View source for NRC-2016-0118, the Bellefonte Efficiency & Sustainability Team/ Mothers Against Tennessee River Radiation (Best/Matrr) Response to the U.S. Nuclear Regulatory Commission Staff and Tennessee Valley Authority'S Answers in Opposition to Best/Matrr'S App

{{Adams
| number = ML16365A184
| issue date = 12/30/2016
| title = the Bellefonte Efficiency & Sustainability Team/ Mothers Against Tennessee River Radiation (Best/Matrr) Response to the U.S. Nuclear Regulatory Commission Staff and Tennessee Valley Authority'S Answers in Opposition to Best/Matrr'S Appeal o
| author name = Morgan G
| author affiliation = Bellefonte Efficiency &amp; Sustainability Team (BEST), Mothers Against Tennessee River Radiation (MATRR)
| addressee name = 
| addressee affiliation = NRC/ASLBP
| docket = 05000259, 05000260, 05000296
| license number = 
| contact person = SECY RAS
| case reference number = 50-259-LA, 50-260-LA, 50-296-LA, ASLBP 16-948-03-LA-BD01, LBP-16-11, NRC-2016-0118, RAS 51527
| document type = Legal-Correspondence/Miscellaneous
| page count = 5
}}

=Text=
{{#Wiki_filter:December 30, 2016 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of:                                         :
TENNESSEE VALLEY AUTHORITY                                :
(Browns Ferry Nuclear Plant Units 1, 2, and 3;:
Docket Nos. 50-259, 50-260, and 50-296;:
NRC-2016-0118)                                            :
THE BELLEFONTE EFFICIENCY & SUSTAINABILITY TEAM/ MOTHERS AGAINST TENNESSEE RIVER RADIATION (BEST/MATRR) RESPONSE TO THE U.S. NUCLEAR REGULATORY COMMISSION STAFF AND TENNESSEE VALLEY AUTHORITYS ANSWERS IN OPPOSITION TO BEST/MATRRS APPEAL OF LBP-16-11 This is the Bellefonte Efficiency and Sustainability Team/ Mothers Against Tennessee River Radiations (BEST/MATRR or Petitioner) response to the U.S. Nuclear Regulatory Commission (NRC) staff and Tennessee Valley Authoritys (TVA) answers in opposition to BEST/MATRRs appeal of LBP-16-11, which are both dated December 20, 2016.1 First, in their answers, neither the NRC staff nor the TVA addressed the fact that Aby Mohseni, Deputy Director of the NRCs Division of Policy and Rulemaking, disclosed the results of a computer simulation of FLECHT Run 9573 that under-predicted temperatures Westinghouse had reported for the section of the test bundle that incurred     thermal     runawaythe          severe-damage zone.2 In its   hearing   request, 1
NRC, NRC Staff's Brief in Opposition to BEST/MATRRS Appeal of LBP-16-11, December 20, 2016. And TVA, Tennessee Valley Authoritys Answer Opposing Bellefonte Efficiency and Sustainability Team/ Mothers Against Tennessee River Radiation Petition for Review of LBP 11, December 20, 2016.
2 Aby Mohseni, Deputy Director of the NRCs Division of Policy and Rulemaking, e-mail to Mark Leyse, regarding the NRCs TRACE computer simulation of the FLECHT Run 9573 test bundle, November 24, 2015, (ADAMS Accession No: ML15341A160).

BEST/MATRR (on pages 26-28) discussed the results of the computer simulation of FLECHT Run 9573 that included the severe-damage zone. As stated on page 28, the results of that computer simulation are powerful evidence that the Baker-Just correlation is inadequate for use in computer safety models that simulate loss-of-coolant accidents (LOCA). This also means that 10 C.F.R. 50 Appendix K, I.A.5 is non-conservative.
Nonetheless, the NRC is considering a license amendment request (LAR) for extended power uprates (EPU) for Browns Ferry Nuclear Plant (BFN) Units 1, 2, and 3, which is dependent on non-conservative Appendix K LOCA analyses. By overlooking the deficiencies of computer safety models, the NRC undermines its own philosophy of defense-in-depth, which requires the application of conservative models.3 Second, in their answers, neither the NRC staff nor the TVA addressed the fact that the NRC staff has engaged in bad faith behavior or improper behavior in its review of a 10 C.F.R. &sect; 2.802 petition for rulemaking, PRM-50-93, submitted on November 17, 2009.4 The NRC staffs answer states that BEST/MATRRs contentions are inadmissible because the issues are subject to a pending rulemaking petition. The NRC staffs answer also states that BEST/MATRRs Appeal recites many of the same issues and arguments that its expert, Mr. Leyse, had raised in the rulemaking petition that is currently pending before the Commission [PRM-50-93]. In fact, the Appeal explicitly acknowledges that PRM-50-93 addresses issues similar to those raised by BEST/MATRR in their hearing request.5 However, the NRC staffs answer does not acknowledge that in apparent violation of Administrative Procedure Act (APA), the NRC staff has been reviewing PRM 93, for more than seven years.
A regulation of the APA, 5 U.S.C. &sect; 555(b) states: With due regard for the convenience and necessity of the parties or their representatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it [emphasis added].
3 Charles Miller et al., NRC, Recommendations for Enhancing Reactor Safety in the 21st Century: The Near-Term Task Force Review of Insights from the Fukushima Daiichi Accident, SECY-11-0093, July 12, 2011, (ADAMS Accession No: ML111861807), p. 3.
4 Mark Leyse, PRM-50-93, November 17, 2009, (ADAMS Accession No. ML093290250).
5 NRC, NRC Staff's Brief in Opposition to BEST/MATRRS Appeal of LBP-16-11, December 20, 2016, p. 10.
2

