ML14308A652

NRC Staff'S Answer to Friends of the Earth'S Request for a Hearing and Petition to Intervene and Waiver Petition

ML14308A652
Person / Time
Site:	Diablo Canyon
Issue date:	11/04/2014
From:	Catherine Kanatas, Lindell J NRC/OGC
To:	Atomic Safety and Licensing Board Panel
SECY RAS
References
50-275-LR, 50-323-LR, ASLBP 10-900-01-LR-BD01, RAS 26867
Download: ML14308A652 (54)

Text

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/ 50-323-LR

)

(Diablo Canyon Nuclear Power Plant, )

Units 1 and 2) )

NRC STAFFS ANSWER TO FRIENDS OF THE EARTHS REQUEST FOR A HEARING AND PETITION TO INTERVENE AND WAIVER PETITION Catherine E. Kanatas Joseph A. Lindell Counsel for NRC Staff November 4, 2014

TABLE OF CONTENTS PAGE I. INTRODUCTION ................................................................................................................... 1 II. BACKGROUND ..................................................................................................................... 3 A. Diablo Canyon Seismic Design and Licensing Basis ................................................. 5 B. Hosgri Fault: Discussion in PG&Es LRA .................................................................... 6 C. Shoreline Fault: Discovery and Discussion in PG&Es LRA ....................................... 7 D. Continuing Study of the Shoreline Fault ..................................................................... 8 E. PG&Es September 10, 2014 Seismic Study ........................................................... 10 F. FOEs Contentions Based on PG&Es September 10, 2014 Seismic Study .............. 12 III. DISCUSSION...................................................................................................................... 13 A. FOEs Proposed Contentions Do Not Meet The Requirements For a Late-Filed Contention .................................................................................................................... 13

1. The Deadline For Filing In This Licensing Proceeding Has Passed.............. 13

2. The Late-Filed Contention Admissibility Standards ...................................... 14

3. FOE Has Not Demonstrated That Its Contentions Satisfy the Good Cause Requirements of 10 C.F.R. § 2.309(c)(1)(i)-(iii) ................................................. 17

a. FOE Has Not Shown That Information in PG&Es Seismic Report Is New and Materially Different From Information Previously Available ..... 18

b. FOE Does Not Demonstrate That Its De Facto License Amendment Claims, Which Were Raised In a Separate Filing, Are New and Materially Different Information .............................................................................. 21

4. FOE Has Not Shown That It Raised Its Claims In a Timely Fashion ............ 21 B. FOEs Proposed Contentions Do Not Meet the 10 C.F.R. § 2.309(f)(1)

Requirements ............................................................................................................... 22

1. Contention 1 ................................................................................................ 24

a. Contention 1 is Beyond the Scope of the Proceeding to the Extent It Raises Current Safety Issues ............................................................. 25

b. FOEs Safety Claims Do Not Raise a Genuine Dispute With the Application............................................................................................. 28

- ii -

2. Contention 2 ................................................................................................ 29

a. FOEs Claims Are Outside the Scope of License Renewal and Do Not Raise a Genuine Dispute with the Application ....................................... 30

3. Contention 3 ................................................................................................ 35

a. FOEs Contention 3 Does Not Raise a Genuine Dispute With the LRA ................................................................................................. 35

b. FOEs Contention 3 Does Not Raise a Material Issue Within the Scope of License Renewal .................................................................... 37

c. FOEs Contention 3 Lacks Sufficient Basis ........................................ 38 C. FOEs Waiver Petition Should Be Denied ................................................................ 38

1. Legal Standards Governing Petitions for Waiver Under 10 C.F.R. § 2.335... 39

2. FOE Has Not Made a Prima Facie Showing On Any of the Waiver Factors . 41

a. Factor 1: FOE Has Not Shown That Part 54s Application Would Not Serve the Purposes for Which It Was Adopted ...................................... 41

b. Factor 2: FOE Has Not Shown That Special Circumstances Exist ..... 44

c. Factor 3: FOE Has Not Shown That There Are Special Circumstances Unique to Diablo Canyon ....................................................................... 47

d. Factor 4: FOE Has Not Shown That Waiver Is Necessary to Reach a Significant Safety Issue ...................................................................... 49 IV. CONCLUSION.................................................................................................................... 50

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/ 50-323-LR

)

(Diablo Canyon Nuclear Power Plant, )

Units 1 and 2) )

NRC STAFFS ANSWER TO FRIENDS OF THE EARTHS REQUEST FOR A HEARING AND PETITION TO INTERVENE AND WAIVER PETITION I. INTRODUCTION Pursuant to 10 C.F.R. § 2.309(i)(1) and the Atomic Safety and Licensing Boards (Board) revised scheduling order, 1 the staff of the U.S. Nuclear Regulatory Commission (Staff) hereby files its answer to the Friends of the Earths Request for a Hearing and Petition to Intervene, (Petition to Intervene) 2 and accompanying waiver petition, 3 filed by Friends of the Earth (FOE) regarding Pacific Gas and Electric Companys (PG&E) license renewal application (LRA) for Diablo Canyon Nuclear Power Plant, Units 1 and 2 (DCPP or Diablo Canyon). 4 1

Revised Scheduling Order (Nov. 19, 2012) (Agencywide Documents Access and Management System (ADAMS) Accession No. ML12324A214).

2 Friends of the Earths Request for a Hearing and Petition to Intervene (Oct. 10, 2014) (ADAMS Accession No. ML14283A591) (Petition to Intervene).

3 Friends of the Earths Petition for Waiver of 10 C.F.R. §§ 54.4, 54.21, and 54.29(a) as Applied to the Diablo Canyon License Renewal Proceeding (Oct. 10, 2014) (ADAMS Accession No. ML14283A603) (Waiver Petition). The Waiver Petition was supported by a declaration from Mr. Richard Ayres. See Declaration of Richard Ayres, Counsel for Friends of the Earth, Regarding Waiver of 10 C.F.R. §§ 54.4, 54.21, and 54.29(a) as Applied to the Diablo Canyon License Renewal Proceeding (Oct.

10, 2014) (ADAMS Accession No. ML14283A602).

4 Letter from James R. Becker, Site Vice President, to NRC , Information to Support NRC Review of DCPP License Renewal Application (LRA) (Nov. 23, 2009) (ADAMS Accession No. ML093350335)

(transmitting application for license renewal for Diablo Canyon Nuclear Power Plant, Units 1 and 2.). The Diablo Canyon LRA (2009) is available at http://www.nrc.gov/reactors/operating/licensing/renewal/applications/diablo-canyon.html.

As more fully set forth below, the Staff opposes the admission of the three contentions proffered in FOEs Petition to Intervene, which are based in part on PG&Es September 10, 2014 submission of the Central Coastal California Seismic Imaging Project Report (PG&E Seismic Report). 5 FOE has not met the Boards contention admissibility standards for new contentions filed by a non-party after the deadline because it has not satisfied the good cause requirements of section 2.309(c)(1)(i)-(iii) or demonstrated that the Petition to Intervene was submitted in a timely manner pursuant to 10 C.F.R. § 2.309(c)(1)(iii). 6 Additionally, FOEs Petition to Intervene should be denied because it does not meet the general contention admissibility requirements in 10 C.F.R. § 2.309(f)(1). Specifically, FOEs proposed contentions: (1) raise issues outside the scope of this proceeding, (2) do not raise a genuine material dispute with the license renewal application, and/or (3) lack an adequate basis.

Therefore, FOEs Petition to Intervene should be denied.

FOEs Waiver Petition should also be denied. While FOE argues that the Board should consider its out of scope claims related to the ability of Diablo Canyon to safely shut down following a potential earthquake7 in this license renewal proceeding, FOEs Waiver Petition does not demonstrate that special circumstances exist with respect to this proceeding such that the application of 10 C.F.R. §§ 54.4, 54.21, and 54.29(a) would not serve the purposes for which 5

Petition to Intervene at 1. See Letter from E. Halpin, Senior Vice President, to NRC, Central Coastal California Seismic Imaging Project (CCCSIP), Shoreline Fault Commitment (Sept. 10, 2014)

(PG&E Letter DCL-14-081) (ADAMS Accession No. ML14260A387) and enclosed CCCSIP report (ADAMS Package Accession No. ML14260A106). FOEs Petition to Intervene is also based on arguments raised in a separate Commission filing and a petition filed in the D.C. Circuit. See Petition to Intervene and Request for Hearing by Friends of the Earth (Aug. 26, 2014) (de facto Petition) (ADAMS Accession No. ML14254A231); See Friends of the Earth, Petition for Review (D.C. Cir. Oct. 28, 2014)

(ADAMS Accession No. ML14303A293).

6 See Revised Scheduling Order at 8-9.

7 Waiver Petition at 1.

they were adopted. 8 Thus, a waiver of these safety rules is not warranted. In the absence of a waiver, FOEs claims are outside the scope of the proceeding and should not be admitted.

For all the foregoing reasons, FOEs Petition to Intervene and Waiver Petition should be denied.

II. BACKGROUND This proceeding concerns PG&Es November 23, 2009 application to renew its operating licenses for Diablo Canyon for an additional twenty years from the current expiration dates of November 2, 2024, and August 26, 2025. 9 PG&Es application was submitted pursuant to NRCs license renewal regulations at 10 C.F.R. Part 54. 10 Notice of receipt of the LRA, which included PG&Es environmental report (ER), was published in the Federal Register on December 11, 2009. 11 The NRC accepted the LRA for review, and on January 21, 2010, published a Federal Register Notice providing a Notice of Opportunity for Hearing. 12 The LRA included, among other things, an integrated plant assessment, which identified those structures, systems, and components (SSCs) subject to an aging management review, 13 8

10 C.F.R. § 2.335(b); See also Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2),CLI-11-11, 74 NRC 427 (2011) (noting this as the sole ground for petition of waiver or exception).

9 LRA at Section 1.0, 1.1-1.

10 See 10 C.F.R. §§ 54.19-54.23 (providing general requirements regarding the contents of license renewal applications); See 10 § C.F.R. 51.53(c) (providing environmental requirements regarding the contents of license renewal applications).

11 Pacific Gas & Electric Company; Notice of Receipt and Availability of Application for Renewal of Diablo Canyon Nuclear Power Plant, Units 1 and 2; Facility Operating Licenses Nos. DPR-80 and DPR-82 for an Additional 20-Year Period, 74 Fed. Reg. 65,811 (Dec. 11, 2009).

12 Notice of Acceptance for Docketing of the Application, Notice 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; and Order Imposing Procedures for Access to Sensitive Unclassified Non-Safeguards Information (SUNSI) for Contention Preparation, 75 Fed. Reg. 3493, 3493 (Jan. 21, 2010).

13 See LRA Chapter 2 (describing and justifying the methods used in the integrated plant assessment to identify those structures and components subject to an aging management review in accordance with the requirements of 10 C.F.R. § 54.21(a)(2)).

a description of the time-limited aging analyses (TLAAs) 14 for Diablo Canyon, 15 and a description of aging management programs (AMPs). 16 The LRA discussed both the Hosgri and Shoreline Faults, 17 and included the Final Safety Analysis Report, 18 which provided the current seismic design basis sections for Diablo Canyon. The period for filing a petition for intervention or request for hearing closed on March 22, 2010. The San Luis Obispo Mothers for Peace (SLOMPF) timely filed a petition to intervene and a waiver petition on March 22, 2010. 19 As relevant here, one of SLOMPFs contentions related to the Shoreline Fault. 20 An Atomic Safety and Licensing Board (Board) was established and granted SLOMPFs hearing request and admitted SLOMFPs Shoreline Fault contention. 21 Almost four years later, FOE submitted its October 10, 2014 Petition to Intervene and Waiver Petition. FOEs Petition to Intervene is based on supposedly new information contained in a September 10, 2014 Seismic Report that PG&E submitted to the NRC. FOE claims that 14 See 10 C.F.R. § 54.3(a); 10 C.F.R. § 54.21(c)(1).

15 See LRA Chapter 4. See id. at 4.3-51; 4.7 4.7-12.

16 See LRA at Appendix B.

17 See, e.g., ER at 5-4 (discussing Shoreline fault); See LRA at A-36 (discussing Hosgri earthquake). Id. at 2.1-9.

18 LRA at Appendix A.

19 Request for Hearing and Petition to Intervene by San Luis Obispo Mothers for Peace (Mar. 22, 2010) (ADAMS Accession No. ML100810441). San Luis Obispo Mothers for Peaces Petition for Waiver of 10 C.F.R. Part 51 Subpart A Appendix B and 10 C.F.R. § 51.53(c)(2) (Mar. 22, 2010) (ADAMS Accession No. ML100810442). SLOMFP supported its petition with a declaration from its counsel. See Declaration by Diane Curran in Support of Petition for Waiver of 10 C.F.R. Part 51 Subpart A Appendix B and 10 C.F.R. § 51.53(c)(2) (Mar. 22, 2010).

20 Request for Hearing and Petition to Intervene by San Luis Obispo Mothers for Peace at 8-16.SLOMPF claimed that the severe accident mitigation alternatives (SAMA) analysis required by 10 C.F.R. 51.53(c)(3)(ii)(L) was inadequate because it did not account for the Shoreline Fault. The Staff opposed the contention in part, but did not object to its admission to the extent that PG&Es SAMA analysis did not include a discussion of the Shoreline Fault.

