ML101200651

Tennessee Valley Authority Opposing Petitioners' Motion for Additional Time to Appeal LBP-10-07

ML101200651
Person / Time
Site:	Bellefonte
Issue date:	04/30/2010
From:	Chandler C, Chandler L, O'Neill M, Sutton K, Vance S, Vigluicci E Morgan, Morgan, Lewis & Bockius, LLP, Tennessee Valley Authority
To:	NRC/OCM
SECY RAS
References
50-438-CP, 50-439-CP, ASLBP 10-896-01-CP-BD01, RAS 17808
Download: ML101200651 (34)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

) Docket Nos. 50-438-CP and 50-439-CP In the Matter of )

TENNESSEE VALLEY AUTHORITY )

) April 30, 2010 (Bellefonte Nuclear Plant, Units 1 and 2) )

_______________________________________)

TENNESSEE VALLEY AUTHORITYS ANSWER OPPOSING PETITIONERS MOTION FOR ADDITIONAL TIME TO APPEAL LBP-10-07 I. INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c), Tennessee Valley Authority (TVA) files this Answer in opposition to the Blue Ridge Environmental Defense League, Bellefonte Efficiency and Sustainability Team (BEST), and Southern Alliance for Clean Energy (collectively, Petitioners)

April 20, 2010 Motion for Additional Time in Which to Appeal LBP-10-07.1 As discussed more fully below, TVA opposes the Motion and urges that it be denied.

II. PROCEDURAL HISTORY TVA discusses the procedural history of this proceeding in its concurrently filed Brief Opposing the Petitioners Appeal.2 In short, on May 8, 2009, Petitioners submitted a Petition for Intervention and Request for Hearing (Petition) in this proceeding involving the reinstatement of the construction permits for Bellefonte Nuclear Plant, Units 1 and 2. On April 2, 2010, following a prehearing conference on March 1, 2010, the Atomic Safety and Licensing Board (Board) issued 1

See Motion by Blue Ridge Environmental Defense League, Its Chapter Bellefonte Efficiency and Sustainability Team and the Southern Alliance for Clean Energy for Additional Time in Which to File Appeal of LBP-10-07 (Apr. 20, 2010) (Motion). The Board found that BEST had not separately established standing and was not entitled to party status, a ruling not challenged by Petitioners. See Tenn. Valley Auth. (Bellefonte Nuclear Plant, Units 1 & 2), LBP-10-07, 71 NRC __, slip op. at 16 (Apr. 2, 2010) (Order or LBP-10-07).

2 See Tennessee Valley Authoritys Brief in Opposition to Petitioners Appeal of LBP-10-07 (Apr. 30, 2010).

DB1/64738122

a Memorandum and Order finding that Petitioners failed to proffer an admissible contention and, thus, denied the Petition.3 The Boards Order clearly stated that, [i]n accordance with the provisions of 10 C.F.R. § 2.311, as it rules upon an intervention petition, any appeal to the Commission from this memorandum and order must be taken within ten (10) days after it is served.4 Despite the express terms of both the Boards Order and NRC regulations, the Petitioners failed to timely appeal LBP-10-07. Moreover, Petitioners also failed to promptly request an extension of time in which to appeal the Boards decision. Instead, Petitioners sat idle, waiting 18 daysuntil April 20, 2010before filing their Appeal Brief,5 and the instant Motion requesting leave to file the Appeal Brief out of time. In fact, Petitioners did not even attempt to contact counsel for the other parties about the Motion until April 19th7 days after the appeal was due.

As discussed fully below, the pending Motion should be denied because the Petitioners fail to demonstrate the existence of extraordinary and unanticipated circumstances6 sufficient to excuse their failure to file an appeal in a timely manner.

III. ARGUMENT In accordance with 10 C.F.R. § 2.311(c), [a]n order denying a petition to intervene, and/or request for hearing . . . is appealable by the requestor/petitioner on the question as to whether the request and/or petition should have been granted. However, § 2.311(b) makes clear that such appeals must be made as specified by the provisions of this section, within ten (10) days after the service of the order. The Board expressly reiterated these regulatory provisions in its April 2, 2010 Order.7 3

LBP-10-07, slip op. at 2.

4 Id. at 40.

5 Brief on Appeal of LBP-10-07 by Blue Ridge Environmental Defense League, Its Chapter Bellefonte Efficiency and Sustainability Team and the Southern Alliance for Clean Energy (Apr. 20, 2010) (Appeal Brief).

6 See Yankee Atomic Elec. Co. (Yankee Nuclear Power Station), CLI-98-21, 48 NRC 185, 202 (1998).

7 See LBP-10-07, slip op. at 40.

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The Commissions general policy has been to enforce [this deadline] strictly8 and to dismiss an untimely appeal absent a showing of good cause for the failure to file on time.9 Thus,

[w]hile missing a deadline for appeal is not necessarily a jurisdictional bar to further action on an appeal, [the Commission] historically [has] excused a failure to meet appeal deadlines only in extraordinary and unanticipated circumstances.10 No such circumstances are presented to the Commission in this proceeding.

In the Motion, the Petitioners explanation for failing to timely file an appeal is as follows:

(1) Petitioners counsel, not having been involved in NRC licensing proceedings for some 25 years, appeared in this proceeding only a short while ago - February 16, 2010. In that time the Rules of Practice, as well as the Atomic Energy Act itself, have undergone substantial changes. It has required a great deal of time and work on his part to become conversant with the case file as well as the pertinent sources of legal authority; (2) The undersigned, a sole practitioner of law, has been atypically tied up with other matters to which he was committed before his appearance in this proceeding, including but not limited a brief filed yesterday in the D.C. Circuit Court of Appeals (Hardin v. Jackson, No. 09-5365) and an oral argument scheduled for April 22 (Commonwealth of Virginia v. BREDL, Va. Ct. App. Nos. 2221 02, 2222-09-02.)11 The circumstances cited by Petitioners counsel simply do not rise to the level of unanticipated, unavoidable, or extraordinary circumstances. In similar cases, the Commission has uniformly rejected petitioners arguments relating to the lack of familiarity with a proceeding or applicable regulations. For example, in the Seabrook proceeding, the Commission explained that:

8 Yankee Atomic, CLI-98-21, 48 NRC at 202 (quoting Consumers Power Co. (Midland Plant, Units 1 & 2), ALAB-684, 16 NRC 162, 165 n.3 (1982).

9 See, e.g., Pub. Serv. Co. of N.H. (Seabrook Station, Unit 1), CLI-91-14, 34 NRC 261, 265-66 (1991) (dismissing appeal because failure to read procedures and be familiar with deadlines does not establish good cause for failing to file timely appeal brief); Fla. Power & Light Co. (Turkey Pt. Nuclear Generating Plant, Units 3 & 4), CLI-91-5, 33 NRC 238, 240-41 (1991) (dismissing appeal because petitioners unfamiliarity with NRC regulations does not provide good cause for late filing).

10 Yankee Atomic, CLI-98-21, 48 NRC at 202 (quoting Midland, ALAB-684, 16 NRC at 165 n.3) (emphasis added).

11 Motion at 1.

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[Petitioners] failure to follow the applicable procedures is not excused by its averment that it was accustomed to handling other matters differently. We do not think it too much to expect participants in our proceedings to read and otherwise familiarize themselves with the applicable rules of practice. Even in instances involving lay litigants, we expect adherence to deadlines to ensure the orderly administration of the adjudicatory process. Because we do not believe that [petitioner] has shown sufficient cause for its failure to timely file its brief, [petitioners] appeal from the Licensing Board's decision denying its petition to intervene is dismissed.12 Furthermore, Petitioners reference to the February 16, 2010 notice of appearance of their counsel is simply irrelevant to the Motion.13 The Board Memorandum and Order that is the subject of Petitioners Appeal was not issued until April 2, 2010, and plainly notified Petitioners that any appeal to the Commission . . . must be taken within ten (10) days after it is served.14 As the Commission emphasized in the Turkey Point proceeding, unfamiliar[ity] with NRCs Rules of Practice is not sufficient excuse for late or incomplete filings, particularly where the order that is being challenged expressly advised the petitioner of his appellate rights, of the time within which those rights had to be exercised, and of the manner in which an appeal is to be taken.15 Moreover, the 10-day timeframe to file such an appeal has been a longstanding part of NRC practice. In fact, the requirement to appeal a Board order denying a petition to intervene within 10 days has been firmly in place for over 30 years.16 Thus, notwithstanding any other substantial changes to the Rules of Practice and the Atomic Energy Act over the last 25 years, no changes 12 Seabrook, CLI-91-14, 34 NRC at 266.

