ML091980276
| ML091980276 | |
| Person / Time | |
|---|---|
| Site: | Bellefonte  |
| Issue date: | 07/17/2009 |
| From: | Chandler L J, O'Neill M J, Sutton K M, Vigluicci E J 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 AUTHORITY'S MOTION TO STRIKE PETITIONERS' SUPPLEMENTAL BASIS FOR PROPOSED CONTENTION 5 I. INTRODUCTION On July 15, 2009, joint petitioners, the Bl ue 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 TVA's August 26, 2008 request to reinstate the construction permits ("CPs") for Bellefonte Nucl ear 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 h earing 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 explicit ly directed that "[t]he remainder of Petitioners' proposed contentions will be held in abeyance, pending the Commission's ruling on the threshold
'authority' issue."
8 Petitioners, TVA, and the NRC Staff f iled their initial a nd responsive briefs on June 3 and June 10, 2009, respectively. The Commission's ruling on th is 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 Commission's May 20 Order Holding Pr oposed Contention 5 in Abeyance First and foremost, the Commission should strike Petitioners' Supplemental Basis because it directly contravenes the Commission's May 20 Order. The Commission unequivocally mandated that any further proceedings on the other "remaining" proposed contentions - including proposed Contenti on 5 - be "held in abeyance" pending the Commission's resolution of the "thres hold" legal question identified above.
9 Plainly, the Commission's abeyance instruction encompasses further substantive filings related to Proposed Contention 5. Petitioners' Supplemental Basis impr operly disregards the cl ear intent and effect of the Commission May 20 Order. Accordingly, it should be summarily stricken as an unauthorized pleading.
10 B. Petitioners' Supplemental Basis Constitute s 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 Commission's 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 c ould not) provide the certificati on 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 citi ng 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 applicant's 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 th ese three criteria, they did not seek leave of the Commission to the amend their proposed c ontention. Moreover, the Petitioners' failure to
motion, and that the movant's 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 Commission's May 20 Order, and the NRC's 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 Basi s should be stricken in its entirety. If the Commission d ecides not to strike Petitione rs' 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 Petiti oners' 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. O'Neill, 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 Valle y Authority's 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 Attn: Rulemakings and Adjudications Staff
U.S. Nuclear Regulatory Commission Mail Stop: O-16G4 Washington, DC 20555-0001 E-mail: hearingdocket@nrc.gov Andrea Z. Jones, Esq.
David E. Roth, Esq.
Jeremy M. Suttenberg, Esq.
Office of the General Counsel U.S. Nuclear Regulatory Commission 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
Adjudication
U.S. Nuclear Regulatory Commission Mail Stop: O-16G4
Washington, DC 20555-0001 E-mail: ocaamail@nrc.gov Louis A. Zeller Representative of Blue Ridge Environmental
Defense League (BREDL) & Bellefonte Efficiency and Sustainability Team (BEST)
P.O. Box 88
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. O'Neill, 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