ML083220256

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Dominion Nuclear Connecticut'S Brief in Opposition to the Appeal of Connecticut Coalition Against Millstone and Nancy Burton
ML083220256
Person / Time
Site: Millstone Dominion icon.png
Issue date: 11/17/2008
From: Travieso-Diaz M
Dominion Nuclear Connecticut, Dominion Resources Services, Pillsbury, Winthrop, Shaw, Pittman, LLP
To:
NRC/OCM
SECY RAS
References
50-423-OLA, ASLBP 08-862-01-OLA-BD01, RAS 1410
Download: ML083220256 (20)
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Text

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

) Docket No. 50-426-OLA Dominion Nuclear Connecticut, Inc. )

(Millstone Nuclear Power Station, Unit 3) ) ASLBP No. 08-862-01-OLA

)

)

DOMINION NUCLEAR CONNECTICUTS BRIEF IN OPPOSITION TO APPEAL OF CONNECTICUT COALITION AGAINST MILLSTONE AND NANCY BURTON David R. Lewis Matias F. Travieso-Diaz Stefanie M. Nelson PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, NW Washington, DC 20037-1122 (202) 663-8000 Lillian M. Cuoco Senior Counsel Dominion Resources Services, Inc.

120 Tredegar Street, RS-2 Richmond, VA 23219 (804) 819-2684 Counsel for Dominion Nuclear Connecticut, Inc.

Dated: November 17, 2008

TABLE OF CONTENTS Page TABLE OF AUTHORITIES ......................................................................................................... iii STATEMENT OF THE CASE....................................................................................................... 2 ARGUMENT.................................................................................................................................. 4 I. PETITIONERS FAIL TO IDENTIFY ERRORS IN THE BOARDS DECISION........... 4 II. THE BOARDS DENIAL OF PETITIONERS MOTIONS WAS CORRECT ................ 6 A. THE PROCEEDING HAS TERMINATED AND CANNOT BE REOPENED ............... 6 B. PETITIONERS FAILED TO MEET THE CRITERIA FOR A MOTION TO REOPEN UNDER 10 C.F.R. § 2.326 ................................................................................................. 7

1. A Motion to Reopen Would Have Been Required ....................................................... 7
2. Petitioners Failed to Satisfy the Requisite Standards for Late Intervention and for Reopening a Closed Hearing ........................................................................................ 8 C. PETITIONERS FAILED TO MEET THE CRITERIA FOR NEW OR AMENDED CONTENTIONS UNDER 10 C.F.R. § 2.309(f)(2) AND THE CONTENTION ADMISSIBILITY CRITERIA OF 10 C.F.R. § 2.309(f)(1)(i)-(vi) .................................. 10 CONCLUSION............................................................................................................................. 13 ii

TABLE OF AUTHORITIES Cases Page Advanced Medical Systems, Inc., (One Factory Row, Geneva, Ohio 44041),

CLI-94-6, 39 N.R.C. 285 (1994), affd, Advanced Med. Sys., Inc. v. NRC, 61 F.3d 903 (6th Cir. 1995) .............................................................................................................5 Amergen Energy Co., L.L.C. (Oyster Creek Nuclear Generating Station), CLI-08-28, 68 N.R.C. __, slip op. (Nov. 6, 2008) .........................................................................................9,10 Baltimore Gas & Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2),

CLI-98-25, 48 N.R.C. 325 (1998)....................................................................................................9 Boston Edison Co. (Pilgrim Nuclear Power Station), ALAB-816, 22 N.R.C. 461 (1985) .............9 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3),

CLI-04-36, 60 N.R.C. 631 (2004)....................................................................................................5 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3),

CLI-06-4, 63 N.R.C. 32 (2006).....................................................................................................7,9 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit No.3),

LBP-08-09, 67 N.R.C. __, slip op. (June 4, 2008)...................................................................3,7,12 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3),

CLI-08-17, 68 N.R.C. __, slip op. (Aug. 13, 2008)..............................................................1,3,7,12 Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 N.R.C. 328 (1999).....................................................................................................................13 Duke Power Co. (Perkins Nuclear Station, Units 1, 2 ad 3), ALAB-615, 12 N.R.C. 350 (1980).......................................................................................................................9 General Public Utilities Nuclear Corp. (Three Mile Island Nuclear Station, Unit 2),

