ML22342B239
| ML22342B239 | |
| Person / Time | |
|---|---|
| Site: | Diablo Canyon  |
| Issue date: | 12/06/2022 |
| From: | Swanson J, Cook K, Hirsch D, Templeton H San Luis Obispo Mothers for Peace, Committee to Bridge the Gap, Friends of the Earth, Environmental Working Group |
| To: | Christopher Hanson, Jeff Baran, David Wright, Annie Caputo, Crowell B NRC/Chairman, NRC/OCM/JMB, NRC/OCM/DAW, NRC/OCM/AXC, NRC/OCM/BRC |
| Shared Package | |
| ML22342B240 | List: |
| References | |
| LTR-22-0335 | |
| Download: ML22342B239 (1) | |
Text
December 6, 2022 Christopher T. Hanson, Chairman Jeff Baran, Commissioner David A. Wright, Commissioner Annie Caputo, Commissioner Bradley R. Crowell, Commissioner U.S. Nuclear Regulatory Commission Washington, D.C. 20555 By email to Brooke P. Clark, NRC Secretary (NRCExecSec@nrc.gov)
SUBJECT:
PG&E Must Be Required to Submit a New License Renewal Application for Diablo Canyon Units 1 and 2 and NRC Must Comply With All Safety and Environmental Requirements in Conducting its Review
Dear Commissioners of the U.S. Nuclear Regulatory Commission (NRC):
More than two weeks ago, on November 17, 2022, we wrote to oppose Pacific Gas and Electric Companys (PG&Es) request that you, as the highest officials of the NRC, unlawfully reinstate a license renewal proceeding that you had terminated at PG&Es request. We have 1
received no response to our letter, nor has it even been posted on the NRCs Agencywide Data Management and Access System (ADAMS). Thus, we write to reassert and supplement our 2
objections.
The Commission Should Reject PG&Es Unlawful Request to Review its 2009 Application.
We continue to demand that you reject PG&Es request to pretend that the license renewal proceeding that began in 2009 was not terminated, or that the grossly outdated 2009 application could at this point be considered sufficient under 10 C.F.R. § 2.109(b) and therefore subject to the timely renewal rule. Indeed, as PG&E itself has admitted, preparing a complete license Letter from Jane Swanson (San Luis Obispo Mothers for Peace), Ken Cook (Environmental 1
Working Group), Daniel Hirsch (Committee to Bridge the Gap), and Hallie Templeton (Friends of the Earth) to NRC Commissioners re: Objections to PG&Es Requests Related to Withdrawn License Renewal Application for Diablo Canyon Nuclear Power Plant (Nov. 17, 2022).
Our November 17 letter responds to a letter from Paula Gerfen, Senior Vice President and Chief Nuclear Officer, PG&E, to NRC, re: Request to Resume Review of the Diablo Canyon Power Plant License Renewal Application or, Alternatively, for an Exemption from 10 CFR 2.109(b),
Concerning a Timely Renewal Application, Enclosure 2 at 9 (Oct. 31, 2022) (ADAMS Accession No. ML22304A691) (Gerfen Letter).
In contrast, the Gerfen Letter was posted on ADAMS the day after it was received.
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NRC Commissioners December 6, 2022 Page of 2
7 renewal application now requires so much work that it cannot be presented for another year, until late 2023. As your regulations provide, PG&E should be required to file a new license renewal 3
application if it wishes to operate Diablo Canyon past its operating license expiration dates of 2024 and 2025.
The Commission Should Reject PG&Es Unlawful Exemption Request.
We also continue to demand that you reject PG&Es application for an exemption from the timely renewal rule, which would amount to an exemption from the license renewal process itself. Given that PG&E does not expect to be able to submit a complete license renewal application until late 2023, the NRC would be forced to conduct a significant portion of the review for potentially years after termination of the original operating licenses. Thus, to grant such an exemption would allow PG&E to continue to operate for years based on outdated licenses and environmental analyses that are more than thirty years old.
Under these circumstances, we respectfully submit that issuance of an exemption that would allow PG&E to substantially extend the Diablo Canyon operating license terms without renewing their licenses would violate your regulations and constitute arbitrary and capricious decision-making.
The NRCs License Renewal Review Must Comply with NEPA Procedural Requirements.
Even assuming for purposes of argument that you could lawfully issue the exemption requested by PG&E under the Atomic Energy Act and your safety regulations, your decision to issue the exemption would be subject to the procedural requirements of the National Environmental Policy Act (NEPA) and your NEPA implementing regulations. In particular, we urge you to reject PG&Es meritless claim that NRC regulation 10 C.F.R. § 51.22(c)(25)(vi)(G) and (I) permit you to approve an exemption to the timely renewal rule without first preparing an Environmental Assessment. PG&E argues that your timely renewal regulation in 10 C.F.R. § 2.109 relates to 4
scheduling requirements and [o]ther requirements of an administrative, managerial or organizational nature, and therefore an exemption from § 2.109 is subject to a categorical exclusion if it otherwise satisfies 10 C.F.R. § 51.22(c)(25).
5 On its face, as a matter of law, the requested exemption from the timely renewal requirement does not meet NRCs requirements for a categorical exclusion from the preparation of an Environmental Assessment, as required by NEPA and your implementing regulations. An Gerfen Letter, Enclosure 1 at 6.
3 Gerfen Letter, Enclosure 2 at 9.
Id.
NRC Commissioners December 6, 2022 Page of 3
7 exemption that would allow two nuclear reactors to operate beyond their license renewal expiration dates may not reasonably be characterized as merely schedular, administrative or organizational in nature. And indeed, the regulatory history of 10 C.F.R. § 51.22(c)(25) demonstrates that the NRC had no intention of excluding a decision with such potentially significant environmental impacts from the scope of a NEPA review. Therefore, if you should decide to undertake consideration of PG&Es exemption request, your review must be supported by an Environmental Assessment that evaluates the need for an environmental impact statement (EIS).