21 Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 and 2), LBP-10-15, 72 NRC 257, 345-46 (2010). On appeal, the Commission affirmed the Boards ruling on admissibility but restated the contention. Diablo Canyon, CLI-11-11, at 429, 438.

there is new and materially different information in the Seismic Report, in particular information related to the Shoreline Fault and the Hosgri Fault. 22 To put FOEs claims in context, it is important to understand Diablo Canyons seismic design and licensing basis, the discussion of the Shoreline and Hosgri faults in the LRA, the Staffs independent study of seismic issues as they relate to the current operation of Diablo Canyon, and the purpose and effect of PG&Es Seismic Report.

A. Diablo Canyon Seismic Design and Licensing Basis Diablo Canyon has a unique and complex seismic design and licensing basis. Before completion of evidentiary hearings on seismic issues related to operation, some aspects of the plants design were reanalyzed to address the Hosgri Fault, which was discovered after plant construction was authorized and underway, and is located 5 km (3 mi) from Diablo Canyon.

PG&E reanalyzed and upgraded the plant design to withstand an earthquake with a ground acceleration of 0.75g, which accommodates the higher estimates of shaking levels caused by the Hosgri Fault. 23 Additionally, the Unit 1 full-power license DPR-80 has a license condition (2.C.(7)) that required a reevaluation of the seismic design basis of the plant. 24 To meet this requirement, PG&E developed the Long-Term Seismic Program (LTSP). As part of the LTSP, PG&E performed a full seismic reevaluation of DCPP between 1985 and 1988. 25 22 See Petition to Intervene at 4-7.

23 See Pac. Gas & Elec. Co. (Diablo Canyon Nuclear Power Plant, Units 1 & 2), ALAB-644, 13 NRC 903, 909-10 (1981) (affirming LBP-79-26, 10 NRC 453, 463-507 (1979)); Diablo Canyon, LBP 26, 10 NRC at 490 (PG&E was required to modify the plant, where necessary, to withstand an SSE with a maximum vibratory acceleration of 0.75g.).

24 Diablo Canyon Nuclear Power Plant, Unit 1, Docket No. 50-275, Facility Operating License, License No. DPR-80, at 7 (Nov. 2, 1984) (ADAMS Accession No. ML053140349) (DCPP Tech Specs).

25 The results of the program are detailed in the Final Report of the Diablo Canyon Long Term Seismic Program and summarized in NUREG-0675, Sup. No. 34, Safety Evaluation Report (June 1991)

(ADAMS Accession No. ML14279A130). See Letter from Bruce Boger, NRC, to J.D. Shiffer, PG&E, Issuance of Supplement No. 34 to NUREG-0675, Safety Evaluation Report for [DCPP], and Finding of

B. Hosgri Fault: Discussion in PG&Es LRA PG&Es LRA discusses the Hosgri Fault and the potential Hosgri earthquake. In the scoping and screening methodology section, the LRA states that:

The DCPP Operating Licenses include a condition to implement the Seismically Induced System Interaction (SISI) Program to ensure that SSCs required for safe shutdown of the plant as well as certain accident mitigating systems will not be impaired from performing their safety function as a result of seismically induced interactions when subjected to a seismic event of severity up to and including the postulated 7.5M Hosgri event. The SISI program identifies both safety-related and nonsafety-related SSCs that are required for safe shutdown of the plant as well and for mitigation of certain accidents. A review of the SISI Program documents was performed to ensure that all such components were included in the scope of license renewal. 26 The LRA also discusses how SSCs were evaluated for the Hosgri earthquake to ensure that they can perform their intended function. 27 Further, the LRA states that for seismic design, all Design Class I and some Design Class II SSCs are classified Seismic Category 1, and must remain functional following a design earthquake (DE), 28 double design earthquake (DDE), 29 or Hosgri earthquake (HE). 30 31 The LRA also discussed whether any licensee calculations or analyses were TLAAs. 32 The LRA noted, among other things, that:

Compliance with Condition 2.C.(7) of Unit 1 Operating License DPR-80 Related to The LTSP (TAC Nos.

55305 and 68049) (June 6, 1991) (ADAMS Accession No. 9106120065) (on microfiche) (SSER 34). Also available at ADAMS Package No. ML14279A124. The LTSP spectrum is essentially a Hosgri spectrum that is enhanced over some frequencies. Ground motions, like other forms of energy that propagate as complex waves (such as light and sound), are composed of energy at many frequencies being combined together in complex patterns that can be defined by a plot of amplitude versus frequency (a spectrum). In engineering, the definition of seismic ground shaking levels is called the response spectrum.

26 LRA at 2.1-9.

27 See, e.g., id. at 2.4-24 (intake structure and intake control building); id. at 2.4-18 (diesel fuel oil pump vaults and structures); id. at 2.4-14 (turbine building); id. at 2.4-2 (containment building).

28 The LRA notes that the DE is equivalent to the operating basis earthquake (OBE) of 10 CFR 100, Appendix A. Id. at 4.1-5, n.1.

29 The LRA notes that the DDE is equivalent to the safe shutdown earthquake (SSE) of 10 CFR 100, Appendix A. Id. at 4.1-5, n.2.

30 The LRA notes that the HE is a postulated Richter magnitude 7.5 earthquake centered along an offshore zone of geologic faulting known as the Hosgri Fault and is specific to DCPP. Id. at 4.1-5, n.3.

There have been no occurrences of a DE, DDE, or Hosgri seismic event at DCPP during the first 20 plus years of operation. Therefore, the seismic fatigue qualification of Class IE electrical support angle fittings for the original design basis number of DE, DDE, and Hosgri events is sufficient to the end of the period of extended operation. Therefore, the analysis is valid for the period of extended operation, in accordance with 10 CFR 54.21(c)(1)(i). 33 and The numbers of thermal and seismic cycles used in the analysis are consistent with or more conservative than the DCPP 50-year design basis described in FSAR Table 5.2-4. The assumed transients are consistent with or bounded by the 50 year licensing basis. The number of transients will be monitored by the enhanced Fatigue Management Program. The enhanced Fatigue Management Program provides assurance that the fatigue crack growth analysis will be managed for the period of extended operation in accordance with 10 CFR 54.21(c)(1)(iii). 34 C. Shoreline Fault: Discovery and Discussion in PG&Es LRA The LRA also discussed the Shoreline Fault, a new fault near Diablo Canyon which was discovered by the United States Geological Survey (USGS) in 2008. 35 In particular, PG&Es ER contains a discussion of the Shoreline Fault, PG&Es preliminary analyses with respect to this potential fault, and the NRCs preliminary independent review of possible implications related to the design and licensing basis evaluations of the Diablo Canyon SSCs given this fault. As noted in PG&Es ER:

On November 14, 2008, PG&E notified the NRC that preliminary results from ongoing studies by PG&E and the U.S. Geological Survey (USGS) indicate that there is a zone of seismicity that could indicate the presence of a fault approximately 15 km in length, located approximately 1 km offshore from DCPP.

Subsequently, PG&E has informally referred to this zone of seismicity as the potential Shoreline Fault. 36 31 Id. at 4.1-5.

32 See 10 C.F.R. § 54.3(a).

33 LRA at 4.3-51.

34 Id. at 4.7-11. See also id. at 4.7-12 (discussing validation of flaw evaluation of Unit 1 RHR Weld WIC-95).

35 See Petition to Intervene at 3 (discussing discovery of Shoreline Fault).

36 ER at 5-4.

Further, the ER states that PG&E informed the NRC staff that it had performed an initial evaluation of the potential ground motion levels at DCPP from the hypothesized fault which concluded that these motions would be bounded by the ground motion levels previously determined for the current licensing basis (the larger Hosgri fault). 37 The ER also discusses NRCs preliminary independent review of the information provided by the USGS (i.e., the NRCs Research Information Letter (RIL)09-001, Preliminary Deterministic Analysis of Seismic Hazard at Diablo Canyon Nuclear Power Plant from Newly Identified Shoreline Fault.). 38 The LTSP response spectrum is used as a point of comparison in the study detailed in RIL-09-001.

The ER stated the Staffs preliminary conclusion that the postulated Shoreline Fault will not likely cause ground motions that exceed those for which DCPP has already been analyzed. 39 Thus, PG&E concluded that [a]lthough the presence of the potential Shoreline Fault offshore of DCPP is new information, based on the PG&E and NRC assessments of the potential Shoreline Fault, it is not significant information since the design and licensing basis evaluations of the DCPP structures, systems, and components are not expected to be adversely affected. 40 D. Continuing Study of the Shoreline Fault Since issuing RIL-09-001, both PG&E and the NRC have continued to evaluate the Shoreline Fault. For example, PG&E submitted a report to NRC on January 7, 2011, which indicated that the response spectra associated with a postulated earthquake from the fault are enveloped by both the 1977 Hosgri Earthquake spectrum and the 1991 LTSP Earthquake 37 Id.

38 Id. RIL 09-001, Preliminary Deterministic Analysis of Seismic Hazard at [DCPP] from Newly Identified Shoreline Fault (Apr. 8, 2009) (ADAMS Accession No. ML090330523).

39 ER at 5-5.

40 Id.

spectrum. 41 To understand the significance of the information and determine what NRC action, if any, was needed, the NRC documented its independent assessment of the information by letter dated October 12, 2012 (October 12, 2012 Letter). 42 Referencing the assessment in RIL-12-01, the October 12, 2012 Letter (1) concluded that ground motions from the Shoreline Fault are at or below those for which DCPP was evaluated previously and demonstrated to have a reasonable assurance of safety and (2) placed the review of the Shoreline Fault information under the March 12, 2012, 10 C.F.R. § 50.54(f) Fukushima Accident Lessons Learned letter, which requested that all nuclear power reactor licensees conduct seismic re-evaluations as part of Fukushima Accident-related assessments, unless planned PG&E seismic data collection efforts identified information indicating the fault was more capable. 43 Prior to receipt of RIL-12-01, PG&E had requested a license amendment seeking approval to (1) define an evaluation process for new seismic information and incorporate ongoing commitments associated with the LTSP, (2) clarify, consistent with a previous Safety Evaluation (SE), that the Hosgri Earthquake is equivalent to an SSE, as defined in 10 C.F.R. Part 100, Appendix A, for the DCPP, and (3) use the square-root-of-the-sum-of squares (SRSS) method for the evaluation of load combinations of seismic with loss-of-coolant accident 41

[PG&E] Report on the Analysis of the Shoreline Fault Zone, Central Coastal California (Jan. 7, 2011) (Final Report) (The documents are available at ADAMS Package Accession No. ML110140431).

42 Letter from Joseph Sebrosky, NRC, to Edward Halpin, PG&E, [DCPP] - NRC Review of Shoreline Fault (TAC Nos. ME5306 and ME5307 (Oct. 12, 2012) (ADAMS Accession No. ML120730106)

(October 12, 2012 Letter); RIL 12-01, Confirmatory Analysis of Seismic Hazard at the Diablo Canyon Power Plant from the Shoreline Fault Zone (Sept. 2012) (ADAMS Accession No. ML121230035) (RIL 01).

43 October 12, 2012 Letter at 1, 4. See Request for Information Pursuant to Title 10 of the Code of Federal Regulations 50.54(f) Regarding Recommendations 2.1, 2.3, and 9.3, of the Near-Term Task Force Review of Insights from the Fukushima Dai-Ichi Accident (Mar. 12, 2012) (March 12, 2012 Letter)

(ADAMS Accession No. ML12053A340). Staff also noted PG&Es plans to acquire new offshore and onshore seismic reflection data, and stated its expectation that, if new information is discovered that would suggest the Shoreline Fault is more capable the previously believed, PG&E would provide the NRC an interim evaluation prior to completion of the evaluations requested by the March 2012 Letter.

October 12 Letter at 4.

(LOCA). 44 However, on October 25, 2012, PG&E withdrew LAR 11-05. 45 PG&E stated that it no longer needed approval of its LAR due to (1) the issuance of the March 2012, § 50.54(f) letter, and (2) the issuance of the Staff's October 12, 2012 Letter. 46 PG&E noted that the § 50.54(f) letter defines an evaluation process for newly identified seismic information for all nuclear power plants in the United States. Thus, PG&E stated that it was no longer requesting the NRCs review of a plant-specific evaluation process for new seismic information. 47 E. PG&Es September 10, 2014 Seismic Study On April 10, 2011, PG&E submitted a letter to the NRC stating that it had decided to complete certain seismic studies at DCPP prior to issuance of the coastal consistency certification and the renewed NRC operating licenses, if approved. 48 These seismic studies are those approved and funded by the California Public Utilities Commission (CPUC). 49 PG&E stated that it would issue a report addressing the results prior to issuance of a consistency certification and/or renewed operating licenses, if approved. 50 On May 31, 2011, the Staff 44 Letter from James Becker, PG&E to NRC, License Amendment Request [LAR] 11-05, Evaluation Process for New Seismic Information and Clarifying the [DCCP] Safe Shutdown Earthquake (Oct. 20, 2011) (PG&E Letter DCL-11-097) (ADAMS Accession No. ML11312A166) (LAR 11-05).

45 Letter from Barry Allen, PG&E, to NRC, Withdrawal of License Amendment Request (LAR) 11-05 (LAR 11-05), Evaluation Process for New Seismic Information and Clarifying the [DCCP] Safe Shutdown Earthquake at 2 (Oct. 25, 2012) (ADAMS Accession No. ML12300A105) (PG&E Letter DCL-12-108).

46 Id. PG&E noted that it had committed at a March 15, 1991 public meeting, and by a April 17, 1991, letter to continue to maintain geosciences and engineering staff to keep abreast of new geological, seismic, seismic evaluation data, and would evaluate new seismic information consistent with the process defined in the October 12, 2012 Letter. Id. at 3.

