ML23103A394

Slomfp Reply Re DC ISFSI

ML23103A394
Person / Time
Site:	Diablo Canyon
Issue date:	04/13/2023
From:	Curran D Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
Download: ML23103A394 (0)

Text

April 13, 2023 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. 72-26 Diablo Canyon Independent Spent Fuel Installation SAN LUIS OBISPO MOTHERS FOR PEACES REPLY TO PG&ES AND NRC STAFFS RESPONSES TO SLOMFPS HEARING REQUEST AND PETITION TO INTERVENE IN LICENSE RENEWAL PROCEEDING FOR DIABLO CANYON SPENT FUEL STORAGE INSTALLATION I. INTRODUCTION Pursuant to 10 C.F.R. § 2.309(i)(2), San Luis Obispo Mothers for Peace (SLOMFP) submits this Reply to responses by Pacific Gas & Electric Co. (PG&E) and the U.S. Nuclear Regulatory Commission (NRC or Commission) Staff to SLOMFPs request for a hearing and petition to intervene in this proceeding.1 In Contentions A and B, SLOMFP challenges a PG&Es license renewal application for the independent spent fuel storage installation (ISFSI) at the Diablo Canyon nuclear power plant (Diablo Canyon or DCPP).2 SLOMFP asserts that the application which was submitted over a year ago in March of 2022 fails to satisfy NRC safety and environmental requirements because it relies on the outdated assumption that PG&E 1 See San Luis Obispo Mothers for Peaces Hearing Request and Petition to Intervene in License Renewal Proceeding for Diablo Canyon Spent Fuel Storage Installation (March 13, 2023)

(SLOMFP Hearing Request); Pacific Gas and Electric Companys Answer Opposing San Luis Obispo Mothers for Peaces Hearing Request and Petition to Intervene (April 7, 2023) (PG&E Answer); NRC Staff Answer to San Luis Obispo Mothers for Peace Hearing Request and Petition to Intervene (April 7, 2023) (NRC Staff Answer).

2 Diablo Canyon Independent Spent Fuel Storage Installation, Site-Specific License Renewal Application, Rev. 0 (March 2022) (2022 ISFSI License Renewal Application).

will retire the Diablo Canyon reactors in 2024 (Unit 1) and 2025 (Unit 2) and therefore addresses licensing issues that would be pertinent to an ISFSI for a nuclear plant that is very close to the decommissioning phase. Since the State Legislatures passage of S.B. 846 in September of 2022, however, PG&E has drastically changed its plans and now intends to apply for renewal of the Diablo Canyon operating licenses.3 That means that (a) PG&E may generate a significant additional quantity of spent fuel that will require storage and (b) decommissioning may be delayed by as much as twenty years. But PG&E has failed to update its application to address these changed circumstances.

II. DISCUSSION A. Standing Neither PG&E nor the Staff objects to SLOMFPs standing.4 Therefore, the Atomic Safety and Licensing Board (ASLB) should find that SLOMFP has standing to make this hearing request.

B. Admissibility of Contentions Contention A: Information Provided in License Renewal Application is Incorrect and Insufficient to Satisfy NRC Safety Regulations.

The Staff does not oppose admission of Contention A limited to the claim that the Application does not appear to reflect recent updates concerning the operations and date of 3 See Hearing Request at 1-2. PG&E announced the decision to the NRC in a letter from Paula Gerfen, Senior Vice President and Chief Nuclear Officer, PG&E, to NRC, re: Request to Resume Review of the Diablo Canyon Power Plant License Renewal Application or, Alternatively, for an Exemption from 10 CFR 2.109(b), Concerning a Timely Renewal Application (Oct. 31, 2022)

(Gerfen Letter).

4 PG&E Answer at 1 n.1, NRC Staff Answer at 1.

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expected retirement of the Diablo Canyon reactors.5 As the Staff recognizes, PG&Es assertion in its license renewal application that it will be able to rely on its decommissioning fund to demonstrate its financial qualifications to operate the ISFSI would not be accurate if the Diablo Canyon reactors are still operating beyond their retirement dates.6 The Staff objects, however, to all aspects of Contention A that relate to potential expansion of the ISFSI.7 In light of PG&Es statement that it has not decided whether to expand the capacity of the ISFSI, SLOMFP hereby drops the last paragraph of Contention A so that it now states as follows:

