ML13151A297

Tennessee Valley Authority'S Answer Opposing the Petition for Leave to Intervene and Request for Hearing by the Blue Ridge Environmental Defense League, ET AL

ML13151A297
Person / Time
Site:	Sequoyah
Issue date:	05/31/2013
From:	Doris Lewis Pillsbury, Winthrop, Shaw, Pittman, LLP, Tennessee Valley Authority
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 24606, 50-327-LR, 50-328-LR, ASLBP 13-927-01-LR-BD01
Download: ML13151A297 (59)

Text

May 31, 2013 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

) Docket Nos. 50-327-LR TENNESSEE VALLEY AUTHORITY ) 50-328-LR

) ASLBP No. 13-927-01-LR-BD01 (Sequoyah Nuclear Plant, Units 1 and 2) )

TENNESSEE VALLEY AUTHORITYS ANSWER OPPOSING THE PETITION FOR LEAVE TO INTERVENE AND REQUEST FOR HEARING BY THE BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE, ET AL.

I. INTRODUCTION The Tennessee Valley Authority (TVA) hereby answers and opposes the Petition for Leave to Intervene and Request for Hearing by the Blue Ridge Environmental Defense League, Bellefonte Efficiency and Sustainability Team and Mothers Against Tennessee River Radiation (May 6, 2013) (Petition or Pet.). The Petition should be denied because none of the contentions proposed by the Blue Ridge Environmental Defense League (BREDL), Bellefonte Efficiency and Sustainability Team (BEST), and Mothers Against Tennessee River Radiation (MATRR) (collectively, Petitioners) meets the NRC standards for admissibility. In addition, BEST and MATRR have not demonstrated standing.

Petitioners contentions predominantly seek to raise issues beyond the scope of this license renewal proceeding and challenge the NRCs rules. Because most of the contentions relate to topics beyond the scope of the proceeding, the Petition barely mentions the contents of TVAs license renewal application (LRA or the Application), and it provides no information demonstrating a genuine material dispute with any portion of the LRA.

II. PROCEDURAL BACKGROUND By LRA dated January 7, 2013, TVA requested renewal of Operating License Nos. DPR-77 and DPR-79 for the Sequoyah Nuclear Plant, Units 1 and 2 (Sequoyah).1 On March 5, 2013, the Nuclear Regulatory Commission (NRC or Commission) published a notice of acceptance for docketing and opportunity for hearing (Notice). 78 Fed. Reg. 14,362 (Mar. 5, 2013). The Notice permitted any person whose interest may be affected to file a request for hearing and petition for leave to intervene within 60 days of the Notice. Id. at 14,363.

The Notice directed that any petition must set forth with particularity the interest of the petitioner and how that interest may be affected (i.e., standing), as well as the specific contentions sought to be litigated. Id. The Notice stated:

Each contention must consist of a specific statement of the issue of law or fact to be raised or controverted. In addition, the requestor/petitioner shall provide a brief explanation of the bases of each contention and a concise statement of the alleged facts or the expert opinion that supports the contention on which the requestor/petitioner intends to rely in proving the contention at the hearing. The requestor/petitioner must also provide references to those specific sources and documents of which the requestor/petitioner is aware and on which the requestor/petitioner intends to rely to establish those facts or expert opinion. The requestor/petitioner must provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact. Contentions shall be limited to matters within the scope of the action under consideration. The contention must be one that, if proven, would entitle the requestor/petitioner to relief. A requestor/petitioner who fails to satisfy these requirements with respect to at least one contention will not be permitted to participate as a party.

Id. (footnote omitted).

1 The Application is available in the NRCs Agency-wide Documents Access and Management System (ADAMS) at Accession No. ML130240007, and on the NRCs website at http://www.nrc.gov/reactors/operating/licensing/renewal/applications/sequoyah.html.

2

III. BEST AND MATRR HAVE NOT DEMONSTRATED STANDING BEST and MATRR have not established their standing to participate in this proceeding.2 Standing is not a mere legal technicality, but an essential element in determining whether there is any legitimate role for the Commission in dealing with a particular grievance.

Westinghouse Electric Corp. (Nuclear Fuel Export License for Czech Republic - Temelin Nuclear Power Plants), CLI-94-7, 39 N.R.C. 322, 331-32 (1994).

To determine whether a petitioners interest provides a sufficient basis for intervention, the Commission has long looked for guidance to current judicial concepts of standing. Quivira Mining Co. (Ambrosia Lake Facility, Grants, New Mexico), CLI-98-11, 48 N.R.C. 1, 5-6 (1998)

(citation omitted). Judicial concepts of standing require a petitioner to establish that:

(1) it has suffered a distinct and palpable harm that constitutes injury-in-fact within the zone of interests arguably protected by the governing statute; (2) that the injury can be fairly traced to the challenged action; and (3) that the injury is likely to be redressed by a favorable decision.

Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-96-1, 43 N.R.C. 1, 6 (1996)

(citation omitted).

In order to meet these standards, an organization must show that the action will cause injury-in-fact either to its own organizational interests or to the interests of its members. Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-94-3, 39 N.R.C. 95, 102 n.10 (1994).

Where an organization asserts a right to represent the interests of its members, the judicial concepts of standing require a showing that:

(1) its members would otherwise have standing to sue in their own right; (2) the interests that the organization seeks to protect are germane to its purpose; and (3) neither the claim asserted nor the relief requested requires an individual member to participate in the organizations lawsuit.

2 TVA does not dispute BREDLs standing.

3

Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-98-13, 48 N.R.C. 26, 30-31 (1998) (citing Hunt v. Wash. State Apple Adver. Commn, 432 U.S. 333, 343 (1977)). Under NRC practice, an organization seeking to establish representational standing must demonstrate how at least one of its members may be affected by the licensing action (such as by activities on or near the site), must identify that member by name and address, and must show (preferably by affidavit) that the organization is authorized by that member to request a hearing on behalf of that member. Northern States Power Co. (Monticello Nuclear Generating Plant), CLI-00-14, 52 N.R.C. 37, 47 (2000). See also GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station), CLI-00-6, 51 N.R.C. 193, 202 (2000); Sequoyah Fuels Corp. & General Atomics (Gore, Oklahoma Site), CLI-94-12, 40 N.R.C. 64, 72 (1994).

BEST and MATRR have made none of these showings. The Petition does not indicate that BEST or MATRR will suffer any injury-in-fact to their own organizations as a result of this proceeding, much less any injury-in-fact within the zone of interests protected by the Atomic Energy Act. Further, the Petition does not demonstrate, as required by NRC practice, that BEST or MATRR have any members that would be affected. None of the declarations submitted with the Petition indicate that the declarant is a member of either BEST or MATRR; nor do they authorize BEST or MATRR to represent the declarants interest. In short, BEST and MATRR fail to establish their standing and thus may not intervene and participate in this proceeding. See Tennessee Valley Authority (Bellefonte Nuclear Power Plant, Units 3 and 4), LBP-08-16, 68 N.R.C. 361, 379-80 (2008) (finding that BEST had failed to establish standing for these same reasons).

4

IV. PETITIONERS CONTENTIONS DO NOT MEET THE COMMISSIONS STANDARDS FOR ADMISSIBILITY In order to be admitted to a proceeding, a petitioner must plead at least one admissible contention. 10 C.F.R. § 2.309(a). For the reasons set forth below, none of Petitioners proposed contentions are admissible, and therefore the Petition must be denied.

A. Standards For Contentions

1. Contentions Must Be Within The Scope Of The Proceeding And May Not Challenge NRCs Rules As a fundamental requirement, a contention is only admissible if it addresses matters within the scope of the proceeding and does not seek to attack the NRCs regulations governing the proceeding. This fundamental limitation is particularly important in a license renewal proceeding because the Commission has conducted extensive rulemaking to define the technical and environmental showing that an applicant must make. As discussed later in this Answer, almost all of the proposed contentions are beyond the scope of this proceeding.

10 C.F.R. Part 54 governs the health and safety matters that must be considered in a license renewal proceeding. The Commission has specifically limited this safety review to the matters specified in 10 C.F.R. §§ 54.21 and 54.29(a)3: the management of aging of certain systems, structures and components, and the review of time-limited aging evaluations. See Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 N.R.C. 3, 7-8 (2001); Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2), CLI 26, 56 N.R.C. 358, 363 (2002). See also Dominion Nuclear Connecticut, Inc. (Millstone Nuclear 3

The Commission has stated that the scope of review under its rules determines the scope of admissible issues in a license renewal hearing. 60 Fed. Reg. 22,461, 22,482 n.2 (May 8, 1995). Adjudicatory hearings in individual license renewal proceedings will share the same scope of issues as our NRC Staff review, for our hearing process (like our Staffs review) necessarily examines only the questions our safety rules make pertinent. Turkey Point, CLI-01-17, 54 N.R.C. at 10.

5

Power Station, Units 2 and 3), CLI-04-36, 60 N.R.C. 631, 637 (2004) (the potential detrimental effects of aging is essentially the issue that defines the scope of license renewal proceedings).

The rules in 10 C.F.R. Part 54 are intended to make license renewal a stable and predictable process. 60 Fed. Reg. at 22,461, 22,462, 22,463, 22,485. As the Commission has explained, [w]e sought to develop a process that would be both efficient, avoiding duplicative assessments where possible, and effective, allowing the NRC Staff to focus its resources on the most significant safety concerns at issue during the renewal term. Turkey Point, CLI-01-17, 54 N.R.C. at 7.

To require a full reassessment of [safety issues that are routinely monitored and assessed by ongoing agency oversight and agency-mandated licensee programs]

at the license renewal stage, the Commission found, would be both unnecessary and wasteful. Accordingly, the NRCs license renewal review focuses on those potential detrimental effects of aging that are not routinely addressed by ongoing regulatory oversight programs. License renewal reviews are not intended to duplicate the Commissions ongoing reviews of operating reactors.

Id. (citation omitted).

To this end, the Commission has confined 10 C.F.R. Part 54 to those issues uniquely determined to be relevant to the public health and safety during the period of extended operation, leaving all other safety issues to be addressed by the existing regulatory processes. 60 Fed. Reg.

at 22,463. This scope is based on the principle established in the rulemaking proceedings that, with the exception of the detrimental effects of aging and a few other issues related to safety only during the period of extended operation, the existing regulatory processes are adequate to ensure that the licensing bases of currently operating plants provide and maintain an adequate level of safety. 60 Fed. Reg. at 22,464, 22,481-82. Consequently, license renewal does not focus on operational issues, because these issues are effectively addressed and maintained by ongoing agency oversight, review, and enforcement. Millstone, CLI-04-36, 60 N.R.C. at 638 (footnote 6

omitted). Issues . . . which already are the focus of ongoing regulatory processes . . . do not come within the NRC's safety review at the license renewal stage. Turkey Point, CLI-01-17, 54 N.R.C. at 10 (quoting 56 Fed. Reg. 64,943, 64,945 (Dec. 13, 1991)).

The NRC rules governing environmental matters in license renewal proceedings -

contained in 10 C.F.R. §§ 51.53(c), 51.95(c), and Appendix B to Part 51 - are similarly intended to produce a more focused and, therefore, more effective review. 61 Fed. Reg. 28,467 (June 5, 1996); Turkey Point, CLI-01-17, 54 N.R.C. at 11. To accomplish this objective, the NRC prepared a comprehensive Generic Environmental Impact Statement for License Renewal of Nuclear Plants (1996) (GEIS), NUREG-1437, and made generic findings in the GEIS, which it then codified in Appendix B to 10 C.F.R. Part 51. Those issues that could be resolved generically for all plants are designated as Category 1 issues and are not evaluated further in individual license renewal proceedings (absent waiver or suspension of the rule by the Commission based on new and significant information). 61 Fed. Reg. at 28,468, 28,470, 28,474; Turkey Point, CLI-01-17, 54 N.R.C. at 12. The remaining (i.e., Category 2) issues that must be addressed in an applicants environmental report are defined specifically in 10 C.F.R. § 51.53(c).

See generally, Turkey Point, CLI-01-17, 54 N.R.C. at 11-12.

10 C.F.R. § 2.309(f)(1)(iii)-(iv) requires that a petitioner demonstrate that the issue raised by each of its contentions is within the scope of the proceeding and material to the findings that the NRC must make. Licensing boards are delegates of the Commission and, as such, they may exercise only those powers which the Commission has given [them]. Public Service Co.

of Indiana (Marble Hill Nuclear Generating Station, Units 1 and 2), ALAB-316, 3 N.R.C. 167, 170 (1976) (footnote omitted); accord Portland General Electric Co. (Trojan Nuclear Plant),

ALAB-534, 9 N.R.C. 287, 289-90 & n.6 (1979). Accordingly, it is well established that a 7

contention is not cognizable unless it is material to a matter that falls within the scope of the proceeding for which the licensing board has been delegated jurisdiction. Marble Hill, ALAB-316, 3 N.R.C. at 170-71. See also Commonwealth Edison Co. (Zion Station, Units 1 and 2),

ALAB-616, 12 N.R.C. 419, 426-27 (1980); Commonwealth Edison Co. (Carroll County Site),

ALAB-601, 12 N.R.C. 18, 24 (1980).

It is also well established that a petitioner is not entitled to an adjudicatory hearing to attack generic NRC requirements or regulations. Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2 and 3), CLI-99-11, 49 N.R.C. 328, 334 (1999). [A] licensing proceeding . . . is plainly not the proper forum for an attack on applicable statutory requirements or for challenges to the basic structure of the Commissions regulatory process. Philadelphia Electric Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 A.E.C. 13, 20, affd in part on other grounds, CLI-74-32, 8 A.E.C. 217 (1974) (footnote omitted). Thus, a contention that collaterally attacks a Commission rule or regulation is not appropriate for litigation and must be rejected. 10 C.F.R. § 2.335; Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 A.E.C. 79, 89 (1974). A contention that advocate[s]

stricter requirements than those imposed by the regulations is an impermissible collateral attack on the Commissions rules and must be rejected. Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), LBP-82-106, 16 N.R.C. 1649, 1656 (1982). See also Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), LBP-91-19, 33 N.R.C. 397, 410, affd in part and revd in part on other grounds, CLI-91-12, 34 N.R.C. 149 (1991). Likewise, a contention that seeks to litigate a generic determination established by Commission rulemaking is barred as a matter of law. Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-93-1, 37 N.R.C. 5, 29-30 (1993).

