Text

Firstenergys Answer Opposing Joint Petitioners Motion to Admit and Proposed Contention Regarding Fukushima Task Force Report
	ML11249A209
Person / Time
Site:	Davis Besse
Issue date:	09/06/2011
From:	Jenkins D, Polonsky A, Sutton K; FirstEnergy Corp, Morgan, Morgan, Lewis & Bockius, LLP
To:	; Atomic Safety and Licensing Board Panel
	SECY RAS
References
	RAS 20932, 50-346-LR, ASLBP 11-907-01-LR-BD01
	Download: ML11249A209 (170)
	v • d • e

DB1/ 68018979 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of

)

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

)

(Davis-Besse Nuclear Power Station, Unit 1)

)

September 6, 2011

)

FIRSTENERGYS ANSWER OPPOSING JOINT PETITIONERS MOTION TO ADMIT AND PROPOSED CONTENTION REGARDING FUKUSHIMA TASK FORCE REPORT Kathryn M. Sutton Alex S. Polonsky 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 Corporate Counsel 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

DB1/ 68018979 TABLE OF CONTENTS I.

INTRODUCTION............................................................................................................. 1 II.

BACKGROUND............................................................................................................... 2 III.

LEGAL STANDARDS..................................................................................................... 4 IV.

ARGUMENT..................................................................................................................... 5 A.

The Filings Should Be Summarily Dismissed on Procedural Grounds................. 5

1.

Petitioners Failed to Consult With FirstEnergy in Violation of Section 2.323 and the Boards Scheduling Order...................................... 5

2.

Petitioners Cannot Simply Proffer a Contention from Another Proceeding, Which Challenges a Different Application, and Meet the Requirements of 10 C.F.R. § 2.309(f)(1)............................................. 5 B.

The Motion Does Not Satisfy the Timeliness Requirements in 10 C.F.R.

§ 2.309(f)(2) and (c)(1).......................................................................................... 9

1.

The Motion Is Untimely Under 10 C.F.R. § 2.309(f)(2)........................... 9

2.

The Motion Does Not Satisfy the Requirements for Nontimely Filings Under 10 C.F.R. § 2.309(c)(1)..................................................... 12

a.

Petitioners Have Not Shown Good Cause for Failing to File on Time........................................................................................ 13

b.

Petitioners Have Not Made a Compelling Showing on the Remaining Factors....................................................................... 14 C.

The Petitioners Proposed New Contention Does Not Satisfy the NRCs Contention Admissibility Requirements in 10 C.F.R. § 2.309(f)(1)................... 16

1.

The Contention Challenges the Adequacy of Existing NRC Regulations and Raises Issues That Are Likely to Become the Subject of Rulemaking, Contrary to 10 C.F.R. §§ 2.309(f)(1)(iii) and 2.335(a)............................................................................................. 17

2.

The Contention Improperly Interprets NEPAs New and Significant Standard for a Supplemental EIS, Failing to Raise a Material Issue of Fact or Law, Contrary to 10 C.F.R.

§ 2.309(f)(1)(iv)....................................................................................... 20

3.

The Contention Improperly Seeks An Evaluation of Economic Costs of Mitigation Measures, Failing to Raise a Material Issue of Fact or Law, Contrary to 10 C.F.R.

§ 2.309(f)(1)(iv)....................................................................................... 23

4.

The Contention Lacks Adequate Factual Support and Mischaracterizes the Task Force Report, Contrary to 10 C.F.R.

§ 2.309(f)(1)(v)........................................................................................ 24

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5.

The Contention Does Not Provide Sufficient Information to Show That a Genuine Dispute Exists with the ERs Evaluation of Severe Accidents or SAMAs, Contrary to 10 C.F.R. § 2.309(f)(1)(vi)............... 25 V.

CONCLUSION................................................................................................................ 27

DB1/ 68018979 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of

)

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

)

(Davis-Besse Nuclear Power Station, Unit 1)

)

September 6, 2011

)

FIRSTENERGYS ANSWER OPPOSING JOINT PETITIONERS MOTION TO ADMIT AND PROPOSED CONTENTION REGARDING FUKUSHIMA TASK FORCE REPORT I.

INTRODUCTION On August 11 and 12, 2011, Beyond Nuclear, Citizens Environment Alliance of Southwestern Ontario, Dont Waste Michigan, and the Green Party of Ohio (Joint Petitioners or Petitioners) filed with the Atomic Safety and Licensing Board (Board) a Motion to admit a proposed New Contention which makes no attempt to dispute any information presented in the Davis-Besse License Renewal Application (LRA).1 Through a reference to a pleading filed on the Seabrook license renewal docket,2 Petitioners attempt to vicariously question the safety and environmental implications of the NRC Task Force Report3 in the Davis-Besse license renewal proceeding. FirstEnergy Nuclear Operating Company (FirstEnergy) is filing this timely 1

Motion to Admit New Contention Regarding the Safety and Environmental Implications of the Nuclear Regulatory Commission Task Force Report on the Fukushima Dai-Ichi Accident (Aug. 11, 2011) (Motion);

Contention in Support of Motion to Admit New Contention Regarding the Safety and Environmental Implications of the Nuclear Regulatory Commission Task Force Report on the Fukushima Dai-Ichi Accident (Aug. 12, 2011) (New Contention). The Motion also attached the Declaration of Dr. Arjun Makhijani Regarding Safety and Environmental Significance of NRC Task Force Report Regarding Lessons Learned from Fukushima Daiichi Nuclear Power Station Accident (Aug. 8, 2011) (Makhijani Declaration).

2 The New Contention simply attached a pleading filed in the Seabrook license renewal proceeding: Contention Regarding NEPA Requirement to Address Safety and Environmental Implications of the Fukushima Task Force Report, NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1) (Aug. 11, 2011).

3 Recommendations for Enhancing Reactor Safety in the 21st Century: The Near-Term Task Force Review of Insights from the Fukushima Dai-ichi Accident (July 12, 2011) (Task Force Report), available in ADAMS at ML111861807 (Attachment 1).

DB1/ 68018979 2

Answer in opposition pursuant to 10 C.F.R. §§ 2.323(c) and 2.309(h)(1) and the Boards June 15, 2011 Initial Scheduling Order (Scheduling Order).4 As demonstrated below, the Board should deny the Motion and dismiss the proposed New Contention due to its numerous and significant deficiencies, including its untimeliness and failure to satisfy governing admissibility regulations. Most significantly, Petitioners filings must be rejected because Petitioners: (a) failed to consult with the other parties to this proceeding, as is required prior to filing any motion; (b) fail to raise a genuine dispute with the Davis-Besse LRA because their filing challenges a different application filed in a different proceeding; (c) challenge controlling NRC regulations; and (d) raise issues that the Commission is handling generically through rulemaking.

II.

BACKGROUND The Davis-Besse Nuclear Power Station, Unit 1 (Davis-Besse) is located in Ohio, and generates 908 MWe of baseload electrical power.5 The current operating license for Davis-Besse expires at midnight on April 22, 2017.6 On August 27, 2010, FirstEnergy submitted its LRA,7 requesting that the NRC renew the Davis-Besse operating license for an additional twenty years (i.e., until midnight on April 22, 2037).8 The NRC accepted the Application for docketing and published a Hearing Notice in the Federal Register on October 25, 2010.9 4

Under 10 C.F.R. § 2.309(h)(1), the applicant may file an answer to a proffered contention within 25 days of the service of the contention. The Scheduling Order in this proceeding reiterates that FirstEnergy may file an answer to a motion for leave to file a new contention and a proposed contention within 25 days after service of those pleadings. Scheduling Order at 13.

5 Applicants Environmental Report, Operating License Renewal Stage, Davis-Besse Nuclear Power Station, at 3.1-1, 7.2-1 (Aug. 2010) (ER), available in ADAMS at ML102450563.

6 Id. at 1.1-1.

7 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).

8 ER at 1.1-1.

9 See Hearing Notice, 75 Fed. Reg. at 65,528-29.

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On December 27 and 28, 2010, the Petitioners jointly filed a Request for Public Hearing and Petition for Leave to Intervene (Intervention Petition). In LBP-11-13, on April 26, 2011, the Board admitted the Petitioners as parties to the proceeding and admitted two contentions.10 FirstEnergys appeal of that ruling is pending before the Commission.11 Subsequently, on April 14, 2011, Petitioners filed with the Commission an Emergency Petition to Suspend Licensing Decisions and Related Rulemaking Decisions Pending Investigation of Lessons Learned from Fukushima Daiichi Nuclear Power Station Accident (Suspension Petition).12 In summary, the Suspension Petition requested that the Commission suspend all decisions and hearings in this (and other) proceedings, perform a National Environmental Policy Act (NEPA) analysis for whether the events in Japan constitute new and significant information for NEPA purposes, and take other related actions.13 Both FirstEnergy and the NRC Staff, in their respective answers, opposed the Suspension Petition, which also remains pending before the Commission.14 10 FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), LBP-11-13, 73 NRC __, slip op. at 64-65 (Apr. 26, 2011).

11 FirstEnergys Brief in Support of the Appeal of LBP-11-13 (May 6, 2011) (FirstEnergy Appeal Brief).

12 See Docket No. 50-346-LR, 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); 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); Declaration 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) (Makhijani Suspension Petition Declaration). All citations to the Suspension Petition in this Answer are to the corrected version of the Suspension Petition served on April 19, 2011, in Docket No. 50-356-LR. Several other intervenor groups filed versions of the Suspension Petition on the dockets of other ongoing licensing proceedings.

