ML24116A173
| ML24116A173 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 04/25/2024 |
| From: | Curran D, Leary C, Templeton H Environmental Working Group, Friends of the Earth, Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP, San Luis Obispo Mothers for Peace (SLOMFP) |
| To: | Atomic Safety and Licensing Board Panel |
| SECY RAS | |
| References | |
| RAS 56997, 50-275-LR-2, 50-323-LR-2 | |
| Download: ML24116A173 (0) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD
In the matter of Pacific Gas and Electric Company Docket Nos. 50-275-LR-2, 50-323-LR-2 Diablo Canyon Nuclear Power Plant April 25, 2024 Units 1 and 2
RESPONSE BY SAN LUIS OBISPO MOTHERS FOR PEACE, FRIENDS OF THE EARTH AND ENVIRONMENTAL WORKING GROUP TO PACIFIC GAS AND ELECTRIC COMPANYS MOTION TO STRIKE PORTIONS OF THEIR REPLY
I. INTRODUCTION
Pursuant to 10 C.F.R. § 2.323(a) and the Atomic Safety and Licensing Boards
(ASLBs) Initial Prehearing Order of March 13, 2024, San Luis Obispo Mothers for Peace
(SLOMFP), Friends of the Earth (FoE) and Environmental Working Group (EWG)
(collectively Petitioners) hereby respond to Pacific Gas and Electric Companys Motion to
Strike Portions of the Reply Filed by San Luis Obispo Mothers for Peace, Friends of the Earth,
and Environmental Working Group (Apr. 15, 2024) (Motion). As discussed below in Section III, the ASLB should reject the Motion because it lacks merit. 1
II. PROCEDURAL BACKGROUND
On March 4, 2024, Petitioners submitted a hearing request in this proceeding by the U.S.
Nuclear Regulatory Commission (NRC or Commission) to consider Pacific Gas & Electric
Companys (PG&Es) application for renewal of the operating licenses for the Diablo Canyon
1 Petitioners seek to clarify the record with respect to PG&Es certification of consultation pursuant to 10 C.F.R. § 2.323(b) and the ASLBs Initial Prehearing Conference at page 7. See Motion at 1 n. 1. In providing their position, Petitioners did not merely assert that they disagreed with PG&E; but, in a sincere effort to resolve the disagreement without briefing, also provided a detailed explanation that included specific references to the pleadings and the legal and factual reasons for Petitioners position. To the extent the Board reviews the reasonableness of the consultation process, Petitioners respectfully request consideration of this additional information.
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nuclear power plant Units 1 and 2 (DCPP). 2 PG&E and the NRC Staff responded to Petitioners
Hearing Request on March 29, 2024. 3 Petitioners submitted their reply to PG&Es and the Staffs
oppositions on April 5, 2024. 4 Petitioners Reply is the subject of PG&Es Motion to Strike.
III. DISCUSSION
A. PG&Es Motion to Strike Part of Petitioners Reply with Respect to Contention 1 is Unsupported.
PG&E seeks to strike a portion of Petitioners Reply regarding Contention 1 on the ground that the
Reply raises a new and specific criticism of the Environmental Reports discussion of the no action
alternative and thereby impermissibly converts it from a contention of omission to a contention of inadequacy. 5 According to PG&E:
The Petition contained a statement that PG&Es environmental report (ER) should weigh the costs and benefits of shutting down the reactors. Petitioners supplied no further explanation of, or support for, their vague suggestion that the ER omitted this analysis. PG&E and the NRC Staff both noted, in their respective Answers, that the allegedly omitted analysis was in fact provided in the ER. In its (sic) Reply, Petitioners now offer a specific criticism of that previously unacknowledged analysis. 6
But this criticism is not supported by the language of the contention or the Reply. In relevant part,
Contention 1 states:
The NRC should deny PG&Es license renewal application for DCPP because continued operation of the reactors poses an unacceptable risk of core damage accidents due to earthquakes. Therefore, renewal of PG&Es operating license would not satisfy the statutory standard set by the Atomic
2 Request by San Luis Obispo Mothers for Peace, Friends of the Earth, and Environmental Working Group for Hearing on Pacific Gas & Electric Companys License Renewal Application for the Diablo Canyon Nuclear Plant (Hearing Request or Petition).
