ML102880760
| ML102880760 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 10/15/2010 |
| From: | Matthew Smith NRC/OGC |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| 50-275-LR, 50-323-LR, ASLBP 10-900-01-LR-BD01, RAS 18836 | |
| Download: ML102880760 (21) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
)
PACIFIC GAS & ELECTRIC COMPANY ) Docket Nos. 50-275-LR
) 50-323-LR (Diablo Canyon Nuclear Power Plant, )
Units 1 and 2) )
NRC STAFFS REPLY BRIEF IN OPPOSITION TO WAIVER OF 10 C.F.R. § 51.53(C)(2) AND 10 C.F.R. PART 51, SUBPART A, APPENDIX B AS TO CONTENTION EC-2 Maxwell C. Smith Catherine E. Kanatas Susan Uttal Lloyd B. Subin Counsel for NRC Staff October 15, 2010
TABLE OF CONTENTS PAGE TABLE OF AUTHORITIES ........................................................................................................... ii INTRODUCTION .......................................................................................................................... 1 DISCUSSION ................................................................................................................................ 2 I. NRCs Waiver Standard Under 10 C.F.R. § 2.335 and Millstone ...................................... 2 II. SLOMFP Has Not Met the First or Fourth Millstone Factor............................................... 3 A. The Partial Drain-down Scenarios Discussed in NUREG-1738 Do Not Undermine the Current GEISs Conclusions or Raise a Significant Regulatory Issue ...................................................................................................................... 4 B. NUREG-1738s Statement About Other Causative Factors Does Not Undermine the Current GEISs Conclusions or Raise a Significant Regulatory Issue ...................................................................................................................... 7 C. Waiver of Appendix B and 10 C.F.R. § 51.53(c)(2) is Not Justified Because Analyses and Mitigation Measures Subsequent to NUREG-1738 Confirm that the Risk from a SFP Fire is Low .......................................................................... 11 III. At Most, SLOMFPs Waiver Petition Only Meets the Second and Third Millstone Factors .................................................................................................... 12 A. The Second Millstone Factor ............................................................................... 12 B. The Third Millstone Factor ................................................................................... 13 IV. New Information or Changed Circumstances is Not NRCs Standard for Waiver ........... 14 CONCLUSION ............................................................................................................................ 15
TABLE OF AUTHORITIES Page JUDICIAL DECISIONS Orange County, North Carolina v. NRC, 47 Fed. Appx. 1 (D.C. Cir. 2002) .................................. 9 ADMINISTRATIVE DECISIONS Commission Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), CLI-01-11, 53 NRC 370 (2001) ................................................................................................................... 8, 9 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3),
CLI-05-24, 62 NRC 551 (2005) ............................................................................................passim Florida Power & Light Company (Turkey Point Nuclear Generating Plant, Units 3 and 4),
CLI-01-17, 54 NRC 3 (2001) ........................................................................................... 12, 13, 14 Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
Unpublished Order (Aug. 31, 2010) (ADAMS Accession No. ML1024301450) ............................ 1 Atomic Safety and Licensing Board Carolina Power & Light Co. (Shearon Harris Nuclear Power Plant), LBP-01-9, 53 NRC 239 (2001) ....................................................................................................................... 9 Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
LBP-10-15, 72 NRC __, (Aug. 4, 2010)(slip op.) .......................................................................... 3 REGULATIONS 10 C.F.R. § 2.335.................................................................................................................passim 10 C.F.R. Part 51, Subpart A, Appendix B ...........................................................................passim 10 C.F.R. § 51.53(c)(2) ........................................................................................................passim 10 C.F.R. § 51.92........................................................................................................................ 14 10 C.F.R. § 51.92(a)(2) ............................................................................................................... 14
