ML111220242

Tennessee Valley Authority'S Answer in Opposition to Emergency Petition to Suspend Licensing Proceedings

ML111220242
Person / Time
Site:	Watts Bar
Issue date:	05/02/2011
From:	Bessette P, Chandler C, Frantz S, Sutton K, Vance S, Vigluicci E Morgan, Morgan, Lewis & Bockius, LLP, Tennessee Valley Authority
To:	NRC/OCM
SECY RAS
References
RAS 20070, 50-391-OL, ASLBP 09-893-01-OL-BD01
Download: ML111220242 (25)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of )

) Docket No. 50-391-OL TENNESSEE VALLEY AUTHORITY )

) May 2, 2011 (Watts Bar Nuclear Plant Unit 2) )

)

)

In the Matter of )

) Docket Nos. 52-014-COL & 52-015-COL TENNESSEE VALLEY AUTHORITY )

) May 2, 2011 (Bellefonte Nuclear Power Plant, )

Units 3 and 4) )

)

TENNESSEE VALLEY AUTHORITYS ANSWER IN OPPOSITION TO EMERGENCY PETITION TO SUSPEND LICENSING PROCEEDINGS Edward J. Vigluicci, Esq. Paul M. Bessette, Esq.

Christopher C. Chandler, Esq. Steven P. Frantz, Esq.

Scott A. Vance, Esq. Kathryn M. Sutton, Esq.

Office of the General Counsel Morgan, Lewis & Bockius LLP Tennessee Valley Authority 1111 Pennsylvania Avenue, N.W.

400 W. Summit Hill Drive, WT 6A-K Washington, D.C. 20004 Knoxville, TN 37902 Phone: 202-739-3000 Phone: 865-632-7317 Fax: 202-739-3001 Fax: 865-632-6147 E-mail: pbessette@morganlewis.com E-mail: ejvigluicci@tva.gov E-mail: sfrantz@morganlewis.com E-mail: ccchandler0@tva.gov E-mail: ksutton@morganlewis.com E-mail: savance@tva.gov Counsel for TVA Counsel for TVA DB1/ 67208673.1 1

TABLE OF CONTENTS Pages I. INTRODUCTION ....................................................................................................... 1 II. BACKGROUND ......................................................................................................... 3 III. LEGAL STANDARDS ............................................................................................... 6 A. Procedural Requirements for Suspension of Proceedings ..................................... 6 B. Substantive Standards for Suspension of Proceedings ........................................... 7 IV. ARGUMENT ............................................................................................................... 8 A. The Petition Should Be Summarily Dismissed on Procedural Grounds ................ 8 B. The Petition Provides No Basis for Suspending the Proceedings, Requiring Supplemental NEPA Documentation, or Establishing Special Procedures ........... 9

1. Petitioners Do Not Provide a Sufficient Basis for Suspending the Proceedings ...................................................................................................... 9

a. Moving Forward with the Proceedings Poses No Immediate Threat to Public Health and Safety .......................................................... 10

b. Moving Forward with the Proceedings Would Not Prove to Be an Obstacle to Fair and Efficient Decisionmaking ............................. 12

c. Moving Forward with the Proceedings Will Not Hamper Implementation of Any Potential Rule or Policy Changes ................................................ 14

2. Petitioners Are Incorrect in Asserting that Supplemental NEPA Documentation Is Required ........................................................................... 15

3. Petitioners Do Not Provide a Sufficient Basis for Changing Well-Established Procedural Regulations .................................................................................. 18 V. CONCLUSION .......................................................................................................... 20 DB1/ 67208673.1 1

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of )

) Docket No. 50-391-OL TENNESSEE VALLEY AUTHORITY )

) May 2, 2011 (Watts Bar Nuclear Plant Unit 2) )

)

)

In the Matter of )

) Docket Nos. 52-014-COL & 52-015-COL TENNESSEE VALLEY AUTHORITY )

) May 2, 2011 (Bellefonte Nuclear Power Plant, )

Units 3 and 4) )

)

TENNESSEE VALLEY AUTHORITYS ANSWER IN OPPOSITION TO EMERGENCY PETITION TO SUSPEND LICENSING PROCEEDINGS I. INTRODUCTION Beginning on April 14, 2011, and continuing through April 21, 2011, several individuals and organizations filed a series of documents and corrected documents on the dockets of several ongoing licensing proceedings, all seeking to suspend those proceedings. As part of that effort, on April 14, 2011, counsel for the Southern Alliance for Clean Energy (SACE) submitted, apparently on behalf of SACE and various other organizations (collectively, Petitioners) a Petition to Suspend Licensing Decisions Pending Investigation of Lessons Learned from Fukushima Daiichi Nuclear Power Station Accident (Petition) to the U.S. Nuclear Regulatory DB1/ 67208673.1 1

Commission (NRC or Commission) in the above-captioned Watts Bar Nuclear Plant Unit 2 (Watts Bar 2) operating license (OL) proceeding.1 Four days later, on April 18, 2011, the representative of the Blue Ridge Environmental Defense League (BREDL) and the Bellefonte Efficiency and Sustainability Team (BEST) submitted a substantially similar, but corrected version of the Petition in the above-captioned combined license (COL) proceeding for Bellefonte Nuclear Power Plant, Units 3 and 4 (Bellefonte 3 and 4).2 Also on April 18, 2011, counsel for SACE filed an Amendment and Errata to the Petition and the corrected version of the Petition on the Watts Bar 2 docket.3 Then, on April 19, SACE filed on the Watts Bar 2 docket the Declaration of Dr. Arjun Makhijani, purportedly in support of the Petition.4 As of this date, the Makhijani Declaration has not been filed in the Bellefonte 3 and 4 proceeding.