ALAB-926, 31 N.R.C. 1 (1990) ......................................................................................................5 Hydro Resources, Inc. (2929 Coors Road, Suite 101, Albuquerque, NM 87120),

CLI-00-8, 51 N.R.C. 227 (2000)....................................................................................................11 Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant), CLI-75-4, 1 N.R.C. 273 (1975).........................................................................................................................9 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-00-21, 51 N.R.C. 261 (2000)....................................................................................................5 iii

Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-22, 60 N.R.C. 125 (2004).....................................................................................................................11 Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2),

CLI-92-12, 36 N.R.C. 62 (1992)......................................................................................................6 Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 2), CLI-93-01, 37 N.R.C. 1 (1993)...........................................................................................................................8 Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 2), CLI-93-4, 37 N.R.C. 156 (1993).......................................................................................................................8 Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 2), CLI-93-10, 37 N.R.C. 192 (1993).......................................................................................................................5 Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 and 2), ALAB-666, 15 N.R.C. 277 (1982).......................................................................................................................5 Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-96-7, 43 N.R.C. 235 (1996).....................................................................................................................11 Statutes & Regulations 10 C.F.R. § 2.206 .............................................................................................................................6 10 C.F.R. § 2.309(c)......................................................................................................................8,9 10 C.F.R. § 2.309(f)(1)(i)..........................................................................................................10,11 10 C.F.R. § 2.309(f)(1)(ii) ........................................................................................................10,11 10 C.F.R. § 2.309(f)(1)(iii) .......................................................................................................10,11 10 C.F.R. § 2.309(f)(1)(iv)........................................................................................................10,11 10 C.F.R. § 2.309(f)(1)(v).........................................................................................................10,11 10 C.F.R. § 2.309(f)(1)(vi)........................................................................................................10,11 10 C.F.R. § 2.309(f)(2) .............................................................................................................10,11 10 C.F.R. § 2.309(f)(2)(i)...............................................................................................................12 10 C.F.R. § 2.311(a).........................................................................................................................1 iv

10 C.F.R. § 2.326 .......................................................................................................................4,7,9 10 C.F.R. § 2.326(a).......................................................................................................................10 10 C.F.R. § 2.326(b) ...................................................................................................................7,10 10 C.F.R. § 2.341(c)(2)....................................................................................................................1 73 Fed. Reg. 49,222 (Aug. 20, 2008)...............................................................................................3 v

November 17, 2008 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of ) Docket No. 50-426-OLA Dominion Nuclear Connecticut, Inc. )

(Millstone Nuclear Power Station, Unit 3) ) ASLBP No. 08-862-01-OLA

)

DOMINION NUCLEAR CONNECTICUTS BRIEF IN OPPOSITION TO APPEAL OF CONNECTICUT COALITION AGAINST MILLSTONE AND NANCY BURTON Pursuant to 10 C.F.R. §§ 2.311(a) and 2.341(c)(2), Dominion Nuclear Connecticut, Inc.

(Dominion) submits this Brief in opposition to the appeal filed by the Connecticut Coalition Against Millstone and Nancy Burton (Petitioners) in the terminated Millstone Nuclear Power Station, Unit 3 (Millstone Unit 3 or MPS3) power uprate proceeding. 1 Petitioners seek review of the Atomic Safety and Licensing Boards (Board) October 27, 2008 Memorandum and Order 2 denying Petitioners motions to file new or amended contentions. 3 The Board 1

Notice of Appeal (Nov. 6, 2008) (Pet. Br.). Petitioners did not serve their notice of appeal in accordance with the NRC electronic filing rules but instead sought a waiver of the NRCs E-filing requirements of this document insofar as they presently lack computer capability to achieve E-filing functionality. Pet. Br. at 1. This is yet another instance of Petitioners failing to abide by the NRC electronic filing requirements despite being admonished by both the Commission and the Atomic Safety and Licensing Board that such a failure is sufficient cause for dismissal of Petitioners petition or appeal. See, e.g., Dominion Nuclear Connecticut, Inc. (Millstone Power Station, Unit 3), CLI-08-17, 68 N.R.C. __ (Aug. 13, 2008) (CLI-08-17), slip op. at 5.

2 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3), Memorandum and Order (Ruling on Motions to File New or Amended Contentions) (Oct. 27, 2008) (Memorandum and Order).