13 Motion at 1.

14 LBP-10-07, slip op. at 40.

15 Turkey Point, CLI-91-5, 33 NRC at 240-41 (emphasis added).

16 See Final Rule, Miscellaneous Amendments, 43 Fed. Reg. 17,798, 17,802 (Apr. 26, 1978) (increasing the appeal period set in former 10 C.F.R. § 2.714a from 5 days to 10 days); see also Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2223 (Jan. 14, 2004) (Section 2.311 continues unchanged the provision in former

§ 2.714a that limits interlocutory appeal of rulings on requests for hearing and petitions to intervene to those that grant or deny a petition to intervene.). In fact, it appears that counsel for the Petitioners has complied with this requirement in the past. See Va. Elec. & Power Co. (N. Anna Power Station, Units 1 & 2), ALAB-790, 20 NRC 1450, 1450 (1984) (listing Mr. Dougherty as counsel for the appellant).

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have occurred to the timeframe for appealing a Board order denying a petition to intervene. But even beyond the longstanding provision set forth in the Commissions regulations and counsels asserted lack of familiarity with the full background of this proceeding, the Boards Order itself expressly informed the parties of the timeframe in which an appeal must be taken.17 Additionally, it has long been Commission practice that motions to extend a deadline for an appellate brief should be filed at least one day prior to the deadline,18 not, as here, eight days after the fact.

Similarly, counsel for the Petitioners reference to his responsibilities in other cases also fails to establish extraordinary and unanticipated circumstances. The Motion indicates that these other matters involve cases to which counsel for the Petitioners was committed before his appearance in this proceeding.19 Thus, rather than constituting extraordinary and unanticipated circumstances, it appears from the Motion that opposing counsel was fully aware of these other obligations well in advance of the filing deadline, and reasonably should have anticipated their possible impacts on his obligations here. The Commission has made clear that 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.20 As a result, counsels claim of being tied up with other matters does not justify Petitioners belated Appeal.21 Finally, Petitioners Motion is conspicuously silent with respect to counsels failure to even attempt to contact counsel for the other parties until April 19th7 days after the appeal was due.

This failure to promptly contact opposing counsel about the need to request an extension of time is directly contrary to Commission policy indicating that [r]equests for an extension of time . . .

17 LBP-10-07, slip op. at 40.

18 See, e.g., La. Power & Light Co. (Waterford Steam Elec. Station, Unit 3), ALAB-117, 6 AEC 261, 261-62 (1973);

Boston Edison Co. (Pilgrim Nuclear Station), ALAB-74, 5 AEC 308, 308 (1972).

19 Motion at 1 (emphasis added).

20 Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC 452, 454 (1981).

21 Motion at 1.

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should be received . . . well before the time specified expires.22 Further, this repeated indifference to filing deadlines is contrary to the Commissions commitment to the expeditious completion of adjudicatory proceedings.23 As the Commission stated, applicants for a license are . . . entitled to a prompt resolution of disputes concerning their applications.24 IV. CONCLUSION For the foregoing reasons, Petitioners have failed to demonstrate that there are extraordinary and unanticipated circumstances which might warrant granting additional time. Accordingly, the Motion should be denied and the Commission should dismiss Petitioners untimely Appeal.25 22 Statement of Policy on Conduct of Licensing Proceedings, CLI-81-8, 13 NRC at 454-55. Nor is this the first time that Petitioners have let a deadline pass only to later seek leave to file out of time. See Licensing Board Memorandum and Order (Ruling on Motion for Additional Time; Prehearing Conference Argument Time Allocations; Webstreaming; Written Limited Appearance Statements) (Feb. 18, 2010) at 1-5 (unpublished)

(Order on Motion for Additional Time); Petitioners 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 (Feb. 16, 2010).

In that instance, the Board admonished Petitioners of the need to seek any future extension of time before the expiration of the deadline at issue. See Order on Motion for Additional Time at 5.

23 See, e.g., Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 24 (1998).

24 Id. at 19.

25 Even if the Commission were to grant the Motion and accept Petitioners belated filing, then the Appeal still should be dismissed because the Board properly denied the Petition for the reasons discussed in TVAs concurrently-filed Brief in Opposition to Petitioners Appeal.

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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 at Washington, DC this 30th day of April 2010 7

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of )

) Docket Nos. 50-438-CP and 50-439-CP TENNESSEE VALLEY AUTHORITY )

) April 30, 2010 (Bellefonte Nuclear Plant, Units 1 and 2) )

)

TENNESSEE VALLEY AUTHORITYS BRIEF IN OPPOSITION TO PETITIONERS APPEAL OF LBP-10-07 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

TABLE OF CONTENTS Page TABLE OF AUTHORITIES ......................................................................................................... ii I. INTRODUCTION ............................................................................................................. 1 II. PROCEDURAL HISTORY............................................................................................... 3 III. STANDARD OF REVIEW .............................................................................................. 6 IV. THE BOARD PROPERLY DISMISSED PROPOSED CONTENTION 6 AS MOOT AND LACKING ADEQUATE FOUNDATION ................................................. 7 A. Proposed Contention 6 and Petitioners January 2010 Supplemental Basis.......... 7 B. The Boards Stated Bases for Rejecting Proposed Contention 6........................... 8 C. Petitioners Have Identified No Error of Law or Abuse of Discretion in the Boards Ruling that Proposed Contention 6 is Inadmissible ............................... 10

1. The Boards Dismissal of Proposed Contention 6 Is Consistent With the NRCs Contention Admissibility Rules and Controlling Commission Precedent on Contention Mootness .................................... 11

2. Petitioners Have Not Explained Their Failure to Proffer a New or Amended Contention Based on the New Information Provided by TVA and NRC Staff................................................................................. 15 V. CONCLUSION............................................................................................................... 19

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TABLE OF AUTHORITIES Page COURT AND ADMINISTRATIVE DECISIONS Carney v. Am. Univ., 151 F.3d 1090 (D.C. Cir. 1998)..18 Hertz v. Luzenac Am., Inc., 370 F.3d 1014 (10th Cir. 2004).....18 Advanced Medical. Systems, Inc. (One Factory Row, Geneva, Ohio 44041), CLI-94-6, 39 NRC 285 (1994)...6 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-06-24, 64 NRC 111 (2006)..6 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

LBP-08-12, 68 NRC 5 (2008)....12 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station),

CLI-08-28, 68 NRC 658 (2008)...12, 13 Andrew Siemaszko, CLI-06-16, 63 NRC 708 (2006)..6 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 2), CLI-03-14, 58 NRC 207 (2003)..10 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Stations, Units 2 & 3), CLI-04-36, 60 NRC 631 (2004)..6 Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-02-28, 56 NRC 373 (2002)............11, 12, 15 Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-03-17, 58 NRC 419 (2003)....11 Entergy Nuclear Vermont Yankee L.L.C. (Vermont Yankee Nuclear Power Station), LBP-05-24, 62 NRC 429 (2005)..12 Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-91-5, 33 NRC 238 (1991)..2 Louisiana Energy Services, L.P. (Claiborne Enrichment Center),

CLI-97-2, 45 NRC 3 (1997)..15

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TABLE OF AUTHORITIES (Continued)

Page PPL Susquehanna LLC (Susquehanna Steam Electric Station, Units 1 & 2), CLI-07-25, 66 NRC 101 (2007)6 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-00-21, 52 NRC 261 (2000)...6, 15 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-05-1, 61 NRC 161 (2005).....18 Progress Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plant, Units 2 & 3), CLI-10-09, 71 NRC __, slip opinion (Mar. 11, 2010).6 Public Service Co. of New Hampshire (Seabrook Station, Units 1

& 2), ALAB-918, 29 NRC 473 (1989)6 Public Service Co. of New Hampshire (Seabrook Station, Unit 1),

CLI-91-14, 34 NRC 261 (1991)...2 Shaw Areva MOX Services, LLC (Mixed Oxide Fuel Fabrication Facility),

CLI-09-2, 69 NRC 55 (2009).....11 Tennessee Valley Authority (Bellefonte Nuclear Power Plant, Units 1 & 2),

