ML092330329
| ML092330329 | |
| Person / Time | |
|---|---|
| Site: | Watts Bar  |
| Issue date: | 08/21/2009 |
| From: | Bessette P Morgan, Morgan, Lewis & Bockius, LLP, Tennessee Valley Authority |
| To: | Abramson P, Gary Arnold, Lawrence Mcdade Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-391-OL, ASLBP 09-893-01-OL-BD01, RAS 16235 | |
| Download: ML092330329 (13) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Lawrence G. McDade, Chair Dr. Paul B. Abramson Dr. Gary S. Arnold
)
In the Matter of )
) Docket No. 50-391-OL TENNESSEE VALLEY AUTHORITY )
) August 21, 2009 (Watts Bar Nuclear Plant Unit 2) )
)
TENNESSEE VALLEY AUTHORITYS ANSWER OPPOSING THE MOTION TO PERMIT LATE ADDITION OF CO-PETITIONERS TO SOUTHERN ALLIANCE FOR CLEAN ENERGYS PETITION TO INTERVENE AND ADMIT THEM AS INTERVENORS In accordance with 10 C.F.R. § 2.323(c), Tennessee Valley Authority (TVA) hereby timely files its Answer to the Motion to Permit Late Addition of Co-Petitioners to Southern Alliance for Clean Energys Petition to Intervene and Admit Them as Intervenors (Motion) filed by the Tennessee Environmental Council, We the People, the Sierra Club, and Blue Ridge Environmental Defense League (collectively, Additional Petitioners) and the Southern Alliance for Clean Energy (SACE) (collectively, Petitioners), on August 14, 2009. As explained below, the Motion is both untimely and meritless and should be denied.
I. BACKGROUND As explained in TVAs Answer1 to the Petition,2 the Commission published the Hearing Notice for this operating license proceeding in the Federal Register on May 1, 2009, setting a 1
See Tennessee Valley Authoritys Answer Opposing the Southern Alliance for Clean Energy, Et Al. Petition to Intervene and Request for Hearing at 4-5 (Aug. 7, 2009) (TVA Answer).
2 Petition to Intervene and Request for Hearing (July 13, 2009) (Petition).
DB1/63538832
clear, firm deadline of June 30, 2009 for filing any request for hearing and petition to intervene.3 On June 16, 2009, SACE filed a Request for Extension of Time to Submit Hearing Request/Petition to Intervene, seeking a two-week extension of time (SACEs Request for Extension of Time). In that Request, SACE cited difficulties in accessing certain documents it needed to prepare its contentions and also scheduling conflicts of two of its experts.4 On June 18, 2009, TVA filed its Response to SACEs Request for Extension of Time, wherein it agreed to SACEs request and noted that it had offered to provide SACE with any requested information and documents in a timely manner.5 Importantly, during several phone calls between counsel for TVA and counsel for SACE conducted pursuant to the consultation obligations of 10 C.F.R.
§ 2.323(a), Counsel for SACE never mentioned that the request for extension of time applied to any other petitioners, or that any other petitioners were having similar difficulties in accessing documents or had similar schedule conflicts. On June 24, the Commission granted SACE until July 14 to file a request for hearing and petition to intervene. On July 13, SACE filed its Petition, joined by the Additional Petitioners, but the Petition included no justification for or even any discussion of their non-timely filing.
On August 7, 2009, TVA and the NRC Staff filed answers to the Petition, objecting to the inclusion of the Additional Petitioners.6 Petitioners filed the instant Motion on August 14, 2009.
3 See Notice of Receipt of Update to Application for Facility Operating License and Notice of Opportunity for Hearing for the Watts Bar Nuclear Plant, Unit 2 and Order Imposing Procedures for Access to Sensitive Unclassified Non-Safeguards Information and Safeguards Information for Contention Preparation, 74 Fed.
Reg. 20,350, 20,350-51 (May 1, 2009) (Hearing Notice).