3 Connecticut Coalition Against Millstone and Nancy Burton New Contentions and Request for Leave to Submit New Contentions Based on Receipt of New information and Request for Continuing Waiver of E-Filing Requirements (Aug. 27, 2008) (August 27 Motion); Connecticut Coalition Against Millstone and Nancy Burton Revised Motion for Leave to File their New and/or Amended Contentions Based on Receipt of New Information and for Continuing Waiver of Electronic Filing (Aug. 7, 2008) (August 7 Motion); Connecticut Coalition Against Millstone and Nancy Burton Motion for Leave to File Their Motion for Leave to File New and/or Amended Contentions Based on Receipt of New Information Dated July 18, 2008, Nunc Pro Tunc, and for Continuing Waiver of Electronic Filing (July 31, 2008) (July 31 Motion); Connecticut Coalition Against Millstone and Nancy Burton Motion for Leave to File and/or Amended Contentions Based on Receipt of New Information (July 18, 2008) (July 18 Motion).

properly denied the motions (and, particularly, the August 27 Motion that sought admission of two new contentions) because: (1) the proceeding to approve the MPS3 uprate has been terminated; (2) Petitioners failed to make, or satisfy the requirements for granting, a motion to reopen a closed proceeding; (3) Petitioners failed to address or satisfy the requirements for late intervention; (4) Petitioners failed to satisfy the requirements for filing contentions based on new information; and (5) Petitioners failed to demonstrate that their proffered contentions meet the requirements for admissible contentions in Commission proceedings.

For those reasons, and because the Petitioners fail to identify any errors of law or fact or abuses of discretion on the part of the Board, the Commission should affirm the Boards October 27, 2008 Memorandum and Order and dismiss Petitioners appeal.

STATEMENT OF THE CASE On July 13, 2007, Dominion submitted a license amendment request seeking approval of amendments to Operating License No. NPF-49 for Millstone Unit 3 to increase the maximum authorized power level from 3411 megawatts thermal (MWt) to 3650 MWt, 4 approximately a 7% increase. On March 17, 2008, Petitioners submitted a Petition to Intervene and Request for Hearing, proposing nine contentions. 5 Both Dominion and the NRC Staff (Staff) opposed the petition. 6 On June 4, 2008, the Board issued a Memorandum and Order denying the Petition 4

The License Amendment Request (LAR) is available in ADAMS at Accession No. ML072000386. The LAR was supplemented on July 13, September 12, November 19, December 13, and December 17, 2007.

5 Connecticut Coalition Against Millstone and Nancy Burton Petition to Intervene and Request for Hearing (Mar.

17, 2008) (Petition).

6 Dominion Nuclear Connecticuts Response to Connecticut Coalition Against Millstone and Nancy Burtons Petition to Intervene and Request for Hearing (Apr. 11, 2008); NRC Staff Answer to Request to Intervene and for Hearing of the Connecticut Coalition Against Millstone and Nancy Burton (Apr. 11, 2008).

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and terminating the proceeding on the grounds that Petitioners had not submitted any admissible contentions. 7 Petitioners filed an appeal with the Commission on June 16, 2008. 8 On July 18, 2008, after the Board had dismissed the Petition and terminated the uprate proceeding, Petitioners filed their July 18 Motion, seeking leave to file (at some later date) new prospective contentions. On July 21, 2008, the Office of the Secretary e-mailed Petitioners to inform them that the July 18 Motion was not accepted or docketed because the filing failed to meet e-filing procedural requirements. 9 Petitioners then filed their July 31 Motion, requesting a waiver of e-filing requirements and asking that the Board consider their July 18 Motion nunc pro tunc. On August 7, 2008, Petitioners filed yet another motion for leave to file new or amended contentions. Similar to the July 7 Motion, the August 7 Motion also requested leave to file prospective contentions at a later date.

Although these motions were directed to the Board, the Board no longer had jurisdiction because it had terminated the proceeding and the matter was pending before the Commission on appeal. On August 11, 2008, the Secretary of the Commission referred the July 31 Motion and any further pleadings related to it to the Board. 10 On August 12, 2008, the Staff approved Dominions LAR and issued the license amendment. 11 On August 13, 2008, the Commission denied Petitioners appeal. 12 7

Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit No. 3), Memorandum and Order (Ruling on Petition to Intervene and Request for Hearing), LBP-08-09, 67 N.R.C. __ (June 4, 2008) (LBP 09).

