ML121250387

Licensees, Response Opposing Petitioners Motion to Stay

ML121250387
Person / Time
Site:	Vogtle
Issue date:	05/03/2012
From:	Justin Fuller Municipal Electric Authority of Georgia
To:	NRC/OGC, US Federal Judiciary, US Court of Appeals for the District of Columbia Circuit
Rader R
References
12-1106, 12-1151, 1372244
Download: ML121250387 (31)

Text

1 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA BLUE RIDGE ENVIRONMENTAL )

DEFENSE LEAGUE, et al.,

)

)

Petitioners,

)

)

v.

)

Case No. 12-1106; 12-1151

)

(Consolidated)

NUCLEAR REGULATORY

)

COMMISSION and

)

UNITED STATES OF AMERICA,

)

)

Respondents.

)

LICENSEES RESPONSE OPPOSING PETITIONERS MOTION TO STAY Southern Nuclear Operating Company, Georgia Power Company (GPC),

Oglethorpe Power Corporation, Municipal Electric Authority of Georgia, and the City of Dalton, Georgia, Acting By and Through its Board of Water, Light and Sinking Fund Commissioners (collectively, Licensees) respectfully request that this Court deny Petitioners Motion to Stay, filed April 19, 2012.1 Petitioners have failed to establish they are entitled to the extraordinary remedy of a stay.2 INTRODUCTION Petitioners request a stay of the effectiveness of the Nuclear Regulatory Commissions (NRC) decision to issue the combined licenses (COLs) and limited

1 Petitioners refer to the Petitioners in Docket No. 12-1151.

2 See F.R. App. P. 18, 27(a)(3); D.C. Cir. R. 18; Cuomo v. NRC, 772 F.2d 972, 974 (D.C. Cir. 1985).

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2 work authorizations (LWAs) for Vogtle Electric Generating Plant Units 3 and 4 (Units 3&4), pending the Courts resolution of the petition for judicial review filed in Docket No. 12-1151.3 The NRC previously considered and denied a similar stay request from Petitioners.4 The NRCs decision to issue the COLs and LWAs culminated its nearly six-year review, which included both safety and environmental analyses for the construction and operation of the units consistent with NRC regulations and the National Environmental Policy Act (NEPA). This process began with the Licensees application for an Early Site Permit (ESP) in August 2006which was granted by the NRC in August 2009and included the Licensees request for an LWA to perform certain limited construction activity.

The Licensees submitted their application for the Vogtle Units 3&4 COLs on March 31, 2008, and the NRC issued its decision authorizing issuance of the COLs and additional LWAs on February 9, 2012.5 Pursuant to that order, the NRC staff issued the COLs and LWAs on February 10, 2012.

A stay of the COLs for Vogtle Units 3&4 pending review of the NRCs action by this Court is not warranted. Such a drastic remedy is not supported by Petitioners motion. Petitioners fail either to show a likelihood of success on the merits or irreparable harm that is both certain and great. Moreover, a stay would

3 The Motion to Stay concerns only the orders challenged in Docket No. 12-1151.

4 In re So. Nuclear Operating Co., CLI-12-11, __ NRC __, 2012 WL 1343183, at

• 7 (NRC Apr. 16, 2012) (slip op. at 17) (CLI-12-11) (Motion to Stay, Att. 13).

5 So. Nuclear Operating Co., CLI-12-02, __ NRC __, 2012 WL 440403, at *38 (NRC Feb. 9, 2012) (slip op. at 85) (CLI-12-02) (Motion to Stay, Att. 9).

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3 substantially harm Licensees and their customers, and is contrary to the public interest. Accordingly, Petitioners motion to stay should be denied.

BACKGROUND Petitioners have brought various challenges over the last several years to the licensing of Vogtle Units 3&4. Petitioners current claims and their stay request all derive from the NRCs activities in response to the magnitude 9.0 earthquake and subsequent tsunami that struck Japan on March 11, 2011 and damaged the Fukushima Dai-ichi Nuclear Power Plant.

Almost immediately after the Fukushima accident, the NRC began an in-depth review of the accident in an effort to determine its causes and whether any design or operational enhancements were needed to ensure the safety of nuclear power plants in the United States.6 In April

2011, Petitioners filed an Emergency Petition with the NRC, asking the NRC to suspend all licensing decisions, including a decision on the Vogtle COLs, pending its complete review of the Fukushima accident and implementation of any related lessons learned.7 Petitioners argued, inter alia, that NEPA required the NRC to supplement all environmental impact statements (EIS) for licensing actions to incorporate

6 See NRC, 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) (Motion to Stay, Att. 3) (Task Force Report or Report).

7 See Petition to Suspend, Docket Nos. 52-037-COL, et al. (Apr. 14-18, 2011)

(Motion to Stay, Att. 2).

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4 supposed new environmental information from the Fukushima accident, prior to taking any licensing action. The Commission denied the Emergency Petition, holding that given the current state of information available, the Fukushima accident did not present a seriously different picture of the environmental impact of the proposed project from what was previously envisioned in the NEPA analysis of the various licensing proceedings at issue.8 Accordingly, the Commission held that the information available regarding Fukushima was not new and significant such that supplemental EISs were required.

