ML11270A285

Applicant'S Sur-Reply Regarding Admission of Proposed New Contention

ML11270A285
Person / Time
Site:	Diablo Canyon
Issue date:	09/27/2011
From:	Post J, Repka D, Tanya Smith Pacific Gas & Electric Co, Winston & Strawn, LLP
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 21136, 50-275-LR, 50-323-LR, ASLBP 10-900-01-LR-BD01
Download: ML11270A285 (7)

Text

September 27, 2011 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of: )

)

PACIFIC GAS AND ELECTRIC ) Docket No. 50-275-LR COMPANY ) Docket No. 50-323-LR

)

(Diablo Canyon Power Plant, Units 1 and 2) )

APPLICANTS SUR-REPLY REGARDING ADMISSION OF PROPOSED NEW CONTENTION INTRODUCTION In accordance with the invitation of the Atomic Safety and Licensing Board (Board) during the telephone status conference of September 20, 2011, Pacific Gas and Electric Company (PG&E) herein replies to the San Luis Obispo Mothers for Peace reply1 to PG&Es opposition2 to admission of SLOMFPs proposed contention addressing the environmental implications of the Fukushima event. In particular, as requested by the Board, this PG&E sur-reply addresses the implications for the admissibility of the proposed contention of the Commission decision, CLI-11-05, issued on September 9, 2011 (that is, subsequent to PG&Es filing of September 6, 2011). As discussed herein, the Commissions decision supports PG&Es position. The Fukushima issues are being addressed by the Commission in generic processes outside site-specific adjudications, and any obligation for environmental reviews or 1

San Luis Obispo Mothers for Peaces Reply to Oppositions to Admission of New Contention, dated September 13, 2011 (SLOMFPs Reply). SLOMFPs Reply includes a generic Reply Memorandum which is addressed herein.

2 Applicants Response to Proposed Contention, dated September 6, 2011 (Applicants Response).

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supplements will arise, and will be addressed, only if new and significant environmental information is identified.

DISCUSSION SLOMFPs Reply states that CLI-11-05 contains language that bears on the timeliness and admissibility of the [Fukushima] contentions. Reply Memorandum, at 2. CLI-11-05 addressed the various petitions filed in various proceedings (including this one) to suspend the proceedings and NRC licensing decisionmaking. The Commission decision, by its terms, did not address admissibility of contentions in any proceeding. Nonetheless, PG&E agrees with SLOMFP that aspects of the decision bear directly on the admissibility of SLOMFPs proposed Fukushima contention.3 The Commissions decision does not support admissibility of the proposed contention.

SLOMFP identifies the discussion in CLI-11-05 of the NRCs obligations under the National Environmental Policy Act (NEPA) and responds to prior arguments that its NEPA contention is premature. Reply Memorandum, at 3-5, citing CLI-11-05, slip op. 30-31. The Commission specifically held, however, that requests for a NEPA supplement based on the Fukushima event are premature. Id. at 30. That conclusion applies equally to the current proposed contention. The Commission recognized that we do not know today the full implications of the Japan events for U.S. facilities. Id. The Commission further stated, directly to the point of the proposed contention, that any generic NEPA duty if one were appropriate at all does not accrue now. Id. Echoing PG&Es position on the proposed contention (Applicants Reply, at 13-14), the Commission observed that it will have a duty to supplement its 3

PG&E did not oppose SLOMFPs contention on grounds of timeliness. Accordingly the discussions in SLOMFPs Reply, and the Reply Memorandum, regarding the timeliness of the contention are superfluous and are not further addressed here.

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NEPA evaluations only if and when new and significant environmental information is identified. Id. at 31. Based on the Task Force Report and the current state of information, there is no new and significant environmental information giving rise to a NEPA duty.

The Commission decision also addresses the Declaration of Dr. Arjun Makhijani that was submitted with the prior suspension requests. The Commission agreed with the respondents that the declaration was mostly speculation, not facts or evidence, on potential implications [of the Fukushima event] for U.S. facilities. CLI-11-05, slip op. 27; see id. (noting that Dr. Makhijani makes no showing that tsunami or station blackout risk at the subject plants is higher than previously assumed, or that spent fuel pool risk at U.S. plants is anything other than very low). The same assessment applies to the Declaration of Dr. Makhijani submitted with SLOMFPs proposed contention. That declaration is also based on the NRC Task Force recommendations, and does not identify any new or significant environmental information that creates a current NEPA duty. See Applicants Response, at 11-14.