CLI-10-06, 71 NRC __, slip op. at 19-20 (Jan. 7, 2010) ..4, 18 Tennessee Valley Authority (Watts Bar Nuclear Plant, Unit 2),

CLI-10-12, 71 NRC __, slip opinion (Mar. 26, 2010)...6 Tennessee Valley Authority (Bellefonte Nuclear Plant, Units 1 and 2),

LBP-10-07, 71 NRC ___, slip opinion (April 2, 2010)......passim U.S. Department of Energy (High-Level Waste Repository),

CLI-09-14, 69 NRC __, slip opinion (June 30, 2010) ..17 USEC, Inc. (American Centrifuge Plant), CLI-06-9, 63 NRC 433 (2006)15 USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451 (2006) .17

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TABLE OF AUTHORITIES (Continued)

Page FEDERAL STATUTES Atomic Energy Act of 1954, as amended, § 161.b, 42 U.S.C. §2201b...3 Atomic Energy Act of 1954, as amended, § 185, 42 U.S.C. §2235..18 CODE OF FEDERAL REGULATIONS 10 C.F.R. § 2.206.8, 9, 14, 18 10 C.F.R. § 2.309...11 10 C.F.R. § 2.309(f).....10, 14 10 C.F.R. § 2.309(f)(1)....5 10 C.F.R. § 2.309(f)(1)(iii)-(vi).8, 18 10 C.F.R. § 2.309(f)(2)...13, 14 10 C.F.R. § 2.311(b)1, 5 10 C.F.R. § 2.311(c)....6 10 C.F.R. Part 50...3, 7, 9, 10, 13, 18 10 C.F.R. § 50.55(b)....3 10 C.F.R. § 50.55(f)(3)......13 FEDERAL REGISTER Final Policy Statement, Commission Policy Statement on Deferred Plants, 52 Fed. Reg. 38,077 (Oct. 14, 1987) .3, 9, 11, 13, 16, 17 Final Rule, Rules of Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, 54 Fed. Reg. 33,168 (Aug. 11, 1989)....11 Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2182 (Jan. 14, 2004).10

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TABLE OF AUTHORITIES (Continued)

Page In the Matter of Tennessee Valley Authority (Bellefonte Nuclear Plant Units 1 and 2); Order, 74 Fed. Reg. 10,969 (Mar. 13, 2009)...2, 3, 7, 16, 18 Tennessee Valley Authority; Establishment of Atomic Safety and Licensing Board, 75 Fed. Reg. 3946 (Jan. 25, 2010)...5 MISCELLANEOUS COMSECY-08-0041, Staff Recommendation Related to Reinstatement of the Construction Permits for Bellefonte Nuclear Plant Units 1 and 2, Encl. 2 (Dec. 12, 2008), available at ADAMS Accession No. ML083230895)7, 11, 15, 16, 18 Commission Voting Record, COMSECY-08-0041, Response Sheet of Commissioner Svinicki (Dec. 22, 2008), available at ADAMS Accession No. ML090500374)...18 Commission Voting Record, COMSECY-08-0041, Response Sheet of Commissioner Lyons (Jan. 7, 2009), available at ADAMS Accession No. ML09050037418 Commission Voting Record, COMSECY-08-0041, Response Sheet of Chairman Klein (Jan. 9, 2009), available at ADAMS Accession No. ML09050037418 Commission Voting Record, COMSECY-08-0041, Response Sheet of Commissioner Jaczko (Jan. 27, 2009), available at ADAMS Accession No. ML090500374.7 COMSECY-08-0041; Staff Requirements Memorandum to R.W. Borchardt (Feb. 18, 2009), available at ADAMS Accession No. ML090490838...16, 18 Safety Evaluation by the Office of Nuclear Reactor Regulation Relating to the Request for Reinstatement of Construction Permit Nos. CPPR-122 AND CPPR-123, Bellefonte Nuclear Plant, Units 1 and 2, Docket Nos. 50-438 and 50-439, at 4 (Mar. 9, 2009).16,18 Bellefonte Nuclear Plants Units 1 and 2-Staff Plan for Assessment of Transition to Deferred Plant Status (Oct. 5, 2009), available at ADAMS Accession Nos. ML092590273 (memorandum) and ML092740149 (enclosure) .........16 Letter from R.C. Haag, NRC, to A.S. Bhatnagar, TVA, at 1 (Dec. 2, 2009), Bellefonte Nuclear Plant Units 1 (CPPR-122) and 2 (CPPR-123)-Transition to Deferred Status-NRC Inspection Report 05000438/2009601 and 05000439/2009601, encl. (Dec. 2, 2009), available at ADAMS Accession No. ML093370083...14, 16, 17 Letter from E.J. Leeds, NRC, to A.S. Bhatnagar, TVA (Jan. 14, 2010), available at ADAMS Accession No. ML093420915 (Deferred Plant Status Approval Letter) 3, 14, 17

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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of )

) Docket Nos. 50-438-CP and 50-439-CP TENNESSEE VALLEY AUTHORITY )

) April 30, 2010 (Bellefonte Nuclear Plant, Units 1 and 2) )

)

TENNESSEE VALLEY AUTHORITYS BRIEF IN OPPOSITION TO PETITIONERS APPEAL OF LBP-10-07 I. INTRODUCTION In accordance with 10 C.F.R. § 2.311(b), Tennessee Valley Authority (TVA) files this brief opposing the April 20, 2010 Appeal of LBP-10-07 filed by the Blue Ridge Environmental Defense League (BREDL) (with its Bellefonte Efficiency and Sustainability Team (BEST) chapter) and the Southern Alliance for Clean Energy (SACE) (collectively, Petitioners).1 In its April 2, 2010 Memorandum and Order, the Atomic Safety and Licensing Board (Board or ASLB) denied Petitioners May 8, 2009 hearing request, as later supplemented,2 because 1

See Tenn. Valley Auth. (Bellefonte Nuclear Plant, Units 1 & 2), LBP-10-07, 71 NRC __, slip op. (Apr. 2, 2010)

(LBP-10-07 or April 2 Memorandum and Order); Brief on Appeal of LBP-10-07 by Blue Ridge Environmental Defense League, Its Chapter Bellefonte Efficiency and Sustainability Team and the Southern Alliance for Clean Energy (Apr. 20, 2010) (Appeal Brief). Inasmuch as the Board did not admit BEST as a party to this proceeding, a ruling not contested in the Appeal, TVA does not separately refer to it herein.

2 See Petition for Intervention and Request for Hearing by the Blue Ridge Environmental Defense League, Its Chapter Bellefonte Efficiency and Sustainability Team and the Southern Alliance for Clean Energy (May 8, 2009) (Petition); Joint Intervenors Supplemental Basis for Previously Submitted Contention 5Lack of Good Cause (July 15, 2009); Joint Petitioners Supplemental Basis for Previously Submitted Contention 6 TVA Has Not and Cannot Meet the NRCs Quality Assurance and Quality Control Requirements (Jan. 11, 2010) (January 2010 Supplemental Basis).

Petitioners failed to proffer an admissible contention.3 Petitioners now appeal the Boards dismissal of Proposed Contention 6, in which Petitioners alleged that the Nuclear Regulatory Commissions (NRC or Commission) reinstatement of the voluntarily-withdrawn construction permits (CPs) for Bellefonte (BLN) Units 1 and 2, as requested by TVA in August 2008, was improper because TVA has not and cannot meet the NRCs Quality Assurance [QA] and Quality Control [QC] requirements.4 As demonstrated in TVAs concurrently-filed Answer Opposing Petitioners April 20, 2010 motion for additional time, Petitioners Appeal Brief should be stricken because it is unjustifiably late.5 Nevertheless, should the Commission accept Petitioners Appeal, Petitioners have not established any reversible flaw in the Boards April 2 Memorandum and Order. As fully demonstrated below, the Board properly concluded that Proposed Contention 6 lacks adequate foundational support for its allegation that TVA is unable to comply with applicable NRC QA/QC requirements.6 In so ruling, the Board correctly applied the NRCs contention admissibility rules, including related principles of contention mootness. Specifically, the Board correctly determined that Proposed Contention 6 has been rendered moot by events occurring after its submittal, including TVAs implementation of the revised BLN Nuclear Quality 3

LBP-10-07, slip op. at 2 & 38 (stating that the May 2009 Petition must be dismissed because Petitioners failed to proffer an admissible contention).