8 Notice of Appeal (June 16, 2008).

9 E-mail from Emile Julian, Assistant for Rulemakings and Adjudications, Office of the Secretary, Nuclear Regulatory Commission, to Nancy Burton (July 21, 2008, 3:48 PM EDT).

10 Commission Secretarys Order (Aug. 11, 2008) (unpublished).

11 Dominion Nuclear Connecticut, Inc.; Notice of Issuance of Amendment to Facility Operating License and Final Determination of No Significant Hazards Consideration, 73 Fed. Reg. 49,222 (Aug. 20, 2008).

12 See CLI-08-17.

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On August 14, 2008, the Board requested legal briefs from Petitioners, Dominion, and the Staff regarding whether the record needed to be reopened to accept new or amended contentions. 13 Dominion and the Staff filed briefs arguing that the record was closed, and that Petitioners would have to satisfy the standards of 10 C.F.R. § 2.326 to reopen the record. 14 Petitioners asserted without citation to supporting authority that a motion to reopen was not necessary. 15 On August 27, 2008, after the Commission had denied Petitioners appeal and after the Staff had issued the license amendment, Petitioners filed yet another motion with the Board. The August 27 Motion requested leave to admit two specified new contentions.

On October 27, 2008, the Board issued its Memorandum and Order denying all of Petitioners motions. Petitioners filed their Notice of Appeal on November 6, 2008. Although Petitioners do not specify which of the Boards rulings they seek to appeal, only the Boards denial of the August 27 Motion is properly at issue, as it is through that motion that Petitioners sought admission of new contentions.

ARGUMENT I. PETITIONERS FAIL TO IDENTIFY ERRORS IN THE BOARDS DECISION At the outset, the Commission should affirm the Boards Memorandum and Order because Petitioners have failed to identify, let alone demonstrate, any specific error of law or 13 Licensing Board Order (Requesting Legal Briefs from CCAM, Dominion, and the NRC Staff) (Aug. 14, 2008)

(unpublished).

14 NRC Staffs Initial Legal Briefing on Boards Questions (Aug. 25, 2008) at 4; Dominion Nuclear Connecticuts Brief in Response to Connecticut Coalition Against Millstone and Nancy Burton Revised Motion for Leave to File New Contentions (Aug. 25, 2008) at 4; NRC Staffs Reply to Petitioners and Applicants Legal Briefing on Boards Questions (Sept. 2, 2008) at 4; Dominion Nuclear Connecticuts Reply to Connecticut Coalition Against Millstone and Nancy Burtons Response to Boards Request for Legal Briefs (Sept. 2, 2008) at 2.

15 Connecticut Coalition Against Millstone and Nancy Burtons Response to Atomic Safety and Licensing Board Panels Memorandum and Order Dated August 14, 2008 Requesting Legal Briefs and Request for Continuing Waiver of E-filing Requirements (Aug. 25, 2008) at 2-4 (Petitioners August 25 Brief).

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fact, procedural error, or abuse of discretion by the Board. Instead, Petitioners primarily repeat arguments from prior pleadings, particularly Petitioners August 25 Brief, which is duplicated almost verbatim throughout Petitioners Notice of Appeal. 16 Licensing board rulings are affirmed where the brief on appeal points to no error of law or abuse of discretion that might serve as grounds for reversal of the Boards decision. Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-00-21, 52 N.R.C. 261, 265 (2000) (citation omitted); Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-04-36, 60 N.R.C. 631, 637 (2004). A failure to illuminate the bases for an exception to the Boards decision is sufficient grounds to reject it as a basis for appeal. Advanced Medical Systems, Inc. (One Factory Row, Geneva, Ohio 44041), CLI-94-6, 39 N.R.C. 285, 297 (1994), affd, Advanced Med. Sys., Inc. v. NRC, 61 F.3d 903 (6th Cir. 1995)

(Table). In that decision, the Commission stated:

The appellant 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.