13 See Suspension Petition at 1-3, 28-29.

14 FirstEnergys Answer in Opposition to Emergency Petition to Suspend Licensing Proceedings (May 2, 2011);

NRC Staff Answer 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 (May 2, 2011); see also Petitioners Motion for Modification of the Commissions April 19, 2011, Order to Permit a Consolidated Reply (May 6, 2011); Petitioners Reply to Responses 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 (May 6, 2011);

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On August 11 and 12, 2011, Petitioners filed the instant Motion and proposed a New Contention, respectively. Notably, the New Contention merely incorporate[s] by reference and attaches a contention that Beyond Nuclear filed in the Seabrook license renewal proceeding.15 It alleges:

The [environmental report] ER for Seabrook license renewal fails to satisfy the requirements of NEPA because it does not address the new and significant environmental implications of the findings and recommendations raised by the NRCs Fukushima Task Force Report. As required by NEPA and the NRC regulations, these implications must be addressed in the ER.16 The Petitioners made no effort to raise a dispute with the Davis-Besse LRA. Instead, they simply attached the entire Seabrook pleading under cover of a Davis-Besse docket number.17 Such a gross omission of requisite basis, specificity, and nexus to the LRA pending before this Board renders the Petitioners latest filings fatally defective.

III.

LEGAL STANDARDS As discussed below, Petitioners must satisfy the requirements in: (1) 10 C.F.R. § 2.323 for motions; (2) 10 C.F.R. § 2.309(f)(1) and (c) for late-filed contentions; and (3) 10 C.F.R.

§ 2.309(f)(1) for contention admissibility. Failure to satisfy any of these regulations compels the rejection of Petitioners latest filings.

FirstEnergys Answer Opposing Petitioners Motion to Permit a Consolidated Reply (May 16, 2011); NRC Staffs Answer to Petitioners Motion for Modification of the Commissions April 19, 2011, Order to Permit a Consolidated Reply (May 16, 2011).

15 New Contention at 1.

16 Id., Attachment at 5 (emphasis added).

17 Contrary to the Boards Scheduling Order, however, Petitioners do not attach the Task Force Report itself to their Motion. See Scheduling Order at 19 (requiring motions to attach reports and other documents referred to in the motion). Therefore, the Board should not permit Petitioners to rely upon any information in the Task Force Report.

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IV.

ARGUMENT A.

The Filings Should Be Summarily Dismissed on Procedural Grounds

1.

Petitioners Failed to Consult With FirstEnergy in Violation of Section 2.323 and the Boards Scheduling Order Under the NRCs regulations, a motion must be rejected if it does not include a certification that the moving party has made a sincere effort to contact other parties to the proceeding and resolve the issues raised in the motion.18 In this proceeding, the Board itself has mandated that motions will be summarily rejected if they do not include the certification specified in 10 C.F.R. § 2.323(b) that a sincere attempt to resolve the issues has been made.19 Contrary to 10 C.F.R. § 2.323 and Boards Scheduling Order, Petitioners made no attempt to contact FirstEnergy or its counsel and resolve the issues raised in the Motion and New Contention. Counsel for First Energy first learned about the Motion and New Contentions when Petitioners filed them through the NRCs Electronic Information Exchange. Since Petitioners did not make any effort to consult with opposing counsel, the Motion is procedurally defective and should be summarily rejected.20 This is just the first of many fatal flaws which each renders the New Contention inadmissible.

2.

Petitioners Cannot Simply Proffer a Contention from Another Proceeding, Which Challenges a Different Application, and Meet the Requirements of 10 C.F.R. § 2.309(f)(1)

A new contention must meet the admissibility requirements set forth in 10 C.F.R.

§ 2.309(f)(1)(i) to (vi).21 Specifically, under 10 C.F.R. § 2.309(f)(1), a hearing request must set 18 10 C.F.R. § 2.323(b).

19 Scheduling Order at 18.

20 Id.

21 See Sacramento Mun. Util. Dist. (Rancho Seco Nuclear Generating Station), CLI-93-12, 37 NRC 355, 362-63 (1993); see also Crow Butte Res., Inc. (In Situ Leach Facility, Crawford, Neb.), CLI-09-9, 69 NRC 331, 364 (2009) (stating that the timeliness of the late-filed contention need not be evaluated because the contention did not satisfy the contention admissibility requirements of 10 C.F.R. § 2.309(f)(1)). These requirements are discussed in detail in FirstEnergys January 21, 2011, Answer opposing the Intervention Petition.

DB1/ 68018979 6

forth with particularity the contentions sought to be raised. The regulation specifies that each contention must: (1) provide a specific statement of the legal or factual issue sought to be raised; (2) provide a brief explanation of the basis for the contention; (3) demonstrate that the issue raised is within the scope of the proceeding; (4) demonstrate that the issue raised is material to the findings the NRC must make to support the action that is involved in the proceeding; (5) provide a concise statement of the alleged facts or expert opinions, including references to specific sources and documents that support the petitioners position and upon which the petitioner intends to rely; and (6) provide sufficient information to show that a genuine dispute exists with regard to a material issue of law or fact.22 The failure to comply with any one of the six admissibility criteria is grounds for rejecting a new contention.23 The Commissions rules on contention admissibility are strict by design.24 The rules were toughened... in 1989 because in prior years licensing boards had admitted and litigated numerous contentions that appeared to be based on little more than speculation.25 Prior to the amended rule, it was possible for intervenors to be admitted to hearing after merely copying contentions from another proceeding involving another reactor.26 As the Commission has stated, we require parties to come forward at the outset with sufficiently detailed grievances to allow the adjudicator to conclude that genuine disputes exist justifying a commitment of adjudicatory resources to resolve them.27 Significantly, to raise a genuine dispute under Section 22 10 C.F.R. § 2.309(f)(1)(i)-(vi).

23 See Final Rule, Changes to Adjudicatory Process, 69 Fed. Reg. 2182, 2221 (Jan. 14, 2004); see also Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999).

24 Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-01-24, 54 NRC 349, 358 (2001).

25 Id. (citing Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2 & 3), CLI-99-11, 49 NRC 328, 334 (1999)).

26 Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), CLI-01-17, 54 NRC 3, 19 (2001) (emphasis added).

27 N. Atl. Energy Serv. Corp. (Seabrook Station, Unit 1), CLI-99-6, 49 NRC 201, 219 (1999).

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2.309(f)(1)(vi),28 a petitioner must read the pertinent portions of the license application... state the applicants position and the petitioners opposing view, and explain why it disagrees with the applicant.29 If a petitioner believes the license application fails to adequately address a relevant issue, then the petitioner is to explain why the application is deficient.30 A contention that does not directly controvert a position taken by the applicant in the application is subject to dismissal.31 With this standard in mind, the deficiency in Petitioners filings is nothing short of astounding. Rather than submit a contention which even attempts to challenge the Davis-Besse LRA, as is required by 10 C.F.R. § 2.309(f)(1)(vi), Petitioners have instead incorporate[d] by reference and attached a pleading filed in the Seabrook license renewal proceeding.32 Petitioners pleading attempts to raise a dispute with the ER and Draft Supplemental Environmental Impact Statement (DSEIS) issued in the Seabrook proceeding. It quotes at length from the Seabrook DSEIS.33 It alleges that the values assigned to the cost-benefit analysis for Seabrook SAMAs, as relevantly described in Sections 5.1, 5.30, and 5.35 of the

[DSEIS] must be re-evaluated in light of the Task Forces alleged conclusions.34 Again, quite astounding is the fact that none of this discussion references or raises a dispute with the Davis-28 This regulation requires a contention to provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact. This information must include references to specific portions of the application (including the applicants environmental report and safety report) that the petitioner disputes. 10 C.F.R. § 2.309(f)(1)(vi) (emphasis added).

29 Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process, 54 Fed.

Reg. 33,168, 33,170 (Aug. 11, 1989); see also Millstone, CLI-01-24, 54 NRC at 358.

30 Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process, 54 Fed.

Reg. at 33,170; see also Ariz. Pub. Serv. Co. (Palo Verde Nuclear Generating Station, Unit Nos. 1, 2 & 3),

CLI-91-12, 34 NRC 149, 156 (1991).

31 See Tex. Utils. Elec. Co. (Comanche Peak Steam Electric Station, Unit 2), LBP-92-37, 36 NRC 370, 384 (1992), vacated as moot, CLI-93-10, 37 NRC 192 (1993).

32 New Contention at 1.

33 See id., Attachment at 15-22.

34 Id. at 15.

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Besse LRA or ER; i.e., the subject of this proceeding. Indeed, the NRC staff has not even issued a DSEIS in this proceeding.

This cloning of a contention submitted in the Seabrook proceeding continues a pattern set in the Intervention Petition, where Petitioners admitted that they relied heavily on colleagues at the Seabrook proceeding and the Pilgrim proceeding as well as Indian Point[,]35 and forgot to remove other applicants names.36 This time, Petitioners have not even bothered to directly raise a dispute with the information in FirstEnergys ER for Davis-Besse. This is plainly an example of notice pleading run amok.37 The Board must reject Petitioners blatant attempt to burden the other parties to this proceeding, as well as the Board, with the heavy burden of interpreting the proposed New Contentions relevance to the LRA at bar, identifying the issues proposed, and litigating their admissibility in the context of this proceeding. Petitioners have made absolutely no effort to read the pertinent portions of the license application... state the applicants position and the petitioners opposing view, and explain why they disagree with FirstEnergy.38 Such a frivolous contention39 must be summarily dismissed, relieving the other participants in this proceeding of the inequitable obligation of trying Petitioners case.

