ML102460535
| ML102460535 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 09/03/2010 |
| From: | Matthew Smith NRC/OGC |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| 50-275-LR, 50-323-LR, ASLBP 10-900-01-LR-BD01, RAS 18549 | |
| Download: ML102460535 (7) | |
Text
September 3, 2010 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
)
PACIFIC GAS AND ELECTRIC COMPANY ) Docket Nos. 50-275-LR/ 50-323-LR
)
(Diablo Canyon Nuclear Power Plant, )
Units 1 and 2) )
NRC STAFFS REPLY TO THE SAN LUIS OBISPO MOTHERS FOR PEACES ANSWER TO THE NRC STAFFS PETITION FOR INTERLOCUTORY REVIEW Pursuant to 10 C.F.R. §§ 2.341(b)(3) and (f)(2), the Nuclear Regulatory Commission (NRC) staff (Staff) hereby replies to the San Luis Obispo Mothers for Peaces (SLOMFP)
Answer1 to the NRC Staffs Petition for Interlocutory Review.2 SLOMFPs arguments do not refute the Staffs position that the appealed Order3 will have a pervasive and unusual effect on this proceeding. In addition, SLOMFPs arguments contravene the fundamental scope of license renewal proceedings and the Commissions rules governing the NRCs environmental review of license renewal applications. The Commission should, therefore, grant the Staffs Petition for Interlocutory Review.
In its Answer, SLOMFP declines to respond to the Staffs arguments regarding the appropriateness of interlocutory review because, in SLOMFPs view, the issue of whether the 1
San Luis Obispo Mothers for Peaces Response to NRC Staffs Petition for Interlocutory Review of LBP-10-15 Regarding Contentions TC-1 and EC-1 (Aug. 30, 2010) (Agency Document Access
& Management System ("ADAMS") Accession No. ML102380653) (SLOMFP Answer).
2 NRC Staff's Petition for Interlocutory Review of Atomic Safety and Licensing Board Decision (LBP-10-15) Admitting an Out of Scope Safety Contention And Improperly Recasting an Environmental Contention (Aug. 19, 2010) (ADAMS Accession No. ML102310565) (Petition for Interlocutory Review).
3 Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-10-15, 72 NRC __ (Aug. 4, 2010)(slip op.) (Order).
Staff has justified interlocutory review is moot in light of the Applicants appeal under 10 C.F.R.
§ 2.311.4 The Applicant, Pacific Gas & Electric Company (PG&E), appealed under § 2.311 because it opposed admission of all contentions, whereas the Staff appealed under § 2.341 because the Staff only opposed part of the Order. SLOMFPs statement could be a suggestion that the Commission should consider the Staffs § 2.341 appeal under the more lenient standards of § 2.311.5 In that event, the Staff notes that the Commission has very broad discretion in considering appeals6 and maintains that its Petition for Interlocutory Review meets both standards.7 However, the Staff disagrees with any suggestion that PG&Es appeal mooted the underlying subject matter of the Staffs Petition for Interlocutory Review.8 While PG&E may have also appealed the Order, the Order is currently in effect. Consequently, the Petition for Interlocutory Review seeks redress from an ongoing controversy and is not moot.9 Substantively, SLOMFP contends that the Staffs interpretation of 10 C.F.R. § 54.29(a)(1) would read the phrase managing the effects of aging out of that regulation.10 But, the NRC Staff has never taken such a position. Rather, the Staff has consistently maintained 4
SLOMFP Answer at 1 (citing Applicants Brief in Support of Appeal from LBP-10-15 (Aug. 16, 2010) (ADAMS Accession No. ML102280603)).
5 The Applicant makes a similar claim in its Answer. Applicants Answer in Support of the NRC Staff Petition for Interlocutory Review of LBP-10-15, at 2, 4 (Aug. 30, 2010) (ADAMS Accession No. ML102420324).
6 E.g. Entergy Nuclear Operations, Inc. (Indian Point Nuclear Generating Units 2 and 3), CLI-09-6 69 NRC, 128, 138 (2009) (describing the Commissions inherent supervisory authority over appeals).
7 While 10 C.F.R. § 2.341(f)(2)(ii) requires an appellant to demonstrate both a legal error and a substantial impact on the proceeding, 10 C.F.R. § 2.311(d) only requires an appellant to demonstrate a legal error. Thus, the Staffs Petition for Interlocutory review, which meets the standard of § 2.341(f)(2)(ii),
also meets the requirements of § 2.311(d).
8 See In re Campbell, 628 F.2d 1260, 1262 (9th Cir. 1980); Kodiak Oil Field Haulers, Inc. v.
Teamsters Union Local No. 959, 611 F.2d 1286, 1290 (9th Cir. 1980) (noting that generally, when a claim becomes moot in federal court, the court loses jurisdiction to decide the merits of that claim).
9 See Calvert Cliffs 3 Nuclear Project, LLC, and Unistar Nuclear Operating Services, LLC (Calvert Cliffs Nuclear Power Plant, Unit 3), LBP-09-15, 70 NRC 198, 210 (2009) (noting that the NRC generally adheres to the mootness doctrine and only considers live cases or controversies in its proceedings).
10 SLOMFP Answer at 2.
that 10 C.F.R. § 54.29(a) requires a license renewal applicant to demonstrate that its plan to manage the effects of aging during the period of extended operation [is] adequate.11 Thus, contrary to SLOMFPs assertion, the Staffs interpretation of § 54.29(a) specifically includes the phrase manage the effects of aging. As noted in the Staffs Petition for Interlocutory Review, a substantial volume of Commission precedent and authority confirms this understanding of 10 C.F.R. §54.29.12 SLOMFP also argues that its contention fits into this definition because it only challenges how PG&Es plan to manage aging accounts for current problems with management of safety equipment.13 But, the precedent cited by the Staff, as well as 10 C.F.R.