Tennessee Valley Authority (TVA) is filing this Answer with the Commission pursuant to 10 C.F.R. § 2.323(a) and the Commissioners Order dated April 19, 2011, in opposition to the 1

Emergency Petition to Suspend All Pending Reactor Licensing Decisions and Related Rulemaking Decisions Pending Investigation of Lessons Learned from Fukushima Daiichi Nuclear Power Station Accident (dated Apr. 14-18, 2011, but served in the Watts Bar 2 OL proceeding on Apr. 14, 2011).

2 Emergency Petition to Suspend All Pending Reactor Licensing Decisions and Related Rulemaking Decisions Pending Investigation of Lessons Learned from Fukushima Daiichi Nuclear Power Station Accident (dated Apr. 18, 2011) (corrected version). Unless otherwise noted, all citations in this Answer are to the corrected Petition.

3 Amendment and Errata to Emergency Petition to Suspend All Pending Reactor Licensing Decisions and Related Rulemaking Decisions Pending Investigation of Lessons Learned from Fukushima Daiichi Nuclear Power Station Accident (Apr. 18, 2011) (Amendment and Errata). Notably, the Amendment and Errata indicated that the corrected Petition deletes the construction permit (CP) proceeding for Bellefonte Nuclear Power Plant, Units 1 and 2, from the list of proceedings Petitioners seek to suspend. See id. at 3-4 (because the Bellefonte construction permit has issued, it should not have been included). Therefore, issues related to Bellefonte Units 1 and 2 are not addressed in this Answer.

4 Letter from D. Curran to the Commissioners, Watts Bar Unit 2 Operating License Proceeding (Apr. 19, 2011)

(enclosing Declaration of Dr. Arjun Makhijani in Support of Emergency Petition to Suspend all Pending Reactor Licensing Decisions and Relating Rulemaking Decisions Pending Investigation of Lessons Learned from Fukushima Daiichi Nuclear Power Station Accident (April 19, 2011) (Makhijani Declaration)).

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Petition.5 As discussed below, the Petition should be denied in its entirety because it not only fails to comply with basic procedural requirements, but also fails to demonstrate the requisite justification for the requested actions.6 II. BACKGROUND Watts Bar 2 is located in Rhea County, Tennessee.7 The NRC issued a CP for Watts Bar 2 in 1973.8 Following TVAs subsequent requests, the latest on May 8, 2008, the NRC extended the CP to March 31, 2013.9 In response to the Commissions May 1, 2009 Hearing Notice for the Watts Bar 2 OL proceeding, SACE (along with several other petitioners that were not admitted as parties to the proceeding) filed a petition to intervene.10 That petition proposed seven contentions, but only two were admitted.11 One contention remains in litigation, regarding 5

Petitioners bypassed the presiding Atomic Safety and Licensing Boards (Boards) by filing directly with the Commission. Although the Commission hasalbeit rarelyentertained similar requests in the past pursuant to its inherent supervisory authority of proceedings, such filings are discouraged. See AmerGen Energy Co.,

LLC (Oyster Creek Nuclear Generating Station), CLI-08-23, 68 NRC 461, 476 n.63 (2008); Pac. Gas & Elec.

Co. (Diablo Canyon Power Plant Indep. Spent Fuel Storage Installation), CLI-02-23, 56 NRC 230, 237 (2002);

Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), CLI-01-28, 54 NRC 393, 398 n.7 (2001). Given that the issues are before the Commission, and the Boards would not have authority to grant the relief requested, the Boards should not act on the Petition.

6 TVA addresses only Petitioners request to suspend the above-captioned proceedings because Petitioners request to suspend other proceedings is not cognizable in these individual adjudicatory proceedings. See Savannah River, CLI-01-28, 54 NRC at 399 n.9. Furthermore, most of the organizations joining the Petition have never filed a hearing request or sought permission to participate in these proceedings on any other basis.

Also, while BEST sought to intervene in the Bellefonte 3 and 4 COL proceeding, the Board denied their petition. Tenn. Valley Auth. (Bellefonte Nuclear Power Plant Units 3 & 4), LBP-08-16, 68 NRC 361, 373 (2008). Therefore, any request by the other organizations, including BEST, has no legitimate place in these proceedings and hereafter we refer only to SACE and BREDL as the Petitioners. See Diablo Canyon, CLI 23, 56 NRC at 235 n.6; Savannah River, CLI-01-28, 54 NRC at 398.

7 Tenn. Valley Auth. (Watts Bar Unit 2), LBP-09-26, 70 NRC 939, 945 (2009).

8 See Watts Bar Nuclear Plant; Notice of Issuance of Construction Permits, 38 Fed. Reg. 3001 (Jan. 31, 1973).

9 See In the Matter of Tennessee Valley Authority (Watts Bar Nuclear Plant, Unit 2); Order, 73 Fed. Reg.

39,995, 39,996 (July 11, 2008).

10 See Watts Bar, LBP-09-26, 70 NRC at 945-46.

11 See id. at 946.

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aquatic environmental impacts.12 In March 2011, the NRC Staff stated that it expects to issue the Final Supplemental Environmental Impact Statement (FSEIS) in the Watts Bar 2 OL proceeding in November 2011, and the Final Safety Evaluation Report (FSER) in September 2011.13 Therefore, the Watts Bar 2 OL proceeding is not expected to be completed until 2012, with operations to commence some time thereafter.

The Bellefonte site is located approximately six miles northeast of Scottsboro, Alabama.14 On October 30, 2007, TVA submitted a COL application for Bellefonte 3 and 4.