35 Oral Argument Tr. at 180:7-9 (Mar. 1, 2011), available in ADAMS at ML110680416 (Attachment 2).

36 Petitioners Errata at 3 (Jan. 5, 2011) (indicating that numerous references in the Petition to NextEra (for the Seabrook proceeding) or Entergy (for the Indian Point and Pilgrim proceedings) should be to FirstEnergy).

37 See S. Tex. Project Nuclear Operating Co. (S. Tex. Project, Units 1 & 2), LBP-11-21, slip op. at 20 (Aug. 26, 2011) (the Commissions rules of procedure do not permit the filing of notice pleadings) (citing Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Unit 3), CLI-09-5, 69 NRC 115, 120, 122-23 (2009)).

38 Rules of Practice for Domestic Licensing Proceedings - Procedural Changes in the Hearing Process, 54 Fed.

Reg. at 33,170.

39 Proposed Rule, Rules of Practice for Domestic Licensing Proceedings-Procedural Changes in the Hearing Process, 51 Fed. Reg. 24,365, 24,366 (July 3, 1986).

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B.

The Motion Does Not Satisfy the Timeliness Requirements in 10 C.F.R.

§ 2.309(f)(2) and (c)(1)

Pursuant to the Hearing Notice and 10 C.F.R. § 2.309(b)(3), the deadline for timely petitions to intervene in this proceeding expired on December 27, 2010, over eight months ago.

Therefore, the Petition is subject to 10 C.F.R. § 2.309(f)(2) and 10 C.F.R. § 2.309(c), which govern nontimely requests and/or petitions and contentions.40 The Petitioners bear the burden of successfully addressing the stringent late-filing criteria.41 As the Commission recently explained in Vermont Yankee: We likewise frown on intervenors seeking to introduce a new contention later than the deadline established by our regulations, and we accordingly hold them to a higher standard for the admission of such contentions.42

1.

The Motion Is Untimely Under 10 C.F.R. § 2.309(f)(2)

Under the Boards Scheduling Order,43 a new contention must meet the requirements of 10 C.F.R. § 2.309(f)(2)(i) through (iii), which provide that a petitioner may submit a new contention only with leave of the presiding officer upon a showing that:

(i)

The information upon which the amended or new contention is based was not previously available; (ii)

The information upon which the amended or new contention is based is materially different than information previously available; and 40 The Commission has indicated that for new contentions filed by an admitted party, the timeliness standard is 10 C.F.R. § 2.309(f)(2), not 10 C.F.R. § 2.309(c). See Paina Hawaii, LLC (Materials License Application),

CLI-10-18, 72 NRC __, slip op. at 40 n.171 (July 8, 2010) (discussing the applicability of Section 2.309(f)(2) versus Section 2.309(c), and stating: To be clear, in the circumstances presented here, where [the intervenor]

was admitted to this case as a party at the time it filed [the new contention], consideration of the contentions admissibility is governed by the provisions of § 2.309(f)(2), as well as the general contention admissibility requirements of § 2.309(f)(1).). Therefore, because the New Contention does not meet the timeliness requirements of Section 2.309(f)(2), the analysis should end. To be conservative and consistent with the Initial Scheduling Order, however, FirstEnergy also evaluates the timeliness requirements of Section 2.309(c).

41 See Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station), CLI-11-02, 73 NRC __ (March 10, 2011), slip op. at 5 & n. 19 (Mar. 10, 2011); AmerGen Energy Co., LLC (License Renewal for Oyster Creek Nuclear Generating Station), CLI-09-07, 69 NRC 235, 260-61 (2009).

42 Vt. Yankee, CLI-11-02, slip op. at 5.

43 See Scheduling Order at 12.

DB1/ 68018979 10 (iii)

The amended or new contention has been submitted in a timely fashion based on the availability of the subsequent information.

In some circumstances, the availability of new information may provide good cause for a late filing. In this regard, the Commission has held:

[T]he test is when the information became available and when Petitioners reasonably should have become aware of that information. In essence, not only must the petitioner have acted promptly after learning of the new information, but the information itself must be new information, not information already in the public domain.44 However, the Commission very recently reiterated that the publication of a new document, standing alone, does not meet the requirements of 10 C.F.R. § 2.309(f)(2) unless the facts in that document are new and materially different from what was previously available.45 In other words, the publication of a document wherein the NRC Staff compiles, organizes, and evaluates previously available facts cannot support the timeliness of a new contention.46 Petitioners assert that their petition is timely because it was filed within 30 days of the issuance of the Task Force Report,47 and that [b]efore issuance of the Task Force Report, the information material to the contention was simply unavailable.48 The Petitioners do not, however, identify any new information supporting the Task Forces recommendations that was first 44 Tex. Utils. Elec. Co. (Comanche Peak Steam Elec. Station, Units 1 & 2), CLI-92-12, 36 NRC 62, 70 (1992).

45 See, e.g., Entergy Nuclear Vt. Yankee, L.L.C. (Vt. Yankee Nuclear Power Station), CLI-11-02, 73 NRC __, slip op. at 13 (Mar. 10, 2011); see also N. States Power Co. (Prairie Island Nuclear Generating Plant, Units 1 & 2),

CLI-10-27, slip op. at 13-18 (Sept. 30, 2010).

46 See Prairie Island, CLI-10-27, slip op. at 14 (reversing a Boards admission of an untimely contention because the NRC Staffs Safety Evaluation Report merely compiled and organized certain pre-existing information and provided the Staffs ultimate conclusions).

47 Motion at 5.

48 Id. at 3. In fact, the Boards Scheduling Order provides that a motion and proposed new contention shall be deemed timely under 10 C.F.R. § 2.309(f)(2)(iii) if it is filed within sixty (60) days of the date when the material information on which it is based first becomes available. Scheduling Order at 12.

DB1/ 68018979 11 revealed in the Task Force Report.49 Because Petitioners have not carried their burden of identifying when any new facts supporting their new contention became public, and point instead to the publication of the Task Forces opinions and recommendations regarding the events in Japan, the New Contention is not timely.50 Indeed, Petitioners theory would defeat the purpose of the timeliness rules and authorize intervenors to wait to file contentions after the NRC Staff publishes its review of new information, a practice the Commission has repeatedly rejected.51 Moreover, Petitioners readily admit:

In the aggregate, these contentions, rulemaking comments, and the rulemaking petition follow up on the Emergency Petitions demand that the NRC comply with NEPA by addressing the lessons of the Fukushima accident in its environmental analyses for licensing decisions. Having received no response to their Emergency Petition, the signatories to the Emergency Petition now seek consideration of the Task Forces far-reaching conclusions and recommendations in each individual licensing proceeding, including the instant case.52 Thus, Petitioners concede that their New Contention is simply an alternative approach to reargue the same issues raised some four months ago in the Suspension Petition they already filed with the Commission.53 Consequently, the Motion is not timely.

49 The Intervenors claim that [n]ew emerging facts from the Fukushima catastrophe show that the consequences of a severe accident are worse than previously anticipated. Motion at 3 (citing Makhijani Declaration ¶ 11).

The Makhijani Declaration, however, contains only a conclusory statement to this effect. See Makhijani Declaration ¶ 11.

50 See Prairie Island, CLI-10-27, slip op. at 14. In addition, as explained in Section IV.B.2, below, Petitioners decision to wait until the publication of the Task Forces opinions and recommendations regarding the events in Japan, rather than providing their own experts opinion in a timely manner, seriously undermines any assertion that Petitioners are capable of assisting in the development of a sound record in this proceeding.

51 See Vt. Yankee, CLI-11-02, slip. op. at 13 (upholding the Boards denial of an untimely contention which relied upon on an NRC Information Notice which summarized and compiled previously available facts); Prairie Island, CLI-10-27, slip op. at 14.

52 New Contention, Attachment at 4.

53 The Petitioners suggest that the issues raised in the New Contention may be appropriate for generic consideration in a rulemaking and have even submitted their own rulemaking petition on the Seabrook docket.

See id.

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2.

The Motion Does Not Satisfy the Requirements for Nontimely Filings Under 10 C.F.R. § 2.309(c)(1)

Since Petitioners cannot satisfy the criteria of 10 C.F.R. § 2.309(f)(2), their new contention is considered nontimely, and they must satisfy the late-filing criteria in Section 2.309(c)(1)(i)-(viii).54 The latter regulations set forth the following eight-factor balancing test for nontimely filings:

(i)

Good cause, if any, for the failure to file on time; (ii)

The nature of the requestors/petitioners right under the Act to be made a party to the proceeding; (iii)

The nature and extent of the requestors/petitioners property, financial or other interest in the proceeding; (iv)

The possible effect of any order that may be entered in the proceeding on the requestors/petitioners interest; (v)

The availability of other means whereby the requestors/petitioners interest will be protected; (vi)

The extent to which the requestors/petitioners interests will be represented by existing parties; (vii)

The extent to which the requestors/petitioners participation will broaden the issues or delay the proceeding; and (viii) The extent to which the requestors/petitioners participation may reasonably be expected to assist in developing a sound record.

The burden is on Petitioners to demonstrate that a balancing of these factors weighs in favor of granting the petition.55 The eight factors in Section 2.309(c)(1) are not of equal importance. The first factor, whether good cause exists for the failure to file on time, is 54 See Scheduling Order at 12; 10 C.F.R. § 2.309(c)(2) (The requestor/petitioner shall address the factors in paragraphs (c)(1)(i) through (c)(1)(viii) of this section in its nontimely filing.).

