ML101190156
| ML101190156 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 04/29/2010 |
| From: | Matthew Smith NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-275-LR, 50-323-LR, ASLBP No. 10-900-01-LR-BD01, RAS 17787 | |
| Download: ML101190156 (8) | |
Text
April 29, 2010 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
PACIFIC GAS AND ELECTRIC COMPANY ) Docket Nos. 50-275/325
)
(Diablo Canyon Nuclear Power Plant )
Units 1 and 2) )
NRC STAFFS RESPONSE TO SAN LUIS OBISPO MOTHERS FOR PEACES MOTION FOR LEAVE TO REPLY TO OPPOSITIONS TO WAIVER PETITION INTRODUCTION On March 22, 2010, pursuant to 10 C.F.R. § 2.335(b), San Luis Obispo Mothers for Peace ("SLOMFP") filed a Petition for Waiver of 10 C.F.R. Part 51 Subpart A Appendix B1 and 10 C.F.R. § 51.53(c)(2) 2 (Waiver Petition)3 with respect to Pacific Gas & Electrics (PG&E or 1
10 C.F.R. Part 51 Subpart A. Appendix B (Appendix B) states the Commissions generic assessments regarding the environmental impacts of license renewal. These generic assessments are fully explained in NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (May 1996) (Agency Document Access & Management System (ADAMS) Accession No. ML040690705) (GEIS).
2 10 C.F.R. § 51.53(c)(2) excuses license renewal applicants from discussing the environmental impacts from storage of spent fuel pursuant to 10 C.F.R. § 51.23(a) and (b). In 10 C.F.R. § 51.23(a), the Commission determined that fuel could be safely stored for thirty years beyond licensed operation and that a geological repository would be available before 2025. Consequently, in 10 C.F.R. § 51.23(b), the Commission determined that a license renewal applicant, among others, need not discuss the environmental impacts of spent fuel storage after the term of operation. None of SLOMFPs arguments appeared to attack these findings. Rather, SLOMFP concentrated its discussion on the GEIS. Thus, the NRC Staff suggested that SLOMFP may have meant to challenge 10 C.F.R. §§ 51.53(c)(3) and 51.95(c),
which also relate to the GEIS. NRC Staffs Response to the Petition for Waiver of Commission Regulations Filed by San Luis Obispo Mothers for Peace, at 4 n.3 (Apr. 16, 2010) (ADAMS Accession No. ML101060657) (Staff Response).
The Applicant asserts that the Commission must waive both Appendix B and 10 C.F.R. § (continued. . .)
Applicant) application to renew its operating licenses for Diablo Canyon Nuclear Power Plant Units 1 and 2 (DCNPP).
On April 16, 2010, the Staff of the U.S. Nuclear Regulatory Commission (Staff) filed its Response to the Petition for Waiver of Commission Regulations Filed by San Luis Obispo Mothers for Peace.4 On the same day, PG&E responded to the Waiver Petition in its answer to SLOMFPs request for hearing.5 On April 23, 2010, SLOMFP filed a Motion for Leave to Reply to Oppositions Waiver Petition, under 10 C.F.R. § 2.323(b).6 In addition, pursuant to 10 C.F.R. § 2.309(h)(2),
SLOMFP filed a Reply to Oppositions to Request for Hearing, Petition to Intervene and Waiver Petition Regarding Diablo Canyon License Renewal Application.7 As the title to SLOMFPs
(. . .continued) 51.53(c)(2) in order to admit the contentions at issue. Applicants Answer to Petition to Intervene and Response to Request for Waivers, at 23 n.15 (April 16, 2010) (ADAMS Accession No. ML101060671).
("PG&E Answer"). The Applicant maintains that 10 C.F.R. § 51.23(b) states that no discussion of any environmental impacts of spent fuel storage is required for a licensing action under Part 54. Id. But, as discussed above, that section is limited to the term following the expiration of the license. Indeed, 10 C.F.R. § 51.23(c) states that [t]his section does not alter any requirements to consider the environmental impacts of spent fuel storage during the term of a reactor operating license. Thus, SLOMFPs failure to support its Waiver Petition with respect to 10 C.F.R. § 51.53(c)(2) is not fatal to its underlying contentions, to the extent those contentions challenge spent fuel storage during the period of extended operation. But, the Staff reiterates its position that SLOMFP should have instead sought a waiver of 10 C.F.R. § 51.53(c)(3), which excuses license renewal applicants from evaluating issues the Commission has already generically considered. Staff Response at 4 n.4.
