ML053320259

Federal Respondents' Second Filing Under Frap 28J, Dated 10/11/05

ML053320259
Person / Time
Site:	Diablo Canyon
Issue date:	10/11/2005
From:	Mullins C NRC/OGC
To:	Catterson C US Federal Judiciary, Court of Appeals, 9th Circuit
References
03-74628
Download: ML053320259 (3)

Text

UNITED STATES NUCLEAR REGULATORY COMMISSION WASHINGTON, D.C. 20555-0001

• • • • s,+

October 11, 2005 OFFICE OF THE GENERAL COUNSEL Cathy A. Catterson, Clerk United States Court of Appeals for the Ninth Circuit 95 Seventh Street San Francisco, California 94103-1526 RE: San Luis Obispo Mothers for Peace, et al. v. U.S. Nuclear Regulatory Commission, No. 03-74628

Dear Ms. Catterson:

Pursuant to FRAP 280), the Respondents file the following information:

In their brief, the Petitioners note that, as of the time of its filing, the NRC had not issued a security order to Pacific Gas & Electric (PG&E) with regard to the Independent Spent Fuel Storage Installation (ISFSI) that is at issue in this case. See Petitioners' Brief at 27-28, n. 13.

The NRC issued a security order modifying the recently-issued license held by PG&E for the ISFSI on May 5, 2005. See 70 Fed. Reg. 25121 (May 12, 2005). A copy of the Federal Register Notice is enclosed.

Charles E. Mullirty Senior Attorney Office of the General Counsel U.S. Nuclear Regulatory Commission

Enclosure:

As stated cc: Service List

Federal Register/Vol. 70, No. 91/Thursday, May 12, 2005/Notices 25121 hearing, that person shall set forth with Nuclear Material Safety and Safeguards, prudent, interim measures to address particularity the manner in which his/ U.S. Nuclear Regulatory Commission, the current threat environment in a her interest is adversely affected by this Rockville, MD 20852. Telephone: (301) consistent manner throughout the Order and shall address the criteria set 415-4015; fax number: (301) 415-8555; nuclear ISFSI community. Therefore, forth in 10 CFR 2.714(d). e-mail CSB2@nrc.gov. the Commission is imposing If a hearing is requested by PG&E or SUPPLEMENTARY INFORMATION: requirements, as set forth in Attachment a person whose interest is adversely 1' of this Order, on PG&E who has affected, the Commission will issue an I. Introduction indicated near term plans to store spent Order designating the time and place of Pursuant to 10 CFR 2.106, the Nuclear fuel in an ISFSI under their site-specific any hearing. If a hearing is held, the Regulatory Commission (NRC) is license issued under the provisions of issue to be considered at such hearing providing notice in the matter of Diablo 10 CFR Part 72. These interim shall be whether this Order should be Canyon Nuclear Power Plant requirements, which supplement sustained. Independent Spent Fuel Storage existing regulatory requirements, will Pursuant to 10 CFR 2.202(c)(2)(i), Installation Order Modifying License provide the Commission with PG&E may, in addition to demanding a (Effective Immediately). reasonable assurance that the public hearing at the time the answer is filed II. Further Information health and safety, and common defense or sooner, move the presiding officer to and security continue to be adequately set aside the immediate effectiveness of I. Pacific Gas and Electric (PG&E or protected in the current threat the Order on the grounds that the Order, the Licensee) holds a site-specific environment. These requirements will including the need for immediate license issued by the U.S. Nuclear remain in effect until the Commission effectiveness, is not based on adequate Regulatory Commission (NRC or determines otherwise.

evidence but on mere suspicion, Commission) authorizing storage of The Commission recognizes that some unfounded allegations or error. spent fuel in an independent spent fuel measures may not be possible or In the absence of any request for storage installation (ISFSI) in necessary, or may need to be tailored to hearing or *writtenapproval of an accordance with the Atomic Energy Act accommodate the specific extension of time in which to request a of 1954 and 10 CFR Part 72. This Order circumstances existing at PG&E's facility hearing, the provisions specified in is being issued to PG&E who has to achieve the intended objectives and Section III above shall be final twenty identified near term plans to store spent avoid any unforeseen effect on the safe (20) days from the date of this Order fuel in an ISFSI under the site specific storage of spent fuel.

