ML083220256

From kanterella
Revision as of 04:54, 12 July 2019 by StriderTol (talk | contribs) (Created page by program invented by StriderTol)
Jump to navigation Jump to search
2008/11/17-Dominion Nuclear Connecticut'S Brief in Opposition to the Appeal of Connecticut Coalition Against Millstone and Nancy Burton
ML083220256
Person / Time
Site: Millstone Dominion icon.png
Issue date: 11/17/2008
From: Travieso-Diaz M
Dominion Nuclear Connecticut, Dominion Resources Services, Pillsbury, Winthrop, Shaw, Pittman, LLP
To:
NRC/OCM
SECY RAS
References
50-423-OLA, ASLBP 08-862-01-OLA-BD01, RAS 1410
Download: ML083220256 (20)
v • d • e


Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of ) ) Docket No. 50-426-OLA Dominion Nuclear Connecticut, Inc. ) (Millstone Nuclear Power Station, Unit 3) ) ASLBP No. 08-862-01-OLA ) ) DOMINION NUCLEAR CONNECTICUT'S BRIEF IN OPPOSITION TO APPEAL OF CONNECTICUT COALITION AGAINST MILLSTONE AND NANCY BURTON David R. Lewis Matias F. Travieso-Diaz Stefanie M. Nelson PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, NW

Washington, DC 20037-1122 (202) 663-8000 Lillian M. Cuoco Senior Counsel Dominion Resources Services, Inc.

120 Tredegar Street, RS-2 Richmond, VA 23219 (804) 819-2684 Counsel for Dominion Nuclear Connecticut, Inc.

Dated: November 17, 2008 TABLE OF CONTENTS Page TABLE OF AUTHORITIES.........................................................................................................ii i STATEMENT OF THE CASE.......................................................................................................2 ARGUMENT..................................................................................................................................4 I. PETITIONERS FAIL TO IDENTIFY ERRORS IN THE BOARD'S DECISION...........4 II. THE BOARD'S DENIAL OF PETITIONERS' MOTIONS WAS CORRECT................6 A. THE PROCEEDING HAS TERMINATED AND CANNOT BE REOPENED...............6 B. PETITIONERS FAILED TO MEET THE CRITERIA FOR A MOTION TO REOPEN UNDER 10 C.F.R. § 2.326.................................................................................................7 1. A Motion to Reopen Would Have Been Required.......................................................7 2. Petitioners Failed to Satisfy the Requisite Standards for Late Intervention and for Reopening a Closed Hearing........................................................................................8 C. PETITIONERS FAILED TO MEET THE CRITERIA FOR NEW OR AMENDED CONTENTIONS UNDER 10 C.F.R. § 2.309(f)(2) AND THE CONTENTION ADMISSIBILITY CRITERIA OF 10 C.F.R. § 2.309(f)(1)(i)-(vi)..................................10 CONCLUSION.............................................................................................................................13 ii TABLE OF AUTHORITIES Cases Page Advanced Medical Systems, Inc., (One Factory Row, Geneva, Ohio 44041),

CLI-94-6, 39 N.R.C. 285 (1994), aff'd , Advanced Med. Sys., Inc. v. NRC , 61 F.3d 903 (6th Cir. 1995).............................................................................................................5 Amergen Energy Co., L.L.C. (Oyster Creek Nuclear Gene rating Station), CLI-08-28, 68 N.R.C. __, slip op. (Nov. 6, 2008).........................................................................................9,10 Baltimore Gas & Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2),

CLI-98-25, 48 N.R.C. 325 (1998)................................................................................................

....9 Boston Edison Co. (Pilgrim Nuclear Power Station), ALAB-816, 22 N.R.C. 461 (1985).............9 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3),

CLI-04-36, 60 N.R.C. 631 (2004)................................................................................................

....5 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3),

CLI-06-4, 63 N.R.C. 32 (2006)..................................................................................................

...7,9 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Po wer Station, Unit No.3),

LBP-08-09, 67 N.R.C. __, slip op. (June 4, 2008)...................................................................3,7,12 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Po wer Station, Unit 3), CLI-08-17, 68 N.R.C. __, slip op. (Aug. 13, 2008)..............................................................1,3,7,12 Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 N.R.C. 328 (1999).....................................................................................................................13 Duke Power Co. (Perkins Nuclear Station, Units 1, 2 ad 3), ALAB-615, 12 N.R.C. 350 (1980).......................................................................................................................9 General Public Utilities Nuclear Corp. (Three Mile Island Nuclear Station, Unit 2), ALAB-926, 31 N.R.C. 1 (1990)...................................................................................................

