ML11311A335

Tennessee Valley Authority'S Opposition to Sace'S Motion for Leave to Supplement Its Fukushima-Related New Contention

ML11311A335
Person / Time
Site:	Watts Bar
Issue date:	11/07/2011
From:	Bessette P, Chandler C, Sutton K, Vance S, Vigluicci E Morgan, Morgan, Lewis & Bockius, LLP, Tennessee Valley Authority
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 21393, 50-391-OL, ASLBP 09-893-01-OL-BD01
Download: ML11311A335 (14)

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) )

) November 7, 2011 TENNESSEE VALLEY AUTHORITYS OPPOSITION TO SACES MOTION FOR LEAVE TO SUPPLEMENT ITS FUKUSHIMA-RELATED NEW CONTENTION I. INTRODUCTION In accordance with 10 C.F.R. § 2.323(c), Tennessee Valley Authority (TVA) files this Opposition to the Motion for Leave filed on October 28, 2011, by Southern Alliance for Clean Energy (SACE).1 SACE seeks leave from the Atomic Safety and Licensing Board (Board) to supplement the basis for its proposed New Contention,2 which purports to address the environmental implications of the U.S. Nuclear Regulatory Commissions (NRC) Fukushima-related Near-Term Task Force Report.3 SACE asks the Board to consider the Commissions October 18, 2011 directive to the NRC Staff, in Staff Requirements Memorandum (SRM)-SECY-11-0124,4 to complete implementation 1

Southern Alliance for Clean Energys Motion for Leave to Supplement Basis of Contention Regarding NEPA Requirement to Address Safety and Environmental Implications of the Fukushima Task Force Report (Oct. 28, 2011) (Motion for Leave).

2 See 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); Contention Regarding NEPA Requirement to Address Safety and Environmental Implications of the Fukushima Task Force Report (Aug. 11, 2011) (New Contention).

3 See New Contention at 1-2; 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) (Near-Term Task Force Report) (transmitted to the Commission via SECY-11-0093, Near-Term Report and Recommendations for Agency Actions Following the Events in Japan (July 12, 2011), available at ADAMS Accession No. ML11186A950 (package).

4 SRM-SECY-11-0124, Memorandum from R. Borchardt, Executive Director for Operations, NRC, to A. Vietti-Cook, Secretary of the Commission, Recommended Actions to be Taken Without Delay from the Near-Term Task Force Report (Oct. 18, 2011)

(SRM-SECY-11-0124 or the SRM), available at ADAMS Accession No. ML112911571.

of the lessons learned from the Fukushima accident by 2016.5 SACE claims that SRM-SECY 0124 further supports its contention that the Near-Term Task Force Report recommendations must be considered as part of this proceeding before the NRC can issue an operating license for the Watts Bar Unit 2 nuclear power plant.6 But SRM-SECY-11-0124like the Near-Term Task Force Report itselfdoes not contain any new and significant information for purposes of the National Environmental Policy Act (NEPA) that would trigger the need for immediate, further NEPA review by the NRC Staff. The Commissions ruling in CLI-11-05and the Bell Bend and Seabrook board decisions applying that precedent to reject materially indistinguishable contentions as premature and inadmissiblemake this clear.7 Contrary to SACEs claim, SRM-SECY-11-0124 does nothing to undermine those decisions.8 If anything, it only confirms their accuracy.

Nor does SRM-SECY-11-0124 cure the fundamental defects in the New Contention that warrant its dismissal. The Board should therefore deny SACEs Motion for Leave and reject the New Contention for all of the reasons set forth below and in TVAs Answer to the New Contention and related Surreply, filed on September 6 and September 20, 2011, respectively.9 II. BACKGROUND The procedural history associated with the New Contention, including key events leading up to and following its submittal by SACE, is detailed in TVAs Answer and Surreply. As relevant here, on April 18, 2011, SACE filed an emergency petition requesting, among other things, that 5

See Motion for Leave at 1.

6 See id.

7 See Union Elec. Co. (Callaway Plant, Unit 2), CLI-11-05, 74 NRC __ slip op. (Sept. 9, 2011); PPL Bell Bend, L.L.C. (Bell Bend Nuclear Power Plant), LBP-11-27, 74 NRC __, slip op. (Oct. 18, 2011); NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), LBP-11-28, 74 NRC __, slip op. (Oct. 19, 2011).

8 Motion for Leave at 2.

9 See Tennessee Valley Authoritys Answer in Opposition to Proposed Contention Regarding Fukushima Task Force Report (Sept. 6, 2011) (TVAs Answer); Tennessee Valley Authoritys Surreply to the Reply of Southern Alliance for Clean Energy (Sept. 20, 2011) (TVAs Surreply).

