ML11311A291

NRC Staff'S Answer to Southern Alliance for Clean Energy'S Motion for Leave to Supplement Basis of Contention Regarding NEPA Requirement to Address Safety and Environmental Implications of the Fukushima Task Force Report

ML11311A291
Person / Time
Site:	Watts Bar
Issue date:	11/07/2011
From:	Roth D NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 21391, 50-391-OL, ASLBP 09-893-01-OL-BD01
Download: ML11311A291 (39)

Text

November 7, 2011 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

TENNESSEE VALLEY AUTHORITY ) Docket Nos. 50-391-OL

)

(Watts Bar Unit 2) )

NRC STAFFS ANSWER TO 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 INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c) and the Atomic Safety and Licensing Board's (Board)

Scheduling Order dated May 26, 2010, the Staff of the U.S. Nuclear Regulatory Commission (NRC Staff or Staff) answers the Southern Alliance for Clean Energys ["SACE"] Motion for Leave to Supplement Basis of Contention Regarding NEPA Requirement to Address Safety and Environmental Implications of the Fukushima Task Force Report" filed on October 28, 2011.1 The Motion to Supplement alleges that a Commission memorandum to the Staff on recommendations addressing the Fukushima incident provides additional support for a contention SACE previously filed based on those recommendations.2 As set forth below, the Board should deny SACE's Motion to Supplement because it is 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 (October 28, 2011) (Agencywide Documents Access and Management System ("ADAMS")

Accession No. ML11301A334) (Motion to Supplement").

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 (August 11, 2011) (ML11223A291) (Motion to Add Contention).

procedurally defective. Moreover, a motion to supplement the basis of a contention must meet the Commissions standards for late, new, and amended contentions under 10 C.F.R. §§ 2.309(c), (f)(1), and (f)(2). Because the Motion to Supplement does not address these standards, SACE's attempt to add additional support to its contention fails from a procedural standpoint, and further does not meet the Board's Scheduling Order regarding how to amend a contention.

Moreover, even if the Board overlooked these procedural deficiencies, the Motion to Supplement does not contain information that would lead to the admissibility of the underlying contention. The Motion to Supplement relies on recent Commission Staff Requirements Memorandum (SRM) SECY-11-0124, Recommended Actions to Be Taken Without Delay from the Near-Term Task Force Report, (October 18, 2011) (ADAMS Accession No. ML112911571)

("SRM-SECY-11-0124") (Attachment 1). Therein, the Commission approved, subject to certain comments, the Staff's proposed actions to implement certain near-term Task Force safety recommendations. SRM-SECY-11-0124 at 1 (unnumbered). The actual specific licensing actions or rulemaking activities that could trigger the NRCs environmental obligations have not occurred, but instead are future actions expected to be implemented and completed within five years. Many of these recommendations will await the development of additional information, provide for significant input and comment opportunities from external stakeholders, and will potentially involve the Commission before final implementation. However, SACE asserts that SRM-SECY-11-0124 establishes the environmental significance of those recommendations and hence the admissibility of the underlying contention, which challenged the Watts Bar Unit 2 environmental review based on those recommendations.3 But, as several Boards have recognized, the Commission has already determined that those recommendations do not 3

Motion to Supplement at 1-2 citing SRM-SECY-11-0124.

constitute "new" and "significant" information for purposes of environmental analysis.4 In addition, a Board also noted that the initial contention did not raise a genuine dispute with the applicant's environmental analysis because the recommendations did not specifically reference that application, and the sponsor of the new contention failed to connect those recommendations to the associated environmental review.5 Likewise, neither the Motion to Supplement nor SRM-SECY-11-0124 explicitly link the recommendations to the Watts Bar Unit 2 environmental review. Moreover, the Motion to Supplement does not establish that the issues it raises are yet ripe for adjudication.6 As a result, the Board should deny the Motion to Supplement.

BACKGROUND As relevant to the instant motion, SACE is a party to this operating license proceeding having established standing and proffering admissible contentions.7 On March 11, 2011, the Fukushima Dai-ichi site in Japan experienced an earthquake followed by tsunami, which damaged some of the reactors located at the site. Responding to the Fukushima incident, the Commission established a near-term Task Force to conduct a systematic and methodical review of the NRCs processes and regulations and to make recommendations on additional improvements to the Commission for its policy direction.

4 See, e.g., NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), LBP-11-28, 74 NRC __

(Oct. 19, 2011) (slip op. at 7) (If - as the Commission has ruled - the 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.).

5 Id. (citing 10 C.F.R. § 2.309(f)(1)(vi)).

6 In dismissing the contention, the Seabrook Board observed that dismissing the contention "does not mean that the issues raised by the Near-Term Task Force Report are unimportant. They have not yet ripened, however, to the point where they can appropriately be litigated in this adjudicatory proceeding...."

Seabrook, LBP-11-28, 74 NRC __ (slip op. at 8).

7 Tennessee Valley Authority (Watts Bar Unit 2), LBP-09-26, 70 NRC 939, 990 (2009).

In mid-April, 2011, SACE, along with multiple other petitioners, filed requests for various forms of relief related to Fukushima.8 The Staff and the Applicants opposed the requests.9 On July 12, 2011, the near-term Task Force issued its report: Recommendations for Enhancing Reactor Safety in the 21st Century: The Near-Term Task Force Review of Insights from the Fukushima Dai-ichi Accident (TFR) (ADAMS Accession No. ML111861807).

On August 11, 2011, SACE filed a motion and contention based upon the recommendations in the July 12, 2011 TFR, asserting:

The FSEIS for Watts Bar Unit 2 fails to satisfy the requirements of NEPA because it does not address the new and significant environmental implications of the findings and recommendations raised by the NRCs Fukushima Task Force Report. As required by NEPA and the NRC regulations, these implications must be addressed in the ER.[10]

The contention was supported by a declaration from Dr. Arjun Makhijani and referenced an attached rulemaking petition11 seeking to suspend any regulations that would preclude full 8

E.g. 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 (Apr. 14, 2011) (ADAMS Accession No. ML111040609); Amendment and Errata to 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 (Apr. 18, 2011) (ADAMS Accession No. ML111080844); 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 (Corrected Apr. 18, 2011)

(ADAMS Accession No. ML111080844); Declaration of Dr. Arjun Makhijani in Support of Emergency Petition to Suspend all Pending Reactor Licensing Decisions and Relating Rulemaking Decisions Pending Investigation of Lessons Learned from Fukushima Daiichi Nuclear Power Station Accident (April 19, 2011) (ADAMS Accession No. ML111091167).

9 E.g. NRC Staff Answer to 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 (May 2, 2011) (ADAMS Accession No. ML111220563).

10 Contention Regarding NEPA Requirement to Address Safety and Environmental Implications of the Nuclear Regulatory Commission Task Force Report on the Fukushima Dai-Ichi Accident, (August 11, 2011) at 3 ("Contention") (ADAMS Accession No. ML11223A291); 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, (August 11, 2011) ("Motion") (ADAMS Accession No. ML11223A291). The same or similar contentions were filed in other pending license renewal, combined operating license, operating license, and standardized design certification proceedings.

11 Rulemaking Petition To Rescind Prohibition Against Consideration Of Environmental Impacts Of Severe Reactor And Spent Fuel Pool Accidents And Request To Suspend Licensing Decision (Aug.

consideration of the environmental implications of the Task Force Report. Contention at 3. On September 6, 2011, the Staff opposed SACEs motion to admit the contention on several grounds.12 On September 9, 2011, the Commission ruled upon the mid-April requests for consideration of the safety and environmental implications of the Fukushima events in multiple proceedings. Union Electric Company d/b/a Ameren Missouri (Callaway Plant, Unit 2), CLI 05, 74 NRC __ (September 9, 2011)(slip op.). Regarding a request to conduct a separate generic analysis of whether the Fukushima events constitute "new and significant information" under the National Environmental Policy Act ("NEPA"), the Commission held:

This request is premature. Although the Task Force completed its review and provided its recommendations to us, the agency continues to evaluate the accident and its implications for U.S.

facilities and the full picture of what happened at Fukushima is still far from clear. In short, we do not know today the full implications of the Japan events for U.S. facilities. Therefore, any generic NEPA dutyif one were appropriate at alldoes not accrue now.

