ML11263A290
| ML11263A290 | |
| Person / Time | |
|---|---|
| Site: | Davis Besse  |
| Issue date: | 09/20/2011 |
| From: | Jenkins D, Polonsky A, Sutton K FirstEnergy Nuclear Operating Co, Morgan, Morgan, Lewis & Bockius, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 21069, 50-346-LR, ASLBP 11-907-01-LR-BD01 | |
| Download: ML11263A290 (6) | |
Text
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 20, 2011
)
FIRSTENERGYS SURREPLY TO INTERVENORS REPLY TO APPLICANT AND NRC STAFF ANSWERS OPPOSING ADMISSION OF NEW CONTENTION For the reasons set forth in its accompanying Motion for Leave,1 FirstEnergy Nuclear Operating Company (FirstEnergy) hereby files this surreply to the Intervenors Reply to Staff and Applicant Oppositions to Admission of New Contention and associated Reply Memorandum filed on September 13, 2011.2 As Intervenors readily acknowledge, the core premise of their 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 their New Contention is one of omission, Intervenors allege that FirstEnergy and the NRC Staff have not addressed new and significant information 1
FirstEnergys Motion for Leave to File a Surreply to Intervenors Reply to Applicant and NRC Staff Answers (Sept. 20, 2011).
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.).
purportedly contained in the Task Force Report.4 They further assert that the Commissions recent ruling in CLI-11-055 supports their 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 Intervenors attempt 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 4
See id. at 6, 8; see also Reply at 3-4.
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.
and of 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 accident 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 FirstEnergys September 6, 2011 Answer,12 the Task Force Report does not contain new and significant information that might necessitate supplemental NEPA review by FirstEnergy 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 FirstEnergys Answer Opposing Joint Petitioners Motion to Admit and Proposed Contention Regarding Fukushima Task Force Report (Sept. 6, 2011).
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 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. 50-346-LR FIRSTENERGY NUCLEAR OPERATING COMPANY )
)
(Davis-Besse Nuclear Power Station, Unit 1) ) September 20, 2011
)
CERTIFICATE OF SERVICE I hereby certify that, on this date, a copy of FirstEnergys Surreply to Intervenors Reply to Applicant and NRC Staff Answers Opposing Admission of New Contention was filed with the Electronic Information Exchange in the above-captioned proceeding on the following recipients.
Administrative Judge Administrative Judge William J. Froehlich, Chair Dr. Nicholas G. Trikouros Atomic Safety and Licensing Board Panel Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: wjf1@nrc.gov E-mail: nicholas.trikouros@nrc.gov Administrative Judge Office of the General Counsel Dr. William E. Kastenberg U.S. Nuclear Regulatory Commission Atomic Safety and Licensing Board Panel Mail Stop O-15D21 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 Brian G. Harris E-mail: wek1@nrc.gov Megan Wright Emily L. Monteith E-mail: Brian.Harris@nrc.gov; Office of the Secretary Megan.Wright@nrc.gov; U.S. Nuclear Regulatory Commission Emily.Monteith@nrc.gov Rulemakings and Adjudications Staff Washington, DC 20555-0001 E-mail: hearingdocket@nrc.gov
Office of Commission Appellate Adjudication Michael Keegan U.S. Nuclear Regulatory Commission Dont Waste Michigan Mail Stop: O-16C1 811 Harrison Street Washington, DC 20555-0001 Monroe, MI 48161 E-mail: ocaamail@nrc.gov E-mail: mkeeganj@comcast.net Kevin Kamps Terry J. Lodge Paul Gunter 316 N. Michigan St., Ste. 520 Beyond Nuclear Toledo, OH 43604 6930 Carroll Avenue, Suite 400 E-mail: tjlodge50@yahoo.com Takoma Park, MD 20912 E-mail: kevin@beyondnuclear.org; paul@beyondnuclear.org Signed (electronically) by 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 2