...5 Hydro Resources, Inc. (2929 Coors Road, Suite 101, Albuquerque, NM 87120), CLI-00-8, 51 N.R.C. 227 (2000)....................................................................................................11 Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant), CLI-75-4, 1 N.R.C. 273 (1975).........................................................................................................................9 Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation),

CLI-00-21, 51 N.R.C. 261 (2000)................................................................................................

....5 iii Private Fuel Storage, L.L.C. (Independent Spent Fuel Stor age Installation), CLI-04-22, 60 N.R.C. 125 (2004).....................................................................................................................11 Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2),

CLI-92-12, 36 N.R.C. 62 (1992).................................................................................................

.....6 Texas Utilities Electric Co. (Comanche Peak Steam Electri c Station, Unit 2), CLI-93-01, 37 N.R.C. 1 (1993).............................................................................................................

..............8 Texas Utilities Electric Co. (Comanche Peak Steam Electri c Station, Unit 2), CLI-93-4, 37 N.R.C. 156 (1993).......................................................................................................................8

Texas Utilities Electric Co. (Comanche Peak Steam Electri c Station, Unit 2), CLI-93-10, 37 N.R.C. 192 (1993).......................................................................................................................5 Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 and 2), ALAB-666, 15 N.R.C. 277 (1982).......................................................................................................................5

Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-96-7, 43 N.R.C. 235 (1996).....................................................................................................................11 Statutes & Regulations 10 C.F.R. § 2.206..............................................................................................................

...............6 10 C.F.R. § 2.309(c)...........................................................................................................

...........8,9 10 C.F.R. § 2.309(f)(1)(i).....................................................................................................

.....10,11 10 C.F.R. § 2.309(f)(1)(ii)....................................................................................................

....10,11 10 C.F.R. § 2.309(f)(1)(iii)...................................................................................................

....10,11 10 C.F.R. § 2.309(f)(1)(iv)....................................................................................................

....10,11 10 C.F.R. § 2.309(f)(1)(v).....................................................................................................

....10,11 10 C.F.R. § 2.309(f)(1)(vi)....................................................................................................

....10,11 10 C.F.R. § 2.309(f)(2)........................................................................................................

.....10,11 10 C.F.R. § 2.309(f)(2)(i).....................................................................................................

..........12 10 C.F.R. § 2.311(a)...........................................................................................................

..............1 iv 10 C.F.R. § 2.326..............................................................................................................

.........4,7,9 10 C.F.R. § 2.326(a)...........................................................................................................

............10 10 C.F.R. § 2.326(b)...........................................................................................................

........7,10 10 C.F.R. § 2.341(c)(2)........................................................................................................

............1 73 Fed. Reg. 49,222 (Aug. 20, 2008)...............................................................................................3 v

November 17, 2008 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of ) Docket No. 50-426-OLA Dominion Nuclear Connecticut, Inc. ) (Millstone Nuclear Power Station, Unit 3) ) ASLBP No. 08-862-01-OLA ) DOMINION NUCLEAR CONNECTICUT'S BRIEF IN OPPOSITION TO APPEAL OF CONNECTICUT COALITION AGAINST MILLSTONE AND NANCY BURTON Pursuant to 10 C.F.R. §§ 2.311(a) and 2.341(c)(2), Dominion Nuclear Connecticut, Inc. ("Dominion") submits this Brief in opposition to the appeal filed by the Connecticut Coalition Against Millstone and Nancy Burton ("Petitioners") in the terminated Millstone Nuclear Power Station, Unit 3 ("Millstone Unit 3" or "MPS3") power uprate proceeding.

1 Petitioners seek review of the Atomic Safety and Licensing Board's ("Board") October 27, 2008 Memorandum and Order 2 denying Petitioners' motions to file new or amended contentions.

3 The Board

1 Notice of Appeal (Nov. 6, 2008) ("Pet. Br."). Petitioners did not serve their notice of appeal in accordance with the NRC electronic filing rules but instead sought "a waiver of the NRC's E-filing requirements of this document insofar as they presently lack computer capability to achieve E-filing functionality." Pet. Br. at 1. This is yet another instance of Petitioners failing to abide by the NRC electronic filing requirements despite being admonished by both the Commission and the Atomic Safety and Licensing Board that such a failure is sufficient cause for dismissal of Petitioners' petition or appeal. See, e.g., Dominion Nuclear Connecticut, Inc. (Millstone Power Station, Unit 3), CLI-08-17, 68 N.R.C. __ (Aug. 13, 2008) ("CLI-08-17"), slip op. at 5.