55 Texas Utils. Elec. Co. (Comanche Peak Steam Elec. Station, Units 1 & 2), CLI-88-12, 28 NRC 605, 609 (1988).

DB1/ 68018979 13 entitled to the most weight.56 If good cause is lacking, then a compelling showing must be made as to the remaining factors to outweigh the lack of good cause.57 After good cause, the likelihood of substantial broadening of the issues and delay of the proceeding (factor seven) is the most significant factor.58 Factors five (availability of other means) and six (interests represented by other parties) are entitled to the least weight.59 As explained below, nowhere have Petitioners demonstrated the necessary good cause for not filing on time under 10 C.F.R. § 2.309(c)(1)(i). Nor have Petitioners made a compelling showing as to the remaining factors to outweigh the lack of good cause.60 Accordingly, the balance of the factors under 10 C.F.R. § 2.309(c)(1) demands rejection of the New Contention.

a.

Petitioners Have Not Shown Good Cause for Failing to File on Time Petitioners claim to have good cause for failing to file on time because the Motion and New Contention are based upon information in the Task Force Report, which was released on July 12, 2011.61 To show good cause, Petitioners must show that they raised their contention in a timely manner, following the availability of new information.62 As explained above in 56 Dominion Nuclear Conn., Inc. (Millstone Power Station, Unit 3), CLI-09-5, 69 NRC 115, 125-126 (2009)

([Section 2.309(c)(1)] sets forth eight factors, the most important of which is good cause for the failure to file on time. Good cause has long been interpreted to mean that the information on which the proposed new contention is based was not previously available.) (citing Pac. Gas & Elec. Co. (Diablo Canyon Power Plant Indep. Spent Fuel Storage Installation), CLI-08-1, 67 NRC 1, 6 (2008); Texas Util. Elec. Co. (Comanche Peak Steam Elec. Station, Unit 2), CLI-93-4, 37 NRC 156, 164-165 (1993)).

57 See Commonwealth Edison Co. (Braidwood Nuclear Power Station, Units 1 & 2), CLI-86-8, 23 NRC 241, 244 (1986).

58 See, e.g., Project Mgmt. Corp. (Clinch River Breeder Reactor Plant), ALAB-354, 4 NRC 383, 394 (1976).

59 See Private Fuel Storage, L.L.C. (Indep. Spent Fuel Storage Installation), LBP-00-08, 51 NRC 146, 154 (2000)

(citing Braidwood, CLI-86-8, 23 NRC at 244-45).

60 See Braidwood, CLI-86-8, 23 NRC at 244.

61 See Motion at 6.

62 See Exelon Generation Co. (Early Site Permit for Clinton ESP Site), LBP-05-19, 62 NRC 134, 162-63 (2005)

(finding that the requirements for a good cause showing under 10 C.F.R. § 2.309(c)(1)(i) are analogous to the requirements of Sections 2.309(f)(2)(i) (information not previously available) and (f)(2)(iii) (submitted in a timely fashion)), review denied, CLI-05-29, 62 NRC 801 (2005), affd sub nom. Envtl. Law & Policy Ctr. v.

NRC, 470 F.3d 676 (2006).

DB1/ 68018979 14 Section IV.B.1, Petitioners have not demonstrated that the Task Force Report constitutes new information that was not previously available. Thus, for the same reasons that Petitioners have not satisfied the timeliness requirements in 10 C.F.R. § 2.309(f)(2)(i)-(iii), they have not demonstrated good cause under 10 C.F.R. § 2.309(c)(1)(i).63

b.

Petitioners Have Not Made a Compelling Showing on the Remaining Factors Since Petitioners failed to show good cause under 10 C.F.R. § 2.309(c)(1)(i), the remaining factors must weigh heavily in their favor in order for the New Contention to be admitted.64 They do not. The New Contention, if admitted, would greatly broaden the current proceeding with new issuesissues not specific or limited to the Davis-Besse LRA; new, expanded mandatory disclosures; and a broadened scope of purported new experts. Expanding the scope of this proceeding to encompass a broad-ranging, policy-laden inquiry into the adequacy of the NRCs severe accident regulatory program would not only significantly delay this proceeding, but also requires resolution of generic policy considerations currently pending before the Commission.65 Thus, the most important of the remaining factors, the potential for the broadening of issues or delay in the proceeding (factor seven), weighs heavily and most clearly against Petitioners.

The Commission has already taken steps to protect Petitioners interests by planning broader stakeholder involvement, including potential rulemakings, concerning the Task Force recommendations.66 Just recently, it issued a Staff Requirements Memorandum emphasizing the 63 See Clinton ESP, LBP-05-19, 62 NRC at 162-63.

64 Braidwood, CLI-86-8, 23 NRC at 244.

65 See Commission Staff Requirements Memorandum (SRM) Regarding SECY-11-0093, Near-Term Report and Recommendations for Agency Actions Following the Events in Japan (Aug. 19, 2011), available in ADAMS at ML112310021 (SRM on SECY-11-0093) (Attachment 3).

66 See SRM on SECY-11-0093, at 1 (The Commission directs the staff to engage promptly with stakeholders to review and assess the recommendations of the Near-Term Task Force in a comprehensive and holistic manner for the purpose of providing the Commission with fully-informed options and recommendations. Staff is

DB1/ 68018979 15 critical importance of carefully considering the Commissions approaches for engaging internal and external stakeholders and directing the Staff to take numerous specific actions to lend additional credibility and transparency to the agencys post-Fukushima actions.67 Accordingly, ongoing Task Force-related activities and proceedings provide Petitioners with adequate means to protect their interests.68 As such, factor five also weighs heavily against the Motion and admission of the New Contention.

Furthermore, Petitioners provide no indication that their participation would contribute to the development of a sound record (factor eight). They have not even prepared a proposed contention specific to this proceeding. The reference to a pleading filed in another proceeding certainly does not contribute to the development of a sound record. Petitioners decision to simply forward the Seabrook contention, without attempting to raise any specific dispute with the information in the Davis-Besse ER underscores Petitioners apparent lack of resources and consequent inability to contribute to the development of a sound record in this proceeding.69 Moreover, Petitioners already have stated in the Suspension Petition that they do not wish to instructed to remain open to strategies and proposals presented by stakeholders, expert staff members, and others as it provides its recommendations to the Commission.).

67 Commission Staff Requirements Memorandum (SRM) Regarding COMWDM-11-0001/COMWCO-11-0001

- Engagement of Stakeholders Regarding the Events in Japan at 1 (Aug. 22, 2011), available in ADAMS at ML112340693 (Attachment 4).

68 See Dominion Nuclear Conn., Inc. (Millstone Nuclear Power Station, Units 2 & 3), CLI-05-24, 62 NRC 551, 565-66 (2005) (finding that opportunity to file a petition for rulemaking and opportunity to comment on pending petition for rulemaking provides a means for petitioner to protect its interests).

69 Cf. AmerGen Energy Co., LLC (License Renewal for Oyster Creek Nuclear Generating Station), Licensing Board Memorandum and Order (Denying Citizens Motion for Leave to Add a Contention and Motion to Add a Contention) at 9-10 (Apr. 10, 2007) (unpublished) (rejecting a claim of good cause for an untimely contention based on lack of resources because the argument - if accepted - would favor admission of nontimely contentions by petitioners with an alleged insufficiency of resources, which, in turn, would have the anomalous effect of promoting the acceptance of nontimely contentions by that class of petitioners who, due to a lack of resources, would be least likely to assist in development of a sound record. Such an outcome would be inconsistent with Commission policy and practice.) (citing Duke Power Co. (Catawba Nuclear Station, Units 1 & 2), CLI-83-19, 17 NRC 1041, 1048 (1983)), affd on other grounds, CLI-09-07, slip op. at 53.

DB1/ 68018979 16 litigate the issues raised by the New Contention in individual proceedings.70 Instead, Petitioners wish to suspend all licensing proceedings while the Commission performs a generic evaluation.71 The other factors in 10 C.F.R. § 2.309(c)(1) are less important and do not outweigh Petitioners failure to demonstrate good cause or meet factors five, seven, and eight.72 Having failed to establish good cause and make a compelling showing on three of the remaining seven factors, the balance of the untimely factors weighs against Petitioners. Therefore, Petitioners fail to meet 10 C.F.R. § 2.309(c)(1) and their Motion and New Contention, once again, should be denied.

C.

The Petitioners Proposed New Contention Does Not Satisfy the NRCs Contention Admissibility Requirements in 10 C.F.R. § 2.309(f)(1)

The Petitioners New Seabrook Contention states:

The ER for Seabrook license renewal fails to satisfy the requirements of NEPA because it does not address the new and significant environmental implications of the findings and recommendations raised by the NRCs Fukushima Task Force Report. As required by NEPA and the NRC regulations, these implications must be addressed in the ER.73 According to the Petitioners, the NRC Task Force Report recommends that the Commission establish new safety regulations for severe accidents because, in Petitioners view, the Task Force found that existing regulations were insufficient to ensure adequate protection of public health, safety, and the environment throughout the licensed life of nuclear reactors.74 As demonstrated below, this New Contention should be dismissed because it challenges the adequacy of NRCs regulatory programs and raises issues that are about to become the 70 See, e.g., New Contention, Attachment at 5 (The petitioners recognize that given the sweeping scope of the Task Force conclusions and recommendations, it may be more appropriate for the NRC to consider them in generic rather than site-specific environmental proceedings.); see also id. at 4-5, 28, 29.

71 See id. at 4.

72 See, e.g., Diablo Canyon, CLI-08-1, 67 NRC at 8; Comanche Peak, CLI-93-4, 37 NRC at 165.

73 New Contention, Attachment at 5.

74 Id. at 2.

DB1/ 68018979 17 subject of rulemaking, contrary to 10 C.F.R. §§ 2.309(f)(1)(iii) and 2.335(a); calls for consideration of issues that are not material to NRCs NEPA review, contrary to 10 C.F.R.