Background. As you know, the NRC originally licensed the Diablo Canyon reactors to operate for forty years beyond the issuance dates of their construction permits. Unit 1, which received a 6
construction permit in 1968, was licensed to operate until April 23, 2008; and Unit 2, which received a construction permit in 1970, was licensed to operate until December 9, 2010. In 7
support of the construction permits and operating licenses, the NRC issued an EIS.
8 In 1992, after the NRC amended its regulations to allow 40-year operating license terms to commence upon issuance of the operating licenses themselves, PG&E applied to the NRC for a license amendment to recover or recapture the periods of construction for each reactor, by extending the term of their operating licenses from the date the reactors had received their low-power operating licenses. PG&E proposed to extend the termination date for Unit 1 to 9
September 22, 2021 and the termination date for Unit 2 to April 26, 2025.
10 In the course of reviewing PG&Es license amendment application, the NRC issued an Environmental Assessment. The Environmental Assessment confirmed that the 1973 Diablo 11 Canyon EIS had evaluated 40-year operating license terms and concluded that extending the operating license terms did not create any new or unreviewed environmental impacts, involve See Letter from Gregory M. Rueger, PG&E to NRC re: License Amendment Request 92-04 40-
Year Operating License Application (July 9, 1992) (ML17083C429) (Rueger Letter).
Id. See also Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),
LBP-92-27, 36 N.R.C. 196, 197 (1992).
Environmental Statement Related to the Nuclear Generating Station, Diablo Canyon Units 1 8
and 2 (May 1973) (ML15043A481) (1973 Diablo Canyon EIS).
Rueger Letter at 1.
9 Id. Later, the termination date for Unit 1 was changed to November 2, 2024. We have found no 10 documentation for the change.
Environmental Assessment and Finding of No Significant Impact, Diablo Canyon Units 1 and 11 2 (Feb. 3, 1993) (ML022340575).
NRC Commissioners December 6, 2022 Page of 4
7 any physical modifications, or cause new or unreviewed environmental impacts that were not considered in the 1973 Diablo Canyon EIS.
12 The 1993 Environmental Assessment constitutes the most recent environmental analysis prepared by the NRC for the operation of Diablo Canyon. Taken together with the 1973 EIS, 13 these two documents evaluate only 40 years of operating Diablo Canyon Units 1 and 2. No NRC environmental document evaluates the site-specific environmental impacts of operating Diablo Canyon for any period of time beyond 40 years; and the NRC Diablo Canyon-specific environmental documents that do exist are now between 30 and 50 years out of date for that purpose.
Discussion. NRC regulation 10 C.F.R. § 51.22(c)(25)(vi) allows the NRC to categorically exclude nine categories of regulatory exemptions from the NRCs requirement in 10 C.F.R. § 51.21 to prepare an Environmental Assessment. In the Gerfen Letter, PG&E asserts that [t]he 14 requirements from which this exemption is sought involve 10 CFR (c)(25)(vi)(G) (Scheduling Id. at 2. The NRCs Atomic Safety and Licensing Board approved the license amendment in 12 1994, with a set of conditions imposed after an adjudicatory hearing. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-94-35, 40 N.R.C. 180 (1994).
While PG&E submitted an Environmental Report in support of its 2009 license renewal 13 application, the NRC never completed its own review or issued a supplemental EIS for renewal of the Diablo Canyon licenses.
10 C.F.R. § 51.21 requires an environmental assessment for [a]ll [domestic] licensing and 14 regulatory actions except those actions categorically requiring an EIS under § 51.20(b), actions subject to categorical exclusions under § 51.22(c), and actions exempt from environmental review under § 51.22(d)). Under Section 51.25(c)(25)(vi), the NRC may exclude exemptions involving:
(A) Recordkeeping requirements; (B) Reporting requirements; (C) Inspection or surveillance requirements; (D) Equipment servicing or maintenance scheduling requirements; (E) Education, training, experience, qualification, requalification or other employment suitability requirements; (F) Safeguard plans, and materials control and accounting inventory scheduling requirements; (G) Scheduling requirements; (H) Surety, insurance or indemnity requirements; or (I) Other requirements of an administrative, managerial, or organizational nature.
NRC Commissioners December 6, 2022 Page of 5
7 requirements), and 10 CFR 51.22(c)(25)(vi)(I) (Other requirements of an administrative, managerial, or organizational nature).
15 On its face, however, an exemption from the timely renewal requirement would not qualify as merely schedular, administrative, managerial or organizational, because it would allow PG&E to change the legal status of the Diablo Canyon reactors from shutdown reactors to operating reactors - a drastic and significant change in the risks and impacts they pose.
And the regulatory history of 10 C.F.R. § 51.22(c)(25) shows that the NRC intended the categorical exclusion to apply to truly minor actions of an administrative nature, i.e., those with no arguably significant environmental impacts. Examples of appropriate exemptions given by the NRC in promulgating the rule included:
(1) Revising the schedule for the biennial exercise requirements for nuclear reactors in 10 CFR Part 50, Appendix E, Sections IV.F 2.b and c; (2) Applying updated NRC-approved ASME Codes; and (3) Training and experience requirements in 10 CFR Part 35, Medical Use of Byproduct Material.
16 Such minor changes to schedules for exercises and training programs and updates to industry codes cannot reasonably be compared to a decision on whether two reactors must shut down on Id., Enclosure 2 at 9. PG&E also asserts that all of the other provisions of 10 C.F.R. § 51.22(c) 15 (25) are satisfied by its exemption request. Id. These provisions include requirements to demonstrate:
(i) There is no significant hazards consideration; (ii) There is no significant change in the types or significant increase in the amounts of any effluents that may be released offsite; (iii) There is no significant increase in individual or cumulative public or occupational radiation exposure; (iv) There is no significant construction impact; and (v) There is no significant increase in the potential for or consequences from radiological accidents.
10 C.F.R. § 51.25(c)(25)(i)-(v). Given the inapplicability of the exclusion to the timely renewal regulation in subsections (vi)(G) and (I), PG&Es claims to satisfy these criteria need not be considered. However, for completion of the record, we will address them in subsequent correspondence.
Proposed Rule, Categorical Exclusions from Environmental Review, 73 Fed. Reg. 59,540, 16 59,545 (Oct. 9, 2008).