PG&Es license renewal application is incorrect and insufficient to satisfy NRC design criteria and safety regulations for ISFSIs because it fails to provide accurate and complete information regarding its satisfaction of NRC safety regulations 10 C.F.R. § 72.22(e), 10 C.F.R. §§ 72.30(a) and (b), and the General Design Criteria in 10 C.F.R. Part 72, Subpart F. The 2022 ISFSI License Renewal Application is inaccurate and incomplete because its representations are based on the incorrect assumption that PG&E will retire the Diablo Canyon reactors in 2024 and 2025. In fact, however, PG&E intends to seek renewal of the reactor licenses for as much as twenty years, and has obtained a regulatory exemption from NRC for that purpose. If the NRC grants PG&Es reactor license renewal application, it may generate as much as half the quantity of spent fuel that will be generated by the end of the first license term - a quantity too substantial to be ignored.

For instance, PG&E asserts that it satisfies 10 C.F.R. § 72.22(e)s financial qualifications requirements for operation because the General Rate Case process regulated by the CPUC provides it with sufficient funds to operate the ISFSI until the DCPP Unit 1 permanent shutdown in 2024. After that, PG&E proposes to take funding from the Decommissioning Trust Fund. In fact, however, PG&E may operate the reactors an additional twenty years, thereby extending the period in which the operation of the ISFSI must be funded by means other than the Decommissioning Trust Fund. PG&E must demonstrate its financial qualifications for the entire twenty-year renewal period of the reactor licenses.

Similarly, PG&E claims to have sufficient funds to decommission the ISFSI. Id. But PG&Es claim is based on the assumption that the ISFSI will hold only the amount of spent fuel that will be generated during the first 40 years of the reactors operating lives.

5 NRC Staff Answer at 11.

6 Id. at 13.

7 Id. at 13-14.

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PG&E has not addressed the cost of decommissioning the ISFSI if it is used to store a quantity of spent fuel that is half again as large as the quantity that has been generated and will be generated during the reactors initial license terms. Therefore, PG&E has failed to satisfy 10 C.F.R. §§ 72.30(a) and (b).

SLOMFP requests the ASLB to admit Contention A as modified.

The ASLB should also reject PG&Es meritless argument that its current plan to seek renewal of its operating licenses for the Diablo Canyon reactors is irrelevant to this proceeding because the NRC is not required to assume NRC approval of a separate, potential future licensing application for renewal of the DCPP licenses.8 First, the reactor license renewal proceeding is not separate from ISFSI license renewal. As the Staff points out, operations at the DCPP are connected to operations at the Diablo Canyon ISFSI by the Application.9 The ISFSI would not exist without operation of the Diablo Canyon reactors.

Second, while it is possible that the NRC will not approve PG&Es license renewal application, it would be unreasonable to disregard the fact that PG&E has a definite plan to seek 20-year renewal of its operating license and has also obtained a regulatory exemption that will allow it to continue to operate past its reactor retirement dates for an indefinite period while its license renewal application is pending.10 As the Staff recognizes, PG&Es financial circumstances for purposes of financial assurance will be very different if it is operating the reactors and ISFSI for another twenty years versus closing the reactors in another one to two years, because the decommissioning fund will not be immediately accessible.11 Nowhere do 8 PG&E Answer at 11.

9 NRC Staff Answer at 12.

10 Id. at 11.

11 Id. at 13.

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NRC regulations or guidance say that such an important factor can be disregarded. In fact, if PG&E had pursued its original reactor license application after submitting it in 2009, it would have known by the spring of 2022 whether it would continue operating the reactors for another twenty years. It is only because of the extremely unusual circumstances initiated by the California Legislatures passage of S.B. 846 that the question of whether PG&Es reactor licenses will be renewed is not resolved at the time that the NRC is considering its ISFSI license renewal application.

Further, while PG&E argues that it will be in an even better position financially if it delays decommissioning12, this is not clear, and should be addressed in the license renewal application.

If, as PG&E suggests, the State of California will fully cover decommissioning costs13, this is a radical departure from the previous NRC-approved decommissioning financing plan, which depended on ratepayer financing. Therefore, it should be addressed in the license renewal application. PG&E should also address the significance of the regulatory exemption that allowed it to dip into the decommissioning trust fund early, for purposes of planning decommissioning and managing spent fuel.14 PG&Es failure to address these issues or to show that it will satisfy NRC financial assurance and decommissioning funding requirements if its reactor operating licenses are renewed are significant regulatory issues on which SLOMFP has demonstrated the existence of a genuine and material dispute.

Contention B: Inadequate Statement of Purpose and Need in Environmental Assessment.