4 Petition at 25. Conspicuously, in both Proposed Contention 6 and their Appeal Brief, Petitioners make no mention of the narrow, Commission-defined scope of this proceeding; i.e., whether TVA has established good cause for the reinstatement of the CPs. Specifically, the Commission limited the scope of this proceeding to direct challenges to [TVAs] asserted reasons that show good cause justification for the reinstatement of the CPs. Tenn. Valley Auth. (Bellefonte Nuclear Plant Units 1 and 2); Order, 74 Fed. Reg. 10,969, 10, 970 (Mar.

13, 2009) (Reinstatement Order).

5 See Tennessee Valley Authoritys Answer Opposing Petitioners Motion for Additional Time to Appeal LBP-10-07 (Apr. 30, 2010); see also Pub. Serv. Co. of N.H. (Seabrook Station, Unit 1), CLI-91-14, 34 NRC 261, 265-66 (1991) (dismissing appeal because failure to read procedures and be familiar with deadlines does not establish good cause for failing to file timely appeal brief); Fla. Power & Light Co. (Turkey Pt. Nuclear Generating Plant, Units 3 & 4), CLI-91-5, 33 NRC 238, 240-41 (1991) (dismissing appeal because petitioners unfamiliarity with NRC regulations does not provide good cause for late filing).

6 LBP-10-07, slip op. at 33 n. 13.

Assurance Plan (NQAP), as verified and documented by the NRC Staff in accordance with established NRC inspection procedures and the Commissions Policy Statement on Deferred Plants.7 For all of these reasons, the Commission should deny the Appeal and affirm the Boards April 2 Memorandum and Order dismissing Proposed Contention 6 as inadmissible.

II. PROCEDURAL HISTORY This 10 C.F.R. Part 50 proceeding concerns TVAs August 26, 2008 request to reinstate the BLN Unit 1 and Unit 2 CPs,8 which TVA voluntarily withdrew in 2006.9 On March 13, 2009, the NRC published in the Federal Register an Order reinstating the CPs for BLN Units 1 and 2 in terminated plant status pursuant to Section 161.b of the Atomic Energy Act (AEA) of 1954, as amended, 42 U.S.C. § 2201.b, and 10 C.F.R. § 50.55(b).10 The Reinstatement Order stated that [a]ny person adversely affected by this Order may request a hearing on this Order within 60 days of its issuance, and the request for a hearing is limited to whether good cause exists for the reinstatement of the CPs.11 7

See Final Policy Statement, Commission Policy Statement on Deferred Plants, 52 Fed. Reg. 38,077 (Oct. 14, 1987) (Policy Statement on Deferred Plants).

8 See Letter from A.S. Bhatnagar, TVA, to E.J. Leeds, NRC (Aug. 26, 2008) (Reinstatement Request),

available at ADAMS Accession No. ML082410087.

9 See Letter from Glenn W. Morris, TVA, to the NRC Document Control Desk (Apr. 6, 2006), available at ADAMS Accession No. ML061000538 (TVAs request to withdraw its two CPs); Letter from C. Haney, NRC, to K.W. Singer, TVA (Sept. 14, 2006), available at ADAMS Accession No. ML061810505 (granting TVAs request to voluntarily withdraw the two CPs).

10 Reinstatement Order, 74 Fed. Reg. at 10,970. On August 10, 2009, TVA requested that the NRC Staff authorize the transition of BLN Units 1 and 2 from terminated to deferred status, consistent with the terms of the Commissions March 2009 Reinstatement Order. Letter from A.S. Bhatnagar, TVA, to NRC, Attn.

Document Control Desk (Aug. 10, 2009) (Request for Transition to Deferred Status), available at ADAMS Accession No. ML092230594. The Staff approved TVAs request to place BLN Units 1 and 2 in deferred status on January 14, 2010. See Letter from E.J. Leeds, NRC, to A.S. Bhatnagar, TVA (Jan. 14, 2010),

available at ADAMS Accession No. ML093420915 (Deferred Plant Status Approval Letter).

11 Reinstatement Order, 74 Fed. Reg. at 10,969 (emphasis added).

On May 8, 2009, Petitioners filed nine proposed contentions.12 By Order dated May 20, 2009, the Commission directed the Petitioners, TVA, and Staff to submit briefs addressing the question whether the NRC possesses the statutory authority to reinstate the withdrawn construction permits.13 Citing Proposed Contentions 1 and 2 as the basis for this request, the Commission ordered that [t]he remainder of Petitioners proposed contentions will be held in abeyance, pending the Commissions ruling on the threshold authority issue.14 On January 7, 2010, the Commission ruled that it has the legal authority to reinstate the CPs. Accordingly, the Commission dismissed Proposed Contentions 1 and 2, but referred the remaining seven contentions to the Board.15 Reiterating that the scope of this proceeding is limited to whether there is good cause for [CP] reinstatement,16 the Commission tasked the ASLB with deciding whether Petitioners had established standing to intervene and submitted an admissible contention within that scope.17 Shortly thereafter, on January 11, 2010, Petitioners filed a supplemental basis in alleged support of Proposed Contention 6.18 TVA moved to strike that supplemental basis on the ground that it did not comply with the NRCs Rules of Practice.19 On January 25, 2010, Petitioners filed their answer opposing TVAs Motion to Strike.20 12 Petition at 12-38.

13 See Commission Order at 1 (May 20, 2009) (unpublished) (May 20 Order).

14 Id. at 2.

15 See Tenn. Valley Auth. (Bellefonte Nuclear Power Plant, Units 1 & 2), CLI-10-06, 71 NRC __, slip op. at 19-20 (Jan. 7, 2010).

16 Id. at 19.

17 Id.

18 See January 2010 Supplemental Basis.

19 See Tennessee Valley Authoritys Motion to Strike Petitioners Supplemental Basis for Proposed Contention 6 (Jan. 14, 2010) (January 2010 TVA Motion to Strike).

20 See Joint Petitioners Answer to Tennessee Valley Authoritys Motion to Strike Supplemental Basis for Contention 6 (Jan. 25, 2010).

On January 15, 2010, the ASLB issued an Initial Prehearing Order, in which it defined a briefing schedule.21 Pursuant to that schedule, on January 29, 2009, TVA and the Staff filed their Answers to the Petition.22 With leave of the Board, Petitioners filed their Reply on February 16, 201011 days after the original filing deadline.23 Thereafter, on March 1, 2010, the Board heard oral argument by counsel on the application of the good cause standard and the admissibility of Petitioners seven remaining contentions.

One month later, on April 2, 2010, the Board issued LBP-10-07, in which it determined that BREDL and SACE (but not BEST) had established standing to intervene in this proceeding.

The Board dismissed the Petition, however, because it contained no admissible contentions, contrary to the provisions of 10 C.F.R. § 2.309(f)(1). In its April 2 Memorandum and Order, the Board expressly directed that any appeal of LBP-10-07 be filed within 10 days.24 Despite that directive, and the unambiguous language of 10 C.F.R. § 2.311(b), Petitioners filed the instant Appeal 18 days later on April 20, 2010. Petitioners seek Commission review of the Boards dismissal of Proposed Contention 6, concerning TVAs compliance with NRC QA/QC requirements. TVA hereby opposes Petitioners Appeal.

21 See Tennessee Valley Authority; Establishment of Atomic Safety and Licensing Board, 75 Fed. Reg. 3946 (Jan. 25, 2010); Licensing Board Memorandum and Order (Initial Prehearing Order) (Jan. 15, 2010)

(unpublished).

22 See Answer of Tennessee Valley Authority Opposing the Petition for Intervention and Request for Hearing by

[Petitioners] (Jan. 29, 2010) (TVA Answer); NRC Staffs Answer to Petition for Intervention and Request for Hearing, and Response to Joint Intervenors Supplemental Basis to Contention 5 - Lack of Good Cause, and Joint Petitioners Supplemental Basis for Previously Submitted Contention 6 - TVA Has Not and Cannot Meet the NRCs [QA/QC] Requirements (Jan. 29, 2010) (NRC Staff Answer).