- iii -
FEDERAL REGISTER NOTICES The Attorney General of Commonwealth of Massachusetts, The Attorney General of California; Denial of Petitions for Rulemaking, 73 Fed. Reg. 46204 (Aug. 8, 2008) ............passim Final Rule, Nuclear Power Plant License Renewal, 56 Fed. Reg. 64,943 (Dec. 13, 1991) ........ 13 Revised License Renewal Rule, 60 Fed. Reg. 22,461 (May 8, 1995) ........................................ 13 MISCELLANEOUS Applicants Brief in Opposition to a Waiver for Contention EC-2 (Sep. 24, 2010)
(ADAMS Accession No. ML1026707360) ............................................................................passim Letter from Jill Zamek and Jane Swanson, San Luis Obispo Mothers for Peace, to Secretary, U.S. NRC, Draft revision to the Generic Environmental Impact Statement for License Renewal of Nuclear Plants, NUREG-1437, Revision 1 (GEIS)
(Jan. 12, 2010) (ADAMS Accession No. ML100150092) .............................................................. 8 NRC Staffs Brief in Opposition to Waiver of 10 C.F.R. §§ 51.53(c)(2) and 10 C.F.R. Part 51, Subpart A, Appendix B as to Contention EC-2 (Sep. 24, 2010)
(ADAMS Accession No. ML1026707300) ............................................................................passim NUREG-1353, Regulatory Analysis for the Resolution of Generic Issue 82, Beyond Design Basis Accidents in Spent Fuel Pools, (Apr. 1989) ....................................................... 3-4 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (May 1996) (ADAMS Accession No. ML040690705) ..................................passim NUREG-1437, Rev. 1, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Draft Report for Comment (July 2009)
(ADAMS Accession No. ML091520164) ..............................................................................passim NUREG-1738, Technical Study of Spent Fuel Pool Accident Risk at Decommissioning Nuclear Power Plants, at 3-7 (Feb. 2001) (ADAMS Accession No. ML010430066) ...........passim Request for Hearing and Petition to Intervene by San Luis Obispo Mothers for Peace (March 22, 2010) (ADAMS Accession No. ML1008104410) ........................................................ 2 San Luis Obispo Mothers for Peaces Brief Regarding the NRCs Duty to Waive 10 C.F.R.
§ 51.53(c)(2)and 10 C.F.R. Part 51 Subpart A, Appendix B, in Order to Allow Consideration of Environmental Impacts of Earthquakes on Spent Fuel Pool Storage at the Diablo Canyon Nuclear Power Plant (Sep. 24, 2010) (ADAMS Accession No. ML1026707580) ...passim 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) (Mar. 22, 2010)
(ADAMS Accession No. ML1008104420) ............................................................................passim
October 15, 2010 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION In the Matter of )
)
PACIFIC GAS & ELECTRIC COMPANY ) Docket Nos. 50-275-LR
) 50-323-LR (Diablo Canyon Nuclear Power Plant, )
Units 1 and 2) )
NRC STAFFS REPLY BRIEF IN OPPOSITION TO WAIVER OF 10 C.F.R. § 51.53(C)(2) AND 10 C.F.R. PART 51, SUBPART A, APPENDIX B AS TO CONTENTION EC-2 INTRODUCTION Pursuant to the Commissions August 31, 2010 Order in this proceeding, the Staff hereby files its reply brief in opposition to the petition to waive Appendix B of Subpart A of 10 C.F.R. Part 51, including Table B-1, and 10 C.F.R. § 51.53(c)(2).1 The San Luis Obispo Mothers for Peace (SLOMFP) filed the petition to waive these NRC regulations to permit litigation of Environmental Contention 2 (EC-2) in the license renewal proceeding for Diablo Canyon Nuclear Power Plant (DCNPP).2 Table B-1 codifies the determination in the NRCs 1
Order at 1 (August 31, 2010) (Agency Document Access & Management System (ADAMS)
Accession No. ML1024301450) (Order). The parties have already filed the initial briefs the Order requested. NRC Staffs Brief in Opposition to Waiver of 10 C.F.R. §§ 51.53(c)(2) and 10 C.F.R. Part 51, Subpart A, Appendix B as to Contention EC-2 (Sep. 24, 2010) (ADAMS Accession No. ML1026707300)
(NRC Staffs Waiver Brief); Applicants Brief in Opposition to a Waiver for Contention EC-2 (Sep. 24, 2010) (ADAMS Accession No. ML1026707360) (PG&E Waiver Brief); San Luis Obispo Mothers for Peaces Brief Regarding the NRCs Duty to Waive 10 C.F.R. § 51.53(c)(2)and 10 C.F.R. Part 51 Subpart A, Appendix B, in Order to Allow Consideration of Environmental Impacts of Earthquakes on Spent Fuel Pool Storage at the Diablo Canyon Nuclear Power Plant (Sep. 24, 2010) (ADAMS Accession No. ML1026707580) (SLOMFP Waiver Brief). As previously discussed, the Staff agrees with the Applicant in part and agrees with SLOMFP in part.
