 NRC 451, 458 (2006).

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Board.51 Accordingly, Petitioners may not seek to skirt our contention rules by initially filing unsupported contentions, and later recasting or modifying their contentions on appeal with new arguments never raised before the Board.52 Because BREDL did not raise a contention of omission or assert that Contention 2 should be subject to a less rigorous § 2.309(f)(1) standard before the Board, those arguments may not form the basis for overturning the Boards Order.

ii. BREDLs Claims that the LAR was Incomplete or that Contention 2 Should Be Subjected to a Lighter Admissibility Standard are Meritless Even on appeal, BREDL has not provided any basis to support a valid contention of omission, and BREDLs legal theory that missing information justifies a lower contention admissibility standard is meritless.

As noted above, to make out a contention of omission under § 2.309(f)(1)(vi), petitioners must identify missing information that is required by law to be included in a LAR. BREDL asserts in the Appeal that SNCs application was incomplete as submitted;53 however, BREDL provides no specifics or citation of authority to support its argument. Section 2.309(f)(1)(vi) requires more than a bare claim that an application is missing something; it requires identification of each failure and the supporting reasons for the petitioners belief that the information is legally required. It is not even clear from the Appeal what information BREDL believes should have been submitted with the LAR, much less the legal basis for requiring its submission. Even assuming arguendo that BREDL was trying to make the point that all documents made available to NRC 51 Id.

52 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 3), CLI-08-17, 68 NRC 231, 234 (2008).

53 Appeal at 7. To the extent BREDLs Appeal could be read as a challenge to the NRC Staffs decision to docket LAR-20-001 for review, such arguments are beyond the scope of a hearing on the license application itself. See Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 3), LBP-08-9, 67 NRC 421, 444 (2008).

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Staff during the audit should have been submitted with the LAR, such an argument would not form a valid contention of omission. BREDL does not cite any regulation or Commission order that requires licensees to submit the universe of potentially relevant technical data with a license application. That is because no such requirement exists.54 Indeed, the host of Commission decisions declining to grant discovery at the contention admissibility stage is premised on the understanding that there will always be relevant technical information that is not available on the docket.55 If licensees were required to submit every scrap of data and analyses on the docket there would be no reason for post-admission discovery.

The Staffs procedures on licensee audits or requests for additional information also would not be necessary if a LAR were required to include the universe of data supporting the technical analyses in the LAR. The fact that NRC Staff saw fit to conduct an audit of the LAR here does not 54 Section 50.90 requires license amendment requests to fully describe[e] the changes desired, and follow[] as far as applicable, the form prescribed for original applications. Section 52.79 addresses the content of technical information required of COL holders, in general requiring a level of information sufficient to enable the Commission to reach a final conclusion on all safety matters. Specific to this LAR, NRCs Standard Review Plan, Section 3.7.2, Seismic System Analysis (describing acceptance criteria for NRC Staffs review of portions of license applications relevant to interaction of Non-Seismic Category I Structures with Seismic Category I SSCs) states that applicants should provide sufficient analysis and design information concerning interaction of the non-seismic Category I structures with seismic Category I SSCs for staff review. NUREG-0800, Chapter 3, Section 3.7.2, rev. 4, at 24 (Sept. 18, 2018)

(ADAMS Accession No. ML13198A223). Throughout regulations and guidance, licensees are required to provide sufficient information. Nowhere do NRC regulations or guidance require that licensees submit every potentially relevant piece of background technical analysis to the public docket. In fact, industry guidance developed by NEI (which although not endorsed, has been followed by SNC and other reactor licensees for years) specifically contemplates that licensees provide summaries of technical analyses and data to allow NRC Staffs independent assessment of the LAR. See NEI 06-02, License Amendment Request (LAR) Guidelines, rev. 2, at 10 (Oct. 31, 2010)

(ADAMS Accession No. ML103360404). And the Commission has explained that Staffs exercise of risk informed decision-making to determine when it is appropriate to rely on licensees submittals versus conducting an independent review of underlying data is entirely consistent with sound regulatory practice. See Exelon Generation Co., LLC (Early Site Permit for Clinton ESP Site), CLI-07-12, 65 NRC 203, 208 (2007). Here, the LAR describes the settlement trends and potential impacts on the gap between annex and auxiliary buildings in enough detail to provide a basis for NRC Staffs review of the requested change, which does not affect the settlement analysis in the existing licensing basis or identify a departure from the bounding settlement parameters. That NRC Staff exercised its discretion to review the underlying settlement data and analyses to verify the summary of that information presented in the LAR does not render the LAR incomplete or inaccurate.

55 See, e.g., South Texas Project Nuclear Operating Co. (South Texas Project, Units 3 and 4), CLI-10-24, 72 NRC 451, 462 n.70 (2010); Consumers Energy Co. (Palisades Nuclear Power Plant), CLI-07-18, 65 NRC 399 (2007).