§ 2.309(f)(1)(iv); lacks adequate factual support and mischaracterizes the Task Force Report, contrary to 10 C.F.R. § 2.309(f)(1)(v); and lacks any nexus whatsoever to the LRA at issue in this proceeding, thereby failing to demonstrate a genuine dispute on a material issue of law or fact, contrary to 10 C.F.R. § 2.309(f)(1)(vi).

1.

The Contention Challenges the Adequacy of Existing NRC Regulations and Raises Issues That Are Likely to Become the Subject of Rulemaking, Contrary to 10 C.F.R. §§ 2.309(f)(1)(iii) and 2.335(a)

The New Contention should be rejected because it constitutes a challenge to the adequacy of NRC regulations and attempts to litigate issues that are likely to be part of future NRC rulemaking.75 Both of these challenges are prohibited by 10 C.F.R. § 2.335(a).76 First, Petitioners claim that the Task Force found existing regulations [related to severe accidents] were insufficient to ensure adequate protection of public health, safety, and the environment.77 Petitioners then assert the need for stricter requirements than existing severe accident regulations.78 This claim is impermissible under 10 C.F.R. § 2.335.79 Thus, the New Contention is outside the scope of this proceeding under 10 C.F.R. § 2.309(f)(1)(iii).80 75 See SRM on SECY-11-0093, at 1-2.

76 See Progress Energy Carolinas, Inc. (Shearon Harris Nuclear Power Plant, Units 2 & 3), CLI-10-9, slip op. at 38 (Mar. 11, 2010).

77 New Contention, Attachment at 2.

78 See id. at 3 (discussing the Task Forces recommendation that the scope of mandatory safety regulations be expanded to include severe accidents).

79 See Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 & 4), LBP-01-6, 53 NRC 138, 159, affd, CLI-01-17, 54 NRC 3 (2001); see also Duke Energy Corp. (Catawba Nuclear Station, Units 1 & 2),

CLI-04-19, 60 NRC 5, 12 (2004) (compliance with applicable NRC regulations ensures that public health and safety are adequately protected in areas covered by the regulations).

80 See also Phila. Elec. Co. (Peach Bottom Atomic Power Station, Unit 2 & 3), ALAB-216, 8 AEC 13, 20, affd in part on other grounds, CLI-74-32, 8 AEC 217 (1974) (a licensing proceeding... is plainly not the proper forum for an attack on applicable statutory requirements or for challenges to the basic structure of the Commissions regulatory process); see also Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), LBP-07-11, 66 NRC 41, 57-58 (2007) (citing Peach Bottom, ALAB-216, 8 AEC at 20).

DB1/ 68018979 18 This challenge to severe accident regulations must also be rejected because it attempts to litigate issues that are likely to be part of future NRC rulemaking.81 Commission precedent interpreting 10 C.F.R. § 2.335(a) dictates that a contention that raises a matter that is, or is about to become, the subject of a rulemaking is outside the scope of a licensing proceeding and, thus, does not provide the basis for a litigable contention.82 As evidenced by the Staff Requirements Memorandum on SECY-11-0096, the issues raised by the Seabrook contention are the subject of ongoing Commission deliberationa process that Petitioners will have a full opportunity to participate inbecause the Commission has directed the NRC Staff to:

[E]ngage promptly with stakeholders to review and assess the recommendations of the Near-Term Task Force in a comprehensive and holistic manner for the purpose of providing the Commission with fully-informed options and recommendations. Staff is instructed to remain open to strategies and proposals presented by stakeholders, expert staff members, and others as it provides its recommendations to the Commission.83 Even before the Task Force Report, the NRC stated that post-Fukushima regulatory changes will be considered in a generic manner.84 Indeed, one of the Petitioners has even submitted a rulemaking petition on the Seabrook docket, suggesting that it also believes the 81 See SRM on SECY-11-0093, at 1-2.

82 Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), CLI-10-19, 72 NRC __, slip op. at 2-3 (July 8, 2010); Oconee, CLI-99-11, 49 NRC at 345 (citing Potomac Elec. Power Co. (Douglas Point Nuclear Generating Station, Units 1 & 2), ALAB-218, 8 AEC 79, 85 (1974)). In Oconee, the Commission held that, although the topic petitioners sought to raise was not governed by a current rule, the issuance of an SRM for the NRC Staff to initiate a rulemaking on the topic was sufficient to preclude the topic from litigation in individual licensing proceedings. See Oconee, CLI-99-11, 49 NRC at 345-46. As explained below, the NRCs post-Fukushima activities are at a similar stage.

83 SRM on SECY-11-0093, at 1.

84 See Federal Respondents Memorandum on the Events at the Fukushima Daiichi Nuclear Power Station at 17-18, N.J. Envtl. Fedn v. NRC, No. 09-2567 (3d Cir. Apr. 4, 2011), available in ADAMS at ML110950095 (explaining that As with the post-TMI and post-9/11 regulatory enhancements, any lessons learned from the Fukushima Daiichi event will be applied generically to all reactors,... as appropriate to their location, design, construction, and operation.); id. at 17-18 (NRCs comprehensive and ongoing oversight of licensed facilities will assure that useful data and lessons learned from Fukushima Daiichi disaster will be absorbed by changes in NRC rules, orders, and license amendments as needed, accompanied by the public participation required by statute and regulation. This process is distinct, however, from the disposition of specific contentions admitted for hearing (or proposed for admission) in a license renewal adjudication....)

(Attachment 5)

DB1/ 68018979 19 issues raised in the New Contention may be appropriate for generic consideration.85 Petitioners may not seek adjudication of issues to be addressed by the Commission generically as part of the rulemaking process resulting from the Task Force Report.86 Thus, the New Contention should be rejected pursuant to 10 C.F.R. § 2.309(f)(iii).

Finally, the New Contentions challenge to the NRCs NEPA regulations should be rejected under Sections 2.335 and 2.309(f)(1)(iii) because it impermissibly challenges the finding in Part 51, Appendix B, that the environmental impacts of design basis accidents, severe accidents, and spent fuel pool accidents are SMALL.87 These issues are addressed generically in 10 C.F.R. Part 51, Table B-1.88 This rule is based on the Commissions explicit determination that such impacts were appropriately addressed in a generic manner.89 Because the generic environmental analyses of the GEIS have been incorporated into NRC Part 51 regulations, the conclusions of those analyses may not be challenged in litigation unless the regulations are waived by the Commission for a particular proceeding or the rule itself is suspended or altered in a rulemaking proceeding.90 The Commission has emphasized that litigating generic issues site by site based merely on a claim of new and significant information, would defeat the purpose 85 See New Contention, Attachment at 4. The New (Seabrook) Contention purports to attach a rulemaking petition filed by the intervenors in the Seabrook proceeding. See id. That rulemaking petition, however, is not attached to Petitioners New Contention, so its contents are not before this Board. See Scheduling Order at 19.

86 See Minnesota v. NRC, 602 F.2d 412, 419 (D.C. Cir. 1979) (upholding denial of requests for adjudicatory hearings because NRC was addressing Waste Confidence concerns in an ongoing rulemaking).

87 See Entergy Nuclear Generation Co. (Pilgrim Nuclear Power Station), CLI-10-11, 71 NRC __, slip op. at 37-39 (Mar. 26, 2010) (severe accidents); Entergy Nuclear Vt. Yankee, LLC (Vt. Yankee Nuclear Power Station),

CLI-07-3, 65 NRC 13, 16-17(2007) (spent fuel pool accidents), affd Massachusetts v. NRC, 522 F.3d 115 (1st Cir. 2008); 10 C.F.R. Pt. 51, App. B.

88 See 10 C.F.R. § 51.95(c)(4).

89 See Final Rule, Environmental Review for Renewal of Nuclear Power Plant Operating Licenses, 61 Fed. Reg.

66,537, 66,538 (Dec. 18, 1996) (concluding that high-level waste storage and disposal is a national problem of essentially the same degree of complexity and uncertainty for every renewal application and it would not be useful to have a repetitive reconsideration of the matter).

90 See Entergy Nuclear Operations, Inc. (Indian Point, Units 2 & 3), LBP-08-13, 68 NRC 43, 185-86 (2008); Vt.

Yankee, CLI-07-3, 65 NRC at 17-18; Fla. Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3

& 4), CLI-01-17, 54 NRC 3, 12 (2001).

DB1/ 68018979 20 of resolving generic issues in a GEIS.91 Thus, the challenge to the GEIS in the New Contention is outside the scope of this proceeding and is inadmissible under 10 C.F.R. § 2.309(f)(1)(iii).

2.

The Contention Improperly Interprets NEPAs New and Significant Standard for a Supplemental EIS, Failing to Raise a Material Issue of Fact or Law, Contrary to 10 C.F.R. § 2.309(f)(1)(iv)

The New Contention also must be rejected because it raises issues that are not material to the NRC Staffs environmental findings in this proceeding. Contrary to the Petitioners claim, an issue is not deemed significant for purposes of preparation of a supplemental EIS merely because it raises an extraordinary level of concern.92 Instead, pursuant to 10 C.F.R. § 51.92(a),

NRC Staff must only supplement an EIS 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 and bearing on the proposed action or its impacts. 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 envisioned.93 The Petitioners definition of significance is not compatible with and does not satisfy the definition in 10 C.F.R. § 51.92(a). In particular, Petitioners do not identify any change in the project or the environmental impacts of the project at issue. Indeed, Petitioners contention focuses on the Seabrook license renewal and does not address the proposed actionissuance of a renewed license for Davis-Besseat all. The Petitioners are simply incorrect, as a matter of law, 91 Vt. Yankee, CLI-07-3, 65 NRC at 21.