The NRC accepted the Application for docketing and published a Hearing Notice in the Federal Register on February 8, 2008.15 SACE, BREDL, and BEST jointly sought to intervene.16 The Board admitted four contentions, two involving the safety and environmental implications of the closure of the Barnwell, South Carolina low-level radioactive waste disposal facility, one involving the evaluation of aquatic impacts in the submitted Environmental Report and one regarding the projected costs of a new nuclear generation facility.17 The Board also admitted SACE and BREDL as parties to the proceeding, but not BEST.18 The two contentions concerning low-level radioactive waste were later dismissed by the Commission.19 Litigation 12 See id. at 988 (admitting aquatic impacts contention); Tenn. Valley Auth. (Watts Bar Unit 2), Licensing Board Memorandum and Order (Granting TVAs Unopposed Motion to Dismiss SACE Contention 1) at 2 (June 2, 2010) (unpublished) (holding contention regarding federal and state permits to be moot).

13 See NRC Staffs March 2011 Bimonthly Report Regarding the Schedule for Review of the Watts Bar Number 2 License Application (Mar. 1, 2011) (Staff Bimonthly Report), available at ADAMS Accession No. ML110601302.

14 Bellefonte, LBP-08-16, 68 NRC at 373.

15 See id. at 375.

16 See id.

17 See id. at 373-74.

18 See id.

19 See Tenn. Valley Auth. (Bellefonte Nuclear Power Plant Units 3 & 4), CLI-09-3, 69 NRC 68, 78 (2009).

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remains ongoing; however, the issuance of the schedule for the proceeding has been deferred pending a TVA decision on whether to complete Bellefonte Unit 1.20 As noted above, on April 14 and 18, 2011, Petitioners filed, directly with the Commission, the instant Petition requesting that the Commission take the following actions:

(1) suspend all decisions regarding the issuance of various reactor licenses, including various renewed operating licenses, COLs and OLs pending completion of the NRC Task Force evaluation of the agencys regulatory requirements, programs, and processes in light of the Fukushima Daiichi accident in Japan, following the March 11 earthquake and tsunami; (2) suspend all hearings on reactor-related or spent fuel-related issues identified for investigation in the Task Forces charter; (3) perform a National Environmental Policy Act (NEPA) analysis of whether the earthquake and Fukushima Daiichi accident constitute new and significant information that must be considered in an environmental impact statement (EIS);

(4) perform a safety analysis of the regulatory implications of the earthquake and Fukushima Daiichi accident; (5) establish procedures and a timetable for raising new issues relevant to the Fukushima Daiichi accident in pending licensing proceedings; (6) suspend all decisions and proceedings pending the outcome of any independent investigation of the Fukushima Daiichi accident; and (7) request that the President establish an independent investigation of the Fukushima Daiichi accident.21 As discussed further below, these various requests lack technical or regulatory basis and should be denied.

20 See Tenn. Valley Auth. (Bellefonte Nuclear Power Plant Units 3 & 4), Licensing Board Memorandum and Order (Procedure for Next Update Regarding Application Review Schedule) at 3 (Oct. 13, 2010)

(unpublished).

21 Petition at 1-3, 28-29.

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III. LEGAL STANDARDS A. Procedural Requirements for Suspension of Proceedings As an initial matter, the Petition does not comport with any of the specific forms of authorized pleading specified in the NRC Rules of Practice. The Commission has, however, provided some guidance through its rulings on somewhat similar petitions seeking suspension of proceedings. For example, following the September 11 terrorist attacks, the Commission determined that a petition requesting suspension of the Diablo Canyon independent spent fuel storage installation (ISFSI) proceeding, pending the Commissions comprehensive review of anti-terrorist measures at licensed facilities should be treated as a general motion under the Rules of Practice (then designated as 10 C.F.R. § 2.730, but now designated as 10 C.F.R. § 2.323).22 More recently, the Commission determined in its Oyster Creek decision that joint petitions filed in four license renewal proceedings requesting suspension of those proceedings pending requested revisions to the license renewal process should also be treated as general motions brought under 10 C.F.R. § 2.323.23 Barring further guidance, therefore, the Petition is most appropriately considered as a general motion under this regulation and is treated as such herein.

Two provisions of 10 C.F.R. § 2.323 are of particular relevance to the Commissions consideration of the Petition. First, motions must be made no later than 10 days after the occurrence or circumstance from which the motion arises.24 Second, a motion must be rejected 22 Diablo Canyon, CLI-02-23, 56 NRC at 237.

23 See Oyster Creek, CLI-08-23, 68 NRC at 484-85.

24 10 C.F.R. § 2.323(a).

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if it does not include a certification that the moving party has made a sincere effort to contact other parties in the proceeding and resolve the issues raised in the motion.25 B. Substantive Standards for Suspension of Proceedings As a threshold matter, the Commission considers suspension of licensing proceedings a drastic action that is not warranted absent immediate threats to public health and safety.26 Following the September 11 terrorist attacks, the Commission considered a number of requests to suspend proceedings or hold them in abeyance in the exercise of the Commissions inherent supervisory authority pending the Commissions comprehensive review of measures to protect against terrorism.27 In the Private Fuel Storage ISFSI proceeding, the leading case on the subject, the Commission set forth the standard for requests to suspend or hold a proceeding in abeyance and considered whether moving forward with the adjudication (1) will jeopardize the public health and safety; (2) prove an obstacle to fair and efficient decision-making; or (3) prevent appropriate implementation of any pertinent rule or policy changes that might emerge from [the Commissions] important ongoing evaluation of its terrorism related policies.28 As explained below, the instant Petition meets none of these standards.

25 Id. § 2.323(b).

26 Vt. Yankee Nuclear Power Corp. (Vt. Yankee Nuclear Power Station), CLI-00-20, 52 NRC 151, 173-74 (2000)

(refusing request to suspend all license transfer proceedings involving a particular transferee while the Commission examined effects of ownership by limited liability companies).

27 See Diablo Canyon, CLI-02-23, 56 NRC at 236-37; Savannah River, CLI-01-28, 54 NRC at 398-99; Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-01-27, 54 NRC 385, 390-91 (2001); Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-01-26, 54 NRC 376, 377 (2001).

