ML100480230
| ML100480230 | |
| Person / Time | |
|---|---|
| Site: | Bellefonte  |
| Issue date: | 02/17/2010 |
| From: | Chandler C, Chandler L, O'Neill M, Sutton K, Vance S, Vigluicci E Morgan, Morgan, Lewis & Bockius, LLP, Tennessee Valley Authority |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-438-CP, 50-439-CP, ASLBP 10-896-01-CP-BD01, RAS 17246 | |
| Download: ML100480230 (7) | |
Text
DB1/64404489.1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
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In the Matter of
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Docket Nos. 50-438 and 50-439 TENNESSEE VALLEY AUTHORITY
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February 17, 2010 (Bellefonte Nuclear Power Plant, Units 1 and 2) )
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TENNESSEE VALLEY AUTHORITYS ANSWER OPPOSING PETITIONERS MOTION FOR ADDITIONAL TIME TO FILE REPLY I.
INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c) and the Order of the Atomic Safety and Licensing Board (Board) of February 12, 2010, Tennessee Valley Authority (TVA) files this Answer in opposition to the Blue Ridge Environmental Defense League (BREDL), Bellefonte Efficiency and Sustainability Team, and Southern Alliance for Clean Energy (collectively, Petitioners)
February 16, 2010 Motion for Additional Time in Which to (1) File a Notice of Appearance of Counsel and (2) Reply to TVA and NRC Staff Answers to Petition for Intervention (Motion).
As discussed more fully below, TVA opposes the Motion and urges that it be denied.
II.
BACKGROUND More than a month agoon January 15, 2010the Board issued an Initial Prehearing Order requiring TVA and the NRC Staff to file their Answers to Joint Petitioners May 8, 2009 Petition for Intervention and Request for Hearing (Petition) by January 29, 2010.1 The Board further ordered the Petitioners that they were to file any reply to TVAs and the NRC Staffs 1
Memorandum and Order (Initial Prehearing Order) at 3 (Jan. 15, 2010).
Answers to their Petition no later than February 5, 2010.2 The Petitioners, however, did not file a reply by February 5, 2010. In addition, in that January 15 Initial Prehearing Order, the Board required each representative for each participant to file a notice of appearance no later than January 22, 2010.3 Again, the Petitioners made no such filing before January 22, 2010. And subsequently, in a January 21, 2010 Order, the Board requested that TVA, the NRC Staff, and the Petitioners confer and prepare a joint report regarding their availability for an oral argument on the Petition.4 During the discussion to prepare this joint report, we understand that Petitioners never mentioned to Staff Counsel the need for an extension or that they were attempting to retain counsel.
The Petitioners did not file a Reply until February 16, 2010, only doing so after being directed by the Board in its February 12 Order.5 Likewise, the Petitioners failed to file a notice of appearance regarding representation of SACE until February 16, 2010, cavalierly ignoring the Boards January 22 deadline. Notwithstanding their failure to file a reply might be construed as a waiver, the Petitioners, for the first time in their pending Motion, ask that the Board accept these untimely filings because of difficulties obtaining legal representation.6 As discussed below, the pending Motion should be denied because the Petitioners fail to demonstrate the existence of unavoidable and extreme circumstances.7 This failure to act 2
Id.
3 Id.
4 Memorandum and Order (Scheduling Initial Prehearing Conference) at 3 (Jan. 21, 2010).
5 Memorandum and Order (Submission of Joint Petitioners Reply Pleading) at 2 (Feb. 12, 2010).
6 Motion at 1.
7 See Balt. Gas & Elec. Co. (Calvert Cliffs Nuclear Power Plant, Units 1 & 2), CLI-98-25, 48 NRC 325, 342 (1998). TVA does not oppose the filing of the Notice of Appearance for James B. Dougherty (Feb. 16, 2010) on behalf of BREDL. However, SACE previously failed to demonstrate that it has representational standing because it did not authorize any individual to appear before this Board on their behalf. Unlike the situation in S.C. Elec. & Gas Co. (Virgil C. Summer Nuclear Station, Units 2 & 3), CLI-10-1, slip op. at 7 (Jan. 7, 2010),
SACE blatantly ignored the Boards Initial Prehearing Order at 2, directing each representative for each
within the required deadlinescombined with their silence throughout the oral argument planning periodbelies any claim of good cause.