2 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) (Mar. 22, 2010) (ADAMS Accession No. ML1008104420)
(Waiver Petition). EC-2 states: PG&Es Environmental Report is inadequate to satisfy NEPA because it (continued. . .)
1996 Generic Environmental Impact Statement for License Renewal of Nuclear Plants (Current GEIS)3 that the environmental impacts of on-site spent fuel storage during the period of extended operation (PEO) will be small.4 The NRC based this conclusion, in part, on the low probability of a fire from a spent fuel pool (SFP) accident.5 To support the waiver petition, SLOMFP relies on information in the draft update to the Current GEIS (Draft GEIS).6 Specifically, SLOMFP argues that the Draft GEISs reliance on NUREG-1738, Technical Study of Spent Fuel Pool Accident Risk at Decommissioning Nuclear Power Plants (NUREG-1738), undermines the Current GEISs conclusions regarding SFP storage during the PEO.7 But, SLOMFP primarily raises issues that the Commission has already considered and found do not affect the conclusions in the Current GEIS.8 Thus, SLOMFP has not met the NRCs waiver standard.
(. . .continued) does not address the airborne environmental impacts of a reasonably foreseeable spectrum of spent fuel pool accidents, including accidents caused by earthquakes. Request for Hearing and Petition to Intervene by San Luis Obispo Mothers for Peace (March 22, 2010), at 16 (ADAMS Accession No. ML1008104410) (Petition to Intervene).
3 NUREG-1437, Generic Environmental Impact Statement for License Renewal of Nuclear Plants (May 1996) (ADAMS Accession No. ML040690705) (Current GEIS).
4 Current GEIS at 6 6-75, 6-85. Although SLOMFP also seeks a waiver of 10 C.F.R. § 51.53(c)(2), which prohibits challenges to the Waste Confidence rule, SLOMFP has not directed any of its arguments toward that rule. SLOMFP Waiver Petition at 16-20. For a further discussion of this issue see NRC Staffs Waiver Brief at 11 n.43.
5 Current GEIS at 6 6-75, 6-85.
6 SLOMFP Waiver Brief at 16 (citing NUREG-1437, Rev. 1, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Draft Report for Comment (July 2009) (ADAMS Accession No. ML091520164) (Draft GEIS)).
7 Id. (citing NUREG-1738, Technical Study of Spent Fuel Pool Accident Risk at Decommissioning Nuclear Power Plants, at 3-7 (Feb. 2001) (ADAMS Accession No. ML010430066) (NUREG-1738)).
8 The Attorney General of Commonwealth of Massachusetts, The Attorney General of California; (continued. . .)
DISCUSSION I. NRCs Waiver Standard Under 10 C.F.R. § 2.335 and Millstone As previously stated in the NRC Staffs Waiver Brief, to successfully waive one of the Commissions generally applicable rules, a party to the proceeding must meet the criteria in 10 C.F.R. § 2.335 and show that (1) application of the rule to the proceeding will not serve the purposes for which the Commission adopted the rule; (2) special circumstances, which the Commission did not consider when it promulgated the rule, exist; (3) the special circumstances uniquely apply to the proceeding; and (4) waiver is necessary to reach an issue of regulatory significance (Millstone Factors).9 With respect to the first factor, the purpose of Appendix B is to apply generic determinations where the generic determinations are appropriate.10 To justify waiver, each factor must be met.11 II. SLOMFP Has Not Met the First or Fourth Millstone Factor In its waiver brief, SLOMFP relied on numerous statements from NUREG-1738 and the Draft GEIS to demonstrate that its waiver petition meets the first and fourth Millstone factors.
