ML19309D323

Public Watchdogs 10 CFR 2.206 Petition - SONGS September 24, 2019

ML19309D323
Person / Time
Site:	San Onofre
Issue date:	09/24/2019
From:	La Bella C Barnes & Thornburg, LLP, Public Watchdogs
To:	NRC/EDO, Office of Nuclear Material Safety and Safeguards
A CRUZ DUWP
References
2.206
Download: ML19309D323 (25)

Text

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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 CHARLES G. LA BELLA (SBN 183448) charles.labella@btlaw.com ERIC BESTE (SBN 226089) eric.beste@btlaw.com ZACHARY P. HELLER (CA Admission pending) zachary.heller@btlaw.com BARNES & THORNBURG LLP 655 West Broadway, Suite 900 San Diego, California 92101 Telephone: 619.321.5000 Facsimile: 619.284.3894 RANDY GORDON randy.gordon@btlaw.com LUCAS C. WOHLFORD lwohlford@btlaw.com BARNES & THORNBURG LLP 2121 N. Pearl Street, Suite 700 Dallas, TX 75201 Telephone: 214.258.4148 Facsimile: 214.258.4199 Attorneys for Petitioner, Public Watchdogs UNITED STATES NUCLEAR REGULATORY COMMISSION Before the Executive Director for Operations PUBLIC WATCHDOGS, a California 501(c)(3) corporation, Petitioner,

v.

SOUTHERN CALIFORNIA EDISON COMPANY AND SAN DIEGO GAS

& ELECTRIC COMPANY, Licensees.

10 C.F.R. § 2.206 PETITION TO IMMEDIATELY SUSPEND DECOMMISSIONING OPERATIONS AT SAN ONOFRE NUCLEAR GENERATING STATION UNITS 2 AND 3

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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Pursuant to 10 C.F.R. § 2.206, Petitioner Public Watchdogs (Petitioner) hereby submits its Petition to Immediately Suspend Decommissioning Operations at San Onofre Nuclear Generating Station (SONGS) Units 2 and 3:

PRELIMINARY STATEMENT

1.

As part of the ongoing decommissioning of SONGS Units 2 and 3, Licensees Southern California Edison Company (Edison) and San Diego Gas & Electric Company (collectively, Licensees) are in the process of burying hundreds of tons of deadly spent nuclear fuel a mere 108 feet from one of Californias most populated public beaches, within a tsunami zone surrounded by active fault lines, in canisters that are damaged, defective, and not properly designed to serve their intended purpose. Throughout the decommissioning process, the Nuclear Regulatory Commission (NRC) has effectively turned a blind eye to multiple alarming safety hazards created by Licensees burial of spent nuclear fuel at SONGS, including evidence that the canisters being used by Licensees are damaged and defective, and that Licensees do not have adequate safety procedures or competent staff to complete the transfer of the spent nuclear fuel from wet to dry storage.

2.

Whats more, the NRCs various actions permitting the implementation of Licensees decommissioning plan and authorizing Licensees dangerous burial of spent nuclear fuel at SONGS are based on unreasonable and fundamentally flawed assumptions that: (1) the United States Department of Energy (DOE) will begin accepting spent nuclear fuel from nuclear generating stations like SONGS in 2024 or 2028; (2) all of the spent nuclear fuel currently being buried at SONGS will be permanently removed from the site by 2049; and (3) the SONGS site will be restored to a condition that is acceptable for unrestricted use by 2051. In fact, no central repository for permanent storage of spent nuclear fuel exists in the United States, there is no viable plan to open such a permanent repository, and the DOE undoubtedly will not begin accepting spent nuclear fuel for permanent storage from SONGS or any other nuclear generating station in 2024, 2028, or any other time in the foreseeable future. As the United States Court of Appeals for the District of Columbia Circuit has observed: At this time, there is not even a prospective

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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 site for a repository, let alone progress toward the actual construction of one. New York

v. Nuclear Regulatory Comn, 681 F.3d 471, 474 (D.C. Cir. 2012).

3.

By ignoring the manifold safety hazards posed by Licensees decommissioning operations and permitting Licensees to implement their decommissioning plan based on the unreasonable assumption that spent nuclear fuel will be stored at SONGS only temporarily, the NRC has abdicated its paramount responsibility to protect public health and safety and it has failed to ensure Licensees will have adequate funds to pay for the full cost of decommissioning and restoring the SONGS site through the termination of their license. Accordingly, Petitioners respectfully request that the NRC issue an order immediately suspending all decommissioning operations at SONGS, including the burial of spent nuclear fuel at the SONGS site, and requiring Licensees to submit an amended decommissioning plan that properly accounts for the reality that the spent nuclear fuel being buried at SONGS will remain there indefinitely.

FACTUAL BACKGROUND I.

LICENSEES NEGLIGENT OPERATION OF SONGS

4.

In August 1963, Congress enacted Public Law 88-82 authorizing the construct[ion], operate[ion], maintain[enance], and use of a nuclear power plant on approximately 90 acres of land located at the Camp Pendleton military base. In May 1964, the United States of America granted Licensees an easement for the sole purpose of construction, operation, maintenance and use of a nuclear electric generating station at the Camp Pendleton site.

5.

Licensees operated three nuclear electric generating units at SONGS.

Licensees operated Unit 1 from approximately 1968 until 1992, when they began the decommissioning process for that unit. Licensees operated Units 2 and 3 from approximately 1983 and 1984 (respectively) until June 12, 2013, when they submitted written certification to the NRC that they were permanently ceasing operation of those units.

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Throughout its time as an operational nuclear power plant, SONGS was marred by numerous instances of poor safety and regulatory compliance, which ultimately contributed to the cessation of operations at the site. These compliance debacles included the backward installation of a 420-ton nuclear reactor vessel and the installation of replacement steam generators, without obtaining the requisite approval from the NRC, which ultimately malfunctioned and leaked deadly radioactive steam at the site.