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render the LAR incomplete or deficient, just as Staffs submission of requests for additional information (RAIs) would not have provided a basis for claiming that an application was deficient or incomplete as submitted. As the Commission has stated, NRC Staffs mere posing of questions does not suggest that the application was incomplete, or that it provided insufficient information to frame contentions.56 As for BREDLs argument that supposedly missing information required the Board to admit Contention 2 notwithstanding its failure to satisfy § 2.309s admission criteria, there is no basis in modern Commission precedent for this theory. The Appeal cites a pair of ASLB decisions from the early 1980s (BREDL cited neither in the Petition) as support for its theory that, when an application for a license amendment it itself incomplete, the standard for the admission of contentions is lowered.57 These unreviewed board orders predate the 1989 sea change in the Commissions admissibility standard that raised the bar from mere notice pleading to the modern strict by design standard embodied in § 2.309.58 As the Commission has explained, [p]rior to the contention rule revisions, Licensing Boards had admitted and litigated numerous contentions that appeared to be based on little more than speculation.59 In response to a Congressional directive, the Commission revised its regulations to require petitioners to identify some facts at 56 Baltimore Gas & Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-25, 48 NRC 325, 349 (1998).

57 Appeal at 6-7 (citing Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 and 2), LBP-81-45, 14 NRC 853 (1981)); see also id. at 4 (citing Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2),

LBP-80-30, 12 NRC 683 (1980)).

58 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349, 358-359 (2001); see also Final Rule, Rules of Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, 54 Fed. Reg. 33,168 (Aug. 11, 1989) (1989 Final Rule); Entergy Nuclear Operations, Inc.

(Palisades Nuclear Plant), CLI-15-23, 82 NRC 321, 325 n.21 (2015) (agreeing that it would be an error to base contention admissibility decisions on pre-1989 board orders that reflect the less-detailed notice pleading standard of the time).

59 Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 334 (1999).

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the time it proposes a contention to indicate that a dispute exists between it and the applicant on a material issue.60 The revised admissibility criteria are intended to preclude a contention from being admitted where an intervenor has no facts to support its position and [instead] contemplates using discovery or cross-examination as a fishing expedition which might produce relevant supporting facts.61 Under the modern rules, petitioners must submit contentions meeting the strict criteria of

§ 2.309(f)(1), based on documents or other information available at the time the petition is to be filed.62 Of course, if a petitioner believes that information on a relevant matter that is legally required is omitted from the LAR, their remedy is to submit a contention of omission under

§ 2.309(f)(1)(vi). There is no hybrid between the twoallowing petitioners to simply identify non-public information as an excuse for submitting a legally inadequate contention. This would allow the very type of fishing expedition the Commission sought to prevent with the 1989 revisions to the NRCs admissibility rules, which require a petitioner to articulate an admissible contention before being granted discovery. Since then, the Commission has consistently rejected petitioners attempts to skirt the contention admissibility requirements by merely pointing out alleged deficiencies in the record as of the filing deadline.63 BREDLs theory here is no different, and thus should be rejected.

60 Id. (quoting 1989 Final Rule, 54 Fed. Reg. at 33,171) (emphasis added).

61 Id. (quoting 1989 Final Rule, 54 Fed. Reg. at 33,171) (edits in original).

62 10 C.F.R. § 2.309(f)(2) (emphasis added); see also Calvert Cliffs, CLI-98-25, 48 NRC at 349 (Under our longstanding practice, contentions must rest on the license application, not on NRC staff reviews. (emphasis in original) (citing 1989 Final Rule, 54 Fed. Reg. at 33,171)).

63 See, e.g., Calvert Cliffs, CLI-98-25, 48 NRC at 349 (rejecting an argument that supposed glaring inadequacy in the record justified postponement of the contention deadline); Oconee, CLI-99-11, 49 NRC at 337.

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Whats more, BREDL did not even grapple with or contest the relevant information that was available to BREDL as of the filing deadline. As the Board explained, BREDL failed to contest or even acknowledge the relevant portions of the Vogtle licensing basis that define allowable settlement parameters or the section of the LAR specifically addressing expected settlement trends and potential impacts (in fact, the lack thereof) on the gap between the auxiliary and annex buildings.64 BREDL likewise did not acknowledge the settlement data points that are on the Vogtle docket. Of particular note, in 2018 NRC Staff reviewed settlement trends for the new Vogtle units and found that measured actual settlements are at least 40 percent less than the calculated settlements using the analytical model, and [b]ased on this observation, the staff reasonably expects that settlement will be well controlled within the settlement limits throughout the entire construction sequence and through the long-term (plant operation).65 Indeed, the LAR here confirmed that no significant changes are anticipated to . . . short-term and long-term settlement trends.66 The fact that BREDL has identified some additional non-public information did not excuse BREDL from its obligation to proffer a valid contention based on the ample information available to it. Petitioners have an ironclad obligation to review the record in forming their contentions.67 BREDL ignored the record and now seeks to use the existence of additional information as an excuse for its failure to submit a valid contention supported by facts and expert opinion.

64 Order at 25-26; see also LAR at 8.

65 See Safety Evaluation Report, Vogtle Electric Generating Plant Units 3 and 4, Amendment Nos. 127 and 126 (LAR-18-002) at 5 (June 15, 2018) (ADAMS Accession No. ML18120A345).

66 LAR at 8.

67 1989 Final Rule, 54 Fed. Reg. at 33,170 (citation omitted).