The NRC Staffs Waiver Brief anticipated and responded to most of these arguments.12 As
(. . .continued)
Denial of Petitions for Rulemaking, 73 Fed. Reg. 46,204, 46,205 (2008).
9 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 2 and 3),
CLI-05-24, 62 NRC 551, 559-60 (2005) (emphasis in original; footnotes omitted).
10 Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-10-15, 72 NRC __ (Aug. 4, 2010) (slip op. at 41); NRC Staffs Waiver Brief at 11.
11 Millstone, CLI-05-24, 62 NRC at 560.
12 The NRC Staffs Waiver Brief rebuts many of the arguments SLOMFP advances. The Draft GEIS does not exclude DCNPP, compare SLOMFP Waiver Brief at 16 with NRC Staffs Waiver Brief at 17-19, 33-38; the Current GEIS already recognizes severe earthquakes as a dominate contributor to SFP accident risk, compare SLOMFP Waiver Brief at 16 with NRC Staffs Waiver Brief at 15 (citing NUREG-(continued. . .)
discussed below, none of the other arguments raised in SLOMFPs Waiver Brief demonstrate that waiver is necessary to effectuate Table B-1s purpose or to reach a significant issue. In fact, the Commission has already considered and rejected these arguments in another context.
Therefore, waiver of Table B-1 is not justified.13 A. The Partial Drain-down Scenarios Discussed in NUREG-1738 Do Not Undermine the Current GEISs Conclusions or Raise a Significant Regulatory Issue According to SLOMFP, NUREG-1738 indicates that partial drainage of a spent fuel pool is a more severe accident case than total drainage, which implies that less severe (and therefore more probable) earthquakes may present a greater risk than the most severe earthquakes.14 However, SLOMFPs assertion does not show that the Current GEISs conclusions regarding SFP storage during the PEO do not apply to DCNPP.
First, NUREG-1738 did not necessarily find that partial drainage of a SFP, or partial drain-down, is a more severe accident than total drainage. In fact, NUREG-1738 notes that depending on the length of time the fuel has been in the pool, total drainage may result in a faster heat-up time than partial drainage.15 Moreover, SLOMFP has not provided any basis for
(. . .continued) 1353, Regulatory Analysis for the Resolution of Generic Issue 82, Beyond Design Basis Accidents in Spent Fuel Pools, (Apr. 1989) at ES-4); although the Draft GEIS refers to NUREG-1738 as the key document published since the Current GEIS for evaluating SFP risks, the Draft GEIS relies on many other studies that fully support its conclusions for all plants, including DCNPP, compare SLOMFP Waiver Brief at 2, 8, 16 with NRC Staffs Waiver Brief at 33-38; the generic mitigation measures discussed in the Draft GEIS apply to DCNPP and DCNPP has a unique licensing basis to account for seismic risk, compare SLOMFP Waiver Brief at 16-18 with NRC Staffs Waiver Brief at 28-29, 35-38; and the burden to show that the conclusions in the Current GEIS are faulty rests with SLOMFP, compare SLOMFP Waiver Brief at 18 with NRC Staffs Waiver Brief at 22-23.
13 See supra note 4 (discussing why waiver of 10 C.F.R. § 51.53(c)(2) is not justified).
14 SLOMFP Waiver Brief at 16-17.
15 NUREG-1738 at A1A A1A-6.
its assertion that, in light of the consequences of partial drain-down, less severe earthquakes may present greater risk than more severe earthquakes.
In any event, the Commission has already explicitly rejected the argument that the possibility of a partial SFP drain-down invalidates the conclusions in the Current GEIS. In 2008, the Commission considered two rulemaking petitions that asked the NRC to revoke its regulations incorporating the Current GEISs conclusion that the impacts of on-site fuel storage during the PEO will be small.16 Those petitions for rulemaking alleged that in light of new and significant information, including NUREG-1738, the NRC incorrectly concluded in the Current GEIS that the impacts of SFP storage during the PEO would be small.17 Moreover, these petitions for rulemaking explicitly asked the Commission to consider, among other events, a partial drain-down in a SFP.18 In response, the Commission, relying on newer studies, found that, even in the event of a partial drain-down, there is a significant amount of time between the spent fuel becoming uncovered and the possible onset of such a zirconium fire, thereby providing a substantial opportunity for both operator and system event mitigation.19 In reaching this conclusion, the Commission emphasized the importance of using a realistic model of the heat transfer between high- and low-powered fuel assemblies to accurately assess the danger of a partial drain-down.20 This heat transfer will delay the heat-up of assemblies, and allow plant operators time 16 73 Fed. Reg. at, 46,205.