47 Id.

48 Letter from John T. Conway, PG&E, to NRC, Request for Deferral of Issuance of Diablo Canyon Power Plan Renewed Operating Licenses , at 1 (Apr. 10, 2011) (ADAMS Accession No. ML111010592) (PG& E Letter DCL-11-047).

49 Id.

50 Id.

indicated that it would issue the SER in June 2011, 51 but that [p]rior to finalizing a decision regarding license renewal, the staff will supplement the SER, as necessary, considering any relevant new information from the seismic studies, operating experience, and annual updates to the LRA. 52 In 2012, PG&E committed to the NRC that:

If during PG&Es ongoing collection of seismic data, new faults are discovered or information is uncovered that would suggest the Shoreline fault is more capable than currently believed, PG&E will provide the NRC with an interim evaluation that describes actions taken or planned to address the higher seismic hazard relative to the design basis, as appropriate, prior to completion of the evaluations requested in the NRC Staffs March 12, 2012, request for information. 53 PG&Es Seismic Report was submitted on September 10, 2014. 54 The Seismic Report stated that the Shoreline fault is longerand therefore, more capable. However, PG&Es interim evaluation concluded that the ground motions from updated shoreline fault and other regional faults remain less than the 1977 Hosgri Design ground motions, for which the plant was evaluated and demonstrated to have reasonable assurance of safety. 55 51 The Staff did issue the Diablo Canyon License Renewal SER, with open items, in June 2011.

See Letter from Brian E. Holian, NRC, to John Conway, PG&E, Safety Evaluation Report Related to the License Renewal of Diablo Canyon Nuclear Power Plant, Units 1 and 2 , at 1 (June 2, 2011) (ADAMS Accession No. ML11138A274).

52 Letter from Brian E. Holian, NRC, to Mr. John Conway, PG&E, Response to Request for Deferral of Issuance of Renewed Operating Licenses and Revisions of Schedule for the Review of [Diablo Canyon LRA], at 1 (May 31, 2011) (ADAMS Accession No. ML11138A315).

53 See PG&E Letter DCL-12-108, at 4. The March 12, 2012 Request for Information requested that all nuclear power reactor licensees conduct seismic re-evaluations as part of Fukushima Accident-related assessments. See March 12 2012 Letter.

54 See PG&E Letter DCL-14-081 at 1.

55 PG&E Letter DCL-14-081 at 2.

F. FOEs Contentions Based on PG&Es September 10, 2014 Seismic Study On October 10, 2014, FOE filed its Petition to Intervene, based in part on PG&Es September 10, 2014 Seismic Report.56 FOEs Petition to Intervene proffers three safety contentions:

Contention 1: PG&Es Operating License for Diablo Canyon Should Not be Renewed Unless and Until PG&E Establishes That the Plant Can Withstand and Be Safely Shut Down Following an Earthquake on the Hosgri-San Simeon, Shoreline, Los Osos, or San Luis Bay Faults. 57 Contention 2: PG&E Has Failed to Establish In Its License Renewal Application That the Effects of Aging on Diablo Canyons Relay Switches and Snubbers Will be Adequately Managed for the Period of Extended Operation, in Violation of 10 C.F.R. § 54.21(c). 58 Contention 3: PG&E Has Failed to Establish In Its Aging Management Plan That the Effects of Aging on Diablo Canyon Will Be Adequately Managed for the Period of Extended Operation, In Violation of 10 C.F.R. § 54.21(a)(3). 59 In short, FOE claims: (1) that a series of new seismic findings in PG&Es Seismic report show Diablo Canyon cannot provide the assurances of safe operation required to obtain permission to operate the plant, (2) that PG&E has not identified or analyzed the effects of aging on snubbers and relay switches, and (3) that in light of the new seismic findings in PG&Es Seismic Report, PG&E has failed to establish in its aging management plan that the effect of aging on Diablo Canyon will be adequately managed for the period of extended operation. 60 FOE recognizes that its claims are outside the scope of license renewal; 56 See, e.g., Petition to Intervene at 1. FOEs Petition to Intervene also repeats arguments raised in a separate petition (i.e., FOEs petition based on a supposed de facto license amendment). See id. at 4 n.11. The Staff separately answered those claims and so will not address these claims at length in this answer. See NRC Staff Answer to Petition to Intervene and Request for a Hearing by Friends of the Earth (Oct. 6, 2014) (ADAMS Accession No. ML14279A573) (Staff de facto Answer).

57 Petition to Intervene at 8 (emphasis omitted).

58 Id. at 21 (emphasis omitted).

59 Id. at 30 (emphasis omitted).

60 Id. at 1-2.

therefore, FOE also submitted a Waiver Petition. For the reasons discussed below, FOEs Petition to Intervene and Waiver Petition should be denied.

III. DISCUSSION FOEs Petition to Intervene should be denied because FOE has not demonstrated that its claims support a late-filed contention or meet the contention admissibility requirements.

A. FOES Proposed Contentions Do Not Meet The Requirements For a Late-Filed Contention FOEs Petition to Intervene should be denied because FOEs proposed contentions do not meet the contention admissibility standards for new contentions filed after the initial deadline.

1. The Deadline For Filing In This Licensing Proceeding Has Passed As discussed above, PG&E submitted its Diablo Canyon LRA in 2009. After accepting the LRA for review, the NRC issued a notice of an opportunity for a hearing. The deadline for submitting petitions to intervene was March 22, 2010. 61 Based on information in the ER, SLOMPF timely filed a petition to intervene and a waiver petition on March 22, 2010. 62 Notably, one of SLOMPFs environmental contentions related to the Shoreline Fault. In particular, SLOMPF claimed that PG&Es severe accident mitigation alternative (SAMA) analysis 63 was inadequate because it did not account for the Shoreline Fault. The Staff opposed the contention in part, but did not object to its admission to the extent that PG&Es SAMA analysis did not include a discussion of the Shoreline Fault. 64 61 See 75 Fed. Reg. at 3496.

62 See supra at n. 19.

63 PG&E was required to submit this analysis as part of its license renewal ER. See 10 C.F.R. § 51.53(c)(3)(ii)(L).

64 NRC Staffs Answer to the San Luis Obispo Mothers for Peace Request for Hearing and Petition to Intervene, at 26-34 (Apr. 16, 2010) (ADAMS Accession No. ML101060667). In particular, the Staffs view is that EC-1 is material to the findings the Staff must make under 10 C.F.R. § 51.53(c)(3)(ii)(L) because PG&Es Environmental Report omitted a discussion of how or whether PG&Es [Environmental

On April 8, 2010, this Board was appointed to preside over the adjudicatory proceeding. 65 In LBP-10-15, SLOMPFs hearing request was granted and SLOMPFs SAMA contention was admitted as a contention of omission. 66 On appeal, the Commission affirmed the Boards decision to admit SLOMPFs SAMA contention because the Commission found that SLOMFP had raised a genuine dispute as to whether information from the Shoreline Fault should be addressed in PG&Es SAMA analysis. 67 The Commission reversed the Boards decision to admit other claims, 68 including a contention that raised current operating issues (i.e.,

TC-1). 69

2. The Late-Filed Contention Admissibility Standards The deadline for receipt of petitions to intervene passed years ago and FOE is not a party to this proceeding. 70 The Boards Revised Scheduling Order contemplates the filing of petitions to intervene filed after the deadline by non-parties such as FOE, but places additional Report] considered the effects of the Shoreline Fault in deriving the SAMA analysis. NRC Staffs Answer to [PG&E]s Appeal of Atomic Safety and Licensing Board Decision (LBP-10-15), at 5-6 (Aug. 26, 2010)

(ADAMS Accession No. ML102380578).

65 Establishment of Atomic Safety and Licensing Board (Apr. 8, 2010) (ADAMS Accession No. ML100980501).

66 Diablo Canyon, LBP-10-15, 72 NRC at 257. As Admitted by the Board, Contention (EC-1) stated that PG&Es Severe Accident Mitigation Alternatives (SAMA) analysis fails to satisfy 40 C.F.R. § 1502.22 because it fails to consider information regarding the Shoreline fault that is necessary for an understanding of seismic risks to the Diablo Canyon nuclear power plant. Further, that omission is not justified by PG&E because it has failed to demonstrate that the information is too costly to obtain. As a result of the foregoing failures, PG&Es SAMA analysis does not satisfy the requirements of the National Environmental Policy Act (NEPA) for consideration of alternatives or NRC implementing regulation 10 C.F.R. § 51.53(c)(3)(ii)(L). Diablo Canyon, LBP-10-15, 72 NRC at 280.

67 Diablo Canyon, CLI-11-11, 75 NRC at 443. However, the Commission reformulated the contention to the extent it would make 40 C.F.R. § 1502.22 binding on the NRC. Id. at 443-44.

68 See, e.g., [SLOMPF] Motion to Admit Contentions Regarding Failure of Environmental Report to Address Post-Fukushima Investigations and Modification (Apr. 27, 2012) (ADAMS Accession No. ML12118A582). The Commission is currently considering SLOMFPs continued storage contention and related suspension petition. See DTE Elec. Co. (Fermi Nuclear Power Plant, Unit 3), CLI-14-9, 80 NRC

__ (Oct. 7, 2014) (slip op.).

69 Diablo Canyon, CLI-11-11, 75 NRC at 434-36 (noting that TC-1 raised safety culture issues).

70 In this proceeding, the initial filing deadline was March 22, 2010. See 75 Fed. Reg. at 3493.

requirements on such petitions. 71 To be admitted in this proceeding, FOEs proposed contentions must satisfy the good cause criteria of 10 C.F.R. § 2.309(c)(1)(i)-(iii), the contention admissibility criteria of 10 C.F.R. § 2.309(f)(1)(i)-(iv), and the standing criteria of 10 C.F.R. § 2.309(d). 72 The Staff does not challenge FOEs standing. FOE has demonstrated representational standing 73 on behalf of several of its members based on a proximity presumption. 74 FOE has identified by name and address several members of the organization who live within fifty miles of Diablo Canyon 75 and shown that the members have authorized FOE to represent his/her interests in this proceeding. 76 In order to show good cause under 10 C.F.R. § 2.309(c)(1)(i)-(iii), FOE must show that the information upon which its Petition to Intervene is based was not previously available, that such information is materially different from information previously available, and that it submitted the Petition to Intervene in a timely fashion based on the availability of the information.

Pursuant to the Boards revised scheduling order, a new contention filed by a non-party like FOE is deemed timely under 10 C.F.R. § 2.309(c)(1)(iii) based on a reasonableness 71 Revised Scheduling Order at 9.

72 10 C.F.R. § 2.309(f)(1)(i)-(vi).

73 See Vermont Yankee Nuclear Power Corp. & AmerGen Vermont, LLC (Vermont Yankee Nuclear Power Station), CLI-00-20, 52 NRC 151, 163 (2000) (discussing elements of representational standing).

74 Because a proximity presumption applies to each declarant, the Staff did not analyze whether FOE had standing based on the traditional judicial concepts of standing (i.e., injury, causation, and redressability).

75 See standing declarations: Declaration of Sandra L. Brazil (Oct. 5, 2014) (ADAMS Accession No. ML14283A595); Declaration of Thomas Danfield (Oct. 6, 2014) (ADAMS Accession No. ML14283A590); Declaration of Michael R. Jencks (Oct. 7, 2014) (ADAMS Accession No. ML14283A589);

Declaration of Jeffrey Pienack (Sept. 23, 2014) (ADAMS Accession No. ML14283A588); Declaration of Susan Sunderland (Oct. 6, 2014) (ADAMS Accession No. ML14283A587).

76 See id.

standard and not the thirty (30) day deadline applicable to new or amended contentions filed by parties to the proceeding. 77 The Commission has made several points clear when discussing what constitutes new and materially different information for purposes of a late-filed contention. 78 First, when a petitioners motion makes little effort to meet the pleading requirements governing late-filed contentions, that in and of itself constitutes sufficient grounds for rejecting the petitioners motion. 79 For example, the Commission has stated that a petitioners failure to address the factors in 10 C.F.R. § 2.309(f)(2) or 10 C.F.R. § 2.309(c) is reason enough to reject the motion. 80 Second, petitioners cannot just point to documents merely summarizing earlier documents or compiling preexisting, publicly available information into a single source as doing so does not render new the summarized or compiled information. 81 As the Commission noted in Prairie Island, 82 a petitioner or intervenor [cannot] delay filing a contention until a document becomes available that collects, summarizes and places into context the facts 77 Revised Scheduling Order at 9-10.

78 This case law below references 10 C.F.R. § 2.309(f)(2), which was previously the standard for late-filed contention and is substantively the same as the new regulation at 10 C.F.R. § 2.309(c)(1)(i)-(iii).

79 Florida Power & Light Co., FPL Energy Seabrook, LLC, FPL Energy Duane Arnold, LLC, Constellation Energy Group, Inc. (Calvert Cliffs Nuclear Power Plant, Units 1 and 2; Calvert Cliffs Independent Spent Fuel Storage Installation; Nine Mile Point Nuclear Station, Units 1 and 2; R.E. Ginna Nuclear Power Plant; Turkey Point Nuclear Generating Plant, Units 3 and 4; St. Lucie Nuclear Power Plant, Units 1 and 2; Seabrook Station; Duane Arnold Energy Center), CLI-06-21, 64 NRC 30, 33-4 (2006).

80 Id. (noting that petitioner did not address any of the factors in 10 C.F.R. § 2.309(f)(2) and did not address two of the factors in 10 C.F.R. § 2.309(c)).

