ML15124A936

NRC Staff Answer to Blue Ridge Environmental Defense Leagues Hearing Request and Petition to Intervene and Motion to Reopen the Record in the License Renewal Proceeding for Sequoyah Nuclear Power Plant, Units 1 and 2

ML15124A936
Person / Time
Site:	Sequoyah
Issue date:	05/04/2015
From:	Mizuno B N NRC/OGC
To:	NRC/OCM
SECY RAS
References
50-327-LR, 50-328-LR, ASLBP 13-927-01-LR-BD01, RAS 27675
Download: ML15124A936 (29)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

In the Matter of )

)

TENNESSEE VALLEY AUTHORITY ) Docket No. 50-327-LR & 50-328-LR ) (Sequoyah Nuclear Power Plant, )

Units 1 and 2) )

NRC STAFF ANSWER TO BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE'S HEARING REQUEST AND PETITION TO INTERVENE AND MOTION TO REOPEN THE RECORD IN THE LICENSE RENEWAL PROCEEDING FOR SEQUOYAH NUCLEAR POWER PLANT, UNITS 1 AND 2

Beth N. Mizuno Counsel for NRC Staff May 4, 2015

- i - TABLE OF CONTENTS PAGE INTRODUCTION ..................................................................................................................

........ 1 BACKGROUND ....................................................................................................................

........ 3 DISCUSSION ....................................................................................................................

............ 7 I. Legal Standards ............................................................................................................

.... 7 A. Legal Standards for Admission of Contentions ............................................................ 7 B. Legal Standards for Reopening of the Record .......................................................... 10 II. The Petition Should Be Denied for Failing to Timely Proffer an Admissible Contention . 11 A. The Proposed Contention Challenges a Rulemaking that Is Beyond the Scope of this Proceeding ....................................................................................................................

.. 12 B. The Proposed Contention Fails to Raise a Genuine Material Issue .......................... 14

C. The Proposed Contention Is Untimely ....................................................................... 16 III. The Motion to Reopen Should Be Denied for Failing to Meet the Reopening Standards17 A. BREDL's Motion Is Untimely and Does Not Raise an Exceptionally Grave Issue ..... 17

B. BREDL's Motion Does Not Address a Significant Environmental Issue .................... 18

C. BRED's Motion Does Not Show that a Materially Different Result Would Be Likely 19

CONCLUSION ....................................................................................................................

........ 21

- ii - TABLE OF AUTHORITIES Page ADMINISTRATIVE DECISIONS Commission:

Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-07, 69 NRC 235 (2009) ................................................................................................

. 11 Calvert Cliffs 3 Nuclear Project, LLC & UniStar Nuclear Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-12-16, 76 NRC 63 (2012) ............................... 4

Calvert Cliffs 3 Nuclear Project, LLC, & UniStar Nuclear Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-14-08, 80 NRC 71 (2014) ..................... passim Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349 (2001), petition for reconsid'n denied, CLI-02-01, 55 NRC 1 (2002) ... 8 Dominion Nuclear Connecticut, Inc.

(Millstone Nuclear Power Station, Unit 3), CLI-09-05, 69 NRC 115 (2009) ................................................................................................

. 10 DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 3), CLI-15-10, 81 NRC __ (Apr. 23, 2015) (slip op.) .................................................................. 7, 16 DTE Electric Co. (Fermi Nuclear Power Plant, Unit 3), CLI-15-12, 81 NRC __ (Apr. 23, 2015) (slip op.) ..............................................................

passim DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 3), CLI-15-04, 81 NRC __ (Feb. 26, 2015) (slip op.) ........................................................................ 6 DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 3), CLI-14-07, 80 NRC 1 (2014) ..................................................................................................

..... 5 Entergy Nuclear Vermont Yankee, LLC & Entergy Nuclear Operations, Inc.

(Vermont Yankee Nuclear Power Station), CLI-07-03, 65 NRC 13 (2007) ............................... 13 Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc.

(Pilgrim Nuclear Power Station), CLI-12-10, 75 NRC 479 (2012) ............................................. 20 Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc.

(Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC 704 (2012) ............................................. 15 Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc.

(Pilgrim Nuclear Power Station), CLI-12-21, 76 NRC 491 (2012) ............................................. 18 Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), CLI-12-19, 76 NRC 377 (2012),

remanding

, LBP-13-01, 77 NRC 57 (2013),

- iii - aff'g on other grounds, CLI-13-7, 78 NRC 199 (2013) ........................................................ 13, 14 Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3 (2001) ..................................................................................................

... 13 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), CLI-10-27, 72 NRC 481 (2010) ................................................................................................

. 10 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-05-12, 61 NRC 345 (2005) ................................................................................................

. 11 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-06-03, 63 NRC 19 (2006) ............................................................................................. 18, 19 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318 (1999) ................................................................................................

... 8 Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4),

CLI-11-08, 74 NRC 214 (2011) ........................................................................................... 10, 18 Tennessee Valley Authority (Sequoyah Nuclear Plant, Units 1 and 2), CLI-14-03, 49 NRC 31 (2014) .................................................................................................

.... 4 Union Elec. Co.

(Callaway Nuclear Power Plant, Unit 1), CLI-15-11, 81 NRC __ (Apr. 23, 2015) (slip op.) ..............................................................

passim Atomic Safety and Licensing Appeal Board:

Philadelphia Elec. Co. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13 (1974) ................................................................................................. 8

, 13 Atomic Safety and Licensing Board:

Arizona Public Service Co. (Palo Verde Nuclear Station, Units No. 1, 2, and 3), LBP-91-19, 33 NRC 397 (1991), appeal granted in part, CLI-91-12, 34 NRC 149 (1991).... 8, 13 Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station),

LBP-06-23, 64 NRC 257 (2006) ................................................................................... 9

Entergy Nuclear Vermont Yankee, LLC & Entergy Nuclear Operations, Inc.

(Vermont Yankee Nuclear Power Station), LBP-10-19, 72 NRC 529 (2010) ............................ 20 Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), LBP-12-08, 75 NRC 539 (2012), rev'd in part, CLI-12-19, 76 NRC 377 (2012) .................... 9, 15

Nextera Energy Seabrook, LLC (Seabrook Station, Unit 1), LBP-11-28, 74 NRC 604 (2011) ................................................................................................

.. 9

- iv - Tennessee Valley Authority (Sequoyah Nuclear Plant, Units 1 and 2), LBP-15-07, 81 NRC ___ (slip op.) (February 26, 2015) ............................................................. 6 Tennessee Valley Authority (Sequoyah Nuclear Plant, Units 1 and 2), LBP-13-08, 78 NRC 1 (2013) ..................................................................................................