Id. at 30.

Further, in discussing rulemaking, the Commission wrote:

until we have a complete understanding of the Fukushima events, and have provided direction as to potential changes to regulatory requirements, we will not know whether, or the extent to which, an individual NEPA review might be impacted.

Id. at 40.

Also on September 9, 2011, the Staff provided its opinion about which of the Near-Term 11, 2011). The petition also requests the NRC to suspend the Watts Bar Unit 2 licensing proceeding while the NRC considers this petition and the Contention. Id. at 1.

12 See NRC Staffs Answer to Motion and Contention Regarding NEPA Requirement to Address Safety and Environmental Implications of the Fukushima Task Force Report, (Sept. 6, 2011) (ADAMS Accession No. ML11249A237) (NRC Staff Answer to TFR Contention).

Task Force ("NTTF") recommendations can and should be initiated without delay.13 SECY 0124 at 2-3. Regarding Watts Bar Unit 2, the Staff agreed with the NTTF assessment of the approach that should be taken for Watts Bar Unit 2, viz. the operating license review and the licensing should include all of the recommended regulatory actions and rule changes that have been completed at the time of licensing. Id. at 4. None of the recommendations involved the environmental review for operating license review.

On October 18, 2011, through SRM-SECY-11-0124, the Commission approved the Staffs proposed actions to implement without delay the Near-Term Task Force recommendations described in SECY-11-0124, subject to certain comments. The Commission's approval of the Staff's paper prompted SACE to file the instant Motion to Supplement the Contention previously filed on August 11, 2011.

ARGUMENT I. The Motion to Supplement is Procedurally Defective and Should be Denied The Commission mandates that new bases for a contention cannot be introduced 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) and 2.309(f)(2). Nuclear Management Company, LLC (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727, 732 (2006) (discussing new claims in a reply brief). Failure to address the late-filing criteria in either 10 C.F.R. § 2.309(c) or 10 C.F.R. § 2.309(f)(2) is reason enough to reject a proposed new contention. Dominion Nuclear Connecticut, Inc. (Millstone Power Station, Unit 3), CLI-09-5, 69 NRC 115, 126 (2009). In addition, amended contentions must also satisfy the usual contention admissibility requirements set forth in 10 C.F.R. § 2.309(f)(1). Shaw Areva Mox Services, LLC (Mixed Oxide Fuel Fabrication Facility), CLI-09-2, 69 NRC 55, 66 (2009). To meet the requirements of 13 Recommended Actions to be Taken without delay from the Near-Term Task Force Report, SECY-11-0124 (Sept. 9, 2011) (ADAMS Accession No. ML11245A127) ("SECY-11-0124") (Attachment 2).

§ 2.309(f)(1), a petitioner must produce a detailed, fact-based showing that a genuine and material dispute of law or fact exists. Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-02-14, 55 NRC 278, 289 (2002).

For the Watts Bar Unit 2 operating license proceeding, the Board directed that requests for new or amended contentions include a motion for leave to file a timely new or amended contention under 10 C.F.R. § 2.309(f)(2), or a motion for leave to file an untimely new or amended contention under 10 C.F.R. § 2.309(c) (or both), and the support for the proposed new or amended contention showing that it satisfies 10 C.F.R. § 2.309(f)(1). Scheduling Order (May 26, 2010) at 5.

The Motion to Supplement falls far short of meeting these standards and the Board's Scheduling Order. Regarding timeliness, SACE filed its motion to supplement (i.e., amend) the bases under 10 C.F.R. § 2.323, and did not mention or address the late-filing criteria in either 10 C.F.R. § 2.309(c) or 10 C.F.R. § 2.309(f)(2); the failure to address one these criteria is reason enough to reject a proposed new basis. Dominion Nuclear Connecticut, Inc. (Millstone Power Station, Unit 3), CLI-09-5, 69 NRC 115, 126 (2009) (stating same reasons as sufficient for rejection of a contention). Further, SACE did not address the contention admissibility standards of 10 C.F.R. § 2.309(f)(1). Thus, because the Motion to Supplement does not reference §§ 2.309(c), (f)(1), and (f)(2) or attempt to demonstrate how it meets the requirements in those regulations, it does not provide an adequate showing to meet the Commission standards for adding additional bases to a contention.

II. The Motion to Supplement Does Not Demonstrate that the Underlying Contention Is Admissible Even if the Board ignored the Motion to Supplements procedural inadequacies, it still fails to provide sufficient information to render the underlying contention admissible. The Motion to Supplement asserts, By ordering the Staff to adopt and implement numerous Task Force recommendations, including redefining what level of protection of public health and safety

should be regarded as adequate, the Commission makes clear that it believes the lessons learned from the Fukushima accident have safety and environmental significance. Motion to Supplement at 1-2 (citing SRM-SECY-11-0124 at 2). However, as discussed supra, SRM-SECY-11-0124 does not discuss any environmental issues. Further, the Motion to Supplement does not explain how the SRM-SECY-11-0124 establishes the environmental significance of the Task Forces recommendations.

As the Staff previously pointed out, the Task Force recommendations related to the NRCs safety oversight of nuclear reactors under the Atomic Energy Act, not its environmental review of licensing actions under NEPA.14 Likewise, SRM-SECY-11-0124 responds to the safety recommendations and does not discuss environmental matters in general or the environmental significance of any recommendation in particular. SRM-SECY-11-0124 authorizes the Staff to initiate actions such as engaging with stakeholders, developing technical basis documents, and publishing advanced notices of proposed rulemaking, to implement certain Task Force safety recommendations. The SRM also reaffirms the Commissions prior direction to the Staff to separately address Task Force Recommendation 1, regarding redefining what level of protection of public health and safety should be regarded as adequate, in a Commission paper no later than January 2013.15 Thus, contrary to SACE's claim, SRM-SECY-11-0124 provides no indication of what, if any, environmental significance the Commission ascribes to the Task Forces recommendations.

Indeed, as discussed above, and as recognized by Boards, the Commission in Callaway has already considered the environmental significance of the Task Forces recommendations.

14 NRC Staff Answer to TFR Contention at 21-23.

15 SRM-SECY-11-0124 at 2 (reaffirming guidance to the staff in the SRM on SRM-SECY-11-0093 Near-Term Report and Recommendations for Agency Actions Following the Events in Japan (Aug, 19, 2011) (ADAMS Accession No. ML112310021) (Attachment 3) at 2 (directing Staff to submit a separate Commission notation vote paper providing option to disposition Task Force Recommendation 1 within 18 months of issuance of this SRM)).

See e.g. Seabrook, LBP-11-28, 74 NRC __ (slip op. at 5-7). As the Seabrook Board explained, the Commission responded to a request from several intervenor groups (including SACE) to conduct a separate generic NEPA analysis regarding whether the Fukushima events constitute new and significant information under NEPA that must be analyzed as part of the environmental review for new reactor and license renewal decisions. Id. at 5-6 (quoting Callaway CLI-11-05, 74 NRC __ (slip op. at 30)). The Commission surveyed the current information regarding the Fukushima accident, including the report from the Task Force, and concluded that the available information did not constitute the new and significant information necessary to trigger a generic NEPA review. Id. at 6. In light of the Commissions determination, the Seabrook Board found that the Task Forces recommendations did not constitute new and significant information for the purposes of environmental analysis of renewing the license for Seabrook. Id. at 7.

The information in SRM-SECY-11-0124 does not alter or change any of the Commissions earlier determinations regarding the environmental significance of the Task Forces recommendations. Therefore, even if the Board considered the original contention in light of the conclusory information discussed in the Motion to Supplement, the contention would still be inadmissible.

An admissible contention must demonstrate a genuine dispute with the analysis at issue.

10 C.F.R. § 2.309(f)(1)(vi). SACE must show how the SRM-SECY-0124 might potentially affect the environmental analyses for Watts Bar Unit 2. See Seabrook, LBP-11-28, 74 NRC __ (slip op. at 7). The Motion to Supplement does not make this showing. Neither the Motion to Supplement nor SRM-SECY-11-0124 contain any information that is specific to the Watts Bar Unit 2 site16 or attempt to link the Task Forces recommendations to any specific feature of the site-specific environmental analysis for Watts Bar Unit 2. Therefore, the Motion to Supplement 16 As previously noted, SECY-11-0124 recommended that at the time of licensing of Watts Bar Unit 2, any completed actions and rulemakings be addressed. SECY-11-0124 at 4.

does not contain sufficient information to demonstrate a genuine dispute.