4 See SACEs Request for Extension of Time at 1-2.
5 See Response of the Tennessee Valley Authority to Request for Extension of Time to Submit Hearing Request/Petition to Intervene by Southern Alliance for Clean Energy (June 18, 2009).
6 See TVA Answer at 2, 16-18; NRC Staffs Answer to Petition to Intervene and Request for Hearing at 13 (Aug. 7, 2009). TVA also explained that no individual has entered an appearance on behalf of the Additional Petitioners, contrary to 10 C.F.R. § 2.314(b). See TVA Answer at 17-18. This deficiency was not cured with the Motion, and as of this date, no individual has entered an appearance or otherwise shown a willingness to accept service of documents on behalf of the Additional Petitioners.
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II. LEGAL STANDARDS FOR THIS MOTION Petitioners Motion, filed pursuant to 10 C.F.R. § 2.323(a),7 is subject to the timeliness requirements in that regulation: A motion must be made no later than ten (10) days after the occurrence or circumstance from which the motion arises.
Substantively, the Motion seeks to have the Board grant the Additional Petitioners untimely intervention request. This request will not be entertained unless it satisfies the eight-factor balancing test set forth in 10 C.F.R. § 2.309(c)(1) for non-timely filings.8 The burden is on the petitioner to demonstrate that a balancing of these factors weighs in favor of granting the petition.9 The eight factors in Section 2.309(c)(1) are not of equal importance: absence of good cause (factor one) is the first and principal test.10 The Commission has stated that [l]acking a favorable showing on good cause, a petitioner must show a compelling case on the remaining factors.11 Factor seven (likelihood of substantial broadening of the issues and delay of the 7
See Motion at 2.
8 The eight factors are: (1) good cause, if any, for the failure to file on time; (2) the nature of the requestors/petitioners right under the Act to be made a party to the proceeding; (3) the nature and extent of the requestors/petitioners property, financial or other interest in the proceeding; (4) the possible effect of any order that may be entered in the proceeding on the requestors/petitioners interest; (5) the availability of other means whereby the requestors/petitioners interest will be protected; (6) the extent to which the requestors/petitioners interests will be represented by existing parties; (7) the extent to which the requestors/petitioners participation will broaden the issues or delay the proceeding; and (8) the extent to which the requestors/petitioners participation may reasonably be expected to assist in developing a sound record. 10 C.F.R. § 2.309(c)(1)(i)-(vii).
9 Tex. Utils. Elec. Co. (Comanche Peak Steam Electric Station, Units 1 & 2), CLI-88-12, 28 NRC 605, 609 (1988), recons. denied, CLI-89-6, 29 NRC 348 (1989), affd sub nom. Citizens for Fair Util. Regulation v.
NRC, 898 F.2d 51 (5th Cir. 1990).
10 State of New Jersey (Dept of Law & Pub. Safetys Requests Dated Oct. 8, 1993), CLI-93-25, 38 NRC 289, 294-95 (1993).
11 Id. at 296; see also Tex. Utils. Elec. Co. (Comanche Peak Steam Electric Station, Units 1 & 2), CLI-92-12, 36 NRC 62, 74 (1992) (Where no good excuse is tendered for tardiness, the petitioners demonstration on the other factors must be particularly strong.) (citation and internal punctuations omitted).
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proceeding) is also significant.12 Factors five (availability of other means) and six (interests represented by other parties) are entitled to the least weight.13 III. THE MOTION SHOULD BE DENIED A. The Motion Is Untimely As a preliminary matter, the Motion itself is not timely. As noted above, a motion filed under 10 C.F.R. § 2.323(a) must be filed within ten days of the occurrence or circumstance from which the motion arises.14 The Petitioners make no attempt to explain the timeliness of their Motion under this standard,15 and, therefore, it should be denied for this reason alone.
According to the Petitioners, at the time SACE filed its June 16, 2009 motion for extension of time, the Additional Petitioners had not yet decided to join SACE in the Petition to Intervene.16 Clearly, however, by the time the Petition was filed on July 13, the Additional Petitioners had made their decision. Yet, thirty-two days passed between the filing of the Petition and the filing of the instant Motion. Petitioners do not explainnor do they seek to show good cause forthis inordinate delay.