8

These limitations are controlling in this proceeding in that the scope of admissible environmental contentions is constrained by 10 C.F.R. §§ 51.53(c), 51.95(c), and Appendix B to Part 51; and the scope of technical contentions is constrained by 10 C.F.R. Part 54. See Turkey Point, CLI-01-17, 54 N.R.C. at 11-13. See also Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-00-23, 52 N.R.C. 327, 329 (2000); Baltimore Gas

& Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-14, 48 N.R.C. 39, 41, motion to vacate denied, CLI-98-15, 48 N.R.C. 45, 56 (1998); Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2 and 3), CLI-98-17, 48 N.R.C. 123, 125 (1998).

2. Contentions Must Be Specific And Supported By A Basis Demonstrating A Genuine, Material Dispute In addition to the requirement to address issues within the scope of the proceeding and material to the findings that the NRC must make, a contention is admissible only if it provides:

a specific statement of the issue of law or fact to be raised or controverted; a brief explanation of the basis for the contention; a concise statement of the alleged facts or expert opinions supporting the contention together with references to specific sources and documents on which the requestor/petitioner intends to rely to support its position on the issue; and sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact, which showing must include references to specific portions of the application (including the applicants environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioners belief.

10 C.F.R. § 2.309(f)(1)(i), (ii), (v) and (vi). The failure of a contention to comply with any one of these requirements is sufficient grounds for dismissing the contention. Palo Verde, CLI 12, 34 N.R.C. at 155-56.

9

These pleading standards governing the admissibility of contentions are the result of a 1989 amendment to 10 C.F.R. § 2.714, now § 2.309, which was intended to raise the threshold for the admission of contentions. 54 Fed. Reg. 33,168 (Aug. 11, 1989). See also Oconee, CLI-99-11, 49 N.R.C. at 334; Palo Verde, CLI-91-12, 34 N.R.C. at 155-56. The Commission has stated that the contention rule is strict by design, having been toughened . . . in 1989 because in prior years licensing boards had admitted and litigated numerous contentions that appeared to be based on little more than speculation. Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 N.R.C. 349, 358 (2001) (citation omitted).

The pleading standards are to be enforced rigorously. If any one . . . is not met, a contention must be rejected. Palo Verde, CLI-91-12, 34 N.R.C. at 155 (citation omitted). A licensing board is not to overlook a deficiency in a contention or assume the existence of missing information. Id.

The Commission has explained that this strict contention rule serves multiple purposes, which include putting other parties on notice of the specific grievances and assuring that full adjudicatory hearings are triggered only by those able to proffer at least some minimal factual and legal foundation in support of their contentions. Oconee, CLI-99-11, 49 N.R.C. at 334. By raising the threshold for admission of contentions, the NRC intended to obviate lengthy hearing delays caused in the past by poorly defined or supported contentions. Id. As the Commission reiterated in incorporating these same standards into the new Part 2 rules, [t]he threshold standard 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. 69 Fed. Reg. 2,182, 2,189-90 (Jan. 14, 2004).

10

Under these standards, a petitioner is obligated to provide the [technical] analyses and expert opinion or other information showing why its bases support its contention. Georgia Institute of Technology (Georgia Tech Research Reactor, Atlanta, Georgia), LBP-95-6, 41 N.R.C. 281, 305, vacated in part and remanded on other grounds, CLI-95-10, 42 N.R.C. 1, affd in part, CLI-95-19, 42 N.R.C. 191 (1995). Where a petitioner has failed to do so, the

[Licensing] Board may not make factual inferences on [the] petitioners behalf. Id. (citing Palo Verde, CLI-91-12, 34 N.R.C. 149). See also Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), LBP-98-7, 47 N.R.C. 142, 180 (1998) (a bald assertion that a matter ought to be considered or that a factual dispute exists . . . is not sufficient; rather a petitioner must provide documents or other factual information or expert opinion to support a contentions proffered bases) (citations omitted).

Further, admissible contentions must explain, with specificity, particular safety or legal reasons requiring rejection of the contested [application]. Millstone, CLI-01-24, 54 N.R.C. at 359-60. In particular, this explanation must demonstrate that the contention is material to the NRCs findings and that a genuine dispute on a material issue of law or fact exists. 10 C.F.R.

§ 2.309(f)(1)(iv) and (vi). The Commission has defined a material issue as meaning one where resolution of the dispute would make a difference in the outcome of the licensing proceeding.

54 Fed. Reg. at 33,172 (emphasis added).

As the Commission has observed, this threshold requirement is consistent with judicial decisions, such as Conn. Bankers Assn v. Bd. of Governors, 627 F.2d 245, 251 (D.C. Cir. 1980),

which held that:

[A] protestant does not become entitled to an evidentiary hearing merely on request, or on a bald or conclusory allegation that . . . a dispute exists. The protestant must make a minimal showing that material facts are in dispute, thereby demonstrating that an inquiry in depth is appropriate.

11

Id. (footnote omitted). See also Calvert Cliffs, CLI-98-14, 48 N.R.C. at 41 (It is the responsibility of the Petitioner to provide the necessary information to satisfy the basis requirement for the admission of its contentions . . . .). A contention, therefore, is not to be admitted where an intervenor has no facts to support its position and where the intervenor contemplates using discovery or cross-examination as a fishing expedition which might produce relevant supporting facts. 54 Fed. Reg. at 33,171.4 As the Commission has emphasized, the contention rule bars contentions where petitioners have what amounts only to generalized suspicions, hoping to substantiate them later, or simply a desire for more time and more information in order to identify a genuine material dispute for litigation. Duke Energy Corp.

(McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-03-17, 58 N.R.C. 419, 424 (2003).

Therefore, under the Rules of Practice, a statement that simply alleges that some matter ought to be considered does not provide a sufficient basis for a contention. Sacramento Municipal Utility District (Rancho Seco Nuclear Generating Station), LBP-93-23, 38 N.R.C.

200, 246 (1993), review denied, CLI-94-2, 39 N.R.C. 91 (1994). Similarly, a mere reference to documents does not provide an adequate basis for a contention. Baltimore Gas & Electric Co.

(Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-25, 48 N.R.C. 325, 348 (1998).

Rather, the NRCs pleading standards require a petitioner to read the pertinent portions of the license application, including the safety analysis report and the environmental report, state the applicants position and the petitioners opposing view, and explain why it has a 4

See also Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 N.R.C. 460, 468 (1982),

vacated in part on other grounds, CLI-83-19, 17 N.R.C. 1041 (1983) ([A]n intervention petitioner has 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. Stated otherwise, neither Section 189a. of the Act nor Section 2.714 [now 2.309] of the Rules of Practice permits the filing of a vague, unparticularized contention, followed by an endeavor to flesh it out through discovery against the applicant or staff.).

12

disagreement with the applicant. 54 Fed. Reg. at 33,171; Millstone, CLI-01-24, 54 N.R.C. at 358. If the petitioner does not believe these materials address a relevant issue, the petitioner is to explain why the application is deficient. 54 Fed. Reg. at 33,170; Palo Verde, CLI-91-12, 34 N.R.C. at 156. A contention that does not directly controvert a position taken by the applicant in the license application is subject to dismissal. See Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 2), LBP-92-37, 36 N.R.C. 370, 384 (1992), appeal dismissed, CLI-93-10, 37 N.R.C. 192, stay denied, CLI-93-11, 37 N.R.C. 251 (1993). Furthermore, an allegation that some aspect of a license application is inadequate or unacceptable does not give rise to a genuine dispute unless it is supported by facts and a reasoned statement of why that application is unacceptable in some material respect. Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), LBP-90-16, 31 N.R.C. 509, 521 & n.12 (1990).

B. Petitioners Contentions Are Inadmissible As explained below, none of the proposed contentions meet the applicable standards for the admission of contentions in NRC licensing proceedings.

1. Contention A (Flooding Risk) Is Inadmissible Contention A, which alleges that the LRA fails to adequately address the risks of flooding that could result from failure of upstream dams (Pet. at 10), is inadmissible because it is beyond the scope of a license renewal proceeding, thus failing to satisfy 10 C.F.R. § 2.309(f)(1)(iii), and does not raise an issue material to the findings that the NRC must make, thus failing to satisfy 10 C.F.R. § 2.309(f)(1)(iv). Contention A is also inadmissible because it lacks any basis in alleged fact or expert opinion and fails to demonstrate the existence of a genuine, material issue with the LRA, thus failing to satisfy 10 C.F.R. § 2.309(f)(1)(ii) and (v)-(vi).

13

a. Contention A Is Outside The Scope Of License Renewal Proceedings Contention A is beyond the scope of the proceeding and not material to the findings that the NRC must make for several reasons. First, the design protection of Sequoyahs systems, structures and components against external flooding is not germane to the issues time-limited aging evaluations and aging management of select systems, structures, and components with which license renewal proceedings are solely concerned. See discussion in Section IV.A.1 supra. A facilitys design protection against external flooding falls squarely within its current licensing basis (CLB). A facilitys CLB (as defined in 10 C.F.R. § 54.3(a)) includes General Design Criterion 2 specifying:

Structures, systems, and components important to safety shall be designed to withstand the effects of natural phenomena such as . . . floods . . .

without loss of capability to perform their safety functions.

10 C.F.R. Part 50, Appendix A, General Design Criterion 2. The NRC has consistently refused to entertain contentions challenging the adequacy of a facilitys CLB in license renewal proceedings, noting that other tools - Commission orders, rulemaking, or license amendments, etc. - are more appropriate than license renewal proceedings for correcting alleged deficiencies in facility design. See, e.g., Turkey Point, CLI-01-17, 54 N.R.C. at 8-10.

Indeed, in the license renewal proceeding for Turkey Point Units 3 and 4, the Commission affirmed the rejection of a contention claiming that the design of spent fuel storage pools was inadequately protected against hurricane-induced flooding. The Commission held that the criticisms of the spent fuel pools design protection against external flooding went to the adequacy of the plants current licensing basis and thus was not within the scope of the license renewal review. Id. at 23.

14

Second, Sequoyahs present compliance with its CLB is also beyond the scope of NRC license renewal proceedings. 10 C.F.R. § 54.30(b). The Commission has repeatedly rejected contentions predicated on a license renewal applicants alleged non-compliance with a facilitys CLB as being beyond the scope of license renewal proceedings. See, e.g., AmerGen Energy Co.,

LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 N.R.C. 235, 270-71 (2009).

Instead, the Commission has held that, because the regulatory and oversight processes provide reasonable assurance of a plants compliance with its CLB, a license renewal proceeding is an inappropriate forum for criticism of a license renewal applicants strategies for complying with the requirements of its CLB. Turkey Point, CLI-01-17, 54 N.R.C. at 8-10.

b. Contention A Lacks Any Basis In Alleged Fact Or Expert Opinion Or Other Information Demonstrating A Genuine Material Dispute In addition to being beyond the scope of the proceeding and not material to the findings that the NRC must make, Contention A is not supported by information indicating any deficiency in the measures that TVA is taking to maintain and improve protection of Sequoyah against flooding events, or in the NRCs regulatory oversight. It is true that TVAs recent recalculation of the probable maximum flood (PMF) for Sequoyah using updated model test data has resulted in a 2.4 foot increase in the PMF, and that the NRC has identified apparent violations as a result.5 However, the NRC Inspection Report cited by the Petitioners nowhere states that Sequoyah is presently unable to withstand a design-basis flooding event. In fact, the NRC Inspection Report cautions against reading those apparent violations as indications of present non-compliance with Sequoyahs CLB, stating that the NRC understand[s] that this 5

BREDL claims that the NRC issued six citations to TVA regarding risks from flooding and placed Sequoyah under the NRCs yellow safety flag. Pet. at 10-11. The March 12, 2013 inspection report cited by BREDL in Contention A, however, discusses one, preliminary, yellow finding at Sequoyah with two apparent violations involving the sites flood mitigation strategy. Letter from Richard P. Croteau, NRC, to Joseph W. Shea, TVA, Sequoyah Nuclear Plant - NRC Inspection Report 05000327/2013009, 05000328/2013009; Preliminary Yellow Finding, and Apparent Violations (Mar. 12, 2013) (NRC Inspection Report) (ADAMS Accession No. ML13071A253).

15

finding is not an immediate safety concern because compensatory measures have been in place since September 30, 2009. NRC Inspection Report at 2; id., Encl. 1 at 7 ([the apparent violation] is not related to current performance and is not assigned a cross-cutting aspect).

Although the Petitioners dismiss TVAs installation of barriers at upstream dams to prevent overwash of earthen embankments as mere stopgaps (Pet. at 11), Petitioners have provided no documents or expert testimony explaining why those or other elements of Sequoyahs flood-mitigation strategy are non-compliant with its CLB, or would be otherwise unable to prevent

. . . disaster in the Tennessee Valley. Pet. at 12.

More importantly, Petitioners do not discuss or identify any deficiency in TVAs longer-term commitments to improve flood protection. For example, TVA has voluntarily committed to undertake a variety of measures to provide protection against beyond-design-basis external flooding events at Sequoyah and other TVA facilities.6 Among the additional flood mitigation measures that TVA has committed to install at Sequoyah by December 31, 2016 are (1) the location of flood mitigation equipment at least fifteen feet above the design-basis flood elevation; (2) the addition of portable pumping equipment consistent with Nuclear Energy Institute (NEI) FLEX guidance;7 (3) the addition of new water supply sources, feedwater pumping capacity, and decay heat removal paths to facilitate reactor decay heat removal; and (4) the addition of new injection pumping capacity and augmented borated water supplies to facilitate makeup and criticality control for the reactor coolant system. See TVA Flood 6

See Letter from Preston D. Swafford, TVA Chief Nuclear Officer, to NRC Document Control Desk, Commitment to Install Improved Flood Mitigation Systems at E1-1, E1-3 (Apr. 16, 2013) (TVA Flood Mitigation Commitments) (ADAMS Accession No. ML13108A107).

