ML111220458

Firstenergy'S Answer in Opposition to Emergency Petition to Suspend Licensing Proceedings

ML111220458
Person / Time
Site:	Davis Besse
Issue date:	05/02/2011
From:	Burdick S, Jenkins D, Polonsky A, Sutton K FirstEnergy Nuclear Operating Co, Morgan, Morgan, Lewis & Bockius, LLP
To:	NRC/OCM
SECY RAS
References
11-907-01-LR-BD01, RAS 20095, 50-346-LR
Download: ML111220458 (24)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of )

) Docket No. 50-346-LR FIRSTENERGY NUCLEAR OPERATING COMPANY )

)

(Davis-Besse Nuclear Power Station, Unit 1) ) May 2, 2011

)

FIRSTENERGYS ANSWER IN OPPOSITION TO EMERGENCY PETITION TO SUSPEND LICENSING PROCEEDINGS Kathryn M. Sutton Alex S. Polonsky Stephen J. Burdick Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, DC 20004 Phone: 202-739-5830 E-mail: apolonsky@morganlewis.com David W. Jenkins Senior Attorney FirstEnergy Service Company Mailstop: A-GO-15 76 South Main Street Akron, OH 44308 Phone: 330-384-5037 E-mail: djenkins@firstenergycorp.com COUNSEL FOR FIRSTENERGY

TABLE OF CONTENTS I. INTRODUCTION ............................................................................................................. 1 II. BACKGROUND ............................................................................................................... 3 III. LEGAL STANDARDS ..................................................................................................... 4 A. Procedural Requirements for Suspension of Proceedings ..................................... 4 B. Substantive Standards for Suspension of Proceedings .......................................... 5 IV. ARGUMENT ..................................................................................................................... 6 A. The Petition Should Be Summarily Dismissed on Procedural Grounds................ 6 B. The Petition Provides No Basis for Suspending the Proceeding, Requiring Supplemental NEPA Documentation, or Establishing Special Procedures ........... 8

1. Petitioners Do Not Provide a Sufficient Basis for Suspending the Proceeding.................................................................................................. 8

2. Petitioners Are Incorrect in Asserting that Supplemental NEPA Documentation Is Required ..................................................................... 13

3. Petitioners Do Not Provide a Sufficient Basis for Changing Well-Established Procedural Regulations ......................................................... 17 V. CONCLUSION ................................................................................................................ 20

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of )

) Docket No. 50-346-LR FIRSTENERGY NUCLEAR OPERATING COMPANY )

)

(Davis-Besse Nuclear Power Station, Unit 1) ) May 2, 2011

)

FIRSTENERGYS 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, Beyond Nuclear, Citizens Environment Alliance of Southwestern Ontario, Dont Waste Michigan, and the Green Party of Ohio (Petitioners)1 and various other organizations submitted a Petition to Suspend Licensing Decisions Pending Investigation of Lessons Learned from Fukushima Daiichi Nuclear Power Station Accident (Initial Petition) to the U.S. Nuclear Regulatory Commission (NRC or Commission).2 A week later, on April 21, 2011, Petitioners filed a corrected version of the Petition to Suspend Licensing Decisions 1

We address only Petitioners request to suspend this proceeding because Petitioners request to suspend other proceedings is not cognizable in this individual adjudicatory proceeding. See Duke Cogema Stone & Webster (Savannah River Mixed Oxide Fuel Fabrication Facility), CLI-01-28, 54 NRC 393, 399 n.9 (2001).

Furthermore, most of the organizations joining the Petition have never filed a hearing request or sought permission to participate in this proceeding on any other basis. Therefore, any request by these other organizations has no legitimate place in this proceeding and this Answer refers only to Beyond Nuclear, Citizens Environment Alliance of Southwestern Ontario, Dont Waste Michigan, and the Green Party of Ohio as Petitioners. See Pac. Gas & Elec. Co. (Diablo Canyon Power Plant Indep. Spent Fuel Storage Installation),

CLI-02-23, 56 NRC 230, 235 n.6 (2002); Savannah River, CLI-01-28, 54 NRC at 398.

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. 14-18, 2011, but served on Apr. 14, 2011).

