2011-7213. Notice of Finding of No Significant Antitrust Changes and Time for Filing Requests for Reevaluation for Tennessee Valley Authority, Watts Bar Nuclear Plant, Unit 2, Spring City, TN

AGENCY:

Nuclear Regulatory Commission (NRC).

ACTION:

Tennessee Valley Authority, Watts Bar Nuclear Plant, Unit 2; Notice of No Significant Antitrust Changes and Time for Filing Requests for Reevaluation.

FOR FURTHER INFORMATION CONTACT:

Aaron Szabo, Financial Analyst, Financial Analysis and International Projects Branch, Division of Policy and Rulemaking, Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. Telephone: [phone]; fax number: 301-415-2102; e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

I. Introduction

The Director of the Office of Nuclear Reactor Regulation (NRR) has made a finding in accordance with Section 105c(2) of the Atomic Energy Act, as amended, that no significant (antitrust) changes in the applicant's activities or proposed activities have occurred subsequent to the antitrust construction permit review of Unit 2 of the Watts Bar Nuclear Plant (WBN) by the U.S. Attorney General and the Commission.

Section 105c(2) of the Atomic Energy Act of 1954, as amended, provides for an antitrust review of an operating license application, filed before August 8, 2005, if the Commission determines that significant changes in the applicant's activities or proposed activities have occurred subsequent to the previous construction permit review. The Commission has delegated the authority to make the “significant change” determination to the Director, NRR.

Tennessee Valley Authority's (TVA) application for construction permits and operating licenses for the WBN Units 1 and 2 have been the subject of 4 previous antitrust reviews. In connection with the construction permit review in 1972, the Acting Assistant Attorney General for Antitrust of the U.S. Department of Justice (DOJ) found no antitrust problems that would require a hearing. In subsequent operating license reviews in 1979, 1983 and 1991, the NRC staff found “no significant changes” that would warrant an operating license antitrust review.

Based upon an examination of the events since the previous operating license review of TVA's activities conducted in 1991, the NRC staff has concluded, after consulting with the Department of Justice, that the changes that have occurred since the construction permit review are not of the nature to require a formal antitrust review at the operating license stage of the application.

II. Summary of Staff Analysis and Recommendation

In reaching this conclusion, the NRC staff considered the structure of the utility industry in the Tennessee Valley and adjacent areas, the events relevant to the construction permit review and the previous operating license reviews for WBN. Due to construction delays at the WBN facility, the staff reviewed TVA's activities in 1979, 1983, 1990, and again in 2010 to determine whether there have been changes in TVA's activities since the completion on the construction permit antitrust review in 1972 that would create or maintain a situation inconsistent with the antitrust laws. Several types of changes were identified in each of the earlier post construction permit reviews; however, it was determined that none of the changes resulted from abuse of TVA's market power.

In its review of TVA's activities in the 2010 operating license review, the staff again found no evidence of changed activity associated with abuse of its market power. In relation to TVA's customers, TVA projected a capacity shortfall based on previous long-term agreements, with or without the operation of WBN Unit 2, which would be inconsistent with a utility using anticompetitive behavior. In relation to building transmission, rate schedules and capacity additions other than from operation of WBN Unit 2, all of the developments were not atypical of a large utility and did not raise significant antitrust issues.

Further, in 1997, TVA reached a settlement agreement that defined the counterparties and arrangements under which TVA can only make exchange power arrangements with other power generating companies consistent with the provisions of the Tennessee Valley Authority Act of 1933, as amended (TVA Act). The region that TVA is allowed to supply and sell power is still dictated by Section 15d(a) of the TVA Act. But, TVA may now only engage in construction of generating capacity or purchase of generating capacity as it needs to supply power demands in its own service area and may not knowingly exchange power if the purchaser is procuring power for the purpose of reselling such power at wholesale to any third party not authorized to exchange power with the TVA.

As a result, the NRC staff does not believe that any changed activity attributed to TVA since the 1979 operating license review is “significant” in terms of the Commission's V.C. Summer decision (see Commission Memorandum and Order CLI-80-28, dated June 30, 1980, at 11 NRC 817). The staff recommended that the Director of the Office of Nuclear Reactor Regulation find that “no significant changes” have occurred in TVA's activities since the previous antitrust operating license review completed in 1991.

III. Finding of No Significant Changes

On the basis of the staff's analysis and recommendation, the Director of NRR has concluded in his decision dated March 21, 2011, that there have been no “significant changes” in the applicant's activities or proposed activities since the completion of the previous antitrust review.

IV. Further Information

Documents related to this action, including the application for an operating license and supporting documentation, are available electronically at the NRC's Electronic Reading Room at http://www.nrc.gov/​reading-rm/​adams.html. From this site, you can access the NRC's Agencywide Documents Access and Management System (ADAMS), which provides text and image files of NRC's public documents. The ADAMS accession numbers for the documents related to this notice are:

Accession No.	Document description
ML073130086	NRC letter to DOJ, dated August 23, 1971, forwarding antitrust review.
ML073130092	DOJ letter dated December 11, 1972, with no antitrust problems.
ML073380454	NRC letter dated September 20, 1991, No Significant Change Finding.
ML090700378	TVA updated application for WBN Unit 2 operating license, dated March 4, 2009.
ML101400184	TVA letter of May 13, 2010, Update Antitrust Review.
ML102160085	TVA letter of July 29, 2010, Response to request for additional information.
ML110691059	DOJ letter dated December 16, 2010, with no antitrust problems.
ML110550652	TVA letter of February 22, 2011, response to antitrust clarification questions.

If you do not have access to ADAMS or if there are problems in accessing the documents located in ADAMS, contact the NRC Public Document Room (PDR) Reference staff at 1-800-397-4209, 301-415-4737 or by e-mail to [e-mail].

These documents may also be viewed electronically on the public computers located at the NRC's Public Document Room (PDR), O1 F21, One White Flint North, 11555 Rockville Pike Rockville, MD 20852. The PDR reproduction contractor will copy documents for a fee.

Any person whose interest may be affected by this finding, may file, with full particulars, a request for reevaluation with the Director of the Office of Nuclear Reactor Regulation, U.S. Nuclear Regulatory Commission, Washington, DC 20555 within 30 days of the initial publication of this notice for the Federal Register. Request for reevaluation of the no significant change determination shall be accepted after the date when the Director's finding becomes final, but before the issuance of the operating license only if they contain new information, such as information about facts or events of antitrust significance that have occurred since that date or information that could not reasonably have been admitted prior to that date.

A copy of the director's decision will be filed with the Secretary of the Commission for the Commission's review. The director's decision will constitute the final action of the Commission 30 days after the date of the decision, unless the Commission, on its own motion, institutes a review of the director's decision in that time.

Dated at Rockville, Maryland, this 22nd day of March 2011.

For the Nuclear Regulatory Commission.

Stephen J. Campbell,

Chief, Watts Bar Special Projects Branch, Division of Operating Reactor Licensing, Office of Nuclear Reactor Regulation.