NRC Commissioners December 6, 2022 Page of 6
7 schedule or be permitted to operate for an undetermined number of additional years. The NRC further demonstrated its intention that the exclusion should not apply to actions with substantive significance by removing the term procedural from the category of actions subject to the exclusion.
17 Finally, as discussed above, there is no existing environmental analysis on which the NRC could rely to declare that the environmental impacts of extended operation have already been addressed. The only available environmental analyses are out of date by at least thirty years.
PG&Es failure to satisfy the threshold test of 10 C.F.R. § 51.22(c)(25)(vi)(G) and (I) dooms all other aspects of its exemption request, because 10 C.F.R. § 51.22(c)(25) requires that all six tests set forth in subsections (i) through (vi) must be satisfied in order for an exemption to be granted.
Therefore, because the timely renewal regulation does not fit into the categories of 10 C.F.R. § 51.22(c)(25)(vi)(G) or (I), it must be denied, regardless of whether PG&E can satisfy the other criteria.
18 Conclusion.
As discussed above, PG&Es two alternative requests of you -- (a) that you recommence the original license renewal review as if it were never terminated and (b) that you effectively exempt it from the license renewal process - seek action that is unlawful and arbitrary and capricious.
PG&Es request that you evade the procedural requirements of your NEPA implementing regulations are also unlawful. Therefore, all of these requests must be rejected.
We ask you to make your determination immediately and notify the general public. In the meantime, we must assume that you are giving serious consideration to PG&Es requests, and therefore will continue to present you with our concerns and supporting evidence as they are developed.
Final Rule, Categorical Exclusions From Environmental Review, 74 Fed. Reg. 20,248, 20,252
(April 19, 2010) (noting that the term procedural could be misconstrued in this context to include the requirement for licensees to implement procedures for substantive requirements.).
As discussed above, we will address PG&Es failure to satisfy these other criteria in 18 subsequent correspondence.
NRC Commissioners December 6, 2022 Page of 7
7 Sincerely,
/s/Jane Swanson, Board President San Luis Obispo Mothers for Peace
/s/Ken Cook, President Environmental Working Group
/s/Daniel Hirsch, President Committee to Bridge the Gap
/s/Hallie Templeton, Legal Director Friends of the Earth Cc:
Senator John Laird, California Legislature Richard Stapler, Chief of Staff to Senator John Laird Kara Woodruff, Senior Policy Advisor to Senator John Laird California Governor Gavin Newsom Jim Deboo, Executive Secretary to California Governor Newsom Karen Douglas, Commissioner, California Energy Commission Representative Salud Carbajal, U.S. Congressman (CA-24)
Jeremy Tittle, Chief of Staff to Congressman Carbajal Senator Dianne Feinstein, United States Senate Senator Alex Padilla, United States Senate Senator Edward Markey, United States Senate Paula Gerfen, Senior Vice President and Chief Nuclear Officer, PG&E Lauren Gibson, NRC License Renewal Branch Chief
November 17, 2022 Christopher T. Hanson, Chairman Jeff Baran, Commissioner David A. Wright, Commissioner Annie Caputo, Commissioner Bradley R. Crowell, Commissioner U.S. Nuclear Regulatory Commission Washington, D.C. 20555 By email to Brooke P. Clark, NRC Secretary (NRCExecSec@nrc.gov)
SUBJECT:
Objections to PG&Es Requests Related to Withdrawn License Renewal Application for Diablo Canyon Nuclear Power Plant
Dear Commissioners of the U.S. Nuclear Regulatory Commission (NRC):
We write to you as representatives of environmental and civic organizations concerned about the significant risks to public health and safety and the environment posed by the operation of the Diablo Canyon nuclear reactors.
Introduction The procedural path to license renewal requested by Pacific Gas and Electric Company (PG&E) in its October 31, 2022 letter to you would make a mockery of your actions to fulfill 1
PG&Es previous intention to close Diablo Canyon in 2024 and 2025, when the operating licenses for Units 1 and 2 expire. It would also gravely undermine key aspects of the license renewal review process that are crucial for safety, compromising the NRCs license renewal Letter from Paula Gerfen, Senior Vice President and Chief Nuclear Officer, PG&E, to NRC, re:
Request to Resume Review of the Diablo Canyon Power Plant License Renewal Application or, Alternatively, for an Exemption from 10 CFR 2.109(b), Concerning a Timely Renewal Application (Oct. 31, 2022) (Gerfen Letter).
We note that while the recipients address in the Gerfen Letter is U.S. Nuclear Regulatory Commission ATTN: Document Control Desk, Washington, D.C. 2055-0001, the letters salutation is addressed to Dear Commissioners and NRC staff.
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NRC Commissioners November 17, 2022 Page of 2
8 review. Finally, it would prevent effective public involvement by the many groups and citizens concerned about extending the life of the Diablo Canyon units.
PG&E proposes, in essence, that NRC recommence the license renewal proceeding from the point at which the NRC stopped reviewing it in 2016, as if the proceeding had just been recessed for a short period of time. However, the Diablo Canyon units that seek license renewal today are no longer the same as six years ago, when PG&E entered into a settlement agreement to close the reactors and requested the NRC to suspend review of its license renewal application. Various tests, surveillance practices and equipment replacement requirements described later in this letter were terminated. Levels of nuclear plant safety and environmental protection assumed to be in place for the years after 2025 were no longer required, so they were dropped. They are not currently part of the Diablo Canyon nuclear plants, nor can their timely restoration be assumed.
Similarly, relying on the NRCs own public announcement that the Diablo Canyon reactors would close in 2024 and 2025, the public interest community ceased the monitoring activities which the NRC has long recognized are an essential part of the regulatory processes for protecting public safety and environmental protection. And these organizations no longer have in place the organizational focus, the consultants, the studies, or the funding to pick the renewal process again as if everyone had just gone on a short vacation. Their involvement -- and the protection that comes with it -- cannot be assured unless the NRCs license renewal review process commences in a manner that recognizes that this is in many ways a new application.
PG&E improperly calls on the NRC to ignore or repudiate the legal and practical significance of the NRCs approval of PG&Es request to withdraw its license renewal application.