(Petition),3 along with a letter to the Commission providing a Declaration from Dr. Arjun Makhijani (Makhijani Declaration), purportedly in support of the Petition.4 FirstEnergy Nuclear Operating Company (FirstEnergy) is filing this Answer with the Commission pursuant to 10 C.F.R. § 2.323(c) and the Commissioners Order dated April 19, 2011, in opposition to the Petition.5 As discussed below, the Petition is untimely and the Petitioners failed to consult with FirstEnergy as required by NRC regulations. Thus, the Petition does not comply with the NRC Rules of Practice. Moreover, the Petition also fails to provide a sufficient basis to suspend the proceeding, because moving forward with this adjudication poses no immediate threat to public health and safety, obstacle to fair and efficient decision-making, or impediment to implementation of any potential rule or policy change. Additionally, Petitioners are incorrect in asserting that supplemental National Environmental Policy Act (NEPA) documentation is required. Finally, Petitioners do not provide a sufficient basis for changing well-established procedural regulations. For these reasons, the Commission should deny the Petition and the FirstEnergy Board should not delay this proceeding in any manner in response to the 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. 21, 2011); Letter from T. Lodge, Counsel for Petitioners, to Commission (dated Mar. 21, 2011, but served on Apr. 21, 2011). Unless otherwise noted, all citations in this Answer are to the corrected Petition.

4 Decl. of Dr. Arjun Makhijani in Support of 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. 19, 2011).

5 Petitioners bypassed the Board by filing directly with the Commission. Although the Commission has entertained similar requests 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); Diablo Canyon, CLI-02-23, 56 NRC at 237; Savannah River, CLI-01-28, 54 NRC at 398 n.7. Given that the issues are before the Commission, and the Board would not have authority to grant the relief requested, the Board should not act on the Petition or delay its regular adjudicatory activities in any manner. For example, the Board should issue its scheduling order as soon as practicable. See 10 C.F.R. § 2.332(a).

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II. BACKGROUND The Davis-Besse Nuclear Power Station, Unit 1 (Davis-Besse) is located in Ohio and generates 908 MWe of baseload electrical power.6 The current operating license for Davis-Besse expires at midnight on April 22, 2017.7 On August 27, 2010, FirstEnergy submitted its License Renewal Application,8 requesting that the NRC renew the operating license for Davis-Besse for an additional twenty years (i.e., until midnight on April 22, 2037).9 The NRC accepted the Application for docketing and published a Hearing Notice in the Federal Register on October 25, 2010.10 On December 27 and 28, 2010, the Petitioners jointly filed their Request for Public Hearing and Petition for Leave to Intervene (Intervention Petition). In response, FirstEnergy and the NRC Staff filed Answers to the Intervention Petition on January 21, 2011.11 On January 28, 2011, Petitioners filed their Reply to these Answers.12 Thereafter, on March 1, 2011, the Board held oral argument on standing and contention admissibility.13 The Board issued Order LBP-11-13 on April 26, 2011, admitting the Petitioners as parties to the proceeding and admitting two contentions.14 6

Applicants Environmental Report, Operating License Renewal Stage, Davis-Besse Nuclear Power Station, at 3.1-1, 7.2-1 (Aug. 2010) (ER), available at http://www.nrc.gov/reactors/operating/licensing/renewal/

applications/davis-besse/davis-besse-enviro.pdf.

7 Id. at 1.1-1.

8 Notice of Acceptance for Docketing of the Application, Notice of Opportunity for Hearing for Facility Operating License No. NPF-003 for an Additional 20-Year Period; FirstEnergy Nuclear Operating Company, Davis-Besse Nuclear Power Station, 75 Fed. Reg. 65,528, 65,529 (Oct. 25, 2010) (Hearing Notice).

9 ER at 1.1-1.

10 See Hearing Notice, 75 Fed. Reg. at 65,528-529.

11 FirstEnergys Answer Opposing Request for Public Hearing and Petition for Leave to Intervene (Jan. 21, 2011); NRC Staffs Answer to Joint Petitioners Request for a Hearing and Petition for Leave to Intervene (Jan. 21, 2011).

12 Joint Intervenors Combined Reply in Support of Petition for Leave to Intervene (Jan. 28, 2011).

13 See Notice and Order (Scheduling Oral Argument) at 2 (Feb. 1, 2011) (unpublished).

14 FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), LBP-11-13, 73 NRC __, slip op. at 64-65 (Apr. 26, 2011).

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On April 14, 2011, Petitioners filed, directly with the Commission, the Initial Petition requesting that the Commission take the following actions:

(1) suspend all decisions regarding the issuance of various reactor licenses, including renewed operating licenses, 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 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.15 On April 21, 2011, Petitioners filed the revised Petition, which included these same requests, and the Makhijani Declaration.16 III. LEGAL STANDARDS A. Procedural Requirements for Suspension of Proceedings The Petition does not comport with any of the specific forms of pleading specified in the NRC Rules of Practice. The Commission has, however, provided 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 15 Initial Petition at 1-3, 28-30; Petition at 1-3, 28-29.