17 Id.
18 Id.
19 Id. at 46,208 (citing to studies prepared by Sandia National Laboratories).
20 Id. at 46,209.
to take additional measures to restore effective cooling.21 Moreover, the Commission noted that for very low-powered assemblies, the downward flow of air into the assemblies can also serve to cool the assembly even though the full-circulation flow path is blocked.22 Finally, the Commission noted that plants had added cooling mechanisms to their SFPs that specifically
[address] the cooling needs during partial draindown events, and would reduce the probability of a zirconium fire even during those extreme events.23 The Commission concluded that the risk of an SFP zirconium fire, whether caused by an accident or a terrorist attack, is very low. As such, the NRC's generic findings in [the Current GEIS], as further reflected in Table B-1 of appendix B to subpart A of 10 CFR part 51, remain valid.24 Thus, the possibility of a partial drain-down in the SFP neither demonstrates that the conclusions in the Current GEIS are incorrect nor constitutes a new and significant issue, in light of the Commissions previous consideration. Rather, after considering the possibility of a SFP drain-down, the Commission has reaffirmed the Current GEISs conclusion that the probability of a SFP fire is low and therefore the environmental impacts of on-site fuel storage are small for all plants.25 21 Id.
22 Id.
23 Id.
24 Id. at 46,208.
25 Current GEIS at 6 6-75, 6-85. Notably, California was a petitioner for rulemaking. 73 Fed.
Reg. at 46,204. Therefore, these issues were considered with West Coast reactors in mind.
B. NUREG-1738s Statement About Other Causative Factors Does Not Undermine the Current GEISs Conclusions or Raise a Significant Regulatory Issue SLOMFP also argues that the Current GEIS does not apply to DCNPP because the Draft GEIS incorrectly characterizes NUREG-1738 as conservative with respect to operating plants.26 According to SLOMFP, NUREG-1738 indicates that for operating plants, other causative factors besides earthquakes may play a significant role in causing accidents, thus increasing the risk of a spent fuel pool fire.27 First, flaws in the Draft GEIS are irrelevant to this proceeding. NRC regulations incorporate the Current GEIS, not the Draft GEIS.28 Second, SLOMFP misconstrues NUREG-1738, which states:
The staff found that the event sequences important to risk at decommissioning plants are limited to large earthquakes and cask drop events. For emergency planning (EP) assessments this is an important difference relative to operating plants where typically a large number of different sequences make significant contributions to risk.29 Later, NUREG-1738 explains, The scenarios leading to significant offsite consequences at a decommissioning plant are different than at an operating plant. Once fuel is permanently removed from the reactor vessel, the primary public risk in a decommissioning facility is associated with the [SFP].30 Consequently, NUREG-1738 recognizes that for operating plants, reactor accidents (i.e., those attributable to the active fuel in the reactor core inside the pressure vessel, not the passive fuel inside the SFP) contribute significantly to risk for the EP analysis. In contrast, for decommissioning plants, where the fuel is removed from the reactor 26 SLOMFP Waiver Brief at 10.
27 Id. at 17.
28 Table B-1.
29 NUREG-1738 at x.
30 Id. at 3-1.
vessel, the SFP provides the primary source for risk.31 NUREG-1738 does not suggest that a reactor accident contributes significantly to the risk of SFPs at operating reactors. NUREG-1738 only states that because decommissioning plants do not have an operating reactor, reactor accidents (i.e., those that arise from active fuel in the vessel) do not contribute to the overall risk for those plants.
Third, SLOMFPs Waiver Brief also refers to a public comment SLOMFP submitted on this topic.32 That comment concluded that this statement from NUREG-1738 demonstrates that a range of severe reactor accidents may contribute to the potential for a pool fire.33 But, the NRC has already found the probability of a severe reactor accident causing a SFP fire to be extremely low.