2 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit 3), Memorandum and Order (Ruling on Motions to File New or Amended Contentions) (Oct. 27, 2008) ("Memorandum and Order").

3 Connecticut Coalition Against Millstone and Nancy Burton New Contentions and Request for Leave to Submit New Contentions Based on Receipt of New information and Request for Continuing Waiver of E-Filing Requirements (Aug. 27, 2008) ("August 27 Motion"); Connecticut Coalition Against Millstone and Nancy Burton Revised Motion for Leave to File their New and/or Amended Contentions Based on Receipt of New Information and for Continuing Waiver of Electronic Filing (Aug. 7, 2008) ("August 7 Motion"); Connecticut Coalition Against Millstone and Nancy Burton Motion for Leave to File Their "Motion for Leave to File New and/or Amended Contentions Based on Receipt of New Information" Dated July 18, 2008, Nunc Pro Tunc, and for Continuing Waiver of Electronic Filing (July 31, 2008) ("July 31 Motion"); Connecticut Coalition Against Millstone and Nancy Burton Motion for Leave to File and/or Amended Contentions Based on Receipt of New Information (July 18, 2008) ("July 18 Motion").

properly denied the motions (and, particularl y, the August 27 Motion that sought admission of two new contentions) because: (1) the proceeding to approve the MPS3 uprate has been terminated; (2) Petitioners failed to make, or satisfy the requirements for granting, a motion to reopen a closed proceeding; (3) Petitioners failed to address or satisfy the requirements for late intervention; (4) Petitioners failed to satisfy the requirements for filing contentions based on new information; and (5) Petitioners failed to demonstrate that their proffered contentions meet the requirements for admissible contentions in Commission proceedings. For those reasons, and because the Petitioners fail to identify any errors of law or fact or abuses of discretion on the part of the Board, the Commission should affi rm the Board's October 27, 2008 Memorandum and Order and dismiss Petitioners' appeal. STATEMENT OF THE CASE On July 13, 2007, Dominion submitted a license amendment request seeking approval of amendments to Operating License No. NPF-49 for Millstone Unit 3 to increase the maximum authorized power level from 3411 megawatts thermal ("MWt") to 3650 MWt, 4 approximately a 7% increase. On March 17, 2008, Petitioners subm itted a Petition to Intervene and Request for Hearing, proposing nine contentions.

5 Both Dominion and the NRC Staff ("Staff") opposed the petition.6 On June 4, 2008, the Board issued a Memorandum and Order denying the Petition

4 The License Amendment Request ("LAR") is available in ADAMS at Accession No. ML072000386. The LAR was supplemented on July 13, September 12, November 19, December 13, and December 17, 2007.

5 Connecticut Coalition Against Millstone and Nancy Burton Petition to Intervene and Request for Hearing (Mar. 17, 2008) ("Petition").

6 Dominion Nuclear Connecticut's Response to Connecticut Coalition Against Millstone and Nancy Burton's Petition to Intervene and Request for Hearing (Apr. 11, 2008); NRC Staff Answer to Request to Intervene and for Hearing of the Connecticut Coalition Against Millstone and Nancy Burton (Apr. 11, 2008).

2 and terminating the proceeding on the grounds that Petitioners had not submitted any admissible contentions.

7 Petitioners filed an appeal with the Commission on June 16, 2008.

8 On July 18, 2008, after the Board had dismissed the Petition and terminated the uprate proceeding, Petitioners filed their July 18 Motion, seeking leave to file (at some later date) new "prospective" contentions. On July 21, 2008, the Office of the Secretary e-mailed Petitioners to inform them that the July 18 Motion was not acc epted or docketed because the filing failed to meet e-filing procedural requirements.

9 Petitioners then filed th eir July 31 Motion, requesting a waiver of e-filing requirements and asking that the Board consid er their July 18 Motion nunc pro tunc. On August 7, 2008, Petitioners filed yet another motion for leave to file new or amended contentions. Similar to the July 7 Motion, the August 7 Motion also requ ested leave to file "prospective" contentions at a later date. Although these motions were directed to th e Board, the Board no longer had jurisdiction because it had terminated the proceeding and the matter was pending before the Commission on appeal. On August 11, 2008, the Secretary of the Commission referred the July 31 Motion and any further pleadings related to it to the Board.

10 On August 12, 2008, the Staff approved Domi nion's LAR and issued the license amendment.

11 On August 13, 2008, the Commission denied Petitioners' appeal.

12 7 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Unit No. 3), Memorandum and Order (Ruling on Petition to Intervene and Request for Hearing), LBP-08-09, 67 N.R.C. __ (June 4, 2008) ("LBP-08-09"). 8 Notice of Appeal (June 16, 2008).