.... 4 REGULATIONS 10 C.F.R. § 2.309(a) ..........................................................................................................

........... 7 10 C.F.R. § 2.309(b) ..........................................................................................................

........... 7 10 C.F.R. § 2.309(c) ................................................................................................... 9, 10, 11, 20 10 C.F.R. § 2.309(c)(1) .......................................................................................................

........ 16 10 C.F.R. § 2.309(f)(1) ........................................................................................................ 7, 8, 20 10 C.F.R. § 2.309(f)(1)(iii) ....................................................................................................... 8, 12 10 C.F.R. § 2.309(f)(1)(vi) ................................................................................................. 9

, 15, 16 10 C.F.R. § 2.309(i) ..........................................................................................................

............ 1 10 C.F.R. § 2.323(c) ..........................................................................................................

........... 1 10 C.F.R. § 2.326(a) ........................................................................................................... passim 10 C.F.R. § 2.326(b) ..........................................................................................................

......... 11 10 C.F.R. § 2.335

........................................................................................................................ 14 10 C.F.R. § 2.335(a) ..........................................................................................................

......... 13 10 C.F.R. § 2.335(b) ............................................................................................................... 9, 14 10 C.F.R. § 2.335(c) ..........................................................................................................

........... 9 10 C.F.R. § 2.335(d) ..........................................................................................................

........... 9 10 C.F.R. § 2.335(e) ..........................................................................................................

........... 9 10 C.F.R. § 51.23(b) ..........................................................................................................

......... 15 10 C.F.R. § 51.92(a) ..........................................................................................................

......... 19

MISCELLANEOUS

Continued Storage of Spent Nuclear Fuel, 79 Fed. Reg. 56,238 (Sept. 19, 2014) ................. 6, 16

Criteria for Reopening Records in Formal Licensing Proceedings, 51 Fed. Reg. 19,535 (May 30, 1986) ........................................................................................ 1 8

NUREG - 1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants Regarding Sequoyah Nuclear Plant, Units 1 and 2 (NUREG - 1437, Supplement 53, Final Report (March 2015) ............................................................................................................ 7

Memorandum and Order (Dismissing Environmental Waste Confidence Contention) (Sept. 30, 2014) (unpublished order) (ADAMS Accession No. ML14273A376) ............................................ 3

- v - SECY-14-0072, Final Rule: Continued Storage of Spent Nuclear Fuel (RIN 3150-AJ20)

(July 21, 2014) ...............................................................................................................

............. 5 SRM-SECY-14-0072, Final Rule: Continued Storage of Spent Nuclear Fuel (RIN 3150-AJ20)

(Aug. 26, 2014) ..............................................................................................................

............ 5

Tennessee Valley Authority; Establishment of Atomic Safety and Licensing Board, 78 Fed. Reg. 28,897 (May 16, 2013) .........................................................................................................

......... 4 Tennessee Valley Authority; Notice of Acceptance for Docketing of Application and Notice of Opportunity for Hearing Regarding Renewal of Sequoyah Nuclear Plant, Units 1 and 2 Facility Operating License Nos. DPR-77, DPR-79 for an Additional 20-Year Period, 78 Fed. Reg.

14,362 (Mar. 5, 2013) ............................................................................................................. 3, 16 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

In the Matter of )

)

TENNESSEE VALLEY AUTHORITY ) Docket No. 50-327-LR & 50-328-LR ) (Sequoyah Nuclear Power Plant, )

Units 1 and 2) )

NRC STAFF ANSWER TO BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE'S HEARING REQUEST AND PETITION TO INTERVENE AND MOTION TO REOPEN THE RECORD IN THE LICENSE RENEWAL PROCEEDING FOR SEQUOYAH NUCLEAR POWER PLANT, UNITS 1 AND 2 INTRODUCTION In accordance with 10 C.F.R. §§ 2.309(i) and 2.323(c), the U.S. Nuclear Regulatory Commission (NRC) staff (Staff) respectfully submits its combined answer to the Petition to Intervene 1 and Motion to Reopen the Record 2 filed by the Blue Ridge Environmental Defense League (BREDL) on April 22, 2015 in the Sequoyah Nuclear Power Plant (Sequoyah) Units 1 and 2, license renewal (LR) proceeding. BREDL asserts that the Sequoyah Final Environmental Impact Statement (FEIS) is inadequate because its evaluation of the environmental impacts of spent fuel storage and disposal relies on the NRC's Continued Storage Rule and Continued Storage generic environmental impact statement (GEIS).

3 BREDL's Petition and Motion to Reopen are substantively similar to petitions and motions to reopen filed previously in the Callaway Nuclear Power Plant, Unit 1 (Callaway) 1 Blue Ridge Environmental Defense League's Hearing Request and Motion to Intervene in License Renewal Proceeding for Sequoyah, Units 1 and 2 (dated Apr. 22, 2015) (ADAMS Accession No. ML15112B196) (Petition).

2 Blue Ridge Environmental Defense League's Motion to Reopen the Record of License Renewal Proceeding for Sequoyah Nuclear Power Plant, Units 1 and 2 (dated Apr. 22, 2015) (ADAMS Accession No. ML15112B195) (Motion to Reopen).

3 Id. at 1. license renewal proceeding and the Fermi Nuclear Power Plant, Unit 3 (Fermi 3) combined license proceeding, which also argued that the NRC's environmental documents in those proceedings were inadequate due to their reliance on the NRC's Continued Storage Rule and

Continued Storage GEIS.

4 In its rulings on those filings, CLI-15-11 and CLI-15-12, the Commission denied the petitions to intervene because they impermissibly challenged an agency regulation without a waiver of that regulation and were therefore outside the scope of their individual licensing proceedings and because, by challenging a regulation instead of the associated application, they did not provide sufficient information to demonstrate a genuine dispute with the applicant on a material issue.

5 The Commission also held that, because the petitions to intervene had not included an admissible contention, the accompanying motions to reopen necessarily did not satisfy the Commission's reopening standards because they did not raise a significant environmental issue and did not demonstrate that a materially different result would be likely if the contentions had been considered initially.

