ML13238A321

Tennessee Valley Authoritys Brief in Opposition to Bredls Appeal of LBP-13-08

ML13238A321
Person / Time
Site:	Sequoyah
Issue date:	08/26/2013
From:	Doris Lewis Pillsbury, Winthrop, Shaw, Pittman, LLP, Tennessee Valley Authority
To:	NRC/OCM
SECY RAS
References
RAS 24968, 50-327-LR, 50-328-LR, ASLBP 13-927-01-LR-BD01
Download: ML13238A321 (15)

Text

X6NKX6NKQS6 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of

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Docket Nos. 50-327-LR

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50-328-LR TENNESSEE VALLEY AUTHORITY

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

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TENNESSEE VALLEY AUTHORITYS BRIEF IN OPPOSITION TO BREDLS APPEAL OF LBP-13-08 Edward J. Vigluicci, Esq.

Scott A. Vance, Esq.

Blake J. Nelson, Esq.

Office of the General Counsel Tennessee Valley Authority 400 W. Summit Hill Drive, WT 6A-K Knoxville, TN 37902 Telephone: (865) 632-7317 Counsel for TVA August 26, 2013 David R. Lewis Michael G. Lepre PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, NW Washington, DC 20037-1128 Telephone: (202) 663-8148 Co-Counsel for TVA

-i-TABLE OF CONTENTS TABLE OF AUTHORITIES.......................................................................................................... ii I. INTRODUCTION..................................................................................................................... 1 II. STATEMENT OF CASE.......................................................................................................... 2 III.STANDARD OF REVIEW....................................................................................................... 4 IV.ARGUMENT............................................................................................................................. 5 A. BREDL Has Abandoned All Contentions Not Specifically Addressed on Appeal............ 5 B. The Board Was Clearly Correct in Rejecting Contention F-1 for Failing to Raise a Genuine Dispute with the LRA on a Material Issue.......................................................................... 5 C. The Board Was Clearly Correct in Rejecting Contention F-2 for Failing to Raise a Genuine Dispute with the LRA on a Material Issue.......................................................................... 7 D. The BREDL Appeal Fails to Advance any Legitimate Basis for Admission of the Environmental Portion of Contention B.............................................................................. 9 V. CONCLUSION....................................................................................................................... 10

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

CLI-94-6, 39 N.R.C. 285 (1994), affd, Advanced Med. Sys., Inc. v. NRC, 61 F.3d 903 (6th Cir. 1985)............................................................................................................. 4 Calvert Cliffs Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3),

CLI-12-16, 76 N.R.C. 63 (2012)................................................................................................. 3,9 Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), CLI-01-11, 53 N.R.C. 370 (2001)...................................................................................................................... 5 Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2),

ALAB-793, 20 N.R.C. 1591 (1984)................................................................................................ 8 Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-691, 16 N.R.C. 897 (1982).......... 8 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3),

CLI-04-36, 60 N.R.C. 631 (2004)................................................................................................... 4 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3),

CLI-10-19, 72 N.R.C. 98 (2010).................................................................................................. 10 Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2),

CLI-12-19, 76 N.R.C. 377 (2012)................................................................................................... 4 Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4),

CLI-01-17, 54 N.R.C. 3 (2001)................................................................................................... 8-9 Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 and 2),

ALAB-872, 26 N.R.C. 127 (1987).................................................................................................. 5 International Uranium (USA) Corp. (White Mesa Uranium Mill),

CLI-01-21, 54 N.R.C. 247 (2001)................................................................................................ 4,5 Long Island Lighting Co. (Shoreham Nuclear Power Station, Unit 1),

ALAB-832, 23 N.R.C. 135 (1986), revd in part on other grounds, CLI-87-12, 26 N.R.C. 383 (1987)................................................................................................... 8 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1),

CLI-12-5, 75 N.R.C. 301 (2012)............................................................................................... 4,6,7 New York v. NRC, 681 F.3d 471 (D.C. Cir. 2012)..................................................................... 3,10

-iii-Niagara Mohawk Power Corp. (Nine Mile Point Nuclear Station, Unit 2),

ALAB-264, 1 N.R.C. 347 (1975).................................................................................................... 8 Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2),