And another regulation of the APA, 5 U.S.C. &sect; 706 states: To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action. The reviewing court shall (1) compel agency action unlawfully withheld or unreasonably delayed [emphasis added].
A delay of more than six years was found to be nothing less than egregious by the D.C. Circuit; this case concerned a petition for the Federal Electricity Regulatory Commission to consult with environmental agencies under the Endangered Species Act, but the court was still interpreting the relevant standard for prompt consideration of all petitions under 5 U.S.C. &sect; 555(b).6 (In re Am. Rivers & Idaho Rivers United, 372 F.3d 413, 419 (D.C. Cir. 2004). See also In re ICWU, 958 F.2d 1144 (D.C. Cir. 1992) (finding that a 6 year delay likely would have been unreasonable but for the fact that the court accepted the agencys proposed 5-month timeline to resolve the petition).7)
BEST/MATRRS Appeal of LBP-16-11 describes other ways that the NRC staff has engaged in bad faith behavior or improper behavior in its review of PRM-50-93.
Members of BEST/MATRR and others must not be made vulnerable to irreparable injury by the TVAs LAR for EPUs for BFN Units 1, 2, and 3 because the NRC staff has engaged in bad faith behavior or improper behavior in its review of PRM-50-93. The EPU has been qualified by the type of LOCA simulation that PRM-50-93 alleges is non-conservative.
Third, the Atomic Safety and Licensing Board (ASLB) addressed BEST/MATRRs request for a stay of the LAR for EPUs for BFN Units 1, 2, and 3. The stay was requested on the grounds that the NRC has engaged in bad faith or improper behavior in its review of PRM-50-93. PRM-50-93 addresses issues similar to those raised by BEST/MATRR in its hearing request.
Regarding BEST/MATRRs request to stay the LAR for EPUs for BFN Units 1, 2, and 3, the ASLB stated that insofar as Petitioner claims unreasonable delay by the Commission, this Board cannot provide a remedy. The Commissionnot this 6
Jason A. Schwartz and Richard L. Revesz, NYU School of Law, Petitions for Rulemaking, September 25, 2014, p. 16.
7 Id., p. 16, Note 78.
3

Boardhas authority to stay a license amendment proceeding in light of pending rulemaking. [See 10 C.F.R. &sect; 2.802(e); Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station), CLI-07-03, 65 NRC 13, 22 n.37 (2007).] Nor does this Board have authority to review a claim of unreasonable delay regarding a petition for rulemaking that is before the Commission. [See APA, 5 U.S.C. &sect; 706 (the reviewing court shall compel agency action unlawfully withheld or unreasonably delayed).] Any such challenge should be raised directly with the Commission, or possibly before the courts [See In re Aiken Cnty., 725 F.3d 255, 267 (D.C. Cir. 2013); Telecomms. Research
& Action Ctr. v. FCC, 750 F.2d 70, 75-77 (D.C. Cir. 1984).]8 [emphasis added].
The ASLB did not have the authority to grant BEST/MATRRs request for a stay of the LAR for EPUs for BFN Units 1, 2, and 3; however, the NRC Commissioners do have that authority. The NRC Commissioners also have the authority to address the fact that NRC staff has had an unreasonable delay reviewing PRM-50-93. Additionally, the NRC Commissioners have the authority to address other ways that the NRC staff has engaged in bad faith behavior or improper behavior in its review of PRM-50-93, which are described in BEST/MATRRS Appeal of LBP-16-11.
In order to prevent irreparable injury to members of BEST/MATRR and others, TVAs LAR for EPUs for BFN Units 1, 2, and 3 should be denied or, at least, stayed.
Respectfully submitted,
                                              /s/
Garry Morgan BEST/MATRR PO Box 241 Scottsboro, AL 35768 Phone: 256-218-0124 E-mail: best@matrr.org December 30, 2016 8
Atomic Safety and Licensing Board, Order: Ruling on Petition to Intervene and Request for a Hearing In the Matter of TVAs LAR for EPUs for BFN Units 1, 2, and 3, LBP-16-11, November 2, 2016, pp 7-8.
4

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION In the Matter of:                                         :
TENNESSEE VALLEY AUTHORITY                                :
(Browns Ferry Nuclear Plant Units 1, 2, and 3;:
Docket Nos. 50-259, 50-260, and 50-296;:
NRC-2016-0118)                                            :
CERTIFICATE OF SERVICE I hereby certify that on December 30, 2016, I posted the foregoing APPEAL OF THE BELLEFONTE EFFICIENCY & SUSTAINABILITY TEAM/ MOTHERS AGAINST TENNESSEE RIVER RADIATION (BEST/MATRR) REGARDING THE ATOMIC SAFETY AND LICENSING BOARDS DENIAL OF BEST/MATRRS HEARING REQUEST AND PETITION TO INTERVENE REGARDING TENNESSEE VALLEY AUTHORITYS LICENSE AMENDMENT REQUEST FOR EXTENDED POWER UPRATES FOR BROWNS FERRY NUCLEAR PLANT UNITS 1, 2, AND 3 This has been filed on the NRCs Electronic Information Exchange system. It is my understanding that as a result, the Commission, Atomic Safety and Licensing Board, and parties were served.
Respectfully submitted,
                                                      /s/
Garry Morgan BEST/MATRR PO Box 241 Scottsboro, AL 35768 Phone: 256-218-0124 E-mail: best@matrr.org December 30, 2016 5}}