In July 2011, NRC completed its initial review of the implications of the Fukushima accident and published its Task Force Report. Petitioners then asserted that the Reports publication itself amounted to new and significant information requiring a supplemental NEPA analysis.9 In order to make this argument with respect to Vogtle Units 3&4, Petitioners moved the Vogtle Atomic Safety and Licensing Board (ASLB) to reopen the record in the Vogtle COL proceeding. The Report consisted of a review of the sequence of events leading to the Fukushima accident, recommendations as to safety enhancements that the NRC might order to reduce the risk of a Fukushima-type accident at domestic facilities, and suggested reforms of NRC licensing paradigms, but did not include any discussion of the

8 Union Electric Co., CLI-11-05, 74 NRC __, 2011 WL 4027741, at *12 (Sept. 9, 2011) (slip op. at 31) (citations omitted) (Motion to Stay, Att. 6).

9 Motion to Reopen the Record, NRC Docket Nos. 52-025-COL and 52-026-COL (filed Aug. 11, 2011), at 1-2 (Motion to Stay, Att. 5).

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5 environmental impacts of the accident or the environment surrounding Vogtle Units 3&4.

On October 18, 2011, the Vogtle ASLB denied the motion to reopen and found Petitioners contention inadmissible. The ASLB relied on the Commissions conclusion in CLI-11-05 that the state of knowledge regarding Fukushima did not call the NRCs NEPA findings into question and noted that Petitioners had not pointed to any unique characteristics of the site of the particular reactor that might make the content of the Task Force report of greater environmental significance to that reactor than to United States reactors in general.10 Petitioners sought review of the ASLBs decision in LBP-11-27 before the Commission; however, the Commission denied Petitioners request.

In denying the petition for review of LBP-11-27, the Commission explained the support for the ASLBs finding that the contention was inadmissible:

We expect Petitioners to identify information that was not considered in the environmental review for the application at issue and explain, with asserted facts or expert opinion, how it presents a seriously different picture of the environmental impact of the proposed project from what was previously envisioned. Applying this standard, we see no error or abuse of discretion in the Boards finding that Petitioners failed to include facts sufficient to demonstrate a genuine dispute with respect to a particular captioned application.11

10 PPL Bell Bend, L.L.C., et al., LBP-11-27, __ NRC __ (NRC Oct. 18, 2011) (slip op. at 13-14) (LBP-11-27) (Motion to Stay, Att. 7).

11 Luminant Generation Co. LLC, et al., CLI-12-07, __ NRC __, 2012 WL 975443, at *3-6 (NRC Mar. 16, 2012) (slip op. at 9-14) (Motion to Stay, Att. 11); see also USCA Case #12-1106 Document #1372244 Filed: 05/03/2012 Page 5 of 31

6 The claims considered by the Commission in CLI-12-07 are nearly identical to those included in the petition for review filed with this Court.12 In addition to addressing Petitioners claims in the contested proceeding, the Commissioners themselves conducted the uncontested portion of the COL proceeding and considered the Fukushima accident in detail. During the uncontested, or mandatory, hearing on the COL, both the NRC staff and Licensees provided testimony related to the Fukushima accident, including in particular how the accident was analyzed to determine whether it qualified as new and significant for NEPA purposes.13 In CLI-12-02, the Commissions Order on the uncontested proceeding, the Commissioners reviewed the NRC staffs environmental findings and discussed in particular the testimony related to the Fukushima accident and the information already addressed in the Vogtle ESP EIS related to the impacts of a severe accident.

Contrary to Petitioners allegation that the Commission rejected supplementation of the Vogtle EIS merely because Fukushima-like accidents in the United States have an extremely low probability, the Commission concluded that

Federal Respondents Opposition to Petitioners Motion for a Stay at Section I, Docket No. 12-1106 (filed May 3, 2012).

12 See Petition at 3.

13 See Mandatory Hearing Tr. 63:19-64:9, 79:24-82:7, 296:12-297:16, 303:14-20, 326:19-330:7, 355:11-356:14; see also Exhibit SNCR00011 at 15-17; Exhibit NRC000015 at 8, 11-12; CLI-12-02, at *9 (slip op. at 22-23).

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7 the EIS for Vogtle Units 3&4 did evaluate severe accidents such as Fukushima, and that the available information about Fukushima did not alter that analysis.14 In fact, the Commissioners reasoned that [s]evere accidents, like the accident at Fukushima Dai-ichi, are potentially high consequence but extremely low probability accidents, so considering their consequences without simultaneously accounting for risk would distort the purpose of disclosing the reasonably anticipated [environmental] impacts of the project.15 What the NRC staff concluded, and the Commission found sufficient, was that there was no new and significant information, including from the Fukushima accident, that would change either its severe accident, or its cumulative severe accident, conclusions in the Vogtle ESP EIS.16 In CLI-12-02, the Commission also found that the NRC staffs process for identifying new and significant information as required by NEPA was sufficient to identify new information that might be potentially significant concerning environmental issues addressed in the ESP EIS.17 CLI 02 authorized issuance of the Vogtle COLs and LWAs. Petitioners have appealed.

Importantly, the only Fukushima-related claim Petitioners brought in the Vogtle COL proceeding was that a supplemental EIS was required to analyze the impact of the Task Force Report.

