ML23186A163
| ML23186A163 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 06/13/2023 |
| From: | Atomic Safety and Licensing Board Panel |
| To: | |
| SECY RAS | |
| References | |
| RAS 56724, NRC-2422, 72-26-ISFSI-MLR, ASLBP 23-979-01-ISFSI-MLR-BD01 | |
| Download: ML23186A163 (0) | |
Text
Official Transcript of Proceedings NUCLEAR REGULATORY COMMISSION
Title:
Pacific Gas and Electric Company, Diablo Canyon Independent Spent Fuel Storage Installation Docket Number:
72-26-ISFSI-MLR ASLBP Number:
23-979-01-ISFSI-MLR-BD01 Location:
teleconference Date:
Wednesday, June 13, 2023 Work Order No.:
NRC-2422 Pages 1-71 NEAL R. GROSS AND CO., INC.
Court Reporters and Transcribers 1716 14th Street, N.W.
Washington, D.C. 20009 (202) 234-4433
1 UNITED STATES OF AMERICA 1
NUCLEAR REGULATORY COMMISSION 2
+ + + + +
3 ATOMIC SAFETY AND LICENSING BOARD PANEL 4
+ + + + +
5 HEARING 6
x 7
In the Matter of: :
8 PACIFIC GAS AND ELECTRIC : Docket No.
9 COMPANY, INC. : 72-26-ISFSI-MLR 10
- ASLBP No.
11
- 23-979-01-ISFSI-MLR-BD01 12 (Diablo Canyon :
13 Independent :
14 Spent Fuel Storage :
15 Installation) :
16
x 17 Wednesday, June 13, 2023 18 BEFORE:
19 E. ROY HAWKENS, Chair 20 NICHOLAS G. TRIKOUROS, Administrative Judge 21 JUDGE GARY S. ARNOLD, Administrative Judge 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
2 APPEARANCES:
1 On Behalf of PG&E, Inc.:
2 RYAN K. LIGHTY, ESQ.
3 PAUL BESSETTE, ESQ.
4 of:
Morgan, Lewis & Bockius LLP 5
1111 Pennsylvania Avenue, N.W.
6 Washington, DC 20004 7
ryan.lighty@morganlewis.com 8
paul.bessette@morganlweis.com 9
On Behalf of San Luis Obispo Mothers for Peace:
10 DIANE CURRAN, ESQ.
11 of: Hamon, Curran, Spielberg & Eisenberg, LLP 12 1725 DeSales Street, N.W.
13 Suite 500 14 Washington, DC 20036 15 dcurran@harmoncurran.com 16 On Behalf of the Nuclear Regulatory Commission:
17 ADAM S. GENDELMAN, ESQ.
18 CATHERINE E. KANATAS, ESQ.
19 of:
Office of the General Counsel 20 Mail Stop - O-14A44 21 U.S. Nuclear Regulatory Commission 22 Washington, D.C. 20555-0001 23 adam.gendelman@nrc.gov 24 catherine.kanatas@nrc.gov 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
3 C-O-N-T-E-N-T-S 1
PAGE 2
Presentation by Diane Curran, Counsel for 3
San Luis Obispo Mothers for Peace 6
4 Presentation by Ryan Lighty, Counsel for PG&E 26 5
Presentation by Adam Gendelman, Counsel for 6
Nuclear Regulatory Commission 48 7
Rebuttal by Diane Curran, Counsel for 8
San Luis Obispo Mothers for Peace 64 9
10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
4 P R O C E E D I N G S 1
1:01 p.m.
2 JUDGE HAWKENS: And with that, we'll go on 3
the record, please. Good afternoon. Today, we'll 4
hear oral argument in a license renewal proceeding 5
entitled Pacific Gas and Electric Company, Diablo 6
Canyon Independent Spent Fuel Storage Installation, 7
Docket No. 72-26-ISFSI-MLR.
8 Petitioner, San Luis Obispo Mothers for 9
Peace, challenges the application submitted by PG&E to 10 renew its license for the independent spent fuel 11 storage installation at the Diablo Canyon Nuclear 12 Plant. And as an aside going forward, you may hear 13 judges and counsel use the acronym ISFSI when 14 referring to the independent spent fuel storage 15 installation.
16 My name is Roy Hawkens. I'm a legal 17 judge. I chair this licensing board, and I'm joined 18 by Technical Judge Nic Trikouros and Technical Judge 19 Dr. Gary Arnold, both who have an expertise in nuclear 20 engineering.
21 Our Board is assisted by our law clerk 22 Noel Johnson. And we also are receiving support 23 remotely from law clerk Allison Wood. The argument is 24 being held in the hearing room at the NRC Headquarters 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
5 in Rockville, Maryland. And we welcome counsel and 1
the audience.
2 A listen-only telephone line has been made 3
available for those who could not be here today. And 4
a court reporter is preparing a transcript that will 5
be placed in the NRC's electronic hearing docket 6
within a week. As I mentioned, this proceeding 7
involves a challenge to PG&E's application to renew 8
its license for the ISFSI located at the Diablo Canyon 9
Power Plant.
10 Petitioner has proffered two contentions 11 challenging that application. First, it argues the 12 information in the renewal application regarding 13 PG&E's financial qualification to operate and 14 decommission the facility is deficient because it's 15 based on the incorrect assumption that the reactors at 16 the Diablo Canyon Power Plant will be retired in 2024 17 and 2025. Second, it argues a portion of the 18 environmental report supplement is deficient for the 19 same reason.
20 Before licensing board will grant a 21 hearing request, the petitioner must demonstrate 22 standing and must offer two admissible contentions.
23 The litigants agreed to those issues, and the 24 licensing board has read those briefs. Petitioner 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
6 argues the hearing request should be granted because 1
it has standing and it offers two admissible 2
contentions.
3 PG&E does not dispute petitioner's 4
standing, but it argues that neither contention is 5
admissible. And therefore, the hearing request should 6
be denied. The NRC staff on the other hand argues the 7
hearing request should be granted because petitioner 8
has established standing and it proffers one 9
admissible contention. For the record, would counsel 10 please introduce themselves and any colleagues who are 11 accompanying them starting with petitioner, please?
12 MS. CURRAN: Good afternoon. My name is 13 Diane Curran. I'm appearing for San Luis Obispo 14 Mothers for Peace.
15 JUDGE HAWKENS: Thank you, Ms. Curran.
16 PG&E?
17 MR. BESSETTE: Good afternoon, Your Honor.
18 I'm Paul Bessette, counsel for Pacific Gas and 19 Electric. With me is Ryan Lighty who'll be conducting 20 the oral argument with you. And behind me is my 21 colleague Tim Matthews, Partner at Morgan, Lewis. We 22 also have a summer intern with us, Jake Negvesky, 23 who's observing the proceedings.
24 JUDGE HAWKENS: Thank you. NRC staff?
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
7 MR. GENDELMAN: Good afternoon. My name 1
is Adam Gendelman. I'm an attorney in Material Cycle 2
and Waste Division in the NRC Office of General 3
Counsel. With me is Catherine Kanatas and some NRC 4
technical staff are in the gallery, Mr. James Park, 5
Mr. Trent Wertz, and Dr. Christopher Markley.
6 JUDGE HAWKENS: All right. Thank you.
7 Each litigant has been allotted 40 minutes to present 8
argument. Petitioner will go first, followed by PG&E, 9
and followed by the NRC staff. And Petitioner may 10 reserve up to ten minutes for rebuttal. The Board's 11 law clerk, Ms. Johnson, will be keeping track of time.
12 During the course of your argument, the 13 green light will be illuminated. When five minutes 14 are left, you'll see the yellow light. And when time 15 has elapsed, you'll see the red light at which time 16 we'd ask counsel to wrap up their arguments promptly 17 unless the Board has an issue on questions. At this 18 stage, does counsel have any questions?
19 (No audible response.)
20 JUDGE HAWKENS: Seeing that nobody does, 21 let me ask Judge Trikouros, anything to add before we 22 proceed?
23 JUDGE TRIKOUROS: No, thank you.
24 JUDGE ARNOLD: No.
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
8 JUDGE HAWKENS: Ms. Curran, do you --
1 MS. CURRAN: I'm ready.
2 JUDGE HAWKENS: -- desire to reserve any 3
time for rebuttal?
4 MS. CURRAN: Yes, I would like to reserve 5
ten minutes, please.
6 JUDGE HAWKENS: Very well. You may 7
proceed. Thank you.
8 MS. CURRAN: Thank you. Good afternoon.
9 And I first want to thank you all for accommodating me 10 when I needed to postpone the oral argument for health 11 reasons. I'm doing fine, but I needed that day. And 12 I really appreciate it. Thank you.
13 JUDGE HAWKENS: You're welcome. We're 14 grateful to counsel for accommodating you with your 15 request as well.
16 MS. CURRAN: Yes, same to the counsel.
17 Just before we start in on the contentions, I want to 18 set a little background on this because our concerns 19 arise from the fact that PG&E submitted its license 20 renewal application in March of 2022 when its plans 21 for the Diablo Canyon reactor were completely 22 different than they are today. As you know, today the 23 NRC has granted -- recently, the NRC granted PG&E an 24 exemption from the timely renewal rule to put in a new 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
9 license renewal application which if PG&E submits it 1
by December of 2023 will allow it to get the 2
protection of the timely renewal rule.
3 And as far as we know, PG&E is planning to 4
submit a license renewal application for the reactors 5
even though the State of California and the bill had 6
passed in September, said that they would limit the 7
operation to five years. They left it a little open 8
ended.
