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2010/05/06-NRC Staff'S Answer to Tennessee Valley Authority'S Motion to Dismiss Southern Alliance for Clear Energy'S Contention 1 as Moot
	ML101260572
Person / Time
Site:	Watts Bar
Issue date:	05/06/2010
From:	Dreher M G; NRC/OGC
To:	; Atomic Safety and Licensing Board Panel
	SECY RAS
References
	50-391-OL, ASLBP 09-893-01-OL-BD01, RAS 17847
	Download: ML101260572 (6)
	v • d • e

May 6, 2010 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) )

NRC STAFF'S ANSWER TO TENNESSEE VALLEY AUTHORITY'S MOTION TO DISMISS SOUTHERN ALLIANCE FOR CLEAN ENERGY'S CONTENTION 1 AS MOOT INTRODUCTION

On April 19, 2010, Tennessee Valley Authority ("TVA") filed a motion before the Atomic Safety and Licensing Board ("Board") to dism iss admitted Contention 1 on mootness grounds.

Motion to Dismiss Southern Alliance for Clean E nergy's Contention 1 as Moot (April 19, 2010)

("Motion"). On May 6, 2010, Intervenors Southern Alliance for Clear Energy ("SACE") filed a

letter with the Board stating that SACE does not intend to oppose the Motion and considers

Contention 1 to be resolved. Letter from Diane Curran to the Board (May 6, 2010). The NRC

Staff supports the motion for the reasons discussed below.

BACKGROUND On May 1, 2009, the NRC published a Notice of Opportunity for Hearing on the

operating license ("OL") application of TVA for the Watts Bar Nuclear Plant Unit 2.

1 On July 13, 2009, SACE along with several other entities, filed a single combined petition to intervene and 1 Tennessee Valley Authority [TVA]; Notice of Re ceipt of Update to Application for Facility Operating License and Notice of Opportunity for H earing for the Watts Bar Nuclear Plant, Unit 2 and Order Imposing Procedures for Access , 74 Fed. Reg. 20,350 (May 1, 2009). Requests for a hearing and petitions to intervene were due by June 30, 2009.

Id. at 20351. Upon request, the Commission extended SACE's filing deadline without comment to July 14, 2009. Order (June 24, 2009) (unpublished).

hearing request ("Petition") for the operating license application of Watts Bar Unit 2.

On November 19, 2009, the Board granted party status only to SACE 2 and admitted two environmental contentions, including Contention 1, which alleges that TVA's Final Supplemental

Environmental Impact Statement ("FSEIS") for the Completion and Operation of Watts Bar

Nuclear Plant Unit 2 3 failed to list and discuss the status of compliance with applicable permits, approvals, and environmental quality standards, as required by 10 C.F.R. § 51.45(d)

.4 In admitting Contention 1 as a "contention of omission," the Board held that "only the allegation

regarding the additional, unspecified and unlisted permits supports the admission of this

contention."

Watts Bar , LBP-09-26, 72 NRC at __ (slip op. at 19, 21). On April 9, 2010, in response to a Staff Request for Additional Information ("RAI"), 5 TVA provided Table G-5, "Federal, State, and Local Authorizations," which lists and describes "[a]ll federal, state, and

local authorizations, consultations, and environmental permits needed for operation of Unit 2

and the status of each." RAI Response at E1-6; Table G-5. Following its submission of the

requested information, TVA filed the instant Motion, seeking dismissal of Contention 1 on the

grounds that it has been mooted by TVA's April 9, 2010 RAI Response. Motion at 5.

2 The Board determined that the remaining parties had not adequately justified their late filing.

See Tennessee Valley Authority (Watts Bar Unit 2), LBP-09-26, 70 NRC __ (Nov. 19, 2009) (slip op. at 2-3), aff'd , CLI-10-12, 72 NRC __ (March 26, 2010)(slip op.).

3 Final Supplemental Environmental Impact Statement, Completion and Operation of Watts Bar Nuclear Plant Unit 2, Rhea County, Tenn. (June 2007) (Agency-wide Documents Access and Management Systems ("ADAMS

") Accession No. ML080510469).

4 Watts Bar , LPB-09-26, 70 NRC __, slip op. at 15-21, aff'd on other grounds , CLI-10-12, 71 NRC

__ (Mar. 26, 2010)(slip op.); Petition at 6-8.

5 NRC Staff Watts Bar 2 RAI, at 8 (Dec.

3, 2009) (ML093290073) (requesting "a list of all authorizations, consultations, and environmental permits and approvals needed for operation of Watts Bar Nuclear Plant Unit 2 and prov ide a status for each item").

DISCUSSION I. Legal Standard A contention alleging that required information has been omitted from an application for

an operating license must be modified or dismissed as moot where the information in question

is provided in response to a Staff RAI.

See Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 & 2), CLI-02-28, 56 NRC 373, 382-383 (2002).

II. Discussion The Board admitted Contention 1 as a "contention of omission,"

Watts Bar , LBP-09-26, 70 NRC at __ (slip op. at 21), to the limited extent that SACE alleged that TVA's application did

not include "unspecified permits that should have been listed and discussed by TVA" in the

application, pursuant to 10 C.F.R. § 51.45(d).

Id. at 19. With respect to two documents enumerated in its contention (i.e., the Interagency Agreement and National Pollutant Discharge

Elimination System ("NPDES") permit), the Board held that SACE had not alleged facts

sufficient to raise a genuine dispute warranting admission of its contention. However, citing

TVA's FSEIS, the Board admitted SACE's contention because TVA "concedes that there are

other applicable permits and approvals but does not identify them or discuss the current

compliance status."

Id. at 21.

In its Motion, TVA states that in response to the Staff's December 3, 2009 RAI, TVA has now supplied "all federal, state, and local authorizations, consultations, and environmental

permits needed for operation of Unit 2 and the status of each." Motion at 3 (quotations omitted).

To the extent that TVA's response ameliorates the cited omissions in its original FSEIS, see Watts Bar , LBP-09-26, 70 NRC at __ (slip op. at 19), the Staff supports TVA's request that Contention 1 be dismissed as moot.

See McGuire/Catawba , CLI-02-28, 56 NRC at 382-383.

CONCLUSION In conclusion, the Staff supports dismissal of Contention 1 on the grounds that it is

rendered moot by TVA's submittal of additional information.

Respectfully submitted, /Signed (electronically) by/ Michael G. Dreher Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O15-D21 Washington, DC 20555 (301) 415-2314 E-Mail: Michael.Dreher@nrc.gov Signed: May 6, 2010 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 Nuclear Plant, Unit 2) )

CERTIFICATE OF SERVICE

I hereby certify that copies of the foregoing "NRC STAFF'S ANSWER TO TENNESSEE

VALLEY AUTHORITY'S MOTION TO DISMISS SOUTHERN ALLIANCE FOR CLEAN

ENERGY'S CONTENTION 1 AS MOOT," dated May 6, 2010, have been served upon the

following by the Electronic Information Exchange, this 6th day of May 2010:

Administrative Judge

Lawrence G. McDade, Chair

Atomic Safety and Licensing Board Panel