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the Commission suspend all decisions and hearings in this (and other) proceedings and perform a NEPA analysis of whether the earthquake and Fukushima Daiichi accident constitute new and significant information that must be considered in an environmental impact statement (EIS).10 Several months later, and before the Commission had ruled on that petition, the NRC issued its Near-Term Task Force Report.

On August 11, 2011, SACE filed its New Contention, which alleges that the Final Supplemental Environmental Impact Statement (FSEIS) for Watts Bar Unit 2 fails to satisfy the requirements of NEPA because it does not address the allegedly new and significant environmental implications of the findings and recommendations contained in the Near-Term Task Force Report.11 On September 6, 2011, TVA and the NRC Staff filed Answers opposing the New Contention under 10 C.F.R. § 2.309.12 Thereafter, on September 9, 2011, and several days before SACEs reply was due, the Commission issued CLI-11-05, in which it ruled on a series of petitions (including SACEs emergency petition) filed in numerous proceedings to suspend NRC adjudicatory, licensing, and rulemaking activities in light of the March 2011 accident at Fukushima.13 That decision held, among other things, that the Fukushima accident and the Near-Term Task Force Report do not constitute new and significant information under NEPA, and that 10 See 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 at 1-3 (original version dated Apr.

14, 2011; corrected version dated Apr. 18, 2011).

11 New Contention at 4. As stated in TVAs Answer (at 15 n.54), SACEs references to the FSEIS and to the ER in the New Contention apparently refer to TVAs Final Supplemental Environmental Impact Statement Related to the Completion and Operation of Watts Bar Nuclear Plant Unit 2, Tennessee Valley Authority (June 2007) (TVA FSEIS), available at ADAMS Accession No. ML11215A100, which is the functional equivalent of an applicants environmental report for this proceeding.

For the sake of clarity, it should be noted that NRC Staff also has issued several final and draft EISs germane to the proposed action. See NUREG-0498, Final Environmental Statement Related to Operation of Watts Bar Nuclear Plant Units Nos. 1 and 2 (Dec. 1978), available at http://www.tva.gov/environment/reports/wattsbar2/related/dec_1978.pdf; NUREG-0498, Supp. 1, Final Environmental Statement Related to the Operation of Watts Bar Nuclear Plant Unit 1 and 2 (Apr. 1995), available at ADAMS Accession No. ML081430592; NUREG-0498, Supp. 2, Draft Final Environmental Impact Statement, Related to the Operation of Watts Bar Nuclear Plant, Unit 2, Draft Report for Comment (Oct. 2011), available at http://www.nrc.gov/reading-rm/doc-collections/nuregs/staff/sr0498/.

12 See TVAs Answer at 10-26; NRC Staffs Answer to Motion and Contention Regarding NEPA Requirement to Address Safety and Environmental Implications of the Fukushima Task Force Report at 16-44 (Sept. 6, 2011).

13 See Callaway, CLI-11-05, slip op. at 1, 41-42.

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the petitioners request was premature because the full picture of what happened at Fukushima is still far from clear.14 Yet, in its Reply to TVAs and the Staffs Answers, SACE asserted that CLI-11-05 supports its position and the admission of the New Contention.15 TVA sought leave from the Board to file a short surreply, and the Board granted leave by Order dated September 20, 2011.16 TVA filed its Surreply on September 20, 2011, taking issue with SACEs characterization of CLI-11-05 and explaining that the Commissions ruling commands exactly the opposite result, i.e., denial of the New Contention as inadmissible under 10 C.F.R. § 2.309(f).17 On October 18, 2011, the Commission issued SRM-SECY-11-0124, the cited basis for SACEs Motion for Leave. In that SRM, the Commission approved the Staffs proposed actions to implement the Near-Term Task Force recommendations as described in SECY-11-0124 and provided further guidance to the Staff.18 Additionally, on October 18 and 19, 2011, two licensing boards presiding over a total of six new reactor and license renewal proceedings denied admission of contentions that are essentially identical SACEs New Contention. Citing CLI-11-05, both boards ruled that the contentions were premature and not based on new and significant information.19 SACEs Motion for Leave argues that SRM-SECY-11-0124 contains new and supplemental information that supports admission of the New Contention, and that the boards rationale for rejecting the contentions in LBP-11-27 (and, by necessary implication, LBP-11-28) is no longer 14 Id. at 30-31.