Given our ongoing concerns about the safety and environmental risks posed by operating Diablo Canyon, we were pleased by steps taken by the NRC between 2016 and 2018, at the behest of Pacific Gas and Electric Co. (PG&E), to suspend and then terminate the Diablo Canyon license renewal proceeding. And we relied on your 2018 Federal Register notice approving the withdrawal of PG&Es 2009 license renewal application and all associated correspondence and commitments as confirmation that it was no longer necessary to monitor and evaluate PG&Es 2
actions related to license renewal.
Even recently, when the California State Legislature passed S.B.846 requiring PG&E to apply to the NRC for approval of a five-year license renewal term, we were pleased that nothing in that statute encouraged PG&E to cut corners on safety or environmental protection or to seek special treatment by the NRC. In fact, the legislation assumes a thorough NRC license renewal review,
Notice, Pacific Gas & Electric Company; Diablo Canyon Power Plant, Unit Nos. 1 and 2; 2
Withdrawal of License Renewal Application, 83 Fed. Reg. 17,688 (Apr. 23, 2018).
NRC Commissioners November 17, 2022 Page of 3
8 even going so far as to anticipate that safety upgrades ordered by the NRC may make Diablo Canyon too expensive to warrant operation for another five years beyond 2024 and 2025.
3 Therefore, we are now outraged by PG&Es October 31, 2022 request -- made directly to you, the NRC Commissioners -- to reinstate the abandoned license renewal proceeding as if your approval of PG&Es withdrawal of the license application had no legal or practical significance.
In fact, PG&E does not even acknowledge the existence of the Federal Register notice on which we have relied.
Having withdrawn its 2009 license renewal application with NRCs publicly noticed approval, PG&E has no lawful grounds to request the NRC to resume consideration of that application as if it had not been withdrawn. Because the license renewal docket for Diablo Canyon no longer exists, the NRC must require PG&E to submit a new license renewal application that is current and complete. And the NRC must abide by its regulations for reviewing license application, including waiting to docket the application until the NRC Staff is satisfied it is complete as required by to 10 C.F.R. § 2.101(a)(3). PG&E concedes it may be as much as another year before it can provide the NRC with the significant amount of information that must be provided.
4 The NRC actions requested by PG&E would undermine the integrity of the NRCs regulatory review process and prevent effective public participation.
By the same token, the Commission should reject -- for its patent absurdity -- PG&Es suggestion that the NRC should resume its review of the 2009 license renewal application as it existed in 2016 when the NRC suspended the license renewal proceeding at PG&Es request, and submit to PG&E a Request for Additional Information on what information [the Staff]
Cal. Pub. Resources Code § 25548.3(c)(13), for example, requires PG&E to conduct an 3
updated seismic assessment as a loan condition. Section 25548.3(c)(9) foresees that the NRC may order seismic safety upgrades that are too expensive to justify the loan. Section 712.8(c)
(2)(B) also allows the California Public Utilities Commission (CPUC) to disallow extended operation if seismic upgrades or deferred maintenance are too expensive.
Id., Enclosure 1 at 6 (stating that PG&E will submit additional information, including updates 4
to the Final Safety Analysis Report, new and material information about safety and environmental issues, and information related to guidance updates no later than the end of calendar year 2023.). PG&Es broad-brush assertion raises questions about what information may be missing, such as identification of post-Fukushima or other upgrades that PG&E may have declined to install due to perceived cost-ineffectiveness for the remaining few years of operation until 2024 and 2025. PG&E also fails to mention whether or how it intends to satisfy changes in industry guidance for license renewal that have taken effect since 2016.
NRC Commissioners November 17, 2022 Page of 4
8 needs to continue to review. The primary responsibility for determining what information to 5
submit to the NRC after a six-year hiatus lies with the license applicant, not the regulator. The purpose of requests for additional information is to clarify and fill information gaps, not to restore the fundamental elements of an abandoned license application. To ask the NRC to effectively stand in for PG&E as the license applicant and at the same time act as regulator would undermine the integrity of the NRCs review process.
Equally important, the NRC should reject PG&Es grievously unfair proposal to keep the date of docketing the license renewal application at the year 2010, when the NRC published its original hearing notice. If the NRC were to accept that proposal, all members of the public with an 6
interest in the outcome of the license renewal proceeding would be placed in the position of seeking to participate after passage of the initial 2010 deadline for submitting hearing requests -
thereby requiring them to meet a good cause standard for late intervention that is subject to discretion of the NRC rather than the statutory right to a hearing under the Atomic Energy Act.
7 And if PG&E is allowed to dribble information into the NRC rather than submitting a complete and updated license renewal application all at once, interested members of the public will have no way to understand how the new pieces fit together until it is too late to timely request a hearing. Nor will they have a way to prioritize their concerns for purposes of retaining experts or focusing their resources. In short, PG&Es requested approach would make a mockery of the NRCs hearing process.
The gross unfairness of PG&Es proposal is compounded by the fact that in 2016 at least one organization - Friends of the Earth - dropped a federal court lawsuit challenging the NRCs refusal to grant a hearing on its concerns about seismic risks, in explicit reliance on PG&Es
Id., Enclosure 1 at 6.
5
Id., Enclosure 1 at 2-3. See also Notice of Acceptance for Docketing of the Application, Notice 6
of Opportunity for Hearing for Facility Operating License Nos. DPR-80 and DPR-82 for an Additional 20-Year Period; Pacific Gas & Electric Company, Diablo Canyon Nuclear Power Plant, Units 1 and 2, Etc., 75 Fed. Reg. 3,493 (Jan. 21, 2010).
Pursuant to 10 C.F.R. § 2.309(c), any party seeking a hearing after the NRCs initial deadline 7
for hearing requests must submit a motion demonstrating good cause for the untimely filing, i.e., that it was not possible to request a hearing or raise contentions earlier due to the unavailability of relevant information. In judging the timeliness of hearing requests filed after the initial deadline, the Presiding Officer has a degree of latitude." Crow Butte Resources, Inc.
