ML15036A621

Motion to File Contention and Reopen Record

ML15036A621
Person / Time
Site:	Watts Bar
Issue date:	02/05/2015
From:	Curran D Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP
To:	NRC/OCM
SECY RAS
References
09-893-01-OL-BD01, RAS 27180, Watts Bar Nuclear Plant 50-391-OL
Download: ML15036A621 (14)

Text

February 5, 2015 United States of America Nuclear Regulatory Commission Before the Commission In the Matter of

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TENNESSEE VALLEY AUTHORITY

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Docket No. 50-391-OL (Watts Bar Nuclear Plant, Unit 2)

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SOUTHERN ALLIANCE FOR CLEAN ENERGYS MOTION TO REOPEN THE RECORD I.

INTRODUCTION Pursuant to 10 C.F.R. § 2.326, Southern Alliance for Clean Energy (SACE) hereby moves to reopen the record in this proceeding to admit a new Contention that challenges the Tennessee Valley Authoritys (TVAs) failure to comply with U.S. Nuclear Regulatory Commission (NRC) regulation 10 C.F.R. § 50.34(b)(4) in its Final Safety Analysis Report (FSAR) for the Watts Bar Unit 2 nuclear power plant (WBN2). See Southern Alliance for Clean Energys Motion for Leave to File a New Contention Concerning TVAs Failure to Comply With 10 C.F.R. 50.34(b)(4) (Feb. 5, 2014) (attached).

Several overlapping factors, set forth in three regulations, govern motions to reopen and admit new contentions. This motion and the accompanying Contention satisfy each of these factors. See 10 C.F.R. §§ 2.309(c), 2.323, and 2.326. The motion is supported by the attached standing declarations for SACE members Sandra J. Kurtz, Jeannie McKinney, and Victoria Anne Murchie; and by the attached declaration of undersigned counsel, Diane Curran, who is competent to apply the law to the facts as stated by TVA.

II.

JURISDICTION Until issuance of its initial final decision, a Licensing Board has jurisdiction to reopen a proceeding. See 10 C.F.R. §§ 2.318(a), 2.713(a), 2.319(m), and 2.341; Metro. Edison Co. (Three

2 Mile Island Nuclear Station, Unit 1), ALAB-699, 16 NRC 1324, 1326, 1327 (1982). After that, jurisdiction lies with the Commission. Here, jurisdiction has passed from the ASLB to the Commission.

III. THIS MOTION SATISFIES THE STANDARDS FOR REOPENING A CLOSED HEARING RECORD SET FORTH IN 10 C.F.R. § 2.326(a).

10 C.F.R. § 2.236(a) provides three criteria which must be satisfied for this motion to be granted:

(1) The motion must be timely. However, an exceptionally grave issue may be considered in the discretion of the presiding officer even if untimely presented; (2) The motion must address a significant safety or environmental issue; and (3) The motion must demonstrate that a materially different result would be or would have been likely had the newly proffered evidence been considered initially.

Id. This motion and the accompanying contention satisfy all three criteria, as discussed below.

A.

This Motion is Timely.

This motion is timely because it is being filed within thirty days of the posting on ADAMS of the principal document on which SACE relies: TVAs Dec. 30, 2014 Expedited Seismic Evaluation Process (ESEP) Report for Watts Bar Nuclear Plant (ML14365A072)

(ESEP).

B.

This Motion and the Accompanying Contention Address a Significant Safety Issue.

As a matter of law, this motion and the accompanying Contention raise a significant safety issue, because they concern the adequacy of TVAs representations, in its Final Safety Analysis Report (FSAR) of NRC regulations that establish minimum requirements for the safe operation of reactors. These regulations, 10 C.F.R. §§ 50.34(a)(4) and 50.34(b)(4), require construction permit and operating license applicants to submit and update information about the

3 performance of structures, systems and components (SSCs) necessary to prevent or mitigate an accident at a proposed reactor. Compliance with §§ 50.34(a)(4) and 50.34(b)(4) is necessary to ensure that licensees have a sound basis for a reactors technical specifications. Final Rule, Technical Specifications for Facility Licensees; Safety Analysis Reports, 33 Fed. Reg. 18,610, 18,611 (Aug. 1, 1986). At the construction permit stage, the regulations require:

(a) Preliminary safety analysis report. Each application for a construction permit shall include a preliminary safety analysis report. The minimum information5 to be included shall consist of the following:

A preliminary analysis and evaluation of the design and performance of structures, systems, and components of the facility with the objective of assessing the risk to public health and safety resulting from operation of the facility and including determination of the margins of safety during normal operations and transient conditions anticipated during the life of the facility, and the adequacy of structures, systems, and components provided for the prevention of accidents and the mitigation of the consequences of accidents.