7 NEI 12-06, Diverse and Flexible Coping Strategies (FLEX) Implementation Guide, Rev. B1 (May 2012)

(ADAMS Accession No. ML12143A232).

16

Mitigation Commitments at E1-2 to E1-3. The Petitioners evaluate none of these flood mitigation strategies identified within Sequoyahs docket.

Further, as Petitioners intimate, protection against flooding is an issue that the NRC is addressing as a result of the lessons learned from Fukushima. The NRC has issued a request for information8 pursuant to 10 C.F.R. § 50.54(f) to each power reactor licensee, requesting that those licensees:

perform a reevaluation of all appropriate external flooding sources, including the effects from local intense precipitation on the site, probable maximum flood (PMF) on stream and rivers, storm surges, seiches, tsunami, and dam failures. It is requested that the reevaluation apply present-day regulatory guidance and methodologies being used for ESP and COL reviews including current techniques, software, and methods used in present-day standard engineering practice to develop the flood hazard . . . .

For the sites where the reevaluated flood exceeds the design basis, addressees are requested to submit an interim action plan that documents actions planned or taken to address the reevaluated hazard with the hazard evaluation.

NRC External Hazard Reevaluation Letter, Encl. 2 at 6-7. Subsequently, addressees should perform an integrated assessment of the plant to identify vulnerabilities and actions to address them. Id. at 7. The NRC External Hazard Reevaluation Letter also requests that licensees perform walkdowns to identify and address any degraded, nonconforming or unanalyzed conditions relating to flood protection. Id., Encl. 4. Further, the NRC has issued an Order9 requiring each power reactor licensee to develop, implement and maintain mitigation strategies for beyond-design-basis external events. These actions demonstrate that the Commissions regulatory processes are being applied actively to address and mitigate any flooding 8

Letter from NRC to All Power Reactor Licensees and Holders of Construction Permits in Active or Deferred Status, Request for Information Pursuant to Title 10 of the Code of Federal Regulations 50.54(f)

Recommendations 2.1, 2.3, and 9.3, of the Near-Term Task Force Review of Insights from the Fukushima Dai-Ichi Accident (Mar. 12, 2012) (NRC External Hazard Reevaluation Letter) (ADAMS Accession No. ML12053A340).

9 EA-12-049, Issuance of Order to Modify Licenses with Regard to Requirements for Mitigation Strategies for Beyond-Design-Basis External Events (Mar. 12, 2012) (ADAMS Accession No. ML12054A735).

17

vulnerabilities. Petitioners offer no reasons why the NRC regulatory process exemplified by these actions cannot be relied upon to maintain the adequacy of Sequoyahs CLB.

2. Contention B (Waste Confidence) Is Inadmissible Contention B, which alleges that the Commissions evaluation of TVAs LRA must include a thorough analysis of the risks of the long-term storage of irradiated nuclear fuel generated by Sequoyah Units 1 and 2 (Pet. at 12), should not be admitted because it raises issues outside the scope of the proceeding, contrary to 10 C.F.R. § 2.309(f)(1)(iii), and seeks to raise issues not material to the findings that the NRC must make, contrary to 10 C.F.R. § 2.309(f)(1)(iv). Further, Contention B is not supported by any relevant alleged facts or expert opinion, thus failing to satisfy 10 C.F.R. § 2.309(f)(1)(v), and does not demonstrate any genuine dispute with the LRA, in contravention of 10 C.F.R. § 2.309(f)(1)(vi).

a. Contention B Is Outside The Scope Of This Proceeding And Seeks To Raise Issues Not Material To The Findings That The NRC Must Make Contention B attempts to litigate generic environmental issues related to the Commissions proceedings to update its waste confidence decision and temporary storage rule (10 C.F.R. § 51.23, also referred to as the Waste Confidence Rule), matters that are outside the scope of a license renewal proceeding. In its GEIS for license renewal, the Commission designated all issues relating to waste management, including on-site storage of spent fuel, as Category 1 issues that could be resolved generically for all plants and are not to be evaluated further in a license renewal proceeding. See 10 C.F.R. Part 51, Appendix B, Table B-1. In particular, the NRCs environmental impact findings regarding on-site storage of spent fuel are summarized as follows:

SMALL. The expected increase in the volume of spent fuel from an additional 20 years of operation can be safely accommodated on site with small environmental 18

effects through dry or pool storage at all plants if a permanent repository or monitored retrievable storage is not available.

Id. In the GEIS, the Commission found that there is ample basis to conclude that continued storage of existing spent fuel and storage of spent fuel generated during the license renewal period can be accomplished safely and without significant environmental impacts. GEIS, § 6.4.6.7. Accordingly, the issue of the environmental impacts of on-site storage of spent fuel has been evaluated generically, has been designated as a Category 1 issue, and thus does not require additional plant-specific review in individual license renewal proceedings. See Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Station & Vermont Yankee Nuclear Power Stations), CLI-07-3, 65 N.R.C. 13, 19-21 (2007); Turkey Point, CLI 17, 54 N.R.C. at 21-22; Oconee, CLI-99-11, 49 N.R.C. at 343. Because the Commission has made these generic determinations in the GEIS and in 10 C.F.R. Part 51, Appendix B, Table B-1, and has not required an analysis of this issue in 10 C.F.R. § 51.53(c)(3)(iv), Petitioners may not raise this issue without seeking a waiver of the rule pursuant to 10 C.F.R. § 2.355. Moreover, because the spent fuel storage issues Petitioners seek to raise in Contention B are inherently outside the scope of a license renewal proceeding, they are not material to the findings that the NRC must make.

Contrary to Petitioners arguments, the decision of the U.S. Court of Appeals for the District of Columbia Circuit in New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012), which vacated the Waste Confidence Rule, does not bring spent fuel storage issues within the purview of individual license renewal proceedings. 10 C.F.R. § 51.53(c)(2), which governs the information that a license renewal applicant must address in its environmental report, still provides that the environmental report need not discuss any aspect of the storage of spent fuel for the facility within the scope of the generic determination in § 51.23(a) and in accordance with § 51.23(b).

19

10 C.F.R. § 51.53(c)(2) has not been vacated, and thus remains in effect and cannot be challenged absent a waiver granted by the Commission. See 10 C.F.R. § 2.335. Consequently, Petitioners claim that the LRA must evaluate long-term storage of spent fuel remains an impermissible challenge to the NRCs rules.

Further, although the Waste Confidence Rule itself has been vacated, the Commission has chosen to address the issues raised in the Courts decision generically and through further rulemaking. In September 2012, the Commission directed the Staff to commence development of a new generic environmental impact statement to support an updated Waste Confidence decision and temporary storage rule. See Staff Requirements Memorandum, COMSECY 0016, Approach for Addressing Policy Issues Resulting from Court Decision to Vacate Waste Confidence Decision and Rule, at 1 (Sept. 6, 2012) (ADAMS Accession No. ML12250A032).

The Commission directed the Staff to publish a final rule and EIS within 24 months (i.e., by September 2014). Id. Consequently, this new rulemaking should be complete by the time the NRC Staff completes its reviews in this license renewal proceeding. Because the Commission has elected to address the issues raised by the Courts remand generically and through rulemaking, Petitioners attempt to raise those same issues here is prohibited. [L]icensing boards should not accept in individual license proceedings contentions which are (or are about to become) the subject of general rulemaking by the Commission. Potomac Electric Power Co.

(Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 A.E.C. 79, 85 (1974).

Finally, to the extent Petitioners attempt to introduce tangential safety-related issues under the guise of Contention B, such matters similarly fall outside the scope of consideration in a license renewal proceeding. Although Contention B is an environmental contention challenging TVAs Environmental Report (ER), Petitioners characterize the current status of 20

the Waste Confidence Rule as a defect in the plants CLB that casts doubt upon the adequacy of the LRAs safety analysis. Pet. at 13. However, as discussed above, the Commission has confined 10 C.F.R. Part 54 to aging management issues during the period of extended operation, leaving all other safety issues to be addressed by the existing regulatory processes.10 Because the safety of spent fuel storage processes is a non-aging-related operational issue that is subject to ongoing Commission oversight, any safety issue raised by Contention B is neither within the scope of the proceeding nor material to the findings that the NRC must make. Further, it constitutes an impermissible collateral attack on the NRCs Part 54 standards for safety review in license renewal proceedings. Such an attack on the adequacy of the NRCs rules is prohibited by 10 C.F.R. § 2.335.

b. Contention B Is Not Supported And Does Not Demonstrate Any Genuine Dispute Of Material Fact Or Law With The LRA In addition to being an impermissible challenge to the NRCs rules, Contention B is also inadmissible because its few claims regarding the LRA are not supported by alleged facts, expert opinion, documents, other sources, or any other type of information demonstrating the existence of a genuine, material dispute, as required by 10 C.F.R. § 2.309(f)(1)(v)-(vi). Petitioners do not provide one whit of support for their assertion that TVAs LRA does not provide continued assurance that the current licensing basis will maintain an acceptable level of safety for an additional 20 years of operation. Pet. at 13. Petitioners provide no explanation of this bald claim, nor any alleged facts, expert opinion, document or other source to support it. It should be noted that the Waste Confidence Rule applies to the period after permanent cessation of operation, and not to the 20 year period of extended operation.

10 It should also be noted that independent spent fuel storage installations are subject to separate licensing and license renewal requirements under 10 C.F.R. Part 72 (see 10 C.F.R. §§ 72.42 and 72.212(a)(3); see also Oconee, CLI-99-11, 49 N.R.C. at 344 n.4), and are not within the scope of Part 54.

21

Similarly, Petitioners obscure reference to the discussion of decommissioning in the ER (Pet. at 13) is not supported by any explanation of why this portion of the ER is deficient, or any alleged facts, expert opinion, references to documents or other sources demonstrating a genuine material dispute with this portion of the LRA. It should be noted that the NRCs definition of decommissioning does not include spent fuel management or disposal. 11 Furthermore, completion of decommissioning does not depend on disposal of spent fuel, which may remain in an independent spent fuel storage installation (ISFSI) after a reactor site has been decommissioned.12 Nor do Petitioners identify any other section of the ER, or provide any explanation as to why the NRCs current generic consideration of the Waste Confidence Rule cannot or should not be applied to Sequoyah. In sum, Petitioners demonstrate no genuine, material dispute with the LRA.

3. Contention C (Cancer Risk) Is Inadmissible Contention C, which alleges that certain counties in the vicinity of Sequoyah have a higher cancer incidence than the state average (Pet. at 14-15), is inadmissible because it is beyond the scope of the proceeding and not material to the findings that the NRC must make, 11 See 53 Fed. Reg. 24,018, 24,019, 24,031, 24,050 (June 27, 1988) (NRCs definition of decommissioning does not include removal and disposal of spent fuel); NUREG-1221, Summary, Analysis and Response for Public Comments on Proposed Amendments to 10 CFR Parts 30, 40, 50, 51, 70, and 72: Decommissioning Criteria for Nuclear Facilities, at B-3 (May 1988) (The actual safety aspects and costs associated with storage of spent fuel on an interim basis after shutdown would not be dealt with as part of a licensees actual planning of decommissioning activities or in the decommissioning plan which he would submit to the NRC under Section 10 CFR 50.82.); Regulatory Guide 1.202, Standard Format and Content of Decommissioning Cost Estimates for Nuclear Reactors, at 1.202-2 (Feb. 2005) (The NRCs definition of decommissioning does not include other activities related to facility deactivation and site closure, including operation of the spent fuel storage pool, construction and/or operation of an independent spent fuel storage installation); NUREG-1713, Standard Review Plan for Decommissioning Costs Estimates for Nuclear Power Reactors, at 2 (Dec. 2004) ([o]peration of the spent fuel storage pool, construction and operation of an independent spent fuel storage installation (ISFSI). . . are not included in the NRC definition of decommissioning).

12 See Termination of Trojan Nuclear Plant Facility Operating License No. NPF-1 (May 23, 2005) (ADAMS Accession No. ML050680345); Termination of Fort St. Vrain Nuclear Generating Station License DPF-34 (Aug.

5, 1997) (ADAMS Accession No. ML081570704). See also NUREG-1350 Vol. 24, Information Digest 2012-2013, at Appendix B (Aug. 2012) (identifying other permanently shut down nuclear plants where decommissioning activities have been completed), available at http://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr1350/#pubinfo.

22

therefore failing to meet the requirements of 10 C.F.R. § 2.309(f)(1)(iii) and (iv). Contention C is also inadmissible because it is vague and unsupported by any basis or information demonstrating a genuine, material issue, therefore failing to meet the requirements of 10 C.F.R. § 2.309(f)(1)(i), (ii), (v) and (vi).

a. Contention Cs Claims Regarding Cancer Rates In Tennessee Counties Near Sequoyah Are Beyond The Scope Of The License Renewal Proceeding And Not Material To The Findings That The NRC Must Make First, to the extent that Contention C seeks to raise a safety issue, it is unrelated to aging management and therefore beyond the scope of this proceeding and not material to the findings that the NRC must make. Rather, Contention C is an impermissible challenge to NRC rulemaking limiting the scope of 10 C.F.R. Part 54 to aging-related issues. See Florida Power &

Light Co. (Turkey Point Nuclear Generating Station, Units 3 and 4), LBP-01-6, 53 N.R.C. 138, 163-64 (2001), affd, CLI-01-17, 54 N.R.C. 3 at 15-19 (holding that a contention regarding the alleged health effects of releases of radionuclides and chemicals was unrelated to aging management issues at the core of license renewal proceedings). See also Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), LBP-04-15, 60 N.R.C. 81, 90- 92, reconsideration denied, LBP-04-22, 60 N.R.C. 379, 381-83, affd, CLI-04-36, 60 N.R.C.