9 E-mail from Emile Julian, Assistant for Rulemakings and Adjudications, Office of the Secretary, Nuclear Regulatory Commission, to Nancy Burton (July 21, 2008, 3:48 PM EDT).

10 Commission Secretary's Order (Aug. 11, 2008) (unpublished).

11 Dominion Nuclear Connecticut, Inc.; Notice of Issuance of Amendment to Facility Operating License and Final Determination of No Significant Hazards Consideration, 73 Fed. Reg. 49,222 (Aug. 20, 2008).

12 See CLI-08-17.

3 On August 14, 2008, the Board requested legal briefs from Petitioners, Dominion, and the Staff regarding whether the record needed to be reopened to accept new or amended contentions.

13 Dominion and the Staff filed briefs arguing that the record wa s closed, and that Petitioners would have to sati sfy the standards of 10 C.F.R. § 2.326 to reopen the record.

14 Petitioners asserted without citation to supporting authority that a motion to reopen was not necessary.

15On August 27, 2008, after the Commission had denied Petitioners' appeal and after the Staff had issued the license amendment, Petitioners filed yet another moti on with the Board. The August 27 Motion requested leave to adm it two specified new contentions. On October 27, 2008, the Board issued its Memorandum and Order denying all of Petitioners' motions. Petitione rs filed their Notice of Appeal on November 6, 2008. Although Petitioners do not specify which of the Board's rulings they seek to appeal, only the Board's

denial of the August 27 Motion is properly at issue, as it is through that motion that Petitioners sought admission of new contentions. ARGUMENT I. PETITIONERS FAIL TO IDENTIFY ERRORS IN THE BOARD'S DECISION At the outset, the Commission should affirm the Board's Memorandum and Order because Petitioners have failed to identify, let alone demonstrate, any specific error of law or

13 Licensing Board Order (Requesting Legal Briefs from CCAM, Dominion, and the NRC Staff) (Aug. 14, 2008) (unpublished).

14 NRC Staff's Initial Legal Briefing on Board's Questions (Aug. 25, 2008) at 4; Dominion Nuclear Connecticut's Brief in Response to Connecticut Coalition Against Millstone and Nancy Burton Revised Motion for Leave to File New Contentions (Aug. 25, 2008) at 4; NRC Staff's Reply to Petitioner's and Applicant's Legal Briefing on Board's Questions (Sept. 2, 2008) at 4; Dominion Nuclear Connecticut's Reply to Connecticut Coalition Against Millstone and Nancy Burton's Response to Board's Request for Legal Briefs (Sept. 2, 2008) at 2.

15 Connecticut Coalition Against Millstone and Nancy Burton's Response to Atomic Safety and Licensing Board Panel's Memorandum and Order Dated August 14, 2008 Requesting Legal Briefs and Request for Continuing Waiver of E-filing Requirements (Aug. 25, 2008) at 2-4 ("Petitioners' August 25 Brief").

4 fact, procedural error, or abuse of discretion by the Board. Instead, Petitioners primarily repeat arguments from prior pleadings, particularly Pe titioners' August 25 Brief, which is duplicated almost verbatim throughout Peti tioners' Notice of Appeal.

16Licensing board rulings are affirmed where the "brief on appeal points to no error of law or abuse of discretion that might serve as grounds for reversal of the Board's decision." Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage In stallation), CLI-00-21, 52 N.R.C. 261, 265 (2000) (citation omitted); Domi nion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3), CLI-04-36, 60 N.R.C. 631, 637 (2004). A "failure to illuminate the bases" for an exception to the Board's decision is "sufficient grounds to reject it as a basis for appeal." Advanced Medical Systems, Inc. (One Factory Row, Geneva, Ohio 44041), CLI-94-6, 39 N.R.C. 285, 297 (1994), aff'd , Advanced Med. Sys., Inc. v. NRC , 61 F.3d 903 (6th Cir. 1995) (Table). In that decision, the Commission stated:

The appellant bears the res ponsibility of clearly iden tifying the errors in the decision below and ensuring that its brief contains sufficient information and cogent argument to alert the other parties and the Commission to the precise nature of and support for the appellant's claims. 39 N.R.C. at 297, citing General Public Utilities Nuclear Corp. (Three Mile Island Nuclear Station, Unit 2), ALAB-926, 31 N.R.C. 1, 9 (1990) and Wisconsin Electric Power Co. (Point Beach Nuclear Plant, Units 1 and 2), ALAB-666, 15 N.R.C. 277, 278 (1982). "A mere recitation of an appellant's prior positions in a proceeding or a statement of his or her general disagreement with a decision's result 'is no substitute for a brief that identifies and explains the errors of the Licensing Board in the order below.'" Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Unit 2), CLI-93-10, 37 N.R.C. 192, 198 (1993) (footnote omitted).