II.

LICENSEES FUNDAMENTALLY FLAWED DECOMMISSIONING PLAN

7.

On September 23, 2014, Licensees submitted their decommissioning plan to the NRC, including a Post-Shutdown Decommissioning Activities Report (PSDAR), an Irradiated Fuel Management Plan (IFMP), and a Site Specific Decommissioning Cost Estimate (DCE). See Exhibits 1, 2, and 3.

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Licensees PSDAR provided a general overview and timetable for the decommissioning, decontamination, restoration, and license termination activities at the SONGS site. The PSDAR specified that Licensees would begin transferring spent nuclear fuel to dry storage in the SONGS Independent Spent Fuel Storage Installation (ISFSI) in 2014, and complete the transfer by June 2019. See Exhibit 1. Thereafter, Licensees proposed to store the spent nuclear fuel in the ISFSI during decommissioning from June 2019 to December 2031. Id. Finally, Licensees proposed to store spent nuclear fuel in the ISFSI during a post-decommissioning period from December 2031 to December 2049. Id.

This timeline was based on the assumption that the DOE will begin accepting spent nuclear fuel from the industry in 2024, that all spent nuclear fuel will be permanently removed from the SONGS ISFSI and transferred to an off-site permanent repository by 2049, and that the SONGS site will be restored to a condition acceptable for unrestricted use and returned to the U.S. Navy by 2051. Id. Licensees expressly based this assumption on some unspecified previously documented positions of the DOE, which indicates that shipments from the industry could begin as early as 2024 and SONGS place in the current queue. Id. Notably, however, Licensees acknowledged that both the date on which the

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Licensees IFMP provides additional details regarding their strategy for storing, monitoring, and managing spent nuclear fuel at the SONGS ISFSI during and after the decommissioning period and through ultimate termination of the SONGS licenses. See Exhibit 2. Like the PSDAR, Licensees IFMP is expressly based on the assumptions that the DOE would begin accepting spent nuclear fuel from the industry in 2024 and that all spent nuclear fuel would be permanently removed from the SONGS ISFSI by 2049. Id. Again, however, Licensees provided no objective evidentiary support for these critical assumptions.

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Finally, Licensees DCE provided a detailed estimate of the anticipated costs of the decommissioning and spent fuel management activities at SONGS. See Exhibit 3.

Licensees projected that the total cost of decommissioning and restoring the SONGS site would exceed $4 billion, of which approximately $1.3 billion was allocated for spent fuel management through 2049. Id. Once again, Licensees based their DCE on the assumptions that the DOE will begin accepting spent nuclear fuel from the industry in 2024 and that all spent nuclear fuel will be removed from the SONGS ISFSI by 2049. Id.

Significantly, however, Licensees DCE expressly acknowledged that DOE has not committed to accept [Edisons] canistered spent fuel. Id. Despite this acknowledgment, the DCE also confusingly stated: But for purposes of this estimate, it is assumed that an

[Edison-funded] dry storage facility will not be necessary. Id.

11.

At the time Licensees submitted their PSDAR, IFMP, and DCE, there was, in fact, no viable plan or intention for the DOE to begin accepting spent nuclear fuel in 2024 or any other time. Indeed, Licensees submitted their PSDAR, IFMP, and DCE approximately 4 years after the DOE withdrew its application for a license to construct a permanent repository for spent nuclear fuel at Yucca Mountain in Nevada and approximately 3 years after the NRC suspended its adjudicatory proceeding regarding the withdrawal of the DOEs license application. See Exhibit 4. In other words, the

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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 fundamental predicate for Licensees decommissioning plan was, and remains today, a pure fiction that is completely untethered to objective reality.

III.

LICENSEES SELECTION OF HOLTECS HI-STORM UMAX STORAGE SYSTEM AND DEFECTIVE THIN-WALL CANISTERS

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At the time Licensees submitted their decommissioning plan, they had not yet identified a location for the expanded SONGS ISFSI, nor had they selected storage equipment or vendors for the build out of the ISFSI. See Exhibit 2.

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In December 2014, Licensees selected a location for the expanded SONGS ISFSI and selected Holtec Internationals (Holtec) HI-STORM UMAX storage system for the temporary storage of spent nuclear fuel. See Exhibit 5. The location selected for the ISFSI is a mere 108 feet from the Pacific Ocean, within a tsunami zone surrounded by active fault lines, and little more than a foot above the mean high tide level, making it especially susceptible to flooding as sea levels rise. See Exhibit 6. Notably, although Licensees decommissioning plan contemplated, albeit fancifully, that spent nuclear fuel would be stored at the SONGS ISFSI for at least 30 years, Holtec only warranted its storage system for 10 years. See Exhibit 7.

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Moreover, the Holtec dry storage canisters in which the spent nuclear fuel is being stored at the SONGS ISFSI are defective and unfit for the indefinite storage of spent nuclear fuel. Each and every one of the 73 individual canisters will contain more deadly radioactive Cesium-137 than was released globally during the Chernobyl disaster, as well as dozens of other radioactive and toxic fission byproducts. The failure of even one of these canisters will have calamitous consequences. Severe problems with Licensees decommissioning plan make this nightmare scenario a real possibility.

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First, although the radioisotopes in each canister remain radioactive, toxic, and deadly for hundreds of years (and one, Plutonium-239, remains deadly for over 24,000 years), Holtec warrants the canisters for only 25 years. See Exhibit 7. Thus, the warranty on the canisters will expire long before 2049, when Licensees unreasonably assume that all spent fuel will be transferred to permanent storage, and there is no objective basis for

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Second, the design of the Holtec canisters the Licensees are using to store the spent nuclear fuel deviates from the acceptable minimum safety thresholds required for the design and manufacture of nuclear waste storage containers. Indeed, the Holtec canisters are so-called thin-wall canisters with only a 5/8-inch thick stainless-steel wall with an aluminum egg-crate structure designed to hold up to 37 spent fuel assemblies.