§ 54.30(b), clearly indicate that current compliance issues are outside the scope of license renewal and, as a result, PG&Es plan need not address them.14 Next, SLOMFP argues that because the Staff did not previously argue that the word will in § 54.29(a) could mean a statement of intent instead of a statement of what will occur in the future, the argument should be rejected out of hand pursuant to 10 C.F.R. § 2.341(b)(5).15 But, that section does not prohibit parties from appealing matters that a presiding officer raised sua sponte. Although, no party had previously discussed the meaning of the term will either through pleadings or oral arguments, the Order interpreted the word will in § 54.29(a) to mean that actions will actually be taken.16 As discussed in the Staffs Petition for Interlocutory Review, the Boards interpretation of the word will represents a significant departure from prior Commission statements on the meaning of § 54.29(a).17 Consequently, the Petition for 11 Petition for Interlocutory Review at 6.
12 Id. at 8-18 13 SLOMFP Answer at 3.
14 Petition for Interlocutory Review at 8-18.
15 SLOMFP Answer at 2.
16 Order at 81.
17 Petition for Interlocutory Review at 8-18.
Interlocutory Review represented the Staffs first opportunity to challenge this reading of the word will, by the Board or any party, and § 2.341(b)(5) does not prohibit this challenge.
SLOMFP also contends that the Staffs interpretation of the word will in § 54.29(a) is inconsistent with the Commissions interpretation of that word in Public Service Company of New Hampshire (Seabrook Station, Units 1 and 2), CLI-88-07, 28 NRC 271, 273 (1988). But, Seabrook supports the Staffs position. Seabrook did not require an applicant to prove what would occur in the future; it only required the applicant to show that its plan was adequate. In Seabrook, the Commission considered the question of whether an applicant for an initial license had provided reasonable assurance that adequate funds will be available so that safe decommissioning will be reasonably assured in the event that low power operation has occurred and a full power license is not granted for Seabrook Unit 1.18 The Commission stated that the applicant could provide a basis for this reasonable assurance finding by providing adequate documentation of their plan and appropriate commitments under that plan to provide reasonable assurance that adequate funding for decommissioning will be available.19 As a result, Seabrook supports the Staffs view that the similar language in § 54.29(a) only requires PG&E to produce an adequate plan, not prove that it will actually implement that plan.
Last, SLOMFP claims that the Staff does not appear to have a real dispute with the applicability of 40 C.F.R. § 1502.22, a regulation promulgated by the Council on Environmental Quality (CEQ), to this case.20 That regulation would allow an applicant to decline to provide environmental information to the NRC if it were too costly to obtain. SLOMFP argues that the Staff has implicitly conceded that an evaluation of cost is relevant in determining whether an applicant has met NRC regulations. SLOMFP draws this conclusion from the Staffs position 18 Seabrook, CLI-88-07, 28 NRC at 273.
19 Id. (emphasis added).
20 SLOMFP Answer at 4.
that the NRC need not await the results of long-term seismic studies to complete its environmental review on this application. The Staff took this position, in part, because an agency must have some discretion to draw the line and move forward with respect to conducting further research on technical matters, a practice SLOMFP asserts involves cost analysis.21 But, the Staff has not claimed that an evaluation of costs is relevant in meeting the requirements of Part 51. Rather, the Staff only indicated that a demonstration that future information would not change the conclusions in an application would satisfy the NRCs regulations without awaiting further study on that issue. 22 Thus, the Staffs dispute with the applicability of 40 C.F.R. § 1502.22 is genuine. The Commission has never adopted that regulation, and application of this CEQ regulation to this proceeding could contravene existing NRC regulations.23 For the foregoing reasons and for the reasons set out in the Staff's Petition for Interlocutory Review, the Commission should grant interlocutory review of the Order.
Respectfully submitted,
/Signed (electronically) by/
Maxwell C. Smith Counsel for NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15D21 Washington, DC 20555-0001 (301) 415-1246 maxwell.smith@nrc.gov Dated at Rockville, Maryland this 3rd day of September, 2010 21 SLOMFP Answer at 4 (quoting NRC Staffs Answer to the San Luis Obispo Mothers for Peace Request for Hearing and Petition to Intervene, at 30 (Apr. 16, 2010) (ADAMS Accession No. ML101060667) (Staff Answer) (quoting Entergy Nuclear Generation Co. and Entergy Nuclear Operation, Inc. (Pilgrim Nuclear Power Station, CLI-10-11, 71 NRC __ (March 26, 2010) (slip. op. at 37))).
22 Staff Answer at 30.
23 Petition for Interlocutory Review at 23-25
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
)
PACIFIC GAS AND ELECTRIC COMPANY ) Docket Nos. 50-275-LR/ 50-323-LR
)
(Diablo Canyon Nuclear Power Plant, )
Units 1 and 2) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing NRC STAFFS REPLY TO THE SAN LUIS OBISPO MOTHERS FOR PEACES ANSWER TO THE NRC STAFFS PETITION FOR INTERLOCUTORY REVIEW, dated September 3, 2010, have been served upon the following by the Electronic Information Exchange, this 3rd day of September, 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 Mail Stop O-15D21 Washington, DC 20555-0001 (301) 415-1246 maxwell.smith@nrc.gov