ML15037A318

Refiled Motion for New Contention and Motion to Reopen

ML15037A318
Person / Time
Site:	Watts Bar
Issue date:	02/05/2015
From:	Curran D Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP, Southern Alliance for Clean Energy
To:	NRC/OCM
SECY RAS
References
50-391-COL, ASLBP 09-893-01-OL-BD01, RAS 27183
Download: ML15037A318 (21)

Text

February 5, 2015 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )

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

)

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)

I. INTRODUCTION Pursuant to 10 C.F.R. §§ 2.309(c), 2.309(f)(1), and 2.309(f)(2), Southern Alliance for Clean Energy (SACE) seeks leave to file 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). This motion is supported by the attached Motion to Re-Open the Record.

II. CONTENTION A. Statement of Contention TVAs Final Safety Analysis Report (FSAR) for WBN2 is deficient under 10 C.F.R. § 50.34(b)(4) because it does not include the information provided in TVAs Dec. 30, 2014 Expedited Seismic Evaluation Process (ESEP) Report for Watts Bar Nuclear Plant (ML14365A072). Section 50.34(b)(4) requires an FSAR to provide information about the design and performance of structures, systems and components [SSCs], taking into account any pertinent information developed since the submittal of the preliminary safety analysis report. The purpose of the information is to allow an assessment of the risk to public health and safety resulting from operation of the facility. 10 C.F.R. § 50.34(a). The information 1

developed by TVA and presented in the ESEP Report is pertinent to the NRCs review of whether the design and performance of SSCs meets the reasonable assurance standard in NRC regulations and the Atomic Energy Act1, as set forth by 10 C.F.R. §§ 50.57(a)(2), (a)(3), and (a)(6).

B. Statement of Basis for the Contention The following explains the legal and factual bases for the contention:

TVA submitted the ESEP Report in response to a request for information by the NRC in the aftermath of the Fukushima accident. See Letter from NRC to All Power Reactor Licensees and Holders of Construction Permits in Active or Deferred Status re: Request for Information Pursuant to Title 10 of the Code of Federal Regulations 50.54(f) Regarding Recommendations 2.1, 2.3 and 9.3 of the Near-Term Task Force Review of Insights from the Fukushima Dai-ichi Accident (March 12, 2012) (ML12053A340), as augmented by Letter from NRC to All Power Reactor Licensees and Holders of Construction Permits in Active or Deferred Status on the Enclosed List re: Screening and Prioritization Results Regarding Information Pursuant to Title 10 of the Code of Federal Regulations 50.54(f) Regarding Seismic Hazard Re-Evaluations for Recommendation 2.1 of the Near-Term Task Force Review of Insights From the Fukushima Dai-ichi Accident (May 9, 2014) (ML14111A147).

The ESEP Report is intended to show that WBN2 can operate safely despite the fact that the seismic risk to WBN2 is now known to be greater than the safe shutdown earthquake (SSE) to which the reactor was designed. ESEP at 22. TVA claims that [t]he ESEP provides an important demonstration of Seismic Margin and expedites plant safety enhancements through evaluations and potential near-term modifications of plant equipment that can be relied upon to 1

42 U.S.C. § 2011, et seq.

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protect the Reactor Core following beyond design basis seismic events, i.e., seismic events with the potential ground motion now predicted for WBN2.0 Id. at 22. The ESEP also lists a set of ten design practices employed by the nuclear industry to SSCs as a general matter, and asserts that these practices combine to result in margins such that the SSCs will continue to fulfill their functions at ground motions well above the SSE. Id. at 23. The particular components reviewed in the ESEP Report are SSCs that TVA considers to be required to support core cooling, reactor coolant inventory and subcriticality, and containment integrity functions. ESEP Report at 8. Under a schedule established by NRC for submittals of post-Fukushima information by licensees, TVA plans to submit additional information by December 2016. Id. at 23 (citing Letter from Eric J. Leeds, NRC, to Joseph E. Pollock, Nuclear Energy Institute (NEI) re:

Electric Power Research Institute Final Draft Report XXXXX, Seismic Evaluation Guidance:

Augmented Approach for the Resolution of Fukushima Near-Term Task Force Recommendation 2.1 etc. (May 7, 2013) (ML13106A331).