ALAB-218, 8 A.E.C. 79 (1974).................................................................................................... 10 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-00-21, 52 N.R.C. 261 (2000)................................................................................................... 4 Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2),

ALAB-947, 33 N.R.C. 299 (1991).................................................................................................. 5 Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2),

ALAB-573, 10 N.R.C. 775 (1979).................................................................................................. 8 Tennessee Valley Authority (Sequoyah Nuclear Plant, Units 1 and 2),

LBP-13-08, 78 N.R.C. __ (July 5, 2013)................................................................................ passim Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 2),

CLI-93-10, 37 N.R.C. 192 (1993)................................................................................................... 4 Statutes and Regulations 10 C.F.R. § 2.309(f)(1)................................................................................................................. 2,5 10 C.F.R. § 2.309(f)(1)(vi)........................................................................................................... 6,8 10 C.F.R. § 2.311(b)..................................................................................................................... 1,2 10 C.F.R. § 2.335(a)........................................................................................................................ 9 10 Part 50, App. A........................................................................................................................... 9 78 Fed. Reg. 14,362 (Mar. 5, 2013)................................................................................................ 2

August 26, 2013 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of

)

Docket Nos. 50-327-LR

)

50-328-LR TENNESSEE VALLEY AUTHORITY

)

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

)

TENNESSEE VALLEY AUTHORITYS BRIEF IN OPPOSITION TO BREDLS APPEAL OF LBP-13-08 I.

INTRODUCTION Pursuant to 10 C.F.R. § 2.311(b), Tennessee Valley Authority (TVA) submits this brief in opposition to the Petition for Interlocutory Review by the Blue Ridge Environmental Defense League and Chapter Bellefonte Efficiency and Sustainability Team and Mothers Against Tennessee River Radiation (July 30, 2013)1 (BREDL Appeal). The Blue Ridge Environmental Defense League (BREDL)2 challenges three rulings3 in the Atomic Safety and Licensing Boards (Board) July 5, 2013 Memorandum and Order4 (Ruling on Petition to Intervene and Request for Hearing) (LBP-13-08) in the license renewal 1 The BREDL Appeal was transmitted to the parties by email at 8:24 a.m. on July 31, 2013, and was filed through the NRCs Electronic Information Exchange (EIE) later that day. The email message transmitting the BREDL Appeal to the parties on the morning of July 31 states that BREDLs representative attempted to send the attached appeal to all parties on July 30, 2013 well before midnight but an EIE system failure prevented [him] from uploading it. The properties of the file attached to this message, however, indicate that the BREDL Appeal was created on July 31, 2013 at 3:45:16 AM. Further, BREDL provides no explanation of why, if it was unable to upload its Appeal to the EIE on July 30 when the Appeal was due, BREDL did not at least attempt to email its Appeal to the parties until the next day.

2 The Atomic Safety and Licensing Board ruled that the Bellefonte Efficiency Sustainability Team (BEST) and Mothers Against Tennessee River Radiation (MATRR) had failed to demonstrate standing to participate in this proceeding (LBP-13-08, slip op. at 2, 5-6), and this ruling has not been challenged on appeal. Accordingly, despite BREDLs preference to style the BREDL Appeal to include BEST and MATRR (see BREDL Appeal at 1 n.1),

neither BEST nor MATRR is a proper party to the BREDL Appeal.

3 In its Appeal, BREDL states that [we] will not recapitulate Petitioners contentions here as they are a matter of record but instead herein put before the Commission a few shortcomings of the Order which, if allowed to stand, prevents full consideration of the merits of Petitioners arguments. BREDL Appeal at 3. TVA limits its response to those few rulings specifically discussed in the BREDL Appeal, because BREDL has provided no grounds to question any of the other rulings. Indeed, as discussed later, any issues not specifically addressed in BREDLs Appeal are deemed abandoned.

4 Tennessee Valley Authority (Sequoyah Nuclear Plant, Units 1 and 2), LBP-13-08, 77 N.R.C. __, slip op. (July 5, 2013).

proceeding for the Sequoyah Nuclear Plant (Sequoyah). In LBP-13-08, the Board properly denied seven contentions submitted by BREDL, and held a portion of an eighth contention in abeyance pending the resolution of a related Nuclear Regulatory Commission (NRC or Commission) rulemaking. LBP-13-08, slip op. at 42.

