ML091980276

Tennessee Valley Authority'S Motion to Strike Petitioners' Supplemental Basis for Proposed Contention 5

ML091980276
Person / Time
Site:	Bellefonte
Issue date:	07/17/2009
From:	Chandler L, O'Neill M, Sutton K, Vigluicci E Morgan, Morgan, Lewis & Bockius, LLP, Tennessee Valley Authority
To:	NRC/OCM
SECY RAS
References
50-438-CP, 50-439-CP, Construction Permit 1, RAS 16059
Download: ML091980276 (8)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of )

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

) July 17, 2009 (Bellefonte Nuclear Power Plant, Units 1 and 2) )

)

TENNESSEE VALLEY AUTHORITYS MOTION TO STRIKE PETITIONERS SUPPLEMENTAL BASIS FOR PROPOSED CONTENTION 5 I. INTRODUCTION On July 15, 2009, joint petitioners, the Blue Ridge Environmental Defense League (BREDL), the Bellefonte Efficiency and Sustainability Team, and the Southern Alliance for Clean Energy (Petitioners), filed a new and supplemental basis for their Proposed Contention 5 (Lack of Good Cause for Reinstatement).1 Petitioners cited the supposed need to place on the record in this proceeding the recent announcement by TVA that it is commencing a comprehensive review and revision of its Integrated Resource Plan (IRP).2 In accordance with 10 C.F.R. § 2.323(a), Tennessee Valley Authority (TVA) respectfully requests that the Commission strike Petitioners Supplemental Basis. As shown below, because Petitioners filing is unauthorized and procedurally defective in multiple respects, it should be summarily stricken.

1 See Joint Intervenors Supplemental Basis for Previously Submitted Contention 5 - Lack of Good Cause (July 15, 2009) (Petitioners Supplemental Basis).

2 Id. at 1 (internal quotation marks omitted); see also Notice of Intent, Environmental Impact Statement; Integrated Resource Plan, 74 Fed. Reg. 28,322 (June 15, 2009) (attached to Petitioners Supplemental Basis).

II. BACKGROUND This proceeding concerns TVAs August 26, 2008 request to reinstate the construction permits (CPs) for Bellefonte Nuclear Plant (BLN) Units 1 and 2.3 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.4 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.5 On May 8, 2009, the Petitioners timely filed a joint request for hearing and petition to intervene that included, among other contentions, Proposed Contention 5.6 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 threshold authority issue.8 Petitioners, TVA, and the NRC Staff filed their initial and responsive briefs on June 3 and June 10, 2009, respectively. The Commissions ruling on this issue is still pending. Nonetheless, on July 15, Petitioners filed their Supplemental Basis for Proposed Contention 5.

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

4 Tennessee Valley Authority (Bellefonte Nuclear Plant Units 1 and 2); Order, 74 Fed. Reg. 10,969 (Mar. 13, 2009) (Reinstatement Order).

5 Id.

6 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).

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) (May 20 Order).

8 Id. at 2 (emphasis added).

III. ARGUMENT A. Petitioners Supplemental Basis is Unauthorized Because It Contravenes the Commissions May 20 Order Holding Proposed Contention 5 in Abeyance First and foremost, the Commission should strike Petitioners Supplemental Basis because it directly contravenes the Commissions May 20 Order. The Commission unequivocally mandated that any further proceedings on the other remaining proposed contentions - including proposed Contention 5 - be held in abeyance pending the Commissions resolution of the threshold legal question identified above.9 Plainly, the Commissions abeyance instruction encompasses further substantive filings related to Proposed Contention 5. Petitioners Supplemental Basis improperly disregards the clear intent and effect of the Commission May 20 Order. Accordingly, it should be summarily stricken as an unauthorized pleading.10 B. Petitioners Supplemental Basis Constitutes an Improperly-Filed Motion That Fails to Comply with the Consultation Requirements of 10 C.F.R. § 2.323(b)

While nominally filed pursuant to 10 C.F.R. § 2.309(f)(2), Petitioners Supplemental Basis is, in effect, a de facto motion to (1) supplement the record in this proceeding, and/or (2) lift the Commissions May 20 abeyance order so that Petitioners can properly seek to amend Proposed Contention 5. In either case, Petitioners have failed to comply with the mandatory consultation requirement of 10 C.F.R. § 2.323(b).11 Specifically, Petitioners made no attempt to 9

Id.