9 And as far as we know, PG&E is planning to 10 apply for a 20-year renewal of the reactor licenses.
11 And as the NRC says in its response to our 12 contentions, the operation of the reactors is related 13 to the ISFSI. It was the motivation for the licensing 14 of the ISFSI in the first place.
15 So here we are because PG&E submitted the 16 ISFSI license renewal application back when they 17 thought they were going to close the reactors in 2024-18 2025. And the only purpose of the ISFSI if that were 19 true would be to have a safe place to store spent fuel 20 until the repository opens. There's no need to talk 21 about the operation of the facility. It was 22 essentially ending.
23 Our concerns arise from the fact that PG&E 24 hasn't amended its application even though it's known 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
10 since September that it was planning to do something 1
different or it might do something different. And 2
it's known since October when it requested the NRC to 3
issue the exemption that it wanted to submit a new 4
license renewal application. We have two contentions.
5 The first contention relates to financial 6
assurance for operation -- safe operation of the ISFSI 7
and also decommissioning of the ISFSI. Again, in both 8
instances, the representations made by PG&E and the 9
license renewal application are that PG&E is going to 10 operate the ISFSI for only a few more years and then 11
-- or it will operate it for a long time but under the 12 current regime of getting funding from the rate payers 13 only a few more years. And then it will tap into the 14 decommissioning trust fund to operate the ISFSI.
15 And the same thing for decommissioning, 16 that as far as they knew back then, they were going to 17 start decommissioning right away. And as PG&E says in 18 appendix -- page G-4 of its appendix, for purposes of 19 providing an estimate for a funding plan, financial 20 assurance is expected to be provided based on a prompt 21 ISFSI decommissioning scenario. So that timing of 22 decommission affects the cost of decommissioning.
23 It affects where PG&E is going to get the 24 money for decommissioning. And in our view, the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
11 application should be accurate. It's required by the 1
NRC regulations which are there to protect the public, 2
there to protect the safety of the ISFSI operation.
3 We know that we have historic examples 4
where not enough money was set aside for maintaining 5
nuclear waste. And these regulations evolved out of 6
that. We also have a situation where --
7 JUDGE HAWKENS: May I interrupt? One --
8 MS. CURRAN: Of course.
9 JUDGE HAWKENS: -- quick question. And I 10 want to hear more about your contention of 11 admissibility after this. But at the outset, although 12 nobody has challenged standing, and in fact, the NRC 13 staff agrees standing, as you know, the Board has an 14 independent obligation to verify that standing exists.
15 And I was wondering if you could just summarize your 16 views of standing and which of the members of the 17 petitioner has standing under established case law.
18 MS. CURRAN: Yes. Well, we rely on the --
19 principally on the licensing board's decision with 20 respect to spent fuel storage in the original ISFSI 21 licensing proceeding in which members of San Luis 22 Obispo Mothers for Peace who live within a few miles 23 of a reactor or within 18 miles actually were found to 24 have standing.
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
12 JUDGE HAWKENS: Seventeen miles, I 1
believe.
2 MS. CURRAN: Was it seventeen? Okay. We 3
have members living within six miles. This is a very 4
large quantity of radioactive material. And if there 5
were any kind of airborne release of this material, 6
the licensing board has found it's reasonable to 7
conclude that this could affect people living near the 8
facility.
9 If the Board is thinking of reconsidering 10 that
- decision, we would really appreciate an 11 opportunity to brief it more fully. The issue has 12 been briefed in detail in a case in the D.C. Circuit 13 involving a centralized storage facility in Texas.
14 And we'd be glad to provide you with all that legal 15 briefing if you wish.
16 JUDGE ARNOLD: Could I just mention, in 17 the Bell Bend case, CLI-10-07, the commission said, 18 our case law is clear that a petitioner must make a 19 fresh standing demonstration in each proceeding in 20 which intervention is sought. So that sounds to me as 21 though they're ruling out basing your standing on a 22 previous case where you establish standing.
23 MS. CURRAN: Judge Arnold, I have a little 24 different interpretation of that precedent. I don't 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
13 think that -- I don't think it's saying that previous 1
decisions have to be revisited. I think what it's 2
saying is you can't come in and say a few years ago 3
you found we had standing, and we're not going to put 4
in standing affidavits again.
5 We did that. I don't think -- and I could 6
be wrong. But I don't think that decision is saying 7
all previous decisions are up for reconsideration.
8 It's saying petitioners can't rely on previous 9
standing declarations or any kind of representations 10 regarding your standing. And we have done all that 11 beforehand. We had new standing declarations from a 12 number of Mothers for Peace members.
13 JUDGE ARNOLD: If you take a look at the 14 case you cited where they decided 17 miles, they did 15 not do that based upon an examination of are the 16 threats in an ISFSI. They just said, well, Shearon 17 Harris used 17 miles so we'll use it too. That sounds 18 to me to be a very poor basis to decide that somebody 19 has standing. Now as I understand it, although you 20 never used the expression, proximity plus, in your 21 petition, that that's basically what you're basing 22 your standing on.
23 MS. CURRAN: Yes.
24 JUDGE ARNOLD: And as the staff mentioned 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
14 in their answer, petitioner must demonstrate that the 1
proposed action involves a significant source of 2
radioactivity producing an obvious potential for 3
offsite consequences. Now I personally don't see an 4
obvious potential. But you, I believe, do. Could you 5
tell me what that potential is and how it may occur?
6 MS. CURRAN: It would -- certainly in the 7
case that we brought, it was in -- I guess it would've 8
been the first ISFSI licensing proceeding, we 9
presented scenarios where a cask could be breached and 10 a
radioactive release could
- occur, airborne 11 radioactive release with significant off-site 12 consequences. So we have -- that hasn't changed.
13 That's a potential attack on an ISFSI. We also know 14 that spent fuel is the most highly radioactive 15 substance, or one of them, on the planet. And this is 16 a significant quantity being stored in one place.
17 JUDGE ARNOLD: So I do not have those 18 scenarios in front of me. And they're not in your 19 petition. Can you recall what type of circumstances 20 would lead to a release of that nature?
21 MS. CURRAN: We presented scenarios of an 22 attack on a spent fuel storage facility. And we did 23 not get into exhaustive detail because it's a 24 sensitive security issue. But we demonstrated that it 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
15 was credible and that it could result in a significant 1
off-site release.
2 And our expert witness talked about what 3
the consequences could be, that they were far reaching 4
and significant. And I would be happy to brief the 5
standing issue again. We rely on the precedent and 6
the very same ISFSI licensing that was decided some 7
years ago. But if it's a concern of the licensing 8
board, we'd be happy to present all that evidence 9
again.
10 JUDGE ARNOLD: Would you contend that the 11 scenarios you presented then are still possible now, 12 that there's not been changes in technology or 13 anything that would make them less credible? Are the 14 scenarios of 20 years ago, are they still valid today?
15 MS. CURRAN: In my opinion as a lawyer, 16 these things are credible. You're talking about 17 standing where very little bit of harm is enough to 18 give you standing. I don't know -- I mean, these are 19 security issues, right? Has the ISFSI been redesigned 20 so that this is no longer a credible event? I'm never 21 going to be able to tell you that.
22 JUDGE HAWKENS: I will note that the 23 Commission recently -- as you mentioned, the storage 24 case, the Holtec case found proximity plus standing as 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
16 well. And although those weren't mentioned, do you 1
have any views on the applicability of your rationale 2
on those Commission decisions?
3 MS. CURRAN: They would be equally 4
applicable here, although the quantity is not as 5
great. But still, it's --
6 (Simultaneous speaking.)
7 JUDGE HAWKENS: Twenty-one hundred metric 8
tons though is a lot of radioactive waste.
9 MS. CURRAN: Yes.
10 JUDGE HAWKENS: Do you have any more on 11 standing?
12 JUDGE ARNOLD: No.
13 JUDGE HAWKENS: Do you have any more on 14 standing?
15 JUDGE TRIKOUROS: No.
16 JUDGE HAWKENS: You may proceed to the 17 contention of admissibility today.
18 MS. CURRAN: Okay. I'm just trying to 19 remember where I was.
20 JUDGE HAWKENS: You were on Contention A.
21 MS. CURRAN: Yeah.
22 JUDGE HAWKENS:
Operation and 23 decommissioning.
24 MS. CURRAN: Oh, yeah. So there's two 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
17 reasons why this is not just an academic exercise.
1 First of all, this is an ANSI -- these are ANSI 2
regulations. They were promulgated for a reason, to 3
provide reasonable assurance that in fact highly 4
radioactive spent fuel can be cared for adequately for 5
a long period of time in which we're going to have it 6
at reactive sites.
7 Second, PG&E has repeatedly referred to 8
itself as a contractor of the state. PG&E is now 9
holding itself out in a different light, in a 10 different relationship to the State of California.
11 The State of California is responsible for providing 12 funding for financial assurance for safe operation of 13 the ISFSI until the time of decommissioning starts.
14 The state, the ratepayers of the state, 15 the taxpayers of the state deserve to know where is 16 the money coming from. Are we paying for it? Who's 17 paying for it?
18 So those are the, I think, important 19 reasons why this information is important to provide.
20 And as the staff said in responding to our contention, 21 the operation of the plant is related to the ISFSI.
22 The ISFSI doesn't -- you might have been able to say 23 that in March of 2022, there's only one purpose for 24 this ISFSI going forward, to store spent fuel. But as 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
18 long as operation is going on, there's a relationship 1
there that needs to be addressed.
2 JUDGE HAWKENS: PG&E argues that don't 3
worry about that because the assumption we're using 4
provides a more conservative financial scenario. And 5
so you and the public should be satisfied with that.