Finally, contrary to SACE's assertion, nothing within the two-page SRM-SECY-11-0124 undermines previous Board decisions, and the Commission had made no indication that it intended otherwise. The Seabrook Board found that the issues raised in the underlying Fukushima contention have not yet ripened [to] the point where they can appropriately be litigated in this adjudicatory proceeding. See Seabrook, LBP-11-28, 74 NRC __ (slip op. at 8).

In coming to this opinion, the Board noted that the Commission had reached a similar determination in CLI-11-05. Specifically, the Commission found that because the agency did not know the full implications of the Japan events for U.S. facilities . . . any generic NEPA duty

- if one were appropriate at all - does not accrue now. Id. at 6 (quoting Callaway, CLI-11-05, 74 NRC at __ (slip op. at 30)). On its face, SRM-SECY-11-0124 does not suggest that in the short period of time since CLI-11-05, the NRC has gained sufficient knowledge to trigger its NEPA obligations. Rather, as discussed above, SRM-SECY-11-0124 is silent with respect to NEPA and simply authorizes the Staff to initiate actions to implement certain TFR safety recommendations. Therefore, the obligation falls to SACE to demonstrate how SRM-SECY 0124 constitutes sufficient information to warrant further NEPA consideration.

But, the Motion to Supplement only alleges that in SRM-SECY-11-0124, the Commission makes clear that it believes the lessons learned from the Fukushima accident have safety and environmental significance. Motion to Supplement at 2. Such cursory allegations cannot constitute the detailed, fact-based showing needed to trigger NRC adjudicatory hearings.

McGuire/Catawba, CLI-02-14, 55 NRC at 289. Consequently, the Motion to Supplement does not demonstrate that sufficient information exists to litigate the underlying contention at this time. As a result, the Board should dismiss SACEs Motion to Supplement.

CONCLUSION For the reasons set forth above, the Motion to Supplement is defective because it fails to address the late and non-timely filing standards, fails to follow the Board's Scheduling Order

regarding amended contentions, and does not address the Commissions standards for adding to a contentions factual basis. The motion also does not demonstrate sufficient grounds for the relief sought. The motion references documents that do not provide any support for the underlying contention, do not demonstrate a genuine dispute unique to the Watts Bar Unit 2 operating license proceeding suitable for adjudication, and do not show that the concerns the Motion to Supplement raises are ripe for adjudication. For all of these reasons, the Board should deny the motion.

Respectfully submitted,

/Signed (electronically) by/

David E. Roth Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-2749 E-mail: David.Roth@nrc.gov Date of signature: November 7, 2011

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

TENNESSEE VALLEY AUTHORITY ) Docket No. 50-391-OL

)

(Watts Bar Unit 2) )

ANSWER CERTIFICATION In regards to the NRC STAFFS ANSWER TO 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, filed November 7, 2011, I certify that I have made a sincere effort to make myself available to listen and respond to the moving party, and to resolve the factual and legal issues raised in the motion, and that my efforts to resolve the issues have been unsuccessful.

Signed (electronically) by David E. Roth, Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-2749 E-mail: david.roth@nrc.gov Signed: November 7, 2011

ATTACHMENT 1 October 18, 2011 MEMORANDUM TO: R. W. Borchardt Executive Director for Operations FROM: Annette L. Vietti-Cook, Secretary /RA/

SUBJECT:

STAFF REQUIREMENTS - SECY-11-0124 - RECOMMENDED ACTIONS TO BE TAKEN WITHOUT DELAY FROM THE NEAR-TERM TASK FORCE REPORT The Commission has approved the staffs proposed actions to implement without delay the Near-Term Task Force recommendations as described in SECY-11-0124, subject to the comments below.

The NRC should strive to complete and implement the lessons learned from the Fukushima accident within five years - by 2016.

The process for implementing new or modified regulatory requirements or programs should be transparent and the regulatory mechanism (e.g., order, rulemaking, 10 CFR 50.54(f) letter, generic letter, etc.) used to impose them should be as clear and specific as possible when issued.

As the staff evaluates Fukushima lessons-learned and proposes modifications to NRCs regulatory framework, the Commission encourages the staff to craft recommendations that continue to realize the strengths of a performance-based system as a guiding principle. In order to be effective, approaches should be flexible and able to accommodate a diverse range of circumstances and conditions. In consideration of events beyond the design basis, a regulatory approach founded on performance-based requirements will foster development of the most effective and efficient, site-specific mitigation strategies, similar to how the agency approached the approval of licensee response strategies for the loss of large area event under its B.5.b program.

Where gaps in knowledge in the analyses of the reactor accidents at Fukushima Dai-ichi interfere with the staffs ability to make an informed recommendation on regulatory action, the staff should inform the Commission of these gaps.

For Recommendation 2.1, when the staff issues the requests for information to licensees pursuant to 10 CFR 50.54(f) to identify actions that have been taken or are planned to address

ATTACHMENT 1 plant-specific vulnerabilities associated with the reevaluation of seismic and flooding hazards, the staff should explain the meaning of vulnerability.

The staff should inform the Commission, either through an Information Paper or a briefing of the Commissioners Assistants, when it has developed the technical bases and acceptance criteria for implementing Recommendations 2.1, 2.3, and 9.3.

For NTTF recommendations 4.2 and 5.1 the staff should provide the Commission with notation vote papers for Commission approval of the orders once the staff has engaged stakeholders and established the requisite technical bases and acceptance criteria. For cases in which backfits cannot be justified using existing requirements, yet the staff believes that regulatory enhancements should be made, the staff should clearly explain the legal and policy bases for proceeding.

For Recommendation 4.1 -- Station blackout regulatory actions, the staff should initiate the rulemaking as an advance notice of proposed rulemaking (ANPR) rather than a proposed rule.

The staff should designate the station blackout (SBO) rulemaking associated with NTTF recommendation 4.1 as a high-priority rulemaking with a goal of completion within 24 to 30 months of the date of the Staff Requirements Memorandum for this SECY paper.

The staff should monitor nuclear industry efforts underway to strengthen SBO coping times and consider whether any interim regulatory controls (e.g., commitment letters or confirmatory action letters) for coping strategies for SBO events would be appropriate while rulemaking activities are in progress.

Concerning the potential to redefine what level of protection of public health and safety should be regarded as adequate, the Commission reaffirms its guidance to the staff in the SRM on SECY-11-0093 with respect to Recommendation 1.

cc: Chairman Jaczko Commissioner Svinicki Commissioner Apostolakis Commissioner Magwood Commissioner Ostendorff OGC CFO OCA OPA Office Directors, Regions, ACRS, ASLBP (via E-Mail)

PDR

ATTACHMENT 2 POLICY ISSUE (NOTATION VOTE)

September 9, 2011 SECY-11-0124 FOR: The Commissioners FROM: R. W. Borchardt Executive Director for Operations

SUBJECT:

RECOMMENDED ACTIONS TO BE TAKEN WITHOUT DELAY FROM THE NEAR-TERM TASK FORCE REPORT PURPOSE:

The purpose of this paper is to provide, for Commission consideration, the recommendations of the U. S. Nuclear Regulatory Commission (NRC) staff, regarding those Near-Term Task Force (NTTF) recommendations that can and, in the staffs judgment, should be initiated, in part or in whole, without delay.

In the Commission notation vote paper due on October 3, 2011, the staff plans to provide the prioritization of the NTTF recommendations to (1) reflect regulatory actions to be taken by the staff in response to the Fukushima lessons learned; (2) identify implementation challenges; (3) include technical and regulatory bases for the prioritization; (4) identify additional recommendations, if any; and (5) include a schedule and milestones with recommendations for appropriate stakeholder engagement and involvement of the Advisory Committee for Reactor Safeguards (ACRS).