14 CLI-12-02, at *33 (slip op. at 74).

15 Id. (emphasis added).

16 Id.

17 Id. at *36 (slip op. at 79).

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8 STANDARDS FOR ISSUANCE OF A STAY A stay is an intrusion into the ordinary processes of administration and judicial review that is considered an extraordinary remedy.18 Issuance of a stay is not:

a matter of right, even if irreparable injury might otherwise result to the appellant. The parties and the public, while entitled to both careful review and a meaningful decision, are also generally entitled to the prompt execution of orders that the legislature has made final.19 Consideration of a stay includes four factors, with the first two the most critical:

(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies.20 It is not enough that the chance of success on the merits be better than negligible and more than a mere possibility of relief is required.21 Also, simply showing some possibility of irreparable injury, fails to satisfy the second factor.22 ARGUMENT On a motion for stay, it is the movants obligation to justify the courts exercise of such an extraordinary remedy.23 Petitioners have failed to meet the

18 Nken v. Holder, 556 U.S. 418, 427 (2009) (citing Va. Petroleum Jobbers Assn v.

FPC, 259 F.2d 921, 925 (D.C. Cir. 1958) (per curiam)).

19 Id. (citing Virginian Ry. Co. v. United States, 272 U.S. 658, 672 (1926)).

20 Id. at 434; see also D.C. Cir. R. 18(a)(1); Winter v. NRDC, 555 U.S. 7, 20 (2008); Cuomo, 772 F.2d at 974.

21 Nken, 556 U.S. at 434 (citations omitted).

22 Id. at 434-35 (internal citation omitted).

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9 standard for such an extraordinary remedy; therefore, Petitioners motion for stay should be denied.

I.

Petitioners Have No Likelihood of Success on the Merits Petitioners motion utterly fails to demonstrate that the NRC did not comply with NEPA; therefore, they have failed to make a strong showing that they are likely to prevail on the merits of their petition for review. The NRC completed a full EIS for the licensing of Vogtle Units 3&4, including an analysis of the impacts of earthquakes, floods, and severe accidents from any variety of causes, and Petitioners participated in administrative proceedings assessing the merits of the NRCs NEPA analysis. Because Petitioners only sought a supplemental EIS analyzing environmental impacts from implementation of the Task Force Report, Petitioners would not have standing to bring a claim alleging that the NRC violated NEPA by failing to address the environmental implications of the Fukushima accident [itself] in a supplement to the EIS.24 A.

The Fukushima Task Force Report is Not New and Significant Information The Task Force recommendations relied upon by Petitioners do not raise environmental impacts at all, let alone impacts that are significantly different than those analyzed throughout the NRCs lengthy NEPA process in the ESP final EIS or the COL final supplemental EIS. Where convenient, Petitioners are vague about

23 Cuomo, 772 F.2d at 978 (emphasis added).

24 Motion to Stay at 9 (emphasis added).

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10 the distinction between the Fukushima incident itself and the Task Force Recommendations. To be clear, in order to succeed on the merits, Petitioners must demonstrate that the NRC was arbitrary and capricious in its considered decision not to supplement its EIS with analysis of the environmental impacts of the Task Force recommendations.25 Under NEPA, supplementation of a final EIS is required where [t]here are new and significant circumstances or information relevant to environmental concerns and bearing on the proposed action or its impacts.26 As this Court has recognized, a supplemental EIS is only required where new information provides a seriously different picture of the environmental landscape.27 Here, the NRC made a thorough, reasoned decision that the Task Force Report did not present a seriously different picture of the environmental impacts of Units 3&4, and Petitioners cannot explain how the Task Force Report itself causes environmental impacts such that the NRC acted arbitrarily.

Plainly, there is no credible evidence that the operational or regulatory recommendations in the Task Force Report would change the conclusions in the EIS; i.e., that environmental impacts would be MODERATE or LARGE instead of

25 See LBP-11-27, slip op. at 6-7 (noting Petitioners contention was founded on the findings and recommendations of the Task Force Report and information therein).

26 10 C.F.R. § 51.92 (emphasis added); 40 C.F.R. § 1502.9(c)(1)(ii).

27 City of Olmstead Falls, Ohio v. FAA, 292 F.3d 261, 274 (D.C. Cir. 2002)

(emphasis in original) (citing Wisconsin v. Weinberger, 745 F.2d 412, 418 (7th Cir.

1984)).

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11 SMALL.28 Rather, the recommendations in the Report are intended to mitigate risk of accidents and their associated environmental impacts. Further, the recommendations in the Task Force Report and the Petitioners contentions before the NRC are generic and not specific to the Vogtle site. Moreover, the Task Force concluded that all of the current early site permits [like Vogtles] already meet the requirements of detailed recommendation 2.1, relating to the design-basis seismic and flooding analysis, and all of the current COL [like Vogtle] and design certification applicants are addressing them adequately in the context of the updated state-of-the-art and regulatory guidance used by the staff in its reviews.29 Nothing in the Task Force Report discusses environmental impacts. Thus, the Task Force Report effectively endorses the Vogtle COL and, accordingly Petitioners suggestion that its implementation would alter the Vogtle environmental analysis is specious and is substantially unlikely to succeed on the merits.

Petitioners allegation that the NRC refused to conduct any NEPA analysis whatsoever of information it has found to be both new and significant to its regulatory program30 mischaracterizes the record. The NRCs determination was based on an extensive review and was addressed in four reasoned decisions: first by

28 For new information to be significant, it must be material to the issue being considered, that is, it must have the potential to affect the finding or conclusions of the NRC staffs evaluation of the issue. Licenses, Certifications, and Approvals for Nuclear Power Plants, 72 Fed. Reg. 49,352, 49,431 (Aug. 28, 2007)

(emphasis added).

