ML19358A012
| ML19358A012 | |
| Person / Time | |
|---|---|
| Site: | Bellefonte  |
| Issue date: | 12/24/2019 |
| From: | Matthews J, Matthews T, O'Neil M Morgan, Morgan, Lewis & Bockius, LLP, Nuclear Development |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| 50-438-LT, 50-439-LT, General Proceeding, RAS 55501 | |
| Download: ML19358A012 (40) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
)
In the Matter of ) Docket Nos. 50-438-LT and 50-439-LT
)
NUCLEAR DEVELOPMENT, LLC ) NRC-2019-0228
)
(Bellefonte Nuclear Plant, Units 1 and 2) ) December 24, 2019
)
APPLICANTS ANSWER OPPOSING PETITION TO INTERVENE AND REQUEST FOR HEARING BY THE BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE AND ITS CHAPTER BELLEFONTE EFFICIENCY AND SUSTAINABILITY TEAM Timothy P. Matthews, Esq.
John E. Matthews, Esq.
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: 202-739-5527 Phone: (202) 739-5524 Fax: (202) 739-3001 E-mail: timothy.matthews@morganlewis.com E-mail: john.matthews@morganlewis.com Martin J. ONeill, Esq.
Morgan, Lewis & Bockius LLP 1000 Louisiana Street, Suite 4000 Houston, TX 77002-5005 Phone: (713) 890-5710 Fax: (202) 890-5001 E-mail: martin.oneill@morganlewis.com Counsel for Nuclear Development, LLC
TABLE OF CONTENTS Page I. INTRODUCTION ............................................................................................................. 1 II. PROCEDURAL HISTORY............................................................................................... 3 III. BACKGROUND ............................................................................................................... 4 A. Licensing History of Bellefonte Units 1 and 2 ...................................................... 4 B. Litigation Related to the NRCs Reinstatement of the Bellefonte Units CPs ......................................................................................................................... 7
- 1. NRC Adjudicatory Proceeding .................................................................. 7
- 2. U.S. Court of Appeals Proceeding ............................................................. 8 C. NRC Reactor License Transfer Requirements ....................................................... 8 D. The Current License Transfer Application ............................................................ 9 IV. PETITIONERS HAVE NOT DEMONSTRATED STANDING TO INTERVENE ...... 10 A. Legal Standards and Precedent Governing Standing as a Matter of Right .......... 11
- 1. Traditional Standing Requirements ......................................................... 12
- 2. Representational Standing Requirements ................................................ 12
- 3. Proximity-Based Standing Principles ...................................................... 12 B. Petitioners Have Not Established Representational Standing Based on Either Traditional Standing Requirements or Proximity-Based Standing Principles.............................................................................................................. 14 V. PETITIONERS PROPOSED CONTENTIONS ARE INADMISSIBLE ...................... 19 A. Governing Legal Standards for Contention Admissibility .................................. 19 B. Proposed Contention 1 Is Inadmissible Because It Raises Issues That Are Neither Within the Scope of This Proceeding Nor Material to the NRC Staffs Required Findings on the LTA................................................................. 20 C. Proposed Contention 2 Is Inadmissible Because It Raises Issues That Are Not Within the Scope of This Proceeding or Material to the NRCs Required Findings, Lacks Adequate Support, and Fails to Raise a Genuine Material Dispute with the LTA ............................................................................ 22 D. Proposed Contention 3 Is Inadmissible Because It Fails to Raise a Genuine Dispute with the LTA on Material Issue of Fact or Law ..................................... 25 E. Proposed Contention 4 Is Inadmissible Because It Lacks Adequate Support and Fails to Raise a Genuine Dispute with the LTA on Material Issue of Fact or Law ............................................................................................. 28 VI. CONCLUSION ................................................................................................................ 32
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TABLE OF AUTHORITIES Page(s)
U.S. FEDERAL COURT DECISIONS Blue Ridge Envtl. Def. League v. NRC, 668 F.3d 747 (D.C. Cir. 2012) ..........................................9 Dienethal v. NRC, 203 F.3d 52 (D.C. Cir. 2000) (table) ........................................................17, 18 Lujan v. Defs. of Wildlife, 504 U.S. 555, 561 (1992) ...................................................................12 Nuclear Development, LLC v. Tennessee Valley Authority, No. 5:18-cv-1983-LCB, 2019 WL 2124539 (N.D. Ala. May 15, 2019) (slip op.) .........................................................................28, 29 ADMINISTRATIVE DECISIONS U.S. Nuclear Regulatory Commission Decisions Ariz. Pub. Serv. Co. (Palo Verde Nuclear Station, Units 1, 2, & 3),
CLI-91-12, 34 NRC 149 (1991). .............................................................................................20 Calvert Cliffs 3 Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3),
CLI-09-20, 70 NRC 911 (2009) ..............................................................................................12 CBS Corp. (Waltz Mill Facility), CLI-07-15, 65 NRC 221, 234 (2007) ......................................28 Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Unit 1),
CLI-93-21, 38 NRC 87 (1993) ................................................................................................12 Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2),
CLI-99-4, 49 NRC 185 (1999) ..........................................................................................17, 18 Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2),
CLI-00-5, 51 NRC 90 (2000) ..................................................................................................11 Consumers Energy Co. (Palisades Nuclear Power Plant),
CLI-07-18, 65 NRC 399 (2007) ........................................................................................12, 14 Consumers Energy Co. (Big Rock Point Independent Spent Fuel Storage Installation),
CLI-07-19, 65 NRC 423 (2007) ..............................................................................................13 Consumers Energy Co. (Big Rock Point),
CLI-07-21, 65 NRC 519 (2007) ..............................................................................................14
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TABLE OF AUTHORITIES (continued)
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Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3),
CLI-01-24, 54 NRC 349 (2001) ..............................................................................................19 DTE Electric Co. (Fermi Nuclear Power Plant, Unit 2),
CLI-15-18, 82 NRC 135 (2015) ..............................................................................................20 Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant),
CLI-15-23, 82 NRC 321 (2015) ..............................................................................................20 Entergy Nuclear Operations, Inc. and Entergy Nuclear Palisades, LLC (Palisades Nuclear Plant), CLI-08-19, 68 NRC 251 (2008). ........................................................................... 18-19 Exelon Generation Co., LLC (Oyster Creek Nuclear Generating Station),
CLI-19-6, 89 NRC __ (June 8, 2019) (slip op.) ..................................................................3, 20 Exelon Generation Co., LLC (Peach Bottom Atomic Power Station, Units 2 and 3),
CLI-05-26, 62 NRC 577 (2005) ..................................................................................13, 17, 18 Fla. Power & Light Co. (St. Lucie Nuclear Power Plant, Units 1 and 2),
CLI-89-21, 30 NRC 325 (1989) ........................................................................................13, 17 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4),
CLI-15-25, 82 NRC 389 (2015) ..............................................................................................12 Louisiana Enrichment Services, (Claiborne Enrichment Center),
CLI-97-15, 46 NRC 294 (1997)...............................................................................................27 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1),
CLI-18-4, 87 NRC 89 (2018) ..................................................................................................20 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),
CLI-98-13, 48 NRC 26 (1998) ................................................................................................27 Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation),
CLI-99-10, 49 NRC 318 (1999)...............................................................................................19 Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation),
CLI-00-13, 52 NRC 23 (2000) ................................................................................................27 Tennessee Valley Authority (Bellefonte Nuclear Plant, Units 1 and 2),
CLI-10-6, 71 NRC 113 (2010) ..................................................................................7, 8, 21, 22
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TABLE OF AUTHORITIES (continued)
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Tennessee Valley Authority (Bellefonte Nuclear Plant, Units 1 and 2),
CLI-10-26, 72 NRC (2010). ................................................................................................8, 24 PPL Susquehanna, LLC (Susquehanna Steam Elec. Station, Units 1 & 2),
CLI-15-8, 81 NRC 500 (2015) ....................................................................................11 Susquehanna Nuclear, LLC (Susquehanna Steam Elec. Station, Units 1 & 2),
CLI-17-4, 85 NRC 59 (2017) ..................................................................................................19 U.S. Enrichment Corporation (Paducah, Kentucky Gaseous Diffusion Plant),
CLI-01-23, 54 NRC 267 (2001)...............................................................................................11 Atomic Safety and Licensing Appeal Board / Atomic Safety and Licensing Board Decisions Arizona Public Service Co. (Palo Verde Nuclear Generating Station, Units 1, 2 and 3),
LBP-82-117A, 16 NRC 1964 (1982) ......................................................................................27 Boston Edison Co. (Pilgrim Nuclear Power Station),
LBP-85-24, 22 NRC 97 (1985) ...............................................................................................13 Boston Edison Co. (Pilgrim Nuclear Power Station),
ALAB-816, 22 NRC 461 (1985) ............................................................................................13 Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2),
LBP-98-27, 48 NRC 271 (1998) ..............................................................................................18 Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3),
LBP-08-13, 68 NRC 43 (2008) ...............................................................................................20 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Unit No. 3 & James A.
