ML102420324

2010/08/30-Applicant's Answer to Support of the NRC Staff Petition for Interlocutory Review of LBP-10-15

ML102420324
Person / Time
Site:	Diablo Canyon
Issue date:	08/30/2010
From:	Post J, Repka D, Tanya Smith Pacific Gas & Electric Co, Winston & Strawn, LLP
To:	NRC/OCM
SECY RAS
References
50-275-LR, 50-323-LR, ASLBP 10-900-01-LR-BD01, LBP-10-15, RAS 18481
Download: ML102420324 (11)

Text

UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION 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 ANSWER IN SUPPORT OF THE NRC STAFF PETITION FOR INTERLOCUTORY REVIEW OF LBP-10-15 David A. Repka Tyson R. Smith Winston & Strawn LLP 1700 K Street, NW Washington, DC 20006 Jennifer Post Pacific Gas and Electric Company 77 Beale St., B30A San Francisco, CA 94105 COUNSEL FOR THE PACIFIC GAS AND ELECTRIC COMPANY August 30, 2010

TABLE OF CONTENTS Page I. INTRODUCTION ...............................................................................................................1 II. DISCUSSION ......................................................................................................................2 A. Contention TC-1 requires litigation of issues that are not addressed in 10 C.F.R. Part 54 and for which there are no applicable legal standards. ...............2 B. Contention EC-1 requires compliance with a standard not adopted in NRC regulations and therefore fundamentally alters the nature and scope of the NRCs review...........................................................................................................4 III. CONCLUSION ....................................................................................................................5 i

TABLE OF AUTHORITIES Page ADMINISTRATIVE DECISIONS Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3, and 4), CLI-80-12, 11 NRC 514, 516 (1980) ..................................................................................3 Private Fuel Storage (Independent Spent Fuel Storage Installation),

CLI-02-25, 56 NRC 340 (2002).................................................................................................4 STATUTES AND REGULATIONS 10 C.F.R. § 2.311 .....................................................................................................................1, 2, 4 10 C.F.R. § 2.341 .............................................................................................................................1 40 C.F.R. § 1502.22 .....................................................................................................................3, 4 FEDERAL REGISTER NOTICES 49 Fed. Reg. 9352 (March 12, 1984) ...............................................................................................4 MISCELLANEOUS NUREG-1800, Standard Review Plan for Review of License Renewal Applications for Nuclear Plants, Revision 1 (September 2005) .........................................................................3 ii

August 30, 2010 UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION 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 ANSWER IN SUPPORT OF THE NRC STAFF PETITION FOR INTERLOCUTORY REVIEW OF LBP-10-15 I. INTRODUCTION Pursuant to 10 C.F.R. § 2.341(b)(3), the Pacific Gas and Electric Company (PG&E) hereby answers the NRC Staffs petition for interlocutory review of LBP-10-15.1 PG&E agrees with the NRC Staff that the Boards decision warrants interlocutory review because it affects the structure of this limited proceeding in a pervasive and unusual manner. See 10 C.F.R. § 2.341(f)(2)(ii). As discussed in PG&Es appeal of LBP-10-15, PG&E also agrees with the NRC Staff that the Board erred in admitting Contention TC-1 and Contention EC-1.2 The Boards decision to admit Contention TC-1, which involves a current operating issue, undermines the Commissions longstanding and frequently expressed intent to 1

See NRC Staffs Petition for Interlocutory Review of Atomic Safety and Licensing Board Decision (LBP-10-15) Admitting an Out of Scope Safety Contention and Improperly Recasting an Environmental Contention, dated August 19, 2010 (NRC Pet.); see also Memorandum and Order (Rulings on Standing, Contention Admissibility, Waiver Petition, and Selection of Hearing Procedures), LBP-10-15 (slip op. August 4, 2010).

2 See Applicants Brief in Support of Appeal from LBP-10-15, dated August 16, 2010 (PG&E Appeal). PG&E did not address (and was not required to address) the standard for interlocutory review under 10 C.F.R. § 2.341(f)(2) in its appeal. PG&E had an appeal as of right under 10 C.F.R. § 2.311(d).

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focus license renewal proceedings on issues related to plant aging. The contention as framed by the Board would require PG&E to support a predictive finding that is not required by the regulations related to future implementation of aging management programs. The Board decision to admit environmental Contention EC-1 based on a Council on Environmental Quality (CEQ) regulation blurs the distinction between executive branch agencies and independent regulatory agencies and weakens the NRCs authority to exercise independent judgment on technical and environmental matters. For these reasons, PG&E supports the NRC Staffs petition for interlocutory review.

II. DISCUSSION A. Contention TC-1 requires litigation of issues that are not addressed in 10 C.F.R. Part 54 and for which there are no applicable legal standards.

As PG&E explained in its appeal of LBP-10-15, Contention TC-1, whether as originally proposed or as recast by the Board, should not have been admitted for two reasons: (1) the contention raises a current operational issue that is beyond the scope of an NRC license renewal review, and (2) the contention, in any event, lacks a basis to demonstrate that the current adverse operational trend referenced as a basis for the contention gives rise to a genuine dispute regarding aging management. PG&E Appeal at 2-14. PG&E therefore agrees with the NRC Staff that Contention TC-1 raises issues outside the scope of the limited license renewal proceeding and is contrary to Commission regulations and precedent. See NRC Pet. at 8-18.