81 Entergy Nuclear Vermont Yankee, L.L.C. and Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-11-2, 73 NRC 333, 344 (2011), citing Northern States Power Co.

(Prairie Island Nuclear Generating Plant, Units 1 and 2), CLI-10-27, 72 NRC 481, 493-96 (2010).

82 Prairie Island, CLI-10-27, 72 NRC at 496

supporting that contention. To conclude otherwise would turn on its head the regulatory requirement that new contentions be based on information not previously available. 83 Third, the Commission has made clear that alleged new and materially different information must support the proposed contention. 84 Thus, the Commission has noted that alleged new and materially different information must articulate a reasonably apparent foundation for the contention. 85 Fourth, simply rehashing old arguments is not enough to meet the materially different standard in 10 C.F.R. § 2.309(f)(2)(ii). 86 Instead, the Commission has stated that petitioners filing amended contentions must show how their arguments supporting the contention differ from their previous arguments. 87 Finally, the Commission considers information new and materially different when the Staff is considering the information for the first time in responding to issues relevant to the contention. 88

3. FOE Has Not Demonstrated That Its Contentions Satisfy the Good Cause Requirements of 10 C.F.R. § 2.309(c)(1)(i)-(iii)

While FOE has demonstrated standing, its contentions should not be admitted because it has not satisfied the good cause requirements of 10 C.F.R. § 2.309(c)(1)(i)-(iii). FOEs Petition to Intervene asserts that it is based on supposedly new and materially different information contained in PG&Es September 10, 2014 Seismic Report. 89 FOE also bases its 83 Id. (internal citations omitted) (emphasis in original).

84 Id.at 493-94 (noting that the SER petitioners cited to as having new and materially different information did not provide support for the contention and so did not contain new or materially different information).

85 Id. at 495.

86 See Entergy Nuclear Vermont Yankee, L.L.C. & Entergy Nuclear Operations, Inc. (Vermont Yankee Nuclear Power Station), CLI-10-17, 72 NRC 1, 53 (2010).

87 Id.

88 See Paina Hawaii, LLC (Materials License Application), CLI-10-18, 72 NRC 56, 79 (2010).

89 See Petition to Intervene at 1, 4, 33. Id. at 33 (claiming that PG&Es Seismic Report adds significant new and material information to the body of scientific knowledge regarding the seismicity of the area surrounding Diablo Canyon.).

Petition to Intervene on arguments it made in a separate filing. 90 For the reasons discussed below, FOE has not demonstrated that any of the information in its Petition to Intervene constitutes new and materially different information under 10 C.F.R. § 2.309(c)(1)(i)-(iii).

a. FOE Has Not Shown That Information in PG&Es Seismic Report Is New and Materially Different From Information Previously Available FOE claims that its Petition to Intervene is timely because it was filed within 30 days of PG&Es submittal of the Seismic Report. 91 In particular, FOE points to several significant findings 92 in the Seismic Report related to the Shoreline, Hosgri, and San Simeon faults and claims that the information reveals that previous assessments of the Hosgri and Shoreline faults, two of the most significant faults near Diablo Canyon, are capable of creating much more powerful earthquakes than previously thought. 93 These significant findings are:

(1) the Shoreline fault is nearly double the previously assumed length, 94 which increases the potential magnitude of the earthquake from 6.5 to 6.7, 95 (2) the step-over between the Hosgri fault and the San Simeon fault is small enough that the two faults are assumed to rupture together rather than separately, which revises the potential magnitude of a Hosgri earthquake from 7.1 to 7.3, 96 and (3) the Hosgri and Shoreline faults are assumed to intersect such that a linked rupture involving the full Hosgri fault and the full Shoreline fault is now assumed to be 90 See, e.g., Petition to Intervene at 4 (discussing de facto claims and the withdrawn license amendment). See generally de facto Petition (raising same arguments).

91 See Petition to Intervene at 34.

92 Id. at 33.

93 Id. at 35. FOE claims that the new study makes findings dramatically at odds with the findings of the Atomic Safety and Licensing Board in 1979 and the Atomic Licensing Appeals Board in 1981, as well as subsequent reports regarding the Shoreline fault. Id. at 5.

94 Petition to Intervene at 34. Id. (It is now found to be 45 km long rather than the previously presumed 23 km.) (citing PG&E Seismic Report, Technical Summary, at 6-7).

95 Petition to Intervene at 34 (citing PG&E Seismic Report, Technical Summary, at 10). Id. at 11 (citing to Jentzsch affidavit for proposition that an increase of magnitude 0.2 is not to be dismissed as minor.).

96 Petition to Intervene at 34 (citing PG&E Seismic Report, Technical Summary, at 6-7, 10).

possible, which indicates that the Hosgri/Shoreline fault system was capable of producing a magnitude 7.3 earthquake occurring within 600 meters of the plant. 97 FOE claims that these findings establish that the earthquake caused by the Hosgri fault, as identified and analyzed in the Hosgri part of the original licensing proceeding, is no longer the largest or most powerful threat to the Diablo plant. 98 Further, FOE claims that a rupture on the Hosgri fault cannot be described in any way as the bounding scenario. 99 While these three conclusions might be new information, FOE does not indicate how any of these conclusions is materially different information than previously available. First, PG&E recognized that the additional seismic studies found that the Shoreline Fault was longer and therefore, more capable. 100 However, as FOE recognizes, 101 PG&E ultimately concluded 102 that the ground motions from updated shoreline fault and other regional faults remain less than the 1977 Hosgri Design ground motions, for which the plant was evaluated and demonstrated to have reasonable assurance of safety. 103 The Hosgri ground motions were 0.75 based on a Richter scale magnitude 7.5 earthquake and are part of the licensing basis of the plant. 104 97 Petition to Intervene at 34 (citing PG&E Seismic Report, Ch. 13, at 17-18). Id. at 12. FOE also points out that the Seismic Report concludes that the San Luis Bay fault is capable of generating a magnitude 6.4 earthquake, which is larger than estimated in PG&Es 2011 report [Shoreline Fault Zone Report: Report on the Analysis of the Shoreline Fault Zone, Central Coastal California, report to the U.S.

Nuclear Regulatory Commission, January.]. Id. at 5.

98 Petition to Intervene at 5. Id. at 26 (This newly released data demonstrates that previous seismic assessments are thoroughly inaccurate and incomplete.).

99 Petition to Intervene at 5.

100 See PG&E Letter DCL-14-081 at 2.

101 Affidavit and Curriculum Vitae of Dr. Gerhard Jentzsch, at 1 (Oct. 2, 2014) (ADAMS Accession No. ML14283A594); Affidavit and Curriculum Vitae of Arnold Gundersen, MSNE, RO, at 11-12 (Gundersen Affidavit) (Oct. 8, 2014) (ADAMS Accession No. ML14283A593); Petition to Intervene at 13-15.

102 The Staff is evaluating this conclusion with regard to DCPPs current operation.

103 See PG&E Letter DCL-14-081 at 2.

104 See Diablo Canyon, LBP-79-26, 10 NRC at 490 (the Board concludes that the 0.75g acceleration assigned to the safe shutdown earthquake is an appropriately conservative value for the maximum vibratory ground acceleration that could occur at the Diablo Canyon site and thus an

FOE also points out that the Seismic Report takes the position that the risk of earthquake damage to Diablo from the increased energy discharge expected from a joint rupture of the Hosgri-San Simeon and Shoreline faults is not as great as identified in its [2011 Seismic Report.] 105 Thus, notwithstanding the new information in the Seismic Report on the Shoreline Fault, and the rupture potentials in points (2) and (3) above, the ultimate conclusion of PG&Es Seismic Report is that the ground motions predicted for Diablo are bounded by the 1977 Hosgri spectrum and the 1991 LTSP response spectra. 106 This finding is consistent with statements in the LRA, the Staffs RIL-09-01, PG&Es 2011 Report, and the Staffs RIL 12-01.

Therefore, the information cited from the Seismic Report is not new and materially different information from information previously available.

Moreover, FOE does not indicate how any of the information cited in the Seismic Report supports admissibility of its safety contentions in this license renewal proceeding. As discussed in more detail below, FOEs contentions are outside the limited scope of the license renewal proceeding, do not raise a genuine dispute with the application, and challenge the Commissions rules, the plants current operation, and the adequacy of its current licensing basis (CLB).

For these reasons, FOE has not shown that information in the Seismic Report is new and materially different information from information previously available.

appropriate anchorpoint . . . for the design response spectra.); Diablo Canyon, ALAB-644, 13 NRC at 986-88 (concluding that PG&Es program for testing the ability of SSCs to withstand the estimated Hosgri ground motion was sufficient); 10 C.F.R. § 54.3 (stating that a plants CLB includes orders). The NRC Staff has always considered the Hosgri ground motions part of DCPPs licensing basis. See, e.g.,

October 12, 2012 Letter at 4 (DCPP is unique in having three earthquake scenarios (DE, DDE, and HE) in its design and licensing basis).

105 Petition to Intervene at 6.

106 See PG&E Seismic Report, Chapter 13, at 20. Petition to Intervene at 17.

b. FOE Does Not Demonstrate That Its De Facto License Amendment Claims, Which Were Raised In a Separate Filing, Are New and Materially Different Information In the introduction section of its Petition to Intervene, FOE repeats several assertions made in its separate de facto Petition and request for a hearing. 107 For example, FOE takes issue with the NRCs position that the Hosgri analysis is already part of the CLB and that no amendment is needed to incorporate it into the CLB. 108 FOE also repeats arguments related to a license amendment it claims was withdrawn at the NRCs request. 109 These arguments are not based on new and materially different information. FOE could have, and in fact did, raise these same claims previously. 110 The Commission is currently considering this petition. The Staff answered these claims in a separate filing 111 and will not reiterate its answer here except to say that FOEs claims are not admissible in a Sec. 189a. hearing. 112 Because FOE does not specify how any information cited in its Petition to Intervene is new and materially different from information that was previously available, as required by the Boards Revised Scheduling Order, FOEs Petition to Intervene does not satisfy the good cause requirements in 10 C.F.R. § 2.309(c)(1)(i)-(iii).

4. FOE Has Not Shown That It Raised Its Claims In a Timely Fashion FOE asserts that its Petition to Intervene has been filed in a timely fashion because it was filed on October 10, 2014, 30 days after [PG&Es Seismic Report] was released. 113 Thus, 107 See Petition to Intervene at 4 and n. 11.

108 Petition to Intervene at 4. Id. at n. 11 (asserting that this is a regulatory sleight of hand that is opposed in a separate petition filed with the Commission by [FOE] on August 26, 2014.).

109 Petition to Intervene at 4.

110 See de facto Petition at 38.

111 See NRC Staff Answer to Petition to Intervene and Request for Hearing by Friends of the Earth (Oct. 6, 2014) (ADAMS Accession No. ML14279A573) (Staff Answer to de facto Petition).

112 Id. at 10-12.

113 Petition to Intervene at 35.

FOE claims that the Petition not only meets the more stringent 30-day deadline applicable to parties seeking to file new or amended contentions, but also the less stringent reasonableness standard applicable in this instance. 114 However, FOE has not shown that its Petition to Intervene was filed in a timely manner under the reasonableness standard.

As discussed above, PG&E noted in the 2009 LRA that a Richter Scale magnitude 7.5 earthquake along the Hosgri Fault was possible, and that the plant had been designed to withstand such an earthquake. 115 Thus, FOE was aware of the possibility of a Richter scale magnitude 7.5 earthquake at the plant before October 10, 2014. While the Seismic Report does contain new information about the length and capability of the Shoreline Fault and other faults, it ultimately concludes that the 1977 Hosgri Design ground motions and the 1991 LTSP are still bounding. Since these ground motions bound those discussed in PG&Es Seismic Report, FOE could have raised its concerns that TLAAs and/or AMPs were omitted or inadequate given the possibility of Richter scale magnitude 7.5 earthquake right after the LRA was submitted. 116 Likewise, FOE could have raised its concerns about the snubbers and relays before October 10, 2014. Both the LRA, which has been publicly available since 2009, and the Staffs SER, which was issued in 2011, listed the AMPs and TLAAs and did not include AMPs or TLAAs for snubbers or relays. Thus, FOE could reasonably have raised concerns about this omission and/or the adequacy of the LRA before October 10, 2014.

B. FOEs Proposed Contentions Do Not Meet the 10 C.F.R. § 2.309(f)(1)

Requirements FOEs proposed contentions should also be denied because they do not meet the Commissions general contention admissibility standards in 10 C.F.R. § 2.309(f). As the Board explained in LBP-10-15, in order to become a party in an adjudicatory proceeding, a petitioner 114 Id.

115 See, e.g., LRA at 2.1-9, 4.1-5.

116 As noted, SLOMPF raised concerns related to the Shoreline fault back in 2010.

must submit at least one admissible contention that meets the six basic requirements set forth in 10 C.F.R. § 2.309(f)(1)(i)-(vi). 117 In summary, these requirements are:

(i) Specificity: Provide a specific statement of the issue of law or fact to be raised or controverted; (ii) Brief Explanation: Provide a brief explanation of the basis for the contention; (iii) Within Scope: Demonstrate that the issue raised in the contention is within the scope of the proceeding; (iv) Materiality: Demonstrate that the issue raised in the contention is material to the findings the NRC must make to support the action that is involved in the proceeding; (v) Concise Statement of Alleged Facts or Expert Opinion: Provide a concise statement of the alleged facts or expert opinions which support the requestors/petitioners position on the issue and on which the petitioner intends to rely at hearing, together with references to the specific sources and documents on which the requestor/petitioner intends to rely to support its position on the issue; and (vi) Genuine Dispute: Provide sufficient information to show that a genuine dispute exists with the applicant/licensee on a material issue of law or fact. This information must include references to specific portions of the application (including the applicants environmental report and safety report) that the petitioner disputes and the supporting reasons for each dispute, or, if the petitioner believes that the application fails to contain information on a relevant matter as required by law, the identification of each failure and the supporting reasons for the petitioners belief. 118 A failure to meet any of these criteria renders the contention inadmissible. 119 While a board may view a petitioners supporting information in a light favorable to the petitionerthe 117 Diablo Canyon, LBP-10-15, 72 NRC at 277.