6 4 Compare Petition and Motion to Reopen with Missouri [Coalition] for the Environment's Hearing Request and Petition to Intervene in License Renewal Proceeding for Callaway Nuclear Power Plant (Dec. 8, 2014) (ADAMS Accession No. ML14342B010) and Missouri [Coalition] for the Environment's Motion to Reopen the Record of License Renewal Proceeding for Callaway Unit 1 Nuclear Power Plant (Dec. 8, 2014) (ADAMS Accession No. ML14342B011) (the only substantive difference between these pleadings is that the Missouri Coalition for the Environment's pleadings include timeliness arguments based on the alleged availability of the final NUREG-1437, Supplement 51, "Generic Environmental Impact Statement for License Renewal of Nuclear Plants Regarding Callaway Plant, Unit 1" whereas BREDL's pleadings state, without legal support, that they are timely because they depend on a future ruling on a case pending before the U.S. Court of Appeals for the District of Columbia Circuit); compare Petition and Motion to Reopen with Beyond Nuclear's Hearing Request and Petition to Intervene in Combined License Proceeding for Fermi Unit 3 Nuclear Power Plant (Feb. 12, 2015) (ADAMS Accession No. ML15043A567) and Beyond Nuclear's Motion to Reopen the Record of Combined License Proceeding for Fermi Unit 3 Nuclear Power Plant (Feb. 12, 2015) (ADAMS Accession No. ML15043A566).

5 Union Elec. Co. (Callaway Nuclear Power Plant, Unit 1), CLI-15-11, 81 NRC __, __ (Apr. 23, 2015) (slip op. at 4); DTE Electric Co. (Fermi Nuclear Power Plant, Unit 3), CLI-15-12, 81 NRC __, __ (Apr. 23, 2015) (slip op. at 4).

6 Callaway, CLI-15-11, 81 NRC at __ (slip op. at 4 n.17); Fermi, CLI-15-12, 81 NRC at __ (slip op. at 4 n.17). Just as it did in Callaway and Fermi 3, the Commission should (1) deny BREDL's Petition because it challenges a Commission rule without requesting a waiver and because it fails to raise a genuine issue of fact or law material to the Sequoyah license renewal proceeding and (2) deny BREDL's Motion to Reopen because it does not address a significant environmental issue and because it does not demonstr ate that a materially different result would be likely if the proposed new contention had been raised at the beginning of the proceeding.

Moreover, the Commission should also deny the Petition and Motion because they are untimely. BACKGROUND This proceeding concerns the January 13, 2013, application of the Tennessee Valley Authority (TVA) to renew the operating licenses for Sequoyah Units 1 and 2 for an additional 20 years past their current expiration dates of September 17, 2020, and September 15, 2021, respectively.

7 In response to a March 5, 2013, notice of docketing and opportunity for hearing on the license renewal application (LRA),

8 BREDL, Bellefonte Efficiency and Sustainability Team (BEST), and Mothers Against Tennessee River Radiation (MATRR) jointly filed, on May 6, 2013, a petition for leave to intervene, proffering eight contentions (designated Contentions A through E and Contentions F-1, F-2, and F-3).

9 In Contention B, they alleged that the NRC could not grant Sequoyah's license renewal application without conducting an analysis of the risks of 7 The TVA License Renewal Application (LRA) for Sequoyah Nuclear Power Plant, Units 1 and 2, Facility Operating License Nos. DPR-77 and DPR-79, dated January 7, 2013, is available at ADAMS Package Accession No. ML130240007 (and includes Nos. ML13024A004 and ML13024A006 through ML13024A013).

8 Tennessee Valley Authority; Notice of Acceptance for Docketing of Application and Notice of Opportunity for Hearing Regarding Renewal of Sequoyah Nuclear Plant, Units 1 and 2 Facility Operating License Nos. DPR-77, DPR-79 for an Additional 20-Year Period, 78 Fed. Reg. 14,362 (Mar. 5, 2013).

9 Petition for Leave to Intervene and Request for Hearing by the Blue Ridge Environmental Defense League, Bellefonte Efficiency and Sustainability Team, and Mothers Against Tennessee River Radiation (May 6, 2013) (ML13126A403) (Intervention Petition) at 9 -10.

long-term storage of spent fuel generated by Sequoyah.

10 An Atomic Safety and Licensing Board (Board) was established to preside over the proceeding.

11 In LBP-13-08, the Board found Contentions A, C, D, E, F-1, F-2, and F-3, and the "safety-related portion of Contention B," inadmissible and, consistent with Calvert Cliffs Nuclear Project, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-12-16, 76 NRC 63 (2012), held that the "environmental-related portion of Contention B" regarding the storage and disposal of spent fuel should be held in abeyance pending further order of the Commission.

12 Thus, the Board explained, it did not admit or deny the hearing request.

13 The Board also ruled that while BREDL had established standing to intervene, BEST and MATRR had not.

14 Both BREDL and TVA appealed LBP-13-08.

15 On February 12, 2014, the Commission ruled that the appeals were not ripe and dismissed them without prejudice.

16 On February 27, 2014, BREDL and several other petitioners sought to suspend licensing decisions and reactor re-licensing decisions in a number of proceedings, including the Sequoyah license renewal proceeding, pending completion of rulemaking on the environmental 10 Id. at 12-14.

11 See Tennessee Valley Authority; Establishment of Atomic Safety and Licensing Board, 78 Fed. Reg. 28,897 (May 16, 2013).

12 Tennessee Valley Authority (Sequoyah Nuclear Plant, Units 1 and 2), LBP-13-08, 78 NRC 1, 16 (2013).

13 Id. at 16.

14 Id. at 8. 15 Petition for Interlocutory Review by the Blue Ridge Environmental Defense League and Chapter Bellefonte Efficiency and Sustainability Team, and Mother Against Tennessee River Radiation (July 31, 2013) (ADAMS Accession No. ML13212A392); Tennessee Valley Authority's Notice of Appeal of LBP-13-08 and Brief in Support of Appeal (July 30, 2013) (ADAMS Accession No. ML13211A473).

16 Tennessee Valley Authority (Sequoyah Nuclear Plant, Units 1 and 2), CLI-14-03, 49 NRC 31, 36-37 (2014).

impacts of spent fuel storage.

17 On July 17, 2014, the Commission denied the petitions for suspension.

18 On August 26, 2014, the Commission approved a final rule and GEIS regarding the environmental impacts of the continued storage of spent fuel (the Continued Storage Rule and Continued Storage GEIS, respectively).

19 At the same time, the Commission issued CLI-14-08. In CLI-14-08, the Commission stated that in the Continued Storage GEIS, it had determined that the environmental impacts of continued storage would not vary significantly from site to site and could, therefore, be analyzed generically.

20 The Commission explained that, because the generic impacts of continued storage had been the subject of extensive public participation in the Continued Storage rulemaking process, those generic determinations "are excluded from litigation in individual proceedings."