5 The applicant may provide information required by this paragraph in the form of a discussion, with specific references, of similarities to and differences from, facilities of similar design for which applications have previously been filed with the Commission.

At the operating license stage, this information must be updated with pertinent information:

(b) Final safety analysis report. Each application for an operating license shall include a final safety analysis report. The final safety analysis report shall include information that describes the facility, presents the design bases and the limits on its operation, and presents a safety analysis of the structures, systems, and components and of the facility as a whole, and shall include the following:

(4) A final analysis and evaluation of the design and performance of structures, systems, and components with the objective stated in paragraph (a)(4) of this section and taking into account any pertinent information developed since the submittal of the preliminary safety analysis report. Analysis and evaluation of ECCS cooling performance following postulated loss-of-coolant accidents shall be performed in accordance with the

4 requirements of § 50.46 for facilities for which a license to operate may be issued after December 28, 1974.

10 C.F.R. § 50.34(b)(4). TVA has made representations to the NRC regarding the ability of SSCs to withstand a better-understood and more-severe earthquake risk than TVA designed WBN2 to withstand when the reactor was built. Essentially, TVA has updated its analysis under

§§ 50.34(a)(4) and 50.34(b)(4), but sent it to the NRC outside the licensing process. Because the information clearly is pertinent to the issues reviewed under §§ 50.34(a)(4) and 50.34(b)(4), it should be submitted in an amendment to the FSAR.

C.

This Motion and the Accompanying Contention Would Likely Produce a Materially Different Result in this Proceeding.

Consideration of this Motion and the accompanying Contention would likely produce a materially different result in this proceeding. If SACE prevails on its Contention, TVA will be required to provide the NRC Staff with information that is relevant to its licensing determination under the Atomic Energy Act and NRC regulations of whether WBN2 can be operated safely during an earthquake. As a result of reviewing the information, the NRC may require that more information be submitted, and/or that TVA make changes to the SSCs to ensure their safe operation. Thus, members of the public will have the benefit of a more thorough and adequate NRC licensing review of the WBN2 FSAR against NRC safety standards.

In this context, it should be noted that there is a significant difference between the standard applied by the NRC in licensing a reactor and the standard the NRC apparently intends to apply in reviewing information submitted by licensees of operating reactors as part of its post-Fukushima deliberations. The standard for licensing a reactor is one of reasonable assurance of safe operation for a 40-year term. 10 C.F.R. § 50.57(a). In contrast, it appears the NRC intends to conduct its post-Fukushima review of information submitted by operating reactor

5 licensees against a standard of whether operation of the reactor would pose an imminent risk to public health and safety. See Letter from William M. Dean to Diane Curran at 2 (Nov. 21, 2014) (served on WBN2 docket). The imminent risk standard is a criterion for whether an operating reactor is so hazardous that should be shut down right away. See, e.g., Yankee Atomic Electric Co. (Yankee Nuclear Power Station), CLI-96-6, 43 NRC 123, 128 (1996) (finding no imminent hazard that would warrant shutdown of a reactor). Judging information against that standard is very different from evaluating whether a new reactor can be operated safely for 40 years. In order to ensure that all pertinent information receives the NRCs safety review against the reasonable assurance standard for reactor licensing, the information in the ESEP should be included in the FSAR.

IV.

THIS MOTION SATISFIES THE STANDARDS FOR REOPENING A CLOSED HEARING RECORD SET FORTH IN 10 C.F.R. § 2.326(b).

10 C.F.R. § 2.326(b) requires that a motion to reopen the record must be accompanied by affidavits that set forth the factual and/or technical bases for the movant claim that the criteria of Section 2.326(a) have been satisfied. This Motion is supported by the attached Declaration of Diane Curran. Therefore it complies with 10 C.F.R. § 2.239(b).

V.