28 Private Fuel Storage, CLI-01-26, 54 NRC at 380.

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IV. ARGUMENT A. The Petition Should Be Summarily Dismissed on Procedural Grounds Turning first to procedural matters, the Commission should dismiss the Petition because Petitioners failed to comply with several applicable requirements, each of which constitutes an adequate independent reason for dismissal.

First, a motion must be made no later than 10 days after the occurrence or circumstance from which the motion arises.29 The Petition cites a number of potential trigger events, including the March 11 Tohoku-Taiheiyou-Oki earthquake and resulting tsunami; the March 18 issuance of NRC Information Notice 2011-05, Tohoku-Taiheiyou-Oki Earthquake Effects on Japanese Nuclear Power Plants; the Commissions March 23 approval of an action plan to review the accident at the Fukushima Daiichi facility; and the April 1 release of the charter for the Task Force responsible for assessing NRC regulatory requirements, programs, and processes in view of the Fukushima Daiichi accident.30 All of these events occurred before the 10 days preceding the filing of the Petition.

Furthermore, although the Petitioners attach an April 12 New York Times article to their filing to show that information about the Fukushima Daiichi accident continues to change and be augmented in the process, that fact was clear and widely acknowledged well before April 12 and cannot be considered in any way as new circumstances giving rise to the relief requested in the 29 10 C.F.R. § 2.323(a).

30 See NRC Information Notice 2011-05, Tohoku-Taiheiyou-Oki Earthquake Effects On Japanese Nuclear Power Plants (Mar. 18, 2011), available at ADAMS Accession No. ML110760432; Staff Requirements Memorandum on COMGBJ-11-0002 - NRC Actions Following the Events in Japan (Mar. 23, 2011), available at ADAMS Accession No. ML110820875; Charter for the NRC Task Force to Conduct a Near-Term Evaluation of the Need for Agency Actions Following the Events in Japan (Mar. 30, 2011), available at ADAMS Accession No. ML11089A045.

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Petition or otherwise tolling the filing deadline.31 In fact, NRC Information Notice 2011-05 explicitly made that very pointnoting that the situation continues to evolve.32 The Commission has made clear in other contexts that a petitioner may not rely on documents that merely summarize or collect existing information to justify the timeliness of a filing.33 Therefore, the Petition is untimely and should be denied as a matter of law.

Second, a motion must be rejected if it does not include a certification by the moving party that it has made a sincere effort to contact the other parties and resolve the issues raised in the motion.34 No such certification is included with the Petition. Moreover, Petitioners made no attempt to contact TVA or its counsel to resolve the issues raised in the Petition. In fact, TVA was not even informed by the Petitioners that the Petition was contemplated. Accordingly, the Petition is procedurally defective and should be denied.

B. The Petition Provides No Basis for Suspending the Proceedings, Requiring Supplemental NEPA Documentation, or Establishing Special Procedures

1. Petitioners Do Not Provide a Sufficient Basis for Suspending the Proceedings Even if the Commission were to address the merits of the Petition, it should be rejected for failure to include adequate bases and justification for suspension of the Watts Bar 2 and Bellefonte 3 and 4 proceedings. As explained above, following the September 11 terrorist 31 See Petition at 23 (citing Att. 1, Matthew L. Wald, Japans Reactors Still Not Stable, N.Y. Times, Apr. 12, 2011, at A6, http://www.nytimes.com/2011/04/13/world/asia/13safety.html). Although the Makhijani Declaration references an April 15 document discussing hydrogen generation, this document clearly was not the trigger for the Petition, as it is dated the day after the Petition was filed. See Makhijani Declaration ¶ 32.

Also, as noted above, as of the date of this filing, the Makhijani Declaration has not been filed in the Bellefonte 3 and 4 proceeding.

32 NRC Information Notice 2011-05, at 1.

33 See N. States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2), CLI-10-27, 72 NRC __, slip op. at 17-18 (Sept. 30, 2010); AmerGen Energy Co., LLC (Oyster Creek Nuclear Generating Station), LBP 22, 64 NRC 229, 238 (2006) (the information contained in AmerGens April 2006 responses to the NRC Staffs AMP Questions is by no means new, nor was it previously unavailable) (emphasis in original), affd, CLI-09-07, 69 NRC at 272.

34 10 C.F.R. § 2.323(b).

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attacks, the Commission considered similar petitions that requested the suspension of various licensing proceedings pending the Commissions comprehensive review of measures to protect against terrorism. In Private Fuel Storage, the Commission considered whether moving forward with the adjudication (1) will jeopardize the public health and safety; (2) prove an obstacle to fair and efficient decision-making; or (3) prevent appropriate implementation of any pertinent rule or policy changes that might emerge from [the Commissions] important ongoing evaluation of its terrorism related policies.35 As discussed below, none of these considerations justifies suspension of the Watts Bar 2 and Bellefonte 3 and 4 proceedings.

a. Moving Forward with the Proceedings Poses No Immediate Threat to Public Health and Safety The Petition provides no basis upon which to conclude that continuation of the Watts Bar 2 and Bellefonte 3 and 4 initial licensing proceedings would present any threat to public health and safety. Specifically, in an April 12, 2011 written statement before the U.S. Senate, Chairman Jaczko stated:

The NRCs primary responsibility is to ensure the adequate protection of the public health and safety of the American people.

Toward that end, we have been very closely monitoring the activities in Japan and reviewing all currently available information. Review of this information, combined with our ongoing inspection and licensing oversight, gives us confidence that the U.S. plants continue to operate safely.36 The Chairman further outlined the Commissions plans to identify lessons learned from the Fukushima Daiichi accident and to evaluate whether the NRC should adopt additional regulatory 35 Private Fuel Storage, CLI-01-26, 54 NRC at 380. The Commission applied the same standard in a wide-variety of licensing proceedings. See, e.g., McGuire-Catawba, CLI-01-27, 54 NRC at 389-90.