BACKGROUND:

The NTTF was established to complete the near-term review required by the Chairmans tasking memorandum of March 23, 2011 (COMGBJ-11-0002). In SECY-11-0093, Near-Term Report and Recommendations for Agency Actions Following the Events in Japan, dated July 12, 2011, the NTTF provided its recommendations to the Commission. The staff requirements memorandum (SRM) for SECY-11-0093, dated August 19, 2011, directed the staff, by September 9, 2011, to identify and make recommendations regarding any NTTF recommendations that can, and in the staffs judgment, should be implemented, in part or in whole, without unnecessary delay.

CONTACT: David Skeen, NRR/DE 301-415-3298

The Commissioners DISCUSSION:

As directed by SRM-SECY-11-0093, the staff reviewed the NTTF recommendations within the context of the NRCs existing framework and considered the various regulatory vehicles available to the NRC to implement the recommendations. This review was conducted by an ad hoc team consisting of NRC senior management representatives and technical experts. The staff determined the near-term regulatory actions based on its judgment of the potential and relative safety enhancement of each of the recommendations. Additionally, the staff developed this paper by focusing on those NTTF recommendations that can, and in the staffs judgment, should be initiated without delay in whole or in part. This is a subset of the total NTTF recommendations. The staff initially focused on Recommendations 2, 4, 5, 7, 8 and 9, because the other recommendations proposed longer-term reviews by the NRC staff. The staff believes that all the NTTFs overarching recommendations, if adopted, would enhance safety and the staff agrees with moving forward with each of these recommendations. As such, the staff will continue to evaluate approaches to implement all other NTTF recommendations. The process used by the staff to identify near-term actions should not be interpreted as a lack of support for other NTTF recommendations; prioritization is necessary to better manage the work and resources discussed below.

To further inform this process, the staff sought external stakeholder feedback regarding the NTTF recommendations that stakeholders consider to be most important and that the NRC should undertake in the near-term. To accomplish this, the NRC staff conducted a public meeting on August 31, 2011, to discuss the six NTTF recommendations under consideration for inclusion in this paper. The meeting minutes and transcript are available in the Agencywide Documents Access and Management System (ADAMS) at ML112490382. In addition, written stakeholder comments were received and are available in ADAMS at ML11249A161. The stakeholder panelists expressed a desire for stakeholder involvement in the regulatory process going forward regardless of the regulatory vehicle used. Additionally, the industry, the Federal Emergency Management Agency, and nongovernmental participants agreed in concept with the six recommendations discussed at the meeting, although various viewpoints emerged concerning the pace of implementation and associated regulatory vehicles.

To determine and recommend near-term regulatory actions that can and should be initiated without delay, the staff considered whether any of the NTTF recommendations identified an imminent hazard to public health and safety. The staff agrees with the NTTF that none of the recommendations rise to this level. While the staff recognizes that the NTTF raises important issues for consideration, it does not have sufficient resources to initiate actions on all recommendations in the near-term. The staff identified a subset of actions that the staff concludes has the greatest potential for safety improvement in the near-term. The remaining recommendations will be evaluated and prioritized, along with this subset, as part of the notation vote paper due on October 3, 2011.

The near-term actions identified are the following:

2.1 Seismic and flood hazard reevaluations 2.3 Seismic and flood walkdowns 4.1 Station blackout regulatory actions

The Commissioners 4.2 Equipment covered under Title 10 of the Code of Federal Regulations (10 CFR) 50.54(hh)(2) 5.1 Reliable hardened vents for Mark I containments 8 Strengthening and integration of emergency operating procedures, severe accident management guidelines, and extensive damage mitigation guidelines 9.3 Emergency preparedness regulatory actions In addition, the staff provided a discussion in the enclosure of NTTF Recommendation 9.4 regarding the modernization of the Emergency Response Data System (ERDS). This discussion provides a status of ongoing industry actions in this area. The staff concluded that additional regulatory action is not necessary at this time to ensure implementation of the ERDS modernization.

The staff concluded that additional review is needed to identify specific regulatory actions related to NTTF Recommendation 7 regarding enhanced spent fuel pool makeup capacity and instrumentation for spent fuel pools. For example, the resolution strategy for Recommendation 2.1 may influence the seismic qualification of potential instrumentation for spent fuel pools.

Relative to Recommendations 4.2 and 5.1, the staff is proposing to issue Orders that would redefine the level of protection of public health and safety that should be regarded as adequate.

While the basis for the staff's recommendation is provided in the enclosure, the supporting rationale for these Orders will be more fully developed as the technical and regulatory basis is formulated. For the remaining recommendations discussed in this paper, the staff is proposing initiating this subset of actions as safety improvements. As such, the final regulatory action taken will depend on Commission direction, the supporting basis, and whether the applicable action is supportable under agency procedures and applicable backfitting requirements, including the potential to redefine what level of protection of public health and safety should be regarded as adequate.

For all the NTTF recommendations identified as potential near-term actions, the staff performed a more focused assessment to further define the regulatory activities that would be required, and to gain a sense of the resource impacts that could be incurred. This process, while principally centered on safety, gave consideration to the staffs estimate of the current supporting regulatory basis, the need for stakeholder engagement, and technical and scheduler dependencies (i.e., practical feasibility of undertaking action immediately). Enclosed are the assessments for each of the NTTF recommendations the staff proposes can and should be initiated without delay.

In general, the NTTF identified a specific regulatory vehicle (e.g., Order or rulemaking) for each recommendation. Initially, the staff assessed each recommendation independent of the regulatory vehicle proposed by the NTTF. This allowed the staff to determine the actions that should be taken to assess, develop, or complete the supporting technical and regulatory bases.

In many cases, external stakeholder engagement is recommended to inform these efforts so that the regulatory action and licensee actions taken effectively resolve the identified issues and implementation challenges are identified in advance. In developing the proposed regulatory vehicle for each staff recommendation in the enclosure, the staff considered the wide range of regulatory tools available. As discussed above, the staff recommends issuance of Orders as

The Commissioners the appropriate regulatory vehicle in those cases where the staff believes that sufficient basis exists to support the initiation of the development of new requirements in the near-term to redefine what level of protection of public health and safety should be regarded as adequate.

The technical and regulatory basis for these Orders will be fully established as the Orders are developed. In cases where the staff determined that more information is required before taking additional regulatory action, the staff recommends issuance of requests for information pursuant to 10 CFR 50.54(f). In the remaining cases, the staff proposes to initiate rulemaking.

While not explicitly stated in the enclosed recommendations, the staff will evaluate licensee responses, document staff reviews, and oversee licensee implementation through inspections, consistent with our well-established regulatory processes.

The staff agrees with the NTTF assessment of the approach that should be taken for Watts Bar Unit 2 and Bellefonte Units 1 and 2. Those operating license reviews and the licensing itself should include all of the recommended regulatory actions and rule changes that have been completed at the time of licensing. Any additional rule changes would be imposed on the plants in the same manner as for other operating reactors. With regard to near-term combined license reviews, the staff discusses options in SECY-11-0110, Staff Statement In Support of the Uncontested Hearing for Issuance of Combined Licenses and Limited Work Authorizations for Vogtle Electric Generating Plant, Units 3 and 4 (Docket Nos.52-025 and 52-026), dated August 9, 2011, and SECY-11-0115, Staff Statement in Support of the Uncontested Hearing for Issuance of Combined Licenses for the Virgil C. Summer Nuclear Station, Units 2 and 3 (Docket Nos.52-027 and 52-028), dated August 19, 2011.

The remainder of the NTTF recommendations, with the exception of NTTF Recommendation 1 as directed by the Commission, will be evaluated further in the notation vote paper due on October 3, 2011. Included in that evaluation will be any elements of the NTTF recommendations that were evaluated as part of the short-term effort and were concluded to be longer-term regulatory actions (e.g., NTTF Recommendation 2.2). Within schedule constraints and practical limitations given the limited understanding of the ultimate regulatory action that might be taken, the staff will provide its estimate for the supporting schedules and milestones with recommendations for appropriate stakeholder engagement and involvement of the ACRS in the notation vote paper due on October 3, 2011.

RECOMMENDATIONS:

The staff recommends that the Commission provide direction to the staff to take the actions as described in the enclosure. The enclosure provides further description of each recommendation discussed above.

RESOURCES:

For each of the recommended near-term actions, the staff performed an initial assessment to identify the skill sets, applicable organizations, and estimated resources that are needed to support the actions. There will be resource impacts associated with the recommended actions.