29 Task Force Report at 71.

30 Motion to Stay at 11 n.36.

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12 the Commission in CLI-11-05; next by the ASLB in LBP-11-27 (which the Commission considered and denied review of in CLI-12-07); and again by the Commission in CLI-12-02 (following lengthy review in the mandatory hearing).

The Commission found that:

Petitioners have not demonstrated that the Fukushima events or any regulatory response to those events would raise environmental impacts that differ significantly from the impacts the NRC has already reviewed and addressed in the ESP [final EIS] or the COL [final supplemental EIS] for Vogtle.31 Petitioners confuse rejection of their arguments with ignoring the issue; the difference is meaningful where, as here, the NRCs conclusion is entitled to deference.

B.

The NRCs Decision that a Supplemental EIS was not Required by NEPA is Entitled to Deference by this Court The NRCs determination that a supplemental EIS is not required for the Units 3&4 COLs is controlled by the arbitrary and capricious standard,32 as described at length in the NRCs opposition to the Motion to Stay.33 Petitioners assertion that the NRCs decision not to supplement the EIS will be subject to de novo review is wrong. Cases cited by Petitioners involve instances in which the agency determined that NEPA did not apply at all.34 This is not the case here.

31 CLI-12-11, at *5 (slip op. at 12-13).

32 Marsh v. Or. Natural Res. Council, 490 U.S. 360, 373-75 (1989).

33 See Federal Respondents Opposition at Section I.

34 See Motion to Stay at 9 (citing Citizens Against Rails-to-Trails v. Surface Transp. Bd., 267 F.3d 1144, 1151 (D.C. Cir. 2001); Calvert Cliffs Coordinating USCA Case #12-1106 Document #1372244 Filed: 05/03/2012 Page 12 of 31

13 The NRC has, at every step in the licensing proceeding, applied NEPA requirements to its licensing decisionincluding to the Fukushima information available to it, such as publication of the Task Force Report.35 Because the NRCs review of the recommendations requires a high level of technical expertise, this Court will defer to the [NRCs] informed discretion[.]36 In light of the deference due to NRC, Petitioners arguments fall far short of establishing that they have a substantial likelihood of success on the merits of their petition for review.

II.

Petitioners Will Not Be Irreparably Harmed Absent a Stay Petitioners have not shown how they will be irreparably harmed absent a stay. Petitioners must show that the harm that would be avoided by a stay is

Comm. v. AEC, 449 F.2d 1109, 1114 (D.C. Cir. 1971); San Luis Obispo Mothers for Peace v. NRC, 751 F.2d 1287. 1300 (D.C. Cir. 1984)).

35 The NRC prepared a draft EIS in connection with the Vogtle ESP pursuant to 10 C.F.R. §§ 51.70 and 51.71, analyzing the environmental impacts of the construction and operation of Units 3&4. Following a public review and comment period, the NRC published a final EIS in accordance with 10 C.F.R. §§ 51.90 and 51.91. During the ESP proceeding, the NRC admitted three environmental contentions of Petitioners and held a contested hearing on these contentions. See LBP-09-7, 69 NRC 613, 624 (2009). The ASLB also held an uncontested hearing in which it considered the sufficiency of the staffs ESP review, including environmental findings. Following Licensees application for a COL, per NRC regulations, the staff prepared a supplement to the ESP final EIS to evaluate whether there was any new and significant information that might affect the staffs conclusions in the ESP final EIS. See CLI-12-02, at *30-36 (slip op. at 66-75, 76-81).

36 Marsh, 490 U.S. at 377 (citing Kleppe v. Sierra Club, 427 U.S. 390, 412 (1976)).

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14 certain and great.37 Unit 3 is not expected to commence operation before 2016.

Petitioners point to no materialmuch less greatenvironmental harm that would result if the construction, ongoing since 2009, continues until a decision on the merits. Instead, Petitioners claim that if construction continues for as few as three months [briefing will be completed in 90 days], there will be an irretrievable commitment of a large amount of natural resources and generation of significant emissions of carbon.38 This assertion is contrary to the undisputed record. The total impacts of construction of both Units 3&4over the course of four to five yearshave been thoroughly analyzed in an EIS and found to be SMALL. This finding was not challenged by Petitioners before the NRC, and there is no challenge properly before this Court or any other body to this factual conclusion.39 The NRC found in the final supplemental EIS that the commitment of natural resources for the construction of Units 3&4 while irretrievable, would be of small consequence with respect to the availability of such resources.40 This conclusion by the NRC has also not been challenged by the Petitioners.

37 Cuomo, 772 F.2d at 976; see also USA Recycling, Inc. v. Town of Babylon, 66 F.3d 1272, 1295 (2d Cir. 1995); Winter, 55 U.S. at 21-22 (rejecting Ninth Circuits holding that when a plaintiff demonstrates a strong likelihood of prevailing on the merits, a preliminary injunction may be entered based only on a possibility of irreparable harm).

38 Motion to Stay at 15-17.

39 See CLI-12-11, at *4 (slip op. at 9-10) (explaining Petitioners failure to challenge the EIS conclusions related to construction impacts before the NRC).

40 FSEIS for COLs for Vogtle Elec. Generating Plant Units 3&4 § 11.5 (Mar.

2011).