39 N.R.C. at 297, citing General Public Utilities Nuclear Corp. (Three Mile Island Nuclear Station, Unit 2), ALAB-926, 31 N.R.C. 1, 9 (1990) and Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 and 2), ALAB-666, 15 N.R.C. 277, 278 (1982). A mere recitation of an appellant's prior positions in a proceeding or a statement of his or her general disagreement with a decision's result is no substitute for a brief that identifies and explains the errors of the Licensing Board in the order below. Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 2), CLI-93-10, 37 N.R.C. 192, 198 (1993) (footnote omitted).

16 Compare Pet. Br. at 4-5 with Petitioners August 25 Brief at 2-3; Pet. Br. at 5 with Petitioners August 25 Brief at 3-4; Pet. Br. at 6 with Petitioners August 25 Brief at 4.

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Petitioners appeal only contains conclusory statements alleging errors on the part of the Board, with no authority cited in support of the accusations. See, e.g., Pet. Br. at 3, 7, 8. Not once do Petitioners offer any legal authority to show that the Boards interpretations of the NRC regulations and case law are incorrect.

II. THE BOARDS DENIAL OF PETITIONERS MOTIONS WAS CORRECT The Board denied Petitioners August 27 Motion for several reasons, each of which was correct and each of which independently serves as sufficient grounds for denying the motion.

A. THE PROCEEDING HAS TERMINATED AND CANNOT BE REOPENED The Board ruled that the adjudicatory proceeding on the LAR had terminated once the license amendment had been issued and could not be reopened. Memorandum and Order, slip op. at 11. That ruling was clearly correct. There was no proceeding in which to intervene when Petitioners filed the August 27 Motion. Prior to that date, the Commission had denied Petitioners appeal and the Staff had issued the license amendment. The Commission has previously held that, when the Staff issues a license or amendment, the proceeding is terminated and cannot be reopened. See Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-92-12, 36 N.R.C. 62, 67 (1992). As the Board explained in denying the August 27 Motion, in order to challenge the license amendment after it was issued, Petitioners had to file a petition under 10 C.F.R. § 2.206 to modify, suspend, or revoke the MPS3 license. Memorandum and Order, slip op. at 11-12 (citing Comanche Peak, CLI-92-12, 36 N.R.C. at 67). For this reason, the Board correctly denied the August 27 Motion. The Commission should affirm the Boards ruling.

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B. PETITIONERS FAILED TO MEET THE CRITERIA FOR A MOTION TO REOPEN UNDER 10 C.F.R. § 2.326

1. A Motion to Reopen Would Have Been Required The Board was also correct in denying Petitioners August 27 Motion to admit new contentions because the record of the uprate proceeding was closed at that time and could not be reopened save through a motion to reopen under 10 C.F.R. § 2.326, which Petitioners failed to make or support. When the Board denied Petitioners initial Petition to Intervene, the Board held that the proceeding was terminated. LBP-08-09, slip op. at 34. The Commission affirmed the Boards holding, CLI-08-17, and NRC case law supports it: the record is considered closed where the petitioners or intervenors have been dismissed. For example, in a prior proceeding also involving Petitioner CCAM, the Commission applied the factors in 10 C.F.R. § 2.326(a) when CCAM sought to introduce new contentions after its initial petition to intervene had been denied. See Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-06-4, 63 N.R.C. 32, 35, 37 (2006).

Petitioners concede that the Commissions issuance of a decision denying an appeal constitutes a final judgment that closes the record of a proceeding. Pet. Br. at 4. They argue, however, that the Secretarys referral to the Board of Petitioners July 31 Motion somehow served to keep the record open. Id. Petitioners provide no legal authority, and cite no case or regulation for this argument. Petitioners argument is groundless. The Commission referred Petitioners July 31 Motion to the Board on August 11, 2008. It was not until two days later, on August 13, 2008, that the Commission denied Petitioners appeal. Thus, Petitioners argument that the Commissions August 11 order served to hold in abeyance an order that had not yet been issued defies logic. Had the Commission intended such an effect, it would have manifested its 7

intent in either the Secretarys referral or in the August 13 denial of Petitioners appeal. Both documents are silent in this respect.