III.
ARGUMENT In accordance with 10 C.F.R. § 2.307(a), the Board may grant extensions of time only for good cause. Significantly, the Commission has interpreted good cause, in the context of adjudicatory filings, to require a showing of unavoidable and extreme circumstances.8 As the Commission stated in its 1998 Policy Statement: The Commission, of course, recognizes that the boards may grant extensions of time under some circumstances, but this should be done only when warranted by unavoidable and extreme circumstances.9 No such circumstances are presented to the Board in this proceeding. In the Motion, the Petitioners only explanation for this delay is that they were diligently attempting to secure the services of counsel and ran into difficulties obtaining such legal representation due to funding constraints.10 This simply does not meet the standard of unavoidable and extreme circumstances.
The Commission has made clear that While a board should endeavor to conduct the proceeding in a manner that takes account of the special circumstances faced by any participant, the fact that a party may have personal or other obligations or possess fewer resources than others to devote to the proceeding does not relieve that party of its hearing obligations.11 participant to file a notice of appearance by January 22, 2010, and instead, only submitted this information with its Reply, which, as discussed below, is inexcusably late.
8 See Calvert Cliffs, CLI-98-25, 48 NRC at 342 (holding that construction of good cause to require a showing of unavoidable and extreme circumstances constitutes a reasonable means of avoiding undue delay); see also Hydro Res., Inc. (2929 Coors Road Suite 101, Albuquerque, NM 87210), CLI-99-1, 49 NRC 1, 3 n.2 (1999) (We caution all parties in this case, however, to pay heed to the guidance in our policy statement that ordinarily only unavoidable and extreme circumstances provide sufficient cause to extend filing deadlines.).
9 Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 21 (1998).
10 Motion at 1.
11 Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 454 (1981) (emphasis added).
Even if these difficulties might, arguably, justify modifying the deadline for the Reply, the Petitioners were still under an affirmative obligation to file a motion requesting an extension by February 2, 2010.12 The Petitioners provide no explanation for this oversight. Rather they remained mute during the entire period between the Boards January 15 Initial Prehearing Order and February 16, and, to our knowledge, never notified the Board or other participants of the possible need for an extension. Thus, the Petitioners failure to retain counsel in a timely manner does not constitute special or unavoidable and extreme circumstances, as contemplated by the Commission.13 12 The Petitioners initial status as a pro se participant does not excuse its failure to comply with this requirement.
[T]he right of participation accorded pro se representatives carries with it the corresponding responsibilities to comply with and be bound by the same agency procedures as all other parties, even where a party is hampered by limited resources. Metro. Edison Co. (Three Mile Island Nuclear Station, Unit 1), ALAB-772, 19 NRC 1193, 1247 (1984). In particular, pro se petitioners are expected to comply with our basic procedural rules especially ones as simple to understand as those establishing filing deadlines. Yankee Atomic Elec. Co.
(Yankee Nuclear Power Station), CLI-98-21, 48 NRC 185, 201 (1998).
13 See Babcock & Wilcox (Apollo, Pa. Fuel Fabrication Facility), LBP-92-24, 36 NRC 149, 154 (1992)
(appreciating the difficulties involved in trying... to obtain counsel on a pro bono or reduced-rate basis, but indicating that petitioners could have made considerably more progress in retaining counsel given that nearly 2 1/2 months have passed since the publication of the [hearing] notice in the Federal Register);
Offshore Power Systems (Manufacturing License for Floating Nuclear Power Plants), LBP-75-67, 2 NRC 813, 817 (1975) (While we sympathize with the fact that there are economic considerations in retaining legal counsel, we cannot countenance any party continuously claiming the right to counsel while indefinitely refusing to obtain counsel. The unused right to counsel does not vitiate the obligations of a party to prosecute his case in accordance with the requirements of the Commission's Rules of Practice.).