Petitioners do not explicitly argue that the August 7 filing of the Answers of TVA and the NRC Staff, objecting to the inclusion of the Additional Petitioners, was the occurrence or circumstance from which the motion arises,17 but this appears to be Petitioners position. If that is the case, it would be a novel and unprecedented standard: that a party may submit a motion to 12 See, e.g., Project Mgmt. Corp. (Clinch River Breeder Reactor Plant), ALAB-354, 4 NRC 383, 395 (1976).
13 See Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), LBP-00-8, 51 NRC 146, 154 (2000)
(citing Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 & 2), CLI-86-8, 23 NRC 241, 244-45 (1986)).
14 10 C.F.R. § 2.323(a).
15 See generally Motion (arguing only that the Petition should be granted under Section 2.309(c) and ignoring Section 2.323(c) entirely).
16 See id. at 2.
17 10 C.F.R. § 2.323(a).
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cure any oversight or defect in their pleadings within ten days of the time an opposing party files an objection to the defect. On the contrary, Petitioners cannot simply wait for TVA and the NRC Staff to identify a fundamental deficiency in their pleadings before seeking to cure it. The Board should reject this theory and deny the Motion as untimely.
B. The Additional Petitioners Untimely Intervention Request Should Be Denied In addition to the lateness of their Motion, Petitioners also fail to carry their burden of showing that the eight-factor balancing test set forth in 10 C.F.R. § 2.309(c)(1) for non-timely filings weighs in their favor.
- 1. Factor 1: Good Cause As to the first and most important good cause factor, Petitioners rely upon SACEs Request for Extension of Time,18 which was later approved by the Secretary of the Commission.19 Petitioners explain that they should have requested the Secretary to expand the scope of her June 24, 2009, Order [sic] and that their failure to do so was an administrative error.20 These statements fail to carry Petitioners burden of demonstrating good cause. First, any request to the Secretary to expand the scope of the June 24 Order would not, as Petitioners suggest, have been ministerial in nature or in accordance with the Commissions regulations.21 Specifically, the Motion does not state when the Additional Petitioners decided to join SACE in its Petition. If the Additional Petitioners decided to join after June 30the deadline for petitioners under the Hearing Noticethen their intervention was late and could not be cured by a simple request to the Secretary to expand the scope of the June 24 Order. If such decisions 18 See Motion at 2.
19 See Commission Order (June 24, 2009) (unpublished) (June 24 Order).
20 See Motion at 2-3.
21 See id.
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were made before June 30, then under 10 C.F.R. § 2.323(b) and (c), a separate extension motion would have required prior sincere effort to contact TVA and the Staff to resolve the issue, and there would have been an opportunity for the other parties to respond. This did not occur. Either way, a simple request to the Secretary would not have sufficed.22 Next, the Petitioners cite to counsels administrative error given the significant pressures of preparing the Petition to Intervene.23 In evaluating this reason, however, the Board must consider that Petitioners are not pro se petitioners unschooled in the ways of regulatory proceedings, but instead purport to be represented by self-acknowledged experienced nuclear counsel.24 The failure of a party represented by experienced litigators to promptly file a petition to intervene does not constitute good cause.25 Further, by seeking to intervene in this proceeding, Petitioners must accept the associated burdens of compliance with published 22 Cf. Comanche Peak, CLI-88-12, 28 NRC at 610 (Obviously . . . a party has no right to substitute itself into a proceeding. Instead, each party must demonstrate that it is entitled to intervene on its own merits.).