36 Written Statement by Gregory B. Jaczko, Chairman, NRC, to U.S. Senate Environment and Public Works Committee and Clean Air and Nuclear Safety Committee at 3 (Apr. 12, 2011), available at ADAMS Accession No. ML111020070 (emphasis added).

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or policy improvements.37 As part of the Commissions plans to identify lessons learned, an NRC Task Force is examining a broad range of issues relating to the Fukushima Daiichi accident, including issues related to external events, station blackout, severe accident measures, 10 C.F.R. § 50.54(hh)(2) (i.e., accident mitigation measures for large fires and explosions), and emergency preparedness.38 Thus, because the Commission has concluded that continued operation of domestic nuclear power plants does not pose an imminent risk to public health and safety, there certainly is no reason to believe that there is any immediate danger to public health and safety from mere continuation of these pending initial licensing proceedings.

The NRC Task Force is expected to provide its initial observations, conclusions, and recommendationsincluding topics for assessment in a longer-term reviewapproximately 90 days after it commenced its review, i.e., around July 1, 2011.39 As noted above, the NRC Staff currently expects to issue the FSEIS in the Watts Bar 2 OL proceeding in November 2011, and the FSER in September 2011.40 Therefore, that proceeding is not expected to be completed until 2012, with operations to commence some time thereafter. As also explained above, the Bellefonte 3 and 4 COL proceeding is voluntarily deferred and is not expected to be completed in the near term. Therefore, it will be several years at a minimum before a COL could be issued.

Moreover, TVA has not decided whether to construct Bellefonte Units 3 and 4, so it is not certain when, or whether, any construction will take place. Accordingly, there is no need to suspend these proceedings to ensure that any issues identified during the Task Force review are 37 See id. at 6-9.

38 NRC, Press Release, NRC Appoints Task Force Members and Approves Charter for Review of Agencys Response to Japan Nuclear Event (Apr. 1, 2011), available at ADAMS Accession No. ML110910479.

39 See id. at 1.

40 See Staff Bimonthly Report, supra note 13.

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addressed with respect to Watts Bar 2 and Bellefonte 3 and 4. There simply is no risk of any immediate threat to public health and safety.

b. Moving Forward with the Proceedings Would Not Prove to Be an Obstacle to Fair and Efficient Decisionmaking The Commission has long emphasized its commitment to efficient and expeditious processing of applications and any associated hearings.41 While the NRC Task Force review of issues relating to the Fukushima Daiichi accident is pending, there are safety and environmental issues that must be resolved in Watts Bar 2 before that proceeding is concluded, many with no conceivable connection to the accident in Japan or the issues identified in the Task Force Charter. Further, the Bellefonte 3 and 4 proceeding remains voluntarily deferred. In these circumstances, there is, again, no basis for suspending the ongoing licensing proceedings.

Commission practice is to carefully limit and confine orders delaying proceedings to the duration and scope necessary to promote the dual goals of public safety and timely adjudication.42 Even after the accident at Three Mile Island, Unit 2 (TMI-2) on March 28, 1979, the Commission chose not to suspend ongoing licensing proceedings, but instead, on June 5, 1979, temporarily stopped issuing licenses for a short period pending its initial assessment of the accident.43 Shortly thereafter, in October 1979, the Commission issued an Interim Statement of Policy announcing that the Commission itself would decide whether to grant final approval of new construction permits, limited work authorizations, and operating licenses.44 41 See, e.g., Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 18, 24 (1998).

42 Private Fuel Storage, CLI-01-26, 54 NRC at 381.

43 See id. at 381-82 (discussing the Commissions actions following the TMI-2 accident, including the temporary pause in licensing initiated by an unpublished order dated June 5, 1979); Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-728, 17 NRC 777, 784-85 (1983) (same).

44 Interim Statement of Policy and Procedure, 44 Fed. Reg. 58,559, 58,559 (Oct. 10, 1979).

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Later, in November 1979, the Commission provided additional guidance on this procedural change and explained that it did not impact the issuance of operating licenses in uncontested cases and cases where the Board issued an initial decision before the effective date of the Statement of Policy.45 The November 1979 Statement of Policy also made clear that Boards should apply existing safety regulations and policies with the understanding that the analysis of the TMI-2 accident was ongoing and changes to regulations and regulatory policies may be forthcoming.46 Following issuance of lessons learned reports on the TMI-2 accident, the Commission provided further guidance on the litigation of TMI-related issues in a December 1980 Revised Statement of Policy. Therein, it made clear that existing regulations regarding late-filed contentions and the reopening of hearing records were to be applied by individual Boards.47 Thus, Petitioners are simply incorrect in asserting that NRC suspended all licensing decisions until conclusion of the lessons learned process following the TMI-2 accident.48 Similarly, following the September 11 terrorist attacks, the Commission denied several similar requests to suspend a number of types of proceedings.49 In these cases, the Commission 45 See Domestic Licensing Proceedings; Modified Adjudicatory Procedures, 44 Fed. Reg. 65,049, 65,051 (Nov.

9, 1979).

46 See id. at 65,050.

47 Statement of Policy: Further Commission Guidance for Power Reactor Operating Licenses, CLI-80-42, 12 NRC 654, 661 (1980).