16 See supra notes 3-4.

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(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).17 More recently, the Commission determined in its Oyster Creek decision that joint petitions filed in four license renewal proceedings requesting suspension of the proceedings pending requested revisions to the license renewal process should also be treated as general motions brought under 10 C.F.R. § 2.323.18 The Petition therefore 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.19 Second, a motion must be rejected if it does not include a certification that the moving party has made a sincere, but unsuccessful, effort to contact other parties in the proceeding and resolve the issues raised in the motion.20 B. Substantive Standards for Suspension of Proceedings As a threshold matter, it is important to recognize that the Commission considers suspension of licensing proceedings a drastic action that is not warranted absent immediate threats to public health and safety.21 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 17 Diablo Canyon, CLI-02-23, 56 NRC at 237.

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

19 10 C.F.R. § 2.323(a).

20 Id. § 2.323(b).

21 Oyster Creek, CLI-08-23, 68 NRC at 484 (quoting 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)).

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comprehensive review of measures to protect against terrorism.22 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 licensing proceedings in abeyance. The Commission declines to suspend licensing proceedings unless 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.23 As explained below, the instant Petition meets none of these standards.

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.24 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 22 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 (2001).

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

24 10 C.F.R. § 2.323(a).

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of the Fukushima accident.25 All of these circumstances 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 accident continues to change and be augmented in the process, that fact was clear well before April 12 and cannot be considered in any way as new circumstances giving rise to the relief requested in the Petition or otherwise tolling the filing deadline.26 In fact, NRC Information Notice 2011-05 explicitly made that very pointnoting that the situation continues to evolve.27 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.28 Therefore, the Petition is untimely and should be rejected.

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.29 No such certification is included with the Petition. Moreover, Petitioners made no attempt to contact FirstEnergy and resolve the issues raised in the Petition. In fact, FirstEnergy 25 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.

26 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. See Makhijani Declaration ¶ 32.

27 NRC Information Notice 2011-05, at 1.

28 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), affd, CLI-09-07, 69 NRC 235, 272 (2009).

29 10 C.F.R. § 2.323(b).

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was not even informed by the Petitioners that the Petition was contemplated. Accordingly, the Petition is procedurally defective and should be denied as a matter of law.

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

1. Petitioners Do Not Provide a Sufficient Basis for Suspending the Proceeding The Petition must also be rejected for failure to provide a sufficient basis to suspend the Davis-Besse license renewal proceeding. As explained above, following the September 11 terrorist 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 stated that it would not suspend licensing proceedings unless 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.30 As discussed below, none of these considerations justifies suspension of the Davis-Besse license renewal proceeding.

a. Continuing the Proceeding Poses No Immediate Threat to Public Health and Safety The Petition provides no basis upon which to conclude continuation of the Davis-Besse license renewal proceeding would present any threat to public health and safety. To the contrary, 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 30 Private Fuel Storage, CLI-01-26, 54 NRC at 380. The Commission applied the same standard in a wide-variety of licensing proceedings, including license renewal proceedings. See McGuire-Catawba, CLI-01-27, 54 NRC at 389-90.

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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.31 The Chairman further outlined the key factors that assure the Commission that reactors in the U.S. continue to operate safely, as well as the Commissions plans to identify lessons learned from the Fukushima accident and to evaluate whether the NRC should adopt additional regulatory or policy improvements.32 Thus, the Commission has concluded that continued operation of power plants does not pose an imminent risk to public health and safety. Certainly then, there is no reason to believe that any danger to public health and safety would immediately result from mere continuation of this pending licensing proceeding.

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 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.

Moreover, the NRC is performing inspections at all currently operating plants pursuant to Temporary Instruction 2515/183, Followup to the Fukushima Daiichi Nuclear Station Fuel Damage Events.33 These inspections will review the current licensing basis (CLB) issues identified in the Task Force Charter and will determine each facilitys preparedness for beyond design-basis events. Any necessary changes will be made outside of the license renewal process as part of NRCs ongoing regulatory oversight programs and will be considered by the NRC Task Force looking at improvements and lessons learned from the Fukushima accident.