15 See Southern Alliance for Clean Energys Reply to Oppositions to Admission of New Contention at 2 (Sept. 13, 2011) (stating that CLI-11-05 contains language that bears on the timeliness and admissibility of the contentions).

16 See Tennessee Valley Authoritys Request to File a Surreply to the Reply of Southern Alliance for Clean Energy (Sept. 16, 2011); Licensing Board Order (Granting TVAs Request to File a Surreply) (Sept. 20, 2011) (unpublished).

17 See TVAs Surreply at 2-3.

18 See SRM-SECY-11-0124, at 1-2.

19 See Bell Bend, LBP-11-27, slip op. at 12-15; Seabrook, LBP-11-28, slip op. at 2, 5-7.

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operative.20 In essence, SACE contends that the New Contention is no longer premature because the SRM accepted some of the Near-Term Task Force Report recommendations. But, as shown below, that argument mischaracterizes the SRM, which does not support SACEs Motion for Leave or the New Contentionboth of which should be rejected by the Board.

III. ARGUMENT A. Contrary to SACEs Claim, the Commissions SRM Does Not Speak to the Environmental or Safety Significance of the Fukushima Accident SACE first argues that SRM-SECY-11-0124 evinces the Commissions belief that the lessons learned from the Fukushima accident have safety and environmental significance.21 But it mischaracterizes the SRM and ignores the Commissions holding in CLI-11-05, as applied by the Bell Bend and Seabrook boards. The SRM does not comment on the safety or environmental significance of the Fukushima accident, or make reference to NEPA or any agency obligations flowing from that statute. The SRM thus has little, if anything, to do with the sole focus of the New Contention. Rather, it directs the Staff to implement certain Task Force recommendations as described in SECY-11-0124, subject to the Commissions related guidance in the SRM.

Moreover, SACE disregards the Commissions holding in CLI-11-05 that the Near-Term Task Force Report does not contain any new and significant information that would trigger the need for an immediate generic NEPA review by the NRC or supplementation of any final EISs prepared in connection with individual licensing proceedings. CLI-11-05 is explicit:

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.22 20 See Motion for Leave at 1-2.

21 Id. at 2.

22 Callaway, 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).

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The SRM, which is silent on the issue of environmental impacts or NEPA analysis thereof, does not remotely suggest that the Commission changed the conclusion set forth in CLI-11-05, i.e., that the Near-Term Task Force Report contains no new and significant information for purposes of NEPA.

B. The SRM Does Not Undermine the Recent Rulings of Other Boards Rejecting Contentions That Are Materially Indistinguishable From the New Contention SACE further argues that the SRM somehow vitiates the rationale underlying the Bell Bend and Seabrook decisions to reject materially indistinguishable contentions, purportedly because the Commission itself had not yet accepted or implemented the [Near-Term] Task Force Reports conclusions and recommendations when those boards ruled.23 But the Commissions ruling in CLI-11-05 did not hinge on its then-pending approval of the Task Force recommendations. Rather, in ruling that any supplemental NEPA review in response to the accident at Fukushima is premature, the Commission cited the NRCs ongoing evaluation of the Fukushima accident and its implications for U.S. facilities.24 As the Commission put it, the full picture of what happened at Fukushima is still far from clear and thus any related NEPA duty does not accrue now.25 The SRM cited by SACE not only lacks a discernible connection to NEPA, but also reflects the ongoing nature of the NRCs Fukushima-related review. For example, it states: As the staff evaluates Fukushima lessons-learned and proposes modifications to NRCs regulatory framework, it should develop approaches that are flexible and able to accommodate a diverse range of circumstances and conditions.26 The SRM also directs the Staff to inform the Commission of any gaps that the Staff may later identify in its understanding of the reactor accidents at Fukushima, 23 Motion for Leave at 2.

24 Callaway, CLI-11-05, slip op. at 30.

25 Id.

26 SRM-SECY-11-0124, at 1 (emphasis added). See also VR-SECY-11-0124, Recommended Actions to be Taken Without Delay from the Near-Term Task Force Report Att. 2, at 1 (Oct. 18, 2011) (Commission Vote Sheets, Commissioner Svinickis Comments on SECY-11-0124, Recommended Actions to be Taken Without Delay from the Near-Term Task Force Report (Oct. 6, 2011)) (As others have said, much work remains before us in learning the lessons from the events at Fukushima Dai-ichi, and [t]he staff should not feel driven to get ahead of the availability of reliable information in formulating recommendations for the Commission), available at ADAMS Accession No. ML112930036.