12 PG&E Answer at 14.

13 PG&E Answer at 14 and n.53.

14 Notice of Exemption, 84 Fed. Reg. 48,955 (Sept. 17, 2019).

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Contention B challenges the adequacy of the Purpose and Need Statement in PG&Es Environmental Report to satisfy the National Environmental Policy Act (NEPA) and NRC implementing regulations because it is based on the assumption that the reactors will close when their operating licenses expire in 2024 and 2025. Therefore, it discusses only the purposes and needs of the ISFSI that are related to continued storage of spent fuel after the reactor license termination dates, and not purposes and needs related to continued operation of the reactors and generation of more spent fuel.15 Both PG&E and the Staff oppose admission of Contention B. PG&E argues there is no regulatory provision that requires a discussion of how renewal of the ISFSI license relates to the continued operation of the Diablo Canyon reactors.16 Neither NEPA nor the NRCs implementing regulations contained detailed prescriptions for an adequate environmental assessment or environmental impacts statement. Instead, the reviewing court or agency must apply a rule of 15 In the last paragraph, the Environmental Assessment sums up the purpose of and need for the ISFSI as follows:

Due to the current timeframe projections for development of a federal geologic repository, the purpose and the need for the proposed action is to provide for continued temporary dry storage of spent nuclear fuel generated from operation of DCPP at the DC ISFSI until facilities are available for interim or permanent disposal.

Id. at F F-2.

16 PG&E Answer at 19.

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reason.17 Here, the Environmental Reports narrow focus does not satisfy the rule of reason because it does not address how re-licensing the ISFSI will relate to the ongoing production of a large quantity of spent fuel if the Diablo Canyon reactor licenses are renewed. As the Staff acknowledges elsewhere in its Answer, operations at the DCPP are connected to operations at the Diablo Canyon ISFSI by the Application.18 The ISFSI exists in relation to the reactors, not apart from them. And therefore, the cumulative impacts of additional spent fuel to be generated by the reactors, including the potential need for additional spent fuel storage space, is relevant.

The Staff contends that Contention B is deficient because it does not appear to take issue with the actual discussion of alternatives in the Application.19 But the discussion of alternatives in the Environmental Report closely follows the Statement of Purpose and Need, by discussing only alternatives related to the storage of spent fuel at the ISFSI and not alternatives related to the generation of spent fuel during an extended operating license term and alternatives for addressing the cumulative impacts of that additional quantity of spent fuel 20 Such a blindered approach to the continued generation of spent fuel and the continued creation of a need for 17 City of Carmel-by-the-Sea v. Dept. of Transportation, 123 F.3d 1142, 1150-51 (9th Cir. 1997).

As the Court explained:

We review an Environmental Impact Statement under the "rule of reason" to determine whether it contains "a reasonably thorough discussion of the significant aspects of the probable environmental consequences." See Idaho Conservation League v. Mumma, 956 F.2d 1508, 1519 (9th Cir. 1992). We make "a pragmatic judgment whether the [Environmental Impact Statement's] form, content and preparation foster both informed decisionmaking and informed public participation." Id. (quoting California v. Block, 690 F.2d 753, 761 (9th Cir.

1982)).

18 See discussion above at page 4 and NRC Staff Answer at 12.

19 NRC Staff Answer at 17 (citing Environmental Report at F F-14).

20 Environmental Report at F F-14.

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storage and disposal is not countenanced by NEPAs rule of reason. Therefore, Contention B should be admitted.

IV. CONCLUSION For the foregoing reasons, SLOMFP has demonstrated its standing to request a hearing and intervene in this proceeding and has submitted two admissible contentions. Accordingly, the NRC should grant SLOMFP a hearing.

Respectfully submitted,

__/signed electronically by/___

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

1725 DeSales Street N.W., Suite 500 Washington, D.C. 20036 240-393-9285 dcurran@harmoncurran.com April 13, 2023 8

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. 72-26 Diablo Canyon Independent Spent Fuel Installation CERTIFICATE OF SERVICE I certify that on April 13, 2023, SAN LUIS OBISPO MOTHERS FOR PEACES REPLY TO PG&ES AND NRC STAFFS RESPONSES TO SLOMFPS HEARING REQUEST AND PETITION TO INTERVENE IN LICENSE RENEWAL PROCEEDING FOR DIABLO CANYON SPENT FUEL STORAGE INSTALLATION was posted on the NRCs Electronic Information Exchange.

___/signed electronically by/__

Diane Curran 9