The Commission should reject the BREDL Appeal because it (1) abandons most of BREDLs proposed contentions by failing to advance any argument against Board rulings dismissing those contentions, and (2) fails to identify any error or abuse of discretion in connection with the Board rulings it does challenge. Rather, the BREDL Appeal largely repeats a handful of discredited claims made in earlier pleadings, submitted without meaningful evaluation of the Boards reasoning in LBP-13-08 against the contention admissibility standards in 10 C.F.R. § 2.309(f)(1).

II.

STATEMENT OF CASE This proceeding involves TVAs January 7, 2013, application for renewal of Operating License Nos.

DPR-77 and DPR-79 for Sequoyah Units 1 and 2 (LRA). On March 5, 2013, the NRC published a notice accepting the LRA for docketing and providing an opportunity for hearing. 78 Fed. Reg. 14,362 (Mar. 5, 2013). BREDL, BEST, and MATRR petitioned for leave to intervene and requested a hearing on eight proposed contentions, denominated Contentions A through E, and Contentions F-1, F-2, and F-3.5 Petition at 10-27.

On May 31, 2013, TVA filed an answer opposing the Petition, arguing that all eight contentions were inadmissible.6 The NRC Staff (Staff) also submitted an answer, arguing that Contention B (Waste Confidence) should be held in abeyance based on the Commissions decision in Calvert Cliffs,7 and that the 5 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).

6 Tennessee Valley Authoritys Answer Opposing the Petition for Leave to Intervene and Request for Hearing by the Blue Ridge Environmental Defense League, et al. (May 31, 2013) (TVA Answer).

7 Calvert Cliffs Nuclear Project, LLC (Calvert Cliffs Nuclear Plant, Unit 3), CLI-12-16, 76 N.R.C. 63 (2012).

other seven contentions should be dismissed.8 On June 7, 2013, the Petitioners filed a reply to TVA and the Staff.9 In LBP-13-08, the Board determined that BREDL has standing to intervene, but denied the intervention requests of BEST and MATRR due to a lack of standing. 10 LBP-13-08, slip op. at 42. The Board further determined that Contentions A, C, D, E, F-1, F-2 and F-3, and the safety-related portion of Contention B11 were inadmissible (id.), but held the environmental-related portion of Contention B in abeyance, pending further order of the Commission. Id. at 16, 42.

On July 30, 2013, TVA appealed12 the Boards ruling holding the environmental-related portion of Contention B in abeyance, arguing that the Commissions decision in Calvert Cliffs is inapplicable and Contention B should therefore be dismissed as a contention being addressed by generic rulemaking. On July 31, 2013, BREDL submitted its own appeal of LBP-13-08. Asserting that its contentions are already a matter of record that do not need be recapitulate[d], BREDL declines to respond to the Boards dismissal of most of the contentions within its original Petition. BREDL Appeal at 3. Instead, BREDL notes what it characterizes as a few shortcomings in LBP-13-08 relating to the Boards rejection of Contentions F-1 (Aging Management Programs Lacking) and F-2 (Severe Accident Mitigation Analysis Lacking), and the Board ruling holding in abeyance the environmental portion of Contention B (Waste Confidence). BREDL Appeal at 3-5.

8 NRC Staff Answer to 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 31, 2013) (Staff Answer).

9 Reply of Blue Ridge Environmental Defense League, Bellefonte Efficiency and Sustainability Team and Mothers Against Tennessee River Radiation re: Petition for Leave to Intervene and Request for Hearing (June 7, 2013)

(BREDL Reply).

10 TVA and the Staff did not dispute BREDLs standing to intervene, but both argued that BEST and MATRR lacked standing. TVA Answer at 3; NRC Answer at 5.

11 The Board found Contention B inadmissible to the extent it asserts that New York v. NRC, 681 F.3d 471 (D.C. Cir.

2012) undermines or invalidates the safety portion of Sequoyahs LRA. LBP-13-08, slip op. at 16. As the Board correctly explained, [t]hat decision did not involve 10 C.F.R. Part 54 and it cannot provide support for the claim that TVAs safety analysis now fails to satisfy Part 54. Id.