23 Motion at 2-3.
24 In particular, Petitioners lead counsel claims to have many years of experience representing:
citizen groups and individuals in a wide range of environmental cases relating to nuclear facility safety, radioactive and chemical waste disposal, National Environmental Policy Act compliance, environmental justice, Clean Water Act and Clean Air Act enforcement, and public access to government information. A nationally recognized expert in the field of nuclear safety law, she was instrumental in the shutdown of the unsafe Yankee Rowe nuclear power plant in western Massachusetts and the closing of the severely contaminated Sequoyah Fuels uranium processing factory in eastern Oklahoma. Recently, she won a landmark decision from the Nuclear Regulatory Commission denying a construction permit application for a uranium enrichment plant in northern Louisiana on environmental justice grounds.
Harmon, Curran, Spielberg & Eisenberg, LLP, Firm Personnel, http://www.harmoncurran.com/personnel.html (last visited August 20, 2009) (emphasis added). Counsels website further explains that seventeen years ago she was the author of The Public As Enemy: NRC Assaults on Public Participation in the Regulation of Operating Nuclear Power Plants (Union of Concerned Scientists:
1992). Id.
25 See New Jersey, CLI-93-25, 38 NRC at 295; see also Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-98-21, 48 NRC 185, 201(1998) (We recognize that [the petitioner] is acting pro se in this proceeding and we therefore might not expect it always to meet the same high standards to which we hold entities represented by lawyers. Even so, [the petitioner] is still expected to comply with our basic procedural rules - especially ones so simple to understand as those establishing filing deadlines.).
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deadlines and the Rules of Practice.26 Petitioners failure to carefully read the Commissions Order granting SACEs extension request is also insufficient.27 Thus, the Board should reject Petitioners attempt to justify its late filing based on the alleged pressures of preparing a petition to intervene.
In sum, the Additional Petitioners apparent ambivalence regarding intervention, coupled with the acknowledged error of experienced counsel, does not constitute good cause. Petitioners cite no legal authority for such a theory, and Petitioners argument is contrary to Commission precedent. Because Petitioners have failed to show good cause, they must show a compelling case on the remaining factors.28
- 2. Factors 2 to 4: Standing-Related Factors As to factors two, three, and four (the nature of the petitioners right to be made a party, its property, financial or other interest in the proceeding, and the possible effect of any order on such interest), TVA did not dispute the standing of the Additional Petitioners, and it does not dispute Petitioners assertions regarding these factors in the Motion.
- 3. Factor 5: Availability of Other Means to Protect Interest As to the fifth factor (the availability of other means to protect petitioners interest), the Motion asserts that the Additional Petitioners will have no other means of protecting their 26 See, e.g, Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 63 Fed. Reg. 41,872, 41,874 (Aug. 5, 1998) (updated policy statement) ([T]he Commission recognizes that the boards will be unable to achieve the objectives of this policy statement unless the parties satisfy their obligations. The parties, therefore, are expected to adhere to the time frames specified in the Rules of Practice . . . and the scheduling orders in the proceeding.); see also Kan. Gas & Elec. Co. (Wolf Creek Generating Station, Unit No. 1), ALAB-279, 1 NRC 559, 576-77 (1975) (observing that the Commission has given licensing boards leeway in evaluating intervention petitions drafted by pro se petitioners or counsel new to the field, but declining to do so because the petition bears the imprimatur of experienced counsel who could be expected to file a petition with the clarity and specificity demanded by the Commissions regulations).
27 See Fla. Power & Light Co. (Calvert Cliffs Nuclear Power Plant, Units 1 & 2, etc.), CLI-06-21, 64 NRC 30, 33
([w]e cannot agree that [the petitioners] failure to read carefully the governing procedural regulations constitutes good cause for accepting its late-filed petition) (quoting N. Atl. Energy Serv. Corp. (Seabrook Station, Unit 1), CLI-99-6, 49 NRC 201, 223 (1999)).
28 See, e.g., State of New Jersey, CLI-93-25, 38 NRC at 296.
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interests if they are denied intervention.29 This claim is belied by Petitioners later assertion that the Additional Petitioners are merely joining a Petition to Intervene that has already been submitted.30 In other words, as SACE is already asserting the very same claims they seek to raise, the interests of the Additional petitioners are adequately protected.
