ML100670661
| ML100670661 | |
| Person / Time | |
|---|---|
| Site: | Watts Bar  |
| Issue date: | 03/08/2010 |
| From: | Curran D Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-391-OL, ASLBP No. 09-893-01-OL-BD01, RAS 17532 | |
| Download: ML100670661 (9) | |
Text
March 8, 2010 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
___________________________________ )
In the Matter of ) ) Docket No. 50-391 Tennessee Valley Authority )
) (Watts Bar Unit 2) )
___________________________________ ) SOUTHERN ALLIANCE FOR CLEAN ENERGY'S MOTION FOR LEAVE TO REPLY TO TENNESSEE VALLEY AUTHORITY AND NRC STAFF REGARDING PETITION FOR WAIVER OF 10 C.F.R. §§ 51.53(b) AND 51.95(b) Pursuant to 10 C.F.R. §§ 2.323(a) and (b) and 2.319, Southern Alliance for Clean Energy ("SACE") hereby moves for leave to reply to Tennessee Valley Authority's ("TVA's") and the U.S. Nuclear Regulatory Commission ("NRC" or "Commission") Staff's responses to SACE's petition for a waiver of 10 C.F.R. §§ 51.53(b) and 51.95(b).
In conformance with 10 C.F.R. § 2.323(a), this motion is submitted within ten days of the circumstances from which the motion arises, i.e., the filing of TVA's and the NRC Staff's Responses on February 26, 2010, and March 1, 2010, respectively.
NRC regulations are silent on the question of whether replies to responses to waiver petitions are allowed.In this case, SACE respectfully submits that in order to
ensure that the record of its waiver petition is complete and therefore leads to a sound decision, the Board should permit SACE to respond to various arguments made by TVA and the Staff to the effect that the petition is untimely, that it fails to satisfy the NRC's standard for issuance of a waiver, and that it fails to cite all relevant regulations. SACE 2believes that none of TVA's or the Staff's arguments has merit, and therefore requests the Board to consider its arguments in reply. As required by 10 C.F.R. § 2.323(b), this motion is supported by a certificate of counsel, which is appended below.
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 March 8, 2010 CERTIFICATE OF COUNSEL REQUIRED BY 10 C.F.R. § 2.323(b)
I certify that on March 8, 2010, I contacted counsel for TVA and the NRC Staff in an attempt to resolve the concerns raised by this motion. Counsel for TVA said that TVA would not consent to the motion. Counsel for the NRC Staff said that the Staff would not take a position at this time. Electronically signed by Diane Curran March 8, 2010 March 8, 2010 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
___________________________________ )
In the Matter of ) ) Docket No. 50-391 Tennessee Valley Authority )
) (Watts Bar Unit 2) )
___________________________________ )
SOUTHERN ALLIANCE FOR CLEAN ENERGY'S REPLY TO TENNESSEE VALLEY AUTHORITY AND NRC STAFF REGARDING PETITION FOR WAIVER OF 10 C.F.R. §§ 51.53(b) AND 51.95(b) WITH RESPECT TO ADMISSION OF CONTENTIONS REGARDING NEED FOR POWER AND CONSIDERATION OF ALTERNATIVE ENERGY SOURCES I. INTRODUCTION Southern Alliance for Clean Energy ("SACE") hereby replies to Tennessee Valley Authority's ("TVA's") and the U.S. Nuclear Regulatory Commission ("NRC" or "Commission")
Staff's responses to SACE's petition for a waiver of 10 C.F.R. §§ 51.53(b) and 51.95(b) to the extent that those regulations bar consideration of the need for power and alternative energy sources (including energy efficiency/no action) in this proceeding. Tennessee Valley Authority's Response in Opposition to Petition for Waiver of 10 C.F.R. §§ 51.53(b) and 51.95(b) (March 1, 2010); NRC Staff's Response to Request by Southern Alliance for Clean Energy ("SACE") for
Waiver of 10 C.F.R. § 51.53(b) and 51.95(b) Etc. (February 26, 2010) ("NRC Staff Response").