631, 637-38 (2004) (contention alleging biological and genetic harm held to be unrelated to aging management and thus outside the scope of the license renewal proceeding).13 13 Numerous other decisions have uniformly held that contentions seeking to raise radiological health effects are outside the scope of a license renewal proceeding. See Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), LBP-08-26, 68 N.R.C. 905, 928-32 (2008); Entergy Nuclear Operations, Inc.

(Indian Point, Units 2 and 3), LBP-08-13, 68 N.R.C. 43, 194-96 (2008); Entergy Nuclear Generation Co., LLC (Pilgrim Nuclear Power Station), LBP-06-23, 64 N.R.C. 257, 341-43, 347-48 (2006); Nuclear Management Co.,

LLC (Palisades Nuclear Plant), LBP-06-10, 63 N.R.C. 314, 354-57 (2006); Nuclear Management Co., LLC (Monticello Nuclear Generating Plant), LBP-05-31, 62 N.R.C. 735, 757-60 (2005); Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2, Catawba Nuclear Station, Units 1 and 2), LBP-02-4, 55 N.R.C. 49, 85-87 (2002).

23

Petitioners refer to 10 C.F.R. § 54.30(a), which provides that, if the reviews required by Section 54.21(a) or (c) show that there is not reasonable assurance during the current license term that licensed activities will be conducted in accordance with the CLB, then the licensee shall take measures under its current license, as appropriate. See Pet. at 16. The reviews required by Sections 54.21(a) and (c) relate to aging management and time-limited aging analysis, and have nothing to do with cancer risk. Further, 10 C.F.R. § 54.30(b) explicitly states that any obligation under 10 C.F.R. § 54.30(a) is not within the scope of the license renewal review.

To the extent that Contention C raises an issue under the National Environmental Policy Act (NEPA), it is an impermissible challenge to the scope of the environmental review prescribed in 10 C.F.R.§ 51.53(c) and to the NRCs generic environmental findings in the GEIS and Appendix B to 10 C.F.R. Part 51. See Turkey Point, LBP-01-6, 53 N.R.C. at 163-64, affd, CLI-01-17, 54 N.R.C. at 15-19. The Petitioners allegations do not relate to any of the matters required to be addressed by 10 C.F.R. § 51.53(c). Instead, to the extent that these allegations may be construed as having any bearing on environmental impacts during the period of extended operation, they relate to and impermissibly challenge the findings on generically resolved Category 1 issues codified in the NRC rules. Radiation exposure to the public during the renewal term is a Category 1 issue determined to have a small impact, based on a generic finding that radiation doses to the public will continue at current levels associated with normal operations. See 10 C.F.R. Part 51, Appendix B, Table B-1. Similarly, the discharge of chlorine and other biocides, the discharge of metals, the discharge of sanitary wastes and minor chemical spills are also Category 1 issues determined to have a small impact. 10 C.F.R. Part 51, Appendix B, Table B-1. See also GEIS, § 4.4.2.2 and Table 4.4.

24

b. Contention C Is Vague, Speculative, And Unsupported By Any Basis Or Information Demonstrating A Genuine Material Dispute Even if Contention C were within the scope of this proceeding, which it is not, it would be inadmissible because it is vague, lacks any basis, and is not supported by any alleged facts or expert opinion, references to documents or other sources, or information raising a genuine material dispute. The only purported support for this Contention are bare cancer rate statistics compiled by an intern whose qualifications to compile or interpret this data are not established.

No expert opinion or other authority is provided to interpret this data or imply any causal relationship with Sequoyahs operation. Without any evaluation by experts in relevant disciplines, such bare statistical information regarding cancer incidence rates fails to satisfy the requirements of 10 C.F.R. § 2.309(f)(1). See Millstone, LBP-04-15, 60 N.R.C. at 90-92 & n.39, reconsideration denied, LBP-04-22, 60 N.R.C. at 381-83 & n.18, affd, CLI-04-36, 60 N.R.C. at 637-38 (2004).

The Petitioners provide no explanation of why the proffered data point to a relationship between cancer rates and Sequoyahs operation. Pet. at 15. The Petitioners identify no particular mechanism - radiation, chemical emissions, etc. - responsible for the referenced cancer rates.

They present no data concerning the types of cancer that have been observed in these populations, and thus no association with cancer types that may be linked to radiation or chemical exposure. They provide no discussion of other factors, such as the demographics in the counties that they have chosen (e.g., the relative age, occupations or lifestyle of the populations) that can significantly affect cancer rates. They provide no discussion of whether there are any environmental differences in the selected counties that might contribute to cancer incidence.

They do not identify the population size or provide any expert analysis of whether the deviations 25

around the state average have any statistical significance or are otherwise out of line with expected standard deviation.14 Indeed, the Petitioners eventually concede that they have no basis for tying cancer rates to Sequoyahs operation by ultimately querying, is the observed fluctuation and general increase caused by [Sequoyah]? and thereafter acknowledging that [f]urther study is needed to answer the question they pose. Pet. at 16. Not only do Petitioners lack an evidentiary basis for the Contentions claims, the Contention itself fails to rise to the level of specific statement of the issue of law or fact to be raised or controverted. 10 C.F.R. § 2.309(f)(1)(i). Consequently, Contention C is plainly inadequate to meet the Commissions standards for pleading an admissible contention. McGuire/Catawba, CLI-03-17, 58 N.R.C. at 424 (contention rule bars contentions where petitioners have what amounts only to generalized suspicions, hoping to substantiate them later) (quoting Oconee, CLI-99-11, 49 N.R.C. at 337-39). See also Progress Carolinas, Inc. (Shearon Harris Nuclear Power Plant, Units 2 and 3), LBP-08-21, 68 N.R.C. 554, 585-86 (2008), affd, CLI-10-9, 71 N.R.C. 245, 271-72 (2010) (rejecting petitioner demand for additional studies absent some basis demonstrating that an application was deficient); Indian Point, LBP-08-13, 68 N.R.C. at 194-96 (rejecting contention demanding further study of alleged elevated cancer rates near the Indian Point facility).

4. Contention D (Assessment of Incidents) Is Inadmissible Contention D, which alleges that TVAs Integrated Plant Assessment (IPA) for the LRA fails to identify and assess safety-related incidents at [Sequoyah] in its required time-14 In fact, the Petitioners omitted data from a county Bradley County, TN less than 10 miles east of Sequoyah that was inconsistent with their claims in Contention C. A cursory review of the 2001-2010 cancer rate data in the State of Tennessees Vital Statistics Summary Resident Report reveals that cancer rates in this relatively populous (ca. 90,000) county were generally well below the average state-wide cancer rates over the time period referenced in Contention C. See Dept of Health, State of Tennessee, Vital Statistics: Tennessee Vital Statistics Summary Resident Data, 2001-2010, available at http://health.state.tn.us/statistics/vital.htm.

26

limited aging analysis (TLAA) (Pet. at 16), is inadmissible because it is beyond the scope of this proceeding and not material to the findings that the NRC must make, contrary to 10 C.F.R. § 2.309(f)(1)(iii)-(iv). In addition, Contention D is not supported by a sufficient basis or information demonstrating a genuine dispute with the LRA, in contravention of 10 C.F.R. § 2.309(f)(1)(ii) and (vi).

a. Contention D Is Outside The Scope Of This Proceeding And Not Material To The Finding That The NRC Must Make Contention D attempts to challenge the LRA on the basis that it lacks a discussion of certain operational inspection findings, which Petitioners pejoratively describe as safety-related incidents, allegedly demonstrating shortcomings of TVA management. Pet. at 16, 18.

Contention D is beyond the scope of the proceeding because it does not relate to the potential effects of aging, which define the scope of the safety review in license renewal proceedings.

Millstone, CLI-04-36, 60 N.R.C. at 637.

As discussed earlier, the Commission has specifically limited this safety review to the matters specified in 10 C.F.R. §§ 54.21 and 54.29(a), which focus on managing the effects of aging of certain systems, structures and components, and the review of time-limited aging evaluations. This scope is based on the principle established in the rulemaking proceedings that, with the exception of the detrimental effects of aging and a few other issues related to safety only during the period of extended operation, the existing regulatory processes are adequate to ensure that the licensing bases of currently operating plants provide and maintain an adequate level of safety. 60 Fed. Reg. at 22,464, 22,481-82. Consequently, license renewal does not focus on operational issues because these issues are effectively addressed and maintained by ongoing agency oversight, review, and enforcement. Millstone, CLI-04-36, 60 N.R.C. at 638 (footnote omitted).

27

In promulgating its license renewal rules, the Commission specifically explained that license renewal proceedings should not include a compliance review duplicating the Commissions ongoing compliance oversight:

Both the licensees programs for ensuring safe operation and the Commissions regulatory oversight have been effective in identifying and correcting plant-specific noncompliances with the licensing bases. These programs will continue to be implemented throughout the remaining term of the operating license, as well as the term of any renewed license. In view of the comprehensiveness, effectiveness, and continuing nature of these programs, the Commission concludes that license renewal should not include a new, broad-scoped inquiry into compliance that is separate from and parallel to the Commissions ongoing compliance oversight activity.

56 Fed. Reg. 64,943, 64,952 (Dec. 13, 1991).15 Contention D impermissibly seeks just such a broad scope inquiry into TVAs compliance that would duplicate the Commissions ongoing oversight. This impermissible focus is clear on the basis of the contention itself, which challenges increasing levels of safety-related incidents identified through the NRCs Reactor Oversight Process (Pet. at 17) and various other operational issues allegedly indicative of shortcomings of TVA management (Pet. at 17-18).

Thus, Petitioners are clearly seeking to duplicate the NRCs ongoing oversight process in this proceeding, thus raising issues that are outside the scope of the proceeding and impermissibly attacking the Commissions determination that, because of the comprehensiveness, effectiveness, 15 The Commission indicated that there would be two situations where specific allegations of non-compliance might be relevant to a license renewal proceeding, but neither of these situations is applicable here.

[A]llegations that the implementation of a licensees proposed actions to address age-related degradation .

. . has or will cause noncompliance with the plants current licensing basis during the period of extended operation, or that the failure of the licensee to address age-related degradation . . . in a particular area has or will cause such noncompliance during the period of extended operation would be valid subjects for contention, since the claim essentially questions the adequacy of the licensees program to address age-related degradation . . . .

56 Fed. Reg. at 64,952 n.1. Here, Petitioners have made no allegation that any of TVAs AMPs has caused, or will cause, non-compliance with the CLB during the period of extended operation. Similarly, Petitioners have made no allegation that any failure by TVA to address age-related degradation in any particular area has caused, or will cause, non-compliance with the CLB during the period of extended operation. Moreover, it is not clear how Petitioners reference to age management problems outside the CLB (Pet. at 17) (emphasis added) relates in any way to safety-related issues that are within the scope of license renewal proceedings.

28

and continuing nature of the NRCs oversight programs, license renewal should not include such a duplicative review.

In fact, Contention D closely resembles a contention focused on operational and management issues that the Commission recently held to be outside the scope of license renewal proceedings:

The matters identified in the inspection reports are subject to the Staffs regulatory oversight process for operating reactors. Litigation of the contention necessarily would involve review of the adequacy of [the applicants] efforts to address the current operational issues identified in the reports. This is precisely the type of duplicative review that appropriately is excluded from a license renewal proceeding; we need not revisit our well-established, ongoing compliance oversight activities.

Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), CLI-11-11, 74 N.R.C. 427, 435-36 (2011). See also Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), CLI-10-27, 72 N.R.C. 481, 491 (2010) (rejecting a contention based upon citations to operational matters that reflect no more than a collection of fundamentally routine inspection findings and regulatory determinations).

Petitioners preface their discussion of this Contention with a reference to statements in the LRA indicating that the Sequoyah Quality Assurance (QA) program provides administrative controls for aging management programs (AMPs) (Pet. at 16-17), but this does not expand the scope of a license renewal proceeding beyond aging management. Even if the handful of inspection findings discussed in this Contention had any bearing on quality assurance (which, as discussed later, is far from apparent), a challenge to an applicants quality assurance program is beyond the scope of license renewal. The Commission has made it abundantly clear that, in addition to safety culture allegations, other broad-based issues such as operational history, quality assurance, quality control, management competence, and human factors are 29

beyond the scope of a license renewal proceeding. Prairie Island, CLI-10-27, 72 N.R.C. at 491 (emphasis added); accord, Diablo Canyon, CLI-11-11, 74 N.R.C. at 435. See also McGuire/Catawba, LBP-02-4, 55 N.R.C. at 114-18 (holding that human performance issues are beyond the scope of a license renewal proceeding); AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), LBP-06-22, 64 N.R.C. 229, 253 (2006) ([T]he Commission made clear in its 1995 Statement of Consideration that a licensees quality assurance program is excluded from license renewal review.). An applicants quality assurance program is part of the CLB unaffected by aging,16 and the scope of license renewal does not include issues related to the plants CLB that already [are] monitored, reviewed, and commonly resolved as needed by ongoing regulatory oversight. Oyster Creek, LPB-05-22, 64 N.R.C. at 253 (citing Turkey Point, CLI-01-17, 54 N.R.C. at 8).

b. Contention D Is Not Supported By Information Demonstrating A Genuine Dispute On A Material Issue Even if a licensees operational performance and compliance history were within the scope of a license renewal proceeding - which, as discussed above, they are not - Contention D would still be inadmissible because it is not supported by any basis, alleged facts or expert opinion, or other information demonstrating the existence of a genuine material dispute with the LRA, as required by 10 C.F.R. § 2.309(f)(1)(ii), (v) and (vi). The thrust of Petitioners claim in Contention D appears to be that the LRA is deficient because the evaluation of TLAA does not assess the so-called safety-related incidents at Sequoyah. Pet. at 16. Insofar as Contention D links the TLAA with reactor oversight issues, it appears premised upon a fundamental 16 The Statement of Considerations provides that the portion of the CLB than can be impacted by the detrimental effects of aging is limited to the design-bases aspects of the CLB. All other aspects of the CLB, e.g., quality assurance, physical protection (security), and radiation protection requirements, are not subject to physical aging processes that may cause non-compliance with those [design-bases] aspects of the CLB. 60 Fed. Reg. at 22,475.

