ML100140677

Tennessee Valley Authority'S Motion to Strike Petitioners' Supplemental Basis for Proposed Contention 6

ML100140677
Person / Time
Site:	Bellefonte
Issue date:	01/14/2010
From:	Chandler L, O'Neill M, Sutton K, Vigluicci E Morgan, Morgan, Lewis & Bockius, LLP, Tennessee Valley Authority
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-438-CP, 50-439-CP, Construction Permit 1, RAS 16967
Download: ML100140677 (9)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of )

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

) January 14, 2010 (Bellefonte Nuclear Power Plant, Units 1 and 2) )

)

TENNESSEE VALLEY AUTHORITYS MOTION TO STRIKE PETITIONERS SUPPLEMENTAL BASIS FOR PROPOSED CONTENTION 6 I. INTRODUCTION On January 11, 2010, joint petitioners, the Blue Ridge Environmental Defense League (BREDL), Bellefonte Efficiency and Sustainability Team, and Southern Alliance for Clean Energy (Petitioners), filed a new and supplemental basis for their Proposed Contention 6.1 For the reasons discussed below and, in accordance with 10 C.F.R. § 2.323(a), Tennessee Valley Authority (TVA) requests that the Atomic Safety and Licensing Board (Board) strike Petitioners Supplemental Basis. Petitioners filing is deficient on its face because it (1) does not seek leave of the Board to file the Supplemental Basis, as required by 10 C.F.R. § 2.309(f)(2);

and (2) contains only superficial assertions of compliance with the late-filing criteria contained in 10 C.F.R. § 2.309(f)(2)(i)-(iii).

1 Joint Petitioners Supplemental Basis for Previously Submitted Contention 6TVA Has Not and Cannot Meet the NRCs Quality Assurance and Quality Control Requirements (Jan. 11, 2010) (Petitioners Supplemental Basis).

II. BACKGROUND This subject of this proceeding is TVAs August 26, 2008 request to reinstate the construction permits (CPs) for the Bellefonte Nuclear Plant (BLN) Units 1 and 2.2 On March 13, 2009, the NRC published in the Federal Register an Order reinstating the CPs for BLN Units 1 and 2 in a terminated plant status.3 The Reinstatement Order authorized the submittal of requests for hearing on the limited issue of whether good cause exists for the reinstatement of the CPs.4 On May 8, 2009, the Petitioners timely filed a joint request for hearing and petition to intervene that included, among other contentions, Proposed Contention 6.5 That contention, as originally pled, alleges that the NRCs March 2009 reinstatement of the CPs for BLN Units 1 and 2 was improper because TVA has not and cannot meet the NRCs Quality Assurance and Quality Control requirements.6 By Order dated May 20, 2009, the Commission directed the Petitioners, TVA, and NRC Staff to submit briefs addressing the question whether the NRC possesses the statutory authority to reinstate the withdrawn construction permits.7 Citing Proposed Contentions 1 and 2 as the basis for this request, the Commission explicitly directed that [t]he remainder of Petitioners proposed contentions will be held in abeyance, pending the Commissions ruling on the 2

Letter from Ashok S. Bhatnagar, TVA, to Eric J. Leeds, NRC (Aug. 26, 2008), available at ADAMS Accession No. ML082410087.

3 Tenn. Valley Auth. (Bellefonte Nuclear Plant Units 1 and 2); Order, 74 Fed. Reg. 10,969 (Mar. 13, 2009)

(Reinstatement Order).

4 Id.

5 Petition for Intervention and Request for Hearing by the Blue Ridge Environmental Defense League, Its Chapter Bellefonte Efficiency and Sustainability Team, and the Southern Alliance for Clean Energy at 20-25 (May 8, 2009).

6 Id. at 1, 25-28.

7 Tenn. Valley Auth. (Bellefonte Nuclear Power Plant, Units 1 and 2), Nos. 50-438 & 50-439, Commission Order at 1 (unpublished) (May 20, 2009).

threshold authority issue.8 Petitioners, TVA, and the NRC Staff filed their initial and responsive briefs on June 3 and June 10, 2009, respectively.

Thereafter, on July 15, Petitioners filed a new and supplemental basis for Proposed Contention 5, which TVA moved to strike on July 17, 2009.9 Petitioners filed a reply opposing TVAs still-pending motion to strike on July 27, 2009.10 On January 7, 2010, after considering the participants briefs on the threshold legal issue noted above, the Commission ruled that it has the legal authority to reinstate the BLN CPs.11 Accordingly, the Commission denied Contentions 1 and 2 and 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.12 The Commission again reiterated that, beyond standing, the Board is charged with deciding, whether there is good cause for reinstatement of the CPs.13 On January 11, 2010, Petitioners filed the instant Supplemental Basis regarding Proposed Contention 6. Petitioners therein ask the presiding officer to make a part of the record in this proceeding a December 1, 2009 TVA letter notifying the NRC of a containment vertical tendon coupling failure that TVA discovered on August 24, 2009.14 Petitioners allege that [t]he failure 8

Id. at 2 (emphasis added).