Specifically, the NRC directly assessed the chances of a reactor accident resulting in a SFP fire in Carolina Power & Light Company (Shearon Harris Nuclear Power Plant).34 Shearon Harris arose from an application for a license amendment to increase the SFP storage capacity at that plant.35 The Shearon Harris intervenor proposed that the probability of a reactor accident leading to a SFP fire was sufficiently high to require the NRC to prepare an EIS on the application.36 The intervenor alleged that the SFP fire could occur through a seven-step 31 Id. at x.
32 SLOMFP Waiver Brief at 10.
33 Letter from Jill Zamek and Jane Swanson, San Luis Obispo Mothers for Peace, to Secretary, U.S. NRC, Draft revision to the Generic Environmental Impact Statement for License Renewal of Nuclear Plants, NUREG-1437, revision 1 (GEIS), at 4 (Jan. 12, 2010) (ADAMS Accession No. ML100150092).
34 Carolina Power & Light Company (Shearon Harris Nuclear Power Plant), CLI-01-11, 53 NRC 370 (2001).
35 Id. at 380.
36 Id. at 381.
accident sequence: (1) a degraded core accident; (2) containment failure or bypass; (3) loss of all spent fuel cooling and makeup systems; (4) extreme radiation doses precluding personnel access; (5) inability to restart any pool cooling or makeup systems due to extreme radiation doses; (6) loss of most or all pool water through evaporation; and (7) initiation of an exothermic oxidation reaction.37 In Shearon Harris, the Atomic Safety and Licensing Board (Board) carefully evaluated each partys estimation of the probability of each of the seven events occurring.38 Ultimately, the Board concluded that the overall probability of a reactor accident causing a SFP fire is conservatively in the range described by the Staff: 2.0E-07 per reactor year (two occurrences in 10 million reactor years) or less.39 The Board found that because the chances of a reactor accident causing a SFP fire were remote and speculative, the NRC did not need to prepare an EIS for the license amendment application.40 On appeal, the Commission found the Boards decision measured and persuasive, and therefore affirmed the decision.41 The United States Court of Appeals for the District of Columbia upheld the Commissions decision on appeal.42 Notably, the Commission relied on the analysis in Shearon Harris in denying the 2008 petitions for rulemaking, which argued that the Current GEISs characterization of the 37 Id.
38 Carolina Power & Light Company (Shearon Harris Nuclear Power Plant), LBP-01-9, 53 NRC 239, 251-67 (2001).
39 Id. at 267.
40 Id. at 271.
41 Shearon Harris, CLI-01-11, 53 NRC at 387.
42 Orange County, North Carolina v. NRC, 47 Fed. Appx. 1 (2002).
environmental impacts of spent fuel storage during the PEO was incorrect.43 The Commission noted that the rulemaking petitioners relied on a scenario similar to the seven-step accident scenario considered in Shearon Harris.44 The Commission reiterated why a reactor accident was unlikely to lead to a SFP fire:
The reactor accident and containment failure must somehow lead to a loss of SFP cooling and must lead to a condition where extreme radiation levels preclude personnel access to take corrective action. There must be then an inability to restart cooling or makeup systems. There must be a loss of significant pool water inventory through evaporation (which can take substantial time).
Finally, the event must also lead to a zirconium fire.45 Additionally, the Commission noted that [t]he NRC staff expects that the conditional probability of a SFP zirconium fire, given a severe reactor accident, would be similar to that established in the Shearon Harris proceeding.46 Thus, the Commissions denial of the petitions for rulemaking considered the possibility of a reactor accident causing a SFP fire and found that, in light of the reasoning in Shearon Harris, the chances of that event occurring were very low for all plants.
Therefore, NUREG-1738s comment regarding the differences in risk between an operating reactor and a decommissioning reactor does not undercut the rationale underlying the findings in Table B-1 or demonstrate that those findings prevent the NRC from considering a significant issue. First, the Draft GEIS relies, in part, on NUREG-1738, but the Current GEIS, which is the supporting document for the findings in Table B-1, does not. Second, when read in context, NUREG-1738 states that the reactor itself is a significant contributor to risk at operating 43 73 Fed. Reg. at 46205.