16 Compare Pet. Br. at 4-5 with Petitioners' August 25 Brief at 2-3; Pet. Br. at 5 with Petitioners' August 25 Brief at 3-4; Pet. Br. at 6 with Petitioners' August 25 Brief at 4.

5 Petitioners' appeal only contains conclusory statements alleging errors on the part of the Board, with no authority cited in support of the accusations. See, e.g., Pet. Br. at 3, 7, 8. Not once do Petitioners' offer any legal authority to show that the Board's "interpretations" of the NRC regulations and case law are incorrect.

II. THE BOARD'S DENIAL OF PETITI ONERS' MOTIONS WAS CORRECT The Board denied Petitioners' August 27 Moti on for several reasons, each of which was correct and each of which inde pendently serves as sufficient grounds for denying the motion.

A. THE PROCEEDING HAS TERMINATED AND CANNOT BE REOPENED The Board ruled that the adjudicatory proceeding on the LAR had terminated once the license amendment had been issued and could not be reopened. Memorandum and Order, slip op. at 11. That ruling was clearly correct. There was no proceeding in which to intervene when Petitioners filed the August 27 Motion. Prio r to that date, the Commission had denied Petitioners' appeal and the Staff had issued the license amendment. The Commission has previously held that, when the Staff issues a license or amendment, the proceeding is terminated and cannot be reopened. See Texas Utilities Electric Co. (Comanche Peak Steam Electric Station, Units 1 and 2), CLI-92-12, 36 N.R.C. 62, 67 (1992). As the Boar d explained in denying the August 27 Motion, in order to challenge the license amendment after it was issued, Petitioners had to file a petition under 10 C.F.R. § 2.206 to modify, suspend, or revoke the MPS3 license. Memorandum and Order, slip op. at 11-12 (citing Comanche Peak , CLI-92-12, 36 N.R.C. at 67). For this reason, the Boar d correctly denied the August 27 Motion. The Commission should affirm the Board's ruling.

6 B. PETITIONERS FAILED TO MEET THE CRITERIA FOR A MOTION TO REOPEN UNDER 10 C.F.R. § 2.326

1. A Motion to Reopen Would Have Been Required The Board was also correct in denying Petitioners' August 27 Motion to admit new contentions because the record of the uprate proceeding was closed at that time and could not be reopened save through a motion to reopen under 10 C.F.R. § 2.326, which Petitioners failed to make or support. When the Board denied Petitioners' initial Petition to Intervene, the Board held that the proceeding was terminated. LBP-08-09, slip op. at 34. The Commission affirmed the Board's holding, CLI-08-17, and NRC case law supports it: the record is considered closed where the petitioners or intervenors have been dismissed. For example, in a prior proceeding also involving Petitioner CCAM, the Commissi on applied the factors in 10 C.F.R. § 2.326(a) when CCAM sought to introduce new contentions after its initial pe tition to intervene had been denied. See Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Po wer Station, Units 2 and 3), CLI-06-4, 63 N.R.C. 32, 35, 37 (2006). Petitioners concede that the Commission's issuance of a decision denying an appeal constitutes a final judgment that closes the record of a proceeding. Pet. Br. at 4. They argue, however, that the Secretary's referral to the Board of Petitioners' July 31 Motion somehow served to keep the record open. Id. Petitioners provi de no legal authority, and cite no case or regulation for this argument. Petitioners' argument is groundless. The Commission referred Petitioners' July 31 Motion to the Board on August 11, 2008. It was not until two days later, on August 13, 2008, that the Commission denied Petitioners' appeal. Thus, Petitioners' argument that the Commission's August 11 orde r served to hold in abeyance an order that had not yet been issued defies logic. Had the Commission intended such an effect, it would have manifested its 7

intent in either the Secretary's referral or in the August 13 denial of Petitioners' appeal. Both documents are silent in this respect.