Fitzpatrick Nuclear Plant), LBP-16-14, 84 NRC 444 (2016) ..................................................19 Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation),
LBP-02-20, 56 NRC 169 (2002) ..............................................................................................44 Tennessee Valley Authority, (Bellefonte Nuclear Plants, Units 1 and 2),
LBP-74-66, 8 AEC 472 (1974). .................................................................................................4 Tennessee Valley Authority, (Bellefonte Nuclear Plants, Units 1 and 2),
LBP-10-7, 71 NRC 391 (2010) .................................................................................................4
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TABLE OF AUTHORITIES (continued)
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FEDERAL STATUTES Atomic Energy Act of 1954 (AEA), as amended, Section 184, 42 U.S.C. § 2234 ...................................................................................................9 AEA Section 189a.(1)(A), 42 U.S.C. § 2239(a)(1)(A) ...................................................................9 National Environmental Policy Act (NEPA),
42 U.S.C. §§ 4321 to 4370h...............................................................................................11, 12 FEDERAL REGULATIONS 10 C.F.R. § 2.109 .............................................................................................................................6 10 C.F.R. § 2.309(d) ...........................................................................................................2, 11, 32 10 C.F.R. § 2.309(e) ......................................................................................................................18 10 C.F.R. § 2.309(f)(1) .......................................................................................................... passim 10 C.F.R. § 2.309(i)(1) ................................................................................................................1, 3 10 C.F.R. § 50.34 ...........................................................................................................................23 10 C.F.R. § 50.55a .........................................................................................................................23 10 C.F.R. Part 50, Appendix B ......................................................................................................23 10 C.F.R. § 50.80 .................................................................................................................9, 10, 26 10 C.F.R. § 50.80(b)(1)....................................................................................................................9 10 C.F.R. § 50.80(b)(2)............................................................................................................26, 28 10 C.F.R. § 50.80(c).......................................................................................................................31 FEDERAL REGISTER Bellefonte Nuclear Plant; Consideration of Approval of Transfer of Construction Permits and Conforming Amendment, 84 Fed. Reg. 64,355 (Nov. 21, 2019). .......................................3, 23 Changes to Adjudicatory Process; Final Rule, 69 Fed. Reg. 2182 (Jan. 14, 2004) ............9, 19, 20 Commission Policy Statement on Deferred Plants, 52 Fed. Reg. 38,077 (Oct. 14, 1987) ..........4, 5 Exelon Corporation and NRG Energy, Inc.; South Texas Project, Units 1 and 2; Notice of Consideration of Approval of Application Regarding Proposed Merger of NRG Energy, Inc.
and Exelon Corporation, and Indirect Transfers of NRG South Texas LPs Facility Operating Licenses, and Opportunity for a Hearing, 74 Fed. Reg. 32,967 (July 9, 2009) ......................31
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In the Matters of Tennessee Valley Authority (Bellefonte Nuclear Plant, Units 1 and 2); Order, 59 Fed. Reg. 34,874 (July 7, 1994) ...........................................................................................5 In the Matters of Tennessee Valley Authority (Bellefonte Nuclear Plant, Units 1 and 2); Order, 68 Fed. Reg. 11,415 (Mar. 10, 2003) ........................................................................................5 In the Matter of Tennessee Valley Authority (Bellefonte Nuclear Plant Units 1 and 2); Order, 74 Fed. Reg. 10,969 (Mar. 13, 2009) ........................................................................................6 Final Policy Statement on the Restructuring and Economic Deregulation of the Electric Utility Industry, 62 Fed. Reg. 44,071 (Aug. 19, 1997) ........................................................................9 Streamlined Hearing Process for NRC Approval of License Transfers; Final Rule, 63 Fed. Reg. 66,721 (Dec. 3, 1998) ..........................................................................................9 Tennessee Valley Authority, Bellefonte Nuclear Plant, Units 1 and 2; Order Extending Construction Completion Dates, 44 Fed. Reg. 76,893 (Dec. 28, 1979). ...................................4 Tennessee Valley Authority, Bellefonte Nuclear Plant, Units 1 and 2; Order Extending Construction Completion Dates, 52 Fed. Reg. 25,676 (July 8, 1987) .......................................4 MISCELLANEOUS Memorandum from Andrew L. Bates to R.W. Borchardt, Staff Requirements-COMSECY 0041, Staff Recommendation Related to Reinstatement of the Construction Permits for Bellefonte Nuclear Plants Units 1 and 2, at 1 (Feb. 18, 2009) ..............................................26 NRC Backgrounder, Reactor License Transfers (Apr. 2016).9
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UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
)
In the Matter of ) Docket Nos. 50-438-LT and 50-439-LT
)
NUCLEAR DEVELOPMENT, LLC ) NRC-2019-0228
)
(Bellefonte Nuclear Plant, Units 1 and 2) ) December 24, 2019
)
APPLICANTS ANSWER OPPOSING PETITION TO INTERVENE AND REQUEST FOR HEARING BY THE BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE AND ITS CHAPTER BELLEFONTE EFFICIENCY AND SUSTAINABILITY TEAM I. INTRODUCTION Pursuant to 10 C.F.R. § 2.309(i)(1), Nuclear Development, LLC (ND) hereby timely files its Answer opposing the December 11, 2019 Petition for Intervention and Request for Hearing filed by the Blue Ridge Environmental Defense League (BREDL) and its Chapter Bellefonte Efficiency and Sustainability Team (BEST) (jointly, Petitioners).1 Petitioners request a hearing associated with NDs pending license transfer application (LTA), as submitted to the U.S. Nuclear Regulatory Commission (NRC) on November 3, 2018, and supplemented on August 28, 2019.
The LTA seeks NRCs written consent for the direct transfer of construction permits (CP) Nos. CPPR-122 and CPPR-123 for Bellefonte Nuclear Plant, Units 1 and 2 (Bellefonte Units) from Tennessee Valley Authority (TVA), the current holder of those CPs, to ND. The LTA also requests that the NRC issue certain conforming administrative amendments and amend the CPs to reflect the revised construction completion dates discussed therein. As discussed 1
Petition for Intervention and Request for Hearing by the Blue Ridge Environmental Defense League and its Chapter Bellefonte Efficiency and Sustainability Team (Dec. 11, 2019) (ML19345H453) (Petition).
further below, ND is seeking NRC consent to the proposed CP transfers in light of its November 14, 2016, Purchase and Sale Agreement (Enclosure 1 to the LTA) with TVA, pursuant to which TVA agreed to sell the Bellefonte Units and other related assets to ND.
Petitioners assert that they have representational standing to intervene in this proceeding, and have proffered four proposed contentions. Those contentions allege that: (1) the CPs sought by ND are legally defective and void (due to the Commissions allegedly illegal reinstatement of the formerly-withdrawn CPs more than 10 years ago); (2) the CPs cannot be transferred due to alleged historical breaches of NRC quality assurance (QA) requirements by TVA caused by the on-again-off-again construction history of the Bellefonte Units; (3) ND has failed to secure possession of the Bellefonte Units per the schedule specified in the Purchase and Sale Agreement; and (4) ND has not obtained TVAs consent to the proposed CP transfers.
As demonstrated in Section IV below, Petitioners have failed to demonstrate standing to intervene in this proceeding in accordance with 10 C.F.R. § 2.309(d) and Commission case law applying that regulation in NRC adjudications. Petitioners, in short, neither allege a particularized injury that could plausibly flow from the proposed CP transfers (or conforming administrative amendments), nor explain why a hearing on the LTA is necessary to protect Petitioners interests.
As demonstrated in Section V below, the Petition also must be rejected, because each of Petitioners four proposed contentions is inadmissible under 10 C.F.R. § 2.309(f)(1). In their proposed contentions, Petitioners raise issues that are not within the scope of this proceeding or material to the NRCs required findings on the LTA; impermissibly seek to reassert claims that were rejected by an NRC Licensing Board and the Commission in the Bellefonte CP reinstatement proceedings approximately 10 years ago; fail to provide adequate support for their contentions; and fail to demonstrate the existence of a genuine material dispute with the LTA. Thus, as explained below, the contentions contravene the requirements in Section 2.309(f)(iii)-(vi).
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Accordingly, Petitioners failures to show standing or proffer an admissible contention provide independent grounds for the Commissions rejection of the Petition in its entirety.2 II. PROCEDURAL HISTORY On November 13, 2018, ND submitted its LTA to the NRC requesting approval of the direct transfers of the Bellefonte Units CPs from TVA to ND.3 By letter dated April 5, 2019, the NRC Staff requested that ND provide supplemental information to enable the Staff to make an independent assessment regarding the acceptability of the LTA for detailed technical review. 4 ND provided the requested supplemental information on August 28, 2019.5 The NRC Staff accepted the LTA for detailed technical review on November 5, 2019.6 On November 21, 2019, the NRC published a notice in the Federal Register seeking comments on the LTA and stating that hearing requests and intervention petitions must be filed by December 11, 2019.7 Petitioners filed their Petition on December 11, 2019.8 ND timely files this Answer opposing the Petition in accordance with the provisions of 10 C.F.R. § 2.309(i)(1).
2 See Exelon Generation Co., LLC (Oyster Creek Nuclear Generating Station), CLI-19-6, 89 NRC __, __, slip op. at 7 (June 8, 2019) (emphasis added) (To intervene in an NRC licensing proceeding, a petitioner must show standing to intervene and submit at least one admissible contention for hearing.).
3 Letter from William R. McCollum, Jr., Nuclear Development, LLC, to NRC, Application for Order Approving Construction Permit Transfers and Conforming Administrative Construction Permit Amendments (Nov. 18, 2018)
(ML18318A428) (LTA) (The actual LTA is included as Attachment 1 to the transmittal letter.).
4 William (Billy) Gleaves, NRC, to William R. McCollum, Jr., Nuclear Development, LLC, Bellefonte Nuclear Plant, Units 1 and 2 - Supplemental Information Needed for Acceptance of Requested Application for Order Approving Construction Permit Transfers and Conforming Administrative Construction Permit Amendments (Apr. 5, 2019)
(ML18348B139) (The enclosure to this letter is available at ML18348B064.).
5 Letter from William R. McCollum, Jr., Nuclear Development, LLC, to NRC, Response to Request for Supplemental Information (Aug. 28, 2019) (ML19240A382) (The enclosure to this letter is available at ML19240A383).
6 Letter from Omid Tabatabai, NRC, to William R. McCollum, Jr., Nuclear Development, LLC, Bellefonte Nuclear Plant, Units 1 and 2 - Acceptance of Application for Order Approving Construction Permit Transfers and Conforming Administrative Construction Permit Amendments (Nov. 5, 2019) (ML19298A194).
7 Bellefonte Nuclear Plant; Consideration of Approval of Transfer of Construction Permits and Conforming Amendment, 84 Fed. Reg. 64,355 (Nov. 21, 2019) (Hearing Notice).
8 Petition for Intervention and Request for Hearing by the Blue Ridge Environmental Defense League and its Chapter Bellefonte Efficiency and Sustainability Team (Dec. 11, 2019) (ML19345H453) (Petition).
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III. BACKGROUND Before addressing Petitioners standing and contention admissibility arguments, ND provides an overview of the Bellefonte Units relevant licensing history, related prior litigation involving Petitioners, the NRCs license transfer requirements, and the LTA underlying this proceeding.