21 Citing longstanding precedent, the Commission reiterated that "[c]ontentions that are the subject of general rulemaking by the Commission may not be litigated in individual license proceedings."

22 The Commission observed that the Staff could make decisions on the issuance of final licenses once it has "completed its review of the affected applications and has implemented the Continued Storage Rule . . . ."

23 The 17 Petition to Suspend Reactor Licensing Decisions and Reactor Re-Licensing Decisions Pending Completion of Rulemaking Proceeding Regarding Environmental Impacts of High-Density Pool Storage of Spent Fuel and Mitigation Measures (Feb. 27, 2014) (ADAMS Accession No. ML14058A000).

18 DTE Electric Co. (Fermi Nuclear Power Plant, Unit 3), CLI-14-07, 80 NRC 1 (2014).

19 See SRM-SECY-14-0072, Final Rule: Continued Storage of Spent Nuclear Fuel (RIN 3150-AJ20) at 2, Attachment 5 (Aug. 26, 2014) (ADAMS Accession No. ML14237A092); SECY-14-0072, Final Rule: Continued Storage of Spent Nuclear Fuel (RIN 3150-AJ20) (July 21, 2014) (attaching the GEIS and the draft Continued Storage Rule). The Commission paper and its attachments may be found at ADAMS Accession No. ML14177A482 (package).

20 Calvert Cliffs 3 Nuclear Project, LLC, & UniStar Nuclear Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), CLI-14-08, 80 NRC 71, 78-79 (2014) (CLI-14-08).

21 Id. at 79.

22 Id. at n.27, citing Duke Energy Corp. (Oconee Nuclear Power Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 345 (1999).

23 Id. at 77. Commission then directed the Sequoyah Board, among others, to dismiss the spent fuel contention consistent with the Commission's reasoning.

24 In accordance with the Commission's direction in CLI-14-08, on September 30, 2014, the Sequoyah Board dismissed the environmental portion of BREDL's Contention B.

25 On September 19, 2014, the Commission published its new Continued Storage Rule in the Federal Register with an effective date of October 20, 2014.

26 On September 29, 2014, BREDL and several other petitioners sought to suspend licensing decisions and reactor re-licensing decisions in a number of proceedings, including the Sequoyah license renewal proceeding, pending the issuance of waste confidence safety

findings.

27 The petition was accompanied by a motion to reopen and a motion for leave to file a new contention.

28 On February 26, 2015, the Commission denied the suspension petition and denied the associated motions for leave to file a new contention and to reopen the record.

29 On March 3, 2015, the Sequoyah Board terminated the proceeding.

30 Later in March 2015, the Staff published the FEIS for the Sequoyah license renewal.

31 24 Id. at 79.

25 Memorandum and Order (Dismissing Environmental Waste Confidence Contention) (Sept. 30, 2014) (ADAMS Accession No. ML14273A376).

26 See Continued Storage of Spent Nuclear Fuel, 79 Fed. Reg. 56,238, 56,238 (Sept. 19, 2014) (Final Rule).

27 Petition to Suspend Final Decisions in All Pending Reactor Licensing Proceedings Pending Issuance of Waste Confidence Safety Findings (Sept. 29, 2014) (ADAMS Accession No. ML14272A630).

28 Motion to Reopen the Record for Sequoyah Nuclear Power Plant (Sept. 29, 2014) (ADAMS Accession No. ML14272A634); Intervenor's Motion for Leave to File a New Contention Concerning the Absence of Required Waste Confidence Safety Findings in the Re-Licensing Proceeding at Sequoyah Nuclear Power Plant (Sept. 29, 2014) (ADAMS Accession No. ML14272A635).

29 See DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 3), CLI-15-04, 81 NRC __ (slip op.) (Feb. 26, 2015) (ADAMS Accession No. ML15057A279).

30 Tennessee Valley Authority (Sequoyah Nuclear Plant, Units 1 and 2), LBP-15-07, 81 NRC ___ (slip op.) (Mar. 3, 2015).

On April 22, 2015, BREDL filed the instant Petition to Intervene and Motion to Reopen the Record alleging that the Sequoyah license renewal FEIS is inadequate because its evaluation of the environmental impacts of spent fuel storage and disposal relies on the Continued Storage Rule and Continued Storage GEIS.

32 BREDL does not seek to litigate the substantive content of this filing in an adjudicatory hearing.

33 At its core, BREDL's contention challenges 10 C.F.R. § 51.23(b).

34 DISCUSSION I. Legal Standards A. Legal Standards for Admission of Contentions For a hearing request to be granted, the requestor must propose at least one admissible contention that meets all of the requirements of 10 C.F.R. § 2.309(f) 35 and must submit that contention in a timely filing.

36 The requirements for an admissible contention are set out in 10 C.F.R. § 2.309(f)(1), which provides that a contention is admissible if it: (i) Provide[s] a specific statement of the issue of law or fact to be raised or controverted . . .;

(ii) Provide[s] a brief explanation of the basis for the contention; (iii) Demonstrate[s] that the issue raised in the contention is within the scope of the proceeding;

31 NUREG - 1437, "Generic Environmental Impact Statement for License Renewal of Nuclear Plants Regarding Sequoyah Nuclear Plant, Units 1 and 2 (NUREG-1437, Supplement 53) Final Report" March 2015) (ADAMS Accession No. ML15075A438); Sequoyah Nuclear Plant, Units 1 and 2, Supplemental Environmental Impact Statement, Issuance, 80 Fed. Reg. 16,463 (Mar. 27, 2015).

32 Motion to Reopen at 1.

33 Motion to Reopen at 1-2; Petition at 1-2.

34 See Petition at 6 - 7.

35 10 C.F.R. § 2.309(a).

36 10 C.F.R. § 2.309(b). (iv) Demonstrate[s] that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; (v) Provide[s] a concise statement of the alleged facts or expert opinions which support the requestor's/petitioner's position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the requestor/petitioner intends to rely to support its position on the issue; [and]

(vi) . . . provide[s] sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact. This information must include references to specific portions of the application . . . .

The Commission has emphasized that the 10 C.F.R. § 2.309(f)(1) contention admissibility requirements are "strict by design."

37 Failure to comply with any one of the 10 C.F.R. § 2.309(f)(1) requirements is grounds for dismissing the proposed contention.

38 Subsection (iii) of 10 C.F.R. § 2.309(f)(1) explicitly provides that a contention must raise an issue that is within the scope of the proceeding. Challenges to the Commission's regulations and generic determinations are beyond the scope of NRC adjudications.