Holtec designs, manufactures, and supplies the canisters under strict guidelines promulgated by the NRC and, more important, under the conditions of applicable certificates of compliance (CoCs). See Exhibit 8. The NRC issues a CoC conditioned on the holder strictly hewing to specific technical specifications and approved contents and design features. But after receiving CoCs for the thin-wall canisters being used at SONGS, Holtec secretly modified the design and manufacture of the canisters, apparently to reduce manufacturing costs and/or to correct a flaw in the original design. By making the change surreptitiously, Holtec avoided a costly and time-consuming NRC design review and attendant risk analysis. In any case, the design change introduced a critical flaw into the casks that is discussed in further detail below.

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Third, due to the design of the canisters, the narrow slots in which they are loaded into the storage system, and the equipment used to load the canisters into the storage system, extensive gouging of the canisters occurs during routine loading into the storage system. Over time, the gouges in the canisters can grow into deeper cracks that make the canisters susceptible to leaking and make it impossible for the canisters to be safely removed from the ISFSI in the future. However, there is no way to adequately monitor or inspect the canisters once they are in the ground, and no way to fix them even if critical damage to them could be identified.

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NRC GRANTS A

LICENSE AMENDMENT THAT PERMITS DECOMMISSIONING OF SONGS ACCORDING TO LICENSEES FLAWED DECOMMISSIONING PLAN

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Because the original license granted to the Licensees was narrow in scope in that it only permitted them to operate the plant and temporarily store spent nuclear fuel and wastea license amendment would be necessary to decommission the plant.

However, when Licensees decided to permanently cease nuclear operations, they sought to utilize the nuclear power plant for an entirely different purposethat is, the long-term storage of spent nuclear fuel. Thus, the grant or denial of the Licensees request for a license amendment was a matter of significant public concern, requiring an opportunity for meaningful public participation.

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Without meaningful public participation or an independent assessment, on July 17, 2015, the NRC granted Licensees request for a license amendment that permitted them to begin decommissioning the SONGS facility. See Exhibit 9. Specifically, the NRC authorized Licensees to Take actions necessary to decommission the plant and continue to maintain the facility, including, where applicable, the storage, control and maintenance of the spent fuel, in a safe condition. Id. In so doing, the NRC found that there was reasonable assurance (i) that the activities authorized by this amendment can be conducted without endangering the health and safety of the public, and (ii) that such activities will be conducted in compliance with the Commissions regulations. Id. In fact, the NRC simply relied on Licensees own flawed analysis instead of objective criteria or independent analysis, enabling Licensees to present their internal, untested, and unchecked conclusions, without even a suggestion of an objective analysis or oversight.

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In addition, the NRC repeatedly granted Licensees numerous subsequent license amendments and exemptions, regardless of the scope and magnitude of the proposed changes. See Exhibit 10. Among these exemptions was a staggering reduction in the amount of onsite liability insurance required to be maintained by Licensees from the $1.06 billion required by NRC regulations to a paltry $50 million. See Exhibit 11.

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LICENSEES MULTIPLE DECOMMISSIONING DISASTERS

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From the outset, Licensees decommissioning operations have been marred by a series of miscues, lackadaisical managerial oversight, and attempts to conceal the same. Unsurprisingly, this behavior has caused Licensees to repeatedly fall short of the NRCs identified standards and promulgated regulations. Among the many failures of the Licensees decommissioning efforts are the following:

A.

Licensees compromised the structural integrity of twenty-nine canisters they buried at SONGS.

22.

Licensees have consistently used fewer personnel than necessary to ensure that the Holtec canisters are safely and effectively loaded into the ISFSI. For example, Licensees have employed an inadequate number of spotters at different vantage points, resulting in limited visibility of the canister as it is being loaded into its enclosure. This negligent deviation from safe fuel-handling procedures has already caused substantial harm to the millions of people around the SONGS facility. See Exhibit 12.

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On information and belief, and as revealed in NRC documents and noted at public hearings, the Licensees negligently gouged and then buried twenty-nine (29) fully loaded canisters at SONGS. Experts believe this gouging may lead to deeper, through-the-wall cracks, which will make the future safe movement of these canisters impossible (despite the fact that the safety of the canisters storage location is only warranted for 10 years). Experts also point out that damage to the canisters will be exacerbated, inter alia, by the presence of salt air, fog, rain, and salt waterthe precise weather conditions that the canisters will be exposed to at the current location just steps from the Pacific Ocean.

See Exhibit 6.

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Upon information and belief, many (if not all) of the canisters were negligently scratched during transportation to the ISFSI. According to an NRC inspection report, and as admitted at a Community Engagement Panel Meeting by NRC spokesperson Scott Morris, every single canister was damaged during the downloading process: The canister involved in the near-drop event [and] all the other canisters... experienced a little

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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 bit of scuffing, and a little bit of contact going into the ISFSI. See Exhibit 13. As discussed below, one NRC inspector concluded that the damage to the canisters during loading into the SONGS ISFSI caused them to fall out of compliance with requirements of the applicable CoC. See Exhibits 27 and 29. The NRC, however, simply ignored this assessment and cleared the way for even more defective and non-compliant canisters to be buried at SONGS.1 B.

Licensees nearly dropped two 49-ton canisters full of deadly radioactive nuclear waste and attempted to cover it up.

25.

On July 22, 2018, Licensees nearly dropped a 49-ton canister full of deadly radioactive nuclear waste more than 18 feet into the ISFSI when it was caught on a quarter inch thick steel guide ring. Licensees referred to this event as an unsecured load event.