23 See Petitioners Reply to NRC Staffs and TVAs Answers in Opposition to Petition for Intervention and Request for Hearing (Feb. 16, 2010) (Petitioners Reply); see also Licensing Board Memorandum and Order (Ruling on Motion for Additional Time; Prehearing Conference Argument Time Allocations; Webstreaming; Written Limited Appearance Statements) at 1-5 (Feb. 18, 2010) (unpublished). Petitioners attributed the delay in filing their Reply to their efforts to secure the services of counsel to represent them henceforth in this proceeding. Petitioners 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, at 1 (Feb. 16, 2010).

24 See LBP-10-07, slip op. at 40 (In accordance with the provisions of 10 C.F.R. § 2.311, as it rules upon an intervention petition, any appeal to the Commission from this memorandum and order must be taken within ten (10) days after it is served.).

III. STANDARD OF REVIEW An order denying a petition to intervene, and/or request for hearing . . . is appealable by the requestor/petitioner on the question as to whether the request and/or petition should have been granted.25 In ruling on such an appeal, however, the Commission gives substantial deference to Board determinations on standing and contention admissibility.26 Thus, the Commission affirms Board rulings on admissibility of contentions if the appellant points to no error of law or abuse of discretion.27 Abuse of discretion is a high standard of review.28 A petitioner has a heavy burden on appeal to establish that reversal of a Board decision is warranted.29 Consistent with this standard, [t]he 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.30 Accordingly, the Commission will reject an appeal where the appellant has failed . . .

to address adequately (if at all) the Boards grounds for refusing to admit the contention31 or where the appellant simply repeats claims previously rejected by the Board.32 25 10 C.F.R. § 2.311(c).

26 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-06-24, 64 NRC 111, 121 (2006);

see also Progress Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plant, Units 2 & 3), CLI-10-09, 71 NRC __, slip op. at 10, 39 (Mar. 11, 2010).

27 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Stations, Units 2 & 3), CLI-04-36, 60 NRC 631, 637 (2004) (quoting Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-00-21, 52 NRC 261, 265 (2000)); see also Tenn. Valley Auth.(Watts Bar Nuclear Plant, Unit 2), CLI-10-12, 71 NRC __, slip op. at 3 (Mar. 26, 2010) (We will defer to the Boards rulings on threshold issues absent an error of law or abuse of discretion.).

28 Andrew Siemaszko, CLI-06-16, 63 NRC 708, 718 (2006).

29 Pub. Serv. Co. of N.H. (Seabrook Station, Units 1 & 2), ALAB-918, 29 NRC 473, 482 (1989).

30 Millstone, CLI-04-36, 60 NRC at 639 n.25 (quoting Advanced Med. Sys., Inc. (One Factory Row, Geneva, OH 44041), CLI-94-6, 39 NRC 285, 297 (1994)).

31 Id. at 637.

32 PPL Susquehanna LLC (Susquehanna Steam Elec. Station, Units 1 & 2), CLI-07-25, 66 NRC 101, 104-06 (2007).

IV. THE BOARD PROPERLY DISMISSED PROPOSED CONTENTION 6 AS MOOT AND LACKING ADEQUATE FOUNDATION A. Proposed Contention 6 and Petitioners January 2010 Supplemental Basis Proposed Contention 6 alleged that TVAs withdrawal of the BLN CPs in 2006 precludes any future TVA compliance with NRCs QA/QC requirements in 10 C.F.R. Part 50.33 Petitioners and their proffered expert, Arnold Gundersen, principally contended that the NRC improperly reinstated the Unit 1 and Unit 2 CPs because: (1) both Units were partially dismantled and cannibalized when significant pieces of equipment were sold off for scrap; (2) a member of the NRC Staff and an NRC Commissioner disagreed with the decision to reinstate the Unit 1 and 2 CPs and wrote dissenting opinions;34 (3) the NRC performed no inspections during the three years following the termination of the BLN CPs; and (4) TVA did not follow acceptable QA procedures, federal regulations, or industry protocol for more than three years.35 Petitioners postulated that reinstatement of the CPs poses a grave risk to public safety.36 In their January 2010 Supplemental Basis, Petitioners asked the Board to include in the record a December 2009 letter in which TVA notified the NRC of a containment vertical tendon coupling failure that TVA discovered on August 24, 2009.37 Petitioners alleged that [t]he failure of the nuclear reactor containment tendon mirrors the failure of TVA to adhere to construction permit conditions which require the permit holder to implement quality assurance 33 Petition at 25-28.

34 See COMSECY-08-0041, Staff Recommendation Related to Reinstatement of the Construction Permits for Bellefonte Nuclear Plant Units 1 and 2, Encl. 2 (Dec. 12, 2008), available at ADAMS Accession No. ML083230895 (Non-Concurrence of Joseph Williams (Nov. 20, 2008)); Commission Voting Record, COMSECY-08-0041, Response Sheet of Commr Jaczko (Jan. 27, 2009), available at ADAMS Accession No. ML090500374.

35 Petition at 28; Declaration of Arnold Gundersen Supporting Blue Ridge Environmental Defense Leagues Contentions at 4 (Gundersen Decl.).

36 Petition at 28; Gundersen Decl. at 9. As noted above, in both Proposed Contention 6 and their Appeal Brief, Petitioners never expressly allege a lack of good cause for reinstatement of the CPsthe sole focus of this limited-scope proceeding per the Commissions March 2009 Reinstatement Order.

37 January 2010 Supplemental Basis at 3, 6.

criteria.38 Petitioners, however, provided no documentation or expert opinion to substantiate their allegation that the cited tendon failure was the result of, or in any way related to, purported deficiencies in TVAs past or present QA program activities.

Both TVA and the NRC Staff opposed the admission of Proposed Contention 6, as later supplemented by Petitioners, on multiple grounds.39 In particular, they argued that the proposed contention failed to raise a material issue within the scope of this good cause proceeding, failed to raise a genuine dispute on a material factual or legal issue, and lacked an adequate factual basis, contrary to 10 C.F.R. § 2.309(f)(1)(iii), (iv), (v), and (vi).40 Citing public documents long available to Petitioners, TVA explained that it had reinstituted the BLN NQAP in a manner found acceptable by the NRC Staffa prerequisite to any reactivation of construction or plant operation.41 The Staff, for its part, noted that a concern over QA records is the type of concern that can be heard upon application for an operating license.42 B. The Boards Stated Bases for Rejecting Proposed Contention 6 The Board dismissed Proposed Contention 6 because the support offered for the contention (1) is either inaccurate or inadequate to establish that the issue raised is material to the proceeding, and (2) is insufficient to show a genuine dispute on a material factual or legal issue exists so as to warrant admission of the contention.43 In making this determination, the Board appropriately characterized Proposed Contention 6 as one of omission:

38 Id. at 4.

39 See TVA Answer at 45-51; NRC Staff Answer at 25-31.

40 See TVA Answer at 45-51; NRC Staff Answer at 25-31.

41 TVA Answer at 48-49.

42 NRC Staff Answer at 27. TVA also noted that, to the extent that Petitioners contend that their purported basis for Proposed Contention 6 presents a current health and safety issue warranting NRC action, their proper recourse is to seek appropriate action pursuant to 10 C.F.R. § 2.206. TVA Answer at 50 n.219.

43 LBP-10-07, slip op. at 32 (citing 10 C.F.R. § 2.309(f)(1)(iv), (v), (vi)). Although the Board noted TVAs and the NRC Staffs arguments that Proposed Contention 6 raises issues that are outside the scope of this good

[W]e note that this contention is essentially one of omission, i.e.,

that TVA has not provided sufficient information to demonstrate that it can meet the agencys quality assurance/quality control standards as embodied in the Commissions 1987 deferred plant policy statement and Appendix A to 10 C.F.R. Part 50, so as to provide a basis for bringing the facility back to the deferred status that it was in when the CPs were withdrawn.44 Based upon its review of the participants pleadings, docketed materials referenced by TVA and the Staff, and the oral argument, the Board concluded that the contention had been rendered moot by subsequent events.45 In particular, the Board cited TVAs submittal and implementation of a revised NQAP to address the issues associated with the facilities not being maintained in deferred status for several years and having some components removed.46 It also noted that the Staff had reviewed the revised BLN NQAP and performed an inspection in October 2009 to verify TVAs compliance with the applicable elements of the Policy Statement on Deferred Plants (which include implementation of an NRC-approved QA program).47 In dismissing Proposed Contention 6 as moot, the Board correctly observed that Petitioners failed to mention, much less evaluate or challenge these subsequent events, despite their being central to the focus of this contention.48 It also found that Petitioners January 2010 Supplemental Basis provided nothing of substance to support Petitioners QA-related allegations.49 Finally, the Board noted that the degree to which QA/QC requirements have been implemented could be the subject of a petition filed pursuant to 10 C.F.R. § 2.206 or a contention cause proceeding, the Board concluded that it need not resolve this scope issue given its finding that the contention lacks adequate foundational support. Id. at 33 n.13.