30

misunderstanding of applicable license renewal standards. Moreover, the findings to which Petitioners refer do not provide requisite support for such a claim.

At the outset, Petitioners fail to explain how the operational issues discussed bear any relationship to the evaluation of TLAA17 for Sequoyah, much less how they would give rise to a genuine dispute with the LRA. Petitioners nowhere describe the relevance of the issues listed in Contention D to TVAs evaluation of TLAA. Petitioners do not identify or challenge any of the specific TLAA evaluations in Section 4 of the LRA. Nor do Petitioners identify any specific deficiencies or omissions in the TLAA that are germane to the scope of 10 C.F.R. Part 54 or to the findings the Commission must make. The inspection findings adduced by Petitioners relate to day-to-day operational issues that fall under the NRCs Reactor Oversight Process and bear no relation to any of the TLAA or to aging management. Therefore, such issues are inherently beyond the scope of matters to be considered in the evaluation of TLAA, and accordingly do not present a material dispute with the LRA.

Further, none of the inspection findings to which Petitioners refer relate to any AMPs relied upon to address TLAA, reflect any breakdown in Sequoyahs Quality Assurance program,18 or indeed, even relate to current performance. Petitioners allude to increasing levels of safety-related incidents, both in frequency and severity at Sequoyah within the last six to eight years. Pet. at 17. Petitioners provide no support for this bald assertion in the form of 17 TLAA are licensee calculations and analyses that involve systems, structures and components (SSC) within the scope of the license renewal rules, consider the effects of aging, involve time-limited assumptions defined by the current operating term, were determined to be relevant by the licensee in making a safety determination, involve conclusions or provide the basis for conclusions regarding the capability of the SSC to perform its intended function, and are contained in or incorporated into the CLB. 10 C.F.R. § 54.3. The required TLAA evaluation must demonstrate that the TLAA remain valid for the period of extended operation, the TLAA have been projected to the end of the period of extended operation, or the effects of aging on the intended function(s) will be adequately managed for the period of extended operation. 10 C.F.R. § 54.21(c)(1).

18 Petitioners quote of an excerpt of Appendix B of the LRA dealing with administrative controls pursuant to 10 C.F.R. Part 50, Appendix B, is unavailing, as Petitioners fail to indicate how such matters relate to the TLAA.

See Pet. at 16-17. Moreover, Petitioners do not identify any deficiency concerning this aspect of the LRA.

31

alleged facts, references or expert opinion. Petitioners reference to six findings that occurred in the time frame of 1999 to 2004, with little if anything in common and no apparent relationship to the TLAA, does not support any conclusion regarding current or recent performance.

In fact, the NRCs most recent annual assessment letter, dated March 4, 2013, concludes that overall, Sequoyah Units 1 and 2 operated in a manner that preserved public health and safety and met all cornerstone objectives.19 Currently, Sequoyah Units 1 and 2 are both in the first column (the Licensee Response Column) of the Action Matrix (id.), signifying that [a]ll Action Matrix Inputs are green and that [t]he licensee will receive the complete risk-informed baseline inspection program, and any identified deficiencies are expected to be addressed through the licensees corrective action program. NRC Inspection Manual Chapter 0305 at 18-19 (ADAMS Accession No. ML12089A066). As the NRC Inspection Manual indicates, it is the last Unacceptable Performance column that represents situations in which the NRC lacks reasonable assurance that the licensee can or will conduct its activities to ensure protection of the public health and safety. Id. at 23. Therefore, the statistics and old inspection findings cited by Petitioners do not, on their face, support Petitioners suggestion that these inspection findings indicate performance or management deficiencies that would hinder a finding of compliance with 10 C.F.R. § 54.21(c).20 In sum, while Petitioners have listed a few, decade-old inspection findings and have made unsupported assertions regarding trends in safety-related inspection findings, they have not 19 Annual Assessment Letter for Sequoyah Nuclear Plant Units 1 and 2 (Report 05000327/2012001 and 5000328/2012001) at 1 (Mar. 4, 2013), available at http://www.nrc.gov/NRR/OVERSIGHT/ASSESS/LETTERS/seq_2012q4.pdf.

20 It should be noted that all Performance Indicators for Sequoyah Units 1 and 2 are Green. See http://www.nrc.gov/NRR/OVERSIGHT/ASSESS/SEQ1/seq1_chart.html; http://www.nrc.gov/NRR/OVERSIGHT/ASSESS/SEQ2/seq2_chart.html. Green Performance Indicators represent acceptable performance in which cornerstone objectives are fully met and likewise have little or no impact on safety. See http://www.nrc.gov/NRR/OVERSIGHT/ASSESS/#section1.

32

provided information demonstrating a genuine dispute with the LRA. Those inspection findings identified by Petitioners show an NRC inspection and oversight process that is working to identify and require correction of performance issues in a manner maintaining reasonable assurance of safe operation. In essence, contrary to the principles on which the license renewal rules are based, Contention D simply ignores the effectiveness of the NRC's inspection and enforcement programs. See Louisiana Energy Services, L.P. (Claiborne Enrichment Center),

CLI-97-15, 46 N.R.C. 294, 306-07 (1997) (in the end, NRC inspections and enforcement action go a long way toward ensuring compliance with our requirements). Petitioners have provided no documentation showing that TVA is likely to violate the license renewal requirements, and their unsupported speculation that TVA may contravene the NRC rules is not an adequate basis for a contention. GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station), CLI-00-06, 51 N.R.C. 193, 207 (2000) (absent documentary support that an applicant is likely to violate NRC regulations, this agency has declined to assume that licensees will contravene our regulations)

(citing Curators of the University of Missouri, CLI-95-8, 41 N.R.C. 386, 400 (1995)); Northern Indiana Public Service Co. (Bailly Generating Station, Nuclear-1), ALAB-207, 7 A.E.C. 957, 958 (1974); Virginia Electric & Power Co. (North Anna Power Station, Units 3 and 4), LBP 56, 8 A.E.C. 126, 148 (1974).

5. Contention E (Plutonium Fuel) Is Inadmissible Contention E, which alleges that the LRA is deficient for failing to discuss the possible use of plutonium fuel at Sequoyah (Pet. at 18), is inadmissible because it is not supported by information demonstrating an issue that is material to the findings that the NRC must make, as required by 10 C.F.R. § 2.309(f)(1)(iv), and does not demonstrate a genuine dispute with the LRA on a material issue, contrary to 10 C.F.R. § 2.309(f)(1)(vi). In addition, Contention E is not 33

supported by any relevant basis or alleged facts or expert opinion, thus failing to satisfy 10 C.F.R. § 2.309(f)(1)(ii) and (v).

a. Contention E Fails To Raise An Issue Material To The Findings That The NRC Must Make And Fails To Demonstrate A Genuine Material Dispute With The LRA In support of Contention E, Petitioners allege that [Sequoyahs] nuclear reactors are under consideration for plutonium fuel and infer that, based upon a recent U.S. Department of Energy supplemental environmental impact statement listing Sequoyah as a possible candidate site for use of mixed oxide (MOX) fuel, TVA appears to be stepping into the breach. Pet. at 18-19. Such a presumption as to future actions not proposed by TVA does not raise a material issue of fact with the LRA. Although TVA has indicated that it is evaluating the potential use of MOX fuel at Sequoyah, 21 it has made no decision, commitment or plan to do so. Accordingly, MOX is not part of the plants CLB, nor has TVA formally proposed any such use of MOX at Sequoyah. Safety issues relating to the prospective use of MOX fuel at Sequoyah are not relevant to this proceeding unless and until TVA proposes to amend its license to allow for use of MOX fuel. Because no such amendment has been proposed, Contention E has no bearing on the adequacy of the LRA or on the findings the NRC must make in this proceeding.22 Anticipated changes to an application, not reflected in the application currently before the NRC, are not sufficient to support admission of a contention. See Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI-02-14, 55 N.R.C.

278, 294 (2002). In the McGuire/Catawba license renewal proceeding, the Commission rejected a nearly identical contention by BREDL claiming that use of MOX fuel should be evaluated. In 21 See Tennessee Valley Authority, Nuclear Energy: Why TVA Needs Nuclear Today and Tomorrow, at 10 (April 2012), available at http://www.tva.com/power/nuclear/pdf/Nuclear_White_Paper.pdf.

22 If TVA were to pursue license amendments to allow use of MOX fuel, the license amendment process would provide an appropriate opportunity for public involvement at that juncture.

34

so doing, the Commission held that license renewal is not an occasion for far-reaching speculation about unimplemented and uncertain plans like Dukes MOX plan. Id. at 293. See also Shaw Areva MOX Services (Mixed Oxide Fuel Fabrication Facility), LBP-08-11, 67 N.R.C.

460, 479 (2008) ([A] contention dealing with changes that have not yet been presented to the agency (e.g., as an amendment to the Application) must fail because a possible future action must at least constitute a proposal pending before the agency to be ripe for adjudication)

(internal quotations and footnote omitted). Here, Petitioners challenge to the LRA is premised upon pure speculation as to the potential future plans of TVA that are not before the Commission and thus would be futile to litigate at this juncture. The proposed contention is premature, unsupported, and does not raise a material dispute with the LRA or an issue that is material to the findings that the NRC must make.23

b. Contention E Is Not Supported By An Adequate Basis In Alleged Facts Or Expert Opinion Contention E rests entirely on speculative assumptions, not alleged facts or expert opinions, or any other basis warranting NRC inquiry. As Petitioners acknowledge, use of MOX fuel is only under consideration. Pet. at 18. Nowhere do Petitioners cite facts or documents that support their underlying premise for an inquiry into the safety-related issues associated with use of MOX fuel - that TVA actually intends to employ MOX fuel at Sequoyah and has made such a proposal. Petitioners cannot use Contention E as a placeholder for future litigation of a hypothetical amendment of the Sequoyah LRA. Petitioners cannot base their contention solely on generalized suspicions, hoping to substantiate them later. McGuire/Catawba, CLI-03-17, 58 23 Further, to the extent that Contention E is premised upon a hypothetical modification of Sequoyahs CLB, it represents a request for an advisory opinion on an issue that is not ripe for adjudication. See U.S. Department of Energy (High-Level Waste Repository), CLI-08-21, 68 N.R.C. 351, 352-53 (2008). See also Florida Power &

Light Co. (Turkey Point Units 6 and 7), Memorandum and Order (Denying Without Prejudice Joint Intervenors Motion to Admit New Contention), slip op. at 7 n.13 (Mar. 28, 2013) (ADAMS Accession No. ML13087A439).

35

N.R.C. at 424. Because none of these speculative assumptions is accompanied by an adequate basis in alleged facts or expert opinions, Contention E is inadmissible.

6. Contention F-1 (Aging Management Of Ice Condenser Containment) Is Inadmissible Contention F-1, which alleges that the Application lacks acceptable aging plans to adequately maintain the Sequoyah containment (Pet. at 21), is inadmissible for several reasons.

Contention F-1 is inadmissible because it fails to discuss or identify any deficiency in the AMPs contained in the Sequoyah LRA, impermissibly challenges AMPs which have been approved by NRC rules, and is not supported by any information demonstrating a genuine, material dispute with those AMPs.

a. Contention F-1 Is Inadmissible Because It Fails To Challenge The AMPs In The LRA Contention F-1 is inadmissible because it fails to include references to the specific portions of the LRA that Petitioners dispute and the reasons supporting such dispute, as required by 10 C.F.R. § 2.309(f)(1)(vi), and thus fails to provide sufficient information to show a genuine material dispute with the LRA. Nowhere in Contention F-1 or in the Gundersen Declaration (Gundersen Decl.) is there a single reference to the relevant AMPs identified in the LRA, let alone any discussion of why these AMPs are inadequate.

Contention F-1 appears to focus on potential corrosion of the steel containment vessel (SCV)24 in the region of the ice baskets where the interior of the SCV is inaccessible. See Pet.

at 22. No other effect or location is mentioned in Contention F-1 or the Gundersen Declaration.

24 The Sequoyah containment vessel is a freestanding, welded steel structure with a vertical cylinder, hemispherical dome, and a flat circular base that provides primary containment. It is enclosed in a reinforced concrete shield building that protects the containment vessel from external events and is separated by an annular space. LRA at § 2.3.2.4. The annular space between the steel containment vessel and shield building is five feet wide. Sequoyah Nuclear Plant, Updated Final Safety Analysis Report (UFSAR) § 6.2.1.2.2(1). The UFSAR may be obtained from the NRCs Public Document Room.

36

Consistent with the NRCs Generic Aging Lessons Learned (GALL) Report,25 the LRA identifies two AMPs that manage this potential aging effect: the Containment Inservice Inspection - IWE Program and the Containment Leak Rate Program.26 See LRA at § 3.5.2.2.1.3 and Table 3.5.1, Item 3.5.1-5. These two AMPs are described in B.1.6 and B.1.7 of the LRA and are consistent with the corresponding programs described in Section XI.S1 and Section XI.S4 of the GALL Report, respectively. See LRA at B-27, B-31.

The Containment Inservice Inspection - IWE Program implements the requirements of 10 C.F.R. § 50.55a, which imposes the inservice inspection (ISI) program requirements of the ASME Boiler and Pressure Vessel Code,Section XI, Subsection IWE (IWE), for steel containments. LRA at B-27; GALL Report at XI S1-1. Although the primary ISI method specified in the IWE is visual examination, limited volumetric examination (ultrasonic thickness measurement) and surface examination (e.g., liquid penetrant) may also be necessary in some instances. GALL Report at XI S1-1. IWE specifies acceptance criteria, corrective actions, and expansion of the inspection scope when degradation exceeding the acceptance criteria is found.