(Marshall Expansion Area), LBP-18-3, 88 N.R.C. 13, 26 (2018) (citing Strata Energy, Inc. (Ross In Situ Recovery Uranium Project), LBP-13-10, 78 N.R.C. 117, 130 (2013)).
NRC Commissioners November 17, 2022 Page of 5
8 formal agreement to close the reactors when their operating licenses expired. Other groups, like 8
San Luis Obispo Mothers for Peace, relaxed their previous vigilance over license renewal-related issues in reliance on the NRCs Federal Register notice that PG&E had withdrawn its license renewal application and committed to closing the reactors in 2024 and 2025. Therefore, to legally characterize any concerns arising after 2010 as late and therefore not subject to any statutory hearing right would be unfair in the extreme. PG&Es proposal seeks the polar opposite of Principles of Good Regulation and Openness that it disingenuously claims its proposal will fulfill.
9 There are no relevant precedents for the actions PG&E requests the NRC to take.
Further, PG&E provides no support whatsoever for its claim that there is abundant precedent for the NRC resuming review of previously docketed applications after they have been suspended, withdrawn, voided, and even denied. The only abundance is in the verbiage PG&E throws at a 10 single irrelevant case: the license renewal proceeding for the Aerotest Radiography and Research Reactor. While PG&E asserts that Aerotest provides a relevant template for Diablo Canyon, 11 Aerotest is simply a case in which the applicant obtained a hearing on NRC Staff decisions denying its license renewal application and related license transfer application and reached a successful resolution of the cases after four years. While PG&E implies those four years 12 constituted some kind of gap or hiatus like PG&Es six-year hiatus in pursuing its license renewal application, the correspondence shows that during all those years Aerostat was 13 participating in a hearing and trying to cure the defects in its license transfer and license renewal applications - a quintessentially normal process for reaching a final decision on a license
See Joint Proposal by Pacific Gas and Electric Company, Friends of the Earth, Natural 8
Resources Defense Council, et al. to Retire Diablo Canyon Nuclear Power Plant at Expiration of the current Operating Licenses and Replace it With a Portfolio of GHG Free Resources at 16 (filed before the CPUC June 20, 2016).
Gerfen Letter, Enclosure 1 at 4-6.
9
Id., Enclosure 1 at 3.
10
Id., Enclosure 1 at 3.
11
See letter from Eric J. Leeds, Director, NRC Office of Nuclear Reactor Regulation to Michael 12 Anderson, President, Aerotest Operations, Inc., re: Aerotest Operations, Inc. - Denial of License Renewal, Denial of License Transfer, and Issuance of Order to Modify License, Etc. at 2 (July 24, 2013) (ML13120A598).
Gerfen Letter, Enclosure 1 at 3.
13
NRC Commissioners November 17, 2022 Page of 6
8 application.
In contrast, there is nothing normal about PG&Es proposal to reinstate a license 14 renewal proceeding that was formally and completely abandoned years earlier, as if it had only been briefly suspended.
PG&E has failed to justify its alternative proposal to issue an exemption from the timely renewal rule.
In addition, PG&E has failed to justify its alternative proposal that if the NRC requires it to submit an up-to-date and complete license renewal application, the NRC should immediately exempt it from the timely renewal requirement to submit its license renewal application five years before the expiration date. While PG&E cites several other cases in which the NRC has 15 granted exemptions to the timely renewal rule for license renewal or subsequent license renewal applications, none of them is comparable to the unique circumstances of Diablo Canyon, where the licensee is now seeking to reverse a six-year-old decision to abandon a previous application for license renewal; and where it has provided the NRC with virtually no information on how aging management risks and environmental risks may have changed since PG&E abandoned its 2009 license renewal application six years ago.
The missing information includes any discussion of the effects of exemptions granted by the NRC over the past six years in the expectation that the reactors would close in 2024 and 2025.
For instance, in 2016, the NRC exempted PG&E from the requirement of 10 C.F.R. § 54.21(b) for annual updates regarding changes to the current licensing basis that materially affect the contents of the license renewal application. The NRC also exempted PG&E from limits on its 16 withdrawals from the decommissioning fund. There may be other relevant exemptions or 17 comparable regulatory actions, but PG&E has provided no accounting of them. And PG&E has failed to address the question of whether it will seek any exemptions based on the fact that the
See letter from Brian E. Holian, Acting Director, NRC Office of Nuclear Reactor Regulation, 14 to David M. Slaughter, President, Aerotest Operations, Inc. re: Aerotest Radiography and Research Reactor - Withdrawal of Denial of License Renewal Application (CAC No. MF7221 at 2-4 (Aug. 8, 2017) (ML17138A309).
Gerfen Letter, Enclosure 2 at 1(citing 10 C.F.R. § 2.109(b)).
15
Notice of Exemption Issuance, Pacific Gas and Electric Company; Diablo Canyon Power 16 Plant, Units 1and 2; Annual Updates to License Renewal Application, 81 Fed. Reg. 57,942 (Aug.
24, 2016).
Notice of Exemption Issuance, Pacific Gas and Electric Company; Diablo Canyon Nuclear 17 Power Plant Units 1 and 2, 84 Fed. Reg. 48,955 (Sept. 17, 2019).
NRC Commissioners November 17, 2022 Page of 7
8 Legislature foresees that Diablo Canyon operations will be permitted for only a five-year period, not twenty years as anticipated by NRC license renewal regulations.
18 And PG&E has failed to provide any information on maintenance activities that it may have stopped or relaxed based on the imminent closure of the Diablo Canyon reactors. At meetings of the Diablo Canyon Independent Safety Committee (DCISC), for instance, significant concern has been raised about the number and nature of inspections and the amount of maintenance that PG&E has suspended due to the expectation that the two reactors would close in the near future.
19 Further, the significant environmental impacts of Diablo Canyons once-through cooling system on marine organisms constitute a major environmental issue that previously was resolved by the decision to close Diablo Canyon in 2024 and 2025, and that has now arisen once more. The legal status of a 2010 California State Water Resources Control Board policy that would have required PG&E to install cooling towers or other significant measures to reduce marine impacts by at least 85% if the plant extends operation beyond 2025 is now uncertain. PG&E should address 20 this issue.