A. Licensing History of Bellefonte Units 1 and 2 In June 1973, TVA filed an application with the Atomic Energy Commission (AEC) to construct two nuclear reactors at the Bellefonte site, approximately seven miles northeast of Scottsboro, Alabama.9 An AEC Licensing Board considered interested citizens intervention requests, conducted an evidentiary hearing, and issued a decision favorable to TVA in December 1974.10 As originally issued, the CPs for Units 1 and 2 were to expire in December 1979 and September 1980, respectively. Thereafter, TVA began construction on both units.11 By 1979, TVA determined that it would not be able to complete construction by the deadlines, and thus requested an extension of the CP deadlines that NRC granted. 12 TVA again submitted timely extension requests, which the NRC granted in 1987.13 Soon after the 1987 extension, TVA decided to defer construction of the plants under the Commissions Policy Statement on Deferred Plants (Policy Statement).14 At the time of this initial deferral, Units 1 9
See Tenn. Valley Auth. (Bellefonte Nuclear Plants, Units 1 and 2), LBP-74-66, 8 AEC 472, 473-476 (1974).
10 CP Nos. CPPR-122 and CPPR-123. See 39 Fed. Reg. 45,313 (Dec. 31, 1974).
11 In February 1978, TVA applied for operating licenses for Units 1 and 2. Five months later, the NRC published both a notice of receipt of the operating license applications and a notice of opportunity for hearing. See 43 Fed. Reg. 30,628 (July 17, 1978). No hearing requests were filed.
12 See TVA, Bellefonte Nuclear Plant, Units 1 and 2; Order Extending Construction Completion Dates, 44 Fed. Reg.
76,893, 76,893 (Dec. 28, 1979).
13 See TVA, Bellefonte Nuclear Plant, Units 1 and 2; Order Extending Construction Completion Dates, 52 Fed. Reg.
25,676, 25,676 (July 8, 1987).
14 See Commission Policy Statement on Deferred Plants, 52 Fed. Reg. 38,077, 38,077-79 (Oct. 14, 1987). As part of the deferral TVA included a list of specific activities it would undertake during the deferral period pursuant to guidance in the Commissions Policy Statement TVA also stated that it would place Units 1 and 2 in deferred plant status. This meant that although TVA still possessed valid construction permits, construction ceased and it would perform only maintenance activities onsite.
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and 2 were reportedly approximately 90 and 60 percent complete, respectively. Under the Policy Statement, a permit holder may resume construction of a plant only after providing at least a 120-day notice to the NRC demonstrating readiness to resume construction.15 The NRC agreed to TVAs deferral request, finding TVAs proposed list of deferral-period activities consistent with the Commission Policy Statement.16 In 1993, TVA provided notice of its intent to resume construction and it requested deadline extensions for its permits. The NRC granted this request, extending Unit 1s deadline into 2001 and Unit 2s deadline into 2004.17 Shortly thereafter, TVA suspended further construction.
Although the Bellefonte Units remained in deferred plant status, TVA requested further extensions of the completion dates in 2001. The NRC approved TVAs request in March 2003, extending the CPs for Units 1 and 2 to October 2011 and October 2014, respectively.18 TVA later concluded that the Bellefonte Units were not economically viable, and therefore placed the units in terminated status under the Policy Statement.19 TVAs Board of Directors then voted to cancel construction due to anticipated reductions in power needs.20 In 2006, TVA requested that the NRC withdraw the permits. The Commission granted TVAs request by letter that same year.21 15 See 52 Fed. Reg. at 38,079.
16 See id. at 38,077. In addition, because TVAs construction permits were set to expire during the deferral period, the NRC noted that TVA would need to request a timely extension of its construction permits.
17 See In the Matters of TVA (Bellefonte Nuclear Plant, Units 1 and 2); Order, 59 Fed. Reg. 34,874, 34,874-75 (July 7, 1994).
18 See In the Matters of TVA (Bellefonte Nuclear Plant, Units 1 and 2); Order, 68 Fed. Reg. 11,415, 11,415-16 (Mar. 10, 2003).
19 See Letter from TVA to NRC, Bellefonte Nuclear Plant (BLN) Units 1 and 2 - Notification: Construction Permits CPPR-122 (Unit 1) and CPPR-123 (Unit 2) Placed in Terminated Status (Dec. 12, 2005) (ML060120054). In accordance with the Commission Policy Statement, this meant that TVA had permanently ceased construction on the Bellefonte Units, although TVA still retained valid construction permits for both units.
20 See Letter from TVA to NRC, Bellefonte Nuclear Plant (BLN) Units 1 AND 2 - Withdrawal of Construction Permits CPPR-122 (Unit 1) and CPPR-123 (Unit 2) - Request for Approval (Apr. 6, 2006) (ML061000538).
21 Letter from Catherine Haney, NRC to Karl W. Singer, TVA, Bellefonte Nuclear Plant, Units 1 and 2 - Withdrawal of Construction Permit Nos. CPPR-122 for Unit 1 and CPPR-123 for Unit 2 (Sept. 14, 2006) (ML061810505).
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In 2008, in light of changed economic circumstances, TVA requested that the NRC reinstate the CPs and return the Bellefonte Units to deferred status, such that TVA could resume preservation and maintenance activities to prepare the plants for construction.22 On February 18, 2009, the Commission authorized the Staff to issue an order reinstating the construction permits and placing the Bellefonte Units in terminated status under the Policy Statement, rather than in the deferred status sought by TVA.23 It also directed that the NRC Staff offer a hearing opportunity on the question of whether TVA had established good cause for reinstatement.
Accordingly, the Staff granted TVAs request to reinstate the construction permits and placed the units in terminated plant status.24 The NRCs related Federal Register notice afforded interested persons the right to request intervention and a hearing, limited to whether good cause existed for reinstatement of the CPs.25 The Bellefonte Units currently are in deferred plant status (see LTA, attach. 1 at 3). In 2011, the NRC extended the construction completion date for Unit 1 to October 1, 2020. In 2014, TVA requested an extension of the completion date for Unit 2. On March 31, 2017, TVA provided an update on the extension request, noting the continuing timely renewal status of that application under 10 C.F.R. § 2.109 and informing the NRC of the planned sale of the Bellefonte Units to ND and deferred action regarding a specific revised construction completion date pending discussion between NRC and ND, such that Unit 2 remains in timely renewal status.26 22 See Letter from TVA to NRC, Tennessee Valley Authority (TVA) - Bellefonte Nuclear Plant Units 1 and 2 - Request to Reinstate Construction Permits CPPR-122 (Unit 1) and CPPR-123 (Unit 2) (Aug. 26, 2008) (ML082410087).
23 See Memorandum from Andrew L. Bates to R.W. Borchardt, Staff Requirements-COMSECY-08-0041, Staff Recommendation Related to Reinstatement of the Construction Permits for Bellefonte Nuclear Plants Units 1 and 2, at 1 (Feb. 18, 2009) (ML090490838).
24 See In the Matter of Tennessee Valley Authority (Bellefonte Nuclear Plant Units 1 and 2); Order, 74 Fed. Reg. 10,969 (Mar. 13, 2009).
25 Id.
26 See Letter from J. W. Shea, TVA, to NRC, Bellefonte Nuclear Plant (BLN) Unit 2 - Status Update Regarding Construction Permit CPPR-123 (Mar. 31, 2017) (ML17090A388). Further, NDs LTA requested extension of the construction completion dates for Bellefonte Unit 1 and Unit 2 until October 1, 2029 and October 1, 2030, respectively.
See LTA, attach. 1 at 3.
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B. Litigation Related to the NRCs Reinstatement of the Bellefonte Units CPs
- 1. NRC Adjudicatory Proceeding On May 8, 2009, in response to the aforementioned hearing notice, BREDL, BEST, and the Southern Alliance for Clean Energy (SACE) filed a petition to intervene. By Order dated May 20, 2009, the Commission directed the petitioners, TVA, and the NRC Staff to submit briefs addressing the question whether the NRC possesses the statutory authority to reinstate the withdrawn construction permits.27 The Commission ordered that [t]he remainder of Petitioners proposed contentions will be held in abeyance, pending the Commissions ruling on the threshold authority issue.28 The participants completed briefing in June 2009.
On January 7, 2010, the Commission ruled that it has the legal authority to reinstate the CPs and, accordingly, denied admission of Proposed Contentions 1 and 2.29 The Commission referred the remainder of the petition to intervene and request for hearing, including Petitioners July 15, 2009, supplemental filing to the Atomic Safety and Licensing Board Panel for further proceedings on whether there was good cause for reinstatement of the CPs.30 On April 2, 2010, the Board issued LBP-10-7, in which it determined that BREDL and SACE (but not BEST) had established standing to intervene in this proceeding.31 The Board dismissed the petition, however, because it contained no admissible contentions, contrary to the provisions of 10 C.F.R. § 2.309(f)(1). NRC regulations (10 C.F.R. § 2.311) accorded the petitioners 10 days to appeal the Boards ruling LBP-10-7. The petitioners missed that deadline but filed an appeal and requested additional time.
27 Order of the Secretary Responding to Petitioners Contention Regarding Authority of the NRC to Reinstate the Withdrawn Construction Permit (May 20, 2009) (ML091400780).
28 Id.
29 Tenn. Valley Auth. (Bellefonte Nuclear Plant, Units 1 and 2), CLI-10-6, 71 NRC 113, 115, 126 (2010).
30 Id. at 126.
31 Tenn. Valley Auth. (Bellefonte Nuclear Plants, Units 1 and 2), LBP-10-7, 71 NRC 391, 404, 430 (2010).
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In CLI-10-26, issued on September 29, 2010, the Commission denied Petitioners motion for extension of time and dismissed their appeal.32 Notably here, the Commission also found that TVAs submittal of additional QA information rendered Petitioners Contention 6 moot and thus inadmissible as originally submitted, and that Petitioners did not revise their proposed contention by addressing the new QA information. It further held that Contention 6 was based on the misconceptions that: (1) the NRCs reinstatement of the CPs allowed TVA to restart construction on the two units immediately, and (2) TVA purportedly claimed that it already had satisfied the NRCs QA requirements. The Commission explained that reinstatement of the CPs only placed the Bellefonte Units in terminated plant status and did not authorize resumed construction of the reactors. It further noted that the record was clear that TVA had not fully implemented a QA plan.
- 2. U.S. Court of Appeals Proceeding On March 30, 2009, BREDL filed suit in the U.S. Court of Appeals for the District of Columbia Circuit, seeking review of the NRCs final determination to reinstate the CPs for the Bellefonte Units. On March 8, 2010, BREDL filed a second petition for review with the D.C.
