June 27, 2016
PO Box 3608
San Luis Obispo, CA 93403-3608 www.mothersforpeace.org
California State Lands Commission 100 Howe Avenue, Suite 100 South Sacramento, CA 95825-8202
Re: Calendar Item 96: Pacific Gas and Electric Lease Application for Diablo Canyon Nuclear Power Plant
Dear Honorable Commissioners:
San Luis Obispo Mothers for Peace, a longstanding advocate for protection of public safety and the environment from the risks posed by the Diablo Canyon nuclear power plant, hereby requests a 30-day extension of time to comment on the question of whether the State Lands Commission (SLC) should prepare an Environmental Impact Report (EIR) regarding Pacific Gas & Electric Co.’s (PG&E’s) application for a new tidelands lease for the Diablo Canyon site. The proposed lease, which would extend PG&E’s use of public tidelands for another nine years (2018 to 2024 for Unit 1 and 2019 to 2025 for Unit 2), implicates some of our key concerns about the safety and environmental impacts of the Diablo Canyon nuclear power plant.
We emphatically request that you delay a decision on the new lease requested by PG&E for 30 days based upon the late publication of the Staff Report (posted June 24, 2016).1 The Staff Report proposes for the first time that you issue the lease without preparing an EIR, based on inadequately informed or analyzed grounds.
While PG&E submitted its lease application some time ago, the circumstances surrounding PG&E’s lease application have changed dramatically in the past week, with the announcement by PG&E, Friends of the Earth, NRDC, IBEW, A4NR and others of a Joint Proposal whereby PG&E will withdraw its license renewal application to the U.S. Nuclear Regulatory Commission (NRC) and seek approval by the California Public Utilities Commission (CPUC) for shutdown of Diablo Canyon in 2024 and 2025. Pursuant to the Joint Proposal, the parties to the agreement have asked the SLC to issue a new lease to PG&E without conducting any environmental review under the California Environmental Quality Act (CEQA).2
Following receipt of the parties’ request, on June 24, 2016, the SLC staff issued a report recommending that the Commission approve the proposed lease without preparing the Environmental Impact Report (EIR) that would be required for a CEQA review. For the first time, the staff’s report argues that the Diablo Canyon leases should be exempted from CEQA as an existing public utility; and that the exemption is not overridden by a “reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.” See CEQA Guidelines § 15300.29(c). As discussed below, we strongly disagree with the staff’s conclusion, and we seek an opportunity to present technical information demonstrating that in fact, the circumstances at Diablo Canyon are both unique and hazardous to the environment.
We respectfully submit that the determination of whether an EIR should be required under CEQA is an important one because of the very significant environmental impacts that Diablo Canyon will have on the environment during the term of the proposed SLC leases; and because SLC has the authority and responsibility to protect the environment and the public trust against those impacts. While there is no doubt that PG&E’s planned shutdown of Diablo Canyon after 2024 and 2025 promises a great environmental benefit by reducing the environmental risk to California tidal lands at that point in time, the Joint Proposal does not reduce or excuse SLC’s statutory responsibility to protect the tidal environment from the effects of Diablo Canyon’s operation between 2018-2019 and 2024-25. These effects include, for example, the egregious impacts of the reactors’ once-through cooling system on marine life. We are also concerned about the effects of the desalinization plant on tidal lands. And of course, if an earthquake were to cause a radiological accident at Diablo Canyon, the effects on tidal lands could be catastrophic.
Mothers for Peace requests an extension of time because neither the Commission nor members of the public have had any meaningful opportunity to review the Joint Proposal or the June 24 Staff Report. Both documents only became available last week. We are still digesting the terms of both documents.3
As discussed in more detail below, it is neither necessary nor appropriate for the Commission to act in haste on PG&E’s lease application. The parties to the Joint Proposal anticipated that the SLC might prepare an EIR for the leases; and it is also possible to conduct such a review in less than a year. The Commission has no reason to shirk or cut short its responsibility to review the environmental implications of the lease and determine whether additional safeguards or mitigation measures are needed during the period leading to shutdown. Contrary to the recommendation of the Staff Report posted June 24, 2016 on the SLC website, you should not make a decision regarding the proposed lease until you have provided the public with an opportunity to comment on the Staff’s determination that preparation of an EIR is not warranted under CEQA.