2. Petitioners Failed to Satisfy th e Requisite Standards for Late Intervention and for Reopening a Closed Hearing Petitioners also argue that a motion to reopen was unnecessary because there was no hearing, so Petitioners were not pa rties, and only parties can move to reopen the record. Pet. Br. at 7-8. That argument, however, only exposes an other fatal flaw in Pe titioners' appeal. A non-party that desires to reopen a closed proceeding must satisfy both the requirements for late intervention (and thus become a party) and the standards to reopen a closed proceeding. Texas Utilities Electric Co. (Comanche Peak Steam Electric Sta tion, Unit 2), CLI-93-01, 37 N.R.C. 1, 3 (1993); Texas Utilities Electric Co. (Comanche Peak Steam Elect ric Station, Unit 2), CLI-93-4, 37 N.R.C. 156, 161 (1993) ("when the record has been closed, as in th is case, a potential intevenor must 'satisfy [both] the late interventi on and reopening criteria'"). Here Petitioners did neither. Petitioners have not addressed the criteria for late intervention or to reopen the proceeding. The standards for late intervention are found at 10 C.F.R. § 2.309(c), 17 and failure

17 10 C.F.R. § 2.309(c) provides: (c) Nontimely filings. (1) Nontimely requests and/or petitions and contentions will not be entertained absent a determination by the Commission, the presiding officer or the Atomic Safety and Licensing Board designated to rule on the request and/or petition and contentions that the request and/or petition should be granted and/or the contentions should be admitted based upon a balancing of the following factors to the extent that they apply to the particular nontimely filing:

(i) Good cause, if any, for the failure to file on time; (ii) The nature of the requestor's/petitioner's right under the Act to be made a party to the proceeding; (iii) The nature and extent of the requestor's/petitioner's property, financial or other interest in the proceeding; (iv) The possible effect of any order that may be entered in the proceeding on the requestor's/petitioner's interest; (v) The availability of other means whereby the requestor's/petitioner's interest will be protected; (vi) The extent to which the requestor's/petitioner's interests will be represented by existing parties; (vii) The extent to which the requestor's/petitioner's participation will broaden the issues or delay the proceeding; and (viii) The extent to which the requestor's/petitioner's participation may reasonably be expected to assist in developing a sound record.

8 to satisfy these was sufficient grounds for deni al of the August 27 Motion, and the Board so pointed out. Memorandum and Order, slip op. at 12.

18 As the Commission has explained to these Petitioners in the same circumstances during a prior proceeding, Quite simply, if a party seeks to reopen a closed record and, in the process raises an issue that was not an admitted contention in the initial proceeding, it must demonstrate that raising this issue satisfies the requirements for a nontimely or "late-filed" contention. As with all other procedural requirements for reopening a closed proceeding, CCAM completely ignores this requirement. . . . Our procedural rules exist for a reason. We cannot consid er a last-second reopening of an adjudication and a restart of Licensing Board proceedings based on a pleading that is defective on its face.

Millstone, CLI-06-4, 63 N.R.C. at 38. Here again, Petitioners have completely ignored the criteria for late intervention.

19 Petitioners have similarly ignored the criteria for reopening a closed record at 10 C.F.R.

§ 2.326.20 Neither Petitioners' August 27 Motion nor any of their previous motions address the

(2) The requestor/petitioner shall address the factors in paragraphs (c)(1)(i) through (c)(1)(viii) of this section in its nontimely filing.

18 See Baltimore Gas & Electric Co. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2), CLI-98-25, 48 N.R.C. 325, 347 (1998) ("[T]he Commission has itself summarily dismissed petitioners who failed to address the five factors for a late-filed petition.") (citation omitted); Boston Edison Co. (Pilgrim Nuclear Power Station), ALAB-816, 22 N.R.C. 461, 465-66 (1985) ("[G]iven its failure even to address the . . . lateness factors, [a] [late] intervention petition [is] correctly denied because it [is] untimely."). "The burden of persuasion on the lateness factors is on the tardy petitioner and . . . in order to discharge that burden, the petitioner must come to grips with those factors in the petition itself." Id. at 466 (footnote omitted). "Late petitioners properly have a substantial burden in justifying their tardiness." Nuclear Fuel Services, Inc. (West Valley Reprocessing Plant), CLI-75-4, 1 N.R.C. 273, 275 (1975). "[T]he late petitioner must address each of [the] five factors and affirmatively demonstrate that, on balance, they favor permitting his tardy admission to the proceeding." Duke Power Co. (Perkins Nuclear Station, Units 1, 2 and 3), ALAB-615, 12 N.R.C. 350, 352 (1980) (quoting Nuclear Fuel Services, CLI-75-4, supra). 19 Most recently, the Commission has reiterated that "where a motion to reopen proposes a contention not previously part of the proceeding, the requirements for late filed contentions set out in 10 C.F.R. § 2.309(c) must also be satisfied. Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-08-28, 68 N.R.C. __ (Nov. 6, 2008), slip op. at 13.