2. Petitioners Failed to Satisfy the Requisite Standards for Late Intervention and for Reopening a Closed Hearing Petitioners also argue that a motion to reopen was unnecessary because there was no hearing, so Petitioners were not parties, and only parties can move to reopen the record. Pet. Br.

at 7-8. That argument, however, only exposes another fatal flaw in Petitioners appeal. A non-party that desires to reopen a closed proceeding must satisfy both the requirements for late intervention (and thus become a party) and the standards to reopen a closed proceeding. Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 2), CLI-93-01, 37 N.R.C. 1, 3 (1993); Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 2), CLI-93-4, 37 N.R.C. 156, 161 (1993) (when the record has been closed, as in this case, a potential intevenor must satisfy [both] the late intervention and reopening criteria). Here Petitioners did neither.

Petitioners have not addressed the criteria for late intervention or to reopen the proceeding. The standards for late intervention are found at 10 C.F.R. § 2.309(c), 17 and failure 17 10 C.F.R. § 2.309(c) provides:

(c) Nontimely filings. (1) Nontimely requests and/or petitions and contentions will not be entertained absent a determination by the Commission, the presiding officer or the Atomic Safety and Licensing Board designated to rule on the request and/or petition and contentions that the request and/or petition should be granted and/or the contentions should be admitted based upon a balancing of the following factors to the extent that they apply to the particular nontimely filing:

(i) Good cause, if any, for the failure to file on time; (ii) The nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (iii) The nature and extent of the requestor's/petitioner's property, financial or other interest in the proceeding; (iv) The possible effect of any order that may be entered in the proceeding on the requestor's/petitioner's interest; (v) The availability of other means whereby the requestor's/petitioner's interest will be protected; (vi) The extent to which the requestor's/petitioner's interests will be represented by existing parties; (vii) The extent to which the requestor's/petitioner's participation will broaden the issues or delay the proceeding; and (viii) The extent to which the requestor's/petitioner's participation may reasonably be expected to assist in developing a sound record.

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to satisfy these was sufficient grounds for denial of the August 27 Motion, and the Board so pointed out. Memorandum and Order, slip op. at 12. 18 As the Commission has explained to these Petitioners in the same circumstances during a prior proceeding, Quite simply, if a party seeks to reopen a closed record and, in the process raises an issue that was not an admitted contention in the initial proceeding, it must demonstrate that raising this issue satisfies the requirements for a nontimely or late-filed contention. As with all other procedural requirements for reopening a closed proceeding, CCAM completely ignores this requirement. . . . Our procedural rules exist for a reason. We cannot consider a last-second reopening of an adjudication and a restart of Licensing Board proceedings based on a pleading that is defective on its face.

Millstone, CLI-06-4, 63 N.R.C. at 38. Here again, Petitioners have completely ignored the criteria for late intervention. 19 Petitioners have similarly ignored the criteria for reopening a closed record at 10 C.F.R.

§ 2.326. 20 Neither Petitioners August 27 Motion nor any of their previous motions address the (2) The requestor/petitioner shall address the factors in paragraphs (c)(1)(i) through (c)(1)(viii) of this section in its nontimely filing.

18 See Baltimore Gas & Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-25, 48 N.R.C. 325, 347 (1998) ([T]he Commission has itself summarily dismissed petitioners who failed to address the five factors for a late-filed petition.) (citation omitted); Boston Edison Co. (Pilgrim Nuclear Power Station), ALAB-816, 22 N.R.C. 461, 465-66 (1985) ([G]iven its failure even to address the . . . lateness factors, [a] [late] intervention petition [is] correctly denied because it [is] untimely.). The burden of persuasion on the lateness factors is on the tardy petitioner and . . . in order to discharge that burden, the petitioner must come to grips with those factors in the petition itself. Id. at 466 (footnote omitted). Late petitioners properly have a substantial burden in justifying their tardiness. Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant), CLI-75-4, 1 N.R.C.

273, 275 (1975). [T]he late petitioner must address each of [the] five factors and affirmatively demonstrate that, on balance, they favor permitting his tardy admission to the proceeding. Duke Power Co. (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-615, 12 N.R.C. 350, 352 (1980) (quoting Nuclear Fuel Services, CLI-75-4, supra).

19 Most recently, the Commission has reiterated that where a motion to reopen proposes a contention not previously part of the proceeding, the requirements for late filed contentions set out in 10 C.F.R. § 2.309(c) must also be satisfied. Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-28, 68 N.R.C.

