ML12191A374

San Luis Obispo Mothers for Peace Motion for Leave to File a New Contention Concerning Temporary Storage and Ultimate Disposal of Spent Reactor Fuel at Diablo Canyon Nuclear Power Plant

ML12191A374
Person / Time
Site:	Diablo Canyon
Issue date:	07/09/2012
From:	Curran D Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP, Pacific Gas & Electric Co
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
RAS 22939, 50-275-LR, 50-323-LR, ASLBP 10-900-01-LR-BD01
Download: ML12191A374 (10)

Text

1 July 9, 2012 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 Diablo Canyon Nuclear Power Plant 50-323-LR Units 1 and 2 SAN LUIS OBISPO MOTHERS FOR PEACE MOTION FOR LEAVE TO FILE A NEW CONTENTION CONCERNING TEMPORARY STORAGE AND ULTIMATE DISPOSAL OF SPENT REACTOR FUEL AT DIABLO CANYON NUCLEAR POWER PLANT I. INTRODUCTION Pursuant to 10 C.F.R. §

§ 2.309(f)(1) and 2.309(f)(2), San Luis Obispo Mothers for Peace ("SLOMFP")

seek s leave to file a new contention which challenge s the failure of Pacific Gas & Electric Co.'s ("PG&E's") Environmental Report for the renewal of the Diablo Canyon operating license to address the environmental impacts of spent fuel pool leakage and fires as well as the environmental impacts that may occur if a spent fuel repository does not become available. The contention is based on the United States Court of Appeals for the District of Columbia Circuit's recent decision in State of New York v. NRC , No. 11-1045 (June 8, 2012), which invalidated the Nuclear Regulatory Commission's ("NRC") Waste Confidence Decision Update (75 Fed. Reg. 81,037 (Dec. 23, 2010)

) ("WCD") and the NRC's final rule regarding Consideration of Environmental Impacts of Spent Fuel After Cessation of Reactor Operation (75 Fed. Reg. 81,032 (Dec. 23, 2010)

) ("Temporary Storage Rule

" or "TSR"). State of New York vacated the generic findings in 10 C.F.R. § 51.23(a) regarding the safety and environmental impacts of spent fuel storage. As a result, the NRC no longer has any legal basis for Section 2 51.23(b), which relies on those findings to exempt both the agency staff and license applicants from addressing long-term spent fuel storage impacts in individual licensing proceedings.

SLOMFP recognize s that because the mandate has not yet issued in State of New York, this contention may be premature. Nevertheless, SLOMFP is submitting the contention within 30 days of becoming aware of the court's ruling, in light of Commission precedents judging the timeliness of motions and contentions according to when petitioners became aware of a decision's potential effect on their interests. Duke Energy Corp. (McGuire Nuclear Station, Units 1 and 2; Catawba Nuclear Station, Units 1 and 2), CLI 28, 56 NRC 373, 386 (2002). If the Atomic Safety and Licensing Board or Commission determines that this contention is premature, SLOMFP request s that consideration of the contention be held in abeyance pending issuance of the mandate.

II. FACTUAL BACKGROUND In 1984, the NRC issued its first WCD, making findings regarding the safety of spent fuel disposal and the safety and environmental impacts of spent fuel storage. Over the several decades that have passed since then, the NRC has updated the WCD. The latest update was issued in December 2010. On June 8, 2012, the U.S. Court of Appeals for the D.C. Circuit took review of the NRC's 2010 WCD Update and TSR and vacated those rules in their entirety. In the course of reviewing the WCD Update, the court found that the WCD is a "major federal action" under the National Environmental Policy Act ("NEPA"), therefore requiring either a finding of no significant impact ("FONSI") or an environmental impact statement ("EIS"). Id., slip op. at 8. The court also found it was "eminently clear that the WCD will be used to enable licensing decisions based on its findings" because the WCD "renders uncontestable general conclusions about the environmental effect of plant licensure that will apply in every licensing 3 decision." Id., slip op. at 9 (citing 10 C.F.R. § 51.23(b)).

With respect to the WCD's conclusions regarding spent fuel disposal, the court observed that the NRC has "no long

-term plan other than hoping for a geologic repository" and that spent reactor fuel "will seemingly be stored on site at nuclear plants on a permanent basis" if the government "continues to fail in its quest" to site a permanent repository. Id., slip op. at 13. Thus, the court concluded that the WCD "must be vacated" with respect to its conclusion in Finding 2 that a suitable spent fuel repository will be available "when necessary." Id., slip op. at 11. In order to comply with NEPA, the court found that the NRC must "examine the environmental effects of failing to establish a repository." Id., slip op. at 12.