- 4. Factor 6: Interests Represented By Existing Parties As to the sixth factor (extent to which petitioners interests will be represented by existing parties), the Motion asserts that if the Additional Petitioners are denied intervention, and if for any reason SACE is later forced to withdraw from this proceeding, no other parties will be left in this proceeding to represent the interests of the Additional Petitioners.31 To the extent this statement may be true, it is undermined by Petitioners assertions with respect to the nextand more importantseventh factor.32
- 5. Factor 7: Broadening the Issues or Delaying the Proceeding Regarding the seventh factor (extent to which petitioners participation will broaden the issues or delay the proceeding), Petitioners assert that because Co-Petitioners seek only to join a Petition to Intervene that has already been submitted, their participation cannot be expected to have any effect on the breadth or length of the proceeding.33 This statement is contradicted by the Petitioners previous assertion that the Additional Petitioners must be permitted intervention because of the possibility of future withdrawal by SACE.34 If SACE were later to withdraw for 29 Motion at 3.
30 Id. at 4.
31 Id. at 3. Petitioners do not explain the circumstances under which SACE might be forced to withdraw. No party has objected to SACEs standing, and if the Board rules that all of the proposed contentions are inadmissible, then neither SACE nor the Additional Petitioners would be entitled to a hearing.
32 See Clinch River, ALAB-354, 4 NRC at 395.
33 Motion at 3-4.
34 See id. at 3.
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some unspecified reason, then the continued intervention by the Additional Petitioners would most certainly increase the breadth and length of this proceeding.35
- 6. Factor 8: Ability to Assist in Developing a Sound Record The eighth factor (petitioners ability to assist in developing a sound record), also weighs against Petitioners. On this factor, Petitioners assert that they have demonstrated their ability to assist in developing the record by co-sponsoring four contentions that are supported by factual and legal bases, and that the Additional Petitioners expect to contribute their knowledge of local environmental and economic conditions in support of Petitioners Contentions 4 and 7.36 To make the required showing on this factor, a petitioner has must provide specific and detailed information.37 For example, a petitioner must set out with as much particularity as possible the precise issues it plans to cover, identify its prospective witnesses, and summarize their proposed testimony such that it can demonstrate [its] special expertise.38 Beyond their vague assertions related to Contentions 4 and 7, the Additional Petitioners do not identify the additional witnesses they may proffer in support of those contentionsother than witnesses already proffered by SACEnor do they explain what additional testimony or evidence they will present, much less do so with the requisite specificity and detail.
Moreover, Petitioners claims appear to be undermined by their previous assertions regarding the manner in which the Petition was prepared. The Additional Petitioners apparently only decided to join SACE in its Petition at the last minute, and were not involved, in any 35 Cf. Tex. Utils. Elec. Co. (Comanche Peak Steam Electric Station, Unit 2), CLI-93-4, 37 NRC 156, 167 (1993)
(finding that the potential for delay if the petition is granted, weighs heavily against Petitioner because it will result in the establishment of an entirely new formal proceeding, not just the alteration of an already established hearing schedule).
36 Motion at 4.
37 Comanche Peak, CLI-92-12, 36 NRC at 74 (quoting Comanche Peak, CLI-88-12, 28 NRC at 611).
38 Miss. Power & Light Co. (Grand Gulf Nuclear Station, Units 1 & 2), ALAB-704, 16 NRC 1725, 1730 (1982).
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significant way, in the preparation of the Petition.39 Accordingly, it is far from clear that the Additional Petitioners have made or will make any contribution to the record in this proceeding.40 In sum, the most important factorsgood cause and the breadth and length of this proceedingweigh strongly against Petitioners Motion, as do the availability of other means to protect the Additional Petitioners interests and their failure to demonstrate the ability to assist in developing a sound record. Evaluation of the remaining factors does not show the requisite compelling case necessary to overcome Petitioners failure to show good cause. Thus, under 10 C.F.R. § 2.309(c)(1) the Motion must be rejected.