without further order or proceedings. If license provisions of 10 CFR Part 72. In order to provide assurance that the an extension of time for requesting a The Commission regulations at 10 CFR licensees are implementing prudent hearing has been approved, the 72.184(b) require the licensee to measures to achieve a consistent level of provisions specified in Section m shall maintain safeguards contingency plan protection to address the current threat be final when the extension expires, If procedures in accordance with 10 CFR environment, the Commission a hearing request has not been received. Part 73, Appendix C. Specific concludes that security measures must An answer or a request for hearing shall safeguards requirements are contained be embodied in an Order consistent not stay the immediate effectiveness of in 10 CFR Part 73. with the established regulatory E. On September 11, 2001, terrorists framework. PG&E's License No. SNM-this order. simultaneously attacked targets in New Dated this 5th day of May 2005. 2511 shall be modified to include the York, N.Y., and Washington, DC, requirements identified in Attachment I For the Nuclear Regulatory Commission. utilizing large commercial aircraft as to this Order. In addition, pursuant to Margaret V.Federline, weapons. In response to the attacks and 10 CFR 2.202, I find that in light of the Acting Director,Office of NuclearMaterial intelligence information subsequently common defense and security matters Safetyand Safeguards. obtained, the Commission issued a described above, the public health,

[FR Doc. ES-2342 Filed 5-11-05; 8:45 am] number of Safeguards and Threat safety and interest require that this BILUNG CODE 7590-01-P Advisories to its licensees in order to Order be immediately effective.

strengthen licensees' capabilities and III. Accordingly, pursuant to Sections readiness to respond to a potential 53, 103, 104, 161b, 61i, 161o, 182 and NUCLEAR REGULATORY attack on a nuclear facility. The 186 of the Atomic Energy Act of 1954, COMMISSION Commission has also communicated as amended, and the Commission's with other Federal, State, and local regulations in 10 CFR 2.202 and 10 CFR

[Docket No. 72-26; License No. SNM-251 1; government agencies and industry EA-05-0881 Parts 72 and 73, it is hereby ordered, representatives to discuss and evaluate effective immediately, that the license Pacific Gas and Electric, Diablo the current threat environment in order identified in this order is modified as Canyon Nuclear Power Plant, to assess the adequacy of security follows:

Independent Spent FUEL Storage measures at licensed facilities. In A. PG&E shall, notwithstanding the Installation; Order Modifying License addition, the Commission has been provisions of any Commission (Effective Immediately) conducting a comprehensive review of regulation or license to the contrary, its safeguards and security programs comply with the requirements described AGENCY: Nuclear Regulatory and requirements. in Attachment 1 to this Order except to Commission. As a result of its consideration of the extent that a more stringent ACTION: Issuance of order for current safeguards and security plan requirement is set forth in their security implementation of interim safeguards requirements, as well as a review of plan. PG&E shall immediately start and security compensatory measures. information provided by the intelligence implementation of the requirements in community and other governmental Attachment 1 to the Order and shall FOR FURTHER INFORMATION CONTACT: agencies, the Commission has Cynthia Barr, Project Manager, determined that certain compensatory IAttachment I contains SAFEGUARDS Licensing and Inspection Directorate, measures are required to be INFORMATION and will not be released to the Spent Fuel Project Office, Office of implemented by the Licensee as public.

25122 Federal Register/Vol. 70, No. 91/Thursday, May 12, 2005/Notices complete implementation before IV. In accordance with 10 CFR 2.202, place of any hearing. If a hearing is held, October 31, 2005, or the first day that PG&E must, and any other person the issue to be considered at such spent fuel is initially placed in the adversely affected by this Order may, hearing shall be whether this Order ISFSI, whichever is later. submit an answer to this Order, and should be sustained.

BA. PG&E shall, within twenty (20) may request a hearing on this Order, Pursuant to 10 CFR 2.202(c)(2)(1),

days of the date of this Order, notify the within twenty (20) days of the date of PG&E may, in addition to demanding a Commission, (1) if it is unable to this Order. Where good cause is shown, hearing at the time the answer is filed comply with any of the requirements consideration will be given to extending or sooner, move the presiding officer to described in Attachment 1, (2) if the time to request a hearing. A request set aside the immediate effectiveness of compliance with any of the for extension of time in which to submit the Order on the ground that the Order, requirements is unnecessary in its an answer or request a hearing must be including the need for immediate specific circumstances, or (3) if made in writing to the Director, Office effectiveness, is not based on adequate implementation of any of the of Nuclear Material Safety and evidence but on mere suspicion, requirements would cause the Licensee Safeguards, and the Director, Office of unfounded allegations or error.