6 How would you respond?
7 MS. CURRAN: I don't think it necessarily 8
is more conservative. They have or this period which 9
may be between 5 and 20 years. They don't have access 10 to the decommissioning trust fund.
11 And the whole issue of financing of the 12 future operation of Diablo Canyon is kind of up in the 13 air right now. The last thing we had from Public 14 Utilities Commission was approval of shutdown. That 15 was in 2018.
16 Now the PUC is going through a proceeding 17 where they're evaluating the prudence of allowing 18 Diablo Canyon to continue operating. I honestly don't 19 know how spent fuel storage factors into that. But 20 there's going to be a whole series of PUC proceedings 21 that have to do with covering the costs of Diablo 22 Canyon.
23 So it's not -- there's many things that 24 are uncertain here. And frankly if it were up to me, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
19 I wouldn't be standing here today arguing about this.
1 I wish that PG&E had simply amended its application or 2
asked the Board hold off until we know what we're 3
doing because it doesn't make any sense to rely on an 4
application that's so clearly out of date. And maybe 5
PG&E doesn't know what it's doing quite yet. But we 6
could all wait until that happens instead of kind of 7
arguing in a hypothetical sense what might happen in 8
the future.
9 JUDGE HAWKENS: What about their argument 10 that the application permissibly reflects the status 11 quo? And there's no regulation that you've cited that 12 requires them to include in the application something 13 that's purely speculative, uncertain. How would you 14 respond to that?
15 MS. CURRAN: Well, I think calling it the 16 status quo is a little extreme. This is a company 17 that has applied to the NRC for permission to seek 18 reactor license renewal. We know that the NRC has 19 told them they can get timing renewal protection and 20 if they file by the end of 2023.
21 So the status quo is kind of blurry in 22 terms of if you apply the -- if you go through the 23 process of throwing us out now, then when PG&E files 24 a new reactor license application, I honestly don't 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
20 see where we have an opportunity to litigate how that 1
affects the ISFSI because you will have approved the 2
license. So we're here. We're here because this was 3
the opportunity that came up. And we know that we get 4
60 days to ask for a hearing or else it's gone.
5 JUDGE ARNOLD: Six years ago, the 6
intentions of PG&E was to renew Diablo Canyon's 7
license and continue operating. A couple years ago, 8
the intention of PG&E was to shut down Diablo Canyon.
9 And now the intention of PG&E is to relicense Diablo 10 Canyon.
11 It looks like their intentions are a very 12 moving target, a very blurred issue I'm saying. I 13 wonder what legal requirement is there to make an 14 application that is being considered now reflect a 15 blurred future. I mean, yes, we would like it. But 16 is there a legal requirement?
17 MS. CURRAN: I think there is in the sense 18 that it's because what they say in the application 19 depends so much on whether there's an operation of the 20 reactor that's going on. And if you know that that's 21 in the plans, than to pretend that doesn't exist, it's 22 not an accurate reflection of PG&E's intentions. And 23 therefore, we think that they need to at least address 24 it.
25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
21 They could address it in the alternative.
1 They could say, well, if we -- maybe they'll have to 2
shut down the plant. Maybe they won't. Maybe the PUC 3
will say we're not giving you this five years that the 4
legislature wants us to give you.
5 They could address that in the 6
alternative. They could say if we shut down, this is 7
what we'll do. If we keep operating, this is what 8
we'll do.
9 And then we would have the satisfaction, 10 we would have the assurance that PG&E knows where it's 11 going to get the money and what it's going to cost 12 depending on the timing of decommissioning. Okay.
13 I'd like to -- unless you have more questions about 14 the safety contention, I'd like to move on to the 15 environmental contention. Can you tell me how much 16 time I have left, please?
17 MS. JOHNSON: Ten minutes.
18 MS. CURRAN: Ten minutes? Okay. The 19 environmental contention states that PG&E's 20 environmental report is inadequate to satisfy the 21 National Environmental Policy Act because the 22 statement of purpose and need relate only to the 23 storage of spent fuel that will be generated before 24 the expiration dates of 2024 and 2025 in the current 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
22 license until the repository becomes available. And 1
I can't remember, one of you just pointed out that 2
this environmental report is called a supplemental 3
environmental report. This is a supplement to the 4
original environmental report that was prepared in 5
2001.
6 And if you go back to that environmental 7
report, it talks about the relationship between the 8
operation of the plant and the ISFSI. At the time 9
PG&E thought or they knew that they could only operate 10 until 2006 and they were going to have to close down 11 if they didn't have additional spent fuel storage 12 capacity. So they evaluated a range of alternatives.
13 They came up with dry storage. They said 14 the dry storage facility is going to hold all the fuel 15 that we generate until 2024 and 2025. And they said 16 they picked dry storage over pool storage, quote, 17 based on an overall assessment of operational and 18 safety considerations, the amount of spent fuel to be 19 generated, the transportation requirements associated 20 with the alternatives, resources
- needed, and 21 scheduling restraints.
22 So PG&E looked at the whole picture of 23 operation and spent fuel storage and chose the ISFSI.
24 They chose to build an ISFSI and seek a license. They 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
23 chose to build it big enough to hold all of the spent 1
fuel that they would have.
2 And they said that in the environmental 3
report. And then they said that in the updated final 4
safety analysis report. We also know and this on page 5
-- I think it's page 11, note 15 of our hearing 6
request that the State of California has a policy 7
favoring moving fuel from the pools to the dry storage 8
facility. This is setting aside whatever the NRC --
9 you know the NRC's continuing storage rule says --
10 JUDGE HAWKENS: Can you explain why 11 California statutes and policy are within the scope of 12 this proceeding?
13 MS. CURRAN: Two reasons. One is that 14 PG&E calls itself a contractor to the state and should 15 be talking about the policy issues associated with 16 spent fuel storage that are important to the state.
17 And second, NEPA generally --
18 JUDGE HAWKENS:
I apologize for 19 interrupting. But what regulation are you basing that 20 on that requires them to address state statues and 21 policy?
22 MS. CURRAN: It's simply because in effect 23 PG&E is saying that they're standing in the shoes of 24 the state and making these environmental decisions.
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24 I don't have a regulation for that. This is a very 1
unusual situation. I've never seen anything like it 2
before.
3 And NEPA is a statute that requires 4
reasonable decisionmaking.
You look at the 5
circumstances and decide what are reasonable array of 6
alternatives to be looked at. What's a reasonable 7
impact analysis?
8 And I would submit that if the State of 9
California thinks that moving spent fuel into the 10 ISFSI is an important policy consideration and if PG&E 11 is a contractor to the state, that ought to be 12 discussed. And also -- yeah, I think that's -- I 13 think that's all I'll say. So in our view, the 14 statement of purpose and need now that we know PG&E is 15 planning to continue to operate the reactors for 5 to 16 20 years, should circle back to the initial 17 environmental report and talk about the purpose and 18 need back then, how has it been satisfied, how has it 19 changed, and what are the current considerations that 20 are important to our contractor, the State of 21 California?
22 JUDGE HAWKENS: They argue that they have 23 60 years of storage combined with dry storage and wet 24 storage. That's sufficient for the 20 years of 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
25 additional operating time for the reactors. And in 1
light of that, their purpose and needs statement is 2
adequate and what they consider is adequate. What's 3
wrong with that argument?
4 MS. CURRAN: You know, Judge Hawkens, I 5
think that one of the really important things about an 6
environmental assessment is that it informs the 7
affected members of the public. Right now, if you 8
were somebody who picked up the environmental 9
assessment and you're just reading it and you know 10 that PG&E is planning to operate these reactors for 11 some extended period of time, reading it because it's 12 been approved for a hearing process knowing what 13 PG&E's current plans are, you could easily think that 14 PG&E is representing that they are going to safely 15 store all of the quantity of spent fuel to be 16 generated by the Diablo Canyon reactors in this ISFSI 17 which, of course, is I think it's pretty universally 18 agreed that dry storage is safer than pool storage 19 because you don't have the potential for draining the 20 pools which is a matter of concern to the State of 21 California and others because of the potential for 22 earthquakes in that area.
23 So if you're a member of the public and 24 you're reading this document, you don't have a clear 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
26 understanding of what exactly is going on. You don't 1
have a clear understanding of the fact that if PG&E 2
operates even five more years, it may not have enough 3
room in the ISFSI for all the spent fuel that will be 4
generated. And thus for however many years until we 5
have a repository, fuel could be remaining in the 6
pool. Some amount of fuel could be remaining in the 7
pool. The public is entitled to disclosure of all 8
this so that state lawmakers, policymakers, members of 9
the public can debate, is this what we want?
10 And these are -- the purpose of an 11 environmental assessment is to educate people who 12 might be applying this under state law. They take the 13 facts that are presented in a federally approved 14 document and say, well, these are the facts that we 15 have to work with. It's really important that these 16 documents should be up to date and clear because 17 they're used for many purposes. And I think I will 18 close right there.
19 JUDGE HAWKENS: All right. You have two 20 minutes remaining. That'll be added to your rebuttal 21 time.
22 MS. CURRAN: Thank you.
23 JUDGE HAWKENS: Mr. Lighty, you may 24 proceed, sir. I'd ask as well sometime if you could 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
27 incorporate into your argument, although you did not 1
oppose standing, just inform us why you did not oppose 2
standing.
3 MR. LIGHTY: Yes, thank you, Your Honor.
4 And may it please the Board, Ryan Lighty on behalf of 5
PG&E. We know Your Honors have studied the briefs.
6 And we don't intend to use our presentation to simply 7
repeat those briefings.