118 Id. at 277-78 (citing 10 C.F.R. 2.309(f)(1)) (emphasis in original).

119 Northern States Power Co. (Prairie Island Nuclear Generating Plant Independent Spent Fuel Installation), LBP-12-24, 76 NRC 503, 509 (2012); See also South Carolina Elec. & Gas Co. (Virgil C.

Summer Nuclear Station, Units 2 and 3), CLI-10-1, 71 NRC 1, 7 & n.33 (2010).

petitioner (not the board) [is required] to supply all of the required elements for a valid intervention petition. 120 FOEs proposed contentions make safety claims. Thus, the contentions must raise a genuine dispute with the LRA and must raise an issue material to the Staffs license renewal safety findings. 121 As discussed below, FOEs proposed contentions should not be admitted because they: raise issues that are beyond the scope of this proceeding, do not raise a genuine dispute with the application, do not raise a material issue, and/or lack an adequate basis.

1. Contention 1 FOEs Contention 1 states:

PG&Es Operating License for Diablo Canyon Should Not Be Renewed Unless and Until PG&E Establishes That the Plant Can Withstand and Be Safely Shut Down Following an Earthquake On the Hosgri-San Simeon, Shoreline, Los Osos, or San Luis Bay Faults. 122 In support of Contention 1, FOE maintains that new information in PG&Es Seismic Report indicates that the NRC no longer has a basis for any conclusion that there is a reasonable assurance that the aging equipment in the Diablo Canyon reactors can withstand the effects of the maximum possible earthquake. 123 FOE explains that the Seismic Report discloses for the first time that the Shoreline Fault is longer than previously thought, that the Hosgri and Shoreline Faults may rupture together, and that the Hosgri and San Simeon Faults are connected. 124 Moreover, FOE asserts that the Seismic Report utilizes untested and unproven methodologies to reach its conclusions, and that those methods depart from the 120 Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-09-7, 69 NRC 235, 260 (2009), citing Arizona Pub. Serv. Co. (Palo Verde Nuclear Generating Station, Units 1, 2, & 3). CLI-91-12, 34 NRC 149, 155 (1991).

121 See 10 C.F.R. § 54.29.

122 Petition to Intervene at 8 (emphasis omitted).

123 Id.

124 Id. at 11-13.

methods in DCPPs licensing basis. 125 For this reason, FOE states that the Seismic Reports conclusions that the Shoreline and other faults are bounded by the Hosgri Earthquake cannot be correct. 126 Finally, FOE maintains that Contention 1 is within the scope of the license renewal proceeding because it seeks to ensure that DCPPs safety-related SSCs, non-safety related SSCs that support a safety function, and SSCs relied upon in the safety analysis, in their aged state, can continue to perform their intended functions such that the plant can safely remain shut down following an earthquake of the magnitude now known to be possible. 127 As explained below, Contention 1 is inadmissible because it raises issues outside the scope of the license renewal proceeding and fails to raise a genuine, material dispute with the applicant. 128

a. Contention 1 is Beyond the Scope of the Proceeding to the Extent It Raises Current Safety Issues Contention 1 is inadmissible to the extent it raises current safety issues, as these issues are beyond the scope of a license renewal proceeding. 129 The Commission stated in Turkey Point, Part 54 centers the license renewal reviews on the most significant overall safety concern posed by extended reactor operation - the detrimental effects of aging. 130 Thus, the scope of the license renewal safety review is narrow; it is limited to plant structures and components that will require an aging management review for the period of extended operation and the plants systems, structures, and components that are subject to an evaluation of time-125 Id. at 13-17.

126 Id. at 17-18.

127 Id. at 20.

128 10 C.F.R. §§ 2.309(f)(1)(iii) & (vi).

129 Florida Power & Light Co. (Turkey Point Nuclear Generating Plant, Units 3 and 4), CLI-01-17, 54 NRC 3, 8-10 (2001).

130 Id. at 7.

limited aging analyses. 131 For each structure or component requiring an aging management review, a license renewal applicant must demonstrate that the effects of aging will be adequately managed so that the intended function(s) will be maintained consistent with the

[CLB] for the period of extended operation. 132 Challenges to the adequacy of a plants CLB, however, are beyond the scope of license renewal. 133 In fact, one of the fundamental principles upon which the Commission based the license renewal rule is that with the possible exception of the detrimental effects of aging on the functionality of certain plant systems, structures, and components in the period of extended operation . . . the regulatory process is adequate to ensure that the licensing bases of all currently operating plants provides and maintains an acceptable level of safety. 134 FOE asserts that aging equipment in DCPP will not be able to withstand the effects of a potential earthquake, 135 and that SSCs within the scope of license renewal, in their aged state, will not perform their intended functions. 136 License renewal, however, is concerned with age related degradation and the effects of aging, not simply with whether old components will 131 Duke Energy Corp., (McGuire Nuclear Station, Units 1 & 2; Catawba Nuclear Station, Units 1

& 2), CLI-01-20, 54 NRC 211, 212 (2001), citing 10 C.F.R. §§ 54.21(a) and (c), 54.4..

132 Entergy Nuclear Generation Co. & Entergy Nuclear Operations, Inc. (Pilgrim Nuclear Power Station), CLI-10-14, 71 NRC 449, 453-456 (2010) (emphasis added), citing 10 C.F.R. § 54.21(a)(3). In the Statements of Consideration (SOCs) for the 1995 revisions to Part 54, the Commission stated, The objective of a license renewal review is to determine whether the detrimental effects of aging, which could adversely affect the functionality of systems, structures, and components that the Commission determines require review for the period of extended operation, are adequately managed. Nuclear Power Plant License Renewal; Revisions 60 Fed. Reg. 22,461, 22,464 (May 8, 1995) (Final Rule) (emphasis added).

133 See Turkey Point, CLI-01-17, 54 NRC at 8-9 (stating that the Commissions on-going regulatory oversight ensures the adequacy of the plants current licensing basis, thus there is no reason to reanalyze the adequacy of the CLB for license renewal).

134 60 Fed. Reg. at 22,464.

135 Petition to Intervene at 8.

136 Id. at 20.

fail for a different reason, such as an earthquake. An earthquake, unlike corrosion for example, does not have an aging effect. 137 At bottom, FOEs concern with DCPPs ability to safely shut down following a potential earthquake is a current operating issue, and is not unique to license renewal. Early in its Petition to Intervene, FOE states that PG&E has never demonstrated that the plant can be safely operated under its existing license given the Shoreline Fault, 138 and that the findings in PG&Es Seismic Report are at odds with findings made by the Licensing Board and the Appeal Board when the plant was licensed. 139 Throughout Contention 1, FOE argues that the Seismic Reports findings predict a larger earthquake than the one for which DCPP was licensed and that the Hosgri Earthquake is not the bounding seismic analysis for DCPP. 140 These concerns relate to whether DCPP is in compliance with its CLB and can continue to operate, and do not address the limited scope of license renewal. As part of the NRCs ongoing oversight, the Staff inspects the plant and evaluates any potential impacts to safety. 141 The NRCs ongoing oversight of Diablo Canyon would address any safety-significant issue associated with PG&Es Seismic Report. In addition, in response to recommendations of the Near-Term Task Force review of the accident at Fukushima Dai-ichi nuclear facility, the NRC has requested information from PG&E and all operating reactor licensees in response to the March 12, 2012, § 50.54(f) 137 See Turkey Point, CLI-01-17, 54 NRC at 7 (noting that [a]dverse aging effects can result from metal fatigue, erosion, corrosion, thermal and radiation embrittlement, microbiologically induced effects, creep, and shrinkage.).

138 Petition to Intervene at 3.

139 Id. at 4-5.

140 Id. at 9-10.

141 The Staff is also considering what impact, if any, PG&Es Seismic Report has on a license renewal decision. See, e.g., NRC Staff October 2014 Schedule Update re: Projected Schedule for Completion of the Safety and Environmental Evaluations (Oct. 16, 2014) (ADAMS Accession No. ML14289A066). However, as discussed throughout, FOE has not raised a genuine material dispute with the LRA because they have not identified how, if at all, any AMP needs to be modified to account for the issues raised in its contentions.

letter regarding seismic hazards re-evaluations. The results of NRC review of these 50.54(f) responses will determine whether additional regulatory actions are needed to provide additional protection against updated seismic hazards. In sum, FOEs concerns address continued operation, not the period of extended operation. 142 The proper vehicle for raising concerns related to continued operation is a 10 C.F.R. § 2.206 petition.

b. FOEs Safety Claims Do Not Raise a Genuine Dispute With the Application FOEs Contention 1 should also be found inadmissible because it does not raise a genuine dispute with the application. An applicant for license renewal under Part 54 is required to submit an integrated plant assessment (IPA) for those SSCs within the scope of license renewal and must also submit an evaluation of time-limited aging analyses (TLAAs). 143 As part of its LRA, PG&E submitted both an IPA and an evaluation of TLAAs. 144 FOEs Contention 1 fails to raise a genuine dispute with PG&Es LRA because FOE does not challenge any part of the IPA or any TLAA. FOE does not point to a single SSC that it claims will be affected by the potential earthquake predicted by PG&Es Seismic Report, and does not explain how any AMP in the LRA is deficient. Instead, FOE generally alleges that in-scope SSCs will fail to perform their intended functions such that the plant will be able to be safely shut down in the event of an earthquake. 145 Thus, while FOE couches its claims as 142 FOEs witness, Dr. Gerhard Jentzch, appears to acknowledge that the Petition concerns current operating issues, not license renewal issues. He states in conclusion, All this leads to the firm conviction that the earthquake hazard estimations for the Diablo Canyon site are not at all conservative but simply too small. Thus, the Different Professional Opin[i]on provided by Peck (2013) should be taken very serious[ly] pointing at the weak points of the licensing process of DCPP. Jentzch Affidavit at ¶ 30 (emphasis omitted). Dr. Michael Pecks Differing Professional Opinion (DPO) concerned the current operation of DCPP. See DPO Case File, DPO-2013-002, Document 1, Differing Professional Opinion -

Diablo Canyon Seismic Issues, at 2 (Jul. 2013) (ADAMS Accession No. ML14252A743). Likewise, Dr.

Jentzch challenges the current operation of DCPP, not issues related to the limited scope of license renewal.

143 10 C.F.R. § 54.21(a) & (c).

144 LRA at Chapter 3 & Chapter 4.

145 Petition to Intervene at 19-20.

related to license renewal, Contention 1 does not raise a specific challenge to any of PG&Es analyses supporting license renewal. 146

2. Contention 2 FOEs Contention 2 states:

PG&E Has Failed to Establish In Its License Renewal Application That the Effects of Aging on Diablo Canyons Relay Switches and Snubbers Will Be Adequately Managed for the Period of Extended Operation, In Violation of 10 C.F.R. § 54.21(c). 147 In support of Contention 2, FOE argues that snubbers and relays require an aging management review. 148 FOE also claims that PG&E was required to conduct TLAAs for relays and snubbers 149 and that to the extent PG&E conducted those analyses, they are no longer valid because they do not account for the new information in the Seismic Report. 150 For the reasons discussed below, FOEs Contention 2 should be found inadmissible.

146 In Contention 1, FOE repeats a claim it first raised in its de facto amendment filing: that the NRC made an exception to the seismic design basis to accommodate the risk presented by the Hosgri fault, and that the exception was limited to activity on the Hosgri fault. Petition to Intervene at 9. FOE, however, fails to support this assertion. To the contrary, the Hosgri ground motion is part of DCPPs licensing basis. See Diablo Canyon, LBP-79-26, 10 NRC at 490 (the Board concludes that the 0.75g acceleration assigned to the safe shutdown earthquake is an appropriately conservative value for the maximum vibratory ground acceleration that could occur at the Diablo Canyon site and thus an appropriate anchorpoint . . . for the design response spectra.); Diablo Canyon, ALAB-644, 13 NRC at 986-88 (concluding that PG&Es program for testing the ability of SSCs to withstand the estimated Hosgri ground motion was sufficient); 10 C.F.R. § 54.3 (stating that a plants CLB includes orders). The NRC Staff has always considered the Hosgri ground motions part of DCPPs licensing basis. See, e.g.,

October 12, 2012 Letter at 4 (DCPP is unique in having three earthquake scenarios (DE, DDE, and HE) in its design and licensing basis).

147 Petition to Intervene at 21 (emphasis omitted).

148 Id. at 27.

149 Id. at 25 ([i]t is not apparent from Diablo Canyons [LRA] whether PG&E has included evaluations of its TLAAs.). Id. (asserting that PG&E has failed to evaluate these TLAAs in violation of 10 C.F.R. 54.21(c)(1)(i)-(iii).).