to be in violation of the provisions of Enforcement, U.S. Nuclear Regulatory In the absence of any request for any Commission regulation or the Commission, Washington, DC 20555, hearing or written approval of an facility license. The notification shall and include a statement of good cause extension of time in which to request a provide licensee's justification for for the extension. The answer may hearing, the provisions specified in seeking relief from or variation of any consent to this Order. Unless the answer Section m above shall be final twenty specific requirement. consents to this Order, the answer shall, (20) days from the date of this Order

2. If PG&E considers that in writing and under oath or without further order or proceedings. If implementation of any of the affirmation, specifically set forth the an extension of time for requesting a requirements described in Attachment 1 matters of fact and law on which the hearing has been approved, the to this Order would adversely impact Licensee or other person adversely provisions specified in Section HI shall safe storage of spent fuel, PG&E must affected relies and the reasons as to why be final when the extension expires, if notify the Commission, within twenty the Order should not have been Issued. a hearing request has not been received.

(20) days of this Order, of the adverse Any answer or request for a hearing An answer or a request for hearing shall safety impact, the basis for its shall be submitted to the Secretary, not stay the immediate effectiveness of determination that the requirement has Office of the Secretary of the this order.

an adverse safety impact, and either a Commission, U.S. Nuclear Regulatory Dated this Sth day of May 2005.

proposal for achieving the same Commission, ATTN: Rulemakings and For the Nuclear Regulatory Conunission.

objectives specified in the Attachment 1 Adjudications Staff, Washington, DC requirement in question or a schedule Margaret V.Federline, 20555. Copies also shall be sent to the Acting Director, Office ofNuclearMaterial for modifying the facility to address the Director, Office of Nuclear Material adverse safety condition. If neither Safety and Safeguards.

Safety and Safeguards, U.S. Nuclear IFR Doc. E5-2344 Filed 5-11-05; 8:45 am]

approach is appropriate, the PG&E must Regulatory Commission, Washington, supplement its response to Condition BILLING CODE 7590-01-P DC 20555, to the Director, Office of B.1 of this Order to identify the Enforcement at the same address, to the condition as a requirement with which Assistant General Counsel for Materials it cannot comply, with attendant NUCLEAR REGULATORY Litigation and Enforcement at the same COMMISSION justifications as required in Condition address, to the Regional Administrator B.i. for NRC Region IV at 611 Ryan Plaza [Docket No. 50-387 and 50-388]

C.1. PG&E shall, within twenty (20) Drive, Suite 400, Arlington, TX 76011-days of the date of this Order, submit to 4005, and to the Licensee if the answer Susquehanna Steam Electric Station, the Commission, a schedule for or hearing request is by a person other Units 1 and 2; Notice of Consideration achieving compliance with each than the Licensee. Because of potential of Issuance of Amendment to Facility requirement described in Attachment 1. disruptions in delivery of mail to United Operating License, Proposed No

2. PG&E shall report to the States Government offices, it is Significant Hazards Consideration Commission when they have achieved requested that answers and requests for Determination, and Opportunity for a full compliance with the requirements hearing be transmitted to the Secretary Hearing described in Attachment 1. of the Commission, either by means of D. Notwithstanding the provisions of The U.S. Nuclear Regulatory 10 CFR 72.186, all measures facsimile transmission to 301-415- Commission (the Commission) is implemented or actions taken in 1101, or by e-mail to considering issuance of an amendment response to this Order shall be heazingdocket~nrc.govand also to the to Facility Operating License No. NPF-maintained until the Commission Office of the General Counsel, either by 14 and NPF-22, issued to PPL determines otherwise. means of facsimile transmission to 301- Susquehanna, LLC (PPL, the licensee),

PG&E's response to Conditions B.1, 415-3725, or by e-mail to for operation of the Susquehanna Steam B.2, C.1, and C.2, shall be submitted in OGCMailCenternrc.gov.If a person Electric Station, Units I and 2, located accordance with 10 CFR 72.4. In other than PG&E requests a hearing, that in Berwick, Pennsylvania.

addition, submittals that contain person shall set forth with particularity The proposed amendment would Safeguards Information shall be the manner in which his interest is revise the Technical Specification (TS) properly marked and handled in adversely affected by this Order and 3.8.4, "DC Sources-Operating," to accordance with 10 CFR 73.21. shall address the criteria set forth in 10 address new required actions for the The Director, Office of Nuclear CFR 2.714(d). condition in which a 125 volt direct Material Safety and Safeguards, may, in If a hearing is requested by the current (VDC) charger is taken out of writing, relax or rescind any of the Licensee or a person whose interest is service for the purposes of a special above conditions upon demonstration adversely affected, the Commission will inspection and related activities. The by the Licensee of good cause. issue an Order designating the time and proposed changes would be in effect