3 San Luis Obispo Mothers for Peaces Petition for Waiver of 10 C.F.R. Part 51 Subpart A Appendix B and 10 C.F.R. § 51.53(c)(2), (March 22, 2010) (ADAMS Accession No. ML100810442).
4 NRC Response.
5 PG&E Answer, at 23-30, 33-36.
6 San Luis Obispo Mothers for Peaces Motion for Leave to Reply to Oppositions Waiver Petition, (April 23, 2010) (ADAMS Accession No. ML101130536) (Motion).
7 San Luis Obispo Mothers for Peaces Reply to Oppositions to Request for Hearing, Petition to Intervene and Waiver Petition Regarding Diablo Canyon License Renewal Application, (Apr. 23, 2010)
(continued. . .)
document suggests, SLOMFP intermingled its proposed reply to the responses to SLOMFPs Waiver Petition with its reply to the answers to its request for hearing. Reply at 12-16.
Pursuant to 10 C.F.R. § 2.323(c), the Staff hereby files its response to SLOMFP s Motion. For the reasons set forth below, the Atomic Safety and Licensing Board (Board) should deny the Motion. Consequently, the Board should decline to consider those portions of SLOMFPs Reply that address responses to the Waiver Petition.
DISCUSSION SLOMFP argues that the Board should grant its Motion because the contentions for which SLOMFP seeks a waiver and the Waiver Petition raise issues that are inextricably tied.
Motion at 1. These issues concern whether the NRC has adequately addressed the environmental impact of spent fuel storage in its two Generic EISs or whether they should be addressed individually in PG&Es Environmental Report. Id. at 1-2. Thus, SLOMFP asserts that the Board must permit it to reply to the Applicants and Staffs responses to the Waiver Petition, in order to ensure meaningful consideration of the admissibility of SLOMFPs Contentions. Id. at 2.
If the Commission had intended, it could have easily provided for replies to waiver petitions when it enacted 10 C.F.R. § 2.335. Indeed, the Commission has explicitly allowed for a reply in other contexts. See 10 C.F.R. § 2.309(h)(2) (permitting a petitioner to file a reply to an answer to a request for hearing); 10 C.F.R. § 2.341(b)(3) (allowing an appellant before the Commission to file a reply brief). In some circumstances, the Commissions regulations permit a reply only upon a showing of compelling circumstances. See 10 C.F.R. § 2.323(c)
(. . .continued)
(ADAMS Accession No. ML101130536) (Reply).
(authorizing a reply to a response to a motion when the movant shows compelling circumstances). But 10 C.F.R. § 2.335 does not provide any opportunity, whether upon a showing of compelling circumstances or otherwise, for reply to a response to a waiver petition.
Consequently, the regulations clearly do not contemplate a reply to a response to a waiver petition, and the Board should therefore deny SLOMFPs Motion.
Moreover, even if the Board were to consider the Motion under the compelling circumstances standard, SLOMFP has failed to produce a sufficient rationale to meet that test.
SLOMFP does not argue that the Staff or Applicant raised arguments which SLOMFP could not reasonably have anticipated. See 10 C.F.R. § 2.323(c) (listing arguments that could not reasonably have been anticipated as one example of a compelling circumstance). Rather, SLOMFP suggests that the Board should permit its reply because the Waiver Petition and underlying contentions both address similar concerns. But, to successfully waive a rule, a petition must demonstrate that in light of special circumstances, unique to the facility, application of the rule would not serve the purposes for which [it] was adopted and would prevent the NRC from considering a significant safety problem. Dominion Nuclear Connecticut, Inc.
(Millstone Nuclear Power Station, Units 2 and 3), CLI-05-24, 62 NC 551, 559-60 (2005); 10 C.F.R. § 2.335(b). Thus, to the extent admissible contentions must identify specific features of applications that may lead to material problems, the contents of a waiver petition will often overlap with those of the underlying contentions. See 10 C.F.R. § 2.309(f)(1)(i), (iv), (v), and (vi)
(requiring an admissible contention to contain a specific statement of the issue it raises, demonstrate materiality, provide the facts on which it rests, and show a genuine dispute with the application on a material issue). Therefore, the similarities between the Waiver Petition and underlying contentions hardly present compelling circumstances. Rather, most waiver petitions will likely share such similarities with their underlying contentions.