150 Petition to Intervene at 24-25. FOE asserts that the Seismic Report concludes that PG&Es previous analyses of the Hosgri, Shoreline, and other faults greatly underestimated the earthquake capability of those faults. Id. at 25.

a. FOEs Claims Are Outside the Scope of License Renewal and Do Not Raise a Genuine Dispute with the Application FOEs Contention 2 is inadmissible because it challenges the Commissions regulations, which specifically exclude relays and snubbers from a license renewal aging management review. FOE notes that relays and snubbers are within the scope of license renewal because pursuant to 10 C.F.R. § 54.4(a)(2), they are nonsafety-related SSCs whose failure could prevent safety-related SSCs from fulfilling their intended functions. 151 FOE argues that if an SSC is within the scope of the proceeding, it is subject to either (1) an aging management program or (2) the requirement to evaluate TLAAs. 152 However, FOE is incorrect. Although relays and snubbers are SSCs within the scope of license renewal, they do not require an aging management review or TLAAs.

First, as the Commission explained in the SOCs for the license renewal rule, snubbers and relays are not subject to an aging management review because they perform active functions. 153 The Commission stated that [o]nly passive, long-lived structures and components 151 Petition to Intervene at 28-29. 10 C.F.R. § 54.4(a), in relevant part, defines SSCs within the scope of license renewal as follows:

(1) Safety-related systems, structures, and components which are those relied upon to remain functional during and following design-basis events (as defined in 10 CFR 50.49(b)(1)) to ensure the following functions--

(i) The integrity of the reactor coolant pressure boundary; (ii) The capability to shut down the reactor and maintain it in a safe shutdown condition; or (iii) The capability to prevent or mitigate the consequences of accidents which could result in potential offsite exposures comparable to those referred to in § 50.34(a)(1), § 50.67(b)(2), or § 100.11 of this chapter, as applicable.

(2) All nonsafety-related systems, structures, and components whose failure could prevent satisfactory accomplishment of any of the functions identified in paragraphs (a)(1)(i), (ii), or (iii) of this section.

152 Petition to Intervene at 28.

153 60 Fed. Reg. at 22,477.

are subject to an aging management review for license renewal. 154 Thus, 10 C.F.R. § 54.21(a)(1)(i) specifically excludes snubbers and relays from an aging management review in the IPA. PG&E was not required to include an aging management review for snubbers and relays in its LRA. FOE argues that permitting the license renewal proceeding to go forward without considering whether the plants relays and snubbers, in their aged state, can withstand an earthquake which is demonstrably capable of occurring would be at odds with the stated purpose of the license renewal rule. 155 In fact, just the opposite is true. Requiring PG&E to consider snubbers and relays in its IPA would be contrary to the stated purpose of the regulations.

Second, PG&E is not required by the license renewal regulations to submit TLAAs for snubbers and relays in its LRA. Thus, FOEs claim that the TLAAs for snubbers and relays are no longer valid in light of the Seismic Reports conclusions likewise falls outside the scope of this proceeding. Notably, FOE appears to recognize that snubbers and relays have no TLAAs associated with them. 156 FOE nonetheless asserts that such TLAAs should have been included in the LRA and that they need to take into account the findings of the Seismic Report. 157 However, FOE misunderstands the purpose and scope of the Commissions regulations concerning TLAAs.

The regulations define TLAAs as:

[T]hose licensee calculations and analyses that:

(1) Involve systems, structures, and components within the scope of license renewal, as delineated in § 54.4(a);

154 Id. at 22,463.

155 Petition to Intervene at 27.

156 See Petition to Intervene at 25 (It is not apparent from Diablo Canyons License Renewal Application whether PG&E has included evaluations of its TLAAs for relays and snubbers as required by 10 C.F.R. § 54.21(c).).

157 Id. at 25.

(2) Consider the effects of aging; (3) Involve time-limited assumptions defined by the current operating term, for example, 40 years; (4) Were determined to be relevant by the licensee in making a safety determination; (5) Involve conclusions or provide the basis for conclusions related to the capability of the system, structure, and component to perform its intended functions, as delineated in § 54.4(b); and (6) Are contained or incorporated by reference in the CLB. 158 Thus, a TLAA is a licensee calculation and analysis involving SSCs within the scope of license renewal that considers the effects of aging, is time-limited, and is contained in the CLB.

Section 54.21(c) requires the license renewal applicant to provide, A list of time-limited aging analyses, as defined in § 54.3, and demonstrate that:

(i) The analyses remain valid for the period of extended operation; (ii) The analyses have been projected to the end of the period of extended operation; or (iii) The effects of aging on the intended function(s) will be adequately managed for the period of extended operation.

In other words, if there is a TLAA, the applicant must verify that the analysis remains valid during the renewal or ensure that an AMP is in place. 159 Neither section 54.3 nor section 54.21(c) requires an applicant to generate a TLAA where one does not exist. 160 158 10 C.F.R. § 54.3.

159 Vermont Yankee, CLI-10-17, 72 NRC at 18 (a license renewal applicant seeking to satisfy our regulations aging management requirements by reliance upon the existing TLAAs in its current licensing basis would rely upon sections 54.21(c)(1)(i) or (ii), while a license renewal applicant seeking to do so by reliance upon an AMP would rely instead upon sections 54.21(a)(3) and (c)(1)(iii). (emphasis in original)).

160 See Turkey Point, CLI-01-17, 54 NRC at 8 (stating that some safety reviews or analyses made during the original term of the license may have been based upon a particular time period, such as, perhaps, an assumed service life of a specific number of years or some period of operation defined by the original license term, i.e., 40 years. Before the NRC will grant any license renewal application, an applicant must reassess these time-limited aging analyses, and (1) show that the earlier analysis will remain valid for the extended operation period; or (2) modify and extend the analysis to apply to a longer

In this case, PG&Es LRA did not include a TLAA for snubbers and relays because there are no time-limited analyses in the CLB considering the effects of aging on those components. 161 Because there are no TLAAs for snubbers and relays, PG&E is not required to evaluate those components under § 54.21(c) or include them in its LRA. Thus, FOEs claim that PG&E must submit TLAAs for snubbers and relays that consider the new information in the Seismic Report is outside the scope of this proceeding because it is contrary to what the license renewal regulations require. Further, FOEs claim does not raise a genuine dispute with the application; PG&E was not required to and did not include TLAAs for snubbers and relays in its LRA.

Additionally, there would be little need for a TLAA to address the effects of an earthquake on relay switches and snubbers. As noted above, relays and snubbers are active components that do not require an aging management review. 162 TLAAs are concerned with the management of the effects of aging. In the 1995 License Renewal SOCs, the Commission provided several examples of potential TLAAs, including reactor vessel neutron embrittlement .

. . , concrete containment tendon prestress, metal fatigue, environmental qualification (EQ) of electrical equipment, [and] metal corrosion allowance, among others. 163 All of the issues term, such as 60 years; or (3) otherwise demonstrate that the effects of aging will be adequately managed in the renewal term.) (emphasis added). Likewise, in the 1995 License Renewal SOCs, the Commission explained that it is concerned with ensuring that existing TLAAs cover the period of extended operation or the aging effects on the components addressed are otherwise adequately managed. See 60 Fed. Reg. at 22,480-81 (The Commissions intent for the requirement of time-limited aging analyses is to capture, for renewal review, certain plant-specific aging analyses that are explicitly based on the duration of the current operating license of the plant. The Commissions concern is that these aging analyses do not cover the period of extended operation. Unless these analyses are evaluated, the Commission does not have assurance that the systems, structures, and components addressed by these analyses can perform their intended function(s) during the period of extended operation.) (emphasis added).

161 See, e.g., Vermont Yankee, CLI-10-17, 72 NRC at 39 (stating that an analysis cannot be a TLAA if it is not contained in the CLB).

162 10 C.F.R. § 54.21(a)(1)(i).

163 60 Fed. Reg. at 22,480. The Standard Review Plan for License Renewal provides the same examples of TLAAs as the 1995 SOCs do and adds several others. NUREG-1800, Rev. 1, Standard

identified by the Commission can have adverse, aging related effects on the functionality of safety-related SSCs. FOE wants PG&E to examine the effects of an earthquake on relay switches and snubbers. But the Commission did not identify relay switches and snubbers as requiring TLAAs.

Finally, FOEs concerns with the ability of the plants snubbers and relays to withstand the potential earthquake predicted by PG&Es Seismic Report are outside the scope of this proceeding because they challenge current operation. As explained above, license renewal looks at the detrimental effects of aging unique to extended operation. 164 FOEs concerns about relay chatter caused by an earthquake 165 and its concerns regarding the shock-absorbing capacity of snubbers during an earthquake 166 are current operating issues. Dr. Arnold Gundersens affidavit highlights the seriousness of the relay chatter issue and stresses the snubbers importance in preventing damage during an earthquake. 167 Thus, the affidavit merely reinforces the notion that the proper function of relays and snubbers is critical to DCPPs current operation. 168 The NRCs ongoing oversight of Diablo Canyon would address any safety-significant issue associated with PG&Es Seismic Report relating to the performance of relay Review Plan for Review of License Renewal Applications for Nuclear Power Plants, at 4.1 4.1-6 (Sept. 30, 2005) (ADAMS Accession No. ML052110007). All of the examples are aging related. See id.

An analysis of the effects of an earthquake on relay switches and snubbers would not match the rest of the list.

164 Turkey Point, CLI-01-17, 54 NRC at 7.

165 Petition to Intervene at 23-24 & 29.

166 Id. at 24 & 29.

167 See Gundersen Affidavit at 24-36 (discussing relay chatter) & 36-40 (discussing snubbers).

168 In SSER 34, the Staff described the audit it performed of the relay chatter analysis prepared by PG&E as part of a probabilistic risk assessment. See SSER 34 at Section 23 & 23-13. This further demonstrates that relay chatter is a current operating issue, not a concern within the scope of license renewal. Furthermore, LCO 3.0.8 in the current Technical Specifications for DCPP states that if a snubber cannot perform its associated support function for a specified period of time, then the affected supported system LCO will not be met, and the plant must be shut down until the problem is resolved.

See DCPP Tech Specs at 3.0-2. This shows that the operability of DCPPs snubbers is a current operating issue, not an aging-related issue within the scope of license renewal.

switches and snubbers in the event of an earthquake. For this reason, FOEs concerns are outside the scope of license renewal and would be better addressed via a 10 C.F.R. § 2.206 petition.

3. Contention 3 FOEs Contention 3 states:

PG&E Has Failed to Establish In Its Aging Management Plan That the Effects of Aging on Diablo Canyon Will Be Adequately Managed for the Period of Extended Operation, In Violation of 10 C.F.R. § 54.21(a)(3). 169 In support of Contention 3, FOE argues that given the new findings in PG&Es Seismic Report, the aging management review in PG&Es LRA rests on seismic data that [have] been shown to be obsolete and inaccurate. 170 Thus, FOE asserts that PG&E has not met an implicit requirement in 10 C.F.R. § 54.21(a)(3) 171 and that PG&E must update its aging management review with data from the Seismic Report. 172 For the reasons discussed below, Contention 3 is inadmissible.

a. FOEs Contention 3 Does Not Raise a Genuine Dispute With the LRA As discussed above, PG&Es Diablo Canyon LRA was submitted in 2009. The LRA included an aging management review, including a list of AMPs. The LRA also included a discussion of the Hosgri earthquake and the LTSP Spectrum. The LRA discussed how SSCs were evaluated for the Hosgri earthquake to ensure that they can perform their intended function. 173 Further, the LRA states that for seismic design, all Design Class I and some Design Class II SSCs are classified Seismic Category 1, and must remain functional following a 169 Petition to Intervene at 30 (emphasis omitted).

170 Id. at 31.

171 Id.

172 Id. at 32.

173 See, e.g., LRA at 2.4-24 (intake structure and intake control building); id. at 2.4-18 (diesel fuel oil pump vaults and structures); id. at 2.4-14 (turbine building); id. at 2.4-2 (containment building).

design earthquake (DE), 174 double design earthquake (DDE), 175 or Hosgri earthquake (HE). 176 177 In support of Contention 3, FOE generally asserts that the LRAs aging management review is based on out-of-date and inaccurate information, as well as invalid assumptions, 178 and must be updated to account for up-to-date and accurate seismic data. 179 FOE claims that given the new information in the Seismic Report, the LRAs conclusion that the SSCs will remain strong enough throughout the plants extended period of operation to withstand an earthquake in accordance with the plants CLB 180 is no longer valid.

FOEs claims do not raise a genuine dispute with the Diablo Canyon LRA. FOEs non-specific challenge that the aging management review is inadequate does not reference a specific portion of the application that FOE disputes. 181 Instead, FOE only generally claims that the entire aging management review is inadequate. It is not for the Board or the parties to search through FOEs Petition to Intervene and supporting affidavits to divine theories that might support the admission of a contention. 182 This type of assertion does not meet the Commissions contention admissibility requirements. FOE also does not indicate how any part 174 The LRA notes that the DE is equivalent to the operating basis earthquake (OBE) of 10 CFR 100, Appendix A. LRA at 4.1-5, n.1.

175 The LRA notes that the DDE is equivalent to the safe shutdown earthquake (SSE) of 10 CFR 100, Appendix A. Id. at 4.1-5, n.2.

176 The LRA notes that the HE is a postulated Richter magnitude 7.5 earthquake centered along an offshore zone of geologic faulting known as the Hosgri Fault and is specific to DCPP. Id. at 4.1-5, n.3.