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

32 See id. at 6-9.

33 NRC Instruction Manual, Temporary Instruction 2515/183, Followup to the Fukushima Daiichi Nuclear Station Fuel Damage Events (Mar. 23, 2011), available at ADAMS Accession No. ML11077A007.

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Therefore, suspension of this proceeding is unnecessary to ensure that any issues identified during the Task Force review are incorporated at Davis-Besseas they will be captured as part of the ongoing, current-day plant licensing and operational process under 10 C.F.R. Part 50.

Furthermore, the current operating license for Davis-Besse does not expire until midnight on April 22, 2017.34 Therefore, there is simply no risk of any immediate threat to public health and safety as a result of the continuation of the ongoing Davis-Besse license renewal proceeding.

b. Continuing the Proceeding Would Not Be an Obstacle to Fair and Efficient Decision-Making The Commission has long emphasized its commitment to efficient and expeditious processing of applications and any associated hearings.35 While the NRC Task Force review of issues relating to the Fukushima accident is pending, there are environmental issues that must be resolved in the Davis-Besse adjudication that have no conceivable connection to the accident in Japan or the issues identified in the Task Force Charter. Under these circumstances, there is, again, no basis for suspending the ongoing licensing proceeding.

Commission practice is to carefully limit and confine orders suspending proceedings to the duration and scope necessary to promote the dual goals of public safety and timely adjudication.36 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.37 Shortly thereafter, in October 1979, the Commission issued an Interim Statement 34 ER at 1.1-1.

35 See, e.g., Statement of Policy on Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 18, 24 (1998).

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

37 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).

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of Policy announcing the Commission itself would decide whether to grant final approval of new construction permits, limited work authorizations, and operating licenses.38 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 in which the Board issued an initial decision before the effective date of the Statement of Policy.39 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.40 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.41 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.42 38 Interim Statement of Policy and Procedure, 44 Fed. Reg. 58,559, 58,559 (Oct. 10, 1979).

39 See Domestic Licensing Proceedings; Modified Adjudicatory Procedures, 44 Fed. Reg. 65,049, 65,051 (Nov.

9, 1979).

40 See id. at 65,050.

41 Statement of Policy: Further Commission Guidance for Power Reactor Operating Licenses, CLI-80-42, 12 NRC 654, 661 (1980). The December 1980 Revised Statement of Policy has since been rescinded. Statement of Policy on Litigation of TMI-Related Issues In Power Reactor Operating License Proceedings; Revocation of Superseded Policy Statement Concerning TMI-Related Procedures, 54 Fed. Reg. 7897, 7898 (Feb. 23, 1989).

42 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).

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Similarly, following the September 11 terrorist attacks, the Commission denied several requests to suspend a number of types of proceedings, including license renewal proceedings.43 In these cases, the Commission emphasized the strong public interest in moving forward with proceedings in an efficient and expeditious manner.44 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.45 This is true with regard to the ongoing Davis-Besse license renewal proceeding, as well, which should continue in an efficient and expeditious manner.

c. Continuing the Proceeding Will Not Hamper Implementation of Any Potential Rule or Policy Changes Petitioners also assert that the proceeding should be suspended pending the Task Forces investigation of the Fukushima 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.46 This conclusory statement is offered without any apparent basis in fact or law. It is clear from the Chairmans statements that the Commission continues to have confidence that plants are operating safely under the current regulatory program. 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 this ongoing proceeding because moving forward will not prevent appropriate implementation of any rule or policy changes arising from the NRCs review of the Fukushima accident. If the Task Force recommendations result in a rule or 43 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.

44 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.

45 Private Fuel Storage, CLI-01-26, 54 NRC at 381 (quoting Statement of Conduct of Adjudicatory Proceedings, CLI-98-12, 48 NRC 18, 19 (1998)).

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

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policy change, then the Commission has ample authority to modify requirements by rule, regulation, or orderboth for applicants and licensees.47 Therefore, notwithstanding the pure conjecture in the Makhijani Declaration suggesting that the Task Force review will reveal some inadequacy in NRC regulations,48 there is no need to delay the Davis-Besse license renewal proceeding to ensure that the public will realize the full benefit of the ongoing regulatory review.