92 New Contention, Attachment at 13.

93 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)).

DB1/ 68018979 21 when they state that NRC is required to supplement its environmental analyses because the NRC Task Force recommendations may result in an extraordinary level of concern.94 Nor does the New Contention identify any other new information that is significant to this proceeding as that term is defined pursuant to NEPA case law and NRC regulations.

Petitioners do not identify any changes in the environmental analysis of the proposed Davis-Besse action resulting from the Task Force recommendations. To hypothesize that such changes might occur is nothing more than rank speculation that does not support the admission of a contention.95 This is not surprising given that the Task Force Report does not bear on or discuss the environmental impacts from any proposed licensing action.96 In fact, the Task Force Report does not discuss NEPA issues at all.

Petitioners seem to argue that the imposition of severe accident mitigation measures recommended in the Task Force Report would be significant because such measures would improve plant safety.97 Such speculation is not material to the environmental analysis supporting the proposed Davis-Besse licensing action. To the extent that the Task Force Report recommendations become regulatory requirements, such future requirements would serve to reduce the environmental impacts of the project below the level currently specified in the ER.

The ER would therefore be conservative and remain bounding if the Commission were to adopt the Task Force recommendations. NEPA case law is clearan agency need not supplement its 94 New Contention, Attachment at 13; see also Sierra Club v. Wagner, 555 F.3d 21, 30-31 (1st Cir. 2009)

(holding that potentially controversial nature of a project is not sufficient to require preparation of an EIS);

Coliseum Square Assn v. Jackson, 465 F.3d 215, 233-234 (5th Cir. 2006) (holding that general public opposition is insufficient to require preparation of an EIS).

95 Fansteel, CLI-03-13, 58 NRC at 203 (holding a contention inadmissible when it is based on only bare assertions and speculation) (citations and quotations omitted).

96 Nor is it surprising given that the New Contention does not even mention the Davis-Besse LRA.

97 See New Contention, Attachment at 22.

DB1/ 68018979 22 NEPA evaluation when a change will cause less environmental harm than the original project.98 Accordingly, there can be no material defect in the Davis-Besse ER, as suggested by Petitioners.

Specifically, if the Commission were to require plants to make design modifications, then those design modifications would no longer be mitigation alternatives under NEPA and become actual elements of the plants design. As a result, such design modifications would not need to be considered as part of the NRCs severe accident mitigation alternative (SAMA) evaluation under NEPA. Accordingly, the Petitioners allegations regarding consideration of the potential environmental benefits of implementing the Task Force recommendations are not material to the findings that must be made in this proceeding.

The Petitioners citation to Calvert Cliffs and Limerick Ecology Action lends no support to their claim that NRC must consider the Task Force recommendations in an EIS before reaching a decision in this proceeding.99 Those cases simply hold that NRC cannot avoid performing a NEPA evaluation because it has overlapping safety responsibilities under the Atomic Energy Act (AEA).100 But here, FirstEnergy prepared an ER, and the NRC is preparing an EIS, in support of its review of the Davis-Besse license renewal application. The Petitioners fail to identify any information in the Task Force Report that suggests there are 98 See Sierra Club v. U.S. Army Corps of Engrs, 295 F.3d 1209, 1221-22 (11th Cir. 2002); So. Trenton Residents Against 29 v. Fed. Highway Admin., 176 F.3d 658, 663-668 (3d Cir. 1999) (holding that design changes that cause less environmental harm do not require a supplemental EIS); Township of Springfield v. Lewis, 702 F.2d 426, 436 (3d Cir. 1983) (acknowledging that changes which unquestionably mitigate adverse environmental effects of the project do not require a supplemental EIS); Concerned Citizens on I-190 v. Secy of Transp.,

641 F.2d 1, 6 (1st Cir. 1981) (holding that adoption of a new environmental protection statute or regulation clearly does not constitute a change in the proposed action or any information in the relevant sense); New Eng. Coalition on Nuclear Pollution v. NRC, 582 F.2d 87, 94 (1st Cir. 1978) (holding that NRC need not supplement an EIS even though the EIS did not discuss the new cooling intake location that would have a smaller impact on the aquatic environment than would the original location); Alliance to Save the Mattaponi

v. U.S. Army Corps of Engrs, 606 F. Supp. 2d 121, 137-138 (D.D.C. 2009) (When a change reduces the environmental effects of an action, a supplemental EIS is not required.).

99 See New Contention, Attachment at 27 (citing Calvert Cliffs Coordinating Comm. v, AEC, 449 F.2d 1109, 1115 (D.C. Cir. 1971); Limerick Ecology Action v. NRC, 869 F.2d 719, 729 (3rd Cir. 1989)).

100 See, e.g., Limerick Ecology Action, 869 F.2d at 730-31 (holding that NRC cannot avoid performing a severe accident design mitigation alternative evaluation by simply relying on its obligations under the AEA).

DB1/ 68018979 23 deficiencies in the site-specific evaluations that already have been performed by FirstEnergy in the ER, and which are undergoing NRC NEPA review.

3.

The Contention Improperly Seeks An Evaluation of Economic Costs of Mitigation Measures, Failing to Raise a Material Issue of Fact or Law, Contrary to 10 C.F.R. § 2.309(f)(1)(iv)

Petitioners next argue that the potential imposition of mandatory severe accident mitigation measures is significant from a NEPA perspective because such measures could impact the overall cost-benefit analysis for the reactor.101 In support of this claim, Petitioners reference the Makhijani Declaration, which summarizes a number of potential plant changes related to implementation of the Task Forces recommendations and notes that such changes may involve significant costs.102 In a license renewal proceeding, the economic impacts of mandatory mitigation measures on the overall cost-benefit analysis are immaterial. 10 C.F.R. § 51.95(c)(2) expressly precludes consideration of the economic costs and economic benefits of the proposed action, or of alternatives to the proposed action in the FSEIS, except insofar as such benefits and costs are either essential for a determination regarding the inclusion of an alternative in the range of alternatives considered or relevant to mitigation.103 Thus, in this proceeding the NRC will not analyze the overall cost-benefit of the proposed project in comparison to alternatives.

Accordingly, the Petitioners allegations related to economic costs raise an issue that is not material to this proceeding and should be rejected in accordance with 10 C.F.R. § 2.309(f)(1)(iv).

101 New Contention, Attachment at 22-23.

102 See id. at 23; Makhijani Declaration ¶¶ 13-24.

103 See also 10 C.F.R. § 51.53(c)(2) (applying the same preclusion to the applicants environmental report).

DB1/ 68018979 24

4.

The Contention Lacks Adequate Factual Support and Mischaracterizes the Task Force Report, Contrary to 10 C.F.R.

§ 2.309(f)(1)(v)

Additionally, the New Contention should be dismissed because it fails to meet the admissibility requirements of 10 C.F.R. § 2.309(f)(1)(v). The central premise of Petitioners New Contention is that additional NEPA evaluations are necessary because current NRC regulations do not provide adequate protection. According to the Petitioners, the Task Force Report recommends the promulgation of mandatory safety regulations for severe accidents.104 Allegedly, this recommendation would not be logical or necessary to recommend... unless

[the] existing regulations were insufficient to ensure adequate protection of public health, safety, and the environment.105 Petitioners faulty logic falls far short of providing the requisite alleged facts or expert opinion under 10 C.F.R. § 2.309(f)(1)(v). While the Task Force recommended an increased level of protection,106 it also clearly stated that the current regulatory approach and regulatory requirements continue to serve as a basis for the reasonable assurance of adequate protection of public health and safety until the actions set forth below have been implemented.107 Accordingly, the Task Force Report provides no support for the Petitioners assertion that NRC regulations are currently somehow inadequate.108 104 New Contention, Attachment at 2.

105 Id.

106 Task Force Report at 18.

107 Id. at 73.

108 See Ga. Inst. of Tech. (Ga. Tech Research Reactor, Atlanta, Ga.), LBP-95-6, 41 NRC 281, 300 (1995) (holding that a petitioners imprecise reading of a document cannot be the basis for a litigable contention). Moreover, while the Task Force recommended that the Commission create a new regulatory framework referred to as extended design basis requirements, Task Force Report at 22, most of the elements of these extended design basis requirements are already contained in existing regulations (e.g., 10 C.F.R. §§ 50.54(hh), 50.62, 50.63, 50.65). As the Task Force noted, under a new framework, current design-basis requirements... would remain largely unchanged and the new framework, by itself, would not create new requirements nor eliminate any current requirements. Id. at 20-21.

DB1/ 68018979 25 Thus, the Petitioners flawed and imprecise reading of the Task Force Report cannot provide adequate factual support for a litigable contention.109

5.

The Contention Does Not Provide Sufficient Information to Show That a Genuine Dispute Exists with the ERs Evaluation of Severe Accidents or SAMAs, Contrary to 10 C.F.R. § 2.309(f)(1)(vi)

Finally, the New Contention should be rejected for failing to provide sufficient information to show that a genuine dispute existing with the Davis-Besse ERs evaluation of severe accidents or SAMAs, contrary to 10 C.F.R. § 2.309(f)(1)(vi).

Section 4.20 and Attachment E of the Davis-Besse ER contain a detailed evaluation of the environmental impacts of severe accidents. Petitioners identify nothing in the Task Force Report (or relating more generally to the Fukushima accident) suggesting there is a deficiency in this evaluation. Instead, as noted in Section IV.A.2, above, Petitioners do not even cite the Davis-Besse ER, and instead purport to challenge the Seabrook ER (and DSEIS).110 Further, neither the Task Force Report nor any other information identified by the Petitioners relating to the accident at Fukushima establishes that the risk of a severe accident with significant environment consequences is anything but SMALL. In fact, there is nothing in the Task Force Report that evaluates the environmental risk posed by existing, renewed, or new reactorsit provides no indication that there is or should be any change to the core damage frequency or large early release frequency for any plant, let alone at Davis-Besse.111 As the D.C.