In actuality, this event could have turned San Onofre State Beach Park into a permanently uninhabitable nuclear wasteland.

26.

Pursuant to 10 C.F.R. § 72.75, any incident involving nuclear waste must be reported to the NRC within twenty-four hours, yet the July 22 failure was not formally reported on the NRCs Event Notifications Report. The sole purpose of 10 C.F.R. § 72.75 is to insure that potentially hazardous events are promptly reported and investigated and to allow for public disclosure of potential safety risks.

27.

Despite the regulations clear obligation to provide a formal written report for events of this nature, Licensees never provided a formal report for the July 22 unsecured load event. As a result, the public was kept in the dark about the potentially disastrous incident in July.

28.

Ten days later, on August 3, 2018, the Licensees once again lost control of a 49-ton canister full of deadly radioactive nuclear waste while it was being lowered into a 1 Despite the Licensees efforts to downplay the significance of the gouging found on Holtec canisters, the potential consequences are staggering. Holtecs CEO admitted as much during a public meeting, acknowledging that even a microscopic crack in a canister is enough to cause a release of millions of curies of radioactivity. Dr. Kris Singh, CEO, Holtec International, on Dry Canister Nuclear Waste Storage, YouTube (Oct. 14, 2014),

at 31:04-34:30(at https://www.youtube.com/watch?v=s5LAQgTcvAU). See Exhibit 14.

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A whistleblower, David Fritch, came forward and publicly reported the event six days later during the August 9 Community Engagement Panel Meeting. Prior to the whistleblowers disclosure, Licensees representative did not disclose the August 3 near-miss disaster when discussing the work stoppage put in place after the event. In fact, Edisons then Vice President and Chief Nuclear Officer, Tom Palmisano, affirmatively misled the public and misrepresented that the work stoppage was a planned stop so that they could perform necessary maintenance, provide employees with time off, and analyze the overall efficiency and effectiveness of the decommissioning process at that point.

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However, during the public comment portion of the event, Fritch (a Safety Professional employed as a contractor at the SONGS facility) disclosed the misconduct as the actual cause for the work stoppage. Fritch informed the public about the near-miss event of August 3rd, and directly contradicted Licensees public statements that the work stoppage was a planned event.

31.

Fritchs whistle-blowing sparked widespread media attention on the safety hazards posed by the Defendants negligence at the facility. This alone should have prompted the NRC to perform a professional and independent risk assessment to determine the actual risks at the site, and take appropriate remedial steps to avoid or minimize future risks. Again, however, the NRC abdicated its responsibilities and continued to do nothing to protect the public or adequately monitor the situation.

32.

As before, the Licensees failed to issue an NRC Event Notification Report within twenty-four hours of the Friday, August 3 event as required the NRCs regulations.

Instead, they waited more than six weeks to report the incident. Moreover, rather than submitting the legally required written report, Licensees waited until Monday, August 6, to informally call the NRC. Licensees private phone call deprived the public not only of

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This concealment was not accidental. In fact, the July 22 and August 3 near-miss events occurred during a required public comment period for the California State Lands Commissions Draft Environmental Impact Report (EIR) directly related to the SONGS decommissioning project. That period ran from June 28 until August 30. By delaying formal written notice of the events, Licensees were able to avoid meaningful public participation in connection with the interrelated EIR.

34.

Rather than taking precautionary steps to protect the public in light of the Licensees demonstrated negligence, upon information and belief, the NRC completely deferred to Licensees and blindly relied upon their assurances that everything was under control. Indeed, the NRC went so far as to summarily reject a written request by Congressman Mike Levin for the installation of permanent NRC inspectors at the facility.

See Exhibit 15.

35.

On August 17, 2018, in response to the August 3 near-miss, the NRC issued an Inspection Charter for SONGS, which found five violations that were ultimately penalized by the imposition of a wrist-slapping fee of $116,000 on Edison. See Exhibits 16 and 17. Perhaps more troubling, the NRC has not required Licensees to file an Event Notification Report for the July 22 event, and has ignored their flagrant violation of federal law for not filing an Event Notification Report for 47 days after the August 3 event.

36.

Instead of ordering the Licensees to cease operations at SONGS, the NRC seemingly accepted the Licensees verbal commitment to discontinue loading until the NRC issued its final Inspection Report.

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HOLTECS SURREPTITIOUS REDESIGN OF THE DRY STORAGE CANISTERS

37.

In February 2018, while preparing to load one of the thin-wall canisters with spent nuclear fuel, Licensees discovered a loose bolt inside. After reporting the issue to Holtec, Holtec revealed that it had redesigned the already defective canisters to include a different stand-off shim. The purpose of these shims is to enhance convection cooling of the hot fuel assemblies by creating additional space to allow cooling helium gas to flow throughout the canister so that the spent nuclear fuel does not overheat. The newly designed shims included bolts that were not part of the original design. As Licensees discovered, the newly introduced bolts are susceptible to breaking loose inside the canister, which could ultimately cause a restriction of airflow within the canister and a failure of the canisters cooling mechanism. Left uncooled, spent nuclear fuel will heat up to the point of a criticaland deadlynuclear reaction. Thus, a failure of the canisters cooling mechanism would be disastrous.

38.

Under NRC regulations, Holtec was required to obtain a CoC amendment prior to implementing any proposed change to the design of its canisters if the change would result in more than a minimal increase in the frequency or likelihood of an accident, malfunction, or the consequences of such accident or malfunction. Despite the serious risks posed by Holtecs design changes, however, Holtec failed to even notify the NRC, much less obtain a CoC amendment, before changing the design of the canisters.

39.