SLOMFP argues that its contention is one of omission that the NRCs NEPA documents fail entirely to consider the findings, recommendations, and conclusion of the Task Force Report. Reply Memorandum, at 9. However, this argument is also inconsistent with the Commissions position on NEPA stated in CLI-11-05. There can be no NEPA omission if no new and significant environmental information has been identified. As the Commission concluded, a NEPA obligation does not accrue now that is, the Commission determined that, based on current information and the Makhijani Declaration, that there is no new and significant information warranting an additional NEPA review. See CLI-11-05, slip op. 31 (concluding that there is not new and significant information that bears on the proposed action or its impacts such that additional NEPA review is warranted given the current state of 3

information available). Therefore, there is no omission to be addressed and no basis for a contention. SLOMFP would have an opportunity to challenge the lack or quality of a NEPA supplement if new and significant environmental information, applicable to Diablo Canyon, is ever identified.

The Commission decision also recognizes, consistent with PG&Es position on the proposed contention, that license renewal presents an additional circumstance relevant to decisions on suspension of proceedings. CLI-11-05, slip op. 26. This same assessment applies to admissibility of the proposed contention in this case. Changes and enhancements to regulations and power plants based on the Fukushima accident will be addressed as part of the current licensing basis of the plant, irrespective of license renewal. See Applicants Response, at 10.4 Finally, SLOMFP points out that CLI-11-05 in effect addresses PG&Es prior argument that admissibility of the proposed contention should be decided in the first instance by the Commission. SLOMFPs Reply, at 3, citing CLI-11-05, slip op. 35. PG&E agrees.

However, this aspect of CLI-11-05 does not affect PG&Es request that the Board certify novel issues, or refer any decision accepting the proposed contention, to the Commission. See Applicants Response, at 8. In fact, the Commission itself stated that: [S]hould a licensing board decision raise novel legal or policy questions, we encourage the boards to certify to us, in accordance with 10 C.F.R. §§ 2.319(l) and 2.323(f), those questions that would benefit from our consideration. CLI-11-05, slip. op. 35.

4 SLOMFP also argues that its contention, to the extent it address the Severe Accident Mitigation Alternatives (SAMA) evaluation, is admissible because it is not an intervenors responsibility to explain how the analysis in the NEPA record would change.

This argument is simply contrary to Commission regulations and precedent.

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CONCLUSION For the reasons discussed above and in Applicants Response, SLOMFPs proposed new contention should not be admitted for hearing.

Respectfully submitted,

/s/ signed electronically by David A. Repka Tyson R. Smith Winston & Strawn LLP 1700 K Street, NW Washington, DC 20006 Executed in accord with 10 C.F.R. 2.304(d)

Jennifer Post Pacific Gas and Electric Company 77 Beale St., B30A San Francisco, CA 94105 COUNSEL FOR THE PACIFIC GAS AND ELECTRIC COMPANY Dated at Washington, District of Columbia this 27th day of September 2011 5

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE ATOMIC SAFETY AND LICENSING BOARD In the Matter of: )

)

PACIFIC GAS AND ELECTRIC ) Docket No. 50-275-LR COMPANY ) Docket No. 50-323-LR

)

(Diablo Canyon Power Plant, Units 1 and 2) )

CERTIFICATE OF SERVICE I hereby certify that copies of APPLICANTS SUR-REPLY REGARDING ADMISSION OF PROPOSED NEW CONTENTION in the captioned proceeding have been served via the Electronic Information Exchange (EIE) this 27th day of September 2011, which to the best of my knowledge resulted in transmittal of the foregoing to those on the EIE Service List for the captioned proceeding.

Office of Commission Appellate U.S. Nuclear Regulatory Commission Adjudication Office of the Secretary of the Commission U.S. Nuclear Regulatory Commission Mail Stop O-16C1 Washington, DC 20555-0001 Washington, DC 20555-0001 E-mail: ocaamail@nrc.gov Hearing Docket E-mail: hearingdocket@nrc.gov Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Mail Stop - T-3 F23 Office of the General Counsel U.S. Nuclear Regulatory Commission Mail Stop O-15D21 Washington, DC 20555-0001 Washington, DC 20555-0001 Alex S. Karlin, Chair Susan Uttal, Esq.

Nicholas G. Trikouros Lloyd Subin, Esq.

Paul B. Abramson Maxwell Smith, Esq.

Catherine Kanatas, Esq.

E-mail: Alex.Karlin@nrc.gov E-mail: Nicholas.Trikouros@nrc.gov E-mail: Susan.Utall@nrc.gov E-mail: Paul.Abramson@nrc.gov E-mail: Lloyd.Subin@nrc.gov E-mail: Maxwell.Smith@nrc.gov E-mail: catherine.kanatas@nrc.gov OGC Mail Center : OGCMailCenter@nrc.gov 1

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

1726 M St., NW, Suite 600 Washington, DC 20036 E-mail: dcurran@harmoncurran.com Respectfully submitted,

/s/ signed electronically by David A. Repka Winston & Strawn LLP 1700 K Street, NW Washington, DC 20006 COUNSEL FOR PACIFIC GAS AND ELECTRIC COMPANY 2

DC:688533.1