The notation paper due on October 3, 2011, will provide a further discussion of the resources needed to accomplish the activities proposed in this paper, and staff activities that may be delayed or deferred as a result.

COORDINATION:

The Commissioners The Office of the General Counsel has reviewed this paper and has no legal objection. The Office of the Chief Financial Officer has reviewed this paper for resource implications and has concurred.

/RA/

R. W. Borchardt Executive Director for Operations

Enclosure:

Staff Assessment of Near-Term Task Force Recommendations

Staff Assessment of Near-Term Task Force Recommendations As directed by SRM-SECY-11-0093, U. S. Nuclear Regulatory Commission (NRC) staff reviewed the Near-Term Task Force (NTTF or Task Force) recommendations within the context of the NRCs existing framework and gave consideration to the various regulatory vehicles available to the NRC to implement the recommendations. The staff determined the near-term regulatory actions based on the staffs judgment of the potential and relative safety enhancement of each of the recommendations.

Each of the following assessments includes the recommendation as presented in the NTTF report, the associated regulations and guidance, the staffs assessment of the recommendation, and the staffs recommendations for regulatory actions to be initiated without delay.

NTTF Recommendation 2.1 The Task Force recommends the NRC require licensees to reevaluate and upgrade as necessary the design-basis seismic and flooding protection of SSCs [structures, systems, and components] for each operating reactor.

2.1 Order licensees to reevaluate the seismic and flooding hazards at their sites against current NRC requirements and guidance, and if necessary, update the design basis and SSCs important to safety to protect against the updated hazards.

Regulations and Guidance

1. General Design Criterion (GDC) 2, Design Bases for Protection Against Natural Phenomena, of Appendix A, General Design Criteria for Nuclear Power Plants, to Title10 of the Code of Federal Regulations (10 CFR) Part 50, Domestic Licensing of Production and Utilization Facilities, requires, in part, that SSCs important to safety be designed to withstand the effects of natural phenomena such as floods, tsunami, and seiches without loss of capability to perform their safety functions. Plants that received construction permits before issuance of GDC 2 in 1971 meet the intent of the GDC.

2. 10 CFR Part 100, Reactor Site Criteria, Appendix A, Seismic and Geologic Siting Criteria for Nuclear Power Plants, was established to provide detailed criteria to evaluate the suitability of proposed sites and the suitability of the plant design basis established in consideration of the seismic and geologic characteristics of the proposed sites.

3. Regulatory Guide (RG) 1.29, Seismic Design Classification, issued June 1972 and updated August 1973, February 1976, September 1978, and March 2007.

4. RG 1.59, Design Basis Floods for Nuclear Power Plants, issued August 1973 and updated April 1976 and August 1977.

5. RG 1.60, Design Response Spectra for Seismic Design of Nuclear Power Plants, issued October 1973 and updated December 1973.

6. RG 1.102, Flood Protection for Nuclear Power Plants, issued October 1975 and updated September 1976.

7. RG 1.125, Physical Models for Design and Operation of Hydraulic Structures and Systems for Nuclear Power Plants, issued March 1977 and updated October 1978 and March 2009.

8. RG 1.208, A Performance-Based Approach To Define the Site-Specific Earthquake Ground Motion, issued March 2007.

Staff Assessment of NTTF Recommendation 2.1 The staffs assessment of this recommendation indicates that plants may differ in the way they ensure safety against natural phenomena. The staff concluded that sufficient regulatory guidance currently exists to permit licensee reevaluations. However, the staff noted that results of inspections of SSCs at Fukushima Daiichi and Daini Nuclear Power Stations may help inform the implementation of this recommendation. To the extent practical, the new information on the events at Fukushima Daiichi and Daini should be incorporated into the reevaluations. The staff also noted that the implementation of this recommendation would require significant resources for both licensees and NRC, as well as specialized expertise to review licensee reevaluations and to document results of staff evaluations.

Seismic hazards. The state of knowledge of seismic hazards within the United States has evolved to the point that it would be appropriate for licensees to reevaluate the designs of existing nuclear power reactors to ensure that SSCs important to safety will withstand a seismic event without loss of capability to perform their intended safety function. The staff notes that ongoing activities to resolve Generic Issue 199, Implications of Updated Probabilistic Seismic Estimates in Central and Eastern United States on Existing Plants, are directly related to this issue and will be considered in the resolution of Recommendation 2.1.

Flooding hazards. The assumptions and factors that were considered in flood protection at operating plants vary. In some cases, the design bases did not consider the effects from the local intense precipitation and related site drainage. In other cases, the probable maximum flood is calculated differently at units co-located at the same site, depending on the time of licensing, resulting in different design-basis flood protection. The NTTF and the staff noted that some plants rely on operator actions and temporary flood mitigation measures such as sandbagging, temporary flood walls and barriers, and portable equipment to perform safety functions. For several sites, the staff noted that all appropriate flooding hazards are not documented in the Updated Final Safety Analysis Report. The NTTF and the staff also noted that flooding risks are of concern because of a cliff-edge effect, in that the safety consequences of a flooding event may increase sharply with a small increase in the flooding level. Therefore, all licensees should confirm that SSCs important to safety are adequately protected from floods.

Staff Recommendations The staff recommends that the NRC, as a near-term action, undertake regulatory activities to:

1. Continue stakeholder interactions to discuss the technical basis and acceptance criteria for conducting a reevaluation of site specific seismic hazards. This would include implementation considerations of the hazard and risk methodologies described in draft Generic Letter (GL) 2001-XX, Seismic Risk Evaluations for Operating Reactors, issued for public comment on September 1, 2011, (Agencywide Documents Access and Management System (ADAMS) Accession No. ML111710783).

2. Initiate stakeholder interaction to discuss application of the present-day regulatory guidance and methodologies being used for early site permit and combined license reviews to the reevaluation of flooding hazards at operating reactors.

3. Develop and issue a request for information to licensees pursuant to 10 CFR 50.54(f) to (1) reevaluate site specific seismic hazards using the methodology discussed in item 1 above, and (2) identify actions that have been taken or are planned to address plant-specific vulnerabilities associated with the updated seismic hazards.

4. Develop and issue a request for information to licensees pursuant to 10 CFR 50.54(f) to (1) reevaluate site specific flooding hazards using the methodology discussed in item 2 above, and (2) identify actions that have been taken or are planned to address plant-specific vulnerabilities associated with the updated flooding hazards.

5. Evaluate licensee responses and take appropriate regulatory action to resolve vulnerabilities associated with updated site specific hazards.

NTTF Recommendation 2.3 The Task Force recommends that the NRC require licensees to reevaluate and upgrade as necessary the design-basis seismic and flooding protection of SSCs for each operating reactor.

2.3 Order licensees to perform seismic and flood protection walkdowns to identify and address plant-specific vulnerabilities and verify the adequacy of monitoring and maintenance for protection features such as watertight barriers and seals in the interim period until longer-term actions are completed to update the design basis for external events.

Regulations and Guidance

1. GDC 2, Design Bases for Protection Against Natural Phenomena, of Appendix A, General Design Criteria for Nuclear Power Plants, to 10 CFR Part 50, Domestic Licensing of Production and Utilization Facilities, requires, in part, that SSCs important to safety be designed to withstand the effects of natural phenomena such as floods, tsunami, and seiches without loss of capability to perform their safety functions.

2. 10 CFR Part 100, Reactor Site Criteria, Appendix A, Seismic and Geologic Siting Criteria for Nuclear Power Plants, was established to provide detailed criteria to evaluate the suitability of proposed sites and the suitability of the plant design basis established in consideration of the seismic and geologic characteristics of the proposed sites.

3. RG 1.29, Seismic Design Classification, issued June 1972 and updated August 1973, February 1976, September 1978, and March 2007.

4. RG 1.59, Design Basis Floods for Nuclear Power Plants, issued August 1973 and updated April 1976 and August 1977.

5. RG 1.60, Design Response Spectra for Seismic Design of Nuclear Power Plants, issued October 1973 and updated December 1973.

6. RG 1.102, Flood Protection for Nuclear Power Plants, issued October 1975 and updated September 1976.

7. RG 1.125, Physical Models for Design and Operation of Hydraulic Structures and Systems for Nuclear Power Plants, issued March 1977 and updated October 1978 and March 2009.