12 Tennessee Valley Authoritys Brief in Support of Appeal of LBP-13-08 (July 30, 2013) (TVA Appeal).

III.

STANDARD OF REVIEW The Commission defers to Board rulings regarding the admissibility of contentions in the absence of an error of law or an abuse of discretion. Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), CLI-12-19, 76 N.R.C. 377, 379-80 (2012); NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-12-5, 75 N.R.C. 301, 307 (2012). Where the brief on appeal points to no error of law or abuse of discretion that might serve as grounds for reversal, the Commission generally declines to accept a petition for review of a Board decision. See, e.g., Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-00-21, 52 N.R.C. 261, 265 (2000) (citation omitted); Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-04-36, 60 N.R.C. 631, 637 (2004).

Further, an appellants request for Commission review of a Board decision cannot consist merely of conclusory statements alleging errors of law or abuses of discretion; rather, the appellant bears the responsibility of clearly identifying the errors in the decision [on appeal] and ensuring that its brief contains sufficient information and cogent argument to alert the other parties and the Commission to the precise nature of and support for [its] claims. Advanced Medical Systems, Inc. (One Factory Row, Geneva, Ohio 44041), CLI-94-6, 39 N.R.C. 285, 297 (1994), affd, Advanced Med. Sys., Inc. v. NRC, 61 F.3d 903 (6th Cir.

1985); Millstone, CLI-04-36, 60 N.R.C. at 639 & n.25. An appellants failure to illuminate the bases for an exception to a Boards decision is sufficient grounds to reject it as a basis for appeal. Advanced Medical Systems, CLI-94-6, 39 N.R.C. at 297. In particular, a mere recitation of an appellant's prior positions in a proceeding or a statement of his or her general disagreement with a decisions result is no substitute for a brief that identifies and explains the errors of the Licensing Board in the order below.

Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 2), CLI-93-10, 37 N.R.C. 192, 198 (1993) (citation omitted). Similarly, an appellants decision not to challenge the reasoning of a Board in dismissing a particular contention is considered an abandonment of that contention. International Uranium (USA) Corp. (White Mesa Uranium Mill), CLI-01-21, 54 N.R.C. 247, 253 (2001).

IV.

ARGUMENT A.

BREDL Has Abandoned All Contentions Not Specifically Addressed On Appeal By failing to discuss or identify any error in the Boards rulings dismissing Contentions A (Flooding), C (Cancer Rates), D (TVA Safety Record), E (MOX Fuel), F-3 (Accuracy of Information), and the safety-related portion of Contention B, the BREDL Appeal abandons them. Appellants have the burden of clearly identifying the bases for their challenge to a Boards ruling regarding the admissibility of a particular contention; by failing to identify any errors in a Board ruling rejecting a contention, an appellant abandons that contention. See White Mesa Uranium Mill, CLI-01-21, 54 N.R.C. at 253. See also Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), CLI-01-11, 53 N.R.C. 370, 383 (2001) (the Commission deems waived any arguments not clearly articulated in the petition for review). Here, the Board explained at length its bases for concluding that the contentions listed above failed to satisfy the requirements in 10 C.F.R. § 2.309(f)(1) for contention admissibility, and the BREDL Appeal identifies no error or abuse of discretion in the Boards reasoning.

Further, BREDLs assertion that its contentions are a matter of record (BREDL Appeal at 3) provides no notice of the basis for any objections and is clearly insufficient to preserve those issues on appeal. Mere references to the record are wholly inadequate to merit further consideration. Public Service Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-947, 33 N.R.C. 299, 322 (1991). See also Georgia Power Co. (Vogtle Electric Generating Plant, Units 1 and 2), ALAB-872, 26 N.R.C. 127, 131 (1987) (matters which are not fully briefed on appeal will not be entertained by the Commission).

B.