Circuit challenging the Commissions January 7, 2010, decision (CLI-10-6) holding that the NRC had the authority to reinstate the CPs for Bellefonte Units 1 and 2. The D.C. Circuit denied both of BREDLs petitions for review.33 The Commission issued its final order (CLI-10-26) on September 29, 2010; neither BREDL nor BEST sought judicial review of that final order.
C. NRC Reactor License Transfer Requirements Under Section 184 of the Atomic Energy Act of 1954, as amended (AEA), an NRC reactor license, or any right thereunder, may not be transferred, assigned, or in any manner disposed of, either voluntarily or involuntarily, directly or indirectly, through transfer of control of 32 Tenn. Valley Auth. (Bellefonte Nuclear Plant, Units 1 and 2), CLI-10-26, 72 NRC 474, 478 (2010).
33 Blue Ridge Envtl. Def. League v. NRC, 668 F.3d 747, 754-58 (D.C. Cir. 2012).
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the license to any person, unless the NRC first gives its consent in writing.34 This statutory requirement is codified in 10 C.F.R. § 50.80 and applies to both direct and indirect transfers of construction permits and licenses.35 Before approving a license transfer, the NRC reviews, among other things, the technical and financial qualifications of the proposed transferee.36 The transfer review, in other words, focuses on the potential impact on the transferees ability both to maintain adequate technical qualifications and organizational control and authority over the facility, and to provide adequate funds for the authority requested.37 AEA Section 189.a requires that the NRC offer an opportunity for hearing on a license transfer.38 In 1998, the NRC adopted Subpart M of 10 C.F.R. Part 2 (10 C.F.R. §§ 2.1300 to 2.1331) authorizing the use of a streamlined license transfer process with expedited and informal hearings.39 Those rules cover any license transfer for which NRC approval is required, including those transfers that require license amendments and those that do not.40 D. The Current License Transfer Application As explained in the LTA, ND is a special purpose entity owned by Mr. and Mrs. Franklin L. Haney and trusts for members of their family. ND was the successful bidder in an auction for the Bellefonte Units conducted by TVA in November of 2016. Under the terms of the resulting Purchase and Sale Agreement, as amended, ND is seeking to purchase from TVA the Bellefonte 34 42 U.S.C. § 2234.
35 See NRC Backgrounder, Reactor License Transfers, at 1-2 (Apr. 2016) (ML040160803).
36 See 10 C.F.R. §§ 50.80(b)(1), (c)(1); see also Standard Review Plan on Power Reactor Licensee Financial Qualifications and Decommissioning Funding Assurance, NUREG-1577, Revision 1 (1999) (ML013330264).
37 See Final Policy Statement on the Restructuring and Economic Deregulation of the Electric Utility Industry, 62 Fed.
Reg. 44,071, 44,077 (Aug. 19, 1997).
38 42 U.S.C. § 2239(a)(1)(A) ([I]n any proceeding under this Act, for . . . application to transfer control, . . . the Commission shall grant a hearing upon the request of any person whose interest may be affected by the proceeding, and shall admit any such person as a party to such proceeding.).
39 See Streamlined Hearing Process for NRC Approval of License Transfers; Final Rule, 63 Fed. Reg. 66,721, 66,722 (Dec. 3, 1998) (Subpart M Rule); see also Changes to Adjudicatory Process; Final Rule, 69 Fed. Reg. 2182, 2214 (Jan. 14, 2004) (retaining streamlined process for license transfers without substantive changes).
40 See Subpart M Rule, 63 Fed. Reg. at 66,727.
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Purchased Assets. This pending transaction has necessitated NDs instant request for NRC consent to the direct transfer of the Bellefonte Units CPs to ND, as well as NDs concurrent request for NRC approval of conforming administrative amendments to the CPs to reflect the transfer and the revised construction completion dates discussed in the LTA. The ultimate purpose of the requested CP transfers is to allow ND, through its various project partners (including SNC-Lavalin Nuclear (USA) and Framatome, Inc.), to complete construction of the Bellefonte Units, subject to all applicable NRC requirements, policies, and procedures.
The LTA describes NDs plans for oversight of the necessary site preservation, security, and safety activities in the interim period and following the CP transfers and before restarting licensed construction. It also includes the information required by 10 C.F.R. § 50.80 (Transfer of licenses). That information is provided to demonstrate, among other things, that: (1) ND has the requisite managerial, technical, and financial qualifications to be the holder of the CPs; (2) the material terms of the CPs will not be affected; and (3) the transfer of the CPs to ND will not result in any impermissible foreign ownership, control or domination.
IV. PETITIONERS HAVE NOT DEMONSTRATED STANDING TO INTERVENE Petitioners assert that they have representational standing through their members to intervene in this proceeding.41 In support of this claim, Petitioners rely on the nearly-identical declarations of BREDL/BEST members Sandra Kurtz and Garry L. Morgan. Ms. Kurtzs declaration provides her home address in Chattanooga, TN and states that she lives within about 43 miles of the Bellefonte site. Mr. Morgans declaration provides his home address in Scottsboro, AL and indicates that he lives approximately 41/2 miles from the Bellefonte site.
41 Petition at 1.
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Petitioners claim that Ms. Kurtz and Mr. Morgan have presumptive standing by virtue of their proximity to the two new nuclear plants that may be constructed on the site.42 In their respective declarations, Ms. Kurtz and Mr. Morgan authorize BREDL and BEST to represent their interests in this proceeding as to whether good cause exists for the transfer of the two construction permits by the NRC from [TVA] to [ND]. Both declarants assert that the Bellefonte Units are inherently dangerous; the design for those units has never been completed anywhere in the United States; the long delay and neglected state of these nuclear reactors . . .
could pose a grave risk to [their] health and safety; and an accident involving atmospheric release of radiological material could cause them to be killed or become very ill.
As discussed below, Petitioners fail to demonstrate standing to intervene in this proceeding under 10 C.F.R. § 2.309(d). That failure alone warrants dismissal of their Petition.43 A. Legal Standards and Precedent Governing Standing as a Matter of Right Section 2.309(d) states a petitioner seeking to establish standing must provide the following information: (1) the name, address, and telephone number of the requestor or petitioner; (2) the nature of the petitioners right under the AEA or the National Environmental Policy Act (NEPA) to be made a party to the proceeding; (3) the nature and extent of the petitioners property, financial or other interest in the proceeding; and (4) the possible effect of any decision or order that may be issued in the proceeding on the petitioners interest. Importantly, the petitioner bears the burden to provide facts sufficient to establish standing.44 42 Id. at 4.
43 Alternatively, if the Board determines that Petitioners have not proffered an admissible contentionas it should for the reasons set forth belowthen it need not address Petitioners standing to intervene in this proceeding. See PPL Susquehanna, LLC (Susquehanna Steam Elec. Station, Units 1 & 2), CLI-15-8, 81 NRC 500, 503 n.19 (2015)
(Because [the petitioners] contentions all fall far short of our contention admissibility standards, we need not address his standing to intervene.).
44 See U.S. Enrichment Corp. (Paducah, Kentucky Gaseous Diffusion Plant), CLI-01-23, 54 NRC 267, 272 (2001) (citing Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2), CLI-00-5, 51 NRC 90, 98 (2000)).
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- 1. Traditional Standing Requirements In determining whether a petitioner has the requisite interest to satisfy these requirements, the Commission long has applied contemporaneous judicial concepts of standing.45 As such, a person or organization seeking to intervene must show that it has suffered or might suffer a concrete and particularized injury that is: (1) fairly traceable to the challenged action; (2) likely redressable by a favorable decision; and (3) arguably within the zone of interests protected by the governing statuteshere the AEA and NEPA.46 These criteria are commonly referred to as injury-in-fact, causality, and redressability.
- 2. Representational Standing Requirements When an organization like BREDL seeks to intervene in an NRC proceeding, it may show standing either in its own right or as a representative for an individual.47 In this case, Petitioners purport to do the latter. An organization may seek to establish representational standing based on the standing of one or more individual members. To do so, an organization must: (1) show that the interests it seeks to protect are germane to its own purpose; (2) identify at least one member who qualifies for standing in his or her own right; (3) show that it is authorized by that member to request a hearing on his or her behalf; and (4) show that neither the claim asserted nor the relief requested require an individual members participation in the organizations legal action.48
- 3. Proximity-Based Standing Principles In certain NRC proceedings, a petitioner may take advantage of proximity presumptions that the Commission has created to simplify standing requirements for individuals who reside 45 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-15-25, 82 NRC 389, 394 (2015);
Cleveland Elec. Illuminating Co. (Perry Nuclear Power Plant, Unit 1), CLI-93-21, 38 NRC 87, 92 (1993) (citing Lujan
- v. Defs. of Wildlife, 504 U.S. 555, 561 (1992)).
46 Calvert Cliffs 3 Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-09-20, 70 NRC 911, 915 (2009).
47 To intervene in its own right, an organization must satisfy the same standing requirements of injury, traceability, and redressability as an individual seeking to intervene. Petitioners do not purport to do so here.
48 Consumers Energy Co. (Palisades Nuclear Plant), CLI-07-18, 65 NRC 399, 409 (2007).
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within, or have frequent contacts with, a geographic zone of potential harm. Specifically, the Commission has held that the proximity presumption may be sufficient to confer standing on an individual or group in Part 50 proceedings involving reactor construction permits, operating licenses, or significant license amendments thereto such as the expansion of the capacity of a spent fuel pool.49 As the Commission has noted, those cases [have] involved the construction or operation of the reactor itself, with clear implications for the offsite environment, or major alterations to the facility with a clear potential for offsite consequences.50 In such proceedings, the geographic zone of potential harm is deemed to be the area within a 50-mile radius of the site, and proximity-based standing rests on the presumption that an accident associated with the nuclear facility could adversely affect the health and safety of people working or living offsite but within a certain distance of that facility.51 The Commission, however, has held that a more stringent standard applies to proceedings involving approvals that lack a clear potential for offsite consequences.52 Such proceedings include license transfer cases, where the Commission determine[s] on a case-by-case basis whether the proximity presumption should apply, considering the obvious potential for offsite
[radiological] consequences, or lack thereof, from the application at issue, and specifically taking into account the nature of the proposed action and the significance of the radioactive source.53 NRC tribunals have recognized proximity standing at such close distances where a petitioner frequently engages in substantial business and related activities in the vicinity of the 49 Fla. Power & Light Co. (St. Lucie Nuclear Power Plant, Units 1 and 2), CLI-89-21, 30 NRC 325, 329 (1989) (citations omitted).
