ML21286A586

Memorandum and Order (Initial Prehearing Order)

ML21286A586
Person / Time
Site:	Oconee
Issue date:	10/13/2021
From:	Bollwerk G Atomic Safety and Licensing Board Panel
To:	Gary Arnold, Nicholas Trikouros Atomic Safety and Licensing Board Panel
SECY RAS
References
50-269-SLR, 50-270-SL, 50-287-SLR, ASLBP 22-972-01-SLR-BD01, RAS 56268
Download: ML21286A586 (10)

Text

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

G. Paul Bollwerk, III, Chairman Nicholas G. Trikouros Dr. Gary S. Arnold In the Matter of Docket Nos. 50-269-SLR, 50-270-SLR, and 50-287-SLR DUKE ENERGY CAROLINAS, LLC ASLBP No. 22-972-01-SLR-BD01 (Oconee Nuclear Station, Units 1, 2, and 3)

October 13, 2021 MEMORANDUM AND ORDER (Initial Prehearing Order)

This proceeding concerns a June 7, 2021 application submitted by Duke Energy Carolinas, LLC (Duke) asking the Nuclear Regulatory Commission (NRC) for a second renewal of the existing 10 C.F.R. Part 50 operating licenses for Units 1, 2, and 3 at the Oconee Nuclear Station for an additional twenty-year term.1 On July 28, 2021, the NRC published a Federal Register hearing opportunity notice regarding this application.2 Beyond Nuclear and Sierra Club (collectively Petitioners) submitted a hearing request on September 27, 2021, with three 1 See Letter from Steven M. Snider, Site Vice President, Oconee Nuclear Station, to NRC Document Control Desk, encls. (June 7, 2021) (ADAMS Package Accession No. ML21158A193).

2 See [Duke], Oconee Nuclear Station, Units 1, 2, and 3, 86 Fed. Reg. 40,662 (July 28, 2021).

National Environmental Policy Act (NEPA)-related contentions challenging the Duke subsequent license renewal (SLR) application.3 Included as well was a 10 C.F.R. § 2.335(b) petition for a waiver of 10 C.F.R. §§ 51.53(c)(3)(i), 51.53(c)(3)(ii)(L), 51.71(d), and 51.95(c)(1) to permit consideration of Category 1 NEPA issues otherwise not required to be considered in an SLR proceeding as a result of being listed in appendix B to 10 C.F.R. Part 51, subpart A.4 By memorandum dated September 29, 2021, the Secretary of the Commission referred this petition to the Chief Administrative Judge,5 who, in turn, on October 4, 2021, assigned the hearing petition to this Licensing Board to rule on standing and contention admissibility matters and preside at any hearing.6 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 Duke and the NRC Staff to Petitioners September 27, 2021 hearing request are due on Friday, October 22, 2021, while any reply by Petitioners to those answers is due on or before Friday, October 29, 2021.

3 See Hearing Request and Petition to Intervene by [Petitioners] and Petition for Waiver of 10 C.F.R. §§ 51.53(c)(3)(i), 51.53(c)(3)(ii)(L), 51.71(d), and 51.95(c)(1) and 10 C.F.R. Part 51, Subpart A, Appendix B, Table B-1 to Allow Consideration of Category 1 NEPA Issues (Sept. 27, 2021) at 11-22.

4 See id. attach. 3.

5 See Memorandum from Annette Vietti-Cook, NRC Secretary, to E. Roy Hawkens, Chief Administrative Judge (Sept. 29, 2021).

6 See [Duke], Establishment of Atomic Safety and Licensing Board, 86 Fed. Reg. 56,299 (Oct. 8, 2021).

II. ADMINISTRATIVE MATTERS A. Notice of Appearance If they have not already done so, on or before Friday, October 22, 2021, 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 (if any).

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 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 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 from https://www.nrc.gov/site-help/e-submittals/contact-us-eie.html.

8 Any answers/replies associated with the September 2021 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 answers/replies to such a motion are subject to this page limitation. And because the page limit applies regardless of the number of contentions involved, when more than one new/amended contention is being submitted, in lieu of 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 new/amended contentions being proffered that are associated with the information that it is asserted triggers the motion.

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 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 9 See 10 C.F.R. § 2.323(b). Pursuant to section 2.323(b), a 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).

11 Although the agencys rules 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 answer 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.