10 Presumably, if and when the Commission lifts its abeyance order and refers Petitioners remaining proposed contentions to an Atomic Safety and Licensing Board, then Petitioners may seek to amend Proposed Contention 5 in accordance with 10 C.F.R. § 2.309. Petitioners instant attempt to do so is improper given the procedural posture of this case.

11 10 C.F.R. § 2.323(b) states:

A motion must be rejected if it does not include a certification by the attorney or representative of the moving party that the movant has made a sincere effort to contact other parties in the proceeding and resolve the issue(s) raised in the

contact counsel of record for TVA to discuss the matter raised in their July 16, 2009 filing.12 Therefore, they did not (and could not) provide the certification required by Section 2.323(b).

Accordingly, insofar as it constitutes a motion, the Supplemental Basis must be rejected.

C. Petitioners Also Failed to Seek Leave from the Commission to File the Supplemental Basis, as Required by 10 C.F.R. § 2.309(f)(2)

Finally, Petitioners Supplemental Basis also should be rejected because they did not seek leave of the Commission to file it. In citing Section 2.309(f)(2), Petitioners. Although not expressly acknowledging the fact, are seeking to amend a previously-submitted contention.

Under Section 2.309(f)(2), a petitioner/intervenor may file new or amended environmental contentions if there are data or conclusions in the NRC draft or final environmental impact statement, environmental assessment, or any supplements relating thereto, that differ significantly from the data or conclusions in the applicants documents.13 Petitioners did not directly address this requirement. In such circumstances, a new or amended contention then can be filed only with leave of the presiding officer, and upon showing that the criteria in Section 2.309(f)(2)(i)-(iii).14 Although Petitioners allege compliance with these three criteria, they did not seek leave of the Commission to the amend their proposed contention. Moreover, the Petitioners failure to motion, and that the movants efforts to resolve the issue(s) have been unsuccessful. (emphasis added).

The Commission itself recently rejected a motion that did not comply with this provision. See, e.g., Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), CLI-08-29, 68 NRC __, slip op. at 4 n.12 (Dec. 9, 2008) (We reject the motion on the grounds that [petitioners] counsel failed to comply with the certification requirements of 10 C.F.R. § 2.323(b) regarding consultation with opposing counsel.)

12 Notably, Petitioners Certificate of Service, while correctly identifying in-house counsel for TVA, fails to properly identify the Morgan Lewis (TVA outside counsel) attorneys who have filed notices of appearance in this proceeding. Instead, it incorrectly lists Morgan Lewis attorneys who are representing TVA in an entirely different matter (the Bellefonte Units 3 and 4 combined operating license proceeding).

13 10 C.F.R. § 2.309(f)(2).

14 Specifically, Petitioners must show that the information upon which the proposed contention amendment is based was not previously available, is materially different than information previously available, and has been submitted in a timely fashion. See 10 C.F.R. § 2.309(f)(2)(i)-(iii).

comply with the Commissions May 20 Order, and the NRCs procedural criteria, deprives TVA of an opportunity to address the substance of their Supplemental Basis. Such a result is contrary to fundamental concepts of due process and fair adjudication.

IV. CONCLUSION For all of the above reasons, Petitioners Supplemental Basis should be stricken in its entirety. If the Commission decides not to strike Petitioners filing on any of the grounds specified herein, then TVA respectfully requests the opportunity to fully address the merits of Petitioners Supplemental Basis, as judged against the contention timeliness and admissibility requirements of 10 C.F.R. § 2.309.

CERTIFICATION In accordance with 10 C.F.R. §2.323(b), on July 16, 2009, 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 July 17, 2009.

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 17th day of July 2009

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) ) July 17, 2009

)

CERTIFICATE OF SERVICE I hereby certify that, on July 17, 2009, a copy of Tennessee Valley Authoritys Motion to Strike Petitioners Supplemental Basis for Proposed Contention 5, dated July 17, 2009, 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 DB1/63310169.1