NRC regulations 10 C.F.R. §§ 50.34(a)(4) and 50.34(b)(4) require construction permit and operating license applicants to submit certain information in their Preliminary Safety Analysis Reports (PSARs) and FSARs at a minimum. 10 C.F.R. § 50.34(a)(4). 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.

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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 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).

The information developed by TVA and presented in the ESEP Report is pertinent to the NRCs review of the risk to public health and safety resulting from operation of the facility, 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.

10 C.F.R. § 50.34(a)(4). The information is also pertinent to the question of whether there is a reasonable assurance that WBN2 will operate safely during its 40-year license term, as required by the Atomic Energy Act and 10 C.F.R. §§ 50.57(a)(2), (3), and (6).

While the NRC has stated that it will review the information in the ESEP as part of its post-Fukushima deliberations, that review will take place outside the scope of this operating 4

license proceeding for WBN2, and the NRC has not made a commitment to judge the information against the reasonable assurance standard for reactor licensing in 10 C.F.R. § 50.57(a) and the Atomic Energy Act. See letter from William M. Dean to Diane Curran (Nov.

21, 2014) (served on WBN2 docket). Instead, it appears the NRC intends to judge the information against a standard of whether operation of the reactor would pose an imminent risk to public health and safety. Id. at 2.

But the imminent risk standard is a criterion for whether an operating reactor 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). The imminent risk standard for whether a reactor poses such a great risk that it must be shut down immediately is very different from the reasonable assurance standard used to determine whether a new reactor can be operated safely for 40 years. Therefore, 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.

C. Demonstration that the Contention is Within the Scope of the Proceeding The contention is within the scope of the proceeding because it challenges the adequacy of TVAs FSAR to comply with NRC safety regulations.

D. Demonstration that the Contention is Material to the Findings the NRC Must Make to License This Reactor The contention is material to the findings that the NRC must make in order to license this reactor because it asserts that TVAs FSAR does not include information necessary for the NRCs safety findings under the Atomic Energy Act and NRC regulations. See 42 U.S.C. §§ 5

2133(d), 2232(a); 10 C.F.R. §§ 50.34(a)(4), 50.34(b)(4), 50.57(a)(2), (a)(3), and (a)(6). These safety findings must be made before the NRC may issue an operating license for WBN2.

E. Concise Statement of the Facts or Expert Opinion Supporting the Contention, Along with Appropriate Citations to Supporting Scientific or Factual Materials The facts supporting this contention are presented above in Section B, the statement of basis for this contention. This contention relies entirely on factual statements made by TVA.

F. A Genuine Dispute Exists with the Applicant on a Material Issue of Law or Fact This contention raises a genuine dispute with TVA, the applicant, regarding whether TVA has justified the issuance of an operating license for WBN2 under the NRCs regulations and the Atomic Energy Act. Unless or until TVA cures the deficiencies asserted in SACEs contention, the NRC lacks a sufficient factual basis for making a decision to issue an operating license for WBN2.

III. THE CONTENTION IS TIMELY PURSUANT TO 10 C.F.R. §§ 2.309(c) and 2.309(f)(2)

The contention meets the timeliness requirements of 10 C.F.R. § 2.309(c) and § 2.309(f)(2), which call for a showing that:

(i) The information upon which the amended or new contention is based was not previously available; (ii) The information upon which the amended or new contention is based is materially different than information previously available; and (iii) The amended or new contention has been submitted in a timely fashion based on the availability of the subsequent information.

First, the information on which the contention is based - i.e., the issuance of the Continued Storage Rule - was not publicly available until January 6, 2015, when it was posted 6

on ADAMS.

Second, the information in the Continued Storage Rule is materially different than previously available information because it consists of TVAs analysis of whether reactor SSCs can safely withstand predicted ground motions.

Third, the Contention is timely because it has been submitted within 30 days of the posting on ADAMS of the ESEP.

IV. 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.

VI. CONCLUSION For the reasons stated, SACE respectfully requests that the Atomic Safety and Licensing Board grant leave to file their contention.

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 February 5, 2015 7

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

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

)

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, 2015) (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

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 2

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 3

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 4

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:

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(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 6

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

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

)

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 )

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

)

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