As noted above, it is undisputed that the Task Force will examine issues related to external events, station blackout, severe accident measures, 10 C.F.R. § 50.54(hh)(2), and emergency preparedness.49 Given the limited scope of license renewal safety reviews, many of these issues are outside the scope of the proceeding. The only safety issues within the scope of this proceeding relate to aging management programs and time-limited aging analyses.50 Nothing in the Petition, however, even remotely addresses such aging-related issues, or in any way connects these concerns to the issues under review by the Task Force. To speculate that any forthcoming recommendations from the Task Force will implicate NRCs license renewal processes is to engage in unwarranted supposition. Thus, it is unwarranted to await such potential regulatory changes and to do so would be contrary to NRC principles of reasoned, efficient, and expeditious decision-making.

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 accident and which could 47 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.

48 Makhijani Declaration ¶ 16.

49 See 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.

50 See Fla. Power & Light Co. (Turkey Point Nuclear Power Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 7-10 (2001); see also McGuire-Catawba, CLI-01-27, 54 NRC at 391.

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affect the outcome of the environmental analysis in individual licensing proceedings.51 Thus, according to Petitioners, suspension of this proceeding is necessary to protect the integrity of the NEPA process.52 Although it appears Petitioners are asking that NRC prepare some sort of generic NEPA evaluation of the Fukushima accident and any resulting NRC Task Force recommendations, there is no dispute that, in this proceeding, NRC will prepare a supplement to the Generic Environmental Impact Statement for License Renewal (GEIS).53 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.54 The Petition identifies nothing suggesting that the evaluation of these issues in this proceeding is or will be inadequate when NRC issues its supplemental EIS evaluating the Davis-Besse license renewal.55 Furthermore, it is important to recognize that existing NRC regulations already require new and significant information to be addressed in ongoing licensing proceedings.56 Specifically, once an EIS is issued in this proceeding, 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 51 Petition at 26-28.

52 Id. at 27.

53 See 10 C.F.R. §§ 51.71(d), 51.95(c).

54 See, e.g., id. §§ 51.53(c)(3)(ii)(L), 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); NUREG-1555, Supp.1, Standard Review Plans for Environmental Reviews for Nuclear Power Plants:

Environmental Standard Review Plan for Operating License Renewal §§ 5.1.1, 5.2 (Mar. 2000).

55 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 information from the Fukushima accident to the relevant evaluation in this proceeding. See Makhijani Declaration ¶¶ 29-31.

56 See 10 C.F.R. §§ 51.53(c)(3)(iv), 51.72(a)(2), 51.92(a)(2).

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environmental concerns that bear on the proposed action or its impacts.57 The Petition fails to acknowledge this existing regulatory requirement, much less explain why it is insufficient in these circumstances or why suspension of this proceeding 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.58 Petitioners also claim that the NRC must prepare a supplemental EIS or environmental assessment (EA) assessing the significance of the Fukushima accident simply because NRC allegedly has conceded that new information based on the accident could have a significant effect on regulatory programs.59 In accordance with NRC regulations, an EIS need not be supplemented merely because the NRC is investigating the implications of the Fukushima accident or any other new information. 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.60 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.61 It is not enough that the information may be worthy of further inquiry or may be considered 57 See id. §§ 51.72(a)(2), 51.92(a)(2).

58 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.).

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

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

61 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)).

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important research.62 The Petition provides nothing indicating that this high standard will be met for Davis-Besse 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.63 Such generic conjecture is, again, inadequate to support the Petition or to justify the requested relief.

Furthermore, in the license renewal context, issues related to environmental impacts of severe accidents are resolved generically and may not be challenged absent a waiver. Based on the GEIS, and as codified in NRC regulations, the Commission generically determined that the probability weighted environmental impacts from severe accidents are small for all plants.64 The Commission recently emphasized this aspect of the GEIS and Part 51 in the Pilgrim license renewal proceeding stating that, [b]ecause the GEIS provides a severe accident impacts analysis that envelopes the potential impacts at all existing plants, the environmental impacts of severe accidents during the license renewal term already have been addressed generically in bounding fashion.65 The Commission has made clear that adjudicating generic issues such as these based merely on a claim of new and significant information, would defeat the purpose of resolving generic issues in the GEIS.66 Rather, in order to challenge this conclusion, Petitioners would have to seek a waiver of the regulations pursuant to 10 C.F.R. § 2.335 and, among other things, show that there are special circumstances with respect to the facility at issue that warrants setting 62 Wisconsin, 745 F.2d at 420.

63 Petition at 26-27 (emphasis added).

64 10 C.F.R. Part 51, Subpt. A, App. B, Tbl. B-1 (emphasis added).

65 Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-11, slip op. at 38 (Mar. 26, 2010)

(emphasis in original).

66 Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station), CLI-07-3, 65 NRC 13, 21 (2007).