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and which might interfere with its ability to make informed regulatory decisions.27 And it states that the Staff should seek Commission approval of certain orders once the Staff has engaged stakeholders and established the requisite technical bases and acceptance criteria.28 These statements reinforce the Commissions holding in CLI-11-05 that, because the Staffs assessment of Fukushimas implications is ongoing, any related analysis under NEPA, if one were appropriate at alldoes not accrue now.29 Similarly, the Bell Bend and Seabrook boards did not cite the pendency of the Commissions approval of the Near-Term Task Force recommendations as the basis for rejecting the intervenors contentions. Instead, both boards stressed the uncertainty surrounding the environmental implications, if any, of the Fukushima accident for pending licensing proceedings. The Bell Bend board found that it is much too early in the process of assessing the Fukushima event in the context of the operation of reactors in the United States to allow any informed conclusion regarding the possible safety or environmental implications of that event regarding such operation.30 The Seabrook board echoed this conclusion, albeit more forcefully:

Ifas the Commission has ruledthe available information (including specifically the Near-Term Task Force Report) does not at this time constitute new and significant information for purposes of generic environmental analysis, it follows that Interveners have failed to show how the report might constitute new and significant information for purposes of environmental analysis of renewing the license for Seabrook. Neither the Near-Term Task Force Report nor the declaration of Dr. Makhijani says anything at all about Seabrook, much less tries to link specific recommendations in the Near-Term Task Force Report to specific aspects of the Seabrook LRA.

The contention now before us rests on speculation built on speculation. We do not know which, if any, of the Near-Term Task 27 Id.

28 See id. at 2.

29 Callaway, CLI-11-05, slip op. at 30.

30 Bell Bend, LBP-11-27, slip op. at 13.

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Force recommendations the Commission might ultimately adopt.

The Commission has stated only that, after further study, it may determine that regulatory or procedural changes are warranted.

Furthermore, we do not know the implications for the Seabrook LRA of whatever recommendations might be adopted. And Interveners provide no guidance.

Because Interveners fail to show how the Near-Term Task Force Report might potentially affect the DSEIS for Seabrook, they plainly have not demonstrated a genuine dispute as to whether the NRC Staff must address the report in its DSEIS.31 The foregoing statements apply with equal force here, notwithstanding the subsequent issuance of SRM-SECY-11-0124. As noted above, the SRM does not address environmental issues at all, much less present any information suggesting that revision or supplementation of the FSEIS is required under 10 C.F.R. § 51.92. And the potential impact of SRM-SECY-11-0124 on any individual plant, including Watts Bar Unit 2, remains speculative at best.

C. The SRM Does Not Cure the Previously Identified Deficiencies in the New Contention That Compel Its Dismissal Pursuant to 10 C.F.R. § 2.309 In its Answer and Surreply, TVA demonstrated that the New Contention should be rejected because it is inexcusably late under 10 C.F.R. §§ 2.309(f)(2) and (c)(1), and fails to meet the contention admissibility criteria in 10 C.F.R. § 2.309(f)(1).32 In particular, the New Contention:

(1) mischaracterizes the Near-Term Task Force Report recommendations and runs counter to NRC regulations and requirements; (2) does not identify any new and significant information under NEPA; and (3) does not dispute any specific information related to severe accidents or SAMAs in the FSEIS. SRM-SECY-11-0124 does not cure any of those deficiencies or otherwise render the supplemented contention admissible.

31 Seabrook, LBP-11-28, slip op. at 7 (emphasis added) (footnote omitted).

32 Notably, the Motion for Leave fails to explicitly address the late-filing criteria in 10 C.F.R. § 2.309(f)(2), (c), a procedural defect that warrants dismissal of the contention. See Nuclear Mgmt Co., LLC (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727, 732 (2006) (New bases for a contention cannot be introduced in a reply brief, or any other time after the date the original contentions are due, unless the petitioner meets the late-filing criteria set forth in 10 C.F.R. § 2.309(c), (f)(2).).

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1. The New Contention, As Supplemented, Raises Issues that Are Likely to Become the Subject of Rulemaking and Therefore Are Outside the Scope of This Adjudication As discussed in TVAs Answer, Commission case law holds that contentions are not to be used as vehicles for challenging the basic structure of the NRC regulatory process.33 Thus, a contention that merely conveys a petitioners preferred views on regulatory policy is not admissible.

Relatedly, Commission precedent also holds that contentions that raise matters that are, or are about to become, the subject of rulemaking, are similarly inadmissible as outside the scope of an adjudicatory proceeding.34 TVAs Answer amply demonstrates that the New Contention is inadmissible under both of these settled and controlling legal principles.