44 Id. at 46210.
45 Id.
46 Id.
plants. NUREG-1738 does not indicate, as SLOMFP suggests, that the chance of a reactor accident leading to an SFP fire at an operating plant is a significant contributor to risk.47 Finally, the NRC has already thoroughly evaluated the probability of a reactor accident causing a SFP fire in the Shearon Harris proceeding and in the 2008 denial of the petitions for rulemaking.
Those evaluations determined that the likelihood of a reactor accident causing a SFP fire is very low. Consequently, the statement in NUREG-1738 provides no basis for waiving the Commissions regulations to permit litigation of EC-2.
C. Waiver of Appendix B and 10 C.F.R. § 51.53(c)(2) is Not Justified Because Analyses and Mitigation Measures Subsequent to NUREG-1738 Confirm that the Risk from a SFP Fire is Low The Commissions denial of the rulemaking petitions further outlined the Staffs consideration of the risks and impacts related to SFP storage during the PEO. Specifically, the Commission noted that since the issuance of the Current GEIS, the Staff has considered new analyses and implemented mitigation measures at all plants which ensure that the Current GEISs conclusions regarding SFP storage during the PEO are still valid.48 Further, the Commission specifically considered NUREG-1738 and determined that it was not new and significant information.49 The Commission also described the robust design features of SFPs, which help ensure that the environmental impacts of SFP storage during the PEO are small.50 Thus, substantial evidence underlies the NRCs determination that the environmental impacts of 47 SLOMFPs Waiver Brief at 5-6.
48 73 Fed. Reg. at 46,207-08.
49 Id. at 46,208.
50 Id. at 46,206. NRC Staffs Waiver Brief at 36.
on-site fuel storage during the PEO will be small.51 As a result, the findings in Table B-1 do not prevent the NRC from reaching a significant issue.
III. At Most, SLOMFPs Waiver Petition Only Meets the Second and Third Millstone Factors A. The Second Millstone Factor The second Millstone factor requires a showing of special circumstances to justify waiving a generally applicable rule.52 The Commission has stated that special circumstances are demonstrated by a lack of consideration of the issue in the rulemaking.53 The Staff recognizes that SLOMFP has arguably demonstrated special circumstances under Millstones second waiver factor.54 PG&E contends that because the Current GEIS considered a seismically-caused SFP fire, the GEIS already addresses SLOMFPs concerns.55 This argument misstates SLOMFPs claim. SLOMFP does not argue that the Current GEIS failed to consider this issue altogether.
Rather, SLOMFP claims that the analyses in the Draft GEIS and NUREG-1738 undermine that consideration in the Current GEIS.56 Logically, the NRC could not have considered these 51 SLOMFP suggests that if the Commission grants its Waiver Petition, then EC-2 could permissibly challenge the Severe Accident Mitigation Analysis for SFPs, because Table B-1 would no longer bar litigation on SFP issues. SLOMFP Waiver Brief at 19. But, this argument ignores the Commissions finding that Part 51's reference to severe accident mitigation alternatives applies to nuclear reactor accidents, not spent fuel storage accidents. Florida Power & Light Company (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 21 (2001). Thus, even if the Commission waives Table B-1, Part 51 would still not require a SAMA analysis for SFPs.
52 Millstone, CLI-05-24, 62 NRC at 560.
53 Id. at 551.
54 NRC Staffs Waiver Brief at 32-33.
55 PG&E Waiver Brief at 22.
56 SLOMFP Waiver Brief at 16.
documents in preparing the Current GEIS because both NUREG-1738 and the Draft GEIS postdate the Current GEIS. Therefore, NUREG-1738s omission of DCNPP constitutes information the Commission did not consider when it promulgated the Current GEIS.
B. The Third Millstone Factor Likewise, the Staff recognizes that SLOMFPs Waiver Petition meets the third Millstone factor. As stated above, the third Millstone factor requires the proponent of waiver to show
[special] circumstances [that] are unique to [DCNPP] rather than common to a large class of facilities.57 PG&E maintains that SLOMFP has failed to meet this factor. Specifically, PG&E argues that SLOMFP has not shown how the DCNPP SFP is unique.58 But, NUREG-1738 excludes the DCNPP SFP from its analysis.59 This raises an issue that is unique to DCNPP, as opposed to common to a large class of facilities.