39 A proposed contention otherwise inadmissible as an out-of-scope collateral attack on a Commission rule may, however, be entertained if (1) the proponent of the contention petitions for the waiver of the rule in the particular proceeding, (2) the presiding officer determines that the waiver petition

has made a prima facie showing that the application of the specific rule would not serve the 37 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-01-24, 54 NRC 349, 358 (2001), petition for reconsid'n denied, CLI-02-01, 55 NRC 1 (2002).

38 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999), citing Arizona Pub. Serv. Co. (Palo Verde Nuclear Generating Station, Units 1, 2, and 3), CLI-91-12, 34 NRC 149, 155-56 (1991).

39 See Arizona Public Service Co. (Palo Verde Nuclear Station, Units No. 1, 2, and 3), LBP-91-19, 33 NRC 397, 410 (1991), appeal granted in part, CLI-91-12, 34 NRC 149 (1991); Philadelphia Elec. Co

. (Peach Bottom Atomic Power Station, Units 2 and 3), ALAB-216, 8 AEC 13, 20 (1974), citing Florida Power & Light Co. (Turkey Point Units No. 3 and 4), 4 AEC 787, 788 (1972) ("[A] licensing proceeding before this agency is plainly not the proper forum for an attack on applicable statutory requirements or for challenges to the basic structure of the Commission's regulatory process."). purposes for which the rule was adopted and then certifies the matter directly to the Commission, and (3) the Commission makes a determination on the matter.

40 If the presiding officer determines that the petitioner has not made the required prima facie showing, "no evidence may be received on [the] matter and no discovery, cross examination, or argument directed to the matter will be permitted, and the presiding officer may not further consider the matter."41 Instead, the participant may challenge the rule by filing a petition for rulemaking under 10 C.F.R. § 2.802.

42 Contentions must also raise a genuine material issue of law or fact with the specific application at bar.

43 In other words, the proponent on the contention must show how resolution of the dispute would make a difference in the outcome of the licensing proceeding.

44 A contention that raises only a generic issue and fails to link that issue to any specific aspect of the pertinent application is inadmissible for failure to raise a genuine material issue.

45 While a disagreement as to the interpretation of the language of a rule may raise a genuine issue of law, a challenge to the rule itself does not.

46 Such a challenge fails because it does not raise a material issue of law as contemplated by the regulation.

Where the original date for the filing of contentions has passed, the provisions of 10 40 10 C.F.R. §§ 2.335(b) and (d).

41 10 C.F.R. § 2.335(c).

42 10 C.F.R. § 2.335(e).

43 10 C.F.R. § 2.309(f)(1)(vi).

44 Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station),

LBP-06-23, 64 NRC 257, 354 (2006), citing Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process, 54 Fed. Reg. 33,168, 33,172 (Aug. 11, 1989) (Final Rule).

45 See Nextera Energy Seabrook, LLC (Seabrook Station, Unit 1), LBP-11-28, 74 NRC 604, 609 (2011).

46 Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), LBP-12-08, 75 NRC 539, 566 (2012), rev'd in part, CLI-12-19, 76 NRC 377 (2012), remanding LBP-13-01, 77 NRC 57 (2013), aff'd on other grounds, CLI-13-7, 78 NRC 199 (2013). C.F.R. § 2.309(c) apply. Section 2.309(c) provides that contentions filed after the deadline will not be entertained absent a determination by the presiding officer that the proponent of the contentions has demonstrated good cause by showing that: (i) The information upon which the filing is based was not previously available;

(ii) The information upon which the filing is based is materially different from information previously available; and

(iii)The filing has been submitted in a timely fashion based on the availability of the subsequent information.

Whether a contention is timely filed depends in large part on when the new information became available. The Commission generally considers a contention based on new information to be filed in a timely fashion if the contention is filed within 30 days of the availability of the new information. When information is later repeated in a Staff document, however, the date that controls for timeliness purposes is the date that the information first became available, not the later date when the Staff "collect[ed], summarize[d] and place[d] into context the facts supporting the contention."

47 B. Legal Standards for Reopening of the Record The Commission has stated that a petitioner seeking to introduce a new contention after the record has been closed should "address the reopening standards contemporaneously with a late-filed intervention petition, which must satisfy the standards for both contention admissibility and late filing."

48 Section 2.326(a) of the Commission's regulations states that a motion to reopen will not be granted unless the following criteria are satisfied:

47 Northern States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 and 2), CLI-10-27, 72 NRC 481, 496 (2010). See also Southern Nuclear Operating Co. (Vogtle Electric Generating Plant, Units 3 and 4), CLI-11-08, 74 NRC 214, 224-225 (2011).

48 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3), CLI-09-05, 69 NRC 115, 124 (2009). (1) The motion must be timely. However, an exceptionally grave issue may be considered in the discretion of the presiding officer even if untimely presented; (2) The motion must address a significant safety or environmental issue; and

(3) The motion must demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered initially.

Additionally, one or more affidavits showing that the motion to reopen meets the above three criteria must accompany the motion.

49 Each affidavit must contain statements from competent individuals with knowledge of the facts alleged or experts in disciplines appropriate to the issues

raised.50 Moreover, the motion to reopen and its supporting documentation must be strong enough, in the light of any opposing filings, to avoid summary disposition.

51 The Commission has held that "[t]he burden of satisfying the reopening requirements is a heavy one [and that]

proponents of a reopening motion bear the burden of meeting all of [these] requirements."

52 Section 2.326(d) further provides that a motion to reopen that relates to a contention not previously in controversy among the parties must also satisfy the requirements in 10 C.F.R.

§ 2.309(c) (discussed above) for contentions submitted after the original deadline for filing. II. The Petition Should Be Denied for Failing to Timely Proffer an Admissible Contention BREDL's proposed contention asserts that "the NRC lacks a lawful basis under NEPA for re-licensing Sequoyah Units 1 and 2, because the NRC relies on the generic conclusions of 49 10 C.F.R. § 2.326(b).

50 Id. See also AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLl-09-7, 69 NRC 235, 291-93 (2009).

51 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-05-12, 61 NRC 345, 350 (2005) (PFS), citing Vermont Yankee Nuclear Power Corp. (Vermont Yankee Nuclear Power Station), ALAB-138, 6 AEC 520, 523-4 (1973).

52 Oyster Creek, CLI-09-07, 69 NRC at 287 (internal quotations omitted, alteration in original). the Continued . . . Storage Rule and GEIS", which BREDL rejects as flawed.