20 10 C.F.R. § 2.326 requires: (a) A motion to reopen a closed record to consider additional evidence will not be granted unless the following criteria are satisfied:

(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.

9 criteria in 10 C.F.R. § 2.326(a) or include affidavits to demonstrate that those criteria are met, as required by 10 C.F.R. § 2.326(b). Oyster Creek , CLI-08-28, slip op. at 23. Thus, even if - contrary to fact - there were still a proceeding in which Petitioners could intervene (which, as previously discussed, there is no t), Petitioners' failure to even acknowledge, let alone address or satisfy, the criteria for late interventions and the criteria for reopening the record makes the Board's denial of Petitioners' August 27 Motion cl early correct.

C. PETITIONERS FAILED TO MEET THE CRITERIA FOR NEW OR AMENDED CONTENTIONS UNDER 10 C.F.R. 2.309(f)(2) AND THE CONTENTION ADMISSIBILITY CRITERIA OF 10 C.F.R. 2.309(f)(1)(i)-(vi) Even if the proceeding had not been terminated, and even if Petitioners had addressed and satisfied the criteria for late intervention and for reopening the closed record, the Board would still have been correct in denying the August 27 Motion because Petitioners' proffered contentions failed to satisfy the requirements for contention admissibility in Commission proceedings. On appeal, Petitioners argue that "without citing to legal auth ority, the Panel has burdened the petitioners with having to . . . demonstrate contention admissibility (10 C.F.R. §§ 2.309(f)(1)(i)-(vi)) prior to filing new contentions. The regulations as written do not require that a petitioner do so." Pet. Br. at 7. This argument simply ignores the regulations in 10 C.F.R.

(b) The motion must be accompanied by affidavits that set forth the factual and/or technical bases for the movant's claim that the criteria of paragraph (a) of this section have been satisfied. Affidavits must be given by competent individuals with knowledge of the facts alleged, or by experts in the disciplines appropriate to the issues raised. Evidence contained in affidavits must meet the admissibility standards of this subpart. Each of the criteria must be separately addressed, with a specific explanation of why it has been met. When multiple allegations are involved, the movant must identify with particularity each issue it seeks to litigate and specify the factual and/or technical bases which it believes support the claim that this issue meets the criteria in paragraph (a) of this section.

10

§§ 2.309(f)(1)(i)-(vi), which provide the criteria for admissibility of any proffered contention. Petitioners do not seek to demonstrate that their new contentions meet these criteria. Further, under 10 C.F.R. § 2.309(f)(2) (which Petitioners acknowledge applies to their new contentions), new or amended contentions must show that: (i) The information upon which the amende d or new contention is based was not previously available; (ii) The information upon which the ame nded 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.

Petitioners fail to address these standards at al l in the August 27 Motion.

On appeal, Petitioners argue that they do address these standards in the August 7 Motion.

Pet. Br. at 7. The August 7 Motion, however, refers only to hypothetical, "prospective" contentions, and merely asserts in one sentence that Petitioners m eet the criteria of 10 C.F.R.

§ 2.309(f)(2) without providing any support for that claim.

21 For the first time on appeal, Petitioners attempt to show that their contentions satisfy the 10 C.F.R. § 2.309(f)(2) criteria. Pet. Br. at 5-6. It is well established that a petitioner may not make new arguments for the first time on appeal. See Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-04-22, 60 N.R.C. 125, 140 (2004); Hydro Resources, Inc.

(2929 Coors Road, Suite 101, Albuquerque, NM 87120), CLI-00-8, 51 N.R.C. 227, 243 (2000); Yankee Atomic Electric Co. (Yankee Nuclear Power Stati on), CLI-96-7, 43 N.R.C. 235, 260 & n.19 (1996). Even if such arguments were allowed, they fail.

Petitioners' new Contention 1 states that "[t]emperature spikes in the hot legs of the Millstone 3 reactor - and the use of a new 4-second filter - present critical new and unreviewed

21 In addition, only the first of the two new contentions raised in the August 27 Motion is identified as a "prospective" contention in the August 7 Motion.

11 safety issues not addressed by the application."