THIS MOTION AND THE ACCOMPANYING CONTENTION SATISFY THE STANDARDS FOR CONTENTIONS FILED AFTER THE DEADLINE SET FORTH IN 10 C.F.R. §§ 2.326(d) AND 2.309(c).

10 C.F.R. § 2.326(d) provides that [a] motion to reopen which relates to a contention not previously in controversy among the parties must also satisfy the § 2.309(c) requirements for new or amended contentions filed after the deadline in § 2.309(b). This motion and the accompanying new contention meet the requirements of 10 C.F.R. § 2.309(c), which calls for a showing that:

6 (i)

The information upon which the filing is based was not previously available; (ii)

The information upon which the filing is based is materially different than information previously available; and (iii)

The filing has been submitted in a timely fashion based on the availability of the subsequent information.

First, the information on which the contention is based - the contents of the ESEP - was not available until January 6, 2015. Second, the information in the ESEP is materially different than previously available information because it is not in TVAs FSAR. Third, the Contention is timely because it has been submitted within 30 days of January 6, 2015, the date on which the ESEP was posted on ADAMS.

VI.

CONSULTATION CERTIFICATION PURSUANT TO 10 C.F.R. § 2.323(B)

Undersigned counsel for SACE certifies that on February 4, 2015, I contacted counsel for the TVA and the NRC staff in an attempt to obtain their consent to this motion. Counsel for both parties stated that they would oppose the motion.

VII. CONCLUSION The issues SACE seeks to raise in reopening this matter are material to the findings the NRC must make pursuant to the AEA before an operating license is issued. We therefore request that the record be reopened and the Contention be admitted.

Respectfully submitted,

[Electronically signed by]

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

1726 M Street N.W. Suite 600 Washington, D.C. 20036 202-328-3500 E-mail: dcurran@harmoncurran.com February 5, 2015

February 5, 2015 United States of America Nuclear Regulatory Commission Before the Commission In the Matter of

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TENNESSEE VALLEY AUTHORITY

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Docket No. 50-391-OL (Watts Bar Nuclear Plant, Unit 2)

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DECLARATION OF DIANE CURRAN IN SUPPORT OF SOUTHERN ALLIANCE FOR CLEAN ENERGYS MOTION TO REOPEN THE RECORD Under penalty of perjury, I, Diane Curran, declare as follows:

1. I am legal counsel to Southern Alliance for Clean Energy (SACE) in the above-captioned proceeding.

2. I have practiced before the U.S. Nuclear Regulatory Commission for over 30 years, and am familiar with the Atomic Energy Act, NRCs safety regulations for reactor licensing and enforcement of NRC regulations. I am competent to understand the regulations and the plain meaning of licensee submittals with respect to reactor licensing and enforcement.

3. I am familiar with the documents discussed in SACEs Motion to Reopen the Record and SACEs Motion for Leave to File a New Contention Concerning TVAs Failure to Comply with 10 C.F.R. § 50.34(b)(4).

4. The factual statements in SACEs Motion to Reopen the Record and Motion for Leave to File a New Contention are, to be best of my knowledge, true and correct representations of statements made by TVA and the NRC Staff in correspondence and reports. The statements regarding SACEs interpretation of NRC regulations and the Atomic Energy Act are based on my best professional judgment.

[Electronically signed by]

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

1726 M Street N.W. Suite 600 Washington, D.C. 20036 202-328-3500 E-mail: dcurran@harmoncurran.com February 5, 2015

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of

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TENNESSEE VALLEY AUTHORITY

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Docket No. 50-391-OL (Watts Bar Nuclear Plant, Unit 2)

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CERTIFICATE OF SERVICE I certify that on February 5, 2015, on behalf of Southern Alliance for Clean Energy, I posted on the NRCs Electronic Information Exchange SACEs Motion to Reopen the Record and SACEs Motion for Leave to File a New Contention Concerning TVAs Failure to Comply with 10 C.F.R. § 50.34(b)(4). It is my understanding that as a result, the NRC Commissioners, Atomic Safety and Licensing Board, and parties to this proceeding were served.

Respectfully submitted, Electronically signed by Diane Curran Harmon, Curran, Spielberg & Eisenberg, L.L.P.

1726 M Street N.W. Suite 600 Washington, D.C. 20036 202-328-3500 Fax: 202-328-6918 E-mail: dcurran@harmoncurran.com January 28, 2015