ML11311A302
| ML11311A302 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 11/07/2011 |
| From: | Harper R NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 21383, 50-275-LR, 50-323-LR, ASLBP 10-900-01-LR-BD01 | |
| Download: ML11311A302 (10) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of )
)
Pacific Gas and Electric Company ) Docket No. 50-275-LR
)
(Diablo Canyon Nuclear Power Plant )
Units 1 and 2) ) ASLBP No. 10-890-01-LR-BD01 NRC STAFFS ANSWER TO MOTION FOR LEAVE TO SUPPLEMENT BASIS OF CONTENTION REGARDING NEPA REQUIREMENT TO ADDRESS SAFETY AND ENVIRONMENTAL IMPLICATIONS OF THE FUKUSHIMA TASK FORCE REPORT INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c), the Staff of the U.S. Nuclear Regulatory Commission (NRC Staff or Staff) answers the Motion for Leave to Supplement Basis of Contention Regarding NEPA Requirements to Address Safety and Environmental Implications of the Fukushima Task Force Report (Motion to Supplement) filed on October 28, 2011, by San Luis Obispo Mothers for Peace (SLOMFP). 1 SLOMFP asserts that the Commissions recent Staff Requirements Memorandum regarding implementation of specific Near-Term Task Force recommendation establishes the environmental significance of the Recommendations for Enhancing Reactor Safety in the 21st Century: The Near-Term Task Force Review of Insights from the Fukushima Dai-ichi Accident (TFR). In its motion to admit the new contention whose basis it is seeking to supplement, SLOMFP contended that the TFRs environmental significance requires the Applicant to discuss the TFRs findings in its Environmental Report. 2 As set forth below, the Atomic Safety and Licensing Board (Board) should deny the 1
San Luis Obispo Mothers For Peaces Motion for Leave to Supplement Basis of Contention Regarding NEPA Requirements to Address Safety and Environmental Implications of the Fukushima Task Force Report (October 28, 2011) (ADAMS Accession No. ML11301A330).
2 Contention Regarding NEPA Requirements to Address Safety and Environmental Implications of the Fukushima Task Force Report at 4 (August 18, 2011) (ADAMS Accession No. ML11236A322)
(New Contention).
Motion to Supplement because it is procedurally defective. The Motion to Supplement does not discuss the Commissions requirements for late, new, and amended contentions under 10 C.F.R. §§ 2.309(c), (f)(1), and (f)(2). Failure to discuss these requirements is grounds by itself to deny the Motion to Supplement.
Even if the Board were to overlook the procedural defects, the Motion to Supplement fails to provide sufficient information that would make the underlying contention admissible. The Motion to Supplement relies on a recent Commission Staff Requirements Memorandum, SRM-SECY-11-0124. 3 The Commissions Memorandum authorizes the Staff to initiate activities to implement certain safety recommendations from the Near-Term Fukushima Task Force Report. 4 The actual specific licensing or rulemaking activities that may in themselves trigger NEPA requirements have not yet occurred and are expected to be implemented, if necessary, within five years. Many of these activities await the development of additional information, significant input and comment opportunities from external stakeholders and the potential for further Commission involvement or approval before the activities are formally implemented. However, SLOMFP asserts that SRM-SECY-11-0124 now establishes the environmental significance of those recommendations and hence the admissibility of the underlying contention, which challenged the Applicants environmental review based on those recommendations. 5 But the Commission has already determined that those recommendations do not constitute new and significant information for the purposes of environmental analysis of renewing the license for Diablo Canyon.
Additionally, the Motion to Supplement does not establish a material dispute with the applicants License Renewal Application. The Commission has held that contentions based on 3
SRM-SECY-11-0124, Recommended Actions to Be Taken Without Delay from the Near-Term Task Force Report (Oct. 18, 2011) (ADAMS Accession No. ML112911571) (SRM-SECY-11-0124).
4 Id.
5 Id.
the currently available information regarding the Fukushima incident are premature, and the Motion to Supplement adds nothing to the currently available information. Finally, the Staff SRM-SECY-11-0124, upon which the Petitioners seek to rely, reemphasizes the Commissions intent to implement the Fukushima Task Force recommendations on all plants regardless of licensing status. For the above reasons, the Board should deny the Motion to Supplement.
BACKGROUND As relevant to the instant motion, SLOMFP is a party to this license renewal proceeding having established standing and proffering an admissible contention. 6 On August 18, 2001, SLOMFP filed the New Contention based upon the recommendations in the July 12, 2011 TFR.
SLOMFPs Motion and New Contention sought to add the following contention:
The ER for Diablo Canyon fails to satisfy the requirements of NEPA because it does not address the new and significant environmental implications of the findings and recommendations raised by the NRCs Fukushima Task Force Report. As required by NEPA and NRC regulations, these implications must be addressed in the ER. 7 The New Contention was supported by a declaration from Dr. Arjun Makhijani and referenced an attached rulemaking petition seeking to suspend any regulations that would preclude full consideration of the environmental implications of the Task Force Report. 8 On October 13, 2011 the Board held an oral argument on the New Contention, and has not yet ruled on its admissibility. On October 28, 2011 SLOMFP filed the instant motion seeking to supplement the basis for that contention.