With respect to the TSR's conclusions regarding the environmental impacts of temporary storage of spent reactor fuel at reactor sites, the court concluded that the NRC's environmental assessment ("EA") and FONSI issued as part of the TSR "are not supported by substantial evidence on the record" in two respects. First, the NRC had reached a conclusion that the environmental impacts of spent fuel pool leaks will be insignificant, based on an evaluation of past leakage. The court concluded that the past incidence of leaks was not an adequate predictor of leakage thirty years hence, and therefore ordered the NRC to examine the risks of spent fuel pool leaks "in a forward

-looking fashion." Id., slip op. at 14. In addition, the court found that the NRC's analysis of the environmental impacts of pool fires was deficient because it examined only the probability of spent fuel pool fires and not their consequences. Id., slip op. at 18

-19. "Depending on the weighing of the probability and the consequences," the court observed, "an EIS may or may not be required."

Id., slip op. at 19.

In remanding the WCD Update and the TSR to the NRC, the court purposely did not express an opinion regarding whether an EIS would be required or an EA would be sufficient.

4 Instead, it left that determination up to the discretion of the NRC. Id., slip op. at 12, 20.

I II. CONTENTION A. Statement of the Contention The Environmental Report for renewal of the Diablo Canyon operating license does not satisfy NEPA because it does not include a discussion of the environmental impacts of spent fuel storage after cessation of operation, including the impacts of spent fuel pool leakage, spent fuel pool fires, and failing to establish a spent fuel repository, as required by the U.S. Court of Appeals for the D.C. Circuit in State of New York v. NRC, No. 11-1045 (June 8, 2012). Therefore, unless and until the NRC conducts such an analysis, it may not renew the Diablo Canyon operating license.

B. The Contention Satisfies the NRC's Admissibility Requirements in 10 C.F.R. § 2.309(f)(1)

1. Brief Summary of the Basis for the Contention The contention is based on the United States Court of Appeals for the District of Columbia Circuit's decision in State of New York v. NRC, which invalidated the NRC's generic findings in 10 C.F.R. § 51.23(a) regarding the safety and environmental impacts of spent fuel storage after cessation of reactor operation with respect to spent fuel pool leakage, pool fires, and the environmental impacts of failing to establish a repository. As a result, the NRC no longer has any legal basis for Section 51.23(b), which relies on those findings to exempt both the agency staff and license applicants from addressing spent fuel storage impacts in individual licensing proceedings. To the extent that the Environmental Report for renewal of the Diablo Canyon operating license addresses spent fuel storage impacts, it does not address the concerns 5 raised by the Court in State of New York. Therefore, before Diablo Canyon can be re-licensed, those impacts must be addresse

d. SLOMFP does not currently take a position on the question of whether the environmental impacts of post

-operational spent fuel storage should be discussed in an individual EIS or environmental assessment for this facility or a generic EIS or environmental assessment. That question must be decided by the NRC in the first instance. Baltimore Gas and Electric Co. v. NRDC, 462 U.S. 87 (1983). SLOMFP reserve d the right to challenge the adequacy of any generic analysis the NRC may prepare in the future to address the site

-specific environmental conditions at Diablo Canyon. The current circumstances, however, are such that the NRC has no valid environmental analysis, either generic or site

-specific, on which to base the renewal of the operating license for the Diablo Canyon nuclear power plant.

2. The Contention is Within the Scope of the Proceeding Th e contention is within the scope of th is licensing proceeding because it seeks to ensure that the NRC complies with the NEPA before issuing an operating license for the Diablo Canyon nuclear power plant. There is no doubt that the environmental impacts of spent fuel storage must be addressed in all NRC reactor licensing decisions. State of New York, slip op. at 8 (holding that the WCD is a "predicate" to every licensing decision)

Minnesota v. NRC

, 602 F.2d 412 (D.C. Cir. 1979). 3. The Issues Raised A re Material to the Findings that the NRC Must Make to Support the Action that is Involved in this Proceeding The issues raised in this contention are material to the findings the NRC must make to support the action that is involved in this proceeding, in that the NRC must render findings pursuant to NEPA covering all potentially significant environmental impacts. See discussion 6 above in subsection (2). As such, in the absence of 10 C.F.R. § 51.23(a), it is clear that this contention addresses a material omission from PG&E's Environmental Report.

4. Concise Statement of Facts of Expert Opinion Support the Contention This contention is based primarily on law rather than facts. SLOMFP has adequately supported the contention by citing State of New York and discussing its legal effect on this proceeding.