48 Petition at 22. Although the first operating license following the TMI-2 accident was not issued until August 1980, the Commission did not preclude new plants that had already received operating licenses from commencing operations until the conclusion of the lessons learned process. See NUREG-1350, Vol. 22, Information Digest, 2010-2011, App. A at 102, 106 (Aug. 2010) (indicating that Edwin I. Hatch Nuclear Plant, Unit 2 began commercial operations in September 1979, and North Anna Power Station, Unit 2 received its OL in August 1980). In addition, the NRC rejected a petition requesting that all similar operating reactors be immediately shut down. Petition to Suspend All Operating Licenses for Pressurized Water Reactors, DD-81-8, 13 NRC 767, 767 (1981). The NRC also rejected a petition requesting suspension of further licensing of nuclear facilities pending completion of a study and report on the Chernobyl accident. See Potential Implications of Chernobyl Accident for All NRC-Licensed Facilities, DD-87-21, 26 NRC 520, 520-21 (1987).

49 See Diablo Canyon, CLI-02-23, 56 NRC at 236; Savannah River, CLI-01-28, 54 NRC at 397; McGuire-Catawba, CLI-01-27, 54 NRC at 390; Private Fuel Storage, CLI-01-26, 54 NRC at 378.

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emphasized the strong public interest in moving forward with proceedings in an efficient and expeditious manner.50 As with these cases, suspending all further proceedings would be contrary to the Commissions goal of providing prompt yet fair resolution of contested issues in adjudicatory proceedings.51

c. Moving Forward with the Proceedings Will Not Hamper Implementation of Any Potential Rule or Policy Changes Petitioners also assert that the proceedings should be suspended pending the Task Forces investigation of the Fukushima Daiichi accident because the current climate of uncertainty prevents the NRC from making a definitive finding on safety issues as required by the Atomic Energy Act.52 This conclusory statement is offered without any apparent basis in fact or law.

Speculation about the possible outcome of the Task Force review (i.e., potential recommendations to improve the regulatory program) is not a compelling reason to delay these proceedings. It is clear from the Chairmans statements that the Commission continues to have confidence that plants are operating safely under the current regulatory program, and moving forward with licensing proceedings will not prevent appropriate implementation of any rule or policy changes arising from the NRCs review. If the Task Force recommendations result in a rule or policy change, then the Commission has ample authority to modify requirements by rule, regulation, or orderboth for applicants and licensees.53 Therefore, notwithstanding the pure conjecture in the Makhijani Declaration suggesting that the Task Force review will reveal some 50 See Diablo Canyon, CLI-02-23, 56 NRC at 239; Savannah River, CLI-01-28, 54 NRC at 400; McGuire-Catawba, CLI-01-27, 54 NRC at 389-90; Private Fuel Storage, CLI-01-26, 54 NRC at 381, 383.

51 Private Fuel Storage, CLI-01-26, 54 NRC at 381 (quoting Statement of Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC at 19).

52 Petition at 26 (citing Power Reactor Dev. Corp. v. Intl Union of Elec., Radio & Mach. Workers, 367 U.S. 396, 402 (1961)).

53 See Diablo Canyon, CLI-02-23, 56 NRC at 240; Savannah River, CLI-01-28, 54 NRC at 400; Private Fuel Storage, CLI-01-26, 54 NRC at 383-84. See generally 42 U.S.C. § 2201(b) (2006); 10 C.F.R. §§ 2.202, 50.109.

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inadequacy in NRC regulations,54 there is no need to delay the Watts Bar 2 and Bellefonte 3 and 4 proceedings to ensure that the public will realize the full benefit of the ongoing regulatory review.

2. Petitioners Are Incorrect in Asserting that Supplemental NEPA Documentation Is Required Petitioners next argue that NEPA requires that NRC consider new and significant information resulting from its ongoing consideration of the Fukushima Daiichi accident and which could affect the outcome of the environmental analysis in individual licensing proceedings.55 Thus, according to Petitioners, suspension of these proceedings is necessary to protect the integrity of the NEPA process.56 Although it appears Petitioners are asking that NRC prepare some sort of generic NEPA evaluation of the Fukushima Daiichi accident and any resulting NRC Task Force recommendations, there is no dispute that, in Watts Bar 2, the NRC will prepare a FSEIS, and in Bellefonte 3 and 4, it will prepare a Final Environmental Impact Statement (FEIS). In accordance with existing regulations and guidance, severe accidents and severe accident mitigation alternatives (SAMAs) are already considered as part of this NEPA review process.57 The Petition identifies nothing suggesting that the existing evaluation of these issues in these proceedings is or will be inadequate when NRC issues its FSEIS for Watts Bar 2 or FEIS for Bellefonte 3 and 4.58 54 Makhijani Declaration ¶ 16.

55 Petition at 26-28.

56 Id. at 27.

57 See, e.g., 10 C.F.R. § 51.75(c)(2), Part 51, App. B; NUREG-1555, Environmental Standard Review Plan:

Standard Review Plans for Environmental Reviews for Nuclear Power Plants §§ 7.2, 7.3 (Mar. 2000).

58 Although the Makhijani Declaration generally discusses issues related to severe accidents, it only addresses prior generic NRC evaluations of severe accidents and spent fuel pool accidents without any attempt to link 15

Furthermore, it is important to recognize that existing NRC regulations already require new and significant information to be addressed in ongoing licensing proceedings.59 Specifically, once the NRC issues an EIS in these proceedings, NRC regulations require that it be supplemented if there are (1) substantial changes in the proposed action that are relevant to environmental concerns, or (2) significant new circumstances or information relevant to environmental concerns that bear on the proposed action or its impacts.60 The Petition fails to acknowledge this existing regulatory requirement, much less explain why it is insufficient in these circumstances or why suspension of these proceedings is otherwise necessary to ensure compliance with NEPA. Absent any such showing, it is inappropriate to suspend all proceedings as an open-ended[] placeholder for the filing of potential future contentions or motions to reopen the record based on the ungrounded presumption that the NRC Staff will fail to follow its own regulations.61 Petitioners also claim that NRC must prepare a supplemental EIS or environmental assessment (EA) assessing the significance of the Fukushima Daiichi accident simply because NRC allegedly has conceded that new information based on the accident could have a significant effect on regulatory programs.62 In accordance with NRC regulations regarding its implementation of NEPA, an EIS need not be supplemented merely because the NRC is investigating the implications of the Fukushima Daiichi accident or any other new information.

information from the Fukushima Daiichi to the relevant evaluations in these proceedings. See Makhijani Declaration ¶¶ 29-31.