II. ARGUMENT A. The Petition is Not Late. TVA argues that SACE's waiver petition is "inexcusably late" because it was not submitted with SACE's initial hearing request. TVA Response at 1. As TVA acknowledges, the NRC has no regulation that governs the timing of waiver petitions, and therefore the appropriate 2 standard is one of reasonableness.Id. at 15. Here, it was reasonable for SACE not to file a waiver request at the same time as its hearing request because it was not evident that a waiver petition was needed, given that TVA had itself waived 10 C.F.R. 51.53(b) and 51.95(b) by addressing need for power and alternative energy issues in its Final Supplemental Environmental Impact Statement ("FSEIS") for Watts Bar Unit 2. Indeed, while TVA opposed the admission of SACE's contention, it failed to make any argument that consideration of the contention was barred by NRC regulations.
SACE also acted reasonably in deciding to wait for TVA to submit information in response to a December 3, 2009, Request for Additional Information ("RAI") by the Staff regarding the need for power issue.
1 Because SACE was required by NRC case law to address a significant safety or environmental problem in its waiver petition, see SACE's waiver petition at 3, it was reasonable for SACE to await the filing of the information. When it became clear that TVA would not submit the requested information by the promised date and no new submission date was fixed, SACE went ahead and filed its waiver petition. If anything, therefore, SACE's waiver petition is early, not late.
2 Finally, TVA argues that the timing of the waiver petition is prejudicial to TVA because it will likely cause a delay in the issuance of the NRC's Draft Supplemental Environmental Impact Statement ("SEIS").
Id.at 2. As discussed above in note 1, however, TVA itself has not yet fully satisfied the NRC's requests for additional environmental information, and therefore 1 SeeSACE's Waiver Petition at 5 note 12. TVA submitted an initial response to the RAI on December 23, 2009, but postponed the rest of its response until the end of January.
Id.Theresponse has yet to appear on the NRC's Agencywide Documents Access and Management System ("ADAMS").
2 The Staff also implicitly suggests that the question of whether the NRC's need for power regulation should be waived is not yet ripe for disposition, by stating that until publication of the NRC's SEIS for Watts Bar 2, it is "premature to discuss compliance with 10 C.F.R. § 51.95(b) .
. ." NRC Staff Response at 20.
3TVA itself would appear to be the principal cause of any delay of the NRC's Draft SEIS (now due to be published in September 2010). B. SACE Has Satisfied the NRC's Standard for Issuance of a Waiver TVA and the NRC Staff argue that SACE fails to meet the standard for a waiver because SACE focuses on TVA's current energy needs and does not provide "data" to show that there is and would continue to be excess capacity in Watts Bar Unit 2's service area well into the future.
TVA Response at 18, 20-22; NRC Staff Response at 14 (citing Duquesne Light Co. et al. (Beaver Valley Power Station, Unit 2), LBP-84-6, 19 NRC 393, 402 (1984)). According to the
Staff, SACE "provides no evidence or discussions of TVA's capacity well into the future."
Id.In making this argument, TVA and the Staff completely ignore two important facts: (a) in its own RAI of December 3, 2009, the Staff itself used TVA's electricity growth rate in 1990 and 2008 and the expected "power supply and demand" requirements to 2011 and 2012 and 2014 as the basis for its questions to TVA about TVA's future electricity demands (see Makhijani Declaration, par. 19 (citing RAI # BC-3)); and (b) Dr. Makhijani devotes six paragraphs of his declaration to discussing the inadequacies of TVA's data and projections to support a need for
power in the future.