Petitioners reliance on SRM-SECY-11-0124 only confirms that conclusion. The SRM directs the Staff to initiate the rulemaking process in implementing certain Task Force recommendations. Accordingly, the New Contention is inadmissible under 10 C.F.R.

§ 2.309(f)(1)(iii) because it involves issues that will become the subject of rulemaking per the Commissions directives in SRM-SECY-11-0124.

2. The New Contention, As Supplemented, Still Lacks Factual Support and Fails to Raise a Material Issue Because It Does Not Identify Any New and Significant Information under NEPA As discussed in Section IV.B.3 of TVAs Answer, an EIS must be supplemented only 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.35 To be significant, new information must 33 See TVAs Answer at 9-10.

34 See id. at 17-18 (citing Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 & 3), CLI-10-19, 72 NRC

__, slip op. at 2-3 (July 8, 2010); Duke Energy Corp. (Oconee Nuclear Station, Units 1, 2 & 3), CLI-99-11, 49 NRC 328, 345 (1999) (holding that while 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)).

35 See TVAs Answer at 19; 10 C.F.R. § 51.92(a).

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present a seriously different picture of the environmental impact of the proposed project from what was previously envisioned.36 For the reasons set forth above, SRM-SECY-11-0124 does not present any new and significant information for purposes of NEPA. The SRM contains no information indicating that the FSEIS for completion and operation of Watts Bar Units 2 has either underestimated the environmental impacts of severe accidents or inadequately evaluated SAMAs. In fact, it does not even discuss environmental matters, much less specifically mention Watts Bar Unit 2.

Although the actions discussed in SRM-SECY-11-0124 are contemplated to improve plant safety, that issue is not material in the context of the environmental analysis in this proceeding.

Moreover, such actions presumably would serve to reduce the environmental impacts of the project below the level currently specified in the FSEIS. NEPA case law is clearan agency need not prepare a supplemental EIS when a change will cause less environmental harm than the original project.37 For that reason, too, the SRM does not support the argument that the Staff must supplement the FSEIS. And it does not alter the conclusion that the New Contention lacks factual support and fails to raise a material issue of fact or law.38

3. The New Contention, As Supplemented, Still Fails to Raise a Genuine Material Dispute Regarding the Environmental Impacts of Severe Accidents or SAMAs As further discussed in TVAs Answer, the New Contention does not controvert relevant information in Section 3.12.1 of the FSEIS regarding the environmental impacts of severe accidents and SAMAs.39 Similarly, the Motion for Leave does not discuss that portion of the FSEIS. Instead, 36 Callaway, CLI-11-05, slip op. at 31 (emphasis added).

37 See, e.g., S. 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); 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.).

38 See 10 C.F.R. § 2.309(f)(1)(iv), (v).

39 See TVAs Answer at 25-26; TVA FSEIS at 73-75.

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it is generic in nature and is similar to motions filed in a number of other proceedings.40 SRM-SECY-11-0124 does not remedy this deficiency in the New Contention. Accordingly, the New Contention, as supplemented, still does not satisfy 10 C.F.R. § 2.309(f)(1)(vi) and should be rejected.

IV. CONCLUSION As demonstrated above, SRM-SECY-11-0124 does not cure the defects in SACEs New Contention. Accordingly, the Motion for Leave and New Contention should be denied.

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 7th day of November 2011 40 See, e.g., Luminant Generation Co., LLC (Comanche Peak Nuclear Power Plant Units 3 & 4), Nos.52-034,-035, Motion to Reinstate and Supplement the Basis for Fukushima Task Force Report Contention (Oct. 28, 2011); FirstEnergy Nuclear Operating Co. (Davis-Besse Nuclear Power Station, Unit 1), No. 50-346, Motion for Leave to Supplement Basis of Contention Regarding NEPA Requirement to Address Safety and Environmental Implications of the Fukushima Task Force Report (Oct.

28, 2011).

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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) )

) November 7, 2011 ANSWER CERTIFICATION Counsel for TVA certifies that she has made a sincere effort to make herself available to listen and respond to the moving parties, and to resolve the factual and legal issues raised in the motion, and that her efforts to resolve the issues have been unsuccessful.

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 COUNSEL FOR TVA

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) )

) November 7, 2011 CERTIFICATE OF SERVICE I hereby certify that on November, 7, 2011, a copy of Tennessee Valley Authoritys Opposition to SACEs Motion for Leave to Supplement Its Fukushima-Related New Contention was served electronically with 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 DB1/ 68443733.1 2