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aside the Commissions generic findings.67 Petitioners, however, have made no attempt to satisfy these requirements.

Petitioners are also incorrect in claiming that NRC must prepare an EA even if it concludes that new information, based on the Fukushima 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.68 Instead, as noted above, NRC regulations only require the preparation of a supplemental EIS to address significant new circumstances or information relevant to the proposed action.69

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 accident.70 According to Petitioners, the 67 Turkey Point, CLI-01-17, 54 NRC at 12 (In the hearing process, . . . petitioners with new information showing that a generic rule would not serve its purpose at a particular plant may seek a waiver of the rule. See 10 C.F.R. § [2.335].).

68 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); Hodge 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 rely on a non-NEPA document, such as a supplementary report or a reevaluation, as the basis for making this decision.).

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

70 Petition at 3, 23-24, 29.

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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.71 NRC regulations and case law already provide clear and uniform standards to determine the timeliness of motions to add new contentions or to reopen the record.72 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.73 Similarly, in responding to 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.74 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.75 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 accident in the first instance.76 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 71 Id. at 23.

72 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).

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

74 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).

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

76 Petition at 24.

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filings.77 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 months simply because going forward will prove difficult for litigants or their lawyers.78 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.

77 See 10 C.F.R. § 2.309.

78 McGuire-Catawba, CLI-01-27, 54 NRC at 391.

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V. CONCLUSION Suspending ongoing proceedings is an extraordinary remedy that is not warranted and should not be granted in this case. Petitioners have not made a compelling demonstration that such extraordinary relief is warranted in this proceeding, as their Petition is laden with the procedural and substantive deficiencies discussed above. 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 accident at the Fukushima Daiichi facility. 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)

Signed (electronically) by Kathryn M. Sutton Kathryn M. Sutton Alex S. Polonsky Stephen J. Burdick Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, DC 20004 Phone: 202-739-5830 E-mail: apolonsky@morganlewis.com David W. Jenkins Senior Attorney FirstEnergy Service Company Mailstop: A-GO-15 76 South Main Street Akron, OH 44308 Phone: 330-384-5037 E-mail: djenkins@firstenergycorp.com COUNSEL FOR FIRSTENERGY Dated in Washington, D.C.

this 2nd day of May 2011 20

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION

)

In the Matter of )

) Docket No. 50-346-LR FIRSTENERGY NUCLEAR OPERATING COMPANY )

)

(Davis-Besse Nuclear Power Station, Unit 1) ) May 2, 2011

)

CERTIFICATE OF SERVICE I hereby certify that, on this date, a copy of FirstEnergys Answer in Opposition to Emergency Petition to Suspend Licensing Proceedings was filed with the Electronic Information Exchange in the above-captioned proceeding on the following recipients.

Administrative Judge Administrative Judge William J. Froehlich, Chair Dr. Nicholas G. Trikouros Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: wjf1@nrc.gov E-mail: nicholas.trikouros@nrc.gov Administrative Judge Office of the General Counsel Dr. William E. Kastenberg U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Mail Stop O-15D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 Brian G. Harris E-mail: wek1@nrc.gov Megan Wright Emily L. Monteith E-mail: Brian.Harris@nrc.gov; Office of the Secretary Megan.Wright@nrc.gov; U.S. Nuclear Regulatory Commission Emily.Monteith@nrc.gov Rulemakings and Adjudications Staff Washington, DC 20555-0001 E-mail: hearingdocket@nrc.gov

Office of Commission Appellate Adjudication Michael Keegan U.S. Nuclear Regulatory Commission Dont Waste Michigan Mail Stop: O-16C1 811 Harrison Street Washington, DC 20555-0001 Monroe, MI 48161 E-mail: ocaamail@nrc.gov E-mail: mkeeganj@comcast.net Kevin Kamps Terry J. Lodge Paul Gunter 316 N. Michigan St., Ste. 520 Beyond Nuclear Toledo, OH 43604 6930 Carroll Avenue, Suite 400 E-mail: tjlodge50@yahoo.com Takoma Park, MD 20912 E-mail: kevin@beyondnuclear.org; paul@beyondnuclear.org Signed (electronically) by Stephen J. Burdick Stephen J. Burdick Morgan, Lewis & Bockius LLP 1111 Pennsylvania Avenue, N.W.

Washington, DC 20004 Phone: 202-739-5059 E-mail: sburdick@morganlewis.com COUNSEL FOR FIRSTENERGY DB1/ 67091113.4 2