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15 Moreover, the construction impacts relied upon by Petitioners are not even related to the error they allege or relief they seek in their petition for review. A success on the merits would, at most, result in a requirement for the NRC to prepare a supplemental EIS analyzing the environmental impacts associated with implementation of the Task Force Report. As the NRC noted, such impacts would only be experienced during operation of the facility, not during construction. In fact, Petitioners fail to demonstrate how the impacts of responding to the Fukushima incident would be experienced during construction of the facility. Petitioners suggestion that this is irrelevant and instead that any harm to the environment is sufficient to support a stay in a case involving NEPA is simply incorrect. Instead, as the Commission noted, [t]o qualify as irreparable harm justifying a stay, the asserted harm must be related to the underlying claim.41 Petitioners single case citation in an effort to evade this fatal error is completely inapposite.42 In the end, Petitioners have not and cannot link their underlying operational-based claims to their alleged construction-based injuries for which they seek a stay from this Court. Without this causal connection establishing an

41 CLI-12-11, at *4 (slip op. at 9) (citing United States v. Green Acres Enters., Inc.,

86 F.3d 130, 133 (8th Cir. 1996)).

42 Petitioners cite Brady Campaign to Prevent Gun Violence v. Salazar, 612 F.

Supp. 2d 1, 24 (D.D.C. 2009), for the proposition that harm to the environment is sufficient irreparable injury to justify entering a stay in NEPA actions. See Motion to Stay at 17 n.52. However, the causal connection between the Brady Campaign plaintiffs alleged irreparable harm and their underlying claims was not at issue in the proceeding.

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16 irreparable injury which the stay would prevent, Petitioners request for a stay cannot be granted.

III.

Issuance of a Stay would Substantially Harm Licensees and Is Not in the Public Interest Licensees and the public will not benefit from a stay by virtue of awaiting all possible, future Task Force requirements. As support for both their assertions regarding the effect of a stay on Licensees and on the public interest, Petitioners cite supposed financial benefits, by way of avoided backfit costs, to Licensees and the public if construction stops until all Task Force-related requirements are in place.43 No backfits regarding the structural design of Units 3&4 have been recommended or ordered; therefore, the Petitioners assertion is merely speculation.44 In fact, the Task Force Report concludes that the Units 3&4 (AP1000) design already addresses most of the recommended safety enhancements, and the action on the Report to date has not indicated changes to the design will be

43 Motion to Stay at 20.

44 Since the Vogtle COLs were issued, the NRC has issued three Task Force Report-related orders. NRC Orders EA-12-049; EA-12-050; EA-12-051 (Mar. 12, 2012) (published at 77 Fed. Reg. 16,091, 16,098, & 16,082, respectively (Mar. 19, 2012)). Only two of the orders were, partially, applicable to Vogtle Units 3&4, and none of the requirements contained therein significantly affect the Units construction. Moreover, the orders were issued after the Vogtle COLs and are therefore irrelevant to the question of whether the EIS should be supplemented. See CLI-12-07, at *6 (slip op. at 14) (citations omitted) ([A]s particularly relevant to the Vogtle matter, where COLs now have issued, we observe that an application-specific NEPA review represents a snapshot in time.

NEPA requires that we conduct our environmental review with the best information available today. It does not require that we wait until inchoate information matures into something that later might affect our review.).

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17 necessary, for seismic or any other reason.45 Significant backfits due to the NRCs Fukushima review are not likely.46 Given the certain and substantial immediate costs associated with a stay, halting construction to await the final Task Force requirements threatens serious economic consequences; the costs of delayed construction would almost certainly exceed any costs that might possibly be avoided due to backfits.47 Specifically, regarding the public interest, the Georgia Public Service Commission (GPSC) is charged with oversight of GPCs share of the construction cost of Units 3&4 and will ensure that only prudently incurred costs are recovered from GPCs customers.48 Neither a stay pending judicial review nor a supplemental EIS could or would protect ratepayers from such costs.

To the contrary, immediate, substantial and unavoidable harm would occur should the Vogtle licenses be stayed.49 In reviewing the harm to Licensees should a stay be issued, this Court test[s] these harms for substantiality, likelihood of occurrence and adequacy of proof.50 As Mr. Joseph A. Buzz Miller explains in

45 See Southern Nuclear Operating Companys Response to Motion to Stay, NRC Docket Nos.52-025 and 52-026 (filed Feb. 27, 2012).

46 Decl. of Mr. Joseph A. Buzz Miller (attached hereto as Ex. 1) ¶ 6 (Miller Decl.).

47 Id.

48 See Ga. Code § 46-3A-7 (providing for prudently incurred construction costs to be included in rate base).

49 Miller Decl. ¶¶ 5-9; Decl. of Mr. James Fuller (attached hereto as Ex. 2) ¶ 5 (Fuller Decl.).

50 Cuomo, 772 F.2d at 977.

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18 his Declaration, a delay in construction will cause carrying costs for GPC, and its parent Southern Company, to increase. These additional costs would negatively impact the price of Southern Company common stock and could result in a lower bond rating which would cause higher future financing costs.51 The carrying costs of other co-owners would be similarly affected.52 The harm to Licensees also extends beyond the carrying cost. A stay would disrupt project continuity. Most craft workers would not be allowed to work during the stay, resulting in an unstable workforce because qualified and trained workers will be forced to seek other employment.53 Currently, approximately 2,000 craft workers are performing construction on the site, with several thousand additional needed during the life of the project.54 A stay which unnecessarily disrupts training and continuity of construction makes maintaining the standards of quality that the NRC demands more difficult, and would cause otherwise unnecessary duplication of efforts, such as retraining workers and hiring replacement workers.55 The clear harm to Licensees significantly favors denying the stay request.