On March 22, 2018, Licensees admitted during a Community Engagement Panel Meeting that four canisters with the defective shim design had already been filled with spent nuclear fuel and buried at SONGS. To make matters worse, Mr. Palmisano made a stunning admission that there is no existing method for safely opening defectively designed canisters to see if the stand-off shims were broken in the four buried canisters.

Thus, the SONGS Defendants have no way of ensuring that the fuel assemblies and/or cooling mechanisms have not been critically compromised. Mr. Palmisano admitted that

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So nobody has unloaded a commercial canister, either a bolted cask or a welded cask or canister.... What you would do is basically have a mechanism, either to do it in a fuel pool or do it in a dry transfer facility..

.. The real challenge as we would understand it today, and nobody has had to do it yet, is the reflood. Certainly, technically possible. What I would tell you is just I was back in Washington with the NRC last week, if you were just to brainstorm, this would probably be a two-to three-year project to develop the techniques, pile up the techniques. The NRC would want to have explicit approval on this because of the radiological hazards.

See Exhibit 18 (emphasis added).

40.

Although the NRC found that Holtec failed to establish adequate design control measures of components important to safety, and failed to perform evaluations before making the design changes, it failed to impose any fine or other penalty on Holtec for these violations.

41.

Notably, this was not the first time Holtec flouted its obligations to disclose critical information to a regulator. In October 2010, Holtec was debarred as a contractor by the Tennessee Valley Authority (TVA) in connection with improper and undisclosed payments made to a federal official to secure a contract to design and construct a dry cask storage system for spent nuclear fuel rods at the Brown Ferry Nuclear Plant. See Exhibit

25. Following that debarment, Holtec sought a $260 million tax break related to a nuclear plant project in Camden New Jersey. As part of that process, Holtecs CEO Kris Singh submitted certified forms where he answered no to the question of whether Holtec had ever been barred from doing business with a state or federal agency. In June 2019, New Jersey regulators froze Holtecs $260 million tax-incentive award pending further investigation. See Exhibit 26. Despite Holtecs history of misconduct and deceit, the NRC has continued to blindly accept its representations regarding its defective and dangerous canisters and has approved multiple amendments to the applicable CoCs to permit the continued use of Holtecs defective and dangerous canisters at SONGS and elsewhere.

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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 VII. LICENSEES UPDATED, BUT NO LESS FLAWED, DCE, AND DECOMMISSIONING FUNDING STATUS REPORTS

42.

As required by the California Nuclear Facilities Decommissioning Act of 1985, Licensees updated their DCE for SONGS Units 2 & 3 in 2017. See Exhibit 19.

Although Licensees updated DCE continued to estimate that all spent nuclear fuel will be removed from the SONGS ISFSI by 2049, and that the site will be acceptable for unrestricted use by the end of 2051, Licensees changed their assumptions regarding the date the DOE will commence accepting spent nuclear fuel from the industry. Specifically, Licensees 2017 DCE assumed the DOE will begin accepting spent nuclear fuel from the industry in 2028, rather than 2024, because of the DOEs continued failure to perform its contractual obligation to remove spent fuel from commercial nuclear reactors in the past four years. Licensees 2017 DCE does not explain, however, why pushing back the estimated date on which the DOE will begin accepting spent nuclear fuel from the industry by four years would not also necessitate pushing back the estimated date for removal of all spent nuclear from the SONGS ISFSI by four years and concomitantly increasing the estimated cost of storing that fuel for an extra four years. Nor does Licensees 2017 DCE provide any objective evidence supporting its updated assumption that the DOE will, in fact, begin accepting spent nuclear fuel from the industry in 2028.

43.

In subsequent decommissioning funding status reports submitted to the NRC, Licensees repeated this updated assumption regarding the date on which the DOE will begin accepting spent nuclear fuel from the industry. See Exhibits 20 and 21.

Specifically, Licensees status reports expressly acknowledge that the current site-specific decommissioning cost estimates for San Onofre Unit 1 and San Onofre Units 2 and 3 assume that the DOE will commence transporting fuel in 2028. As in the 2017 DCE, however, Licensees status reports do not provide any basis for the 2028 assumption, nor do they explain how pushing back the estimated date on which the DOE will begin accepting spent nuclear fuel from the industry would not also necessitate pushing back the date for removal of all spent nuclear fuel from SONGS and concomitantly increasing the

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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 estimated cost of storing that fuel for an extra four years. Notably, however, Licensees status reports do effectively acknowledge that their fundamental assumptions regarding the DOEs acceptance of spent nuclear fuel are uncertain at best. Indeed, the status reports expressly state that the 2028 assumption may be updated periodically due to the ongoing uncertainties regarding the availability of a permanent repository for spent fuel.

VIII. DESPITE SERIOUS PUBLIC CONCERNS AND HAZARDOUS CONDITIONS THE NRC PERMITS LICENSEES TO RESUME DANGEROUS BURIAL OF SPENT NUCLEAR FUEL

44.

In March 2019, an NRC inspector, Lee Brookhart, issued an internal report concluding that the damaged and defective Holtec canisters would require a formal design change, approved by the NRC, if they were to continue in service under the applicable CoCs, which require loading into the ISFSI to be accomplished without any scratching or damage to the canisters. See Exhibits 27 and 29. On May 21, 2019, however, the NRC disregarded Mr. Brookharts warnings, Licensees string of poor project oversight, Holtecs history of incompetence and malfeasance, and the fanciful assumptions underlying Licensees entire decommissioning plan, and announced its determination that burial of spent nuclear fuel could continue at SONGS. See Exhibit 22. Thereafter, in July 2019, Licensees resumed their decommissioning operations, including the burial of spent nuclear fuel at the SONGS ISFSI.

45.