50 Id. at 329-30 (emphasis added).
51 Id. (citations omitted).
52 Id. at 329-30; see also Boston Edison Co. (Pilgrim Nuclear Power Station), LBP-85-24, 22 NRC 97, 98-99 (1985), affd on other grounds, ALAB-816, 22 NRC 461 (1985) (residence 43 miles from the plant is inadequate for standing with respect to a spent fuel pool expansion).
53 Consumers Energy Co. (Big Rock Point Indep. Spent Fuel Storage Installation), CLI-07-19, 65 NRC 423, 426 (2007)
(quoting Exelon Generation Co., LLC and PSEG Nuclear, LLC (Peach Bottom Atomic Power Station, Units 2 and 3),
CLI-05-26, 62 NRC 577, 580-81 (2005)).
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facility, engages in normal everyday activities in the vicinity, has regular and frequent contacts in an area near a license facility, or otherwise has visits of a length and nature showing an ongoing connection and presence.54 Conversely, the NRC has denied proximity-based standing where contact has been limited to mere occasional trips to areas located close to reactors.55 Furthermore, to establish proximity standing, a petitioner must provide fact-specific standing allegations, not conclusory assertions, as the Commission cannot find the requisite interest based on . . . general assertions of proximity.56 B. Petitioners Have Not Established Representational Standing Based on Either Traditional Standing Requirements or Proximity-Based Standing Principles Petitioners claim of representational standing fails for several reasons. As explained below, Petitioners fail to explain how any of the members they purport to represent will suffer an injury-in-fact that is fairly traceable to the CP transfers at issue here, and likely to be redressed by a favorable determination, and within the zone of interests protected by the AEA. Nor have Petitioners shown that the interests they seek to protect are germane to the organizations own purpose, as is required to establish representational standing. Indeed, nowhere in the Petition or two standing declarations do Petitioners describe the organizational purposes of BREDL or BEST, and explain how they are germane to this licensing action or their members asserted interests.
Petitioners identified members (i.e., Ms. Kurtz and Mr. Morgan) rely entirely on unsupported, conclusory assertions of injury, and fail to establish a plausible nexus between the alleged harms and the proposed CP transfers. Consequently, Petitioners fail to establish that either Ms. Kurtz or Mr. Morgan qualifies for standing in their own right. Both declarants first note that since the CPs were first issued in 1974, there have been changes in water demand, land use, 54 Consumers Energy Co. (Big Rock Point), CLI-07-21, 65 NRC 519, 523-524 (2007) (internal quotation marks and citations omitted) (emphasis in original).
55 Id. (citation omitted).
56 Palisades, CLI-07-18, 65 NRC at 410 (emphasis added).
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population, radioactive waste management, federal regulations, and even the need for nuclear-generated electric power. However, they fail to explain how such changed conditions give rise to any actual or potential injury to them, much less one that is readily traceable to the proposed CP transfers.
As noted above, Ms. Kurtz and Mr. Morgan also vaguely allege that the Bellefonte Units are inherently dangerous. They further postulate that the first of its kind design in the United States coupled with delayed completion and neglected state could lead to an accidental radiological release that poses grave health and safety risks, possibly including serious illness or death. However, neither declarant attempts to explain how the proposed action at issue herethe direct transfer of control of the Bellefonte Units CPs from TVA to NDposes any inherent danger or could result in a radiological accident of any kind.
The declarants hyperbolic and conclusory assertions also find no factual support in the Petition itself. Petitioners rely on the ipse dixit assertions that: (1) the transfer of the CPs would allow [ND] to proceed with its stated purpose of construction of two reactors on the Bellefonte site, and (2) there is an obvious potential for offsite consequences within 50 miles of the two new nuclear plants that may be constructed on the site. Petition at 4-5. Both assertions, however, are rooted in patent misconceptions about the nature and purpose of the NRC approval sought by ND in its LTA.
Although the purpose of the CP transfers ultimately is to allow ND to complete the construction of the Bellefonte Units, the NRCs consent to the transfers does not, by itself, authorize reactivation of construction of the Bellefonte Units, and certainly does not authorize fuel loading and operation of the fully-built plants (for which separate NRC operating licenses would be required). Indeed, as the LTA explains, upon consummation of the proposed CP transfers, ND will maintain the Bellefonte Units in their deferred status while it proceeds expeditiously to 15
complete engineering and design of the Bellefonte Units. Neither activity would involve any adverse impact on public health and safety. As the LTA further explains, the same is true of the proposed conforming amendments to the CPs:
The proposed permit amendments do not involve any change in the design or licensing basis, plant configuration, the status of the Bellefonte Units, or the requirements of the Permits. Therefore, the proposed approval does not:
(1) involve an increase in the probability or consequences of an accident previously analyzed; (2) create the possibility of a new or different kind of accident from the accidents previously evaluated; or (3) involve a significant reduction in a margin of safety.57 Thus, the foregoing LTA discussion, which Petitioners ignore, undercuts any claim that the NRC licensing action at issue here is inherently dangerous or poses a grave risk to the declarants lives or the public health and safety at large.
Significantly, Petitioners also overlook the fact that the NRCs Deferred Plant Policy Statement establishes specific processes and requirements pursuant to which, at the CP holders request, a facility can be reactivated from deferred (or terminated) status so that construction may be resumed. Thus, even if the NRC approves the CP transfers and ND ultimately seeks to reactivate construction of the Bellefonte Units, ND would need to comply with Section III.A of the Policy Statement (assuming the CPs are received in their current Deferred Plant status).
For example,Section III.A.5 of the Policy Statement addresses the applicability of new regulations, guidance, and policies.58 Section III.A.6 requires the CP holder to notify the NRC in writing at least 120 days before plant construction is expected to resume.59 Finally,Section III.A.7 of the Policy Statement describes the principal criteria or bases upon which the NRC Staff 57 LTA, attach. 1 at 13-14.
58 See Deferred Plant Policy Statement, 52 Fed. Reg. at 38,079.
59 See id. Among other things, this notification must identify any new regulatory requirements applicable to the plant that have become effective since plant construction was deferred, together with a description of the licensees proposed plans for compliance with these requirements or a commitment to submit such plans by a specified date. Id. This and other information, such as the security and other required plans, operating procedures, technical specifications, and the facility design, will be evaluated during the review of the OL application, if and when ND proceeds to complete construction of the facility.
16
evaluates the acceptability of equipment upon reactivation of a plant from deferred status.60 In this regard, the LTA explicitly states that [c]onsistent with Section III.A.3 of the Policy Statement, and upon transfer of the Permits, [ND] will ensure effective quality assurance and implement oversight activities commensurate with regulatory and Permit requirements.61 The LTA also includes a proposed CP condition that provides, in part, that the licensee will notify the NRC at least 120 days prior to its anticipated date of resuming construction.62 In view of the above, Ms. Kurtzs and Mr. Morgans residences within 43 miles and 41/2 miles of the Bellefonte site do not, ipso facto, establish presumptive or proximity-based standing, as Petitioners incorrectly assert. As stated above, even in a license transfer proceeding involving an operating reactor, a petitioner cannot base his or her standing only upon a residence or visits near the plant, unless the proposed action quite obvious[ly] entails an increased potential for offsite consequences.63 Here, the proposed CPs transfers and conforming amendments do not on their face present any obvious potential of offsite radiological consequences.64 As the Commission noted in the 2005 Peach Bottom license transfer case, the threshold question is whether the kind of action at issue, when considered in light of the radioactive sources at the plant, justifies a presumption that the licensing action could plausibly lead to the offsite 60 See id. These include (1) reviews of the approved preservation and maintenance program, as implemented, to determine whether any SSCs require special NRC attention during reactivation; (2) verification that any design changes, modifications, and required corrective actions have been implemented and documented in accordance with established quality control requirements; and (3) verification that the results of any licensee or NRC baseline inspections that indicate that quality and performance requirements have not been significantly reduced below those originally specified in the final safety analysis report (FSAR).
61 LTA, attach. 1 at 4-5.
62 LTA, attach. 1 at 9.
63 Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2), CLI-99-4, 49 NRC 185, 191 (1999), petition for review denied, Dienethal v. NRC, 203 F.3d 52 (D.C. Cir. 2000) (table) (citing St. Lucie, CLI-89-21, 30 NRC at 329-
- 30) (internal quotation marks omitted). See also Peach Bottom, CLI-05-26, 62 NRC at 580-81 (explaining how the Commission considers proximity-based standing in license transfer cases, and stating that [i]f the petitioner fails to show that a particular licensing action raises an obvious potential for offsite consequences, then our standing inquiry reverts to a traditional standing analysis of whether the petitioner has made a specific showing of injury, causation and redressability) (emphasis in original).
64 Zion, CLI-99-4, 49 NRC at 191.
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release of radioactive fission products from . . . the . . . reactors.65 It emphasized that [t]he burden falls on the petitioner to demonstrate this.66 If the petitioner fails to show that the subject licensing action raises an obvious potential for offsite consequences, then the standing inquiry reverts to a traditional standing analysis of whether the petitioner has made a specific showing of injury, causation, and redressability.67 There are no radioactive fission products present at the Bellefonte site.68 Nor are there any significant nuclear activities ongoing at the Bellefonte Units that could create such fission products and plausibly lead to offsite radiological consequences.69 Furthermore, as explained above, neither of Petitioners two declarants have identified any real and immediate injuries that are plausibly linked to the proposed CP transfers. Instead, they simply aver, without any demonstrable factual basis, that the partially-constructed Bellefonte Units are inherently dangerous, and that the CP transfers could lead to a postulated radiological release.
In conclusion, Petitioners have presented no information or analysis that establishes a plausible nexus between the challenged CP transfers and any asserted harm.70 Therefore, they failed to demonstrate representational standing based on either traditional standing tenets or proximity-based principles recognized by the Commission in its case law.71 65 Peach Bottom, CLI-05-26, 62 NRC at 581 (quoting Commonwealth Edison Co. (Zion Nuclear Power Station, Units 1 and 2), LBP-98-27, 48 NRC 271, 277 (1998), affd, CLI-99-4, 49 NRC 185 (1999), petition for review denied, Dienethal v. NRC, 203 F.3d 52 (D.C. Cir. 2000) (table)).