6 Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), LBP-10-15, 72 NRC __ (Aug. 4, 2010) (slip op.); Pacific Gas & Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1
& 2), CLI-11-11, 74 NRC __ (Oct. 12, 2011) (slip op.) (affirming admission of one contention and dismissing all others).
7 New Contention at 4. The same or similar contentions were filed in other pending license renewal, combined operating license, operating license, and standardized design certification proceedings. Id. at 3.
8 Id. at 3.
ARGUMENT A. The Motion to Supplement is Procedurally Defective The Motion to Supplement is procedurally defective because it does not discuss the requirements for late, new, and amended contentions under 10 C.F.R. § 2.309(c), (f)(1), and (f)(2). The Commission has stated: New bases for a contention cannot be introduced in a reply brief, or at any other time after the date the original contentions are due, unless the petitioner meets the late-filing criteria set forth in 10 C.F.R. § 2.309(c), (f)(2). 9 Amended contentions must also satisfy the usual contention admissibility requirements set forth in 10 C.F.R. § 2.309(f)(1). 10 To meet the requirements of § 2.309(f)(1), a petitioner must produce a detailed, fact-based showing that a genuine and material dispute of law or fact exists. 11 The Motion to Supplement contains no reference to 10 C.F.R. § 2.309, nor does it discuss, in any detail, how it meets those requirements. The Motion to Supplement merely contains general references to SRM-SECY-11-0124. Such efforts fall far short of the requirements established by the Commission, and therefore the Motion to Supplement should be denied.
B. The Motion to Supplement Does Not Demonstrate that the Underlying Contention is Admissible.
Even if the Board overlooks the Motion to Supplements procedural inadequacies, it still fails to provide sufficient information to render the underlying contention admissible. The Motion to Supplement asserts: By ordering the Staff to adopt and implement numerous Task Force recommendations, including redefining what level of protection of public health and safety 9
Nuclear Management Company, LLC (Palisades Nuclear Plant), CLI-06-17, 63 NRC 727, 732 (2006).
10 Shaw Areva Mox Services, LLC (Mixed Oxide Fuel Fabrication Facility), CLI-09-2, 69 NRC 55, 66 (2009).
11 Duke Energy Corp. (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1 &
2), CLI-02-14, 55 NRC 278, 289 (2002).
should be regarded as adequate, the Commission makes clear that it believes the lessons learned from the Fukushima accident have safety and environmental significance. 12 However, since SRM-SECY-11-0124 does not make any reference to the term environmental, the Motion to Supplement points to no specific citation in SRM-SECY-11-0124 in support of SLOMFPs conclusion.
As the Staff pointed out in its response to the New Contention, the Task Force recommendations relate to the NRCs safety oversight of nuclear reactors under the Atomic Energy Act, not its environmental review of licensing actions under the National Environmental Policy Act (NEPA). 13 Likewise, SRM-SECY-11-0124 responds to the safety recommendations and does not discuss environmental matters in general or the environmental significance of any recommendation in particular. SRM-SECY-11-0124 authorizes the Staff to undertake actions such as engaging with stakeholders, developing technical basis documents, and publishing advanced notices of proposed rulemaking, as it works on implementing certain Task Force recommendations. The SRM also reaffirms the Commissions prior direction to the Staff to separately address Task Force Recommendation 1, regarding redefining what level of protection of public health and safety should be regarded as adequate. 14 These Commission directions focus solely on safety issues, and thus, SRM-SECY-11-0124 does not speak to any environmental significance of these recommendations. Therefore, contrary to SLOMFPs claim, 12 SRM-SECY-11-0124 at 2.
13 NRC Staffs Answer to Motion to Admit New Contention Regarding the Safety and Environmental Implications of the Nuclear Regulatory Commission Task Force Report on the Fukushima Dai-Ichi Accident Filed by San Luis Obispo Mothers for Peace at 13-15 (Sept. 6, 2011) (ADAMS Accession No. ML11249A216) (New Contention Response). In addition the Staff noted that while the contentions argument focused on environmental concerns, a number of statements in the contention attacked the Commissions safety regulations on the grounds that they did not adequately consider severe accidents. Id. at 10-11. The Staff reminded the Board that such claims are plainly outside the ambit of a license renewal proceeding. Id. at 10-12.
14 SRM-SECY-11-0124 at 2 (directing Staff to submit a separate Commission notation vote paper providing option to disposition Task Force recommendation 1 within 18 months of issuance of this SRM).
SRM-SECY-11-0124 provides no indication of what, if any, environmental significance the Commission ascribes to the Task Forces recommendations.