Of additional significant concern, PG&E has provided no update on seismic investigations of the fault-laced region where the Diablo Canyon reactors are sited, despite the relevance of any new information to the environmental impacts of renewing the operating license. Given the reliance 21 of the California Legislature on NRCs thorough review of safety and environmental risks, to rubber stamp PG&Es regulatory exemption based on the categorical exclusion in 10 C.F.R. § 51.22(c)(25), as suggested by PG&E, is premature and unjustified. At this point, the NRC 22 simply does not have enough information to determine whether it can grant an exemption without jeopardizing public health and safety or creating a significant environmental risk.
See page 1 above and 10 C.F.R. § 54.31(b).
18
See You-tube video of June 22, 2022 DCISC meeting to discuss May 18-19, 2022 Fact-19 Finding Report, https://www.youtube.com/watch?v=g93Un6DnRuI&t=77s.
See https://www.pgecorp.com/corp_responsibility/reports/2021/pl04_water.html.
20 Indeed, these seismic safety concerns were a key issue raised by Friends of the Earth in the 21 NRCs proceeding for review of PG&Es 2009 application to relicense Diablo Canyon. See page 4 and note 8 above. PG&Es attempt to continue operating beyond the previously agreed-upon retirement date revives these concerns.
See Gerfen Letter, Enclosure 2 at 7.
22
NRC Commissioners November 17, 2022 Page of 8
8 Conclusion and Request for Opportunity to Comment on Exemption Request In conclusion, in the interests of public health and safety, environmental protection, and the lawful, principled, fair and open administration of NRCs procedures and precedents, we ask you to soundly reject PG&Es utterly unjustified set of proposals to either restore the 2010 license renewal proceeding or to grant PG&E a regulatory exemption from the timely renewal regulations.
Because the NRC has no regulations for public participation in exemption proceedings pursuant to 10 C.F.R. § 50.12, we also ask you to establish procedures for consideration of public comments if you decide to give serious consideration to a regulatory exemption.
Sincerely,
/s/Jane Swanson, Board President San Luis Obispo Mothers for Peace
/s/Ken Cook, President Environmental Working Group
/s/Daniel Hirsch, President Committee to Bridge the Gap
/s/Hallie Templeton, Legal Director Friends of the Earth Cc:
Senator John Laird, California Legislature Richard Stapler, Chief of Staff to Senator John Laird Kara Woodruff, Senior Policy Advisor to Senator John Laird California Governor Gavin Newsom Jim Deboo, Executive Secretary to California Governor Newsom Karen Douglas, Commissioner, California Energy Commission Representative Salud Carbajal, U.S. Congressman (CA-24)
Jeremy Tittle, Chief of Staff to Congressman Carbajal Paula Gerfen, Senior Vice President and Chief Nuclear Officer, PG&E Lauren Gibson, NRC License Renewal Branch Chief
1 NRCExecSec Resource From:
Jill ZamEk <jzamek@gmail.com>
Sent:
Tuesday, December 6, 2022 6:51 PM To:
NRCExecSec Resource; paula.gerfen@pge.com; Senator.Laird@senate.ca.gov; salud.carbajal@mail.house.gov; Jeremy.Tittle@mail.house.gov; Kara Woodruff; richard.stapler@sen.ca.gov; jim.deboo@gov.ca.gov; karen.douglas@energy.ca.gov; Lauren Gibson
Subject:
[External_Sender] Organizations letter to NRC re PGE exemption request Attachments:
2022.11.17-Organizations-letter-to-NRC-re-Diablo-Canyon-license-renewal-.pdf; 2022.12.06 Organizations letter to NRC re PGE exemption request.pdf
December 6, 2022 Christopher T. Hanson, Chairman Jeff Baran, Commissioner David A. Wright, Commissioner Annie Caputo, Commissioner Bradley R. Crowell, Commissioner U.S.
Nuclear Regulatory Commission Washington, D.C. 20555 By email to Brooke P. Clark, NRC Secretary (NRCExecSec@nrc.gov)
SUBJECT:
PG&E Must Be Required to Submit a New License Renewal Application for Diablo Canyon Units 1 and 2 and NRC Must Comply With All Safety and Environmental Requirements in Conducting its Review
Dear Commissioners of the U.S. Nuclear Regulatory Commission (NRC):
More than two weeks ago, on November 17, 2022, we wrote to oppose Pacific Gas and Electric Companys (PG&Es) request that you, as the highest officials of the NRC, unlawfully reinstate a license renewal proceeding that you had terminated at PG&Es request.1 We have received no response to our letter, nor has it even been posted on the NRCs Agencywide Data Management and Access System (ADAMS).2 Thus, we write to reassert and supplement our objections.
The Commission Should Reject PG&Es Unlawful Request to Review its 2009 Application.
We continue to demand that you reject PG&Es request to pretend that the license renewal proceeding that began in 2009 was not terminated, or that the grossly outdated 2009 application could at this point be considered sufficient under 10 C.F.R. § 2.109(b) and therefore subject to the timely renewal rule. Indeed, as PG&E itself has admitted, preparing a complete license 1 Letter from Jane Swanson (San Luis Obispo Mothers for Peace), Ken Cook (Environmental Working Group),
Daniel Hirsch (Committee to Bridge the Gap), and Hallie Templeton (Friends of the Earth) to NRC Commissioners re: Objections to PG&Es Requests Related to Withdrawn License Renewal Application for Diablo Canyon Nuclear Power Plant (Nov. 17, 2022).
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BRIOGING THE GAP BETWEEN NUCLEAR DANGER ANO A SAFE.
SUSTAINABLE FUTURE
2 Our November 17 letter responds to a letter from Paula Gerfen, Senior Vice President and Chief Nuclear Officer, PG&E, to NRC, re: Request to Resume Review of the Diablo Canyon Power Plant License Renewal Application or, Alternatively, for an Exemption from 10 CFR 2.109(b), Concerning a Timely Renewal Application, Enclosure 2 at 9 (Oct. 31, 2022) (ADAMS Accession No. ML22304A691) (Gerfen Letter).