Staff Assessment of NTTF Recommendation 2.3 The NRC should undertake regulatory activities to have licensees perform seismic and flood protection walkdowns to ensure that existing protection and mitigation measures are available, functional, and adequately maintained.

Seismic hazards. The staffs assessment of this recommendation indicates that some guidance for seismic protection walkdowns exists. Recent plant inspections by staff in accordance with Temporary Instruction 2515/183, Followup to the Fukushima Daiichi Nuclear Station Fuel Damage Event, and licensees plant inspections in response to the Fukushima Daiichi accidents will help inform the implementation of this recommendation. In addition, the staff noted that results of ongoing inspections and evaluations of SSCs at Fukushima Daiichi and Daini Nuclear Power Stations may provide some insights for this recommendation. To the extent practical, the new information on the events at Fukushima Daiichi and Daini should be incorporated into the reevaluations. Evaluations of the recent earthquake near the North Anna Power Station on August 23, 2011, may also provide valuable insights.

Flooding hazards. With regard to flooding hazards, the Task Force and the staff have noted some plants rely on operator actions and temporary flood mitigation measures such as sandbagging, temporary flood walls and barriers, and portable equipment to perform safety functions. Results of staffs inspections at nuclear power sites in accordance with Temporary Instruction 2515/183 identified potential issues and observations regarding mitigation measures.

Recent flooding at the Fort Calhoun site showed the importance of temporary flood mitigation measures.

The staff noted that guidance should be developed for both the seismic and flooding walkdowns with external stakeholder involvement to ensure consistency.

Staff Recommendations The staff recommends that the NRC, as a near-term action, undertake regulatory activities to:

Develop and issue a request for information to licensees pursuant to 10 CFR 50.54(f) to (1) develop a methodology and acceptance criteria for seismic and flooding walkdowns to be endorsed by the staff following interaction with external stakeholders, (2) perform seismic and flood protection walkdowns to identify and address plant-specific vulnerabilities (through corrective action program) and verify the adequacy of monitoring and maintenance for protection features, and (3) inform the NRC of the results of the walkdowns and corrective actions taken or planned.

NTTF Recommendation 4.1 The Task Force recommends that the NRC strengthen SBO [station blackout] mitigation capability at all operating and new reactors for design-basis and beyond-design-basis external events.

4.1 Initiate rulemaking to revise 10 CFR 50.63 to require each operating and new reactor licensee to: (1) establish a minimum coping time of 8 hours9.259259e-5 days <br />0.00222 hours <br />1.322751e-5 weeks <br />3.044e-6 months <br /> for a loss of all ac

[alternating current] power, (2) establish the equipment, procedures, and training necessary to implement an extended loss of all ac coping time of 72 hours8.333333e-4 days <br />0.02 hours <br />1.190476e-4 weeks <br />2.7396e-5 months <br /> for core and spent fuel pool cooling and for reactor coolant system and primary containment integrity as needed, and (3) preplan and prestage offsite resources to support uninterrupted core and spent fuel pool cooling, and reactor coolant system and containment integrity as needed, including the ability to deliver the equipment to the site in the time period allowed for extended coping, under conditions involving significant degradation of offsite transportation infrastructure associated with significant natural disasters.

Regulations and Guidance

1. 10 CFR 50.63, Loss of All Alternating Current Power (known as the Station Blackout Rule), requires that each nuclear power plant must be able to cool the reactor core and maintain containment integrity for a specified duration of an SBO.

2. RG 1.155, Station Blackout, issued August 1988, describes an acceptable means to comply with 10 CFR 50.63.

Staff Assessment of NTTF Recommendations The NRC should undertake regulatory activities intended to strengthen SBO mitigation capability at all operating and new reactors to address prolonged SBO stemming from design-basis and beyond-design-basis external events to provide core and spent fuel pool cooling, reactor coolant system integrity, and containment integrity. This regulatory action would consider the need for SBO power source(s) and mitigating equipment to be diverse and protected from external events. This regulatory action would also examine whether there is a need to expand SBO mitigation requirements to require power reactors to mitigate an SBO event at a plant (each unit for multi-unit site) until either the onsite or offsite power source is restored to bring the power reactor to a cold shutdown and to maintain spent fuel pool cooling.

This rulemaking would primarily amend 10 CFR 50.63 and would impact both operating reactor licensees and new reactor applications.

Staff Recommendation The staff recommends that the NRC, as a near-term action:

Engage stakeholders in support of rulemaking activities to enhance the capability to maintain safety through a prolonged SBO. These activities will include the development of the regulatory basis, a proposed rule, and implementing guidance.

NTTF Recommendation 4.2 The Task Force recommends that the NRC strengthen SBO mitigation capability at all operating and new reactors for design-basis and beyond-design-basis external events.

4.2 Order licensees to provide reasonable protection for equipment currently provided pursuant to 10 CFR 50.54(hh)(2) from the effects of design-basis external events and to add equipment as needed to address multi-unit events while other requirements are being revised and implemented.

Regulations and Guidance

1. 10 CFR 50.54(hh)(2) requires licensees to develop and implement guidance and strategies intended to maintain or restore core cooling, containment, and spent fuel pool cooling capabilities under circumstances associated with the loss of large areas of the plant due to explosions or fire.

2. The required strategies include firefighting, operations to mitigate fuel damage, and actions to minimize radiological release.

3. Nuclear Energy Institute (NEI) 06-12, Revision 2, B.5.b Phase 2 & 3 Submittal Guidance, issued December 2006, provides guidance supporting 10 CFR 50.54(hh)(2).

4. The equipment procured and used to implement the strategies of 10 CFR 50.54(hh)(2) is controlled through the licensees commitment management process (which follows NEI 99-04, Guidelines for Managing NRC Commitment Changes, issued July 1999).

Staff Assessment of NTTF Recommendation The staff concludes that equipment procured pursuant to 10 CFR 50.54(hh)(2) will provide, as an interim measure, some of the coping capability that is recommended for addressing the NTTF recommendations associated with prolonged SBO events. However, the staff notes the NTTF finding that the current guidance only addresses single unit capacity and storage of the equipment for security-related initiating events. Specifically, the guidance in the NRC-endorsed NEI 06-12, for equipment used to implement the strategies in 10 CFR 50.54(hh)(2) via the extensive damage mitigation guidelines (EDMGs), is silent on whether the equipment needs to be protected from the effects of external events. The staff agrees that there will be a benefit to reasonably protecting the mitigation equipment while still meeting the intended purpose for security-related events. Any regulatory action to direct licensees to reasonably protect this equipment will need to address what constitutes reasonably protect. This will be framed to support licensees taking practical actions that increase the likelihood that the equipment will survive the effects of external events while not reducing the availability of the equipment to function for its intended purpose, which is to support implementation of the strategies to mitigate the loss of large areas of the plant due to explosions and fires. Accordingly, reasonably protect would not necessarily mean locating the equipment in seismic Category I structures (unless that action is practical and does not adversely impact the mitigation of large fires and explosions).

The staff also concludes that use of this 10 CFR 50.54(hh)(2) equipment, as envisioned by the NTTF, will likely require the equipment be supplemented to address a multi-unit condition.

In the near-term, the staff concludes early interaction with external stakeholders would be beneficial to explore the 10 CFR 50.54(hh)(2) mitigation strategies that might be useful for prolonged SBOs as an interim measure until regulatory actions associated with Recommendation 4.1 (SBO rulemaking) are completed. In addition, this interaction would include a discussion of how those strategies might be expanded to better address the SBO conditions and how equipment might best be supplemented to support those modified strategies. The results of this interaction would inform the staff actions going forward on whether, and how, to amend 10 CFR 50.54(hh)(2) to address both loss of large areas due to explosions and fires and prolonged SBO.

The staff concludes that it would be appropriate to redefine what level of protection of public health and safety should be regarded as adequate for reasonable protection and capacity of the 10 CFR 50.54(hh)(2) equipment.