The Commission has, however, already considered the environmental significance of the Task Forces recommendations elsewhere. The Commission responded to a request from several intervenor groups (including SLOMFP) to conduct a separate generic NEPA analysis regarding whether the Fukushima events constitute new and significant information under NEPA that must be analyzed as part of the environmental review for new reactor and license renewal decisions. 15 The Commission surveyed the current information regarding the Fukushima accident, including the report from the Task Force, and concluded that the available information did not constitute the new and significant information necessary to trigger a generic NEPA review. 16 The information in SRM-SECY-11-0124 does not alter or change any of the Commissions earlier determinations regarding the environmental significance of the Task Forces recommendations. In fact, SRM-SECY-11-0124 does not address environmental concerns of any kind. Accordingly, even if the Board considered the new contention in light of the conclusory information discussed in the Motion to Supplement, the contention would still be inadmissible.
Furthermore, the Motion to Supplement also does not establish a genuine dispute. The Board in the Seabrook license renewal proceeding dismissed the exact contention asserted by intervenors here because it failed to establish a genuine dispute with Seabrooks license renewal application. 17 The Motion to Supplement does not cure this deficiency. Neither the Motion to Supplement nor SRM-SECY-11-0124 contain any information that is specific to Diablo 15 Union Elec. Co. d/b/a American Mo. (Callaway Plant, Unit 2), CLI-11-05, 74 NRC __ (Sep. 9, 2011) (slip op. at 30).
16 Id. at 6.
17 NextEra Energy Seabrook, LLC (Seabrook Station, Unit 1), LBP-11-28, 74 NRC __ (Oct. 19, 2011) (slip op. at 7).
Canyon, nor does SLOMFP attempt to link the Task Forces recommendations to any specific feature of the site-specific environmental analysis for Diablo Canyon. Therefore, the Motion to Supplement does not contain sufficient information to demonstrate a genuine dispute.
Additionally, the issues raised by SLOMFPs New Contention have not yet ripened to the point where they can appropriately be litigated in this adjudicatory proceeding. In CLI-11-05, the Commission found that because the agency did not know the full implications of the Japan events for U.S. facilities . . . any generic NEPA duty - if one were appropriate at all - does not accrue now. 18 On its face, SRM-SECY-11-0124 does not suggest that in the short period of time since CLI-11-05, the NRC has gained sufficient knowledge to trigger its NEPA obligations.
Rather, as discussed above, SRM-SECY-11-0124 is silent with respect to NEPA. In light of that silence, the obligation falls to SLOMFP to demonstrate how SRM-SECY-11-0124 constitutes sufficient information to warrant further NEPA consideration. But, the Motion to Supplement abdicates this obligation, and simply alleges that in SRM-SECY-11-0124, the Commission makes clear that it believes the lessons learned from the Fukushima accident have safety and environmental significance. 19 Such cursory allegations cannot constitute the detailed, fact-based showing needed to trigger NRC adjudicatory hearings. 20 Consequently, the Motion to Supplement does not demonstrate that sufficient information exists to litigate the underlying contention at this time.
Finally, by their terms the TFRs recommendations are intended to apply to all existing plants, regardless of their license renewal status. 21 SRM-SECY-11-0124 reemphasizes that intent and illustrates the Commissions path in actual implementation of that plan. Specific 18 Callaway, CLI-11-05, 74 NRC at __ (slip op. at 30).
19 Motion to Supplement at 2.
20 McGuire/Catawba, CLI-02-14, 55 NRC at 289.
21 New Contention Response at 6-7.
licensing or rulemaking activities that may trigger the NRCs environmental obligations have not yet occurred, but may occur as the Staff strives to complete these actions over the next five years. As a result, the Board should deny the motion.
CONCLUSION For the reasons set forth above, the Motion to Supplement is procedurally defective because it does not address the Commissions standards for augmenting a contentions factual basis. Nonetheless, even if it were appropriately before the Board, the motion does not demonstrate sufficient grounds for the relief sought. The motion references documents that do not provide any support for the underlying contention, do not demonstrate a genuine dispute unique to the Diablo Canyon license renewal proceeding, and do not show that the concerns the motion raises are ripe for adjudication. For all of these reasons, the Board should deny the motion.
Respectfully submitted,
/Signed (electronically) by/
Richard S. Harper Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-5236 E-mail: Richard.harper@nrc.gov Date of signature: November 7, 2011
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD 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) )
CERTIFICATE OF SERVICE I hereby certify that copies of the foregoing NRC STAFFS ANSWER TO MOTION FOR LEAVE TO SUPPLEMENT BASIS OF CONTENTION REGARDING NEPA REQUIREMENT TO ADDRESS SAFETY AND ENVIRONMENTAL IMPLICATIONS OF THE FUKUSHIMA TASK FORCE REPORT, dated November 7, 2011 have been served upon the following by the Electronic Information Exchange, this 7th day of November, 2011:
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.resource@nrc.gov E-mail: ask2@nrc.gov Administrative Judge Office of the Secretary Nicholas G. Trikouros Attn: Rulemaking 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: Hearing.Docket@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/
Richard S. Harper Counsel for NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop - O-15D21 Washington, DC 20555 Telephone: (301) 415-5236 E-mail: Richard.harper@nrc.gov Date of signature: November 7, 2011