PG&E has already appealed this contention as of right under 10 C.F.R. § 2.311(d). Accordingly, there should be no need for a Commission finding that the standards for interlocutory review have been met. Nonetheless, PG&E agrees with the NRC Staff that litigating Contention TC-1 would have an unusual and pervasive effect on this proceeding (and potentially other license renewal proceedings). The Board decision expands the scope of the 2

issues involved far beyond the confines of the limited inquiry set forth in 10 C.F.R. Part 54. The Boards probe into PG&Es current performance and trends to make a predictive finding regarding how PG&E will implement programs in the future duplicates ongoing NRC Staff oversight efforts (now and in the future) and intrudes into the NRC Staffs independent oversight responsibilities. See, e.g., Carolina Power and Light Co. (Shearon Harris Nuclear Power Plant, Units 1, 2, 3, and 4), CLI-80-12, 11 NRC 514, 516 (1980). Under the Boards formulation of the scope of license renewal, any current compliance issue (e.g., quality assurance, technical qualifications, or human performance) could be raised, ultimately bringing into the scope of the license renewal review the nature, extent, and corrective actions for that present-day issue. The Board, however, has no basis under Part 54 to supervise ongoing NRC inspection and enforcement activities. The Boards decision therefore affects the basic structure of the NRCs license renewal review and this proceeding.

The NRCs regulatory framework for license renewal in Part 54 also does not contain any legal standards for assessing the implications of a licensees compliance with its current operating license or adverse operating trends. The Standard Review Plan does not indicate that a discussion of current operational performance matters is necessary. See NUREG-1800, Standard Review Plan for Review of License Renewal Applications for Nuclear Plants, Revision 1 (September 2005). Accordingly, neither PG&E in its application nor the NRC Staff in its review documents addresses current compliance. The parties would need to guess as to what standards are to be applied and how they might augment their application or review documents to address Contention TC-1. The Boards decision therefore fundamentally alters the shape of the ongoing adjudication by requiring the parties to craft new standards and to speculate as to how those standards should be applied in the proceeding.

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Accordingly, the Commission should grant the NRC Staffs petition for interlocutory review of Contention TC-1.

B. Contention EC-1 requires compliance with a standard not adopted in NRC regulations and therefore fundamentally alters the nature and scope of the NRCs review.

The NRC Staffs petition for interlocutory review focuses on the Boards purported legal basis for Contention EC-1: the CEQ regulation at 40 C.F.R. § 1502.22. NRC Pet. at 22-23. Among other reasons stated in PG&Es appeal, PG&E agrees with the NRC Staff that the Board improperly based Contention EC-1 on 40 C.F.R. § 1502.22.3 PG&E Appeal at 18.

As with Contention TC-1, PG&E has already appealed this contention as of right under 10 C.F.R. § 2.311(d). Accordingly, there should be no need for a Commission finding that the standards for interlocutory review have been met. Nonetheless, PG&E agrees with the NRC Staff that litigating Contention EC-1 would have an unusual and pervasive effect on the proceeding. The Board found that 40 C.F.R. § 1502.22 provides a legal basis for the contention.

LBP-10-14 at 19-25. However, as an independent regulatory agency, the NRC is not legally bound by CEQ regulations. See, e.g., Private Fuel Storage (Independent Spent Fuel Storage Installation), CLI-02-25, 56 NRC 340, 348 n.22 (2002). And, as PG&E noted in its appeal, there is no NRC regulation in 10 C.F.R. Part 51 that corresponds to 40 C.F.R. § 1502.22. By requiring the parties to litigate PG&Es compliance with CEQ regulations and related case law, the Board has effectively bypassed the Commissions considered decision to not adopt 40 C.F.R. § 1502.22. See 49 Fed. Reg. 9352, 9353-54 (March 12, 1984) (reserving the right to resolve 3

As PG&E explained in its appeal of LBP-10-15, Contention EC-1 should not have been admitted for additional, independent reasons. For example, SLOMFP did not demonstrate any omission from the SAMA analysis. PG&E Appeal at 14-18. And, even assuming that 40 C.F.R. § 1502.22 were applicable to NRC proceedings, SLOMFP also failed to show that explicit consideration of the Shoreline Fault is essential to PG&Es SAMA analysis. Id. at 18-20.

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whether additional information is essential to a reasoned choice among alternatives in a manner consistent with the Commissions responsibilities as an independent regulatory agency). It is beyond unusual for a Licensing Board to apply regulatory requirements of other agencies in NRC licensing proceedings without the Commissions express direction.

In addition, one of the fundamental attributes of an independent regulatory agency is the authority to make its own technical and environmental determinations free from the influence of executive agencies. By selectively incorporating executive agency regulations into the NRC licensing process, the Board has eliminated an essential separation between the NRC and CEQ. It is NRC regulations not CEQ regulations that establish the standards to govern whether an applicant has provided sufficient information in its SAMA analysis.

At bottom, the Boards decision to cherry-pick CEQ regulations for application in NRC proceedings is unusual and will have a pervasive effect on the proceeding by requiring the parties to litigate compliance with non-NRC regulations. The Commission should therefore grant the NRC Staffs petition for interlocutory review of Contention EC-1.

III. CONCLUSION For the above reasons, PG&E supports the NRC Staffs petition for interlocutory review. The Commission should reverse the Boards decision regarding the admissibility of Contention TC-1 and Contention EC-1.

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Respectfully submitted,

/s/ signed electronically by David A. Repka Tyson R. Smith Winston & Strawn LLP 1700 K Street, NW Washington, DC 20006 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 30th day of August 2010 6

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 ANSWER IN SUPPORT OF THE NRC STAFF PETITION FOR INTERLOCUTORY REVIEW OF LBP-10-15 in the captioned proceeding have been served via the Electronic Information Exchange (EIE) this 30th day of August 2010, 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 THE PACIFIC GAS AND ELECTRIC COMPANY 2