44 Id. at 33.

45 Id. at 34.

46 Id. at 33.

47 Id. at 34 n.15.

48 Id. at 34.

49 Id. at 34 n.14 (stating that the January 2010 Supplemental Basis regarding the containment vertical tendon coupling failure provides nothing of substance in support of the contentions thesis that TVA cannot bring the units back into deferred status so as to make the units a viable option).

submitted in any future Part 50 operating license (OL) hearing relating to the facility in question.50 C. Petitioners Have Identified No Error of Law or Abuse of Discretion in the Boards Ruling that Proposed Contention 6 is Inadmissible On appeal, Petitioners argue that the Board committed reversible error because its dismissal of Proposed Contention 6 is profoundly inconsistent with the applicable regulations and principles regarding the admissibility of contentions.51 They further contend that that the ASLB has established a bar that is virtually unattainable, especially in a case, like this, where the file contains virtually no information.52 Petitioners then claim that they have met their burden under the Commissions contention admissibility rules by relying on a detailed and extensive non-concurrence submitted by an NRC Staff member and submitting the declaration of their proffered expert, Mr. Arnold Gundersen.53 In so doing, however, they rely on case law pre-dating the Commissions revisions to its Rules of Practice in 2004, and ignore the current, uniform recognition that the contention standards are strict by design.54 As shown below, Petitioners have not met their burden. They fail to point to any error of law or abuse of discretion in the Boards decision finding Proposed Contention 6 inadmissible.

Instead, they overlook settled precepts concerning contention admissibility, supplementation, and 50 Id. at 34.

51 Appeal Brief at 6.

52 Id. at 7 53 Id. at 4-5.

54 See Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2189-90 (Jan. 14, 2004) (The threshold standard [in 10 C.F.R. § 2.309(f)] is necessary to ensure that hearings cover only genuine and pertinent issues of concern and that the issues are framed and supported concisely enough at the outset to ensure that the proceedings are effective and focused on real, concrete issues.); Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 2), CLI-03-14, 58 NRC 207, 213 (2003) (stating that the NRCs contention rule is strict by design).

mootness; inaccurately describe the record;55 and repeat prior, unsuccessful arguments.

Therefore, the Appeal should be denied and the Boards Memorandum and Order affirmed.

1. The Boards Dismissal of Proposed Contention 6 Is Consistent With the NRCs Contention Admissibility Rules and Controlling Commission Precedent on Contention Mootness The Board did not err in finding that subsequent TVA submittals had rendered Proposed Contention 6 moot and, therefore, inadmissible. The Boards ruling, in fact, is entirely consistent with controlling Commission precedent on contention mootness. Specifically, the Commission has held that [w]here a contention alleges the omission of particular information or an issue from an application, and the information is later supplied by the applicant the contention is moot.56 To raise specific challenges to the new information, an intervenor must timely file a new or amended contention that addresses the factors in section [2.309].57 A petitioners obligation in this respect is ironclad.58 Without such a requirement, contentions of omission could readily be transformedwithout basis or supportinto a broad series of disparate new claims.59 55 For example, Petitioners insinuation that TVA let the two plants sit idle for 17 years before voluntarily withdrawing the CPs in 2005 (Appeal Brief at 4) is simply incorrect. As documented in COMSECY 0041, both units were preserved and maintained in accordance with the Commissions Policy Statement on Deferred Plants, and NRC performed periodic inspections verifying the effectiveness of TVAs lay up activities until 2005. See COMSECY-08-0041, Encl. 1, at 2, 9 & 11.

56 Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI 28, 56 NRC 373, 383 (2002) (McGuire/Catawba).

57 Id.

58 Id. at 386 (quoting Final Rule, Rules of Practice for Domestic Licensing ProceedingsProcedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,170 (Aug. 11, 1989) (Hearing petitioners have an ironclad obligation to examine the publicly available documentary material pertaining to the facility in question with sufficient care to enable the petitioner to uncover any information that could serve as the foundation for a specific contention.)). See also Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-03-17, 58 NRC 419, 429 (2003) (Petitioners have an obligation to examine the application and publicly available information, and to set forth their claims at the earliest possible moment.); Shaw Areva MOX Services, LLC (Mixed Oxide Fuel Fabrication Facility), CLI-09-2, 69 NRC 55, 65 n.47 (2009) (same).

59 Catawba/McGuire, CLI-02-28, 56 NRC at 383. As the Commission further explained, this would effectively circumvent the purposes of the rules governing contention admission: (1) providing notice of the issues to be These principles apply both to proposed and admitted contentions. For example, in the Oyster Creek license renewal proceeding, the Board applied the mootness doctrine in rejecting a proposed contention submitted by the intervenors as part of a motion to reopen the record.60 Citing McGuire/Catawba, the Board stated: As with all contentions of omission, if the applicant

[or Staff] supplies the missing informationor, as relevant here, . . . performs the omitted analysisthe contention is moot.61 The Board found that the applicants docketed response to a Staff request for additional information provided a confirmatory fatigue analysis of the Oyster Creek recirculation nozzle, thereby curing the alleged omission.62 Also relevant here, the Oyster Creek Board found that [n]either law nor logic supports

[the] assertion that this Board is foreclosed from considering docketed licensing material that has been submitted to the Board and that, on its face, appears to be relevant to the disposition of a pending motion.63 On appeal, the Commission agreed, finding the intervenors argument to be simply incorrect.64 Citing McGuire/Catawba, the Commission concluded that the Board did not err in finding that the applicants confirmatory analysis submittal rendered the contention moot.65 litigated; (2) ensuring the existence of at least minimal factual and legal foundation for the alleged claims; and (3) ensuring there exists an actual genuine dispute on a material issue of law or fact. Id.

60 See AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), LBP-08-12, 68 NRC 5, 21(2008)

(Because AmerGen has cured the omission alleged in Citizens newly proffered contention, the April 18 motion to reopen the record in order to add a new contention has been rendered moot. And because Citizens motion is moot and, thus, no longer raises a litigable controversy, it fails, definitionally and functionally, to present a significant safety issue.).

61 Id. (emphasis added).

62 Id.

63 Id. at 20 n.13.

64 AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-28, 68 NRC 658, 676 n.72 (2008).

65 Id. (citing McGuire/Catawba, CLI-02-28, 56 NRC at 383; Entergy Nuclear Vt. Yankee L.L.C. (Vt. Yankee Nuclear Power Station), LBP-05-24, 62 NRC 429, 431 (2005)).

In like manner, the Board here correctly concluded that TVA had submitted information that directly addresses Joint Petitioners concern about TVA QA/QC compliance.66 Specifically, the Reinstatement Request evinced TVAs clear intent to reinstitute its NQAPa commitment which TVA effected on March 13, 2009 through the submittal of BLN NQAP, Revision 20 pursuant to 10 C.F.R. § 50.55(f)(3).67 The BLN NQAP describes the methods and establishes the administrative control requirements necessary to comply with 10 C.F.R. Part 50, Appendix B requirements, the Policy Statement on Deferred Plants, and the reinstated CPs for BLN Unit 1 and Unit 2.68 It also specifically addresses the temporary cessation of preventive maintenance on selected plant equipment following the withdrawal of the CPs.69 Additionally, TVA discussed the implementation of the revised BLN NQAP in its August 10, 2009 request to place the plants into deferred status (the submittal of which was promptly brought to Petitioners attention through a Board notification served on all participants).70 TVAs implementation of the BLN NQAP also was subject to a week-long NRC inspection in 66 LBP-10-07, slip op. at 34.