The public interest also clearly favors denying the stay request. The GPSC certified GPCs investment in Vogtle Units 3&4, and other licensees chose to invest in the Units, as a cost-effective, non-greenhouse gas emitting, source of new

51 Miller Decl. ¶ 4.

52 Fuller Decl. ¶ 5.

53 Miller Decl. ¶ 5.

54 Id.

55 Id.

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19 generation for the citizens of Georgia.56 The fact that GPC recovers the prudently incurred costs of the Vogtle Units construction, including construction work in progress, does not insulate the public from the harm a stay would bring. Increases in prudently incurred construction costs or the cost of replacement power would damage Licensees customers and ratepayers and the State of Georgia as a whole.57 Finally, the public interest would be harmed because a stay would immediately leave laborers at the Vogtle site without work and would delay the availability of new jobs at the site. Not only are the jobs at the Vogtle site impacted, but the indirect jobs created through the addition of the Vogtle jobs will also be negatively impacted.58 As the Vogtle ESP EIS noted, the large pool of jobs would inject millions of dollars into the regional economy, thus reducing unemployment and creating business opportunities for housing and service-related industries and increase regional tax revenue benefit realized by Burke County.59 Before the NRC, 28 different local officials submitted comments to the NRC supporting Vogtle Units 3&4s licensing, while not a single local official submitted comments opposing the licensing.60 The Vogtle Units 3&4 project is providing real

56 See Order on Remand at 6-8, GPSC Docket No. 27800 (filed June 23, 2010); see also Miller Decl. ¶ 7.

57 Ga. Code § 46-3A-7; Order on Remand at 6, GPSC Docket No. 27800 (noting the volatility in the fuel and environmental compliance costs associated with natural gas and coal resources); see also Fuller Decl. ¶ 5.

58 Miller Decl. ¶ 9.

59 Vogtle ESP Final EIS §§ 4.5.3.1; 11.6.1.2 (Aug. 2008).

60 See Notice to the Parties, NRC Docket Nos.52-025 and 52-026 (Oct. 26, 2011).

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20 benefit to the public now; a stay would unnecessarily harm the public without any corresponding benefit.

WHEREFORE, the Licensees respectfully request that this Court deny Petitioners Motion to Stay.

Respectfully Submitted,

/s/ M. Stanford Blanton M. Stanford Blanton Counsel of Record for Intervenors Southern Nuclear Operating Company, Georgia Power Company, Oglethorpe Power Corporation, Municipal Electric Authority of Georgia, and the City of Dalton, Georgia OF COUNSEL:

M. Stanford Blanton Kathryn M. Sutton Millicent W. Ronnlund MORGAN, LEWIS & BOCKIUS LLP BALCH & BINGHAM LLP 1111 Pennsylvania Ave., NW Post Office Box 306 Washington, D.C. 20004-2541 Birmingham, Alabama 35201 Telephone: (202) 739-5738 Telephone: (205) 226-3417 Facsimile: (202) 739-3001 Facsimile: (205) 488-55879 Dated:

May 3, 2012 USCA Case #12-1106 Document #1372244 Filed: 05/03/2012 Page 20 of 31

Blue Ridge Envtl. Defense League, et al. v. Nuclear Regulatory Commission, et al.

No. 12-1106; 12-1151 ADDENDUM to RESPONSE OPPOSING PETITIONERS MOTION TO STAY BY SOUTHERN NUCLEAR OPERATING COMPANY, GEORGIA POWER COMPANY, OGLETHORPE POWER CORPORATION, MUNICIPAL ELECTRIC AUTHORITY OF GEORGIA, AND THE CITY OF DALTON, GEORGIA USCA Case #12-1106 Document #1372244 Filed: 05/03/2012 Page 21 of 31

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA BLUE RIDGE ENVIRONMENTAL

)

DEFENSE LEAGUE, et al.,

)

)

Petitioners,

)

)

v.

)

)

NUCLEAR REGULATORY

)

COMMISSION and

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UNITED STATES OF AMERICA,

)

)

Respondents.

)

Case No. 12-1106; 12-1151 (Consolidated)

DECLARATION OF JOSEPH A. "BUZZ" MILLER

1.

My name is Joseph A. "Buzz" Miller. I am Executive Vice President for Nuclear Development at Southern Nuclear Operating Company and for Georgia Power Company. I have held the position of Executive Vice President for Nuclear Development at Southern Nuclear Operating Company since 2006, and the same position at Georgia Power Company since 2009. Southern Company is the parent holding company of Southern Nuclear Operating Company, which builds and operates nuclear electrical generating plants on behalf of Southern Company and its subsidiaries.

Georgia Power Company is a subsidiary of Southern Company and one owner of the Vogtle Electric Generating Units 3 and 4 project. I hold a B.S. degree in chemical engineering from Auburn University and am a Exhibit 1 USCA Case #12-1106 Document #1372244 Filed: 05/03/2012 Page 22 of 31

graduate of the MIT reactor technology course for utility executives.

I have official and personal knowledge of the matters discussed herein.

2.