GALL Report at XI S1-1. While IWE exempts embedded or inaccessible portions of the containment from examination if they met the requirements of the original construction code of record (GALL Report at XI S-2), NRC rules incorporating IWE contain additional requirements for inaccessible areas (10 C.F.R. § 50.55a(b)(2)(ix)), and these requirements are included in the AMP. In particular, the licensee is to evaluate the acceptability of inaccessible areas when conditions exist in accessible areas that could indicate the presence of or result in degradation to 25 NRC, NUREG-1801, Generic Aging Lessons Learned (GALL) Report, Rev. 2, at II A2-6 (Dec. 2010) (GALL Report).

26 The AMPs managing age effects for other components of the containment system include the Structures Monitoring Program (applicable to the concrete shield building and other structures) and the Boric Acid Corrosion Program (applicable to containment system components potentially exposed to boric acid). See LRA at B.1.40 and B.1.3.

37

such inaccessible areas. GALL Report at XI S1-2.27 In addition, moisture barriers are examined for wear, damage, erosion, tear, surface cracks, or other defects that permit intrusion of moisture in the inaccessible areas of the pressure retaining surfaces of the metal containment shell or liner.

Id. at XI S-2 to XI S-3.

The Containment Leak Rate Program consists of tests performed in accordance with the program requirements provided in 10 C.F.R. Part 50, Appendix J, Primary Reactor Containment Leakage Testing for Water-Cooled Power Reactors, Option B, and related guidance. LRA at B-

31. Type B tests are intended to detect local leaks and to measure leakage across each pressure-containing or leakage-limiting boundary of containment penetrations. As 10 C.F.R. Part 50, Appendix J and the GALL Report (at XI S4-1) state, containment leak rate tests are required to assure that (a) leakage through these containments or systems and components penetrating these containments does not exceed allowable leakage rates specified in the technical specifications and (b) integrity of the containment structure is maintained during its service life.

The LRA concludes that continued monitoring of the SCV for loss of material through these two AMPs provides reasonable assurance that loss of material in inaccessible areas of the SCV is insignificant and will be detected prior to a loss of an intended function. LRA at § 3.5.2.2.1.3. Neither Contention F-1 nor the Gundersen Declaration challenges this conclusion.

Neither Contention F-1 nor the Gundersen Declaration discusses or disputes the adequacy of 27 10 C.F.R. § 50.55a(b)(2)(ix) provides that, for Class MC applications (i.e., steel containments), the following apply to inaccessible areas.

(1) The applicant or licensee shall evaluate the acceptability of inaccessible areas when conditions exist in accessible areas that could indicate the presence of or result in degradation to such inaccessible areas.

(2) For each inaccessible area identified for evaluation, the applicant or licensee shall provide the following in the ISI Summary Report as required by IWA-6000:

(i) A description of the type and estimated extent of degradation, and the conditions that led to the degradation; (ii) An evaluation of each area, and the result of the evaluation, and; (iii) A description of necessary corrective actions.

38

these AMPs. Indeed, there is no indication that the Petitioners or Mr. Gundersen have even read these portions of the LRA. As the Commission has previously admonished, those submitting petitions challenging a license renewal application have an ironclad obligation to review the Application thoroughly and to base their challenges on its contents. NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 N.R.C. 301, 312 (2012) (footnote omitted).28 The Petitioners have not done so.

b. The Petitioners Challenge To These AMPs Constitutes An Impermissible Challenge To The NRC Rules Because Contention F-1 and the Gunderson Declaration provide absolutely no discussion of the relevant AMPs in the LRA, it is not clear why the Petitioners may believe that the relevant AMPs in the LRA are inadequate. But if the Petitioners are suggesting that the IWE and Appendix J program requirements incorporated within Sequoyahs AMPs are generally inadequate, any such challenge should be rejected as an impermissible challenge to the NRC rules. Here, the IWE and Appendix J program requirements on which Sequoyahs LRA relies have been established by NRC regulation. Contentions challenging NRC rules are barred by 10 C.F.R. § 2.335(a) and do not meet the requirement in 10 C.F.R. § 2.309(f)(1)(iii)-(iv) requiring demonstration that the issue raised in the contention is within the scope of the proceeding and material to the findings that the NRC must make.

As previously discussed, the requirement to perform inspections under the IWE Program and the manner in which inaccessible areas are addressed are established by NRC rule at 10 C.F.R. § 50.55a(b)(2)(ix). In promulgating this rule, the Commission explicitly recognized that 28 In Seabrook, the Commission overturned the admission of a contention challenging AMPs for inaccessible electrical cables that were consistent with the GALL Report. Finding that the petitioners dispute[d] none of this

- neither addressing the testing plan in the AMP nor explaining why it is inadequate - the Commission held that the petitioners had presented no genuine issue of material law or fact. Seabrook, CLI-12-5, 75 N.R.C. at 311.

See also id. at 315.

39

IWE inspection requirements incorporated into the NRC rules are an effective AMP for license renewal:

Because Subsections IWE and IWL were developed by the ASME with industry input and found to be acceptable by NEI for managing age-related degradation for the license renewal period, the NRC believes that adoption of those programs at this time is the best approach. The NRC also believes that with the implementation of Subsections IWE and IWL, the detrimental effects of containment aging will be adequately managed during the current operating term, as well as the license renewal term.

61 Fed. Reg. at 41,303, 41,307 (Aug. 8, 1996) (emphasis added). See also id. at 41,304 (The NRC agrees with NEI that these ASME standards, which the industry has participated in developing, would be an effective means for managing age-related containment degradation.).

Similarly, the contents of Sequoyahs Containment Leak Rate Testing Program are established by the NRC rules at 10 C.F.R. Part 50, Appendix J, which on its face states that the Option B testing ensure that (a) leakage through these containments or systems and components penetrating these containments does not exceed allowable leakage rates specified in the technical specifications; and (b) integrity of the containment structure is maintained during its service life. 10 C.F.R. Part 50, Appendix J, Option B, § I. Moreover, the IWE requirements in 10 C.F.R. § 50.55a(b)(2)(ix) were promulgated to expand upon the containment inspection requirements in Appendix J (see 61 Fed. Reg. at 41,306) and thus, these two rules are closely connected.

In sum, the NRC has established by regulation the steps by which a licensee is to manage the aging effects for the SCV. The LRA fully addresses and embraces the requirements of the NRC regulations. Contention F-1s challenge of the adequacy of these programs is a collateral attack on the NRC regulations defining those programs. Hence the contention must be rejected as an impermissible challenge to NRC regulations. See Southern Nuclear Operating Co. (Vogtle 40

Electric Generating Plant, Units 3 and 4), LBP-10-21, 72 N.R.C. 616, 655-57 (2010), affd, CLI-11-8, 74 N.R.C. 214, 230-31 (2011) (rejecting a contention challenging an applicants reliance on IWE as an inadmissible collateral attack on NRC regulations at 10 C.F.R. § 50.55a).

c. None Of The Brief Information Provided By Petitioners Raises Any Genuine Material Dispute With These AMPs Even if the adequacy of the IWE and Appendix J requirements incorporated within Sequoyahs AMPs were subject to challenge, the Petitioners have provided no basis for challenging them as required by 10 C.F.R. § 2.309(f)(1)(ii), and no information demonstrating a genuine material dispute with the AMPs in the Application as required by 10 C.F.R. § 2.309(f)(1)(vi). Not only have the Petitioners failed to address the relevant AMPs in the LRA (which is grounds by itself to reject Contention F-1), but also, none of the brief information offered in Contention F-1 and the Gundersen Declaration comes close to calling those AMPs into question.

In this regard, it bears repeating that (apart from the endorsement in the NRC rules discussed above) the AMPs credited with managing the effects of aging in inaccessible areas of the SCV are approved for this purpose by the GALL Report. See GALL Report at XI.S1 and XI.S4. The NRC Staff prepared the GALL Report to identify generic AMPs that the Staff has found acceptable, based on experience and analyses. AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-23, 68 N.R.C. 461, 467 (2008). An applicant may reference the GALL Report to demonstrate that the programs at the applicants facility correspond to those reviewed and approved therein. Id. at 468. Use of an AMP consistent with the GALL Report constitutes reasonable assurance that the targeted aging effect will be adequately managed during the renewal period. Id. See also Entergy Nuclear Vermont Yankee, L.L.C. (Vermont Yankee Nuclear Power Station), CLI-10-17, 72 N.R.C. 1, 36 (2010); Seabrook, 41

CLI-12-5, 75 N.R.C. at 315. Consequently, the Commission has endorsed license renewal applicants practice of noting their AMPs consistency with the contents of the GALL Report:

The GALL Report provides that one way a license renewal applicant may demonstrate that an AMP will effectively manage the effects of aging during the period of extended operation is by stating that a program is consistent with or based on the GALL Report.

Vermont Yankee, CLI-10-17, 72 N.R.C. at 37 (emphasis in original) (footnote omitted). While referencing an AMP in the GALL Report does not insulate it from challenge (Seabrook, CLI 5, 75 N.R.C. at 315), the guidance in the GALL Report is entitled to special weight (id. at 314 n.78), and a contention challenging such an AMP must be adequately supported (see id. at 315).

None of the claims made in Contention F-1 or the Gunderson Declaration provide any basis to question the adequacy of these AMPs approved by and consistent with the GALL Report. Contention F-1 first claims that [f]or more than 15 years, the industry has known that Aging Management Programs on [ice condenser] containments are inadequate according to the Sandia National Laboratory Report entitled, Analyses of Containment Structures with Corrosion Damage. Pet. at 22. That Sandia Report, however predates the IWE requirements.29 Thus, the Sandia Report does not relate to, and has no bearing on, this AMP.

Further, although Contention F-1 and the Gunderson Declaration both characterize this 17-year-old report as demonstrating a class-wide problem with corrosion of the steel containment in the vicinity of the ice basket that is known to have already occurred and postulated to occur in the future (Pet. at 22-23; Gunderson Decl. at ¶¶ 17-19), the Sandia Report says nothing of the 29 The Gundersen Declaration provides a link to the Sandia Report (Gundersen Decl. at 7 n.11) and that copy indicates that the report was received on July 30, 1996. The NRC rule requiring inservice testing in accordance with Section IWE of the ASME Code was not promulgated until August 8, 1996 and did not become effective until September 9, 1996. 61 Fed. Reg. at 41,303.

42

sort.30 Rather, the Sandia Report contains only a statement that the steel containment in the vicinity of the ice basket region has an abstract potential for localized corrosion at the ice basket region (Sandia Report at 5) (emphasis added), not that corrosion at the ice basket region has been observed or will occur in the future at Sequoyah. Moreover, the Sandia Report nowhere evaluates the ability of AMPs at Sequoyah or any other plant to prevent any such corrosion. Similarly, references in the passages from the Sandia Report quoted in Contention F-1 and the Gunderson Declaration to corrosion near the top of the ice basket and narrow band[s] of corrosion [that] occurred in the vertical direction on a cylindrical containment (Pet.

at 22; Gunderson Decl. at ¶ 17) do not refer to observed or predicted corrosion at Sequoyah or another plant, but to corrosion locations conservatively assumed for the purpose of finite element analysis performed for the hypothetical, typical ice condenser containment. See Sandia Report at 6, 9. Further, neither Contention F-1 nor the Gunderson Declaration explain how the contents of the Sandia Report either its statements regarding the abstract potential for corrosion at the ice basket region, or its modeling assumptions relate to AMPs for corrosion control at Sequoyah or any other facility.

In this regard, neither Contention F-1 nor the Gunderson Declaration attempts to address the relevant Sequoyah-specific information available in the LRA and in the docket. For example, Petitioners and Mr. Gundersen do not address or explain any inadequacy in the design features that prevent corrosion of the SCV in the ice condenser region. As described in UFSAR 30 It is well established that, in determining the admissibility of a contention, licensing boards are to carefully examine[] documents provided in support of a contention to determine whether they supply an adequate basis for the contention. Dominion Nuclear North Anna, LLC (Early Site Permit for North Anna ESP Site), LBP 18, 60 N.R.C. 253, 265 (2004). A document put forth by a petitioner as the basis for a contention is subject to Board scrutiny, both as to the portions that support the petitioners assertions and those that do not. See, e.g.,

Virginia Electric & Power Co. (Combined License Application for North Anna Unit 3), LBP-08-15, 68 N.R.C.

294, 334 & n.207 (2008); Yankee Atomic Electric Co. (Yankee Nuclear Power Station), LBP-96-2, 43 N.R.C. 61, 90 & n.30 (1996). See also id. at 88-89 (rejecting a contention where the document referenced by petitioner on its face failed to establish a disputed material issue).

43

§ 6.5.2.2, there are wall panels from the lower floor wear slab up to the bottom of the upper plenum (approximately at the intermediate deck); and polyurethane foam insulation poured between the wall panels and the SCV thermally insulates the ice bed from the containment wall and eliminates any volume for vapor or moisture intrusion at the SCV in the vicinity of the ice condenser. UFSAR § 6.5.11 describes an array of blanket panels atop the upper plenum that form a thermal and vapor barrier extending from the intermediate deck to the top deck.

Additionally, Section 6.2.1.6 of the UFSAR indicates that the SCV itself is covered by a protective coating. As described in UFSAR § 3.8.2.2.2, the operating parameters temperatures and humidity, etc. for the ice basket region of the ice condenser containment would generally inhibit moisture deposition on the interior surface of the SCV. Neither Petitioners nor Mr. Gundersen address any of this information. [A]n intervention petitioner has 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. Duke Power Co. (Catawba Nuclear Station, Units 1 and 2), ALAB-687, 16 N.R.C. 460, 468 (1982). Petitioners have not met this obligation.