39 See Motion at 2-3.
40 Also, if the preparation of the initial pleading by counsel for SACE was such a burden that the addition of new petitioners could not accomplished correctly, see Motion at 2, then it is difficult to understand how the inclusion of the Additional Petitioners will assist in the development a sound record throughout this proceeding. See Licensing Board Order (Denying Citizens Motion for Leave to Add a Contention and Motion to Add a Contention) at 9-10 (Apr. 10, 2007), AmerGen Energy Co., LLC (License Renewal for Oyster Creek Nuclear Generating Station) (unpublished) (holding that a similar lack of resources argument would have the anomalous effect of promoting the acceptance of non-timely contentions by that class of petitioners who, due to lack of resources, would be least likely to assist in development of a sound record).
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IV. CONCLUSION For reasons discussed above, the Petitioners Motion should be denied and the Additional Petitioners should not be permitted the opportunity to intervene in this proceeding.
Respectfully submitted, Signed (electronically) by Paul M. Bessette Kathryn M. Sutton, Esq.
Paul M. Bessette, Esq.
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: 202-739-5738 E-mail: pbessette@morganlewis.com Edward J. Vigluicci, Esq.
Office of the General Counsel Tennessee Valley Authority 400 W. Summit Hill Drive, WT 6A-K Knoxville, TN 37902 Phone: 865-632-7317 E-mail: ejvigluicci@tva.gov Counsel for TVA Dated in Washington, D.C.
this 21st day of August 2009 11
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION ATOMIC SAFETY AND LICENSING BOARD Before Administrative Judges:
Lawrence G. McDade, Chair Dr. Paul B. Abramson Dr. Gary S. Arnold
)
In the Matter of )
) Docket No. 50-391-OL TENNESSEE VALLEY AUTHORITY )
) August 21, 2009 (Watts Bar Nuclear Plant Unit 2) )
)
CERTIFICATE OF SERVICE I hereby certify that, on August 21, 2009, a copy of Tennessee Valley Authoritys Answer Opposing the Motion to Permit Late Addition of Co-Petitioners to Southern Alliance for Clean Energys Petition to Intervene and Admit Them as Intervenors, was filed electronically with the Electronic Information Exchange on the following recipients:
U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Office of the General Counsel Panel Mail Stop: O-15D21 Mail Stop: T-3F23 Washington, DC 20555-0001 Washington, DC 20555-0001 Edward Williamson, Esq.
Lawrence G. McDade, Chair E-mail: elw2@nrc.gov Administrative Judge David Roth, Esq.
E-mail: lgm1@nrc.gov E-mail: david.roth@nrc.gov Andrea Jones, Esq.
Paul B. Abramson E-mail: andrea.jones@nrc.gov Administrative Judge Jeremy M. Suttenberg, Esq.
E-mail: pba@nrc.gov E-mail: jeremy.suttenberg@nrc.gov Brian Newell, Paralegal Gary S. Arnold E-mail: bpn1@nrc.gov Administrative Judge E-mail: gxa1@nrc.gov Wen Bu, Law Clerk OGC Mail Center DB1/63538832
E-mail: wxb3@nrc.gov E-mail: OGCMailCenter@nrc.gov U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of Commission Appellate Office of the Secretary of the Adjudication Commission Mail Stop: O-16C1 Mail Stop: O-16C1 Washington, DC 20555-0001 Washington, DC 20555-0001 OCAA Mail Center Hearing Docket E-mail: ocaamail@nrc.gov E-mail: hearingdocket@nrc.gov Diane Curran, Esq.
Matthew D. Fraser, Esq.
Representative of Southern Alliance for Clean Energy (SACE)
Matthew Harmon, Curran, Spielberg &
Eisenberg, L.L.P.
1726 M Street N.W., Suite 600 Washington, D.C. 20036 E-mail: dcurran@harmoncurran.com mfraser@harmoncurran.com Signed (electronically) by Paul M. Bessette Paul M. Bessette, Esq.
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: 202-739-5738 E-mail: pbessette@morganlewis.com 2