8 But we would like to use a portion of our 9
time to discuss a few key issues that are particularly 10 important here and to respond to some assertions that 11 were in the staff's answer and the petitioner's reply.
12 And we'd like to start with two overarching topics 13 that inform the discussion today and then move into 14 the discussion of the individual contentions in turn 15 and then respond to some of petitioner's arguments 16 that have been presented today. And I expect our 17 prepared remarks will take less than half of our time, 18 so plenty of time for Board questions.
19 And I'll start off addressing the standing 20 issue as you requested, Your Honor. We did not 21 analyze that issue in depth because in our view, the 22 standing analysis is immaterial given that neither of 23 the contentions is admissible. The petition must be 24 denied for that reason alone.
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28 So we didn't conduct an analysis of 1
standing. But to go to Judge Arnold's point about the 2
Bell Bend proceeding, we certainly agree that a fresh 3
standing demonstration must be made in every 4
proceeding. You cannot rely on the factual predicate 5
from a prior ruling. And that must be demonstrated 6
fresh in each proceeding.
7 To the extent that petitioners rely only 8
on their finding of standing in the initial ISFSI 9
licensing proceeding, I would note that that's a 10 different type of proceeding. An initial licensing 11 proceeding is different than a license renewal 12 proceeding. And so to the extent that the standards 13 are different, that case law may or may not apply 14 squarely here. So, turning back to the two 15 overarching topics.
16 JUDGE HAWKENS: To be clear, you do not 17 oppose standing?
18 MR. LIGHTY: Correct, Your Honor.
19 JUDGE ARNOLD: And one other thing, in not 20 opposing standing, are you agreeing that your ISFSI 21 poses an obvious potential for off-site consequences?
22 MR. LIGHTY: We do not necessarily agree 23 with that assertion.
24 JUDGE HAWKENS: Although you haven't 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
29 opposed it because you haven't opposed standing?
1 MR. LIGHTY: Correct, correct. To the 2
extent that off-site consequences must be 3
demonstrated, they have to be demonstrated at a 4
particular radius, specific to the type of licensing 5
action that is presented. And so to the extent that 6
the representations and the standing declarations 7
don't mean that radius, then obviously it would be 8
petitioner's burden to make the demonstration that it 9
does apply here.
10 So turning back to the overarching topics, 11 the overarching themes presented here today, first, we 12 want it to be crystal clear that the LRA was complete 13 and accurate when it was submitted. And still to 14 date, it accurately reflects the legal status quo.
15 Based on the current legal posture, the reactor 16 operating licenses are set to expire at the end of 17 their initial four year terms.
18 And absent intervening circumstances that 19 would materially change the facts of the ground, 20 that's what will happen. No one disputes that PG&E is 21 planning to seek renewal of its licenses, but it 22 hasn't done so yet. No application has been filed.
23 No application has been docketed.
24 And that speculative application certainly 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
30 has not been approved yet and is noted in our brief at 1
Footnote 46. The California Public Utilities 2
Commission or CPUC also has not yet authorized that 3
continued operation. So there are several gates that 4
must be passed through before continued operation 5
could become the legal reality.
6 In fact, the petitioner's currently 7
participating in at least three different proceedings, 8
in state court, in federal court, before CPUC seeking 9
to prevent continued operation. So for the petitioner 10 to argue here that the ISFSI license renewal 11 application was required to assume continued operation 12 is a bit disingenuous. At bottom, the LRA currently 13 reflects the most up-to-date legal information 14 regarding the status of the DCPP reactor license.
15 JUDGE HAWKENS: At what point would PG&E 16 be required to amend the application?
17 MR. LIGHTY: Well, I think that's a good 18 question and an issue that petitioner should've 19 addressed in their petition. They haven't identified 20 any regulation in Part 72 that requires the LRA, which 21 was complete and accurate at the time it was filed, to 22 be updated to reflect an inchoate scenario involving 23 potential future licensing applications in a different 24 proceeding. And our view is that there is no such 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
31 regulation in Part 72 that requires that update to be 1
made under these circumstances.
2 JUDGE HAWKENS: And can you answer the 3
question then when are you required to amend it, the 4
5 MR. LIGHTY: I think in our view when the 6
reactor -- if the reactor licenses are, in fact, 7
renewed, that would be a substantially changed 8
circumstance that should be reflected in the 9
application.
10 JUDGE HAWKENS: But not when the licensed 11 reactor renewal application is filed?
12 MR. LIGHTY: Well, I think that there 13 could be an colorable argument made for a petition for 14 rulemaking to establish a rule that requires that.
15 But the current regulations do not contain that 16 requirement.
And petitioner certainly hadn't 17 demonstrated that much.
18 So at the end of the day, the application 19 was complete and accurate when filed, reflects the 20 current legal reality and nothing more is required.
21 The second overarching matter, we want to reiterate 22 the speculative nature of petitioner's ISFSI expansion 23 claims. The petitioner suggests that if the reactor 24 operating licenses are renewed and if the units 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
32 continue to operate, than PG&E will be required to 1
expand this specific licensed ISFSI to accommodate 60 2
years' worth of spent fuel.
3 That's factually and legally incorrect.
4 To be clear, PG&E is not seeking to expand this ISFSI 5
at this time. That's a fact that petitioner does not 6
dispute.
7 The existing storage pads of the ISFSI are 8
sufficient to store all spent fuel generated during 9
the initial 40-year term. The spent fuel pools are 10 capable of holding another 20 years of spent fuel. So 11 PG&E currently has the ability to store 60 years' 12 worth of spent fuel at the site without expanding any 13 facilities. That's another fact petitioner does not 14 dispute.
15 JUDGE TRIKOUROS: Mr. Lighty, let me 16 interrupt you. Does that 60-plus -- the 40 plus 20 17 components, do they include the ability to offload a 18 full core at the end of that 60-year period?
19 MR. LIGHTY: I believe so, Your Honor. I 20 believe it does contemplate the entire inventory of 40 21 years of operation including final core.
22 JUDGE TRIKOUROS: Okay.
23 MR. LIGHTY: But even assuming for the 24 sake of argument that additional dry storage is 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
33 required at some point in the future, for example, 1
after a permanent shutdown of the reactors to support 2
their decommissioning, PG&E could elect to develop 3
that capacity.
4 But regardless of whether that would occur 5
via a general license for a new ISFSI, a new specific 6
licensed ISFSI, or an amendment to this specific 7
licensed ISFSI, any expansion would be subject to a 8
separate regulatory process. So the bottom line is 9
that the current license capacity of this ISFSI does 10 not hinge on whether the reactors operate beyond 40 11 years.
12 And to the extent that petitioners allege 13 otherwise, its claims are factually incorrect based on 14 the plain text of the terms of the ISFSI license that 15 is proposed to be renewed here. So turning now to the 16 two contentions. In Contention A, petitioner presents 17 three challenges to the safety portion of the 18 application.
The first relates to financial 19 qualifications, the second to decommissioning funding 20 assurance, and the third relates to the General Design 21 Criteria or GDC.
22 As we understand petitioner's reply at 23 pages 3 and 4, it has dropped its GDC claim. So our 24 discussion will focus only on the first two arguments, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
34 both of which are financial in nature. And here, we 1
ask the Board to take particular note, and this is 2
important.
3 Both of these financial arguments rest on 4
the same assertion that the material deficiency in the 5
application is that it does not consider the financial 6
and decommissioning implications of storing 60 years' 7
worth of spent fuel on the ISFSI. For example, page 8
6 of the petition criticizes the decommissioning 9
finding discussion because it does not address, quote, 10 the cost of decommissioning the ISFSI, end quote, if 11 it stores 60 years' worth of spent fuel. Likewise, 12 page 7 of the petition alleges the application does 13 not, quote, account for increased operating costs, end 14 quote, of storing 60 years of spent fuel.
15 But as I mentioned earlier, this license, 16 the only one at issue in this proceeding, does not in 17 any way authorize storage of 60 years of spent fuel.
18 Simply put, there's no legal or regulatory obligation 19 to analyze that unlicensed scenario in the safety 20 application. So setting aside those ISFSI expansion-21 related claims, the only arguments left in the 22 petition are petitioner's bare complaint that the 23 application on its face just doesn't mention the 24 possibility of plant license renewal.
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35 But the petitioner doesn't identify any 1
reason that circumstance in and of itself constitutes 2
a material defect in the application. Materiality 3
matters, Your Honors. In fact, it's probably the most 4
important consideration in adjudicating Contention A.
5 It is the fundamental premise of Section 2.309F1 XIII 6
6 which places an affirmative burden on the 7
petitioners to, quote, show that a genuine dispute 8
exists with the applicant slash licensee on a material 9
issue of law or fact.
10 JUDGE HAWKENS: Mr. Lighty, a question for 11 you. You have a very strong, hyper-technical 12 argument. But I think the regulations, when they 13 require you to provide the NRC with complete and 14 accurate information in the license renewal 15 application, for you to ignore the sea change in 16 circumstances since when you first submitted this 17 application. Now you're directed to seek renewal.
18 And it's not -- I don't think in your pleading you 19 ever said that PG&E intends to seek renewal of the 20 reactors, does it?
21 MR. LIGHTY: Yes, at this time --
22 JUDGE HAWKENS: Okay.
23 MR. LIGHTY: -- PG&E does intend to seek 24 renewal. Again, there are several hurdles, several 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
36 gates, several rules.
1 JUDGE HAWKENS: Including whether it will 2
be approved or not. But in your license renewal 3
application which was entirely correct at the time, 4
you indicated you were going to shut down in 2024, 5
2025 and made representations regarding operational --
6 financial operational ability and decommissioning 7
financial ability based on that assumption. And that 8
assumption hyper-technically is still correct.