Given the uncertainty surrounding the renewed canister burial, as well as litigation seeking to halt the process pending development of a record, Counsel for Petitioneron September 6, 2019requested that Licensees briefly abate further interment. See Exhibit 23. Licensees declined the request and are apparently poised to continue the transfer operations and complete the burial of spent nuclear fuel at SONGS as fast as possible. See Exhibit 24; see also Exhibit 15.

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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 GROUNDS FOR ORDER IMMEDIATELY SUSPENDING DECOMMISSIONING OPERATIONS I.

APPLICABLE STANDARDS

46.

Under 10 C.F.R. § 2.206, Any person may file a request to institute a proceeding pursuant to § 2.202 to modify, suspend, or revoke a license, or for any other action as may be proper. Upon the filing of a petition under § 2.206, the NRC may institute a proceeding to modify, suspend, or revoke a license or take such other action as may be proper by serving on the licensee or other person subject to the jurisdiction of the Commission an order that will, among other things, [a]llege the violations with which the licensee or other person subject to the Commissions jurisdiction is charged, or the potentially hazardous conditions or other facts deemed to be sufficient ground for the proposed action, and specify the action proposed. Petitioner respectfully requests that the NRC issue an order immediately suspending all decommissioning operations at SONGS, including the burial of spent nuclear fuel at the SONGS ISFSI, and requiring Licensees to submit an amended decommissioning plan that properly accounts for the reality that the spent nuclear fuel being buried at SONGS will remain there indefinitely.

II.

LICENSEES BURIAL OF SPENT NUCLEAR FUEL AT SONGS POSES AN IMMINENT THREAT TO PUBLIC SAFETY

47.

As detailed above, Licensees are burying hundreds of tons of deadly spent nuclear fuel in thin-wall canisters that cannot be loaded into the storage system without being critically damaged, and cannot be monitored, inspected, repaired, or safely removed once they are loaded. Moreover, at least some of the canisters were surreptitiously redesigned in a way that makes them even more susceptible to failure, and there is no way for anyone to determine whether or when those canisters might fail and cause a nuclear disaster. To make matters worse, Licensees have a proven track record of negligence, if not recklessness, in their past attempts to load the canisters into the SONGS ISFSI, nearly dropping a 49-ton canister full of spent nuclear fuel on at least two occasions.

48.

As if this werent enough, Licensees have elected to bury these defective canisters in perhaps the most hazardous location possiblemerely 108 feet from, and only

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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 inches above, a rising Pacific Ocean, in a tsunami zone surrounded by active fault lines, and in a humid environment that is likely to corrode and cause stress-induced cracking of the canisters outer walls.

49.

In other words, the SONGS ISFSI is a proverbial ticking time bomb, and it is not a matter of whether a nuclear disaster will occur at the site, but a matter of when and how damaging the nuclear disaster will be. Accordingly, the NRC should immediately suspend all decommissioning operations at the SONGS site, including, and especially, the continued burial of spent nuclear fuel, and require Licensees to submit a proposed decommissioning plan that will not pose an imminent threat to public safety.

III.

LICENSEES ESTIMATED COST OF DECOMMISSIONING SONGS IS BASED ON UNREASONABLE AND FUNDAMENTALLY FLAWED ASSUMPTIONS

50.

The fundamental premise for Licensees various decommissioning cost estimates is that the spent nuclear fuel being buried at SONGS will remain there only temporarily. Indeed, Licensees initial DCE was based on the assumption that the DOE will begin accepting spent nuclear fuel from the industry in 2024 and that all spent nuclear fuel will be permanently removed from SONGS by 2049. Accordingly, Licensees have allocated only enough funds to store and monitor spent nuclear fuel at SONGS through 2049.

51.

Both Licensees and the NRC know full well that these assumptions are unreasonable and untethered to reality because there is currently no viable plan for the DOE to construct a permanent repository for spent nuclear fuel and there is certainly no plan or intention for the DOE to begin accepting spent nuclear fuel from the industry in 2024. In fact, the NRC states in its own publications that, although it considers that 25 to 35 years is a reasonable timeframe for repository development, it acknowledges that there is sufficient uncertainty in this estimate that the possibility that more time will be needed cannot be ruled out. See Exhibit 28.

52.

Although Licensees 2017 DCE and decommissioning funds status reports push back to 2028 the assumed date on which the DOE will begin accepting spent nuclear

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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 fuel from the industry, this is no more realistic or supported by any actual evidence than the initial 2024 estimate. Furthermore, this updated assumption renders Licensees cost estimates even more fanciful, because, while they push back the date on which they assume the DOE will begin accepting spent nuclear fuel from the industry, they inexplicably maintain the assumption that all spent nuclear fuel will be permanently removed from SONGS by 2049.

53.

By unreasonably assuming that all spent nuclear fuel will be permanently removed from SONGS by 2049, and only allocating sufficient funds to store and monitor the spent nuclear fuel at the site through that date, Licensees grossly understate the full cost of decommissioning SONGS and storing and monitoring spent nuclear fuel at the site through the termination of the SONGS licenses. Among other things, Licensees cost estimates fail to account for the costs associated with: (1) storing and monitoring fuel beyond 2049 and perhaps permanently; (2) replacing and/or repairing canisters that have degraded, been damaged, and/or outlived their 40-year certifications; and (3) transferring canisters to another location when the storage system itself inevitably degrades and becomes unfit for storage of spent nuclear fuel. Accordingly, the NRC should suspend all decommissioning operations currently underway at SONGS and require Licensees to submit a new decommissioning cost estimate that is grounded in the reality that spent nuclear fuel will be stored at SONGS indefinitely.

IV.

LICENSEES FLAWED DECOMMISSIONING PLAN POSES A LONG TERM THREAT TO PUBLIC SAFETY

54.