SLOMFP also relies on the undisputed fact that the NRC has taken no steps to cure the deficiencies in the basis for 10 C.F.R. § 51.23(a) that the Court identified in State of New York. 5. A Genuine Dispute Exists with the Applicant on a Material Issue of Law or Fact. SLOMFP has a genuine dispute with the applicant regarding the legal adequacy of the environmental analysis on which PG&E relies in seeking renewal of its operating license in this proceeding. Unless or until the NRC cures the deficiencies identified in State of New York or the applicant withdraws its application, this dispute will remain alive.

IV. THE CONTENTION IS TIMELY PURSUANT TO 10 C.F.R. § 2.309(f)(2). The contention meets the timeliness requirements of 10 C.F.R. § 2.309(f)(2), which call for a showing that:

(i) The information upon which the amended or new contention is based was not previously available;

(ii) The information upon which the amended or new contention is based is materially different than information previously available; and

(iii) The amended or new contention has been submitted in a timely fashion based on the availability of the subsequent information.

Id.

7 SLOMFP satisfies all three prongs of this test. First, the information on which the contention is based

-- i.e., the invalid ity of 10 C.F.R. § 51.23(b) and the findings on which it is based -- is new and materially different from previously available information. Prior to June 8, 2012, 10 C.F.R. § 51.23 was presumptively valid. Subsequent to the issuance of State of New York by the U.S. Court of Appeals, the NRC no longer has a lawful basis for relying on that regulation to exempt itself or license applicants from considering the environmental impacts of post-operational spent fuel storage in the environmental analyses for individual reactor license applications. By the same token, the generic analyses in the WCD and the TSR

, on which the NRC relied for all of its reactor licensing decisions, are no longer sufficient to support the issuance of a license. Therefore the NRC lacks an adequate legal or factual basis to renew the operating license for the Diablo Canyon nuclear power plant.

Finally, the contention is timely because it has been submitted within 30 days of June 8, 2012, the date the U.S. Court of Appeals issued State of New York.

V. CONCLUSION For the reasons stated, SLOMFP respectfully request s that the Atomic Safety and Licensing Board grant leave to file its contention.

Respectfully submitted, Electronically signed by Diane Curran HARMON, CURRAN, SPIELBERG, & EISENBERG, L.L.P.

1726 M Street N.W., Suite 600 Washington, D.C. 20036 202-328-3500 Fax: 202-328-6918 e-mail: dcurran@harmoncurran.com

July 9, 2012

8 9 CERTIFICATION REGARDING CONSULTATION PURSUANT TO 10 C.F.R. § 2.323 I certify that on July 7, 2012, I contacted counsel for PG&E and the NRC Staff to seek their consent to this motion. Counsel for PG&E stated that PG&E would not take a position on the motion before reviewing it. Counsel for the NRC Staff stated that the Staff does not oppose the filing of the motion, but that based on the representations in SLOMFP's counsel's e

-mail, the Staff does not have enough information to take a position on the admissibility of the contention.

The Staff will respond to the contention when it is filed.

Electronically signed by Diane Curran

10 CERTIFICATE OF SERVICE I certify that on July 9, 2012 , I posted on the NRC's Electronic Information Exchange the foregoing San Luis Obispo Mothers for Peace's Motion for Leave to File a New Contention Concerning Temporary Storage and Ultimate Disposal of Spent Reactor Fuel a t Diablo Canyon Nuclear Power Plant. It is my understanding that as a result, the following persons were served:

Office of the Secretary Rules and Adjudications Branch U.S. Nuclear Regulatory Commission 11555 Rockville Pike Rockville, MD 20852

hearingdocket@nrc.gov David A. Repka, Esq.

Tyson R. Smith, Esq.

Winston & Strawn, LLP 1700 K Street N.W.

Washington, D.C.

20006-3817 drepka@winston.com , trsmith@winston.com

Susan Uttal, Esq.

Lloyd Subin, Esq.

Maxwell Smith, Esq.

Richard Harper, Esq.

Office of General Counsel Mail Stop O

-15D21 U.S. Nuclear Regulatory Commission Washington, D.C. 20555

Susan.Uttal@nrc.gov

Lloyd.Subin@nrc.gov

Maxwell.smith@nrc.gov Richard.Harper@nrc.gov Alex Karlin, Chair Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555

Alex.Karlin@nrc.gov Nicholas G. Trikouros Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555

Nicholas.trikouros@nrc.gov Paul B. Abramson Atomic Safety and Licensing Board Panel U.S. Nuclear Regulatory Commission Washington, D.C. 20555

Paul.abramson@nrc.gov Office of Appellate Adjudication U.S. Nuclear Regulatory Commission Washington, D.C. 20555

-0001 Electronically signed by Diane Curran