ML11263A252

Tennessee Valley Authority'S Surreply to the Reply of Southern Alliance Fo Clean Energy

ML11263A252
Person / Time
Site:	Watts Bar
Issue date:	09/20/2011
From:	Sutton K Morgan, Morgan, Lewis & Bockius, LLP, Tennessee Valley Authority
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 21066, 50-391-OL, ASLBP 09-893-01-OL-BD01
Download: ML11263A252 (6)

Text

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

)

In the Matter of )

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

)

(Watts Bar Nuclear Plant Unit 2) )

) September 20, 2011 TENNESSEE VALLEY AUTHORITYS SURREPLY TO THE REPLY OF SOUTHERN ALLIANCE FOR CLEAN ENERGY Pursuant to the Atomic Safety and Licensing Boards September 20, 2011 Order,1 Tennessee Valley Authority (TVA) hereby files this surreply to Southern Alliance for Clean Energys [SACEs] Reply to Oppositions to Admission of New Contention (Reply) and SACEs associated Reply Memorandum filed on September 13, 2011.2 As SACE readily acknowledges, the core premise of its proposed New Contention is that the NRCs Japan Task Force Report contains new and significant information within the meaning of the National Environmental Policy Act (NEPA) and the NRCs 10 C.F.R. Part 51 regulations.3 Now claiming that its New Contention is one of omission, SACE alleges that TVA and the NRC Staff have not addressed new and significant information purportedly 1

Licensing Board Order (Granting TVAs Request to File a Surreply) (Sept. 20, 2011) (unpublished).

2 See Reply Memorandum Regarding Timeliness and Admissibility of New Contentions Seeking Consideration of Environmental Implications of Fukushima Task Force Report in Individual Reactor Licensing Proceedings (Sept. 13, 2011) (Reply Memorandum).

3 See Reply Memorandum at 8 (The central thrust of the contention is that the Task Force Report constitutes significant new information under NEPA and the NEPA Documents need to be supplemented accordingly.);

id. at 12 (The contentions, however, are based upon the new and significant information contained in the Task Force Report.).

contained in the Task Force Report.4 It further suggests that the Commissions recent ruling in CLI-11-055 supports its position and the admission of the New Contention.6 That is not so. CLI-11-05 commands precisely the opposite resultdenial of the New Contention as inadmissible under 10 C.F.R. § 2.309(f)(2). In CLI-11-05, the Commission held that the Task Force Report does not contain new and significant information that would trigger the need for an immediate generic NEPA review by the NRC or supplementing final environmental impact statements (EISs) prepared in connection with individual licensing proceedings. The Commissions Order is clear on this point:

To merit this additional [NEPA] review, information must be both new and significant, and it must bear on the proposed action or its impacts. As we have explained, [t]he new information must present a seriously different picture of the environmental impact of the proposed project from what was previously envisioned.

That is not the case here, given the current state of information available to us.7 SACE attempts to avoid the clear import of CLI-11-05 by arguing that the Commission and its Staff have shirked their NEPA obligations to consider whether the Task Force Report constitutes new and significant information that must be considered in individual reactor licensing decisions.8 But that argument is incorrect for at least two reasons. First, as noted above, the Commission explicitly rejected any notion that the Japan Task Force Report, in and of 4

See id. at 5-6, 8; see also Reply at 2.

5 See Union Elec. Co. (Callaway Plant, Unit 2), CLI-11-05, 74 NRC __, slip op. (Sept. 9, 2011).

6 See Reply Memorandum at 2 (stating that CLI-11-05 contains language that bears on the timeliness and admissibility of the contentions).

7 CLI-11-05, slip op. at 31 (quoting and citing Hydro Res., Inc. (2929 Coors Road, Suite 101, Albuquerque, NM 87120), CLI-99-22, 50 NRC 3, 14 (1999); Marsh v. Or. Natural Res. Council, 490 U.S. 360, 373 (1989); Sierra Club v. Froehlke, 816 F.2d 205, 210 (5th Cir. 1987)) (emphasis added).

8 See Reply Memorandum at 4.

itself, contains new and significant information that is relevant to any generic or site-specific analysis of environmental impacts under NEPA and 10 C.F.R. Part 51.9 Second, the Commission stated unequivocally that any request to undertake a supplemental NEPA review in response to the events at Fukushima is premature.10 Notwithstanding the issuance of the Task Force Report and its associated recommendations, the NRC continues to evaluate the Fukushima accident and its implications for U.S. nuclear facilities. As the Commission put it, the full picture of what happened at Fukushima is still far from clear and, as such, any related NEPA duty does not accrue now.11 Accordingly, for the reasons set forth above and in TVAs September 6, 2011 Answer,12 the Task Force Report does not contain new and significant information that might necessitate supplemental NEPA review by TVA or the NRC Staff as part of this proceeding. CLI-11-05, an Order of the Commission that is binding on this Board, further corroborates this critical point and compels denial of the New Contention as inadmissible.

9 CLI-11-05, slip op. at 30-31.

10 Id. at 30.

11 Id; see also id. at 30-31 (If, however, new and significant information comes to light that requires consideration as part of the ongoing preparation of application-specific NEPA documents, the agency will assess the significance of that information, as appropriate.).

12 See Tennessee Valley Authoritys Answer in Opposition to Proposed Contention Regarding Fukushima Task Force Report (Sept. 6, 2011).

Respectfully submitted, Signed (electronically) by Kathryn M. Sutton Edward J. Vigluicci, Esq. Kathryn M. Sutton, Esq.

Scott A. Vance, Esq. Paul M. Bessette, Esq.

Christopher C. Chandler, Esq. MORGAN, LEWIS & BOCKIUS LLP Office of the General Counsel 1111 Pennsylvania Avenue, N.W.

Tennessee Valley Authority Washington, D.C. 20004 400 W. Summit Hill Drive, WT 6A-K Phone: (202) 739-3000 Knoxville, TN 37902 Fax: (202) 739-3001 Phone: 865-632-7317 E-mail: ksutton@morganlewis.com Fax: 865-632-6147 E-mail: pbessette@morganlewis.com E-mail: ejvigluicci@tva.gov E-mail: savance@tva.gov E-mail: ccchandler0@tva.gov COUNSEL FOR TVA Dated in Washington, D.C.

this 20th day of September 2011 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD

)

In the Matter of )

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

) September 20, 2011 (Watts Bar Nuclear Plant Unit 2) )

)

CERTIFICATE OF SERVICE I hereby certify that, on September 20, 2011, a copy of Tennessee Valley Authoritys Surreply to the Reply of Southern Alliance for Clean Energy was served by the Electronic Information Exchange on the following recipients:

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

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

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

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

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

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

Representative of Southern Alliance for Clean Energy (SACE)

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

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

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

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