Seepars. 18-23. TVA also argues that SACE has failed to show that alternative energy sources are environmentally andeconomically preferable to Watts Bar Unit 2. TVA Response at 25.Similarly, the Staff argues that SACE's waiver petition must be rejected because it does not go into detail about preferable energy alternatives. NRC Staff Response at 18. But Dr. Makhijani
addresses these very issues in pars. 14 and16 of his declaration and pages 4-7 of his report, which is attached to his declaration and also is cited at page 9 of SACE's Waiver Petition.
Makhijani,Watts Bar Unit 2: Analysis of Need and Alternatives (July 10, 2009).
4 The NRC Staff argues that SACE has failed to establish that Watts Bar Unit 2 will not be used to displace an equivalent amount of older, less economical capacity. NRC Staff Response
at 15 (citing Carolina Power and Light Co. and North Carolina Eastern Municipal Power Agency(Shearon Harris Nuclear Power Plant)
, ALAB-837, 23 NRC 525, 547 (1986)). The Staff faults SACE for not discussing the large capacity of existing coal and hydroelectric facilities and addressing the question of why Watts Bar Unit 2 would not be used to replace those energy
sources.Id.at 16-17. But this argument, and the cases on which the Staff relies, presuppose that Watts Bar Unit 2 has already been built. In fact, Watts Bar is only 60% complete and has an estimated completion cost of $2.5 billion. Makhijani Declaration, par. 16. As Dr. Makhijani explains in his declaration, "[t]his is very far from the case where a plant is complete and the only cost criterion is comparing operating costs with existing plants."
Id. In a case like this, "some existing plants are uneconomical relative to purchased power, a situation not considered by the NRC at all. Dr. Makhijani explicitly states that in this circumstance, a comparison with other alternatives - purchased power, other TVA generation, renewables such as efficiency and baseload wind, and combinations of those energy technologies is necessary.
Id. Dr. Makhijani also discusses the costs of energy alternatives at length in his expert report at pages 4-7.
TVA contends that it is typical for construction of a nuclear reactor to be incomplete at the time the operating license proceeding commences, citing examples in which the first unit of a two-unit plant was 75% or 91% complete. TVA Response at 27 and note 126. TVA argues that
"[s]ubstantial progress" has been made on the construction of Watts Bar Unit 2 since the FSEIS was issued. TVA Response at 27,note 125. But TVA has presented no declaration or documentation to support its assertion that construction progress since publication of the TVA's FSEIS - when construction was only 60% complete -- has been significant. In addition, the per-5kilowatt cost of completing TVA is about $2,100 per kilowatt. A recent study by Dr. Mark Cooper shows that this is higher (in constant 2008 dollars) than the upper end of the of capital cost of nuclear power plants at the time the construction permit for Watts Bar was issued
(1973).3 These circumstances are unique and clearly were not considered by the Commission -- either explicitly or by necessary implication - when it excused operating license applicants from
evaluating the issues of need for power and energy alternatives.
Finally, both TVA and the NRC Staff contend that the fact that the Staff issued an RAI regarding the need for Watts Bar Unit 2 does not establish that the Staff has waived the NRC's need for power regulations. NRC Staff Response at 19-22. The Staff asserts that the issuance of
an RAI does not, by itself, show that the Staff considers the need for power issue to be relevant to its licensing decision; and that "the Staff has yet to publish its supplemental EIS, thus it is premature to discuss compliance with 10 C.F.R. § 51.95(b) . . ."
Id.at 20. SACE respectfully submits that as long as the Staff continues to ask for information about the need for power, and as long as TVA continues to provide it, one may reasonably presume that the Staff intends to consider the need for Watts Bar Unit 2 and that the only parties to be excluded from that process will be SACE and the rest of the affected public. As discussed in SACE's waiver petition, such an outcome would violate the Atomic Energy Act.