By falsely assuming that spent nuclear fuel will be stored at SONGS only temporarily, Licensees have not only understated the total cost associated with their decommissioning operations but they have set a disaster off on the horizon that will be unavoidable if not addressed immediately. As already discussed at length, Licensees entire decommissioning plan, including all decisions related to the location of the SONGS ISFSI, the selection of the Holtec storage system and canisters, and the estimated cost of

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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 decommissioning and monitoring spent fuel at SONGS, are predicated on the false assumption that spent nuclear fuel will be stored at SONGS only temporarily.

55.

Licensees selected a storage system with an extremely limited warranty and usable life based on the false assumption that it will be empty and demolished in thirty years. Licensees selected defective canisters with limited warranties that cannot be safely replaced when damaged based on the false assumption that the DOE would be removing them in thirty years. And Licensees selected a hazardous storage location near a rising sea based on the false assumption that the spent nuclear fuel will be permanently removed by the time the storage facility is underwater. If the NRC does not suspend decommissioning operations now, these fanciful assumptions will inevitably lead to a disastrous reality for the millions of people who reside in the vicinity of SONGS. Accordingly, the NRC should immediately suspend all decommissioning operations at SONGS, including and especially the burial of spent nuclear fuel in the SONGS ISFSI, and require Licensees to submit a new decommissioning plan that is grounded in the reality that the spent nuclear fuel being buried at SONGS will remain there indefinitely, if not permanently.

V.

THE NRCS FAILURE TO PREPARE AN ENVIRONMENTAL ASSESSMENT OR SUPPLEMENTAL ENVIRONMENTAL IMPACT STATEMENT PRIOR TO APPROVING DECOMMISSIONING ACTIVITIES VIOLATES NEPA AND THE APA

56.

The NRC failed to prepare either an environmental assessment (EA) or an environmental impact statement (EIS) prior to issuing the July 17, 2015 license amendment or otherwise approving decommissioning activities at SONGS Units 2 and 3, in violation of the National Environmental Policy Act (NEPA), the Administrative Procedure Act (APA), and the NRCs own regulations.

57.

NEPA requires all federal agencies to conduct environmental evaluations of any major federal actions significantly affecting the quality of the human environment. 42 U.S.C. § 4332(2)(C). Major federal actions are defined broadly to include new and continuing activities, including projects and programs entirely or partly financed, assisted, conducted, regulated, or approved by federal agencies. 40 C.F.R.

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§ 1508.18. When an agency is uncertain whether a proposed action will significantly affect the environment, it must prepare an EA to determine whether the preparation of a more detailed EIS is necessary. 40 C.F.R §§ 1508.9(a), 1508.13 (2009); see also California Wilderness Coal. v. U.S. Dept of Energy, 631 F.3d 1072, 1097 (9th Cir. 2011) (If the proposed action does not categorically require the preparation of an EIS, the agency must prepare an EA to determine whether the action will have a significant effect on the environment.). In either case, NEPA obligates federal agencies to take a hard look at the potential environmental consequences of proposed actions. California Wilderness Coal., 631 F.3d at 1097 (9th Cir. 2011).

58.

The NRCs issuance of a license amendment and approval of decommissioning activities at SONGS Units 2 and 3 constituted a major federal action that required NEPA compliance. As an initial matter, the NRC has historically prepared either an EA or EIS upon issuing a license amendment at SONGS Units 2 and 3. In 1981, the NRC prepared an EIS when it issued the initial operating license to Edison for Units 2 and 3. See Exhibit 30. The NRC then prepared EAs each time it amended the license.

For example, in 1996, it prepared an EA prior to approving a license amendment to allow an increase in fuel enrichment. See Exhibit 31. In 2001, it prepared an EA prior to approving a license amendment to allow Edison to increase its maximum reactor core power level. See Exhibit 32. And in 2015, it prepared an EA prior to approving an amendment allowing security personnel to use certain firearms and ammunition on site.

See Exhibit 33. The NRCs failure to prepare either an EA or EIS prior to issuing a license amendment and approving decommissioning activities is contrary to its prior practice at SONGS.

59.

Furthermore, the NRCs own regulations and guidance documents state that the NRC will prepare an EA or EIS prior to authorizing decommissioning. The NRCs regulations provide that [i]n connection with the amendment of an operating or combined license authorizing decommissioning activities... the NRC staff will prepare a supplemental environmental impact statement for the post operating or post combined

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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 license stage or an environmental assessment. 10 C.F.R. part 51.95(d). Similarly, the NRCs Environmental Review Guidance for Licensing Actions Associated with NMSS Programs NUREG-1748 (2003) states that the NEPA review process is usually initiated by... a decommissioning plan submitted to the NRC. See Exhibit 34 at 1-2.

60.

Numerous federal courts have also noted that decommissioning is an action which, even under the [NRCs] new policy, requires NEPA compliance. See, e.g.,

Citizens Awareness Network, Inc. v. U.S. Nuclear Regulatory Commn, 59 F.3d 284, 293 (1st Cir. 1995); see also New Jersey v. U.S. Nuclear Regulatory Comm'n, 526 F.3d 98, 103 (3d Cir. 2008) ([T]he NRC will conduct site-specific environmental analyses when licensees decommission); see also Benton Cty. v. U.S. Dep't of Energy, 256 F. Supp.

2d 1195, 1202 (E.D. Wash. 2003) (Prior to committing any resources to any one of the options for decommissioning, the [agency] must prepare an EIS.). Thus, the NRC was required to prepare either an EA or EIS prior to approving the Decommissioning Plan.

61.