The Board Was Clearly Correct in Rejecting Contention F-1 for Failing to Raise a Genuine Dispute with the LRA on a Material Issue The Board was clearly correct in rejecting Contention F-1, which claimed that the LRA lack[ed]

acceptable aging management plans [AMPs] to adequately maintain critical components of the ice condenser containment for 20 years of additional operation. Petition at 21. As the Board observed, this contention fail[ed] to acknowledge that the LRA contains several AMPs designed to manage ice condenser containment issues, much less to set forth any arguments why these AMPs are inadequate. LBP-13-08, slip op. at 31. Thus, the Board correctly ruled:

Contention F-1 fails to comply with the regulation that requires that contentions provide sufficient information to show that a genuine dispute exists... on a material issue of law or fact and that [t]his information must include references to specific portions of the application... that the petitioner disputes and the supporting reasons for each dispute.

Id. at 32 (quoting 10 C.F.R. § 2.309(f)(1)(vi)).

BREDL does not challenge or identify any error in this ruling. Nor are there any grounds to do so.

As stated in the Boards decision, neither Contention F-1 nor the Gundersen Declaration (Gundersen Decl.) so much as mentioned the two AMPs within Sequoyahs LRA - both of which were consistent with the NRCs Generic Aging Lessons Learned Report13 - for identifying and managing potential corrosion of inaccessible areas of the steel containment vessel in the vicinity of the condenser ice baskets. Id. at 29-32.

As the Commission has previously admonished - and as TVA noted in its Answer (TVA Answer at 39) -

petitioners challenging a license renewal application have an ironclad obligation to review the Application thoroughly and to base their challenges on its contents. Seabrook, CLI-12-5, 75 N.R.C. at 312 (footnote omitted).14 The BREDL Appeal neither disputes that fundamental obligation of petitioners, nor challenges the Boards conclusion that BREDL failed to meet that obligation by neglecting to address and identify any deficiency of the relevant AMPs described in Sequoyahs LRA. LBP-13-08, slip op. at 32.

Indeed, the BREDL Appeal concedes the Boards observation that Contention F-1 failed to advance any arguments as to why the AMPs within Sequoyahs LRA were inadequate. Id. at 31.

Rather than providing any meaningful discussion of the Boards ruling, BREDLs only assertion on appeal appears to be that its reference to the Sandia National Laboratory Report15 met its obligation to demonstrate the existence of a genuine dispute. BREDL Appeal at 3-4. This assertion is entirely without merit because BREDL has consistently failed to advance - either in its Petition, its Reply, or its Appeal -

13 NRC, NUREG-1801, Generic Aging Lessons Learned (GALL) Report, Rev. 2 (Dec. 2010) (GALL Report).

14 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.

15 Jeffrey L. Cherry, Sandia National Laboratories, Analyses of Containment Structures with Corrosion Damage (1996)

(Sandia Report).

any explanation as to how the Sandia Report called into question the adequacy of the AMPs described in the LRA. As the Board clearly explained:

[T]he information before us advises that the AMPs in the LRA are based on the GALL Report and were developed after the Sandia Report was issued. If there is something inadequate about those AMPs, it was incumbent upon BREDL to have mounted and supported a direct and specific challenge.... There is no support from BREDL for the proposition that use of the GALL Report-based AMPs is insufficient here.

LBP-13-08, slip op. at 32 (emphasis in original). The BREDL Appeal does not attempt to dispute the Boards reasoning, which is unassailable. BREDL had an ironclad obligation under the NRC rules to explain why AMPs in the LRA were inadequate, Seabrook, CLI-12-5, 75 N.R.C. at 312, and its mere reference to a report reflecting a theoretical possibility of corrosion16 in no way called into question the adequacy of AMPs developed after the GALL Report to manage this very contingency.

C.

The Board Was Clearly Correct in Rejecting Contention F-2 for Failing to Raise a Genuine Dispute with the LRA on a Material Issue The Board was clearly correct in dismissing Contention F-2, which claimed that the LRA lack[ed]

supporting documentation... prov[ing] that indeed the Sequoyah [ice condenser] containment can withstand severe accidents without leaking (Petition at 2317). As the Board observed:

BREDLs argument appears to be based on a mischaracterization of TVAs application. BREDL argues that TVAs application claims that the Sequoyah containment can sustain a severe accident without leaking.

Petition at 24. But it is plain that TVA does not make such a claim in its application.