109 See Ga. Tech, LBP-95-6, 41 NRC at 300.

110 Moreover, a number of Petitioners key allegations are irrelevant to Davis-Besse and therefore raise no genuine factual dispute. Petitioners allegation that plants on the Atlantic Ocean and Gulf of Mexico may have underestimated tsunami hazards, New Contention, Attachment at 24, is not relevant to Davis-Besse, which is not located near either of those bodies of water. Any suggestion that the Davis-Besse ER must be supplemented to consider the use of reliable hardened vent designs in BWR facilities, id. at 26, does not apply to Davis-Besse, which is a pressurized water reactor, not a boiling water reactor. Similarly, Davis-Besse is not a multi-unit site. See id. The Task Force recommendations related to design certifications and COL application, see, e.g., id. at 26-27, also do not apply to Davis-Besse, which is seeking license renewal.

111 To the contrary, if the Task Force recommendations are adopted, that would have the effect of further reducing the impacts discussed in the ER.

DB1/ 68018979 26 Circuit explained in rejecting a similar argument by a petitioner regarding the need to supplement an EIS following the Three Mile Island accident, the fact that the accident occurred does not establish that accidents with significant environmental impacts will have significant probabilities of occurrence.112 Similarly, here, the Petitioners fail to provide sufficient information to establish a genuine dispute with the Davis-Besse ERs evaluation of the risk of severe accidents.

To the extent that Petitioners filings can be construed to suggest that the SAMA analysis in the Davis-Besse ER might be impacted by the Task Force Report, this claim fails to establish a genuine dispute. They do not indicate the potential result if any new SAMA evaluation were performed or of the costs of the proposed accident mitigation (e.g., the Makhijani Declaration does not provide any estimate of costs). Therefore, Petitioners have not met their burden to identify a specific deficiency in the Davis-Besse SAMA analysis, including the need to indicate the approximate relative cost and benefit of any SAMAs that the Petitioners contends may be cost-beneficial.113 As the Commission has noted, [i]t would be unreasonable to trigger full adjudicatory proceedings... under circumstances in which the Petitioners have done nothing to indicate the approximate relative cost and benefit of [any proposed SAMA].114 That is precisely the situation here. Petitioners simply do not provide any reason to question the analysis in the Davis-Besse ER. They make no attempt to demonstrate that the Task Force recommendations should be evaluated in the Davis-Besse SAMA analysis, and the Report itself makes clear that 112 San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287, 1301 (D.C. Cir. 1984), affd en banc, 789 F.2d 252 (D.C. Cir. 1986).

113 Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI 17, 56 NRC 1, 12 (2002); see also Indian Point, LBP-08-13, 68 NRC at 103-05.

114 McGuire/Catawba, CLI-02-17, 56 NRC at 11-12 (quoting Vt. Yankee Nuclear Power Corp. v. Natural Res.

Def. Council, Inc., 435 U.S. 519, 551 (1978)) (citing Citizens Against Burlington v. Busey, 938 F.2d 190, 195 (D.C. Cir. 1991)).

DB1/ 68018979 27 the recommendations are being made for policy reasons rather than based on cost-benefit considerations.

V.

CONCLUSION For all the reasons discussed above, Petitioners filings fail to satisfy the standards for motions under 10 C.F.R. § 2.323(b), the standards for nontimely contentions in 10 C.F.R.

§ 2.309(f)(2) and (c), or the standards in Section 2.309(f)(1) for admitting a contention. Most significantly: (a) Petitioners failed to consult with the other parties to this proceeding, in violation of Section 2.323(b); (b) Petitioners fail to raise a genuine dispute with the Davis-Besse LRA because their filing challenges a different application filed in a different proceeding, contrary to Section 2.309(f)(1)(vi); (c) the New Contention challenges governing regulations contrary to Section 2.309(f)(1)(iii) and (d) raises issues that the Commission is handling

DB1/ 68018979 28 generically through rulemaking, contrary to Section 2.309(f)(1)(iii). Thus, the Motion and New Contention should be denied in their entirety.

Respectfully submitted, Signed (electronically) by Alex S. Polonsky Kathryn M. Sutton Alex S. Polonsky 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 Corporate Counsel 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 6th day of September 2011

DB1/ 68018979 TABLE OF ATTACHMENTS TO FIRSTENERGYS ANSWER TO NEW CONTENTION Attachment No.

Recommendations for Enhancing Reactor Safety in the 21st Century: The Near-Term Task Force Review of Insights from the Fukushima Dai-ichi Accident (July 12, 2011)........................... 1 Oral Argument Transcript (excerpt) (Mar. 1, 2011)................................................................ 2 Commission Staff Requirements Memorandum, SECY-11-0093, Near-Term Report and Recommendations for Agency Actions Following the Events in Japan (Aug. 19, 2011)....... 3 Commission Staff Requirements Memorandum Regarding COMWDM-11-0001/COMWCO 0001, Engagement of Stakeholders Regarding the Events in Japan (Aug. 22, 2011)............ 4 Federal Respondents Memorandum on the Events at the Fukushima Daiichi Nuclear Power Station, New Jersey Envtl. Fedn v. NRC, No. 09-2567 (3d Cir. Apr. 4, 2011)................... 5

DB1/ 68018979 2

FirstEnergys Answer to New Contention

THE NEAR-TERM TASK FORCE REVIEW OF INSIGHTS FROM THE FUKUSHIMA DAI-ICHI ACCIDENT

Dr. Charles Miller Amy Cubbage Daniel Dorman Jack Grobe Gary Holahan

JULY 12, 2011 THE NEAR-TERM TASK FORCE REVIEW OF INSIGHTS FROM THE FUKUSHIMA DAI-ICHI ACCIDENT

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APPENDIX A Summary of Detailed Recommendations by Implementation Strategy

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APPENDIX B Tasking Memorandum Appendix B U.S. Nuclear Regulatory Commission l 77 Enhancing Reactor Safety in the 21st Century

Appendix B 78 l U.S. Nuclear Regulatory Commission Enhancing Reactor Safety in the 21st Century

APPENDIX C Memo Transmitting Charter for the Nuclear Regulatory Commission Task Force to Conduct a Near-Term Evaluation of the Need for Agency Actions Following the Events Iin Japan Appendix C March 30, 2011 MEMORANDUM TO:

Martin J. Virgilio Deputy Executive Director for Reactor and Preparedness Programs Executive Director for Operations Charles L. Miller, Director Office of Federal and State Materials and Environmental Management Programs FROM:

R. W. Borchardt /RA/

Executive Director for Operations

SUBJECT:

AGENCY TASK FORCE TO CONDUCT NEAR-TERM EVALUATION OF THE NEED FOR AGENCY ACTIONS FOLLOWING THE EVENTS IN JAPAN On March 11th, 2011, Japan experienced a severe earthquake resulting in the shutdown of multiple reactors. It appears that the reactors response to the earthquake went according to design. At the Fukushima Daiichi site, the earthquake caused the loss of normal AC power. In addition, it appears that the ensuing tsunami caused the loss of emergency AC power at the Fukushima Daiichi site. Subsequent events caused damage to fuel and radiological releases offsite.

The purpose of this memorandum is to task the Deputy Executive Director for Reactor and Preparedness Programs (DEDR) to convene an agency task force of U.S. Nuclear Regulatory (NRC) senior leaders and experts. The task force should conduct a methodical and systematic review of relevant NRC regulatory requirements, programs, and processes, and their implementation, to recommend whether the agency should make near-term improvements to our regulatory system. The task force should also identify a framework and topics for review and assessment for the longer-term effort.

Attached is a charter for the task force. The charter defines the objective, scope, coordination and communication, expected products, schedule, staffing, and Executive Director for Operations interface. The task force should update the Commission on the near-term review at approximately 30 and 60 days, and provide its observations, findings, and recommendations in the form of a written report and briefing at the completion of the near-term effort occurring at approximately 90 days.

The review should be conducted in accordance with Tasking Memorandum -

COMGBJ-11-0002, NRC Actions Following the Events in Japan.

Enclosure:

As stated CONTACT: Nathan T. Sanfilippo, OEDO 301-415-3951 U.S. Nuclear Regulatory Commission l 79 Enhancing Reactor Safety in the 21st Century

Appendix C CHARTER FOR THE NUCLEAR REGULATORY COMMISSION TASK FORCE TO CONDUCT A NEAR-TERM EVALUATION OF THE NEED FOR AGENCY ACTIONS FOLLOWING THE EVENTS IN JAPAN Objective The objective of this task force is to conduct a methodical and systematic review of relevant NRC regulatory requirements, programs, and processes, and their implementation, to recommend whether the agency should make near-term improvements to our regulatory system. This task force will also identify a framework and topics for review and assessment for the longer-term effort.

Scope The task force review will include the following:

a. A near-term review to:

Evaluate currently available technical and operational information from the events that have occurred at the Fukushima Daiichi nuclear complex in Japan to identify potential or preliminary near-term/immediate operational or regulatory actions affecting domestic reactors of all designs, including their spent fuel pools. The task force will evaluate, at a minimum, the following technical issues and determine priority for further examination and potential agency action:

External event issues (e.g. seismic, flooding, fires, severe weather)

Station blackout

Severe accident measures (e.g., combustible gas control, emergency operating procedures, severe accident management guidelines)

10 CFR 50.54 (hh)(2) which states, Each licensee shall develop and implement guidance and strategies intended to maintain or restore core cooling, containment, and spent fuel pool cooling capabilities under the circumstances associated with loss of large areas of the plant due to explosions or fire, to include strategies in the following areas: (i) Fire fighting; (ii) Operations to mitigate fuel damage; and (iii) Actions to minimize radiological release. Also known as B.5.b.