66 Id.
67 Id.
68 See LTA, attach. 1 at 12 (noting that the NRC has not issued licenses under 10 C.F.R. Part 50 or 10 C.F.R. Part 70 for the Bellefonte Units that would authorize ownership, possession, use, or storage of special nuclear material).
69 Zion¸ CLI-99-4, 49 NRC at 191.
70 Id. at 188 (citation omitted).
71 Although the Commission may grant discretionary intervention pursuant to 10 C.F.R. § 2.309(e), that regulation is not relevant here because Petitioners have not cited that regulation. Moreover, the regulation applies only when at least one requestor/petitioner has established standing and at least one admissible contention has been admitted so that a hearing will be held. 10 C.F.R. § 2.309(e). Thus, discretionary intervention will not be granted unless at least one petitioner previously has established standing and at least one admissible contention, which is not the case here. See Entergy Nuclear Operations, Inc. and Entergy Nuclear Palisades, LLC (Palisades Nuclear Plant), CLI-08-19, 68 NRC 251, 267 (2008) (finding that because no petitioner had demonstrated standing, the prerequisites for applying 10 C.F.R.
§ 2.309(e) standards were not present).
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V. PETITIONERS PROPOSED CONTENTIONS ARE INADMISSIBLE Given Petitioners failure to demonstrate standing, the Board need not address the admissibility of their proposed contentions to deny the Petition.72 In any event, as explained below, the Petition also fails to meet the NRCs contention admissibility criteria.
A. Governing Legal Standards for Contention Admissibility Under 10 C.F.R. § 2.309(f)(1), a hearing request must set forth with particularity the contentions sought to be raised. That regulation further requires that each contention:
(i) Provide a specific statement of the issue of law or fact to be raised or controverted; (ii) Provide a brief explanation of the basis for the contention; (iii) Demonstrate that the issue raised is within the scope of the proceeding; (iv) Demonstrate that the issue raised is material to the findings the NRC must make to support the action that is involved in the proceeding; (v) Provide a concise statement of the alleged facts or expert opinions, including references to the specific sources and documents that support the petitioners position and upon which the petitioner intends to rely; and (vi) Provide sufficient information to show that a genuine dispute exists with the applicant on a material issue of law or fact.73 Failure to comply with any one of these six admissibility requirements is grounds for rejecting a proposed contention.74 These requirements are strict by design.75 The six criteria serve to focus litigation on concrete issues and result in a clearer and more focused record for 72 Cf. Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Unit No. 3 & James A. Fitzpatrick Nuclear Plant), LBP-16-14, 84 NRC 444, 451 (2016) (Here, given Petitioners failure to even attempt to demonstrate compliance with those requirements, we need do no more than dismiss the Petition for lack of standing.).
73 See also Susquehanna Nuclear, LLC (Susquehanna Steam Elec. Station, Units 1 & 2), CLI-17-4, 85 NRC 59, 74 (2017).
74 See Changes to Adjudicatory Process, 69 Fed. Reg. at 2221; see also Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999).
75 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001).
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decision.76 The Commission should not have to expend resources to support the hearing process unless there is an issue that is appropriate for, and susceptible to, resolution in an NRC hearing.77 The petitioner alone bears the burden to meet the standards of contention admissibility.78 Thus, where a petitioner neglects to provide the requisite support for its contentions, the Presiding Officer may not cure the deficiency by supplying the information that is lacking or making factual assumptions that favor the petitioner to fill the gap.79 Although a Presiding Officer may consider the readily apparent legal implications of a pro se petitioners arguments, even if not expressly stated in the petition, that authority is limited in that the petitionernot the boardmust provide the information required to satisfy [the] contention admissibility standards.80 B. Proposed Contention 1 Is Inadmissible Because It Raises Issues That Are Neither Within the Scope of This Proceeding Nor Material to the NRC Staffs Required Findings on the LTA Proposed Contention 1 asserts that the [CPs] sought by ND are legally defective and void because [n]othing in the AEA authorized the Commission to reinstate a CP which, as in this case, had been withdrawn by the applicant and terminated by the NRC.81 Petitioners claim that NRC is authorized only to grant new CPs pursuant to AEA Section 189, and that [b]ecause 76 Changes to Adjudicatory Process, 69 Fed. Reg. at 2202; see also Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), LBP-08-13, 68 NRC 43, 61 (2008); see also Oyster Creek, CLI-19-6, slip op. at 7 (noting that the NRC contention admissibility requirements serve to screen out ill-defined, speculative, or otherwise unsupported claims.).
77 Changes to Adjudicatory Process, 69 Fed. Reg. at 2202.
78 See Entergy Nuclear Operations, Inc. (Palisades Nuclear Plant), CLI-15-23, 82 NRC 321, 325, 329 (2015) ([I]t is Petitioners responsibility, not the Boards, to formulate contentions and to provide the necessary information to satisfy the basis requirement for admission); DTE Electric Co. (Fermi Nuclear Power Plant, Unit 2), CLI-15-18, 82 NRC 135, 149 (2015) (citations omitted) ([T]he Board may not substitute its own support for a contention or make arguments for the litigants that were never made by the litigants themselves.).
79 See Palisades, CLI-15-23, 82 NRC at 329; Fermi, CLI-15-18, 82 NRC at 149; Ariz. Pub. Serv. Co. (Palo Verde Nuclear Station, Units 1, 2, & 3), CLI-91-12, 34 NRC 149, 155 (1991).
80 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), CLI-18-4, 87 NRC 89, 96-97 (2018) (citations omitted).
81 Petition at 7.
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the Commission did not invoke this authority when reinstating the CPs, its action was illegal.82 They further suggest that the NRC has not complied with its Policy Statement.83 Proposed Contention 1 is inadmissible under 10 C.F.R. § 2.309(f)(1)(iii) and (iv) because its raises issues that are not within the scope of this proceeding or material to the findings that the NRC must make to support approval of the LTA. In short, the legality of the NRCs reinstatement of the previously-withdrawn CPs for Bellefonte Units 1 and 2 in March 2009, including its compliance with the AEA and Policy Statement, is not at issue in this proceeding. As discussed in Section III.B, supra, when the NRC reinstated the CPs more than 10 years ago, it afforded potentially affected persons the opportunity to request a hearing on that specific action.
Petitioners availed themselves of that opportunity and submitted, among other contentions, two proposed contentions (Contentions 1 and 2) that specifically challenged the NRC statutory authority to reinstate the CPs. As proffered by BREDL, BEST, and SACE on May 8, 2009, Contention 1 is substantively identical to Petitioners Proposed Contention 1 in this proceeding.
In CLI-10-6, the Commission held that it has the authority to reinstate the Bellefonte Construction Permits for Units 1 and 2 and accordingly denied Contentions 1 and 2.84 As also discussed in Section III.B, supra, Petitioners efforts to seek judicial review of the Commissions decision to reinstate the CPs proved unsuccessful. Thus, the legality of the Commissions reinstatement of those CPs nearly a decade ago is settled as a matter of lawit is not subject to reexamination in this CP transfer proceeding. Furthermore, in light of the previous litigation described above, Petitioners are precluded by the doctrine of collateral estoppel from re-litigating 82 Id. at 8.
83 See id. at 8. Petitioners also state that because the construction date for Bellefonte Unit 1 is October 1, 2020, the construction of the plant cannot be done within the next 91/2 months. Id. However, in so asserting, Petitioners overlook that the LTA provides the basis for and requests updated construction completion dates for both units, i.e.,
October 1, 2029 for Unit 1, and October 1, 2030 for Unit 2.
84 Bellefonte, CLI-10-6, 71 NRC at 126.
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the issue of the Commissions authority to reinstate the Bellefonte CPs. One NRC licensing board explained the doctrine of collateral estoppel as follows:
Similar to the doctrine of res judicata, the precept of collateral estoppel, also known as issue preclusion, prevents the re-litigation of issues that already have been adjudicated. Issue preclusion applies only if the issue in the prior adjudication is identical to that in the subsequent case. Moreover, to apply the doctrine of collateral estoppel: (1) the judgment in the case must be final and entered by a court of competent jurisdiction; (2) the issue must have been the same as that actually litigated and necessary to the outcome of the first action; and (3) the party to which the estoppel is to be applied must have been a party, or in privity with a party, that litigated the issue in the prior proceeding. See 18 Moore ¶ 132.01[1]-[2], at 132-10 to 132-11. If so, the issue cannot be re-litigated in a subsequent action with a different claim.85 The foregoing elements clearly are satisfied here. In CLI-10-6, the Commission, in order to resolve contentions submitted by BREDL and BEST in a contested proceeding, held that the AEA gives the NRC the authority to reinstate surrendered construction permits. Consequently, Petitioners are foreclosed from litigating the same issue in a subsequent action (i.e., this CP transfer proceeding) with a different claim (i.e., as a purportedly new contention).
In conclusion, the Commission should reject Proposed Contention 1 as inadmissible, because it raises an issue that is neither within the scope of this proceeding or material to the NRCs required findings on the LTA, contrary to the requirements of 10 C.F.R. § 2.309(f)(1)(v) and (vi). Petitioners, moreover, are collaterally estopped from litigating the issue raised in Proposed Contention 1 for the reasons explained above.
C. Proposed Contention 2 Is Inadmissible Because It Raises Issues That Are Not Within the Scope of This Proceeding or Material to the NRCs Required Findings, Lacks Adequate Support, and Fails to Raise a Genuine Material Dispute with the LTA Proposed Contention 2 asserts that TVAs alleged failure to adhere to QA requirements places the public at risk if the permits are transferred to ND and construction is completed.86 85 Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), LBP-02-20, 56 NRC 169, 181-82 (2002).
86 See Petition at 8-9.
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Petitioners claim that QA requirements have suffered breaches caused by the on-again-off-again construction history of Bellefonte Units 1 and 2, and that [r]ecords that never existed cannot be recovered.87 Citing NRC regulations in 10 C.F.R. Part 50 and the NRCs Policy Statement, they contend that, to ensure safety of the public, the virtual cannibalization and replacement processes which occurred at Bellefonte 1 and 2 would need to be documented in a comprehensive QA program listed in the license transfer.88 Petitioners contend that, [w]ithout the required QA documentation . . . the construction permits cannot [be] transferred because the Commission cannot be provided with assurance that the nuclear facility meets the requirements.89 Proposed Contention 2 is inadmissible for multiple, independent reasons. Insofar as it seeks to litigate alleged noncompliances by TVA with NRC QA requirements, such issues are outside the scope of this proceeding and immaterial to the Staffs required findings on the LTA.