Staff Recommendations The staff recommends that the NRC, as a near-term action, undertake regulatory activities to:

Develop and issue Orders to licensees to provide reasonable protection of the equipment used to satisfy the requirements of 10 CFR 50.54(hh)(2) from the effects of external events, and to establish and maintain sufficient capacity to mitigate multi-unit events. This would include stakeholder interactions to define acceptance criteria for reasonable protection of 10 CFR 50.54(hh)(2) equipment from design basis external hazards.

NTTF Recommendation 5.1 The Task Force recommends requiring reliable hardened vent designs in BWR [boiling-water reactor] facilities with Mark I and Mark II containments.

5.1 Order licensees to include a reliable hardened vent in BWR Mark I and Mark II containments.

• This order should include performance objectives for the design of hardened vents to ensure reliable operation and ease of use (both opening and closing) during a prolonged SBO.

Regulations and Guidance

1. GL 89-16, Installation of a Hardened Wetwell Vent, was issued to licensees of nuclear plants with BWR Mark I primary containments requesting that they consider voluntary installation of hardened wetwell vents under the provisions of 10 CFR 50.59, Changes, Tests and Experiments, to provide assurance of pressure relief through a path with significant scrubbing of fission products should normal and design basis containment cooling systems not be available. Hardened wetwell airspace vents of varying designs, but all alternating current (AC) dependent, were installed in the currently operating units with Mark I containments primarily to avoid exceeding the primary containment pressure limit.

2. 10 CFR 50.54(hh)(2) requires licensees to develop and implement guidance and strategies to maintain or restore containment capabilities under the circumstances associated with loss of a large area of the plant due to explosions or fire; expectation B.2.e of the B.5.b Phase 1 Guidance Document dated February 25, 2002 (designated Safeguards Information) and Section 3.4.8 of the NRC-endorsed Phase 3 guidance in NEI 06-12, Revision 2, both specify that an acceptable means of meeting the 10 CFR 50.54(hh)(2) requirements includes the development of a procedure or strategy to allow venting primary containment to secondary containment, without AC power, as an alternate method to remove heat from the primary containment for BWR licensees.

All currently operating BWR licensees, including those with BWR Mark I, Mark II, and Mark III containment designs, adopted this approach to meeting the requirements of 10 CFR 50.54(hh)(2). There are neither current NRC regulations that require this capability for other severe (beyond design basis) accidents nor design criteria for the vent paths used in this strategy.

Staff Assessment of NTTF Recommendations BWR Mark I primary containments should have a reliable hardened vent for mitigating beyond design basis events. The staff will further evaluate and address this recommendation with respect to BWR Mark II primary containments in the 45-day notation vote paper.

This portion of the NTTF recommendation is consistent with previous staff studies and evaluation of Mark I primary containment design capabilities to withstand beyond design basis accident scenarios. The Fukushima accident highlighted the importance of the wetwell vent function, the accessibility of the valves and the capability for operation independent of AC power.

The staff concludes that it would be appropriate to redefine what level of protection of public health and safety should be regarded as adequate for venting of BWR Mark I primary containments.

Staff Recommendation The staff recommends that the NRC, as a near-term action, undertake regulatory activities to:

Develop and issue Orders to licensees with BWR Mark I primary containment designs to take action to ensure reliable hardened wetwell vents. This will include interactions with stakeholders to develop the technical bases and acceptance criteria for suitable design expectations for reliable hardened vents.

NTTF Recommendation 8 The Task Force recommends strengthening and integrating onsite emergency response capabilities such as EOPs [emergency operating procedures], SAMGs [severe accident management guidelines], and EDMGs.

8.1 Order licensees to modify the EOP technical guidelines (required by Supplement 1, Requirements for Emergency Response Capability, to NUREG-0737, issued January 1983 (GL 82-33), to (1) include EOPs, SAMGs, and EDMGs in an integrated manner, (2) specify clear command and control strategies for their implementation, and (3) stipulate appropriate qualification and training for those who make decisions during emergencies.

• The Task Force strongly advises that the NRC encourage plant owners groups to undertake this activity rather than have each licensee develop its own approach. In addition, the Task Force encourages the use of the established NRC practice of publishing RGs (rather than NUREGs, supplements to NUREGs, or GLs) for endorsing any acceptable approaches submitted by the industry.

8.2 Modify Section 5.0, Administrative Controls, of the Standard Technical Specifications for each operating reactor design to reference the approved EOP technical guidelines for that plant design.

8.3 Order licensees to modify each plants technical specifications to conform to the above changes.

8.4 Initiate rulemaking to require more realistic, hands-on training and exercises on SAMGs and EDMGs for all staff expected to implement the strategies and those licensee staff expected to make decisions during emergencies, including emergency coordinators and emergency directors.

Regulations and Guidance

1. RG 1.33, Revision 2, Quality Assurance Program Requirements (Operation),

Appendix A, issued February 1978, required EOPs as a subset of the applicable procedures recommended in Section 5.0, Administrative Controls, of licensee technical specifications.

2. NUREG-0737, Clarification of TMI [Three Mile Island] Action Plan Requirements, Supplement 1, Requirements for Emergency Response Capability, issued January 1983 (GL 82-33), required the development and submittal for review and approval of EOP technical guidelines.

3. Licensees developed SAMGs as a voluntary program, and the SAMGs are documented as meeting regulatory commitments. There is neither a requirement for realistic, hands-on training or exercises on SAMGs, nor a requirement for integration of the SAMGs, EOPs, and EDMGs.

4. 10 CFR 50.54(hh)(2) requires that licensees develop guidance and strategies. EDMG is the generic term used by industry for the required guidance and strategies.

Requirements for exercise of EDMGs are included in the final rulemaking described in SECY-11-0053, Final Rule: Enhancements to Emergency Preparedness Regulations (10 CFR Part 50 and 10 CFR Part 52), dated April 8, 2011. There is no specific requirement for training on these guidance and strategies; the endorsed guidance on the subject in NEI 06-12, Revision 2, specifies training for 10 CFR 50.54(hh)(2).

Staff Assessment of NTTF Recommendations EOPs, SAMGs, and EDMGs, should be strengthened and integrated. Transition points, command and control, decisionmaking, and training should be clarified.

SAMGs should be required along with qualification and training for those licensee staff expected to make decisions during beyond design basis accident scenarios using either the SAMGs or EDMGs.

Finally, the staff concludes that early interaction with stakeholders would be useful in determining the optimal mechanism for implementing these recommendations as requirements.

Staff Recommendations The staff recommends that the NRC, as a near-term action, undertake regulatory action to resolve NTTF Recommendations 8.1, 8.2, 8.3 and 8.4:

Issue an advanced notice of proposed rulemaking to engage stakeholders in rulemaking activities associated with the methodology for integration of onsite emergency response processes, procedures, training and exercises. Interact with stakeholders to modify the EOP generic technical guidelines in order to include guidance for SAMGs and EDMGs in an integrated manner and to clarify command and control issues as appropriate.

NTTF Recommendations 9.3 and 9.4 The Task Force recommends that the NRC require that facility emergency plans address prolonged SBO and multiunit events.

9.3 Order licensees to do the following until rulemaking is complete:

• Determine and implement the required staff to fill all necessary positions for response to a multi-unit event

• Provide a means to power communications equipment needed to communicate onsite (e.g., radios for response teams and between facilities) and offsite (e.g., cellular telephones and satellite telephones) during a prolonged SBO.

9.4 Order licensees to complete the ERDS [Emergency Response Data System] modernization initiative by June 2012 to ensure multi-unit site monitoring capability.

Regulations and Guidance

1. 10 CFR 50.47, Emergency Plans, includes the 16 planning standards of 10 CFR 50.47(b), and Appendix E, Emergency Planning and Preparedness for Production and Utilization Facilities, to 10 CFR Part 50 describes information needed to demonstrate compliance with EP requirements.

2. NUREG-0654, Criteria for Preparation and Evaluation of Radiological Emergency Response Plans and Preparedness in Support of Nuclear Power Plants, Revision 1, issued November 1980, describes guidance and an acceptable means for demonstrating compliance with the Commissions regulations.

3. SECY-11-0053, Final Rule: Enhancement to Emergency Preparedness Regulations (10 CFR Part 50 and 10 CFR Part 52), dated April 8, 2011, codifies hostile-action-based enhancements, among others.