9 But as a practical matter, it's not. And 10 that raises a genuine dispute about financial ability 11 for operation and decommissioning. Not as a practical 12 matter because as the NRC staff observes, it appears 13 based on California statute which provides you with 14 the necessary rate income you need for operation and 15 decommissioning.
16 That shouldn't be a problem. But the NRC 17 staff and the public is entitled to accurate and 18 complete representations, I think, it is my sense in 19 your license renewal application. And there seems to 20 be a
genuine question as to whether those 21 representations are complete and accurate. And there 22 wasn't a discrete question in there, but could you 23 respond to that?
24 MR. LIGHTY: Certainly. I have a couple 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
37 of thoughts on that. The first is we're here to 1
discuss the compliance status of the LRA. It was 2
complete and accurate at the time it was filed.
3 There's no dispute about that. The question is 4
whether there is a duty of the applicant to then 5
update the application based on --
6 JUDGE HAWKENS:
Materially changed 7
circumstances.
8 MR. LIGHTY: Yeah, what Petitioners are 9
arguing are materially changed circumstances. And I 10 think that when you compare this, for example, to a 11 Part 54 license renewal proceeding for a reactor, 12 there is a regulation that requires an annual update 13 to the application to contain certain information.
14 That does not exist in Part 72.
15 The standard that is in Part 72 is simply 16 the completeness and accuracy requirement. That 17 requires documents submitted to the NRC -- and I 18 believe the regulation is 10 CFR 72.11 -- to be 19 complete and accurate in all material respects.
20 But Subpart B of that regulation discusses 21 the duty to update information based on the discovery 22 of a significant safety issue. What we haven't seen 23 is Petitioners acknowledge or address that standard, 24 or explain or offer any theory as to why it's 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
38 satisfied here based on its claims in the petition.
1 As we've discussed, these ISFSI expansion claims are 2
factually and legally incorrect.
3 And all you're left with is a statement 4
that, on the face of the application, doesn't 5
acknowledge the possibility of reactor license 6
renewal. But there's no further discussion why that 7
matters outside of these expansion-related claims that 8
Petitioners were raising.
9 The Commission has long used the word 10
'flyspecking' to describe minor and insignificant nits 11 regarding environmental review that do not warrant 12 hearing because they have no material impact on the 13 proceeding. And, in general, flyspecking is just 14 another way of describing the absence of materiality.
15 Materiality applies to both environmental and safety 16 contentions.
17 JUDGE HAWKENS: On the safety contention, 18 though, in your application, you say, starting 19 November 24, the source of funds to operate and 20 decommission the ISFSI will include the 21 decommissioning trust fund. Accurate once submitted, 22 accurate now. But when the license renewal 23 application for the reactors is submitted and 24 approved, it will no longer be accurate, correct?
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39 MR. LIGHTY: Correct. Whether it's 1
material is a separate question. And at what point it 2
becomes material I think is another unresolved 3
question. In our view, it is not material at this 4
time. The compliance status of the application is 5
that it was complete and accurate when filed. And the 6
duty to update in 72.11(b) has not been triggered.
7 Because, at the end of the day, stripping 8
away the Petitioners' ISFSI expansion claims, there's 9
nothing in the petition, or that we've heard in 10 arguments today, that would, quote, change the outcome 11 of the proceeding.
12 That's the fundamental requirement for 13 materiality. In fact, all of the participants seem to 14 agree that there are no material concerns about PG&E's 15 financial qualifications to operate the existing 16 ISFSI. Staff's answer at Footnote 61 disavows any, 17 quote, substantive concerns, end quote.
18 And Petitioner doesn't allege any material 19 concerns that are unrelated to ISFSI expansion, which 20 isn't proposed here and isn't part of this licensing 21 action.
22 Now, we note that Staff takes the position 23 that proposed Contention A is admissible because, as 24 noted in its brief at page 11, quote, operations at 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
40 the DCMPP are connected to operations at the Diablo 1
Canyon ISFSI by the application. And the application 2
does not appear to address a potential change in the 3
planned retirement date of the DCNPP, end quote.
4 But that's not the end of the inquiry. As 5
the Staff notes a few pages later, in the last 6
sentence of the partial paragraph at the top of page 7
14, Staff says, quote, SLOMFP has not demonstrated how 8
such potential operations render the application 9
insufficient, end quote. We agree. We completely 10 agree. That is absolutely correct. Petitioner has 11 not alleged, much less demonstrated, any material 12 deficiency in the application that is unrelated to 13 ISFSI expansion. And that's what renders proposed 14 Contention A
inadmissible, because materiality 15 matters.
16 Taking a step back for a moment. One 17 overarching purpose of the contention of admissibility 18 of criteria is to limit evidentiary hearings to 19 matters where inquiry in depth is appropriate. But 20 that's not the case here.
21 It is not necessary to convene a formal 22 hearing at significant taxpayer
- expense, at 23 significant ratepayer expense, to determine whether 24 PG&E is financially qualified to continue operating 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
41 the ISFSI. We already know the answer to that 1
question. As a matter of law, PG&E is presumed 2
qualified.
3 In
- fact, that's exactly what the 4
Commission said, in 2003, during the initial licensing 5
of the ISFSI, at CLI-03-12, which is cited in our 6
brief. The Petitioners here do not even allege the 7
existence of any information that would rebut that 8
presumption of law. So, to put it in plain terms, a 9
hearing under these circumstances would be a textbook 10 example of the type of wasteful and unnecessary 11 hearing that the admissibility rules were purposefully 12 designed to avoid.
13 Think of it this way. Even if the 14 application contained a token acknowledgment of a 15 possibility of reactor license renewal, it wouldn't 16 make one bit of difference in the outcome of this 17 proceeding because PG&E is financially qualified to 18 continue operating the ISFSI regardless of whether the 19 reactor licenses are renewed. And no participant in 20 this proceeding has claimed otherwise.
21 So, onto the separate issue of 22 decommissioning funding. Petitioner also fails to 23 identify a material defect in the LRA. As I noted 24 earlier, the Petitioners' principle criticism here is 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
42 that the application doesn't evaluate the cost of 1
decommissioning an ISFSI with 60 years of spent fuel.
2 But this license doesn't authorize 60 years of spent 3
fuel to be stored there, so that's not a defect in the 4
application at all, much less a material one.
5 As to decommissioning the as-licensed 6
- facility, with 40 years of spent
- fuel, the 7
decommissioning funding projections in the application 8
are conservative.
And Petitioner makes no 9
demonstration that anything further is required.
10 Now, what I mean by conservative is that 11 the LRA assumes that PG&E will begin drawing down on 12 the decommissioning trust fund in 2024 to cover ISFSI 13 operating costs. Then, as a result, the fund balance 14 would begin decreasing. The money starts going down.
15 In contrast, under a scenario where the 16 reactors continue to operate, that fund, instead of 17 decreasing in value, would continue to grow. NRC 18 regulations at 10 CFR Section 50.75 Echo romanette (i) 19 permit a licensee to assume a two percent annual real 20 rate of return on decommissioning funds. So, in 21 simple terms, deferred withdrawals equal additional 22 growth. That's just a common-sense observation. It 23 certainly doesn't require an evidentiary hearing, and 24 particularly where Petitioner has not identified a 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
43 material reason why anything beyond that conservative 1
analysis in the application is required, or even 2
meaningful in this proceeding.
3 At the end of the day, Petitioner's ISFSI 4
expansion-related claims are factually and legally 5
baseless. And Petitioner otherwise hasn't identified 6
any reason that the financial projections in the 7
application, as currently written to accurately 8
reflect the legal status quo, are materially deficient 9
in any way. Again, materiality matters here, Your 10 Honors.
11 Shifting gears to proposed Contention B, 12 Petitioner attacks the purpose and needs statement in 13 the ER supplement because it does not mention possible 14 renewal of the reactor operating licenses. But that 15 line of argument also misses the mark. The purpose 16 and needs statement in the ER supplement does not 17 mention a need to store 60 years' worth of spent fuel 18 because that is not, in fact, the purpose of this 19 action.
20 Petitioner identifies no unmet legal 21 requirement for the purpose and needs statement to 22 contemplate anything more. Quite simply, Petitioner 23 has not identified any deficiency in the purpose and 24 needs statement in the LRA, and the contention should 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
44 be rejected for that reason alone.
1 Now, you know, we understand that there 2
are a couple of other corollary arguments in 3
Contention B that I'd like to briefly mention 4
regarding alternatives and cumulative impacts. As 5
noted in our brief, Contention B alleges a defect in 6
the purpose and needs statement, and then claims that 7
some aspect of the alternatives or cumulative impacts 8
discussion supplies a supporting basis for that 9
contention.
10 But, as both PG&E and the NRC Staff have 11 explained in our respective briefs, there is no defect 12 in the purpose and needs statement. And so, without 13 that defect in the first instance, those assertions 14 about alternatives and cumulative impacts provide no 15 support for the overarching claim.
16 But, going one step further, just for the 17 sake of argument, even if we considered those 18 assertions as separate standalone claims or 19 contentions, they would still be inadmissible for 20 multiple reasons.
21 For example, Petitioner offers conclusory 22 assertions that the alternatives and cumulative 23 impacts discussions are deficient, but it doesn't 24 identify a single reasonable alternative that hasn't 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
45 been considered, or a single cumulative impact that 1
hasn't been considered.
2 As another example, given that this is a 3
Part 72 license renewal proceeding, the ER supplement 4
is only required to address, quote, significant 5
environmental changes, end quote, pursuant to 10 CFR 6
Part 72. So, Petitioner doesn't acknowledge that 7
- standard, and it certainly doesn't offer any 8
explanation as to how it's met or satisfied it here.