I. CEQA PLAYS AN INDISPENSIBLE ROLE IN THE COMMISSION’S DECISION- MAKING.
The California Legislature enacted CEQA to “protect, rehabilitate and enhance the environmental quality of the state.” California Public Resources Code § 21001(a). The primary goal of CEQA is to “[e]nsure that the long-term protection of the environment shall be the guiding criterion in public decisions.” Id. § 21001(d). The Legislature further declared it to be the policy of California to “take all action necessary to provide the people of this state with clean air and water.” Id. § 21001(b); see Sierra Club v. State Bd. of Forestry (1994) 7 Cal.4th 1215.
CEQA must be interpreted “to afford the fullest possible protection to the environment within the reasonable scope of the statutory language.” Communities for a Better Env’t v. California Res. Agency (2002) 103 Cal.App.4th 98, 110. Upon receiving an application for a proposed activity, state and local agencies, such as the State Lands Commission must determine whether CEQA applies or whether the activity is exempt. Cal. Code Regs., tit. 14, § 15061.4
CEQA has substantive, procedural, and informational mandates. CEQA’s substantive mandates include a prohibition on approving projects with significant adverse environmental impacts when feasible mitigation measures can reduce, eliminate, or lessen such impacts. §§ 21002, 21081(a); Guidelines, §15370.
With narrow exceptions, CEQA requires an Environmental Impact Report (“EIR”) whenever a public agency proposes to approve a project that may have a significant effect on the environment. Laurel Heights Improvement Ass’n v. Regents of Univ. of Cal. (1988) 47 Cal.3d 376, 390; Guidelines, § 15370. An EIR fulfills CEQA’s objectives by requiring agencies “to identify the significant effects on the environment of a project, to identify alternatives to the project, and to indicate the manner in which those significant effects can be mitigated or avoided.” § 21002.1(a); see also § 21002.1(b). The EIR is “the heart of CEQA,” and an “environmental ‘alarm bell’ whose purpose is to alert the public and its responsible officials to environmental changes before they have reached the ecological points of no return.” Laurel Heights, supra, at p. 392. The EIR also functions as a “document of accountability,” intended to “demonstrate to an apprehensive citizenry that the agency has, in fact, analyzed and considered the ecological implications of its action.” Id. The EIR process protects not only the environment but also informed self-government. CBE v. CRA, supra, 103 Cal.App.4th at p. 107.
Because of the central role that an EIR plays in agency decision-making, the statute provides for exemptions in only the most narrow circumstances. Of relevance here, a project may be exempt if it can be appropriately categorized to fit within the “categorical exemption” for “[e]xisting facilities of both investor and publicly-owned utilities used to provide electric power, natural gas, sewerage, or other public utility services.” Guidelines § 15301(b). As the Commission is aware, PG&E has argued that its lease renewal application qualifies for this categorical exemption.
II. THE LEASE DOES NOT QUALIFY FOR A CATEGORICAL EXEMPTION.
CEQA makes clear that a categorical exemption “shall not be used for an activity where there is a reasonable possibility that the activity will have a significant effect on the environment due to unusual circumstances.” Guidelines §15300.2(c). As the California Supreme Court determined in Berkeley Hillside Preservation Council v. City of Berkeley (2015) 343 P.3d 834,846, the unusual circumstances exception applies whenever, “the project has some feature that distinguishes it from others in the exempt class....” If any such feature is present, CEQA sets an extremely low bar to disqualify the project form the exemption: there need only be a “reasonable possibility of a significant effect due to that unusual circumstance.” Id. See also Citizens Action to Serve All Students v. Thornley (1990) 222 Cal.App.3d 748, 754 (describing the similar “fair argument” standard for significant impacts standard as creating a “low threshold” favoring environmental review through an EIR rather than through issuance notices of exemption from CEQA).
Unusual circumstances precluding the use of a categorical exemption are present here. There can be no legitimate dispute that DCPP is unique among existing power plants in California. It is the state’s only remaining nuclear power plant and the only such facility located on the coast.5 It is also the only nuclear facility sited on or near multiple earthquake faults.