16 BREDL does not dispute the Boards conclusion that BREDL mischaracterized the Sandia Report. As the Board observed, the Sandia Report neither states nor provides any data or experimental evidence supporting the proposition that such corrosion [in the inaccessible region behind the ice condensers] has been observed or will occur. LBP-13-08, slip op. at 32. The BREDL Appeal does not identify any error in this ruling. Moreover, neither BREDL nor its declarant, Mr. Gundersen, identified any other inspection report or industry operating experience indicating that corrosion of the steel containment vessel is likely to be occurring in the region made inaccessible by the ice condenser system. In fact, BREDL simply ignored considerable information in the LRA and on the docket belying its unsupported claims (such as ultrasonic thickness measurements on the exterior side of Sequoyahs steel containment vessel at the areas adjacent to the ice condenser revealing no areas below the original nominal wall plate thickness). See TVA Answer at 44-45.

17 BREDL captioned Contention F-2 as pertaining to the analysis of severe accident mitigation alternatives (SAMA)

(see Petition at 23), but Contention F-2 did not challenge any portion of the Sequoyah SAMA analysis. See TVA Answer at 49-52.

LBP-13-08, slip op. at 24 (emphasis in original).18 In addition, the Board correctly observed that TVA has no burden under NRC regulations to demonstrate that its containment will not leak during severe accidents.

Id. at 36. In light of BREDLs mischaracterization of the LRA and the absence of any requirement to demonstrate that Sequoyahs containment will not leak during severe accidents, the Board correctly ruled that BREDL failed to demonstrate any genuine dispute with the LRA as required by 10 C.F.R. § 2.309(f)(1)(vi). Id. at 35.

BREDL does not challenge or identify any error in these rulings. Indeed, BREDLs one-paragraph argument is so obscure that it is impossible to ascertain the basis for the appeal. BREDL merely characterizes as a stunning admission the Boards conclusion that TVA is not claiming that Sequoyahs containment is completely leak-proof under severe accident conditions. BREDL Appeal at 4. If by this statement BREDL is implying that Sequoyahs containment is required to be completely leak-proof under severe accident conditions, its claim is both beyond the scope of this proceeding and an impermissible challenge to the NRC rules.19 As TVA argued before the Board (see TVA Answer at 48-49), NRC license renewal proceedings are concerned with aging-related issues, not the adequacy of a plants current licensing basis (CLB). Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 N.R.C. 3, 8-10 (2001). Even if the adequacy of the CLB were at issue, which it is not, General Design Criterion (GDC) 16 in 10 C.F.R. Part 50, Appendix A, requires that containments remain essentially leak-tight during postulated accidents - i.e., those design basis events analyzed in the FSAR 18 As the Board states, BREDLs gloss on that LRA passage might appear to be reasonable if [it] were taken alone and out of context, LBP-13-08 slip op. at 34, but is untenable when construed against the surrounding text. Id.

Specifically, the Board noted that the passage cited in Contention F-2 is immediately followed by a citation to Section 1.2.2.2 of Sequoyahs Updated Final Safety Analysis Report clarifying that the LRA language cited within Contention F-2 referred to the leak-resistance of Sequoyahs containment during design basis events not the beyond-design basis, severe accidents with which a SAMA analysis is concerned. Id. at 34-35. Contention F-2, the Board noted, completely ignored this clarifying language. Id.

19 Although the Board simply viewed the Contention as failing to demonstrate a genuine dispute with the application, its ultimate decision may be defended on any ground advanced below. See Niagara Mohawk Power Corp. (Nine Mile Point Nuclear Station, Unit 2), ALAB-264, 1 N.R.C. 347, 357 (1975); Commonwealth Edison Co. (Byron Nuclear Power Station, Units 1 and 2), ALAB-793, 20 N.R.C. 1591, 1597 n.3 (1984); Long Island Lighting Co.

(Shoreham Nuclear Power Station, Unit 1), ALAB-832, 23 N.R.C. 135, 141 (1986), rev'd in part on other grounds, CLI-87-12, 26 N.R.C. 383 (1987); Public Service Co. of Oklahoma (Black Fox Station, Units 1 and 2), ALAB-573, 10 N.R.C. 775, 789 (1979); Consumers Power Co. (Midland Plant, Units 1 and 2), ALAB-691, 16 N.R.C. 897, 908 n.8 (1982) (citing Black Fox, ALAB-573, 10 N.R.C. at 789).