67 See Letter from M.A. Purcell, TVA, to the U.S. NRC, Encl. 1, App. G (March 13, 2009) (TVA-NQA-PLN89-A, Rev. 20, App. G, Quality Assurance Programs for Bellefonte Units 1 and 2), available at ADAMS Accession No. ML090760973 (BLN NQAP). On September 28, 2009, TVA submitted Revision 21 of the BLN NQAP. Letter from R.M. Krich, TVA, to NRC Document Control Desk, Encl. 2 (Sept. 28, 2009),

available at ADAMS Accession No. ML0927503500). These filings were made well in advance of Petitioners February 2010 Reply. Petitioners plainly could have sought to amend their proposed contention after the Commission in accordance with § 2.309(f)(2) or, at a minimum, addressed these filings in their Reply.

68 See BLN NQAP at 1.

69 See id. at 5. The Plant Equipment Policy contained in the BLN NQAP states, in part, that:

TVA procedure controls prohibited and will continue to prohibit deferred equipment from being used in nuclear safety related applications without further evaluation and having been fully restored or replaced.

Structures, systems or components that have been affected in the course of resource recovery activities will likewise be entered in to the corrective action program and prohibited from being returned to service without evaluation and having been restored or replaced.

Id.

70 See Letter from K.M. Sutton, Morgan, Lewis & Bockius, to Chairman G. Jaczko, NRC (Aug. 11, 2009),

available at ADAMS Accession No. ML092230731 (notifying the Board and participants of TVAs submittal of the Request for Transition to Deferred Status on August 10, 2009) (Sutton Letter).

October 2009, as documented in the NRC Staffs associated December 2, 2009 Inspection Report,71 and in its January 14, 2010 approval of TVAs request to place the units into deferred status.72 The NRCs December 2, 2009 Inspection Report and January 14, 2010 Deferred Plant Status Approval Letter, which TVA discussed in its Answer, are publicly-available documents that were accessible to Petitioners well before they filed their February 20, 2010 Reply.73 Petitioners, however, never challenged any of the foregoing conclusions or supporting information in an amended or new contention, as required by 10 C.F.R. § 2.309(f)(2), thereby rendering their contention moot. Moreover, while Petitioners sought to supplement the record on January 11, 2010 with information about a reported containment vertical tendon coupling failure, they did not explain the relevance or materiality of that information to TVAs purported noncompliance with NRC QA requirements.74 Conspicuously, Petitioners also never addressed the new QA-related information in their Reply, despite TVAs explicit reliance on that information. In fact, Petitioners Reply, which was prepared by counsel,75 is silent with respect 71 Letter from R.C. Haag, NRC, to A.S. Bhatnagar, TVA, at 1 (Dec. 2, 2009), Bellefonte Nuclear Plant Units 1 (CPPR-122) and 2 (CPPR-123)-Transition to Deferred Status-NRC Inspection Report 05000438/2009601 and 05000439/2009601, encl. (Dec. 2, 2009) (NRC Inspection Report), available at ADAMS Accession No. ML093370083.

72 See Deferred Plant Status Approval Letter, available at ADAMS Accession No. ML093420915. NRC Staff counsel promptly notified the Board and participants of the Staffs issuance of the Deferred Plant Status Approval Letter. See Letter from J.M. Suttenberg, NRC, to Atomic Safety and Licensing Board (Jan. 19, 2010), available at ADAMS Accession No. ML100191836. See also NRC News Release No.10-012, NRC Moves Unfinished Bellefonte Reactors to Deferred Status (Jan. 14. 2010), available at ADAMS Accession No. ML100140465.

73 See TVA Answer at 6-7 & 47-49.

74 Indeed, if anything, the December 10, 2009 TVA letter cited by Petitioners underscores TVAs efforts, through the BLN NQAP, to identify, report, and assess the impact of equipment age on its continued suitability for use.

Notably, the NRC Inspection Report issued on December 2, 2009 specifically mentions the August 2009 failed tendon coupling and notes that TVA had properly implemented [its] procedural guidance on reportability.

NRC Inspection Report at 2. To the extent that Petitioners contend that their purported basis for this contention presents a current health and safety issue warranting NRC action, their proper recourse is to seek appropriate action pursuant to 10 C.F.R. § 2.206.

75 Although Petitioners original contentions were submitted pro se (see Appeal Brief at 4), their then-designated representative, Mr. Lou Zeller, has participated in numerous and recent NRC licensing proceedings related to license renewal and new reactor licensing. Consequently, he is no doubt sufficiently familiar with the Commissions contention pleading standards, including its current requirements in 10 C.F.R. § 2.309(f). Even to Proposed Contention 6 and TVAs arguments opposing its admission. Petitioners, therefore, arguably have waived any argument on appeal that the revised BLN NQAP does not address their QA-related concerns.76 The time to make such an argument has come and gone.

In sum, the Board acted well within its authority and consistent with controlling precedent in concluding that information long-known and available to Petitioners had mooted the QA-related concerns raised in Proposed Contention 6. When, as in this case, an applicants subsequent submittals squarely address an omission or concern alleged by a petitioner, the contention is moot and must be disposed of or modified as a matter of law.77 The resolution of the mooted contention requires no more than a finding by the presiding officer that the matter has become moot.78 Accordingly, Petitioners have provided no reason for the Commission to disturb the Boards well-reasoned dismissal of Proposed Contention 6 on this basis.

2. Petitioners Have Not Explained Their Failure to Proffer a New or Amended Contention Based on the New Information Provided by TVA and NRC Staff Petitioners claim that the underlying record contains virtually no information on which they could base an admissible contention is specious.79 TVAs August 2008 Reinstatement Request detailed TVAs asserted reasons for seeking reinstatement of the CPs and described TVAs proposed post-reinstatement activities. TVAs proposal was the subject of detailed NRC Staff and Commission evaluations, as documented in COMSECY-08-0041, the Commissions assuming that he is not, arguments related to the pro se status of Petitioners also are moot in regard to all of Petitioners submittals and actions after February 16, 2010, the date Petitioners counsel submitted his notice of appearance. See Notice of Appearance of James B. Dougherty (Feb. 16, 2010).

76 See, e.g., PFS, CLI-00-21, 52 NRC at 264 (citing La. Energy Servs., L.P. (Claiborne Enrichment Center), CLI-97-2, 45 NRC 3, 4 (1997) (noting that [n]ew arguments are improper on appeal)).

77 See USEC, Inc. (American Centrifuge Plant), CLI-06-9, 63 NRC 433, 444 (2006) (quoting McGuire/Catawba, CLI-02-28, 56 NRC at 383) (internal quotation marks omitted)).

78 Id. at 444-45. When an alleged omission is cured, dismissal of the mooted contention is appropriate as a matter of law. Even if such action requires some reflective assessment of new factual information by the Board, dismissal of a mooted contention is not conditional upon the filing of a dispositive motion. See id.

79 Appeal Brief at 7.

associated Staff Requirements Memorandum and Voting Records, the March 2009 Reinstatement Order, and the Staffs supporting Safety Evaluation.80 Thus, when Petitioners submitted Proposed Contention 6 in May 2009, the record contained more than a few letters between TVA and the Staff.81 Furthermore, the underlying record contains ample information demonstrating TVAs NRC-verified compliance with applicable QA requirements since reinstatement of the CPs. As noted above, the revised BLN NQAP, initially submitted by TVA in March 2009, addressed the temporary cessation of preventive maintenance on selected plant equipment following the voluntary withdrawal of the CPs.82 The revised BLN NQAP, in turn, facilitated TVAs subsequent request, on August 10, 2009, that BLN Units 1 and 2 be placed in deferred status.83 In response, the NRC Staff issued a formal plan to assess the transition of BLN Units 1 and 2 from terminated to deferred status,84 and performed a related inspection at BLN in October 2009.85 That inspection focused largely on verifying TVAs compliance with QA requirements before placing Units 1 and 2 into deferred status.86 Importantly, the Staff concluded that TVA 80 See COMSECY-08-0041; Staff Requirements Memorandum (SRM) to R.W. Borchardt (Feb. 18, 2009),

available at ADAMS Accession No. ML090490838; Reinstatement Order, 74 Fed. Reg. at 10,970-71; Safety Evaluation by the Office of Nuclear Reactor Regulation Relating to the Request for Reinstatement of Construction Permit Nos. CPPR-122 AND CPPR-123, Bellefonte Nuclear Plant, Units 1 and 2, Docket Nos.

50-438 and 50-439, at 4 (Mar. 9, 2009), available at ADAMS Accession No. ML090620052 (NRC Safety Evaluation).