3 Mark Cooper, The Economics of Nuclear Reactors: Renaissance or Relapse?
Figure 1-1 (Institute for Energy and Environment, Vermont Law School, June 2009). The sources for the various items in the figure are provided there. The report is available at http://www.vermontlaw.edu/Documents/Cooper%20Report%20on%20Nuclear%20Economics%20FINAL%5B1%5D.pdf. Dr. Cooper provided 2008 constant dollar estimates of past reactor orders. During 1970-1974, they ranged from under $1,000 per kW to just under $2,000 per kW.
6C. 10 C.F.R. § 51.106(c) Has No Independent Force That Warrants Denial of SACE's Petition. TVA claims that even if SACE had met the requirements for waiver of 10 C.F.R. §§ 51.53(b) and 51.95(b), the petition should be denied because SACE did not also seek a waiver of 10 C.F.R. § 51.106(c), which forbids NRC licensing boards from admitting contentions that challenge the need for power or failure to consider energy alternatives. TVA Response at 30. A review of the history of 10 C.F.R. § 51.106(c) (formerly 10 C.F.R. § 51.53(b)) shows that it is inextricably tied to §§ 51.53(b) and 51.95(b) and has no rationale independent of those
regulations.
SeeFinal Rule, Environmental Protection Regulations for Domestic Licensing and Related Regulatory Functions and Related Conforming Amendments, 49 Fed. Reg. 9,352, 9,365 (March 12, 1984); Final Rule, Need for Power and Alternative Energy Issues in Operating License Proceedings, 47 Fed. Reg. 12,940, 12,942-43 (March 26, 1982). Therefore, SACE's failure to cite § 51.106(c) in its waiver petition does not provide any substantive ground for denying the petition. In any event, SACE intends to amend its petition to include § 51.106(c). III. CONCLUSION For the foregoing reasons, the ASLB should conclude that SACE has made a prima facie case that a waiver should be granted and certify this waiver petition to the Commission for its determination on the matter.
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 March 8, 2010 1UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
____________________________________ )
In the Matter of )
)
Tennessee Valley Authority ) Docket No. 50-391
)
(Watts Bar Unit 2) )
____________________________________)CERTIFICATE OF SERVICEI certify that on March 8, 2010, I posted on the NRC's Electronic Information Exchange System copies of the foregoing SACE's Reply to Responses to Petition for Waiver of 10 C.F.R. §§ 51.53(b) and 51.95(b) With Respect to Admission of Contentions Regarding Need for Power and Consideration of Alternative Energy Sources and a motion for leave to file the Reply. It is my
understanding that as a result, the following parties were served:
Lawrence G. McDade, Chair Paul B. Abramson
Gary S. Arnold Atomic Safety and Licensing Board Panel
U.S. Nuclear Regulatory Commission Mail Stop T-3F23 Lgm1@nrc.gov
, pba@nrc.gov
, wxb3@nrc.gov Kathryn M. Sutton, Esq.
Paul M. Bessette, Esq.
Morgan, Lewis & Bockius, L.L.P.
1111 Pennsylvania Avenue N.W.
Washington, D.C. 20004 ksutton@morganlewis.compbessette@morganlewis.com NRC Office of the SecretaryRulemakings and Adjudications Staff
U.S. Nuclear Regulatory Commission
Washington, D.C. 20555
Hearing.docket@nrc.govNRC Office of Appellate Commission
Adjudication
U.S. Nuclear Regulatory Commission
Washington, D.C. 20555 ocaamail@nrc.gov David E. Roth, Esq.
Edward Williamson, Esq.
Andrea Jones, Esq.
Office of General Counsel
U.S. Nuclear Regulatory Commission
Washington, D.C. 20555
David.roth@nrc.gov
, andrea.jones@nrc.gov
, elw2@nrc.gov Edward J. Vigluicci, Esq.
Christopher C. Chandler, Esq.
Office of the General Counsel
Tennessee Valley Authority 400 West Summit Hill Drive, WT 6A-K Knoxville, TN 37902
ejvigluicci@tva.gov
, ccchandler0@tva.gov (signed electronically by
)Diane Curran