__ (Nov. 6, 2008), slip op. at 13.

20 10 C.F.R. § 2.326 requires:

(a) A motion to reopen a closed record to consider additional evidence will not be granted unless the following criteria are satisfied:

(1) The motion must be timely. However, an exceptionally grave issue may be considered in the discretion of the presiding officer even if untimely presented; (2) The motion must address a significant safety or environmental issue; and (3) The motion must demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered initially.

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criteria in 10 C.F.R. § 2.326(a) or include affidavits to demonstrate that those criteria are met, as required by 10 C.F.R. § 2.326(b). Oyster Creek, CLI-08-28, slip op. at 23. Thus, even if -

contrary to fact - there were still a proceeding in which Petitioners could intervene (which, as previously discussed, there is not), Petitioners failure to even acknowledge, let alone address or satisfy, the criteria for late interventions and the criteria for reopening the record makes the Boards denial of Petitioners August 27 Motion clearly correct.

C. PETITIONERS FAILED TO MEET THE CRITERIA FOR NEW OR AMENDED CONTENTIONS UNDER 10 C.F.R. § 2.309(f)(2) AND THE CONTENTION ADMISSIBILITY CRITERIA OF 10 C.F.R. § 2.309(f)(1)(i)-

(vi)

Even if the proceeding had not been terminated, and even if Petitioners had addressed and satisfied the criteria for late intervention and for reopening the closed record, the Board would still have been correct in denying the August 27 Motion because Petitioners proffered contentions failed to satisfy the requirements for contention admissibility in Commission proceedings.

On appeal, Petitioners argue that without citing to legal authority, the Panel has burdened the petitioners with having to . . . demonstrate contention admissibility (10 C.F.R.

§§ 2.309(f)(1)(i)-(vi)) prior to filing new contentions. The regulations as written do not require that a petitioner do so. Pet. Br. at 7. This argument simply ignores the regulations in 10 C.F.R.

(b) The motion must be accompanied by affidavits that set forth the factual and/or technical bases for the movant's claim that the criteria of paragraph (a) of this section have been satisfied. Affidavits must be given by competent individuals with knowledge of the facts alleged, or by experts in the disciplines appropriate to the issues raised. Evidence contained in affidavits must meet the admissibility standards of this subpart. Each of the criteria must be separately addressed, with a specific explanation of why it has been met. When multiple allegations are involved, the movant must identify with particularity each issue it seeks to litigate and specify the factual and/or technical bases which it believes support the claim that this issue meets the criteria in paragraph (a) of this section.

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§§ 2.309(f)(1)(i)-(vi), which provide the criteria for admissibility of any proffered contention.

Petitioners do not seek to demonstrate that their new contentions meet these criteria.

Further, under 10 C.F.R. § 2.309(f)(2) (which Petitioners acknowledge applies to their new contentions), new or amended contentions must show that:

(i) The information upon which the amended or new contention is based was not previously available; (ii) The information upon which the amended or new contention is based is materially different than information previously available; and (iii) The amended or new contention has been submitted in a timely fashion based on the availability of the subsequent information.

Petitioners fail to address these standards at all in the August 27 Motion. On appeal, Petitioners argue that they do address these standards in the August 7 Motion. Pet. Br. at 7. The August 7 Motion, however, refers only to hypothetical, prospective contentions, and merely asserts in one sentence that Petitioners meet the criteria of 10 C.F.R. § 2.309(f)(2) without providing any support for that claim. 21 For the first time on appeal, Petitioners attempt to show that their contentions satisfy the 10 C.F.R. § 2.309(f)(2) criteria. Pet. Br. at 5-6. It is well established that a petitioner may not make new arguments for the first time on appeal. See Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-22, 60 N.R.C. 125, 140 (2004); Hydro Resources, Inc.

(2929 Coors Road, Suite 101, Albuquerque, NM 87120), CLI-00-8, 51 N.R.C. 227, 243 (2000);

Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-96-7, 43 N.R.C. 235, 260 &

n.19 (1996). Even if such arguments were allowed, they fail.

Petitioners new Contention 1 states that [t]emperature spikes in the hot legs of the Millstone 3 reactor - and the use of a new 4-second filter - present critical new and unreviewed 21 In addition, only the first of the two new contentions raised in the August 27 Motion is identified as a prospective contention in the August 7 Motion.