DCPP will also continue to discharge high-temperature once-through cooling water into the coastal waters far longer than any other coastal power plant. These factors by themselves – and certainly in combination – distinguish this facility from every other example cited in the June 24 Staff Report.6 A catastrophic seismic event at a natural gas power plant like Moss Landing would have a far different level of effects at a far different scale and permanence than one at Diablo Canyon. Nor are even the day-to-day effects of such facilities comparable. For example, other natural gas facilities on the coast must terminate discharge of one-through cooling water far earlier – many by the end of end of 2017 and no later than 2020 – than DCPP, where the harm from these high temperature discharges (and the impingement and entrainment of marine life from the intakes) enabled by the lease will continue through 2024.
III. THE JUNE 24 STAFF REPORT DOES NOT PROVIDE AN ADEQUATE BASIS FOR A CATEGORICAL EXEMPTION.
While the Commission staff initially highlighted several of the unique features and impacts of DCPP that would preclude an exemption,7 the staff now appears to be reversing course to now support application of this exemption. The staff report, however, does not reflect a comprehensive or careful review of environmental risk factors relevant to the proposed exemption from CEQA review, especially the critical question of whether Diablo Canyon is uniquely vulnerable to a serious earthquake. The staff’s optimistic analysis relies exclusively on the conclusions of PG&E and the NRC Staff, and discounts the views of the USGS without any significant inquiry.
While the timing of the June 24 Staff Report precludes us from providing comprehensive detail, we urge the Commission to consider the analysis conducted in 2015 on Mothers for Peace’s behalf by Dr. David H. Jackson, professor emeritus of seismology at UCLA. Mothers for Peace presented Dr. Jackson’s analysis to the NRC in the license renewal proceeding for Diablo Canyon. Dr. Jackson concluded, for example, that:
As a result of PG&E’s outdated and non-conservative assumptions about the location of earthquakes, the hazard curves in the SSC Report underestimate the shaking that may be caused by nearby earthquakes. The amount of PG&E’s underestimate is potentially significant, and therefore must be evaluated by further study before PG&E may reasonably rely on the SSC Report’s results in its [environmental analysis.]8
In addition, Dr. Jackson stated that:
Perhaps the most significant example of PG&E’s unjustifiable reliance on the scaling assumption is in the Local Areal Zone, where PG&E has concluded that the “virtual faults” there must be confined to a length of 50 km, implying a most probable maximum magnitude of 6.8 for strike slip earthquakes and 6.9 for reverse slip (thrust) earthquakes (SSC Report, Table 13-9, page 13-29). PG&E’s assumption of a 50 km fault “length” is purely subjective, and not based on any observed fault length. More importantly, it is irrelevant because earthquake rupture length could exceed the fault length there just as it has in the cases listed above. Similarly, the length assumed by PG&E for the Shoreline Fault is based only on circumstantial evidence, and there is no evidence that earthquakes could not rupture well beyond its boundaries. PG&E does include in its source model the possibility that the Shoreline Fault might rupture in combination with the Hosgri fault. However, strong ground motion at DCPP due to a simpler large (magnitude above 6.8) earthquake extending the Shoreline Fault may be significantly different. Including such a possible source in a revised SSC is needed to resolve that question.9
Mothers for Peace also respectfully submits that the Commission staff has not justified its discounting of the expert opinion of USGS seismologist, Jeanne L. Hardebeck. According to PG&E, the DCPP can withstand earthquakes up to a magnitude of 7.5 and the faults do not pose significant threats to the DNPP’s integrity. In contrast, Dr. Hardebeck believes that a joint seismic event of the Hosgri and Shoreline faults could exceed DNPP’s design capacity for safe operation, possibly reaching a magnitude of 7.7.10
Before discounting Dr. Hardebeck for purposes of exempting Diablo Canyon from an EIR, the Commission should make broader inquiries regarding the existing seismological knowledge. Indeed, these are precisely the kinds of factual issues that should be thoroughly investigated through the EIR process. At a minimum, the Commission should defer its decision by an additional 30 days to allow further public comment on the crucial issue of whether an exemption to CEQA is justified in these circumstances.
IV. COMPLETION OF AN EIR WILL NOT SIGNIFICANTLY DELAY ISSUANCE OF A LEASE.
As noted above, Mothers for Peace considers the Joint Proposal to confer a significant environmental benefit by ensuring the shutdown of all operations at Diablo Canyon by 2025. There is no reason that completion of an EIR should derail or delay fulfillment of the terms of the Joint Proposal.