9 See Joint Intervenors Supplemental Basis for Previously Submitted Contention 5 - Lack of Good Cause (July 15, 2009); Tennessee Valley Authoritys Motion to Strike Petitioners Supplemental Basis for Proposed Contention 5 (July 17, 2009).

10 See Petitioners Opposition to Tennessee Valley Authoritys Motion to Strike Petitioners Supplemental Basis for Proposed Contention 5 (July 27, 2009).

11 See Tenn. Valley Auth. (Bellefonte Nuclear Power Plant, Units 1 and 2), CLI-10-06, 70 NRC ___, slip op. (Jan.

7, 2010).

12 Id. at 19.

13 Id. at 19.

14 Petitioners Supplemental Basis at 3, 6.

of the nuclear reactor containment tendon mirrors the failure of TVA to adhere to a construction permit conditions which require the permit holder to implement quality assurance criteria.15 III. ARGUMENT A. Petitioners Filing is Defective Because Petitioners Did Not Seek Leave from the Board to File the Supplemental Basis, as Required by 10 C.F.R. § 2.309(f)(2)

Petitioners Supplemental Basis, on its face, fails to comply, with the NRCs Rules of Practice. Pursuant to 10 C.F.R. § 2.309(f)(2), once the deadline for filing an initial intervention petition has passed, a petitioner may amend or supplement contentions only with leave of the presiding officer upon a showing that (i) The information upon which the amended or new contention is based was not previously available; (ii) The information upon which the amended or new contention is based is materially different than information previously available; and (iii) the amended or new contention has been submitted in a timely fashion based on the availability of the subsequent information.16 As the Commission has held, [n]ew bases for a contention cannot be introduced in a reply brief, or any other time after the date the original contentions are due, unless the petitioner meets the late-filing criteria set forth in 10 C.F.R. §§ 2.309(c), (f)(2).17 Petitioners, however, failed to request leave of the presiding officer to submit their new and supplemental basis. Moreover, as with Petitioners Supplemental Basis for Proposed Contention 5, they have yet again failed to consult with counsel of record for TVA as called for by 10 C.F.R. § 2.323(b). Accordingly, Petitioners January 11, 2010 filing, including the 15 Id. at 4.

16 10 C.F.R. § 2.309(f)(2) (emphasis added). See also Fla. Power & Light Co. (Turkey Point Nuclear Plant, Units 3 and 4 (License Amendment Request), LBP-08-18, 68 NRC __, slip op. at 10 (Oct. 14, 2008)

(expressly noting that the Petitioners failed to request leave of the presiding officer to file its amended contentions); Progress Energy Fla., Inc. (Combined License Application for Levy County Nuclear Power Plant, Units 1 and 2), LBP-09-10, 70 NRC __, slip op. at 95 (July 8, 2009) (This regulation [§ 2.309(f)(2)],

which was added in 2004, provides that new contentions may be filed after the initial docketing, with leave of the presiding officer.) (emphasis added).

17 Nuclear Mgmt. Co., LLC (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727, 732 (2006). (emphasis added.)

supporting documents appended thereto, is facially deficientindeed, unauthorizedand should be stricken in its entirety.

B. Petitioners Supplemental Basis Improperly Seeks to Augment the Factual Bases Originally Proffered in Support of Contention Proposed Contention 6 Equally fatal to Petitioners latest filing , nominally filed pursuant to Section 2.309(f)(2),

is the fact that it fails to demonstrate compliance with the contention timeliness and admissibility criteria of 10 C.F.R. § 2.309. Rather, in a superficial effort to show compliance with 10 C.F.R.

§ 2.309(f)(2), for example, Petitioners merely aver that the information upon which the contention is based is materially different than information that was previously available.18 They provide no supporting explanation for this conclusory statement. To the contrary, the factual predicate for the contention clearly remains the same; i.e., that TVA allegedly cannot comply with NRC quality assurance requirements due to a lapse in preservation and maintenance activities associated with temporary CP withdrawal.19 In this regard, Petitioners also fail to explain how the cited tendon coupling failure event, or TVAs Nuclear Quality Assurance Plan, is material to TVAs asserted reasons that show good cause justification for the reinstatement of the CPs.20 More fundamentally, notwithstanding the status of this proceeding, the NRCs hearing rules do not provide petitioners with a rolling and limitless opportunity to augment the factual bases for already-proffered contentions:

Allowing contentions to be added, amended, or supplemented at any time would defeat the purpose of the specific contention requirements

. . . by permitting the intervenor to initially file vague, unsupported, and generalized allegations and simply recast, support, or cure them 18 Petitioners Supplemental Basis at 5.