As Executive Vice President for Nuclear Development, I am responsible for overseeing the construction of Vogtle Electric Generating Plant Units 3 and 4 in order to generate electricity to serve the needs of the customers of Georgia Power Company and the customers of the co-owners of the plant, Oglethorpe Power Corporation, Municipal Electric Authority of Georgia, and Dalton Utilities.

Southern Nuclear is the licensee for the construction and operation of the new reactors and the Owners are licensed to own and possess the new reactors. SNC has been authorized by the Owners to act as their agent in the licensing, construction and operation of the two new nuclear units. I am familiar with the principal strategic and economic considerations that inform the decision to license, build, and operate electrical generating facilities in general, and Vogtle Units 3 and 4 in particular, and with the likely consequences of any delays to the project.

3.

The purpose of this affidavit is to describe the likely consequences of a stay that would delay the Vogtle Electric Generating Plant Units 3 and 4 project.

4.

A stay would cause financial harm to Southern Company, Georgia Power Company, and the co-owners of the Vogtle Units 3 and 4 project. A stay 2

Exhibit 1 USCA Case #12-1106 Document #1372244 Filed: 05/03/2012 Page 23 of 31

would result in delays to the $14 billion project which would increase the project's carrying costs. Regardless of the potential for recovery of delay costs, a stay would likely harm Southern Company by negatively affecting the market price of its common stock and by resulting in a lowered bond rating, meaning higher financing costs in the future. To the extent that any of these costs are determined to be recoverable from our customers, they would increase the cost of generation to those customers. Given the ultimate capital cost of this project, incremental carrying costs resulting from a stay pending judicial review could exceed $1 million per day for Georgia Power Company and the other co-owners of Vogtle Units 3 and 4.

5.

A stay would disrupt the continuity of the construction project. Most craft workers would not be allowed to work during the stay, resulting in an unstable workforce for the project because qualified and trained workers will be forced to seek employment elsewhere. Continuing the construction sequence with minimal disruption, on the other hand, supports both project quality and safety.

Today, approximately 2,000 craft workers are performing construction on the site, with several thousand additional craft workers needed during the life of the construction project. A stay which unnecessarily disrupts training and continuity of construction makes maintaining the standards of quality that the Nuclear Regulatory Commission (NRC) demands more difficult. In other words, a stay of 3

Exhibit 1 USCA Case #12-1106 Document #1372244 Filed: 05/03/2012 Page 24 of 31

construction would do more than pause ongoing activity. It would actually require duplication of efforts, such as retraining workers and hiring replacement workers for those who acquired other employment during the stay.

6.

If a stay is issued, the resultant costs of delayed construction would almost certainly exceed any costs that might possibly be avoided due to future backfits that might result from the NRC's implementation of the Fukushima Task Force recommendations. Southern Nuclear is involved as a stakeholder in ongoing NRC consideration of the Fukushima Task Force recommendations and will be ready to implement applicable new requirements, if any, the NRC passes as a result of its Fukushima review. At this time, based on the content of the Task Force report and the advanced nature of the APlOOO design, Southern Nuclear does not foresee that any significant backfits will be imposed due to the NRC's Fukushima review. Given the concrete and substantial immediate costs associated with a stay, halting construction to await the final Fukushima requirements poses serious financial risk. To the extent some or all of these costs are determined to be recoverable from customers, they would increase the cost of generation without any accompanying safety or reliability benefit.

7.

A stay would cause harm to the public interest. The public has an interest in planning for and acquiring reliable baseload electric generating capacity.

4 Exhibit 1 USCA Case #12-1106 Document #1372244 Filed: 05/03/2012 Page 25 of 31

Vogtle Units 3 and 4 are an economical and integral part of Georgia Power Company's plan to meet future forecasted energy demand. Georgia expects to add more than 4 million new residents by the year 2030. The new Vogtle nuclear units are a key resource for supplying the power that will be needed because nuclear production provides baseload generation (meaning that nuclear provides continuous power). Nuclear power plants produce uninterrupted electricity for extended periods of time, they have high reliability, and, in the U.S., average a capacity factor of 91.5 percent.

Issuing a stay harms the public interest by delaying the availability of new baseload generation, which makes planning for future needs more difficult and could put Georgia Power at the mercy of more volatile market prices.

8.

Vogtle Units 3 and 4 are expected to save Georgia customers up to $6 billion in lower electricity rates over the life of the units as compared to a coal or natural gas plant. While the Georgia Public Service Commission has permitted the Vogtle Units 3 and 4 Construction Work in Progress to be put into the retail rate base, this does not insulate the costs arising from a stay. Either Georgia Power Company would bear the costs or Georgia ratepayers would, depending upon determinations made by the Georgia Public Service Commission. The public has an interest in seeing the project completed with a minimum of interruptions so that costs are minimized and the electricity supply is ensured.

5 Exhibit 1 USCA Case #12-1106 Document #1372244 Filed: 05/03/2012 Page 26 of 31

9.

Plant Vogtle Units 1 and 2 is the largest employer in Burke County, Georgia. The Vogtle Units 3 and 4 project will create 4,000 to 5,000 jobs at the site, including about 800 permanent jobs and 3,500 construction jobs, resulting in about 25,000 direct and indirect jobs. A stay will create an immediate, negative effect on this job creation and is therefore not in the public interest.

10.

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the facts set forth in this declaration are true to the best of my know ledge.