Similarly, neither the Petitioners nor Mr. Gundersen attempt to address Sequoyahs evaluation of inspection results in accessible areas and absence of any conditions (such as degradation of the insulation and moisture barriers) that would warrant further scrutiny of inaccessible areas. As the LRA states, [f]or examinations performed during the Unit 1 refueling outage in April 2009, no degraded conditions were identified in accessible portions of the containment vessel which would require additional examinations or evaluation of inaccessible areas. LRA at B-28. Similarly, the examinations performed during the Unit 2 refueling outage 44

in November 2009 did not identify degradation in accessible portions of the containment vessel that would require additional examinations or evaluation of inaccessible areas. 31 Id. Neither Petitioners nor Mr. Gundersen address or provide any basis to dispute this evaluation. Moreover, as reflected by other docketed correspondence, Sequoyah has previously performed ultrasonic thickness measurements on the exterior side of the SCV at the areas adjacent to the ice condenser, and these measurements revealed no areas below the original nominal wall plate thickness.32 Neither Petitioners nor Mr. Gundersen address this docketed information, or point to any other inspection report or industry operating experience indicating that corrosion of the SCV is likely to be occurring in the region made inaccessible by the ice condenser system.

Contention F-1 next claims that Sequoyah AMPs should incorporate specific action plans to address design and operational flaws (Pet. at 22). This claim is not only baseless but also an impermissible collateral challenge to the license renewal rules. The adequacy of the ice condenser containment design is not within the scope of this proceeding. As explained earlier, NRC license renewal proceedings are concerned with aging-related issues, and not the adequacy of a plants CLB.33 In particular, the NRCs license renewal rules require a license application to demonstrate that the effects of aging will be adequately managed so that the intended 31 More recent inspections of accessible areas of Unit 2s SCV did not reveal evidence of degradation in inaccessible areas. See Letter from J. Shea, TVA to NRC Document Control Desk, Unit 2 Refueling Outage 18 -90 Day Inservice Inspection Summary Report at E-4 (Apr. 8, 2013) (ADAMS Accession No. ML13101A120).

32 Letter from TVA to NRC, Sequoyah Nuclear Plant (SQN) - Units 1 and 2 - Technical Specification (TS) Change No. 02-07, One Time Frequency Extension for Type A Test (Containment Integrated Leak Test [CILRT] at E1-10 to E1-11 (Oct. 4, 2002) (ADAMS Accession No. ML022940477); Letter from M. Marshall, NRC, to J. A.

Scalise, TVA, Sequoyah Nuclear Plant, Units 1 and 2 - Issuance of Amendments Regarding Risk Informed Integrated Leak Rate Testing Extension Encl. 3 (Safety Evaluation) at 6 (May 29, 2003) (ADAMS Accession No. ML031500140). See also Letter from J. L. Wilson, TVA, to NRC Document Control Desk, Sequoyah Nuclear Plant (SQN) - Ice Condenser Lower Plenum Floor Movement and Degradation at 4 (Mar. 27, 1992)

(describing satisfactory borescope inspections of some inaccessible areas of Unit 1s SCV); NRC, Inspection Report Nos. 50-327/92-10 & 50-328/92-10, at 4 (Apr. 21, 1992) (noting that NRC inspectors observed TVA personnel conduct a borescope inspection of some inaccessible areas of Unit 1s SCV that yielded no evidence of degradation).

33 See Union Electric Co. d/b/a Ameren Missouri (Callaway Plant, Unit 2), CLI-11-5, 74 N.R.C. 141, 164 (2011);

Turkey Point, LBP-01-6, 53 N.R.C. at 165-66, affd, CLI-01-17, 54 N.R.C. 3, 8-10, 23 (2001).

45

function(s) will be maintained consistent with the CLB during the period of extended operation.

10 C.F.R. § 54.21(a)(3) (emphasis added). Therefore, under the license renewal rules, AMPs are only required to address aging effects, not design and operational issues. Because Contention F-1 and the Gunderson Declarations claims of design and operational flaws exceed the scope of aging management required by the rule and instead challenge Sequoyahs CLB, those claims are outside the scope of the proceeding and impermissible challenges to the NRC rulemaking limiting the scope of 10 C.F.R. Part 54.

In any event, not one of the references provided in the Gunderson Declaration in support of its claims characterizes ice condenser containments as having design and operational flaws or critical design defects, whether in the passages provided or elsewhere in the cited documents. Gunderson Decl. at ¶¶ 15, 20. Rather, the supplied passages identify no more than known limitations of ice condenser containments; they nowhere identify these limitations as creating the substantial safety hazards required to qualify as a defect in NRC regulations. 10 C.F.R. § 50.2. Further, those limitations that the Gunderson Declaration casts as defects relate to beyond-design-basis events (core damage scenarios and certain large-break Loss of Coolant Accidents (LOCAs)), 34 and marginally different maintenance requirements compared to other PWR containments designs.35 The Gunderson Declaration nowhere explains how the inherent limitations it identifies rise to the level of design defects in any ice condenser containment, let alone those at Sequoyah. Similarly, the Gunderson Declaration supplies anecdotal examples of 34 Gunderson Decl. at ¶¶ 15.1 (discussing ice condenser containment performance in a direct containment heating (DCH) scenario), 15.3 (discussing ice condenser containment performance during a large-break LOCA in which containment heat removal capability has been exhausted and the operating containment spray pump fails),

15.4 (discussing ice condenser containment performance during very low probability events resulting in DCH scenarios). DCH scenarios are beyond-design-basis events in which core damage has resulted in the ejection of hot corium from the core. See Sandia Natl Labs., NUREG/CR-6427 Assessment of the DCH Issue for Plants with Ice Condenser Containments at xv (Apr. 2000) (ADAMS Accession No. ML003712849).

35 Gunderson Decl. at ¶ 15.2 (describing time-consuming maintenance-related activities as a challenge[]

associated with the ice condenser containments).

46

maintenance issues in plants other than Sequoyah, nowhere explaining how those plant-specific maintenance issues speak to generic design defects applicable to Sequoyah or any other facility.36 Consequently, even if they were permissible (which they are not), Contention F-1s claims regarding generic design and operational flaws in ice condenser containments lack any basis and do not create a material dispute with the LRA.

Finally, if the Petitioners claim that the LRA lacks a Sequoyah specific AMP (Pet. at 22-23) is intended to imply that Sequoyah cannot rely on AMPs approved by the GALL Report, it is flatly inconsistent with the Commissions precedents and utterly without basis. The Commission has specifically stated that an applicant may reference the GALL Report to demonstrate that the programs at the applicants facility correspond to those reviewed and approved therein. Oyster Creek, CLI-08-23, 68 N.R.C. at 468. There is no requirement that an applicant reinvent the wheel, and neither the Petitioners nor Mr. Gundersen have provided any information indicating that the programs the NRC Staff has carefully reviewed and approved may not be applied to Sequoyah. Further, it bears mentioning that Sequoyahs is not the first license renewal application that the NRC Staff has reviewed for a plant with an ice condenser containment. In reviewing earlier applications for the McGuire, Catawba, and D.C. Cook facilities, the NRC Staff determined that those applications incorporation of the Containment Inservice Inspection and Containment Leakage Rate Test Programs as described in the GALL Report resulted in reasonable assurance that those facilities will be maintained consistent with their respective CLBs throughout the period of extended operation.37 36 Gunderson Decl. at ¶ 15.5 (referring to maintenance issues at the McGuire, D.C. Cook, and Catawba facilities).

The referenced Incident Reports nowhere characterize the issues identified at specific plants as design defects present in other ice condenser containments.

37 See NUREG-1772, Safety Evaluation Report Related to the License Renewal of McGuire Nuclear Station, Units 1 and 2, and Catawba Nuclear Station Units 1 and 2, at 3-10 to 3-22 (Mar. 2003)(ADAMS Accession No.

47

7. Contention F-2 (SAMA Analysis) Is Inadmissible Contention F-2, which calls for the NRC to reject the LRA unless TVA can prove that the Sequoyah containment can withstand severe accidents without leaking (Pet. at 23; Gunderson Decl. at ¶ 29), is inadmissible because it: (1) challenges the NRCs rules and is therefore beyond the scope of the proceeding and not material to the findings that the NRC must make, thus failing to satisfy 10 C.F.R. § 2.309(f)(1)(iii)-(iv); and (2) lacks any supporting basis or information demonstrating a genuine, material dispute with the LRA, thus failing to satisfy 10 C.F.R. § 2.309(f)(1)(ii) and (vi). Although Petitioners and Mr. Gunderson suggest that such a showing must be made as part of Sequoyahs Severe Accident Mitigation Alternatives (SAMA) analysis (Pet. at 25; Gunderson Decl. at ¶ 28), Contention F-2 appears to be challenging the adequacy of the plants design as a safety matter, and is merely relying on a misinterpretation of a background statement in the ER as a pretext to do so. Neither Petitioners nor Mr. Gunderson identify any deficiency in the SAMA analysis - i.e., they do not indicate that any analysis of potentially cost-beneficial mitigation alternatives is incorrect, or that any mitigation alternative has been omitted.

a. Contention F-2 Impermissibly Challenges The NRC Rules And Is Outside The Scope Of The Proceeding And Not Material To The Findings That The NRC Must Make Contention F-2 is inadmissible because it seeks to raise a design issue (the adequacy of the containment) and challenges Sequoyahs CLB. Contention F-2 has nothing to do with managing the effects of aging. As explained earlier, NRC license renewal proceedings are concerned with aging-related issues, not the adequacy of a plants CLB. Turkey Point, CLI ML030850251); NUREG-1831, Safety Evaluation Report Related to the License Renewal of the Donald C.

Cook Nuclear Plant, Units 1 and 2, at 3-51, 3-211 (July 2005) (ADAMS Accession No. ML052230442). Note that the McGuire/Catawba and D.C. Cook applications referenced earlier revisions of the GALL Report than the revision (Revision 2) referenced in Sequoyahs LRA.

48

17, 54 N.R.C. at 8-10. Consequently, inasmuch as Contention F-2 seeks proof that the Sequoyah containment will not leak under severe accident conditions, the contention is an inadmissible challenge to the NRC rulemaking limiting the scope of 10 C.F.R. Part 54, is outside the scope of this proceeding, and is not material to the findings that the NRC must make.

Furthermore, the assertion that TVA must prove that the Sequoyah containment will not leak under severe accident conditions is an impermissible challenge to the NRCs rules. General Design Criterion 16 in 10 C.F.R. Part 50, Appendix A, requires containments to remain essentially leak-tight during postulated accidents - i.e., those design-basis events analyzed in the FSAR.38 Severe accidents generally refer to beyond-design-basis events.39 To the extent that Petitioners and Mr. Gunderson are asserting that Sequoyahs containment must be leak tight under beyond-design-basis conditions, the contention impermissibly challenges General Design Criterion 16 and is therefore barred from this proceeding. 10 C.F.R. § 2.335(a).

The Petitioners and Mr. Gundersons references to a statement in TVAs ER (Pet. at 24; Gunderson Decl. at ¶ 26) and attempt to link it to the SAMA analysis do not make this contention any less of an impermissible challenge to NRC rules. NRC rules require that the ER provide a consideration of alternatives to mitigate severe accidents (10 C.F.R. § 51.53(c)(3)(ii)(L)), and such an analysis is a cost-benefit analysis. Seabrook, CLI-12-5, 75 38 Florida Power & Light Co. (St. Lucie Nuclear Power Plant, Unit No. 2), CLI-81-12, 13 N.R.C. 838, 844 (1981)

(staff's licensing review of a nuclear power plant includes an analysis of the plant's responses to certain postulated accidents referred to as design basis events. These accident scenarios are chosen on the basis of staff's engineering judgment . . . .). See also Philadelphia Electric Co. (Limerick Generating Station, Units 1 and 2),

LBP-83-39, 18 N.R.C. 67, 86 (1983) ([P]ostulated accidents is a term of art which refers to design basis accidents.); Regulatory Guide 4.2, Rev. 2, Preparation of Environmental Reports for Nuclear Power Stations, at Appendix I (July 1976) (identifying the Class 8 accidents considered in the design-basis evaluation within safety analysis reports) (ADAMS Accession No. ML003739519).

39 Policy Statement on Severe Reactor Accidents Regarding Future Designs and Existing Plants, 50 Fed. Reg.

32,138, 32,139 (Aug. 8, 1985) (severe accidents are those which are beyond the substantial coverage of design basis events). See also Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),

ALAB-880, 26 N.R.C. 449, 458-59 (1987); GEIS, § 5-1.

49

N.R.C. at 322. There is simply nothing in these rules that condition licensing on proof that the containment will not leak under severe accident conditions. Indeed, Petitioners and Mr.

Gundersons attempt to construe the SAMA analysis as requiring such a demonstration is inconsistent with the entirely procedural nature of NEPA. Robertson v. Methow Valley Citizens Council, 490 U.S. 332, 350 (1989) (NEPA itself does not mandate particular results, but simply prescribes the necessary process.). Because Petitioners and Mr. Gunderson are calling for a demonstration beyond that required by the NRC rules requiring SAMA analysis, their attempt to characterize this allegation as an environmental contention constitutes an impermissible challenge to 10 C.F.R. § 51.53(c), which prescribes and limits the required content of the ER.

b. Contention F-2s Claims Regarding The Adequacy Of Sequoyahs SAMA Analysis Lack Basis And Are Not Supported By Information Demonstrating A Genuine Dispute With The LRA Contention F-2 is also inadmissible because it does not challenge, and is not supported by information demonstrating any genuine material dispute with, the SAMA (or any other section of the LRA). As a threshold matter, Contention F-2 is predicated entirely on Petitioners misinterpretation of the ER. Petitioners (Pet. at 24) and Mr. Gunderson (Gunderson Decl. at ¶

26) seize on a sentence in ER Section 3.2, which in providing general plant information states that [t]he reactor containment is designed to adequately retain these fission products under the most severe accident conditions. This statement in the ER does not say that the containment will retain fission products under severe accident conditions, as that term is used to refer to beyond-design-basis events. Rather, it indicates that the containment is designed to retain fission products under the the most severe accident conditions for which it is designed. While this 50

statement could be misinterpreted in isolation, the statement in the ER is immediately followed by a citation to Section 1.2.2.2 of the UFSAR.40 That UFSAR Section states:

The reactor containment is designed to adequately retain these fission products under the most severe accident conditions, as analyzed in Chapter 15.