In short, the adequacy of TVAs historical implementation of its QA program is not pertinent or material to the central issue in this proceeding, as defined in the Hearing Notice. That issue is whether ND, as the proposed transferee, is qualified to hold the license [i.e., CPs], and that the transfer is otherwise consistent with applicable provisions of law, regulations, and orders issued by the Commission.90 With regard to the issue of quality assurance, the NRC will evaluate the LTA against the applicable requirements in NRC regulations, including 10 C.F.R. § 50.34 (Contents of applications; technical information), 10 C.F.R. § 50.55a (Codes and standards) and Appendix B (Quality Assurance Criteria for Nuclear Power Plants and Fuel Reprocessing Plants) to 10 C.F.R. Part 50. Therefore, to the extent the proposed contention raises issues 87 Id. at 8.
88 Id. at 9.
89 Id. at 9-10.
90 Hearing Notice, 84 Fed. Reg. at 64,356.
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related to TVAs historical compliance with NRC QA requirements, it contravenes the requirements of 10 C.F.R. § 2.309(f)(1)(iii) and (iv).
In a related vein, insofar as the QA-related issues raised in Proposed Contention 2 overlap with concerns raised by BREDL and BEST in Contention 6 in the prior Bellefonte CP reinstatement proceeding, the doctrine of collateral estoppel again bars their relitigation here.
Notably, Petitioners cite the May 6, 2009 Declaration of Arnold Gundersen, which they offered in support of previously-submitted Contention 6 some ten years ago, in support of the claim that what occurred was the loss of continuity in the required [QA] documentation and programs.91 In LBP-10-7, the Board rejected that contention as inadmissible, and the Commission affirmed the Boards ruling on appeal in CLI-10-26. Thus, Proposed Contention 2 cannot afford Petitioners the opportunity to rehash QA-related claims previously rejected by the Board and the Commission.
To the extent Proposed Contention 2 (generously) might be read as a challenge to the LTAwhich is far from clearit lacks adequate support and fails to raise a genuine dispute on a material issue of law or fact, contrary to the requirements of 10 C.F.R. § 2.309(f)(1)(v) and (vi).
Petitioners have presented no alleged facts or expert opinion to suggest that the LTA does not comply with applicable NRC requirements. In fact, Petitioners fail to discuss, much less challenge with specificity, the pertinent sections of the LTA, including information provided by ND in its August 28, 2019 Response to Request for Supplemental Information. As ND explained therein:
ND has developed its own, higher level ND Nuclear Quality Assurance Plan (ND NQAP) for Bellefonte Nuclear Power Station, Units 1 and 2 (Bellefonte). The ND NQAP is based on the existing Tennessee Valley Authority (TVA) nuclear quality assurance plan (TVA NQAP) that currently applies to Bellefonte, and it will govern all contractors, including SNC-Lavalin Nuclear (USA) [SNC], performing work for ND relating to Bellefonte.
This ND NQAP was developed through administrative modification to Revision 20 of the TVA NQAP and was reconciled to the current version submitted on May 8, 2019, to the NRC (ML19129A258) as Revision 37. The changes made to the NRC approved TVA NQAP primarily involved removing references to 91 Petition at 9 n.4 (citing Declaration of Arnold Gundersen, May 6, 2009, Docket Nos. 50-438 and 50-438 at 3).
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the TVA operating fleet, modifying the organization to be consistent with the planned ND organization applicable to Bellefonte, eliminating discussions regarding dry fuel storage under 10 CFR Part 72 and other administrative changes. These changes were made against the evaluation criteria provided within 10 CFR § 50.54(a)(3) and were determined not to constitute a reduction in commitments to the previously submitted and accepted quality assurance program applicable to Bellefonte. The ND NQAP developed based upon the approved TV NQAP is provided as Attachment 2.92 Petitioners have provided no information to cast doubt on NDs statement in the LTA that, upon transfer of the CPs, it will ensure effective quality assurance and implement oversight activities commensurate with regulatory and Permit requirements.93 In conclusion, the Commission should reject Proposed Contention 2 as inadmissible under 10 C.F.R. § 2.309(f)(1)(iii)-(vi) because it raises an issue that is not within the scope of this proceeding or material to the NRCs required findings on the LTA; reasserts claims previously rejected by a Licensing Board and the Commission in a prior proceeding; lacks adequate support; and fails to raise a genuine material dispute with the LTA.
D. Proposed Contention 3 Is Inadmissible Because It Fails to Raise a Genuine Dispute with the LTA on Material Issue of Fact or Law Proposed Contention 3 faults ND for failing to secure possession of the Bellefonte site and to get the Bellefonte CPs transferred from TVA within the agreed closing period.94 Citing NDs August 28, 2019, Response to Request for Additional Information, Petitioners assert that NDs filing of a breach of contract suit against TVA indicates further delays before resolution of the dispute, and that TVA retains the right to end the contract.95 Proposed Contention 3 is inadmissible under 10 C.F.R. § 2.309(f)(1)(vi) because it fails to raise an issue that is fit for adjudication in this license transfer proceeding. Petitioners put the 92 August 28, 2019, Response to Request for Supplemental Information, encl. at 1-2. The referenced ND NQAP is publicly available under ADAMS Accession No. ML19240A383.
93 LTA, attach. 1 at 5.
94 Petition at 10.
95 Id. at 11.
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proverbial cart before the horse by contending that ND must secure actual ownership or possession of the Bellefonte site before the NRC can approve the LTA. No such requirement exists.
Petitioners cite 10 C.F.R. § 50.80(b)(2) in support of their claim. That regulation states:
The application shall include also a statement of the purposes for which the transfer of the license is requested [and] the nature of the transaction necessitating or making desirable the transfer of the license . . . . The Commission may require any person who submits an application for license pursuant to the provisions of this section to file a written consent from the existing licensee or a certified copy of an order or judgment of a court of competent jurisdiction attesting to the persons right (subject to the licensing requirements of the Act and these regulations) to possession of the facility or site involved.96 The plain language of Section 50.80(b)(2) makes clear that ownership or possession of a facility or site is not a sine qua non to the NRCs approval of a proposed CP transfer. The regulation states that the NRC may require the transferee to provide written consent from the current licensee/CP holder, or a certified copy of an order or judgment of a court of competent jurisdiction, confirming its right to possess the facility or site. NRC may well place a condition on its consent that the applicant obtain rights of ownership or possession. However, as distinguished from other showings an applicant must make under Section 50.80 prior to receipt of consent, the regulation does not require the proposed transferee secure possession of the facility or site as a condition precedent to LTA approval.
As Petitioners note, prior to accepting the LTA for detailed technical review, the NRC Staff requested certain supplemental information from ND, including information regarding NDs right to possess the Bellefonte site. ND responded, in pertinent part, as follows:
The Seller, TVA, failed to close on the transaction as required by the Purchase and Sale Agreement dated November 14, 2016. On November 30, 2018 (the scheduled closing date), ND initiated legal action in the United States District Court for the Northern District of Alabama (Case No. 5:18-CV-01983-LCB),
asserting a claim for breach of contract and requesting the Court to order TVA to close the sales transaction as called for in the Agreement. On May 15, 2019, the Court rejected TVAs motion to dismiss NDs suit, and the parties are 96 10 C.F.R. § 50.80(b)(2) (emphasis added).
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proceeding with discovery pursuant to the Courts scheduling order. The matter is ongoing, and the trial date is set for May 2020. ND expects ultimately to prevail on the merits.97 In light of this development, ND requested that the NRC accept the LTA and proceed with the other portions of its technical review pending resolution of the federal district court case.98 The NRC agreed to do so, and commenced its technical review of the LTA in November 2019.
Whether TVA breached its contract with ND and can be legally compelled to close the sales transaction as called for in the Purchase and Sale Agreement is not an issue for the Commission to decide or adjudicate in this proceedingit is a matter within the purview of the federal district court.99 Furthermore, Petitioners point to no statutory provision or regulation that precludes the Commission from continuing its detailed technical review of the LTA or from conditioning its consent to the license transfer on NDs filing a certified copy of a court decision attesting to NDs right to possess the Bellefonte Units or other evidence of NDs right to ownership that is acceptable to the NRC staff.100 Thus, Petitioners have not raised an issue that is appropriate for adjudication in this proceeding.
In conclusion, the Commission should reject Proposed Contention 3 as inadmissible under 10 C.F.R. § 2.309(f)(1)(vi) because it fails to raise a genuine dispute with the LTA on a material issue of law or fact that lends itself to adjudication in this proceeding.
97 August 28, 2019, Response to Request for Supplemental Information, encl. at 8. As the court noted, [t]he parties have entered into a stipulation for TVA to maintain quality assurance and other requirements in accordance with the NRC Permits, unless and until those permits are amended or terminate. On November 26, 2019, the Court issued a revised schedule requiring the parties to be ready for trial by July 2020.
98 See August 28, 2019, Response to Request for Supplemental Information, encl. at 8.
99 Cf. Ariz. Pub. Serv. Co. (Palo Verde Nuclear Generating Station, Units 1, 2 and 3), LBP-82-117A, 16 NRC 1964, 1991 (1982) (declining to rule on the validity of a multi-party wastewater effluent use agreement because the Board lacked jurisdiction, and the issue [was] pending in litigation before a federal district court).
100 The use of license conditions by the NRC is a well-established legal or regulatory practice. See, e.g., Private Fuel Storage, LLC (Indep. Spent Fuel Storage Installation), CLI-00-13, 52 NRC 23, 29-30 (2000); Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-98-13, 48 NRC 26, 36 (1998); La. Enrichment Servs. (Claiborne Enrichment Ctr.), CLI-97-15, 46 NRC 294 (1997).