19 Or, in Petitioners sardonic and more colloquial terms, rust never sleeps. Petition at 4 (citing Rust Never Sleeps by Neil Young and Crazy Horse).

20 Reinstatement Order, 74 Fed. Reg. at 10,970.

later. . . . Under our contention rule, Intervenors are not being asked to prove their case, or to provide an exhaustive list of possible bases, but simply to provide sufficient alleged factual or legal bases to support the contention, and to do so at the outset.21 Yet, despite longstanding precedent on this point, Petitioners have again overlooked the posture of this proceeding and persist in their attempts to bootstrap the initial petition with impermissible submittals.

In view of the foregoing principles, and the Boards undisputed authority to take appropriate action to control the prehearing and hearing process,22 TVA requests that the Board strike Petitioners Supplemental Basis as procedurally deficient on its face. Petitioners perfunctory claim of compliance with 10 C.F.R. § 2.309(f)(2) does not sanction its now repeated attempts to bolster the factual bases for previously-proposed contentions.

IV. CONCLUSION For the above reasons, Petitioners Supplemental Basis concerning Proposed Contention 6 should be stricken in its entirety.

21 La. Energy Servs., L.P. (National Enrichment Facility), CLI-04-35, 60 NRC 619, 622-23 (2004) (internal quotation marks and citations omitted; emphasis added).

22 10 C.F.R. § 2.319 (also stating that the presiding officer has the authority to [r]estrict irrelevant, immaterial, unreliable, duplicative or cumulative evidence and/or arguments).

CERTIFICATION In accordance with 10 C.F.R. §2.323(b), on January 14, 2010, counsel of record for TVA discussed this motion with Petitioners designated representative, Mr. Louis Zeller of BREDL, in an attempt to resolve this issue. The parties were unable to reach agreement on an acceptable means of resolving the matters raised in this Motion. Counsel for TVA also consulted with counsel for the NRC Staff on January 14, 2010.

Respectfully submitted,

/signed (electronically) by/

Edward J. Vigluicci, Esq. Kathryn M. Sutton, Esq.

Office of the General Counsel Lawrence J. Chandler, Esq.

Tennessee Valley Authority Martin J. ONeill, Esq.

400 W. Summit Hill Drive, WT 6A-K Morgan, Lewis & Bockius LLP Knoxville, TN 37902 1111 Pennsylvania Avenue, N.W.

Phone: 865-632-7317 Washington, D.C. 20004 Fax: 865-632-2422 Phone: 202-739-5738 E-mail: ejvigluicci@tva.gov E-mail: ksutton@morganlewis.com COUNSEL FOR TVA Dated in Washington, D.C.

this 14th day of January 2010

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of )

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

)

(Bellefonte Nuclear Power Plant, Units 1 and 2) ) January 14, 2010

)

CERTIFICATE OF SERVICE I hereby certify that, on January 14, 2010, a copy of Tennessee Valley Authoritys Motion to Strike Petitioners Supplemental Basis for Proposed Contention 6, dated January 14, 2010, was filed electronically with the Electronic Information Exchange.

Office of the Secretary Andrea Z. Jones, Esq.

Attn: Rulemakings and Adjudications Staff David E. Roth, Esq.

U.S. Nuclear Regulatory Commission Jeremy M. Suttenberg, Esq.

Mail Stop: O-16G4 Office of the General Counsel Washington, DC 20555-0001 U.S. Nuclear Regulatory Commission E-mail: hearingdocket@nrc.gov Mail Stop O-15D21 Washington, DC 20555-0001 E-mail: andrea.jones@nrc.gov E-mail: david.roth@nrc.gov E-mail: jeremy.suttenberg@nrc.gov Office of Commission Appellate Louis A. Zeller Adjudication Representative of Blue Ridge Environmental U.S. Nuclear Regulatory Commission Defense League (BREDL) & Bellefonte Mail Stop: O-16G4 Efficiency and Sustainability Team (BEST)

Washington, DC 20555-0001 P.O. Box 88 E-mail: ocaamail@nrc.gov Glendale Springs, NC 28629 E-mail: BREDL@skybest.com

Signed (electronically) by Kathryn M. Sutton Kathryn M. Sutton, Esq.

Lawrence J. Chandler, Esq.

Martin J. ONeill, Esq.

Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, D.C. 20004 Phone: 202-739-5738 E-mail: ksutton@morganlewis.com Edward J. Vigluicci, Esq.

Office of the General Counsel Tennessee Valley Authority 400 W. Summit Hill Drive, WT 6A-K Knoxville, TN 37902 Phone: 865-632-7317 Fax: 865-632-2422 E-mail: ejvigluicci@tva.gov COUNSEL FOR TVA DB1/64216207.1