UFSAR § 1.2.2.2 (emphasis added). With the citation to this statement in the UFSAR, the statement in the ER is clear. Moreover, Petitioners and Mr. Gunderson are aware of the UFSAR statement. Mr. Gundersen provides a citation to this very section of the UFSAR. Gundersen Decl. at 9 n.14.

In any event, neither Petitioners nor Mr. Gunderson attempt to relate this statement to any portion of the SAMA analysis. The statement in question is not in the sections of the ER (Section 4.21 and Attachment E) relating to the SAMA analysis. Petitioners and Mr. Gunderson do not identify any error in the SAMA analyses, or any manner in which the SAMA analysis is affected. In Attachment E to the ER, Section E.1.2.1 discusses the Containment Performance Analysis from the Level 2 Probabilistic Risk Assessment. Section E.1.2.3.2 describes the Release Categories, which include: Large Early Releases from containment failures due to severe accident phenomena at or near time of vessel failure; Large Early Releases due to containment isolation failures at or near the time of vessel failure; Large Early Releases due to containment bypass; Late containment failure release, either from base-mat melt-through, or due to loss of containment heat removal; and early release sequences with some mitigation of release by phenomenological means, including small containment isolation failures, small pre-existing containment leaks and Steam Generator Tube Rupture (SGTR) bypass sequences. Table E.1-14 provides the release frequencies associated with each of the release categories. Petitioners 40 The ER cites TVA 2011p, Section 1.2.2.2. ER at 3-2. The list of references in Section 10 of the ER identifies TVA 2011p as the UFSAR. ER at 10-31.

51

and Mr. Gunderson do not discuss or take issue with any of this information in the ER, which on its face makes it absolutely obvious that the SAMA analysis is not relying on any assumption that the containment will not fail or leak. Petitioners and Mr. Gunderson do not identify any error in the release category or contest in any manner the calculated release frequencies. Thus, the Petitioners do not provide any explanation of how the statement in background Section 3.2 of the ER in any way affects the cost-benefit analysis of SAMA. They consequently provide no information demonstrating any genuine dispute with the SAMA analysis.

To be litigable in an NRC license renewal proceeding, a SAMA contention must identify a significant deficiency in the SAMA analysis. Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-12-1, 75 N.R.C. 39, 57 (2012). Furthermore:

A contention proposing alternative inputs or methodologies must present some factual or expert basis for why the proposed changes in the analysis are warranted (e.g., why the inputs or methodology used is unreasonable, and the proposed changes or methodology would be more appropriate). Otherwise, there is no genuine material dispute with the SAMA analysis that was done . . . .

Seabrook, CLI-12-5, 75 N.R.C. at 323-24. Therefore, challenges to a SAMA analysis must be tethered to the computer modeling and mathematical aspects of the analysis, and must demonstrate a significant defect skewing the cost-benefit results. FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), CLI-12-8, 75 N.R.C. 393, 414-15 (2012). Here, neither the Petition nor the Gundersen Declaration contains a single reference to the Sequoyah SAMA analysis, let alone any identification of a significant deficiency skewing the cost-benefit results.

8. Contention F-3 (Whistleblower Claims) Is Inadmissible Contention F-3, which alleges that TVAs purported mismanagement of its whistleblower complaints calls into question the accuracy and validity of the LRA (Pet. at 25),

52

is inadmissible because it raises issues outside the scope of a license renewal proceeding and not material to the findings that the NRC must make, contrary to 10 C.F.R. § 2.309(f)(1)(iii)-(iv). In addition, Contention F-3 is not supported by any basis or information demonstrating a genuine dispute with the LRA, in contravention of 10 C.F.R. § 2.309(f)(1)(ii) and (vi).

a. Contention F-3 Is Outside The Scope Of This Proceeding And Not Material To The Findings That The NRC Must Make In Contention F-3, Petitioners assert that TVAs management of whistleblower complaints reflects a lack of integrity and insufficient adherence to regulatory statutes that demand nuclear power [plant] owners put safety first, and that as a result, the accuracy and validity of the License Renewal Application cannot be assured and therefore must be rejected.

Pet. at 25. Like Contention D, which challenges the LRA on the basis of certain operational, non-aging-related inspection findings at Sequoyah managed under the Reactor Oversight Process, Contention F-3 impermissibly seeks to raise an operational issue that is not related to aging management and is thus outside the scope of a license renewal proceeding. Indeed, Contention F-3 would dramatically expand the scope of review in this proceeding to encompass a duplicative review of compliance and operational issues subject to continuous oversight by the NRC.

Issues involving a facilitys CLB are not within the scope of a license renewal proceeding. Turkey Point, CLI-01-17, 54 N.R.C. at 8-9. As the Commission has clearly and consistently held, its license renewal inquiry is narrow:

It focuses on the potential impacts of an additional 20 years of nuclear power plant operation, not on everyday operational issues. Those issues are effectively addressed and maintained by ongoing agency oversight, review, and enforcement.

53

Millstone, CLI-04-36, 60 N.R.C. at 637-38 (footnotes omitted). Thus, a license renewal proceeding is not the proper forum for the NRC to consider operational issues. If [a petitioner]

has information supporting its claim [concerning operational issues], its remedy would not be a narrowly focused license renewal hearing, but a citizens petition under 10 C.F.R. § 2.206. Id.

at 638.

Contention F-3 essentially argues that TVA managements track record in responding to employee safety concerns is illustrative of a deficient safety culture and casts doubt upon the accuracy and validity of the LRA. In the Prairie Island license renewal proceeding, the Commission rejected the licensing boards admission of a similar contention that raised operational issues implicating the applicants safety culture as a basis to challenge the reasonable assurance finding for license renewal. See Prairie Island, CLI-10-27, 72 N.R.C. at 491-92.

As discussed above, in Prairie Island, the Commission reaffirmed its previous statements that other broad-based issues akin to safety culture - such as operational history, quality assurance, quality control, management competence, and human factors - [are] beyond the bounds of a license renewal proceeding because these conceptual issues fall outside the bounds of the passive, safety-related physical systems, structures, and components that form the scope of our license renewal review. Id. at 491 (citing 56 Fed. Reg. at 64,959, 64,967, 64,968 and Pilgrim, CLI-10-14, 71 NRC at 454) (emphasis in original). Otherwise, to admit a safety culture contention based upon routine regulatory determinations and other operational matters could result in a potentially neverending stream of minitrials on operational issues, in which the applicant would be required to demonstrate how each issue was satisfactorily resolved. Prairie Island, CLI-10-27, 72 N.R.C. at 491 (footnote omitted). Moreover, to allow a safety culture contention on such grounds would also open the door to a potentially unending series of revised 54

contentions, which could be proffered upon each new inspection report, notice of violation, etc.

Id. at 491 n.49. As in Prairie Island, admission of Contention F-3 would lead to a far-reaching and duplicative review of routine operational issues, thereby undermining the focused and efficient license renewal review standards the Commission has so vigorously fought to preserve.

See Diablo Canyon, CLI-11-11, 74 N.R.C. at 435-36.

b. Contention F-3 Fails To Demonstrate A Genuine Dispute With The LRA Even if Contention F-3 raised issues within the scope of this proceeding - which, as discussed above, it does not - Contention F-3 would still be inadmissible because it is not supported by an adequate basis or information demonstrating the existence of a genuine, material dispute with the LRA, as required by 10 C.F.R. § 2.309(f)(1)(ii) and (vi). The allegations to which Petitioners refer as whistleblower complaints relate to issues that employees have brought to the NRCs attention, and do not indicate mismanagement of its whistleblower complaints (Pet. at 25) or [d]iscrimination and retaliation against whistleblowers (id.), as Petitioners suggest. Employees have the right to bring their concerns directly to the NRC,41 and some employees prefer to do so. Further, it is not unusual for the incidence of such reporting to increase during major projects such as the Sequoyah steam generator replacement (see Pet. at 25), when approximately a thousand additional contractors were employed at the site on this project (in addition to approximately 1,800 contractors brought on site to support the Unit 2 refueling outage also completed at the end of 2012). Moreover, most of the allegations were not substantiated.42 41 See, e.g., NRC Form 3, available at http://www.nrc.gov/reading-rm/doc-collections/forms/nrc3.pdf.

42 NRCs data indicates that most of the allegations received in 2012 were not substantiated. See Allegations Program Annual Trends Report Calendar Year 2012 at 15 Figure 8 (Annual Trends Report) (ADAMS Accession No. ML13116A095).

55

Indeed, the NRC Memorandum transmitting the Annual Trends Report cited by the Petitioners explicitly states: The trends for the reactor facilities do not suggest a concern about the environment for raising concerns.43 The only allegation of discrimination identified by Petitioners anywhere in their Petition occurred fifteen years ago.44 See Pet. at 26.

Petitioners do not explain how these matters specifically render the LRA deficient or otherwise pertain to aging management issues relevant to license renewal. Further, Petitioners do not provide any information indicating that the NRCs regulatory process is insufficient to ensure compliance with TVAs aging management commitments. Nor do Petitioners identify any deficiency in TVAs response to the increase in allegations. As the Annual Trends Report states:

In summary, while there was a significant increase in the NRC receipt of allegations from onsite sources at Sequoyah in 2012, most were received in the fourth quarter of CY 2012, the time period that correlates with a steam generator replacement outage at both units and a significant influx of contractors on site.

The licensee recognized the increase and did an extensive analysis to understand and address it. Based on that analysis and the recent nuclear safety culture survey results, the licensee appears to have developed a comprehensive corrective action plan. The NRC is maintaining its oversight of the SCWE at Sequoyah through normal inspection activities, with a particular focus on licensee efforts to assure that the corrective actions being taken in response to the Apparent Cause Analysis, which include response to the nuclear safety culture survey, are completed and are effective at maintaining the SCWE and improving the licensees awareness of the health of the environment for raising concerns.

Annual Trends Report at 16. Thus, this report in fact illustrates the effectiveness of NRCs oversight and regulatory processes, resulting in corrective action when necessary.

To the extent that Contention F-3 challenges the current safety culture and safety conscious work environment (SCWE) at Sequoyah, such operational matters do not give rise 43 Memorandum from L. Jarriel to R. Borchardt, Allegation Program - 2012 Annual Trends Report (Apr. 29, 2013)

(ADAMS Accession No. ML13116A086).

44 The Annual Trends Report does indicate an increasing trend in discrimination concerns, but states that none have been substantiated. Annual Trends Report at 14.

56

to a genuine dispute with the LRA. Petitioners fail to show any basis indicating that the NRCs existing oversight processes are insufficient to ensure compliance with applicable safety culture and discrimination requirements. Further, the Commission declines to assume that licensees will contravene its regulations. GPU Nuclear, Inc. (Oyster Creek Nuclear Generating Station), CLI-00-06, 51 N.R.C. 193, 207 (2000). As the Commission has explained, in the end, NRC inspections and enforcement action go a long way to ensuring compliance with our requirements. Id. The Commissions assumption of compliance is particularly appropriate in the context of license renewal, where the Commission has specifically concluded that a licensees programs and the Commission's regulatory oversight program are effective in identifying and correcting plant-specific noncompliance and consequently that license renewal should not include a new, broad-scoped inquiry into compliance. 56 Fed. Reg. at 64,952 (emphasis added). Indeed, the Commission has indicated that licensing actions do not automatically throw[] open an opportunity to engage in a free-ranging inquiry into the character of the licensee. Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 and 2), CLI-93-16, 38 N.R.C. 25, 32 (1993).

V. SELECTION OF HEARING PROCEDURES Commission rules require that the Atomic Safety and Licensing Board designated to rule on the Petition determine and identify the specific hearing procedures to be used for the proceeding pursuant to 10 C.F.R. §§ 2.310 (a)-(h). 10 C.F.R. § 2.310. The regulations are explicit that proceedings for the . . . grant . . . of licenses subject to [10 C.F.R. Part 52] may be conducted under the procedures of subpart L. Id. at § 2.310(a). The regulations permit the presiding officer to use the procedures in 10 C.F.R. Part 2, Subpart G (Subpart G) in certain circumstances. Id. at § 2.310(d). It is the proponent of the contentions, however, who has the 57

burden of demonstrating by reference to the contention and the bases provided and the specific procedures in subpart G of this part, that resolution of the contention necessitates resolution of material issues of fact which may be best determined through the use of the identified procedures. Id. at § 2.309(g). Petitioners did not address the selection of hearing procedures in its Petition and therefore have not shown that Subpart G procedures should be used in this proceeding. Accordingly, any hearing arising from the Petition should be governed by the procedures of Subpart L.

VI. CONCLUSION For the reasons stated above, the Petition should be denied.

Respectfully Submitted,

/Signed electronically by David R. Lewis/

Edward J. Vigluicci, Esq. David R. Lewis Scott A. Vance, Esq. Michael G. Lepre Blake J. Nelson, Esq. PILLSBURY WINTHROP SHAW PITTMAN LLP Office of the General Counsel 2300 N Street, NW Tennessee Valley Authority Washington, DC 20037-1128 400 W. Summit Hill Drive, WT 6A-K Tel. (202) 663-8474 Knoxville, TN 37902 Phone: 865-632-7317 Co-Counsel for TVA Counsel for TVA Dated: May 31, 2013 58

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Atomic Safety and Licensing Board In the Matter of )

) Docket Nos. 50-327-LR TENNESSEE VALLEY AUTHORITY ) 50-328-LR

) ASLBP No. 13-927-01-LR-BD01 (Sequoyah Nuclear Plant, Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that the foregoing Tennessee Valley Authoritys Answer Opposing the Petition for Leave to Intervene and Request for Hearing by the Blue Ridge Environmental Defense League, et al. has been served through the E-Filing system on the participants in the above-captioned proceeding, this 31st day of May 2013.

/Signed electronically by/

David R. Lewis