August 27 Motion at 2. The information that Petitioners contend is new - that temperature sp ikes were observed in the hot legs and that Dominion planned to implement a four-second filter to address the spikes -

is actually not new, but has been available in the LAR since its submittal almost a year and a half ago. See LAR, Attachment 5, SPU Licensing Report (ADAMS Accession No. ML072000400) at 2.4-10. As the Board explained, "[a]lthough discussed at the ACRS meeting, this is not new information merely because CCAM was not aware of it earlier." October 27 Order at 13. As the information upon which Contention 1 is based is not new, but instead has been available to Petitioners since July 2007, Contention 1 fails to satisfy the criterion in 10 C.F.R. § 2.309(f)(2)(i) that the information upon which the contention is based "w as not previously available."

Petitioners' new Contention 2 st ates that "[t]he NRC's review of the Millstone Unit 3 uprate application does not comply with mandatory legal standards set forth in the NRC's

'Review Standard for Extended Power Uprates.'"

August 27 Motion at 11. There is nothing "new" about this contention - as the Board puts it, Contention 2 "is essentially a repackaged original Contention 6, which this Board and the Commission have al ready rejected." Memorandum and Order at 14 (citing LBP-08-09, slip op. at 27-28); CLI-08-17, slip op. at 13-14). The basis for Petitioners' claim that this contention is new is a quotation from the ACRS

transcript regarding analysis that the NRC Staff conducted, or did not conduct, during its review of the LAR. See August 27 Motion at 11 & n.7; Declar ation of Arnold Gundersen Supporting Connecticut Coalition Against Mi llstone in its Petition for Late Filed Contentions Due to New Information (Aug. 26, 2008) at ¶¶ 14.1-14.7. Whethe r information on the NRC Staff's review is new or not new is irrelevant, because such information is outside the scope of this proceeding. It is well established that a licensing proceeding is not the proper forum for challenging the NRC 12 Staff's regulatory review process. See, e.g., Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2, and 3), CLI-99-11, 49 N.R.C.

328, 334 (1999). Thus, Contention 2 also fails to satisfy the criteria for new or amended contentions. CONCLUSION For the reasons stated above, the Commission should affirm the Board's Memorandum and Order and deny Petitioners' appeal. Respectfully Submitted, /Signed electronically by Matias F. Travieso-Diaz/

David R. Lewis Matias F. Travieso-Diaz Stefanie M. Nelson PILLSBURY WINTHROP SHAW PITTMAN LLP 2300 N Street, NW

Washington, DC 20037-1122 (202) 663-8000 Lillian M. Cuoco Senior Counsel Dominion Resources Services, Inc.

120 Tredegar Street, RS-2 Richmond, VA 23219 (804) 819-2684 Counsel for Dominion Nucl ear Connecticut, Inc.

Dated: November 17, 2008 13 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION Before the Commission In the Matter of ) ) Dominion Nuclear Connecticut, Inc. ) Docket No. 50-426-OLA ) (Millstone Nuclear Power Station, Unit 3) ) ASLB No. 08-862-01-OLA

) CERTIFICATE OF SERVICE I hereby certify that copies of "Dominion Nuclear Connecticut's Brief in Opposition to Appeal of Connecticut Coalition Against Mill stone and Nancy Burton" was provided to the Electronic Information Exchange for service to those individuals on the service list in this proceeding, reproduced below, this 17th day of November 2008.

Hon. Dale E. Klein Chairman U.S. Nuclear Regulatory Commission Washington, DC 20555 Hon. Kristine L. Svinicki Commissioner U.S. Nuclear Regulatory Commission Washington, DC 20555 Hon. Peter B. Lyons Commissioner U.S. Nuclear Regulatory Commission Washington, DC 20555 Hon. Gregory B. Jaczko Commissioner U.S. Nuclear Regulatory Commission Washington, DC 20555

  • Secretary Att'n: Rulemakings and Adjudications Staff

Mail Stop O-16 C1

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 secy@nrc.gov , hearingdocket@nrc.gov

  • Office of Commission Appellate

Adjudication

Mail Stop O-16 C1

U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 OCAAMAIL@NRC.GOV

  • Administrative Judge William J. Froehlich, Chair Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 wjf1@nrc.gov
  • Administrative Judge Dr. Paul B. Abramson Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 pba@nrc.gov
  • Administrative Judge Dr. Michael F. Kennedy Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 mfk2@nrc.gov
  • Nancy Burton 147 Cross Highway Redding Ridge, CT 06876 NancyBurtonCT@aol.com
  • David Roth, Esq.

Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 E-mail: david.roth@nrc.gov

  • Lloyd Subin, Esq.

Office of the General Counsel U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 lbs3@nrc.gov

/Signed electronically by Matias F. Travieso-Diaz/ Matias F. Travieso-Diaz 2

Retrieved from "https://kanterella.com/w/index.php?title=ML083220256&oldid=1807173"