53 The Petition goes on to identify seven specific alleged failures in the Continued Storage Rule and GEIS.

54 Simply stated, BREDL's proposed contention is an impermissible challenge to the Commission's Continued Storage Rule and GEIS. As the Commission just recently held in Callaway and Fermi 3 with respect to a substantively identical proposed contention, a "placeholder" contention such as the instant contention is not admissible under the Commission's rules of practice because it impermissibly challenges an agency regulation and is therefore outside the scope of an individual licensing proceeding.

55 Additionally, BREDL does not raise any site-specific environmental issues with respect to the Sequoyah license renewal application and, thus, does not show that a genuine dispute exists with the applicant on a material issue of law or fact. Finally, BREDL's Petition is untimely. For all of these reasons, BREDL's Petition should be denied. A. The Proposed Contention Challenges a Rulemaking that Is Beyond the Scope of this Proceeding BREDL's proposed contention is a challenge to the Continued Storage Rule and GEIS and, as a challenge to a Commission rule, it is a challenge that is beyond the scope of this proceeding.

56 Every alleged failure and violation of NEPA that BREDL asserts is an alleged failure or violation by virtue of the Continued Storage Rule or GEIS.

57 BREDL's only complaint with the Staff's FEIS for Sequoyah's license renewal is the fact that the Continued Storage Rule 53 Petition at 6.

54 Id. at 6 - 7.

55 Callaway, CLI-15-11, 81 NRC at __ (slip op. at 3-4); Fermi, CLI-15-12, 81 NRC at __ (slip op.

at 4). 56 See 10 C.F.R. § 2.309(f)(1)(iii).

57 See Petition at 6 - 7. adopted the environmental impacts described in the Continued Storage GEIS and deemed them incorporated into the Staff's FEIS.

58 Commission regulations bar such challenges to its rules: 10 C.F.R. § 2.335(a) provides that "no rule or regulation of the Commission, or any provision thereof, . . . is subject to attack by way of discovery, proof, argument, or other means in any adjudicatory proceeding subject to this part." Contentions that challenge Commission regulations or its regulatory processes are

beyond the scope of adjudicatory proceedings and have been regularly dismissed as such.

59 Most recently and to the point, in ruling on a substantively identical proposed contention in

Callaway and Fermi 3, the Commission held that such a contention was not admissible because it impermissibly challenges an agency regulation and is therefore outside the scope of an individual licensing proceeding.

60 Further, in its Continued Storage decision in CLI-14-08, the Commission also wrote: "Contentions that are the subject of general rulemaking by the Commission may not be litigated in individual license proceedings."

61 For this same reason, contentions that challenge the NRC's generic environmental impact statement for license renewal have been rejected in case after case.

62 In CLI-14-08, the Commission explained, 58 Id. at 6. 59 See, e.g.,

Callaway, CLI-15-11, 81 NRC at __ (slip op. at 3-4); Fermi, CLI-15-12, 81 NRC at __ (slip op. at 4);

Palo Verde, LBP-91-19, 33 NRC at 400, 410, appeal granted in part, CLI-91-12, 34 NRC 149 (1991);

Peach Bottom, ALAB-216, 8 AEC at 20, citing Florida Power & Light Co.

(Turkey Point Units No. 3 and 4), 4 AEC 787, 788 (1972) ("[A] licensing proceeding before this agency is plainly not the proper forum for an attack on applicable statutory requirements or for challenges to the basic structure of the Commission's regulatory process.").

60 Callaway, CLI-15-11, 81 NRC at __ (slip op. at 3-4); Fermi, CLI-15-12, 81 NRC at __ (slip op.

at 4). 61 Calvert Cliffs, CLI-14-08, 80 NRC at 79 n.27, citing Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 NRC 328, 345 (1999).

62 See, e.g., Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), CLI-12-19, 76 NRC 377, 386 (2012), remanding, LBP-13-01, 77 NRC 57 (2013), aff'g on other grounds

, CLI-13-07, 78 NRC 199 (2013); Entergy Nuclear Vermont Yankee, LLC & Entergy Nuclear Operations, Inc.

(Vermont Yankee Nuclear Power Station), CLI-07-03, 65 NRC 13, 20 (2007);

Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 11-12 (2001). "[b]ecause these generic impact determinations have been the subject of extensive public participation in the rulemaking process, they are excluded from litigation in individual proceedings."

63 Consistent with the recent Callaway and Fermi 3 decisions, as well as CLI-14-08 and longstanding case law, the Commission should deny BREDL's challenge to the Continued Storage Rule and GEIS. Nevertheless, in accordance with the provisions of 10 C.F.R. § 2.335, BREDL could still have challenged the Continued Storage Rule and GEIS in this adjudicatory proceeding had it sought and obtained a waiver of the prohibition against such challenges. In order to obtain such a waiver, 10 C.F.R. § 2.335(b) requires that a petitioner provide an affidavit demonstrating that special circumstances with respect to the subject matter of the particular proceeding are such that the application of the regulation would not serve the purposes for which the regulation was adopted. But BREDL has not done this; instead, BREDL states that "its contention is not accompanied by a petition for a waiver" and explains that this is because "[n]o purpose would be served by such a waiver, because BREDL does not seek an adjudicatory hearing on the NRC's generic environmental findings."

64 Given that BREDL's proposed contention challenges the NRC's Continued Storage Rule and GEIS and that BREDL has affirmatively decided to forego petitioning for a waiver, the Commission should deny BREDL's Petition.

65 B. The Proposed Contention Fails to Raise a Genuine Material Issue BREDL asserts, without reference to any specific portions of the Sequoyah license renewal application, that its contention "raises a genuine dispute with both the applicant and the NRC regarding whether the NRC has satisfied NEPA for the purpose of issuing the license 63 Calvert Cliffs, CLI-14-08, 80 NRC at 79.

64 Petition at 2 - 3 n.3

. 65 See Limerick, CLI-12-19, 76 NRC at 386-87; Callaway, CLI-15-11, 81 NRC at __ (slip op. at 3-4). renewal for Sequoyah Units 1 and 2."

66 As explained above, BREDL's contention is an inadmissible attack on the Commission's Continued Storage Rule and GEIS and, as such, it cannot raise a genuine issue for dispute as requir ed by 10 C.F.R. § 2.309(f)(1)(vi); the dispute is, per se, not a genuine one.