3 Pacific Gas and Electric Companys Answer Opposing the Hearing Request Filed by San Luis Obispo Mothers for Peace, Friends of the Earth and Environmental Working Group (March 29, 2024) (PG&E Answer); NRC Staff Answer Opposing the San Luis Obispo Mothers for Peace, Friends of the Earth and Environmental Working Group Hearing Request (March 29, 2024).
4 Reply by San Luis Obispo Mothers for Peace, Friends of The Earth and Environmental Working Group to Oppositions to Request for Hearing on Pacific Gas and Electric Companys License Renewal Application for the Diablo Canyon Nuclear Plant (Petitioners Reply).
5 Motion at 3-4.
6 Id. (emphasis in original).
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Energy Act that operation of DCPP will provide adequate protection to the health and safety of the public. By the same token, continued operation of DCPP also poses significant or LARGE adverse environmental impacts, not SMALL impacts as asserted by PG&E in its Environmental Report. As required by the National Environmental Policy Act (NEPA), 42 U.S.C. § 4332(c)(iii),
the Environmental Report should weigh the costs and benefits of the alternative that would avoid these impacts : closing DCPP on the reactors current 2024/2025 retirement dates. 7
In response to PG&Es argument against admission of Contention 1, Petitioners Reply states:
Finally, PG&E contests the admissibility of Petitioners claim that the Environmental Report should weigh the costs and benefits of the no-action alternative, i.e., the alternative of not re-licensing DCPP. PG&E Answer at 35. According to PG&E, the Environmental Report already does this. Id. (citing Environmental Report §§ 2.6 and 7). But neither of these sections of the Environmental Report discusses the environmental or socioeconomic benefits of avoiding the potentially catastrophic effects of a seismically induced core damage accident. Therefore, this aspect of the contention is admissible. 8
PG&E seeks removal of the penultimate sentence quoted above (beginning But neither of these
sections...), on the ground that it transforms petitioners argument from a claim of omission to a
specific alleged insufficiency. As stated in Petitioners original Hearing Request and as repeated in
Petitioners Reply, however, Contention 1 charges a specific omission that remains missing from the
Environmental Report, which is that the Environmental Report does not discuss the no-action alternative in relation to an unacceptable risk of core damage accidents due to earthquakes. 9 Nothing about Petitioners
Reply expands the scope of that assertion.
Petitioners have not impermissibly expanded the scope of Contention 1. Thus, Petitioners
respectfully submit that PG&Es request to strike a portion of Contention is unjustified and should be
denied.
B. PG&Es Motion to Strike Part of Petitioners Reply with Respect to Contention 3 is Unsupported.
Contention 3 states:
The NRC may not approve renewal of PG&Es operating licenses for DCPP because PG&E has not demonstrated compliance with the Coastal Zone Management Act (CZMA), 16 U.S.C. § 1451, et seq. For the same reason, PG&Es Environmental Report
7 Hearing Request at 7 (footnotes omitted, emphasis added).
8 Petitioners Reply. at 11-12 (footnote omitted, emphasis added).
9 Hearing Request at 7.
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also fails to satisfy the requirements of NRCs own regulations mandating the content of environmental reports. 10
In support of Contention 3, Petitioners cited the California Coastal Commissions (CCCs)
rejection of PG&Es Coastal Certification as incomplete and inadequate and asserted:
[G]iven the CCCs unequivocal rejection of PG&Es Coastal Certification as incomplete and inadequate, and given the potential requirement to obtain one or more [Coastal Development Permits (CDPs)], the NRC may not approve PG&Es license renewal application. Moreover, PG&Es license renewal application is incomplete because it does not address this issue. 11
In opposing admission of Contention 3, PG&E argued that the contention was inadmissible
because Petitioners had failed to explain why [the CCCs] concurrence purportedly is required now,
or why the absence of such concurrence at this preliminary stage renders the [license renewal application] deficient in any way. 12 Petitioners replied that PG&Es argument flies in the face of
NRC regulations requiring exactly what Petitioners are attempting to do here: that contentions must be raised at the earliest possible opportunity. 13 And Petitioners further asserted:
Moreover, because PG&Es entire LRA is being offered for a hearing now, there is nothing preliminary about this stage of the proceeding for purposes of filing a timely hearing request. Petitioners properly make this contention because it is evident now that PG&E lacks an essential prerequisite for license renewal ( i.e., the States concurrence with its CZMA certification). Indeed, under 10 C.F.R. § 2.309(c), there can be no doubt that if Petitioners waited until some future time to submit this contention, it would be vulnerable to rejection for lack of timeliness. 11 11 PG&E cites the CCC Letter for the proposition that a six-month period for the CCCs review of its Consistency Certification has not yet started. PG&E Answer at 52 and note 226. But that does not constitute grounds to reject the contention. If the States review results in its approval of PG&Es Consistency Certification, then PG&E can move to dismiss the contention as moot. 14