9 10 So, in sum, these arguments do not support 11 a challenge to the purpose and needs statement. And 12 even if viewed as standalone contentions, these 13 corollary claims would be inadmissible in their own 14 light. And, for these and many other reasons stated 15 in our brief, we believe that neither Contention A nor 16 Contention B are admissible and that the Board should 17 dismiss the petition accordingly.
18 I did want to address just a couple of 19 comments that we heard from Petitioner's counsel a few 20 minutes ago. In the discussion that we heard, there 21 was a suggestion that the application, at Appendix G-22 4, discussed the decommissioning timeline being based 23 on a prompt ISFSI decommissioning scenario.
24 And that is correct. But what the Board 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
46 should understand here is that the decommissioning 1
timeline for the ISFSI is not affected by plant 2
operation. The ISFSI will store the fuel from the 3
initial 40 years of operation and no more, absent some 4
other future licensing action, but the timing for the 5
removal of that fuel doesn't depend on whether the 6
reactor continues to operate. That depends on DOE's 7
performance, or the availability of a consolidated 8
interim storage facility, or some other outside action 9
that is not affected by plant license renewal. So the 10 decommissioning timeline for the ISFSI isn't affected 11 by the plant license renewal.
12 I also wanted to respond to counsel's 13 claim that Petitioners didn't know how the ISFSI 14 operating costs would be funded if the plant licenses 15 are renewed. As noted in our brief, at Page 14, 16 Footnote 53, the SB 846 statute passed by the 17 California legislature and signed by the California 18 governor says that those operating costs will be 19 recovered through the normal rate-making process.
20 And, finally, I'd like to respond to 21 counsel's assertion that PG&E is a contractor to the 22 state. PG&E has not held itself out as acting on 23 behalf of the State of California in this ISFSI 24 license renewal proceeding, period. So I just wanted 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
47 to clarify that for the Board.
1 And I'm happy to take any other questions 2
Your Honors may have.
3 JUDGE TRIKOUROS:
I just want to 4
understand the picture at the end of 60 years. We're 5
looking at an ISFSI that has 40 years of fuel in it, 6
full. We're looking at a spent fuel pool that has 20 7
years of fuel in it, apparently with enough empty 8
space to also include a full core offload. Otherwise, 9
I suppose you would not be able to make it to that 10 point prior. You'd have to stop in prior years or do 11 something at the end of that, when you ran out of that 12 ability to offload.
13 The decommissioning activities, as I see 14 them, would not be able to begin at that point because 15 the -- well, I'll phrase it as a question. Could you 16 begin decommissioning activities with the fuel in that 17 state that I just mentioned, 20 years in the spent 18 fuel pool and 40 years in the ISFSI?
19 MR. LIGHTY: Are you talking about, could 20 decommissioning begin on the plant or --
21 JUDGE TRIKOUROS: On the plant. I'm 22 talking about on the plant.
23 (Simultaneous speaking.)
24 MR. LIGHTY: I think that partial 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
48 decommissioning activities could begin. Obviously, 1
the plant itself could not be fully decommissioned 2
with spent fuel still in the pool.
3 JUDGE TRIKOUROS: Okay. So there would be 4
a requirement to expand the storage requirements for 5
spent fuel at that point, but it would not necessarily 6
involve this particular ISFSI. Is that correct?
7 MR. LIGHTY: Correct. If a policy 8
decision or a mandate of a state said you must fully 9
decommission the reactor, take the fuel out of the 10 spent fuel pool, and assuming that there was no 11 consolidated interim storage facility available, that 12 DOE has not completed a permanent repository at the 13 end of the 40-year license renewal period of the 14 ISFSI, then potentially there would be a need to have 15 other dry storage onsite.
16 But as you mentioned, Judge Trikouros, it 17 could either be through a general license, a separate 18 specific license, an amendment to this specific 19 license. But none of that is being proposed as part 20 of this license renewal.
21 JUDGE TRIKOUROS: And it doesn't have to 22 be dry storage, actually, I suppose. It could be any 23 number of other options.
24 MR. LIGHTY: True. We have seen other 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
49 precedent where fuel goes from one site to another 1
site, even though that site is not necessarily a 2
consolidated interim storage facility but potentially 3
an aggregator site.
4 JUDGE TRIKOUROS: All right. Thank you.
5 JUDGE HAWKENS: Thank you.
6 MR. LIGHTY: Thank you, Your Honors.
7 (Pause.)
8 JUDGE HAWKENS: You may proceed, sir.
9 Thank you.
10 MR.
GENDELMAN:
Thank you.
Good 11 afternoon. May it please the Board. My name is Adam 12 Gendelman from the NRC Staff. Thank you for the 13 opportunity to discuss the Staff's position on San 14 Luis Obispo Mothers for Peace's petition. I plan to 15 discuss Staff's views on the principle issues in 16 dispute -- especially Contention A, as each party has 17 a different view -- address the important points for 18 you today, and I'd be happy to answer the Board's 19 questions.
20 JUDGE HAWKENS: Could you also start off 21 with a brief discussion on your view of standing?
22 MR. GENDELMAN: Happily, Your Honor. I 23 think you and Judge Arnold captured the Staff's 24 position exactly with regard to the discussion of the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
50 proximity-plus standard.
1 In the Staff's view, as you noted, Judge 2
Hawkens, this is an application for the renewal of a 3
facility to store 2,100 metric tons of spent fuel. And 4
in the Staff's view, that action meets that standard.
5 To be clear, that's not a reflection on the actual 6
probability of any event that could cause such 7
consequences. But, especially given that this is a 8
license renewal proceeding versus, for example, an 9
amendment on some more auxiliary matter, we think 10 standing has been demonstrated in that regard.
11 JUDGE HAWKENS: And based on the legal 12 rationale and the Licensing Board's 2002 standing 13 decision in the Diablo Canyon case, you still find 14 that to be a reasonable analysis?
15 MR. GENDELMAN: It's informative. With 16 regard to the previous discussion about a fresh 17 assertion of standing, I think we agree with 18 Petitioner that they have made that fresh assertion 19 here. I think it's appropriate to note past similar 20 circumstances and how they were disposed of. But the 21 petition doesn't say, oh, well, we were granted 22 standing in the past, so we have standing now. It 23 makes that fresh assertion, as pointed out both in the 24 petition and in the updates.
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51 JUDGE ARNOLD: Where in the petition does 1
it even assert that there's a potential for offsite 2
consequences?
3 MR. GENDELMAN: So, in our reading of the 4
affidavits, the affiants note they're concerns about 5
continued operation of the ISFSI jeopardizing their 6
health and safety and the quality of the environment.
7 And so that's the language that we think it 8
demonstrates those concerns.
9 JUDGE ARNOLD: That demonstrates that they 10 have a concern, but does it demonstrate that there's 11 an obvious potential for damage?
12 MR. GENDELMAN: No, I think, as I said, 13 the Staff's view is we're not contesting standing, in 14 the light of the fact that this is a major license 15 proceeding, a proceeding whose disposition affects 16 whether or not this facility will continue to operate, 17 coupled with the amount of radioactive material to be 18 stored, and the potential, however small, of what 19 dispersion of that material could bring about.
20 JUDGE ARNOLD: So, essentially, you're 21 filling in the assertion that there's an obvious 22 potential for consequences based upon your knowledge 23 of what this facility is, what's stored there?
24 MR. GENDELMAN: I'm not sure I would 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
52 characterize it that way, but Staff's view is that 1
standing has been adequately pled. I understand the 2
Board's questions with regard to some of those square 3
corners. But I think that, consistent with both 4
previous practice, it's inferential, not binding 5
authority, that standing has been demonstrated.
6 JUDGE TRIKOUROS: Just one question along 7
those lines. Does the fact that this plant is in the 8
Ninth Circuit and that terrorist activities are soon 9
to occur in that circuit, would you say that the 10 licensing basis of this plant, Diablo Canyon, includes 11 the potential for terrorist activity associated with 12 the spent fuel pool, the ISFSI?
13 MR. GENDELMAN: So, I believe I understand 14 your question. And I would certainly say that ISFSIs 15 in the Ninth
- Circuit, and all
- others, are 16 appropriately required to mitigate against both safety 17 and security risk, consistent with NRC requirements.
18 With regard to standing, I don't think it is 19 aggravated or mitigated in any particular circuit.
20 But, as I said, the Staff's read of the proximity-plus 21 standard is about a potential for consequences, 22 distinct from an actual probability.
23 So, I'll unpack that for a second. For 24 example, if this was a proposal to add a single cask 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
53
-- for example, to go from 2,100 tons to 2,150 metric 1
tons -- I think the analysis might be different 2
because at issue is the condition of a single cask 3
versus the renewal of the entire facility.
4 JUDGE TRIKOUROS: Thank you.
5 MR. GENDELMAN: So, to begin, this 6
proceeding, of course, concerns PG&E's application to 7
renew its ISFSI license under Part 72. It's not a 8
proceeding for the renewal of -- a reactor license 9
renewal, nor is it a proceeding, as the Applicant 10 noted several times, to otherwise amend PG&E's Part 72 11 license to resign the facility or change the amount of 12 material that can be stored there.
13 In one case identified in the petition, 14 the ISFSI renewal application creates a linkage 15 between the retirement of the Diablo Canyon reactors 16 and satisfaction of financial qualification 17 requirements in 10 CFR 72.22(e).