59 See 10 C.F.R. §§ 51.72(a)(2), 51.92(a)(2).

60 See 10 C.F.R. §§ 51.72(a)(2), 51.92(a)(2).

61 S. Nuclear Operating Co. (Vogtle Elec. Generating Plant, Units 3 & 4), LBP-09-3, 69 NRC 139, 158 (2009);

see also Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-01-9, 53 NRC 232, 235 (2001) ([I]n the absence of evidence to the contrary, the NRC does not presume that a licensee will violate agency regulations wherever the opportunity arises.).

62 See Petition at 4 n.2, 27-28.

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Instead, a supplemental EIS need only be prepared to address significant new circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.63 In order to be significant, new information must present a seriously different picture of the environmental impact of the proposed project from what was previously considered.64 It is not enough that the information may be worthy of further inquiry or may be considered important research.65 The Petition provides nothing indicating that this high standard will be met and instead only speculates about potential new information that could have a significant effect on its regulatory programs and the outcome of its licensing decisions for individual reactors.66 Such conjecture is, again, inadequate to support the Petition or to justify the requested relief.

Petitioners are also incorrect in claiming that NRC must prepare an EA even if it concludes that new information, based on the Fukushima Daiichi accident, does not meet the standards for supplementing an EIS. NEPA does not require that the NRC generate an EA or any NEPA document as part of its evaluation of whether information is significant for purposes of supplementing an EIS.67 Instead, as noted above, NRC regulations only require the 63 See 10 C.F.R. §§ 51.72(a)(2), 51.92(a)(2).

64 Hydro Res., Inc. (2929 Coors Rd., Suite 101, Albuquerque, N.M. 87120), CLI-99-22, 50 NRC 3, 14 (1999)

(citing Sierra Club v. Froehlke, 816 F.2d 205, 210 (5th Cir. 1987)); accord Wisconsin v. Weinberger, 745 F.2d 412, 420 (7th Cir. 1984)).

65 Wisconsin, 745 F.2d at 420.

66 Petition at 26-27 (emphasis added).

67 See Marsh v. Or. Natural Res. Council, 490 U.S. 360, 379 (1989) (upholding an agencys decision not to supplement an EIS based on the agencys supplemental information report); Hodges v. Abraham, 300 F.3d 432, 446 (4th Cir. 2002) (holding that an agency is entitled to conduct a preliminary inquiry to determine whether changed circumstances are significant); Idaho Sporting Cong. Inc. v. Alexander, 222 F.3d 562, 566 (9th Cir. 2000) (finding that an agency may use non-NEPA environmental evaluation procedures to determine whether supplementation of an EA or an EIS is necessary). See generally Daniel R. Mandelker, NEPA Law and Litigation, § 10:49, at 10-187 (2nd ed. 2010) (An agency does not have to prepare an environmental assessment as the basis for deciding to prepare a supplemental impact statement. It may instead 17

preparation of a supplemental EIS to address significant new circumstances or information relevant to the proposed action.68

3. Petitioners Do Not Provide a Sufficient Basis for Changing Well-Established Procedural Regulations Petitioners also request that the Commission allow the future filing of new yet-to-be-defined contentions and motions to reopen closed hearing records within 60 days following the publication of any future proposed regulatory measures or environmental decisions resulting from the reviews related to the Fukushima Daiichi accident.69 According to Petitioners, the establishment of this procedural toehold is needed, purportedly because it may be difficult to judge the timeliness of future motions to add new contentions or to reopen the record.70 NRC regulations and case law and case-specific scheduling orders in these proceedings already provide clear and uniform standards to determine the timeliness of motions to add new contentions or to reopen the record.71 This situation is no different and warrants no such special treatment. Indeed, even after the TMI-2 accident, the Commission made clear that it expected adherence to these well-established procedural requirements.72 Similarly, in responding to rely on a non-NEPA document, such as a supplementary report or a reevaluation, as the basis for making this decision.).

68 See supra note 63.

69 Petition at 3, 23-24, 29.

70 Id. at 23.

71 See 10 C.F.R. §§ 2.309(f)(2), 2.323(a); Entergy Nuclear Vt. Yankee, L.L.C. (Vt. Yankee Nuclear Power Station), CLI-11-02, slip op. at 10 n.43 (Mar. 10, 2011) (indicating that the Commission and its Boards generally consider approximately 30 to 60 days as the limit for timely filings based on new information); Tenn.

Valley Auth. (Watts Bar Unit 2), Licensing Board Scheduling Order at 5(May 26, 2010) (unpublished)

(specifying that, for the Watts Bar 2 proceeding, a proposed new contention is timely if it is filed within thirty (30) days of the date when the new and material information on which it is based first becomes available to the moving party through service, publication, or any other means); Tenn. Valley Auth. (Bellefonte Nuclear Power Plant Units 3 & 4), Licensing Board Memorandum and Order (Prehearing Conference and Status of General Schedule) at 3 (Nov. 10, 2008) (unpublished) (specifying that in the Bellefonte 3 and 4 proceeding, to be considered timely any motion to admit a new contention or to amend an admitted contention must be filed within thirty days of the event that provides the triggering basis for submitting a new or amended contention).