Sworn to and subscribed before me this _ day of May, 2012.

Notary Public My Commission Expires '1J1:5/, dt2/d, I

[NOTARIAL SEAL]

6 Joseph A. Miller Date Exhibit 1 USCA Case #12-1106 Document #1372244 Filed: 05/03/2012 Page 27 of 31

IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA BLUE RIDGE ENVIRONMENTAL

)

DEFENSE LEAGUE, et al.,

Petitioners,

v.

NUCLEAR REGULATORY COMMISSION and UNITED STATES OF AMERICA, Respondents.

)

)

)

)

)

)

)

)

)

)

)

)

Case No. 12-1106; 12-1151 (Consolidated)

DECLARATION OF JAMES FULLER 1

1.

My name is James Fuller. I am the Senior Vice President, Chief Financial Officer at the Mtmicipal Electric Authority of Georgia (MEAG Power).

I have held this position since 2001. I hold a Bachelor of Science in Business Administration degree in accmmting from Western New England College and a Master of Science in Taxation frmn Bentley College. I have official and personal la1owledge of the matters discussed herein.

2.

MEAG Power is an electric generation and transmission public corporation, which provides wholesale power to 49 communities in the State of Georgia and other wholesale customers. These communities, in tum, supply elech*icity to approximately 308,000 retail accounts, representing a total population Exhibit 2 USCA Case #12-1106 Document #1372244 Filed: 05/03/2012 Page 28 of 31

of approximately 614,000, in their respective service areas across the state. MEAG Power has a 22.7 percent ownership interest in the Vogtle Electric Generating Plant Units 3 and 4, and has agreed to allow Georgia Power Company to act as its agent respecting the licensing and construction of the new Units.

3.

MEAG Power has contracted for ownership ofVogtle Units 3 and 4 in order to serve the needs of its wholesale power customers. I am familiar with the principal strategic and economic considerations that inform the decision to license, build, and operate electrical generating facilities in general, and Vogtle Units 3 and 4 in particular, and with the likely consequences of any delays to the project.

4.

The purpose of this affidavit is to describe the likely consequences to MEAG Power and its participant commtmities of a stay that would delay the Vogtle Electric Generating Plant Units 3 and 4 project. MEAG Power and its offtalcers and the customers of its offtalcers will be harmed if a stay is issued delaying the project's construction.

5.

A stay would cause financial harm to MEAG Power. MEAG Power is responsible for 22.7 percent of the new Units' construction costs. A stay would result in delays to the $14 billion project which would increase the project's carrying costs. Such additional costs would increase the billings by MEAG Power to its participant communities, thereby negatively impacting the ratepayers served 2

Exhibit 2 USCA Case #12-1106 Document #1372244 Filed: 05/03/2012 Page 29 of 31

by the participant communities. Additionally, MEAG Power and its offtakers need the generation the Vogtle Units 3 and 4 will provide in order to meet their obligations to their customers. A delay in the in-service date for the new Units may force MEAG Power to procure the needed generation elsewhere, at the risk of more volatile prices in the market.

6.

Pursuant to 28 U.S.C. § 1746, I declare under penalty of perjury that the facts set forth in this declaration are true to the best of my know ledge.

J~L;?~

Senior Vice President, Chief Financial Officer Municipal Electric Authority of Georgia DA~

3 I

,Z C// <.___.

Sw0111 to and subscribed before me this 3 day of May 2012.

Notary Public My Commission Expires @C![ ~51 ()C}fQZ..

[NOTARIAL SEAL]

3 Exhibit 2 USCA Case #12-1106 Document #1372244 Filed: 05/03/2012 Page 30 of 31

CERTIFICATE OF SERVICE I hereby certify that, on May 3, 2012, a copy of foregoing LICENSEES RESPONSE OPPOSING PETITIONERS MOTION TO STAY and the attached addendum was filed electronically. I understand that notice of this filing will be sent to all parties by operation of the Courts electronic filing system. Parties may access this filing through the Courts system. A copy of the foregoing was also sent by U.S. mail, first class, to each person listed below:

Diane Curran John David Runkle, Esquire Email: dcurran@harmoncurran.com Email: jrunkle@pricecreek.com Harmon, Curran, Spielberg and Eisenberg Direct: 919-942-0600 Firm: 202-328-3500 2121 Damascus Church Road 1726 M Street, NW Chapel Hill, NC 27516 Suite 600 Counsel for Petitioners Washington, DC 20036-0000 Counsel for Petitioners Robert M. Rader John David Gunter, II John F. Cordes Office of the Attorney General Jeremy Suttenberg U.S. Department of Justice Office of the General Counsel Envt and Natural Res. Division U.S. Nuclear Regulatory Commission PO Box 7415 1 White Flint North Ben Franklin Station 11555 Rockville Pike Washington, DC 20044-7415 Mail Stop 0-15D21 Counsel for Respondent Rockville, MD 20852 United States Counsel for Respondent Nuclear Regulatory Commission Randall L. Speck David L. Cousineau Kaye Scholer LLP 901 Fifteenth Street, N.W.

Washington, D.C. 20005-2327 Tel. (202) 682-3510 Fax (202) 682-3580 Counsel for Westinghouse Electric Company, LLC

/s/ M. Stanford Blanton M. Stanford Blanton USCA Case #12-1106 Document #1372244 Filed: 05/03/2012 Page 31 of 31