In explaining the compelling circumstances standard in a similar context, the Commission has stated that it would find compelling circumstances only where manifest injustice would occur in the absence of the relief sought. See Changes to the Adjudicatory Process, 69 Fed. Reg. 2182, 2207 (Jan. 14, 2004) (discussing motions for reconsideration).
Certainly, lacking an opportunity to reply is not a manifest injustice to SLOMFP. In fact, such a result is consistent with the waiver petition process envisioned by the Commission, as discussed below.
Under the Commission's rules, the Board makes its decision on the basis of the petition, affidavit, and any response. See 10 C.F.R. § 2.335(c). While the rules contemplate that the Commission may direct further proceedings to aid its determination if the Board certifies the matter, no additional filings (e.g. a reply) are allowed before the Board. Compare 10 C.F.R.
§ 2.335(c) with 10 C.F.R. § 2.335(d) (showing that the presiding officer rules based on the petition, affidavit and any responses, while the Commission rules on those "among other things"). Thus, all those requesting a waiver are effectively informed in advance that they must make their arguments to the Board in a single filing without a reply. See 10 C.F.R § 2.335(b).
SLOMFPs desire to reply would effectively reverse the filing order contemplated in 10 C.F.R.§ 2.335(b) and deny the other parties their procedural right to be able to respond to all of SLOMFPs filings "by counter affidavit or otherwise." See 10 C.F.R.§ 2.335(b). Thus, SLOMFPs Motion should be denied, and the Board should only consider the arguments in SLOMFPs reply to the extent they relate to the hearing request, not the Waiver Petition.
CONCLUSION For the reasons discussed above, the Motion should be denied.
Respectively submitted,
/Signed (electronically) by/
Maxwell C. Smith Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O15-D21 Washington, DC 20555 (301) 415-1246 E-Mail: Maxwell.Smith@nrc.gov Signed: April 29, 2010
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
PACIFIC GAS AND ELECTRIC COMPANY ) Docket Nos. 50-275-LR/ 50-323-LR
)
(Diablo Canyon Nuclear Power Plant, ) ASLBP No. 10-900-01-LR-BD01 Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing NRC STAFFS RESPONSE TO SAN LUIS OBISPO MOTHERS FOR PEACES MOTION FOR LEAVE TO REPLY TO OPPOSITIONS TO WAIVER PETITION, dated April 29, 2010, have been served upon the following by the Electronic Information Exchange, this 29th day of April, 2010:
Administrative Judge Office of Commission Appellate Alex S. Karlin, Chair Adjudication Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop - T-3 F23 Mail Stop - O-16G4 U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ocaamail@nrc.gov E-mail: ask2@nrc.gov Administrative Judge Office of the Secretary Nicholas G. Trikouros Attn: Rulemakings and Adjudications Staff Atomic Safety and Licensing Board Panel Mail Stop: O-16G4 Mail Stop - T-3 F23 U.S. Nuclear Regulatory Commission U.S. Nuclear Regulatory Commission Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: HEARINGDOCKET@nrc.gov E-mail: ngt@nrc.gov Administrative Judge David A. Repka, Esq.
Paul B. Abramson Tyson Smith, Esq.
Atomic Safety and Licensing Board Panel Carlos Sisco Mail Stop - T-3 F23 Winston & Strawn LLP U.S. Nuclear Regulatory Commission 101 California Street Washington, DC 20555-0001 San Francisco, CA 94111-5802 E-mail: pba@nrc.gov E-mail: drepka@winston.com trsmith@winston.com CSisco@winston.com
Jill ZamEk, Esq. Diane Curran, Esq.
San Luis Obispo Mothers for Peace Harmon, Curran, Spielberg, and Eisenberg 1123 Flora Road 1726 M Street NW Arroyo Grande, CA 93420 Suite 600 E-mail: jzk@charter.net Washington, DC 20036 E-mail: dcurran@harmoncurran.com Signed (electronically) by Maxwell C. Smith Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-1246 E-mail: Maxwell.Smith@nrc.gov Date of signature: April 29, 2010