First, as the Commission notes in its guidance for lease applicants, an EIR is usually complete within 6-9 months.11 And California Public Resources Code § 6502 provides that “[i]n no event shall an application be held more than 270 days after receipt without approval or rejection by the commission.” Of course, this timeline could be even shorter for high-priority projects like consideration of the lease.
Second, and more important, the parties to the Joint Proposal have maintained the flexibility necessary to move forward even before the Commission acts on the lease renewal request. Although the proposal contemplates initiation of the CPUC process 30 days after the Commission’s approval of the lease, it specifies that the parties may “mutually agree” otherwise. Agreement at 17, Section 7.1. Indeed, the agreement specifically provides that at least one party signatory (A4NR) may advocate for the Commission to complete an EIR for the lease application. Id. at 14, Section 6.1. Because this provision obviously contemplates that the Commission may agree, it makes sense that parties may “mutually agree” to move forward even in the absence of a lease. In short, the agreement allows the parties to move ahead with the process while the Commission completes an EIR to fully inform its lease renewal.
Finally, there is independent utility in completing an EIR even as the agreement proceeds. An EIR would provide, for example, information about the impacts of the cooling system and the desalinization plant and measures that could mitigate their impacts.
For the reasons stated above, San Luis Obispo Mothers for Peace respectfully requests an extension of 30 days to address the question of whether the proposed Diablo Canyon lease should be exempt from CEQA. Mothers for Peace seeks an opportunity to demonstrate that the circumstances of Diablo Canyon are unique and pose a significant environmental hazard that must be considered more thoroughly in an EIR.
Elaine Holder, President, San Luis Obispo Mothers for Peace firstname.lastname@example.org
Linda Seeley, Spokesperson, San Luis Obispo Mothers for Peace email@example.com
Jane Swanson, Spokesperson, San Luis Obispo Mothers for Peace firstname.lastname@example.org
1 Staff Report for Calendar Item 96 (posted Jun. 24, 2016).
2 Letter from PG&E and Joint Proposal parties to State Lands Commission (dated Jun. 21, 2016).
3 While the Commission prefers that information or comment be submitted no later than three business days before a meeting, Mothers for Peace has worked to submit this letter as expeditiously as possible given the events of the past week – especially the posting of the staff report with less than three business remaining until the June 28, 2016 meeting. In addition, the Commission website was down all day on Sunday, June 26, 2016, preventing Mothers for Peace from accessing important information necessary for preparation of this letter. Under these circumstances, and given the significance of the Commission’s decision, these comments are timely.
4 The CEQA Guidelines are to be followed by all state and local agencies in California in the implementation of CEQA and are binding on all public agencies in the state. Cal. Code Regs., tit. 14, §15000 (hereinafter “Guidelines”).
5 As the staff previously (and correctly) determined, while there are other coastal power plants in California, the DCPP is “the only active nuclear power plant in California” and its “nuclear fuel source and proximity to fault lines distinguish it from other power plants in California.” Staff Report for Calendar Item 83 (Feb. 9, 2016) at 3.
6 Staff Report for Calendar Item 96 (posted Jun. 24, 2016) at 4.
7 Staff Report for Calendar Item 83 (Feb. 9, 2016) at 3-4.
8 Declaration of David Jackson, Ph.D. (Apr. 15, 2015) at p. 7, available at http://www.nrc.gov/docs/ML1510/ML15105A633.pdf
9 Id. at pp.7-9.
10 Hardebeck, Jeanne L. “Geometry and Earthquake Potential of the Shoreline Fault, Central California.” Bulletin of the Seismological Society of America103 (2013): 447, 458 (the Optimal Anisotropic Dynamic Clustering results show that the Shoreline Fault is a single continuous structure that "connects" to the Hosgri Fault), available at http://www.bssaonline.org/content/103/1/447.short. See also Public Broadcasting Service. (2011, July 11). Diablo Canyon [Video file]. 8:40-9:19; 12:20-13:55. Retrieved from http://www.pbs.org/video/2056655205/
11 See “APPLICATION GUIDELINES - GENERAL INFORMATION AND APPLICATION MATERIALS REGARDING LEASING OF STATE LANDS” (Oct. 12, 2011) at iii (noting that in “most instances, the preparation of an EIR takes from six to nine months.”) Available at http://www.slc.ca.gov/Forms/LMDApplication/Lease_App_Guidelines_2011.pdf