4. 10 CFR 50.27(b)(5) and Section IV.D.3 of Appendix E to 10 CFR Part 50 require that licensees provide notification and instruction to the public within the plume exposure pathway emergency planning zone (EPZ).

5. Section IV of Appendix E to 10 CFR Part 50 codifies the requirements for the NRCs ERDS.

6. NUREG-0696, Functional Criteria for Emergency Response Facilities, issued February 1981, describes the facilities and systems that licensees can use to improve emergency response to accidents, such as the technical support system, operational support center, and emergency offsite facility.

Staffs Assessment of NTTF Recommendations 9.3 and 9.4 The staffs assessment of Recommendation 9.3 indicates that regulatory action should be initiated to determine the required staffing to fill all necessary positions for responding to a multi-unit event. This would require both the NRC staff and licensees to reevaluate the current staffing assumptions and analysis for effectively responding to multi-unit incidents, in addition to actions being taken to satisfy the requirements of the recently affirmed Emergency Preparedness Final Rule. The staff is focused on licensees completing the staffing analyses only so that they could be done along with the actions required by the impending rule. Any resulting needs identified by those analyses related to work space or equipment will be considered as part of the 45-day review.

The staff also concludes that there is a need to strengthen the requirements to provide a means to power communications equipment needed to communicate onsite (e.g., radios for response teams and between facilities) and offsite (e.g., cellular telephones and satellite telephones) during a prolonged SBO. This would require additional guidance regarding acceptable communications equipment that does not rely on the availability of facility AC power.

The staffs assessment of Recommendation 9.4 indicates this initiative is currently being implemented and is achievable without delay. The ERDS modernization initiative is already scheduled to be completed by June 2012. The NRC has an implementation schedule for all licensees regarding their site-specific ERDS modernization initiative; however, the staff will use additional regulatory tools if commitments are not met (e.g., a Confirmatory Order).

The staff notes early interaction with stakeholders will be essential to determine the optimal mechanisms for implementing each of the above recommendations.

Staff Recommendation The staff recommends that the NRC, as a near-term action, undertake regulatory activities to:

1. Develop and issue a request for information to licensees pursuant to 10 CFR 50.54(f) to (1) perform a staffing study to determine the required staff to fill all necessary positions to respond to a multi-unit event, (2) evaluate what enhancements would be needed to provide a means to power communications equipment necessary for licensee onsite and offsite communications during a prolonged station blackout event, and (3) inform the NRC of the results of the staffing study and any actions taken or planned, along with their implementation schedules, to react to the staffing study results and to enhance the communications equipment.

2. Evaluate licensee responses and take appropriate regulatory action.

The request for information will include a schedule for interactions with stakeholders to inform the NRC as the technical bases and acceptance criteria are developed for (1) ensuring sufficient licensee staffing for responding to multi-unit events, and (2) ensuring reliable licensee onsite and offsite communications during a prolonged SBO.

The staff also recommends that the NRC more closely monitor the industrys completion of the ERDS modernization initiative. The ERDS modernization initiative is scheduled to be completed by June 2012; however, if licensees fail to meet their implementation schedules, the staff will use additional regulatory tools (e.g., an Order) to ensure that licensees meet all requirements associated with the ERDS capability.

ATTACHMENT 3 August 19, 2011 MEMORANDUM TO: R. W. Borchardt Executive Director for Operations Edwin M. Hackett, Executive Director Advisory Committee on Reactor Safeguards FROM: Andrew L. Bates, Acting Secretary /RA/

SUBJECT:

STAFF REQUIREMENTS - SECY-11-0093 - NEAR-TERM REPORT AND RECOMMENDATIONS FOR AGENCY ACTIONS FOLLOWING THE EVENTS IN JAPAN The Commission has approved the following actions related to the near-term Task Force report and recommendations for agency actions following the events in Japan.

The Commission directs the staff to engage promptly with stakeholders to review and assess the recommendations of the Near-Term Task Force in a comprehensive and holistic manner for the purpose of providing the Commission with fully-informed options and recommendations.

Staff is instructed to remain open to strategies and proposals presented by stakeholders, expert staff members, and others as it provides its recommendations to the Commission.

The staff should provide in a notation vote paper a draft charter for the structure, scope, and expectations for assessing the Task Force recommendations and NRCs longer term review.

The draft charter should be based upon the concept envisioned by the EDO and Deputy EDO for Reactor and Preparedness Programs that establishes a senior level steering committee reporting to the EDO and supported by an internal advisory committee and an external panel of stakeholders. The draft charter should incorporate any direction provided by the Commission in response to COMWDM-11-0001/COMWCO-11-0001, if available.

(EDO) (SECY Suspense: 8/26/11)

The staff should provide the Commission with a notation vote paper within 21 days of the issuance of this SRM that identifies and makes recommendations regarding any Task Force recommendations that can, and in the staffs judgment, should be implemented, in part or in whole, without unnecessary delay. The staff should, in framing these short-term actions, consider the wide range of regulatory tools available and these short-term actions should be assessed using the NRCs existing regulatory framework. This review should include dialogue with external stakeholders.

The staff should provide the Commission with a notation vote paper recommending a prioritization of the Task Force recommendations informed by the steering committee. This paper should reflect all regulatory actions to be taken by the staff to respond to Fukishima lessons learned, identify implementation challenges, include the technical and regulatory bases for the prioritization, identify any additional recommendations, and include a schedule and

ATTACHMENT 3 milestones with recommendations for appropriate stakeholder engagement and involvement of the ACRS.

(EDO) (SECY Suspense: 10/3/11)

The Advisory Committee on Reactor Safeguards (ACRS) should formally review all Task Force recommendations and the staffs evaluation and recommended prioritization of the Task Force recommendations, and document its review in letter reports to the Commission.

(ACRS) (SECY Suspense: following submission of 45 day notation vote paper to the Commission)

Recommendation 1 should be pursued independent of any activities associated with the review of the other Task Force recommendations. Therefore, the staff should provide the Commission with a separate notation vote paper within 18 months of the issuance of this SRM. This notation vote paper should provide options and a staff recommendation to disposition this Task Force recommendation.

cc: Chairman Jaczko Commissioner Svinicki Commissioner Apostolakis Commissioner Magwood Commissioner Ostendorff OGC CFO OCA OPA Office Directors, Regions, ACRS, ASLBP (via E-Mail)

PDR

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )

)

TENNESSEE VALLEY AUTHORITY ) Docket No. 50-391-OL

)

(Watts Bar Unit 2) )

)

CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing NRC STAFFS ANSWER TO MOTION FOR LEAVE TO SUPPLEMENT BASIS OF CONTENTION REGARDING NEEPA REQUIREMENT TO ADDRESS SAFETY AND ENVIRONMENTAL IMPLICATIONS OF THE FUKUSHIMA TASK FORCE REPORT, dated November 7, 2011, have been served upon the following by the Electronic Information Exchange, this 7th day of November, 2011:

Atomic Safety and Licensing Board Panel Office of Commission Appellate U.S. Nuclear Regulatory Commission Adjudication Mail Stop: T-3 F23 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Mail Stop: O-16G4 (Via Internal Mail Only) Washington, DC 20555-0001 E-mail: OCAAMAIL.resource@nrc.gov Kathryn M. Sutton, Esq. Office of the Secretary Paul M. Bessette, Esq. Attn: Rulemaking and Adjudications Staff Morgan, Lewis & Bockius, LLP Mail Stop: O-16G4 1111 Pennsylvania Avenue, NW U.S. Nuclear Regulatory Commission Washington, D.C. 20004 Washington, DC 20555-0001 E-mail: ksutton@morganlewis.com E-mail: Hearing.Docket@nrc.gov Edward Vigluicci, Esq. Diane Curran, Esq.

Tennessee Valley Authority for Southern Alliance for Clean Energy 400 West Summit Hill Drive, WT 6A-K (SACE)

Knoxville, TN 37902 Harmon, Curran, Spielberg & Eisenberg, LLP E-mail: ejvigluicci@tva.gov 1726 M Street N.W., Suite 600 Washington, DC 20036 E-mail: dcurran@harmoncurran.com

/Signed (electronically) by/

David E. Roth, Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 (301) 415-2749 E-mail: david.roth@nrc.gov Signed: November 7, 2011