2 In contrast, the Gerfen Letter was posted on ADAMS the day after it was received.
NRC Commissioners December 6, 2022 Page 2 of 7 renewal application now requires so much work that it cannot be presented for another year, until late 2023.3 As your regulations provide, PG&E should be required to file a new license renewal application if it wishes to operate Diablo Canyon past its operating license expiration dates of 2024 and 2025.
The Commission Should Reject PG&Es Unlawful Exemption Request.
We also continue to demand that you reject PG&Es application for an exemption from the timely renewal rule, which would amount to an exemption from the license renewal process itself. Given that PG&E does not expect to be able to submit a complete license renewal application until late 2023, the NRC would be forced to conduct a significant portion of the review for potentially years after termination of the original operating licenses. Thus, to grant such an exemption would allow PG&E to continue to operate for years based on outdated licenses and environmental analyses that are more than thirty years old.
Under these circumstances, we respectfully submit that issuance of an exemption that would allow PG&E to substantially extend the Diablo Canyon operating license terms without renewing their licenses would violate your regulations and constitute arbitrary and capricious decision-making.
The NRCs License Renewal Review Must Comply with NEPA Procedural Requirements.
Even assuming for purposes of argument that you could lawfully issue the exemption requested by PG&E under the Atomic Energy Act and your safety regulations, your decision to issue the exemption would be subject to the procedural requirements of the National Environmental Policy Act (NEPA) and your NEPA implementing regulations. In particular, we urge you to reject PG&Es meritless claim that NRC regulation 10 C.F.R. § 51.22(c)(25)(vi)(G) and (I) permit you to approve an exemption to the timely renewal rule without first preparing an Environmental Assessment.4 PG&E argues that your timely renewal regulation in 10 C.F.R. § 2.109 relates to scheduling requirements and [o]ther requirements of an administrative, managerial or organizational nature, and therefore an exemption from § 2.109 is subject to a categorical exclusion if it otherwise satisfies 10 C.F.R. § 51.22(c)(25).5 On its face, as a matter of law, the requested exemption from the timely renewal requirement does not meet NRCs requirements for a categorical exclusion from the preparation of an Environmental Assessment, as required by NEPA and your implementing regulations. An 3 Gerfen Letter, Enclosure 1 at 6. 4Gerfen Letter, Enclosure 2 at 9. 5Id.
NRC Commissioners December 6, 2022 Page 3 of 7 exemption that would allow two nuclear reactors to operate beyond their license renewal expiration dates may not reasonably be characterized as merely schedular, administrative or organizational in nature. And indeed, the regulatory history of 10 C.F.R. § 51.22(c)(25) demonstrates that the NRC had no intention of excluding a decision with such potentially significant environmental impacts from the scope of a NEPA review. Therefore,
3 if you should decide to undertake consideration of PG&Es exemption request, your review must be supported by an Environmental Assessment that evaluates the need for an environmental impact statement (EIS).
Background. As you know, the NRC originally licensed the Diablo Canyon reactors to operate for forty years beyond the issuance dates of their construction permits.6 Unit 1, which received a construction permit in 1968, was licensed to operate until April 23, 2008; and Unit 2, which received a construction permit in 1970, was licensed to operate until December 9, 2010.7 In support of the construction permits and operating licenses, the NRC issued an EIS.8 In 1992, after the NRC amended its regulations to allow 40-year operating license terms to commence upon issuance of the operating licenses themselves, PG&E applied to the NRC for a license amendment to recover or recapture the periods of construction for each reactor, by extending the term of their operating licenses from the date the reactors had received their low-power operating licenses.9 PG&E proposed to extend the termination date for Unit 1 to September 22, 2021 and the termination date for Unit 2 to April 26, 2025.10 In the course of reviewing PG&Es license amendment application, the NRC issued an Environmental Assessment.11 The Environmental Assessment confirmed that the 1973 Diablo Canyon EIS had evaluated 40-year operating license terms and concluded that extending the operating license terms did not create any new or unreviewed environmental impacts, involve 6See Letter from Gregory M. Rueger, PG&E to NRC re: License Amendment Request 92-04 40- Year Operating License Application (July 9, 1992) (ML17083C429) (Rueger Letter).
7Id. See also Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-92-27, 36 N.R.C. 196, 197 (1992).
8 Environmental Statement Related to the Nuclear Generating Station, Diablo Canyon Units 1 and 2 (May 1973)
(ML15043A481) (1973 Diablo Canyon EIS).
9 Rueger Letter at 1.
10 Id. Later, the termination date for Unit 1 was changed to November 2, 2024. We have found no documentation for the change.
11 Environmental Assessment and Finding of No Significant Impact, Diablo Canyon Units 1 and 2 (Feb. 3, 1993) (ML022340575).
NRC Commissioners December 6, 2022 Page 4 of 7 any physical modifications, or cause new or unreviewed environmental impacts that were not considered in the 1973 Diablo Canyon EIS.12 The 1993 Environmental Assessment constitutes the most recent environmental analysis prepared by the NRC for the operation of Diablo Canyon.13 Taken together with the 1973 EIS, these two documents evaluate only 40 years of operating Diablo Canyon Units 1 and 2. No NRC environmental document evaluates the site-specific environmental impacts of operating Diablo Canyon for any period of time beyond 40 years; and the NRC Diablo Canyon-specific environmental documents that do exist are now between 30 and 50 years out of date for that purpose.
Discussion. NRC regulation 10 C.F.R. § 51.22(c)(25)(vi) allows the NRC to categorically exclude nine categories of regulatory exemptions from the NRCs requirement in 10 C.F.R. § 51.21 to prepare an
4 Environmental Assessment.14 In the Gerfen Letter, PG&E asserts that [t]he requirements from which this exemption is sought involve 10 CFR (c)(25)(vi)(G) (Scheduling 12 Id. at 2. The NRCs Atomic Safety and Licensing Board approved the license amendment in 1994, with a set of conditions imposed after an adjudicatory hearing. Pacific Gas and Electric Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-94-35, 40 N.R.C. 180 (1994).