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 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 proffers a pleading or other submission that has additional documents appended to it, these items should be referred to as attachments or enclosures (not exhibits), with a separate alpha or numeric designation given to each appended document (e.g., Attachment A, Enclosure 1), either on the first page of the appended document 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 (other than summary disposition motions) are due within 10 days after the occurrence or circumstance from which the motion arises, with any answer to that motion due within 10 days of service of the motion. But for a motion seeking the admission of new/amended contentions, see 10 C.F.R. § 2.309(f)(2); see also id. § 2.323(a)(1) (motions for new/amended contentions not subject to section 2.323 requirements), 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.

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 consisting 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 electronic submission guidance (at page 6), multiple electronic files should be used for pleadings or submissions with attachments or enclosures only if the filing exceeds 500 megabytes in size.14 The label exhibit should 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.

Each evidentiary hearing exhibit (including prefiled written testimony) must be submitted via the agencys E-Filing system as a separate electronic file. See 10 C.F.R. § 2.304(g).

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 if it decides to conduct an initial prehearing conference, given the current situation with the COVID-19 pandemic, that prehearing 14 See https://www.nrc.gov/docs/ML13031A056.pdf (access link for Guidance for Electronic Submissions to the NRC (rev. 9 Aug. 6, 2021)).

conference is likely to be done utilizing teleconferencing and/or web conferencing with the opportunity for public access to the conference via a listen-only telephone number and passcode.

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 participant 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: hearing.docket@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/e-mail address 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 October 13, 2021

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

)

DUKE ENERGY CAROLINAS, LLC, ) Docket Nos. 50-269, 50-270 & 50-287-SLR DUKE ENERY )

)

(Oconee Nuclear Station )

Units 1, 2 and 3) )

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

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Office of the Secretary of the Commission Mail Stop: O-16B33 Mail Stop: O-16B33 Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ocaamail@nrc.gov E-mail: hearingdocket@nrc.gov U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of the General Counsel Mail Stop: T-3F23 Mail Stop - O-14A44 Washington, DC 20555-0001 Washington, DC 20555-0001 Susan Vrahoretis, Esq.

G. Paul Bollwerk, III, Chairman David E. Roth, Esq.

Administrative Judge Megan A. Wright, Esq.

Mary F. Woods, Esq.

Nicholas G. Trikouros Joseph M. Azeizat, Esq.

Administrative Judge Brian Newell, Senior Paralegal Georgiann E. Hampton, Paralegal Dr. Gary S. Arnold Amanda Black, Paralegal Administrative Judge E-mail: susan.vrahoretis@nrc.gov david.roth@nrc.gov Ian Curry, Law Clerk megan.wright@nrc.gov mary.woods@nrc.gov Brooke Taylor, Law Clerk joseph.azeizat@nrc.gov brian.newell@nrc.gov Allison Wood, Law Clerk georgiann.hampton@nrc.gov amanda.black@nrc.gov E-mail: paul.bollwerk@nrc.gov nicholas.trikouros@nrc.gov gary.arnold@nrc.gov ian.curry@nrc.gov brooke.taylor@nrc.gov allison.wood@nrc.gov

Oconee Power Station (Units 1, 2 and 3)

Docket Nos. 50-269, 50-270 and 50-287-SLR MEMORANDUM AND ORDER (Initial Prehearing Order)

Duke Energy Tracey LeRoy, Esq.

550 South Tryon Street, 45A Charlotte, NC 28202 tracey.leroy@duke-energy.com Counsel for Duke Energy Morgan, Lewis & Bockius LLP Paul Bessette, Esq.

Ryan Lighty, Esq.

1111 Pennsylvania Avenue, NW Washington, DC 20004 E-mail: paul.bessette@morganlewis.com ryan.lighty@morganlewis.com Beyond Nuclear Paul Vernon Gunter, Esq.

7304 Carroll Avenue #182 Takoma Park, MD 20912 paul@beyondnuclear.org Counsel for Beyond Nuclear Diane Curran, Esq.

Harmon, Curran, Spielberg and Eisenberg 1725 DeSales Street NW, Suite 500 Washington, DC 20036 dcurran@harmoncurran.com Krupskaya T. Digitally signed by Krupskaya T. Castellon Castellon Date: 2021.10.13 13:03:55

-04'00' Office of the Secretary of the Commission Dated at Rockville, Maryland, this 13th day of October 2021.

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