IV.
CONCLUSION For the foregoing reasons, the Motion should be denied and the Board should not accept the Petitioners untimely Reply.
Respectfully submitted,
/Signed (electronically) by/
Edward J. Vigluicci, Esq.
Kathryn M. Sutton, Esq.
Scott A. Vance, Esq.
Lawrence J. Chandler, Esq.
Christopher C. Chandler, Esq.
Morgan, Lewis & Bockius LLP Office of the General Counsel 1111 Pennsylvania Avenue, N.W.
Tennessee Valley Authority Washington, D.C. 20004 400 W. Summit Hill Drive, WT 6A-K Phone: 202-739-5738 Knoxville, TN 37902 Fax: 202-739-3001 Phone: 865-632-7317 E-mail: ksutton@morganlewis.com Fax: 865-632-2422 E-mail: lchandler@morganlewis.com E-mail: ejvigluicci@tva.gov E-mail: savance@tva.gov Martin J. ONeill, Esq.
E-mail: ccchandler0@tva.gov Morgan, Lewis & Bockius LLP 1000 Louisiana St., Suite 4000 Houston, TX 77002 Phone: 713-890-5710 Fax: 713-890-5001 E-mail: martin.oneill@morganlewis.com COUNSEL FOR TVA Dated in Washington, D.C.
this 17th day of February 2010
DB1/64404489.1 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
)
In the Matter of
)
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Docket Nos. 50-438 and 50-439 TENNESSEE VALLEY AUTHORITY
)
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(Bellefonte Nuclear Power Plant, Units 1 and 2) )
February 17, 2010
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CERTIFICATE OF SERVICE I hereby certify that, on February 17, 2010, a copy of Tennessee Valley Authoritys Answer Opposing Petitioners Motion for Additional Time to File Reply, was served by Electronic Information Exchange on the following recipients, with additional service by e-mail on persons marked with an asterisk (*).
U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Mail Stop: T-3F23 Washington, DC 20555-0001 G. Paul Bollwerk, III, Chair Administrative Judge E-mail: paul.bollwerk@nrc.gov Dr. Anthony J. Baratta Administrative Judge E-mail: ajb5@nrc.gov Dr. William W. Sager Administrative Judge E-mail: william.sager@nrc.gov Andrea Z. Jones, Esq.
David E. Roth, Esq.
Office of the General Counsel U.S. Nuclear Regulatory Commission Mail Stop O-15D21 Washington, DC 20555-0001 E-mail: andrea.jones@nrc.gov E-mail: david.roth@nrc.gov
Office of the Secretary Attn: Rulemakings and Adjudications Staff U.S. Nuclear Regulatory Commission Mail Stop: O-16G4 Washington, DC 20555-0001 E-mail: hearingdocket@nrc.gov Louis A. Zeller Representative of Blue Ridge Environmental Defense League (BREDL) & Bellefonte Efficiency and Sustainability Team (BEST)
P.O. Box 88 Glendale Springs, NC 28629 E-mail: BREDL@skybest.com Office of Commission Appellate Adjudication U.S. Nuclear Regulatory Commission Mail Stop: O-16G4 Washington, DC 20555-0001 E-mail: ocaamail@nrc.gov James B. Dougherty, Esq.*
Counsel for the Petitioners 709 3rd St. S.W.
Washington, DC 20024 E-mail: jimdougherty@aol.com Signed (electronically) by Kathryn M. Sutton Kathryn M. Sutton, Esq.
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: 202-739-5738 Fax: 202-739-3001 E-mail: ksutton@morganlewis.com COUNSEL FOR TVA