13 While PG&E submitted an Environmental Report in support of its 2009 license renewal application, the NRC never completed its own review or issued a supplemental EIS for renewal of the Diablo Canyon licenses.
14 10 C.F.R. § 51.21 requires an environmental assessment for [a]ll [domestic] licensing and regulatory actions except those actions categorically requiring an EIS under § 51.20(b), actions subject to categorical exclusions under § 51.22(c), and actions exempt from environmental review under § 51.22(d)). Under Section 51.25(c)(25)(vi), the NRC may exclude exemptions involving:
(A) Recordkeeping requirements; (B) Reporting requirements; (C) Inspection or surveillance requirements; (D) Equipment servicing or maintenance scheduling requirements; (E) Education, training, experience, qualification, requalification or other employment suitability requirements; (F) Safeguard plans, and materials control and accounting inventory scheduling requirements; (G) Scheduling requirements; (H) Surety, insurance or indemnity requirements; or (I) Other requirements of an administrative, managerial, or organizational nature.
NRC Commissioners December 6, 2022 Page 5 of 7 requirements), and 10 CFR 51.22(c)(25)(vi)(I) (Other requirements of an administrative, managerial, or organizational nature).15 On its face, however, an exemption from the timely renewal requirement would not qualify as merely schedular, administrative, managerial or organizational, because it would allow PG&E to change the legal status of the Diablo Canyon reactors from shutdown reactors to operating reactors - a drastic and significant change in the risks and impacts they pose.
And the regulatory history of 10 C.F.R. § 51.22(c)(25) shows that the NRC intended the categorical exclusion to apply to truly minor actions of an administrative nature, i.e., those with no arguably significant environmental impacts. Examples of appropriate exemptions given by the NRC in promulgating the rule included:
- 1. (1) Revising the schedule for the biennial exercise requirements for nuclear reactors in 10 CFR Part 50, Appendix E, Sections IV.F 2.b and c;
- 2. (2) Applying updated NRC-approved ASME Codes; and
- 3. (3) Training and experience requirements in 10 CFR Part 35, Medical Use of Byproduct Material.16 Such minor changes to schedules for exercises and training programs and updates to industry codes cannot reasonably be compared to a decision on whether two reactors must shut down on 15 Id., Enclosure 2 at 9. PG&E also asserts that all of the other provisions of 10 C.F.R. § 51.22(c) (25) are satisfied by its exemption request. Id. These provisions include requirements to demonstrate:
5 (i) There is no significant hazards consideration; (ii) There is no significant change in the types or significant increase in the amounts of any effluents that may be released offsite; (iii) There is no significant increase in individual or cumulative public or occupational radiation exposure; (iv) There is no significant construction impact; and (v) There is no significant increase in the potential for or consequences from radiological accidents.
10 C.F.R. § 51.25(c)(25)(i)-(v). Given the inapplicability of the exclusion to the timely renewal regulation in subsections (vi)(G) and (I), PG&Es claims to satisfy these criteria need not be considered. However, for completion of the record, we will address them in subsequent correspondence.
16 Proposed Rule, Categorical Exclusions from Environmental Review, 73 Fed. Reg. 59,540, 59,545 (Oct. 9, 2008).
NRC Commissioners December 6, 2022 Page 6 of 7 schedule or be permitted to operate for an undetermined number of additional years. The NRC further demonstrated its intention that the exclusion should not apply to actions with substantive significance by removing the term procedural from the category of actions subject to the exclusion.17 Finally, as discussed above, there is no existing environmental analysis on which the NRC could rely to declare that the environmental impacts of extended operation have already been addressed. The only available environmental analyses are out of date by at least thirty years.
PG&Es failure to satisfy the threshold test of 10 C.F.R. § 51.22(c)(25)(vi)(G) and (I) dooms all other aspects of its exemption request, because 10 C.F.R. § 51.22(c)(25) requires that all six tests set forth in subsections (i) through (vi) must be satisfied in order for an exemption to be granted. Therefore, because the timely renewal regulation does not fit into the categories of 10 C.F.R. § 51.22(c)(25)(vi)(G) or (I), it must be denied, regardless of whether PG&E can satisfy the other criteria.18 Conclusion.
As discussed above, PG&Es two alternative requests of you -- (a) that you recommence the original license renewal review as if it were never terminated and (b) that you effectively exempt it from the license renewal process - seek action that is unlawful and arbitrary and capricious. PG&Es request that you evade the procedural requirements of your NEPA implementing regulations are also unlawful. Therefore, all of these requests must be rejected.
We ask you to make your determination immediately and notify the general public. In the meantime, we must assume that you are giving serious consideration to PG&Es requests, and therefore will continue to present you with our concerns and supporting evidence as they are developed.
17Final Rule, Categorical Exclusions From Environmental Review, 74 Fed. Reg. 20,248, 20,252 (April 19, 2010) (noting that the term procedural could be misconstrued in this context to include the requirement for licensees to implement procedures for substantive requirements.).
18 As discussed above, we will address PG&Es failure to satisfy these other criteria in subsequent correspondence.
Sincerely,
6
/s/Jane Swanson, Board President San Luis Obispo Mothers for Peace
/s/Ken Cook, President Environmental Working Group
/s/Daniel Hirsch, President Committee to Bridge the Gap
/s/Hallie Templeton, Legal Director Friends of the Earth Cc: Senator John Laird, California Legislature Richard Stapler, Chief of Staff to Senator John Laird Kara Woodruff, Senior Policy Advisor to Senator John Laird California Governor Gavin Newsom Jim Deboo, Executive Secretary to California Governor Newsom Karen Douglas, Commissioner, California Energy Commission Representative Salud Carbajal, U.S. Congressman (CA-24)
Jeremy Tittle, Chief of Staff to Congressman Carbajal Senator Dianne Feinstein, United States Senate Senator Alex Padilla, United States Senate Senator Edward Markey, United States Senate Paula Gerfen, Senior Vice President and Chief Nuclear Officer, PG&E Lauren Gibson, NRC License Renewal Branch Chief NRC Commissioners December 6, 2022 Page 7 of 7