- not severe (beyond-design basis) accidents. Thus, any attempt to challenge the containment design is an impermissible challenge to both the license renewal rules and to GDC 16, which is barred by 10 C.F.R. § 2.335(a).

D.

The BREDL Appeal Fails to Advance any Legitimate Basis for Admission of the Environmental Portion of Contention B The BREDL Appeal identifies no legitimate basis - either in regulation or Commission precedent -

requiring immediate admission of the environmental-related portion of Contention B.20 Whereas the Board asserted that its ruling to hold the environmental portion of Contention B in abeyance (pending completion of the NRCs revision of the Waste Confidence Rule) was required by the Commissions decision in Calvert Cliffs, LBP-13-08, slip op. at 16, the BREDL Appeal cites no NRC regulation or Commission precedent requiring, or even permitting, a Board to admit a contention that is the subject of pending rulemaking. BREDL Appeal at 4-6. Further, the BREDL Appeal makes no attempt to challenge the basis for the Boards ruling because it neither disputes the Boards understanding of the Commissions holding in Calvert Cliffs, nor criticizes the Boards application of Calvert Cliffs to the Sequoyah license renewal proceeding. Because BREDL has failed to identify any bases to conclude either that the Boards ruling was in error, or that BREDLs own proposal is required by NRC regulation or Commission precedent, the Commission should reject BREDLs request to immediately admit the environmental portion of Contention B.

20 Although the BREDL Appeal quotes at length from the NRCs website and Chairman MacFarlanes comments in connection with COMSECY-12-0016 (Approach for Addressing Policy Issues Resulting from Court Decision to Vacate Waste Confidence Rule) (July 9, 2012), BREDL Appeal at 4-6, it fails to explain how those statements regarding agency transparency and public participation establish that the Board erred in holding the environmental portion of Contention B in abeyance. Further, if anything, the cited comments by Chairman MacFarlane militate against BREDLs arguments in that they indicate that BREDL will have ample opportunity to participate in the NRCs generic rulemaking revising the Waste Confidence Rule, regardless of whether the environmental portion of Contention B is admitted.

In fact, as explained at length in the TVA Appeal, Commission precedent actually requires immediate denial of the environmental portion of Contention B. See TVA Appeal at 6-11. The Commissions general rule has long been that [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. Id. at 10, citing Potomac Electric Power Co. (Douglas Point Nuclear Generating Station, Units 1 and 2), ALAB-218, 8 A.E.C. 79, 85 (1974); Entergy Nuclear Operations, Inc. (Indian Point, Units 2 and 3), CLI-10-19, 72 N.R.C. 98, 100 (2010). By its citation to COMSECY-12-0016 (see BREDL Appeal at 4-6), BREDL acknowledges that the Commission has undertaken revision of the Waste Confidence Rule in response to the D.C. Circuits decision in New York v. NRC. Because that generic rulemaking addresses the same subject - namely, the evaluation of the environmental impact of storage and disposal of spent nuclear fuel from civilian nuclear power plants - as the environmental portion of Contention B, Commission precedent requires Contention Bs immediate dismissal.

V.

CONCLUSION For the foregoing reasons, BREDLs Appeal should be denied.

Edward J. Vigluicci, Esq.

Scott A. Vance, Esq.

Blake J. Nelson, Esq.

Office of the General Counsel Tennessee Valley Authority 400 W. Summit Hill Drive, WT 6A-K Knoxville, TN 37902 Telephone: (865) 632-7317 Counsel for TVA August 26, 2013 Respectfully submitted,

/signed electronically by David R. Lewis/

David R. Lewis Michael G. Lepre PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, NW Washington, DC 20037-1128 Telephone: (202) 663-8148 Co-Counsel for TVA

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

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Docket Nos. 50-327-LR

)

50-328-LR TENNESSEE VALLEY AUTHORITY

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

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CERTIFICATE OF SERVICE I hereby certify that the foregoing Tennessee Valley Authoritys Brief in Opposition to BREDLs Appeal of LBP-13-08 has been served through the E-Filing system on the participants in the above-captioned proceeding, this 26th day of August, 2013.

/signed electronically by David R. Lewis/

David R. Lewis