Moreover, PG&E argues that this issue is not within the scope of license renewal because SLOMFP has not shown that SFP fires at DCNPP are a danger unique to the license renewal period.60 This argument misstates the scope of license renewal. Although the Commission initially limited the scope of its safety review on license renewal applications to issues with unique relevance to the PEO, the Commissions environmental review is not so limited.61 Rather, the environmental review considers the environmental impacts of continued 57 Millstone, CLI-05-24, 62 NRC at 560.
58 PG&E Waiver Brief at 25-26.
59 NUREG-1738 at ix.
60 PG&E Waiver Brief at 26.
61 Turkey Point, CLI-01-17, 54 NRC at 13; Final Rule, Nuclear Power Plant License Renewal, 56 Fed. Reg. 64,943, 64,961-62 (Dec. 13, 1991). Ultimately, the Commission retired the unique to license renewal test. Revised License Renewal Rule, 60 Fed. Reg. 22,461, 22,464 (May 8, 1995).
operation, regardless of whether they are limited to the PEO.62 SLOMFP does not need to show that the SFP issues are unique to license renewal, a requirement for a safety contention.
SLOMFP only need show an issue related to the SFP that is unique to DCNPP. NUREG-1738s exclusion of DCNPP is such a circumstance.
IV. New Information or Changed Circumstances is Not NRCs Standard for Waiver SLOMFP argues that the NRCs waiver standard is consistent with the new information or changed circumstances standard of 10 C.F.R. § 51.92(a)(2).63 That regulation requires the NRC to supplement an environmental impact statement when there are new and significant circumstances or information.64 The Staff does not agree that the NRCs waiver standard under 10 C.F.R. § 2.335 and Millstone is necessarily coextensive with the standard outlined in 10 C.F.R. § 51.92(a)(2).65 However, even if this was the standard, SLOMPFs arguments would not justify waiver. SLOMFPs arguments focus on how information in NUREG-1738 undermines the Current GEIS.66 As noted above and in the Staffs Waiver Brief, the Commission specifically considered NUREG-1738, with respect to the Current GEIS, and determined that it was not new and significant information.67 62 Turkey Point, CLI-01-17, 54 NRC at 6-7.
63 SLOMFP Waiver Brief at 13, 14.
64 10 C.F.R. § 51.92 65 The Staff recognizes its duty to supplement environmental documents when there is new and significant information and/or changed circumstances. See NRC Staffs Waiver Brief at 9 n. 38 and 18.
66 See SLOMFP Waiver Brief at 2, 5, 6, 7, 8, 10, 16, and 17. SLOMFP also argues that a 2006 report from the National Academy of Sciences undermines the Current GEIS. Id. at 7-8. However, the Commission also determined that this study was not new and significant information that undermined the validity of the Current GEIS. 73 Fed. Reg. at 46204-05. See also NRC Staffs Waiver Brief at 24 n. 112.
67 73 Fed. Reg. at 46,208.
CONCLUSION SLOMFP argues that the Current GEIS is invalid given new information in the Draft GEIS. However, the Commission has already considered much of the information SLOMFP points to and found that it did not disturb the conclusions in the Current GEIS.68 Consequently, SLOMFPs Waiver Petition has not met the first or fourth Millstone factors, and the Commission should deny the Waiver Petition.
/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 Executed in Accord with 10 CFR 2.304(d)
Catherine E. Kanatas Counsel for NRC Staff U.S. Nuclear Regulatory Commission (301) 415-2321 catherine.kanatas@nrc.gov 68 Id. at 46204.
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 BRIEF IN OPPOSITION TO WAIVER OF 10 C.F.R. § 51.53(C)(2) AND 10 C.F.R. PART 51, SUBPART A, APPENDIX B AS TO CONTENTION EC-2, dated October 15, 2010, have been served upon the following by the Electronic Information Exchange, this 15th day of October, 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: October 15, 2010