18 In that one case, the developments 19 associated with potential reactor renewal are 20 relevant, and, indeed, in the staff's view, the basis 21 for an admissible contention, but relevant only 22 because they bear factually on the satisfaction of 23 regulatory criteria in this proceeding. This 24 framework unknots the central question, we think, 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
54 presented by both contentions, which is: with respect 1
to this Part 72 proceeding, what is the significance, 2
if any, of the recently developments associated with 3
the potential for continued operations at the Diablo 4
Canyon reactors?
5 We think the answer indicated is that 6
they're relevant only insofar as they bear upon the 7
ISFSI license renewal application and the Applicant's 8
satisfaction of requirements,
- again, in this 9
proceeding.
10 This framework also shows why the 11 petition's other arguments in Contention A and 12 Contention B do not succeed, because the other cited 13 portions of the ISFSI renewal application do not rely 14 on the timing of the retirement of the Diablo Canyon 15 reactors as the basis for meeting regulatory 16 requirements in Part 72. And, therefore, these recent 17 events concerning that potential for continued 18 operations are not similarly relevant to this 19 application.
20 And so, with respect to Contention A, as 21 noted in its answer, the Staff views the portion of 22 Contention A concerning financial qualification in 23 72.22(e) to be admissible.
24 JUDGE HAWKENS: And that's all that's 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
55 before us now, since Petitioner's filed a reply.
1 Isn't that correct? And let me ask it another way.
2 I understand, based on Petitioner's reply, I think I 3
would understand that you agree now that their 4
contention should be admissible in full? And if not, 5
could you tell me why not?
6 MR. GENDELMAN: I'm not sure that I 7
understood the reply to drop the 72.30 financial 8
assurance argument, as distinct from 72.22 financial 9
qualifications argument. But otherwise, yes.
10 JUDGE HAWKENS: All right. We'll follow 11 up with that in rebuttal. Please proceed.
12 MR. GENDELMAN: So, in sum, 72.22(e) 13 requires an applicant to demonstrate its financial 14 qualifications, and that they either have the 15 necessary funds or have reasonable assurance of 16 obtaining them to cover operating costs for the 17 planned life of the facility -- in this case, a 40-18 year renewal for the ISFSI, not to be confused with 19 the other renewal -- as well as the cost of 20 decommissioning the ISFSI facility.
21 The application provides that this funding 22 will derive from the rate-making process until 23 November 2024, at which time funding will include the 24 reactor decommissioning trust fund. The petition 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
56 contrasts these representations with the recent 1
developments concerning the potential for continued 2
operations of the Diablo Canyon reactors: the passage 3
of California law S.B. 846, the exemption request from 4
the applicant, the Gerfen letter where the Applicant 5
states its intent, as we heard today, to take the 6
necessary regulatory steps to operate Diablo Canyon 7
reactors beyond the dates in their current license.
8 The petition concludes that, therefore, the Applicant 9
has not demonstrated financial qualifications, in 10 light of these circumstances.
11 First, the Staff does not have a position 12 on the sufficiency of this or any provision in the 13 application, as the Staff has not completed its 14 technical or environmental reviews, but does find this 15 portion of Contention A to be admissible, as it meets 16 the individual requirements of 2.309(f)(i). And, as 17 discussed, the Staff believes that the Petitioner has 18 demonstrated standing.
19 The Applicant, in its answer and today, 20 counters on what I would call two principal grounds.
21 First, the application is accurate. The licenses 22 right now do say that the reactor is -- that they are 23 to retire in 2024 and 2025, and that it would be 24 rather speculative on the part of PG&E to assume 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
57 future regulatory actions: that they submit a renewal 1
license application, that the NRC would approve it, 2
and then to now, in the present, rely upon all that in 3
its application.
4 Further, as the Applicant notes, PG&E has 5
not actually submitted even a renewal application, and 6
has not even been timely renewed, notwithstanding the 7
timely renewal exemption that the Applicant requested 8
and the Staff issued this past March.
9 In response, I would say that the 10 Applicant is correct as to the current -- I think, as 11 you fashioned it; I liked it -- the legal regulatory 12
- posture, sort of the legal
- reality, and, 13 understandably, stresses the potential, not certainty, 14 for the extension of reactor operating life. But I 15 think the Staff and Applicant differ on the 16 significance of these recent factual developments, in 17 light of the language in the application; 18 specifically, the linkage in the application between 19 the retirement of Unit 1 and the Applicant's 20 satisfaction of 72.22(b).
21 The potential extension of the Diablo 22 Canyon reactor licenses is relevant here because it 23 bears upon the availability of funding sources 24 identified in the application, in the ISFSI renewal 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
58 application.
1 Specifically, if the Applicant's recent 2
statements about its intent to continue Diablo Canyon 3
reactor operations is accurate, it is not clear that 4
decommissioning trust funds would be available to 5
support ISFSI operations in 2024.
6
- Thus, in the Staff's
- view, this 7
disagreement between the Petitioner and the Applicant 8
over the significance of these events for the 9
Applicant's demonstration of compliance with 72.22(b) 10 is indeed a material dispute, and illustrates the 11 satisfaction of 2.309(f)(i)(6) regarding that 12 requirement. And so --
13 JUDGE HAWKENS: I think in your brief you 14 indicated you had no substantive concern, in the long 15 run, about PG&E and feel like it's financial 16 obligations. So why is it material?
17 MR. GENDELMAN: So, that's right, Your 18 Honor. And I think that gets to PG&E's second 19 argument, which has a couple of different forms that 20 you heard both today and in their answer, that either 21 a continued operation scenario where both rate case 22 funding followed by, at some time, decommissioning 23 trust fund funding is conservative vis-a-vis what's in 24 the application. I believe I saw something that even 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
59 SB 846 itself has some funding provisions. And that, 1
sort of in any scenario, given the cited Commission 2
case law about rate-making authority being sort of a 3
presumptive demonstration of reasonable assurance, 4
that, in any scenario, adequate funding would be 5
available, so the contention should not be omitted.
6 I think, with regard to all of these 7
arguments, the Staff has a short, if not pithy, 8
answer, in that I think we agree with the Petitioner 9
in their reply, that all these arguments may very well 10 be right, but they all get to the merits. Does the 11 Applicant satisfy 72.22(e), where the question here 12 is, has the petition satisfied the contention and 13 admissibility requirements?
14 It may very well be that the resolution of 15 this contention is -- and the Staff, once it completes 16 its safety review, may even agree -- that the 17 application, as it exists, now meets NRC requirements.
18 But that's a merits question. And at this point, I 19 don't think that begrudges the submission of an 20 admissible contention.
21 And I would sort of point again to the --
22 I think it's the Private Fuel Storage case we note in 23 our brief, that while the showing that a petitioner 24 needs to make at this phase is not insubstantial, a 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
60 petitioner doesn't have to prove their contention at 1
the contention and admissibility phase.
2 As to the other claims of Contention A 3
concerning a potential redesign of the ISFSI or the 4
need for increased capacity based on extended 5
operations, as well as financial assurance in 72.30, 6
the Staff views that these claims each fail for the 7
reason that 72.22(e) claim succeeds, because in this 8
cases the claims in the petition are not similarly 9
grounded in language in the application, which, in 10 turn, does not rely on a specific nuclear power plant 11 retirement date to demonstrate compliance with the 12 ISFSI license renewal requirements. Indeed, as the 13 Applicant notes, in many cases, the petition's 14 arguments are speculative, contrary to the specific 15 representations in the application. For example, 16 there is no request for an increase in the amount of 17 fuel to be stored at the ISFSI.
18 Similarly, with regard to Contention B, 19 arguing that the Applicant's environmental report is 20 similarly problematic because of its dependence on 21 2024 and 2025 Diablo Canyon reactor requirements, the 22 Staff views those claims as simply, again, not borne 23 out but language in the application.
24 Indeed, as the Applicant notes, the 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
61 proposed action, renewal of the independent spent fuel 1
storage installation license, is independent of 2
operations from the Diablo Canyon reactors in this 3
regard.
4 With respect to the alternatives analysis, 5
the petition does not seem to countenance the specific 6
discussion in the application, and, from the Staff's 7
view, argues that the environmental report lacks an 8
analysis that it appears to contain. With regard to 9
cumulative impacts, the petition does not identify any 10 impacts that are not considered cumulatively, and 11 while there's not a distinct section in the 12 environmental report titled "Cumulative Impacts,"
13 because the only direct impacts identified are public 14 and occupational dose, impacts that are evaluated 15 cumulatively, again, I think we have a contention that 16 alleges an omission that we believe is present.
17 And so, in summary, while the Staff has 18 not completed its technical or environmental reviews, 19 the petition proposes an admissible contention with 20 respect to financial qualifications under 72.22(e),
21 but the remainder of Contention A and Contention B are 22 inadmissible. They contain speculation about the 23 future, and not this application and its satisfaction 24 of the applicable NRC requirements in this Part 72 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
62 proceeding.
1 And, with that, I'd be happy to answer any 2
additional questions.
3 JUDGE ARNOLD: Just a practical matter.
4 What's the current schedule for the ISFSI license 5
renewal review? When is a decision expected?
6 MR. GENDELMAN: Yes, Your Honor. The 7
original docketing letter from September of last year 8
I think had targeted an RAI submission -- request for 9
additional information, RAIs -- in the February 10 timeframe, with an eye towards a decision in the 11 November timeframe. My understanding is that that 12 schedule has slipped and that a new schedule is being 13 formulated, but has not been finalized. I don't 14 believe RAIs have been issued yet, but I don't think 15 there's a new schedule.
16 JUDGE ARNOLD: My question arises -- if 17 the licensing decision came down in November, before 18 an application is due for the renewal of the operating 19 license, then its current status would reflect the 20 correct status at time of renewal. But if it's 21 delayed, then certainly you have to look at the 22 implications of plant license renewal.