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E. Proposed Contention 4 Is Inadmissible Because It Lacks Adequate Support and Fails to Raise a Genuine Dispute with the LTA on Material Issue of Fact or Law Citing 10 C.F.R. §50.80(b)(2), the same regulation discussed above, Proposed Contention 4 asserts that [t]o secure approval of permit transfer, the Commission may require the applicant to obtain in writing the consent of the current permit holder.101 Petitioners assert that ND has received a negative response from TVAs Regional Energy Resource Council (RERC).102 Specifically, they claim that on December 18, 2018, the RERCs Designated Federal Officer (Mr. Joe Hoagland) stated that TVA terminated the contract for sale of Bellefonte nuclear units based on failure on the part of the purchaser to meet contract terms.103 According to Petitioners, the RERC Officers statement in December 2018 effectively closed the door and deprived NRC of a sound basis for approving NDs request for an Order transferring the Bellefonte CPs.104 Proposed Contention 4 is inadmissible under 10 C.F.R. § 2.309(f)(1)(v) and (iv) because it lacks adequate support and fails to raise a genuine material dispute with the LTA, respectively.
The contention is factually and legally groundless. As explained above, whether the Purchase and Sale Agreement is terminated is a matter within the exclusive jurisdiction of the federal court overseeing the ongoing breach of contract dispute between ND and TVA.105 NDs assertion of TVAs breach and right to specific performance are not trivial claimsas confirmed by the courts rejection of TVAs motion to dismiss.106 A TVA functionarys (i.e., the RERC Designated Federal 101 Petition at 12.
102 Id.
103 Id.
104 Id. at 12-13.
105 Cf. CBS Corp. (Waltz Mill Facility), CLI-07-15, 65 NRC 221, 234 (2007) (This case, at its core, is a commercial contractual dispute between regulated parties. The Commission will not be drawn into such disputes . . . .).
106 Nuclear Dev., LLC v. TVA, No. 5:18-cv-1983-LCB, 2019 WL 2124539, at *7 (N.D. Ala. May 15, 2019) (In addition to the fact that, at this stage, the law is not as crystal clear as TVA asserts, the Court finds that it is not clear that specific performance is not available to ND should TVA be found in breach of the Agreement.).
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Officer) communication to an unrelated third party is irrelevant to the courts authority. Nor does it close the door on the NRCs review or approval of the LTA.
Proposed Contention 4 fails to raise a genuine dispute on a material issue of fact or law for the same reasons discussed in TVAs response to Proposed Contention 3 above. In short, TVA already has consented to the sale of the Bellefonte Units via entry into the Purchase and Sale Agreement. TVAs compliance with that agreement (i.e., whether TVA has breached the agreement by not closing on the transaction per the agreed-upon schedule) is the subject of a pending lawsuit in federal district court. Section 50.80(b)(2) provides that the NRC may require either written consent from the current licensee or a certified copy of a court order or judgment of as proof of a proposed transferees right to possess the facility or site involved. This is neither a statutory nor a regulatory requirement for a license transfer approval, and even if the NRC staff elects to require proof, it can accept either the existing licensees consent or a court order. And, as discussed above, the NRC has full authority to condition its approval of an LTA upon receipt of such proof, if it so chooses.
In its breach of contract suit against TVA, ND has sought, among other things, specific performance of the Purchase and Sales Agreement. In its May 15, 2019, opinion and order dismissing TVAs motion to dismiss the suit, the federal district court specifically found that ND has sufficiently stated a claim for breach of contract, and decline[d] to dismiss NDs request for specific performance at this stage in the proceedings.107 Thus, ND is diligently pursuing title to the Bellefonte Units and related assets pursuant to the terms of Purchase and Sales Agreement. As explained above, the pending legal dispute between ND and TVA is a matter for the federal district court to decidenot a matter for the Commission to adjudicate in this CP transfer proceeding.
107 Nuclear Dev., 2019 WL 2124539, at *6.
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Some analogous circumstances in a prior license transfer proceeding in the context of a hostile takeover confirm the NRCs authority to consider an LTA, even in the absence of the current license holders (i.e., proposed transferors) voluntary written consent to the transfer. On January 29, 2009, Exelon Corporation (Exelon), acting on behalf of itself and several other Exelon entities, filed an LTA seeking NRC consent to the indirect transfer of control of the licenses for South Texas Project Units 1 and 2 (STP), to the extent held by NRG South Texas LP (NRG South Texas), that would have resulted from a proposed merger.108 At the time, Exelon planned to acquire control of NRG South Texas corporate parent, NRG Energy, Inc.
(NRG), through a negotiated agreement or a tender offer. Exelon planned to acquire a majority of common shares in NRG, followed by a series of one or more corporate consolidations designed to provide Exelon with control of NRG. The proposed transaction, had it been completed, would have resulted in the indirect transfer of control of NRG South Texas 44% undivided ownership interest in STP.
On February 4, 2009, counsel for NRG submitted a letter to the NRC, challenging the sufficiency of Exelons LTA.109 NRG based its challenge primarily on its objection to Exelons offer to NRCs shareholders to exchange fractional shares of Exelon common stock for shares of NRG common stock. Citing 10 C.F.R. § 50.80(b)(2), NRG argued that Exelons LTA was insufficient, because NRG had not consented to the indirect transfer.
In a February 10, 2009, letter to the NRC, Exelon squarely addressed NRCs claims.110 Among other things, Exelon noted that: (1) NRG ignored the discretionary nature of 108 See Letter from Christopher M. Crane, Exelon Corporation, to NRC, Application for Approval of Indirect Transfer of Control of Licenses (Jan. 29, 2009) (2009 Exelon LTA).
109 See Letter from Daniel Stenger and Amy Roma, Counsel for NRG Energy, Inc., to NRC, South Texas Project, Units 1 and 2, Docket Nos. STN 50-498 and STN 50-599, Preliminary Response to License Transfer Application Submitted by Exelon Corporation (Feb. 4, 2009).
110 Letter from M. Stanford Blanton, Counsel for Exelon Corporation, to NRC, South Texas Project, Units 1 and 2 Facility Operating License Nos. NPF-76 and NPF-80 NRC Docket Nos. 50-498 and 50-499, License Transfer Application Submitted by Exelon Corporation (Feb. 10, 2009) (February 10, 2019 Exelon Response Letter).
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Section 50.80(b)(2), effectively contending that the word may should be read as shall; (2) Section 50.80(b)(2) allows the Commission to impose a condition for consent at any time during the review of an application or at the effective time of a transfer of a license; and (3) Section 50.80(c) does not list consent of the current licensee as a condition to the approval of a license transfer. Exelon further noted that the demonstrations in the LTA of financial qualifications, technical qualifications, decommissioning assurance, financial responsibility, and other criteria would not be affected by which of the several mechanisms described in the LTA that Exelon elected to use to integrate NRG into Exelon.111 In a subsequent response, NRG again argued that the LTA was both premature and insufficient.112 The NRC Staff ultimately agreed with Exelons position, which is evidenced by its publication of a Federal Register notice conveying its decision to proceed with its detailed technical review of the LTA and offering an opportunity to request a hearing on the LTA.113 Ultimately, Exelon decided not to consummate the proposed transaction and withdrew its LTA.
Nonetheless, NRCs decision to accept the application as sufficient, to proceed with review of the LTA, and to offer the opportunity for hearing indicates that it agreed, at least implicitly, with Exelons conclusion that the Commissions use of the word may in 10 C.F.R. § 50.80(b)(2) indicates that the Commission, in promulgating the regulation, recognized that there may be some instances where a demonstration of consent [from the current owner or license holder] is not necessary in order for the LTA to be approved.114 As reflected above, ND also agrees.
111 Id. at 2.
112 See Letter from Daniel Stenger and Amy Roma, Counsel for NRG Energy, Inc., to NRC, South Texas Project, Units 1 and 2, Docket Nos. STN 50-498 and STN 50-599, Additional Response to License Transfer Application Submitted by Exelon Corporation at 6 (Feb. 19, 2009).
113 See Exelon Corporation and NRG Energy, Inc.; South Texas Project, Units 1 and 2; Notice of Consideration of Approval of Application Regarding Proposed Merger of NRG Energy, Inc. and Exelon Corporation, and Indirect Transfers of NRG South Texas LPs Facility Operating Licenses, and Opportunity for a Hearing, 74 Fed. Reg. 32,967 (July 9, 2009).
114 February 10, 2019 Exelon Response Letter at 2.
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In conclusion, the Commission should reject Proposed Contention 4 as inadmissible under 10 C.F.R. § 2.309(f)(1)(v) and (vi), respectively, because it lacks adequate support and fails to raise a genuine, litigable dispute with the LTA on a material issue of law or fact.
VI. CONCLUSION As demonstrated above, Petitioners have not established standing to intervene in this proceeding, as required by 10 C.F.R. § 2.309(d). They also have not proffered a contention that satisfies the contention admissibility requirements in 10 C.F.R. § 2.309(f)(1). Thus, the Commission should reject the Petition in its entirety.
Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d)
Timothy P. Matthews, Esq.
John E. Matthews, Esq.
Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.
Washington, D.C. 20004 Phone: 202-739-5527 Phone: (202) 739-5524 Fax: (202) 739-3001 E-mail: timothy.matthews@morganlewis.com E-mail: john.matthews@morganlewis.com Signed (electronically) by Martin J. ONeill Martin J. ONeill, Esq.
Morgan, Lewis & Bockius LLP 1000 Louisiana Street, Suite 4000 Houston, TX 77002-5005 Phone: (713) 890-5710 Fax: (202) 890-5001 E-mail: martin.oneill@morganlewis.com Dated in Washington, DC this 24th day of December 2019 32
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
)
In the Matter of ) Docket Nos. 50-438-LT and 50-439-LT
)
NUCLEAR DEVELOPMENT, LLC ) NRC-2019-0228
)
(Bellefonte Nuclear Plant, Units 1 and 2) ) December 24, 2019 CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I certify that, on this date, a copy of the foregoing Applicants Answer Opposing Petition For Intervention And Request For Hearing By The Blue Ridge Environmental Defense League And Its Chapter Bellefonte Efficiency And Sustainability Team was served upon the Electronic Information Exchange (the NRCs E-Filing System), in the above-captioned docket.
Signed (electronically) by Martin J. ONeill Martin J. ONeill, Esq.
Morgan, Lewis & Bockius LLP 1000 Louisiana Street, Suite 4000 Houston, TX 77002-5005 Phone: (713) 890-5710 Fax: (202) 890-5001 E-mail: martin.oneill@morganlewis.com DB1/ 110516715