177 Id. at 4.1-5.

178 Petition to Intervene at 32.

179 Id.

180 Id.

181 See 10 C.F.R. § 2.039(f)(1)(vi).

182 Metropolitan Edison Co. (Three Mile Island Nuclear Station, Unit 1), CLI-83-25, 18 NRC 327, 331 (1983).

of the aging management review or AMPs relied on any seismic assumptions, or how any seismic assumption in the LRA is invalidated by information in the Seismic Report. As discussed above, while the Seismic Report did contain new information related to the Shoreline and other faults, the Seismic Report ultimately concluded that the Hosgri and LTSP were bounding. This is consistent with what is in the LRA, which states that the SSCs were analyzed assuming the Hosgri. Therefore, the Seismic Report does not undermine or invalidate the LRAs position on the ability of SSCs to withstand an earthquake.

b. FOEs Contention 3 Does Not Raise a Material Issue Within the Scope of License Renewal Moreover, FOEs Contention 3 should be denied because it does not raise a material issue. Section 2.309(f)(1)(iv) requires that all contentions demonstrate that the contention is material to the outcome of a licensing proceeding, meaning that the subject matter of the contention must impact the grant or denial of a pending license application. 183 In this license renewal proceeding, the standard for grant or denial of a license renewal application is found in 10 C.F.R. § 54.29. With respect to aging management programs and TLAAs, the Staff must find that there is reasonable assurance that the effects of aging on in-scope SSCs will be managed during the period of extended operation, that TLAAs have been identified for review, and that applicable environmental requirements have been met. 184 FOE does not indicate how any of its claims would impact the Staffs ability to make a license renewal finding. Instead, FOE makes only bare assertions that PG&E has failed to ensure that the effects of aging will be adequately managed for an additional 20 years given the findings in the Seismic Report. But FOE does not indicate how its seismic claims relate to aging; instead, FOE asserts that the aged components will not be able to perform their 183 Union Elec. Co. (Callaway Plant, Unit 1), LBP-12-15, 76 NRC 14, 26 (2012), citing 10 C.F.R. § 2.309(f)(1)(iv).

184 See 10 C.F.R. § 54.29.

intended function. Therefore, FOE has not raised a material issue and Contention 3 should be denied.

c. FOEs Contention 3 Lacks Sufficient Basis FOEs Contention 3 also lacks an adequate basis and therefore should be denied. FOE generally claims that PG&Es aging management review is based on a number of invalid assumptions. But FOE does not reference specific portions of PG&Es aging management review or indicate which assumptions it believes are inadequate. Likewise, FOEs affidavits do not support admission of FOEs Contention 3 in this license renewal proceeding. Instead, the affidavits discuss, among other things, why the current operation of the plant is problematic given the information in PG&Es Seismic Report. 185 C. FOEs Waiver Petition Should Be Denied FOEs Waiver Petition should also be denied. FOEs Waiver Petition seeks a limited waiver of 10 C.F.R. §§ 54.4, 54.21, and 54.29(a) to the extent the [Commission or Board]

interpret these regulations as precluding [FOE] from asserting in this proceeding that PG&E has not established Diablo Canyon can safely shut down following a potential earthquake. 186 For the reasons discussed below, FOE has not made a prima facie showing on any of the four factors comprising the Commissions stringent waiver standard. 187 Thus, FOEs Waiver Petition should be denied.

185 See Gundersen Affidavit at 24-40 (discussing current operational issues concerning relay chatter and snubbers) and Jentzch Affidavit at ¶ 30.

186 Waiver Petition at 1. See also id. at 5 (noting that waiver is sought to the extent those regulations are interpreted as precluding Petitioner from arguing that the ASLB should consider seismic issues in determining whether to grant PG&Es license renewal request.).

187 See Exelon Generation Co., LLC (Limerick Generating Station, Units 1 and 2), CLI-13-7, 78 NRC 199, 207 (2013) (Our waiver standard is stringent by design. The NRC has discretion to transact its business broadly, through rulemaking, or case-by-case, through adjudication. When we engage in rulemaking, we are carving out issues from adjudication for generic resolution. Therefore, to challenge the generic application of a rule, a petitioner seeking waiver must show that there is something extraordinary about the subject matter of the proceeding such that the rule should not apply.) (footnotes omitted; emphasis added).

1. Legal Standards Governing Petitions for Waiver Under 10 C.F.R. § 2.335 Pursuant to 10 C.F.R. § 2.335(a), except as provided in 10 C.F.R. § 2.335 (b), (c), and (d), no rule or regulation of the Commission, or any provision thereof, concerning the licensing of production and utilization facilities . . . is subject to attack by way of discovery, proof, argument, or other means in any adjudicatory proceeding subject to this part. Subsections (b),

(c), and (d) of 10 C.F.R. § 2.335 further provide as follows:

(b) A party to an adjudicatory proceeding subject to this part may petition that the application of a specified Commission rule or regulation or any provision thereof, of the type described in paragraph (a) of this section, be waived or an exception made for the particular proceeding. The sole ground for petition of waiver or exception is that special circumstances with respect to the subject matter of the particular proceeding are such that the application of the rule or regulation (or a provision of it) would not serve the purposes for which the rule or regulation was adopted. The petition must be accompanied by an affidavit that identifies the specific aspect or aspects of the subject matter of the proceeding as to which the application of the rule or regulation (or provision of it) would not serve the purposes for which the rule or regulation was adopted. The affidavit must state with particularity the special circumstances alleged to justify the waiver or exception requested.

Any other party may file a response by counter affidavit or otherwise.

(c) If, on the basis of the petition, affidavit and any response permitted under paragraph (b) of this section, the presiding officer determines that the petitioning party has not made a prima facie showing that the application of the specific Commission rule or regulation (or provision thereof) to a particular aspect or aspects of the subject matter of the proceeding would not serve the purposes for which the rule or regulation was adopted and that application of the rule or regulation should be waived or an exception granted, no evidence may be received on that matter and no discovery, cross-examination or argument directed to the matter will be permitted, and the presiding officer may not further consider the matter.

(d) If, on the basis of the petition, affidavit and any response provided for in [§ 2.335(b)], the presiding officer determines that the prima facie showing required by [§ 2.335(b)] has been made, the presiding officer shall, before ruling on the petition, certify the matter directly to the Commission . . . for a determination in the matter of whether the application of the Commission rule or regulation or provision thereof to a particular aspect or aspects of

the subject matter of the proceeding, in the context of this section, should be waived or an exception made. . . .

10 C.F.R. § 2.335 (emphasis added).

In applying these provisions, the Commission has emphasized that a waiver of one or more of its license renewal rules may be granted only upon a showing that the following four factors set out in Millstone 188 have been satisfied:

(i) the rules strict application would not serve the purposes for which [it] was adopted; (ii) the movant has alleged special circumstances that were not considered, either explicitly or by necessary implication, in the rulemaking proceeding leading to the rule sought to be waived; (iii) those circumstances are unique to the facility rather than common to a large class of facilities; and (iv) a waiver of the regulation is necessary to reach a significant safety problem. The use of and in this list of requirements is both intentional and significant. For a waiver request to be granted, all four factors must be met. 189 Thus, unless all of these requirements are satisfied, any matters deemed to be outside the scope of the license renewal safety review cannot be challenged in individual license renewal proceedings. 190 FOE seeks a waiver of 10 C.F.R. §§ 54.4, 54.21 and 54.29 for all three of its contentions.

Specifically, FOE seeks a limited waiver of the application of 10 C.F.R. §§ 54.4, 54.21, and 54.29(a) 191 to permit it to assert that a large earthquake that . . . is now known to be possible, would cause certain [SSCs] within Diablo Canyon to fail, preventing the plants reactors to remain safely shut down. 192 Further, FOE seeks a waiver to litigate its claims that Diablo 188 Dominion Nuclear Connecticut, Inc. (Millstone Nuclear Power Station, Units 1 and 2), CLI 24, 62 NRC 551 (2005).

189 Millstone, CLI-05-24, 62 NRC at 559-60 (emphasis in original; footnotes omitted).

190 Turkey Point, CLI-01-17, 54 NRC at 10-12.

191 Waiver Petition at 1.

192 Id. See also id. at 8 (requesting waiver to allow [FOE] to assert that the Commission can and should consider whether the plants SSCs will continue to function properly during the extended period of operation in the face of increased risk revealed by newly discovered seismic data.).

Canyon cannot withstand an earthquake due to the fact that the plants relay switches and snubbers are no longer able to function properly. 193 As set forth below, FOE has failed to establish a prima facie case that its Waiver Petition meets all of the Millstone factors. Accordingly, FOEs Waiver Petition should be denied.

2. FOE Has Not Made a Prima Facie Showing On Any of the Waiver Factors

a. Factor 1: FOE Has Not Shown That Part 54s Application Would Not Serve the Purposes for Which It Was Adopted FOE has not made a prima facie showing that the application of 10 C.F.R. §§ 54.4, 54.21 and 54.29(a) in this proceeding would not serve the purposes for which they were adopted. These license renewal safety regulations establish the scope of the plant SSCs within the scope of license renewal, 194 the technical contents of a license renewal application, 195 and the standards for issuance of a renewed license, 196 respectively. These rules limit the areas of concern for license renewal proceedings to issues unique to the period of extended operation.

As the Commission explained in its Statements of Consideration (SOC), 197 The license renewal review is intended to identify any additional actions that will be needed to maintain the functionality of the systems, structures, and components in the period of extended operation. 198 As a result, Part 54 draws a line between public health and safety during the period of extended operations, which is within the rules scope, and public health and safety during current plant 193 Id. at 8.

194 10 C.F.R. § 54.4. Waiver Petition at 7.

195 10 C.F.R. § 54.21; See also 10 C.F.R. § 54.4(b). Waiver Petition at 2 and n.4.

196 10 C.F.R. § 54.29(a).

197 See Limerick, CLI-13-7, 78 NRC at 209-10 (explaining that to determine the underlying purpose of a rule, one should look further than the rules stated effect and, for instance, examine the Statements of Consideration accompanying the rulemaking).

198 60 Fed. Reg. at 22,464.

operation, which is outside the rules scope. 199 Part 54 purposefully does not require submission of information relating to the adequacy of, or compliance with, the current licensing basis and does not require a finding regarding the adequacy of, or compliance with, the plant's licensing basis. 200 Therefore, hearings in individual license renewal proceedings are limited to safety contentions that question whether the applicant has properly complied with the 10 CFR part 54 requirements and thereby adequately addressed age-related degradation unique to license renewal. 201 FOE argues that the strict application of 10 C.F.R. §§ 54.4, 54.21, and 54.29(a) in this license renewal proceeding would unjustifiably exclude important and relevant issues relating to the ability of Diablo Canyon to continue functioning properly during the license renewal term. 202 In particular, FOE argues that the paramount objective of the license renewal rules is to ensure that the important systems, structures, and components will continue to perform their intended function in the period of extended operation. 203 FOE argues that given the extraordinary seismic history of Diablo Canyon 204 and the findings in the Seismic Report, 205 the usual scope of license renewal should not apply in this instance. 206 199 See 60 Fed. Reg.at 22,463-64, 22,481.

200 Nuclear Power Plant License Renewal, 56 Fed. Reg. 64,943, 64,961 (Dec. 13, 1991) (Final Rule).

201 Id. License renewal hearings also consider certain environmental issues (i.e., whether the applicable requirements of 10 CFR part 51 relating to environmental protection under NEPA have been satisfied . . . . ). Id. FOE recognizes this, as its Waiver Petition correctly states the objective of a license renewal safety review. Waiver Petition at 1-2 & 6-7.

202 Waiver Petition at 6. Id. at 8 (Interpreting the Commissions rules to preclude Petitioner from arguing that the plant cannot withstand an earthquake due to the fact that the plants relay switches and snubbers are no longer able to function properly would eviscerate the central objective of the license renewal rule -to ensure plant safety during the extended license term.).

203 Id. at 6.

204 Waiver Petition at 5.

FOEs arguments do not provide a prima facie case that Part 54s application would not serve the purpose for which it was adopted. In particular, FOE has not indicated how any of its claims are necessary to ensure adequate protection only during the renewal term. 207 Instead, FOE seeks to adjudicate the current licensing basis of Diablo Canyon in a license renewal proceeding and/or challenge the Commissions license renewal rules. 208 Thus, while FOE claims that its waiver request is limited, 209 FOEs Waiver Petition is actually extremely broad.

In effect, FOE is requesting that the narrow scope of Part 54 be waived in its entirety for this proceeding, and that Part 50 matters related to current operation of the plant be adjudicated.

This goes against the purpose of Part 54, which the Commission revised to identify and eliminate from license renewal proceedings certain analysis that would be duplicative of the licensees ongoing obligations to comply with Commission regulations and the plants current licensing basis. 210 As the Commission explained in Millstone, it makes no sense to spend the 205 See, e.g., Id. at 8 (characterizing the findings in the report as showing an increased risk).

See id. at 1 (asserting that the Seismic Report has for the first time demonstrated that a large earthquake is possible and that the plant will not be able to withstand it).

206 Id. at 5-6.

207 56 Fed. Reg. at 64,961 (explaining that waiver petitions from 10 C.F.R. Part 54 would not be granted for [i]ssues that have relevance and could be completely resolved during the term of operation under the existing operating license as well as license renewal because there is no unique relevance of

[these] issue[s] to the renewal term. . . . On the other hand, if an intervenor could make a prima facie demonstration that an issue or circumstance would occur during the renewal term and not during the existing operating license term, and that its resolution is necessary to ensure adequate protection, the Commission would admit that issue for resolution in the formal renewal hearing, as provided, in § 54.29(c).) (emphasis added).