67 Additionally, it is well established that an admissible contention "must raise a genuine dispute with the license application" in order to demonstrate that a material issue for hearing exists.68 All BREDL disputes is the incorporation of the Continued Storage Rule and GEIS into the Sequoyah license renewal FEIS. This inco rporation was, however, mandated by the Commission. The Continued Storage Rule itself provides that: The environmental reports described in . . . [§] 51.53 [Postconstruction environmental reports] . . . are not required to discuss the environmental impacts of spent nuclear fuel storage in a reactor facility storage pool or an [Independent Spent Fuel Storage Installation (ISFSI)] for the period following the term of the reactor operating license . . . . The impact determinations in [the Continued Storage GEIS] regarding continued storage shall be deemed incorporated into the environmental impact statements described in . . . [§] 51.95 [Postconstruction environmental impact statements] . . . .

[69] As the Limerick board observed, "while a disagreement over the proper interpretation of NRC regulations may give rise to an admissible contention," an interpretation that is in direct conflict with the plain meaning of a regulation and the agency's Statements of Consideration fails "to

present a genuine dispute of fact or la w . . . as required by NRC regulations."

70 BREDL's 66 Petition at 8.

67 See Limerick, LBP-12-08, 75 NRC at 566, 566 n.188, rev'd on other grounds, CLI-12-16, 76 NRC 377 (2012); Callaway, CLI-15-11, 81 NRC at __ (slip op. at 3-4).

68 Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-15, 75 NRC 704, 709 (2012).

69 10 C.F.R. § 51.23(b) (emphasis added). See Fermi 3, CLI-15-10, 81 NRC at __ (slip op. at 5) (holding that, by the terms of the plain language of 10 C.F.R. § 51.23(b), the environmental impacts in the Continued Storage GEIS have already been incorporated into the NRC's environmental evaluations in individual licensing proceedings "by operation of law").

70 Limerick, LBP-12-08, 75 NRC at 566. proposed contention, which is in direct conflict with the Continued Storage Rule, thus fails to present a genuine dispute as required by 10 C.F.R. § 2.309(f)(1)(vi) and should be rejected. C. The Proposed Contention Is Untimely The initial deadline for filing contentions in Sequoyah license renewal proceeding was May 6, 2013.

71 A petition to intervene filed after this deadline will not be entertained absent a determination that the petition was timely filed based on the availability of previously unavailable

and materially different information.

72 However, instead of identifying previously unavailable and materially different information as providing good cause for its late filing of its Petition, BREDL states that the Petition "does not depend at all on past information."

73 This assertion, though, is incorrect. The entirety of BREDL's statement of its proposed new contention is an argument against the Continued Storage Rule and GEIS 74 and this argument does indeed depend on past information, that is, on the Continued Storage Rule and GEIS themselves, which were published in the Federal Register on September 19, 2014.

75 The Continued Storage Rule went into effect on October 20, 2014, and BREDL had an obligation to raise its contention in a timely manner based on the effective date of the rule, at the latest.

76 The Petition should therefore be denied as untimely.

71 See 78 Fed. Reg. at 14,363.

72 10 C.F.R. § 2.309(c)(1).

73 Petition at 8 - 9.

74 Id. at 6 - 7.

75 See Continued Storage of Spent Nuclear Fuel, 79 Fed. Reg. 56,238 (Sept. 19, 2014) (Final Rule). 76 Additionally, BREDL notes that its contention is similar to one filed in Callaway in December 2014. Petition at 1 n.1. The fact that BREDL subsequently took more than four months to file a substantively identical contention only reinforces its untimeliness. BREDL attempts to cure this pleading deficiency by asserting that its Petition is timely because it "depends on an event that will occur in the future . . . ."

77 However, BREDL cites no authority supporting this assertion that filing timeliness before the Commission can be measured from an event that has not yet occurred, and the Staff has not identified any cases that support such a theory. Moreover, such a theory could be used to support the endless filing of late contentions based on claims that some event in the future may eventually provide a basis for the filings. By filing a petition based on documents published many months earlier and by not identifying any other potentially new and materially different documents, but instead relying on an unsupported theory of future new and materially different information, BREDL has not filed its Petition in a timely fashion and, thus, the Petition should be denied. III. The Motion to Reopen Should Be Denied for Failing to Meet the Reopening Standards BREDL does not meet the Commission's reopening standards provided in 10 C.F.R. § 2.326(a)(1)-(3) because its Motion to Reopen is untimely without raising an exceptionally grave issue, it does not address a significant environmental issue, and it does not demonstrate that a materially different result would be likely if the proposed new contention had been raised at the beginning of the proceeding. Accordingly, BREDL's Motion to Reopen should be denied. A. BREDL's Motion Is Untimely and Does Not Raise an Exceptionally Grave Issue Under 10 C.F.R. § 2.326(a)(1), a motion to reopen "must be timely." As discussed above, the issues raised in BREDL's Motion to Reopen are not timely because they are based on the analyses contained in the Continued Storage Rule and GEIS that were published on September 19, 2014.

78 Nonetheless, 10 C.F.R. § 2.326(a)(1) provides an exception to its timeliness requirement for when the motion to reopen raises "an exceptionally grave issue."

77 Petition at 9.

78 See Motion to Reopen at 1 - 2. The Commission "anticipates that this exception will be granted rarely and only in truly extraordinary circumstances."

79 The Commission has stated that "an untimely raised environmental issue could be 'exceptionally grave,' depending on the circumstances of the case and the facts presented."

80 However, BREDL has not made any arguments or presented any facts in support of the existence of an exceptionally grave issue. Therefore, BREDL's Motion to Reopen is untimely and this untimeliness cannot be excused. B. BREDL's Motion Does Not Address a Significant Environmental Issue Under 10 C.F.R. § 2.326(a)(2), a motion to reopen must address a significant safety or environmental issue. When a motion to reopen is untimely, the 10 C.F.R. § 2.326(a)(1) "exceptionally grave issue" test supplants the 10 C.F.R. § 2.326(a)(2) "significant safety or environmental issue" test.

81 As discussed above, the claims in BREDL's Motion to Reopen are untimely and do not raise an "exceptionally grave" issue; therefore, BREDL's Motion to Reopen also does not meet the requirements of 10 C.F.R. § 2.326(a)(2). Moreover, even if BREDL had filed its Motion to Reopen in a timely fashion, the motion still does not raise a significant environmental issue under 10 C.F.R. § 2.326(a)(2). For environmental issues, the Commission has found that the standard for showing significance to reopen a closed record is analogous to the standard for supplementing an environmental impact statement.