The NRC partially discharged its duty to comply with NEPA prior to decommissioning through the Final Generic Environmental Impact Statement on Decommissioning of Nuclear Facilities, NUREG-0586 (1988), as supplemented by NUREG-0586, Supplement 1 (2002) (collectively, the Decommissioning GEIS). See Exhibit 35. The generic EIS analyzed the environmental impacts of decommissioning that are common to all sites. But the Decommissioning GEIS concluded that a site-specific supplemental EIS would be necessary to evaluate non-generic issues, such as the environmental impacts of decommissioning on environmental justice and threatened and endangered species:

The staff has considered available information on the potential impacts of decommissioning on environmental justice, including comments received on the draft of Supplement 1 of NUREG-0586. Based on this information, the staff has considered that the adverse impacts and associated significance of the impacts must be determined on a site-specific basis.... Subsequent to the submittal of the PSDAR, the NRC staff will consider the impacts related to environmental justice from decommissioning activities.

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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 See Exhibit 35 Supp. 1 at 4-65.

The staff has considered available information on the potential impacts of decommissioning on threatened and endangered species, including comments received on the draft of Supplement 1 of NUREG-0586. Based on this information, the staff has considered that the adverse impacts and associated significance of the impacts must be determined on a site-specific basis.

See Exhibit 35 Supp. 1 at 4-30. The NRCs regulations and guidance documents purport to fill these gaps in the Decommissioning GEIS by requiring the NRC to prepare either an EA or supplemental EIS prior to approving a decommissioning plan. See, e.g., 10 C.F.R. 51.95(d). The NRC, however, failed to prepare either an EA or supplemental EIS when it approved Edisons license amendment and authorized decommissioning at SONGS Units 2 and 3.

62.

The City of Laguna Beach (City) notified the NRC of this failure to comply with NEPA at SONGS in its August 12, 2016 letter. See Exhibit 36. Notably, the California State Lands Commission (CSLC) correctly determined that the decommissioning activities required the CSLC to prepare an Environmental Impact Report (EIR) under Californias Environmental Quality Act (CEQA), which is the State of Californias NEPA analog. In connection with preliminary scoping of the CSLC EIR, the City insisted that the NRC prepare a supplemental EIS, as required by NEPA, or alternatively prepare a joint EIS with the CSLC, as authorized by NEPAs implementing regulations. See 40 C.F.R. 1506.2. The City expressed specific concern over the following issues:

The NRC has not considered the environmental and safety effects of sea level rise caused by climate change.

The NRC has not addressed the environmental impacts of decommissioning on environmental justice, threatened and endangered species, offsite land use, offsite aquatic and terrestrial ecology, and certain cultural and historic resources.

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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 The NRC has not approved the design of the Holtec UMAX system that Edison has proposed for the ISFSI and that a partially subterranean design may reduce radiation safety.

The NRC has not addressed certain radiological safety concerns, such as the site-specific radiological safety concern of storing SNF in a seismically active marine environment, which is not addressed in the Decommissioning GEIS.

The proposed changes and alterations to the SONGS facilitys design associated with decommissioning, including the Spent Fuel Pool Island Project and the expanded and modified ISFSI, were never addressed in the SONGS Final Safety Analysis Report (FSAR) and thus require a separate license amendment.

63.

Despite the Citys letter, the NRC failed to take corrective action. Instead, the NRC took the incorrect and inconsistent position that it was not required to prepare an EA or supplemental EIS in connection with approving decommissioning, because the decommissioning activities remain within the scope of the Decommissioning GEIS [and]

applicable site-specific NEPA analyses conducted in support of previous licensing actions. See Exhibit 37. Specifically, the NRC claimed that review of site-specific environmental impacts (i.e., those not dispositioned generically in the Decommissioning GEIS) are first addressed in the [1981 EIS] and were additionally analyzed in the EA/FONSIs for license amendment or exemption requests during the plants operation, such as the 1996 EA, 2001 EA, and 2015 EA. But this is plainly untrue. The prior site-specific analyses at SONGS never addressed the potential environmental impacts of decommissioning. They addressed the potential environmental impacts of the proposed actions stated therein (e.g., a license amendment to allow security personnel to carry certain ammunition on-site). See Exhibit 33. These prior analyses do not act to satisfy the NRCs duty to prepare a site-specific supplemental EIS for non-generic decommissioning issues, as contemplated by the Decommissioning GEIS and NRC.

64.

This is not the first time the NRC has failed to comply with its own regulations in the context of preparing site-specific supplemental EISs that tier off of a

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10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 generic EIS. In August 2013, the Office of the Inspector General (OIG) audited the NRCs NEPA compliance and concluded that the NRC had an incorrect understanding of the regulations related to scoping for EISs that tier off of a generic EIS. See Exhibit 38 at 24. The issue here is similar. The NRCs reasoning for refusing to prepare a supplemental site-specific EIS is based on an incorrect understanding of its own regulations and the role of the Decommissioning GEIS.

65.

The NRCs failure to prepare either an EA or supplemental EIS prior to approving Edisons license amendment and authorizing decommissioning at SONGS Units 2 and 3 is contrary to the Decommissioning GEIS, NRC regulations, and federal court opinions. In addition, it violates NEPA, 42 U.S.C. § 4332(2)(C), and constitutes arbitrary and capricious conduct under the Administrative Procedure Act, 5 U.S.C. § 706.

Petitioner therefore requests that the NRC immediately suspend all decommissioning operations at SONGS and prepare a supplemental EIS that evaluates site-specific environmental issues not addressed in the Decommissioning GEIS or prior site-specific NEPA analyses, such as the those issues referenced herein. In so doing, the NRC should (1) discuss mitigation measures the agency could take to reduce environmental impacts; (2) discuss the direct, indirect, and cumulative impacts that may result from decommissioning activities; and (3) ensure the use of accurate scientific analysis and high quality information. 40 C.F.R. §§ 1500.1(b), 1508.25(b).

Dated: September 24, 2019 BARNES & THORNBURG LLP By: /s/ Charles G. La Bella Charles G. La Bella Attorneys for Plaintiff Public Watchdogs