208 For example, FOE argues that snubbers and relay switches are subject to aging management.

209 Waiver Petition at 1.

210 Id. at 6 (citing 60 Fed. Reg. at 22,462-3).

parties' and our own valuable resources litigating allegations of current deficiencies in a proceeding that is directed to future-oriented issues of aging. 211 The Staff is currently examining PG&Es Seismic Report to determine what, if any, implications it has on the current operation the plant. 212 FOEs Waiver Petition demonstrates that it has concerns with the current operation of the plant given PG&Es Seismic Report. But, as the Commission has explained, it will not grant waiver petitions in license renewal proceedings for [i]ssues that have relevance and could be completely resolved during the term of operation under the existing operating license as well as license renewal because there is no unique relevance of [these] issue[s] to the renewal term. 213 Thus, FOEs Waiver request should be denied. 214

b. Factor 2: FOE Has Not Shown That Special Circumstances Exist FOEs Waiver Petition should also be denied because it has not made a prima facie showing regarding the second Millstone factor (i.e., that there are special circumstances that were not considered, either explicitly or by necessary implication, in the rulemaking proceeding 211 Millstone, CLI-05-24, 62 NRC at 560-61 (emphasis in original). Instead, the NRC regulations provide two other procedural mechanisms (10 C.F.R. §§ 2.206 and 2.802), by which [a petitioner] may pursue its concerns about current deficiencies. Id. at 561.

212 If the Staff determines that there is a current operating issue, this would be dealt with presently, and would not wait until the period of extended operation. The license renewal Staff would then consider if any change in the current operation of the plant would affect the Staffs license renewal review.

213 56 Fed. Reg. at 64,961. On the other hand, if an intervenor could make a prima facie demonstration that an issue or circumstance would occur during the renewal term and not during the existing operating license term, and that its resolution is necessary to ensure adequate protection, the Commission would admit that issue for resolution in the formal renewal hearing, as provided, in § 54.29(c). Id. (emphasis added).

214 To the extent that FOE takes issue with the Commissions license renewal safety rules, it could file a 10 C.F.R. § 2.802 petition for rulemaking. To the extent that FOE has concerns with the current operation of the plant, FOE could file a 10 C.F.R. § 2.206 petition for agency action. See Millstone, CLI-05-24, 62 NRC at 561, 562-63.

leading to the rule sought to be waived). 215 The Commission has explained that special circumstances must be such as to undercut the rationale for the rule sought to be waived. 216 FOE argues that there are special circumstances in this instance because the unprecedented circumstances surrounding the seismic history of Diablo Canyon were not considered in the Commissions license renewal rulemaking proceeding. 217 FOE claims that the license renewal rule was based on the assumption that a plants seismic design basis would be static, and that no new seismic data, requiring alternations to the plants current licensing basis, would be discovered. 218 Thus, FOE argues that there are special circumstances that warrant an analysis at the license renewal stage of whether the plants SSCs, in their aged condition, can continue to function properly during the extended period of operation. 219 In particular, FOE claims that the license renewal rule did not contemplate a scenario where outside-design-basis events [would] be added to the plants current licensing basis 220 or a scenario where SSCs that were deemed not to require monitoring would require monitoring given additional stress on these SSCs. 221 Thus, FOE argues that the rules purpose of continued safety is not furthered by excluding from license renewal review certain SSCs 222 that 215 Id. at 559-60.

216 Pub. Serv. Co. of New Hampshire (Seabrook Station, Units 1 and 2), CLI-88-10, 28 NRC 573, 597 (1988).

217 Waiver Petition at 5.

218 Id. at 8-9.

219 Id. at 9. FOEs Waiver Petition then recounts the seismic history of Diablo Canyon. Id. at 9-12.

220 Id. at 12. See also id. at 11 (discussing Hosgri evaluation).

221 Id. at 12. See also id. at 11 (asserting that the Seismic Report shows that there is the possibility of a larger earthquake).

222 Presumably, FOE is talking about relay switches and snubbers and/or the small components discussed in its affidavits (though it is not clear what small components are being referenced).

play an important part in ensuring that the plant is able to safely shut down and remain shut down following an earthquake. 223 FOEs claims do not demonstrate that there are special circumstances in this license renewal proceeding that were not considered during the Part 54 rulemaking. As an initial matter, FOE offers no support for its claims that the license renewal rule presumes that there will be no change in the seismic risk at a plant or for its claims that the Seismic Report concluded that there is an increased seismic risk at Diablo Canyon. 224 In any event, the issue of whether Diablo Canyon was designed, built, and operated to safely withstand earthquakes likely to occur in its region is a current operating issue.

As explained above, the Commission explicitly accounted for the dichotomy between current operating issues and issues unique to license renewal in its Part 54 rulemaking. The Commission has also accounted for the possibility that seismic hazards at reactor sites could change and is dealing with this as part of its ongoing oversight of the current operation of the plants. 225 Thus, FOEs asserted special circumstances do not undercut the rationale for Part

54. 226 Moreover, the Commission considered which SSCs should be subject to aging 223 Waiver Petition at 12.

224 In fact, FOEs Waiver Petition notes that PG&E concluded that the plant remained safe on the basis that the ground motions based on the new information [in the Seismic Report] remain bounded by its previous evaluation of ground motion that can be caused by the Hosgri fault. Id. at 12 (emphasis removed).

225 For example, as part of the Commissions post-Fukushima lessons-learned activities, the NRC is requiring all licensees, including Diablo Canyon, to reevaluate seismic hazards at their sites. See Letter from NRC to All Power Reactor Licensees and Holders of Construction Permits in Active or Deferred Status, Request for Information Pursuant to Title 10 of the Code of Federal Regulations 50.54(f)

Regarding Recommendations 2.1, 2.3, and 9.3, of the Near-Term Task Force Review of Insights from the Fukushima Dai-Ichi Accident (Mar. 12, 2012) (ADAMS Accession No. ML12056A046) (requiring, in part, that plants reevaluate seismic hazards using present-day methods and guidance, and conduct walkdowns (visual reviews of the plants seismic structures, systems and components)) (Fukushima RAI).

226 Seabrook, CLI-88-10, 28 NRC at 597.

management review and/or TLAAs in its license renewal rulemaking. 227 The fact that FOE disagrees with the Commissions separation of current operating issues and issues unique to license renewal, and questions the Commissions license renewal rules is not a special circumstance that was not considered during the Part 54 rulemaking. Thus, FOE has not made a prima facie showing on the second Millstone factor, and its Waiver Petition should be denied.

c. Factor 3: FOE Has Not Shown That There Are Special Circumstances Unique to Diablo Canyon As discussed directly above, FOE has not shown that there are special circumstances in this license renewal proceeding that were not considered during the Part 54 rulemaking. Since FOE has not shown special circumstances, it also cannot satisfy the third Millstone factor which is that the identified special circumstances must be unique to the facility rather than common to a large class of facilities. 228 Moreover, the Commission has explained that to meet Millstones uniqueness factor, a challenge to a regulation should rest on issues that are legitimately unique to the proceeding and do not imply broader concerns about the rules general viability or appropriateness. 229 While FOEs challenges are premised on a report that applies only to Diablo Canyon, at bottom FOEs challenges imply broader concerns about the viability or appropriateness of Part 54. Thus, FOE has not made a prima facie showing with respect to the third Millstone factor, and its Waiver Petition should be denied.

FOE argues that Diablo Canyon is unique because [n]o other nuclear power plant in the U.S. has been permitted to continue operations despite the existence and acknowledgement of a fault nearby that can produce far greater ground motion than the plants safe shutdown 227 See 10 C.F.R. § 54.4(a). See also NUREG-1800, Rev. 1, at A.1-2.

228 Millstone, CLI-05-24, 62 NRC at 559-60.

229 Limerick, CLI-13-7, 78 NRC at 208. Id. (To be sure, if an issue were common to a large class of facilities, then it would be appropriate for [the Commission] to address the issue through rulemaking.).

earthquake. 230 As an initial matter, FOE offers no support for its claim that Diablo Canyon is being allowed to operate outside of its current licensing basis. In any event, the proposition that there could be a seismic hazard greater than contemplated in a plants design is not unique to Diablo Canyon. 231 Moreover, as noted above, each power reactor, not just Diablo Canyon, is being required to reevaluate seismic hazards using present-day methods and guidance, and conduct walkdowns to ensure protection against seismic hazards. 232 FOE also argues that Diablo Canyon is unique because it is located on the Pacific Coast 233 and because its seismic design basis is complex while other plants seismic design bases are simple. 234 While it is true that Diablo Canyons CLB is unique and complex, this does not satisfy the Millstone uniqueness factor. Instead, FOEs claims indicate that FOE has concerns with the current operation of the plant, the plants CLB, and the SSCs subject to aging management review. Since these claims could also be raised at another facility (for example, an East Coast plant that identified a higher seismic hazard than previously realized), the issue is not unique but, rather, common to a large class of facilities. Thus, FOEs Waiver Petition does not make a prima facie case on the third Millstone factor and should be denied.

230 Waiver Petition at 13.

231 See, e.g., Results of Initial Screening of Generic Issue 194, Implications of Updated Probabilistic Seismic Hazard Estimates (Sept. 12, 2003) (ADAMS Accession No. ML032680979)

(concerning a probabilistic seismic hazard assessment for Watts Bar and Vogtle that shows a higher probabilistic seismic hazard estimate for the Watts Bar site than the value obtained from previous estimates).

232 See generally Fukushima RAI.

233 Waiver Petition at 14.

234 Id. at 13.

d. Factor 4: FOE Has Not Shown That Waiver Is Necessary to Reach a Significant Safety Issue Finally, FOE has not made a prima facie showing that waiver of Part 54 is necessary to reach a significant safety issue. This Millstone factor was established to protect the Commissions already crowded regulatory agenda from non-substantive problems. 235 FOE argues that waiver is necessary because the danger posed by an earthquake affecting a nuclear power plant is not subject to dispute and FOE has no other avenue by which it can assert that Diablo Canyons relays and snubbers, and the plants SSCs considered in their entirety, have degraded to the point they will not be able to continue to function properly after an earthquake 236 during the period of extended operation.

FOEs claims do not make a prima facie showing on the fourth Millstone factor. While the Staff recognizes that seismic hazards are an important issue and have the potential to affect public health and safety, these issues are current operating issues. Despite FOEs claims to the contrary, 237 FOE does have other avenues to raise its concerns about seismic issues at Diablo Canyon. For example, FOE could file a 10 C.F.R. § 2.206 petition, FOE could file a 10 C.F.R.

§ 2.802 petition for rulemaking, or FOE could submit an admissible late-filed contention in this 235 See Seabrook, CLI-88-10, 28 NRC at 601 (The Commission's agenda is crowded with significant regulatory matters, including new rules on nuclear plant maintenance, fitness for duty, and high-level waste repository licensing, and safety oversight of the over 100 nuclear power plants with operating licenses. It would not be consistent with the Commission's statutorily mandated responsibilities to spend time and resources on matters that are of no substantive regulatory significance. . . . For these reasons, we conclude that the rule waiver petitions before us do not present a significant safety problem, and therefore must be denied.). The Millstone decision relied on Seabrook.

236 Waiver Petition at 14-15.

237 Id. at 14, 15 and n. 36. While FOE asserts that it is not seeking to modify, suspend, or revoke a license, its Petition to Intervene and Waiver Petition appear to be requesting exactly such relief. Both petitions make numerous claims that there are now new and greater seismic hazards that mean that Diablo Canyon cannot safely shut down. See, e.g., Petition to Intervene at 3 (stating that PG&E has never demonstrated that the plant can be safely operated under its existing license given the Shoreline Fault); Id. at 1.

license renewal proceeding related to seismic concerns. 238 Therefore, FOEs Waiver Petition does not make a prima facie case on the fourth Millstone factor and should be denied.

IV. CONCLUSION For the reasons set forth above, the Board should deny FOEs Petition to Intervene and Waiver Petition.

Respectfully submitted, Signed (electronically) by Catherine E. Kanatas Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 Telephone: (301) 415-2321 E-mail: Catherine.Kanatas@nrc.gov Date of Signature: November 4, 2014 Executed in Accord with 10 CFR 2.304(d)

Joseph A. Lindell Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Office of the General Counsel Mail Stop O15-D21 Washington, DC 20555 Telephone: (301) 415-1474 Email: Joseph.Lindell@nrc.gov 238 Contrary to FOEs claims, the Board is already considering seismic issues in determining whether to grant PG&Es license renewal request. Waiver Petition at 5. In particular, the Board is considering the adequacy of PG&Es SAMA analysis given the Shoreline fault. See Diablo Canyon, CLI-11-11, 74 NRC at 427.

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

)

FIRSTENERGY NUCLEAR OPERATING CO. ) Docket No. 50-346-LRA

)

(Davis-Besse Nuclear Power Station, Unit 1) )

)

CERTIFICATE OF SERVICE Pursuant to 10 C.F.R. § 2.305 (revised), I hereby certify that copies of the NRC STAFFS ANSWER TO FRIENDS OF THE EARTHS REQUEST FOR A HEARING AND PETITION TO INTERVENE AND WAIVER PETITION have been served upon the Electronic Information Exchange, the NRCs E-Filing System, in the above captioned proceeding, this 4th day of November, 2014.

/Signed (electronically) by/

Catherine E. Kanatas Counsel for the NRC Staff U.S. Nuclear Regulatory Commission Mail Stop O-15 D21 Washington, DC 20555-0001 Telephone: (301) 415-2321 E-mail: Catherine.Kanatas@nrc.gov Date: November 4, 2014