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BREDLs arguments in the Appeal attacking the LAR as incomplete and requesting that BREDL be granted discovery in the absence of a valid contention provide no basis for overturning the Board decision.

C. BREDLs Attacks on NRC Staffs Review of the LAR and Internal Review Guidelines are Incorrect and Beyond the Scope of this Proceeding In addition to requesting discovery without a valid contention, BREDL also requests sua sponte dismissal of the LAR for want of compliance with established agency practice.68 BREDLs argument is based on its mistaken belief that NRC Staff violated its internal procedures by relying on non-docketed information during its acceptance review of the LAR. However, NRC Staff completed its acceptance review and docketed the LAR approximately two weeks after submission, without requesting any additional information from SNC.69 A month later, NRC staff conducted the audit of settlement data during post-docketing technical review of the LAR. In doing so, NRC Staff accessed documents using an electronic reading room in accordance with NRC guidelines.70 Several pages of BREDLs argument are premised on the mistaken belief that BREDL was improperly denied . . . access to information relied on by NRC Staff during acceptance review.71 BREDL has not identified any violation of agency regulation or procedure, nor is there anything unusual or untoward about NRC Staffs review of non-docketed information to confirm its understanding of a LAR or other docketed information.72 At most, BREDLs 68 Appeal at 7.

69 See Acceptance Review Notice; Transcript at 70.

70 See LIC-111, at 8.

71 Appeal at 6. Compare NRR Office Instruction, LIC-109, Acceptance Review Procedures, rev. 2 (Jan. 9, 2017)

(ADAMS Accession No. ML16144A521) (describing the acceptance review process to determine whether a requested licensing action is complete and acceptable for further technical review), with NRR Office Instruction, LIC-101, License Amendment Review Procedures, rev. 5 (Jan. 9, 2017) (ADAMS Accession No. ML16061A451) (describing the substantive review process that follows acceptance review).

72 See LIC-111 at 3 ([T]here may be other information that is not submitted on the docket but is retained by a licensee under 10 CFR 50.71 and/or 10 CFR 54.37, that would help the staff better understand the information submitted by a 19

arguments amount to a challenge to NRC Staffs initial docketing decision or their decision following the audit not to issue an RAI requesting that SNC submit additional information on the docket. As Judge Bollwerk found in his Additional Views addendum to the Boards Order, NRC Staff acted in accordance with established NRC procedures in connection with its acceptance of the LAR and its audit of licensee supporting documents73a conclusion BREDL does not address in its Appeal. Regardless, attacks on NRC Staffs review, docketing decisions, decision to issue an RAI (or not), or internal agency guidelines are all outside the scope of matters that may justify a hearing on the LAR, as is the relief requested by BREDL.74 Accordingly, BREDLs attacks on NRC Staffs review of the LAR and determinations regarding what information is required to be placed on the docket do not provide any basis for overturning the Board Order.

V. Conclusion The Board correctly found that BREDLs contentions were inadmissible under 10 C.F.R.

§ 2.309(f)(1). On appeal, BREDL has wholly failed to show that the Board erred or otherwise abused its discretion. Accordingly, SNC respectfully requests that the Commission affirm the Boards Order denying the Petition.

licensee.); see also Clinton ESP, CLI-07-12, 65 NRC at 208 (explaining that Staffs use of audits to independently verify some information, while relying on licensees obligation to submit complete and accurate information in other areas, is entirely consistent with sound regulatory practice).

73 Bollwerk Additional Views at 2, 5.

74 See Calvert Cliffs, CLI-98-25, 48 NRC at 350; Millstone, LBP-08-9, 67 NRC at 444; Southern Nuclear Operating Co., Inc. (Vogtle Electric Generating Plant, Units 3 and 4), LBP-16-5, 83 NRC 259, 286 (2016).

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Respectfully submitted, Executed in accord with 10 C.F.R. § 2.304(d)

M. Stanford Blanton Peter D. LeJeune Counsel for Southern Nuclear Operating Company BALCH & BINGHAM LLP 1710 Sixth Avenue North Birmingham, AL 35203-2015 (205) 251-8100 sblanton@balch.com plejeune@balch.com Date of Signature: September 29, 2020 Signed (electronically) by Alan D. Lovett Counsel for Southern Nuclear Operating Company BALCH & BINGHAM LLP 1710 Sixth Avenue North Birmingham, AL 35203-2015 (205) 251-8100 alovett@balch.com Date of Signature: September 29, 2020 21

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of: ) Docket No. 52-025-LA-3

)

SOUTHERN NUCLEAR OPERATING CO. )

)

Vogtle Electric Generating Plant, Unit 3 ) September 29, 2020

)

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that on this date copies of the foregoing Brief in Opposition to Appeal were served upon the Electronic Information Exchange (the NRCs E-Filing System) in the above captioned matter.

Signed electronically by

/s/ Alan D. Lovett Alan D. Lovett BALCH & BINGHAM LLP 1710 Sixth Avenue North Birmingham, AL 35203-2015 Telephone: (205) 226-8769 E-mail: alovett@balch.com Date of Signature: September 29, 2020