10 Hearing Request at 18 (footnote omitted).
11 Id. at 20.
12 PG&Es Answer at 52 (emphasis in original).
13 Petitioners Reply at 16.
14 Petitioners Reply at 16 and n. 11 (citing 10 C.F.R. § 2.309(c)) (emphasis in original).
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In its Motion, PG&E now argues that the language quoted directly above, beginning with
Moreover and ending with the entirety of footnote 11, should be stricken because Petitioners have
acknowledged in their Reply that the Certification was not rejected and that Petitioners appear to have
abandoned their earlier argument that final concurrence was required to be presented in PG&Es license renewal application. 15 According to PG&E, Petitioners thereby have converted Contention 3 to an
impermissible placeholder contention. 16
But PG&Es argument that Petitioners have changed Contention 3 in their Reply is
incorrect. Nothing in Petitioners Reply alters the assertion of Contention 3, which is that PG&E
has failed to satisfy the CZMA by obtaining CCC concurrence and any CDPs that may be
required, a fact that remains true. Therefore, Contention 3 is not a placeholder contention.
In addition, PG&E is incorrect about the NRCs requirement for timeliness in pleading
contentions. By submitting the claim of Contention 3 now, Petitioners met their strict obligation under NRC regulations to raise it at the first possible opportunity. 17 The fact that PG&E may later
moot the contention by taking action that resolves Petitioners claims does not render their claim
inadmissible now.
Contention 3 is both timely and admissible. Therefore, Petitioners respectfully request that
the ASLB deny PG&Es Motion on this point.
15 Motion at 5.
16 Id.
17 10 C.F.R. § 2.309(c). See also DTE Electric Co. (Fermi Nuclear Power Plant, Unit 2), CLI 18, 82 N.R.C. 2135, 147 and n. 59 (2015) (For any new arguments or new support for a contention, a petitioner must, among other things, explain why it could not have raised the argument or introduced the factual support earlier.)
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IV. CONCLUSION
For the foregoing reasons, the ASLB should deny PG&Es Motion to Strike.
Respectfully submitted,
__/signed electronically by/___
Diane Curran Harmon, Curran, Spielberg, & Eisenberg, L.L.P.
1725 DeSales Street N.W., Suite 500 Washington, D.C. 20036 240-393-9285 dcurran@harmoncurran.com Counsel to San Luis Obispo Mothers for Peace
__/signed electronically by/___
Hallie Templeton Friends of the Earth 1101 15 th Street, 11 th Floor Washington, DC 20005 434-326-4647 htempleton@foe.org Counsel to Friends of the Earth
__/signed electronically by/___
Caroline Leary Environmental Working Group 1250 I St N.W.
Washington, DC 20005 202-667-6982 cleary@ewg.org Counsel to Environmental Working Group
April 25, 2024
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CERTIFICATE OF SERVICE
I certify that on April 25, 2024, I posted copies of the foregoing RESPONSE BY SAN LUIS OBISPO MOTHERS FOR PEACE, FRIENDS OF THE EARTH AND ENVIRONMENTAL WORKING GROUP TO PACIFIC GAS AND ELECTRIC COMPANYS MOTION TO STRIKE PORTIONS OF THEIR REPLY on the NRCs Electronic Information Exchange (EIE).
Electronically signed by Diane Curran