82 This standard is that the Staff must prepare a supplement to a final environmental impact statement if: "(1) [t]here are substantial changes in the proposed action that are relevant 79 Criteria for Reopening Records in Formal Licensing Proceedings, 51 Fed. Reg. 19,535, 19,536 (May 30, 1986) (Final Rule).

80 Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-21, 76 NRC 491, 500-501 (2012).

81 Vogtle, CLI-11-08, 74 NRC at 225 n.44 (citing Pub. Serv. Co. of New Hampshire (Seabrook Station, Units 1 and 2), ALAB-886, 27 NRC 74, 78 (1988)).

82 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-06-03, 63 NRC 19, 28-29 (2006). to environmental concerns; or (2) [t]here are new and significant circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts."

83 Any such new information must "paint a '

seriously different picture of the environmental landscape.'"

84 BREDL asserts that its Motion to Reopen raises the significant environmental issue that the Sequoyah license renewal FEIS, because of its dependence on the Continued Storage Rule and GEIS, lacks an adequate analysis of the environmental impacts of spent fuel storage and disposal such that it fails to provide sufficient support for the proposed licensing action.

85 BREDL does not explain how there is new and significant information relevant to its environmental concerns and how that information bears on the Sequoyah license renewal application such that it paints a seriously different picture of the environmental landscape. Instead, BREDL relies solely on its comments on the draft Continued Storage Rule and GEIS, 86 but fails to explain how these comments paint a new and seriously different picture of the environment. Accordingly, BREDL's claims do not constitute a significant environmental issue under 10 C.F.R. § 2.326(a)(2) and its Motion to Reopen should be denied. C. BREDL's Motion Does Not Show that a Materially Different Result Would Be Likely Under 10 C.F.R. § 2.326(a)(3), a motion to reopen "must demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered initially." One Board has explained that, under this standard, "[t]he movant must show that it is likely that the result would have been materially different, i.e., that it is more 83 10 C.F.R. § 51.92(a).

84 PFS, CLI-06-03, 63 NRC at 28 (quoting Nat'l Comm. for the New River, Inc. v. FERC, 373 F.3d 1323, 1330 (D.C. Cir. 2004) (emphasis in original)).

85 Motion to Reopen at 4.

86 See id. probable than not that [the movant] would have prevailed on the merits of the proposed new contention."

87 The Commission has made clear that the evidence provided in support of a motion to reopen must be sufficiently compelling to suggest a likelihood of materially affecting the ultimate results in the proceeding.

88 BREDL has not demonstrated that a materially different result would be likely in this proceeding had its proposed new contention been considered initially. In its Motion to Reopen, BREDL claims that the purpose of its new contention is to ensure that the NRC will withdraw the Sequoyah FEIS as a basis for issuing a renewed license to Sequoyah and, therefore, withdraw the renewed license, if the U.S. Court of Appeals for the District of Columbia Circuit vacates the

Continued Storage Rule and GEIS.

89 Although BREDL does assert that the admission of its proposed new contention would likely produce a materially different result in this proceeding, BREDL's logic is flawed. First, BREDL appears to contradict itself in asserting that admission of its contention would produce a materially different result because it also concedes that it is submitting its new contention with the reasonable expectation that it will be denied, because the subject matter of the contention is generic.

90 Second, BREDL provides no evidence to establish the likelihood that its challenge to the Continued Storage Rule and GEIS would prevail especially given the fact that the very same comments on which it is based were available to the Commission at the time of its approval of the Continued Storage Rule and GEIS. Finally, BREDL has not shown that a materially different result would be likely because, as explained above, BREDL has failed to proffer an admissible contention under 10 C.F.R. §§ 2.309(f)(1) and 87 Entergy Nuclear Vermont Yankee, LLC & Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), LBP-10-19, 72 NRC 529, 549 (2010) (emphasis in original).

88 Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-12-10, 75 NRC 479, 498 (2012).

89 Motion to Reopen at 4.

90 Petition at 2. 2.309(c). BREDL also describes its contention as a "placeholder" that it does not intend to litigate before the NRC but, instead, only intends to appeal upon its denial.

91 However, as the Commission held in Callaway and Fermi 3, such "placeholder" contentions are not necessary to ensure that a petitioner's challenge to a Commission rule receives a full and fair airing.

92 CONCLUSION BREDL's Petition to Intervene is inadmissible because it raises an issue that is beyond the scope of this proceeding by challenging a Commission rule without requesting a waiver of the rule, it fails to raise a genuine issue of material fact or law, and it was filed late without good cause. BREDL's Motion to Reopen is inadmissible because it is untimely without addressing an extremely grave issue, it does not address a significant environmental issue, and it does not demonstrate that a materially different result would be likely if its proposed new contention had been raised at the beginning of the proceeding. Accordingly, consistent with the Commission's

91 Motion to Reopen at 2.

92 See Callaway, CLI-15-11, 81 NRC at __ (slip op. at 5); Fermi, CLI-15-12, 81 NRC at __ (slip op. at 5). Instead, the Commission stated that, "[s]hould the D.C. Circuit find any infirmities in the Continued Storage Rule or GEIS, we would take appropriate action consistent with the court's direction." Callaway, CLI-15-11, 81 NRC at __ (slip op. at 5). denial of a substantively identical proposed contention in Callaway and Fermi 3, the Commission should deny both BREDL's Petition to Intervene and Motion to Reopen.

Respectfully submitted,

/Signed (electronically) by/

Beth N. Mizuno Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop O15-D21 Washington, DC 20555 Telephone: (301) 415-3122

E-mail: Beth.Mizuno@nrc.gov Dated at Rockville, Maryland this 4th day of May, 2015 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

)

TENNESSEE VALLEY AUTHORITY ) Docket No. 50-327-LR & 50-328-LR ) (Sequoyah Nuclear Power Plant, )

Units 1 and 2) )

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I hereby certify that copies of the foregoing "NRC STAFF ANSWER TO BLUE RIDGE ENVIRONMENTAL DEFENSE LEAGUE'S HEARING REQUEST AND PETITION TO INTERVENE AND MOTION TO REOPEN THE RECORD IN THE LICENSE RENEWAL PROCEEDING FOR SEQUOYAH NUCLEAR POWER PLANT, UNITS 1 AND 2,"

dated May 4, 2015 have been served upon the Electronic Information Exchange, the NRC's E-Filing System, in the above-captioned proceeding, this 4th day of May, 2015.

/Signed (electronically) by/

Beth N. Mizuno Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop O15-D21 Washington, DC 20555 Telephone: (301) 415-3122

E-mail: Beth.Mizuno@nrc.gov

Dated at Rockville, Maryland

this 4th day of May, 2015