81 Appeal Brief at 6.

82 See BLN NQAP Rev. 21, at 5 (section entitled Plant Equipment Policy).

83 See Request for Transition to Deferred Status; see also Sutton Letter.

84 Bellefonte Nuclear Plants Units 1 and 2-Staff Plan for Assessment of Transition to Deferred Plant Status (Oct. 5, 2009), available at ADAMS Accession Nos. ML092590273 (memorandum) and ML092740149 (enclosure).

85 See NRC Inspection Report.

86 See id. (transmittal letter). As the NRC Staff noted:

The purpose of the inspection was to identify the status of the applicable program areas, specified in Section III.A, Deferred Plant, of the Commission Policy Statement on Deferred Plants (52 FR 38077), currently established at the Bellefonte Nuclear Plant. Primarily, the NRC recognized the need to address the has established the necessary programs to support transition to deferred status, an action formally approved by the Staff on January 14, 2010.87 The foregoing clearly dispels Petitioners claim that the record contains precious little and inconsequential information.88 Petitioners made no attempt to challenge or otherwise address the new and dispositive information placed on the docket by TVA and the NRC Staff despite its being readily available to them. Instead, in their Appeal Brief, Petitioners revert to prior, unsuccessful arguments. In particular, Petitioners replay arguments regarding the filing of a non-concurrence by a whistleblowing NRC Staff member.89 Petitioners continued reliance on these arguments provides no basis for overturning the Boards ruling here.

As TVA previously explained, Petitioners citation to a differing professional opinion or non-concurrence by an NRC Staff member does not by itself give rise to a litigable contention.90 Differing professional views by members of the Staff and Commission are not aberrationsthey are an integral part of the agencys deliberative decision-making process. In reinstating the CPs, a majority of both the Staff and the Commission addressed any dissenting views, and approved lapse in Quality Assurance (QA) oversight and investment recovery consequences that occurred in the period from withdrawal of the sites Construction Permits until when the QA program was reestablished. Specific actions were taken to evaluate if [TVA] had properly implemented the NRC-approved QA program, adequately addressed the status and quality of currently installed and stored equipment, and established associated processes and controls necessary to comply with regulatory requirements associated with your construction permits.

Id., transmittal letter at 1 (emphasis added).

87 NRC Inspection Report (Executive Summary); see also Deferred Plant Status Approval Letter at 1 & 6.

88 Appeal Brief at 1 & 6.

89 Id. at 4-6.

90 See USEC, Inc. (American Centrifuge Plant), CLI-06-10, 63 NRC 451, 472 (2006) (holding that mere references to articles or documents without explanation or analysis does not supply an adequate basis for admitting a contention, and that conclusory statements proffered by an alleged expert do not provide sufficient support for a contention); U.S. Dept of Energy (High-Level Waste Repository), CLI-09-14, 69 NRC __, slip op. at 9 (June 30, 2010) (stating that generalized assertions, without specific ties to NRC regulatory requirements, do not provide adequate support demonstrating the existence of a genuine dispute of fact or law).

the procedures used to review and approve TVAs Reinstatement Request (and its subsequent request to place Units 1 and 2 into deferred status).91 In doing so, they considered the very concerns raised by Petitioners and Mr. Gundersen relative to the dismantlement or removal of certain plant equipment, the temporary lapse in QA programs following CP withdrawal, and the hiatus in NRC inspections.92 The mere fact that Mr. Gundersen repeats and endorses these differing opinions does not sanction admission of the proposed contention.

In sum, Petitioners have identified no clear error or abuse of discretion by the Board.

There is clear support in the record for its conclusion that Proposed Contention 6 is moot and lacks adequate foundational support for its cardinal thesis that TVA has not provided any basis for showing it can bring the units back to a status in which they will comply with the Commissions deferred plant policy.93 For this additional reason, the Commission should affirm the Boards ruling.

91 See COMSECY-08-0041 at 2 & Encl. 2; SRM at 1; Commission Voting Record, COMSECY-08-0041, Response Sheet of Chairman Klein (Jan, 9, 2009), Response Sheet of Commr Lyons (Jan. 7, 2009), &

Response Sheet of Commr Svnicki (Dec. 22, 2008), available at ADAMS Accession No. ML090500374; Reinstatement Order, 74 Fed. Reg. at 10,970-71.

92 See, e.g., NRC Safety Evaluation at 4.

93 LBP-10-07, slip op. at 33 n.13. TVA submits that the Commission, acting as an appellate body, also may affirm the Boards dismissal of Proposed Contention 6 on an additional, independent ground. See Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-05-1, 61 NRC 161, 166 (2005) (citing Hertz v.

Luzenac Am., Inc., 370 F.3d 1014, 1017 (10th Cir. 2004); Carney v. Am. Univ., 151 F.3d 1090, 1096 (D.C. Cir.

1998)). Specifically, as TVA and the NRC Staff set forth in their respective Answers to the Petition, the QA-related issues raised by Petitioners, in addition to being moot, fall outside the scope of this good cause proceeding as previously defined by the Commission in CLI-10-06, contrary to 10 C.F.R. § 2.309(f)(1)(iii).

See CLI-10-06, slip op. at 6-7, 19; Reinstatement Order, 74 Fed. Reg. at 10,969; LBP-10-07, slip op. at 21 (stating that the good cause rationale that must be put forth by the CP holder to justify the relief sought is to be the focus of any intervenor challenge to the CP holders request). Although the Board did not see a need to rule on this alternative basis advanced by TVA and the Staff, it recognized, relatedly, that the degree to which applicable QA/QC requirements have been properly implemented is generally a matter that can be raised in a Part 50 OL proceeding relating to the facility at issue, or in a petition for agency action under § 2.206. LBP-10-07, slip op. at 34. See also id. at 21 (stating that an AEA section 185-related Part 50 CP proceeding is not to become a substitute for an ongoing or future Part 50 OL proceeding, albeit with § 2.206 providing an avenue for raising safety and environmental concerns regarding a proposed facility pending the OL proceeding.).

V. CONCLUSION For the foregoing reasons, Petitioners have not met their burden on appeal. Therefore, the Commission should reject the Appeal and affirm the Boards Memorandum and Order.

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 30th day of April 2010 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of )

) Docket Nos. 50-438-CP and 50-439-CP TENNESSEE VALLEY AUTHORITY )

)

(Bellefonte Nuclear Plant, Units 1 and 2) ) April 30, 2010

)

CERTIFICATE OF SERVICE I hereby certify that, on April 30, 2010, copies of (1) Tennessee Valley Authoritys Brief in Opposition to Petitioners Appeal of LBP-10-07, dated April 30, 2010, and (2)

Tennessee Valley Authoritys Answer Opposing Petitioners Motion for Additional Time to Appeal LBP-10-07, dated April 30, 2010, were served upon the following persons by the NRCs Electronic Information Exchange (EIE) system, with additional service by e-mail on persons marked with an asterisk (*).

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-15D21 Washington, DC 20555-0001 Washington, DC 20555-0001 G. Paul Bollwerk, III, Chair Edward Williamson, Esq.

Administrative Judge E-mail: elw2@nrc.gov E-mail: paul.bollwerk@nrc.gov Andrea Jones, Esq.

Dr. Anthony J. Baratta E-mail: axj4@nrc.gov Administrative Judge E-mail: ajb5@nrc.gov Brian Newell, Paralegal E-mail: bpn1@nrc.gov Dr. William W. Sager Administrative Judge David E. Roth, Esq.

E-mail: william.sager@nrc.gov E-mail: david.roth@nrc.gov

Ann Hove, Law Clerk OGC Mail Center E-mail: ann.hove@nrc.gov E-mail: OGCMailCenter@nrc.gov 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-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 Blue Ridge Environmental Defense League, Southern Alliance for Clean Energy (SACE)

Inc. (BREDL) 428 Bull Street Bellefonte Efficiency & Sustainability Team Savannah, GA 31401 (BEST) Sara Barczak*

P.O. Box 88 E-mail: sara@cleanenergy.org Glendale Springs, NC 28629 Louis A. Zeller E-mail: bredl@skybest.com James B. Dougherty, Esq.

Counsel for BREDL and SACE 709 3rd St. S.W.

Washington, D.C. 20024 E-mail: jimdougherty@aol.com

/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 DB1/64755185 2