ML11311A285

Applicant'S Reply to Motion for Leave to Supplement Basis

ML11311A285
Person / Time
Site:	Diablo Canyon
Issue date:	11/07/2011
From:	Post J, Repka D, Tanya Smith Pacific Gas & Electric Co, Winston & Strawn, LLP
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 21388, 50-275-LR, 50-323-LR, ASLBP 10-900-01-LR-BD01
Download: ML11311A285 (5)

Text

November 7, 2011 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of: )

)

PACIFIC GAS AND ELECTRIC ) Docket No. 50-275-LR COMPANY ) Docket No. 50-323-LR

)

(Diablo Canyon Power Plant, Units 1 and 2) )

APPLICANTS REPLY TO MOTION FOR LEAVE TO SUPPLEMENT BASIS On October 28, 2011, San Luis Obispo Mothers for Peace (SLOMFP) filed a Motion1 seeking to provide further support for their proposed contention filed on August 11, 2011, related to environmental implications of the Fukushima accident. The proffered supplement is the Commissions Staff Requirements Memorandum (SRM), SRM/SECY 0124,2 addressing the recommendations of the NRCs Near-Term Task Force Report on the Fukushima accident. Pacific Gas and Electric Company (PG&E) does not object to the Motion to supplement the basis for the proposed contention. However, PG&E continues to oppose admissibility of the proposed contention. The SRM does not establish an admissible contention under the National Environmental Policy Act (NEPA).

As discussed in PG&Es Response to the proposed contention,3 SLOMFP has not established a genuine dispute with the license renewal Environmental Report. Neither the 1

San Luis Obispo Mothers for Peaces Motion for Leave to Supplement Basis of Contention Regarding NEPA Requirement to Address Safety and Environmental Implications of Fukushima Task Force Report, dated October 28, 2011 (Motion).

2 SRM/SECY-11-0124, Recommended Actions to be Taken Without Delay from the Near-Term Task Force Report, dated October 18, 2011.

3 Applicants Response to Proposed Contention, dated September 6, 2011 (Response).

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proposed contention nor the Declaration of Dr. Makhijani included with the contention drew any connection between the NRCs Near-Term Task Force Report and the issue of environmental consequences of severe accidents at Diablo Canyon Power Plant (DCPP). Response, at 13-14.

In particular, the proposed contention drew no specific connection between the Task Fore recommendations and the DCPP evaluation of Severe Accident Mitigation Alternatives (SAMAs).

As discussed in Applicants Sur-Reply,4 the Commission itself has determined that any argument that there is an obligation to supplement the environmental record under the NEPA is presently premature. Sur-Reply, at 2-4, citing CLI-11-05, slip op. 30-31. That decision was issued by the Commission with full awareness of the Near-Term Task Force Report and recommendations. The fact that the Commission has now issued an SRM to the NRC Staff on the recommendations of the Near-Term Task Force Report does not alter the conclusion that a NEPA contention is premature. The SRM does not provide any new information about environmental consequences of the events in Japan, and does not provide any new or significant environmental information germane to DCPP.5 SLOMFP suggests that the SRM undermines the basis for a recent licensing board decision finding that contentions similar to SLOMFPs contention were premature . . . .

Motion, at 2, citing, PPL Bell Bend. L.L.C. (Bell Bend Nuclear Power Plant); Luminant Generation Co., L.L.C. (Comanche Peak Nuclear Power Plant, Units 3 and 4); Energy Northwest (Columbia Generating Station); Southern Nuclear Operating Co. (Vogtle Electric Generating 4

Applicants Sur-Reply Regarding Admission of Proposed New Contention, dated September 27, 2011 (Sur-Reply).

5 See Tr. 574-75 (Oral Argument October 13, 2011) (discussing the Task Force recommendations and the concept of new and significant environmental information under NEPA).

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Plants, Units 3 and 4); Duke Energy Carolinas, L.L.C. (William States Lee Nuclear Station, Units 1 and 2), LBP-11-27, ___ NRC ___, slip op. at 16 (Oct. 18, 2011). However, this conclusion is not explained in the Motion. In fact, the SRM directs the Staff to move forward with respect to the Task Force recommendations. But the SRM does not address environmental issues and takes no position on any NEPA issue. The rationale of the licensing board in LBP 27 remains sound and would apply equally to the proposed contention in this matter.

Respectfully submitted,

/s/ signed electronically by David A. Repka Tyson R. Smith Winston & Strawn LLP 1700 K Street, NW Washington, DC 20006 Executed in accord with 10 C.F.R. 2.304(d)

Jennifer Post Pacific Gas and Electric Company 77 Beale St., B30A San Francisco, CA 94105 COUNSEL FOR THE PACIFIC GAS AND ELECTRIC COMPANY Dated at Washington, District of Columbia this 7th day of November 2011 3

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of: )

)

PACIFIC GAS AND ELECTRIC ) Docket No. 50-275-LR COMPANY ) Docket No. 50-323-LR

)

(Diablo Canyon Power Plant, Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of APPLICANTS REPLY TO MOTION FOR LEAVE TO SUPPLEMENT BASIS in the captioned proceeding have been served via the Electronic Information Exchange (EIE) this 7th day of November 2011, which to the best of my knowledge resulted in transmittal of the foregoing to those on the EIE Service List for the captioned proceeding.

Office of Commission Appellate U.S. Nuclear Regulatory Commission Adjudication Office of the Secretary of the Commission U.S. Nuclear Regulatory Commission Mail Stop O-16C1 Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ocaamail@nrc.gov Hearing Docket E-mail: hearingdocket@nrc.gov Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop - T-3 F23 Office of the General Counsel U.S. Nuclear Regulatory Commission Mail Stop O-15D21 Washington, DC 20555-0001 Washington, DC 20555-0001 Alex S. Karlin, Chair Susan Uttal, Esq.

Nicholas G. Trikouros Lloyd Subin, Esq.

Paul B. Abramson Maxwell Smith, Esq.

Catherine Kanatas, Esq.

E-mail: Alex.Karlin@nrc.gov E-mail: Nicholas.Trikouros@nrc.gov E-mail: Susan.Utall@nrc.gov E-mail: Paul.Abramson@nrc.gov E-mail: Lloyd.Subin@nrc.gov E-mail: Maxwell.Smith@nrc.gov E-mail: catherine.kanatas@nrc.gov OGC Mail Center : OGCMailCenter@nrc.gov 1

Diane Curran Harmon, Curran, Spielberg, & Eisenberg, L.L.P.

1726 M St., NW, Suite 600 Washington, DC 20036 E-mail: dcurran@harmoncurran.com Respectfully submitted,

/s/ signed electronically by David A. Repka Winston & Strawn LLP 1700 K Street, NW Washington, DC 20006 COUNSEL FOR PACIFIC GAS AND ELECTRIC COMPANY 2

DC:691977.1