72 See Statement of Policy, CLI-80-42, 12 NRC at 661.

18

requests to suspend licensing proceedings pending the NRCs regulatory review following the events of September 11, the Commission again made clear that its regulations already establish appropriate standards for late-filed contentions and motions to reopen the record.73 Thus, as the Commission stated, the hearing rules . . . contain sufficient flexibility to deal with any new developments that occur during the pendency of this proceeding.74 Petitioners also generally claim that, given their limited resources, it would be an unfair burden to require the filing of new contentions or motions to reopen the record before NRC has completed its analysis of the Fukushima Daiichi accident in the first instance.75 This argument amounts to nothing more than a generic attack on NRC regulations that require the filing of contentions at the initiation of the adjudicatory process, before the NRC Staff has completed its review, and that any new contentions be introduced when new, material information justifies such late filings.76 In the McGuire-Catawba license renewal proceedings, the Commission rejected similar arguments in responding to requests to suspend licensing proceedings pending NRCs regulatory review following the events of September 11. Specifically, the Commission held:

[Petitioner] will suffer no cognizable injury from going forward with the hearing process. We are unpersuaded by [petitioner]s assertion that the piecemeal nature of the adjudication makes it impossible to perform a complete or effective evaluation of the issues . . . within the scope of the current hearing and is wasteful of [the Petitioners] resources. . . . We have repeatedly rejected such resource-related arguments in prior proceedings, and do so again here. As we stated . . . in Indian Point, CLI-01-8, 53 NRC at 229-30, litigation invariably results in the parties loss of both time and money. We cannot postpone cases for many weeks or 73 See Private Fuel Storage, CLI-01-26, 54 NRC at 383; Savannah River, CLI-01-28, 54 NRC at 400 n.12 (citing the then-in-place regulations on late-filed contentions and motions to reopen the record).

74 Savannah River, CLI-01-28, 54 NRC at 400.

75 Petition at 24.

76 See 10 C.F.R. § 2.309.

19

months simply because going forward will prove difficult for litigants or their lawyers.77 In summary, no efficiency is gained by establishing special procedures for Petitioners to file new contentions or motions to reopen the record. Instead, efficiency is maintained through compliance with the current requirements: i.e., if Petitioners can develop well-founded new contentions for review based upon truly new and materially different information, they are allowed to make appropriate and timely filings pursuant to 10 C.F.R. § 2.309.

V. CONCLUSION Suspending the initial licensing proceedings for Watts Bar 2 and Bellefonte 3 and 4 is an extraordinary remedy that is not warranted and should not be granted. The Petition should be rejected for numerous basic procedural deficiencies. Substantively, there is no possibility of imminent harm to the public health and safety from the continuation of these initial licensing proceedings, and Petitioners have not made a compelling demonstration that such extraordinary relief is warranted. Petitioners also have not shown that additional supplementary NEPA documents are required. NRC rules are sufficiently robust, flexible, and comprehensive to deal with any new developments that occur in the future as a result of the tragic accidents at 77 McGuire-Catawba, CLI-01-27, 54 NRC at 391.

20

Fukushima Daiichi. Accordingly, for all of these reasons, the Petition should be denied in its entirety.

Respectfully submitted, Executed in Accord with 10 C.F.R. § 2.304(d)

Paul M. Bessette, Esq.

Steven P. Frantz, Esq.

Kathryn M. Sutton, Esq.

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

Washington, D.C. 20004 Phone: 202-739-3000 Fax: 202-739-3001 E-mail: pbessette@morganlewis.com E-mail: sfrantz@morganlewis.com E-mail: ksutton@morganlewis.com Edward J. Vigluicci, Esq.

Christopher C. Chandler, Esq.

Scott A. Vance, 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: 865-632-6147 E-mail: ejvigluicci@tva.gov E-mail: ccchandler0@tva.gov E-mail: savance@tva.gov Counsel for TVA Dated in Washington, D.C.

this 2nd day of May 2011 21

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of )

) Docket No. 50-391-OL TENNESSEE VALLEY AUTHORITY )

) May 2, 2011 (Watts Bar Nuclear Plant Unit 2) )

)

CERTIFICATE OF SERVICE I hereby certify that, on May 2, 2011, a copy of Tennessee Valley Authoritys Answer Opposing Emergency Petition to Suspend Licensing Proceedings was served by the Electronic Information Exchange on the following recipients:

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Office of the General Counsel Mail Stop: T-3F23 Mail Stop: O-15D21 Washington, DC 20555-0001 Washington, DC 20555-0001 Lawrence G. McDade, Chair Edward Williamson, Esq.

Administrative Judge E-mail: elw2@nrc.gov E-mail: lgm1@nrc.gov David Roth, Esq.

E-mail: david.roth@nrc.gov Paul B. Abramson Andrea Jones, Esq.

Administrative Judge E-mail: andrea.jones@nrc.gov E-mail: pba@nrc.gov Michael Dreher, Esq.

E-mail: michael.dreher@nrc.gov Gary S. Arnold Brian P. Newell, Paralegal Administrative Judge E-mail: bpn1@nrc.gov E-mail: gxa1@nrc.gov OGC Mail Center Wen Bu, Law Clerk E-mail: ogcmailcenter@nrc.gov E-mail: wxb3@nrc.gov DB1/ 67208673.1 1

U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Office of Commission Appellate Adjudication Office of the Secretary of the Commission Mail Stop: O-16C1 Mail Stop: O-16C1 Washington, DC 20555-0001 Washington, DC 20555-0001 OCAA Mail Center Hearing Docket E-mail: ocaamail@nrc.gov E-mail: hearingdocket@nrc.gov Diane Curran, Esq.

Representative of Southern Alliance for Clean Energy (SACE)

Harmon, Curran, Spielberg & Eisenberg, L.L.P.

1726 M Street N.W., Suite 600 Washington, D.C. 20036 E-mail: dcurran@harmoncurran.com Signed (electronically) by Paul M. Bessette Paul M. Bessette, Esq.

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

Washington, D.C. 20004 Phone: 202-739-3000 Fax: 202-739-3001 E-mail: pbessette@morganlewis.com 2