ML15162A977
| ML15162A977 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 06/11/2015 |
| From: | Jeremy Wachutka NRC/OGC |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| 50-275, 50-323, ASLBP 15-941-05-LA-BD01, RAS 27930 | |
| Download: ML15162A977 (7) | |
Text
June 11, 2015 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 and 50-323
)
(Diablo Canyon Nuclear Power Plant, )
Units 1 and 2) )
NRC STAFF ANSWER OPPOSING THE FRIENDS OF THE EARTH MOTION TO ALLOW SUPPLEMENTAL BRIEFING INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c) and the Atomic Safety and Licensing Board (Board) order scheduling responses,1 the U.S. Nuclear Regulatory Commission (NRC) staff (Staff) files this answer opposing the Friends of the Earth (FOE) Motion to allow supplemental briefing in this proceeding.2 The basis for this proceeding is a Commission referral in CLI-15-14 of the question of whether the NRC granted the Pacific Gas and Electric Company (PG&E) greater authority than that provided by its existing operating licenses for Diablo Canyon Nuclear Power Plant, Units 1 and 2 (DCPP), or otherwise altered the terms of these licenses, thereby de facto amending these licenses and providing an opportunity for FOE to request a hearing.3 With its Motion, FOE seeks permission to brief the Board on four matters that were not briefed before the Commission and states that such a briefing is necessary because these matters bear 1
See Order (Scheduling Responses) (June 8, 2015) (unpublished) (Agencywide Documents Access and Management System (ADAMS) Accession No. ML15159A678).
2 See Petitioner Friends of the Earths Motion to Allow Supplemental Briefing (June 5, 2015)
(ADAMS Accession No. ML15156B521) (Motion).
3 Pacific Gas & Electric Co. (Diablo Canyon Power Plant, Units 1 and 2), CLI-15-14, 81 NRC __,
__ (May 21, 2015) (slip op. at 7).
directly on, and must be addressed for the Board to respond fully to, the de facto amendment question referred to the Board.4 The Board should deny FOEs Motion for further briefing and disregard the additional matters raised therein because this request is contrary to the Commissions expressly-limited delegation of authority to the Board in this proceeding. Specifically, in CLI-15-14, the Commission indicated that the Board was to decide FOEs de facto amendment argument based on the pleadings that were before the Commission and on a single opportunity for the Staff and PG&E to respond to additional arguments that FOE had newly-raised in its reply brief before the Commission.5 The Commissions referral did not provide for any further briefings such as the briefing that FOE is now requesting; therefore, FOEs Motion should be denied.6 BACKGROUND In its hearing request before the Commission,7 FOE argued, in part, that it had a right to a hearing on an alleged ongoing de facto license amendment proceeding involving activities associated with the following correspondence:
(1) the NRC Staffs March 2012 request for information to all power plant licensees pursuant to 10 C.F.R. § 50.54(f); (2)
Research Information Letter 12-01 (Sept. 2012), which documented the [S]taffs assessment of the new Shoreline Fault information; and (3) the NRC Staffs October 2012 letter to PG&E that summarized the results of the 2012 assessment and placed 4
Motion at 1, 10. The four matters raised by FOE are (1) a FOE claim before the U.S. Court of Appeals for the District of Columbia Circuit, (2) an NRC inspection report, (3) an NRC letter, and (4) a U.S. Senate Committee on Environment and Public Works hearing. Id. at 4-5.
5 See Diablo Canyon, CLI-15-14, 81 NRC at __ (slip op. at 8). The Staff intends to timely file its response to the new arguments in FOEs reply brief on or before June 15, 2015, consistent with the Boards direction. See Notice and Order (Scheduling Oral Argument), at 2 (June 2, 2015) (unpublished)
(ADAMS Accession No ML15153A192).
6 The Board should also deny FOEs Motion because it is functionally a 10 C.F.R. § 2.309(c) motion for leave to file new or amended contentions after the deadline, but it does not address any of that regulations good cause requirements or the contention admissibility requirements of 10 C.F.R.
§ 2.309(f)(1), let alone all of these requirements. See Private Fuel Storage, L.L.C. (Independent Spent Fuel Storage Installation), CLI-99-10, 49 NRC 318, 325 (1999) (stating that a failure to comply with any of these requirements is grounds for dismissing a contention).
7 See Petition to Intervene and Request for Hearing by Friends of the Earth (Aug. 26, 2014)
(ADAMS Accession No. ML14254A231) (De Facto Hearing Request).
the Staffs further review of new information in the context of the NRCs section 50.54(f) letter requesting seismic reevaluations by all power reactor licensees.[8]
In its answer to FOEs hearing request, the Staff opposed this argument for failing to identify a completed NRC action that effectively amended the DCPP operating licenses to allow PG&E to operate the plant in a greater capacity than prescribed in the licenses.9 PG&E also opposed this argument for not demonstrating the existence of a pending license amendment proceeding de facto or otherwise.10 The Nuclear Energy Institute (NEI) filed an amicus curiae brief opposing the FOE hearing request.11 FOE filed a reply to the Staffs and PG&Es answers and to NEIs amicus curiae brief.12 In this reply, as explained by the Commission, FOE newly argued that the Staff had approved PG&Es Final Safety Analysis Report Update (FSARU),
Revision 21, and that this action, standing alone, constituted a de facto license amendment.13 In CLI-15-14, the Commission declined to rule on the de facto amendment arguments raised in FOEs hearing request and, instead, referred the matter to the Board.14 The Commission instructed that, [t]he scope of the referral is limited to whether the NRC granted PG&E greater authority than that provided by its existing licenses or otherwise altered the terms of PG&Es existing licenses, thereby entitling [FOE] to an opportunity to request a hearing pursuant to [the Atomic Energy Act of 1954, as amended (AEA)] section 189a.15 The 8
Diablo Canyon, CLI-15-14, 81 NRC at __ (slip op. at 6-7).