23 MR. GENDELMAN: I understand, Your Honor.
24 And I don't believe a decision will be made this year.
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63 That said, I don't think, in the Staff's view, that 1
that's necessarily sort of the break point, in that, 2
we think, given the reality now, given the petition 3
before the Board, that with regard at least to the 4
financial qualification contention, that based on not 5
future, speculative "could submit/could not submit" 6
actions, but that, based on the world as it exists 7
today, that an admissible contention has been 8
proffered. So I'm not sure it's our view that that 9
would -- but I understand your concern.
10 JUDGE HAWKENS: I want to follow up on 11 your -- you disagree with Petitioner's argument at 12 Contention A, to the extent it deals with Section 13 72.30?
14 MR. GENDELMAN: That's right.
15 JUDGE HAWKENS: The decommissioning. And 16 I want to make sure I understand why that is. If I 17 understand Petitioner's argument, they point to 18 Appendix G-5, which states decommissioning estimate is 19 based on the configuration of the ISFSI, which, in 20 turn, is based on Units 1 and 2 operating until the 21 end of current licenses, 2024, 2025.
22 And it's your position that it can be 23 based on that because the ISFSI can accommodate 40 24 years of waste. And, therefore, it will only take in 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
64 waste until '24 and '25, and so that statement is 1
accurate. It doesn't matter whether they, in fact, 2
are retired in 2024 and 2025 or not?
3 MR. GENDELMAN: I would say it a little 4
more simply, actually. I think that, because of the 5
way the -- as the language cited by the Petitioner --
6 the 72.22 discussion specifically points to the 2024 7
retirement, and specifically identifies it as a 8
funding source the decommissioning trust fund at that 9
time, that the retirement sort of correlates to 10 demonstration of regulatory requirements in this 11 proceeding in a way that I think is at least more 12 iterated.
13 So, from a Staff perspective, it's not 14 clear to me whether or not that assessment being based 15 upon 2024 or 2025 retirement ultimately impacts the 16 sufficiency that that demonstration -- and, like I 17 said, Staff has not completed its safety review. But 18 in specifically the 72.22 case, where regulatory 19 compliance is specifically tied by the application to 20 the 2024 retirement of the facility, we believe that 21 the petition is articulated in genuine dispute.
22 JUDGE HAWKENS: I understand. Let me try 23 to simplify it even further. Would it be your view 24 that their reference to the retirement of the reactors 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
65 in the 2024 and 2025 for purposes of 72.30 are simply 1
not material?
2 MR. GENDELMAN: I think that's right, 3
given the structure of the regulation and the way that 4
portion of the application is structured. Again, with 5
no view on its ultimate sufficiency.
6 JUDGE HAWKENS: All right. Any more 7
questions? No?
8 No more questions for you. Thank you.
9 MR. GENDELMAN: Thank you, Your Honor.
10 JUDGE HAWKENS: Ms. Curran, I'm going to 11 check with my timekeeper, but I believe you have at 12 least 12 minutes left.
13 MS. CURRAN: Great.
14 JUDGE HAWKENS: She's nodding her head in 15 the affirmative, so you may proceed.
16 MS. CURRAN: Thank you. In response to 17 something Mr. Lighty said about how our claims only 18 relate to expansion, I just want to direct your 19 attention to the paragraph on the bottom of Page 5 of 20 our hearing request. This is really following up on 21 what NRC Staff counsel said, that our contention is 22 based on the fact that the license renewal application 23 depends on the assumption of a retirement date of 2024 24 and 2025. And we're expressing concern that there 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
66 will be a period of time now, potentially 20 years, 1
when PG&E does not have access to the decommissioning 2
trust fund.
3 So, thank you very much. We appreciate 4
the Staff's logical support for that contention. And 5
I also feel that the argument was persuasive on 72.30.
6 And that, I agree, it was a good argument, and I 7
didn't understand it before, that we haven't made an 8
adequate claim about the decommissioning fund, because 9
we did assume that the capacity of the ISFSI could be 10 increased, and it's just not there in the application.
11 12 Now, that's setting NEPA aside. I don't 13 want to imply at all that we are abandoning our NEPA 14 contention, because NEPA requires some consideration 15 of the big picture. And obviously --
16 JUDGE HAWKENS: Can you put NEPA aside for 17 one second?
18 MS. CURRAN: Yeah.
19 JUDGE HAWKENS: I'm looking at 72.30. So, 20 the NRC Staff says it agrees with you that Contention 21 A is admissible to the extent it raises a challenge 22 regarding PG&E's compliance with Section 72.22, I 23 believe. You also made a claim in Contention A that 24 their compliance with Section 71.30 was deficient.
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67 Are you no longer advancing that argument?
1 MS. CURRAN: That's right.
2 JUDGE HAWKENS: Okay.
3 MS. CURRAN: Yeah.
4 JUDGE HAWKENS: For purposes of Contention 5
A, you're simply saying that their showing financial 6
qualification for operating of the ISFSI under 72.22 7
is deficient.
8 MS. CURRAN: Yeah.
9 JUDGE HAWKENS: Okay. Thank you.
10 MS. CURRAN: On the NEPA claim, I just 11 want to make it really clear that our focus is on the 12 statement of purpose and need, which is a requirement, 13 to have a reasonably accurate statement of purpose and 14 need for the proposed action. This is a supplemental 15 environmental assessment. We continue to think that 16 if this is supplementing the previous environmental 17 assessment, this environmental assessment needs to go 18 back and discuss what was the purpose and need back 19 then, and then discuss what are -- you know, NEPA 20 requires a discussion of reasonably foreseeable 21 actions and impacts.
22 It's reasonably foreseeable that PG&E will 23 seek to expand the capacity of this ISFSI. If they 24 get 20 more years of operation, it's a real good 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
68 question, what are they going to do with the spent 1
fuel they generate? Especially since they answer to 2
the state, and the state wants them to take the fuel 3
out of the pools as expeditiously as possible. We 4
think all that needs to be addressed in the 5
environmental assessment. It's important.
6 This is the whole purpose of NEPA, that 7
you don't take an action until you've looked at all 8
the relevant considerations, so you don't foreclose 9
anything because you had tunnel vision. Clearly, 10 under the safety regulations, there is an element of 11 tunnel vision. But that's not true with respect to 12 NEPA.
13 And I still think -- we still think --
14 that the appropriate remedy here, if you don't admit 15 our contentions, is to hold this proceeding in 16 abeyance until we know what PG&E is going to do for 17 this license renewal application. Because this -- we 18 are not content to say PG&E may amend the ISFSI 19 license -- seek to amend the ISFSI license some point 20 down the road.
21 This is our opportunity right now. This 22 license renewal is being sought for 20 years. And we 23
-- or is it 40? It's a long time. This is our 24 opportunity. As members of the public, we know that 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
69 if you don't take the opportunity when it comes up, it 1
goes by and it may not come up again. We don't want 2
to rely on some discretionary decision by PG&E or the 3
NRC to amend this license.
4 The issues are before us now. We know now 5
that PG&E has invested resources into filing a new 6
license renewal application for this reactor, set of 7
reactors.
Those considerations, it's really 8
important, for any environmental assessment that 9
addresses the impacts of the ISFSI, to look at all 10 those relevant considerations. And if more time is 11 needed, there's no reason not to give it.
12 That concludes my rebuttal.
13 JUDGE TRIKOUROS: We all agree, however, 14 that if there's an expansion of the ISFSI, or a 15 request to expand the ISFSI, it would be an entirely 16 new licensing proceeding, right?
17 MS. CURRAN: If there is a request for 18 expansion, yes. But we don't know when that will 19 happen. We don't know what the relationship will be 20 between storage in the pools and storage in the ISFSI.
21 Those are relevant environmental considerations that 22 PG&E could kick down the road for a long time, if it 23 wanted to. And we think it's important to address 24 them now, at least in a reasonably soon future, not 25 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1716 14th STREET, N.W., SUITE 200 (202) 234-4433 WASHINGTON, D.C. 20009-4309 www.nealrgross.com
70 way down the road.
1 JUDGE HAWKENS: Thank you. Any more? No?
2 3
Thank you, Ms. Curran 4
MS. CURRAN: Thank you.
5 JUDGE HAWKENS: I want to thank the 6
parties, everyone's presentation, and their written 7
pleadings today. Very helpful. And it's our intent 8
to issue a decision on Petitioner's hearing request 9
within 35 days.
10 Before adjourning, I'd like to acknowledge 11 the support the Panel's IT expert, Andrew Welkie; the 12 Panel's administrative assistants, Sara Culler, Penny 13 Kenney (phonetic), and SherVerne Cloyd-Allen; the 14 Panel's law clerks, Noel Johnson, Allison Wood, and 15 Emily Newman. And lastly, we appreciate the services 16 of the court reporter, Lanelle Phillips.
17 And, Lanelle, will you need to consult any 18 attorneys after we adjourn to ensure accuracy of your 19 transcript?
20 COURT REPORTER: Yes, Mr. Bessette and Ms.
21 Curran.
22 JUDGE HAWKENS: All right. We'll just ask 23 counsel to remain until Ms. Phillips has had the 24 opportunity to talk to you.
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71 Judge Trikouros, do you have anything to 1
add before we adjourn?
2 JUDGE TRIKOUROS: I do not. Thank you.
3 JUDGE ARNOLD: No.
4 JUDGE HAWKENS: The case is submitted and 5
we are adjourned. Thank you very much.
6 (Whereupon, the above-entitled matter went 7
off the record at 2:38 p.m.)
8 9
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