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safety issues not addressed by the application. August 27 Motion at 2. The information that Petitioners contend is new - that temperature spikes were observed in the hot legs and that Dominion planned to implement a four-second filter to address the spikes - is actually not new, but has been available in the LAR since its submittal almost a year and a half ago. See LAR, , SPU Licensing Report (ADAMS Accession No. ML072000400) at 2.4-10. As the Board explained, [a]lthough discussed at the ACRS meeting, this is not new information merely because CCAM was not aware of it earlier. October 27 Order at 13. As the information upon which Contention 1 is based is not new, but instead has been available to Petitioners since July 2007, Contention 1 fails to satisfy the criterion in 10 C.F.R. § 2.309(f)(2)(i) that the information upon which the contention is based was not previously available.

Petitioners new Contention 2 states that [t]he NRCs review of the Millstone Unit 3 uprate application does not comply with mandatory legal standards set forth in the NRCs Review Standard for Extended Power Uprates. August 27 Motion at 11. There is nothing new about this contention - as the Board puts it, Contention 2 is essentially a repackaged original Contention 6, which this Board and the Commission have already rejected.

Memorandum and Order at 14 (citing LBP-08-09, slip op. at 27-28); CLI-08-17, slip op. at 13-14). The basis for Petitioners claim that this contention is new is a quotation from the ACRS transcript regarding analysis that the NRC Staff conducted, or did not conduct, during its review of the LAR. See August 27 Motion at 11 & n.7; Declaration of Arnold Gundersen Supporting Connecticut Coalition Against Millstone in its Petition for Late Filed Contentions Due to New Information (Aug. 26, 2008) at ¶¶ 14.1-14.7. Whether information on the NRC Staffs review is new or not new is irrelevant, because such information is outside the scope of this proceeding. It is well established that a licensing proceeding is not the proper forum for challenging the NRC 12

Staffs regulatory review process. See, e.g., Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 N.R.C. 328, 334 (1999). Thus, Contention 2 also fails to satisfy the criteria for new or amended contentions.

CONCLUSION For the reasons stated above, the Commission should affirm the Boards Memorandum and Order and deny Petitioners appeal.

Respectfully Submitted,

/Signed electronically by Matias F. Travieso-Diaz/

David R. Lewis Matias F. Travieso-Diaz Stefanie M. Nelson PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, NW Washington, DC 20037-1122 (202) 663-8000 Lillian M. Cuoco Senior Counsel Dominion Resources Services, Inc.

120 Tredegar Street, RS-2 Richmond, VA 23219 (804) 819-2684 Counsel for Dominion Nuclear Connecticut, Inc.

Dated: November 17, 2008 13

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

)

Dominion Nuclear Connecticut, Inc. ) Docket No. 50-426-OLA

)

(Millstone Nuclear Power Station, Unit 3) ) ASLB No. 08-862-01-OLA

)

CERTIFICATE OF SERVICE I hereby certify that copies of Dominion Nuclear Connecticuts Brief in Opposition to Appeal of Connecticut Coalition Against Millstone and Nancy Burton was provided to the Electronic Information Exchange for service to those individuals on the service list in this proceeding, reproduced below, this 17th day of November 2008.

Hon. Dale E. Klein Hon. Kristine L. Svinicki Chairman Commissioner U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555 Hon. Peter B. Lyons Hon. Gregory B. Jaczko Commissioner Commissioner U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555 Washington, DC 20555

  • Secretary *Office of Commission Appellate Attn: Rulemakings and Adjudications Staff Adjudication Mail Stop O-16 C1 Mail Stop O-16 C1 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 secy@nrc.gov, hearingdocket@nrc.gov OCAAMAIL@NRC.GOV
  • Administrative Judge *Administrative Judge William J. Froehlich, Chair Dr. Paul B. Abramson Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 wjf1@nrc.gov pba@nrc.gov
  • Administrative Judge *Nancy Burton Dr. Michael F. Kennedy 147 Cross Highway Atomic Safety and Licensing Board Panel Redding Ridge, CT 06876 U.S. Nuclear Regulatory Commission NancyBurtonCT@aol.com Washington, DC 20555-0001 mfk2@nrc.gov
  • David Roth, Esq. *Lloyd Subin, Esq.

Office of the General Counsel Office of the General Counsel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: david.roth@nrc.gov lbs3@nrc.gov

/Signed electronically by Matias F. Travieso-Diaz/

Matias F. Travieso-Diaz 2

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