9 Id. at 5 (citing NRC Staff Answer to Petition to Intervene and Request for Hearing by Friends of the Earth, at 2-3 (Oct. 6, 2014) (ADAMS Accession No. ML14279A573)).
10 Id. (citing Pacific Gas and Electric Companys Answer to Friends of the Earth Hearing Request, at 1-2, 16-17 (Oct. 6, 2014) (ADAMS Accession No. ML14279A617)).
11 Id. at n.12 (citing Nuclear Energy Institute Motion for Leave to File Amicus Curiae Brief (Oct. 6, 2014) (ADAMS Accession No. ML14279A610)).
12 See Friends of the Earths Reply to NRC Staffs and Pacific Gas & Electric Companys Answers and Proposed Amicus Curiae Nuclear Energy Institutes Brief in Response to Petition to Intervene and Request For Hearing (Oct. 14, 2014) (ADAMS Accession No. ML14287A788).
13 Diablo Canyon, CLI-15-14, 81 NRC at __ (slip op. at 8).
14 See id. at 8, n.27 (The participants and the Board should assign no significance to the fact that we are not ruling on [FOEs] hearing request ourselves.).
15 Id. at 7.
Commission further indicated that this referral is limited to the pertinent portions of FOEs hearing request, the Staffs and PG&Es answers, NEIs amicus curiae brief, FOEs reply, and an opportunity for the Staff and PG&E to respond to [the replys] assertions.16 Consistent with the Commissions limited referral, this Board was established17 and stated in its initial scheduling order that it will consider the pleadings previously submitted to the Commission including NEIs amicus curiae brief.18 The Board directed that, in accordance with CLI-15-14, the Staff and PG&E may respond to FOEs FSARU, Revision 21, arguments.19 Other than these responses, the Board stated that it contemplates no further written submissions.20 In its Motion, FOE argues that further briefing is necessary because the scope of the issues referred to the Board is broader than just FOEs FSARU, Revision 21, arguments on which the Board granted the Staff and PG&E the opportunity to file additional briefing and because more expansive additional briefing would aid the Board in its determination of FOEs de facto license amendment argument by providing updated information.21 DISCUSSION The scope of the Commissions referral in CLI-15-14 is expressly limited to whether the NRC granted PG&E greater authority than that provided by its existing licenses or otherwise altered the terms of PG&Es existing licenses, thereby entitling FOE to an opportunity to request a hearing pursuant to AEA section 189a, and includes such threshold issues as FOEs standing, timeliness, and satisfaction of contention admissibility standards in accordance with 10 C.F.R. 16 Id. at 8. See id. at 5, n.12 (Our referral to the Atomic Safety and Licensing Board Panel includes NEIs request.).
17 Establishment of Atomic Safety and Licensing Board (May 21, 2015) (ADAMS Accession No. ML15141A352).
18 Notice and Order (Scheduling Oral Argument), at 2-3.
19 Id. at 2.
20 Id. at 3.
21 Motion at 1-2.
§ 2.309.22 It is also limited to the pertinent portions of FOEs hearing request, the Staffs and PG&Es answers, NEIs amicus curiae brief, FOEs reply, and any Staff and PG&E responses to the FSARU, Revision 21, arguments newly-raised in FOEs reply.23 Despite the expressly-limited nature of this proceeding, FOE proposes to provide the Board with a supplemental brief regarding events that have occurred in the more than nine months since FOEs filing of its hearing request and the Commissions referral of FOEs de facto amendment argument to the Board.24 As part of its referral, the Commission could have easily directed that the parties should file updated briefings, as FOE is essentially requesting.
Instead, the Commission precisely and only directed the Board to take additional briefing from the Staff and PG&E in response to the new arguments raised in FOEs reply brief. The Commission apparently recognized that this limited additional briefing was necessary to complete the record before it and, subsequently, before the Board. Contrary to FOEs Motion, this finite direction is not properly construed as some sort of first step in a process of fully re-briefing FOEs de facto amendment argument. As such, FOEs request to now allow further briefing than that provided for by the Commission is outside the expressly-limited scope of the authority delegated to the Board and should, therefore, be denied.
22 Diablo Canyon, CLI-15-14, 81 NRC at __ (slip op. at 7-8).
23 See id. at 8.
24 Motion at 1.
CONCLUSION For the reasons stated above, the Board should deny FOEs Motion to allow supplemental briefing and should disregard the additional arguments raised therein.
Respectfully submitted,
/Signed (electronically) by/
Jeremy Wachutka Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop O15-D21 Washington, DC 20555 Telephone: (301) 415-1571 E-mail: Jeremy.Wachutka@nrc.gov Dated at Rockville, Maryland this 11th day of June, 2015
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 and 50-323
)
(Diablo Canyon Nuclear Power Plant, )
Units 1 and 2) )
CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305, I hereby certify that copies of the foregoing NRC STAFF ANSWER OPPOSING THE FRIENDS OF THE EARTH MOTION TO ALLOW SUPPLEMENTAL BRIEFING, dated June 11, 2015, have been filed through the Electronic Information Exchange, the NRCs E-Filing System, in the above-captioned proceeding, this 11th day of June, 2015.
/Signed (electronically) by/
Jeremy Wachutka Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop O15-D21 Washington, DC 20555 Telephone: (301) 415-1571 E-mail: Jeremy.Wachutka@nrc.gov Dated at Rockville, Maryland this 11th day of June, 2015