Emergency preparedness (e.g., emergency communications, radiological protection, emergency planning zones, dose projections and modeling, protective actions)

Develop recommendations, as appropriate, for potential changes to NRCs regulatory requirements, programs, and processes, and recommend whether generic communications, orders, or other regulatory actions are needed.

80 l U.S. Nuclear Regulatory Commission Enhancing Reactor Safety in the 21st Century

Appendix C

b. Recommendations for the content, structure, and estimated resource impact for the longer-term review.

Coordination and Communications The near-term task force will:

Solicit stakeholder input as appropriate, but remain independent of industry efforts.

Coordinate and cooperate where applicable with other domestic and international efforts reviewing the events in Japan for additional insights.

Provide recommendations to the Commission for any immediate policy issues identified prior to completion of the near-term review.

Provide recommendations to program offices for any immediate actions not involving policy issues, prior to completion of the near-term review.

Identify resource implications of near-term actions.

Consider information gained from Temporary Instruction 2515/183, Followup to the Fukushima Daiichi Nuclear Station Fuel Damage Events.

Develop a communications plan.

Update and brief internal stakeholders, as appropriate.

Expected Product and Schedule The task force will provide its observations, conclusions, and recommendations in the form of a written report to the Deputy Executive Director for Reactor and Preparedness Programs at the completion of the 90-day near-term review.

During the development of its report, the task force will brief the Commission on the status of the review at approximately the 30- and 60-day points.

The report will be transmitted to the Commission via a SECY paper, and the task force will brief the Commission on the results of the near-term effort at approximately the 90-day point. The report will be released to the public via normal Commission processes.

The task force will recommend a framework for a longer-term review as a part of the near-term report. The longer-term review will begin as soon as the NRC has sufficient technical information from the events in Japan (with a goal of beginning by the end of the near-term review).

U.S. Nuclear Regulatory Commission l 81 Enhancing Reactor Safety in the 21st Century

Staffing The task force will consist of the following members:

Leader Charles Miller FSME Senior Managers Daniel Dorman NMSS Jack Grobe NRR Gary Holahan NRO Senior Staff Amy Cubbage NRO Nathan Sanfilippo OEDO Administrative Assistant Cynthia Davidson OGC Additional task force members will be added as needed. For the near-term review, other staff members may be consulted on a part-time basis.

EDO Interface The task force will keep agency leadership informed on the status of the effort and provide early identification of significant findings. The task force will report to Martin J.

Virgilio, Deputy Executive Director for Reactor and Preparedness Programs.

Appendix C 82 l U.S. Nuclear Regulatory Commission Enhancing Reactor Safety in the 21st Century

DB1/ 68018979 FirstEnergys Answer to New Contention

August 19, 2011 MEMORANDUM TO:

R. W. Borchardt Executive Director for Operations Edwin M. Hackett, Executive Director Advisory Committee on Reactor Safeguards FROM:

Andrew L. Bates, Acting Secretary

/RA/

SUBJECT:

STAFF REQUIREMENTS - SECY-11-0093 - NEAR-TERM REPORT AND RECOMMENDATIONS FOR AGENCY ACTIONS FOLLOWING THE EVENTS IN JAPAN The Commission has approved the following actions related to the near-term Task Force report and recommendations for agency actions following the events in Japan.

The Commission directs the staff to engage promptly with stakeholders to review and assess the recommendations of the Near-Term Task Force in a comprehensive and holistic manner for the purpose of providing the Commission with fully-informed options and recommendations.

Staff is instructed to remain open to strategies and proposals presented by stakeholders, expert staff members, and others as it provides its recommendations to the Commission.

The staff should provide in a notation vote paper a draft charter for the structure, scope, and expectations for assessing the Task Force recommendations and NRCs longer term review.

The draft charter should be based upon the concept envisioned by the EDO and Deputy EDO for Reactor and Preparedness Programs that establishes a senior level steering committee reporting to the EDO and supported by an internal advisory committee and an external panel of stakeholders. The draft charter should incorporate any direction provided by the Commission in response to COMWDM-11-0001/COMWCO-11-0001, if available.

(EDO)

(SECY Suspense:

8/26/11)

The staff should provide the Commission with a notation vote paper within 21 days of the issuance of this SRM that identifies and makes recommendations regarding any Task Force recommendations that can, and in the staffs judgment, should be implemented, in part or in whole, without unnecessary delay. The staff should, in framing these short-term actions, consider the wide range of regulatory tools available and these short-term actions should be assessed using the NRCs existing regulatory framework. This review should include dialogue with external stakeholders.

The staff should provide the Commission with a notation vote paper recommending a prioritization of the Task Force recommendations informed by the steering committee. This paper should reflect all regulatory actions to be taken by the staff to respond to Fukishima lessons learned, identify implementation challenges, include the technical and regulatory bases for the prioritization, identify any additional recommendations, and include a schedule and

milestones with recommendations for appropriate stakeholder engagement and involvement of the ACRS.

(EDO)

(SECY Suspense:

10/3/11)

The Advisory Committee on Reactor Safeguards (ACRS) should formally review all Task Force recommendations and the staffs evaluation and recommended prioritization of the Task Force recommendations, and document its review in letter reports to the Commission.

(ACRS)

(SECY Suspense:

following submission of 45 day notation vote paper to the Commission)

Recommendation 1 should be pursued independent of any activities associated with the review of the other Task Force recommendations. Therefore, the staff should provide the Commission with a separate notation vote paper within 18 months of the issuance of this SRM. This notation vote paper should provide options and a staff recommendation to disposition this Task Force recommendation.

cc:

Chairman Jaczko Commissioner Svinicki Commissioner Apostolakis Commissioner Magwood Commissioner Ostendorff OGC CFO OCA OPA Office Directors, Regions, ACRS, ASLBP (via E-Mail)

PDR

DB1/ 68018979 FirstEnergys Answer to New Contention

August 22, 2011 MEMORANDUM TO:

R. W. Borchardt Executive Director for Operations FROM:

Annette L. Vietti-Cook, Secretary

/RA/

SUBJECT:

STAFF REQUIREMENTS - COMWDM-11-0001/COMWCO 0001 - ENGAGEMENT OF STAKEHOLDERS REGARDING THE EVENTS IN JAPAN Given the significant public interest in the event in Japan, it is critically important for the Commission to carefully consider its approaches for engaging internal and external stakeholders and provide clear direction to the staff in this area. Comprehensive, transparent, and clear communication with our stakeholders will lend additional credibility and transparency to the agencys actions.

The staff should:

(1) Include as part of the communications plan for the next steps after issuance of the Task Force Report, a mechanism to provide the public with the NRCs most up-to-date understanding of the chronology of events at Fukushima Dai-ichi and the agencys current understanding of the plants status.

(2) Obtain, stakeholder input on the recommendations provided in the Task Force report.

The staff should ensure that input (e.g., via public meetings or workshops) from representative groups of stakeholders including industry, non-government organizations, representatives of State and local governments, other Federal agencies, and public citizens, is solicited. In addition, the staff should brief the Advisory Committee on Reactor Safeguards on the Task Force recommendations and agency plans going forward.

(3) Consult with individual public citizens who are not knowledgeable in nuclear/radiological matters to obtain feedback on the public readability and understandability of the final near term Task Force report. This consultation may assist the agency with communication to the general public. Staff is encouraged to benefit from this input while maintaining its high standards for technical rigor.

(4) No later than 6 months after public release of the Near Term Task Force report, the staff should use the insights gained from the stakeholder and public citizen input (i.e., items 1-3, above) to provide the Commission a notation vote paper considering:

a. Enhancements the agency should make to assure ongoing engagement with the public and stakeholders concerning matters related to Fukushima Dai-ichi.

b. The potential of convening a one-time group of experts to advise the agency on how it might improve NRCs external communications on significant regulatory issues. The paper should include a proposed charter, recommendation for the number of members and composition of the group, and the resources necessary for its establishment. As part of its charter, this expert group should be invited to opine regarding potential actions the NRC might take in the long term to improve stakeholder involvement, such as the establishment of a standing advisory committee for that purpose.

c. Recommendations for engaging other organizations including Federal agencies, State and local governments, nonprofits, educational institutions, and others to establish partnerships to advance public communication and education on topics associated with radiological safety.

(EDO)

(SECY Suspense:

1/20/12) cc:

Chairman Jaczko Commissioner Svinicki Commissioner Apostolakis Commissioner Magwood Commissioner Ostendorff OGC CFO OCA OPA Office Directors, Regions, ACRS, ASLBP (via E-Mail)

PDR

DB1/ 68018979 FirstEnergys Answer to New Contention

Case: 09-2567 Document: 003110489332 Page: 1 Date Filed: 04/04/2011

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DB1/ 68018979 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of

)

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

)

(Davis-Besse Nuclear Power Station, Unit 1)

)

September 6, 2011

)

CERTIFICATE OF SERVICE I hereby certify that, on this date, a copy of FirstEnergys Answer Opposing Joint Petitioners Motion to Admit and Proposed Contention Regarding Fukushima Task Force Report was filed with the Electronic Information Exchange in the above-captioned proceeding on the following recipients.

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

DB1/ 68018979 2

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

Washington, DC 20004 Phone: 202-739-5830 E-mail: apolonsky@morganlewis.com COUNSEL FOR FIRSTENERGY

ML11249A209

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